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HomeMy WebLinkAbout2015-4-15Minutes for April 15, 2015, adopted Apr. 29 CONSERVATION COMMISSION CONSERVATION COMMISSION 2 Bathing Beach Road Nantucket, Massachusetts 02554 www.nantucket- ma.gov Wednesday, April 15, 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 4:00 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator Attending Members: Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Absent Members: None Late Arrivals: None Earlier Departure: None Agenda adopted by unanimous consent *Matter has not been heard 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. to 4/29/2015). C, 2. Squam Partners LLC — 89 Squam Road (13 -3) SE48 -2719 (withdraw) Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Need to accept the withdrawal. Motion Motion to Accept the Withdrawal. (made by: Oktay) (seconded by: Bennett) Vote Carried unanimously 3. Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730 (cont. to 4/29/2015) 4. APG/ DRS Realty Trust — 80 & 84 Wauwinet Road (11 -89.2, 28) SE48 -2749 (cont. to 4/29/2015) 5. Nantucket Harbor Side Condominiums — 80 Washington Street (42.2.3 -20) SE48 -2769 (cont. to 4/29/2015) 6. Nantucket Islands Land Bank- 21 Sesachacha Road (21 -16) SE48 -2775 Sitting Oktay(acting chair), Bennett, Glowacki, Erisman, LaFleur, Champoux Recused Steinauer Documentation Supporting documents and plans. Representative None Public None Discussion (4:02) None Staff This does not require Massachusetts Natural Heritage review. Have everything needed to close. Motion Motion to Close. (made by: Bennett) (seconded by: LaFleur) Vote Carried 6 -0 7. 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 None Public None Discussion (4:03) None Staff Massachusetts Natural Heritage ruled no adverse impact no take. Have everything needed to close. Motion Motion to Close. (made by: Glowacki) (seconded by: LaFleur) Vote Carried unanimously Page 1 of 7 Minutes for April 15, 2015, adopted Apr. 29 8. Four Saratoga, LLC — 14 Tennessee Ave (60.1.2 -6) SE48 -2773 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Asked that this be continued without being opened. Public None Discussion None Staff None Motion Continued to 4/29/2015 without objection. Vote N/A 9. The Great Harbor Yacht Club — 96 Washington St Ext (55.1.4 -08) SE48 -2774 (cont to 4/29/2015) 10. Cronyn — 88 Quidnet Rd (21 -109) SE48 - Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Upgrade of an on -site, 3- bedroom septic; the resource area is a coastal dune. Existing septic is within the resource area. The new system has a septi-tech processor and will have two leach trenches within the 100 -foot buffer. This location was chosen because there are two wells and need to maintain the 100 -foot separation. Groundwater flow is toward the Atlantic Ocean. Asked for a waiver on basis of long -term net benefit and no reasonable alternative in the location. The leach field is going in an area where brush cutting had been done and beach grass has grown in. Request a continuance. Public None Discussion (4:04) Steinauer — There are a lot of porcelain berry in that area and don't want to get that started in the yard. Asked there be a condition that any porcelain berry and any invasive species be removed. Staff None Motion Continued to 4/29/2015 without objection. Vote N/A 11. Grove Lane Realty Trust — 24 Grove Lane (41 -439) SE48 - Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Brian Madden, Laurentide Environmental Consultants, Inc. — Noted the wetland boundary which was determined through a Request for Determination of Applicability last April. 109 square feet (SF) of the existing structure is within buffer; the rebuild shifts it outside the 25 -foot buffer with an increase of 29 SF within the 50 -foot buffer. The dwelling will have a 4 -foot crawl space with the bottom of the footing to be just above high ground water so asking for waiver to be within 2 feet of high ground water. Garage will be on slab. Reconfigured pervious drive is coming outside the 25 -foot buffer. Proposing to revegetate 3,200 SF of existing lawn that is within the wetland boundary. Read the list of plants to be used. Roof runoff is being redirected. Request a continuance. Public None Discussion (4:11) Champoux — Asked about possible use of fertilizer on the lawn. Discussion about the change in square footage within the 50 -foot buffer versus that coming out of the 25- foot buffer. Staff None Motion Continued to 4/29/2015 without objection. Vote N/A Page 2of7 Minutes for April 15 2015 adopted Apr. 29 12. Pollock — 9 Washing Pond Rd (40 -92) SE48 - Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Work is within the buffer to bordering vegetated wetlands and waiting for Massachusetts Natural Heritage review. This proposal will be somewhat revised so that revised plan is forth coming. Proposal is to provide access via an elevated board walk to Washing Pond; the applicant is willing to remove the walkway and make it simply a path. That would simply be to brush cut only the area of the pathway and seed; no irrigation or fertilizer. Explained a sub - division rule about no structures in the resource area being the reason to take the walkway off the plan. Request a continuance. Public None Discussion (4:20) Erisman — She is concerned about runoff from the lawn running down the pathway and carrying fertilizer to the pond; would like to see a small berm at the head of the path to prevent that. Steinauer — Concerned about use of fertilizer to help the path become established. Wants to see photos of the current conditions. Staff None Motion Continued to 4/29/2015 without objection. Vote N/A 13. Five Quaise LLC — 5 Quaise Pastures Rd (26 -21) SE48 -2778 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Mark Rits, Site Design Engineering — The proposal is to bring into compliance an existing footpath that crosses 3 bordering vegetated wetlands to grant access to the water. The applicant will span the wetland portions of the path with an elevated 3 -foot wide Fibergrate® walkway on 4X4 wooden posts. At the water end there will be a small platform with removable steps. Do not have Massachusetts Natural Heritage review. The height of the walkway will vary between 12 and 18 inches. Vegetation is sporadic; there isn't much established vegetation; it is mostly mud. The steps will be removed and stored during the winter. Request a continuance. Public None Discussion (4:27) Oktay — Much of the path winds among trees making it not visible and wants to ensure those remain. Erisman — The lack of vegetation is fairly standard for this time of year. Champoux — Mostly fescue and white oak growing in this area. Staff There are no enforcement or permitting issues connected with this property. He will draft an order for this. Motion Continued to 4/29/2015 without objection. Vote N/A 14. Polpis Harbor, LLC — 250 Polpis Rd (26 -27) SE48 -2779 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Mark Rits, Site Design Engineering — NOI to renovate the existing structure and add a porch, renovate two existing structures, replace the existing pool outside the 50 -foot buffer, upgrade the septic outside the 100 -foot buffer, relocate the pervious drive outside the 25 -foot buffer, construct a new secondary dwelling, build a pervious tennis court outside the 50 -foot buffer, and a 2nd pervious driveway outside the 25 -foot buffer. Foundation of garage to be replaced and work to be done with hand jacks. The east side has a bordering vegetated wetlands and shore perpendicular police 92.1 coastal bank. Requesting a waiver for the section of the tennis court fence that is within the 50 -foot buffer to the coastal bank. Reviewed areas where previous owner did cutting within the wetland buffer zones. Will come up with a planting plan to restore those cut areas. Proposing to reroute the drains for roof runoff away from the wetlands. Kevin Dale, Vaughan, Dale, Hunter and Beaudette, P.C. Public Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP for 253 Polpis Rd. Emily MacKinnon, Nantucket Land Council Discussion (435) Oktay — Asked if the area being vegetated will be along pre - established lines. Rits — He does not believe so; most is established lawn except for one area that went about 25 or 30 feet into the wetland buffer. The owner is happy to allow areas revegetate naturally. Proposing to do 3,000 SF of buffer enhancement work. Oktay — The consultant reported that there are some confusing wetland lines and two culverts stacked up in a path. Asked staff if that has been addressed. Staff — He believes that it has. Some of the flags are very old; LEC's flags are pretty clear. Have been trying to ascertain when 2 culverts in the path were installed. Hopes to have that information in the next couple of weeks. Mr. Rits has expressed an interest in establishing a vegetation management plan for the property. Page 3 of 7 Minutes for April 15, 2015, adopted Apr. 29 Oktay — Thinks an overlay showing the violations would be helpful. Staff — The pipes that go through the path on the way to the boathouse might be connecting the two resource areas either side. There might be a way to address enhancement there. If those pipes are an intermittent thing that connects the two resource areas, that would affect the project as the boathouse is in the resource area. Need to check the soil and saturation of the area for the proposed tennis court, which sits very low. Steinauer — This site is in a very sensitive area of Polpis Harbor; as far as lawn management, it is a good place to implement recommendations from the last fertilizer meeting to ensure no additional nutrients are being added to the system. Rits — that can be addressed in the overall planting plan. No fertilizer use is proposed for areas inside the buffer zones. Glowacki — Asked the commission to not get ahead of itself in applying standards that it doesn't have. A "session" was put on that was personal opinions. Erisman — This would be from the Best Management Practices (BIfP) that has been accepted. Reade — No objections to aspects that don't require waivers or alterations to the existing structures. His clients' main concern the board granting a waiver for new construction; asked that not be allowed. Feels it is a stretch to claim NRA when there is already much in existence on the site. Under the performance standards, he feels Kevin — In respect to the waiver request for the tennis court, believes the commission can see the justification for that waiver. MacKinnon — Not too long ago, for another applicant on property similar to this, part of that waiver request was no use of fertilizers within the 50 -foot buffer. Regard of BI1P regulations are, this commission has the right to consider additional restrictions in an area as sensitive as this. Glowacki — The whole point of these educational opportunities is to ensure that what we allow to be done with fertilizers is done in such a way as to not contribute nitrates into saltwater areas. If we can do that by following certain standards, we have accomplished out task. Erisman — It is very important to follow the standards for these resource areas. Thinks soil testing should be required. Oktay — As someone who takes part in the testing of the harbor, there is clear and well- documented evidence of increased nutrients in the harbor after seasons and rain that has been presented every year. Campoux — If a site like this adopts and follows the BMP, it is a huge step forward. Rits — As of this time, no fertilizer use is being proposed; if that changes, it would be in compliance with standards and can be discussed at that time. Bennett — Asked about the possibility of doing a grass court rather than a full clay court. Rits — Will inquire into that. Request a continuance. Staff He can set up a workshop on the fertilizer BIIP. Motion Continued to 4/29/2015 without objection. Vote N/A PUBLIC MEETING A. Request for Determination of Applicability 1. Wright- 40 Pocomo Rd & 29 /33Medouie Creek Rd (14,19- 37,01) Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused Documentation Supporting documents and plans. Representative Kevin Dale, Vaughan, Dale, Hunter and Beaudette, P.0 Brian Butler, Oxbow Associates Public Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP, for Nantucket Conservation Foundation David M. Haines, Haines Hydrogeologic Consulting, for 40 Pocomo Road Michael O'Connor, Trustee Crecca Special Needs Trust 40 Pocomo Road aka James B. Crecca Revocable Trust Discussion (5:06) Glowacki — After reading the bylaws, he questions the veracity of this which could change an issued Order of Conditions and believes that this is a private matter and that this is misusing the ConCom process outside the enumerated public interest in regards to what ConCom is here to protect. Steinauer — Whatever the reason for contesting the prior findings in regards to resource boundaries and if the applicant has evidence to support their claims to wetlands, the motivation is irrelevant. Dale — This is a public matter as every citizen has the right to asked this board determine where the wetland delineation falls; that is part of the charge for this board. Feels "pre- amble" prejudices the hearing. Reviewed the Oxbow flagging and soil tests that confirm the existence of a wetland. This area includes isolated land subject to flooding; that has been agreed to. He does not believe there is any further topographical data supporting the position of the owners of 40 Pocomo Road. There has been flooding flora indicates the existence of a vernal pool. Pointed out that his client's expert has not been permitted access to the possible wetland area in question. Page 4 of 7 Minutes for April 15 2015 adopted Apr. 29 Reade — Agrees with Mr. Dale's reasoning why this is public matter. Nantucket Conservation Foundation owns part of that land. Butler — Reviewed his findings as presented at the prior hearing and reviewed errors in Mr. Haines' delineation of the wetlands in misidenti fication of vegetation indicating existence of a wetland. Based on the existence of the Pseudacris colony, the vernal pool is present; he requests the commission confirm that and quantify that population. He believes his flags delineating the extent of the vegetated wetland are accurate as defined in the local bylaw and federal law. Provided the commission supporting material of their methodology. Dale — The applicant is asking for a positive determination on the flags showing the wetland resource areas and remand the Order of Conditions back to the commission and determine through a topographical survey what the boundaries of land subject of flooding and under ConCom authority determine the existence of a vernal pool. Campoux — There is the presence of a lot of eastern red cedar stumps close to the wetland flags; the root zone, about 5 times the size of the tree crown, on those tree would go well within the flagged wetland. Asked if that is factored in and how. Butler — In the hydric tests as recent as two weeks ago there was water observable in holes within 5 feet. Cedars are not normally prominent in bottom lands but they aren't adverse to seasonal wetlands. Haines — This area is very flat; during high water period, the water came up to his flags but not Mr. Butler's flags. Today the water level has dropped 5 or 6 inches. The cedar tree stumps are at the same elevation as the delineated wetlands and would experience the same hydrologic conditions. Both Mr. Perry and Mr. Carlson have been out there. Isolated land subject to flooding is a state resource area but has no buffer zone; have looked at the rack line for winter flooding and had his surveyors ensure that maximum flood line. They are in the process of actually qualifying it as isolated land subject to flooding. Stated fir. O'Connor, the trustee of the property, has never seen water as high as this year in his 40 years of managing the property; they are taking that as evidence. This commission has seen evidence of high water all over this island this past year and water being spots it never has been before. If they do agree it is isolated land subject to flooding, it would be under the jurisdiction of the state, which doesn't have a buffer for it.. In terms of the vernal pool, looked at it today and found no evidence of fairy shrimp. They did find ostracods anthropoids, midges, and milk fleas; he will be going out there again. He did hear chorusing peepers but they aren't indication of a vernal pool. Oktay — Understanding the isolated land subject to flooding has no buffer, asked if its presence would cause the Order of Conditions to be remitted. Staff — Yes and no; explained how the presence of isolated land subject to flooding would mean the commission has to memorialize the fact that no activity is taking place in that area. Oktay — Even if the extension of the wetlands is established, that doesn't mean a waiver can't be granted for the project. Staff — The line shown on the plan is the delineated line of the wetlands. The line for isolated land subject to flooding would be different. The request before us is a determination in the change in the delineation of resource areas. Explained why it is difficult to delineate isolated land subject to flooding. Butler — Explained how he would calculate the outer boundaries of an isolated land subject to flooding. Gasbarro — Doesn't see how anything can be determined without a survey of the entire property. His client as offered to do that at his expense but has been turned down. Feels it is incumbent upon the owners of 40 Pocomo to provide that. Failing that, calculations should be based upon 100 -year storm levels. Haines — They want to establish whether or not there is enough standing water on the site qualifies as land subject to flooding. In the boundary, the highest water level can be used "if it is disputed." No evidence has been submitted that indicates it goes any higher. We need to know how far it extends and ensure it doesn't come into the building site. Mr. Haines and Mr. Butler continue to dispute each other's findings. Steinauer — He is not convinced about the soil survey. Oktay — To her some of the plants look to support Mr. Butler's findings. Staff — His looking at the soils, a lot depends on where and when he is looking at the soils. The commissioners need to ensure they have sufficient information to make a decision. If a primary concern is evaluation of isolated land subject to flooding, the bylaw provides for the ConCom agent to access the area while there is an active Order of Conditions. Further discussion about the need to determine the boundary to the isolated land subject to flooding. Steinauer — Stated that enough has been said and people are repeating themselves. Glowacki — Under the performance standards, this board could make a determination without waiting for a third -parry study. O'Connor — He would agree for the Wrights to pay for the survey to be done by a surveyor hired by the Town. He believes that would provide an impartial survey. Dale —The Wrights will pay for a surveyor that both parties agree upon. Steinauer —The surveyor should be approved by staff. O'Connor — The positioning of the flags is arbitrary and a third surveyor would come up with yet another line. He wants that surveyor's line to be agreed upon as being final. Page 5of7 Minutes for April 15 2015 adopted Apr. 29 Dale — Asked for a continuance Staff Received new information from Oxbow Associates to include DEP forms; that information is in the packet. Would have to go through the procurement process to hire a survey engineer to do the study. Mr. Perry's initial review established the borders included in the original application. Motion Motion to Continue to 4/29/2015. (made by: Bennett) (seconded by: Champoux) Vote Carried 6- 1 /Glowacki opposed. B. Certificates of Compliance (6:21) 1. Teneru Realty Trust — 3 Hulbert Avenue (29.2.3 -6) SE48 -1397 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Addition to an existing construction in a coastal bank. Recommend this be issued. Discussion None Motion Motion to Issue. (made by: Glowacki) (seconded by: Oktay) Vote Carried unanimously 2. 23 Bank Street, LLC — 23 Bank Street (73.1.3 -055) SE48 -2521 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff In compliance. Recommend this be issued. Discussion None Motion Motion to Issue. (made by: Glowacki) (seconded by: Oktay) Vote Carried unanimously C. Orders of Condition (6:22) 1. 117 Madaket Rd N.T —117 Madaket Rd (40- 60.3,56) SE48- 2776 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Straight forward application. Discussion None Motion Motion to Issue. (made by: Oktay) (seconded by: Bennett) Vote Carried unanimously 2. Nantucket Islands Land Bank- 21 Sesachacha Rd (21 -16) SE48 -2775 Sitting Oktay(acting chair), Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Documented removal of porcelain berries. Requested waiver under no adverse impact /no reasonable alternative. Discussion None Motion Motion to Issue. (made by: LaFleur) (seconded by: Champoux) Vote Carried 6- 0 /Steinauer recused D. Other Business 1. Approval of Minutes; April 1, 2015: Motion to Approve as amended. (made by: Oktay) (seconded by: Bennett) Carried unanimously 2. Conservation Restrictions: None 3. Reports: a. CPC, Erisman — None b. NP &EDC, Bennett — None c. Mosquito Control Committee, Oktay — Discussing how to issue the contract. 4. Commissioners Comment: None 5. Administrator /Staff Reports: a. Sesachacha Pond has been opened; Hummock Pond will be opened Thursday. Installed a tie gauge at Hummock Pond to monitor the water level. b. His office has started doing the Town drain - marking project for discharge drains going directly into the harbor. They are looking for school groups or other youth groups to get involved in the project. c. Met with Mr. Thompson of Fargo Way where there is an open enforcement action; he went over violations with him and talked about the discharge pipe, the fence. Mr. Thompson and Mr. Humphries are putting together a narrative of what is out there. As part of the enforcement, the commission first needs to order the removal of the pipe and the fence that aren't in compliance and have them put together the documentation calling for the removal of the rest. Asked to be authorized to do the first part of that removal. Mr. Thompson needs to put together a restoration plan for the damage done to the abutters way on the adjacent property and that needs to be resolved before the end of May. Motion to Authorize Staff to start the removal process. (made by: Oktay) (seconded by: Erisman)Carried unanimously Page 6 of 7 Iinutes for April 15, 2015, adopted Apr. 29 111. EXECUTIVE SESSION Motion to go into Executive Session under Exemption 3 as written on the agenda. (made by: Oktay) (seconded by: Bennett) Roll-call vote: Glowacki — aye; Bennett — aye, Champoux — aye, LaFleur — aye; Steinauer — aye; Oktay — aye; Erisman — aye Entered into Executive Session at 6:36 p.m. Exited Executive Session at 7:46 p.m. Motion to Adjourn: 7:47 p.m. Submitted by: Terry L. Norton Page 7 of 7