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HomeMy WebLinkAbout36 SE48_3115 Judith Wegner Comments 03_08_191 March 8, 2019 Nantucket Conservation Commission c/o Jeff Carlson: jcarlson@nantucket-ma.gov RE: Concerns re SBPF Expansion Proposal (SE48-2824) Dear Members of the Conservation Commission: Thanks so much for your diligent efforts to hold effective public hearings on the proposals by the SBPF to expand its existing geotubes project in Sconset from its current scale to 4,000 feet in length. I truly appreciate your careful attention to evaluation of expert testimony. I believe your care in doing so is crucial to protecting our Island. I also appreciate the fact that such evaluation is not an easy task, given the need to assess the characterizations and recharacterizations of evidence by the SBPF. I am writing at this time for two purposes. I want to share with you observations and evidence I have presented to the Select Board on related matters, so that these observations and related evidence are part of the record in this proceeding now and potentially on appeal. I will not go into detail on these matters here, but simply provide the related documentation for your information. But if you are able to do so, I urge you to consider the relevance of the fact that the surface of the Sconset Bluff and the beach below the bluff is held in trust by the town on behalf of its inhabitants and is should not be treated the same as property owned by the Town or private property owners outright. In addition, I urge you to consider with care issues concerning the Massachusetts Wetlands legislation that as far as I know have not been raised in the past. That legislation sets minimum protections and seems to assume that applications for permits involving private property ownership that extends down to the low water mark, where the public trust doctrine (and related legislation) comes into play. This simplistic framework does not tell the whole story of the situation involving the Sankaty Bluff or in a number of other areas in Nantucket, where the town holds rights to coastal lands (lying between private properties and public trust lands held by the Commonwealth), in this case (and in others) in trust on behalf of its inhabitants. Massachusetts law and the regulations you apply have not probed the significance of situations in which there are intervening property rights held by public or nonprofit entities that may be adversely affected by claims of upland private property owners to introduce revetments. It is time for further inquiry on these issues, particularly in the face of climate change. I am not sure whether this is the case in which the Conservation Commission might want to seek further legal advice on related issues, but want to bring these considerations to your attention for further thought. My more relevant request at this moment is to ask you to give close attention to how you craft your findings and conditions in connection with this application. 1. Observations and Evidence: Preparing Upcoming Drafts. As is explained in my correspondence with the Select Board, there are numerous legal issues related to this application that I believe have not been adequately explored. I imagine that these and other legal issues may be of concern to the Conservation Commission as it reaches conclusions and drafts conditions. I urge you strongly not to rely upon SBPF counsel to draft documents for you since as proponents they have tended to seem to have recharacterized evidence in questionable ways, both before you and before the Select Board. You should do what you can to secure your own legal counsel and engage them in requisite drafting, rather than accepting what may be questionable statements prepared by representatives of SBPF. 2. Town Bylaws, Conservation Commission Regulations, and Their Significance. As the Conservation Commission is well aware, it has authority not only to apply state law but also to apply governing local bylaws and regulations applicable to this project. I know that Commission Golding (and perhaps others) 2 have been giving particular attention to provisions of the Conservation Commission’s regulations relating to the extent to which various structures are protected by relevant law. I commend the Commission for giving close attention to these issues and hope they will continue to do so before reaching a final judgment on the SBPF’s application to expand its geotube project. 3. First, Do No Harm. This formulation of physicians’ obligations has some bearing here. If in doubt, the Con Com should do all it can to reduce the potential future risks associated with the proposed significant expansion of the SBPF permit. In particular, it should a. Deny the proposed expansion application and limit the term of the existing permit to three or five years (the least duration possible), because of the demonstrable harms and the availability of reasonable alternatives. b. Require enhanced monitoring and reporting (particularly as to Sesachacha Pond, which was breached in 2018 winter storms and is a vulnerable and sensitive ecological area that could face significant adverse effects from continuing erosion that might be triggered by the expanded SBPF project), c. Require close monitoring and documentation regarding the apparent narrowing of the beach below the Sankaty bluff to document what damage is being done to the public right-of-way held in trust by the Town, determine whether the beach is still “walkable” as previously provided, and assess whether other legal requirements (such as those relating to MA Ch 91 (relating to waterways), Army Corps of Engineers permit requirements, or Massachusetts Constitution article 97 are implicated as the result of adverse effects of erosion resulting from the expanded geotubes; d. Require significant and secure financial guarantees from SBPF that would require them to be responsible for financial costs associated with damage resulting from the expanded project and costs of removing geotubes (bearing in mind that the SBPF itself is not a secure source of financial guarantees since it is dependent on annual contributions and has no meaningful financial resources that could provide financial security in the absence of carefully framed personal financial guarantees or bonds), e. Review prior representations by SBPF and require re-affirmation of commitments included in the MOU with the town as to Baxter Road relocation and associated easements (since SBPF representatives have said in testimony before the Commission that they are not bound by these commitments unless the permit is expanded). 4. Reminding the Select Board of their obligations to defend Conservation Commission action. I have written to the Select Board to remind them of their obligation to fund a vigorous defense of whatever decision the Conservation Commission reaches on the current permit application. I urge the Commission to remind the Select Board of their obligation to fund and support sound and vigorous representation in defense of any decision reached by the Conservation Commission. Conclusion. Thanks very much for your consideration of these matters. I plan to attend the March 11 meeting of the Conservation Commission, but will need to leave to participate at the Planning Board meeting that begins at 5 p.m. I would appreciate your consideration and possible permission to share these comments with the Commission before I have to leave. Thanks again for your diligent work on behalf of our precious Island. Sincerely, Judith Welch Wegner 50 Quidnet Road Nantucket, MA 02554 E-mail: judithwegner@gmail.com 1 March 9, 2019 Nantucket Select Board Members Libby Gibson, Town Manager C/o Erika Mooney VIA EMAIL: EMooney@nantucket-ma.gov RE: Concerns re SBPF Proposed Expansion Dear Members of the Select Board and Town Manager Gibson: Thank you for your increased attention to issues raised by the proposed expansion of the SBPF geotubes project in Sconset. I am writing to provide additional information for the record and to urge you to engage in further due diligence before agreeing to grant an extended license affecting property held in trust by the town for its Inhabitants in furtherance of this expanded project. More Due Diligence Is Needed. There are several areas in which further due diligence seems clearly necessary: 1. Crucial portions of the Sconset beach and Sankaty bluff surface below Baxter Road are held in trust on behalf of the Inhabitants of Nantucket, and the town has additional fiduciary responsibilities different from those that would apply if the town had simply acquired title to these lands outright. a. Title Search. I have attached a summary and a detailed document reflecting the title search that I conducted reflecting the history of title to the surface of the Sankaty bluff and the beach below the bluff. b. Rights Held in Trust Not Outright. This title search demonstrates that the town holds property rights in both the bluff surface and a right of way on the beach itself. Rights in both these contexts that were established in trust, and are consistently stated as being held in trust, thereby imposing a duty of fiduciary care on the town and an obligation to manage these property interests on behalf of the inhabitants of Nantucket. See Cohen v. City of Lynn, 33 Mass. App. Ct. 271 (1992) (legislature unable to convey to private party property with rights held in trust to serve as buffer between private uses and the ocean; action by legislature to do so would be unconstitutional under the federal Impairment of Contracts Clause). c. Trust Documents Prohibit Conveyances in Severalty for Individual Benefit. Moreover, the title records explicitly state that these property interests may not be transferred “in severalty” to benefit individual property owners, as opposed to the Inhabitants as a whole. d. Past Violations of the Town’s Obligations as Trustee Should Not be Exacerbated. The town’s past license allowing the SBPF project on its current scale violates these trust obligations. This violation of the town’s fiduciary obligations could give rise to litigation, particularly under Article 97 of the Massachusetts Constitution. e. Past Incomplete Legal Opinions Should be Revisited to Consider Specific Property Rights Governing Relevant Property. Legal opinions received by the town in support of acting in 2 concert with or in support of the prior SBPF project should have recognized distinctive property rights affecting individual parcels of land on the Island. Unfortunately, the legal counsel did not even consider the actual title in affected lands held in trust by the town. f. No Further Extension without Clarification and Explanation to the Citizens. The Town should certainly explore its legal obligations further before agreeing to extend an expanded license for a 4000-foot geotube project. 2. The Select Board has authorized an article to be considered at the Annual Town Meeting on April 1 relating to relocation of Baxter Road. Further analysis is required. I appreciate that some additional information on this point has been provided as part of the Select Board’s March 13, 2019 agenda packet. It is not sufficient, in my opinion. a. Greater Clarity Is Needed Before Authorization of Baxter Road Expenditures at Town Meeting. The voters and taxpayers of Nantucket (and the Select Board) need greater clarity on the Town’s obligations to relocate Baxter Road in the event of further erosion of the Sankaty Bluff. The original legal opinion issued by Town Counsel appears to assume that there is an obligation to relocate the road based on state statutes, but that opinion does not take into account evolving legal principles concerning municipal liability in the face of climate change, where town infrastructure is adversely affected by erosion that occurs by force of nature rather than as the result of affirmative acts taken by municipalities. The Select Board should seek clarification of its obligations before asking taxpayers to pay for such relocation, and should also assure that there is adequate information about the town’s right to establish a betterment district that would require payments from property owners who would benefit from such relocation, before taxpayers are asked to buy “a pig in a poke.” Voters deserve this information in advance of the April 1 Town Meeting or action on the proposal should be deferred until information concerning the rationale and details of financing is made available. b. Greater Clarity is Needed Before Town Meeting Given SBPF Statements that Alternative Access Rights Are Not Available Unless Permit is Expanded. Recent statements by SBPF representatives communicate a position that alternative access rights to facilitate relocation of Baxter Road may not be available unless the Town agrees to expand the geotube project to 4000 feet in length. That position seems at odds with prior “agreements” with the Town, and taxpayers need to have accurate information before being asked to vote for expenditure of public funds for engineering work that may not yield a realistic opportunity for relocation. c. Don’t Let Bullying Distract You. Taxpayers also deserve more definitive guidance on whether the Town is actually legally responsible to take on modifications of Baxter Road, what costs are entailed, and when. SBPF counsel’s comments included in the Select Board agenda packet for March 13, 2019 again brush off legitimate inquiries with unbecoming arrogance. Counsel refuses to acknowledge his own past comments to the Conservation Commission, in which he expressed his view that existing documents do not require SBPF to comply with previous agreements or requirements relating to removing geotubes or relocating Baxter Road. He tells others to just read the documents and suggests that neither he nor the Select Board has a responsibility to respond to inquiries that arise because of his own statements and representations. In all candor, it is surprising that SPBF counsel appears to believe that he should 3 be allowed to answer questions raised by the Select Board, on behalf of the Select Board and Nantucket citizens. The Select Board owes Nantucket citizens answers, particularly as to matters about to be raised in Town meeting. The Select Board is derelict if it continues to allow this kind passive-aggressive bullying to impede the ability of the Board and the citizens to grapple with serious questions facing the island regarding environmental protection and fiscal accountability. 3. The intersection of several distinct legal regimes needs to be more fully understood by the Select Board and the public before the voters and taxpayers are asked to take action at Town Meeting. a. Wetlands Protection (MGL Chapter 131, Sec. 40, 310 CMR 10). i. The Conservation Commission is currently proceeding under this provision, and is focused on issues relating to “coastal banks” (310 CMR 10.30) Provisions relating to “coastal beaches” are also implicated (310 CMR 10.27). Key regulatory standards require the Conservation Commission to make the following determinations: a) A Coastal Bank is presumed to be significant for storm damage prevention or flood control because it supplies sediment to coastal beaches b) Accordingly, under Massachusetts regulations: 3) No new … coastal engineering structure shall be permitted on such a coastal bank except that such a coastal engineering structure shall be permitted when required to prevent storm damage to buildings constructed prior to the effective date of 310 CMR 10.21 through 10.37 or constructed pursuant to a Notice of Intent filed prior to the effective date of 310 CMR 10.21 through 10.37 (August 10, 1978), including reconstructions of such buildings subsequent to the effective date of 310 CMR 10.21 through 10.37, provided that the following requirements are met: (a) a coastal engineering structure or a modification thereto shall be designed and constructed so as to minimize, using best available measures, adverse effects on adjacent or nearby coastal beaches due to changes in wave action, and (b) the applicant demonstrates that no method of protecting the building other than the proposed coastal engineering structure is feasible. [Nantucket’s Conservation Commission regulations provide even more expansive protection]. 4) Any project on a coastal bank or within 100 feet landward of the top of a coastal bank, other than a structure permitted by 310 CMR 10.30(3), shall not have an adverse effect due to wave action on the movement of sediment from the coastal bank to coastal beaches or land subject to tidal action. c) Proponents of coastal engineering structures (the SBPF) bear the burden of proof (310 CMS 10.03) (1) Burden of Proof. (a) Any person who files a Notice of Intent to perform any work within an Area Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone has the burden of demonstrating to the issuing authority: 1. that the area is not significant to the protection of any of the interests identified in M.G.L. c. 131, § 40; or 2. that the proposed work within a resource area will contribute to the protection of the interests identified in M.G.L. c. 131, § 40 by complying with the general performance standards established by 310 CMR 10.00 for that area. 4 b. The Massachusetts Waterways statute (MGL Chapter 91, 3010 CMR 9) is designed to balance the public’s “public trust” rights in its waters against desires of private property owners to engage in activities affecting the Commonwealth’s waterways. i. If the SBPF project affect the Commonwealth’s waterways (lands held in public trust located below low water mark), it needs to seek a chapter 91 license, but has not done so. Given ongoing erosion of the public beach resulting from its geotube installations, SBPF may well need to do so at some point before long. If the Sankaty beach continues to narrow as a result of the geotubes (as photographs currently show), the project may also require Army Corps of Engineers approval. a) Chapter 91 relies on a simplified property rights structure, assuming only that there are upland private property rights, and either Commonwealth tidal rights or private tidal rights. b) However, Chapter 91 explicitly states that the grant of a license under that chapter of the statutes “shall not convey a property right, nor authorize any injury to property or invasion of rights of others.” c) Thus, the rights of the Inhabitants of Nantucket, held in trust by the town, should not be adversely compromised by a grant of a chapter 91 waterways license, and the Select Board needs to protect such rights. ii. The Select Board is not obligated to enable the SBPF’s expansion of its geotubes projects. a) Chapter 131, section 40, relating to wetlands, does not require the town go authorize SBPF to destroy the Sankaty bluff or beach right-of-way given in trust years ago on behalf of the inhabitants of Nantucket. If the Select Board chooses to confer such rights to a private party, it is violating the terms of the governing trust. b) Chapter 91 assumes that there are private rights and public rights to waters, but doesn’t address separate property rights in beaches since such rights are atypical. The town needs to secure legal advice on how relevant legislation applies to beach areas below the Sankaty bluff, as well as other areas on the Island where the Town holds rights to beaches or other coastal lands for the benefit of the public. c. Massachusetts Constitution Article 97. i. The Massachusetts Constitution provides that: The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. The general court shall have the power to enact legislation necessary or expedient to protect such rights. 5 In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes. Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court. ii. Rights of Inhabitants Held in Trust. As evidenced by the earlier discussion of the chain of title for rights to the surface of the Sankaty Bluff and the rights of way created in trust for the inhabitants of Nantucket to beaches in Sconset, there is a strong argument that these rights are protected under article 97 of the Massachusetts Constitution and cannot be conveyed away for private benefit inconsistent with the terms of trust documents preserving the rights to the Inhabitants of Nantucket, with rights not to be conveyed to private individuals in severalty. 4. Nantucket is facing significant challenges relating to climate change but has not as yet developed meaningful strategies for addressing such challenges Island-wide. The Select Board should not support or make financial commitments to support certain private property owners on a piecemeal basis without addressing the larger picture. a. Hazard Mitigation Plan. The Select Board has recently reviewed the town’s “Hazard Mitigation Plan,” a document that must be submitted in order to access FEMA funding in the face of natural disasters. The town administration let the plan lapse from 2012 to 2019, and hired consultants who did an unacceptable job by failing to develop a meaningful plan that would allow town officials and citizens to understand and address related policy issues. The Select Board passed an improved version of the Hazard Mitigation Plan on March 6, after citizens challenged the version submitted by paid consultants and did much of the legwork necessary to propose revisions. But the development of the plan appeared primarily motivated to satisfy checklists that specify what is required to qualify for federal funds. Having observed this process closely, it is unclear whether the Select Board regards actual action, or tracking of implementation as priorities. In the absence of a considered commitment to address crucial environmental hazards Island-wide, the Select Board should not give public support and privileged status to some property owners on some parts of the Island. Doing so creates precedent inconsistent with the needs of the public writ large. b. Coastal Resiliency Plan. The Town hired the same consultants who worked on the Hazard Mitigation Plan to take principal responsibility for coastal resiliency planning. Not surprisingly, the town’s coastal resiliency planning process to date has been limp and ineffectual. Particularly since many areas of the Island are at risk from rising seas, tidal surges, and erosion, it seems clearly inappropriate for the town to move ahead with allowing 7% of the eastern shore of the Island to be subjected to adverse effects of a coastal engineering structure without developing a more comprehensive Island-wide plan about when such structures can appropriately be used (not just at the request of private property 6 owners, but with the aid and support of town officials who are in effect putting public rights and resources at risk). c. Great Ponds. One of the Island’s most precious resources is its Great Ponds. These ponds are protected from the ocean only by relatively thin strips of beach land that are at risk of breach given more intensive storms, storm surges, and erosion. State statutes regarding wetlands and waterways give Great Ponds special protection. It would seem that at the very least, town policy (and the town’s hazard mitigation and coastal resiliency plans) should give special attention to protecting the fragile infrastructure of Nantucket’s great ponds. As members of the Select Board are well aware, in March 2018 Sesachacha Pond breached at the ocean and the Polpis Road at the far end of the Pond was as a result rendered impassable for six weeks as the town endeavored to make repairs. Although SBPF and others may argue that it cannot be proved that their coastal engineering structures are responsible for such breaches, the Town needs to require intensive monitoring, data collection, limited licenses pending continuing analysis, and rights to terminate any town-authorized license to protect against risks that these fragile ecosystems will be compromised and the property rights of citizens with nearby property will be adversely affected. d. Sand Resources. SBPF has claimed a lion’s share of the Island’s available sand in order to continue to resupply its geotubes. Well-documented negative effects on the Island have resulted, including reducing the volume (and increasing the cost) of sand needed for other uses, deterioration of the town’s roads due to heavy trucks delivering sand, and increased noise and disruption of the peace of property owners in Sconset. The Town Administration has admitted that the Department of Public Works is trying to address the adverse impacts of trucks transporting heavy loads of sand into Sconset, although, once again, SBPF counsel has brushed aside such concerns stating that such heavy loads and intensive deliveries are no different from those being delivered elsewhere on the Island. Sand will be increasingly important going forward, as other areas of the Island face the effects of erosion, sea level rise, and storm surges. The Select Board should not ignore the adverse effects of the current SBPF geotube project in depleting Island sand resources, increasing costs, or damaging to the town’s roads. The Select Board should also take note of the ongoing obfuscation by SBPF and its counsel regarding the real implications on town roads and residents in Sconset who have been adversely affected by recurring sand deliveries. 5. The Select Board Owes the Citizens Close Assessment of the Completeness and Veracity of SBPF Representations The citizens and taxpayers of Nantucket look to the Select Board and the Town Administration as those responsible for protecting the public interest in Island resources and the public fisc. I have attended many relevant meetings of the Select Board and the Conservation Commission and have viewed other meetings on-line. I find it particularly disheartening that proponents of the SBPF project have repeatedly made questionable representations about the facts, at least as I understand them. I am also troubled that SBPF counsel appears intent on vilifying or marginalizing the Nantucket Coastal Conservancy for its very legitimate efforts to raise questions about SBPF’s undertakings. For example: 7 • Representations that there is no erosion resulting from the existing project. Such representations are inconsistent with evidence submitted by the Land Council expert and by peer reviewer Greg Berman. SBPF has attempted to characterize at least the Berman report as consistent with its position, but a straightforward reading of the Berman report indicates that the independent peer- reviewer believes that an expansion of the SBPF project creates significant risks to the Island’s eastern coastline. • Representations about future payments for geotubes maintenance or geotube removal. The Town entered into a memorandum of understanding that purportedly stated that SBPF would be financially responsible for geotube maintenance or removal. More recently, SBPF counsel has suggested that SBPF is not bound to maintenance requirements unless the geotube project is extended. The SBPF itself has only the funds contributed to its coffers, so past representations that it will pay for geotube removal are not backed by actual financial resources to do so and could be easily avoided. • Representations about Baxter Road relocation. SBPF had represented previously that it had worked with the town to secure “springing easements” to facilitate relocation of Baxter Road if needed. More recently, including at a February 2019 Conservation Commission meeting, SBPF’s counsel has taken the position that past agreements regarding relocation of Baxter Road can only take effect if the town agrees to support an expansion of the SBPF project to 4,000 feet in length. • Representations about Property Protected by Wetlands Legislation. SBPF has asserted that many properties on Baxter Road are eligible for protection under state wetlands legislation. The SBPF’s claims that a myriad of properties on Baxter Road deserve protection through a coastal engineering structure fails to grapple with the limitations of protection for properties that have substantially changed based on post 1978 expenditures, as addressed in the Conservation Commission’s regulations. The Conservation Commission is doing its best to look into related issues, but the SBPF’s assertions illustrate its continuing tendency to claim protection for private property that extend beyond the extent of legally cognizable rights. • Other Questionable Representations. It should not be the obligation of citizens alone to document the absence of evidence or the problematic assertions made by project proponents. Citizens acting in good faith to secure answers to legitimate questions should not be vilified or brushed aside by legal counsel of proponents seeking to exploit rights held by the town in trust for its Inhabitants. The Town has an obligation to evaluate proponents’ claims on behalf of the citizens. While there are complex legal and scientific questions at issue, the town’s elected officials owe it to the rest of us to grapple closely and methodically with them, and not to simply to take as true ambiguous or misleading representations by proponents that have not been fully verified by independent, informed judgments. Conclusion. Thank you once more for the opportunity to document and express my concerns about the significant problems created by the proposal of SBPF to expand its geotubes project. I want to close by speaking a bit more personally. 8 • Why It Matters to Me. I have lived my personal and professional life based on a belief that good government matters, public engagement matters, enlightenment matters, and the rule of law matters. I was a law professor for 35 years and taught land use law and state and local government law. I served in federal government, local government, and on advisory committees for state government before retiring here to Nantucket. I am now an elected member of the Planning Board. My treasured great aunt, Helen Kirk, lived in Quidnet as a widow for more than half of her life, and she inspired me by her example to care for our fragile environment and cherish the community here. I believe I hold the land and home she left me for the benefit of future generations. I have no financial interest in this debate. I am not contributing to a “nonprofit” organization in order to protect the value of my property. I simply believe I have an obligation to the inhabitants of Nantucket to ask questions, contribute my expertise, speak truth to power, and endeavor to protect our fragile environment. I need to do what I can while I can. I have therefore poured many hours of professional time into trying to understand and document crucial issues that I fear the Select Board and town administrators have not understood or taken sufficiently to heart. I understand that it is not easy to engage with difficult questions. I must stress, however, that failing to engage deeply with challenging matters amounts and to probe the representations of financially benefited parties amounts to a decision as well. We need more from you. • Nantucket Needs Informed and Engaged Leadership Committed to Comprehensive Problems Arising from Climate Change. Nantucket is poorly served by its current local government if Select Board members and senior town administrators do not seek the expertise that they lack but need to address matters of great moment in in connection with the coming climate change storm. Some of the relevant expertise is legal expertise. But scientific expertise seems even more important. It is unclear that the Town has adequate expertise available among its staff or through its choice of contractors. It is likewise unclear whether the Town has adequate willpower to bring that expertise to bear in the face of real concerns. The SBPF’s expanded project is just one example of the intersection of powerful natural forces and human resistance to climate change realities. Another example is evident in Tom Nevers, where the remnants of buried military installations or other debris are increasingly visible on the beach but no decisive action has been taken to address related risks to health and safety. We cannot afford to proceed in an ad hoc fashion with town priorities being driven by those who complain the most. We need to act as though the future of the Island depends on us. Because it does. It is time to do more than pay lip service to that goal. Step up. Ask questions. Seek expert advice. Do the right thing. Our Island and our citizens are counting on you. Sincerely, Judith Welch Wegner 50 Quidnet Road Nantucket, MA 02554 Phone: 508-228-4270 E-mail: judithwegner@gmail.com 1 Title Search Summary: Parcels 48.8 and 49.9 Sconset Bluff (JWW, 2/17/2019 transcription of records) 1. 12/8/1883 Proprietors to Flagg (Deed Book 68, Page 516) Conveying… “all the common land lying Eastward of the east line of Plainfield Division and of the extension of said line Northward and between the extensions Eastward of the South line of said division of Plainfield on the South, and of the South line of the Squam Division on the North, with the understanding that said Flagg is to re-convey a certain portion thereof to said Proprietors, to be held in trust by them and also to secure to said Proprietors a roadway two rods wide over and across those portions of land by him received, as set forth in the draft of his quitclaim deed to said Proprietors to be herewith recorded, and said Proprietors with an equivalent of ten sheep commons of all the common and undivided land of the island of Nantucket” [Lot layers: William Folger, Andrew M Myrick, Allen Coffin] See Prop’s Records Lib. 6 p. 12 Recorded December 20, 1883, 11hr. 30 min. a.m. 2. 12/8/1883 Flagg to Proprietors (Deed Book 68, Pages 516-518) … Quitclaim unto the said Proprietors of the Common and Undivided Land of the Nantucket, all that tract of land lying between the Eastern short of the Island of Nantucket near the division known as Plainfield, Sesacacha, and Squam as the same was set off to me by said Proprietors on the eighth day of December 1883 as will appear by reference to the Records of said Proprietors as Book No. 6 page 12, also Records of Deeds for Nantucket County, Book No. 68, page 516, excepting the following described portions of said land, viz. First all that tract lying Eastward of the land conveyed to me and Eliza L. Flagg, my wife, by deeds respectively of Fred’k M. Pitman, see Records aforesaid Book 62 p. 464 and James H. Wood, Book 66, p. 498, between the extension of the Northern boundary lines of said land, purchased of Pitman, and the Southern boundary line of said land purchased of Woods. Second, all that tract of land lying Eastward and between the extension of the Northern and Southern boundary lines of a certain other tract of land conveyed to me and Eliza L. Flagg to Wm Ballantyne, by deed recorded with Records aforesaid Book 68, p. 317. The land hereby released is to be forever held in trust by the said Proprietors and their successors for the purpose of roadways or other public uses and purposes, and not to be granted or set off by them in severalty to any individual person or persons. And I also hereby convey to the said Prop’s a right of way, two rods wide along the shore above the line of high-water, mark over and across the tracks of land, herein above excepted and reserved, said right of way being forever secured to said Props notwithstanding any changes that may hereafter take place in the beach, affecting the position of said line of high water mark. To have and to hold the granted premises with all the privileges and appurtenances thereto belonging, to the said Proprietors of the Common, Undivided Lands and their successors and assists, to their own use and behoof forever, but in trust nevertheless, for the purposes herein set forth. And I do hereby for myself and my heirs, executors and administrators covenant with the said grantees and their successors and assigns that the granted premises are free from all incumbrances, made or suffered by me, and that I will and my heirs, executors, and administrators shall warrant and defend that same to the said grantees and their successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under me but against none other. And for the consideration aforesaid I, Eliza L. Flagg, wife of 2 said William do hereby release unto the grantees and their successors and assigns all right of or to both dower and homestead in the granted premises. By witness whereof we the said William L. Flagg and Eliza L. Flagg hereunto set our hands and seals this 15th day of December in the year one through eight hundred and eight three. Signed and sealed (notarized by Otto Bauman) [recorded December 20, 1883, 11 hrs. 30 min. a.m.] 3. September 22, 1892 Flagg to Proprietors (Deed Book 76, Pages 342-344) I, William J. Flagg….do hereby remise, release, and forever quitclaim unto the said Proprietors all my interest in land, situated on said Island of Nantucket, that lies Easterly of the most Easterly boundary line of the most Easterly tier of lots (numbered 1 to 43) on the plan on file with the Nantucket Deeds Book of Plans No. 2, Fol. 81, Entitled Plan No. 2 of Land Belonging to Wm. J. Flagg, situated on Sankoty Heights Nantucket, Mass. And of lots (numbered from 1 to 5) Belonging to William J. Flagg (Book of Plans No. 2, fol. 83) as well as all that eastward of the projection of said boundary lines crossing land of mine not included in any such lots, so as to form one continuous strip of land uninterrupted by any highway, and extending from a projection of the Southerly boundary line of lot number five (5) of said “addition number 1” to a projection of the Northly line of the road that bounds n the north lot number one (1) of said “Plan number two” and its width including all land lying between the said most Easterly tier of lots on the West and on the East by land heretofore conveyed by said Flagg to the Proprietors, by deed on record in Nantucket Land Records to which reference is here made. Excepting, however and reserving to the Grantor, a piece of land adjoining on the Eat of lots no. 1 + 5 of said “addition number 1” bounded Westerly by said lots 4 + 5 of said “Addition number 1,” bounded Westerly by said lots 4 + 5 Easterly by a line running from the South Easterly corner of said Lot 5, seventy one 27/100 feet to a point in an Easterly projection of the line dividing those lots, and seventy-five (75) ft. from their West boundary, and thence running seventy-nine 96/100 ft. to the North-Easterly corner of said lot no. 4. For further description, see vote of acceptance by the Proprietors, at a meeting held Sept. 3, 1892.[*] The strip of land hereby released is to be forever held in trust by the said Proprietors and their successors, for the purpose of a way or footpath along the bank, and for no other purpose or purposes whatsoever, and not to be granted or set off by said Proprietors in severalty to any person or persons whatsoever. And on further trust to convey the said land subject to and for the uses and purposes aforesaid, and no other, to the Town of Nantucket or other Corporation or authority having power to accept or maintain highways in the territory within which said land lies, when said town or such corporation or authority will accept the conveyance. To have and to hold the granted premises …. [acknowledged September 22nd 1892]; [recorded September 22, 1892, 11 hr. 30 min. a.m.] 3 Proprietors’ Meeting of September 3, 1892 exist at Prop. Records Vol. 6, pp. 114-115 Published agenda from Inquirer & Mirror lists as second item: ”To see if the Proprietors will accept a certain tract of land, in trust, located at Sankaty Heights, according to the petition of William J. Flagg” Proprietors’ Meeting Record states: Voted that under article 2 of the call the petition of William J. Flagg viz: “to see if the Proprietors will accept a certain tract of land in that part of Nantucket known as Sankaty Heights: but in perpetual trust and for the purposes named above, to the Town of Nantucket or other corporate body having control of the highways of the Island of Nantucket be granted and the tract of land as shown by a map or Plat of land entitled “Plan of a piece of land lying Eastward of ‘Sankaty Heights’ and the ‘Addition No. 1’ there to conveyed by William J. Flagg to the Proprietors in trust for a foot path.” Scale 150 feet to 1 inch and drawn by Wm. Flagg, dated Sept. 3 1982, be accepted. 4 5 4. May 1, 1925 Proprietors’ Meeting (Vol. 7, pp. 161-170, Proprietors’ Records) [Meeting to address four warrant articles, as published April 4, 11 and 18, 1925]:… (3) To take action in regard to deeding to the Town of Nantucket certain land between the top and bottom of the bluff at Siasconset, deeded to said Proprietors as Trustee by William J. Flagg, recorded in the Nantucket Registry of Deeds Book 76, Page 342, and to state the conditions of said Trust and transfer (4) To see what action the Proprietors will take toward transferring to the Town of Nantucket the land owned by said Proprietors as Trustee, between the land set forth in Article three above, and the Atlantic Ocean, and to state the conditions of said Trust and transfer] [at page 165]: Voted: to take up for consideration Article three of the warrant. After careful consideration, and upon motion, duly made and seconded it was voted: Whereas the Proprietors of the Common and Undivided land of the Island of Nantucket did receive a deed of certain land at the easterly end of he Island, but in Trust for certain purposes, in accordance with deed of William J. Flagg to said Proprietors as Trustee, dated Sept. 21, 1892, recorded in the Nantucket Registry of Deeds, Book 76, Page 342 (See also Proprietors Record Book 6, Page 114) And whereas the Town of Nantucket has voted to accept said parcel of land as Trustee, in accordance with the terms and trust expressed in a deed a copy of which is set forth below. And whereas said Town has caused the land to be bounded in accordance with a plan entitled “Land at Siasconset, Nantucket, The Path, Surveyed for the Town of Nantucket, September 22, 1924, William S. Swift, C.E.”, said land being shown on said plan as lots A and B. Now therefore, in accordance with powers conferred in said Trustee Deed said Proprietors do hereby vote that Albert G. Brock be hereby authorized and empowered for and in behalf of the Proprietors of the Common and Undivided land of the Island of Nantucket, as Trustee, to make, execute and deliver unto the said Town of Nantucket a deed of release, as follows: Know all men by these presents, that the Proprietors of the Common and Undivided land of the Island of Nantucket as Trustee, acting under the power conferred on them, as such Trustee, in the deed from William J. Flagg to said Proprietors, as Trustee, dated Sept. 6 21, 1892 and recorded with Nantucket Register of Deeds, Book 76, Page 342, for consideration paid, release to the Inhabitants of the Town of Nantucket, Massachusetts, all interest which we have as Trustee in and to a tract of land in that part of Nantucket called Siasconset, Nantucket, The Path, Surveyed for the Town of Nantucket, Sept. 22, 1924, William S. Swift, C.E.,” to be recorded, together with all rights of way, which may exist, to and from said land, but in Trust nevertheless that the land hereby released to to [sic] be forever held in Trust by said Inhabitants of the Town of Nantucket and their successors, on the same trust as is contained in said Flagg deed, viz: for the purpose of a way or foot path along the bank, and for no other purpose or purposes whatsoever, and said land or any interest in same is not to be deeded away by said Town to any person or persons whatsoever. This release is given upon the following condition that said Inhabitants of the Town of Nantucket shall cause said land to be registered in the Land Court (or so much of the land as the Land Court finds entitled to registration), within a reasonable time, but in any event to complete said registration within five years from this date, or else said land shall revert to said Proprietors, as Trustee, under the original trust conveyed to them in said Flagg deed and in that event said Proprietors shall resume control of said land as Trustee without the necessity or any further transfer of any kind. The Inhabitants of the Town of Nantucket in accepting delivery of the deed, accept the terms and conditions of the same. In Witness Whereof, the Proprietors of the Common and Undivided Land of the Island of Nantucket, Trustee, have adopted a common seal as its seal, and have caused said seal to be hereto affixed and these presents to be subscribed in its name and behalf by Albert G. Brock hereunto duly authorized this first day of May, 1925. Proprietors of the Common and Undivided Land of the Island of Nantucket, Trustee, Commonwealth of Massachusetts. Nantucket, ss, May 1, 1925. Then personally appeared the above named Albert G. Brock and acknowledged the foregoing instrument to be the free act and deed of such Proprietors, as Trustee… Upon motion, duly made and seconded it was Voted: To postpone action on the fourth article of the warrant until the Inhabitants of the Town of Nantucket have as Trustee registered in the Land Court the land covered by Article Three, or so much of the same as the Land Court finds entitled to such registration 5. May 1, 1925 Proprietors to Inhabitants of Nantucket (Deed Book 102, p. 119) [T]he Proprietors of the Common and Undivided Land of the Island of Nantucket, as Trustees, acting under the power conferred on them, as such Trustees, in the deed from William J. Flagg to said Proprietors, as Trustees, dated September 21, 1982, and recorded with the Nantucket Registry of Deeds, Book 76 Page 342, for consideration paid, release to the Inhabitants of the 7 Town of Nantucket, all interest which we have as Trustees in and to a tract of land in that part of Nantucket called Siasconset, shown as Lots A and B on a plan entitled “Land at Siasconset, Nantucket, The Path, Surveyed for the Town of Nantucket, September 22, 1924, William S. Swift, C.E. to be recorded, together with all rights of way which may exist, to and from said land, but in Trust nonetheless that the land hereby released is to be forever held in Trust by said Inhabitants of the Town of Nantucket and their successors, and the same trust as is contained in said Flagg deed, viz:--for the purposes of a way or foot path along the bank, and for no other purpose or purposes whatsoever, and said land or any interest in same is not to be deeded away by said Town to any person or persons whatsoever. This release is given upon the following condition that said Inhabitants of the Town of Nantucket shall cause said land to be registered in the Land Court (or so much of the land as the Land Court finds entitled to be registered), within a reasonable time, but in any event to complete said registration within five years from this date, or else said land shall revert to said Proprietors, as Trustees, under the original trust conveyed to them in said Flagg deed, and in that event said Proprietors shall resume control of said land as Trustee without the necessity of any further transfer of any kind. The Inhabitants of the Town of Nantucket, in accepting delivery of this deed, accept the terms and conditions of the parcel. In Witness Whereof, the Proprietors of the Common and Undivided Land of the Island of Nantucket, as Trustee, have adopted a common seal as its seal, and have caused said seal to be hereto affixed and these presents to be subscribed in its name and behalf by Albert G. Brock, hereunto duly authorized, this first day of May 1925. [acknowledged and recorded May 12, 1925, 11 a.m.] 8 9 10 6. May 1, 1926 Proprietors’ Meeting (Vol. 7, Prop. Records 171-178) Notice of meeting from Inquirer and Mirror states agenda to include: Third—To authorize Franklin E. Smith to take such action and to execute such papers as may be necessary to substitute the Town of Nantucket as Trustee, in place of the Proprietors as Trustee, in and over that parcel of land nearly 7000 feet long at Siasconset lying between the bottom of the bluff and the Atlantic Ocean and set forth as Lots C and D on a plan entitled “The Path” surveyed for the Town of Nantucket, September 22, 1924, and filed in Land Court case No. 1127; also to state the conditions of said Trust and transfer. At page 176 Upon motion, duly made and seconded, it was Voted: to take up for consideration the Third Article of the Warrant. After careful consideration, and upon motion, duly made and seconded, it was voted: To authorize Franklin E. Smith to take such action and to execute such papers as may be necessary to substitute the Inhabitants of the Town of Nantucket as Trustee, in place of the Proprietors as Trustee, in and over that parcel of land nearly 7,000 feet long at Siasconset lying between the bottom of the bluff and the Atlantic Ocean and shown as Lots C and D on a plan entitled “The Path” surveyed for the Town of Nantucket, Sept. 22, 1924 and filed in Land Court Case No. 11227; and if deemed necessary said Smith is authorized to give deed on behalf of the Proprietors, as Trustee, as its agent to the Town of Nantucket, as Trustee of said tract of land; Provided:-- (1) That the Town shall first complete the registration of Land Court Case #11227 as to lots A and B shown on said plan in accordance with the terms of the deed of said Proprietors to said Inhabitants of the Town of Nantucket, dated May 1, 1925, duly authorized by Proprietors’ Meeting dated May 1, 1925. (2) That said Inhabitants of the Town of Nantucket shall take said lots C and D upon the trusts set forth in deed of Flagg to said Proprietors recorded December 8, 1883 in Proprietors Book 6, Page 12 and in the Registry of Deeds Book 68, Page 516. (3) That said Inhabitants of the Town of Nantucket, as Trustee shall cause said lots C and D to be registered in the Land Court (or so much as the Land Court finds entitled to registration) with above trusts within five years from this date or else said title to said land shall revert to said Proprietors, as Trustee, and as deemed necessary said Inhabitants of the Town of 11 Nantucket, as Trustee, shall execute such papers as may be necessary to cause such re-transfer. (4) That the Inhabitants of the Town of Nantucket through their board of Selectmen shall signify their acceptance of this transfer of lots C and D and shall pay Franklin E. Smith legal services and expenses in relation to said transfer. Notes: *JW has contacted Land Court in Boston to see if it is possible to review underlying records to determine whether Town filed to register title to lots C and D *JW has contacted Nantucket Town Clerk’s office to request search of Board of Selectmen /Select Board records following May 1, 1926 in order to ascertain whether condition relating to acceptance by Town was satisfied. 7. Inhabitants of Nantucket v. Mitchell, 170 N.E. 807 (MA. March 25, 1930) (rejecting adverse possession claim by property owner on Sankaty Bluff/Baxter Road area who had sought to extinguish public rights in Bluff Path) (action brought by property owner Mary Mitchell in connection with petition by Inhabitants of Nantucket to register land title to bluff strip referenced in land court action 11227) 8. Certificate of Title No. 1702 (dated April 21, 1930) “In the matter of the Petition of Inhabitants of the Town of Nantucket, Trustee” referencing Land Court case number 11227 After consideration, the Court doth adjudge and decree that said … Inhabitants of the Town of Nantucket, Trustee, as set forth in a deed given by the Proprietors of the Common and Undivided Land of the island of Nantucket, Trustee to the inhabitants of the Town of Nantucket, dated May 1, 1925, duly recorded in Book 102, Page 119, but free from the condition[*] therein set forth… is the owner in fee simple … of that certain parcel of land situated in Nantucket, in the County of Nantucket and the Commonwealth of Massachusetts, bounded and described as follows: Northerly by land now or formerly of Horace C. Grice one hundred seventy-two and 8/10 (172.8) feet; Easterly by land now or formerly of the Proprietors of the Common and Undivided land on the Island of Nantucket thirty-seven hundred thirty-nine and 57/100 (3739.57) feet; Southerly by a line being the northerly line of a way as shown on the plan hereinafter mentioned protracted easterly, two hundred five and 04/100 (205.04) feet; and Westerly by lands of sundry adjoining owners as shown on said plan thirty-six hundred eighty-eight and 57/100 (3688.57) feet. 12 All of said boundaries are determined by the Court to be located as shown upon plan numbered 11227A, which will be filed with the original certificate of title issued on this decree, the same being compiled from a plan drawn by William S. Swift, Civil Engineer, dated Sept. 22, 1924, and additional data on file in the Land Registration Office, all as modified and approved by the Court. There is appurtenant to the land hereby registered an easement to maintain over said Grice land a continuation of the foot path along the bank over the land hereby registered. See Memoranda of Encumbrances on the Land included with Certificate 1702* References following documents numbered: *23157 (Order of Conditions in favor of Town of Nantucket, File No. SE 48-132, instrument dated May 6, 1980, registered Nov. 12, 1980) *79912 (Order of Conditions in favor of Nantucket Conservation Comm. To Inhab. Town of Nantucket File No. SE48-1099, Oct. 8, 1997, instrument dated October 8, 2003, registered April 21, 1998) *112063 (Amended Order of Conditions in favor of Nantucket Conservation Comm. To Town of Nantucket, File No. SE48-1602, instrument dated April 11, 2003, registered June 2, 2005) *112064 (Order of Conditions in favor of Nantucket Conservation Commission to Inhabitants of Town of Nantucket, File No. SE48-1659, instrument dated Feb. 13, 2004, registered June 2, 2005) *112065 (Amended Order of Conditions in favor of Nantucket Conservation Commission to: Inhab. Of Town of Nantucket, re Doc. 112064, instrument dated August 13, 2004, registered June 2, 2005) *112066 (Amended Order of Conditions, Nantucket Conservation Commission to: Inhab of Town of Nantucket, re Doc. 112064, instrument dated Oct. 22, 2004, registered June 2, 2005) *118991 (Amended Order of Conditions in favor of Nantucket Conservation Commission to Inhab. Of Town of Nantucket, re Doc. 112064, instrument dated Jan 12, 2007, registered Jan. 12, 2007) *124209 (Order of Conditions in favor of Nantucket Conservation Commission to Inhab. Of Town of Nantucket, SE 24-1073, instrument dated Feb. 13, 2004, registered May 23, 2008) *124210 (Order of Conditions in favor of Nantucket Conservation Commission to Inhab. Of Town of Nantucket, re Doc. 123209, instrument dated Feb7, 2007, registered May 23, 2008) 13 *124527 (Amended Order of Conditions in favor of Nantucket Conservation Commn. To Inhabitants of Town of Nantucket re Doc. 112063, instrument dated Dec. 14, 2007, registered June 30, 2008) *124528 (Extension Permit in favor of Nantucket Conservation Commission to Inhab of Town of Nantucket re Doc. 112063, instrument dated Nov. 30, 2007, registered Jun 30, 2008) *125126 (Amended Order of Conditions in favor of Commonwealth of Ma., Dept. of Env. Protection to Town of Nantucket, re Doc. 112063, instrument dated April 10, 2008, recorded Sept. 15, 2008) *125127 (Extension Permit in favor of Nantucket Conservation Commission to Town of Nantucket re Doc. 112064, instrument dated Jan 24, 2007, registered Sept. 15, 2008) *125576 (Extension Permit in favor of Nantucket Conservation Commission to Town of Nantucket re Doc. 112064, instrument dated July 7, 2008, registered Nov. 5, 2008) *125883 (Extension Permit, Nantucket Conservation Commission to Town of Nantucket re Doc. 112063, instrument dated Nov. 28, 2008, registered Dec. 17, 2008) *126426 (Order of Conditions in favor of Nantucket Conservation Commission to Town of Nantucket re DEP File No. SE 48-1102, instrument dated Feb. 6, 2009, registered Mar. 2, 2009) *149657 (Order of Conditions in favor of Nantucket Conservation Commission to Town of Nantucket et al, DEP File No. SE48-2824, instrument dated Sept. 30, 2015, registered Oct. 22, 2015) Notes: *Reference in clause reference the scope of adjudication and decree refers to deed at Book 102, Page 119, “but free from the condition therein set forth.” Condition referenced is under language beginning “provided” (standard language of condition) and refers to requirement to bring action in Land Court within five years. Reference to holding land in “trust” is not a condition but is rather a specific description of the form of ownership transferred and who holds legal versus beneficial title. *Text of certificate appears to reference only “Path” strip in fee simple, without addressing lots C and D; not sure (a) whether related filings were in fact made re lots C and D (beach area) or not; (b) whether Land Court made error in failing to pick up explicitly a description of these other lots or (c) whether Land Court assumed that by referencing “Plan” by Swift (“and additional data on file in the land Registration Office, all as modified and approved by the Court”) it intended to pick these other lots in its ruling; note that statement of adjudication referred only to May 1, 1925 deed, not to subsequent May 1, 1926 deed; *Proprietors’ Records, Vol. 7, pages 186-187 (June 14, 1973) may have a bearing: Warrant article 3 (published by Inquirer and Mirror) included an item reading: “To lay out and settle on the Town of Nantucket forever the right, title and interest the said Proprietors 14 may have as follows (a) All the said right, title and interest to the great ponds of Nantucket including the two-rod right of way around ponds wherever it still exists, and (b) All the same right, title, and interest in any parcel of land that has not previously been set off by the Proprietors with the exception of the proprietors roads At page 187: It was voted unanimously by stock vote as follows: under article four on the petition of the town to set off to the Town of Nantucket all of the remaining lands of the Proprietors which have not previously been set off by the Proprietors with the exception of the Proprietors’ Roads…. From a practical point of view the only holdings left under the Sheep Commons are the Proprietors’ Roads and any rights granted to the Proprietors as individuals. Note further than Town did register land rights to areas around edge of great ponds listed (including Hummock Pond, Miacomet Pond, Sesachacha Pond, Gibbs Pond and Coskata Pond). This conveyance was recorded in Deed Book 146, Page 144 (recorded June 5, 1974).