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Conservation Commission Minutes 02/08/2007

Minutes of February 8, 2007
Public Hearings
Mashpee Town Hall Meeting Room 1
Commissioners present: ~Ralph Shaw, Vice Chairman, Len Pinaud, Clerk, Lloyd Allen, Cass Costa, Jeffrey Cross, and John Rogers.
Staff present:  Steve Solbo, Agent, Drew McManus, Assistant Agent, and Frances Wise, Board Secretary.
Ralph Shaw called the meeting to order at 6:55 p.m.  
Public Comment:~ None.
Non-Hearing Agenda
Old Business:~ None.
New Business:~

1.  Approval of minutes for 1/11/07.

Motion made, seconded and unanimously carried to approve the minutes for 1/11/07.

Hearing Agenda:
7:00 p.m., Robert and Stephanie Spencer, 7 Ocean Bluff Drive (continued from 12/28/06).  Cass recused herself from this hearing.  John Slavinsky represented the applicant.  

1.  He said at the last hearing some questions were raised about the work limit being fairly close to the excavation.  He read a letter dated 2/1/07 to Jack Fitzsimmons from Ron Gangemi, Ron’s Excavating, Inc. as follows:  

“I have owned and operated Ron’s Excavating since 1984.  ‘Ron’s’ has excavated hundreds of garages in the type of soils found on Ocean Bluff Drive between Shore Drive and the parking areas.

“A garage foundation merely requires that a trench be excavated along the perimeter.  The trench is 4’ wide 95% of the time.  I am quite familiar with Ocean Bluff Drive and I can assure the Conservation Commission that the work limit shown on the plan ‘Proposed Carriage House Located in Mashpee, MA, prepared for Robert Spencer” dated January 27, 2006, revised February 6, 2006 is more than adequate for the excavation work.”  

2.  He said that because there were references made to 2 to 1 slopes and 3 to 1 slopes at the last hearing, he had his survey crew go out the following day (Friday) to find a garage being built and take pictures of it.  He showed the members the pictures showing a garage with a four-foot excavation just the same as this proposed plan, the edge of the garage wall to the end of the excavation is 1 foot 3 inches, and the soil conditions are exactly the same – sandy gravel.  He said nowhere will the proposed excavation be deeper than four feet.  He gave these photos to Steve the following Monday.  He said this is a typical garage excavation.  

3.  He spoke with the Water Department regarding moving a water main, and they said it was fine with them provided it had a 45-degree bend.  The cable utilities will be reinstalled in an area inside the garage under the wall.  As for the disturbance caused by the installation of these utilities, he showed the members photos of underground lines for lighting recently put in by the association (which was done without a permit and which Mr. Spencer voted against), and said if they can do half as good a job as they did, he would be pleased.

4.  He had said at the last hearing that there would be nine trees cut, and he reaffirmed that number.

5.  Regarding the By-law, this coastal bank is quite a bit higher than the flood zone in this area. There were questions as to whether or not they should be doing mitigation there, and Brad Holmes said the proposed mitigation plan was fine with only some slight changes.

6.  Regarding the mitigation area, he had said it was 3,500 sq. ft.  There was a question about it being more like 3,200 sq. ft.   Actually it is 3,486.25 square feet.

7.  Regarding the letters from the 11 concerned citizens of Mashpee, he found some of them foolish, almost all of them irrelevant, but one from Mr. Pranos had some value.  He stated that the Spencers don’t need a carriage house and he’s opposed to it, but the important part is his saying that while visiting with the Caseys, he noticed a lot of wild life there – squirrels, eagles, foxes, chipmunks, etc.  So Mr. Pranos is visiting Mr. Casey on the dune side of the property. That is the area he is proposing for the mitigation planting.  

Also, not one of the letter writers ever saw this plan, ever saw the mitigation, and every letter was written nine months previous to this filing.

8.  His impression is that they have supplied enough information to the Commission to have a vote on this project.  The proposed mitigation is overwhelming as opposed to the removal of nine pitch pines.  They have added seven pitch pines to the mitigation area.  

Steve said he still feels that the mitigation plan for the secondary dune far out weighs any impact from the construction of the carriage house.  It adds to an area that is otherwise barren.  He said his expertise is in wildlife biology and this area has limited wildlife habitat value.  It is probably the finest mitigation plan this town has seen – it follows our regulations to a T.  Steve trusts Mr. Gangemi to do the job properly.  Ralph asked if there is any question about this project meeting the performance standards.  Steve said no.  Len asked if the area that will be disturbed is around the proposed carriage house.  Steve said yes.   Jeff asked if it would be possible to do a soil test, and Mr. Slavinsky said he would.  Steve said the growth on the secondary dune looks like primary succession.  Len asked if the digging for the plantings will be done by hand or machinery.  Steve said by hand.  

Sterling Wall, Senior Project Manager/Coastal Geologist, Daylor Consulting Group, representing Mr. and Mrs. Casey, said he doesn’t want anyone on the Commission to think that this area is bare, denuded, contaminated, or otherwise is not capable in its present state of providing habitat.  When he was at the November hearing, he had not looked at the dune area.  He has since visited it, and this is the area that is proposed for mitigation.  He saw a significant amount of vegetation to the north and south of this area.  The only point where he did not see vegetation growing is on the Spencer side where they have left their little sail boat sitting on the upper portion of the beach – the lower portion of the dune.  He showed photos of the area to the members.  

He knows nothing about any program to put in light posts or electric lines.  It certainly was not authorized by Mr. Casey.  At the November hearing, he spoke about various aspects of this filing that had not been documented -- principally the utilities, and they have now been documented.   He said the fact of the matter is:

1.  This sight really is too small for the construction of a carriage house.  Reference was made in November that there are other units within this area that had a carriage house – in fact there are two.  Those two units are at the southwestern end of the property, and those lots are significantly larger than the Spencer lot.  His understanding is that both of those lots had pre-existing structures on them, and it was the existence of those pre-existing structures that was the basis for the carriage house on each of those lots.

He showed pictures of the transformer path, because the section drawing provided suggests that there is a retaining wall that’s running across the back that is around the path and the construction of the foundation.  From the location of the transformer path is an electric line that runs right through the footprint of the carriage house.  Also on top of the bank are two pedestals – one for cable and one for telephone.  What is not shown on the plan is where these lines are coming in to connect to the properties on either side of the Spencers.  Also not shown on the original plan was the 8-inch ductor line and water line which ran under the footprint of the carriage house.  Obviously, they have had to propose some mitigation for the relocation of the
8-inch ductor line and water line.  

He is not going to argue with the constructor in this community who believes he can dig the necessary hole in a certain size in this particular soil.  His assumption at the November hearing was that we are dealing with sandy soils, with soils that have greater cohesion.  Yes, the width of the hole at the top of the excavation can be narrower than a 2 to 1 or a 3 to 1.  The fact of the matter is the foundation wall itself is going to be the better part of a foot, the footing is going to be greater than 2 feet wide at the bottom and flare out to at least 4 feet wide at the top.  

The construction is not only the excavation for the foundation.  It is the excavation to bring the electric line up into a utility roof that is located in approximately 6 feet of this side of the foundation excavation, so there will be greater disturbance there.

The work generally is going to be larger than the footprint that was represented on the plan, which he pointed out in November.  The limit of the work as shown on a section drawing is incorrect.  1) There is work being done by the path to bring the new electric line up through the coastal bank.  2) There is also work being done by the hole to bring the telephone and cable wires up through the coastal bank.  So there will be excavation on the coastal bank, which will destabilize that coastal bank.

The amount of excavation that is within the buffer zone is also increased by virtue of the fact that this 8-inch duct and water line has to be excavated and relocated 5 feet deep within the travel area.  

The engineer spoke to the number of trees to be cut as nine.  Mr. Wall believes there will be one more tree by the pole, maybe two.  That’s not a cause for argument.  What should be a cause for discussion is that it’s been represented to the Commission tonight that there will be seven trees planted.  Where?  There is nothing that shows where that mitigation is being proposed.  And yet, the mitigation plan shows a 550 square foot footprint.  But the foundation is in there.  The plan does now show where the trees are going to be planted and what size.  It is not the finest mitigation plan that’s ever been provided to this commission or any commission.  

More importantly with respect to this mitigation area, he calculates something less than the engineer did.  We’re talking about an area that’s already vegetated, as shown in the photos he presented this evening.  He disagrees with Brad Holmes’s statement that it is only 25% vegetated, that it’s sparsely vegetated.  He believes that it’s vegetated to a much greater degree.  Since it is vegetated, it’s inappropriate to take credit for 3,500 sq. ft. or 2,486.25 sq. ft. when the area is already vegetated.  How can you mitigate and take credit for an area that’s already vegetated?

Mr. Holmes provided information relative to rare species that have been found to utilize areas such as this, which is general delineation.  It was reported to be rose tern and common tern.  Pipe and plover might utilize this also, but what they use is areas that are more open, not more vegetated.  Natural Heritage will respond back to Messrs. Spencer and Holmes as to what they feel may be appropriate under the Massachusetts Endangered Species Act, not the review that was done under the submission of the Notice of Intent to Natural Heritage.  What Mr. Holmes presents to the Commission in this letter is that increasing the density of vegetation will be a benefit.  Mr. Wall said he has had experience in providing habitat for common tern, and they prefer a more open area – that is what works for them.  Some vegetation as presently exists in the area serves this necessary vegetation within which chicks can hide, but for the most part it’s an open area.    So he disagrees with Steve with respect to the mitigation.

His conclusion is that the mitigation plan is not adequate; it overstates what it is proposing to do. His opinion is that the work on the coastal bank has not been fully documented and it has not been fully mitigated for.  What has been provided to this commission does not deserve approval tonight or any other night.  They have done a better job of documenting what their work is, but they have not assumed the burden of proof that what they propose to do can be mitigated for appropriately and can be constructed without an adverse impact on any of the interests that are supposed to be protected.  

Mr. Slavinsky said the excavation needs to be four feet wide.  There are two other carriage houses, but only one was pre-existing.  The other was built after the house was built.   The footing for the garage will be 18 inches.  Regarding the work required for the utilities, he thinks they can do as good a job than what is being done there now.  He has difficulty finding where these lines actually went, difficulty finding the trenches.  They will not be revegetating the area where the utility companies left 11 stumps.  At the November hearing there was a discussion regarding Natural Heritage and the actual location of the project.  Steve said he didn’t think we needed to file with them, but they did.  Mr. Slavinsky just received their reply saying that not only is the applicant exempt from them, but they returned the applicant’s $300 filing fee.

Attorney Peter Lyons, representing Mr. and Mrs. Casey, said at the November hearing on this project he questioned the appropriateness of Michael Talbot’s presence at that hearing, as he had served as a member of this commission and now was representing a proponent in front of this board. Under Massachusetts General Law 268-A there is a prohibition of appearing at that meeting.  That may or may not be true, but right now there is an on-going investigation by the State Ethics Commission on it.  He suggested to this Board that in order to preserve the sanctity of the board, that any decision of the board regarding this matter be held up until the Ethic Commission’s investigation is completed.  

Mr. Slavinsky said Attorney Lyons said there is an on-going investigation.  Maybe there is, and maybe there isn’t.  Hold off for how long?  We meet the regulations.

Len said it was brought up in Mitigation 1 that the footprint of the carriage house was not taken into account – that 550 sq. ft.  Is that true?  Mr. Slavinsky said it does not include the footprint of the carriage house.  

Ralph asked if there is any landscaping plan for the planting of the trees.  

Jeff said he was uncomfortable with the Ethics Commission investigation.  Steve said that is not in our purview.  

Attorney Lyons said it may or may not be a violation.  However, there is an on-going investigation.  Steven is fully aware of that.  He doesn’t have the expertise to tell where they are going with it or what they are going to do with it, but he thinks it’s better to handle it on the side of caution.  Hopefully the investigation would be over within a month, and we could meet then when the result would be clarified.  That way no one’s integrity is questioned.  The Board’s hard work and expertise that has been exhibited on a monthly basis would be preserved.  He suggested that any decision be held off until the issue is resolved, because if it is resolved unfavorably with regard to the charged party, then any Board decision probably will be nullified under the statute.  

Len asked if the Town has been notified of this investigation – have they received a letter to that effect.  Steve said not to his knowledge.  Len asked if the proponent is willing to go forward knowing that information.  Mr. Slavinsky said absolutely.  

Motion was made and seconded to approve this NOI.  Len, Lloyd, John and Cass voted in favor
and Jeff abstained.

7:03 p.m., Karen Rohdin, 21 Squaws Lane (limited pruning).  Drew described the plan.  He and Steve recommended approval.  
Motion was made, seconded and unanimously carried to approve this RDA.

7:06 p.m., Bonnie Smith, 266 Monomoscoy Road (continued from 1/25/07).  John Slavinsky represented the applicant.  Steve said the Commission is disputing where the mean low water line is shown on the plan.  He said the lines on the plan could be zero, but he has go by the fact that the mean low water line is as defined in 44.53G.

Typically we don’t get involved in property issues, but the property behind the dwelling is Town-owned salt marsh, and therefore he thinks we have to look out for the best interests of the Town.  The intention here is that due to the fact that anywhere below mean low water is in fact Commonwealth land.  He doesn’t know if the proponent has talked with Chapter 91, but he asked who told the proponent that he can build a structure starting at mean low water.  We are willing to hire an outside consultant to determine where the mean low line is from the Town’s perspective, if the applicant wants to go through that.  If he doesn’t want to go through that, it would be grounds for denial.  

Steve thinks the easiest way would be to go for an easement and he hoped it would go that way, although that’s not in our purview.   However, under 44.53G of Massachusetts General Law, commissions and boards are allowed to hire independent consultants.  If the applicant wishes to go through with hiring an outside consultant, Steve will go off Cape to get quotes from three consultants who do not have any relation to this Commission or to the applicant’s consultant.  He would give them the plan and ask them where the mean low water line is. There is no need for them to know anything else that is going on with the project or who owns the land. They will put the mean low water line on the plan.  They will define the parcel behind the home, saying this is mean low water, and therefore this is Commonwealth land on the other plan. Steve was told by Dave Hill at Chapter 91, Waterways, Rick York, Shellfish Warden, and Perry Ellis, Harbor Master, that in no way is what’s shown on the plan the mean low water line, based on the definition in 44.53G.  They are basing it on tide charts and what has been the historic decision of the mean low water line.  Mean low water line is simply not defined as zero.  The regulations say it’s based on the 19-year cycle.  He said about 1 1/2 years ago, the approved fee was limited to about $3,000, and he will check to see what it is now.

Steve said that most likely, the applicant will need an easement to build the structure on the salt marsh and for access to the property even if the independent consultant agrees with their determination.  So going first for the easements may save the applicant money.  Steve said that Town Counsel said getting the easements is the easiest way to get this permitted.  

Motion was made, seconded and unanimously carried to approve a continuation to March 8th at 7:00 p.m., at the request of the applicant.

7:09 p.m., Paul Marino, 15 Debbie Lane (construct a two-car garage with a breezeway).  Gregory Blasenak represented the applicant and described the project.  

Motion was made, seconded and unanimously carried to approve this RDA.

7:12 p.m., Melissa Allen, 12 Pondview Road (continued from 1/25/07).   There was no one present to represent the applicant, and Drew has not heard from her.  This is the second hearing to be scheduled, and if it is continued there will be a fine charged.

Motion was made, seconded and unanimously carried to approve a continuation to February 22nd at 7:21 p.m.  Drew will advise the applicant of this continuation to confirm her request for this.

7:15 p.m., John West, 28 Russell Road (add fill around the foundation in order to bring the land above flood plain elevation).  Mr. West described the plan.  Drew said this is a simple project and recommended approval.

Motion was made, seconded and unanimously carried to approve this RDA.

7:18 p.m., Marion Augusta, 99 Monomoscoy West Road (vista pruning and the planting of five cedar trees).  Patrick Connolly represented the applicant.  Drew said Steve and he visited the site and it didn’t look like they were taking full advantage of the vista corridor that they can have and there were some discrepancies on the dock.  He said we can approve this project and just amend the plan to incorporate the vista view which they had underestimated.  

Cass asked if they are going with the two vista corridors in addition to the dock area.  She remembered that we had a huge brouha about a particularly large parcel of land on John’s Pond regarding two vista corridors in addition to the dock area.  The percentage was based on the frontage.  Drew said the overall percentage we allow is not going to be exceeded.  Cass said the same standard that we used in the earlier similar situation has to be used here.  Steve said we always require that one of the vista corridors be towards the dock, and there is no prohibition from someone breaking up the corridor.  In one case we told them we could give them 100 ft. of corridor because the property was so extensive. In fact we encourage people to break it up.  We should really take a look at it in the summer and punch five 10 ft. holes, rather than have one large barren area.  Cass said she doesn’t disagree and it’s fine with her, but that is not her recollection.  

Motion was made, seconded and unanimously carried to approve this NOI, pending a revised plan.

7:21 p.m., Gwen Bettencourt, 278 Algonquin Avenue (construct a single family home with associated appurtenances).  Jack Vacarro represented the applicant and described the plan.  Steve said this project is very similar to the Liebman’s.  It is just outside zone 2 and it meets all the performance standards.  We would rather see something of a smaller scale, but this is a case where a house could not be built on this lot unless it went into the buffer zone.  Steve thought for sure that the Health Agent had previously said it was in zone 2, but he has approved a three-bedroom septic system, so obviously it is not in zone 2.  Cass asked if we could look at the map too.  Steve said that’s not our purview – that’s the Health Agent’s decision.  

Cass begged to differ on that because if it is in zone 2 and we disagree that it is, then we have to say they can’t just have a regular septic system. If Lloyd says he’s looked at the map and it is his recollection that it is in zone 2, it’s worth a check.  Steve again said that’s the Health Agent’s purview.  Our regulations say something completely different when it comes to bedrooms.

Regarding the driveway, Mr. Vacarro said he thinks the Fire Department would prefer that it be as shown on the plan.

Mike Cannata, an abutter, said when he got a permit to build his house, he was told that he could not have any more than a two-bedroom house.  This proposed house is on a tiny lot, and they’d almost be sharing the plumbing.  His concern is that the applicant is not planning to live there, but is trying to increase the salability, because the lot was for sale for quite some time, and he thinks any buyers would fear that getting approval for a house would be insurmountable.  So he’d like to make absolutely sure what zone it’s in.  Steve agreed that zone 2 is very close and he offered to make a copy of the email from the Health Agent for Mr. Cannata.  Ralph said it ought to be confirmed.  Steve said he could ask Glen to double check the zone.

Cass asked is we shouldn’t have a landscape plan and require mitigation, and Steve said that can be part of an amended order.  

Motion was made, seconded and unanimously carried to approve this NOI, pending confirmation of the zone between the Conservation Agent and the Health Agent.

7:24 p.m., Donald Barton, 236 Monomoscoy Road (demo existing retaining wall and construct a new wall in same footprint).  Mark Burtis represented the applicant and described the project.  Drew recommended approval.

Motion was made, seconded and unanimously carried to approve this RDA.

Meeting adjourned at 8:50 p.m.

Respectfully submitted,

Frances Wise, Board Secretary


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