Conservation Commission Meeting Minutes 01/21/2020

By Otis Town ClerkConservation Commission Minutes
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TOWN OF OTIS

CONSERVATION COMMISSION

01/21/2020 MEETING MINUTES

Location:  Otis Town Hall, One North Main Road, Otis

 

Conservation Commission Members present:  Dave Sarnacki, Jeff Laramy, Roger Meyer; Domenic Battista.

 

Conservation Commission Members absent:  Bruce Wall.

 

Staff and others present:  Kristen Brown OCC Admin Secretary; Bob Mason with MA DCR; Donnie Chaffee; Emily Stockman with Stockman & Associates; Rob Levesque with RLA; Peter Pappas; Chris Tryon with BGT; many other illegible names.

 

Opening items/Introduction of Commission members and staff.  Dave opened the meeting at 6:00 p.m.  He noted that the meeting is being recorded. The deadline for applications for the February 18th 2020 meeting is on Wednesday February 5, 2020 @ 6:00 PM. The next office hours, for the February 18, 2020 meeting, is February 5, 2020 from 6:00 –9:00 PM. Dave introduced the members of the commission, and asked everyone to turn off/down their cell phones for the duration of the meeting. Dave also introduced Bob Mason with MA DCR who was also in attendance as representative for the state.

 

Minutes:  Dave made a motion to approve minutes from the November 19, 2019; RM 2nd the motion and the Commission voted unanimously to approve the minutes from the November 19, 2019 meeting minutes.

 

  • Public Hearing – RDA – Submitted by Berkshire Geo-Technologies, on behalf of James Watkins, 10 S. Lake Ave., map 18 lot 45, regarding the renovation & expansion of sun-room; construction of an 8’ x 8’ deck; removal of trees; removal of section of retaining wall & dock as required by MA DEP for Ch. 91; and repair of the top of retaining wall, all in the BZ of OR. Dave opened this hearing and invited applicant to address the Commission. Dave first noted that per request of applicant the retaining wall and dock work and is restricted to the renovation & expansion of sun-room, construction of an 8 x 8 deck and removal of trees. KB explained that applicant was able to enter a separate NOI for the seawall and dock work, which is under a separate agenda item/hearing, on this agenda, for the record. Dave thanked KB for the clarification. Chris Tryon was in attendance on behalf of applicant. The only item discussed by Dave, based on the site inspection, was if applicant planned on doing any plantings in lieu of the trees being removed. Per Dave, and the Commission, a one to one replacement is recommended, and should be native plantings, and closest to the water without getting on the MA DCR property. Dave asked the Commission if any other questions, none being said, Dave made a motion for a -3 determination with the following conditions: No heavy equipment in the resource area; debris to be removed from resource area or covered daily; bio-oil only in chainsaw(s) for tree removal; follow planting plan as submit to OCC; OCC reserves the right to inspect property for 3 years from date of approval. RM 2nd the motion and the Commission voted unanimously to issue a -3 determination with the above conditions.

 

 

  • Public Hearing – RDA – Submitted by Emily Stockman with Stockman & Assocs., on behalf of Charles Rosenblum, 408 Hayes Pond Road, map 9A lot 31A, regarding request for associated vista maintenance, within the BZ of Hayes Pond. Dave opened this hearing and invited applicant to address the Commission. Emily Stockman was in attendance on behalf of applicant. Dave made mention that this RDA was submitted based on an Enforcement Order issued and ratified at our September 2019 meeting, where a Commissioner observed heavy cutting within an OCC jurisdictional area. The outcome of that Enforcement action in September 2019, as agreed with applicant, is this RDA filing. Dave asked the Commission if there were any questions or concerns stemming from the site inspection. RM asked Emily to review what she is going to do, and as a refresh to the record, per the site inspection with Emily. As discussed with the Commission, this RDA will serve to memorialize the area for future reference, and get the site correctly identified. There is a nice thick population of mountain laurel that will remain, and will only be annually trimmed for best growth; in addition, they will be planting native berry producing shrubs in the area as well as some green shrubbery. Per Dave, since they have complied with all action taken and gone over and above with vigorous planting re-vegetation beyond the scope of what was required by the Commission, as agreed by RM. Therefore, Dave made a motion for a -3 determination with the following conditions: Cutting/pruning restricted to vegetation less than 6’ in height; no stumping whatsoever; at least 6 native berry-producing shrubs shall be planted; no other work allowed under this order; OCC reserves the right to inspect property for a period of 3 years from date of approval. JL 2nd the motion and the Commission voted unanimously to issue a -3 determination with the above conditions.

 

 

  • Public Hearing – RDA – Submitted by Don Chaffee with Chaffee Construction, on behalf of Jon & Linda Cox, 398 Lion Hill Road, lot 7, regarding the replacement of 3 failing piers with techno posts; installation of cedar siding; replace roofing on existing deck, as well as failed decking, all in the BZ of Big Pond. Dave opened this hearing and invited applicant to address the Commission. Donnie Chaffee was in attendance on behalf of applicant and per RM no questions on the project, very straightforward. Dave made a motion for a -3 determination with the following conditions: No heavy equipment in the resource area; debris to be removed from resource area immediately or covered, daily; OCC reserves the right to inspect property for 3 years from date of approval. RM 2nd the motion and the Commission voted unanimously to issue a -3 determination with the above conditions.

 

 

  • Public Hearing – RDA – Submitted by Don Chaffee with Chaffee Construction, on behalf of Sandra Fieldler, 137 Pond Blvd., regarding the reconstruction of a sideline curtain drain that has failed due to overgrowth of lawn and silt from driveway, in the BZ of Big Pond. Dave opened this hearing and invited applicant to address the Commission. Donnie Chaffee was in attendance on behalf of applicant. Dave asked if any questions stemming from the site inspection, and per RM and DB was very cut and dry. Therefore, Dave made a motion for a -3 determination with the following conditions: No heavy equipment in the resource area; debris to be removed from resource area or covered daily; OCC reserves the right to inspect property for 3 years from date of approval. DB 2nd the motion and the Commission voted unanimously to issue a -3 determination with the above conditions.

 

 

 

 

 

  • Public Hearing – NOI – Submitted by Don Chaffee with Chaffee Construction, on behalf of Stan & Fran Bogady, 237 Brookman Drive, map 18C lot 35, regarding the demo and reinstallation of existing seawall all by hand, in the bank and BZ of OR. Dave opened this hearing and invited applicant to address the Commission. Dave opened this hearing and invited applicant to address the Commission. Donnie Chaffee was in attendance on behalf of applicant. Dave reminded the Commission that this NOI was issued as a result of a positive finding under an RDA. Dave asked if any questions or concerns stemming from the site inspection, and per KB, there is a Chapter 91 license on record, and all questions/comments from Mark with MA DEP have been addressed to DEP satisfaction and therefore OCC as well. Per Bob Mason asked if they are going to dry stack the wall, and per Donnie, yes that is correct, no concrete will be used at all. Per RM, since they are doing it all by hand, with no concrete, there should be little disturbance to the area, and no erosion controls should be used, as that would cause more disruption than the work itself. Dave made a motion to approve and issue an Order of Conditions for the above work, with the standard conditions, including OCC reserves the right to inspect property for 3 years from date of approval. RM 2nd the motion and the Commission voted unanimously to approve and issue an OOC for the above project, with standard conditions, including OCC reserves the right to inspect property for 3 years from date of approval.

 

 

 

  • Public Hearing – RDA – Submitted by Lewis M. Kurtz, 131 Pond Blvd., map 11F lot 86, regarding the removal of a dead/dying tree in the BZ of Big Pond. Dave opened this hearing and invited applicant to address the Commission, no one was in attendance however. Dave asked if any questions stemming from the site inspection, none being said, Dave made a motion for a -3 determination with the following conditions: bio-oil only in chainsaw(s); debris to be removed immediately from the resource area or covered; no heavy equipment in the resource area; OCC reserves the right to inspect property for 3 years from date of approval. DB 2nd the motion and the Commission voted unanimously to issue a -3 determination with the above conditions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  • Public Hearing – NOI – Submitted by Berkshire Geo-Technologies, on behalf of James Watkins, 10 S. Lake Ave., map 18 lot 45, regarding the repair of existing seawall, and removal of partial wall, all within the resource area of OR. Dave made a motion to change the order of business, and open this hearing after the first agenda item, since it is for the same applicant; DB 2nd the motion and the Commission voted unanimously to change the order of business, and open this hearing 2nd. Dave then opened this hearing and invited applicant to address the Commission. The first question from the site inspection was how are they going to remove the piers, or in this case a cement slab from which the existing dock extends? Per applicant, they are going to cut the slab and pull it up with pieces small enough to remove by hand. They also asked if it would be OK to reach over with a small excavator with the thumb, and remove the pieces, and per the Commission, yes, this would be OK, considering the ground is frozen, and that they use bio-oil in the machine only. Dave asked them to clarify exactly how the cement block would be removed and per applicant, they will use the small excavator, and will definitely be done while ground is frozen since has to be done during seasonal draw-down for OR, and would use bio-oil equipment. RM asked what was going to happen with the engine block that is in the water area (were it not drawdown), and per Bob Mason with DCR, yes, they want that out of there; applicant asked how they should approach that  removal, and per the Commission, they can put a cable on it and drag it away when the water is down, and the ground is frozen. Dave asked if any other questions and per the Commission, none. Dave made a motion to approve and issue an Order of Conditions with the standard conditions, as well as OCC reserves the right to inspect property for a period of 3 years from date of approval. RM 2nd the motion and the Commission unanimously approved issuance of an OOC with standard and special conditions.

 

  • Public Hearing – RDA – Submitted by R. Levesque Assocs., Inc., on behalf of Peter Pappas, 0 Brookman Dr., map 18C lot 57, regarding the removal of two existing docks and construction of a new dock all within the BZ of OR. Dave opened this hearing and invited applicant to address the Commission. Rob Levesque with R. Levesque and Associates, was in attendance as representative, as was the applicant Mr. Peter Pappas. Let the record show that there were many local residents in attendance for this hearing as well, who are abutters, and/or users of the said docks. Per Dave, he clarified that the jurisdiction of this Commission is whether the proposed project complies with all wetlands regulations, as proposed; with that being said, it is my understanding that there is a current dispute with regard to the ROW in the subject area, and Dave is concerned that Mr. Pappas may not have the legal right to put this RDA before the Commission. Therefore, until Dave is certain that the current applicant is the rightful applicant, he is declining to move forward on this matter. Further Dave believes that the dispute needs to be resolved by MA DEP, and that this Commission is not the venue to make a decision on this hearing. Dave presented a theoretical for comparison: I do not like the docks at the local Marina, therefore, I am going to put in an RDA to have them all removed. As I am not the lawful owner of said Marina, it would not be right for me to be able to put in an RDA to remove any docks from said property, unless I can certify that I own the right to do so. Therefore, until applicant can prove and assert that he is the rightful owner of said ROW, then Dave is reluctant to act at all on this hearing. Rob Levesque asked to speak on the matter as follows: “To clarify, under the [regulations of] the MA WPA, the filing of an RDA does not require that you be the owner, just to clarify. So, anybody can actually file an RDA, not only on their own property, but on property that is someone else’s property; it sounds crazy, but we’ve seen it; we have done a lot of wetlands filings, and that can absolutely happen. I do have a deed that shows that Mr. Pappas had secured the subject property (Domenic Battista interrupted here to ask which regulation states that a non-owner can out in an RDA on property they do not own, to which Rob answered that he will check and confirm later). Rob then continued: “So, he does not have to be the owner, but he is the owner…”, to which Dave interrupted that Mr. Pappas does not own the ROW. Rob continued: “If you look at the land as an overlay, the subject property is owned in feet, there is a ROW that exists for the people that it exists for, so they absolutely have the right to pass, and re-pass, as well as ingress and regress, there is actually a [precedent setting] prior lawsuit, which I have a copy of, if you would like to take a look at it, which is not the purview of the Conservation Commission, but the subject of the lawsuit was a dispute over ROW access.” Dave asked if this is an ongoing lawsuit, and Rob stated that no, it is not. Dave then continued with “Let me say this: if you have a ROW, the association has a right to get a Chapter 91 license and puta dock in place..”, to which Rob interrupted and added that they do not, as that right belongs to the landowner unfortunately for the folks who have ROW. Per Dave: “Then the landowner does not own the ROW”. To which Rob responded: “So, if you talk to David Cameron.” to which Dave clarified for the attendees that David Cameron is with MA DEP Waterways Licensing Department. Rob: “Mr. Pappas purchased the property by highest bid, to which the Association had the option to bid also, but did not. Mr. Pappas now owns this land in feet.”. Dave asked “Isn’t it true, that there is still a ROW?”. To which Rob responded: “Yes, absolutely; for the use of subject property to access the water; but this does not provide them with an opportunity to, I have no dog in this fight, I am just a guy that does project plans, so to clarify, and this is something that is not germane to this, but for reference, if you own the property, you have a right to a chapter 91 license; there were 2 licenses that were issued with these subject docks, and they are no longer valid; you can confirm that with David Cameron, with MA DEP, so for the purposes of this evening’s meeting, which IS your purview, which is the filing of an RDA, we are just asking the Commission, if the activity proposed in the project plans, are allowed under the WPA.” Dave responded with “I understand that..”. Domenic jumped in to ask if either or both of the existing docks are licensed under the Chapter 91 program?” to which several people indicated that yes, they are licensed, with 30 year permits. Dave stated again: “I do not feel this is right for the Commission to hear. Someone else (on the Commission) is welcome to make a motion, but I, as the chairman, am not going to make a motion, as I do not feel this is right, I think this decision is not arbitrary and as far as I am concerned as the chair, until I am told unequivocally, by our legal department or any other venue like DEP, I feel this is not right to be heard today. Because I am not going to hear, or grant, or entertain anything unless I have the evidence that they are the proper applicant.” Rob responded: “ok, SO, we will appeal based on lack of action with MA DEP, if that is what happens.” Per Dave: “You do what you have to do; I am not going to move it forward, another Commissioner is welcome to make a motion, but I am not.” Rob: “OK, just so we are clear, we are here with the filing of an RDA for the construction of a dock and the removal of two docks, as it pertains to the WPA; nothing germane to the two existing chapter 91 licenses, since the sale of the property are no longer valid, or the new license that is being requested by Mr. Pappas; none of that is germane to this RDA hearing.”  Dave repeated that “any Commissioner is free to make a motion, but myself, as the Chair, we have a gentleman in attendance that has a chapter 91 license for the dock you propose to remove, and it is my belief, living on the reservoir, that the property owner does not have the right to remove docks that do not belong to him. Therefore, I do not believe this is properly before the Commission and I am going to give you two options: 1. Not act on the RDA, and let is die; or 2. You can request a continuance until a time when you can provide proof to this Commission that Mr. Pappas indeed has the right by virtue of ownership of the ROW to propose this work.” Per Rob: “The owner has signed the application, I believe, and I have info that shows that they are indeed the owner, and have a right to file the RDA, so, I understand that you have a perspective on this, so I would ask you to take action this evening, if you decide not to take action because of things that are not of the realm of the Conservation Commission, then we will have the right to appeal to DEP, and they will hear it.” Per Dave, my option, and any other Commissioner has the option to make a motion, is to not act on this RDA, and let it die. Rob: “So, for the record, your concern is the ability of an applicant to file an RDA, and I am telling you that they have the right to file it, and you are telling me that you are going to not act, or you’re going to grant a continuance to clear the matter?”.  Dave: “That is correct.”

Rob: “So, we do not want a continuance, we want you to act, if you will not act, then we will appeal to MA DEP under a superseding determination”. Dave: “OK; I am declining to act, does any other Commissioner want to make a motion? None being said, Dave stated that this matter is dead to this Commission, as we will not act, nor render a decision. Rob indicated he will follow up with MA DEP.

 

OTHER BUSINESS

Enforcement Orders/Letters:

 

  • 408 Hayes Pond Road – Observation by a Commissioner, of extensive, unauthorized cutting, done in the BZ of Hayes Pond in Otis. Ratified in September 2019; on November 19, 2019 agenda for reminder to Follow Up. Dave made a motion to remove this Enforcement Order from the agenda, now that owner has complied and filed the appropriate paperwork with this Commission; RM 2nd the motion and the Commission voted unanimously to remove this EO from the agenda here forward.

 

  • 46 South Gate Island Road, John Benevento – Unauthorized work done in the BZ of Otis Reservoir. Ratified in September 2019; on November 19, 2019 agenda for reminder to Follow Up. Dave opened this hearing and invited applicant to address the Commission. Per KB we have heard nothing back from applicant, and a certified letter was sent to Mr. Benevento, to which we received no response to date. Per Dave, and with that being said, he made a motion to refer this Enforcement action on to MA DEP for further follow up. RM 2nd the motion and the Commission voted unanimously to refer this Enforcement on to MA DEP for follow up.

 

Emergency Certifications:

Forest Cutting Plan

Extensions of Orders of Condition:

Certificate of Compliance Requests:

 

  • Public Hearing – COC – Submitted by BGT on behalf of Susan and Robert Lopatkin, 783 Algerie Road, map 12 lot 34, regarding request for Certificate of Compliance for installation of residential boardwalk in the BZ of Big Pond. Dave opened this hearing and invited applicant to address the Commission. Dave asked if there were any questions or concerns stemming from the site inspection for this hearing, and none being said, Dave made a motion to issue a Certificate of Compliance for the OOC issued for 783 Algerie Road, DEP File 254-0424. DB 2nd the motion and the Commission voted unanimously to approve and issue the COC request.

 

 

Unanticipated Business:

 

 

Next office hours:  Wednesday, February 5, 2020 from 6-9 p.m. at Otis Town Hall.

Next meeting:  Tuesday, February 18, 2020 at 6:00 p.m. at Otis Town Hall.

 

Dave made a motion to adjourn the meeting at 7:03 PM. RM 2nd the motion and the Commission voted unanimously to adjourn the meeting.