HomeMy WebLinkAbout54 SE48_3115 Espilon Gap Lots Memo 05_14_19
M E M O R A N D U M
Date: May 14, 2019
To: Nantucket Conservation Commission
From: Lester B. Smith and Dr. Dwight R. Dunk, PWS, BCES
Subject: Gap Lots - Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project
(DEP File No. SE 48-3115)
On behalf of the Siasconset Beach Preservation Fund (“SBPF”), Epsilon Associates, Inc. (“Epsilon”) has
prepared this memorandum on “gap lots” as they pertain to the Expanded Baxter Road and Sconset
Bluff Storm Damage Prevention Project (“Expanded Project”).
Gap Lot Overview
This memorandum provides clarification on gap lots, or gap projects, associated with the proposed
Expanded Project. A gap lot is either a vacant waterfront lot or a waterfront lot with a post-1978
structure (or building) sandwiched between lots with pre-1978 waterfront lots and/or lots with existing
coastal engineering structures.
There are no adjudicatory decisions under the Massachusetts Wetlands Protection Act (“WPA”) nor is
there any Massachusetts Department of Environmental Protection (“MassDEP”) written guidance to
define gap lots. However, review of past project decisions identified two (2) types of gap lots:
1. Approvable gap lot which protect abutting lots with pre-1978 buildings with a waterfront frontage
distance needed to protect pre-78 buildings in adjacent waterfront lots.
2. Non-approvable gap lot(s) which propose too long a waterfront frontage distance to be justified as
protecting abutting lots with pre-1978 structures.
MassDEP Input on Gap Lots
Epsilon contacted Jim Mahala, MassDEP Section Chief of the Wetlands and Waterways staff for the
Southeast Regional Office (“SERO”). Mr. Mahala indicated that MassDEP has not issued any written
guidance on gap lot projects. He also stated there have been no WPA adjudicatory decisions that
provided guidance to MassDEP on these projects.
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Epsilon independently conducted a search of MassDEP adjudicatory cases through the Landlaw, Inc.1
and found no adjudicatory decisions on this subject. This research corroborates Mr. Mahala’s
comments on this matter.
Approved Gap Lot Projects
Because there have been no MassDEP adjudicatory decisions on this matter, that means these projects
have been approved at the local level via Orders of Conditions (“OOCs”), or if appealed, decisions were
made by the MassDEP regional office via a Superseding Order of Conditions (“SOC”). Researching those
de-centralized files would be a daunting task. Through our contact with Mr. Mahala and our own
research of MassDEP files, we identified several precedent gap lot projects, in addition to the precedent
established by the Existing Baxter Road and Sconset Bluff Storm Damage Prevention Project (SE48-
28924 and SE48-2610).
Mashpee
Mr. Mahala identified an older gap project in Mashpee, MA that has been a long-standing example of an
approved gap project. This was a project located on lots 528 and 527 Triton Way (house numbers 10
and 16 Triton Way, respectively) for which the Massachusetts Department of Environmental Quality
Engineering (“DEQE”) [predecessor to the MassDEP] issued a Final OOC in January, 1989 (DEQE File No.
SE43 - 604) which authorized a Coastal Engineering Structure (“CES”) across vacant lots. The length of
the CES was approximately 300 linear feet and this frontage length was deemed acceptable to the DEQE
in terms of extending the CES to form a continuous shoreline protection barrier to protect existing
buildings. We note, that the Final OOC references the “vacant bank” in Special Condition #23, and a
review of the Mashpee Assessor’s files indicates the houses on both 10 and 16 Triton Way were
constructed in 1996 and 1995, respectively.
See attached copy of the Final OOC issued by the DEQE.
Hull
Our research identified a recently approved CES fronting post-78 dwellings on Marina Drive, Spinnaker
Island in Hull, MA (DEP File No. SE35-1451) and the OOC specifically identified this as a “gap project.”
The project involved constructing a 136 foot long rock revetment to stabilize this unprotected reach of
Coastal Bank, because the eroding Coastal Bank was threatening to damage, or to cause the loss of,
adjacent post-1978 homes. This reach of shoreline lacked any protection and exhibited erosion. The
OOC allowed construction of this 136 foot long CES to establish a continuous revetment (i.e. close the
1 https://www.landlaw.com/index.asp
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gap in the revetment) along the north side of Spinnaker Island to protect the adjacent post-1978
buildings from storm damage. This OOC was not appealed by the MassDEP and remains a valid “gap
project” OOC.
See attached copy of the OOC issued by the Hull Conservation Commission.
Eastham
Our research identified an approved CES fronting pre-78 buildings on Sunset Lane Eastham,
Massachusetts (DEP File No. SE19-1702) issued in December, 2017.
The project involved constructing an approximately 99 foot long rock revetment across 25 Sunset Lane
to protect pre-1978 houses on 15 and 45 Sunset Lane. This reach of shoreline exhibited erosion, and
this OOC allowed construction of the CES to establish a continuous revetment (i.e. close the gap in the
revetment) along the shoreline to protect the adjacent pre-1978 buildings from storm damage. This
OOC was not appealed by the MassDEP.
See attached copy of the OOC issued by the Eastham Conservation Commission.
Denied Gap Lot Project
MassDEP recently denied a CES extension along Menotomy Road, Plymouth, Massachusetts (EEA No.
15998). The original Notice of Intent (“NOI”) sought to extend an existing CES by constructing a 505 foot
rock revetment north to protect four dwellings – the two northern-most pre-1978 dwellings at 95 and
99 Menotomy Road, and the southern-most pre-1978 dwelling at 75 Menotomy Road, plus one post-
1978 dwelling on lots 83, 87 &93 Menotomy Road. The project received an OOC from the Plymouth
Conservation Commission, but was appealed by the MassDEP (to itself), which then issued an SOC
denying the project.
The project proponents recently filed an Environmental Notification Form (“ENF”) for a revised project
that includes a 652 foot shoreline stabilization project to protect these four homes from storm damage,
and which is comprised of: 1) two rock revetments sections to protect pre-1978 dwellings – a 314 foot
rock revetment to protect 95 and 99 Menotomy Road, and a 162 foot rock revetment extension to
protect 75 Menotomy Road, and 2) a 176 foot coir envelope system in between the rock revetments to
protect the post-1978 dwelling. No EIR was required for this project and the final MassDEP decision is
pending.
A few items to note in the MassDEP comment letter on the ENF are:
1) MassDEP agreed with the Office of Coastal Zone Management (“CZM”) that sand nourishment
should be based on the loss of sand from the entire Coastal Bank face;
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2) MassDEP suggested that the proponents consider adding a jetty or groin to the project to
accumulate sand on the fronting beach; and
3) MassDEP stated that project details can be finalized in an adjudicatory hearing or Final OOC,
suggesting the MassDEP will approve the project presented in the ENF.
Precedents as Related to the Expanded Project Gap Lots
The Expanded Project includes two “gap lots” in terms of the WPA Regulations and those are:
1) an approximately 340 foot extension south from the existing geotube system across a public access
way and 85 Baxter Road to protect pre-78 dwellings to the south, and
2) an approximately 300 foot extension north from the existing geotube system across a public access
way and 107/107A Baxter Road to protect pre-78 dwellings to the north.
The conclusion drawn from the review of example gap projects noted above, is that the gap lots in the
Expanded Project footprint can be permitted through the WPA Regulations because they are consistent
with the precedents noted above. In summary, those consistencies include the following:
The geotube system extensions are needed to construct and maintain continuous shoreline
protection barrier across vacant lots at 85 Baxter Road and 107/107A Baxter Road to protect pre-
1978 dwellings abutting the gap.
The length of both extensions are in the in the order of 300 feet, a length that appears to be
acceptable to MassDEP as a “gap project.”
Spanning the geotube system across these gaps is needed to ensure there is a continuous shoreline
protection to avoid weak points in which the Coastal Bank would continue to erode and therefore
impair the structural integrity of the Expanded Project and put the abutting pre-1978 dwellings at
risk for loss or damage by coastal storms.
Spanning these gaps establishes a continuous geotube system along the entire project length, which
by definitions includes the sand template, and this facilitates the sand template maintenance and
post-storm erosion repair in a timely manner, consistent with the OOC conditions.
The type and purpose of gap lots is described above, examples of precedents are presented above, and
the correlation of the precedents to the Expanded Project demonstrate the proposed Expanded Project
as proposed on the revised project plans is allowable under the WPA Regulations.
In terms of the Nantucket Wetlands Bylaw Regulations, constructing the geotube system across vacant
lots is allowed to protect the public infrastructure immediately landward of the vacant lots [Section 2.05
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B. 1.]. The “gap lots” in terms of the Bylaw Regulations are the two lots which contain post-1978
replacement homes, i.e. numbers 69 and 81 Baxter Road. In terms of the gap projects reviewed above,
spanning the geotube system across these two locally defined “gap lots” is consistent with those
precedents because:
The geotube system spanning across these two lots (Numbers 69 and 81 Baxter Road) is needed to
construct and maintain continuous shoreline protection to protect pre-1978 dwellings abutting both
lots by maintaining the structural integrity of the Expanded Project.
The length of both extensions are in the in the order of 100 feet each, a length that is acceptable to
MassDEP as a “gap project.” (69 Baxter Road is 99 feet, and 81 Baxter Road is 106 feet).
Spanning these gaps establishes a continuous geotube system along the entire project length, which
by definitions includes the sand template, and thus facilitates the sand template maintenance and
post-storm erosion repair in a timely manner, consistent with the OOC conditions.
encls:
cc: J. Posner, SBPF
S. Cohen, Cohen & Cohen Law, PC
G. Wood, Rubin & Rudman, LLC
A. Gasbarro, Nantucket Eng. & Survey
G. Thomson, W.F. Baird & Assoc.
R. Hamilton, Woods Hole Group
DEQE Final OOC SE43-604
Mashpee, MA
OOC SE35-1451
Hull, MA
OOC SE19-1702
Eastham, MA