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HomeMy WebLinkAbout2015-5-27Minutes for May 27 2015 adopted June 17 CONSERVATION COMMISSION PUBLIC MEETING 2 Bathing Beach Road Nantucket, Massachusetts 02554 ww-w.nantucket- ma.gov Wednesday, May 27, 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: None Earlier Departure: None Town Counsel: George Pucci, Kopelman and Paige PC 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 06/10/2015) 2. Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730 (Cont 06/10/2015) 3. APG/ DRS Realty Trust — 80 & 84 Wauwinet Road (11 -89.2, 28) SE48 -2749 (Cont 06/10/2015) 4. Four Saratoga, LLC —14 Tennessee Avenue (60.1.2 -6) SE48 -2773 (Cont 06/10/2015) 5. Polpis Harbor, LLC — 250 Polpis Rd (26 -27) SE48 -2779 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused Documentation Representative Public Discussion (4:04) Staff This had been held for the elevation view of the proposed. Have everything needed to close. Motion Motion to Close. (made by: Champoux) (seconded by: LaFleur) Vote Carried unanimously 6. Nantucket Land Bank —158 Orange Street (55 -61.1) SE48- (Cont 06/10/2015) 7. Michael Ryan — 16 East Lincoln Avenue (42.4.1 -45) SE48 -2787 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Patrick Taaffe — Explained they are building off the existing with one tiny addition. The porch will be on footings. Asked this be closed. Public None None Supporting documents and plans. Mark Rits, Site Design Engineering — He has provided photos and the HDC elevation plans as requested. He believes all other concerns have been addressed. Asked this be closed. None None Discussion (4:06) None Staff This was held for the Department of Environmental Protection number. This is a straight up with no grade changes. Have everything needed to close. Motion Motion to Close. (made by: LaFleur) (seconded by: Oktay) Vote Carried unanimously Page 1 of 8 Minutes for May 27, 2015, adopted June 17 8. *Hemenway & Barnes LLP — 181 Eel Point Rd (33 -21) SE48 -2788 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Brian Madden, Laurentide Environmental Consultants, Inc. — This is for a new residential development. The resource areas are: a vegetative wetland north of the property, a trough between the property and the road, the flood plain, and coastal bank. One portion of the dwelling is within the 50 -foot buffer and the fence runs into the 25 -foot buffer. Proposing to plant bayberry and arrowroot. The proposal is to raise the structure and move outside the 50 -foot buffer. The septic is outside the 100 -foot buffer. There will be a new pervious driveway; the old drive will be loamed and planted with arrowroot and bayberry. The northeast portion was cut by others and contains Japanese black pine and deadfall, which is to be removed by hand. Asked for a continuance. Public None Discussion (4:08) Oktay — Asked how the fence will be removed Page 2of8 Madden — By hand. Oktay — Agrees with the Laurentide report recommendations in regards to protecting the wildlife habitat. Champoux —The Order of Conditions should reflect that all deadfall be removed by hand. Oktay — Suggested a condition for photo monitoring of the revegetated areas to ensure it is coming back. Staff Waiting to hear from Massachusetts Natural Heritage. He will draft a positive order. Motion Continued without objection to June 10. Vote N/A 9. Squam Partners LLC — 89 Squam Rd (13 -3) SE48 -2785 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — (4:05) request this be held until attorney for the owner arrives. Barry Fogel, Keegan Werlin LLP Mike Howard, Epsilon Associates Wetland expert Arthur Reade, Reade, Gulhcksen, Hanley, & Gifford LLP Public Bruce Perry, Laurentide Environmental Consultants, Inc. Emily MacKinnon, Nantucket Land Council (NLC) Discussion (4:36) Gasbarro — This is for an elevated walkway between two uplands to be Fibergrate® about 140 feet long. 135 traverses the bordering vegetated wetland. Reviewed construction and materials. All material to cut outside the buffer and hand carried and hand installed. Propose a wetland replication area 3 -times the size of the walkway square footage. Hydraulic augers operated by two men will be used to install the helical anchors; repeated there would be no machinery in the buffer zone. Siltation fencing would be a staked filtration sock installed around the replication area. Fogel — There is a waiver request submitted based upon regulation that states no structures in the wetland or buffer zones. Provided an extensive report from Mr. Howard substantiating through analysis that there would be no adverse impact from construction or existence of the walkway. Presented an analysis based on the reading of the regulation that the proposed project can't be performed in a method that would have less adverse impact on resources. Stated there is no less impactful alternative to building this walkway. There is a right of way adjoining the property that allows passage to the ocean side of the lot but there is a question of safety using the driveway with vehicles and children. Having safe access is a clear concern of the owner. The objective of the Bylaw 136 -2 is to control the amount of impact. The walkway won't have an adverse impact because of control through design. Stated he read the third -party report and comments from the Nantucket Land Council; he feels neither presents creditable evidence there would be no adverse impact. They have not made a water - dependent claim with their waiver. There is an opinion piece, which was printed in the New York Times, feels it contains conclusory and excitable language and references "most popular recreational areas in America." This property does not fall in that category and contains no evidence that should be used in this hearing. Asked the board to grant the waiver and approve the project at this time. Steinauer — It was an opinion piece but based upon research that was cited. Champoux — Asked if there is any standing water. Howard — There was about 6 inches when he walked the property in the winter. He has included photos in his report. Champoux — Pointed out there was a little water last week. Howard — It has pit -mound topography and will hold water during certain times of the year. Oktay — Asked if there is anything quantifiable in regards to wildlife and invertebrates in the water. Howard — They assessed the wildlife habitat and its potential to support those species. As for an inventory, no and that is stated in the report. Steinauer — Referred to an article in the New York Times the pointed out how little human use is necessary to impact wildlife habitat and that dogs have an even greater impact than humans. It strikes him odd that Page 2of8 Minutes for Mav 27, 2015, adopted Tune 17 they need this path for humans but the applicant is saying there will be very little human use. He thinks the road is a much more reasonable alternative; the distance on Squam Road is very short and it is not a heavily traveled road. Glowacld — This comes down to impact on interests that have been enumerated. It seems the question before the board is are the impacts significant. Oktay — The regulations say a project "will not adversely impact." She believes that installing this metal walkway bisecting 200 square feet of habitat will have more than a "negligible" impact and that the impact in fact will be significant, more than a small amount. The replication area, though significant doesn't make up for the fact that this bisects a large, undisturbed wetland. Erisman — She is concerned for the species which use this prime habitat. The adverse impact for her is undeniable. This cuts down and goes through the habitat. Oktay — Agrees with the points made by the Nantucket Land Council and the ConCom third -party consultant. There is clearly an alternative access. Steinauer — Agreed that this project is designed to minimize impact. This proposal, however, isn't about accessing a property; it is about building a walkway through the wetland. Glowacld — Read the definition of "adverse impact." Champoux — He feels there is potentially significant impact and there is a reasonable alternative. Fogel — Under the State Wetlands Act CMR 310 10.53CJ, it allows for bridging a vegetated wetland. The way the local regulation is written, this project can be done. The regulations is written so the ConCom doesn't have to render an opinion on the purpose, only the design. The board in their decision needs to show evidence that this will have an adverse impact. There is no such evidence in the record of more than negligible impact. Conversely Mr. Howards evidence indicates this will have a minimal impact on the habitat. Steinauer — Feels Mr. Fogel is suggesting the commission to assess nesting now and allow the walkway but if that changes, the ConCom is to allow them to remove it. Oktay — There are scientific studies that show walkways like this do have a lessening of usage of the area by birds. Stated she feels Mr. Fogel's comments are demeaning to ConCom's ability to evaluate their own regulations. Our interest is to protect the wetland as it is. Fogel — No one disputes the impact; the question is whether or not it is an adverse impact. Compared this similar to a request for a tennis court, ConCom Can ask them to put it someplace else. Steinauer — There have been times this board has denied a house. There is a no -build alternative. Fogel — For the record, their point is the difference between putting it through and having evidence to show it will have more than a negligible impact according to local regulations. Perry — Based on the threshold of whether or not this project can be approved, no project can be denied as long as it can be proved that the best way to do it will have the least impact. Some projects will have an adverse impact and the commission would have to decide it shouldn't be done. The changes that will occur by putting the walkway through the habitat will be significant. Also the driveway goes through the same wetland; the walkway would be the second time the wetland is traversed for this lot. The replication area would also be bisected by the path and walkway. It was decided years ago that there is no deminimus alteration to a wetland; any change or alteration to a wetland is permanent. Howard — Feels that in his 25 years of experience, he has demonstrated to many conservation commissions that these can be built without adversely impacting the wetland. The purpose of his report is to show how he came to the conclusion this walkway and path would have minimal impact. Cited his own notes. The walkway bisects the wetland but takes issue with fragmentation of the habitat. Animals would go around, under, and over the walkway. Birds will continue to nest in the existing brush. His report documents the components of the micro -level species that are common to this wetland and surrounding landscape; based on his report a very large area of the habitat for these micro - species will remain as opposed to the small area that will be disturbed. Reviewed how those impacts would be minimized. MacKinnon — Reviewed a letter she submitted for the files the gist of which has already been discussed. NLC believes there will be more than a negligible impact with the movement of people through the wetland and placement of the walkway. This property is adjacent to 87 Squam Road where the access is located and this commission within the last two years issued an enforcement order because of a path cut through the wetlands. The letter expresses NLC concerns for approval of this project setting a precedent. As for a reasonable alternative, she has submitted a copy of the easement for the record. Glowacld — What he has heard from people is a strong belief there will be an adverse impact. He has not heard any evidence and what those impacts will be. Erisman — State she is willing to submit her wetland ecology text for everyone; a project like this certainly has an impact: between the removal of shrubs, affect on wildlife, and change in hydrology. Gasbarro — Reminded the commission that this walkway is Fibergrate® and wood not metal. Oktay — Some commissioners feel this project can't proceed as proposed and that we can't redesign it in such a way that doesn't cause more than a negligible impact on the wetlands. Also, there is a pre- established access available as a reasonable alternative. Gasbarro — Asked to close. Added that Massachusetts Natural Heritage has signed off on this. Page 3 of 8 Minutes for May 27, 2015, adopted June 17 Discussion about whether or not the opinion piece was submitted as part of the record; it was circulated internally only this day. Staff Sent an email to the commissioners containing the opinion piece published in the New York Times. The correct language that ConCom is reviewing that has to be covered in our analysis: we can put impacts or understand that impacts are going to be there to have a complete analysis for both a positive or denial order. In the waiver, have to address that the proposed project will not adversely impact the interests identified in the bylaw and that there are no reasonable "conditions" for alternatives that would allow the project to proceed in compliance with the regulations. In the analysis, commissioners should keep their comments to addressing the waiver request. The analysis needs to be able to stand through a court appeal. It is not the role of the commission to redesign but to impose conditions that keeps the impact no more than negligible. Unless there are any other outstanding issues or questions, we have everything needed to close. Motion Motion to Close. (made by: Oktay) (seconded by: ( Glowacki don't need one) ) Vote Carried unanimously B. Amended Orders of Conditions 1. * Mackenzie & Hughes - Philips — 4 Swain St (42.4.1 -82.3) SE48 -2658 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Paul Santos, Nantucket Surveyors — The entire property is with land subject to coastal storm flowage. There is a pocket vegetated wetland at the back of the property. Everything is outside the 50 -foot buffer but all within the 100 -foot buffer for the wetland. The entire property is within land subject to coastal storm flowage. The structure is to be raised above the flood level. Looking to infill the first floor and place a propane tank. Public None Discussion (4:15) None Staff Recommends this can be closed and issued as an amended order. Motion Motion to Close and Issue. (made by: Oktay) (seconded by: Champoux) Vote Carried unanimously 2. * MRKR Nantucket Realty Trust — 66 Monomoy Rd (43- 109.2) SE48 -2550 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Brian Madden, Laurentide Environmental Consultants, Inc. — The original Order of Conditions is for Page 4of8 removal of Japanese knotweed within 100 feet of a coastal dune. This is to reconfigure the management and planting footprint within the 25 -foot buffer of the coastal dune. The plan is to hand pull the new plants; the original order approve herbicide. Proposing to replant with sweet pepperbush and bayberry. Public Bruce Perry, Third -party consultant Discussion (4:17) Champoux — Asked Mr. Perry's recommendation on the use of Rodeo(g) for Japanese knotweed as opposed to pulling the plants. Perry — He uses Renovate 39 in the spring and in the fall clip and drip with Rodeo®. Suggested the just pulling will just break the plant leaving residue that would regrow. Spraying with Renovate(R) or an herbicide is the better way to go. Steinauer — If there isn't a whole lot, they can clip and drip. Staff In the current order of conditions they are permitted to treat with herbicide; this is a request to include a new area for treatment. Recommends this can be closed and issued as an amended order. Motion Motion to Close and Issue. (made by: Bennett) (seconded by: Oktay) Vote Carried unanimously Page 4of8 Minutes for May 27, 2015, adopted June 17 3. *Shimmo Hills LLC — 5 North Rd formerly 10 North Rd (43 -312 formerly 81) SE48 -2609 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — This is for work within the buffer to a coastal bank. A new architect has modified the plans for a residential redevelopment; the scope of work is still within the original parameters. There is now a pool, which is outside the 50 -foot buffer. Pointed out that the site falls away from the resource area and that the coastal bank is armored with an existing wooden bulkhead for 3/4 of the property. The silt fence in the original order is in the same location with this. Public None Discussion (4:22) Erisman — Asked if the meadow that is now part of the pool area was originally to be undisturbed. Gasbarro — It was just grasses, which they called a meadow and was within the area approved for clearing; its use is cleared by Massachusetts Natural Heritage. Staff Recommends this can be closed and issued as an amended order. Motion Motion to Close and Issue. (made by: Oktay) (seconded by: Bennett) Vote Carried unanimously 4. Thompson- 14 Fargo Way (14 -17) SE48 -2645 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Stan Humphries, Laurentide Environmental Consultants, Inc. — This is coming to the commission through an enforcement order. There is a meeting between the agent and Mr. Thompson scheduled to look at the alleged violations: unpermitted fence with adverse affect of the adjacent property, installation of coir logs and tubes, and unpermitted discharge pipe. A section at the top of the plan shows movement of the coastal bank over the past two years. The water discharge pipe has been removed. The fence was a judgment made by the owner in reference to a previous plan; he believes, due to what has been done on neighboring properties to the west and south, that the fence in front of the existing envelopes would not harm the environment but be a protective measure against floating debris; the adverse affect would be at the stairway on the far east end at the proprietor's way. Reviewed erosion to the coastal bank caused by runoff through the wetlands and letter detailing his rationale of erosion being due to severe winter storms. His opinion is that the retreat is passive and not related to installation of the tubes. Perhaps protection of the stairways could benefit by the extension of one or two tubes. The amendment is to keep the fence and they have addressed the other violations. Public Arthur D. Gasbarro, Blackwell and Associates Inc., for 10 Fargo Way Sarah Alger, Sarah F. Alger P.C., for 10 Fargo Way Discussion Oktay — To comply with the original order, the fence and rocks would have to be removed and the (5:25) adverse impact that might or might not be occurring at the end of the path. Humphries — In regards to the date of the house, there was a lot of deliberation as to whether or not to treat it as pre -1978. Suggested amending the amendment to keep the fence in front of the pre -1978 house as a coastal engineering structure to protect that structure and remove the fence in front of the new house. Oktay — Softer structure better absorb energy differently and there are advantages to slowing erosion. Erisman — Asked if this fence where cut -offs of wood are between the slats. Humphries — This is 2X4 spaced 6 inches apart and no other pieces of wood to make it solid. There are two salt marshes and monitoring is to be done. Champoux — He is concerned about extending the fence pass the stairs; there are wetland draining over the bank would take it away or the fence would cause scouring into the wetland. Also, don't want too much sand covering up. Oktay — It would be easiest to put it back in compliance. Steinauer — He doesn't think ConCom would have permitted that fence. Oktay — Agrees. Reiterated the benefits of a softer structure. It might help to go look at it. Erisman — the fence is messy along with the rocks. Steinauer — Would like to see it. Gasbarro — This project had a host of issues to begin with and now they are asking to extend this. Two issues: the drain pipe was removed but the discharge is continuing in the ConCom areas of jurisdiction so his client is asking for additional information in that regard; ConCom still does not have an as -built of what is there, the existing fence and sand fill are not located on the plan. Contends they are not in compliance with at least six conditions of the original order: Nr. 19, no as -built filed; Nr. 20, no survey submitted in the spring or following the winter storm events; Nr. 21, so reports filed showing amount of sand delivered; Nr. 22, no quarterly photographs filed; Nr. 25, nothing in the files shows an escrow account was established prior to start of work; Nr. 28, the sand doesn't look to meet the composition the commission required. The photos show the posts are 4X6 and the size of the gap is 20% to 30 %; all other fences require a 50% open area. The tube is square and could be layered and what is it filled with. (At 5:48, llr. Glowacki stepped out for another commitment, he will return.) Page 5 of 8 Minutes for May 27, 2015, adopted Tune 17 Oktay — Reiterated her inclination to bring this back into compliance. Steinauer & Erisman — Agree with NIs Oktay. Champoux — Forcing the owner to bring this back into compliance would also serve a warning not to ignore orders of conditions. Alger — Expressed her client's frustration over this project and the time and money spent during the original hearings only to have what was built not be in compliance. The enforcement order has been in place since February with no movement toward making the project compliant. Now they are in with an amended order asking for more. She believes it was a mistake in the last order not to call this a coastal engineering structure and feels that should be revisited. There has been damage to the resource areas and her client's property due to unpermitted pumps moving water. risked the commission to order this be removed and the property restored to its prior condition under Condition 24. Oktay — Believes this is one of the times which warrants the board to consider the $300 a day fine. Removing and starting from scratch is not a bad idea. Steinauer — Asked if the commissioners want to visit the site. Also need to ask to have the soil analyzed. Oktay — Asked if there is damage to the neighbor that it can't wait two or three weeks to be repaired because this has been improperly built. Staff — There has been erosion, there has been damage to the property as a result of the structure. Humphries — Asked this to be continued to allow the board a site visit; he will submit additional materials as requested by the board. Staff The original configuration of the tubes with the fill, there was a specific finding in the order that the project as proposed was not a coastal engineering structure. The importance of that is it exempts us away from the first performance standard of a pre - 1978 /post -1978 home and reasonable alternatives including retreat for that issue of the project. In the case of Eel Point Road, the commission has found the combination of fence and tubes to be a coastal engineering structure. The commission will have to provide the findings or analysis for that. He has no recommendation at this time due to the amount of analysis and comments from abutters. Other issues connected to the violation and not seen here include: as -built plan of the structure, reconcile rocks piled in front of the fence, why it moved, looking for sand delivery report. Need to review what they are looking to do, reconcile it to the original order as part of the amended order, and take steps or action appropriate to deal with this proposal. The original enforcement order asked them to remove the fence; they have come back with the amendment asking to keep the fence. Another concern is whether or not the remainder of the structure is in compliance with order. Part of the commission's analysis is to determine whether or not the structure that has been violation has been causing adverse impact to the beach east and west and the best ways to mitigate or repair impacts if they exist. The commission has never looked at failure to construct correctly as a failure criteria. The board could consider the structure to be failed as not having been constructed as conditioned. This is a situation that would not only bring it back into compliance but not reward someone for disregarding the conditions of their permit. The conditions of the original order need to be satisfied really quickly for the board to have something to look at and know exactly what is there. Motion Continued to June 10 without objection. Vote N/A III. PUBLIC MEETING A. Request for Determination of Applicability 1. Wright- 40 Pocomo Rd & Medouie Creek Rd (14,19- 37,01) (cont to 6/10/2015) Discussion on Glowaeki - Objects to the continuance of this application; the law asks a decision be rendered within a continuance specific amount of time. Staff — In this case, the representative is asking this be held to allow time for the parties to settle matters privately. 2. *Anathan Family Ltd Partnership — 68 & 72 Monomoy Rd (43 -115) Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — This is for confirmation of the resource area boundaries: coastal beach, coastal bank, coastal dune, and land subject to coastal storm flowage. Stated that he received the report from the ConCom technical consultant agreeing with the boundaries. Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Public None Discussion (429) None Staff Recommend this be issued as a Positive 2A confirming the resource area as shown on the plan. Motion Motion to Issue. (made by: Bennett) (seconded by: LaFleur) Vote Carried unanimously Page 6 of 8 Minutes for May 27 2015 adopted June 17 B. Minor Modifications 1. *Glenhurst West R.T — 137 Cliff Rd (30 -610) SE48 -2384 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — They want a system for collecting water from the gutters and downspouts as well as from the footage drain. All the work is outside the 50 -foot buffer; there will be no pumps; it is subsurface piping gravity system. There will be riprap and headwall on the settling basin before flowing to a heavily vegetated area. Anticipates returning with a minor modification for landscaping. Pointed out two outfalls. Explained how the gutters, downspouts and system will direct runoff away from the structure. Public None Discussion (431) Erisman — Would like to know how many inches per hour the pipes can handle. Gasbarro — he didn't get into those but is proposing a 6 -inch pipe. Staff Recommend this be issued as a minor modification. Motion Motion to Issue. (made by: Glowacki) (seconded by: Champoux) Vote Carried unanimously C. Certificates of Compliance 1. * Briggs —17 Walsh St (42.4.1 -13) SE48 -1695 Sitting Steinauer, Oktay, Bennett, Erisman, LaFleur, Champoux Staff Raise building w /in the flood zone; it was built in compliance. Recommend issue. Discussion (6:00) None Motion Motion to Issue. (made by: Bennett) (seconded by: Champoux) Vote Carried unanimously 2. *Atherton — 48 Squam Rd (13 -30) SE48 -1750 Sitting Steinauer, Oktay, Bennett, Erisman, LaFleur, Champoux Staff Construction of an addition; built in compliance. Recommend issue. Discussion (6:01) None Motion Motion to Issue. (made by: LaFleur) (seconded by: Bennett) Vote Carried unanimously D. Orders of Condition 1. Polpis Harbor, LLC — 250 Polpis Rd (26 -27) SE48 -2779 Sitting Steinauer, Oktay, Bennett, Erisman, LaFleur, Champoux Staff Only special conditions were: Condition 21, photo monitoring of areas allowed to revegetate; Condition 20, a permanent marker be installed along the edge of work. He will inform the board of what that marker is. Discussion (6:02) None Motion Motion to Approve as drafted. (made by: Bennett) (seconded by: Champoux) Vote Carried 5 -1 /Erisman opposed 2. Michael Ryan — 16 E Lincoln Ave (42.4.1 -45) SE48 -2787 Sitting Steinauer, Oktay, Bennett, Erisman, LaFleur, Champoux Staff No special conditions or waivers. Discussion (6:03) None Motion Motion to Approve as drafted. (made by: LaFleur) (seconded by: Champoux) Vote Carried unanimously 3. Hemenway & Barnes LLP — 181 Eel Point Rd (33 -21) SE48 -2788 Sitting Steinauer, Oktay, Bennett, Erisman, LaFleur, Champoux Staff Clarified that he has instruction to draft a positive order and asked if there are specific concerns aside from removing the deadfall. Discussion (6:04) Steinauer — Monitoring the revegetation. Oktay — Would like something about use of fertilizers. 4. Squam Partners LLC — 89 Squam Rd (13 -3) SE48 -2785 Sitting Steinauer, Oktay, Bennett, Erisman, LaFleur, Champoux Staff Asked for guidance in the drafting of this order and the conditions or findings Discussion (6:05) Oktay — Asked for a vote on whether to draft an approval or denial. None for a positive order; six for a denial. Mr. Glowacki absent. Discussion on findings supporting a denial. Ground water: Erisman — If the shrubs are cut back so much or removed, the standing water is not going to be absorbed the same. Oktay — It changes the ability to retain soil under the foot print of the walkway. There would be more water under the walkway and more sedimentation. It will change how water flows through there. Page 7 of 8 Minutes for May 27, 2015, adopted June 17 (Glowacki returned 6:07 p.m. Brought up to speed.) Wildlife: Consensus — There would be an impact to habitat and resources. Discussion on Performance Standards under 3.02 vegetated wetlands. Staffed reviewed those standards that do not apply: Nr. 4, Nr. 3, Nr. 5, Nr. 7, Nr. 8. Do apply: Nr. 6, Elevated walkways determined to be water dependent designed not to affect existing vegetation shall be required for pedestrian passage over vegetated wetlands: Nr. 1, Proposed projects shall maintain at least a 25 -foot natural undisturbed area adjacent to vegetated wetlands: Nr. 2, Proposed projects shall not use procedures that the Commission determines changes the flood protection function (leveling out of storm surges by storing and slowly releasing water) of vegetated wetlands by significantly changing the rate of water flow through the wetlands (by channelization or other means): Oktay — She is concerned about channelization and more water will flow under the bridge that it would through vegetation causing increased erosion. Erisman — During a heavy rainstorm, water would be able to easily get to that area. Staff — Asked if there is a condition or set of conditions that can be posed to make this a less than negligible impact. Champoux — This couldn't be designed better. Staff — He is confident of drafting a denial based on there being no conditions that can be imposed or waivers that can be justified under the no adverse impact /no reasonable alternative that would allow the project to proceed and be in compliance of the standards. Glowacki — Stated he doesn't think it appropriate for this board to decide what the owner needs or doesn't need. Steinauer — All that is being cited is some of the reasons the owner said he needed this for. We are deciding that this is not approvable. E. Enforcement Actions — None F. Other Business 1. Approval of Minutes: Minutes of May 13, 2015 adopted by unanimous consent 2. Reports: a. CPC, Erisman — She has been assigned the Spruce Street improvement project which is access to The Creeks and the Brant Point Shellfish Propagation building project. b. NP &EDC, Bennett — Nothing c. Mosquito Control Committee, Oktay — Meeting next week. 3. Commissioners Comment 4. Administrator /Staff Reports a. Application fees: He has not had a chance to put something together. He is in contact with other commissions on their fee structures. Oktay — One thing that would go with the fee structure is the ability to provide additional help in the office for follow up on reports and checking up on coastal structures. b. 25 East Tristram Avenue: There are conditions and they are trying to do maintenance on a bulkhead. They would like to place the sand and do plantings in compliance with the conditions, but there are restrictions on working between Memorial Day and Labor Day and work on the beach. Mr. Gasbarro has put together a letter addressing conditions. They have to give 48 -hours notice to the ConCom on the nourishment under Condition 21. Condition 30 requires all work shall be done between Memorial Day and Labor Day unless the commission authorizes the work. They are looking for auth to do the nourishment and plant in compliance with order of conditions and doing it from the land side. If they start, they can be done by June 12. There is no nesting habitat there and it can be done fairly quickly. Motion to Allow them to proceed. (made by: Oktay) Carried unanimously G. Executive Session 1. Exemption 3: To Discuss Strategy with Respect to Potential Litigation Concerning the Appeal of Order of Conditions SE48 -2610 issued to the Sconset Beach Preservation Fund and the Town of Nantucket, where an Open Meeting May have a Detrimental Effect on the Litigation Position of the Conservation Commission. Glowacki — In the past there has been decision about the need to go into executive session. He would like to have a consensus of the commission as to whether there is a need to or if it can be done in open session. He would like to know how the discussion would be detrimental to the litigation position of the commission. Steinauer — Executive Session is necessary because there will discussion of legal matters. Motion to go into Executive Session under Exemption 3. (made by: Oktay)(seconded by: Erisman) Voice vote: Erisman, aye; Oktay, aye; Steinauer, aye; LaFleur, aye; Champoux, aye; Bennett, aye; Glowacki, nay. Entered Executive Session at 6:28 p.m. Exited executive session at 7:09 p.m. Motion to Adjourn: 7:10 p.m. Submitted by: Terry L. Norton Page 8 of 8