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HomeMy WebLinkAboutEnforcement Order 061022 TOWN OF YARMOUTH Conservation A � o , � Commission �` H y1"1 I" 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4492 M oRRATEO ACM pTelephone(508)398-2231, Ext. 1288, Fax(508) 398-2365 Po June 10,2022 Mr. Marc A. Whaley Triad Real Estate Nominee Trust 60-1 Munson Meeting Way Chatham, MA 02633 Dear Mr. Whaley: RE: ENFORCEMENT ORDER—30 Higgins Crowell Road,Unit 4 Please find enclosed an Enforcement Order issued for activity that has been conducted in an area subject to protection under Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Yarmouth Wetland By-law, Chapter 143 and their regulations, without approval from the Yarmouth Conservation Commission (i.e. a valid Order of Conditions). The Enforcement Order requires that you immediately cease and desist all work. You are also required to appear at the Conservation Commission meeting scheduled at 5:00 pm on June 16,2022 to discuss this matter. This meeting will take place at Yarmouth Town Hall, 1146 Route 28,South Yarmouth MA 02664. If you have any questions please contact the Conservation Office at 508 398 2231 ext. 1211. Thank you for your cooperation in resolving this matter. Sincerely Edwin Hoopes, Chairman Yarmouth Conservation Commission LL Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number WPA Form 9 — Enforcement Order 1 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-Law, Chapter 143 A. Violation Information Important: When filling out This Enforcement Order is issued by: forms on the Yarmouth June 10, 2022 computer, use Conservation Commission(Issuing Authority) Date only the tab key to move To: your cursor- do not use the Marc A. Whaley, Triad Real Estate Nominee Trust return key. Name of Violator 60-1 Munson Meeting Way, Chatham MA 02633 Or* Address • 1. Location of Violation: return I Property Owner(if different) 30 Higgins Crowell Road _ Street Address West Yarmouth 02673 City/Town Zip Code 31 64 C4 Assessors Map/Plat Number Parcel/Lot Number 2. Extent and Type of Activity (if more space is required, please attach a separate sheet): Alteration of two wetland resource areas - Bordering Vegetated Wetland (BVW) and Cedar swamp - by cutting/removing vegetation and placing fill; and alteration of a buffer to a wetland resource area - Cedar swamp - by cutting/removing vegetation and placing fill. B. Findings The Issuing Authority has determined that the activity described above is in a resource area and/or buffer zone and is in violation of the Wetlands Protection Act (M.G.L. c. 131, § 40) and its Regulations (310 CMR 10.00) and Yarmouth Wetland protection Bylaw Ch. 143, because: ® the activity has been/is being conducted in an area subject to protection under c. 131, §40 and Ch.143 or the buffer zone without approval from the issuing authority (i.e., a valid Order of Conditions or Negative Determination). wpaform9a.doc•rev.5/18/2020 Page 1 of 4 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number L WPA Form 9 — Enforcement Order Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 — Town of Yarmouth Wetland By-Law, Chapter 143 B. Findings (cont.) ❑ the activity has been/is being conducted in an area subject to protection under c. 131, §40 or the buffer zone in violation of an issuing authority approval (i.e., valid Order of Conditions or Negative Determination of Applicability) issued to: Name Dated File Number Condition number(s) ❑ The Order of Conditions expired on (date): Date ❑ The activity violates provisions of the Certificate of Compliance. ❑ The activity is outside the areas subject to protection under MGL c.131 s.40 and the buffer zone. but has altered an area subject to MGL c.131 s.40. ❑ Other(specify): C. Order The issuing authority hereby orders the following (check all that apply): ® The property owner, his agents, permittees, and all others shall immediately cease and desist from any activity affecting the Buffer Zone and/or resource areas. ❑ Resource area alterations resulting from said activity shall be corrected and the resource areas returned to their original condition. ® A restoration plan shall be filed with the issuing authority on or before September 1, 2022 Date for the following: restoration of the Bordered Vegetated Wetland and buffer to the Cedar swamp. The restoration shall be completed in accordance with the conditions and timetable established by the r---- issuing authority. wpaform9a.doc•rev 5/18/2020 Page 2 of 4 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number WPA Form 9 — Enforcement Order Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-Law, Chapter 143 C. Order (cont.) ❑ Complete the attached Notice of Intent (NOI). The NOI shall be filed with the Issuing Authority on or before: Datefor the following: No further work shall be performed until a public hearing has been held and an Order of Conditions has been issued to regulate said work. ® The property owner shall take the following action (e.g., erosion/sedimentation controls)to prevent further violations of the Act: 1.You or your agent should attend the Yarmouth Conservation Commission meeting held at 5 pm on June 16, 2022 at the Yarmouth Town Hall, 1146 Route 28, South Yarmouth MA 02664. 2. See attached Enforcement Order Condition List Failure to comply with this Order may constitute grounds for additional legal action. Massachusetts General Laws Chapter 131, Section 40 provides: "Whoever violates any provision of this section (a) shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than two years, or both, such fine and imprisonment; or (b) shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation". Each day or portion thereof of continuing violation shall constitute a separate offense. D. Appeals/Signatures An Enforcement Order issued by a Conservation Commission cannot be appealed to the Department of Environmental Protection, but may be filed in Superior Court. Questions regarding this Enforcement Order should be directed to: Edwin Hoopes, Chairman -Yarmouth Conservation Commission Name 508 398 2231 ext 1211 Phone Number M, W, H 8:30 am to 3:00 pm Hours/Days Available Issued by: Yarmouth Conservation Commission Conservation Commission signatures required on following page. wpaform9a.doc•rev 5/18/2020 Page 3 of 4 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 9 - Enforcement Order Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-Law, Chapter 143 D. Appeals/Signatures (cont.) In a situation regarding immediate action, an Enforcement Order may be signed by a single member or agent of the Commission and ratified by majority of the members at the next scheduled meeting of the Commission. Signatures: ... E11✓lp✓ Liv✓✓etn ci�ill,. Signature Printed Name Signature Printed Name Signature Printed Name Signature Printed Name Signature Printed Name Signature Printed Name Signature Printed Name Signature Printed Name 61:4—'P- 1€1.77 ig atu of delivery person or certified mail number 7-0c)? 0150 coo 3 2OZa q`igii wpaform9a.doc•rev.5/18/2020 Page 4 of 4 Enforcement Order Conditions List Marc A. Whaley 30 Higgins Crowell Road,Unit 4,West Yarmouth Parcel 31.64 1. Remove all fill(woodchips,logs,etc.)from the wetland resource area of the buffer by June 30, 2022. 2. Submit a written report listing the species of trees and size for all cut stumps>3"in diameter by 9/1/2022. A total DBH inches cut shall be obtained. 3. An existing condition vegetation plan and report,prepared by a wetland specialist, shall be submitted by 9/1/2022. The plan shall show the location(assign each stump a number)of the most recently cut stumps and the location of the stumps that have been cut before and are now suckering back. A copy of the last approved plan of record may be used to locate the stumps. The report shall list species of tree cut,and the size of the stump remaining. 4. In addition to the required planting,stump management shall be addressed in the report for stumps in conservation jurisdiction. The landscape professional shall determine and select the strongest candidate leader(s)from each of the flagged existing stumps to be managed.Any managed stump shall be identified in the field by color stakes. 5. The number of trees to be replanted will be in direct correlation with the sum of the stump diameter (SD)measurements of the trees that have been cut. Stump Diameter(SD)maybe converted to Diameter Breast Height(DBH)using USDA Forest Service Research Note S E-99(conversion chart). Must be noted on plan. 6. For replacement of illegally cut trees;the combined(added)calipers of the replacement trees shall be equal to or greater than the caliper of the illegally cut tree(s)(e.g.,to compensate for the illegal cutting of one 8"caliper(8"cal)tree,4,2"cal trees or 3,3"cal trees would be required. Trees should be located on the plan and planted as they might appear in nature—as a grove or cluster,for example. 7. Submit 9 copies(two stamped copies)of a professional restoration plan at 1"=20ft scale with full planting protocol and guide report by 9/1/2022. 8. The plan shall indicate property lines and all jurisdictional areas(i.e.edge of wetlands,coastal bank,flood zone,river front),and shall include 50'and 100' buffer from wetland resource areas. 9. Location of trees to be planted shall be identified in the field by stakes. 10. Identify"no mow/no disturbance zone"(single rail fence,bollards in consultation with staff)on plan and in the field(along the 50'buffer). 11. Native species(trees,shrubs,groundcovers,flowers)incorporated into the Re-vegetation planting plan shall be approved by the Conservation staff and be selected from the list of approved species (see Cape Cod Cooperative Extension Unit's List of Native Plants of Barnstable County)as provided by the Barnstable Conservation Commission. 12. Prior to start of work,the applicant shall convene an onsite meeting with the contractor,consultant and the Conservation Division staff to discuss the scope of work and protocols. 13. Any change in team members for the actual planting or reporting,shall promptly be brought to the attention of the Conservation Division. 14. Annual reports with photos shall be submitted by a wetland specialist* or certified arborist or horticulturist or Certified Ecological Restoration Practitioner(CERP)landscape contractor for 3 years,starting once the plantings have been in for one year. Report due date: October 31,2023, 2024,and 2025. Enforcement Order Conditions List Marc A. Whaley 30 Higgins Crowell Road,Unit 4, West Yarmouth Parcel 31.64 15. Any trees or shrubs that have died or are listed in poor health in each of the annual reports filed during the 3 year period shall be replaced in kind. Any replacement trees and shrubs will need to be monitored for an additional 3 years and require follow up annual reports. 16. There shall be no cutting or mowing beyond the demarcation line. 17. Trees shall be transported on dollies to avoid heavy equipment in the 50'buffer. 18. Failure to meet any of the deadlines listed above shall result in the issuance of an additional enforcement orders and non-criminal citations. Deadlines may only be extended by the Conservation Agent or the Conservation Commission. 19. Clearing or pruning of vegetation within the restoration planting area is prohibited except for the removal of storm damaged limbs and branches which may impact the newly planted specimens. 20. Hand clipping vines impacting newly planted vegetation maybe done at the base of the tree or shrub with hand clippers,only to the point the plant becomes well established over the 3 years. 21. No mulch is allowed within the restoration planting area except immediately under and within the drip line of an individual plant and only for the purpose of reducing competition with weeds and increasing moisture retention for the plant. 22. Full restoration shall be completed by October 31,2022. 23. Existing"managed Tree Stumps"shall be staked and protected from any impact or damage during installation of new native trees. 24. The proposed spacing for each plant or plant type will,in general,adhere to the horticultural industry standards. Always consult Cape Cod Cooperative Extension Service(CCCES)native planting lists for species-specific planting and spacing data(www.capecodextension.org). Shrubs,which may include large shrubs or small trees such as shadblow, should be spaced as follows: 2 gallon shrubs shall be planted 2—3 feet apart 3 gallon shrubs shall be planted 3 -4 feet apart Ground covers,including native meadow grasses,lowbush blueberry and bearberry should be spaced as follows:2 inch plugs shall be planted 12 inches on center,3 inch or 4 inch pots shall be planted 12 to 18 inches on center, 1 or 2 gallon plants shall be planted 2 feet on center. * wetland specialist—a person or company that has at least 2 years experience in performing wetland assessment,delineations,permitting or consulting OR a person who holds an advanced degree in wetland science(wetlands,wildlife,fisheries),OR a person that holds a Professional Wetland Scientist(PWS)certification.