Approved Conservation Commission Mtg Mins
Approved
Wellfleet Conservation Commission
Meeting Minutes
November 18, 2020
Remote Meeting
Attendees: Deborah Freeman, John Portnoy, Michael Fisher, John Cumbler, Leon Shreves, Barbara Brennessel, Ben Fairbank, John Portnoy and Agent Hillary Greenberg Lemos
Attending also is Denny O’Connell and Christine Bates, Committee Secretary
4:00 - Business Meeting & Conservation Agent's Report
Agent Greenberg-Lemos
Mail / Discussion
Chair Deborah Freeman explained the new orders from the Governor stating that all applications received to date by the Commission have to be opened by Dec. 21. We currently have two cases which have been scheduled for December 16. There will be two hearings on Dec. 2 regarding revetment repairs. We also have an outstanding application for 1440 Chequessett Neck Rd. for emergency coastal-bank protection; however, the Commission’s agent was unable to act in the brief time allotted, so the DEP now has jurisdiction to approve or not. DEP reached out to Agent Greenberg for a site visit; however, she responded that she would not attend with them due to the litigation. She has not received anything back from DEP as yet. The Commission would lose jurisdiction if DEP makes a decision. The Commission can only do an emergency certification to abate an emergency, i.e. if a structure were to fall over the coastal bank. We have never before removed a coastal structure to avert a collapse.
Square footage of disturbance: Agent Greenberg-Lemos reviewed the bylaws and regulations governing a disturbance in the Buffer Zone (Please see Regulation 2.01(d). There are different dates affecting the subject property as well as the size of the disturbed area. Section 2 of the regulations identifies the limitations. New disturbance within the within the 100 Foot Buffer is allowed up to a total of 3000 square feet if the lot was recorded prior to 11/10/2003. No disturbance can take place within the 50 Buffer Zone unless it results in an improvement in the environmental conditions. In addition, no new structure or addition shall be located closer to a wetland resource than already exists. The disturbed area shall not cumulatively exceed 5000 sq. ft. within the 100 foot Buffer Zone. The Commission must review each structure within the Buffer Zone. Horsley Witten wants to revise the regulations on this topic to make them clearer.
When reviewing a request for an Emergency Certifications, we have a limited area in which we can permit and it cannot be more than 5,000 sq ft. If we are dealing with structures and coastal structures, we need to look at each property separately because the regulations do not specify coastal structures (revetments). Barbara Brennessel stated she believes we should look at the total property and use the 5,000 square foot calculation and include the area of any coastal engineering structures in the total. Agent Greenberg-Lemos stated we need to know how much alteration is old and new (within the 100’ buffer zone). If a lot has been divided, it would be a new recording. We need to make sure we are under the right section of the regulations. We can grant variances if there is good reason. There was a question regarding structures close to wetlands that may predate wetland regulations. Agent Greenberg-Lemos read the bylaws for the Commission. If we allow someone a variance and another applicant would like a similar project, the Commission must look at each case separately; i.e. we are not constrained by precedent because site conditions are unique.
Conservation Restriction at Old Kings Hwy: Michael Fisher, John Portnoy and Deborah Freeman recused themselves. Denny O’Connell provided a description of the Conservation Restriction for 3.65 acres belonging to Janet Reinhart. He stated we need to send a note to the Select Board recommending the Conservation Restriction. Barbara Brennessel moved that the Commission write a letter to the Select Board; seconded by John Cumbler. VOTE: Leon Shreves aye, John Cumbler aye; Barbara Brennessel aye; and Ben Fairbank aye.. 4-0-3. After the vote was taken, Ms. Freeman, as a private citizen, expressed her gratitude to Janet and family for doing this.
Jurisdictional Opinions – to be heard later.
Violation: 135 Old Truro Road Mr. Kaplan, owner, stated they are building a new 1,250 sq. ft. house within the 100’ buffer zone. He explained there are narrow decks which allow for egress from the house. The Building Codes required stairways from the decking due to the height of the decking. Deborah Freeman stated the original plans submitted to the Commission did not include the decking or stairs and requested a new site plan to see how it differs from what was permitted. She stated she wants a stop work order for the property. According to Mr. Kaplan, the Building Inspector stated they have to have the stairs or they will not receive a CO. Mr. Kaplan stated he has to abide with the building codes as well. Mr. Kaplan stated there is an existing cabin which was moved to another part of the property and will come back before the Commission for an after-the-fact filing. The Commission requested an “as-built” for what is built on the ground and will make a site visit. John Portnoy, as Site Supervisor, was not notified. A silt fence is being overtopped allowing soil to spill toward the adjacent wetland; Kaplan said that this would be repaired.
Agent Greenberg-Lemos stated the Wellfleet Harbor Conference will be held this weekend
Tree discussion:
Jeremy Young and Ken McPhee came before the Commission for a discussion on when trees need to be removed. Mr. McPhee stated pitch pines with turpentine beetle, which are native, should be removed for safety issues. If a tree falls within the buffer zone, he believes it should be removed to protect other pine species. John Portnoy stated we want to save the natural system and not remove all the diseased trees and Mr. McPhee responded he looks at what impact disease will have on other trees. He stated they could mitigate with replanting trees or shrubs. Mr. McPhee stated if a top of a tree blows over and is not an issue with a building, he would recommend pruning and let the tree start to grow again. The more habitat the better. Mr. McPhee stated there is a small amount of southern pine beetles on the Cape and if we have warmer winters, the population will grow. John Cumbler stated our concern is not solely healthy trees but a healthy eco system and it is the mix that provides for the variety of species, even with some dead trees.
Meeting Minutes: Barbara Brennessel moved to approve the amended 11/4/20 meeting minutes; seconded by Michael Fisher. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Michael Fisher aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0,
Michael Fisher moved to suspend the business meeting at 5:00 pm; seconded by Barbara Brennessel. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Michael Fisher aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0,
5:00 - Public Hearings:
Mandell Family Realty Trust (c/o Marion Fontaine), 41 9th St., Map 40, Parcel 155, NOI, construct single family dwelling including septic system, well, underground utilities, driveway and grading (Cont’d) At the request of the applicant, Barbara Brennessel moved to continue to Dec 2, seconded by Michael Fisher VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Michael Fisher aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0,
Sheetz, 125 Marven Way, Map 21, Parcel 26, NOI, tree removal, repair walkways, expand deck, construct small platform, removal of trees and pruning for view corridor (Cont’d). Mike and Ellen Sheetz, David Lajoie and Jeremy Young participated in the hearing to represent the project. Mr. Sheetz gave a history of the property and stated they made revisions to the original plan. In the front of the house and side of house, there will be some tree removal which will be replaced with cedars (or equivalent). They would like to change the deck by reducing the size and eliminate the square footage by 30 sq. ft. There is an area on the deck which is open and they would like to fill that in with decking. The total amount of addition square footage would be 93’. They will not remove the tree by the deck. They would like to eliminate the raised bed and replace with permeable blue stone. They would like to put a platform in an area that has no vegetation and the total square footage would be 98 sq. ft. The total disturbance for this project is 191 sq. ft. including the deck and platform. For mitigation, they are proposing 409 sq. ft. of bearberry to mitigate erosion. The Commission can have up to 5,000 sq. ft. total disturbance and there is already 13,578 sq ft of disturbance on the property, including the tennis court The deck project and platform are within the 50’ buffer zone and we cannot permit them under current regulations. David Lajoie stated they asked for a variance for that. Mr. Sheetz stated they feel they are providing substantial mitigation and they are reducing the size of the decking and they would like to maintain the tennis court which has been there at least 60 years. John Portnoy stated sea level is rising faster and faster and drowning salt marshes throughout Wellfleet Bay, so existing marshes caught between sea-level rise and shoreline development will be lost forever. This background, plus the fact that the tennis court occupies 6000 (of a total 13,000) square feet of disturbance immediately landward of the marsh otherwise available for landward marsh migration, argues for tennis court removal as mitigation, providing a significant public benefit. Mr. Sheetz said he did not wish to remove the court and restore that area. Deborah Freeman stated they are in violation of the regulations now with the huge extent of disturbance of the property. The Commission agreed they would allow the “fill in” of decking where there is nothing. Jeremy Young stated if the net increase was 0 of the disturbed area for the deck, would that work. Since the tennis court predates our regulations, that reduces the amount of disturbance. Michael Fisher stated this property was subdivided a couple of years ago and questioned if this was recorded prior to 2003 and under which of the regulations would fall under. The original division was done in 1975. The most recent subdivision was in 2017 and the regulations allow no new work within the 100’ buffer zone. Mr. Sheetz will come back with an emphasis on “one for one” with a revised deck plan and a planting plan identifying the size and number of plants. Jeremy Young asked if they could replace the pre-existing walkway around and out from the house due to safety issues. The blue stones are uneven and pose a hazard. John Cumbler recommended using the raised bed for plantings as mitigation. They requested a continuation to 12/2/20. John Cumbler moved to continue to 12/2/20; seconded by Michael Fisher. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Michael Fisher aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0,
Martin, 135 Samoset Ave., Map 28, Parcel 105, RDA, repair driveway with ¾” bluestone gravel and replace rotted timbers with cobblestone. Deborah Freeman stated the 100-ft buffer was mistakenly measured from the high-tide mark and not the coastal bank; however, this did not affect the Commission’s acceptance of the project. John Portnoy identified the RDA as a Negative 3; seconded by Michael Fisher. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Michael Fisher aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0,
Fitzsimons, 100 Ione Rd., Map 28, Parcel 69, RDA, Install stone path around 3 sides of house. Michael Fisher recused himself. The entire property is within the flood zone. Ms. Fitzsimons gave an overview of the project, stating the design changed in the front of the house forming a “v”. She tried several different grasses in the past which did not take and therefore wanted a stone path. She said there would be a 4” deep path and the pavers would lie on top of the sand and will be pervious. There will be no cement dust used. Agent Greenberg-Lemos calculated there will be a disturbance of 3,041.5 sq. ft. which was previously disturbed. The flood waters would percolate through the disturbance. John Portnoy requested a new site plan for the files for completeness. John Portnoy identified the RDA as a Negative 2; seconded by Leon Shreves. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Ben Fairbank aye; and Deborah Freeman aye. 6-0-1
Tritle, 50 W. Main St., Map 14, Parcel 30, NOI, set 4 diamond pier footings for construction of laundry addition. Michael Fisher recused since the Wellfleet Conservation Trust is a direct abutter. Jack Wishhart represented the applicant and gave an overview of the project which is 100 square feet. This is outside of the 50’ buffer zone. Barbara Brennessel moved to approve the NOI; seconded by Leon Shreves. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; Michael Fisher recused; John Cumbler aye; Ben Fairbank aye; and Deborah Freeman aye. 6-0-1.
Baker & Elsesser, 210 Kendrick Ave., Unit 2, Map 20, Parcel 29 B, NOI, Install landscape elements including driveway, terraces, seat wall, storage shed, steps, pergola, lawn area and grill, replace existing fence and revegetate. Lauren Cronin of Gregory Lombardi Design represented the applicant and provided an overview of the project. For any disturbance, native vegetation will be planted. There was initially a fence on town property. Deborah Freeman stated she is concerned with lot coverage with the proposed shed and the use of Town land by a private party. The two immediate abutters came before the Commission to state that the project was satisfactory to them. This project is asking for paving, shed within flood zone, increased disturbed area, sone work within the 50’ buffer zone and potential fertilizer use. Lauren Cronin stated they will be creating a better environment because everything is sand now. The Commission does not like the lawn, there will be too much stone paving, and concern with the shower without a drain. Ms. Cronin requested a continuation to December 16, 2020. Michael Fisher moved to continue to December 16, 2020; seconded by John Portnoy. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; Michael Fisher aye, John Cumbler aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0
Woodes, 55 Commercial St., Map 15, Parcel 101, Amended Order of Conditions, utilize a different I/A Septic Technology. Ann Suggs represented the applicant and stated the Board of Health approved the proposed septic system. The septic system will be relocated in a different location. The Commission requested a planting plan be submitted. The black pine needs to be removed and bayberry was recommended for revegetation. John Cumbler moved to approve the Amended Order of Conditions; seconded by Ben Fairbank. VOTE: Leon Shreves aye; Barbara Brennessel aye; John Portnoy aye; Michael Fisher aye, John Cumbler aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0
Medeiros, 270 Holbrook Ave., Map 14, Parcel 168, RDA, remove existing cottage and construct new cottage in same area within 100’ of isolated vegetated wetland. John Portnoy recused himself. Jason Ellis stated they have 2 existing cottages in the back and want to replace one of the cottages. He described the property and stated the new cottage would be placed farther than the existing cottage from the wetland, Wesley Swamp, an isolated fresh-water wetland; therefore, this is a filing under Wellfleet local bylaws and not the WPA. The new cottage will be a single floor and the same size and height. Barbara Brennessel identified the RDA as a Negative 3; by John Cumbler. VOTE: Leon Shreves aye; Barbara Brennessel aye; Michael Fisher aye, John Cumbler aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0
The business meeting was reopened 6:40 pm.
Jurisdictional Opinion:
Winslow 165 Long Ave, septic system upgrade, work limit encroaches buffer zone (100’). Barbara Brennessel moved to approve the Jurisdictional Opinion; seconded by Michael Fisher. VOTE: John Cumbler no; John Portnoy aye; Ben Fairbank aye; Barbara Brennessel aye; Leon Shreves aye; Michael Fisher aye; and Deborah Freeman aye 6-1
Goldman: remove one tagged tree infested with turpentine beetle, posing hazard to stairway. No selective pruning. Jeremy Young will file a planting plan with a 3 to 1 replacement. Agent Greenberg-Lemos will look at the site. John Cumbler moved to approve the Jurisdictional Opinion; seconded by Leon Shreves. VOTE: Leon Shreves aye; Barbara Brennessel aye; Michael Fisher aye; John Cumbler aye; John Portnoy aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0.
Jeremy Young asked for direction on the filings of Jurisdictional Opinions, RDAs and NOIs.
Ziering – remove tall pitch pine closest to house. Agent Greenberg-Lemos stated a site visit was made by the office. Michael Fisher recused himself. Barbara Brennessel moved to approve the Jurisdictional Opinion; John Cumbler seconded VOTE: Leon Shreves aye; Barbara Brennessel aye; John Cumbler aye; John Portnoy aye; Ben Fairbank aye; and Deborah Freeman aye. 6-0-1.
Agent Greenberg-Lemos stated an Emergency Order/Certification is only good for 30 days (start and finish of work).
Agent Greenberg-Lemos reported that the dock will be moved to the water again at the Coser / Perin, 210 Butry Way property. They will be filing a RDA in the future.
Leon Shreves moved to adjourn at 6:55 pm; seconded by John Cumbler. VOTE: Leon Shreves aye; Barbara Brennessel aye; Michael Fisher aye, John Cumbler aye; John Portnoy aye; Ben Fairbank aye; and Deborah Freeman aye. 7-0.
Respectfully submitted,
Christine Bates, Committee Secretary
Documents:
Conservation Restriction paperwork
Letter requesting a continuation from the Mandell Family Realty Trust
Sheetz: Revised site plan
Martin: RDA paperwork and back up
Fitzsimons: RDA paperwork and back up
Tritle: NOI application and back up
Baker & Elsesser: NOI application and back up
Woodes: Amended Order of Conditiions: application and back up
Medeiros: RDA paperwork and back up