7/29/2004 CONSERVATION COMMISSION Minutes

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i voicemail.and listen to this message. ,jack said he didn't think we could do that. Mr. revere said that Bob left a message saying its up to the Commission to make its decision, but given that the application to be able to build this fence was covered by a request for relief of contempt hearing which is on-going in the Barnstable Superior Court, he would suggest that either 1 the Commission table the matter or if they decide to move forward with the ratter to consult with legal counsel as to the terminology of it to make sure it adequately took into -. account the eistence of a contempt order in that proceeding. Mr. Revere said he also talked to Bob about whether if would be appropriate for the Commission to issue a determinabon to say that performing the work would be subject to Chapter 91. ,jack asked if it's a contempt order currently being deliberated by the court, wouldn't that be the proper avenue to pursue, and not come before us since it is not under our jurisdiction? Mr. Revere thought that was incorrect. He stated in his letter to Mr. Costello that the applicant literally carries the burden of proof that he has a colorable claim to do the work. He said the DBP said they could not issue a Chapter 91 license for someone to construct a dock in the private way. He said in ownership issues one has to have a colorable right to do the work. He had a letter written by a consultant hired by Save Poponsset Bay regarding Project Blythe saying this captain has the right to use the way through there. He thought it appropriate for the Commission to listen to Mr. Costello's response to his letter before rendering a decision. Jack said he regretted that Mr. revere didn't pursue this line of questioning before. llllr. revere said his letter was written on ,duly 22nd and sent by facsimile to Mr. Costello about 11 .m.,, the day of our last meeting. Mr. Revere distributed to the members a land court plan which shows the area of Mr. Blythe's Block 5 in 1923 prior to some filling, and a plan which shows that Block 5 was subdivided in 1948. He said in Mr. Blythe's plan for erecting a fence, the site for the fence is below the area in the land court plan which was historically Po pon sset Creek below mean high water and therefore is subject to Chapter 91 jurisdiction. Norman Hayes who did some.consulting work in this area concluded that Mrs.Caffyn had a right go to into that area, and he quoted that Lots A, B, C.and D, which are the filled area, represent filled tide lams which, according to Massachusetts laver, all residents can use for fishing, fowling and navigation. Mr. evere's point was that this is filled tideland and requires a Chapter 91 permit to do any work. He thinks that in our determination of applicability, if this Commission concludes that Mr. Blythe can construct the fence, he either needs to get a determination from DBP that itis not Chapter 91 land or get a Chapter 91 license before he does it. He said Regulation 25 says the plan must delineate naturally vegetated areas and give a description of the type of vegetation. The plan shows some vegetation, but no description of what's there. In Regulation 25 the key of land subject to coastal storm flowage,which the whole area is, is itis impact to vegetation* Not knowing the types of vegetation and the actual widths of the fence, it's not clear hoer you can determine the impact of vegetation in that area. He shored pictures of the area and said it seems that the width is much narrower than shown on the plan. He said this is an area very close to a B zone and he thinks it's pretty clear that the fence is outside the discussion of what was in the B zone in the past and thea was not much discussion as to how the fence would be secured. 3 t