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HomeMy WebLinkAbout1991-10-10 I ;v'" ;j~;;;':",,' . 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. .' 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. ~(tf. 11-(q-q(~ /8~ ~ ~. . 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.~) . . .. . . , 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. .. " I 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. I 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. .,. 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. I 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 r 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. I 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. r 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 r . 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 r . 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