HomeMy WebLinkAbout2013_9_9 Crispin letter_2014052309023102101
September 9, 2013
Dr. Ernie Steinauer, Chair
Nantucket Conservation Commission
4 Bathing Beach Road
Nantucket, MA 02554
Re: NOI, Baxter Road and Sconset Bluff Storm Damage Prevention Project
Dear Dr. Steinauer:
My husband, William Crispin, and I own a home on King Street in Sconset, and spoke in
support of this NOI at the public hearing held on August 28, 2013. This letter is submitted to
further explain the reasons we offered in support of the application. First, we believe that the
Commission is required to evaluate the application under the standard set forth in 310 CMR
10.30(3) of the state wetlands regulations, and not the more restrictive local rules. The failure to
do so could ultimately require the town to compensate the land owners for any resulting loss of
their homes. Second, we believe that the project would actually enhance the recreational
interests of the public because it will preserve the Sconset Bluff Walk, which is an exquisite
island treasure. It will also potentially enhance access to the beach below the bluff.
The Commission Should Not Apply the Local Rules Governing Coastal Banks and
Beaches. It is obviously essential as a threshold matter to determine which performance
standards govern this application. We are aware that some opponents of the application have
urged the Commission to apply local rules that establish substantially more restrictive standards
for coastal engineering structures than the standards set forth in the state wetlands regulations.
See Nantucket Land Council Letter of July 30, 2013. The Commission should reject that view
and apply the standard in the state regulations that mandates approval of the revetment as long as
it uses “best available measures” to minimize any adverse effects and no other method for
protecting the pre-1978 homes is feasible. 310 CMR 10.30(3). The regulations make clear that
the project must be approved despite potentially adverse effects on coastal beaches, including
changes in “the form of any . . . coastal beach or an adjacent or downdrift coastal beach,” when
best available measures are used to minimize those effects. See, 310 CMR 10.27(3) (precluding
certain adverse effects on coastal beaches with the express exception of projects authorized
under 310 CMR 10.30(3)(a)).
Our views on this issue are informed by our professional experiences as lawyers in
Washington, D.C. I have spent more than thirty years as an appellate lawyer, previously served
as a Deputy Solicitor General of the United States, and have argued over twenty cases in the
United States Supreme Court. Many of the cases I have handled involved interpretation of
statutes and regulations as well as constitutional issues, including regulatory takings of private
property. We have seen far too many controversies produce years of protracted litigation and
vast expenditures on legal fees because an agency did not apply the correct standard at the outset.
In this special setting, the risks of error also threaten the loss of some of the most beautiful
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summer homes in the country, and these homes materially enhance the charm of our special
community.
Although the Commission is ordinarily permitted to supplement the minimum standards
established by the state wetlands regulations, it is well established that local governments
nonetheless do not have authority to apply additional rules that are “inconsistent” with specific
provisions of state laws or regulations. See, e.g., Fafard v. Conservation Commission of
Barnstable, 432 Mass. 194, 200 (2000). As Fafard indicates, a local rule would be
“inconsistent” with state law if a municipality denied permission to proceed with a project under
circumstances where the state law expressly provides “that municipalities may [not] deny
permission.” Id. That is the case here. Even though nearly all of the state wetlands regulations
establish minimum standards by providing that the conservation commissions may only allow
various projects if certain state standards are met, 310 CMR 10.30(3) is an exception to the
general rule, and expressly provides that a revetment “shall be permitted” by the local
conservation commission “provided that the following requirements are met.” This Commission
accordingly has no authority to deny permission based on additional, more stringent
requirements. See also, Boston Gas Co. v. Somerville, 420 Mass. 702, 704-706 (1995) (finding
certain local rules that “imposed conditions beyond those established” by “particular provisions”
of the state statute or regulations to be “inconsistent” and unenforceable).
The Commission should not resist this interpretation of the governing law because there
are critically important reasons for the rule. Private property is expressly protected by the
takings clause of the Constitution, and this section of the law serves to reduce the potential that
wetlands regulations will contribute to the destruction of private homes and impose the
formidable burden of monetary compensation for the loss on the public. As the Supreme Court
explained in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16 (1992), when
land use regulations serve to destroy the value of property, there has been an unconstitutional
“regulatory taking” even where the state regulations “advance[] legitimate state interests.” The
Court emphasized that governments must pay just compensation “when the owner of property
has been called upon” by virtue of land use regulations “to sacrifice all economically beneficial
use in the name of the common good.” Id. at 1019. Nor is there any question that takings
principles apply in the context of revetment regulations. By way of example, the Supreme
Judicial Court of Massachusetts held in Wilson v. Commonwealth, 413 Mass. 352 (1992), that a
landowner who lost his home in a storm had stated a claim for an unconstitutional taking based
on allegations that the state had unreasonably delayed action on a request to build a revetment in
Chatham. We accordingly urge the Commission to respect these constitutional and regulatory
principles.
The Proposed Project Would Serve to Promote and Protect the Recreational
Interests of the Public. As a summer resident of Sconset and an avid walker, I am very
familiar with the recreational usage of the areas that would be directly affected by the proposed
project. Although the Nantucket Land Council asserts in its letter of July 30, 2013 that the
potential loss of the beach directly below the revetment demonstrates that there is an “adverse
effect on recreation,” that view fails to take all the relevant factors into account. It is far more
important to the recreational interests of the community to do what we can to save the Bluff
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Walk than to protect, at all costs, a relatively small section of inaccessible beach that is seldom
used.
It is certainly desirable to preserve the beach below the proposed revetment and it is my
understanding that the proposal has been designed to do that. But even if the beach would be
narrowed or lost, the project would still benefit recreational interests overall. If the revetment is
not built, it is obvious that we will continue to lose more and more of the Bluff Walk due to
erosion. I do not think there can be any serious question that the Bluff Walk has far greater
recreational value to the community than the strip of beach below the proposed revetment. For
example, the New York Times advised its readers on July 13, 2010, that if they only have 36
hours in Nantucket that they should include a visit to the Bluff Walk because “a stroll there is
breathtaking,” and lamented the fact that “erosion has left its mark” by requiring the closure of
the last third of a mile. Similarly, the April 2000 issue of Travel and Leisure describes the Bluff
Walk as the best walk in Nantucket. The opinions of these leading travel writers are confirmed
by usage. I typically walk all or part of the path several times per week. It is not crowded
(thankfully), but I usually see others enjoying its splendor. Indeed, the Sconset Bluff Walk
Public Access Subcommittee of this Commission reported that there were as many as 200
visitors to the Bluff Walk per day during a week in August of 2010. See report attached to
Minutes of 10/26/2010 meeting.
In stark contrast, the section of beach below the revetment is so inaccessible that it is rare
to see anyone walking there. I often walk on the beach below the bluff, but I have only walked
as far north as the start of the proposed revetment a limited number of times. That is because the
only good public access to this beach is at the north end of Codfish Park. It is a long walk
through the sand to the area where the revetment would be constructed and then there is no way
up the bluff in that location so a walker has to continue back to Codfish Park. (I was told that 55
Baxter has steps accessible to the public but a sign on the steps states it has been closed due to
dangers caused by erosion.) If I could reach Baxter Road for my return back to the village by
climbing up steps on the revetment, I would definitely walk on the beach below the bluff more
frequently. I am confident other visitors and residents of the village would do the same. It
accordingly makes little sense to sacrifice more of our extraordinary Bluff Walk to erosion in an
effort to save the full width of this inaccessible section of beach.
We urge you to approve the project, which will serve the best interests of the community
as a whole, and thank you for considering our views.
Respectfully submitted,
Maureen Mahoney
William Crispin
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