6/28/2018 CONSERVATION COMMISSION Minutes

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Attorney Chris Kirrane represented Mr. Smith. He presented the Agent with the Chapter 91 License for 226 issued in 2007and said this is a non-issue and asked that this fine be withdrawn. The Attorney stated his client was not going to challenge the fines. The debris as requested was removed from the property. He said last week the contractor took full responsibility for violating the cease and desist order. Mr. Smith was not the person in the videos or the pictures but said Mr. Smith does have some responsibility. His concern is the recommendation to take out the dock. He didn’t think removing the dock is an appropriate measure. To remove a dock that is in existence, that is 90% complete doesn’t make sense. Mr. Smith understands the seriousness of the issue. If the dock was not built in compliance then he could see the Board taking such a drastic action. The Agent said both Mr. Smith and the contractor signed a form saying they read and understood the Order of Conditions. He noted the extent of the jetting of piles is unknown so the dock is not in compliance and there may be issues with the structural integrity of the dock. The lawyer said they have applied for a Chapter 91 license and gave a copy of the application to the Agent. Mr. Smith said it was a busy time of the year for him and he was unable to be at the job at all times and didn’t have the contractor’s schedule. He said he completed 70% of the job himself with no issues. He said unfortunately he had to hire the contractor to do the piles and that is when the problems began and having to do it over again he wouldn’t hire him. The Attorney suggested correcting the jetting issue and putting them in correctly going forward it could be conditioned. He said they could notify the Agent when they are going in so if he has to be there to oversee it that would be the best way. It was suggested a certified engineer oversee the project and certify that all of this dock meets all of the requirements. The Agent recommended if the Commission goes with these suggestions that we received proof of certification from the engineer to our office and that engineer submit reports that the applicant pay for and monitoring by the engineer on site during reconstruction. That burden should be placed on the applicant. We need nothing to happen until a new NOI has been approved which includes remediation of this issue. We need the engineer to tell us if those piles need to be removed. The entire plan should be laid out in a plan for the engineer to bring forward. Public Andrew Gottlieb, Selectman, speaking for himself. He stated at the end of the day this is a decision the Commission has to make. He said if you don’t back your Agent, back your own regulations, and make a clear statement that activities have to be done within the rules and regulations, there are meaningful consequences. If you don’t, then everyone has any incentive do whatever they want. The issues of this stand on its own and he asked the Commissioners to take strong action and he recommended to follow the recommendations of your Agent. He said to think about what this means to future compliance of wetland rules and regulations to the Town of Mashpee. If you don’t, you are undercutting your entire operation and I don’t see any justification for that. At this point, I don’t know why we have the rules we have and why we spend money on the Agent and don’t see the point of the entire activity of the regulations. He stated the Commissioners should follow the recommended fines which are light in context of the overall cost of the project and revoke the permit to make a point and order the dock removed and if they want to come back to get a new permit and a new dock that is fine. Mr. Gottlieb said he is willing to concede the fact there may be disruption by taking the dock out but standing up to your own rules far out ways any potential impact to the resource area. He said he knows there is a concern getting into litigation and in his conversations with the town manager is we do not shy away from standing up to our own rules and regulations when the implementation of our rules is at stake. He concluded by saying we need to stand firm as a community and uphold the standards we put in play. Attorney Kirrane said at the end of the day compliance is the goal. He said his client is willing to come with a registered engineer with a Notice of Intent to review the jetty issue and if it requires further action then his client is going to undertake that action.