Approved Conservation Commission Mtg Mins
Approved
Wellfleet Conservation Commission
Meeting Minutes
December 2, 2020
Remote Meeting
Attendees: Deborah Freeman, Michael Fisher, John Cumbler, Ben Fairbank, Leon Shreves, Barbara Brennessel, John Portnoy, Agent Hillary Greenberg Lemos, and Christine Bates, Committee Secretary.
5:00 - Public Hearings:
Kandell, 60 Bay View Ave, Map 35, Parcel 37, NOI, Revetment Repair. Erica Norman of Coastal Engineering represented the applicant and gave an overview of the project. Stones need to be removed and replaced. The stones are 10 feet wide and will be at elevation 12 and extend a total of 92 linear feet (1,000 square feet). Ms. Norman stated access would be over the Vecchio property on Old Wharf Road through their driveway with no impact on their septic system. An e-mail giving permission from the abutter (Vecchio) will be sent to Agent Greenberg-Lemos. There are already beach renourishment requirements on this site. The project will take one day to complete. John Portnoy moved to approve the NOI; seconded by Barbara Brennessel. VOTE: Leon Shreves aye, John Portnoy aye; Barbara Brennessel aye; Ben Fairbank aye; John Cumbler aye; and Deborah Freeman aye. Michael Fisher recused himself. 6-0-1. Condition: preconstruction visitation with shellfish constable. Supervisor: Deborah Freeman
Laural Nominee Trust (Zimmerman), 715 Chequessett Neck Rd., Map 19, Parcel 113, Request for 2 year extension. Agent Greenberg-Lemos spoke with the representative and the applicant wishes to finish up the project such as landscaping and ensure the plants will survive. Due to an error in the address in the legal ads, this hearing will be continued to 12/18. Barbara Brennessel moved to continue to 12/16/20; seconded by Michael Fisher. VOTE: Barbara Brennessel aye; John Portnoy aye; John Cumbler aye; Ben Fairbank aye; Leon Shreves aye; Michael Fisher and Deborah Freeman aye. 7-0.
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) Stephanie Sequin and Jen Crawford represented the application. Ms. Sequin stated the house size has been reduced and the building rotated to accommodate an existing right of way to the east. The well and septic location will be located in the northwest corner of the property. An Advantax I/A treatment system will be used. There will be no crawl space or foundation for part of the building. The proposed second floor deck will have an 8 foot height which allows the area below to be vegetated. The planting plan mitigation will restore the temporary disturbed areas as well as those already disturbed. Ms. Crawford stated post construction disturbance will be 2,969 sq. ft. within the 100 foot buffer zone. The current disturbance on the property is 3,111 sq ft. John Portnoy wanted a condition stating that, because this is a completely new construction, it will not be eligible for shoreline protection any time in the future. The open porch is included in the area of disturbance. Jen Crawford provided an overview of the proposed plantings which include over 200 shrubs. Over 4,000 grass plants will also be planted. A rain- water system will be used for irrigation to get the plants established and dry wells will be utilized for roof run off. The required survival rate would be 90% over a 3-year period. Portnoy pointed out that, given the sensitivity of the groundwater aquifer, no groundwater should be used for irrigation, and the project should be so conditioned.
Ms. Freeman opened up the meeting for public comments: Jean Kampas, Attorney for Mr. Thaler, an abutter, stated the biggest concern is the water quality, water quantity and impact to the neighborhood. There was discussion regarding the current salinity of the water, the potability of the water, and the flow of the aquifer. Water samples are expected to be completed next week for this property. Agent Greenberg-Lemos stated the original house was a three-bedroom dwelling and the proposed house will be three bedrooms. Ms. Kampas expressed concern that the prior bedrooms were very small in size and the proposed dwelling is very large and there will be a significant increase in use. Mr. Thaler stated there will be a higher demand on the water pressure and water quality. After further discussion regarding the increase in habitable space, Agent Greenberg-Lemos stated there have always been issues with the salinity of the water at Lt. Island and the proposed 3 bedroom dwelling will be within the Board of Health regulations as well as the Building Code. Jamie Rice, an abutter, stated it appeared the proposed well is only 8 feet from his well and he is concerned with the amount and quality of water his property will receive to which Ms. Sequin remarked it is 18 feet between wells. Several people stated their water heaters burn out due to the salinity of the water. Ms. Sequin stated the property does not encroach upon 9th Street and will not impact Mr. Rice’s approach to his house. Mr. Rice will supply information regarding his water quality results to the Conservation Agent. Ms. Fontaine, abutter in the family that owned this property for many years, stated the water has tasted terrible for many years. Christine Young, 31 9th St., stated she believes the aquifer flows from north to south and questioned if the foundation for the proposed dwelling will diminish the water flow to her property. Ms. Crawford stated no vegetation along the coastal bank will be removed and they are willing to replace vegetation if it were to die. Ms. Kampas stated the Board of Health regulations state water must be drinkable. She also stated there are legal easement issues which require a court order and/or permission from Mr. Thaler to alter the easement. and Agent Greenberg-Lemos replied that issue is out of the Commission’s jurisdiction. Mr. Thaler reiterated he had water testing performed as well as the McDonalds and will submit the results to the Agent. Mr. Rice asked what his recourse would be if his well went dry and Agent Greenberg-Lemos stated it would be a legal litigation where he would have to prove water withdrawal from this property created the problem. Further discussion took place regarding the water quality; however, no one presented evidence that groundwater quality, however poor, was getting worse or that this project would impact that situation..
Barbara Brennessel moved to approve the NOI with conditions (no CES ever and no use of groundwater for irrigation); seconded by John Portnoy VOTE: Barbara Brennessel aye; Leon Shreves aye; John Portnoy aye; Ben Fairbank aye; John Cumbler no; Michael Fisher aye; and Deborah Freeman aye. 6-1. Supervisor: Ben Fairbank
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) At the request of the applicant, Barbara Brennessel moved to continue to 12/16/20; seconded by John Cumbler. VOTE: Leon Shreves aye; John Portnoy aye; Ben Fairbank aye; John Cumbler aye; Barbara Brennessel aye; Michael Fisher aye; and Deborah Freeman aye. 7-0.
Bouza, 40 Weetamoo Way, Map 29, Parcel 417, Certificate of Compliance Paula Dabmun spoke on behalf of the applicant and stated the house is on the market. Paperwork was not located to determine what the project was and the Commission requires additional information such as plans or previous filings. The Order of Conditions goes back to 1987. All parties will try to locate some backup to the request. Ben Fairbank moved to continue to 12/16/20 seconded by Barbara Brennessel. VOTE: Michael Fisher recused because the property is an abutter to Conservation Trust property. Leon Shreves aye; John Portnoy aye; Ben Fairbank aye; John Cumbler aye; Barbara Brennessel aye;; and Deborah Freeman aye 6.-0-1. .
Black, 85 Chequessett Bluff Rd., Map 19, Parcel 138, RDA, Septic Upgrade. Jason Ellis represented Mr. Black and provided an overview of the project, stating the cesspool will be eliminated; it is within the buffer zone. The new septic system will be out of the buffer zone. John Cumbler identified this as a Negative 3; Barbara Brennessel seconded. VOTE: Leon Shreves aye; John Portnoy aye; Ben Fairbank aye; John Cumbler aye; Barbara Brennessel aye; Michael Fisher aye; and Deborah Freeman aye. 7-0.
Mary Ring Trust and William and Beth Meister, 265 and 295 King Phillip Rd., Map 34, Parcel and Map 35, Parcel 198, NOI, remove and prune selected trees for view corridor. Charles Wentz from Ponderosa Landscaping stated both property owners are in agreement with the project that affects both their properties. 70 shrubs will be planted between the properties for mitigation and a temporary above ground drip irrigation system will be used. The planting ratio is 5 to 1. Barbara Brennessel expressed concern with the “crown” pruning and how it will affect habitat because the pines have only top growth and its removal will eliminate canopy cover. Bartlett Tree will be doing the work and it will be selective pruning. There will be the removal of 9 pine trees to create a view corridor on the Meister property and John Portnoy stated that these should be replaced with native species of shrubs and small trees (e.g bear oak, shad, winterberry) that will not grow tall enough to obstruct the Ring’s or Meister’s vistas. Michael Fisher moved to approve the NOI; seconded by John Portnoy VOTE: Leon Shreves aye; John Portnoy aye; Ben Fairbank aye; John Cumbler aye; Barbara Brennessel aye; Michael Fisher aye; and Deborah Freeman aye. 7-0.
Supervisor: Barbara Brennessel
Stuart, 240 Bayberry Lane, Map 41, Parcel 127, RDA, Install 3 retaining walls, install steel edge around perimeter of base of deck, remove existing brick landings at rear of house and replace with stepping stones, install stepping stone path, stone steps, dig holes at base of downspouts, fill with gravel. Seed all disturbed area and mitigate and vegetate. Charles Wentz from Ponderosa Landscaping represented the applicant and provided an overview of the project. He stated there is erosion in the area and the gravel will help divert the runoff and hold the soil back. The holes for the downspouts will help with run off. He stated they will use native plants and drip irrigation. The stepping stones will have gaps to allow water to flow through. John Cumbler identified the RDA as a Negative 3; seconded by Barbara Brennessel VOTE: Leon Shreves aye; John Portnoy aye; Ben Fairbank aye; John Cumbler aye; Barbara Brennessel aye; Michael Fisher aye; and Deborah Freeman aye. 7-0.
4:00 - Business Meeting & Conservation Agent's Report
Chair Freeman announced that the Commission’s proposed new environmental regulations are in the process of being drafted and if anyone would like to make recommendations they should submit them in writing to the Agent. A public hearing will be held in the future on the draft regulations.
Hoeland Trustee, 1440 Chequessett Neck Road, Map 18, Parcel 7, Emergency Certification, proposed shorefront protection.
Chair Freeman stated the Emergency Certification is under the Wetland Protection Act only and is not a part of the pending litigation. Any determination made today by the Commission will not be a part of the litigation.
Attorney Ben Zehnder, John Harrison, Civil Engineer, Seth Wilkinson and , Don Monroe represented the applicant. Attorney Zehnder stated this was sent to the Town, then forwarded to DEP, who then referred it back to the Town for local certification. A site visit was made with the Commission. Seth Wilkinson stated the area has been nourished 2 times in 2019 with continuing erosion, but that no beach nourishment had taken place in 2020. The proposed soft solution would include using coconut woven fiber envelopes filled with sand and pinned in place on the seaward side with approximately thirty (30) 8-inch-diameter cedar pilings spaced eight feet apart. Pilings would be driven into the sand to a depth of 8 or 9 feet deep with a 2 to 3 feet height out of the sand. Additional sand would be placed over the envelopes.
If there were additional erosion to the bank in the future without a solution, the foundation and house would be in jeopardy, the Applicant contends. This is not a permanent intervention but will hold the sand in place longer than the past beach nourishment treatments. The last nourishment was done in November 2019. There will be 1,000 to 1,500 cubic yards of sand used in this new proposal. During the winter months, ice would be able to ride up over the envelopes. If the envelopes were to become dislodged by wave action and move onto abutter property or into the water, they can be moved around by hand and they degrade faster as they are ½ inch thick. In water, the envelopes break down over a 2 to 3 year period.
Attorney Amy Kwesell stated the Commission has to determine if this situation at the subject property is an emergency and the Commission can only refer to the documents in front of them. She stated that neither the Building Inspector nor the Health Agent had declared this situation an emergency. DEP stated the application did not need all the work requested to abate the emergency. Ms. Kwesell reminded the Commission the owner has an outstanding order of conditions and nourishment which can continue. If the Commission determines there is an emergency, work is required to be completed in 30 days and an after the fact NOI will need to be filed with conditions. The Emergency Certification is only for the protection for public health and safety.
Nate Jones stated a survey showing the erosion on the property was done on Sept 18, 2018 and another survey in August of 2020. The erosion shown was 7 feet per year. Between the two surveys there was 6,000 cubic yards of beach nourishment sand which had been placed on the bank and there was still about 7 feet of erosion occurring. The most recent survey was done after the nourishment. Nate Jones described the top of the bank and photos from the bottom of the bank identifying significant erosion and the undercutting of the scarp at the top of the bank. The vertical portion could fall at any moment. The deck and hot tub are one foot away from the scarp. The main dwelling is approximately 12 feet away from the top of the scarp.
Attorney Zehnder is not aware when the Blasch’s will be at the property next but they do continue to visit and stay there currently from time to time. He feels this is a safety issue for the public walking on the beach with the potential for material on the beach and potential material falling from the bank. There is a septic leach pit imbedded in the coastal bank farther south on this property; Zehnder stated that if removed at this point in time, it could cause more problems with keeping the bank stable. The size of the equipment for the proposed emergency project is small, but to remove the septic tank would require a very large crane, for which there is no access to the beach.
John Harrison, the Project Engineer, provided details about the construction of the house which utilized helical pilings to support the concrete slab of the deck and kitchen. The piers were drilled in strategic locations to hold the concrete slab which results in a small crawl space. If sand or earth is removed around any one of the approximately 15 pilings, the pilings would bend, transferring their load to adjacent pilings, which could subsequently bend and fail in a domino effect.. There are no safeguards in the design. All the pilings under the kitchen could consequently collapse. The weight of the concrete slab is approximately 75,000 lbs and it could rip away from the house and fall onto the beach. Harrison stated that he is unable to predict when the pilings could fail, He estimates there are 15 to 20 helical pilings. He is concerned with the ones closest to the bank. The house was designed using the helical pilings because they couldn’t use (were prohibited from using by ConsComm because of disturbance to the coastal bank??-JP) a standard foundation. He has not made a site visit within the last year.
Attorney Kwsell stated the Commission could approve elements of the plan. Lauren McKean of the National Seashore questioned if the timber piling design is a CES because there would be no no openings. Ms. Kwesell stated that there is a current case where the DEP Secretary overturned a determination regarding the use of such pilings and that decision is now in court. She stated the Commission needs to look at how many pilings there will be, how close they are placed together and is there any other way to keep the pilings in place. Will there be scouring to the abutting properties? Seth Wilkinson stated they could move forward by filling envelopes with sand and not using the pilings, as this would be better than loose sand without toe holds. He stated the envelope would fully eventually deflate and sand can pass through it but at a slower rate than loose sand. He has not observed scouring with the envelopes. If there were any adverse effects it would be confined to this property.
Lauren McKean questioned if a larger crane could be used to remove the septic leach pit and asked the applicant was aware that NPS would have to issue a permit if construction is below mean-high water. Attorney Zehnder responded this is not NSP land but if they need permission, it would be independent from this Board. Lauren stated the NSP has jurisdiction over submerged lands, public or private within CCNS property. Seth stated there is no room for the crane on the Blasch property and he doesn’t believe they could get it close enough to the path to remove the pit. He stated it would have to be a barge intervention.
Seth Wilkinson stated they can commit to filing a NOI within 30 days and there would be just the envelopes, i.e. no pilings. There would be a bond put in place to ensure the property is restored and all equipment is removed. Discussion took place as to what the amount of the bond should be and it was determined that $50,000 should be sufficient. The work has to be completed within 30 days. Timing of the certification is critical in order to have all parties ready to begin construction.
Michael Fisher moved to deem the request an emergency; seconded by John Cumbler. VOTE: Leon Shreves aye; John Cumbler aye; Ben Fairbank aye; John Portnoy aye; Michael Fisher aye; Debbie Freeman aye and Barbara Brennessel abstain. 6-0-1
Michael Fisher moved to allow envelopes filled with sand be placed on the property without the use of pilings / poles; seconded by Leon Shreves. VOTE: Leon Shreves aye; Ben Faibank aye; John Portnoy aye; Michael Fisher aye; Deborah Freeman aye; and Barbara Brennessel abstain. 6-0-1
Agent Greenberg-Lemos requested communications with her be during business hours. She will issue the Certification when the consultants request it. Seth Wilkinson asked if Monday, December 7, 2020 would work.
Michael Fisher moved that a bond of $50,000 be placed with the town with terms resolved between the Agent and the Attorney for the Applicant; seconded by Leon Shreves. VOTE: Leon Shreves aye; John Cumbler aye; John Portnoy aye; Michael Fisher aye; Ben Fairbank aye; Barbara Brennessel aye; and Deborah Freeman aye. 7-0.
Mail / Discussion - none
Jurisdictional Opinions - to be addressed at next meeting
Meeting Minutes – to be addressed at next meeting
Michael Fisher moved to adjourn at 8:20 pm; seconded by Leon Shreves. VOTE:. Leon Shreves aye; John Cumbler aye; John Portnoy aye; Michael Fisher aye; Ben Fairbank aye; Barbara Brennessel aye; and Deborah Freeman aye. 7-0.
Respectfully submitted,
Christine Bates, Committee Secretary
Documents:
Kandall: NOI application and back up materials
Laurel Nominee: Request for Extension
Mandell: NOI and backup, planting plan, building plans
Sheetz: e-mail requesting continuation
Bouza: Request for Certificate of compliance
Black: RDA and site plan
Mary Ring / Meister: NOI, site plan, planting plan
Stuart: RDA and site plan
Hoeland Trustee: Emergency Certificate request