The Falmouth Conservation Commission MEETING MINUTES - WEDNESDAY, MAY 2, 2018 Selectmen s Meeting Room, Falmouth Town Hall, 7:00 p.m.

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1 The Falmouth Conservation Commission MEETING MINUTES - WEDNESDAY, MAY 2, 2018 Selectmen s Meeting Room, Falmouth Town Hall, 7:00 p.m. Present: Absent: Mary Schumacher, Chair Jamie Mathews, Vice-Chair Betsy Gladfelter Maurie Harlow-Hawkes Courtney Bird Steve Patton Mark Gurnee, Alternate Kevin O Brien, Alternate Jennifer McKay, Administrator Peter Walsh, Alternate, Kristin Alexander Ms. Schumacher opened the meeting at 7:02 p.m. MINUTES 4/25/2018 Ms. Gladfelter: Move to adopt the minutes as written. Mr. Mathews: Second. Ms. Gladfelter: Move to withdraw the motion. Mr. Mathews: Move to withdraw the second. Ms. Gladfelter: Move to adopt the minutes as corrected. Mr. Mathews: Second REQUEST FOR A CONTINUANCE UNDER A NOTICE OF INTENT William Newton, 46 Waterside Avenue, Falmouth, MA For permission to upgrade existing waste water treatment system and to remove and replace invasive species with native species along with all associated clearing, excavating, grading and landscaping. Ms. McKay: The applicant has requested a continuance until May 23, Ms. Harlow-Hawkes: At the request of the applicant I move to continue the hearing until May 23, Mr. Bird: Second. Michael McGourty, Cypress Street (from 6 to 18 Cypress Street), East Falmouth, MA For permission to pave a 260-ft section of existing gravel roadway and install a storm water management system. 1

2 Ms. McKay: The applicant has requested a continuance until June 13, Ms. Gladfelter: At the request of the applicant I move to continue the hearing until June 13, Ms. Harlow-Hawkes: Second. REQUESTS FOR DETERMINATION OF APPLICABILITY Debra Rogers, 310 Dillingham Avenue (Map A-000A), Falmouth, MA For permission to construct a garage, an addition and reconfigure the parking area at the Falmouth Community Television Inc. Ms. McKay: Jurisdiction: Outside of jurisdiction. The proposed addition and garage will be constructed on the existing asphalt parking lot. The reconfigured parking area will be around the proposed addition and garage. There will be no increase in footprint. Staff spoke on the phone with Tom Bunker about the application since the project is outside of jurisdiction. We both agreed that the project is outside of jurisdiction. The applicant will not be withdrawn because the applicants would like it for their own records. Staff recommends a negative 1 (under the State and the bylaw). Resource area boundaries are not confirmed by this RDA. Mr. Bird: Move to accept staff s recommendation. Ms. Gladfelter: Second. Eel Pond Market (c/o Ben Carson), 87 Water Street, Woods Hole, MA For permission to repair and stabilize the sea wall. Ms. McKay: Jurisdiction: within 100-ft resource area buffer to coastal bank, land under waterbodies, land under the ocean, land containing shellfish and in land subject to coastal storm flowage (flood zone A). The seawall has been damaged from high tides and freeze/thaw over the winter. The mortar has become cracked and several stones have fallen out. The plan is to reuse the stones that have fallen out, using a mortar mix to hold them in place. All concrete work will be mixed by hand, placed by hand and cleaned up. Behind the wall will be hand dug, filter cloth placed on the back side and ¾-inch washed stone added for drainage. Staff recommends a negative 2 (under the State and the bylaw). Resource area boundaries are not confirmed by this RDA. Ms. Gladfelter: Move to accept staff s recommendation. Mr. Bird: Second. Richard Weinberg, 55 Girard Avenue, Falmouth, MA For permission to renovate existing lawn by removing 5 inches of old soil and sand build-up to be replaced with new soil and seed. Ms. McKay: Jurisdiction: within 100-ft resource area buffer to coastal bank, land under waterbodies, land under the ocean, land containing shellfish and in land subject to coastal storm flowage (flood zone V). Applicant wishes to remove 5-inches of existing top soil and sand build up on the seaward area of the existing house. All work will be done between the edge of the driveway, from the thin lawn of the western edge of the property to the eastern edge of the property. Grading will be done to make the area level. The removed top soil will be replaced with a 5-inch layer of compost/soil mix. Staff recommends a negative 2 (under the State and the bylaw). Resource area boundaries are not confirmed by this RDA. 2

3 Mr. Bird: Move to accept staff s recommendation. Ms. Harlow-Hawkes: Second. Mr. Bird: Is this the area where there could be a dune buildup? Ms. McKay: No, there is no dune. REQUESTS FOR HEARINGS UNDER A NOTICE OF INTENT Gregory and Michele Kozich, 25 Moonpenny Lane, East Falmouth, MA For permission to raze the existing dwelling and construct a single-family 5-bedroom house with a screened porch, deck, gravel driveway, Title 5 sewage disposal system, utilities, dry wells, driveway, and the associated clearing, excavating, grading and landscaping. Ms. McKay: No comment at this time. Tom Bunker (BSS Design) presented abutter s cards. The property fronts on Bourne s Pond and resource areas include: a salt marsh, slope, coastal bank, velocity zone at elevation 14, 50-ft zone A, 50-ft coastal bank A zone, 100-ft zone A to the salt marsh. There is native vegetation all around: oak, pitch pine, bearberry. There are locust trees, pitch pines and cedar trees on Moonpenny Lane. Mitigation is required. X s mark all the trees to be removed. Most of the trees on the landward side of the house will be removed. The project is 126-ft from the coastal bank and 143-ft from the salt marsh. Andrew Garulay (Landscape Architect) The mitigation will be planted between the coastal bank and the thick band of lawn that is thick with bearberry. I have backed the mitigation up landward. I thought I couldn t displace the bearberry to put the mitigation there. I used the Cape Cod Cooperative plant list in spacing and sizing. The planting plans have changed here since the last time I came before you. In the A & B zones three trees are coming out. There is a proposed River Birch clump and within the A zone I kept it native. Around the foundation of the house there will be ornamentals, but not invasives. The driveway is gravel with a cobble border and apron. The lawn will be maintained with no irrigation or fertilizer. Ms. McKay: The use of sweet fern please revise the plan and remove it. There will be a single rail fence at the buffer area. Falmouth has a new nitrogen control bylaw. There is to be no fertilization within 100-ft of the resource areas. I will be looking for your revision to the mitigation plan. (to Tom) Is this a 5-bedroom plan? Mr. Bunker: Yes. Ms. McKay: What is it now? Mr. Bunker: A 3-bedroom. Ms. McKay: Did they consider a denitrifying system? Mr. Bunker: I never brought it up to them. Ms. McKay: Please discuss the possibility with your client. Who owns parcel 5? Mr. Bunker: That s the lot. It s termed a parcel by the Assessors. Mr. O Brien: No questions or comments. Mr. Bird: No questions or comments. Ms. Harlow-Hawkes: There is an H10 septic tank on the plan. Mr. Bunker: It should be an H20. Ms. Harlow-Hawkes: The Creeping Juniper Jen are you okay with that? Ms. McKay: I told you the Board would look for more structure. Mr. Garulay: I m unsure what you want me to do there. Ms. Harlow-Hawkes: I m not sure about the 1 gallon blueberry. Mr. Garulay: Jen told me about that. 3

4 Ms. Gladfelter: There are a number of seedling oaks and pines. If you allow them to grow up it will become a weedy forest and hard to get through. Mr. Garulay: I met with Jen a few months ago we were discussing the possibility of removing some of the small saplings in that area. Ms. Gladfelter: People are allowed a 25-ft vista window. Go out and see where you want it and take away some of the saplings there. Mr. Bunker: How much shade can the bearberry take? Ms. Gladfelter: I like to have woody vegetation in the A zone. Mr. Bunker: There is not a lot of bearberry around. Ms. Gladfelter: You can manage the area so the trees are not as dense. Ms. McKay: Do you want him to take a portion of the mitigation plantings and scatter them about? Ms. Gladfelter: No just keep them 3-ft on center here and there. What s all that white area? Mr. Garulay: Lawn. The place is so unmaintained it s difficult to know where to put mitigation. Ms. Gladfelter: There are very few invasives and a natural buffer. You should leave the pine needles where they are now. Mr. Mathews: A place for the AC and generator is not on the plan. Mr. Bunker: I will fix that. Mr. Patton: No questions or comments. Mr. Gurnee: You re not touching anything on the bank? Mr. Garulay: Right. From bound to bound there is a secondary limit of work to make sure nothing is done past that point. Ms. Schumacher: The planting plan shows a screened porch that is not on other plan. Mr. Bunker: I will label that. Ms. Harlow-Hawkes: We are not allowing wattles now - use straw bales instead. There is a zigzag line for the natural lawn. You should bring the limit of work up further. Ms. McKay: To protect the pines. Ms. Harlow-Hawkes: Across the A buffer it is low growing and not very rugged. Mr. Bunker: You don t allow wattles anymore? Ms. Harlow-Hawkes: Right. Where you just want it as a visual it s okay. Ms. McKay: In the Order you will see a note re the limit of work stating that the use of wattles or silt socks cannot be used without staff s written permission. We may consider it on a flat site. Wattles are being misused. Ms. Gladfelter: At the request of the applicant s representative I move to continue the hearing until May 16, Mr. Bird: Second. Bonnie Campbell: I see that there is screening on one side and not the other. What will happen there? There are no plantings there. I m concerned about privacy. What is the height of the structure? Is it closer to the street? Ms. Schumacher: They are zoning questions. Our concern is not having the house move closer to the resources. Screening is not in our purview. Ms. Harlow-Hawkes: They are putting a stockade fence on that property line. Ms. Campbell: The size of the proposed structure is 10x what is was. How will that affect our situation? I m not clear where the lawn area is. Where is the screened porch vs. the deck? Ms. Schumacher: They are side by side. The deck is to your side. Ms. Gladfelter: How high from the ground is the fence? Mr. Bunker: 6 for critters. Ms. Gladfelter: The distance from the road is a zoning question also. 4

5 Ms. Campbell: How long are the new plantings supposed to last? Ms. Gladfelter: They should grow to full mature height and remain a vegetated buffer. It s ongoing with the deed. They are going to restore a healthy buffer next to the resources. Mr. Bunker: According to ZBA the house must be 25-ft from the street and this house will be 40.5-ft. The allowed maximum height is 35-ft and it will be less than that. Ms. Campbell: What is the foundation height? Mr. Bunker: 2-ft. The 35-ft is from the ground not the foundation. Ms. Gladfelter: This is a flood zone. Mr. Bunker: There are flood vents. Ms. Schumacher called for the vote. R&B Developers Inc. (c/o Tarja McGrail), 134 Menauhant Road, East Falmouth, MA For permission to remove the existing tennis court and associated fence enclosures. This area will be replaced with a recreation area with a finished landscape surface that is either pervious sand and/or shells along with the associated clearing, excavating, grading and landscaping. Ms. McKay: No comment at this time. Tarja McGrail (coastal engineer) I am representing the Inn Seasons Resort on the southeast side of Great Pond near the Pond outlet. Resource areas include land subject to coastal storm flowage, AE zone at elevation 14, BE zone at elevation 15, coastal bank, salt pond bank, 50-ft buffer from top of the coastal bank, 75-ft A zone buffer and 100-ft B zone buffer. We will remove the tennis court and surrounding fence that is upland of the coastal bank and are replacing the paved surface with shells for a small recreational area including a small mini-golf course, pergola and planter boxes with vegetation on the perimeter defining the space. We are removing 6700-sq.ft which, absent the storm water runoff, will improve the buffer reducing runoff toward the bank and prevent erosion. Mr. Gurnee: No questions or comments. Mr. Patton: No questions or comments. Mr. Mathews: No questions or comments. Mr. Gurnee: I don t see the mini-golf on the plan. Ms. McGrail indicated where it is. Mr. Gurnee: Oh I see it s very tiny. Ms. Gladfelter: No questions or comments. Ms. Harlow-Hawkes: No questions or comments. Mr. Bird: No questions or comments. Mr. O Brien: No questions or comments. Ms. McKay: I will need a revised plan showing the 25-ft offset from the B zone in the Falmouth regulations. We will condition the coastal storm flowage 25-ft offset to the B zone. I went to the site with the landscaper and it will be a big improvement. Ms. Gladfelter: Move to close the hearing and take it under advisement. Mr. Bird: Second. Mr. Mathews: Would you take a look at the existing erosion control? Ms. McGrail: Yes, I will. William Newton, 46 Waterside Avenue, Falmouth, MA For permission to upgrade existing waste water treatment system and to remove and replace invasive species with native species along with all associated clearing, excavating, grading and landscaping. 5

6 The hearing is continued until May 23, CONTINUED REQUEST FOR A HEARING UNDER A NOTICE OF INTENT Ms. Schumacher and Ms. Gladfelter recused. Town of Falmouth, Marine and Environmental Services Department, Waquoit Bay Estuary (along the shore of the Waquoit Bay National Estuary Research Reserve), Waquoit, MA For permission to conduct a demonstration project to evaluate oyster growth and the sedimentary nitrogen removal efficiencies for standard oyster biomass of three different aquacultural systems. The aquaculture systems include the installation of floating bags, mid-water OysterGro cages, and bottom trays. The total project area is approximately 8,072 square feet. Quorum: Kevin, Steve, Jamie, Maurie, Courtney Ms. McKay: No comment at this time. Mr. Mathews: From what I have seen, we have everything we need. Ms. McKay: We have received the shellfish survey report and all the photos. As for the water depth information we wanted it plotted on the plan, but it was not. Ms. Harlow-Hawkes: We received the information re the water depth from an , but it is not on the plan as we asked. We have tried to work with them so they can go forward and it s disappointing to me that there is nothing on the plan. This information is important because the depth of the cage is 2-ft and at low tide it s hard to know if the cage would be underwater without that information. We also asked for a plan re the possibility of diseased animals being taken out of there. I know there were a couple of letters but the last one is not in the file. Chuck Martinsen (Shellfish Constable) Don t worry about diseases. Even if they are diseased they can still be harvested and consumed. Ms. Harlow-Hawkes: I m not worried about that, I m worried about the effect on the other shellfish. Mr. Martinsen: They would have to be histologically tested to get another certificate. You can t just willy-nilly move stuff. The one time that we couldn t move them, they weren t lost. We seeded and they were fine. Mr. Gurnee: No questions or comments. Mr. Mathews: You have different set-ups all around Town with all different make-ups. Mr. Martinsen: We have representations of all 3 types around Town. We are using this gear because it is the most used. Mr. Mathews: Why can t you take samples from another place and combine them with these? Mr. Martinsen: You re talking from a chemical perspective. Dan Rogers (Professor at Stonehill College) It s important to have the same sediment type, same water movement and chemistry all around it. The water here is drastically different from water in West Falmouth. In order to control from that and to understand what the animals are doing, etc. we have to have the same water. Mr. Mathews: Okay. Ms. Harlow-Hawkes: We also asked for their procedure in the case of a hurricane. Ms. McKay: I was not present at the last hearing. How long is the project? Mr. Rogers: 2 years they will be in the water from April 1 st to October 1 st. We can take them out in case of a hurricane. Ms. Harlow-Hawkes: The Town has so many aquaculture projects and there are only so many resources of humans to get them out of there. We want to make sure that there would be staff available to do that and there is a protocol that you plan to follow, because it looks like this might be that year. Once you have them out of the water, what do you do with them? Do they die? 6

7 Mr. Martinsen: We have a container that we over-winter them in. We bring them out, put them in the container, put the container on ice and then re-introduce them to the water when it is safe. Ms. Harlow-Hawkes: It would be awful to lose them after all that work. Mr. Martinsen: We don t want to lose them either. Ms. Harlow-Hawkes: We keep adding more work to you guys. Mr. Bird: I echo Maurie s comments. We are looking for a chart, a map or a plan of the water depth. I don t want to hold you guys up, but I would like to see a plan before you start. Ms. McKay: I ll have them plot it on the demonstration plan. Mr. Bird: It should be just like a regular plan except this is in the water. As long as it is in Jen s office before you guys start, life is good. Mr. O Brien: No questions or comments. Mr. Patton: No questions or comments. Mr. Bird: Move to close the hearing and take it under advisement. Mr. Patton: Second. Mr. Mathews: Unanimous, so moved. Ms. Schumacher and Ms. Gladfelter returned. The following hearing was never opened. Kevin Skelly, 258 Edgewater Drive East, East Falmouth, MA For permission to repair 78 linear feet of storm damaged stone rip rap along seawall. Ms. McKay: No comment at this time. Jeff Ryther (BSS Design) presented abutter s cards. Resource areas include: coastal beach, land under ocean, salt pond, coastal bank, riprap (seawall), up slope along the deck is a velocity zone at elevation 14 and an X zone. We had planned to build a standard riprap but after talking to Jen, we continued the hearing because old school walls are not appropriate anymore. We will be building an up-to-date riprap with woven filter fabric behind the wall, layering stone (about 6-8 ), then knocking the riprap into place. We will need a license and that will be the next subject. The project extends 78-ft from the northern lot line to the existing stone steps that are in good shape. Native plants will be planted on the top of the wall. We will work from the top of the bank to save the trees and the walls. Access will be by machine using the access route. We will restore the lawn and the top of the wall when the project is finished. Mr. Mathews: Are the deck and shed permitted? Mr. Ryther: They are both quite old. Tim Skelly (son of owner) This was my mother s property and I m trying to buy it from the estate. My Dad bought it in FYI I am the Chairman of the Board of Assessors. The deck was permitted but I m not sure of the shed. Ms. Schumacher: Do you have a Conservation permit? Mr. Skelly: I don t know. Ms. McKay: When was the deck built? Mr. Skelly: In the mid-80 s or early 90 s. Mr. Patton: Are you putting footings in? Mr. Ryther: Yes, new toe stones. We will be dropping them down and using everything we can. Mr. Gurnee: Will everything be done from the shore? Mr. Ryther: No, a barge will be used at high tide. Mr. Gurnee: There is beach grass there. Mr. Ryther: I don t think so. 7

8 Mr. Gurnee: Don t get too close because of the beach grass. Be careful of the offshore grass. How deep will the excavation be to put the toe stones down? Mr. Ryther: 3 or 4-ft. There is plenty of beach grass around the dock, but I didn t see any in the area you re referring to. Mr. O Brien: You re going to have a heck of a time building that. Getting construction equipment in there will be difficult. Good luck. Mr. Ryther: There is a wall there now, so there must be a way. Mr. Bird: No questions or comments. Ms. Harlow-Hawkes: The barge must float at all times. Make sure they know the water depth at all times. You re coming in at the A section? Mr. Ryther: That s low water. This is the high water line. Ms. Gladfelter: There is a jagged and solid line and both are labeled low water. Mr. Ryther: I ll change that. Ms. Harlow-Hawkes: What kind of equipment is going down the construction access? Mr. Ryther: A small excavator just so we can work the top of the wall. Ms. Harlow-Hawkes: Because the house was built in the 50 s there is no as-built. You won t know where the septic system is. The pipes come out of the house it might be in the upland. Back in the 50 s, everybody put everything in the water. Mr. Skelly: I helped dig the hole and the main septic system is on the inside of the deck. There is one on the left side of the house (basically designed for the laundry) and another one in the front yard. The next process is for a Title 5 system so we will be back before you again. Ms. Harlow-Hawkes: You may want to put a steel plate on it. You have to get a Waterways license and an Army Corps license. Mr. Ryther: Yes. The dock does have a license. Chapter 91 is the next step. Ms. Gladfelter: No questions or comments. Ms. Schumacher: You have a new plan with construction information but now it s not the same as the narrative. Ms. McKay: Please submit a revised narrative. Mr. Ryther: It will be similar. Ms. Gladfelter: I would like a new one. It minimizes confusion. We can condition it. Ms. Gladfelter: Move to close the hearing and take it under advisement. Mr. Bird: Second. Brewer Fiddler s Cove (c/o Fred Sorrento), Fiddler s Cove Entrance Channel, North Falmouth, MA For permission to dredge up to 500 cubic yards of sand from the entrance channel to Fiddler s Cove Canal. Ms. McKay: No comment at this time. Leslie Field (Woods Hole Group) presented abutter s cards. The project is for maintenance dredging. The channel will be dredged for access to the Marina and some homes on private property. It has been dredged 5 times since 1977 every 6 to 7 years. It was last done in 2008 and for various reasons we need a new permit. Ms. McKay: I wanted an updated survey. Ms. Field: We have permits from DEP and Chapter 91. The dredging will be 150-ft long and 500- cu.yds of sediment will be dredged. Part of the request is to do it no more frequently then annually and only in the case of a storm that left a lot of sediment. It will likely be every 6 to 7 years as in the past. We will dredge to -7 at mean low water. We collected 2 cores of sediment down to the depth of 8

9 the dredging plus 1 additional foot. We found exclusively sand with a medium coarse grain size. We are working within land under the ocean and land containing shellfish. Land under the ocean does have a patch of eel grass west of the channel. We used a view box operated from a boat and an underwater camera to examine the eel grass. The eel grass bed is quite dense in the middle and patchy around the edges. It has been mapped by DMF for bay scallops, soft shell clams and American oysters. We are proposing mitigation and we re required to mitigate for the impacts to the shellfish resources. We can contract with the Town for shellfish seed as well as harvesting shellfish from this area prior to dredging, all under the direction of the Shellfish Constable. In the past we either re-seeded directly or seeded somewhere else. There is also a time of year restriction (October 1 st to January 15 th ) for winter flounder. As far as the construction process we will be operating a clam shell excavator and dredging from a barge. The sediment will be placed in a scow, de-watered, towed into the marina and then off-loaded to a truck. We are giving sand to the Town to use on beaches of their choice. If they don t have a beach that needs nourishment immediately, the material will be stockpiled at the compost facility on Blacksmith Shop Road. There is a letter in your file from Bruce McCardle saying he is happy to accept the sand. The trucking expense will be the applicants. Ms. McKay: The re-filing was so the Commission could have an updated survey plan. I can t remember how many extensions the first one got 3 maybe. Ms. Field: Maybe there were 3 and then the permanent extension came in and it gave us a lot of time. Two dredgings were done under one order. Ms. Gladfelter: I m curious about who pays the transfer fee from when it s put on the truck? Ms. Field: The marina. Ms. Gladfelter: Whether it goes to a beach or Town facility? Ms. Field: Right. Ms. Harlow-Hawkes: It s been dredged for years and it s interesting how the dredging gets closer and closer. It went from 1977 to 1995 and then every 6 or 7 years - obviously the sand moves a lot more now. I think we should put the old file into the new one. I can t remember if it was in 2001 or 2008 that a bunch of eel grass and shellfish got caught up in it. Just be careful. They were piled up by the Latimer property east of the channel. Just make sure to pay attention and not over-dig. One year they had a problem with slumping of the toe stone because they got in there too deep. Ms. Field: We were contacted after we filed by the owners unknown 5 or 6 of the property owners wanted the sand and we thought it was a great idea. We came up with a cost for them and told them how to modify all the permits so we could give them the sand, but they didn t have an appetite for that. I m hoping that the next time we have to re-up these permits we can add to that. Ms. Gladfelter: How do you do it if they re unknown? Ms. Field: I don t know about the unknown parcels, Latimer owns the beach parcel. They are quite elderly so that was another hurdle to get over as to who would allow us to put sand there. They want it to be nourished, but we need permission from the property owners themselves. Mr. Bird: No questions or comments. Mr. O Brien: No questions or comments. Mr. Mathews: No questions or comments. Mr. Patton: No questions or comments. Mr. Gurnee: No questions or comments. Ms. Schumacher: We have something from DMF? Ms. McKay: Yes. Mr. Bird: Move to close the hearing and take it under advisement. Ms. Gladfelter: Second. 9

10 Michael McGourty, Cypress Street (from 6 to 18 Cypress Street), East Falmouth, MA For permission to pave a 260-ft section of existing gravel roadway and install a storm water management system. The hearing is continued until June 13, Helmis Circle, LLC (c/o Randal Lilly), Worcester Court & Alma Road, Map A, Lots 003, 004, 005, 006, 007, 009 & 010, Helmis Circle private ROW & Helmis Circle (Lot16), Falmouth, MA For permission to construct a 40B development of twenty-eight three-bedroom homes along with associated sidewalks, driveways and the associated clearing, excavating, grading and landscaping. Quorum: Mark, Kevin, Jamie, Mary, Maurie, Courtney Ms. McKay: No comment at this time. Brandon Carr (DePrete Engineering) I m going to run through the two pages of changes. We had a meeting with the Town Engineer and found that the road will never be a public roadway and we took the references to it off the plan; we added details for the 6-ft stockade fence and elevated it off the ground to allow for storm water and small animals to pass through; the discrepancy on the property line between lots 24 and 25 has been updated and we moved some land from lot 25 to lot 24;on the erosion control sheet (5), we added an additional sediment trap at the eastern end of the road where lots 12 and 13 are as well as kept the other two (traps) at the eastern end of the road where lots 12 and 13 are and kept the other two the same added another one on the bend in the road between the road and Little Pond; clarified the location of the storm water depression in the back yards (sheets 8 & 9) that we talked about last time and show where they are; AC units, bulkheads and stairs (impervious) we always factor in a 10% safety factor that allows an additional 200-ft per lot to the storm water design for them; there is storm water management (per the MA handbook), erosion control report, operation and maintenance plan; we took out all the references to public roads; the storm water report has a check list of errors; we took out the references to Rhode Island and the section on chemical stabilizers; took out the section on de-watering because we don t anticipate any de-watering; there is information re the post-construction operation, a main control plan for storm water; we added a section (page 5) about the inspection of road shoulders and areas of sediment control; infiltration systems used for snow stowage made sure they are cleaned out; made changes to the HOA covenant and submitted a copy that was red-lined mostly about restrictions; mentioned future impervious surface. LEC submitted a memo on the stability of the bank. Brian Madden (LEC) It was proposed that the activities in the buffer zone could cause some instability to the coastal banks on or off-site. We prepared a letter that goes into a little more detail about the characteristics of the coastal banks. Stan Humphries (LEC Senior Coastal Geologist) and I conducted a site evaluation on April 17, 2018 to review existing conditions, especially following the three Nor easter storms and reported tree loss (fallen on banks). In general the coastal banks are well vegetated. They are occupied by a stratified area of vegetation from the ground cover up to the top where the coastal bank north of lots 1 to 5 are. There is no tree loss in that location. Re the coastal bank north of lots 11 and 12 one mature tree had fallen over, but that one was also observed on the March 28 th site evaluation. The root system of that tree was kind of overhanging the coastal bank and was exposed. Mr. Madden reiterated about the erosion controls to protect the down gradient resource areas and the coastal bank during construction, post-construction control measures, the wildlife friendly split-rail fence within jurisdiction areas and post storm management that Brandon Carr got into. In summary, there are no proposed alterations directly to the coastal bank or buffer zone. The project will not impact the stability of the coastal banks either long term or short term. The coastal banks ability to provide storm damage protection and flood control will be maintained postconstruction. We did get confirmation from Natural Heritage to understand the nature of the project. 10

11 Above and beyond the approved Natural Heritage protection plan, we are proposing to do supplemental turtle sweeps in advance of clearing on individual pods. There was a question about the easterly lobe of the BVW as to whether there is a functioning vernal pool. At the April 17 th evaluation there was 6 8 inches standing water, but we did not observe any sign of obligate species fairy shrimp, breeding activity for wood frogs, or spotted salamanders. Ms. McKay: We did ask LEC to submit their CD s re the evaluation of the coastal bank and they have done so. Ms. Schumacher: So we have those for the record. Ms. McKay: Right. The applicant has pretty much answered all of the questions and provided all the documentation you asked for. Mr. Gurnee: The gradient plan what happens when there is excess water on the lot? Is there a trough in the back yard? Mr. Carr: Yes and a berm on both sides. Mr. Gurnee: There is a lot of impervious surface. If the down spout pitch fails, that backyard will get flooded. Yet you say it won t get to the coastal banks? Mr. Carr: We have modeled the depression up to a 100-year storm so the water won t over-top toward the abutters which are actually more up-gradient and it will not go to the coastal banks. Mr. Gurnee: It won t be a problem to the adjacent properties? Mr. Carr: Right. Mr. O Brien: You did a thorough job addressing the issue of the coastal banks. I still remain somewhat skeptical on that, but that s me. Again, it s not like they didn t do a thorough job on trying to address it. Mr. Bird: One of the truisms of frequent continuations is it gives us the opportunity to get another whack in. One of the concerns I have has been the issue of roof runoff into the dry wells. At first you had them underneath the driveways and I suggested you change that and you did. I appreciate it. There was a discussion at the last hearing about where the responsibility of maintaining the dry wells the homeowners or the Association. Density distinguishes this project from others. There will be 28 homes in a small area. It creates a different kind of issue. I m really concerned that leaving the maintenance of the gutters, downspouts, etc. to the individual properties in this concentrated development is problematic. Most of the projects that come before us are single homes on an acre of land and we tell them to put their roof runoff into dry wells and it s their job to maintain them. I really think the most appropriate solution is that this should become an Association issue. You should re-configure how those things are structured you can always come in and amend it. It s almost like a condominium in many respects. Dues should pay for it and it s the Association s responsibility to take care of any problems. Someone from the Town or our Administrator trying to chase after 28 homeowners is not a good idea. I m not prepared to force you into another continuance to make a point but I would like to see you change this. Ms. Harlow-Hawkes: I m still concerned about the coastal bank. When did you go out to the site? Mr. Madden: We observed it on February 28 th and April 17 th. Ms. Harlow-Hawkes: You said March 28 th before. Mr. Madden: Sorry. Ms. Harlow-Hawkes: The coastal bank is 7-ft away close to the setback. If this bank fails there is no armoring and nothing you can do after. If the houses become imperiled there is nothing you can do. I m concerned about the frozen ground. The recent storms have been dumping an inch and a half of rain in an hour. It s sheeting off established sod lawns. If the lawn is frozen or saturated there is no more capacity and with the density of the property there is nowhere for the water to go, but off the lot. Ms. Schumacher: I m also concerned about the coastal banks. I commend you for addressing our 11

12 concerns so thoroughly, but feel there is a very big deal riding on this project for the Town, the abutters, the contractors and ConCom. I think we might want a second opinion and I have been thinking about invoking our consultant clause which means that we get another opinion at the applicant s expense. I don t say this lightly and it s up to the Board as a whole to agree. Mr. Gurnee: Personally I don t see any issue with the coastal banks. The berm will stop any further erosion to the bank. They might want to move the dry wells toward the front of the properties rather than the bank side. Taking all the water from the roads that would have hit that particular area (as they have proposed) will help to keep water from the area. If they move the dry well toward the front they will not have to worry about saturation there. Ms. Schumacher: Does anyone have concerns about the effects of construction on the banks or do you see it as more of a long term environmental problem? Ms. Harlow-Hawkes: Probably both. Mr. O Brien: I see it more as a long term prospect of eventually weakening the bank. I m more worried about the bank than anything else. I didn t know we had a consultant clause. They have obviously put a tremendous effort in a lot of areas trying to accommodate us and I don t want to be overly harsh about it, but I d like to know more. Is the scope of what we would be asking the consultant to do something that would have to be approved by both parties? Ms. McKay: The way this works is that the Board can invoke it when they are concerned about a certain issue. It is at the applicant s expense and if it s just the stability of the coastal bank it can be a very narrow review. They only appeal available to the applicant is with the consultant s qualifications. Mr. O Brien: I would think that s perfectly reasonable. Ms. Schumacher (to Mr. Gurnee) You brought up a good point about putting dry wells on the road side, but they already have dry well on the front and rear so I don t know how much water you could put in that small area. Each lot is so small. Mr. Gurnee: The water from the road will no longer be going into the area. Mr. O Brien: All of these problems stem from 40B. It is an opportunity to put in a dense development in a small area that would otherwise not be allowed in Falmouth. If we re satisfied that the bank is as safe as it can be, then they win. I don t want to get into some kind of contest about how many things can we keep coming up with. Ms. Schumacher: That is definitely not my motivation. I know this is coming up late in the game and I do appreciate everything you have given us and I know it was done in good faith. I just feel like this is a weighty decision for us and we don t want to get it wrong. Peter Freeman (Attorney for the applicant) I certainly don t want to get into the technical parts of the project. The report is as thorough as you acknowledge but I guess I can t dissuade you from your trepidation about the coastal bank and I respect where you re coming from. You say that you re just uncomfortable with this and I respect that. We have to make you comfortable and I think we ve just about done this except for this narrow question. My question is can we work out the scope right now have an idea of the time frame, who the consultant would be and have them review what we ve done, not something new? Can you direct the consultant to talk directly with our entire team on both the engineering and environmental side just to expedite it? Could it be done in the next two weeks? I m looking for guidance and feedback on this to try and work with us. Ms. Schumacher: I m not sure how much we can get pinned down tonight, but my goal would be the same as yours. I would like it to be expeditious. Ms. McKay: I have to reach out and my first recommendation would be to call Jim O Connell solely to look at the coastal bank issue. If you want something broader I would have to think about it and would have to reach out to our engineering department. If it s solely on the coastal bank then my first inclination is to reach out to Jim O Connell and I don t know how busy he is. 12

13 Mr. Bird: We ve raised concerns and you ve addressed them. Sorry I keep throwing something else at you at the last minute. It is a complex thing and our concern is that we want to get it right. It s a sensitive area, a high density development and we re talking about environmental issues. We re looking at the whole project and we ve had some bad storms this spring. It seems like we re having more 100 year storms yearly. I don t doubt the professional qualifications of the people you ve brought in with this plan, but maybe we do need a second opinion just to make sure that what we re looking at is right. Mr. Gurnee: The issue to me is, just does the project make the coastal bank unstable? The coastal bank is unstable. The steep bank has problems. Our point is not to make it good it s to not make it any worse. I don t think our objective is to have someone look at the bank again and see how many trees are there. He has to be a water engineer, not a plant engineer. The only issue is the water table. Attorney Freeman: Another broader peer review was submitted by Cape and Islands Engineering and they were happy with it. It was shared with the Conservation Commission. We don t need to go backward to broaden the scope. I would ask that you give us a few minutes to discuss this. Ms. Schumacher: Certainly. I would like to listen to people from the audience before we go any further. Mike Hatch (Alma Road) He said in general when he talked about the coastal banks. We need to have an educated opinion vs. the loss of an irreplaceable resource. We can t have anything less than a flat out guarantee to protect the resource. There should be no activity within 100-ft of the resource. The first bank within 50-ft of it will be 7 homes and 100-ft of roadway within 100-ft. The project may last over 3 years how can it not affect that bank? The second bank there are two homes within 50-ft. Unless there is 100% guarantee the Board should not allow the building. As for the HOA structure $200 or $300 /year fees would give you $8100 dollars. That math will not work. In the beginning there will be no problems but in the future when something happens, they won t have enough money. Edward Jalowiec (Alma Road) There should be a consultant for the development. They say that the bank is well-vegetated but a tree fell. With the vibration and excavation in the proximity to the bank all the trees on the site and in the buffer to the town property will be in danger. The trees will not be protected on the banks because the other trees are being cut down. You can t build another White Cedar swamp or vernal pool. Density so much stuff on a small area. Total impervious surface is 96,380-sq.ft. Lots 19 & 20 garages are 2 and 3 ft from the fence. People won t be able to get up to clean the gutters. Mark Stowes: Tell the consultant it s not just water, it s wind. The wind has been blowing down trees. With the roots disturbed, more trees will fall. Wind should be part of the study. With the forest gone there will be more impact. Couldn t the density be cut down and make the lawn sizes larger? Wouldn t that solve some of that problem? What is the proper density for the area? Ms. Schumacher: That was part of the earliest discussion. Mr. Stowes: Maybe the consultant could tell us that. Ms. Harlow-Hawkes: The water thing and the coastal bank go together. They are clearing 7-ft away from the coastal bank. The roots go beyond the limit of work. Once they pull the roots and stumps out especially oaks they are not taking out water anymore. It would be nice to have a consultant s opinion. We have potential impact on the coastal banks. Mr. Bird: We should invoke the consultant clause. It s not just the stability of the bank but also the storm water issues. It all boils down to the amount of density in that area. Ms. McKay: Storm water was looked at by Cape & Islands, ZBA and the Town of Falmouth. It has been looked at by our own engineering department and Cape &Islands Engineering. Ms. Schumacher: We would be looking at two consultants then. 13

14 Ms. McKay: I don t think you d get any more information than you already have. Density itself doesn t matter, it s the impact. They have answered many of your questions. It s how is it designed and what are the impacts? Let s get on with the review of the coastal bank. Randy Lilly (applicant) We want the bank to be stable. We have listened to you and have tried to answer all your questions and to be responsive to you and to do the right thing. We would like a continuance until May 16 th. Ms. Schumacher: I won t be here on the 16 th. Ms. McKay: I wouldn t suggest that date. You would want a plan from that individual by next Wednesday and that s not going to happen. We have to find out the time frame of the consultant and go from there. I can t commit to a date. Attorney Freeman: Can we continue it to the 23 rd and if we can t come in then, continue it to another date? Ms. McKay: The next date would be the 6 th of June. Mr. Bird: Move to invoke the consultant s clause and to authorize Ms. McKay to work with the peer reviewer and applicant to review the coastal bank issue. Ms. Harlow-Hawkes: Second. Attorney Freeman: Can we continue to the 23 rd then the 6 th if necessary? Wrap it up at that time? Ms. McKay: Yes. Ms. Harlow-Hawkes: We re not hearing this under our regulations. Is density under our regulations? Ms. McKay: Possibly. Ms. Schumacher: 4 yes, 1 no (Gurnee) The motion passed. Ms. Harlow-Hawkes: At the request of the applicant s representative I move to continue the hearing until May 23, Mr. Bird: Second. Attorney Freeman: Can conservation go out with our people? Ms. McKay: Yes. Neil & Betty Watanabe, 8 Bridge Street, East Falmouth, MA For permission to raze the existing dwelling and construct a 5-bedroom, single family house with attached garage, porches with stairs, install a new Title 5 sewage disposal system, dry wells, gravel driveway, utilities, native mitigation planting and associated clearing, excavating, grading and landscaping. Quorum: Mark, Steve, Kevin, Jamie, Betsy, Mary, Maurie, Courtney Ms. McKay: No comment at this time. Michael Borselli (Falmouth Engineering) We submitted revised plans prior to the hearing. We have indicated the BVW at the base of the coastal bank. I had conversations with Jen and agree that the coastal bank should be re-categorized to an eroding coastal bank, added the A & B zones to the BVW, revised the A & B buffers to the coastal bank to 75-ft to A and 25-ft to B. I re-calculated the impervious surface calculations and updated the plant mitigation numbers to reflect those calculations and we have added that to the plan. We have reduced impervious surface by shortening up the deck. We now show the location of the generator and AC unit on the side of the house. Theresa Sprague (Blue Flax Design) I have updated the legend. There is an entirely new land management plan. On page 3 are the existing conditions. The invasive species are 5% of the population. The honeysuckle should be managed. Sweet fern has been removed from the proposed mitigation sq.ft of mitigation will be planted 300-ft in the lawn. We will entirely plant the 50-ft no disturbance zone. We flagged the view corridor with blue and green tape. The hatched area 14

15 on the plan is where the oaks are located which you can see in more detail on page 5. The pruned vegetation in zone A is all less than 3 at chest height. There is a pitch pine, not a black pine. We are showing the 25 ft view corridor that is staked in the field. The pines to the left and right are flagged at the edges of the view vista. There will be 319 shrubs in the mitigation area including bayberry, black huckleberry, etc. There will be 17 New Jersey tea plants and 2479-sq.ft of little shrubbery. Ms. McKay: Were you here for the first hearing? I made him remove sweet fern also. Thank you both for the changes. Ms. Harlow-Hawkes: The lot lines still weren t staked. Hard to know which is the property because there are two lots. Mr. Borselli: I hope you can make that a condition. Ralph Cataldo is the contractor. We ll be on site and will stake the property lines. Ms. Harlow-Hawkes: Re the view corridor historically we don t have them created until the people occupying the property know where they want it. You have it tagged. Ms. Sprague: The pitch pines are staked. Ms. Harlow-Hawkes: We recommend sprout management for the oak trees? How are you removing the oaks? Ms. Sprague: By flush cutting them. Ms. Harlow-Hawkes: This gets done in 3 to 5 years? Ms. Sprague: No, in 3 to 5 weeks. Ms. Harlow-Hawkes: On page 8 you show the follow up treatments for the next 3 to 5 growing seasons. When do you plant the mitigation planting? Ms. Sprague: As soon as water is available. All of the planting would have to be completed in order to apply for an occupancy permit. Ms. Sprague read from the management plan. Ms. Harlow-Hawkes: Make sure they don t re-cut the oaks when they are sprouting. Ms. Sprague: We plan to flush cut them and put in herbicide. Ms. Harlow-Hawkes: How can you do the view corridor with a pine and a cedar in the middle of it? Ms. Sprague: It is being done according to your regulations. There are a lot of mature oaks on the site. I tagged the pitch pine with green because it is staying. The ones tagged with blue are going. Ms. Harlow-Hawkes: The path is 3-ft wide when you plant the huckleberry how wide will the path be? Ms. Sprague: It will be maintained at 3-ft. We could install a single rail fence. We are providing 40- sq.ft more mitigation than required. Ms. Harlow-Hawkes: They will still run the mower down there. There is to be no future armoring. Ms. Gladfelter: If we get the fence it will look lovely. Mr. Bird: No questions or comments. Mr. O Brien: No questions or comments. Mr. Patton: No questions or comments. Mr. Gurnee: No questions or comments. Mr. Gurnee: Move to close the hearing and take it under advisement. Mr. Bird: Second. CONTINUED REQUEST FOR HEARINGS UNDER AN ABBREVIATED NOTICE OF RESOURCE AREA DELINEATION Susan Moran, 390 & 402 Wild Harbor Road, North Falmouth, MA - Request for confirmation of the following wetland resource area boundaries: BVW/freshwater wetland and salt marsh. 15

16 The hearing is continued until May16, VOTE ORDER OF CONDITIONS Ms. Harlow-Hawkes: Move to take the following out of order. Ms. Gladfelter: Second. Ms. Gladfelter & Ms. Schumacher recused. Waquoit Bay Estuary (Town of Falmouth) 05/02/18 Quorum: Steve, Kevin, Courtney, Maurie Ms. McKay: This is a demonstration project to look at denitrification process with oysters. A special condition will be to submit the water depth on the plan prior to construction. It s a GIS plot it can be done. Ms. Harlow-Hawkes: You can look at the WBNERR plan. Mr. Mathews: Do we have the letter from DMF? Ms. McKay: Yes. Ms. Harlow-Hawkes: We have to have the hurricane removal protocol. Ms. McKay: The reports must be included. Ms. Harlow-Hawkes: If there any diseases they must inform us and tell us the storage location. Are buoys to be installed? Ms. McKay: They will follow 10A permits within aquaculture areas according to MES. We will have them mark it with buoys. Ms. Harlow-Hawkes: This is a 2 year permit. The area is clearly delineated. Do we have anything about damage? Mr. Bird: Move to adopt the Order of Conditions as discussed. Mr. Patton: Second. Mr. Mathews: Unanimous, so moved. 120 Racing Beach Ave (Gordon) 05/02/18 Quorum: Mark, Steve, Jamie, Betsy, Mary, Maurie, Kevin Ms. McKay: This is the reduced footprint of the house. They will re-establish the limit of work. Ms. Gladfelter: Move to adopt the Order of Conditions as discussed, Mr. Mathews: Second. OTHER BUSINESS Vote to revoke the RDA for vista pruning issued to 13 Church Street. Ms. McKay: The Board approved this project a couple of months ago. The vista pruning went awry. The property is in the midst of being sold. Short of going into this bank to plant something, the attorneys involved agreed to revoke the RDA. They must let the area re-grow and can t prune again. We ll re-evaluate it again in the future. Ms. Gladfelter: Move to revoke the RDA for vista pruning. Mr. Patton: Second. 16