HomeMy WebLinkAbout1991-10-10
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Town of Nantucket
Conservation Commission
4 North Water Street
Nantucket, Massachusetts 02554
MEETING MINUTES FOR OCTOBER 10. 1991
The meeting was called to order at 7:00 p.m. in the Large
Group Instruction Room of the Nantucket High School.
Commissioners present were William Willet, Peter Dunwiddie, Henry
Wasierski, Diarye M~Coll, Daniel Kelliher, and Pet':!:; :.J~Json.. Also
present were Bruce Perry,' ~dministrator~ and Luci~wyeth,
secretary.
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A. COMMENTS AND QUESTIONS FROM PRESS AND PUBLIC
Present is Sascha Illich resident of 44 Tennessee Avenue
in Madaket who is speaking in behalf of his wife Beverly Hall
who is the property owner. Presents a statement with photos
dated October 10, 1991 describing activities on land north of
Tennessee Avenue which is covered by dense high bushes. Says
a 17' wide path was cut through the area by Mr. David
Leggett~ originally three years ago at which time the
abutters confronted him and asked him to stop, and again a
year.ago--this time at the direction of Mr. Bill Koch. It is
his and Ms. Hall's intention to replant the area at their own
cost. They request recommendations and sponsorship of the
Commission as well as support that any future interference
with the natural state of the wetlands and adjacent bushes on
this land by anybody would require prior approval of the
Commi'ssion.
Mr. Willet notes Mr. Leggett does not have permission
from us to cut a footpath.
Mr. Perry says that there was correspondence and
discussion between the commission and Mr. Leggett on this two
or three years ago but he cannot find the files.
Mr. Willet suggests we send a letter to Mr. Leggett.
Mr. Perry suggests we send the letter stating any further
disturbance to the area requires permission from the
Commission to Mr. Illich and copy Mr. Leggett.
Mr. Illich requests suggestions from the commission with
regard to the types of plants to use. Adds he would like
assurance that he has the backing of the commission to
protect their replanting effort so the area will not be cut
again or if at some time something is to be done, it is done
properly, with the commission's approval.
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Meeting Minutes for October 10, 1991
Page 2
B. PUBLIC HEARINGS
1. Richards - 25 E. Tristram Ave.,- SE48-609 - (31-1)
MOTION: To continue at the applicant's request is
made and seconded.
UNANIMOUS
2. Poor Quidnet-SE48-635 (29-49, 50.2, 30.3; 21- 58, 119)
3. Poor - Quidnet -SE48-637' (21,-122, U8.l, 119.1,,119.~)
. . .. . .
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MOTION: To continue at the applicant's requesi is
made and seconded.
UNANIMOUS
4. Diehl - 44 Meadowview Drive - SE48-656 - (56-297)
Present for the applicant is Mr. Robert Emack.
Mr. Perry says we have received revised plans. Says the
last discussion described the proposed as a bathtub with or
witho~t a drain; it was punching through the clay layer for
the leach pit. Mr. Emack went to DEPwith a couple of ideas
which they didn't like and he has done a redesign.
Mr. Emack says the redesign is pretty much the same as
was proposed: excavate all the impervious material for 10'
diameter around the leach pit and replace with clean sand.
The modification that has been made in deference to the
commission is adding an impervious barrier around the 10'
diameter, to keep the water from draining from the perched
wetland.
Dr. Dunwiddie asks how they are going to ascertain the
seal is impervious.
Mr. Emack says it is by design, he can't guarantee water
can't get through so-called impervious. Continues he has
also proposed a Morafi filter fabric which lays within the
entire excavated area to keep the area from silting up which
was one of the concerns of DEP.
Mr. Perry suggests a couple of inspections before the
fabric is installed before they put the sand in.
Dr. Dunwiddie adds he thinks we need to make definite
follow-up inspections subsequently to make sure the wetland
stays.
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Meeting Minutes for October 10, 1991
Page 3
MOTION: To close the hearing and draft an order is
made and seconded.
UNANIMOUS
5. O'Neill - 98 Wauwinet Road - SE48-662 - (11-25)
Mr. Kelliher abst~ins from t~e discussion and vote.
Mr. Perry says Mr. O'Neill has provided some final
grading contoursard final .plans whi~h show thanges that were
marle to .his scheme. .
Commissioners review new plans.
MOTION: To close the hearing and draft an order is
made and seconded.
UNANIMOUS
6. Dunham - Tristam Avenue - SE48-666 - (31-02)
MOTION: To continue at the applicant's request is
made and seconded.
UNANIMOUS
7. Bordes - 12 Oakland St- SE48-664 -(59.4-187-192, etc.)
Present for the applicant is Mr. John Shugrue.
Mr. Perry says we left this one open for a revised plan
of the additions. Says the revision includes the first
edition footprint with the second edition septic system
design. Has one more piece of information that came out in
the drafted order.
Mr. Willet questions Mr. Shugrue about the discrepancy in
with regard to the number of bedrooms as listed by the
assessor's office and as represented in the Notice. The
assessor has the property listed as four bedrooms and the
applicant is applying for a eight bedroom waiver.
Mr. Shugrue says that the proposal is for a proposed
eight bedroom complex.
Dr. Dunwiddie states that the submitted plans state
"existing eight bedroom complex".
Mr. Shugrue responds that the discrepancy lies in how the
different departments count bedrooms. He wants to leave
Meeting Minutes for October 10, 1991
Page 4
enough capacity in the system if it is required. Adds before
putting on any additions they will have to come to the
commission; right now they are serving the existing
structures and it is a little over Title V but feels it is
better to have it over than right on the margin.
Mr. Wasierski comments that'he does not agree with that
theory at all.
Mr. lJillet notes they are fill~ng the wetland in order to
get 't'he system' in.
Mr. Perry says that's where the waiver comes in.
Mr. Shugrue says it is a replacement system but what it
is replacing is a lot worse.
Mr. Willet says he understands that but the concern is
you are getting an eight bedroom system for a four bedroom
house and he can't see the necessity except for future
expansion.
Mr. Wasierski says what is it replacing.
Mr. Shugrue says it is replacing one cesspool, one septic
tank with a dry well that is not dry and another septic tank
which he doesn't know what it is connected to. They have
been there for over twenty years. Says the current system is
not failed; they need a new system to straighten it out and
bring it into Title V compliance as best they can. This is
voluntary.
Mr. Perry says ,we could write an on-going condition in
the order so they will bave to come to us before adding
additional bedrooms.
Dr. Dunwiddie asks if you're allowing a system for eight
bedrooms wouldn't that necessarily be larger than one allowed
for four bedrooms?
Mr. Perry says yes.
Dr. Dunwiddie says and if you design one for four
bedrooms wouldn't that result in less wetland filling?
Mr. Shugrue says not really. Having a mounded system is
going to require three trenches and you may cut ten feet off
the end of the trenches and the mounded systems do work but
he knows a few that have had trouble; one case the grass over
the top was never mowed and the root systems went into the
pipes.
Meeting Minutes for October 10, 1991
Page 5
Mr. Wasierski asks what difference it makes whether it is
a fo~r bedroom system or an eight bedroom system if the grass
is cut and the roots are kept out of it.
Mr. Shugrue says the larger the system the more roots it
will take to plug it.
Mr. Wasierski says not necessarily if the roots fill in
the inlet end they could stop it immediately. So it doesn't
matter if the trenches are 5' lon,gor SCO' ~ong.
Dr. Dunwiddie says he doesn't think Mr. Shugrue is 'making
any argument at all for anything over a four bedroom system.
If you are having problems with a four bedroom system,
replace it with a four bedroom system. You're talking about
filling a wetland and you're talking about Hither Creek where
everyone is concerned about any expansion of the effluent
going in there now; why are we talking about doubling the
size? If you've got eight bedrooms in there now it's news to
other departments besides the Conservation Commission.
Mr. Willet says this is a replacement of a four bedroom
system with a four bedroom syste~ in the drafted order. Asks
Mr. Shugrue if he has any other points.
Mr. Shugrue says he has one other request--he would like
to bring the deck out two feet towards the creek. The
existing deck is semi-unserviceable--by the time you put a
bench and table there you can't walk behind on either side.
It's 7' and they would like to get it out to nine.
Mr. Perry asks is that the deck you gave us in the second
scheme you gave us last week?
Mr. Shugrue says no, that was out 5'.
Mr. Perry that was out 5' and you want to go out another
2' ?
Mr. Shugrue says yes, and he can use the existing
supports and cantilever the top section and that will still
keep it 24-36" off the grass.
Mr. Willet says he has no problem with the cantilever.
Dr. Dunwiddie says he would like to see a new set of
plans showing a four bedroom septic system; doesn't think we
can approve i~ with a plan showing eight.
Meeting Minutes for October 10, 1991
Page 6
Mr. Wilson asks if the expansion area has to be
constructed at this time or can it wait.
Mr. Shugrue says it can wait but it will do us no good.
Mr. Wilson says except you wouldn't be filling the
wetland at all in that case.
Mr. Shugrue says you would still be filling some of the
wetland because all you would do is to move the slope back
about'12". Bl.\t by doing ~ll the f~lling at this ti~e,w.ill'
allow vegetation to regrow,. An'd'thery if they do ever have 'to
use the expansion area it's all there without tearing up the
entire slope again, bfinging in fill, compacting and
regrading it.
Mr. Wilson says but until that time this wetland would
remain.
Mr. Shugrue says you wou.ld still end up filling in to the
toe of that wetland.
Mr. Perry says we could write in if it fails they would
have to dig it up and not use the expansion area.
Mr. Shugrue says you can't draw a permit on that.
Mr. Perry says you can draw the area but limit it; we've
done that before.
Mr. Shugrue says you have to have 50' from the property
line in Madaket for a septic system.
Mr. Wilson says it's 40' from the edge of the area where
the trenches would be and if it were pulled over to where the
other trenches would be the toe of the slope would be out of
the wetland altogether.
Mr. Shugrue says you can't pull it over that far/because
you're not maintaining the proper grade. It would toe right
at the edge.
Dr. Dunwiddie says put up a siltation fence for
construction and don't touch the wetland.
Mr. Wilson says maybe if he mows his grass carefully
we'll all be dead before this comes up.
Dr. Dunwiddie says give it a try, see if you can squeeze
it in there.
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Meeting Minutes for' October 10, 1991
Page 7
Mr. Wilson says chances are this will last 12 years--
thirty-six y~ars from now where is the septic system going to
go?
Mr. Shugrue says after you use the expansion area then
you can go back as the original will regenerate.
Mr. Wilson says it seems to him if t~e Object is to stay
out of wetlands and we can do it, we should.
MOTION: ,"ro 'continue for a ~"ie!:'l septic, plan 'is made'
and seconded.
UNANIMOUS
8. Hakes - Esther Island - SE48-669 - (36.2.3-97)
MOTION: To continue at the applicant's request is
made and seconded.
UNANIMOUS
9. Leet - 24 Western Ave. - SE48-672 - (87-76)
Present are Attorney Melissa Philbrick and Mr. Les Smith.
Present for the abutters is Attorney Arthur Reade.
Mr. Perry says we requested at the last meeting that
better waiver requests be written.
Attorney Philbrick presents a letter which summarizes the
waivers requested and the discussion about whether these two
resource areas are a coastal bank and a coastal dune; notes
that DEP when they sent down the file number didn't flag it
as a resource area. The letter goes on to talk about if
these areas are significant under the act given their
distance from the water at this point in time. Adds that
should the commission determine either are significant, Mr.
Smith has provided a more formal application for a waiver for
the coastal dune and the bank.
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Mr. Smith presents the waivers: one for the coastal dune
regulations subsection 5 of section 2.03(B) which states that
no part of any septic system shall be placed in any part of a
coastal dune. He feels this is a unique area due to
accretion of the site in the last 50 years artd the distances
they now have to high water mark and 100 year flood zone~
Also, there are existing systems and in terms of shifting
sand there is no evidence of them being uncovered by wind
action. He points out that without the requested waiver it
would not be buildable. The second request is for the
Meeting Minutes for Octob~r 10, 1991
Page 8
coastal bank regulations. They are still of the opinion it
is. not a cOClstal bank; it is a glacial bank and you have the
info~mation regarding that opinion. , Th~n he states the
setbacks from the top of the coastal bank. And they would
revegetate the area beyond the deck on~e the tank was
installed. This is the only information that was requested
at the last hearing.
Mr. Willet asks for the proposed ridge height?
, Mrs. Philbrick responds 'that the applicants wish a 26
'foot, ridge' hei9ht~
Mr. Willet states that the decision under the ZBA allowed
only 22 feet. Why are you asking for more?
Mrs. Philbrick states that the ZBA decision is under
appeal and is not some that the Commission can work with at
the moment. She adds that it might not be within the ZBA
jurisdiction to determine the ridge height.
Mr. Perry comments that the ZBA put the condition in its
decision. They would not do this if they did not feel that it
would hold up.
Mrs. Philbrick comments that it was offered by the
applicant to appease the abutters.
Attorney Reade says he represents Eleanor Harvey, Helen
Davis, Bill Sherman, Jim Mullen and a number of other
neighbors who are deeply concerned with this project. They
are the same people who are the plaintiffs w.ho have the
litiga~ion in the granting by the Zoning Board of Appeals.
This is not just a situation where somebody is asking for a
waiver of a setback from the buffer zone. This is a case
where on a presently unimproved, unconstructed lot the owner
of the property is proposing to place a septic system within
the coastal dune area. Thinks that is a very dangerous
precedent. There are circumstances in which, for an existing
property, it would be appropriate to replace an existing
failed system or, in the right circumstance, to waive the
setbacks, but to actually place the system within the area
where you are charged with protecting under both the state
and local by-laws is an extremely dangerous precedent for an
unimproved lot. There is no God-given right that every lot
has to be built on and if you don't allow building to take
place you're making a taking without compensation. When the
reason why the property should not be built upon is intrinsic
in the lo.t itself, as is the case here, then it makes your
purpose meaningless to allow construction to take place on
that lot just on the basis of a fear of attack of a taking
Meeting Minutes for October 10, 1991
Page 9
without compensation. Thinks you need to stand up for the
principles as set forth in your regulations and when you get
to the point of acting on an order of conditions that you
should issue an ord~r that does not permit the project to
tdke place. As I read the. presumptions of significance
relating to coastal dunes I find i.t incredible to allege that
this coastal dune accC!lmplishes none of the objectives of a
coasta~ dune. Would urge the commission to take all this
into consideration, particularly with regard to the precedent
value, and act accordingly.
Ms. Eleano'r Harvey, an abutter, 'concurs.
Mr. Stan Humphries, Coastal Geologist for IEP and present
on behalf of the Nantucket Land Council says he previously
sent a letter which summarized their findings. He has looked
at the revised plan and has some questions. One, as the
proposed well is to be down grade from the house, where is
the pump house to be located. Two, there is an area denuded
of vegetation because of the previous test pit. He would
think the scar should be revegetated. Three, the
revegetation plan was referenced but he doesn't see one
included. Lastly, he failed to make the point in his letter
that because the septic system has components in the dune and
bank it does not enjoy the presumption of Title V. His
opinion is that no work could go forward unless the Board of
Health issues its approvals and the variances required and he
would hope the commission would condition approval on
approval of the Board or Health or deny the project until
such time as approval is received.
Dr. Dunwiddie asks if there isn't a regulation about
having a well down flow from a septic system.
Mr. Smith says Title V requires 100' separation and the
more stringent local regulations have a new requirement of
300', however there is a waiver provision exemption for
existing wells.
Mr. Kelliher notes the well is a submersible well and the
pump house is unnecessary.
Attorney Philbrick says she would like to respond to
something Attorney Reade said as far as taking without
compensation. It is true that regulations can act to make a
lot unbuildable and as long as they are just and fairly
administered and have a direct relation to the, interests
being protected that can be done. They feel that this
particular coastal bank in this particular setting and the
work they will be doing in the resource area is not going to
damage the area and, despite Attorney Reade's discussion, he
Meetin~ Minutes for October 10, 1991
Page 10
still is not presenting to you evidence or information which
says that those interests are going to be damaged. Thinks
you have to look up and down that bank and see where other
septic; systems have been installed in the same location and
look at thehistor'y of the systems and decide what is fair
and right to do. The second issue is that which Mr.
Humphries raised with regard to the Board of Health and they
have not- yet taken the project to them and they do have a
septic design and she would like to hear the commission's
thoughts on that. They are very much aware that they have to
go ,through the Board of Health proc~dure and th~re are two
pAr\:s ~f those re~.ulations from' which they wi!! ,need
variances.
Dr. Dunwiddie asks why haven't they switched the septic.
Mr. Smith says they found that Mrs. Helen Davis has an
existing leach pit which was not discovered whe.n either the
McMa$ters or Mrs. Harvey was before us and they are now
wi~hin 100' separation distance and it basically eliminated
all the potential areas for the well. Additionally points
out the McMasters' and Harvey's leach trench and says this is
~h~ only option.
Attorney Philbrick says these are the other systems in
the area I was referring to which are below the bank.
Mrs. Harvey says those were different circumstances; the
septic tanks were pre-existing. This is a new one going into
conservation land.
Dr. Dunwiddie asks Mr. Humphries if he commented
previously on the potential impacts of this proposed activity
on the resource areas. Feels Attorney Philbrick is asking a
legitimate question and if ~hat they are proposing isn't
going to have any negative effects, then what's the problem.
Mr. Humphries says there is a distinct definition between
dune and bank and there is evidence of shifting sands but
this is superficial. The area currently is not subject to
flooding or a hundred year event with regard to the question
of a significance to storm damage and flood control. And
there would be effects of sea level rise to some extent but
it would be very hard to prove that at some future point in
time it would be significant. Does not have any other
information to provide this evening. The issue of the
vertical bank being a buffer to wind and rain erosion is an
interest that has to be protected in some way and can be
accomplished through some measure following construction.
)#4- --W, :-tth~ :;tj;~,:;-
Meeting Minutes for October 10, 1991
Page 11
Dr. Dunwiddie rephrases the question more directly: is
there anything they aYe going to do here that is going to
negatively impact the resources that we are sit~in~here
trying to protect.
Mr. Humphries says he thinks there are some areas within
the resource area itself but which changes will take place is
anyone's guess.
Mr. Perry says he has some questions. .His wer.ry is
,putting two fi~ed, hara obj~cts, you can', ,call them
str-uctures under. the' clefiniti'on, the sept;ic tank:,and leach
facilities in shifting sands. It's hard to believe the area
of the test pit cannot be considered shifting sands when you
dig a hole the size of this room practically to dig down 12'.
So where you are putting the leach trenches is shifting sand
and potentially they will be exposed. It is just a question
of when. The neighbors have leach pits, it may be 4' below
grade. You don't know how deep they are. The commissions
aren't aware of every property out there and whether or not
they have had a problem with their tanks or leach pits.
Mr. Smith says you can't presume that if you dig a hole
and it caves in then it's an unstable area. Given that
scenario most of Nantucket and Cape Code would be considered
unstable. A clay area would be unstable. You're creating
instability by digging a hole and creating a steeper slope.
Mr. Willet says a dune is not as stable as other areas.
Mr. Perry responds to dig a hole this big around in a
clay area does not require something that's 30' in diameter.
Mr. Smith says but it's inherently unstable because you
are digging a hole.
Mr. Perry says you will get collapse but the impact of
just moving the sand is greater than the hole itself so that
to install leach trenches made out of stone and to go on and
cover them, the very fact that you're installing them will
create additional damage. And it won't shift. Sand flows
off of it the dune goes somewher'e. Even though you say it's
not significant, the sand goes back and forth so the
potential for it being exposed is there.
Mr. Smith says he would argue in the far reaches there
isn't very much sand shifting. The physical evidence of
other systems in the area having problems is not there.
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Meeting Minutes for October 10, 1991
Page 12
Attorney Philbrick says that also is why they have
proposed the revegetation plan in order to maintain the dune
shape as itis now.
Ms. Harvey says her understanding was that the proposed
septic was to be a lot further away from the dune by the edge
of the property. Her septic is right beneath the dune and
has some protection. As far as the shifting sand goes she
has lived there for 30 years and it is very different now
than it !"Ias.
Mr. SMith says'he d.')esn't' think 'she is awar-e of whel'-e
they are putting the system and points out where it is
proposed.
MOTION: To close the hearing and draft an order is
made and seconded.
UNANIMOUS
10. Newquist - 8-10 Fargo Way - SE48-667 -(14-15 & 61)
Present for the applicant is Mr. Les Smith.
Mr. Perry says there has been a small plan change.
Mr. Smith says they are moving the site further from the
wetlands. They have pulled the pump house back to achieve a
35' setback to Fargo Way.
MOTION:
To close the hearing is made and seconded.
UNANIMOUS
11. Ledgewood RT - 355 Madaket Road - SE48-670 (60-130 & 134)
Present are John Shugrue and Mr. Lawrence Pfaff,
applicant.
Mr. Pfaff says in lieu of moving the building he would
like to propose another idea~ The reason the building is in
the condition it is in is because when he bought it he fixed
up the room on the right hand side and it's very small but
very clean and functional. When he started to address the
other side of the house someone came and asked if he would
rent it, which he did for several years, and he postponed
fixing it up. Notes a lot of work that is not visible such as
beams and underpinnings was done on the right hand side of
the house and he thought expanding it a little would make it
more habitable and more of a two bedroom house. He applied
for a permit for a 2' extension on the front but found that
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Meeting Minutes for October 10, 1991
Page 13
the extreme right hand corner of the dune would impinge on
the zoning setback line by 18". A suggestion was made they
extend the kitchen on the other side of the house, using part
of the existing kitchen for a bathroom. Having been approved
twice he's asking it be approved again for the extension on
the other side where it won't be a problem.
Mr. W:llet says he understood that dune was migrating,
it's right up against your house now and the suggestion was
why do~~t you get it 50' ~way and you can pretty much do what
you ~ouldlike, as' far ~s exp~nsion.
Mr. ~faff says the dune ha~n't moved that much since'th~
previous approvals and the idea in his mind is they could fix
it up where it is now if they didn't extend it and in doing
that they would have everything they have right now except
the bathroom. So getting this extension approval would give
them the opportunity to put the bathroom in the shape it
should be. He has a lot of money into the underpinnings on
the right hand side of it and moving it would be an expense
that he doesn't feel he can handle.
Mr. Shugrue says the proposed addition is 12' x 17.5' and
it's on the side away from the ocean. They want to expand
the bathroom enough to replace a small shower with a full
tub. They want to find how much they are allowed to extend
before drawing architectural plans. Feels 6' x 17.5' will be
fairly adequate.
Mr. Perry comments it hasn't been in habitable condition
for four years as the original order was issued in 1988. The
structure is falling down.
Mr. Shugrue says the only use permitted for that building
is a dwelling and it is simply in need of repair work.
A resident of the area, Mr. John Stackpole, says he
understands the problems Mr. Pfaff, who is a retired person
who comes here seasonally, has encountered and he thinks he
should be given the opportunity to fix up the cottage. He's
not impinging on the dune area. It's a nice little cottage
and could be fixed up. Doesn't think the suggestion to
bulldoze the house is appropriate. He has put about $20,000
into the underpinnings.
Mr. Willet says he doesn't think it should be bulldozed,
just moved back. Maybe it could be moved in one piece if
it's in good shape underneath. Adds, it is a request. Asks,
if there are more questions, for a motion to close the
hearing.
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Meeting Minutes for October 10, 1991
Page 14
MOTION: To close the hearing and draft and order is
made and seconded.
UNANIMOUS
*
12.
Ducksholm Nominee Trust
30 Shawkemo Road, (27-2)
Present for trr.: appl icant. is Mr. Lester Smi th of Daylor
Consulting.
" I"ir. Smit!1's,:\ys there was 'an e~isting pier in' the vic~nity
in th;; early 190Q,'s an-j there ao::-e stiU. some piles that
remain. The proposal is to'pu~ in a fixed pier with gangway
to a 8 x 16 float to build a dock. He has sent copies of the
plan to the Town Shellfish Biologist Joe Grochowski and he
showed an alternate location plan 55' off the boardwalk which
goes out where he had 3 boats moored. The reason he selected
this is because he did -some preliminary surveys and found the
area didn't have as much the eel grass.
Mr. Perry asks if he has something in writing from a
qualified person who will say that--someone who has actually
gone in the water in ~he area-- not seen it from Boston.
Mr. Smith says yes. Says he had hoped the Shellfish
Biologist would have some information regarding that.
Mr. Perry says he doesn't think it is the position of the
Town's Biologist to be comment on an application that is
going to another Town board.
Mr. Smith says generally when a pier is proposed in the
towns they have gone to the shellfish biologist.
Mr. David Fronzuto, Marine Department, says we did do the
survey here on this site (the original location) but not over
here (the alternate location).
Mr. Smith says the total length of the pier and float is
141.5'. Points out an area which might be preferable to the
one proposed.
Mr. Fronzuto says there is a 16' growth of Eel Grass and
there are scallops present. He did not do a metric count,
however, and they probably should do that. Suggests that a
alternate area that might be more acceptable. He adds that
in its present location it is not acceptable
Mr. Smith says they are willing to look at any sites
along the shore front that might be more acceptable. The
water level 1.3 feet above sea level at low tide.
Meeting Minutes for October 10, 1991
Page 15
Mr. Wasierski suggests a seasonal float and pier similar
to the Wauwinet House that you remove the first of October
and store. There are no piles and it is all moored on
chains.
Dr. Dunwiddie asks what impact would you see that this
pier would have in that location.
Mr. Fronzuto says ,there are shell fish present, ther* is
Eel Grass to hold t,he SCcF,llJ.ops.' It.'s on a ,"', tow", when you
come a~onQ the shore; it's an ar~a that's ~ctivel~ fished.
Dr. Dunwiddie says in other words it would interrupt with
the harvesting.
Mr. Fronzuto says right, definitely. And also there are
Scallops there now in a year that we don't see too many
Scallops as well as good healthy Eel Grass, good healthy
bottom Notes, in support of his saying there was a pier
there in the early 1900's, I went out personally and those
pilings are there.
Dr. Dunwiddie asks if it were to be built as a low
floating pier a la Wauwinet House would the presence of that
floating for the summer months have a negative impact on
shellfish underneath?
Mt-. Fronzuto says he can't relate to the Wauwi net one on
that but he can say that the one that Taylor has on Hulbert
Avenue works fine and that is a very active shellfish bed.
Believes that is pipe held; it's a pretty good size float at
the end and a T-dock going out. He wouldn't think that a
floating pier there would interfere with Eel Grass.
Mr. Smith says he is trying to come up with ideas to
eliminate any impacts on the shell fishermen towing in this
area and asks if we're talking intertidal or pretty much
subtidal.
Mr. Fronzuto says subtidal.
Mr. Smith says so if he came out to low water and then
temporary the rest of the way would that be acceptable?
Mr. Fronzuto says that's a possibility but would be up to
the commission.
Mr. Wilson says from the engineefing point of view you
would have to.
.
Meeting Minutes for October 10, 1991
Page 16
Mr. Smith says the purpose of tonight was to explore the
i~suea. He would like to sit down with the Marine Department
and go over some of the issues.
Mr. Kelliher says he would like to see it moved out to
where there isn't any Eel Grass.
Mr,. Smith agrees. Also agrees on either a float or pipe
pile. Suggests perhaps having the pile bent stay and pull in
sectiC'ns.
Ms. MccoI'I says you're still driv.ing piles in a sensitive
area.
Mr. Smith asks for other input.
Mr. Willet asks if there is a minimum length.
Mr. Smith says it's pretty shallow.
Mr. Wasierski says it's not an ideal spot for a pier.
Mr. Perry says to quote from the State Act regarding land
containing shellfish. The intent of the r'egulations on
shellfish is to identify resource areas that are likely to
contain shellfish because they are important as a food source
for young fish and in addition the commercial harbor on
Nantucket. Shellfish don't have to be there; it's whether or
not it's likely to contain it sometime in the future. So we
have to determine the importance of the area and that is not
only by the density of the shellfish but the historical and
current importance. 2.08(B}(2} says land containing
shellfish shall not be compacted by vehicle traffic or other
means. Strictly reading, driving pilings into land
containing shellfish is compacting. I know the square
footage is minimal but you need to determine if you need a
waiver from that. (Notes is not one of his best points.)
The next one (B}(3> says the project shall not stop the
ability of the public to gather shellfish recreationally or
commercially so any impacts that will harm the harvesting of
shellfish is not allowed unless you get a waiver. 2.08<B)(6)
says no project detrimental to scallops shall be permitted
without a waiver. So again if you feel it will be
detrimental to a scallop bed or a future scallop bed, a
waiver is required.
Mr. Wasierski adds that just because Eel Grass is not
apparent now doesn't mean it won't come back in the future.
Mr. Perry continues, Attachment B in the Notice talks
about impacts on recreation under the local by-laws. Says
I' .
Meeting Minutes for October 10, 1991
Page 17
the proposed project is located on private property and will
not impact public recreation; he thinks it extends well into
state property--it's below the mean low water. The deed was
unclear whether your property line goes to high water or low
water. It says bordered by Nantucket Harbor.
Mr. Smith says he agrees, that certainly is a
mi sstatel,lent.
M,-. Perry says so it will have an impact on recreation
and public use of the harbor. Also ~he wetland scenic view
"iss~e is no,-I;ed on Attachment 8 saying that the ,dgsign is
traditi~nal to Nantucket wooden piers. Says the clbsesi
wooden pier in the area is a mile away either on Monomoy or
the Wauwinet House. You have an extended length of
undisturbed harbor front without a pier and in 1986 a pier
was denied to Karp on the basis of shellfish and wetland
scenic views issues. Doesn't see where this pier, which is a
good distance outside the core harbor area, will have any
less impact in the wetland scenic view issue.
Dr. Dunwiddie says that is the question that bothers him
more than anything. He has a problem with a 100'+ foot pier
sticking out into the harbor. He likes to look at a nice
open harbor with fish and boats--who wants to look at
somebody else's dock?
Mr. Perry says also in the file are two letters: one
from SHAB, the other from the Marine Department.
Mr. Fronzuto saYs he took the plans to SHAB for their
normal meeting the first of October and they reviewed it.
They talked about the shellfish issue, what had been there in
the past, if it was a fished area, and they agreed it was a
fished area and an active shellfish bed and voted unanimously
to recommend to the Commission to deny the pier as designed.
Adds the Town blOlogist and he did a site survey on the shore
and water and they also recommend to you, as drawn, to deny.
Mr. Perry says there is also a letter from the Harbor
Planning Advisory Committee.
Mr. Willet reads the letter which states at it's October
8 meeting the Committee voted to reaffirm it's backing of the
intent of Town Meeting Article 19 By-law Amendment regarding
construction of new piers passed at the 1989 Annual Meeting
which states the construction of new piers is prohibited.
The Committee is currently working on a Policy for piers and
docks.
Meeting Minutes for October 10, 1991
Page 18
Mr. Perry says he has attended a number of the meetings
and believes it is the intent that outside of the core harbor
areas that single family private piers were goiD9 tp be
prohibited. There is no public benefit to them and that
would result in a large number of long private piers sticking
out into the harbor.
Mr. Wasierski says he also sat at these meetings and he
agrees they are considering either extending the moratorium
or in some way controlling piers outside o~ the c~mmercial
,corp, distrlct., He felt one, of the biggest ,:-easons was the,
sc~~ic view part of it. He'~ sure when CZM get~' into it they
will probably concur with what the local committee has put
together.
Ms. Cheryl Creighton, Coordinator of the HPAc says they
have submitted a draft action plan to CZM and that draft is
going to need some more specific language added to it but at
this time it does identify around Monomoy the section
describing the types of shore signs and water activities,
specifically saying that any kind of intense forms of
development will change that area. It specifically says that
seasonal moorings are allowed in that area at this time but
thinks the intent was that docks and piers had been
identified as needing to be worked through.
Mr. Fronzuto says just of interest to the Board we have
also changed that seasonal mooring to add the restriction
that if a mooring is in a shellfish bed that is unoccupied
that it has to be out by the 15th of October. So we have
even tightened up the seasonal mooring restrictions.
Mr. Willet asks for a motion to continue for Mr. Smith to
come up with alternatives.
Dr. Dunwiddie says he doesn't see how he can come up with
anything other than making it invisible that would solve his
worries about the project.
Mr. Willet asks if he is making a motion.
MOTION: To close the hearing and draft and order is
made and seconded.
UNANIMOUS
Mr. Perry says we don't have a fil~ number yet.
Mr. Willet asks for a motion to continue the hearing for
a file number.
Meeting Minutes for October 10, 1991
Page' 19
MOTION: To continue the hearing for a fi~e number is
made and seconded.
UNANIMOUS
* 13. Robi Blumenstein - Squam Road - (21-120)
Present for the applicant are Attorney Arthur Reade and
Mr. John Shugrue.
Mr. Willet reads ~he fiel~inspection report.
Attorney Reads asks if there are any issues.
Mr. Willet says there was a little brush cutting, other
than that he doesn't think there's too much.
Dr. Dunwiddie says is ten bedrooms not an issue?
Mr. Wilson says and the size of the dwelling.
Mr. Shugrue says this is a large piece of property--25
acres, of which only 4 are wetland.
Attorney Reade says and it can't be subdivided because
Squam Road is not a public way. The layout of Squam Road is
generally about 30' wide--you need a 40' access road in order
to be able to subdivide.
Mr. Shugrue adds there is a deed restriction on record
against subdivision.
MOTION: To continue for a file number is made and
seconded.
UNANIMOUS
Dr. Dunwiddie asks are we going to be closing with
anything other than the building envelopes at this point or
is that all we are going to get.
Mr. Shugrue says at this time that is all you are going
to get.
Attorney Reade says in the past the specific designs were
brought before the commission prior to building permits being
issued. At this point Mr. Blumenstein has the property under
agreem~nt and wants to know when he buys it that he can have
a reasonable area for building what he wants on the property
in terms of size and scope.
r-
Meeting Minutes for October 10, 1991
Page 20
Mr. Wilson asks would the buildings be further apart than
these. You have 50' between 2, 5-bedroom houses.
Ms. McColl adds and 25 acres.
Mr. Shugrue says but they are quarter acre envelopes so
they could be anywhere on that envelope.
Attorney Reade points out that clustering the buildings
closer together means that a larger part of the property is
go i ng to, rema i n und i sturbed.
Mr. Willet asks how many buildings can they have there.
Attorney Reade says two dwellings.
* 14.
Ted Godfrey - 325 Polpis Road - <25-40)
Mr. Godfrey says he does not have the abutter
notifications.
MOTION: To continue the hearing for abutter
notification is made and seconded.
UNANIMOUS
c. REGULAR MEETING
1. REQUEST FOR DETERMINATION
a.
Chapin - ~4 N Liberty St
(41-269)
Mr. Perry says he did not do a field inspection report
but notes it was pretty wet and that the Commission viewed
the site last Monday.
Commissioners discuss and agree that it was wet and is
subject and will require a notice.
MOTION: To issue a positive determination as an area
subject to is made and seconded.
Yes 5
No 1 (Wasierski)
*
b.
Frazier - 88 & 90 Baxter Rd - (49-05, 06)
Mr. Perry says the abutter notifications were sent out
yesterday.
Meeting Minutes for October 10,' 1991
Page 21
MOTION: To continue at the applicant's request is
made and seconded.
UNANIMOUS
*
c.
Borchert - 153 Hummock Pond Road - (57-9)
Dr. Dunwiddie'abstains from the discussion and the vote.
Present for the appli~ant is Mr. Carl Borchert and Dr.
Pete~ Dunwidd~e.
Mr. Willet reads the field inspection report.
Mr. Perry suggests limiting the width of the brush
cutting by Mrs. Gardener's cottage.
Dr. Dunwiddie states that he would request a 30 foot
viewing ar.ea along the pond.
MOTION: To issue a SUbject to but will not alter is
made and seconded.
Yes
No
4
- 1
(Wasierski)
Mr. Wasierski says if you do it for one you should do it
for all.
Mr. Perry says that this is different because there is
some public benefit as this is public sanctuary.
*
d.
Borchert - 14 Burnt Swamp Lane - (56-2)
Mr. Willet reads the field inspection report which notes
this has been used for agricultural purposes for a number of
years and since there is no expansion suggests the project is
not subject.
mow.
Mr. Borchert asks for a suggestion on the .~e?.J; time to
Mr. Perry says mid to late August.
MOTION: To issue a negative determination as not
subject is made and seconded.
UNANIMOUS
*
e.
Crothers - Quaise Pastures - (26-19)
I
Meeting Minutes for October 10, 1991
Page 22
Present for the applicant is Attorney Melissa Philbrick.
Mr. Willet reads the field inspection report.
Mr. Perry says he moved the flags as Mr. Haines' flags
didn't include the tupelo grove and he split the difference.
Attorney Philbrick says Mr. Haines feels his flagging is
correct but he understands what the Commission's common
practice of flagging is.
MOTION: To is'Sue a negativp c:f.E!termination as in
buffer zone but will not alter i. mad~and seconded.
UNANIMOUS
*
f. Weinman - 221 Madaket Road - (59-42)
Mr. Willet reads the field inspection report.
MOTION: ' To issue a negative dstermination as subject
to but will not alter is made and seconded.
UNANIMOUS
2. ORDER OF CONDITIONS
a. Hoffman - 16 Tautemo Way - SE48-665 - <83-14)
Mr. Perry says Mr. Wills had no objections to the drafted
order.
MOTION: To issue the order as drafted is made and
seconded.
UNANIMOUS
ADDITIONAL SPECIAL CONDITIONS
Anne Hoffman
DEP FILE NUMBER SEltS - 665
ASSESSOR'S I'1AP 93, PARCEL 14
16 Tauteftao~Way
UNDER THE MASSACHUSETTS WETLANDS PROTECTION ACT
( MGL CHAPTER 131, SECTION 40 )
AND THE WETLANDS BYLAW OF THE TOWN OF NANTUCKET
( CHAPTER 136 )
3. Pursuant to General Condition Number 8, this Order of
Conditions must be registered in the Registry of Deeds for
Nantucket and proof of recording shall be submitted to the
Meeting Minutes for October 10, 1991 Page 23
Commission, prior to commencement of any work approved in
this Order.
4. No work approved under this Order shall take place until all
administrative appeal periods from the Order have elapsed,
or, if an appeal has been filed, until all proceedings have
been completed.
5. Prior to any activity at the site, a floating boom shall be
installed to control any floating debris during construction.
No work shall beg in on the si te for 4ahour:s aftet" sa,id
notice is given" so as to ...110w Commission members' timE" to
inspect all siltation devices. The boom shall remain in good
repair during all phases of construction, and it shall not be
removed until all soils are stabilized and revegetated or
until permission to remove it is given by the Commission.
6. An as-built plan, signed and stamped by a registered
professional engineer or land surveyor in the Commonwealth of
Massachusetts, shall be submitted to the Commission at the
same time as a written request for a Certificate of
Compliance and shall specify how, if at all, the completed
plan differs from the final approved plan. The as-built plan
shall include, but not be limited to, the following: limits
of fill or alteration; the edge of the wetland; the grade
contours within 100 feet of the wetland.
7. Members, employees, and agents of the Commission shall have
the right to enter and inspect' the premises to evaluate
compliance with the conditions and performance standards
stated in this Order, the Nantucket Wetlands Bylaw, the
Regulations promulgated under the Bylaw, the Massachusetts
Wetlands Protection Act, and pertinent Massachusetts
regulations (310 CMR 10.00 through 10.99). The Commission
may require the submittal of any data deemed necessary by the
Commission for that evaluation.
8. The applicant, owners, successors or assignees shall be
responsible for maintaining anyon-site dra,inage structures
and outfalls, assuring the lasting integrity of vegetative
cover on the site and monitoring site activities so as to
prevent erosion, siltation, sedimentation, chemical
contamination or other detrimental impact to a~y on-site or
off-site resource area. It shall be the respon?ibnity of
the property owner of record to see that the maintenance
conditions are complied with as required by this order.
9. This document shall be included in all construction contracts
and subcontracts dealing with the work proposed and shall
supersede other contract requirements.
Meeting Minutes for October 10, 1991
Page 24
10. Used petroleum products from the maintenance of construction
equipment, construction debris, and unused paint and paint-
related products,sh~11 be collected and disposed of
responsibly off the site. No on-site disposal of these items
is allowed.
11. Dust control, if required, shall be limited to water. No
salts or other wetting agents :..:.hall be used.
12. Any refuse QateriDl found on the site shall be disposed of at
an appro~ed,landfill and in no case may tnes. materials be
buried or d;sposp~ of in or near a w~tl~nd. .
13. This Order of Conditions shall apply to any successor in
interest or successor in control of the property.
14. Natural vegetation between the wetland edge and the project
site shall be left intact except where it is necessary to
temporarily use this area. After construction, any di~turbed
area within this buffer area shall be replanted with nAtive
plants.
15. To minimize adverse effects on wildlife, the use of any
pesticide rir fertilizer ~ore than 15 feet from th~ hou$~ is
prohibited.
16. The use of timber pressure treated with CCA (cromated copper
arsenate) or its equivalent is permitted. Creosote treated
timbers are p~ohibited. Thecommtssion suggests the use of
non~wooden alternative materials to be used in the wetland.
The wood preservative must be dry before the treated wood is
used in construction.
17. To reduce the impact on wetland scenic views, the platform is
to be constructed so that it is adjustable. The applicant
agrees to maintain the pier elevation so that the bottom of
the platform remains approximately twelve (12) inches above
the water of level of the pond.
###
b. Mink - 83 Squam Road - SE48-668 -(13-5)
Present for the applicant is Mr. Jeff Blackwell.
Mr. Blackwell asks if relative to the 25' undisturbed
buffer in #15 it could be changed to read after the comma,
"except in a,-eas of existing lawn and driveway."
Commissioners agree to the change.
I
Meeting Minutes for October 10, 1991
Page 25
MOTION: To accept the order as amended i? made and
seconded.
UNANIMOUS
ADDITIONAL SPECIAL CONDITIONS
Estate of ,305eph A. Mink
DEP FILE NUMBER SE48 - 668
ASSESSOR'S MAP 13, PARCEL 05
83 Squa... Road
U~ER THE MASS~CHU5ETrS' WETLANDS PROT~r.TION ACT
( MGLCHAPTER '.31, .$ECTION 40 ) ,.
AND THE WETLANDS BYLAW OF THE TOWN OF NANTUCKET
( CHAPTER 136 )
3. Pu~suaht to General Condition Number 8, this Order of
ConqitJons must be registered in the Registry of Deeds for
Nan'uC~et and proof of recording shall be submitted to the
Go~~is~ion, prior to commencement of any work approved in
this Order.
4. No work approved under this Order shall take place until all
aelflli,nistrat ive appeal per iods from the Order have elapsed,
or, if an appeal has been filed, until all proceeding~ have
been completed.
5. Prior to any activity at the site, a siltation fence shall be
staked along the line as shown on the approved plans, or at a
higher elevation. On the line between the coastal bank and
the house, a line of snow fence shall be used. After the
siltation fence and snow fence are installed, notice shall be
given to the Nantucket Conservation Commission. No work
shall begin on the site for 48 hours after said notice is
g.iven, 50 as to allow, eo......ission members time to inspect all
s1 1 tat ion devices. The,!:;i I tat ion fence, erected to prevent
siltation of the wetland during construction, and the snow
fence, erected to control windblown debris, will also serve
as a limit of activity for work crews. They shall remain in
good repair during all phases of construction, and they shall
not be removed until all soils are stabilized and revegetated
or until permission to remove it is given by the Commission.
6. An as-built plan, signed and stamped by a registered
professional engineer or land surveyor in the Commonwealth of
M.s$a~husetts, shall be sybmitted to the Commission at the
same time as a written req.\jest for a Certificate of
Compliance and shall specify how, if at all, the completed
plan differs from the final approved plan. The as-built plan
shall include, but not be limited to, the following: any
pipe/culvert inverts for inflow and outfalls; pipe slope,
Meeting Minutes for October 10, 1991
Page 26
size and composition; location of other drainage structures
and their composition; limits of fill or alteration; location
of all structures and pavement within 100 feet of wetland;
the edge of the wetland; the grade contours within 100 feet
of the wetland.
7. Members, employees, and agents of the Commission shall have
the right to enter and inspect the premises to evaluate
compliance with the conditions and performance standards
stated in this Order, the Nantucket Wetlands Bylaw, the
Regulations promulgated under the Bylaw, the Ma?s,achu,setts
Wetlands Protection Act, ann pertinent Massachusetts
regulations (310 CMR 10.00 through-l0.~9). The Commission
may require the submittal of any data deemed necessary by the
Commission for that evaluation.
8. The applicant, owners, successors or assignees shall be
responsible for maintaining anyon-site drainage structures
and outfalls, assuring the lasting integrity of vegetative
cover on the site and monitoring site activities so as to
prevent erosion, siltation, sedimentation, chemical
contamination or other detrimental impact to anyon-site or
off-site resource area. It shall be the responsibility of
the property owner of record to see that the maintenance
conditions are complied with as required by this order.
.
9. This document shall be included in all construction contracts
and subcontracts dealing with the work proposed and shall
supersede other contract requirements.
10. Used petroleum produc~s from the maintenance of construction
equipment, construc~ioh debris, and unused paint and' paint-
related products shall be collected and disposed of
responsibly off the site. No on-site disposal of these items
is allowed.
11. Dust control, if required, shall be limited to water. No
salts or other wetting agents shall be used.
12. Any refuse material found on the site shall be disposed of at
an approved landfill and in no case may these materials be
buried or disposed of in or near a wetland.
13. This Order of Conditions shall apply to any successor in
interest or successor in control of the property.
14. In all cases, no part of any structure approved in the Order,
including decks, cantilevers, stairs, overhangs, etc. may be
closer than 50 feet from the top of the bank.
I
Meeting Minutes for October 10, 1991
Page 27
15. Natural vegetation between the wetland edge and the project
site shall be left intact except where it is necessary to
temporarily use this area. After construction, any disturbed
area within this buffer area shall be replanted with native
plants. With the exception of areas of existing lawn and
driveway, here must be at least a 25-foot undisturbed buffer
zone on the upland side of the wetland boundary.
16. To minimize adverse effects on wildlife, the use of any
pesticide or fertilizer more than 15 feet from the house is
prch ibi ted.
17. The existing house is purported to be three bedrooms. It
shall be limited to thnee bedrooms in the future. This
condition shall be on-going and not expire with the issuance
of a Certificate of Compliance.
18. The applicant or future owner(s) of the property shall submit
to the Commission for its approval the proposed footprint of
the addition to the existing building. These plans shall
show, but not be limited to, the distances from the coastal
bank and wetland and the number of bedrooms existing and
proposed.
19. The septic line running from the tank to the leach facility,
is to be pressure \ested for ~ater tight integrity prior to
its use. Written certification to this effect shall be
submitted to the Commission prior to the issuance of a
Certificate of Compliance.
WAIVERS UNDER THE NANTUCKET WETLANDS BYLAW:
The Nantucket Conservation Commission hereby grants the applicant
the following waivers:
1. One waiver from Section 3.02 (8)(4) which requires at
least a 100 foot separation between a septic leach
facility and a vegetated wetland. This waiver would be
for the construction of the replacement septic system
leach facility approximately sixty-seven (67) feet from a
vegetated wetland.
The Commission notes that the house is an lawfully existing
structure and due to the constraints the wetlands place on the
property, there has been a clear and convincing showing by the
ap~licant that there are no reasonable conditions ~r alternatives
that would ~llow the project to proceed in compliance with the
regulations. The proposed septic system replacement will, as
conditioned above, have no adverse effect upon any of the
interests protected by the Bylaw and will result in an
Meeting Minutes for October 10, 1991
Page 28
improvement over the existing. To deny the waiver request would
restrict the use of the pr-bperty so as to potentially constitute
a taking withou~ compensation. Therefore, these~aiyer~ are
granted under the authority of Sections 1.03(F)(1) 'and
1.03(F)(2)(s), (b> and (c) of the Wetlands Protection
Regulat ions.
###
c. Newquist - 8-10 Fargo Way - SE48-667 -(14-15 & 61)
Present for the app I i c~nt' is At torne>y A..-thur 'Reade and
Mr. Lester Smith.
Mr. Perry says he has drafted the order and made only 1
change. #18 changed to not allow backwash of the pool
filt~ring system into the ground or leaching system without
prior approval of the commission. This because they
specifically said it was not necessary to do.
Attorney Reade says they are perfectly happy with the
order.
MOTION: To issue the order as drafted is made and
seconded.
UNANIMOUS
ADDITIONAL SPECIAL CONDITIONS
Scott and Ailee" NeWqui~t
DEP FILE NUMBER SE4B -667
ASSESSOR'S MAP 14, PARCEL 15 &: 61
B - 10 Fargo Way
UNDER THE MASSACHUSETTS WETLANDS PROTECTION ACT
( MGL CHAPTER 131, SECTION 40 )
AND THE WETLANDS BYLAW OF THE TOWN OF NANTUCKET
( CHAPTER 136 )
3. Pursuant to General Condition Number 8, this Order of
Conditions must be regis'tered in the Registry of Deeds for
Nantucket and proof of recording shall be submitted to the
Commission, prior to commencement of any work approved in
this Order.
4. No work approved under this Order shall take place until all
administrative appeal periods ftom the Order have elapsed,
or, if an appeal has been filed, until all proceedings have
been completed.
I
Meeting Minutes for October 10, 1991
Page 29
5. Prior to any activity at the site, a siltation fence shall be
staked as shown on the final approved plans, orat;a. higher
elevation. After the fence or haybales are installed, notice
shall be given to the Nantucket Conservation Commission. No
work shall begin on the site for 48 hours after said notice
is given, so as to allow Commission members time to inspect
all siltation devices. The siltation fence or haybale line,
erected to prevent siltation of the wetland during
construction, will also serve as a limit of activity for work
crews. It ~hall rem~in in good r'epair during all phases of
construction, and it sh,all, not be, removec;f',unti,1 all soils,arco,'
stabil ized and revegetated or 'unti 1 permission to remove it'
is given by the Commission. '
6. An as-built plan, signed and stamped by a registered
professional engineer or land surveyor in the Commonwealth of
Massachusetts, shall be submitted to the Commission at the
same time as a written request for a Certificate of
Compliance and shall specify how, if at all, the completed
plan differs from the final approved plan. The as-built plan
shall include, but not be limited to, the following: any
pipe/culvert inverts for inflow and outfalls; pipe slope,
size and composition; location of other drainage structures
and their composition; limits of fill or alteration; location
of all structures and pavement within 100 feet of wetland;
the edge of the wetland; the grade contours within 100 feet
of the wetland.
7. Members, employees, and agents of the Commission shall have
the right to enter and in$pecttt)e prremises to evaluate
compl iance wi th the conclitiof)s cllndperformance standards
stated in this Order, the Nantucket Wetlands Bylaw, the
Regulations promulgated under the Bylaw, the Massachusetts
Wetlands Protection Act, and pertinent Massachusetts
regulations (310 CMR 10.00 through 10~99). The Commission
may require the submittal of any data deemed necessary by the
Commission for that evaluation.
8. The applicant, owners, successors or assignees shall be
responsible for maintaining any on~site drainage structures
and outfalls, assuring the lasting integrity of vegetative
cover on the site and monitoring site activities so as to
prevent erosion, siltation, sedimentation, chemical
contamination or other detrimental impact to anyon-site or
off-site resource area. It shall be the responsibility of
the property owner of record to see that the maintenance
conditions are complied with as required by this order.
9. This document shall be included in all construction contracts
and subcontracts dealing with the work proposed and shall
supersede other contract requirements.
Meeting Minutes for October 10, 1991
Page 30
10. Used pet~~l~um products ftom the maintenance of construction
equipme'nt, construction debris, an(j unused paint and paint-
related products shall be collected anddispo$ed of
responsibly off the site. No on-site disposal of these items
is allowed.
11. Dust control, if required, shall be limited to water. No
salts or other wetting agents shall be used.
12. t;\ny refuse mc;lteria.l found on the, s,ite ,shall be disposed o'f at
, ,
an approved. }andfi 11 and in no case /!'lay these' mat~rials 'be
buried or disposed 6f i~ or near a wetiand.
13. This Order of Conditions shall apply to any successor in
interest or successor ln control of the property.
14. In all cases, no part of any structure, including decks, may
be closer than 50 feet to the wetlands.
15. Natural vegetation between the wetland edge and the project
site shall be left intact except where it is necessary to
temporarily use this area. After construction, any disturbed
area. within this buffer area shall be replanted with native
plants. There must be a 25-foot undisturbed buffer zone on
the upland side of the wetland boundary.
16. To minimize adverse effects on wildlife, the use of any
pesticide or fertilizer more than 15 feet from the pump house
is prohibited.
17. The use of timber pressure treated with CCA (cromated copper
arsenate> or its equivalent is permitted. Creosote treated
timbers are prohibited. The Commission suggests the use of
non-wooden alternative materials be used ih the wetlands.
The wood preservative must be dry before the treated wood is
used in construction.
18. As described in the Notice of Intent "ATTACHMENT A", the pool
is not to be backwash flushed onto the ground surface nor
into an in-ground leaching system without prior approval of
the Conservation Commission.
###
3. CERTIFICATE OF COMPLIANCE
a.
Sherman - Squam Road
SE48-335 (21-120>
Mr. Perry says there has been brushcutting on the
property. There are two ways we can handle this: The
Meeting Minutes for October 10, 1991
Page 31
property is about to be sold and the commission had wanted
Mr. Sherman to file a determination for the brushcutting.
Once we .issue the ,certificate there's not .much we can do to
get the determin~tion so suggests continue for two weeks with
tha hope he will file a determination within that time. Or
we could sign the certificate tonight.
Mr. Willet asks what the response was.
Mr. Perry says he sent the determination forms but he
returned them to Mr: Glidden signed but blank.
Mr. Kell iher asks what is having him f~i Ie going to prove.
It was after the fact; is not going to solve anything.
Thinks we are just creating extra paper work unless we are
going to punish the guy for what he did.
MOTION: To issue the certificate is made and
seconded.
YES: 2
NO: 2
Mr. Perry says we have 21 days to act so we don't have to
decide this week.
MOTION: To not act for two weeks is made and
seconded.
UNANIMOUS
b. Perkins - 31 Almanack Pond Road - SE48-358 - (46-2>
Mr. Perry says this is an 1986 file to construct a wild
life pond. It's shallow and small and everything is
revegetated around it.
MOTION: To issue the certificate is made and
seconded.
UNANIMOUS
c.
Woodbury - SE48-312
(41-543)
Present for the applicant 15 Ms. Rene Ceely.
Mr. Perry says Ms. Ceely has written a letter concerning
where "the problem" comes from.
Mr. Willet asks Ms. Ceely to summarize.
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Meeting Minutes for Oc~6ber 10, 1991
Page 32
Ms. ceely says she thinks it is best if you read it.
Commissioners read the lette~.
Ms.Ceeley says there is only. one additional item that
needs to be included on the certificate which is grading work
on lots 4 and 6. '1 t has all been; seeded and the grass has
been there over a year.
MOTION: To issue t~e cert~ficate is made and
.seco!",d.ed.
UNAN I MOU'S
d. Godfrey - 325 Polpis Road - SE48-415 - (25~40)
Mr. Perry says this is a request for a certificate of
compliance on his house and he has some problems with it ~s
there are a ,couple of things that are bigger than approved
and are closer to the wetland. We have an as-built plan
which shows the deck as closer to the wetland and also the
retaining wall. Does not think that is substantially in
compliance. Notes there should have been wetland flagging
further up as well but back when this was filed in 1987 they
just called this a water hole.
Mr. Willet says since there are no wetland boundaries
shown and none established there how can we determine them.
If it is 60' at this point and we just work off of that.
Commissioners measure the plan and note in comparing the
as built to the plan that the house is turned. The house is
30' closer to the wetland.
Mr. Perry says he just superimposed the building
envelopes on top of each other.
Mr. Willet suggests holding off until they can talk to
Mr. Godfrey.
4. EXTENSION
a. Linburg - 31 Codfish Park - SE48-514 - <73.1.3-11)
Present for the app 1 icant is MI-. John Shugrue.
Mr. Perry says this one has been around since August for
a number of reasons. We did the field inspection about a
month ago and the commission was unclear which way it was
going to go. It is the first extension request. There
hasn't been much change in the beach.
Meeting Minutes for October-' '10, 1991
Page 33
Ms. McColl says he's asking for the extension because of
the litigation in Codfish Park?
Mr. Shugrue says yes, though he isn't involved in it.
J'
MOTION: To grant a one-year extension is made and
seconded.
UNANIMOUS
b.
To'o ie
16"Fulling Mill Road
SE48-523
} 27-2~ .,2)
Mr. Perry says the project hasn't started yet. Says the
paperwork ~entions a possible spring which came. to the
commission's attention after the order was issued but it
seems like the spring is more than 100' away from the project
site.
Mr. Wasierski says he thinks the wetland boundary was
well defined.
MOTION: To grant a one-year extensjon is made and
seconded.
UNANIMOUS
5. OTHER BUSINESS
a. Anapol - discussion
Present for the applicant is Mr. Andrew Leddy.
are also abutters.
Present
Mr. Willet asks Mr. Leddy if the applicant didn't like
our suggestion of the parking area and footpath.
Mr. Leddy says no he didn't. As a preliminary matter he
would like to know if the secretary is capable of doing
verbatim shorthand on this.
The secretary responds we have a tape recorder.
Mr. Leddy says he would like to draw the commission's
attention that a sign has been erected blocking access to his
client~s property, purporting to be under your authority and
he is informed by Mr. Perry there is nocsuch author i ty. He
sugge$ts the commission refer this to the police for
investigation.
r
Meeting Minutes for October 10, 1991
Page 34
Mr. Erichsen, an abutter, says after the hurricane he
found three signs that said no beach access near Madaket
Beach. They are about aXI0", were sort of washed out.
Because two weeks~go twd jeeps got stuck~etween Ms.
WeLlman's house -and his trying to turn around, he stuck a 4X4
in and put up the signs.
Mr. Willet says you mean at Anapol's driveway?
Mr. Erichsen says no--right at the end of the street. He
~tuck a 4X4 in and b~cause he picks up garbage on th~ bea~h
and these signs 'were just lying, t.here'and he took the lib.erty
because he was so annoyed because two jeeps got stuck in a
primary dune and people were going up that road and turning
around; if you want to pull it out, pull it out. It's saving
your dune.
Mr. Willet asks if it is blocking his access.
Mr. Leddy says it is in the middle of his client's
driveway.
Mr. Wasierski says is that on your client's property?
Mr. Leddy says there is no accurate survey of that area.
All the accurate survey stops at the bridge, so he is told by
the surveyors. It is presumed to be the beginning of his
property because the vegetated dune ends there. This is what
I am told will be about a $40,000 survey to correct all the
property lines out on Smith's Point. But presumably, just
going by the way the land is laid out, it clearly blocks
anything going into the Anapol's house.
Mr. Willet says we had nothing to do with it.
Mr. Leddy presents a letter for the file which he reads.
Mr. Willet responds with a history of attempts to contact
the Anapo I ' s.
Mr. Erichsen presents a letter for the file which he
reads.
Mr. Watts, Fire Chief, says he was asked by Mr. Anapol to
speak with regard to fire protection and ambulance service.
The history of the road is the town always 'plowed it.
Chester Fonts paid to have it plowed for years. It has got
to a deplorable condition. The people at the end of the road
have absolutely no protection. It's impossible to get a fire
truck or an ambulance to the houses at the end of the road.
It is on record with the Board of Selectmen from the Fire
I
Meeting Minutes for October 10, 1991
Page 35
Department that all of the roads out there have got to be
plowed and maintained. He did not know this had come up to
this point of ruining this dune that has been there for over
10 years. He hasn't seen any dune there for over 10 years.
That road used to be cpen all the way to the water years ago.
All of a sudden now it's just like everything else. The
right of ways are going and going, people keep claiming it.
~~u're damn3d if you do and damned if you don't. If I can't
get an ambulance or fire truck there they say it's the
Chief's fault. He should have told you to open the roads up.
So I'~ telllng you these roads should be opened and
,.maint;a:ned.
Mr. Wasierski says these aren't roads; these are paper
streets.
Mr. Watts says Bud Clute plowed these roads for years for
the town.
Mr. Perry says in 1976 there is a picture here of a dune
around the house and the parking area that resulted in an
enforcement order from the commission. So they haven't had
access to the house by vehicle since before 1976.
Mr. Watts says he is not talking about access to the
house, he's talking about that road that was always open and
left open.
Mr. Leddy says if I may correct you they have had access.
It was courtesy of a neighbor which has now been shut off.
They have no access at this point.
Mr. Willet says I think the approach the commission is
trying to work along the lines of a parking area and a
footpath.
Mr. Leddy says he has no authorization to discuss that.
Mr. Willet says but you did state to Mr. Perry that your
client said those conditions were unacceptable and would
litigate under those circumstances.
Mr. Leddy says that is correct.
Mr. Wille~ says that the only thing that will satisfy you
is a full blown driveway right in there.
Mr. Leddy says that is correct. Adds perhaps not
essentially a full blown driveway but in essence they want
vehicular access for safety purposes, medical purposes, old
people, little kids, cripple people, you name it. Apart from
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.
Meeting Minutes for October 10, 1991
Page 36
the fact they feel they h.ave ,art absolute right that has been
recognized by this commi9sion..fornearly 10 years.
Mr. Willet says but it did lapse, there's no doubt about
that. Asks how the commlssloners feel about the origine,l
proposal.
Ms. McColl says she feels they have given the Anapol's
every chance. This has been :going on since July and this is
October. Doesn't think we should continue it any lo"ger.
Dr.~ Dunwiddie says
could1"l't show up here.
can't appear.
he! would 'like to know why Mr..'. Anapol'
Helll'wayshas some' reason why he
Ms. Rhoda Weinman says she is the closest abutter to the
Anapol's. Asks what the Commission's original proposal was;
what did you find acceptable.
Mr. Willet says way, way back?
Ms. Weinman says in the discussions first.
Mr. Willet says we were discussing a small parking area
and then a footpath.
Ms. McColl says nothing concrete, just what used to be
there on Rhode Island, with the footpath to your house and
the footpath to Anapol's.
Mr. Leddy says he would like to put in the record another
point of view. Last May you never questioned the Anapol's
right to have a driveway. The only technicality was when the
renovation work was completed in the early 1980's, as most
people at that time, they didn't obtain a certificate of
compliance. You granted that with the continuation of
certain conditions in the original order. One of the things
you asked us to submit was a revegetation plan. Apparently
my clients didn't recognize the urgency of it in your mind.
At any rate when they did realize that they engaged Mr.
Champoux. He came up with a detailed plan. By then you had
apparently decided to shut off the driveway.
Mr. Willet says he came up with a detailed plan but it
was not going to do anything for the dune. It was not going
to correct the situation to stop the sand from blowing.
Mr. Leddy says Mr. Champoux thought it would.
Meeting Minutes for October 10, 1991
Page 37
Mr. Willet says that's not what he said last time. He
said it won't do it and was going to hav-e to go back and take
a look at it.
Mr. Leddy says he didn't guarantee it. The dynamics of
sand dunes can't be modeled by a computer. They are much
like the weather system. There are so many millions of
interacting factors that in effect you can go upon your vast
experience of this island and do your best and then modify
your efforts if they don't work. It was like the discussion
we had last year about the Gillies p~opErty in Wauwinet ~hEr~
a't .vas~ expense to everybody we tfilked for three months arid
went around in circles until in the end this commission '
accepted. The Gillies had devoted two years to building the
dune, were interested in protecting it and on expert advice
had come up with the best plan that they could and indicated
their willingness to modify if that plan didn't work to make
the appropriate adjustments to make it work. He is sure his
client would be willing to do the same thing. But it's a
totally different question where you are essentially talking
about cutting off access to their house.
Mr. Wasierski says he doesn't see that. Here's an
engineered plan of 1981 showing the top of a dune through
Rhode Island Avenue, showing Pennsylvania Avenue closed by
wind blown sand, drawn for the Anapol's by Michael Bachman.
Mr. Leddy says in point of fact that closure by sand was
deliberately created because I used to fish at Smith's Point
and that was my access road. It was blocked off by snow
fencing and put up by the neighbors and deliberately blocked
off.
Mr. George Pappageorge says the road filled in naturally,
is being blown in from the easterly direction. It will
continue if you open up the driveway. You will be
perpetuating the destruction of a dune. He opposes an open
driveway.
Mr. Perry presents an overview. Says there is a
difference in perception in what was allowed in 1981 and 82.
There are letters which talk about dune sand blowing up
against their front doorS and how we are going to control
this problem. Are we going to have to dig out every year.
To take that and take it a step further to allow a driveway
to get to the house. I don't think that was allowed in 1981.
When they talk about access they already had a dune around
the house, the house was. sitting on top of it. They wanted
to raise it up 6' so they could see over the dune in front of
them that was between them and the ocean. And the '76
picture shows they already had a dune around the house and
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.
Meeting Minutes for October 10, 1991
Page 38
they had to dig it out to park the car. That's when
into the first enforcement order. I don't think the
_~ommission really anticipated vehicle access all the
to the door whe~ they issued the order and when they
them to remove wind blown sand against the house.
they ran
way out
allowed
Mr. Leddy says we should clearly recognize the right to
access rigi.t to the front door this spring. There was no
question by this commission.
Mr. Wasierski says in the original condition~ of June,
1982, #4". the hO\Jse' was. to be r:.a i sed to a leve 1 to perm it tDe.
sand dunes to migraie ~nder the house. '
Mr. Leddy says that is modified 2 pages later.
Mr. Wasierski says then it talks about the egress to the
property.
Mr. Leddy says in the original order of conditions he
would refer you to point 10, paragraph 11. As an alternate
to conditions 4 and 5 in article 11, a second story addition
to the dwelling shall be allowed but with no change in ground
cover. And that is what my clients did.
Mr. Wasierski says but it's not on pilings.
Mr. Leddy says there was a choice. They could put it on
pilings and expand the one floor area of the house or they
could leave it on the foundation and go to a second story.
And they went to a second story.
Mr. Willet says but the driveway is the question. He
thinks we have two choices. We can either issue an
enforcement order tonight or we can hold off and try and deal
with Mr. Anapolif in fact he will show up at the next
meeting.
Mr. Leddy says Mr. Anapol arrived back in the country
late last night and is in New York and he assured me he would
be here two weeks from now.
Mr. Willet says but I don't see any point if he won't
consider anything but a full blown driveway. We might as
well just get on with it now.
Mr. Leddy says part of it is we are hearing very
conflicting versions of the history of this area.
.
Mr. Willet says whatever the history is we have a bad
situation right now that has to be corrected. The sand is
4
Meeting 'Minutes for October 10, 1991
Page 39
blowing allover the place the dune is has been fairly well
destroyed. Something has to be done.
Mr. Perry says all the sand that was around the house in
June is now gone. It~s back down to the fqotings ag.in. The
sand went somewhere.
Mr. Leddy says some ten daY3 ago the sand had not blo~n
away from the house anywhere near the condition it was in
last spring.
Mr. Erichsen ~,3YS this sPGing thLre'was no problem. He
now has 12" of sand blocking half of his driveway. He begs
to differ. That sand is moving eastward.
Mr. Wilson makes a motion to continue for another two
weeks and another site visit.
MOTION: To continue the hearing is made and
seconded.
UNANIMOUS
Chief Watts says his main concern is the. road access for
fire trucks and ambulance.
Mr. Leddy adds he would like Mr. Champoux to be at the
site inspection.
Dr. Dunwiddie says he would like it noted for the record
that it is not particularly appropriate or conducive for
trying to reconcile a situation like this by threatening to
sue us personally; we've been trying to deal with this
problem since late June or July. We are forced with a
situation where we have been talking to an empty audience as
the applicant just won't show up. Finally when we get
representation we're threatened to be sued personally. What
are we supposed to do in a situation like that. As a
reasonable person how would you respond.
Mr. Leddy says it is not a threat; it is a statement that
from his client's point of view we consider your actions so
outrageously illegal and outside the scope of your authority
and it's just saying please, let's think clearly about this.
We don't want trouble.
Dr. Dunwiddie says I have a difficult time thinking
clearly when I've just been threatened to be sued personally.
Mr. Leddy says then perhaps you should not be on a public
board.
.
It-
, .
Meeting Minutes for October 10, 1991
Page 40
Mr. Wilson says perhaps you should be on a public board.
Mr. Kelliher comments that if he is sued by Mr. Anapol,
then he may sue back for the harrassing phone call that he
recently received from Him.
b. Killen - 68 W Chester
SE48-596 - (41-370)
Mr. Killen says between the edge of the building ~nvelope
and the edge of the wetland is S~mboq ~hich'he ~ould like to
cut. It u,sed to be brambles and he.'thought usuaJ.lythe
Knotweed goes into'remission. '
Mr. Willet suggests we go out and look at the site at
field inspection and that they flag where they want to cut.
Mr. Wasierski asks what the wetland is.
Mr. Killen says it's a swamp.
c. Dujardin - Monomoy - SE48-465 - (43-111) - minor mod
Present for the applicant is Mr. Sam Hill who is the
builder. Mr. Hill says he has started the foundation and he
made an error which makes the first floor finish height 4"
higher than allowed. There is no ridge height identified in
the Order. Would like a minor mod for 4".
Commissioners agree to allow the minor modification.
d. Land Court Petition - Monahan - discussion
Mr. Perry says this is to register land and we have
received a letter asking if we have any interest in the land.
It is between the airport property and the ocean, east of the
runway.
Commissioners discuss, review the plan and agree it has
nothing to do with the commission.
e. Reade - Polpis Road - SE48-658 - Water Quality Cert.
Mr. Perry says this is .a generic water quality
certification and is requi~ed by the state when a wetland
less than 1000 sq. ft. is filled to do a wetland crossing.
The amount of wetland filled in this notice was 300 sq. ft.
but it is also being replicated on the site.
Commissioners agree to sign the certification.
Meeting Minutes for October 10, 1991
6. CORRESPONDENCE
7. MINUTES: for September 26, 1991
MOTION: To accept the minutes as drafted for
September 26, 199, is,m,aqe.and seconded.
UNANIMOUS
8. BILLS TO BE PAID
9. FIELD INSPECTIONS: Monday~ Octcber21, 1991, 4:00
MOTION: To adjourn at 10:10 p.m. is made and
seconded.
UNANIMOUS
.. ,
Page 41