HomeMy WebLinkAbout2015-4-1Minutes for April 1 2015 adopted Apr. 15
CONSERVATION COMMISSION
CONSERVATION COMMISSION
2 Bathing Beach Road
Nantucket, Massachusetts 02554
- ww-w-.nantucket -ma gov
Wednesday, April 1, 2015 4:00 P.M.
4 Fairgrounds Road, Training Room
Commissioners: Ernie Steinauer (Chair), Sarah Oktay (Vice - chair), Andrew Bennett,
Michael Glowacki, Ashley Erisman, David LaFleur, Ben Champoux
Called to order at 4:01 p.m.
Staff in attendance: Jeff Carlson, Natural Resources Coordinator
Attending Members: Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Absent Members: None
Late Arrivals: LaFleur 4:07 p.m.
Earlier Departure: None
Agenda adopted by unanimous consent
I. PUBLIC MEETING
A. Public Comment — None
II. PUBLIC HEARING
A. Notice of Intent
1. SBPF — Baxter Road Area (Multiple) SE48 -2581 (Revetment project) (Cont 04/15/15)
2. Squam Partners LLC — 89 Squam Rd (13 -3) SE48 -2719 (Cont 04/15/15)
3. Duke 57, LLC — 55 Duke Rd Lot 16 (56- 185.1) SE48 -2730 (Cont 04/15/15)
4. APG/ DRS Realty Trust — 80 & 84 Wauwinet Rd (11 -89.2, 28) SE48 -2749 (Cont 04/15/15)
5. Nantucket Land Bank & Nantucket Conservation Foundation — Polpis Road (46 -7,8,9 & 10) SE48 -2762
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur
Recused None
Documentation Supporting documents and plans.
Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Reviewed additional information that has been
provided upon request of the board. There will be some temporary disturbance to inland banks for the
culvert improvements.
Public None
Discussion (4:02)
Staff Have everything needed to close.
Motion to Close. (made by: Glowacki) (seconded by: Bennett)
Carried unanimously
Nantucket Harbor Side Condominiums — 80 Washington Street (42.2.3 -20) SE48 -2769
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur
None
Motion
Vote
6.
Sitting
Recused
Documentation
Representative
Public
None
Supporting documents and plans.
Leo Asadoorian, Blackwell and Associates Inc. — Materials for the bulkhead to be vinyl sheet pile because
of the submersion issue. For access to the site, clean sand fill will be brought in to create a platform for
the excavator; this fill can either be left in place to wash out or be removed. The Town has a contract with
Kayak Rental through the 3,d week in October; the excavating contractor is in discussion with Kayak
Rental about the business moving to the other side of the beach. If it is alright with the ConCom, he will
make a formal request to the Town for use of the Town -owned beach. An enforcement order for clean-
up is forth coming. Sheet piles will be vibrated in. asked continuance
None
Discussion (4:07) Steinauer — Wants to ensure the proper sand is used for the fill.
Oktay — Asked about smothering eel grass. Also this will have to meet standards for land under the
ocean.
Staff The board can condition the sand. There is no issue about smothering eel grass in that location. Land
containing shell fish is a potential habitat.
Motion Continued to April 15 without objection
Vote N/A
Page 1 of 6
Minutes for April 1, 2015, adopted Apr. 15
7. The Town of Nantucket- 2A Easton Street (42 -7) SE48 -2777
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Tara Riley, Natural Resources — Brant Point shellfish propagation building modification and renovation.
The purpose is to increase space and provide climate control.
Public
None
Discussion (4:17)
Steinauer — Asked about the ground disturbance. Asked if this is Federal property leased to the Town.
Oktay — Asked if there is a federal exemption in place here.
Staff
The resource areas are Coastal beach, coastal dune, barrier beach, and land subject to coastal storm
flowage. Materials will be stored internal to the structure; nothing will be left on the beach. The building is
owned by the Town and the land is leased from the USCG; part of the lease is that the building is used for
shellfish. Because the building belongs to the Town there is no Federal exemption. Have everything
needed to close.
Motion
Motion to Close. (made by: Bennett) (seconded by: LaFleur)
Vote
Carried unanimously
8. Nantucket
Islands Land Bank- 21 Sesachacha Road (21 -16) SE48 -2775
Sitting
Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
Steinauer
Documentation
Supporting documents and plans.
Representative
Rachael Freeman, Nantucket Islands Land Bank — Proposal to maintain an existing path through a
coastal bank to Sesachacha Pond. Also, the plan is to smooth the ground to mitigate an erosion problem
of water running from the road and maintain the berm. Proposing to remove about 100 to 200 square feet
of invasive species across the road are to be treated with a Triclopyr in the spring and follow with
Glyphosate in the fall. Will remove dead material in the spring. Asked for a continuance.
Public
Ernie Steinauer, Mass Audubon — Spoke in support of the project to maintain the path and control
erosion. Asked for a condition for use of Rodeo; also suggested that a higher concentration of herbicide is
better the case of painting.
Discussion (4:25)
Champoux — Asked if there is a plan to fill in the trough.
Freeman — The bank is well vegetated. Not putting in stairs due to creating too much disturbance.
Champoux — Concurred that when painting an herbicide onto a plan the higher concentration is better.
Staff
Need to hear from Massachusetts Natural Heritage.
Motion
Continued to April 15 without objection
Vote
N/A
9. 117 Madaket Rd N.T — 117 Madaket Road (40- 60.3,56) SE48 -2776
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Paul Santos, Nantucket Surveyors — This is for construction of a studio between the primary dwelling
and the cottage. The property fronts on Madaket Road and overlooks Maxie Pond. The studio falls
outside the 50 -foot buffer. The application sets the defined area of clearing and erosion control. There will
be a small retaining wall on the front side of the studio but not on the wetland side; it will naturally slope
there. The studio has a sink that will be tied to the existing septic. Asked for a continuance.
Public
None
Discussion (4:36)
Bennett — Asked if there is any irrigation out there.
Santos — Stated that he is not aware of any irrigation.
Staff
None
Motion
Continued to April 15 without objection
Vote
N/A
10. Joseph V.Arno — 27 Easy Street (42.4.2 -18) SE48 -2772
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Bob Emack — Request to remove the structure located within land subject to coastal storm flowage and a
coastal bank (the bulkhead). Silt fence and snow fence will define limit of work and contain debris.
Concrete pads in the back and an old foundation wall are on the property. Will restore the grade and seed
as lawn.
Public
None
Discussion (4:41)
None
Staff
Part of the new lawn area is within the 25 -foot setback and a waiver has been requested for that work.
Have everything needed to close.
Motion
Motion to Close. (made by: Bennett) (seconded by: LaFleur)
Vote
Carried unanimously
Page 2 of 6
Minutes for April 1 2015 adopted Apr. 15
11. Four Saratoga, LLC — 14 Tennessee Avenue (60.1.2 -6) SE48 -2773 (Cont 04/15/15)
12. The Great Harbor Yacht Club — 96 Washington Street Ext (55.1.4 -08) SE48 -2774
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Leo Asadoorian, Blackwell and Associates Inc. — Propose to install 4 helical anchors for seasonal floating
piers. Currently have a Chapter 91 application and a permit. Army Corps of Engineer permits will have to
be amended for the seasonal floats. These are strictly storage for the 420 International sailboats; no motor
boats will be tying up to these.
Carolyn Grant, Waterfront Director GHYC
Public
Cormac Collier, Executive Director Nantucket Land Council — Reviewed the history of shellfish surveys
under the original permit. At the time of the original issue, the east piers were removed because of the eel
grass. He would like to see more studies on the impact to shellfish and eel grass and minimal use of
floating piers. Also part of the Order of Conditions was a mitigation program that relied on additional
helix moorings which was put on hold by the harbor master and now they are asking for additional use.
Discussion (4:45)
Bennett — Asked if the floats are partially submerged.
Asadoorian — Yes with about 6 inches sticking up.
Oktay —The original Order of Conditions does not allow bottom draft drag.
Grant — The boats will stored on the docks so that centerboards will not drag on the bottom.
Oktay — Asked about the other float sections in place. Had asked for a shellfish survey previously; would
like to see another one.
Asadoorian — Looked at the previous shellfish surveys. These are located in water that is 5 to 6 feet deep.
Champoux — Asked if there is a type of float that allows light through to allow eel grass to grow.
Asadoorian — He can look into that.
Staff
They are in Massachusetts Natural Heritage shellfish habitat and are waiting on their ruling. There might
be additional ways to monitor the impact on shellfish.
Motion
Continued to April 15 without objection
Vote
N/A
III. PUBLIC
MEETING
A. Request for Determination of Applicability
1. Wright — 40 Pocomo Road & 29/33 Medouie Creek Road (20 -30 &14- 35/36)
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Kevin Dale, Vaughan, Dale, Hunter and Beaudette, P.C. — Asking the commission to evaluate, correct
and confirm the wetland resource areas. The Wrights contest the plan submitted by the owners of 40
Pocomo Road was deficient and contend the land is subject to both state and local jurisdiction. The
wetland spanning the road has all the indices of being a vernal pool. The Wrights also ask the board to
rescind the local order NAN -118. The extension of the wetland into the Way creates a pinch point that
can't be traversed without trespassing on the Wright's property. Adds the septic shown on their plan is
deficient and the Health Department has rescinded that permit.
Arthur D. Gasbarro, Blackwell and Associates Inc.
Brian Butler, Oxbow Associates — Reviewed his findings that are noted in his narrative submitted into
the file. Reviewed the type of plants and soil found that are indicative of the wetlands. Explained his
findings which support the existence of a vernal pool.
Public
Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP, for Nantucket Conservation Foundation
David M. Haines, Haines Hydrogeologic Consulting, for 40 Pocomo Road
Steven Cohen, Cohen & Cohen Law PC, for 40 Pocomo Road
Michael O'Connor, Guardian of the Special Needs Trust 40 Pocomo Road aka James B. Crecca
Revocable Trust
Discussion (5:05)
Glowacki — Asked staff if Oxbow submitted the DEP data forms on the plants.
Butler — In this situation, the DEP manual mandates the radius to be used from center for different plants;
we are talking about an area that's been disturbed. They submitted soil logs and he can provide that but the
site has been altered within the resource area. Pointed out that plants can be subject to expert
interpretations; they relied on the soil.
Oktay — Mr. Haines brought up the disturbed soil in the original discussion and Mr. Butler is verifying that
fill was not brought in.
Butler — It has probably been disturbed through farming but there is a thin layer horizon from the glacial
period. There isn't much mottling and with the granite base the water is flowing through there. The
ConCom definition of swamp provides the plant community and references the soil saturation depth.
Oktay — It was brought up that the isolated land subject to flooding should be under the state act. Asked
staff what separates isolated vegetated wetlands and isolated land subject to flooding.
Page 3 of 6
Minutes for April 1 2015 adopted Apr. 15
Staff — The characteristics include the presence of wetland vegetation and the development of hydric soils
and meeting the definition for vegetated wetland.
Butler — Explained how he would determine whether the area is isolated vegetated wetlands or isolated
land subject to flooding . Stated he doesn't think that has been accomplished yet.
Reade — This is not an abutters way; it is a corridor of land that belongs to the Foundation and to three
others. In the NOI that was filed, he doesn't believe that the owners were included as additional owners.
The Foundation is very concerned and agree with what the Wrights have presented.
Discussion about whether or not Nantucket Conservation Foundation should be listed as a co- owner.
Erisman — Asked who cleared the way.
Dale — All of the clearing was done by the owner of 40 Pocomo Road.
Haines — In terms of the isolated vegetated wetland and bordering vegetated wetlands, there is a stream;
however, in a 36 Pocomo Road shows two isolated vegetated wetland. He raises doubt at using soil as the
sole evidence of wetlands; the vegetation is dominated by various non - wetland plants and cedar. He
provided a wetland data form for that. Under the bylaws, you need soil, hydrology and plants to qualify- as a
wetland. In regards to isolated land subject to flooding, when he went out there it was dry but looking at it
today it is definitely subject to flooding, which puts it under state jurisdiction; however the limits of the pool
do not extend outside the resource area. In terms of the vernal pool, there was long discussion in the NOI
discussion; Massachusetts Natural Heritage did not show it as a potential or certified vernal pool. Reiterated
that last April it was dry. They agreed under the Order of Conditions to determine whether or not it is a
vernal pool and the extent.
Oktay — Under ConCom bylaw the protections for a vernal pool are 25 feet greater.
Staff — Reminded the discussion to stay to the subject of this RDA.
Glowacki — Looking at the web site and what ConCom requires, we did receive that information on the
soils but not on the plants. He does not think the requirement for that form should be dismissed.
Discussion about how much area was brush cut.
Dale — Whether or not it is a bordering vegetated wetlands; there is a question about whether or not the
stream connects. Irrespective of it being a bordering vegetated wetlands or isolated vegetated wetland, it is
isolated land subject to flooding and requires both state and local approval. Want to see the boundary- of
that land subject to flooding. We say this is a wetland and Mr. Haines says it isn't; asked the commission to
have a third party look at it. The commission has the authority to go onto the 40- Pocomo property to
determine whether or not that is a wetland.
Discussion about having a third -party ruling on the wetland due to the conflicting data the commission
being submitted.
Cohen —The soils exist in a berm and are suggestive of fill so those soils are questionable in their reliability.
The plants are a mix of plants. He questions the idea of the standing water when the whole island has
standing water.
Oktay — We looked at the soil, which were deficient and looked at the cores where they are taken; to her
they look hydric. The berms could have been created from dredging, that doesn't negate the existence of
hydric soils.
Cohen — Feels the applicant has not submitted sufficient evidence for the wetlands and vernal pool.
Steinauer — Asked how often it has to flood to be subject to flooding.
Staff — Read how the ConCom regulations which define isolated land subject to flooding.
Oktay — To establish whether or not it is land subject to flooding, we would need 15 years of data.
Glowacld — Asked options available to the commission in ruling on this RDA. He feels he hasn't seen
sufficient information to confirm it; he is ready to make a ruling.
Oktay — They are willing to provide that information and feels they should be given the chance.
Steinauer — Would like Laurentide go out and study the soil.
O'Connor — Asked that a decision be made as quick as possible so that the house can be moved onto 40
Pocomo Road. Said this is the first year he has seen water in this location in a number of years.
Discussion about allowing work to continue on elements outside this RDA.
Staff The Oxbow report includes the soil profile.
Reiterated what this RDA is for and asked the discussion to stay within those parameters.
If it is the will of the commission to contract someone to do the study, he will go through the
procurement process. Noted that Laurentide Environmental, LLC is under contract and did the original
study and provided comments on the line that is in question. Believes a third -party review would provide
yet another set of data.
Options for ruling are: Positive 2A to confirm or Positive 213 not to confirm.
Motion Continued to April 15 without objection
Vote N/A
Page 4 of 6
Minutes for April 1 2015 adopted Apr. 15
B. Minor Modifications
1. Sunset House LLC — 15 Hallowell Lane (30 -10) SE48 -2508
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — The modification is for the reduction of the size of
secondary structure.
Public None
Discussion (6:10) None
Staff Recommend approval as a minor modification.
Motion Motion to Issue. (made by: Glowacki) (seconded by: Oktay)
Vote Carried unanimously
C. Orders of Condition
1. SBPF — Baxter Road Area (Multiple) SE48 -2581 (Revetment project) (Cont 04/15/15)
2. Squam Partners LLC — 89 Squam Road (13 -3) SE48 -2719 (Cont 04/15/15)
3. Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730 (Cont 04/15/15)
4. APG/ DRS Realty Trust — 80 & 84 Wauwinet Road (11 -89.2, 28) SE48 -2749 (Cont 04/15/15)
5. Nantucket Land Bank & Nantucket Conservation Foundation — Polpis Road (46 -7,8,9 & 10) SE48 -2762
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur
Staff Addresses monitoring. Will add Condition 22 about invasive species. Will also add typical herbicide
condition and removal of debris.
Discussion (6:14) Oktay — Needs to include invasive species removal protocols.
Motion Motion to Issue as amended. (made by: Glowacki) (seconded by: Oktay)
Vote Carried unanimously
6. Nantucket Pond Coalition — Hummock Pond (81 -86) SE48 -2770
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur
Staff This is for harvesting. Condition 19 is for a written record of animals picked up by the harvester and
returned to water and a monitoring report. Condition 21 requires pressure washing of harvester before it
comes to the island and harvester is to be inspected by environmental police; it also covers cleaning the
harvester after use so as not to spread invasive species to other areas.
Discussion (6:14) None
Motion Motion to Issue. (made by: Glowacki) (seconded by: LaFleur)
Vote Carried unanimously
7. Nantucket Pond Coalition — Long Pond (59 -59.3) SE48 -2771
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur
Staff This was for spraying of Phragmites. Condition 23 is a base monitoring report with photos. Condition 24
asks for a vegetation survey 100 yards in each direction to determine drift of herbicide. Condition 25
requires a test prior to work; will add three post spraying test times. Condition 26 is all reports to be issued
annually for three years. Condition 27 talks about not spraying in winds greater than 5 miles per hour.
Discussion (6:20) Oktay — Thinks there should be more than one post- treatment test to help evaluate how long the
herbicide sticks around. Would like to see testing one day, one week and one month after. Formaldehyde
is a break down element.
Steinauer — On the vegetation sampling, we should have permanently marked plots including before and
after treatment in both within and outside the control area. They are planning multiple years of treatment
with sampling annually. It would be interesting to know about the effect on marine vegetation.
Oktay — Foliar spraying under Condition 20 is only for this project.
Steinauer — The concentration should 2% for foliar spray; 25% is usually for clip and drip.
Motion Motion to Issue as amended. (made by: Bennett) (seconded by: LaFleur)
Vote Carried 5- 1 /Oktay opposed
8. Nantucket Harbor side Condominiums — 80 Washington Street (42.2.3 -20) SE48 -2769 (Cont 04/15/15)
9. The Town of Nantucket- 2A Easton Street (42 -7) SE48 -2777
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff Couldn't think of any additional conditions; this is very basic
Discussion (6:29) None
Motion Motion to Issue. (made by: Glowacki) (seconded by: Oktay)
Vote Carried unanimously
10. Nantucket Islands Land Bank- 21 Sesachacha Road (21 -16) SE48 -2775 (Cont 04/15/15)
11.117 Madaket Rd N.T —117 Madaket Road (40- 60.3,56) SE48 -2776 (Cont 04/15/15)
Page 5 of 6
Minutes for April 1 2015 adopted Apr. 15
12.Joseph `'.Arno — 27 Easy Street (42.4.2 -18) SE48 -2772
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff No conditions aside from photos of the grass and soil
Discussion (6:30) Oktay — Should not use fertilizer
Motion Motion to Issue as amended. (made by: LaFleur) (seconded by: Oktay)
Vote Carried unanimously
13. Four Saratoga, LLC — 14 Tennessee Avenue (60.1.2 -6) SE48 -2773 (Cont 04/15/15)
14. The Great Harbor Yacht Club — 96 Washington Street Ext (55.1.4 -08) SE48 -2774 (Cont 04/15/15)
D. Extension of Orders of Condition
1. None
E. Other Business
1. Approval of Minutes: Approved by unanimous consent.
2. Conservation Restrictions: Rachael Freeman, Nantucket Islands Land Bank — The ConCom is to hold the
Conservation Restrictions for land in Miacomet which pertains to the Smooth Hummocks area. This is coming up
now because there were issues; it is the first Conservation Restriction of the Nantucket Islands Land Bank, who
can't hold Conservation Restrictions. Motion for the Conservation Commission to hold this conservation
restriction. (made by: Glowacki) (seconded by: Oktay) Carried unanimously
3. Reports:
a. CPC, Erisman — Nothing to report.
b. NP &EDC, Bennett — Massachusetts Natural Heritage has slowed down the railroad bike path project. Flexi -Pave
has been proposed for the surface; it is permeable.
c. Mosquito Control Committee, Oktay — Delay on contractor for guidance on how to handle the monetary end.
4. Commissioners Comment
5. Administrator/ Staff Reports
a. The sheet piles being installed at the end of Hummock Pond Road are located outside the 100 -foot buffer. He
went to the site and measured the distance from the buffer zone.
b. As part of the water quality initiative, his office has been asked to look at fertilizing septic systems, crab, and
mooring and shellfish regulations. Also, there are a few unpermitted discharges into the harbor; he drafted a letter
to be sent to owners encouraging them to come in to Natural Resources Department to figure out a way to rectify
the situation or face enforcement. The commissioners endorse the letter and approved it being sent out under fir.
Carlson's name.
F. Discussion: 'Sconset Beach Preservation Fund
Discussion about whether or not to go into Executive Session.
Steinauer — Expressed his frustration with the applicant's apparent lack of desire to cooperate with the result of
nothing being accomplished. He is ready to go to court.
Bennett — There are four points: flexibility on not submitting an application for a number of years on a two -, thee-
year project; the applicant wants to stick with the fourth tier bag with an extension on the southern end and finish
the returns; still want to do a drainage pipe and have indicated they might not go forward with the deep wells; the
mitigation sand in the 3,a bag would not make it into the system with the fourth bag.
Steinauer — The applicant has stated openly that the revetment project is not going away. There is very little
incentive for them to hold off on the application.
Discussion about the three bags versus the four bags which takes the sacrificial sand component out of the
equation.
Consensus of the board is that there has been very little progress.
Staff — Will schedule an executive session with Town Counsel discuss options.
Adjourned: 6:59 p.m.
Submitted by:
Terry L. Norton
Page 6 of 6