HomeMy WebLinkAbout66 SE48_3115 SBPF Superior Court OOC Appeal 9_30_19v
DOCKET NUMBER Trial Court of Massachusetts
CIVIL TRACKING ORDER
STANDING ORDER 1- 88) 1975CV00027 The Superior Court J
CASE NAME Mary Elizabeth Adams, Clerk of Court
Siasconset Beach Preservation Fund vs. Ashley Erisman member of The Nantucket County
Nantucket Conservation Commission et al
TO: Town of Nantucket COURT NAME & ADDRESS
Nantucket County Superior Court
16 Broad Street
P. O. Box 967
Nantucket, MA 02554
TRACKING ORDER - X - Accelerated
You are hereby notified that this case is on the track referenced above as per Superior Court Standing
Order 1-88. The order requires that the various stages of litigation described below must be completed not later
than the deadlines indicated.
STAGES OF LITIGATION DEADLINE
SERVED BY FILED BY HEARD BY
Service of process made and return filed with the Court 10/08/2019
I
Case shall be resolved and judgment shall issue by 07/06/2020
The final pre-trial deadline is not the scheduled date of the conference. You will be notified of that date at a later time
Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service.
This case is assigned to
CACS listed AE1, entered as E03 pursuant to Superior Court Standing Order 1-96
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W Z
a
1
co
DATE ISSUED ASSTSTAtd+CLERK PHONE
07/10/2019
DeteTme Footed: 07-10-2019 16:16:14
CIVIL ACTION COVER SHEET I DOCKET NUMBE
PLAINTIFF(S): Siasconset Beach Preservation Fund
ADDRESS: P.O. BOX 2279
Nantucket, MA 02584
ATTORNEY: Glenn Wood
ADDRESS: Rubin and Rudman LLP
BBo
53 State Street, 15th Floor
Boston, MA 02109
TYPE OF ACTION AN
CODE NO. TYPE OF ACTION (specify)
AE1 Administrative Action
Trial Court of Massachusetts
The Superior Court
COUNTY
I a
DEFENDANT(S): Ashley Erisman, Ian Golding, Ernest
Steinauer, David LaFleur, Joseph
Topham, Maureen Phillips, Seth
ADDRESS: Englebourg, as members of the
Nantucket Conservation Commission,
2 Bathing Beach Road
KD
Nantucket, MA 02443
ION (see reverse side)
TRACK HAS A JURY CLAIM BEEN MADE?
A 7 YES 7 NO
If "Other" please describe:
Is there a claim under G.L. c. 93A? Is this a class action under Mass. R. Civ. P. 23? YES FX NO E] YES 7 NO
STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, § 3A
The followingis a full, itemized and detailed statement of the facts on which the undersigned plaintiff or plaintiffs counsel relies to determine money damages. r this form. diFosregard double or treble damage claims; indicate single damages only.
TORT CLAIMS
A. Documented medical expenses to date: attach additional sheets as necessary)
1. Total hospital expenses................................................................................................................................................................. $
2. Total doctor expenses......................................................................... 53. Total chiropractic expenses........................................................................................................................................................... 54. Total physical therapy expenses........................................................................................................................................... $
5. Total other expenses (describe below) ..................................... $
Subtotal (A): $
B. Documented lost wages and compensation to date...................................................................................................................................... 5C. Documented property damages to date ................................. $
D. Reasonably anticipated future medical and hospital expenses............................................................................................................... $
E. Reasonably anticipated lost wages.............................................................................................................................................................. $
F. Other documented items of damages (describe below)................................................................................................................................ $
Briefly describe plaintiffs injury, including the nature and extent of injury:
N/A TOTAL (A -F):$
CONTRACT CLAIMS
attach additional sheets as necessary)
This action includes a claim involving collection of a debt incurred pursuant to a revolving credit agreement. Mass. R. Civ. P. 8.1(a). Provide a detailed description of claim(s):
TOTAL:$
Signature of Attorney/ Unrepresented Plaintiff: X Date:
RELATED ACTIONS: Please provide the case number, case name, and county of any related actions pending in the Superior Court.
None
CERTIFICATION PURSUANT TO SJC RULE 1:18
1 hereby certify that I have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJCRule1:18) requiring that I provide my clients with information about court -connected dispute resolution services and discuss with them theadvantagesanddisadvantagesofthevariousmethodsofdisputeresolution.
Signature of Attorney of Record: X 6 It h t., l o —, A ( "444)
Date:
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, SS
SIASCONSET BEACH PRESERVATION )
FUND, )
Plaintiff, )
V. )
ASHLEY ERISMAN, IAN GOLDING, )
ERNEST STEINAUER, DAVID )
LAFLEUR, JOSEPH TOPHAM, )
MAUREEN PHILLIPS, SETH )
ENGLEBOURG, as they are Members of )
the Nantucket Conservation Commission, )
and the Town of Nantucket, )
Defendants. )
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.
COMPLAINT
The Siasconset Beach Preservation Fund (the "Plaintiff' or "SBPF") hereby appeals a
denial Order of Conditions ("Denial OOC"), which the Town of Nantucket Conservation
Commission (the "Commission") issued on June 20, 2019 under the Town of Nantucket
Wetlands Protection Bylaw (the "Bylaw"). Attached hereto as Exhibit 1 is a copy of the Denial
OOC. The Commission issued the OOC denying the Plaintiff's Notice of Intent ("NOI"), dated
January 5, 2018, which sought permission to extend a geotextile tube system to the north and
south from an existing length of geotubes on Baxter Road, Nantucket, which was initially
allowed by the Commission as part of an existing project, pursuant to a September 20, 2015
OOC.
PARTIES
1. The Plaintiff SBPF is a non-profit 501(3) organization formed by owners in the
Siasconset neighborhood of Nantucket concerned about erosion of the Sankaty Bluff and the
threat that it poses to their neighborhood. The Plaintiff's goal is to use an effective,
environmentally sound, and economically feasible approach to addressing the erosion. SBPF has
a mailing address of P.O. Box 2279, Nantucket, Massachusetts 02584.
2. The Defendant Nantucket Conservation Commission is the municipal authority
responsible for reviewing and permitting activities concerning wetland resource areas under both
the Massachusetts Wetlands Protection Act, M.G.L. c.131, §40 (the "WPA") and the Bylaw. The
mailing address of the Commission is 2 Bathing Beach Road, Nantucket, Massachusetts 02443.
This action is brought against the Commission and its members in their official capacities.
STATEMENT OF FACTS
3. On or about January 5, 2018, on behalf of the Plaintiff, Epsilon Associates, Inc.,
in association with W.F. Baird & Associates, Ltd., filed a NOI with the Commission under the
WPA and the Bylaw for the Proposed Baxter Road and Sconset Bluff Storm Damage Prevention
Project, ("Proposed Project"), to extend the geotextile tube system to the north and south from
the existing length of geotubes, which was initially allowed by the Commission when it issued an
OOC on September 20, 2015 (SE 48-2824) ("Existing Project").
4. As described in more detail below, the Existing Project was the result of SBPF's
original proposal to stabilize approximately 4,000 feet of eroding Coastal Bank from 63 to 119
Baxter Road. Through various appeals and decisions to provide some immediate protection for
the most actively eroding reach of Coastal Bank, the 900 foot Existing Project was built. The
purposes of the Existing Project and the Proposed Project are to: 1) complete the project
originally sought by the SBPF, and 2) to provide storm damage protection for homes and other
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associated infrastructure along the portion of Sconset Bluff that continues to actively erode. The
new section of geotextile tubes would: 1) extend north from the Existing Project to protect three
homes (109, 113, and 115 Baxter Road), which necessitates extending the geotube returns onto
117 Baxter Road; and 2) extend south to protect 13 homes between 59 and 85 Baxter Road. This
comprises the "Full -Length Project."
5. The Commission issued an OOC ("Denial OOC") denying the Proposed Project
on June 20, 2019 under both the WPA and the Bylaw.
6. The Commission determined that the Resource Areas subject to regulation are
Land Under the Ocean, Coastal Beach, Coastal Dune, Coastal Bank, and Land Subject to Coastal
Storm Flowage.
Existing Proiect Background
7. The Department of Environmental Protection (the "Department") approved the
Existing Project by issuing an SOC on December 19, 2014 (SE48-2610). The Commission
approved retaining the Existing Project and adding a fourth geotube tier when it issued an OOC
on September 30, 2015 (SE48-2824). That OOC (SE48-2824) was not appealed. As is described
in further detail herein, there is no significant difference between the Existing Project and the
Proposed Project.
8. By way of a background, during the winter storms of 2012-2013, significant
retreat (up to 20 to 30 feet or more) on portions of the Sconset Bluff occurred, leaving the top of
the bluff less than 40 feet to the edge of Baxter Road in several areas, with many homes less than
25 feet from the top of the Coastal Bank. The Town of Nantucket (the "Town") and SBPF
entered into a Memorandum of Understanding to support the permitting of a 4,000 foot -long
rock revetment at the toe of the Coastal Bank extending from near the Lighthouse property to
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mid -Baxter Road, and an NOI was filed with the Commission in July 2013. As the 2013-2014
winter storm season approached and the revetment NOI was still pending, SBPF and the Town
jointly filed another NOI for 1,500 feet of geotextile tubes in October 2013.
9. On November 26, 2013, with the Commission review of the 1,500 foot geotube
project NOI getting delayed, SBPF filed an Emergency Certification request for the same four
tier geotextile tube system and related work proposed in the October 2013 NOI, but only for the
most endangered 900 feet of the bluff, from 91-105 Baxter Road. The Commission denied this
request on November 27, 2013. On appeal, the Department overturned the Commission's denial,
approving the Emergency Certification on December 10, 2013.
10. On December 4, 2013, the Commission approved a separate Emergency
Certification request filed by the Town for a variation on the October 2013 NOI that included
two lower tiers of 45 -foot circumference geotextile tubes topped by four upper tiers of smaller
jute bags.
11. On December 17, 2013, SBPF and the Town jointly filed an Emergency
Certification request with the Commission, which sought approval, on an emergency basis, for
the four tier geotextile tube project described in the first request but modified by incorporating
the conditions that the Department included in its December 10, 2013 Emergency Certification.
On December 18, 2013, the Commission certified the emergency, allowing an emergency project
consisting ofthree tiers of geotextile tubes along approximately 900 linear feet of Coastal Bank.
12. Each of the approved Emergency Certifications required that a NOI be filed to
allow full review of the emergency project. On March 14, 2014, SBPF and the Town designated
the October 2013 NOI for 1,500 feet of geotextile tubes as the required NOI. On April 25, 2014,
SBPF and the Town amended the October 2013 NOI to reduce the length of the Existing Project
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from 1,500 feet to 900 feet. The Commission denied this NOI in June 2014, which was appealed
to the Department by SBPF. The Department then approved the Existing Project by issuing an
SOC on December 19, 2014 (SE48-2610).
13. On January 5, 2015, the Commission appealed the SOC (SE48-2610) issued by
the Department. With that appeal, the Department entered a stay on the SOC until issues relative
to the Bylaw could be resolved. SBPF filed a subsequent NOI to authorize a geotube system.
14. The NOI was filed in August 2015 to retain the three tier geotube sytem along 87-
105 Baxter Road, to add a fourth tier along lots 91, 93, 97 and 99 Baxter Road, and to install
geotube returns. The September 2015 OOC (SE48-2824) was subsequently issued, authorizing
the three tier geotube system to remain in place, and authoring the installation of the returns and
a fourth tier in certain locations.
15. The Existing Project, which was approved by the Emergency Certification and re-
authorized by the 2015 OOC, consists of three and four tiers of geotextile tubes, vegetation
planting on the Coastal Bank above the sand template, and the installation of a stormwater runoff
drainage system. The first phase of the Existing Project was constructed in late December 2013
and January 2014, and included the installation of three stacked tiers of 45 -foot circumference of
geotextile tubes at the base of the eroding Coastal Bank. This first phase of the Existing Project
extended along approximately 852 feet at the toe of the Bank from 87-105 Baxter Road. The
second phase of the Existing Project was constructed in October 2015 through February 2016,
and included the installation of a fourth tier of geotextile tubes on Lots 91-99, intermediate
returns, end returns, and a surface runoff drainage system. With the returns included, the total
length of the Existing Project is 947 feet.
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Proposed Project Background
16. In its January 5, 2018 NOI filing, SBPF proposed to complete the Baxter Road
and Sconset Bluff Storm Damage Prevention Project, which was initially agreed-upon and
envisioned by the Town and SBPF in the July 2013 Memorandum of Understanding. The
Proposed Project, which extends north and south from the Existing Project is proposed to
provide storm damage protection for homes and associated infrastructure serving those homes
along the portion of the Sconset Bluff that continues to actively erode.
17. The proposed section of geotextile tubes will extend north from the Existing
Project to 117 Baxter Road to protect three pre -1978 homes (109, 113 and 115 Baxter Road), and
it will extend south from the Existing Project to 59 Baxter Road to protect 13 pre -1978 homes
inclusive of returns), thereby providing continuous protection from 59 through 115 Baxter
Road. The length of the Proposed Project is 2,683 feet, with 767 feet to the north of the Existing
Project and 1,916 feet south of the Existing Project. In order to provide protection from a 100 -
year storm, four tiers of geotextile tubes are proposed to provide continuous protection for the
entire length of Sconset Bluff that is vulnerable to erosion and storm damage. The face of the
Coastal Bank will be vegetated using American beachgrass and other native vegetation where
needed to help stabilize the face of the Coastal Bank and to prevent surface erosion.
18. The final plans submitted to the Commission were reduced in length from the
design submitted with the NOI in January 2018 so as to limit the Proposed Project to protecting
only existing pre -1978 homes, plus extending protection between the Existing Project and the
pre -1978 homes to the north and south to protect infrastructure related to the pre -1978 homes
and to prevent a gap in the Coastal Bank stabilization project.
W
19. The OOC also denied the Project pursuant to the WPA. The Plaintiffs requested a
Superseding Order of Conditions from the Department on July 2, 2019.
The Commission's Issuance of the Denial OOC for the Proposed Proiect is Inconsistent
with its Prior Approval of the Existing Proiect
20. As stated, 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."
21. The Existing Project and the Proposed Project 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
extensive monitoring program, including but not limited to monitoring of shoreline change and
bathymetric surveys.
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Proposed Project's Compliance with the Nantucket Wetlands Protection Regulation's
Nantucket Regulations") Performance Standards
Land Under the Ocean, Nantucket Regulations, Section 2.01
22. The Proposed Project will not adversely affect Land Under the Ocean ("LUO")
because there is no work proposed in that Resource Area.
23. The Proposed Project complies with Section 2.01(B)(7), which provides that
No new bulkheads or coastal engineering structures shall be permitted to protect
structures constructed or substantially improved after 8/78. Bulkheads may be rebuilt
only if the Commission determines that there is no environmentally better way to control
an erosion problem, including in appropriate cases the moving of the threatened building.
Other coastal engineering structures may be permitted only upon a clear showing that no
other alternative exists to protect a structure built prior to 9/78, but not substantially
improved, from imminent danger."
24. The Proposed Project complies with Section 2.01(B)(7) because it is designed to
preserve an entire historic, largely pre -1978 community, which includes mainly pre -1978 homes.
25. The Proposed Project further complies with Section 2.01(B)(8) because as a water
dependent project, it will have no adverse effects on wildlife, erosion control, marine fisheries,
shellfish beds, storm damage prevention, flood control and recreation. The Project will not
adversely affect wildlife as the bank vegetation will be restored. It will have a positive effect on
erosion control as it will protect the Bank from wave -induced erosion and sand mitigation will be
added to contribute to the natural sand supply into the littoral drift system. Further, no Project
activities will occur seaward of Mean High Water and so it will not affect fisheries or shellfish
beds. Storm damage prevention and flood control will benefit from the Project since it will
protect the Coastal Bank. Sand mitigation will be provided and shoreline monitoring conducted
to ensure that adjacent and downdrift beaches are not impacted. The Project will also not
adversely impact recreational uses as public access will be maintained in front of or on top of the
geotextile tubes.
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Coastal Beach, Nantucket Regulations, Section 2.02
26. The Proposed Project will not adversely affect Coastal Beach because it complies
with Nantucket Regulations Section 2.02(B)(2), which is identical to Section 2.01(B)(7), for the
same reasons.
27. The Proposed Project further complies with Nantucket Regulations Section
2.02(B)(4) regarding clean fill because sand mitigation will consist of placing clean, beach -
compatible sand into the littoral system, and the Project does not involve the placement of sand
on any tidal flats.
28. The Project complies with Nantucket Regulations Section 2.02(B)(9) because the
Project has been designed using the best available measures to stabilize the Coastal Bank and
protect existing landward structures and public infrastructure while simultaneously avoiding,
minimizing, and mitigating for potential impacts.
Coastal Dune, Nantucket Regulations, Section 2.03
29. The Project will not adversely affect Coastal Dune because it will be built
southward to a point north of the existing Coastal Dune, and SBPF is committed to avoiding the
alteration of Coastal Dune.
Coastal Bank, Nantucket Regulations, Section 2.05
30. The Proposed Project will not adversely affect the Coastal Bank.
31. The Project complies with Nantucket Regulation Section 2.05(B)(1), which is the
prohibition of coastal engineering structures, for the same reasons as described above regarding
compliance with Section 2.01(B)(7). Specifically, the Project is designed to protect a largely pre -
78 community, which includes mostly pre -78 homes as well as pre -78 structures to which
various alterations have been made. Many houses have already been moved, others have little
In
room to move, and the Town voted for the Existing Project, recognizing that infrastructure is in
imminent danger and should be protected in place. The Memorandum of Understanding entered
into in July 2013 by the Town and SBPF specifically recognized that "certain private homes
located on or near Siasconset Bluff and Baxter Road, a public way, may be imminently
threatened with damage and/or loss and destruction due to severe erosion of the bluff' and as
stated previously, specifically planned for up to 4,000 feet of a coastal engineering structures in
the areas, including those of the Existing and Proposed Project.
32. Bank recession is progressing and many homes have been forced to move off of
their lots or lost due to erosion. An analysis of Bank retreat prepared for the Existing Project
documented that single -season Bank recession rates could be as high as 40 -feet, based on
measured Bank recession from 2012-2013. The homes and infrastructure in the Project area are
all in imminent danger because they could be destroyed if another season or two of significant
Bank erosion occurs.
33. SBPF performed an Alternative Analysis, which demonstrated that no other
alternative is feasible to satisfy the Project objectives.
34. The Project further complies with Nantucket Regulations Section 2.05(B)(3)
because it will not adversely affect Bank height, Bank stability, wildlife habitat, vegetation,
wetland scenic view, or the use of the Bank as a sediment source.
35. The Project will preserve rather than adversely affect the Bank height and is
designed to maintain Bank stability by protecting the lower Bank from wave -induced erosion.
Vegetation plantings on the upper Bank face will also prevent rain and wind -induced erosion.
The Project will not adversely affect wildlife habitat or vegetation because Bank vegetation will
be restored, and there will be the planting of beach grass and other native vegetation on the Bank
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face. Further, the geotextile tubes with the sand cover and associated vegetation will have
wetland scenic views similar to the Bank appearance before erosion occurred. The Project
provides sand mitigation and includes the monitoring of adjacent and downdrift beaches, and
thus will not adversely affect sediment sources.
Land Subject to Coastal Storm Flowage, Nantucket Regulations, Section 2. 10
36. The Proposed Project will not adversely affect Land Subject to Coastal Storm Flowage
LSCSF").
37. The Project complies with Nantucket Regulations Section 2.10(B)(1) because it will not
reduce the ability of LSCSF to absorb and contain flood waters. The Project will stabilize the
Bank face and provide protection to the toe of the Bank, and enhance the Bank's function of
buffering inland areas and buildings from storm damage.
38. The Project further complies with Nantucket Regulations Section 2. 10(B)(5) because the
Project has been designed using best available measures to stabilize the Coastal Bank and
existing landward structures while avoiding, minimizing, and mitigating for potential
impacts.
COUNT
M.G.L. c.249, 44)
Nantucket Conservation Commission)
39. The Plaintiff hereby repeats and incorporates by reference all allegations set forth
in Paragraphs 1 through 38 as if set forth herein.
40. The Proposed Project as proposed complies with any and all requirements set
forth by the Bylaw.
41. The Denial OOC contains no Findings or other legitimate justifications that could
properly amount to a Denial of the Plaintiff's Proposed Project under the Bylaw.
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42. The Commission, through the issuance of a Denial OOC, denied the Proposed
Project yet failed to identify any legitimate adverse impacts on involved Resource Areas noted
on the Denial OOC.
43. The Plaintiff challenges the Denial of the Proposed Project on the grounds that the
Commission's denial is arbitrary and capricious, is wholly without support in the Administrative
Record, and rests upon misinterpretations and allegations that have no relevance under the Bylaw
and/or are factually and technically unfounded.
44. The Commission's denial of the Proposed Project (as proposed through the N01)
has resulted in substantial injury and manifest injustice to the Plaintiff.
COUNT Il
M.G.L. c.231A, 441 and 2 — Declaratory Judgment
Nantucket Conservation Commission)
45. The Plaintiff hereby repeats and incorporates by reference the allegations
contained in Paragraphs 1 through 44 above as if fully set forth herein.
46. The Commission's denial rests upon misinterpretations and allegations that have
no relevance under the Bylaw and are technically and factually unfounded. Based on the
proposed design and construction methods, the Project will not adversely affect any protected
interest of the Bylaw or Resources Areas protected thereunder.
47. An actual controversy exists between the parties.
48. All necessary parties are joined for the purposes of adjudicating the controversy.
49. The Plaintiff has exhausted its administrative remedies.
50. The Plaintiffs Proposed Project fully complies with any and all performance
standards under the Bylaw.
51. Thus, the Plaintiff seeks a declaration from this Court that:
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a. The Commission's June 20, 2019 Denial OOC is unenforceable as applied to
the Plaintiffs Proposed Project, and that the Denial OOC is null and void:
b. The Commission's June 20, 2019 Denial OOC has resulted in substantial
injury and manifest injustice to the Plaintiff, and
c. The Commission's decision to issue the June 20, 2019 Denial OOC was
arbitrary and capricious, and therefore must be declared invalid.
PRAYERS FOR RELIEF
WHEREFORE, the Plaintiff requests that this Court:
a) Grant certiorari review pursuant to M.G.L. c.249, §4;
b) Enter declaratory judgment pursuant to M.G.L. c.231A, §§1 and 2.
C) Enter an Order annulling the Commission's June 20; 2019 Denial of Order of
Conditions and find that the Plaintiffs Proposed Project complies with the Nantucket Wetlands
Protection Bylaw;
d) Enter an Order requiring the Commission to issue a Positive Order of Conditions
under the Bylaw for the Proposed Project;
e) Enter judgment in their favor on all counts listed herein; and
f) Award such other and further relief as this Court deems just.
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Dated: July 9, 2019
B[S
Respectfully Submitted,
SIASCONSET BEACH
PRESERVATION FUND,
Plaintiff,
By its Attorneys,
Glenn A. Wood, BBO #547421
Michele A. Hunton, BBO #667766
RUBIN AND RUDMAN LLP
53 State Street
Boston, MA 02109
617) 330-7000
gwood@rubinrudman.com
mhunton@rubinrudman.com
ULMassachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
A. General Information
Provided by MassDEP:
SE48-3115
MassDEP File #
eDEP Transaction #
Nantucket
City/Town
1. From: Nantucket
Conservation commission
2. This issuance is for
check one): a. ®Order of Conditions b. Ej Amended Order of Conditions
3. To: Applicant:
Josh Posner
a. First Name b. Last Name
Siasconset Beach Preservation Fund (SBPF)
c. Organization
P.O Box 2279
d. Mailing Address
Nantucket MA 02584
e. City/Town f. State g. Zip Code
4. Property Owner (if different from applicant):
a. First Name b. Last Name
See Attached Property Owners (Town of Nantucket and Property Owners 59-119 Baxter Rd)
c. Organization
d. Mailing Address
e. City/Town
5. Project Location:
f. State
59-119 Baxter Road (plus returns) See Attached List Nantucket
a. Street Address b. City/Town
See Attached list See Attached list
c. Assessors Map/Plat Number d. Parcel/Lot Number
Latitude and Longitude, if known: d. Latitude e. Longitude
g. Zip Code
wpa(orm5.doc • rev. 03/2/2010 Page 1 o/ 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
Provided by MassDEP.
SE48-3115
MassDEP File #
eDEP Transaction #
Nantucket
City/Town
A. General Information (cont.)
6. Property recorded at the Registry of Deeds for (attach additional information if more than
one parcel):
Nantucket See Attached List
a. County b. Certificate Number (if registered land)
c. Book d. Page
01/05/2018 05/20/2019 06/20/2019
7. Dates: a. Date Notice of Intent Filed b. Date Public Hearing Closed c. Date of Issuance
8. Final Approved Plans and Other Documents (attach additional plan or document references
as needed):
Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project Permit Drawings (6 sheets)
a. Plan Title
Baird W.F Baird & Associates Ltd. Gordon G. Thomson, P.E.
b. Prepared By c. Signed and Stamped by
05-15-2019 N/A
d. Final Revision Date e. Scale
f. Additional Plan or Document Title g. Date
B. Findings
i. Findings pursuant to the Massachusetts Wetlands Protection Act:
Following the review of the above -referenced Notice of Intent and based on the information
provided in this application and presented at the public hearing, this Commission finds that
the areas in which work is proposed is significant to the following interests of the Wetlands
Protection Act (the Act). Check all that apply:
a. Public Water Supply b. ® Land Containing Shellfish
c. ® Prevention of
Pollution
d. Private Water Supply e. ® Fisheries
f. ® Protection of
Wildlife Habitat
g. Groundwater Supply
h. ® Storm Damage Prevention i. ® Flood Control
j. ® Wetland Scenic Views (bylaw) k. ® Recreation (Bylaw)
2. This Commission hereby finds the project, as proposed, is: (check one of the following boxes)
Approved subject to:
a. the following conditions which are necessary in accordance with the performance
standards set forth in the wetlands regulations. This Commission orders that all work shall
be performed in accordance with the Notice of Intent referenced above, the following
General Conditions, and any other special conditions attached to this Order. To the extent
that the following conditions modify or differ from the plans, specifications, or other
proposals submitted with the Notice of Intent, these conditions shall control.
wpafoim5.doc • rev. 03/2/2010 Page 2 V 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
B. Findings (cont.)
Provided by MassDEP
SE48-3115
MassDEP File #
eDEP Transaction #
Nantucket
City/Town
Denied because:
b. ® the proposed work cannot be conditioned to meet the performance standards set forth
in the wetland regulations. Therefore, work on this project may not go forward unless and
until a new Notice of Intent is submitted which provides measures which are adequate to
protect the interests of the Act, and a final Order of Conditions is issued. A description of
the performance standards which the proposed work cannot meet is attached to this
Order.
C. the information submitted by the applicant is not sufficient to describe the site; the work,
or the effect of the work on the interests identified in the Wetlands Protection Act.
Therefore, work on this project may not go forward unless and until a revised Notice of
Intent is submitted which provides sufficient information and includes measures which are
adequate to protect the Act's interests, and a final Order of Conditions is issued. A
description of the specific information which is lacking and why it is necessary is
attached to this Order as per 310 CMR 10.05(6)(c).
s. Buffer Zone Impacts: Shortest distance between limit of project
disturbance and the wetland resource area specified in 310 CMR 10, 02(1)(a) a. linear feet
Inland Resource Area Impacts: Check all that apply below. (For Approvals Only)
Resource Area Proposed Permitted Proposed Permitted
Alteration Alteration Replacement Replacement
4. Bank a. linear feet b. linear feet c. linear feet d. linear feet
5. Bordering
Vegetated Wetland
6. Land Under
Waterbodies and
Waterways
7. Bordering Land
Subject to Flooding
Cubic Feet Flood Storage
8. Isolated Land
Subject to Flooding
Cubic Feet Flood Storage
s. Riverfront Area
Sq ft within 100 ft
Sq ft between 100-
200 ft
wpalorm5.doc • rev. 03/2/2010
a. square 1eet b. square c. square feet d. square feet
a. square feet b. square c. square feet d. square feet
e. c/y dredged f. Gy
a. square feet b. square c. square feet d. square feet
e. cubic feet f. cubic feet g. cubic feet h. cubic feet
a. square feet b. square
c. cubic feet d. cubic feet e. cubic feet f, cubic feet
c. square feet d. square
g. square feet h. square
e. square feet f. square feet
i. square feet j. square feet
Page 2 Of 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
B. Findings (cont.)
Provided by MassDEP:
SE48-3115
MassDEP File #
eDEP Transaction #
Nantucket
cityrrown
Coastal Resource Area Impacts: Check all that apply below. For Approvals Only)
Proposed Permitted Proposed Permitted
Alteration Alteration Replacement Replacement
1o. Designated Port Indicate size under Land Under the Ocean, below
Areas
11. Land Under the
Ocean a. square feet b. square
c. cly dredged d. c/y
Indicate size under Coastal Beaches and/or Coastal Dunes
12. Barrier Beaches below
13. El Coastal Beaches a. square feet b. square
cu yd cu
c. nourishment d. nourishment
feet
14. Coastal Dunes a. square feet b. square
cu yd cu yd
c. nourishment d. nourishment
15. Coastal Banks a. linear feet b. linear feet
16. Rocky Intertidal
Shores a. square feet b. square
17. Salt Marshes a. square feet b. square c. square feet d. square feet
18. Land Under Salt
Ponds a. square feet b. square
c. c/y dredged d. c/y
19. Land Containing
Shellfish a. square feet b. square c. square feet d. square feet
20. Fish Runs Indicate size under Coastal Banks, Inland Bank, Land Under
the Ocean, and/or inland Land Under Waterbodies and
Waterways, above
a. c/y dredged b. c/y
21. ® Land Subject to
Coastal Storm a, square feet b. square
Flowage
wpeform5.doc • rev. 03/2/2010 Pape 4 or 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 - Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
B. Findings (cont.)
22. Restoration/Enhancement *:
a. square feet of BVW
23. Stream Crossing(s):
a. number of new stream crossings
b. square feet of salt marsh
Provided by MassDEP:
SE48-_3115 _
MassDEP File#
eDEP Transaction #
Nantucket
City/Town
b. number of replacement stream crossings
C. General Conditions Under Massachusetts Wetlands Protection Act
The following conditions are only applicable to Approved projects.
1. Failure to comply with all conditions stated herein, and with all related statutes and other
regulatory measures, shall be deemed cause to revoke or modify this Order.
2. The Order does not grant any property rights or any exclusive privileges; it does not
authorize any injury to private property or invasion of private rights.
3. This Order does not relieve the permittee or any other person of the necessity of complying
with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations.
4. The work authorized hereunder shall be completed within three years from the date of this
Order unless either of the following apply:
a. the work is a maintenance dredging project as provided for in the Act; or
b. the time for completion has been extended to a specified date more than three years,
but less than five years, from the date of issuance. If this Order is intended to be valid
for more than three years, the extension date and the special circumstances warranting
the extended time period are set forth as a special condition in this Order.
5. This Order may be extended by the issuing authority for one or more periods of up to three
years each upon application to the issuing authority at least 30 days prior to the expiration
date of the Order.
6. If this Order constitutes an Amended Order of Conditions, this Amended Order of
Conditions does not extend the issuance date of the original Final Order of Conditions and
the Order will expire on 06/17/22 unless extended in writing by the Department.
7. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash,
refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath,
paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the
foregoing.
8. This Order is not final until all administrative appeal periods from this Order have elapsed,
or if such an appeal has been taken, until all proceedings before the Department have been
completed.
wpaform5.doc • rev. 031212010 Page 5 of 12
Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands SE48-3115
MassDEP File #
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction #
And the Town of Nantucket Wetlands Bylaw Chapter 136 Nantucket
City/Town
C. General Conditions Under Massachusetts Wetlands Protection Act (cont.)
9. No work shall be undertaken until the Order has become final and then has been recorded
in the Registry of Deeds or the Land Court for the district in which the land is located, within
the chain of title of the affected property. In the case of recorded land, the Final Order shall
also be noted in the Registry's Grantor Index under the name of the owner of the land upon
which the proposed work is to be done. In the case of the registered land, the Final Order
shall also be noted on the Land Court Certificate of Title of the owner of the land upon
which the proposed work is done. The recording information shall be submitted to the
Conservation Commission on the form at the end of this Order, which form must be
stamped by the Registry of Deeds, prior to the commencement of work,
10. A sign shall be displayed at the site not less then two square feet or more than three
square feet in size bearing the words,
Massachusetts Department of Environmental Protection" [or, "MassDEP"]
File Number SE48- 3115 "
11. Where the Department of Environmental Protection is requested to issue a Superseding
Order, the Conservation Commission shall be a party to all agency proceedings and
hearings before MassDEP.
12. Upon completion of the work described herein, the applicant shall submit a Request for
Certificate of Compliance (WPA Form 8A) to the Conservation Commission.
13. The work shall conform to the plans and special conditions referenced in this order.
14. Any change to the plans identified in Condition #13 above shall require the applicant to
inquire of the Conservation Commission in writing whether the change is significant enough
to require the filing of a new Notice of Intent.
15. The Agent or members of the Conservation Commission and the Department of
Environmental Protection shall have the right to enter and inspect the area subject to this
Order at reasonable hours to evaluate compliance with the conditions stated in this Order;
and may require the submittal of any data deemed necessary by the Conservation
Commission or Department for that evaluation.
16. This Order of Conditions shall apply to any successor in interest or successor in control of
the property subject to this Order and to any contractor or other person performing work
conditioned by this Order.
17. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated
Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be
marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall
be maintained until a Certificate of Compliance has been issued by the Conservation
Commission.
wpaform5.doc • rev. 03/2/2010 Page 6 of 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 - Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
Provided by MassDEP
SE48-3115
MassDEP File #
eDEP Transaction #
Nantucket
City/Town
L. Veneral Conditions Under Massachusetts Wetlands Protection Act (cont.)
18. All sedimentation barriers shall be maintained in good repair until all disturbed areas have
been fully stabilized with vegetation or other means. At no time shall sediments be
deposited in a wetland or water body. During construction, the applicant or his/her designee
shall inspect the erosion controls on a daily basis and shall remove accumulated sediments
as needed. The applicant shall immediately control any erosion problems that occur at the
site and shall also immediately notify the Conservation Commission, which reserves the
right to require additional erosion and/or damage prevention controls it may deem
necessary. Sedimentation barriers shall serve as the limit of work unless another limit of
work line has been approved by this Order.
NOTICE OF STORMWATER CONTROL AND MAINTENANCE REQUIREMENTS
19. The work associated with this Order (the "Project") is (1) is not (2) ® subject to the
Massachusetts Stormwater Standards. If the work is subject to the Stormwater
Standards, then the project is subject to the following conditions:
a) All work, including site preparation, land disturbance, construction and redevelopment,
shall be implemented in accordance with the construction period pollution prevention and
erosion and sedimentation control plan and, if applicable, the Stormwater Pollution
Prevention Plan required by the National Pollution Discharge Elimination System
Construction General Permit as required by Stormwater Condition 8. Construction period
erosion, sedimentation and pollution control measures and best management practices
BMPs) shall remain in place until the site is fully stabilized.
b) No stormwater runoff may be discharged to the post -construction stormwater BMPs
unless and until a Registered Professional Engineer provides a Certification that:
i. all construction period BMPs have been removed or will be removed by a date certain
specified in the Certification. For any construction period BMPs intended to be converted
to post construction operation for stormwater attenuation, recharge, and/or treatment, the
conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that
the BMP has been properly cleaned or prepared for post construction operation, including
removal of all construction period sediment trapped in inlet and outlet control structures;
ii. as -built final construction BMP plans are included, signed and stamped by a Registered
Professional Engineer, certifying the site is fully stabilized;
W. any illicit discharges to the stormwater management system have been removed, as per
the requirements of Stormwater Standard 10;
iv. all post -construction stormwater BMPs are installed in accordance with the plans
including all planting plans) approved by the issuing authority, and have been inspected to
ensure that they are not damaged and that they are in proper working condition;
v. any vegetation associated with post -construction BMPs is suitably established to
withstand erosion.
wpaform5.doc - rev. 03/2/2010 Page 7 of 12
Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection -Wetlands SE48-3115
c) The landowner is responsible for BMP maintenance until the issuing authority is notified
that another party has legally assumed responsibility for BMP maintenance. Prior to
requesting a Certificate of Compliance, or Partial Certificate of Compliance, the responsible
party (defined in General Condition 18(e)) shall execute and submit to the issuing authority
an Operation and Maintenance Compliance Statement ("O&M Statement) for the
Stormwater BMPs identifying the party responsible for implementing the stormwater BMP
Operation and Maintenance Plan ("O&M Plan") and certifying the following: i.) the O&M
Plan is complete and will be implemented upon receipt of the Certificate of Compliance,
and ii.) the future responsible parties shall be notified in writing of their ongoing legal
responsibility to operate and maintain the stormwater management BMPs and implement
the Stormwater Pollution Prevention Pian.
d) Post -construction pollution prevention and source control shall be implemented in
accordance with the long-term pollution prevention plan section of the approved
Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by
the National Pollution Discharge Elimination System Multi -Sector General Permit.
e) Unless and until another party accepts responsibility, the landowner, or owner of any
drainage easement, assumes responsibility for maintaining each BMP. To overcome this
presumption, the landowner of the property must submit to the issuing authority a legally
binding agreement of record, acceptable to the issuing authority, evidencing that another
entity has accepted responsibility for maintaining the BMP, and that the proposed
responsible party shall be treated as a permittee for purposes of implementing the
requirements of Conditions 18(f) through 18(k) with respect to that BMP. Any failure of the
proposed responsible party to implement the requirements of Conditions 18(f) through
18(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate
of Compliance. In the case of stormwater BMPs that are serving more than one lot, the
legally binding agreement shall also identify the lots that will be serviced by the stormwater
BMPs. A plan and easement deed that grants the responsible party access to perform the
required operation and maintenance must be submitted along with the legally binding
agreement.
f) The responsible party shall operate and maintain all stormwater BMPs in accordance
with the design plans, the O&M Plan, and the requirements of the Massachusetts
Stormwater Handbook.
wpaform5.doc • rev. 03/2/2010 Page 8 of 12
WPA Form 5 —Order of Conditions
t lassDEP File #
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEPTransaction#
And the Town of Nantucket Wetlands Bylaw Chapter 136 Nantucket
City/Town
C. General Conditions Under Massachusetts Wetlands Protection Act (cont.)
d) Post -construction pollution prevention and source control shall be implemented in
accordance with the long-term pollution prevention plan section of the approved
Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by
the National Pollution Discharge Elimination System Multi -Sector General Permit.
e) Unless and until another party accepts responsibility, the landowner, or owner of any
drainage easement, assumes responsibility for maintaining each BMP. To overcome this
presumption, the landowner of the property must submit to the issuing authority a legally
binding agreement of record, acceptable to the issuing authority, evidencing that another
entity has accepted responsibility for maintaining the BMP, and that the proposed
responsible party shall be treated as a permittee for purposes of implementing the
requirements of Conditions 18(f) through 18(k) with respect to that BMP. Any failure of the
proposed responsible party to implement the requirements of Conditions 18(f) through
18(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate
of Compliance. In the case of stormwater BMPs that are serving more than one lot, the
legally binding agreement shall also identify the lots that will be serviced by the stormwater
BMPs. A plan and easement deed that grants the responsible party access to perform the
required operation and maintenance must be submitted along with the legally binding
agreement.
f) The responsible party shall operate and maintain all stormwater BMPs in accordance
with the design plans, the O&M Plan, and the requirements of the Massachusetts
Stormwater Handbook.
wpaform5.doc • rev. 03/2/2010 Page 8 of 12
Massachusetts Department of Environmental Protection Provided by MassDEP
Bureau of Resource Protection - Wetlands SE48-3115
WPA Form 5 — Order of Conditions
MassDEP File #
1 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction #
And the Town of Nantucket Wetlands Bylaw Chapter 136 Nantucket
City/Town
C. General Conditions Under Massachusetts Wetlands Protection Act (cont.)
g) The responsible party shall:
1. Maintain an operation and maintenance log for the last three (3) consecutive
calendar years of inspections, repairs, maintenance and/or replacement of the
stormwater management system or any part thereof, and disposal (for disposal the
log shall indicate the type of material and the disposal location);
2. Make the maintenance log available to MassDEP and the Conservation
Commission ("Commission") upon request; and
3. Allow members and agents of the MassDEP and the Commission to enter and
inspect the site to evaluate and ensure that the responsible party is in compliance
with the requirements for each BMP established in the O&M Plan approved by the
issuing authority.
h) All sediment or other contaminants removed from stormwater BMPs shall be disposed
of in accordance with all applicable federal, state, and local laws and regulations.
i) Illicit discharges to the stormwater management system as defined in 310 CMR 10.04
are prohibited.
j) The stormwater management system approved in the Order of Conditions shall not be
changed without the prior written approval of the issuing authority.
k) Areas designated as qualifying pervious areas for the purpose of the Low Impact Site
Design Credit (as defined in the MassDEP Stormwater Handbook, Volume 3, Chapter 1,
Low Impact Development Site Design Credits) shall not be altered without the prior written
approval of the issuing authority.
1) Access for maintenance, repair, and/or replacement of BMPs shall not be withheld.
Any fencing constructed around stormwater BMPs shall include access gates and shall be
at least six inches above grade to allow for wildlife passage.
Special Conditions (if you need more space for additional conditions, please attach a text
document):
wpaformEdoc • rev. 0312/2010 Pape 9 of 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 - Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
Provided by MassDEP:
SE48-3115
MassDEP File #
eDEP Transaction ,#
Nantucket
City/Town
D. Findings Under Municipal Wetlands Bylaw or Ordinance
1. Is a municipal wetlands bylaw or ordinance applicable? ® Yes No
2. The Nantucket hereby finds (check one that applies):
Conservation Commission
a. that the proposed work cannot be conditioned to meet the standards set forth in a
municipal ordinance or bylaw, specifically:
1. Municipal Ordinance or Bylaw 2. Citation
Therefore, work on this project may not go forward unless and until a revised Notice of
Intent is submitted which provides measures which are adequate to meet these
standards, and a final Order of Conditions is issued.
b. that the following additional conditions are necessary to comply with a municipal
ordinance or bylaw:
1. Municipal Ordinance or Bylaw 2. Citation
3. The Commission orders that all work shall be performed in accordance with the following
conditions and with the Notice of Intent referenced above. To the extent that the following
conditions modify or differ from the plans, specifications, or other proposals submitted with
the Notice of Intent, the conditions shall control.
The special conditions relating to municipal ordinance or bylaw are as follows (if you need
more space for additional conditions, attach a text document):
Please view additional findings and conditions page(s)
wpafoam5ADc • rev. 03/2/2010 Pape 10 c+ 12
DENIAL
Massachusetts Wetlands Protection Act (MGL Chapter 131, Section 40)
Town of Nantucket Wetlands Bylaw (Chapter 136)
Address:
Assessor's Map and Parcels:
Property Owner:
Applicant:
DEP File Number:
Filing Date:
Date Hearing Closed:
Date Orders Issued:
Plan ofRecord Information:
59-119 Baxter Road and
See attached list
Town of Nantucket/see attached list
Siasconset Beach Preservation Fund, Inc. (SBPF)
SE48-3115
January 5, 2018
May 20, 2019
June 17, 2019
Expanded Baxter Road and Sconset Bluff Storm Damage
Prevention Project Permit Drawings (6 sheets), dated
2019-01-10, final revision 2019-05-15 and stamped by
Gordon G. Thomson, P.E.
Permit Overview:
This order denies a permit to construct and maintain a four tier geotube system and
returns with sand nourishment, and the replanting ofthe bank face on a Coastal Bank,
Coastal Beach, Coastal Dune and Land Subject to Coastal Storm Flowage.
Project Proposal:
The Order of Conditions is based on information submitted in the Notice of Intent dated
January 5, 2018, its attachments and the plan of record, "Expanded Baxter Road and
Sconset Bluff Storm Damage Prevention Project Permit Drawings (6 sheets), dated 2019-
01-10, final revision of 2019-05-15 and stamped by Gordon G. Thompson, P.E. The
Commission also considered and relied upon testimony at public hearings and other
pertinent supplemental information including and not limited to:
9-12-2018 Memo from Ian Golding
Sconset Bluff Images provided by Ian Golding
Sand samples dated 3-16-18 from Ian Golding
9-27-2018 Letter from the Nantucket Land Council
9-27-2018 Letter from the Nantucket Coastal Conservancy
9-28-2018 Letter from Applied Coastal
10-30-2018 Comments from the Nantucket Land Council and Applied Coastal
11-02-2018 Letter from Epsilon Associates
Work Logs from January -March 2018 provided by SBPF
11-5-2018 Letter from Epsilon Associates
11-19-2018 Letter from Nantucket Coastal Conservancy
11-30-2018 Letter from SBPF
11-30-2018 Letter from Nantucket Coastal Conservancy
11-30-2018 Letter from Applied Coastal
12-03-2018 Letter from SBPF
12-03-2018 Letter from Nantucket Coastal Conservancy
12-3-2018 Letter from Judith Wegner
1-15-2019 Revised Project Plans from SBPF
Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road
2-1-2019 Materials from Ian Golding
2-1-2019 Review ofproject from Greg Berman
2-7-2019 Letter from SBPF
2-8-2019 Letter from Peter Kellner
2-11-2019 Letter from Quidnet Squam Association
2-11-2019 Two letters from SBPF
2-11-2019 Letter from Nantucket Land Council
2-11-2019 Letter from Dirk Roggeveen
2-8-2019 Updated Project Plans from SBPF
3-1-2019 Determination from Massachusetts Natural Heritage and Endangered Species
Program
3-4-2019 Letter from Nantucket Coastal Conservancy
3-4-2019 Letter from SBPF
3-6-2019 Letter from Nantucket Coastal Conservancy
3-6-2019 Letter from Applied Coastal
3-8-2019 Two Letters from SBPF
3-8-2019 Letter from Judith Wegner
3-11-2019 Letter from Nantucket Coastal Conservancy
3-11-2019 Comments from Judith Wegner
Jim O'Connell Letter from 11-4-2013 submitted
Superseding Order of Conditions SE48-2610 dated December 19, 2014
3-11-2019 Letter from SBPF
3-18-2019 Letter from Nantucket Coastal Conservancy
3-25-2019 Letter from Epsilon Associates
4-22-2019 Comments from Barbara Bund
4-22-2019 Comment from Nantucket Coastal Conservancy
4-23-2019 Comments from Nantucket Coastal Conservancy
4-22-2019 Comments from SBPF
4-25-2019 Letter from Kopelman and Paige (Town Counsel)
5-1-2019 Comments from Nantucket Coastal Conservancy
5-14-2019 Letter from Epsilon Associates
5-14-2019 Letter from SBPF
5-15-2019 Revised Project Plans from SBPF
5-16-2019 Letter from Applied Coastal
5-16-2019 Letter from Nantucket Land Council
5-20-2019 Letter from SBPF
Findings:
1. The Commission finds that areas subject to regulation are land under the ocean
coastal beach, coastal dune, coastal bank, land subject to coastal storm flowage
and their associated buffer zones.
2. The Commission finds that the property is partially located within Priority Habitat
of Rare Species or Estimated Habitat of Rare Wildlife as defined by the
Massachusetts Natural Heritage and Endangered Species Program.
3. The Commission finds that the geotube system is a coastal engineering structure.
Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road
The following findings pertain to the Commonwealth of Massachusetts Wetlands
Protection Act (MGL Chapter 131 Section 40)
4. The Commission finds that land under the ocean is determined to be significant to
the protection ofmarine fisheries, protection of wildlife habitat, storm damage
prevention and flood control.
5. The Commission finds that coastal beach is determined to be significant to storm
damage prevention, flood control and protection of wildlife habitat.
6. The Commission finds that the coastal dune is significant to storm damage
prevention, flood control and the protection of wildlife habitat. 7. The commission finds that the coastal bank is determined to be significant to
storm damage prevention and flood control because it supplies sediment to the
coastal beach.
8. The Commission finds that the coastal bank is determined to be significant to
storm damage prevention and flood control because it is a vertical buffer to storm
waters
9. The Commission finds that the applicant has not met the burden ofproof to
demonstrate compliance with 310 CMR 10.25 (5) that projects not included in
310 CMR 10.25(3) or 10.25 (4) which affect nearshore areas of land under the
ocean shall not cause adverse effects by altering the bottom topography so as to
increase storm damage or erosion of coastal beaches, coastal banks, coastal dunes,
or salt marshes.
10. The Commission finds that the applicant has not met the burden ofproof to
demonstrate compliance with 310 CMR 10.25 (6) that projects not included in
310 CMR 10.25(3) which affect land under the ocean shall ifwater -dependent be
designed and constructed, using best available measures, so as to minimize
adverse effects, and ifnon -water -dependent, have no adverse effects, on marine
fisheries habitat or wildlife habitat caused by: (a) alterations in water circulation;
c) alterations in the distribution of sediment grain size; (d) changes in water
quality, including, but not limited to, other than natural fluctuations in the level of
dissolved oxygen, temperature or turbidity, or the addition of pollutants.
11. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with 310 CMR 10.27 (3) that any project on a coastal
beach, except any project permitted under 310 CMR 10.30 (3)(a), shall not have
an adverse effect by increasing erosion, decreasing the volume or changing the
form of any such coastal beach or an adjacent or downdrift coastal beach.
12. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with 310 CMR 10.28 (3) that any alteration of, or
structure on, a coastal dune or within 100 feet of a coastal dune shall not have an
adverse effect on the coastal dune by:
a. Affecting the ability of waves to remove sand from the dune;
b. Disturbing the vegetative cover so as to destabilize the dune;
c. Causing any modification of the dune form that would increase the
potential for storm or flood damage;
d. Interfering with the landward or lateral movement'ofthe dune;
e. Causing removal of the sand from the dune artificially; or
f. Interfering with mapped or otherwise identified nesting habitat
13. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with 310 CMR 10.30 (3) that no new bulkhead,
Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road
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 (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 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.
c. Protective planting designed to reduce erosion may be permitted.
14. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with 310 CMR 10.30 (4) that 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.
15. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with 310 CMR 10.30 (6) that any project on such a
coastal bank or within 100 feet landward of the top of such coastal bank shall
have no adverse effects on the stability of the coastal bank.
16. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with 310 CMR 10.30 ( 7) that bulkheads, revetments,
seawalls, groins or other coastal engineering structures may be permitted on such
a coastal bank except when such bank is significant to storm damage prevention
or flood control because it supplies sediment to coastal beaches, coastal dunes and
barrier beaches.
The following findings pertain to the Town of Nantucket Wetlands Protection Bylaw
Chapter 136)
17. The Commission finds that the coastal beach is significant to the protection of the
following interests: flood control, erosion control, storm damage prevention,
fisheries, shellfish, wildlife, recreation and wetland scenic views.
18. The Commission finds that the coastal dune is significant to the protection ofthe
following interests: flood control, erosion control, storm damage prevention,
prevention of pollution, wildlife, and wetland scenic views.
19. The Commission finds that the coastal bank is significant to the protection of the
following interests: flood control, erosion control, storm damage prevention,
wildlife, and wetland scenic views.
20. The Commission finds that land subject to coastal storm flowage is significant to
the protection of the following interests: flood control, erosion control, storm
damage prevention, water quality, erosion and sediment control, and wildlife.
21. Pursuant to Section 2.02B(1) of the Nantucket Wetlands Protection Regulations
the provisions of Section 2.OlB(1-8)(Land Under the Ocean) shall apply to
coastal beaches and tidal flats. Therefore the Commission finds that the applicant
has not met the burden of proof to demonstrate compliance with Section 2.01B(7)
that no new bulkheads or coastal engineering structures shall be permitted to
Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road
protect structures constructed or substantially improved after 8/78. Bulkheads
may be rebuilt only if the Commission determines there is no environmentally
better way to control an erosion problem, including in appropriate cases the
moving ofthe threatened building. Other coastal engineering structures may be
permitted only upon a clear showing that no other alternative exists to protect a
structure built prior to 9/78, but not substantially improved, from imminent
danger.
22. Pursuant to Section 2.02B(1) of the Nantucket Wetlands Protection Regulations
the provisions of Section 2.01B(1-8)0Land Under the Ocean) shall apply to
coastal beaches and tidal flats. Therefore the Commission finds that the applicant
has not met the burden of proof to demonstrate compliance with Section 2.01B(8)
that water dependent projects shall be designed and performed so as to cause no
adverse effects on wildlife, erosion control, marine fisheries, shellfish beds, storm
damage prevention, flood control and recreation.
23. The Commission finds that the applicant has not met the burden ofproof to
demonstrate compliance with Section 2.02B(2) that new bulkheads or coastal
engineering structures shall be permitted to protect structures constructed, or
substantially improved, after 8/78. Bulkheads may be rebuilt only if the
Commission determines there is no environmentally better way to control an
erosion problem, including in appropriate cases the moving of the threatened
building. Other coastal engineering structures may be permitted only upon a clear
showing that no other alternative exists to protect a structure built prior to 9/78,
but not substantially improved, from imminent danger.
24. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.02B(4) that clean fill of compatible grain
size may be used on a Coastal Beach but not on a Tidal Flat, only if the
Commission authorizes its use, and only if such fill is to be used for a beach or
dune nourishment project. All possible mitigation measures shall be taken, as
determined by the Commission, to limit the adverse effects ofthe fill.
25. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.03(B)(1) that no coastal revetments or
coastal engineering structure of any type shall be constructed, rebuilt or repaired.
26. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.03(B)(3) that no excavation or
disturbance of vegetative cover shall be allowed on a coastal dune unless the area
is completely restored, replanted and stabilized to its original form and volume.
27. The Commission finds that the applicant has not met the burden ofproof to
demonstrate compliance with Section 2.03(13)(4) that fill may be used only if the
Commission authorizes its use and only if such fill is to be used for beach and
dune nourishment projects.
28. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.03(B)(6) that any activity allowed on a
coastal dune or within 100 feet of a coastal dune shall be restricted to such
activity that is determined by the Commission not to have any adverse effect on
the dune by altering the ability of wind or waves to remove sand from or deposit
sand on a dune; by disturbing vegetative cover in a manner sufficient to
destabilize the dune; by causing any modification of the dune form and slope
which would increase the potential for erosion, storm flood damage; by
Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road
interfering with landward or lateral movement ofthe dune; or by causing the rate
of sand removal to increase through man-made means or structures.
29. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.05B(1) that new bulkheads or coastal
engineering structures shall be permitted to protect structures constructed, or
substantially improved, after 8/78 except for public infrastructures. Bulkheads and
groins may be rebuilt only ifthe Commission determines there is no
environmentally better way to control an erosion problem, including in
appropriate cases the moving ofthe threatened buildings and/or public
infrastructure. Other coastal engineering structures may be permitted only upon a
clear showing that no other alternative exists to protect a structure that has not
been substantially improved or public infrastructure built prior to 9/78, from
imminent danger.
30. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.05B(3) that all projects shall be restricted
to an activity as determined by the Commission to have no adverse effect on bank
height, bank stability, wildlife habitat, vegetation, wetland scenic view or the use
of a bank as a sediment source.
31. The Commission finds that the applicant has not met the burden of proof to
demonstrate compliance with Section 2.1OB(1) that the work shall not reduce the
ability of the land to absorb and contain flood waters, or to buffer inland areas
from flooding and wave damage.
Therefore, based on the referenced findings, the Nantucket Conservation Commission
DENIES the project SE48-3115 for the Siasconset Beach Preservation Fund at 59-119
Baxter Road pursuant to the Massachusetts Wetlands Protection Act (MGL Chapter
131 §40), Massachusetts Wetlands Protection Regulations (310CMR 10.00), the "Town of
Nantucket Wetlands Protection Bylaw (Chapter 136) and the Town of Nantucket
Wetlands Protection Regulations. The Commission finds that the given information,
historical site conditions and current site conditions that no conditions can be set for the
project as proposed that would adequately protect the wetland resources and wetland
interests protected by the Massachusetts Wetlands Protection Act and the Town of
Nantucket Wetlands Protection Bylaw. Further the Commission finds that the applicant
has not met the burden of proof required for the Nantucket Conservation Commission to
grant a permit.
Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
E. Signatures
This Order is valid for three years, unless otherwise specified as a special
condition pursuant to General Conditions #4, from the date of issuance.
Please indicate the number of members who will sign this form.
This Order must be signed by a majority of the Conservation Commission.
Provided by MassDEP:
SE48-3115
MassDEP File #
eDEP Transaction 4
Nantucket
City/Town
0612&2019
1. Date of Issuance
7
2. Number of Signers
The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A
copy also must be mailed or hand delivered at the same time to the appropriate Department of
Environmental Protection Regional Office, if not filing electronicall nd the property owner, if differentfromapplicauf
6a—
ti('
Signatures: o S
David La Fleur
Andrew Bennett (C)
Xe
Ian olding
1 U ey-Erisman (VC)Ben Champoux
n,rK
Ernie Stein erJos Topham
by hand delivery on eceipt
et1772' Ob 2a
Date
F. Appeals
The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the
land subject to this Order, or any ten residents of the city or town in which such land is located,
are hereby notified of their right to request the appropriate MassDEP Regional Office to issue a
Superseding Order of Conditions. The request must be made by certified mail or hand delivery
to the Department, with the appropriate filing fee and a completed Request of Departmental
Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from
the date of issuance of this Order. A copy of the request shall at the same time be sent by
certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is
not the appellant.
Any appellants seeking to appeal the Department's Superseding Order associated with this appeal
will be required to demonstrate prior participation in the review of this project. Previous participation
in the permit proceeding means the submission of written information to the Conservation
Commission prior to the close of the public hearing, requesting a Superseding Order, or
providing written information to the Department prior to issuance of a Superseding Order.
The request shall state clearly and concisely the objections to the Order which is being
appealed and how the Order does not contribute to the protection of the interests identified in
the Massachusetts Wetlands Protection Act (M.G.L. c. 131, § 40), and is inconsistent with the
wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal
ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the
Department has no appellate jurisdiction.
wpaform5.doc • rev. 03/2/2010 Page 11 o` 12
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
LAI WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
And the Town of Nantucket Wetlands Bylaw Chapter 136
G. Recording Information
Provided by MassDEP:
SE48-3115
MassDEP File #
eDEP Transaction #
Nantucket
City/Town
Prior to commencement of work, this Order of Conditions must be recorded in the Registry of
Deeds or the Land Court for the district in which the land is located, within the chain of title of
the affected property. In the case of recorded land, the Final Order shall also be noted in the
Registry's Grantor Index under the name of the owner of the land subject to the Order. In the
case of registered land, this Order shall also be noted on the Land Court Certificate of Title of
the owner of the land subject to the Order of Conditions. The recording information on this page
shall be submitted to the Conservation Commission listed below.
Conservation commission
Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation
Commission.
To:
Conservation Commission
Please be advised that the Order of Conditions for the Project at:
Project Location MassDEP File Number
Has been recorded at the Registry of Deeds of:
County
for:
property Owner
Book Page
and has been noted in the chain of title of the affected property in:
book Page
In accordance with the Order of Conditions issued on:
If recorded land, the instrument number identifying this transaction is:
instrument number
If registered land, the document number identifying this transaction is:
Number
re of Applicant
wpaform5.doc • rev. 03/2/2010 Page 12 of 12