HomeMy WebLinkAboutArticle 68 Wrk Grp Minutes - 11 09 2010_201402041900223663ARTICLE 68 WORK GROUP
Meeting of November 9, 2010, at 10:30 am
2 Fairgrounds Road, Kitchen Area
Final Minutes
ATTENDING
Members: Cormac Collier, Caroline Ellis, Bam LaFarge, Mark Lucas, Wendy McCrae,
Mike Misurelli, Richard Ray (arrived at 10:41 am), Seth Rutherford, Lee Saperstein,
Ernie Steinauer, Lucinda Young (Chair). A quorum existed at the time that the meeting
opened.
Guests: Dirk Roggeveen (arrived at 10:38 am), Dylan Wallace (arrived at 10:35 am)
Absent: Peter Boyce, Dave Fronzuto, Jim Sutherland (Administrative Assistant)
CALL TO ORDER
Chair Young called the meeting to order at 10:30 am; a quorum was present.
REVIEW AND APPROVE PRELIMINARY AGENDA
The preliminary agenda, which was projected by Secretary Saperstein onto the screen,
was reviewed quickly and approved by acclamation without change.
REVIEW AND APPROVE MINUTES OF THE MEETING OF NOVEMBER 2,
2010
The draft minutes of the meeting of November 2, 2010, were distributed previously.
Chair Young asked if there were changes or edits to be made. Hearing none, she asked if
they could be accepted by acclamation and they were. The final minutes will be posted
on the Committee’s section of the Town’s web site.
CHAIR'S COMMENTS AND ANNOUNCEMENTS; COMMENTS FROM THE
WORKGROUP
Chair Young reminded the group that the goal for this meeting was to review and, all
being well, to vote on the draft Home-Rule Petition and Board of Health Regulations.
She also mentioned potential dates for presenting these results to the Board of Selectmen:
December 1st and December 8th. She indicated that we would need to find a date for the
next meeting of the Work Group before the WG adjourned. She also reminded the group
that the Board of Selectmen are seeking applicants for positions on the newly constituted
Board of Health.
FINAL REVIEW, AND VOTE ON DRAFT REGULATORY
RECOMMENDATIONS (CIRCULATED WITH DRAFT MINUTES OF LAST
MEETING)
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Home Rule Petition, HRP, statute
Attached to, and an integral part of, these minutes is a “mark up” draft of the Home Rule
Petition that shows the amendments made at this meeting, a comment-free, clean version
of this same draft, and a draft of the BOH Regulations that incorporates the changes made
to the HRP. The “comment” utility of the word-processing program is used to identify on
the “mark-up” version the source of each of the changes of substance.
Chair Young opened the discussion of the draft Home-Rule Petition by suggesting that
we were close to a final version but that there had been reactions to last week’s draft that
we should discuss. The first of these was the 100-ft buffer zone around water-bodies and
wetlands. To facilitate this discussion, she had invited Dirk Roggeveen, Administrator of
the Nantucket Conservation Commission, to attend the meeting; Mr. Roggeveen entered
the room at 10:38 am and Mr. Ray at 10:41 am. Mr. Saperstein had the current draft of
the HRP projected onto a screen where the WG could see any proposed edits and
amendments.
Cormac Collier helped to define the issue by reminding the WG that there are many
water-front homes for which the injunction against fertilizing within 100 feet of the water
would reduce or remove the ability to fertilize their lawns. A discussion ensued about
implicit waivers for people who fertilized their lawns before the passage of the HRP,
should that occur. In other words, would they be protected as pre-existing, non-
conforming users (“grandfathered”). Mr. Ray and Mr. Roggeveen both reacted by
suggesting that the 100-ft buffer was in the Conservation Commission (Con Comm)
Regulations, not those of the Board of Health (BOH). From Mr. Ray’s vantage, the
fertilizer regulations could set any width of buffer desired – originally the WG had
suggested 25 ft but changed to 100 when it was shown that the latter number was
consistent with existing Con Comm Regulations – and the BOH would enforce that
number. He also reminded the WG that obtaining new personnel to manage and enforce
these regulations was highly unlikely in the current budgetary status of the Town.
Mr. Roggeveen, in explaining how the Con Comm operated its system of permits for land
“alteration” in the buffer zone, began by suggesting that fertilization was an operation
and not a use and therefore would not be considered pre-existing. He also did say that the
procedures for obtaining a permit could be considered burdensome. After some reading
of the Con Comm Regulations, he softened his position somewhat and suggested that
there might be easier passage for a permit application for fertilization in the buffer,
particularly in the zone between 50 and 100 feet. He also explained the detailed
procedures for enforcing the ban against fertilization in the buffer zone. It is not
automatic but is imposed as part of the suite of “Standard Order of Conditions” that are
applied to any permit for alteration activities in the buffer.
After discussion and contributions by most of the members of the WG, it was concluded
that the 100-ft buffer was not arbitrary but was consistent with existing Nantucket
Regulations. To use any number smaller would be to promote an inconsistency. Ms
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McCrae was specific that our proposal should conform to existing regulation. Mr.
Roggeveen also helped the WG to use language consistent with the Con Comm
Regulations, i.e, “permit” and not “waiver.” These language changes, retention of the
100-ft buffer, and the insertion of a parenthetical phrase about consistency with existing
regulations were approved unanimously. They appear in the Section on Prohibited
Conduct, specifically in Section 5.1.4. (sections were re-numbered after several
subsequent amendments; this is the number that existed in the draft under consideration).
Mr. Roggeveen also said that the 100-ft buffer appeared in the section specifying
exemptions on the application of phosphorus. The WG agreed that this section should
also retain this dimension and then agreed with some of Mr. Roggeveen’s suggestions for
clarifying language to be inserted into the existing Section 5.3.1. on exemptions.
Mr. Roggeveen offered suggestions for editorial improvements to other parts of the HRP
draft. Where these were strictly editorial, Mr. Saperstein volunteered to meet with him
and obtain the edits. This was acceptable to the group. At Section 8. Amendments,
however, Mr. Roggeveen stopped to suggest that, in his opinion, the restrictions on
amendments were probably unconstitutional. The WG, nonetheless, reaffirmed its
wishes that amendments be crafted with the same care as the initial draft statute and that
it be amended only with a super-majority.
At this point, Chair Young recognized Mr. Lucas who had submitted a string of
amendments in support of the BMP. He also was concerned about an extended interim
period during which the regulations would be in place but no one would be available to
enforce them or to issue licenses.
In the section on Definitions, Mr. Lucas asked that there be a separate definition for
“licensed applicator” as a person authorized to apply fertilizer by the Nantucket Board of
Health. He also asked that the definition of BMP include a clause that said that the BMP
was adopted for use by the Board of Health. Both of these suggestions were accepted by
the BMP. Mr. Roggeveen also suggested that the definitions section include “continuing
education hours” and “point-source pollution.” Mr. Saperstein indicated that these were
terms of use defined elsewhere and that he would, with the Group’s permission, get them
and put them into the definitions list. The WG concurred.
Mr. Lucas then proposed a new and separate sub-section to go into Section 5. Standards
of Performance that stated that the Nantucket Best Management Practices (BMP) would
be available through the Department of Health and that it, having been carefully
assembled and reviewed, would be able to be amended only after similar thoughtful
deliberation and review. The initial BMP was drawn from the works of and reviewed by
soil and turf scientists and his proposed change requires that amendments to the BMP be
created with the same care and then passed by the Board of Health only with a super
majority. Effectively, his proposal was a revision and relocation of Section 8.1 of the
original section on amendments. Mr. Lucas also noted that this proposal was linked to
his previous suggestion for revision to the definition of the Nantucket BMP.
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Mr. Lucas’s next discussed his concern about the limbo in which landscapers would find
themselves if the HRP or the BOH Regulations were to pass and there was no program of
education and licensure. The draft under review would, if everyone was honest, make it
impossible to apply fertilizer if the Town did not have the resources to create and
educational and licensing authority. His proposal for a new Section 5.3.3. would deal
with the interim period between passage of the proposal and initiation of the licensing
program. Effectively, it asks that landscapers, who would not have a license at this point,
follow the dictates of the Nantucket BMP. The WG concurred with this suggestion.
His final set of suggestions was that all of the penalties in the HRP be at the same level as
suggested by Mr. Ray for the BOH Regulations draft, namely $300 per infraction instead
of the $500 that had been written. Inasmuch as the HRP draft has a sub-section for
multiple infractions, Mr. Lucas suggested that the penalty for that be lowered from $5000
to $500. The group agreed.
Board of Health, BOH, Regulations.
It was evident that there would not be time enough to discuss the BOH Regulations in
detail. Mr. Saperstein suggested that he would create a new draft of the BOH Regs for
the next WG meeting that incorporated all of the changes made to the HRP at this
meeting. The BOH draft would be identical to Sections 4. definitions, 5. Standards of
Performance, and 6. Education, Licensing, and Penalties. The WG agreed with this
procedure. Mr. Roggeveen left at 11:54 am.
NEXT MEETING
A review of personal schedules showed that there was no day in the period from
Thanksgiving to December 10th in which everyone would be available. Given the need to
submit material to the BOS by December 1st for their meeting on December 8th, it was
agreed that the next meeting of the WG would be on Tuesday, November 30th at 10:30
am. Mr. Saperstein will arrange for a room and notify people of time and place shortly.
Any member who could not attend on the 30th was asked to review the attached drafts
carefully and, perhaps, give her or his written (e-mail) proxy to the Chair or other
designated person.
ADJOURNMENT
Adjournment was moved by Chair Young at 12:05 pm and the group acceded
unanimously.
Minutes taken by Lee W. Saperstein, Secretary