HomeMy WebLinkAbout46 SE48_3115 SBPF Response to 03_11_19 comments
PRINCIPALS
Theodore A Barten, PE
Margaret B Briggs
Dale T Raczynski, PE
Cindy Schlessinger
Lester B Smith, Jr
Robert D O’Neal, CCM, INCE
Andrew D Magee
Michael D Howard, PWS
Douglas J Kelleher
AJ Jablonowski, PE
Stephen H Slocomb, PE
David E Hewett, LEED AP
Dwight R Dunk, LPD
David C Klinch, PWS, PMP
Maria B Hartnett
ASSOCIATES
Richard M Lampeter, INCE
Geoff Starsiak, LEED AP BD+C
Marc Bergeron, PWS, CWS
3 Mill & Main Place, Suite 250
Maynard, MA 01754
www.epsilonassociates.com
978 897 7100
FAX 978 897 0099
21597/2018/Expanded Project/NOI/Public Hearing Comments
March 22, 2019
Nantucket Conservation Commission Via Electronic Mail and U.S. Mail
2 Bathing Beach Road
Nantucket, MA 02554
Subject: Response to Comments from the March 11, 2019 Hearing on the
Expanded Baxter Road and Sconset Bluff Storm Damage Prevention
Project (DEP File No. SE 48-3115)
Dear Commission Members:
On behalf of the Siasconset Beach Preservation Fund (“SBPF”), Epsilon Associates,
Inc. (“Epsilon”) submits this letter to address comments from the Nantucket
Conservation Commission (“Commission”) March 11, 2019 Public Hearing for the
Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project
(“Expanded Project”).
These written responses provide additional information to augment verbal responses
made by SBPF team members during the Public Hearing. The responses presented
herein also respond to the verbal and written comments submitted by: the Nantucket
Coastal Conservancy (Conservancy”) – undated correspondence submitted at the
Public Hearing and which reflects their verbal comments; and Ms. Judith Wegner –
correspondence dated 08 March 2019 and which reflects her verbal comments made
during the Public Hearing.
Comments made during the 11 March 2019 Public Hearing probed no issues relative
to the Wetlands Protection Act (“Act”) and the Town of Nantucket Bylaw for
Wetlands (“Bylaw”) not previously raised during earlier Pubic Hearing sessions.
Therefore, below we present responses to issues raised by the Conservancy and Ms.
Wegner, and provide some clarifying comments relative to remarks made by Mr.
Berman. During the Public Hearing we also reviewed the eligibility of pre-1978
homes on the east side of Baxter Road, reviewing the Building Department records
for those four homes about which pre-1978 eligibility was questioned.
Nantucket Coastal Conservancy
The Conservancy asserted that the alternatives analysis for the proposed Expanded
Baxter Road and Sconset Bluff Storm Damage Prevention Project (“Expanded Project”)
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is not adequate and they identified other “feasible” alternatives that could be
considered in lieu of the proposed Expanded Project.
The SBPF has examined many potential ways to stabilize this Coastal Bank over the
past two decades and through that process has pursued various alternatives in practice
and theory, as described during the 01 October 2018 Public Hearing and
correspondence dated 02 November 2018.
An alternatives analysis include two steps – Step 1, identify potential options and
screen those against a suite of criteria to determine feasible alternatives for further
consideration; and Step 2, evaluate feasible alternatives to select the preferred
alternative. Standard practice during the screening process includes identifying
which options require work on property not owned or controlled by the applicant,
and those options which require extraordinary actions by other parties and the
outcome of which is beyond the control of the applicant. In both of those cases, such
options are screened “out” as not feasible.
The options identified by the Conservancy involve; 1) asking the Town or County of
Nantucket to relocate the public way and related infrastructure within the existing
right-of-way, and 2) seeking permission to relocate homes within the Baxter Road
right-of-way and moving homes onto land owned by the Town or County of
Nantucket. Positive decisions and actions by the Town or County for those actions
cannot be reasonably expected to occur, and thus those options are not considered
feasible.
Further, those options do not protect the Coastal Bank from further retreat, and
significant Coastal Bank erosion, which caused retreat of up to 30 feet, has occurred
in the past and could occur in the future. Moving homes by up to 40 feet, at most,
does not provide long-term protection from damage or loss in the future. Since the
options identified by the Conservancy do not provide equivalent protection for the
existing homes and infrastructure as the proposed Expanded Project, and are not
considered to be feasible following standard practice; they were not identified in any
previous list of alternatives considered in practice and theory.
Ms. Judith Wegner Comments
Ms. Wegner raised a legal issue about the property rights for the beach seaward of
Baxter Road. This is a legal issue regarding property rights, and is not germane to the
Commission’s duty to review activities on, or proximate to, wetland resource areas to
determine if those activities affect the interests of the Act and the Bylaw.
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Re: DEP File No. SE 48-3115
March 22, 2019
It should be noted in any event, that this matter is best addressed to the Select Board,
and a letter regarding this matter and other related legal matters was previously
submitted to the Select Board, dated April 25, 2018. See attached copy.
Clarifying Comments by Mr. Berman
During the discussion between Mr. Berman (peer reviewer) and the Commission, Mr.
Berman answered questions and addressed concerns raised by the Commission and
the public, based on his experience with this project area, professional judgment and
opinion. Mr. Berman spoke about the following two time periods during which the
Expanded Project (and the Existing Project) could potentially adversely affect nearby
Coastal Beaches and Coastal Bank:
1) Storm periods - scour along the geotube toe and end scour after sand is
washed off the face of the geotubes, and
2) Longer term - reduced volume of sand contributed to the littoral system as a
result of installing the geotube seaward of the Coastal Bank.
Storm Period:
As Mr. Berman stated, during storms toe scour and end scour can, and is likely to,
occur after sand is washed off the face of the template. The SBPF team does not
dispute this point. First, we note that the geotube design was developed to address
this by: 1) lowering the depth of the geotube system to -3 feet MLW datum, and 2)
including an anchor tube and “skirt” to avoid undermining should scour extend to the
bottom of the geotube system. Second, the toe scour re-fills over the next few days
with sand from the littoral system after the storm passes and more quiescent waves
redeposit sand on the beach. This phenomenon occurs in unprotected areas of the
beach as well as in front of the geotubes with the top elevation of the beach dropping
as much as 8 feet during a large storm, and then recovering within the next few tides.
Third, active management of the template by SBPF after storms involves: 1) re-
covering exposed geotubes, and the sand used to re-cover the exposed geotubes also
re-fills toe scour from the sand pushed off the top of template to cover the face of the
geotubes, and 2) replacing sand washed off the ends to address end scour. Therefore,
these potential impacts are monitored, and the template is actively managed by the
SBPF to re-grade the sand template and backfill portions of the template that exhibit
toe and end scour.
Also regarding end scour, Mr. Berman commented that effects of end scour may
extend “tens of feet” from the geotube system. That means end scour effects will not
have a negative effect to Coastal Beaches or the Coastal Bank far afield from the
proposed Expanded Project, such as at Sesachacha Pond over a mile away for
example, as has been asserted by others during this hearing process. Monitoring of
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the beach will continue on an ongoing basis, and monitoring completed to date has
not indicated accelerated erosion to beaches in the study areas.
Longer Term:
As Mr. Berman noted, and a topic of much discussion throughout this Public Hearing
process, is the fact that constructing the geotube system seaward of the Coastal Bank
will reduce the volume of sediment contributed off the Coastal Bank and into the
littoral system. That will occur because that is the basic project purpose, to stem
Coastal Bank erosion to protect the stability of the Coastal Bank and in turn protect
existing homes and public infrastructure near the top of the Coastal Bank from damage
or loss due to Coastal Bank retreat. To mitigate for the loss of sand contributed from
the Coastal Bank to the littoral system, the SBPF has proposed a robust sand mitigation
program to maintain sand contribution off the template and into the littoral system.
The volume of sand to be available on the template is based on the formula used by
the Massachusetts Department of Environmental Protection (“MassDEP) and the
Massachusetts Office of Coastal Zone Management (“CZM”) and which was
confirmed by Mr. Berman in his peer review. Also, the SBPF has proposed to re-fill
the sand template after each storm season with the volume of sand washed off the
template, or the historic rate of contribution, whichever is greater.
The proposed sand template management therefore mitigates for installing the
geotube system and will maintain, or exceed, the annual sediment load from the
Coastal Bank to the littoral system to protect adjacent and nearby Coastal Beaches
from the potential adverse effect of constructing the geotube system.
Pre-1978 Homes Eligible Protection:
It should be noted that SBPF provided additional detailed information about the
eligibility of the four properties (83, 79, 77 and 73 Baxter Road) challenged by one
Commissioner as ineligible because of renovations in excess of the standard
established in the local Bylaw. There has been no data submitted disputing the
information provided by SBPF showing these properties as pre-78 homes eligible for
protection under the Act or the Bylaw. SBPF points again to its submission on 16
November 2018 in which the eligibility of each property on the east side of Baxter
Road in the Expanded Project area is detailed, plus the 01 March 2019
correspondence that presents a focused review on these four properties.
Conclusion
In closing, we note that at the conclusion of the 11 March 2019 Public Hearing the
Chairman asked the Commissioners if they had any further questions or needed any
more information from the applicant, and none of the members raised any more
questions or requested additional information. We believe this demonstrates that all
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of the issues have been raised and addressed over the past seven months of Public
Hearings.
During the hearing process we have:
presented the project design;
acknowledged potential adverse effects;
proposed a comprehensive plan to mitigate potential adverse effects; and
demonstrated project compliance with the State and Local Regulations, and
performance standards.
We respectfully request that the Nantucket Conservation Commission close the
Public Hearing and issue an Order of Conditions allowing the proposed Expanded
Baxter Road and Sconset Bluff Storm Damage Prevention Project to be built, and
establish pragmatic Special Conditions consistent with those issued for the existing
Project (SE48-2824) to protect the Interests of the Act and the Bylaw.
Sincerely,
EPSILON ASSOCIATES, INC.
Dwight R. Dunk, LPD, PWS, BCES
Principal
encl: Correspondence to the Nantucket Select Board from Attorney Steven Cohen,
dated April 25, 2018
cc: MassDEP-SERO
J. Posner, SBPF
A. Gasbarro, Nantucket Eng. & Survey
S. Cohen, Cohen & Cohen Law, PC
G. Wood, Ruben and Rudman, LLP
G. Thomson, W.F. Baird & Assoc.
L. Smith, Epsilon
R. Hamilton, Woods Hole Group
Select Board
Town of Nantucket
16 Broad Street
Nantucket, Massachusetts 02554
By hand and email
April 25, 2018
RE: Baxter Road
Dear Chair Bridges,
As you know, my client, the Siasconset Beach Preservation Fund Inc, is seeking permission
from the Town to file an application with the Conservation Commission for the expansion, in time
and scope, of the existing geotube structure along Baxter Road. As part of a settlement of related
issues nearly three years ago, SBPF agreed to install only one-quarter of the needed geotube
protection system, in the area that protected mostly vacant land and the public infrastructure, and to
hold off on installing the rest for three years so that the initial installation and the permit governing
it could be assessed before long term permits and agreements were put in place. The permit issued
by the Nantucket Conservation Commission expressly reflects this in its conditions, and requires
SBPF to now come back for further review and approval. The Select Board participated in this
process and expressly agreed to it, both in the settlement and in the issuance of a related license
issued to SBPF, which also required the land owners to grant One Big Beach easements, which
have been recorded.
SBPF has followed the terms of that ConCom permit and the license, and cooperated in
good faith with the settlement agreement. Now it is time for the matter to go back before the
ConCom so that the Commission can determine whether and how to issue a permit for the full
project based on lessons learned from the initial installation. In addition, the Select Board can then
make determinations on whether and how to issue a related lease or license for the portion of the
project that is on Town land. SBPF looks forward to working with the Select Board and the
Conservation Commission on this matter, and again requests that the Board approve the signing or
the assent to the filing of the Notice of Intent.
Also, as an ancillary matter, SBPF is aware of a letter filed by Ms. Judith Wegner, that
asserts to make expert legal points about this matter. SBPF does not agree with this assertion.
A response to that letter is attached for your review.
Sincerely,
Steven Cohen
Counsel to SBPF
Ms. Judith Wegner’s Letter of April 18, 2018 suggests that the Town revisit the Town Counsel
opinion relating to road repair and maintenance, particularly as to whether the work here involves a
private or a public project, and as addressed in a subsequent opinion by Town Counsel, whether an
action at Town Meeting is needed. This request is off base, for several reasons, as below.
At the time in question, and as reflected in numerous public filings and statements, the existing
project was jointly filed by SBPF and the Town, pursuant to a signed MOU, and it mostly protects empty
lots at the most eroded section where there was a real and imminent danger of the loss of a public road
and utilities, which was considered by the Town to be a risk to public health and safety. There was no
question at the time, and it was repeated by the Town on many occasions, orally and in writing, including
in response to direct questions on this issue, that the erosion protection here has both public and private
purposes. Whether and how that determination may apply to the any future proposal to expand the
project is something that should be explored, and will be as part of the process at hand. That said, it is
worth noting that the geotubes protect not just private homes and the the public way and utilities, but also
the public rights (which exist by easement, by deed, and by law) in the Bluff Walk and in the beach,
which would quickly be lost without such protection, and SBPF has committed to work to restore and
expand the public access when the Bluff is stabilized. As to whether Town Meeting approval is needed
for a future lease or license, that is a fact specific question that would be speculative at this time, but it
has already been addressed in detail by Town Counsel. Rather than revisit the past, we should be
proceeding with the current process, which would necessarily cover these issues.
Ms. Wegner is correct that the Town may relocate, alter or discontinue a public way or private way.
This has been the common understanding all along and was explored in depth by the Board in numerous
Executive and Public sessions. The Town specifically declined to force the relocation of Baxter Road
and has declined to discontinue and abandon Baxter Road (a public way), as was previously
unsuccessfully advocated by former Selectman Atherton. The Town however has acted to transfer
Baxter Road to the County, which alters the process for dealing with it, as has been advised by Town
Counsel. Further, Ms. Wegner is factually incorrect in asserting that the Town has negotiated access
easements that would allow it to relocate Baxter Road as part of its earlier settlement with SBPF. The
Town has participated in and is a signatory to an Alternative Access Agreement, a public document, in
which certain neighbors have agreed to provide a northern access point to connect Baxter Road to Polpis
Road in emergency or road failure conditions, but it is conditioned on a) an unavoidable closing of
Baxter Road and b) that the Town not abandon or prevent the protection of Baxter Road, including the
permitting for such. There is no agreement for an alternative layout of Baxter Road that would enable
the abandonment of the current way.
Ms. Wegner suggests that Town should review rights of the public in the beach. Again, this was
done in-depth previously, and is well recognized. As Town Counsel has noted numerous times, the so-
called Flagg Beach is Town owned land and the Town has full ownership rights in it. It was transferred
from the Proprietors of the Common and Undivided Lands of Nantucket to the Inhabitants of the Town
of Nantucket, which is a political subdivision of the Commonwealth, not “the people.” The portions of
the beach that are privately held are subject to the so-called Public Trust Doctrine, which provides for
limited public rights for “fishing, fouling, and navigation” to the Mean High Water Line of water-front
land. Further, the Town has rights in the Bluff Walk, as has been researched in detail by the Roads and
Rights of Way Committee and presented to the Town on several occasions. There is no unaddressed
question here. While the Public Trust Doctrine dates to Colonial rule and our New York roots, this is
unrelated to whether the source of the Town’s ownership, which all comes from set-offs of Common
Lands and then deeds, and the issue is only of confusion to Ms. Wegner. Ms. Wegner’s suggestion that
Town Counsel was unaware of the pertinent legal documents and does not understand the basic
application of these issue is without basis and is contradicted by the many reviewed of it in the past. Ms.
Wegner’s suggestion that the Town’s proper exercise of its clear authority to act over Town owned land
is a violation of some nebulous fiduciary duty is baseless, as is her further suggestion that by issuing
permits for erosion protection, the state Department of Environmental Protection and the Nantucket
Conservation Commission have somehow “Taken” some alleged separate “rights of the people” in
Town-owned land. Ms. Wegner’s suggestions that the issuance of a ConCom permit or a license for this
Town-owned land requires seeking an opinion from the state Attorney General is a red herring. Neither
Town Counsel or the DEP have suggested that because it is not correct. This land is owned by the Town
of Nantucket, without condition, and governed accordingly.
Ms. Wegner also suggests that the Select Board should impose conditions on sand related issues and
should seek to have the Conservation Commission and state agencies impose additional down-drift
conditions. A review of the existing permits and of the public files shows that the ConCom already
requires substantial monitoring of an expansive area, and that the down drift beaches have been
professionally monitored for 25 years. This project is already very heavily monitored and conditioned,
with the opportunity for the ConCom or add more or alter the conditions in its next review of the project,
and the Town is empowered to include additional conditions that it deems appropriate in a lease or
license, if the Select Board decides to grant one. In order to provide for appropriate conditions, the Select
Board should assent to the NOI so that the Conservation Commission can act on the matters of their
expertise and jurisdiction, which will then give the Board a basis on which to make its decisions and layer
its conditions.
Ms. Wegner also complains that the ConCom somehow acted unfairly by allowing SBPF “at least
80% of the time” at the last meeting on this issue, and that the public did not have time to prepare or
present. The last ConCom meeting was not a debate; it was a presentation by SBPF of the required
Annual Report, and of SBPF’s responses to the peer review and public comments filed for it. It is not
clear why Ms. Wegner thinks that this was unfair, but the Annual Report was on file for months, it
underwent an independent expert peer analysis on behalf of the ConCom and review by outside experts
hired by the Land Council, and there was no limit placed on any public participation at the meeting – she
herself spoke at length and without limit - and there were no participants who wished to speak who were
not afforded the opportunity. Her suggestion that the Town should have and independent expert available
for this project is a good one, which is why it has been standard practice SBPF to fund independent
technical experts for this project in the past and why we expect that it will be in the future.
Ms. Wegner also that she has several questions about how the project is designed, how to track and
mitigate impacts, and similar. These points are best addressed through the ConCom process and a lease
or license negotiation. Addressing them in advance of these processes in a vacuum of speculation is not
proper or reasonable.
While not in her letter, Ms. Wegner stated at the April 18th Select Board meeting that she questions
whether the homes on Baxter Road are pre-1978, which is a requirement for certain protections under the
Wetland Protections Act. This issue was specifically reviewed in prior public hearings. As is known to
those who participated in the many prior years of permitting on this matter, or those who reviewed the
records, the ConCom record contains a lengthy filing on this issue, and an independent report from the
non-profit Nantucket Preservation Trust, due to the large number of pre-1900s homes along Baxter Road
– many of which date back to the very “Flagg” neighborhood that the public beach relates to in its
history. Indeed, preserving Nantucket’s architectural history is a driving factor in saving this historic
neighborhood. Ms. Wegner’s suggestion was not factual.
Ms. Wegner encourages the Select Board to take a proactive role is this project and in determining
how to best to handle coastal erosion in this age of sea level rise, and to work to create a Coastal
Resiliency Plan. On that we agree. SBPF looks forward to working with the Board to make sure that all
issues are appropriately explored and addressed at all levels. To the extent that this project can flush out
and help with a Coastal Resiliency Plan, we look forward to that as well. Of course, unlike the Nantucket
Coastal Conservancy, SBPF takes the position that Nantucket should not be abandoned.