HomeMy WebLinkAbout59 SE48_3115 SBPF Letter to Commission 5_14_19r®RUBIN and
RUDMAN LLP
Attorneys at Law
53 STATE STREET I BOSTON, MA 02109 I P: 617-330-7000
800 CONNECTICUT AVENUE NW I WASHINGTON, DC 20006 I P: 202-794-6300
99 WILLOW STREET I YARMOUTHPORT, MA 02675 I P: 508-362-6262
Glenn A. Wood
Direct Dial: 617-330-7016
E-mail: GWood@rubinrudman.com
May 14, 2019
Andrew Bennett, Chairman
Nantucket Conservation Commission
2 Bathing Beach Road
Nantucket, MA 02554
RE: Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project
DEP File NO. SE 48-3155
Dear Chairman Bennett and Commission Members:
Our office represents the Siasconset Beach Preservation Fund ("SBPF") in conjunction
with Steven Cohen, Esq. and Epsilon Associates, Inc. with regard to the above-referenced
project. We submit this letter in response to questions at the most recent hearing on April 22,
2019 regarding the Commission's review of the project to protect gap lots and/or public
infrastructure.
I. The Commission Should Be Consistent with Its Approval of "Phase I" of the
Project.
The Commission approved "Phase I/Existing Project" when it issued an Order of
Conditions ("00C") on September 30, 2015 (SE48-2824), and the DEP approved "Phase r of
the Project by issuing a Superseding Order of Conditions ("SOC") on December 19, 2014
(SE48-2610). As is described in further detail herein, there is no significant difference between
this "Phase II/Expanded Project" and Phase I.
In review of the pending Notice of Intent ("NOI") filing for the Phase II project, the
Commission should remain consistent relative to protecting the interests of the Massachusetts
Wetlands Protection Act (the "Ace' or "WPA"), M.G.L. c.131, §40, and Section 136-7 of the
Town of Nantucket Wetlands Protection Bylaw (the "Bylaw"). If a Commission makes a
decision that is inconsistent with prior decisions, it can be deemed to be acting arbitrary and
capriciously, and such a decision would in our opinion be overturned in a certiorari appeal to
Superior Court pursuant to M.G.L. c. 249, §4 under the Bylaw. Massachusetts case law states
that the "history and practice of a planning board...are factors which may be considered when
deciding whether a planning board has acted arbitrary and capriciously." See Lakeside Builders
v. Planning Bd., 56 Mass. App. Ct. 842, 847 n. 6 (2002). The "arbitrary and capricious" standard
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which controls wetlands appeals under local bylaws is further summarized in Fafard v.
Conservation Com 'n of Reading:•
[o]ur cases often speak of testing whether the governmental agency's action was arbitrary
and capricious...which in a context such as this is saying no more than that the reviewing
court examines the agency action to determine whether it was authorized by the
governing statute...in light of the facts. If the agency has acted for reasons that are
extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad
hoc agenda, then that agency has acted arbitrarily because the basis for action is not
uniform, and, it follows, is not predictable. Fafard v. Conservation Com'n of Reading,
41 Mass. App. Ct. 565, 566 (1996).
The Commission Should Remain Consistent in its Review of the Expanded Project
Pursuant to the Bylaw.
The Commission already issued an 00C allowing essentially the same project, which
included in part installing a geotube system across vacant lots to protect public infrastructure,
and the Bylaw clearly allows for the protection of such infrastructure.
The Commission issued an OOC for the Existing Project on September 30, 2015. The
2015 OOC approved the ongoing maintenance of the three (3) tiered system of sand-filled
geotubes (permitted by the Emergency Certification) along 87-105 Baxter Road, the installation
of smaller geotextile tubes as returns at the end of the structure, planting of vegetation, and sand
mitigation and nourishment. The OOC, in Finding No. 12, stated that "[t]he Commission finds
that the Project is proposed to protect pre-1978 buildings and essential public infrastructure
providing access and utilities for such." The Commission, in Finding No. 14, found that "these
dwellings and infrastructure are in danger, due to erosion of the coastal bank."
Further, the Town of Nantucket Wetland Protection Regulations ("Nantucket
Regulations") in Section 2.05(B)1 provide that "[n]o new bulkheads, coastal revetments, groins,
or other coastal engineering structures shall be permitted to protect structures constructed, or
substantially improved, after 8/78 except for public infrastructure."
The Existing Project/Phase I and Expanded Project/Phase II are essentially the same. For
example, both projects include the protection of Baxter Road and the installed public utilities in
the county way, as they both front vacant lots, and the protection of the Coastal Bank along those
lots is essential to protecting public infrastructure. Further, both the geotube projects have the
same essential design. Both projects further have robust sand template management that includes
placing sand on template at a rate of 22 cy/lf/yr as an "on-site' sand stockpile to recover exposed
tubes after erosion events. Moreover, both projects as conditioned and now proposed include an
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extensive monitoring program, including but not limited to monitoring of shoreline change and
bathymetric surveys.
Here, 92.5 percent of the Coastal Bank within the Expanded Project/Phase II area is
permittable under the Bylaw 1) to protect pre-1978 structures (Lots 55, 59, 61, 65, 67, 71, 73, 77,
79, 83, 109, 113, and 115 Baxter Road) from damage or loss caused by Coastal Bank erosion„
and 2) to protect public infrastructure (Lots 85 and 107/107A) from damage or loss caused by
Coastal Bank erosion. There are only two (2) parcels which do not contain a pre-1978 house and
those are Lots 69 and 81 Baxter Road. However, both are abutted by properties with pre-78
houses. Constructing the geotube system across these two (2) lots is proposed to 1) create a
continuous linear installation to protect the abutting pre-1978 houses from loss or damage caused
by Coastal Bank erosion, 2) protect public infrastructure from loss or damage caused by Coastal
Bank erosion, and 3) to be able to implement the post-erosion event sand replacement and
regular sand template maintenance activities to maintain the geotube system as an effective
Coastal Bank protection system. These two (2) lots are each only approximately 100 feet long
and are flanked on both sides by pre-1978 houses. Leaving these short gaps in the geotube
system would seriously undermine the integrity of the geotube system and imperil the abutting
pre-1978 houses for loss or damage from continued Coastal Bank erosion.
It is clear that installing the geotube system to protect pre-1978 homes and public
infrastructure is presently allowed to be protected pursuant to the Bylaw, and the requirement to
span across two (2) lots with post-1978 replacement homes is needed to adequately protect the
abutting pre-1978 homes. SBPF respectfully requests that the Commission review the Expanded
Project in a similar light and allow the geotube project to protect all the houses on the easterly
side of Baxter Road and public infrastructure consistent with the Bylaw and the Nantucket
Regulations and the precedent established by the Emergency Order, SOC (SE48-2610) and 00C
(SE48-2824) that authorized construction and maintenance of the existing geotube project.
III. The Commission Should Remain Consistent in its Review of the Expanded Project
Pursuant to the WPA and its Regulations.
At the April 22, 2019 hearing, Attorney Pucci discussed whether the WPA Regulations at
310 CMR 10.30(3) are limited to protect pre-1978 buildings from storm damage itself or also
include the protection of infrastructure necessary to occupy such buildings.
310 CMR 10.30(3) provides the following:
No new bulkhead, revetment, seawall, groin or other 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
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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 throughl0.37, provided that the following requirements are met..."
All of the properties in the Expanded Project area have pre-1978 buildings eligible for
protection by the geotube system pursuant to 310 CMR10.30(3). The only portion of the
Expanded Project for which there is question, is the need to span two (2) gap properties, one
vacant parcel at 85 Baxter Road (the northerly end of the southerly Expanded Project to connect
the proposed and existing geotube systems) and the other being vacant Lot 107/107A Baxter
Road (the southerly portion of the northerly end of the Expanded Project to connect the proposed
and existing geotube systems). The geotube system and return that extends northward onto Lot
117 is needed to protect the pre-1978 house on lot 115 from erosion during storms events.
Our office reviewed MADEP adjudicatory caselaw under the WPA on the issue raised by
Attorney Pucci, and have not been able to locate anything on point. This suggests that any such
projects have been resolved at the local Commission level and the Department of Environmental
Protection (the "DEP") Regional Offices. However, the December 14, 2014 SOC (SE48-2610)
issued by the DEP, as well as the DEP's issuance of two (2) Emergency Certifications in
December 2013 extend the protection of pre-1978 buildings to include the protection of
infrastructure necessary to occupy such buildings.
The DEP stated in its 2014 SOC on Page 2 that:
"In the northern project area (lots 101 and 105) and in the southern project area (lot
87) where the existing three tiers of Geotubes directly protect Baxter Road (and
essential public utilities), the Geotubes may remain...." (Emphasis added).
This language in the SOC suggests that the geotube installation could serve to protect Baxter
Road as well as essential public utilities, which demonstrates that the DEP views protection to
extend further than just to pre-1978 buildings.
The DEP further stated in its 2014 SOC, on Page 1, in a discussion of allowing a more
long term protection to be implemented, that
"the Town of Nantucket also indicated that it will take a similar amount of time to
undertake actions necessary to relocate the Baxter Road access to homes and the co-
located water and wastewater infrastructure serving those homes in order to mitigate the
imminent threat to public health and safety that warranted the issuance of the Emergency
Certification." (Emphasis added).
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This statement demonstrates that the Town as well as the DEP acknowledged that
protection should include infrastructure necessary to support structures/buildings. Again, the
Existing Project/Phase I is essentially the same as the Expanded Project/Phase II as the Existing
Project acknowledged in the SOC permitted the "ongoing maintenance of the existing three (3)
tiers of geotubes, installation of a fourth tier of geotubes along Lots 91, 93, 97, and 99 in order to
prevent storm damage to pre-1978 homes, installation of small geotextile tubes as returns on the
ends of the geotubes to prevent flanking and minimize end effects, planting of vegetation on the
face of the Coastal Bank, Coastal Bank drainage improvements, and ongoing mitigation (beach
nourishment) and monitoring."
Further, language in the DEP's Emergency Certifications also demonstrates that the DEP
considered not only the protection of pre-1978 homes, but also infrastructure related to such
homes and gap lots. Specifically, the Emergency Certification issued by the DEP on December
10, 2013 provides that "the Department concludes that the design of the coastal structure
proposed in this Request does not go farther than necessary to protect these homes and essential
public infrastructure serving the homes." (Emphasis added). The DEP further stated that it
considered specific facts regarding the "proximity of the homes and infrastructure to the edge of
the coastal bank." The DEP's December 18, 2013 Emergency Certification provided in Finding
No. 2 that "the Commission finds that the failure of the public way and damage of the public
utilities to be a risk to public health and safety."
Additionally, the Commission approved Phase I/Existing Project under the WPA, which
the DEP did not appeal to itself for further Department review. Thus, the Commission should be
consistent in its review of Phase II/Expanded Project.
It should also be noted that relative to the WPA Regulations, spanning the geotube
system across vacant properties (Lots 85 and 107/107A) and extending the geotube system to the
north onto Lot 117 is needed to construct a continuous effective Coastal Bank stabilization
system to protect pre-1978 homes because without these segments the structural integrity of the
entire system is undermined and puts at risk pre-1978 houses to loss or damage from ongoing
erosion if those gaps were not spanned by the proposed geotube system.
In summary, in reading the DEP's Orders together, it is our view that the DEP understood
that 310 CMR 10.30(3) allows not only for the protection of the homes on Baxter Road, but also
for the infrastructure that supports those residential properties. Therefore, SBPF requests that the
Commission review the Expanded Project under the WPA in light of these prior Orders, by
allowing the geotubes to protect not only pre-1978 homes, but also limited gap lots and
infrastructure supporting those homes.
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IV. Prior DEP SOCs Demonstrate that Protection Extends to Gap Lots.
Other examples where coastal engineering structures were allowed to span vacant lots to
connect breaks (i.e. gaps) in coastal engineering structures (CES) to maintain the integrity of the
CES to protect pre-1978 and in some cases post-1978 houses include the following.
• Order of Conditions in Mashpee, MA (SE43-604) issued in January 1989 by MA DEQE
authorized a 300 foot Coastal Engineering Structure ("CES") across vacant lots to protect
properties with revetments to either side. The two (2) involved lots had residential
dwellings subsequently built on these properties.
• Order of Conditions in Hull, MA (SE35-1451) issued February 2019 authorized
construction of a CES across a gap to protect post-1978 buildings. This OOC was not
appealed by DEP and remains valid. The OOC specifically refers to this as a "gap"
project (Hull Special Condition No. 3).
• Order of Conditions in Eastham, MA (SE19-1702) issued (December 2017) authorized
construction of a CES across 25 Sunset Lane to bridge a gap in the revetment to protect
houses at 15 and 45 Sunset Lane.
A more detailed review of these projects is presented by Epsilon Associates in an
accompanying memorandum to the Commission.
Thank you for your consideration of this filing.
Sincerely yours,
cc: George Pucci, Esq.
Steven Cohen, Esq.
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