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HomeMy WebLinkAbout2015-9-16Minutes for September 16 2015 adopted Oct. 21 CONSERVATION COMMISSION PUBLIC MEETING 2 Bathing Beach Road Nantucket, Massachusetts 02554 www.nantucket - ma.gov Wednesday, September 16, 2015 4:00 P.M. r 4 Fairgrounds Road, Training Room ' Commissioners: Ernie Steinauer (Chair), Andrew Bennett (Vice Chair), Ashley ErisTnan, David L�Flepr;i J r-9 Ben Champoux, Ian Golding, Joe Topham l Called to order at 4:00 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator Attending Members: Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham 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. APG/ DRS Realty Trust — 80 & 84 Wauwinet Road (11 -89.2, 28) SE48 -2749 (Cont 09/30/2015) 2. Four Saratoga LLC —14 Tennessee Avenue (60.1.2 -6) SE48 -2773 (Cont 09/30/2015) 3. Bayliss — 52 Eel Point Road Lot 1 (35 -25) SE48 -2821 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Mark Rits, Site Design Engineering — Have not yet received the Massachusetts Natural Heritage letter. Submitted a revised plan showing a pool fence; all work is outside the 50 -foot buffer. Requested a continuance. Public None Discussion (4:01) None Staff The other half of this was closed; this was waiting on Massachusetts Natural Heritage. Based on the conversation at the last hearing, he has drafted a positive order. Motion Continued to 09/30/2015 without objection. Vote N/A 4. Sunset Realty Trust — 201 Eel Point Road (38 -32) SE48 -2823 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — This is for an elevated walkway across a coastal dune and landscaping within the buffer zone. Submitted plans at grade at the table. This will follow the pathway of an existing walkway. In regards to the decking material, were asked about using Fibergrate®; the owner is concerned about use of Fibergrate® as they get owner and for the same reason want the single -rope handrail. The idea is to keep this minimal. The walkway itself is less than 18" above the ground, just enough to allow for sand migration and plant growth; there would be a handrail on each side. Robert Freeman, owner — Property is used 6 to 7 months a year. Public None Discussion (4:05) Topham — Asked about make the rope handrail removable at the end of the season. Staff Could condition for monitoring after the 11t year. Have everything needed to close. Motion Motion to Close. (made by: Champoux) (seconded by: LaFleur) Vote Carried unanimously Page 1 of 6 Minutes for September 16 2015 adopted Oct. 21 5. * Madaket Wheelhouse, LLC —13 Massachusetts Avenue (60 -75) SE48 -2825 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — This is for work within the buffer zone to vegetated wetland and the entire property is within land subject to coastal storm flowage. This has a recently installed I/A septic system, which was installed without a permit. The septic has not yet been backfilled, stopped work upon recommendation of the Health Department. The original design plan was granted in 2013 and a variance granted by the BOH to allow it to be within 100 feet of a drinking well. The leaching portion of this system is outside the 100 -foot buffer but a waiver is required for being within land subject to coastal storm flowage. The system does have nitrogen reducing technology. This replaced a conventional system that failed due to insufficient separation from ground water; he believes that the leach trench for that system has been removed. FEMA changed the extent of land subject to coastal storm flowage since the initial design; it might not have been within that zone at that time. The owner is looking at a significant burden to rip all this out and put in a new system; it is an improvement over what was there. This technology includes a blower unit to help the breakdown of micro- organisms. It could be conditioned to elevate the blower unit above the flood level. Requested a continuance. Public None Discussion (4:12) Erisman — If there is a flood, there is the potential of polluting the well water. She would prefer a Tight Tank. Steinauer — It is ultimately the owners responsibility to ensure all permits are in place. just because it's in the ground doesn't mean we have to permit it. Champoux — Everyone else in this area of Madaket is required to install the appropriate system. Staff Read Performance Standard Nr 2, which pertains to land subject to coastal storm flowage; they are asking for a waiver for net benefit as an improvement in replacing the old system and a waiver for separation from ground water. On Massachusetts Avenue, we usually see the installation of Tight Tanks. The 100 -foot separation from the well is a BOH issue. The vegetated wetland compliance is pertinent. They are requesting the installation of fill within the flood zone. Motion Continued to 09/30/2015 without objection. Vote N/A 6. *Dhall — 30 Madequecham Valley Road (89 -22) SE48 -2826 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Brian Madden, LEC Environmental — For beach stairs with the stairs removed seasonally. The drop is 15 to 18 feet starting 2 to 3 feet off the edge of the bank. The stairs will be fixed with anchors. Waiting to hear from Massachusetts Natural Heritage; asked for a continuance. Public None Discussion (4:30) Champoux — This is pretty benign. Staff Massachusetts Natural Heritage ruled on the house but not the stairs. Motion Continued to 09/30/2015 without objection. Vote N/A 7. *Oak Hill Investments — 341A Madaket Road (60- 75)SE48 -2828 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Mark Rits, Site Design Engineering — Residential redevelopment: remove existing, construct new, pervious deck, swimming pool all outside the 50 -foot buffer. Elevated wood staircase down the bank just landward of mean high water. There is a 50 to 60 -foot stretch of saltmarsh at the base of the bank. Building code requires a railing for any walkway elevated over 30 "; the alternative is to lower the entire staircase to close to or at grade. Balusters have to be close enough together so that a child's head won't go through. The landing terminates immediately short of the mean high water line; if it crosses that, it becomes a disallowed pier. Explained that he did pin flags to the resource areas 3 to 4 months ago, but robust tides removed them; he will replace them. Asked for a continuance. Rick Beaudette, Vaughan, Dale, Hunter and Beaudette, P.C. — Noted that these types of structures have always been considered water dependent because they get you to the water. Page 2 of 6 Minutes for September 16, 2015, adopted Oct. 21 Public Joseph Guay, for Mary Jane MacLean & Ann Jennings and Charles Ryan and a contract purchaser for 341 Madaket Road — He asked for a continuance of this matter so that he and his clients have an opportunity to review the application. This application is represented the elevated staircase and landing in the NOI as a water dependent structure, which it can't be based upon the prohibition of docks and piers. Read the standard requiring a water dependent structure to maintain a 50 -foot buffer from a coastal bank. He's concerned that this is moving forward without review Bruce Perry's, Third -party Consultant Conservation Commission, field report dated September 1, 2015; that indicates that none of the resource areas have been staked or delineated, the limit of work is not shown, and the landing by the bank is not shown. This should be continued to allow Mr. Perry's recommendations be met. There should be strict conditions on the pool to include whether or not the water is chlorinated. Asked this be continued. The field inspector asked this to be continued. Emily MacKinnon, Nantucket Land Council — Echoed concerns about delineation of the resource areas. Where this does has implications for ConCom is how the extensive saltmarsh will be impacted by the increase usage from the landing that is essentially a boat landing. Discussion (4:34) Champoux — Asked about the Step Beach stairs which doesn't have all the slats in it. Golding — A handrail is different; asked if they're prepared to come back with less of a massive cross section. (Yes) Bennett — Stated that because of the slope the Building Code applies and they are constrained by the code about a child's head. Golding — He would like to see an effort to get a Building Code waiver so this doesn't have to have railings; those have an impact on the rural view. Discussion about the proposed railing and building code requirements versus lowering the walkway. Golding — He would like to see a design for the walkway that doesn't require a railing. Rits — Lowering the walkway would increase the number of landings due to the slope of the land and therefore the number of posts going into the bank. Erisman — Is concerned about plantings that would require fertilizer use; the landscaping should be such as doesn't require fertilizer. She would like to know more about the landscaping at the edge of the 25 -foot buffer. Discussion about delineation or lack thereof of the resource areas. Staff It is interesting to remember that the commission has performance standards for restriction on piers, which can be pertinent here in regards to the saltmarsh. Read Performance Standard 4 about elevated walkways Water dependent is tricky definition by our regulations; read the definition. Noted that the last application for a staircase and walkway is water dependent. When this came in 3 to 4 months ago, Mr. Perry had issues with the delineation of resource areas. Motion Continued to 09/30/2015 without objection. Vote N/A 8. *Hunter Trustee — 47 Cliff Road (29 -43) SE48 -2827 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Mark Rits, Site Design Engineering — Resource areas: off -site bordering vegetated wetlands and a coastal bank, which is by virtue of the 100 -year flood level. There is a cleared area for a former staircase on the western side of the property. Proposal is to reconstruct those stairs and elevated walkway from the base of the slope to seaward of the coastal bank to provide access to the lower portion of the property for maintenance. The preferred material is wood. The slope has a lot of trees and vegetation; stairs design not to impact that. Due to the vegetation, view of the walkway will be very limited. In regards to relocating the staircase, any existing invasive plants are in the form of sizeable trees, which provide stabilization and habitat; removal would require heavy equipment at the top of the bank. The configuration is in compliance with performance standards; they won't be disturbing any native vegetation of profound value. This is all coming about because this flat bank which lies landward of a hill has been defined as a coastal bank due to 100 -year flooding. The definition drives the design of the stairs and walkway. This plan does not disturb a high volume of native growth. He will re- notify the abutters and come back with a request for a waiver and redesigned plan. Bill Hunter, Vaughan, Dale, Hunter and Beaudette, P.C. — Noted the stairs are being built in the historical location of stairs; as for the walkway, it is a faux coastal bank. They are not asking for waivers at this time; he would prefer being issued an order of conditions without waivers and they will come back and ask for a waiver to eliminate the boardwalk. They put together a design in the historically appropriate spot; noted this is not a traditional coastal bank. They are happy to have the order conditioned to ensure compliance. He wants to make it clear that they aren't asking for a grandfather use; this is the historical location of old stairs constructed before the Act. Asked for a continuance. Page 3 of 6 Minutes for September 16 2015 adopted Oct. 21 Public Emily MacKinnon, Nantucket Land Council — Concerns about how something like this would be permitted within conditions; at least as far back as 1998, the stairs did not exist so she doesn't believe this could be grandfathered. The water dependent use definition can be interpreted different ways; she has a very hard time seeing this a water dependent use; it doesn't access water but does access abutting property. It would be more appropriate this be grant waivered. Discussion (5:05) Erisman — Asked if they looked into any material other than wood which will be slippery. Rits — They could put down a material for traction on the stairs. Golding — With the heavy vegetation, he believes the stairs and railings will not be visible. Erisman — It's swampy and something you would not normally want to cross. She did not see any healthy understory so it is not a healthy bank. She would like to see the creation of a native understory and dealing with the invasive species; that would benefit the resource area. She would like the vegetation surveyed. Champoux — He does not want to see the removal of mature trees and the potential destabilization of the bank. Steinauer — Both structures are within the 50 -foot buffer to the wetland, which would require a waiver. Rits — This is an area that has confused him due to the many situations of going through several resource areas: the use under the by law requires an elevated walkway and over a coastal bank. One resource area seems to trump protection over another resource area. Steinauer — They don't have any alternative. Rits — This coastal bank exists because of the potential ocean water inundation, therefore it is a coastal resource are despite being far from the water. The only way to get access is by an elevated walkway through a coastal resource area, which by definition makes it water dependent. Erisman — Thinks there's a better way to do this with a tree survey. She would prefer to see a request for a waiver and plan that terminates the walkway. Champoux — They are using the coastal bank to make a case for the walkway; without the coastal bank, the walkway would terminate outside the 50 -foot buffer for the bordering vegetated wetlands. In this case, that coastal bank is doing more harm than good to the bordering vegetated wetlands. Steinauer — It's back to the trees. If someone requested permission to remove Sycamore Maples, we would grant an NOI to use herbicides because they are State and Locally listed invasive species. He would rather grant the waiver. Staff If this board is very against the walkway, it can grant waivers as part of the conditioning of that the project to better meet the performance standards. If the project is deemed water dependent, the buffer zone requirement is for non -water dependent uses; the buffer zone would not be applicable. Looking at the wall that's there and the proposed structures, the delineation of the resource areas are approved under the prior order referenced on the plan. We know where those are. Motion Continued to 09/30/2015 without objection. Vote N/A B. Amended Orders of Conditions 1. None III. PUBLIC MEETING A. Request for Determination of Applicability 1. Greenberg /Morachnick — 17 Pocomo Road (14 -11.1) Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Confirm resource boundaries to a vegetated wetland. No work is proposed within 50 -feet of the wetlands; a garage would be about 90 -feet from the wetlands. Public None Discussion (5:37) None Staff Recommend this be issued with a Positive 2 confirming the resource areas and Negative 3 for the work. Motion Motion to Issue as recommended. (made by: Golding) (seconded by: Champoux) Vote Carried unanimously B. Minor Modifications 1. Nantucket Land Bank — 80 Miacomet Avenue (66 -126) SE48 -2394 (withdrawn) Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Staff This would be more appropriate as an amended order. Discussion (5:39) None Motion Motion to Accept the withdrawal. (made by: Bennett) (seconded by: Champoux) Vote Carried unanimously Page 4 of 6 Minutes for September 16 2015, adopted Oct. 21 C. Certificates of Compliance 1. * Garnick — Lot 25 Polpis Road (26 -22.2) SE48 -521 Reissue Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Staff This is very old. It can be reissued. Discussion (5:40) None Motion Motion to Reissue. (made by: Erisman) (seconded by: LaFleur) Vote Carried unanimously 2. * Otto — 4 Brant Point Road (29 -145) SE48 -2712 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Staff Construction of additions on structures within land subject to coastal storm flowage. It is in compliance. Recommend this be issued. Discussion (5:41) None Motion Motion to Issue. (made by: Champoux) (seconded by: Bennett) Vote Carried unanimously D. Orders of Condition (If the public hearing is closed — for discussion and /or issuance) (5:41) Discussion of other closed Notices of Intent 1. Sunset Realty Trust — 201 Eel Point Road (38 -32) SE48- 2823 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Staff For the elevated walk with rope handrail. No waivers are required. He will add Condition 21 requiring photos of re growing vegetation in the area of the walkway. The proposal requests two ropes; asked if the board wants to change that. Discussion (5:41) Golding — There was the discussion of one rope or two; it doesn't make a difference to him because it won't stop migration of animals. No concern with two ropes. Motion Motion to Issue as amended. (made by: Bennett) (seconded by: LaFleur) Vote Carried unanimously 2. SBPF — 87 -105 Baxter Road (48- 21,22,19,18,17; 49 -8) SE48 -2824 Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Staff Prepared a positive order incorporating the state superseding order; this is an effort to get the information out to the public and allow the board ample time to review what the order might look like. Still waiting for review from Town Counsel. This draft Order of Conditions is available through the Town website on the regular Baxter filing information page. Reviewed conditions addressing specific concerns. Invertebrates and micro- organisms should be under a separate finding. Will add a condition that all raw data is made available to the public. Hoicks Hollow is shown on the beach map as a closed access; there have been accidents with nesting plovers. It asks them to maintain the gate. Discussion (5:44) Steinauer — Thinks the Commissioners should take time to review the draft positive order. Golding — Under additional findings, there is also land under the ocean that needs to be added. Item 6: he would like a provision for microscopic beach life and an analysis of sand and the microscopic life it supports in front of and on either side of the structure. These organisms are very important to the food chain. Discussion about what microscopic life is in the sand and the sand from the pit. Golding — We have the issue of replication of the fill as opposed to what would be coming out of the bluff; if it were replicated every year, we'd end up with a mass of cobble in front of the geo -tube; perhaps we shouldn't address that and see what happens with the bathymetric measurements. Erisman — Finding 18: about not adding the fourth tube; if we say "the project as constructed served to abate the emergency" because clearly it did. She believes what they have works. Golding — In part, we are waiting for Town Counsel's opinion as to whether or not this commission decides not to add the fourth tier. He sees no reason for a fourth tier; he's never seen waves come up that high. Erisman — The reason waves would develop that high is because the bottom tiers act as stairs. Steinauer — A big concern about the fourth tier is that any sand on top is out of the reach of mitigation. We would have to add that any sand applied above the level of the third tier does not count toward the 22 cubic yards (CY) per linear foot of mitigation. Champoux — If they want to store sand on top of the fourth tier that would eventually be pushed over, that should be allowed to be calculated into the 22 CY of mitigation sand after it leaves the fourth tier. Discussion about holding a special meeting to further discuss the orders of condition. Golding — Nr. 34 Failure Criteria: asked if historical data needs to be defined. Staff — We have a large data set from Woods Hole surveys and CZM data; it's broad enough to pull from multiple sources in the case of significant loss. Golding — The way "E" reads, it could go without a walkable beach for 6 months. Staff — It is to separate a day -to -day concern from a long -term problem. Erisman — It would be nice to have a third -party making the recommendations rather than depending upon the applicant telling us. Page 5 of 6 Minutes for September 16, 2015, adopted Oct. 21 Steinauer — There is nothing about making raw data available to the public. It allows an independent review the opportunity the analyze the data. Golding — Nr. 42: asked if we want to stop Hoicks Hollow being used to go farther north. Erisman — Asked if there something about noting how many trucks are involved in transporting sand to the site. She's concerns about the long -term CO2 impact. Staff — We require them to submit delivery tickets as part of the emergency certification. Reviewed Condition 45: upon completion of the project as permitted if there are any of the fourth tier and nourishment there, we're requiring that they file for a partial certificate of compliance on the initial construction. That would get a stamped as -built plan back showing the grades and topography so that we know going forward what that looks like. In return we issue a partial certificate stating they are in compliance with the permit on the initial construction and go forth with monitoring and maintenance. That way it's been discussed in public meeting. He will add comments from tonight as well as Town Counsel's review. Send any thoughts directly to him, NOT the commission. He will send out a draft before the special meeting. Motion Continued to a special meeting at 5 p.m. 09/23/2015 without objection. Vote N/A 3. 48 SPR, LLC — 48 Shimmo Pond Road (43 -79) SE48 -2789 Reissue Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham Staff There were errors in the findings and conditions. The reissue is to correct those errors. Discussion (6:18) None Motion Vote E. Other Business 1. Approval of Minutes: a. September 2, 2015 — Motion to Approve as amended. (made by: Golding) (seconded by: LaFleur) carried unanimously 2. Reports: a. CPC, Golding —There are 14 applications requesting a total of $3.3 million. b. NP&EDC, Bennett - Nothing c. Mosquito Control Committee, Erisman — Nothing 3. Commissioners Comment a. Erisman — Talked about going over the regulations; should look at low- impact landscaping within the buffer areas. 4. Administrator /Staff Reports a. Staff — Asked commissioners to submit a list items they would like to discuss for revision of the regulations; asked them not to do that before the end of this month, the same about having someone speak to the commission on topics of interest. Motion to Reissue. (made by: LaFleur) (seconded by: Champoux) Carried unanimously Motion to Adjourn: 6:27 p.m. Submitted by: Terry L. Norton Page 6 of 6