HomeMy WebLinkAboutMotion to Dismiss BLATMAN, BOBROWSKI & HAVERTY, LLC
ATTORNEYS AT LAW
9 DAMONMILL SQUARE,SUITE 4A4
CONCORD,MA 01742
PHONE 978.371.2226
FAX 978.371.2296
PAUL J.HAVERTY
Paul@bbhlaw.net
November 2,2020
Via First-Class Mail
Daniel C. Hill,Esq.
Dennis A. Murphy,Esq. George X. Pucci,Esq. o 0 37
Hill Law Jonathan D. Witten,Esq.
6 Beacon St Suite 600 KP Law,P.C. Z G
Boston,MA 02108 101 Arch St OP r C
Boston,MA 02110Cr
S
Andrew John Haile,Esq.
Office of the Massachusetts Attorney Town of Nantucket
General Town Clerk's Office
One Ashburton Place 16 Broad St.
Boston,MA 02108 Nantucket,MA 02554
Re: Nantucket Superior Court Civil No. 2075CV00021
Nantucket Land Council, Inc. vs. Sufside Crossing,LLC et a!
Dear Attorneys Hill, Haile and Pucci:
Pursuant to Superior Court Rule 9A, enclosed herewith please find copies of the
following documentation:
• Plaintiffs'Motion to Dismiss;
• Plaintiffs'Memorandum in Support of the aforesaid Motion;
• Joint Statement of Material Facts, awaiting your additions thereto in accordance with
Rule 9A(b)(5)(iv);
• Appendix, also awaiting your additions thereto in accordance with Rule 9A(b)(5)(vi);
and
• Certificate of Service.
Note that we have also transmitted the aforesaid Joint Statement of Material Facts to
each of you via e-mail,as per Rule 9A(b)(5)(i).
Kindly serve an original and a copy of your Opposition and supporting
documentation, if any, upon us within twenty-one (21) days, as required. Immediately
thereafter,we will forward all original documentation to the Nantucket Superior Court.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
NANTUCKET,ss. C.A. No. 2075 CV 00021
)
NANTUCKET LAND COUNCIL, INC., )
)
Plaintiffs, )
) PRIVATE DEFENDANT'S
v. ) MOTION TO DISMISS
)
SURFSIDE CROSS,LLC,NANTUCKET )
ZONING BOARD OF APPEALS,and the )
HOUSING APPEAL COMMITTEE, )
)
Defendants. )
)
The Private Defendant Surfside Crossing, LLC, in regards to Count I and Count II
of the Complaint hereby submits its Motion to Dismiss.
In support of this motion, the Private Defendant states Count I of the Complaint
must be dismissed pursuant to Mass. R. Civ. P. 12(b)(6), because the Plaintiff has failed to
state claims upon which relief may be granted, as they purport to appeal from a decision that
is not appealable pursuant to G. L. c. 30A, § 14. Count II must be dismissed because the
Plaintiff has failed to exhaust its administrative remedies.
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Respectfully submitted,
1
November 2,2020 frIk (�
Paul" Haverty,BBO No. 652359
Christopher"Alphen,BBO No. 691813
Mark Bobrowski,BBO No. 546639
Blatman,Bobrowski&Haverty,LLC
9 Damonmill Square,Suite 4A4
Concord,MA 01742
(978) 371-2226
paul@bbhlaw.net
mark@bbhlaw.net
7
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
NANTUCKET,ss. C.A. No. 2075 CV 00021
)
NANTUCKET LAND COUNCIL, INC., )
)
Plaintiffs, ) MEMORANDUM OF LAW IN
) SUPPORT OF PRIVATE
v. ) DEFENDANT'S MOTION
) TO DISMISS
SURFSIDE CROSS,LLC,NANTUCKET )
ZONING BOARD OF APPEALS,and the )
HOUSING APPEAL COMMITTEE, )
)
Defendants. )
)
The defendant Surfside Crossing, LLC (the "Defendant") in the above-captioned
matter moves that this Court dismiss the appeal filed by the Nantucket Land Council, Inc.
(the "Plaintiff") in the above-referenced matter. As grounds for this Motion, the Defendant
states that this matter is not ripe for adjudication, as the Plaintiff has failed to exhaust its
administrative remedies prior to bringing this action.
FACTS
See statement of facts attached herewith.
Statement of Legal Elements
The Plaintiff's Complaint must be dismissed in its entirety because the Court lacks
subject matter jurisdiction. Count I of the Complaint must be dismissed pursuant to Mass.
R. Civ. P. 12(b)(6), because the Plaintiff has failed to state claims upon which relief may be
granted, as they purport to appeal from a decision that is not appealable pursuant to G. L. c.
30A, § 14. Count II must be dismissed because the Plaintiff has failed to exhaust its
1
administrative remedies.
In evaluating a Motion to Dismiss for failure to state a claim upon which relief may
be granted, the Court must accept the allegations of the Complaint as true; however, the
Court will not accept "a wholly conclusory statement of claim... whenever the pleadings
[leave] open the possibility that a plaintiff may later establish some set of undisclosed facts to
support recovery." Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008) (quoting
Bell Ad. Corp. v. Twombly, 550 U.S. 544(2007)). Rather, the factual allegations in the
Complaint"must be enough to raise a right to relief above the speculative level . . . [w]hat is
required at the pleading stage are factual allegations plausible suggesting (not merely
constituent with) and entitlement to relief." Id. Here, for the reasons argued below, as a
matter of law the Plaintiff has failed to state claims which relief may be granted.
Rule 12(b)(6) permits the Court to take into consideration matters of public record, orders,
items appearing in the record of the case,and exhibits attached to the complaint. See, Schaer
v. Brandeis Univ., 432 Mass. 474, 477-78 (2000); see also Jarosz v. Palmer, 436 Mass. 526,
529-30 (2002). The court can also consider the entirety of documents integral to, referenced
in, or explicitly relied upon in the complaint.
Argument
The Plaintiff sought to intervene in an administrative appeal filed by the Defendant
with the Committee, which seeks to overturn a decision of the Board granting a
comprehensive permit with conditions that the Defendant contends render the project
uneconomic, were outside the authority of the Board to impose, improperly infringed upon
the exclusive jurisdiction of the Subsidizing Agency and/or which subjected the Defendant
to unequal treatment in violation of G. L. c. 40B, § 20. The hearing officer appointed by the
Committee to preside over the Defendant's appeal issued a decision on July 13, 2020
7
denying the Plaintiff's Motion to Intervene, holding that the Plaintiff did not have standing
to intervene in the matter, and that any interests the Plaintiff's sought to protect were not
interests protected pursuant to G. L. c. 40B, §§ 20-23. The Committee's Ruling on Motion
to Intervene did not end the proceedings before the Committee, no final decision has been
issued on the Defendant's appeal (in fact, no hearing has been held as of this date).
1. The Plaintiff's c. 30A,§ 14 Appeal Must be Dismissed as Premature
The Plaintiff purports to appeal the Ruling issued by the Committee pursuant to
G. L. c. 30A, § 14. This statute allows for an appeal of a decision of an administrative
agency, stating "any person or appointing authority aggrieved by a final decision of any
agency in an adjudicatory proceeding, whether such decision is affirmative or negative in
form, shall be entitled to a judicial review thereof[.]" It is well-established that `judicial
review is only available after a final decision of an agency in an adjudicatory proceeding."
Town of Wrentham v. West Wrentham Village,LLC, 451 Mass. 511, 514 (2008). The ruling
made by the Committee denying the Plaintiff's Motion to Intervene was indisputably not a
final decision subject to appeal pursuant to G. L. c. 30A, § 14. The matter remains pending
before the Committee, which has yet to hold a substantive hearing on the appeal. The
Plaintiff has been allowed to participate in the hearing as an Interested Person, and has the
right to appeal the final decision of the Committee pursuant to G. L. c. 30A, g 14 if it is able
to establish status as an "aggrieved person" pursuant to the statute.
The Plaintiff will suffer no harm to its interests if required to wait to appeal the final
decision of the Committee, as no construction will occur on the Project Site until the
Committee issues its final decision. This matter does not represent the "extraordinary" case
in which the court may"take jurisdiction of a matter that is pending before an administrative
agency." Temple Emanuel of Newton v. Massachusetts Comm.Against Discrimination, 463
3
Mass. 472, 479 (2012). The Plaintiff has an adequate remedy, by filing an appeal of the
Committee's final decision pursuant to G. L. c. 30A, § 14. See, Town of Hingham v.
Department of Housing and Comm. Dev., 451 Mass. 501, 509 (2008) (stating "[e]xceptions
to the exhaustion requirement have been made when the administrative remedy is
inadequate.").
The true intent of the Plaintiff's frivolous appeal is nakedly transparent, they (along
with the Board, which has filed a similar untimely appeal, and which has acted in concert
with the Plaintiff seeking to thwart the Defendant's proposed development) seek to add
expense and delay in an attempt to prevent the construction of a much-needed affordable
housing development in Nantucket. Allowing an abutter (particularly one that does not
benefit from a presumption of standing) file what would be an interlocutory appeal of a non-
final ruling by the Committee would act in direct contravention of the purpose of G. L. c.
40B, 5§ 20-23, which is to "expedite action on such applications where previously a builder
might have suffered delays or months and even years in negotiating approvals from various
boards." Dennis Housing Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 78
(2003); Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, (2006) (stating the
legislative intent of Chapter 40B is to "promote affordable housing by minimizing lengthy
and expensive delays occasioned by court battles commenced by those seeking to exclude
affordable housing from their own neighborhoods."). The Plaintiff seeks to do exactly that,
add another layer of litigation extending the time and expense associated with permitting this
affordable housing development. The Plaintiff has no reasonable basis for believing that an
immediate appeal of the Committee's ruling was an available remedy, thus this pleading was
"interposed for delay"in violation of Mass. R. Civ. P. Rule 11(a).
2. The Plaintiff is not Entitled to Mandamus
4
In addition to pursuing an untimely appeal pursuant to G. L. c. 30A, § 14, the
Plaintiff also seeks this Court to issue an order in the nature of mandamus requiring the
Committee to remove Mr. Lohe as the hearing officer for this matter. It is well-established
that "relief in the nature of mandamus is extraordinary and may not be granted except to
prevent a failure of justice in instances where there is no other adequate remedy." Lynch v.
Police Comm. of Boston, 43 Mass. App. Ct. 107, 112 (1997); quoting Lutheran Sew. Assn.
of New England, Inc. v. Metropolitan Dist. Comm., 397 Mass. 341, 344 (1986). As noted
above, the Plaintiff has an adequate remedy at law, which is to wait for the Committee to
issue a final decision and then file a proper appeal pursuant to G. L. c. 30A, § 14.
The basis for the Plaintiff's claim of bias further reveals the frivolous nature of their
Complaint. The Plaintiff claims that Mr. Lohe sewed as a paid mediator for the Committee.
This is not an accurate statement. Mr. Lohe served as a mediator for the Massachusetts
Office of Public Collaboration, in their Housing Appeals Committee mediation program,
not directly as a mediator for the Committee. Furthermore, the parties never agreed to
mediation in this matter, thus the statement that Mr. Lohe's services were offered and
rejected "due to the parties' perception of bias" is not factually accurate. The Plaintiff also
argues that Mr. Lohe worked "alongside Counsel for the Developer as a paid consultant for
MHP, whose mission is 'to help increase the supply of affordable housing in
Massachusetts."' The clear intention of this statement is to create the false impression that
Mr. Lohe and Paul Haverty, counsel for the Defendant, worked collaboratively on matters
for the Massachusetts Housing Partnership (MHP). In fact, as noted in his disclosure dated
June 19, 2020, Mr. Lobe was listed on a panel of consultants for MHP's Technical
Assistance Program in which attorney Haverty also participated. The Technical Assistance
Program maintains a list of consultants from which local boards of appeal may choose a
5
single consultant to assist them during a local comprehensive permit hearing. At no time did
Mr. Lohe and attorney Haverty ever work "alongside" each other as part of this program.
Neither Mr. Lohe nor attorney Haverty served as Technical Assistance consultant to the
Board during the course of the hearing on the Defendant's application. Moreover, as stated
in his disclosure, Mr. Lohe withdrew from both programs upon returning to work at the
Committee on February 6, 2020, long before being appointed as hearing officer on this
matter. No reasonable person could review these purported claims of bias and come to any
conclusion other than that the claims are made in bad faith and interposed for delay.
Respectfully submitted,
November 2,2020 C/
Pauli. Haverty,BBO No. 652359
Christopher" Alphen,BBO No. 691813
Mark Bobrowski,BBO No. 546639
Blatman,Bobrowski&Haverty,LLC
9 Damonmill Square,Suite 4A4
Concord,MA 01742
(978) 371-2226
paul@bbhlaw.net
mark@bbhlaw.net
6
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
NANTUCKET,ss. C.A. No. 2075 CV 00021
)
NANTUCKET LAND COUNCIL, INC., )
)
Plaintiffs, )
) STATEMENT OF FACTS
)
v. )
)
SURFSIDE CROSS,LLC,NANTUCKET )
ZONING BOARD OF APPEALS,and the )
HOUSING APPEAL COMMI FILE, )
)
Defendants. )
)
The defendant Surfside Crossing, LLC (the "Defendant") hereby submits the
following Statement of Facts:
1. The Defendant filed an application for a 156-unit comprehensive permit
development, pursuant to G. L. c. 40B, §§ 20-23, with the Nantucket Zoning Board of
Appeals (the "Board") on April 12, 2016. See, Exhibit 1 to the related Complaint filed by
the Nantucket Land Council (the "Plaintiff') in Nantucket Superior Court as C.A. No.
1975CV0021.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
2. The Defendant's application sought approval of a comprehensive permit on
property located at 3, 5, 7 and 9 Shore Road, Nantucket, Massachusetts (the "Project Site").
Complaint, 15 and 22.
1
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
3. On June 13, 2019, the Board issues a decision granting a comprehensive permit
subject to more than one hundred conditions,including a condition reducing the number of
units to sixty (60). Complaint,¶22.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
4. Pursuant to G. L. c. 40B, 4 21 and G. L. c. 40A, § 17, the Plaintiff filed an appeal of
this decision with the Nantucket Superior Court in Civil Action No. 1975CV00025.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
5. Pursuant to G. L. c. 40B, 4 22, the Defendant filed an appeal of the Board's decision
to the Housing Appeals Committee (the "Committee"). Complaint,¶25.
Plaintiffs' Response:
Municipal Defendants' Response:
6. The Plaintiff subsequently filed a Motion to Intervene with the Committee, alleging
harm that would be suffered as a result of the Board's decision. Complaint,¶26.
Plaintiffs' Response:
Municipal Defendants' Response:
7. The Housing Appeals Committee held a Conference of Counsel on July 23, 2019.
9
Complaint, Exhibit A.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
8. Counsel for the Plaintiff, along with counsel for another group of abutters, were
allowed to participate in the Conference of Counsel, although neither abutter group was a
party to the proceedings as their Motion to Intervene had not been acted upon. Complaint,
Exhibit A.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
9. As part of the Conference of Counsel, the parties were asked about their willingness
to participate in mediation, and were provided with a list of qualified mediators from the
Massachusetts Office of Public Collaboration. This list included Werner Lohe, the former
Chair of the Committee,who was retired at the time.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
10. Both the Defendant and the Board indicated at the Conference of Counsel that they
did not believe that mediation would be fruitful, and no further action regarding mediation
was taken.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
3
11. In its Paragraph 50 of its Complaint, the Board claims that"Mr. Lohe was offered to
the parties to serve as a mediator in this case, but [was] rejected by the majority of the parties
due to bias." This statement is factually untrue. At no time did the parties (which then and
at all times subsequent have only been the Defendant and the Board) ever discuss potential
mediators, as neither party was willing to participate in mediation. While the non-party
Plaintiff may not have preferred to have the former Chair of the Committee mediate the
matter if it had gone to mediation, the statement that Mr. Lohe was rejected due to bias is
simply false. Complaint,¶50.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
12. On May 28, 2020, the current Chair of the Committee reassigned this matter to Mr.
Lohe, who had been recalled as a hearing officer for the Committee in February, 2020.
Complaint,¶45,Exhibit A.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
13. On June 8, 2020, despite not being a party to the matter, the Plaintiff filed a motion
to vacate the reassignment of the matter to Mr. Lohe based upon purported bias on the part
of Mr. Lohe. Complaint,¶48.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
14. On June 22, 2020, the Chair of the Committee issued a decision denying the
4
Plaintiff's motion, stating that Mr. Lohe had consulted with the State Ethics Commission
prior to commencing his post-retiree status as a hearing officer, and it was determined that
no conflict existed regarding his prior roles as a mediator with the Massachusetts Office of
Public Collaboration and with the Massachusetts Housing Partnership technical assistance
program. Complaint,Exhibit A.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee Response:
15. On July 13, 2020, the Committee issued a decision denying the Plaintiff's Motion to
Intervene, but allowing them to participate on a limited basis as Interested Persons pursuant
to 760 CMR 56.06(2)(c). Complaint,Exhibit A.
Plaintiffs' Response:
Municipal Defendants' Response:
16. The Defendant's appeal remains pending before the Committee, and no final
decision has been issued on this matter.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee Response:
17. Despite the lack of a final decision by the Committee, the Plaintiff purports to file an
appeal of this ruling pursuant to G. L. c. 30A, 5 14. Complaint, Count I.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee Response:
18. Contrary to the allegation contained in Paragraph 59 of its Complaint, the Plaintiff is
5
not a direct abutter (or an abutter or an abutter to an abutter within three hundred feet
(300')) of the Defendant's property, and thus does not benefit from a presumption of
standing pursuant to G. L. c. 40A, 11. Complaint,Exhibit B.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
19. The Plaintiff acknowledges in Paragraph 6 of its Complaint that the parcel in the
Sachem Path development over which it has the Conservation Restriction is Assessor's
Parcel 67-695.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
20. The Conservation Restriction is recorded in the Nantucket Registry of Deeds in
Book 1500, at Page 90. Exhibit D to the Affidavit of Emily Molden, submitted with the
Plaintiff's Motion to Intervene. A copy of the Molden Affidavit is attached hereto as
Exhibit 1.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response.
21. The Plan recorded with the Conservation Restriction, at Book 1500, at Page 100,
shows that there are at least a dozen separate lots within the Sachems Path subdivision, none
of which are owned by the Plaintiff or subject to a Conservation Restriction benefitting the
Plaintiff,between Parcel 67-695 and the Project Site. Molden Affidavit,Exhibit D.
Plaintiffs' Response:
6
Municipal Defendants' Response:
Housing Appeals Committee's Response:
22. In its Motion to Intervene filed with the Committee, the Plaintiff acknowledged that
the parcel in the Sachem's Path subdivision over which it has the Conservation Restriction is
"approximately 700 feet away from the project site[.]" A copy of the Motion to Intervene is
attached hereto as Exhibit 2.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
23. In contrast with the allegations contained in its Complaint, the Plaintiff did not claim
a presumption of standing in its Motion to Intervene filed with the Committee. Exhibit 2.
Plaintiffs' Response:
Municipal Defendants' Response:
Housing Appeals Committee's Response:
Respectfully submitted,
November 2,2020
Paul.). Haverty,BBO No. 652359
Christopher J. Alphen,BBO No. 691813
Mark Bobrowski,BBO No. 546639
Blatman,Bobrowski&Haverty,LLC
9 Damonmill Square, Suite 4A4
Concord,MA 01742
(978) 371-2226
paul@bbhlaw.net
mark@bbhlaw.net
7
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
NANTUCKET,ss. C.A. No. 2075 CV 00021
)
NANTUCKFT LAND COUNCIL,INC., )
)
Plaintiffs, )
) APPENDIX
v. )
)
SURFSIDE CROSS,LLC,NANTUCKET )
ZONING BOARD OF APPEALS,and the )
HOUSING APPEAL COMMIFI'LE, )
)
Defendants. )
)
Index
Private Defendant's Exhibits
Exhibit Item
Affidavit of Emily Molden dated July 23,2019
2 Nantucket Land Council's Motion to Intervene HAC Docket No. 2019-07
Respectfully submitted,
November 2,2020 y
Paul" Haverty,BBO No. 652359
Christopher J.Alphen,BBO No. 691813
Mark Bobrowski,BBO No. 546639
Blatman,Bobrowski&Haverty,LLC
9 Damonmill Square, Suite 4A4
Concord,MA 01742
(978) 371-2226
paul@bbhlaw.net
mark@bbhlaw.net
1
CERTIFICATE OF SERVICE
I, Christopher J. Alphen, attorney for the Private Defendant, hereby state that I served a
copy of the attached documents, by mailing same, first class mail, postage prepaid, to:
Daniel C. Hill, Esq.
Dennis A. Murphy, Esq.
Hill Law
6 Beacon St Suite 600
Boston, MA 02108
Andrew John Haile, Esq.
Office of the Massachusetts Attorney General
One Ashburton Place
Boston, MA 02108
George X. Pucci, Esq.
Jonathan D. Witten, Esq.
KP Law, P.C.
101 Arch St
Boston, MA 02110
Town of Nantucket
Town Clerk's Office
16 Broad St.
Nantucket, MA 02554
DATE: November 2, 2020
C opher J. Alphen
1
EXHIBIT 1
COMMONWEALTH OF MASSACHUSETTS
HOUSING APPEALS COMMITTEE
SURFSIDE CROSSING, LLC, )
)
Appellant, )
v. ) Docket No. 2019-07
NANTUCKET BOARD OF APPEALS, )
)
Appellee. )
)
AFFIDAVIT
1. My name is Emily Molden. I am the Executive Director of the Nantucket Land
Council,Inc. (the"NLC"),with offices at 6 Ash Lane,Nantucket MA. I have served
as Executive Director since this Spring(2019). Prior to that,and since 2004, I have
been the NLC's Resource Ecologist, leading the NLC's extensive research and
education programs. I have worked on the NLC's many advocacy and land
protection initiatives over the last 15 years,including those affected by the proposed
development project, Surfside Crossing, which is the subject of this appeal (the
"Project"). I am generally familiar with the history and activities of the NLC,
specifically as described below.
2. The NLC is a duly organized non-profit Massachusetts corporation, in good standing,
with recognition by the IRS as a 501(c)(3) organization. It has approximately 1500
members,assets of approximately$30,500,000 and an annual budget of
approximately$750,000. Our mission statement is as follows: "The NLC is a
501(c)(3)non-profit dedicated to protecting Nantucket's natural world and rural
character by holding and enforcing conservation restrictions,commissioning
scientific research, monitoring development proposals,engaging in legal proceedings
to protect natural resources, and educating the public on local environmental issues."
More information on the NLC history and mission statements are set out on our
website at www.nantucketlandcouncil.org.
3. The NLC's Board of Directors and officers are elected at the annual meeting of the
membership, and they represent a cross-section of the year round and summer
residents on the Island.
4. The NLC was founded in 1974 with the sole purpose to protect the environment of
the Island of Nantucket and environs. Since its founding, it has engaged in extensive
title work, acquisitions projects, and litigation involving title and land use,by itself
and in conjunction with other public and private island groups. It owns and manages
critical conservation land,primarily by acquiring and holding non-fee interests,to
protect open space and indigenous and endangered species and habitats, and it
engages in scientific research and public education projects on environmental issues.
The NLC currently holds over 85 conservation restrictions("CRs")on over 1400
acres in Nantucket County, and it has facilitated the acquisition of many more CRs
and fee purchases by the Nantucket Islands Land Bank(the"NILB")and the
Nantucket Conservation Foundation(the"NCF").
5. For almost 50 years,the NLC has engaged in numerous and extensive activities
specifically designed to preserve the unique and irreplaceable natural environment of
Nantucket from threats associated with development, such as habitat fragmentation
and loss. During this time period the year round and summer populations on
Nantucket have tripled, making natural resource protection even more important. The
NLC has spent more than 40 million dollars over the years, all on Nantucket matters,
all on its conservation activities,and it has worked tirelessly to protect the Island, in
the face of immense development pressures,by diverse means, including public
advocacy and education. It has funded numerous studies,including analyses of the
sole source aquifer of the Island,studies of the presence and location of rare and
endangered species, and the sources of pollution of the surrounding bays and harbors.
The NLC is the only organization dedicated to these particular activities for the direct
purpose of protecting Nantucket's unique natural environment.
6. The NLC has certified the majority of the vernal pools on Nantucket,to allow them to
be added to the Massachusetts Natural Heritage Endangered Species Program
("MNHESP")protection database. It has spent$15,000 on Lepidoptera studies
specifically to improve the MNHESP database, and it has performed E0(Element
Occurrence) surveys for Massachusetts Natural Heritage for plants and animals. The
NLC has worked with MNHESP to protect significant endangered species habitat on
Nantucket,including to the west of the project site.
7. The NLC has accepted or purchased or participated in the protection or purchase of
thousands of acres of critical habitat on the Island.A large proportion of these
acquisitions have been specifically designed to protect rare or endangered species and
habitats, including globally rare and endangered habitats.To this end the NLC has a
current annual budget exceeding$750,000,and it has expended in excess of
$22,000,000 on land acquisition activities,and millions more on land protection
activities, all within the Town and County of Nantucket.
8. More specifically,the NLC is the holder of over 85 permanent conservation
restrictions within the Town and County of Nantucket,many of which were obtained
specifically to protect listed species and habitat. The value of these holdings, and the
efficacy and long-term viability of these holdings, in accomplishing the NLC's core
mission of protecting the natural habitat on Nantucket,will be directly impacted by
the Project at issue here.
2
9. The NLC has invested substantial resources in projects that contribute to the
protection of Nantucket's rare habitats and its rare and endangered species, in
particular the preservation of the rare and endangered species habitat found on the
project site. The NLC has expended funds and staff time in advocating to the Town
and the Zoning Board of Appeals, and has utilized and paid for consultants and
attorneys in the effort to protect the site for the benefit of the rare and endangered
species on the site of the Project, known as 3,5,7, and 9 South Shore Road(the
"Project Site").
10. The Island serves as a refugium for a breeding population of the endangered Northern
Long Eared Bat("NLEB"), a listed species under the Massachusetts Endangered
Species Act(the"Act"),as the fungus causing white nose syndrome("WNS"),which
has decimated mainland populations,has only been detected once,at low levels,on
the island. No signs of WNS have been observed on hibernating Northern Long
Eared Bats on Nantucket. See Avalon letter attached hereto as Exhibit A.This raises
the prospective take of this species by the project to be an issue of concern far beyond
the confines of the Island.
11. Danielle O'Dell and Zara Dowling conducted surveys for the Northern Long Eared
Bat via mist-netting, radio telemetry and passive acoustic detectors across Nantucket
confirming the presence of breeding populations and maternity roosts. See Avalon
letter attached hereto as Exhibit A. The results of these surveys identify Pitch Pine
scrub oak vegetation communities as the most important for sustaining these
populations.An individual lactating female was tracked to live and dead mature Pitch
Pine trees which were serving as roost sites.All acoustic surveys resulting in
Northern Long Eared Bat detection were near to forested areas, and those sites with
the highest detection rates were adjacent to mature Pitch Pine stands. See Avalon
letter attached hereto as Exhibit A. This same Pitch Pine habitat is found throughout
the area surrounding the project site, as well as encompassing the entire Project Site.
12.Acoustic surveys of Pitch Pine forest on adjacent protected land within 1 mile of the
Surfside Crossing Project Site positively identified the presence of Northern Long
Eared Bats. See Avalon letter attached hereto as Exhibit A and see NLEB Detection
Locations map attached hereto as Exhibit C. Given the proximity and consistency in
habitat, the project site is very likely to be used by Northern Long Eared Bats and to
be supporting their population for feeding and/or breeding. Permission has not been
granted to survey the Project Site, and so no conclusive evidence can be presented.
See Avalon letter attached hereto as Exhibit A.
13. The NLC has worked with several conservation groups to protect vital habitat in the
surrounding area. See annotated aerial photo attached hereto as Exhibit B.
14. The NLC worked with MNHESP to hold a conservation restriction ("CR")on an
abutting property(Sachem's Path) to protect Lepidoptera,moth habitat,and rare and
endangered plant habitat. The NLC participated in the subdivision permitting review
of this property and advocated to MNHESP to protect portions with a conservation
3
restriction so that rare and endangered species would be protected. See area outlined
in dark blue on annotated aerial photograph attached hereto as Exhibit B. Sachem's
Path CR is attached hereto as Exhibit D.
15. The Sachem's Path restriction is on a parcel identified as Assessor's Parcel 67-695,
and is approximately 700 feet north of the Project Site. Importantly,this parcel is
located within the same contiguous Priority Habitat for Rare Species under the state
Endangered Species Act that covers the Project Site, and containing habitat for the
same rare species that we believe are present on the Surfside Crossing Project Site
based on our independent research. See,Priority Habitat Map, attached as Exhibit E.
16. The Project Site is likely to support the NELB, and potentially other rare and
endangered species. The state listed vascular plants New England Blazing Star
(Liatris novae-angliae)and Sandplain Blue-eyed Grass(Sisyrinchium fuscatum),both
protected under the Act, are likely to be supported by the habitat types on the project
site. See Avalon letter attached hereto as Exhibit A.New England Blazing Star has
been identified on nearby property in a similar habitat. See Avalon letter attached
hereto as Exhibit A. Permission has not been granted for outside experts to survey
this site for these species and so no conclusive evidence can be presented unless and
until access is required or permitted. Until such time,the presence of protected
species on the Site should be presumed.
17. The NLC has worked with MNHESP to protect significant endangered species habitat
to the west of the Project Site. When the NILB expanded their golf course from 9
holes to 18 holes in 2003,the NLC advocated to MNHESP to protect areas with
conservation restrictions. MNHESP appointed the NLC to serve on a scientific
advisory committee to monitor land management activities as part of a Conservation
and Management Permit that MNHES issued for the property. MNHESP has thus
already approved the NLC as an interested party with respect to rare and endangered
species located in the vicinity of the project site, and the appropriateness of the
NLC's standing has in effect already been determined.
18. The NLC holds and is in the process of acquiring additional conservation restrictions
in the immediate vicinity of the Project in order to protect this important rare species
habitat. This and adjacent protected properties form a larger habitat area for the
protected species at issue in the matter,and additional habitat fragmentation which
will be caused by this Project will cause injury to the areas and species already
protected by the NLC's activities, and will result in a take under the meaning of the
Act.
19.More specifically,the NLC recently participated in lengthy litigation, and expended
in excess of$250,000,to protect over 100 acres of virtually undisturbed land
approximately 100 yards from the project site, known as"Camp Richards." See area
outlined in red on the annotated aerial photo attached hereto as Exhibit B. The NLC
is currently in the fmal stages of negotiating the acquisition of a conservation
restriction on this parcel. This area forms part of the habitat continuum in the area of
4
the project, and the value of the NLCs' activities and holding on that site will be
specifically diminished by the take that will be caused by this Project.
20. The attached aerial photograph(Exhibit B attached hereto as previously referenced)
has the site and nearby areas that have been protected depicted on it. Specifically, it
shows the project site(yellow); open space owned by the Nantucket Islands Land
Bank(green);Nantucket Conservation Foundation Land (Blue);Nantucket State
Forest Land (purple); the Camp Richards (Nantucket Boy Scouts Land) (red);and the
Sachems Path parcel (NLC CR) (dark blue). These areas together form an almost
continuous swath of largely undeveloped and protected pitch pine habitat. While the
area immediately to the south of the site,between it and the NILB lands, is not
formally protected, it is developed at a very low density and essentially it functions as
part of the continuous ecosystem.
21. The Project Site itself is a critical section of this nearly contiguous area, and if it is
developed to the density proposed in the Chapter 40B Application, it will serve to
fragment this habitat and contribute to the loss of protected species in the entire area,
thus resulting in a take under the Act beyond what would happen solely on the site.
22. Condition 75 of the Zoning Board of Appeals' comprehensive permit decision
prohibits any"site disturbance"until the NLC's NHESP Appeal is finally resolved.
Conditions 97(h) and(i) require the Developer to identify all areas proposed for
vegetation clearing, and to minimize the extent of tree removal. Any modification of
these conditions would significantly affect the NLC's interests, as trees on the Project
Site are likely habitat for the NLEB
23. Further the NLC's interests are also affected by the numerous zoning dimensional
waivers proposed in the Developer's 156-unit plan. Under that plan,the project site
would be virtually clear-cut,eliminating any habitat for protected wildlife on the site.
Even the 60 units permitted by the Board will require significantly more habitat
alteration than would be necessary for a development that conforms to the Zoning
Bylaws.
24. Protecting intact ecosystems and their associated endangered and rare species is at the
core of the NLC's mission, and development of the project site and the associated
take of protected species will have a deleterious and direct impact to the areas already
protected by the NLC. This harm is peculiar to the NLC and entirely different and
distinct from the impact that will accrue to the general public. On the Camp
Richard's parcel alone, the NLC has been a party to successful litigation to protect it
as open space for the past several years, including a five-day trial in the Superior
Court and a successful appeal to the Massachusetts Appeals Court.As detailed above,
this effort has involved the expenditure of hundreds of thousands of dollars. The
NLC is presently undergoing friendly negotiations with the owners (there is an
agreement in principle) to acquire a CR on this site. Thus, the potential elimination of
the habitat for rare and endangered species on the Project Site will vitiate the
investment of the NLC in the immediate area.
5
Signed under the penalties of perjury this 23rd day of July, 2019,
iLL I 04
EMILY MOLD
6
EXHIBIT A
September 21, 2018
Ms. Libby Gibson, Town Manager
Nantucket Select Board
16 Broad Street
Nantucket, MA 02554
RE: Bat and Plant Study
Proposed Surfside Crossing Development
Project No. 18-007
Dear Libby,
In accordance with our agreement with the Nantucket Select Board, Avalon Consulting Group
has requested access to the proposed Surfside Crossing Development parcel at 3, 5, 7, 9 Shore
Road, Nantucket ("the Subject Site") in order to conduct surveys for state listed vascular plants
and the Northern long-eared bat, a federally threatened and state endangered mammal.
Access to the site has been denied by Attorney Arthur I. Reade, Jr., of Reade, Gullicksen,
Hanley & Gifford, LLP, counsel to the applicant.
The Surfside Crossing property is identified on The Nature Conservancy's (TNC) island-wide
habitat mapping as primarily Pitch Pine scrub oak with a smaller portion of coastal shrubland
(see Figure 1, attached). We believe that the site likely provides high quality habitat for the
Northern long-eared bat (Myotis septentriona/is)and that the deer trails and open spots within
these habitat types could host populations of two vascular plants: New England Blazing Star
(Liatris novae-ang/iae)and Sandplain Blue-eyed Grass (Sisyrinchium fuscatum).
The Northern long-eared bat is listed as federally threatened, and endangered in Massachusetts
and the two plants are listed as special concern in Massachusetts. They are protected under the
Massachusetts Endangered Species Act (MGL c 131A) and its implementing regulations (321
CMR 10.00).
New England Blazing Star has been identified on nearby property in a similar habitat (Figure
2). Data on both New England Blazing Star and Sandplain Blue-eyed Grass has also been
collected throughout the island in 2018. We believe that the presence of Blazing Star in similar
habitat nearby should be sufficient to warrant review of the Surfside Crossing site.
This would be the appropriate time to survey the Subject Site since it is likely that Blazing Star
would be in bloom and would therefore be readily-visible. We believe that, if present, Sandplain
Blue-eyed grass could also be identified at this point in the season.
A V A L 0 N CONSULTING GROUP • 41Cal's Court.Taunton, MA 02780 • 508 880 2905 • www.avaloncon com
Nantucket Select Board
Surfside Crossing Review
September 21, 2018 Page 2
We also believe that the Surfside Crossing property likely contains high quality habitat for the
Northern long-eared bat, Myotis septentriona/is. Some of the first reports of the Northern long-
eared bats on Nantucket are reported in "Bat Use of an Island off the Coast of Massachusetts"
published in 2018 by Zara R. Dowling and Danielle I. O'Dell (attached). Dowling and O'Dell
reported consistently high detection rates of Northern long-eared bats adjacent to mature Pitch
Pine stands. They confirmed the presence of breeding populations and maternity roosts in
Pitch Pine scrub oak vegetation communities in other locations on the island via mist-netting,
radio telemetry, and passive acoustic detector studies.
As part of an island-wide survey project from early May to 31 August 2018, acoustic detectors
placed on multiple properties within 0.25 miles of the Surfside Crossing property have collected
multiple calls of Northern long-eared bats. Two additional detectors were deployed on
September 19, 2018 on nearby sites as shown on the attached figures and over the last two
nights more than 200 calls of Northern long-eared bats were collected.
This would be the appropriate time to conduct acoustic surveys for Northern long-eared bats on
the Subject site as this species is active and will soon begin swarming prior to entering
hibernacula for the winter.
Please do not hesitate to contact me should you have any questions regarding this request.
Regards,
Avalon Consulting Group
Cka.LCLL
Sarah Treanor Bois, PhD Danielle O'Dell, MSc
Botanist Wildlife Ecologist
Kelly Durfee Cardoza, MSc
Principal
160274
A V A L 0 N CONSULTING GROUP • 41 Cal's Court.Taunton,MA 02780 • 508.880.2905 • www.avaloncon.com
Figures
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Attachment A
Dowling and ODe/I 2018
2018 NORTHEASTERN NATURALIST 25(3):362-382
Bat Use of an Island off the Coast of Massachusetts
Zara R. Dowling'•* and Danielle I. O'De11Z
Abstract - Nantucket, Massachusetts, could provide unique habitat for bats, but few data
are available regarding bat populations on the island. We conducted passive acoustic sur-
veys in 2015 and 2016 to inventory bat species and identify seasonal activity patterns. We
detected at least 6 species of bats on Nantucket. Lasiurus cinereus (Hoary Bat) and Lasi-
onycteris noctivagans(Silver-haired Bat)were detected as probable migrants,and Lasiurus
borealis (Eastern Red Bat), Eptesicus fuscus (Big Brown Bat), and Myotis species were
also present in summer. We detected Perimyotis subflavus(Tricolored Bat)in fall and early
winter, suggesting that the species may hibernate on the island. In 2016,we mist-netted and
radio-tagged Myotis septentrionalis (Northern Long-eared Bat), and documented individu-
als reproducing and hibernating on Nantucket. Given the persistence of this rare species on
the island,we suggest that land-conservation organizations should consider maintenance of
mature forest stands in their suite of planned management activities.
Introduction
There is growing concern regarding conservation of bat populations in temper-
ate North America, mainly due to the devastating impact of the fungal disease
known as White-nose Syndrome (WNS) on cave-hibernating bats (e.g., Frick et
al. 2010, Turner et al. 2011) as well as the population-level threat that mortality
at wind-energy facilities could pose to long-distance migratory tree bats (Arnett
and Baerwald 2013, Frick et al. 2017, Hayes et al. 2013). Three cave-hibernating
bat species, Myotis septentrionalis Trouessart (Northern Long-eared Bat), Myotis
lucifugus Le Conte (Little Brown Bat), and Perimyotis subflavus Cuvier (Tricol-
ored Bat), are now listed as endangered in the state of Massachusetts (MANHESP
2017) because of population reductions of greater than 90% associated with WNS
(Turner et al. 2011); the Northern Long-eared Bat has also been designated as fed-
erally threatened under the Endangered Species Act (USFWS 2016a). In addition,
3 long-distance migratory tree bats, Lasiurus cinereus de Beauvois (Hoary Bat),
Lasiurus borealis Muller (Eastern Red Bat), and Lasionycteris noctivagans Le
Conte (Silver-haired Bat), are listed as Species of Greatest Conservation Need in
Massachusetts (MANHESP 2015).
One major challenge in bat conservation is a lack of knowledge about bat
populations and their distribution across the landscape (O'Shea and Bogan 2003).
Relatively little is known about bat use of coastal areas and offshore islands in the
Northeast, but these environments can offer unique habitat to bats. Bat surveys
conducted on Martha's Vineyard and Cape Cod, MA, detected large numbers of
Northern Long-eared Bats prior to the outbreak of WNS (Buresch 1999, Kelly and
'Department of Environmental Conservation, University of Massachusetts-Amherst, Room
225, 160 Holdsworth Way, Amherst, MA 01003-9285. Nantucket Conservation Founda-
tion, 118 Cliff Road,Nantucket, MA 02554. 'Corresponding author-zdowling@umass.edu.
Manuscript Editor: Peter Paton
362
2018 Northeastern Naturalist Vol.25,No. 3
Z.R. Dowling and D.I. O'Dell
Ciaranca 2000). Recent surveys on Martha's Vineyard from 2014 to 2016 found that
capture rates of Northern Long-eared Bats were lower than those observed during
pre-WNS surveys, but healthy maternity colonies were still documented producing
pups (Baldwin et al. 2017). This discovery contrasts with sharp declines at many in-
land sites in the Northeast, where the species is now rarely found (Ford et al. 2011,
Francl et al. 2012). The offshore island of Nantucket, MA, could also be providing
habitat for persistent populations of Northern Long-eared Bats, but only anecdotal
information is available regarding historic populations.
Long-distance migratory tree bats frequent coastal areas, and often utilize is-
lands as stopover habitat during their fall migration (Miller 1897; Peterson et al.
2014, 2016; Smith and McWilliams 2016), roosting temporarily in lighthouses and
other sites (Cryan and Brown 2007, Johnson et al. 201 la). Specimens of all 3 long-
distance migratory tree-bat species have been collected on Nantucket in August and
September(Maria Mitchell Association 2017), and Eastern Red Bats were captured
on nearby Tuckernuck Island (Veit 2012). If migratory bats are passing through
Nantucket as part of their fall migration route, it will be important to consider risks
to bats associated with large-scale offshore wind-energy development planned for
federal waters southwest of the island (BOEM 2017).
The goals of this study were to (1) inventory the bat species present on Nantuck-
et using passive acoustic monitoring, (2) characterize the seasonal use of Nantucket
by these species as migrants or summer residents, and (3) if present, determine if
Northern Long-eared Bats were reproducing or hibernating on the island.
Methods
Acoustic-detector deployment
The island of Nantucket, MA (120 km'-) is situated 43 km south of Cape Cod,
and 15 km east of Martha's Vineyard, another offshore island. Between 2015 and
2016, we deployed passive acoustic-detector stations at 15 locations on Nantucket
(Fig. 1). Each station consisted of an Anabat II acoustic detector (Titley Scientific,
www.titley-scientific.com) set in a PVC junction-box, with the microphone pointed
downward into a PVC elbow.All units were powered by a 12-v battery charged by a
small solar panel. We mounted detectors 1-3 m above the ground, either hung from
a tree, a shrub, or 2 poles set in the ground. Detectors operated between 6:00 PM
and 8:00 AM every night. From April to mid-November 2015, we deployed 8 sta-
tions at 4 localities, with the 2 stations at each locality at least 100 m apart, which
represented non-overlapping detection radii (Table 1). In mid-August, we moved
1 station from the Squam Farm site to Gibbs Pond, in order to sample a broader
range of sites. In 2016, we deployed 8 stations at more widely dispersed locali-
ties between April and December (Table 1). We checked the stations periodically
throughout the season to download data and ensure proper operation.
Bat call identification
We followed US Fish and Wildlife Service Indiana Bat Survey Guidelines
(2017) to identify bat calls. We processed probable bat-call files through 2 auto-
363
2018 Northeastern Naturalist Vol.25,No. 3
Z.R. Dowling and D.I. O'Dell
classification software systems, manually examined candidate calls as identified by
the software,and consulted with experts in the field, as appropriate.With the excep-
tion of data collected at the Ram Pasture station, we viewed all files manually using
AnalookW 4.1 software prior to auto-classification. We used manual identification
as a first pass to differentiate noise files from probable bat-call files that contained
at least 2 pulses. We employed both EchoClass V3.1 (US Army Engineer Research
and Development Center 2015) and KaleidoscopePro (Wildlife Acoustics Inc.,
Maynard, MA) to analyze the files that contained probable bat calls. The Ram Pas-
ture station generated over 58,000 files; therefore we did not manually pre-screen
files at this site before running them through the auto-classification software. We
excluded from analysis data from nights with an average of 100 files per hour or
higher(>1400 files per night);we found they contained few to no bat calls, and were
associated with either high average-wind speeds (>8 m/s) when bats were unlikely
to be active, or showed evidence of device malfunction and mechanical noise. At
Ram Pasture, the busiest site, true spikes in bat activity led to averages of—70 call
files per hour, but never exceeded 100 call files per hour.
We ran the bat-call files through EchoClass using the Species Set 2 list, which
includes the 9 bat species currently known to occur in Massachusetts: Eptesicus
fuscus de Beauvois (Big Brown Bat), Myotis leibii Audubon and Bachman (Eastern
Small-footed Bat), Eastern Red Bat, Hoary Bat, Little Brown Bat, Northern Long-
eared Bat, Silver-haired Bat, Tricolored Bat, and from historic records, Myotis
sodalis Miller and Allen (Indiana Bat). EchoClass returns a maximum likelihood
1
3 6
5
24 8
• .3
•
10 •12
• •11 14
•
Figure 1. Acoustic sites (n = 15) monitored for bats on Nantucket from 2015 to 2016.
Numbers refer to stations as listed in Table 1. Basemap courtesy of TerraMetrics (2017).
364
2018 Northeastern Naturalist Vol.25,No.3
Z.R.Dowling and D.1. O'Dell
Table 1.Acoustic study sites surveyed on Nantucket,2015-2016.Numbers before station names refer
to map locations in Figure 1. *Due to the large volume of calls at the Ram Pasture site, we did not
separate noise files from probable bat-call files before performing auto-classification analysis.
Nights with
Nights activity Total
Dates analyzed (% bat
Station Site description deployed (%deployed) analyzed) calls
(1)Gibbs Farm Scrub Oak edge of large kettle 25 Aug 2015— 55 13 93
pond,near active cranberry bog 13 Nov 2015 (69%) (24%)
and hardwood forest
(2)Medouie I Shrub treeline on edge of salt 29 Apr 2015— 114 40 161
marsh 13 Nov 2015 (58%) (35%)
(3)Medouie 2 Shrub edge of brackish marsh, 30 Apr 2015— 166 44 419
surrounded by mature forested 13 Nov 2015 (84%) (27%)
and shrub swam
(4)Norwood 1 Small kettle pond surrounded by 30 Apr 2015— 184 102 551
Scrub Oak shrubland 13 Nov 2015 (93%) (55%)
(5)Norwood 2 Forest edge in mosaic of fields, 30 Apr 2015— 165 119 691
Scrub Oak, and hardwood forest 13 Nov 2015 (84%) (72%)
(6) Squam 1 Hardwood forest edge by grazed 29 Apr 2015— 138 49 755
field 13 Nov 2015 (70%) (36%)
(7) Squam 2 Clearing in hardwood forest 29 Apr 2015— 104 24 61
21 Aug 2015 (100%) (23%)
(8)Stump 1 Scrub Oak edge of large pond, 30 Apr 2015— 182 136 2821
surrounded by hardwood forest 13 Nov 2015 (92%) (75%)
(9)Stump 2 Field adjacent to Scrub Oak 30 Apr 2015— 136 67 286
wetland,surrounded by mosaic 13 Nov 2015 (69%) (49%)
of hardwood forest and fields
(6) Squam 1 Hardwood forest edge by grazed 2 May 2016— 201 107 3876
field 7 Dec 2016 (91%) (53%)
(8)Stump I Scrub Oak edge of large pond, 2 May 2016— 84 39 535
surrounded by hardwood forest 24 Jul 2016 (100%) (46%)
(10)Ram Edge of shrub forest near Pitch 2 May 2016— 186 152 --58,000*
Pasture Pine stand,wetland complex 12 Dec 2016 (83%) (82%)
(11)West Low shrub-edged large pond 2 May 2016— 91 52 627
Hummock 14 Aug 2016 (87%) (57%)
(12) Lost Farm Pitch Pine forest edge by field, 2 May 2016— 115 42 2024
large pond nearby 12 Dec 2016 (51%) (37%)
(13)Sconset East side of small wetland, in 19 Aug 2016— 42 25 339
hardwood stand 13 Oct 2016 (75%) (60%)
(14)Pout Pond Grassy pond-shore edge 25 Jul 2016— 120 52 266
7 Dec 2016 (88%) (43%)
(15)Beattie Forested residential area 4 Nov— 37 7 13
10 Dec 2016 (100%) (19%)
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2018 Northeastern Naturalist Vol.25,No.3
Z.R. Dowling and D.I. O'Dell
estimate indicating the probability that the presence of a species at a site on a given
night was falsely identified, therefore a low P-value indicates a species is likely
present at the site. We also analyzed bat-call files using KaleidoscopePro, with the
software set to the "0 Balanced" (neutral) setting, and the Massachusetts region
selected for the same 9 bat species. KaleidoscopePro also provides a maximum
likelihood estimator describing the probability that a species was misidentified
at a site, based on how many detections of each bat the classifier found, and a
confusion matrix representing how likely a species was to be mis-identified. Both
auto-classification programs were approved by the US Fish and Wildlife Service for
identification of Indiana and Northern Long-eared Bats in zero-cross acoustic data.
As a final step, we viewed and qualitatively vetted calls identified by EchoClass
and KaleidoscopePro using comparisons with established keys (Chenger and Ty-
burec 2011, Keinath 2011) and reference call-libraries.At a minimum, we required
the following conditions for positive identification: Hoary Bats—calls a minimum
frequency of<22 kHz; Eastern Red Bats—a minimum frequency of 32-42 kHz,
which varied 1-2 kHz across pulses; Tricolored Bats—a minimum frequency
of 38-42 kHz, with consistency across pulses and a strong constant-frequency
component; Eastern Small-footed Bats—a minimum frequency of>45 kHz; other
Myotis species—a minimum frequency of 38-42 kHz, best distinguished by the
slope of the call, with some overlap; probable Northern Long-eared Bats—slope
>200 octaves per second (Johnson et al. 2011b); potential Little Brown or Indiana
Bat—calls with a slope <200 octaves per second; and Big Brown or Silver-haired
Bat—minimum frequency of--25 kHz, with fiat calls of–25-30 kHz diagnostic of
Silver-haired Bats.
We manually vetted at least 1 call per station-night per species, as identified
by KaleidoscopePro. We also vetted all calls identified by the auto-classification
programs as Big Brown Bat, Tricolored Bat, Eastern Small-footed Bat, or Indiana
Bat because these calls were relatively few in number.We shared selected examples
of identified calls of each bat species with experts who were more proficient and
experienced than we were in identifying bat calls.
Seasonal variation in detections
We categorized sampling nights into 5 seasons: spring migration (15 April-31
May), maternity period (1 June-15 July), volancy period (16 July-15 August),
fall migration (16 August-15 November), and late season (16 November-15
December). These 5 seasons roughly reflected regional patterns of behavior of
cave-hibernating and migratory bats in terms of timing of migration, pup volancy,
and hibernation (e.g., Burns et al. 2014, Davis and Hitchcock 1965, Dowling et al.
2017, Kunz et al. 1998, Peterson et al. 2016, Townsend et al. 2008). We evaluated
seasonal variation in detection rates in 2 ways.To obtain a detection probability, for
each season, we summed the number of nights we detected bats for each station-
year and divided by the total number of sampling nights during that station-year.
We used ANOVA(package `aov'; R Core Team 2017) to test the effect of season on
probability of detection for all bat calls combined, and separately for Myotis spp.,
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2018 Northeastern Naturalist Vol.25,No.3
Z.R.Dowling and DL O'Dell
Eastern Red Bats, Hoary Bats, Silver-haired Bats, Big Brown Bats, and Tricolored
Bats, as identified by KaleidoscopePro. We used Tukey's HSD to evaluate differ-
ences among categories within season.
We qualitatively assessed seasonal-activity patterns based on call identifications
confirmed through manual vetting. Differentiation between the calls of Big Brown
Bats and Silver-haired Bats is challenging (Betts 1998); therefore, we only classi-
fied a call as from a Silver-haired Bat when a flat call was present in the appropriate
frequency range. We shared clear examples of calls auto-classified as Big Brown
Bat with multiple experts, in order to determine if the species was present in each
season. Differentiating among Myosis spp. is also prone to error (Britzke et al.
2013); therefore, we pooled detections of all 4 Myotis spp. The majority of Myotis
calls detected were steep in slope (>200 octaves per second), suggesting they were
from Northern Long-eared Bats.
Bat capture and tagging
We mist-netted across potential travel corridors and over wetland areas on 3
nights in the spring (29 April, 30 April, and 2 May 2016 at Squam Farm), 2 nights
in the summer (19 July at Squam Farm, 20 July at Ram Pasture), and 2 nights in
the fall (30 October at Ram Pasture, 31 October at Lost Farm), using 38-mm mist
nets. Each night we deployed 1 triple-high mist net set-up (3 stacked nets, each
4 m across x 2.6 m high, total height —6.5 m) and 2-4 single-high mist nets (I net,
4 or 6 m across x 2.6 in high). In addition, on 1 November, we hand-captured bats
roosting at a known roost site. We only operated mist nets in conditions with low
wind and no precipitation, although temperatures fell below preferred conditions of
?10°C during spring and fall trapping. We identified to species, sexed, and weighed
captured bats, and measured their forearms. We aged bats based on wing joint os-
sification but could not differentiate young-of-the-year from adult bats during fall
trapping. We attached 0.29-g Lotek NTQB-1 coded radio-tags(Lotek Wireless,Inc.,
Newmarket, ON, Canada) to bats using animal ID tag cement (Nasco, Modesto,
CA), after shaving a small area of fur between the scapulae. Radio-tags operated
on a single frequency, and emitted a signal every 4.7 seconds, 24 h per day, for an
estimated battery life of about 3 weeks. To reduce the likelihood of negative effects
from tagging, all transmitters were<5% of bat-body weight(Aldridge and Brigham
1988). We conducted bat capture and handling efforts under Mass Wildlife Scien-
tific Collection Permit # 181.16SCM and University of Massachusetts-Amherst
IACUC Protocol Sievert 2015-0009, and followed American Society of Mammalo-
gists standards (Sikes and Gannon 2011). We used mist nets only on Nantucket, and
all gear was treated in accordance with National WNS Decontamination Protocols
(USFWS 2012, 2016b) to minimize the likelihood of spreading WNS.
Bat tracking and roost monitoring
We manually tracked tagged bats to roost sites using a Lotek SRX-800 receiver,
and recorded roost characteristics. When possible,we conducted emergence counts.
We tracked bats until tags dropped off or the battery life of the tags expired. We
tracked 1 bat to a hibernation site, where we conducted visual surveys of the site on
367
2018 Northeastern Naturalist Vol.25,No.3
Z.R.Dowling and D.I. O'Dell
31 October 2016, 8 November 2016, and 24 February 2017, and used an iButton
1-wire Hygrochron (Maxim Integrated, San Jose, CA) to record temperature and
humidity at the site through the winter. We employed an automated telemetry sta-
tion erected on a balcony at a house—85 m from the roost and monitored movements
of bats roosting in the hibernation site from 2 November to 10 December 2016.
The station consisted of an omni-directional antenna connected to a sensorgnome
receiver (www.sensorgnome.org) that continuously monitored for radio-tags 24 h
per day. During this time period, there were 3 other automated telemetry stations
on Nantucket and 12 automated telemetry stations on Cape Cod deployed as part
of the Motus Wildlife Tracking System (Taylor et al. 2017), which could have de-
tected coastal or off-island movements by tagged bats.In the summer,we calculated
the number of days tracked based on manual tracking to roost locations and roost
emergence. In the fall,we calculated the number of days tracked based on visual in-
spection at the hibernation location, and variation in signal strength, as detected via
automated telemetry. We used manual tracking to confirm radio-tag presence at the
hibernation site, but since bats did not emerge on most nights, this method did not
allow us to differentiate between tags on torpid bats and dropped tags.
Results
Acoustic-detector deployment
We deployed acoustic detectors at station locations for 80 to 198 nights between
late April and mid-November 2015, and 37 to 224 nights between early May and
mid-December 2016. Detector malfunction and ambient noise led to some missed
nights, but most detector stations functioned for the majority of their deployment.
We successfully recorded during 51-100% of nights deployed (Table 1), and re-
corded data for a total of 2120 detector-nights.
Bat-species presence
Excluding the Ram Pasture site, we identified a total of 13,518 files as prob-
able bat calls. EchoClass software classified 5670 calls to species at Ram Pasture,
and 727 calls at the other stations combined. EchoClass software estimated that 8
of 9 bat species found in Massachusetts were likely present on at least 1 station on
Nantucket (P < 0.05) (Table 2). The exception was the Eastern Small-footed Bat,
for which individual call-sequences were only identified at the Ram Pasture site
in 2016. Using EchoClass, Eastern Red Bats were the most commonly detected
species, identified as present(P< 0.05) in 13 of 17 station-years surveyed, with in-
dividual call-sequences recorded at 2 other stations.Northern Long-eared Bats were
identified as present(P<0.05)at the Ram Pasture and Lost Farm stations in 2016.
KaleidoscopePro software identified 11,856 calls to species at the Ram Pasture
station, and 2401 calls at the other stations combined. KaleidoscopePro software
determined all 9 bat species found in Massachusetts were present on at least 1
station on Nantucket (P < 0.05) (Table 3). Using KaleidoscopePro, Eastern Red
Bats were the most commonly identified bat species, with their presence identified
(P < 0.05) in 16 of 17 station-years. The Eastern Small-footed Bat, which was not
368
2018 Northeastern Naturalist Vol.25,No.3
Z.R.Dowling and D.I. O'Dell
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2018 Northeastern Naturalist Vol.25,No. 3
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371
2018 Northeastern Naturalist Vol.25,No.3
Z.R.Dowling and D.I. O'Dell
detected by EchoClass software, was identified (P< 0.05) at 4 stations. The North-
ern Long-eared Bat was identified at 8 stations (P < 0.05).
Manual vetting confirmed the presence of Northern Long-eared Bats, Eastern
Red Bats, Hoary Bats, Silver-haired Bats, Tricolored Bats, and Big Brown Bats on
Nantucket. There is significant overlap in the parameters differentiating calls of
Myotis species, and expert review did not identify any candidate calls as definitive
evidence of Little Brown Bats, Indiana Bats, or Eastern Small-footed Bats.
Seasonal variation in detection rates
We detected bat calls from 30 April through 11 November 2015 and 2 May to 12
December 2016. Bats were present on 19-84% of nights surveyed at each station,
with lower detection-rates during late fall (Fig. 2).We demonstrated a significant ef-
fect of season on likelihood of bat detection (F(454)=2.81, P=0.034),with detection
rates significantly lower on nights in the late season compared to the volancy period
(Padj= 0.013). There was no effect of season on likelihood of detection (P> 0.05)of
any individual species or Myotis spp. as identified by KaleidoscopePro. This result
was likely due to low identification rates by the auto-classification software,resulting
in low detection-rates for species at most stations across all seasons.
Based on manual vetting, Myotis spp. were present from 30 April-21 October
2015,and on most warm nights between 2 May-26 November 2016,with particularly
•••••2015
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MA, in 2015 and 2016. Values are summed across all stations by year, except Ram Pasture
(sampled 2016) is displayed separately, due to unusually high detection rates.
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2018 Northeastern Naturalist Vol.25,No. 3
Z.R.Dowling and D.I. O'Dell
high detection rates at the Ram Pasture and Lost Farm sites in 2016.We detected Tri-
colored Bats on 29 July 2016, on several isolated nights in September and October
2015, and on 8-9 November 2016; a final call was recorded 12 December 2016 at the
Lost Farm site, following an unseasonably warm day (high of 12 °C, 7 °C at dusk).
Manual vetting also confirmed that Eastern Red Bats were widespread,and they were
recorded frequently every month from 15 May-15 November 2015 and 2 May-27
November 2016. Hoary Bat calls were primarily recorded during the migration sea-
sons (2015: 9-29 May, 9 August-13 October; 2016: 12 August-25 September), but
there were isolated detections during the maternity period in June 2015 and early July
2016. We detected Silver-haired Bats in 2015 from 27 October to 5 November, with
2 distinct peaks (27 August-1 September, and 14-16 September), whereas in 2016,
we detected Silver-haired Bats from 26 July to 30 October with no peaks in activity.
There were several confirmed calls in June.
Bat capture, tagging, and tracking
We caught a total of 13 bats on Nantucket in 2016, all of which were Northern
Long-eared Bats (Table 4). We captured 9 bats in 2.25 h of trapping on 20 July
2016, and radio-tagged 3 lactating females. We relocated 2 tagged bats for 2 days
each before they dropped their tags. One tagged bat utilized a roost at a private
residence -1.9 km from the capture site on 22 July and 23 July, where it appeared
to be roosting on the side of a house under a trim board. We tracked a second bat to
a Pinus rigida Mill. (Pitch Pine) snag -200 m from the capture site in a pine stand
on 21 July. That evening, we observed 11 bats emerging from a long crack in the
tree. On 22 July, we tracked the bat to a second roost in a live Pitch Pine -130 m
from the first tree and -140 m from the capture site. Two observers saw 9 and 20
bats, respectively, in the vicinity of the tree on the night of 22 July, but they could
not identify the emergence location.
Table 4. Morphological data and tracking information for Northern Long-eared Bats captured on
Nantucket,MA.
Forearm Body
Capture Reproductive length mass Days
Capture date location Bat ID Age Sex status (mm) (g) tracked Roosts
20 July 2016 Ram Pasture F259 A F Lactating 36.9 7.6 2 2
20 July 2016 Ram Pasture n/a J F Non-reproductive 36.2 5.7 - -
20 July 2016 Ram Pasture n/a J F Non-reproductive 37.5 6.4 -
20 July 2016 Ram Pasture F264 A F Lactating 36.5 7.1 2 1
20 July 2016 Ram Pasture n/a J F Non-reproductive 36.7 6.4 - -
20 July 2016 Ram Pasture n/a J F Non-reproductive 37.0 6.4 - -
20 July 2016 Ram Pasture F247 A F Lactating 37.0 6.7 <1 0
20 July 2016 Ram Pasture n/a J M Non-reproductive 35.8 5.8 - -
20 July 2016 Ram Pasture n/a A F Lactating 36.4 7.0 - -
30 Oct 2016 Ram Pasture M269 A M Non-reproductive 36.1 9.0 12 1
1 Nov 2016 Crawl space F272 A F Non-reproductive 35.3 7.2 7 1
1 Nov 2016 Crawl space F260 A F Post-lactating 36.8 8.7 24 1
1 Nov 2016 Crawl space M257 A M Non-reproductive 35.2 8.4 20 1
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2018 Northeaster!?Naturalist Vol.25,No. 3
Z.R. Dowling and D.I. O'Dell
We captured and tagged 1 male Northern Long-eared Bat in 2 h of trapping on
30 October 2016 at Ram Pasture. We tracked this bat to a crawl space beneath a
house located —2.4 km from the capture site, where we found it was roosting in as-
sociation with 4 other Northern Long-eared Bats in narrow (-1 cm) cracks between
wooden, sistered floor joists. On 1 November,we hand-captured and radio-tagged 1
additional male and 2 female Northern Long-eared Bats roosting in the crawl space
(Table 4). Radio-tags remained on all 4 bats at least through 8 November, when we
observed torpid and unresponsive bats in the crawl space.Three of the 4 tagged bats
were also intermittently recorded by the nearby automated telemetry station, with
variation in signal strength demonstrating tags remained on these bats for at least
12-24 days after tagging. Manual tracking further indicated tags of all 4 bats were
located in the crawl space through the end of radio-tag battery life on 8 December,
and no tagged bats were recorded by coastal or off-island telemetry stations. Based
on variations in signal strength recorded by the local automated telemetry station,
bats were active in the evening hours(16:00-19:00) following relatively warm days
in early—mid November, but it was not clear if bats were simply changing positions
within the roost or making short forays outside. No bats exited the roost during an
emergence survey on 1 warm (>10 °C) evening (3 November). The crawl space
was open to the outside via a—0.6 m x 1.0 m hole which was closed on 27 Novem-
ber, but small (-2-cm wide) cracks along boards covering basement window holes
remained, providing potential points of egress. On 24 February 2017, a researcher
re-entered the crawl space and found 1 torpid Northern Long-eared Bat with no
visible signs of disease. Relative humidity within the crawl space remained above
85% throughout the hibernation season (15 November 2016 to 15 April 2017), and
recorded temperatures remained between 6.5 °C to 15 °C (Fig. 3). The crawl space
was warmed by water pipes running beneath the house, and the dirt floor may have
helped maintain humid conditions.
15 - -
"toi
jildA i\II 10-1
!i r x<< r40
:,,r th
dl I
5 4l. i im I
F 5
m
temperature
0 — relative humidity
I
Nov 2016 Dec 2016 Jan 2017 Feb 2017 Mar 2017 Apr 2017
Figure 3. Temperature and relative humidity within the crawl-space hibernation site during
the hibernation period (15 November 2016-15 April 2017). Temperature logger failed to
collect data after 24 February 2017.
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2018 Northeastern Naturalist Vol.25,No.3
Z.R. Dowling and D.I. O'Dell
Discussion
Species presence
This is the first inventory of bat species on Nantucket. Using acoustic detec-
tion, we documented the presence of 3 long-distance migratory tree-bat species at
multiple locations on the island. These 3 species were previously collected on Nan-
tucket during the spring and fall in the 1950s-1970s (Maria Mitchell Association
2017), and existing evidence suggests that these migratory species use coastal and
island areas along the Eastern Seaboard during migration (Cryan and Brown 2007;
Johnson et al. 2011 a; Peterson et al. 2014, 2016; Sjollema et al. 2014; Smith and
McWilliams 2016). We detected Silver-haired and Hoary Bats primarily during the
spring and fall migration seasons, but Eastern Red Bats were detected frequently
throughout the active season from early May to late November. Previous studies
describe peaks of migratory activity in which high capture-rates in mist-nets, bats
roosting in visible numbers, or high numbers of calls indicate waves of migration,
possibly associated with favorable weather conditions (e.g., Cryan 2003; Cryan and
Brown 2007; Divoll 2012; McGuire et al. 2012; Peterson et al. 2014, 2016). We
observed qualitative evidence for this behavior in 2015 among Silver-haired Bats,
with peaks of activity that spanned multiple sites from 27 August to 1 September,
and again during 14-19 September. We did not observe similar peaks of activity in
2016 among Silver-haired Bats, or among Hoary Bats or Eastern Red Bats in either
year. The presence of Eastern Red Bats during the maternity and volancy periods
suggests they could be forming maternity colonies on the island. Cryan (2003)
documented both sexes moving into New England in the summer based on analysis
of museum-specimen collections, and the species has been recorded in inland Mas-
sachusetts during summer (Brooks 2011).
Through acoustics, we also documented the presence of Myotis species on
Nantucket, including the federally threatened Northern Long-eared Bat. Auto-
classification software identified Little Brown Bats, Indiana Bats and Eastern
Small-footed Bats as present at multiple sites on the island, but we did not identify
any definitive calls of these species in the manual vetting process. The last known
observation of the Indiana Bat in Massachusetts was in 1939 (MANHESP 2012).
The historic summer range of this species is poorly known; there are no records
from southeastern Massachusetts (Thomson 1982). Formerly, the species was
known to hibernate at sites in Berkshire and Hampden counties (MANHESP 2012).
Further mist-netting efforts may reveal whether other Myotis spp. are present on
Nantucket. We also recorded Big Brown Bats and Tricolored Bats on Nantucket.
The final acoustic detection of a Tricolored Bat was in mid-December, which indi-
cates this species may over-winter on Nantucket.
Northern Long-eared Bats
Northern Long-eared Bats appear to be successfully reproducing and hibernat-
ing on the island. We captured 9 Northern Long-eared Bats in summer 2016 and 4
Northern Long-eared Bats in the fall. Bats captured in July included both lactating
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2018 Northeastern Naturalist Vol.25,No. 3
Z.R.Dowling and D.I.O'Dell
females and volant juveniles of both sexes. Based on emergence counts, the mater-
nity colony we identified comprised at least 11 individuals, and may have included
20 or more. Capture rates at the Ram Pasture site were high compared to other loca-
tions in the Northeast, with 4.0 Northern Long-eared Bats per hour in July, and 0.5
per hour in October.Acoustic activity suggests that Northern Long-eared Bats were
present at the capture site through much of the active season, from early May into
early December. Northern Long-eared Bats were also detected at other stations on
the island from the time acoustic detectors were first deployed in late April through
early December.
In the fall, Northern Long-eared Bats captured at a hibernation site in a crawl
space included males and females of healthy weight (7.2-9.0 g). Although bats ap-
peared torpid during an inspection of the hibernaculum on 8 November, automated
tracking data suggests that bats were intermittently active within the hibernaculum
on seasonably warm evenings through mid-November. Final automated detections
were 12-24 d after tagging, but we manually detected the tags in the hibernation
site through early December, presumably through the end of tag-battery life. Con-
ditions within the hibernation site fell within the range suitable for hibernating
Myotis spp. (Brack 2007, Johnson et al. 2016, Thomas and Cloutier 1992, Webb et
al. 1996). The relatively mild temperatures could promote the growth of Pseudo-
gymnoascus destructans Gargus (White-nose Fungus), which grows optimally at
12.5-15.8 °C (Verant et al. 2012); however, there were no visible signs of disease
on the bat we observed in the hibernaculum on 24 February 2017. The persistence
of Northern Long-eared Bats on Nantucket and at other coastal locations could in-
dicate some bats may be hibernating locally in habitat not conducive to the spread
of WNS, rather than travelling to infected inland hibernacula. If coastal areas are
serving as refugia from WNS,persistent populations in these areas could be a focus
for conservation of cave-hibernating bats.
Northern Long-eared Bats traditionally are considered "deep forest" bats that
forage in habitats with a high level of vegetative clutter and roost in trees. However,
they also utilize human-made structures as roost sites where natural roost habitat
is limited (Henderson and Broders 2008). On Martha's Vineyard, 36% of Northern
Long-eared Bat summer roosts were in human structures, and bats were often found
roosting under rakeboards on houses, where trim boards intersected with shingles
below the roof line (Baldwin et al. 2017). On Cape Cod,Northern Long-eared Bats
primarily used human structures as roost sites (Curry 2016). We found bats utiliz-
ing both house and tree roosts during the maternity period. Given the common use
of cedar shingles as siding on houses on Nantucket, there may be a profusion of
human-made roosts on the island, which mimic natural roosts and are utilized by
this species. Both tree roosts we documented were in Pitch Pines, including 1 cav-
ity roost in a pine snag, a common roost type in pine-dominated forests (Perry and
Thill 2007). Measured characteristics of maternity-roosting behavior were within
the range of those documented in other studies. Colony sizes of 10-30 individuals
are thought to be typical, and females in maternity colonies switch roosts on aver-
age every 2 days (Silvis et al. 2016).
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2018 Northeastern Naturalist Vol.25,No. 3
Z.R. Dowling and D.I. O'Dell
Even within our small sample, we documented high variability in distances bats
traveled (several hundred meters to 1.9 km)between the point of capture and mater-
nity-roost sites, with the latter distance exceeding the maximum recorded distance
for a female bat from capture site to maternity roost on Martha's Vineyard (Dowl-
ing et al. 2017). Average distances from capture site to roost recorded for Northern
Long-eared Bats are <0.7 km, although longer distances have been reported in the
literature (2.7 km; Silvis et al. 2016). In the Yukon, Randall et al. (2014) found that
female Little Brown Bats commuted longer distances to foraging areas than males
of the species and hypothesized this was due to limited roost-habitat appropriate for
maternity colonies.
It is uncertain whether natural roost habitat is limited for Northern Long-eared
Bats on Nantucket, but the island has relatively few stands of mature trees and only
12% forest cover (The Nature Conservancy 1998). In this respect, Nantucket rep-
resents a fairly unique habitat for this species. Numerous studies have documented
a preference among Northern Long-eared Bats for large tracts of intact forest for
foraging and roosting. Although these bats are known to occur in forests under a
variety of management and cutting regimes (e.g., Menzel et al. 2002; Owen et al.
2001, 2003; Perry et al. 2007), they avoid clear cuts (Owen et al. 2004, Patriquin
and Barclay 2003), are uncommon in open landscapes (Henderson and Broders
2008, Owen et al. 2003), and are less likely to occur in fragmented forest stands
(Henderson et al. 2008, Morris et al. 2010, Yates and Muzika 2006). We detected
the widespread occurrence (8 of 15 stations) of Northern Long-eared Bats on
Nantucket, including where the predominant vegetation was <6-m tall Quercus
ilicifolia Wangenh. (Scrub Oak). However, our acoustic sampling was somewhat
opportunistic and focused on areas we deemed potential bat habitat; all sites where
we identified Northern Long-eared Bats were within—500 m of a forested area. Ram
Pasture and Lost Farm had consistently high detection rates of Northern Long-eared
Bats and were located adjacent to mature Pitch Pine stands.
If Northern Long-eared Bats on Nantucket do rely on mature-forest patches for
roosting or foraging habitat, this could have significant management implications
for land-conservation organizations. The island has been the focus of extensive ef-
forts to restore and preserve coastal sandplain grassland, heathland, and scrubland.
Cutting, mowing, prescribed burns, and grazing have all been used as manage-
ment tools to conserve species that rely on early-successional habitats (Omand et
al. 2014, Zuckerberg and Vickery 2006). Although some consider these efforts a
means to maintain the natural landscape, the Cape and Islands region was likely
originally dominated by forests of pine, oak, and hardwood communities, which
were lost following European colonization (Foster and Motzkin 2003). Foster and
Motzkin (2003) argued that this history does not invalidate the current biological
and cultural value of early successional habitats, but note that management should
be conducted with clear policy objectives in mind, as well as an understanding of
the region's ecological history. In general, populations of woodland species are
increasing across the Northeast; nevertheless, the regional decline of the Northern
Long-eared Bat and other forest bats necessitates consideration of these species in
377
2018 Northeastern Naturalist Vol.25,No.3
Z.R.Dowling and D.I. O'Dell
management planning in places where they persist. Further research is warranted
to determine whether management of protected lands in the Cape and Islands re-
gion should include maintenance of hardwood and pine forest patches for Northern
Long-eared Bats.
Acknowledgments
The Nantucket Biodiversity Initiative provided funding for travel and equipment for
this project. Zara Dowling's time was supported in part by the NSF-sponsored IGERT
Offshore Wind Energy Engineering, Environmental Science, and Policy Program (Grant
Number 1068864). Stantec Consulting, Inc. donated use of ANABAT detectors for both
years of acoustic monitoring. Jonathan Reichard and Susi von Oettingen of the US Fish
& Wildlife Service provided nano-tags, tracking equipment, and helpful advice. We thank
Karen Beattie for logistical, institutional, and field support; Biodiversity Works for the loan
of single-high mist-netting poles;and Eileen McGourty of the US Fish and Wildlife Service
for the use of temperature and humidity dataloggers. We are grateful to Trevor Peterson,
Samantha Hoff, and Carl Herzog for providing expert review of selected echolocation calls.
We appreciate Paul Sievert,2 anonymous reviewers, and the editor,for their careful reading
of the manuscript, and helpful comments and suggestions.
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CONSERVATION RESTRICTION Doc: CR 09/14/2015 11:59 AM
Grantor: Sachems Path LLC
Grantee: Nantucket Land Council, Inc.
Property Address: Off Surfside Road. Map 76 Parcel 513
Title Reference: Book 233 Page 33
Sachems Path LLC, a Limited Liability Corporation under the direction of the
Housing Assistance Corporation, a Massachusetts non-profit with a mailing
address of 460 West Main Street Hyannis, MA 02601, and its successors and
assigns (collectively, the "Grantor"), acting pursuant to Sections 31, 32, and 33 of
Chapter 184 of Massachusetts General Laws, for nominal consideration hereby
grant with quitclaim covenants to the Nantucket Land Council, Inc., a
Massachusetts non-profit corporation whose purposes include the preservation
of land in its natural state having a principal place of business at 6 Ash Lane,
Nantucket, Massachusetts 02554, and its successors and permitted assigns, (the
"Grantee") in perpetuity and exclusively for conservation purposes, the following
described Conservation Restriction on a certain parcel of land off of Surfside
Road, constituting approximately 1.1 acres, and more particularly described in a
plan prepared by Horsley Witten Group titled "Conservation Restriction Plan
Sachem's Path Parcel Nantucket, Massachusetts" dated October 29, 2013,
Revised May 20, 2014 attached hereto as Exhibit A (the "Premises").
For Grantor's title see Book 1446 Page 66 filed in the Nantucket Registry
District.
Grantee warrants that Grantee is a charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder(the "Code"), and a "charitable corporation whose
purposes include conservation of land" in accordance with MGL Chap. 184,
Section 32 whose primary purpose is "To encourage, support and engage in
research, study, and education regarding land in the County of Nantucket ...and
to engage in, institute, defend and to support in any legal manner or way any
litigation or administrative procedures regarding such land, its ownership and
utilization; and to engage in such other activities as are necessary or reasonably
appropriate thereto."
Grantee represents that Grantee is a "qualified organization," as that term is
defined in Section 170(h)(3) of the Code.
Grantee has received a determination letter from the Internal Revenue
Service dated November 24, 2003, to the effect that Grantee is a "publicly-
supported" organization described in Section 509(a)(1) and Section 170(b)(A)(vi)
of the Code, and is not a private foundation under Section 509(a)(1) of the Code.
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Grantor and Grantee recognize the natural, scenic, and special character of
the Premises and have the common purpose of the conservation and protection
in perpetuity of the Premises through the use of restrictions on the Premises.
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS, in
consideration of the above and mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to Section 170(h) of the Code and the
laws of the Commonwealth of Massachusetts, including M.G.L. Chapter 184,
Sections 31-33, Grantor hereby voluntarily grants and conveys to Grantee and its
successors and permitted assigns a conservation restriction (the "Restriction" or
"Conservation Restriction") in perpetuity and for conservation purposes over the
Premises of the nature and character and to the extent hereinafter set forth.
Grantor herein declares that the Premises shall be held, mortgaged,
encumbered, transferred, sold, conveyed, used, and occupied subject to the
covenants, conditions, and restrictions hereinafter set forth, which covenants,
conditions, and restrictions shall be deemed to run with the land in perpetuity and
to burden the Premises in perpetuity.
A. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31-
33 of Chapter 184 of the General Laws and otherwise by law. The purpose of
this Conservation Restriction is to assure that the Premises will be maintained in
its current condition in perpetuity and for conservation purposes, predominantly
in a natural, scenic and undeveloped condition, and to prevent any use or
change that would materially impair or interfere with its conservation values.
The specific conservation values of the Premises are documented in a
report to be kept on file at the offices of Grantee and incorporated herein by this
reference, which documentation ("Baseline Documentation") the parties agree
provides an accurate representation of the Premises as of the effective date of
this grant and which is intended to serve as an objective information baseline for
monitoring compliance with the terms of this grant.
This Conservation Restriction is intended to protect the aforementioned
conservation values of the Premises and Nantucket by prohibiting all buildings;
by prohibiting practices such as commercial agriculture and raising of animals
which can damage or alter natural plant communities; and by encouraging
conservation of the land in its predominantly vacant and undeveloped condition,
as more particularly described herein.
These conservation values are more particularly described as including
the following:
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• Open Space Preservation. The protection of the Premises contributes to
the protection of the scenic and natural character of open space properties in the
near vicinity and open space abutting to the north. The protection of the
Premises will enhance the open-space value of these lands.
• Water Quality. The Premises are located on Nantucket Island which has a
sole source aquifer for the use of its inhabitants. Protection of the Premises will
further protect the water quality of the aquifer.
• Scenic Protection. The Premises are located along Surfside Road and
afford the public with uninterrupted views of pristine vegetation and open space
which if developed would interrupt, obstruct and fragment beneficial scenic
vistas.
• Protection of Wildlife Habitat. The entire Premises fall within an area
designated as "Priority Habitat for State-Protected Rare Species" by the
Massachusetts Division of Fisheries and Wildlife's Natural Heritage &
Endangered Species Program (the "Division"). The Premises are comprised of a
coastal heathland and sandplain grasslands and low lying open scrub oak.
Because development on Nantucket threatens to destroy much of the Island's
natural environment and threatens to introduce exotic and invasive species of
plants, conservation of the Premises in its predominantly undisturbed and natural
condition maintains increasingly rare indigenous wildlife and plant habitats on
Nantucket. Conservation of the Premises will protect habitat used by a variety of
state-listed rare wildlife species including, but not limited to, two state-listed plant
species: New England Blazing Star(Liatris borealis), a "Species of Special
Concern," and Eastern Silvery Aster (Symphyotrichum concolor), state-listed as
"Endangered"; as well as four state-listed moth species: Chain Dot Geometer
(Cingilia catenaria), Pink Sallow (Psectraglaea carnosa), Coastal Swamp
Metarranthis Moth (Metarranthis pilosaria), each a "Species of Special Concern,"
and Melsheimer's Sack Bearer(Cicinnus me/sheimeri), state-listed as
"Threatened" pursuant to the Massachusetts Endangered Species Act (MESA)
(G.L. c. 131A:3 and 321 CMR 10.23).
• Massachusetts Endangered Species Act. This Conservation Restriction
is granted pursuant to and in accordance with the requirements set forth in
Conservation and Management Permit No. 014-243.DFW, issued by the Division
and further referenced below.
• Furtherance of Governmental Policy. Preservation of the Premises is
pursuant to clearly delineated conservation policy expressed in Nantucket's
Master Plan, adopted by Nantucket's voters at the Annual Town Meeting in April
2009, which states in the Town of Nantucket 2007 Open Space and Recreation
Plan as Goal/Objectives 1C: "The town should encourage the use of creative
regulatory and non-regulatory land protection tools such as conservation
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restrictions, tax abatements, gifts and zoning measures."; and in The Nantucket
Comprehensive Community Plan (NCCP), including the following objectives
therein: Objective 4.1, "To aggressively acquire land and conservation
restrictions to protect natural ecosystems;" Objective 4.2, "To encourage land
management activities by the Land Bank and nonprofit entities to provide
permanent resource protection;"
Preservation of the Premises as open space is further pursuant to clearly
delineated governmental conservation policy in accordance with "Nantucket's
Goals and Objectives for Balanced Growth" which was adopted in November
1990 by Town Meeting and states as Objective A-1: "To identify and acquire
critical open spaces through outright ownership or by less-than-fee means, such
as conservation restrictions, scenic easements, and the purchase of
development rights, in order to complete the Island's open space network.
Preservation of the Premises as open space is pursuant to the following
permits and Declarations:
a) MESA Conservation and Management Permit No. 014-243.DFW a copy
of which is attached hereto as Exhibit B, issued by the Division and incorporated
herein by this reference (the "Permit").
b) Town of Nantucket Zoning Board of Appeals File No. 076-11
Comprehensive Permit for Housing Assistance Corporation, Surfside Road at
South Shore Drive, Nantucket, issued September 13, 2012.
B. Prohibited Uses. Except for reserved rights as set forth in Paragraph C
below, Grantor will neither perform nor give permission to others to perform the
following acts or uses which are prohibited on, under, and above the Premises:
(1) The construction or placement of any temporary or permanent building,
landing strip, helicopter landing area, tennis court, mobile home, swimming pool,
asphalt or concrete pavement, stadium, bleachers, outdoor lighting equipment.
ropes course, sign, billboard, or other advertising display, utility pole, tower,
conduit or line, septic system, or any other temporary or permanent structure on,
above, or under the Premises;
(2) Excavating, mining, dredging or removing from the Premises of soil,
loam, peat, gravel, sand, rock or other mineral resource or natural deposit;
(3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash,
boats, trailers, vehicle bodies or parts, rubbish, debris, junk, waste or other
substance or material whatsoever or the installation of underground tanks;
(4) Cutting, removing or otherwise destroying trees, grasses or other
vegetation on the Premises;
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(5) The conduct of activities detrimental to drainage, flood control, water
conservation, water quality, erosion control or soil conservation;
(6) The use, parking or storage of motorcycles, motorized trail bikes,
snowmobiles and all other motorized vehicles and activities;
(7) Division or subdivision of the Premises, except for merging all or a
portion of the Premises with abutting property or properties. No portion of the
Premises — either following such merger or in the absence of such merger— may
be used to satisfy or comply with building, development or density requirements
on the Premises or on any other property;
(8) All commercial and municipal structures and all commercial or industrial
activities and uses;
(9) Any work, including, but not limited to, filling and/or construction of
roads, in wetlands as defined by the Wetlands Protection Act (Chapter 131,
Section 40) or the Nantucket Wetlands Bylaw (Chapter 136 of the Nantucket
Code);
(10) The use of the Premises for recreation, business, residential or industrial
use of the Premises.
(11) The use of pesticides and fertilizers; and
(12) Any other use of the Premises or the conduct of any other activity on the
Premises which would materially impair the Premises' conservation values
unless necessary for the protection of the conservation values that are the
subject of this Conservation Restriction.
C. Reserved Rights. The provisions of Paragraph B notwithstanding, the
following acts and uses by Grantor are permitted on, above or under the
Premises provided they do not materially impair the Premises' conservation
values and they are not inconsistent with the purposes of this Conservation
Restriction.
(1) Subject to Division approval, the right to excavate a known
archaeological site identified by and under the direction of a qualified
organization such as the Massachusetts Historical Commission according to
Massachusetts Regulations 950 CMR 70;
(2) Subject to Grantee and Division prior approval in accordance with
Paragraph E, hereof the right to conduct any activity, such as selective cutting,
mowing or burning, to manage the habitat of any threatened or rare species, as
identified by the Division or its successors, and/or any other natural plant
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community on Nantucket, and/or to enhance or manage wildlife. Management
activities shall be in accordance with the Conservation and Management Plan
dated July 9, 2014 which is included as an attachment to the MESA
Conservation and Management Permit No. 014-243 (Exhibit B). Grantee and/or
the Division may impose conditions or limitations to protect wildlife, natural
vegetation and environmental systems. Such conditions and limitations may
include the limited erection of nest boxes or osprey poles;
(3) Subject to Grantee and Division prior approval in accordance with
Paragraph E, hereof the right to plant indigenous species of plants which are
native to Nantucket.
(4) Subject to Grantee and Division prior approval in accordance with
Paragraph E, hereof the right to control noxious or invasive plant and animal
species by mechanical and/or chemical means on the Premises,
(5) The right to walk and conduct other noncommercial passive recreational
(including educational) activities on foot that do not materially alter the landscape
and do not degrade environmental quality;
(6) Subject to Grantee and Division prior approval in accordance with
Paragraph E, hereof the right to survey and to conduct scientific research,
including occasional erection of bird mist nets;
(7) Subject to Grantee's prior approval in accordance with Paragraph E,
hereof the right to erect, maintain or replace fence posts, post and rail fences,
and signs with respect to hunting, trespass, trail access, identify and address of
the occupants, sale of the Premises, the Grantee's interest in the Premises, and
the protected conservation values provides that such signs do not specifically
reference species on the MESA by scientific or common names or provide the
actual location of said species. Signs may use generalized terms such as
"Sensitive Ecological Community", "wildlife habitat", "rare animal habitat" or other
generalized terms;
(8) The right to use motor vehicles only as necessary and solely for
exercising any of the reserved rights in this Paragraph C or as necessary by the
police, firefighters, Board of Health agents, Department of Environmental
Protection personnel, or other governmental agents in carrying out their lawful
duties;
(9) All actions and activities required or authorized by Grantor, Grantee
and/or the Division within the Permit (Exhibit B); and
Certain reserved rights under this Paragraph C may require permits from
one or more public agencies. The exercise of any right reserved by Grantor
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under this Paragraph C shall be in compliance with the then-current Zoning, the
Wetlands Protection Act, the MA Endangered Species Act (MGL c131 A), and all
other applicable federal, state and local laws, rules, regulations, and permits.
The inclusion of any such rights herein does not imply that Grantee or the
Commonwealth takes any position on whether any such permit should be issued.
D. Prior Notice to Grantee. Grantor agrees to notify Grantee and the
Division, in writing, at least sixty (60) days prior to exercising those rights
reserved in subparagraph 3 of Paragraph C hereof, and again shortly before
commencing uses and activities previously approved by Grantee in accordance
with Paragraph E hereof. The notice shall describe the nature, scope, design,
location, timetable, MESA Tracking Number and/or Conservation and
Management Pen-nit#, and any other material aspect of the planned activity in
sufficient detail to permit Grantee and/or the Division to monitor the proposed
activity to assure that it is conducted in a manner that is not inconsistent with the
purposes of this Conservation Restriction.
E. Prior Approval of Grantee. Whenever approval by Grantee and/or the
Division is required under the provisions of subparagraphs 1, 3, 4, 5, 7, 8 of
Paragraph C hereof, Grantor shall request such approval in writing delivered to
Grantee and/or the Division not less than sixty (60) days prior to the date Grantor
intends to undertake the activity in question; however, Grantee and/or the
Division may waive or reduce the required period of time, provided said waiver is
obtained in writing prior to the initiation of such activity. The request for approval
shall describe the nature, scope, design, location, timetable, MESA Tracking
Number and/or Conservation and Management Permit Number, and any other
material aspect of the proposed activity in sufficient detail to permit Grantee
and/or the Division to make an informed judgment as to its consistency with the
purposes of this Conservation Restriction. Grantee and/or the Division shall
grant, condition or withhold its approval in writing within sixty (60) days of its
receipt of Grantor's written request for approval. Grantor's written request for
approval shall specifically recite the length of time provided by this Conservation
Restriction for review and response by Grantee. Grantee and Division approval
shall not be unreasonably withheld, but it shall only be granted upon Grantee
and/or the Division's determination that the proposed activity is not inconsistent
with the purposes of this Conservation Restriction. Failure of Grantee and/or the
Division to respond in writing within sixty (60) days shall be deemed to constitute
approval by Grantee of the request as submitted, so long as significant
conservation values are not impaired by the use or activity and the request has
set forth the provisions of this section relating to deemed approval after such
sixty (60) days.
Any notice, demand, request, consent, approval or communication that
either party desires or is required to give to the other shall be in writing and either
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served personally or sent by first class mail, postage prepaid, addressed as
follows:
To Grantor: Sachems Path LLC
460 West Main Street
Hyannis, MA 02601
Attn: Frederic Presbrey
To Grantee: Nantucket Land Council, Inc.
Post Office Box 502
Nantucket, Massachusetts 02554
Attn: Cormac Collier
To Division: Natural Heritage & Endangered Species Program
Mass. Division of Fisheries & Wildlife
North Drive, Route 135
Westborough, MA 01581
or to such other address as either party from time to time shall designate by
written notice to the other.
F. Breach by Grantor. In the event that a potential breach of this
Conservation Restriction by the Grantor, by a third party employed by the
Grantor, or by a party under contract to the Grantor, comes to the attention of
Grantee, and Grantee in the exercise of its best professional judgment concludes
that a breach may have occurred or is occurring, Grantee shall notify Grantor in
writing of such an alleged breach. Except in the event of an emergency which
requires immediate action, Grantor shall have thirty (30) days - or such additional
time as Grantee deems reasonably necessary depending on the circumstances
of the alleged breach - after delivery of such notice to initiate corrective actions,
including restoration of the Premises, that are reasonably calculated to correct
swiftly the conditions constituting such a breach. If Grantor fails to initiate such
corrective action within such time, Grantee may in its discretion undertake such
actions, including appropriate legal proceedings as are reasonably necessary to
effect the correction of each such alleged breach. If a court of competent
jurisdiction determines, or the Grantor acknowledges, that such correction
resulted from Grantor's violation of this Conservation Restriction, then Grantee's
costs of each such correction, including Grantee's expenses, court costs and
legal fees, shall be paid by Grantor.
G. Acts Beyond Grantor's Control; Third Party Breach. Nothing contained in
this Conservation Restriction shall be construed to entitle Grantee to bring any
action against Grantor for any injury to or change in the Premises resulting from
causes beyond Grantor's control, including, but not limited to, fire, flood, storm,
earth movement, and acts caused by trespass on the Premises not contributed to
by acts or omissions of Grantor, or from any prudent action taken by Grantor
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under emergency conditions to prevent, abate or mitigate significant injury to the
Premises resulting from such causes. Parties to this Conservation Restriction
agree that in the event of damage to the Premises from acts beyond the
Grantor's control, that if it is desirable that the Premises be restored, the parties
will cooperate in attempting to restore the Premises if feasible.
H. Extinguishment
(1) If circumstances arise in the future such as render the Purpose of this
Conservation Restriction impossible to accomplish, this Conservation Restriction
can only be terminated or extinguished, whether in whole or in part, by a court of
competent jurisdiction under applicable law. If any change in conditions ever
gives rise to extinguishment or other release of this Conservation Restriction
under applicable law, then Grantee, on the first subsequent sale of the Premises
following termination or extinguishment, shall be entitled to a portion of the
proceeds in accordance with subparagraphs (2) and (3) of this Paragraph H,
subject, however, to any applicable law which expressly provides for a different
disposition of proceeds. Grantee shall use its share of the proceeds to advance
the conservation of Nantucket lands and waters in a manner consistent with the
conservation purposes set forth herein.
(2) Grantor and Grantee agree that the grant of this Conservation
Restriction gives rise to a real property right, immediately vested in Grantee, with
a value that is determined by the ratio of the consideration recited herein for this
Conservation Restriction to the assessed value ascribed by the Nantucket
Assessor to the Premises on the effective date of this grant. Such ratio
(hereinafter, the "proportionate value") shall be included in the Baseline
Documentation and shall remain constant over time.
(3) Whenever all or any part of the Premises or any interest therein is
taken by public authority under power of eminent domain or other act of public
authority, then the Grantor and the Grantee shall cooperate in recovering the full
value of all direct and consequential damages resulting from such action. All
related expenses incurred by the Grantor and the Grantee shall first be paid out
of any recovered proceeds, and the remaining proceeds (including, for purposes
of this subparagraph, proceeds from any lawful sale of the Premises
unencumbered by the restrictions hereunder) shall be distributed in accordance
with any applicable law, grant or agreement and then between the Grantor and
the Grantee in shares equal to said proportionate value. If a less-than-fee interest
is taken, the proceeds shall be equitably allocated according to the nature of the
interest taken. The Grantee shall use its share of the proceeds in a manner
consistent with the conservation purposes of this grant.
I. Access. The Conservation Restriction hereby conveyed does not grant to
the Grantee, to the public generally, or to any other person any right to enter
upon the Premises, except as follows; there is hereby granted to the Grantee and
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its representatives the right to enter the Premises at reasonable times and in a
reasonable manner, for the purpose of inspecting the Premises to determine
compliance herewith, of enforcing this Conservation Restriction, and after thirty
(30) days prior written notice of taking any and all actions with respect to the
Premises as may be necessary or appropriate with or without order of court, to
remedy, abate or otherwise enforce any violation hereof. Nothing herein,
however, shall impair any rights of others or of the public generally now existing
in any portion of the Premises, and shall in no way limit, amend or alter the legal
authority of the Division to access the Premises of the Grantor, its successors
and assigns.
J. Legal and Equitable Remedies of Grantee. The rights hereby granted
shall include the right to enforce this Conservation Restriction in accordance with
its terms, including by appropriate legal proceedings and to obtain injunctive and
other equitable relief against violations, including, without limitation, relief
requiring restoration of the Premises to its condition prior to the time of the injury
complained of(it being agreed that Grantee shall have no adequate remedy at
law), and shall be in addition to, and not in limitation of, any other rights and
remedies available to Grantee. Grantee shall attempt to resolve issues
concerning violations through negotiations with Grantor prior to resorting to legal
means. In the event of a dispute over the boundaries of the Conservation
Restriction, Grantor shall pay for a survey and permanent monumentation of the
boundaries.
Grantor covenants and agrees to reimburse Grantee for those reasonable
costs and expenses (including without limitation counsel fees) incurred by
Grantee in enforcing this Conservation Restriction or in remedying or abating any
violation thereof, provided Grantor has been determined by final judgment (after
all appeal periods have passed) of a court of competent jurisdiction or by mutual
agreement of Grantor and Grantee to be responsible for any such violations
which resulted in Grantee's incurring enforcement, remediation or abatement
costs.
This Conservation Restriction shall also be enforceable by the
Commonwealth of Massachusetts acting through the Division. If the Division in
its sole discretion determines that Grantee is not taking satisfactory action to
monitor and/or enforce this Conservation Restriction, the Division shall give
written notice to Grantee of said unsatisfactory monitoring and/or enforcement
and the reasons therefore, and Grantee shall have 30 days in which to take
action satisfactory to the Division to monitor and enforce this Conservation
Restriction. If the Division in its sole discretion subsequently determines that the
Grantee has failed to take satisfactory action within said 30-day period following
written notice from the Division, the Division may in its sole discretion monitor
and undertake whatever actions, including appropriate legal proceedings which
include obtaining injunctive and other equitable relief, that the Division
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determines are reasonably necessary or appropriate to effect such corrections of
any violations and/or to otherwise enforce the terms and provisions of this
Conservation Restriction as provided herein,
If the Division in its sole discretion determines that immediate legal or
other action is necessary to protect the Premises against injury or harm, the
Division may waive this notice and 30-day Grantee response time period and
take whatever legal and other action the Division deems as necessary or
appropriate to protect the resources on the Premises.
Grantor covenants and agrees to reimburse to Division all reasonable
costs and expenses (including reasonable counsel fees) incurred in enforcing
this Conservation Restriction or in taking reasonable measures to remedy, abate
or correct any violation thereof, provided that a violation of this Conservation
Restriction is acknowledged by Grantor or determined by a court of competent
jurisdiction to have occurred,
By its acceptance of this Conservation Restriction, Grantee does not
undertake any liability or obligation relating to the condition of the Premises not
caused by the Grantee or Grantee's agents pertaining to compliance with and
including, but not limited to, hazardous materials, zoning, environmental laws and
regulations, or acts which are not caused by the Grantee or anyone acting under
the direction of the Grantee.
Enforcement of the terms of this Conservation Restriction shall be at the
discretion of Grantee. Any forbearance by Grantee in the manner and timing of
its rights to enforce this Conservation Restriction or otherwise exercise its rights
hereunder shall not be deemed or construed to be a waiver of such rights.
K. Severability. If any provision of this Conservation Restriction shall to any
extent be held invalid, the remainder shall not be affected and shall remain in full
force and effect.
L. Duration and Assignability. The burdens of this Conservation Restriction
shall run with the Premises in perpetuity and shall be enforceable in perpetuity
against the original Grantor, all successors and assigns of the original Grantor
holding any interest in the Premises, and third parties as described in this
Conservation Restriction. Grantee is hereby authorized to record or file any
notices or instruments appropriate to assuring the perpetual enforceability of this
Conservation Restriction, and the original Grantor, and all successors in title or
interest to the Premises, to the extent permissible under applicable law, appoints
Grantee its attorney-in-fact to execute, acknowledge and deliver any such
instruments on its behalf. Without limiting the foregoing, the original Grantor and
all successors in title or interest to the Premises, agrees to execute any such
instruments upon request.
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The benefits of this Conservation Restriction shall be in gross and
assignable, but only to an entity or governmental unit able and authorized to
enforce such restrictions, which entity shall also have purposes similar to those
of Grantee and which encompass the purposes set forth in this Conservation
Restriction. Such entity or governmental unit must qualify under Section 170(h)
of the Internal Revenue Code of 1986, as amended, and applicable regulations
thereunder, and under Section 32 of Chapter 184 of the Massachusetts General
Laws as an eligible donee to receive this Conservation Restriction directly. Any
assignment of benefits by Grantee (or successor) must require the transferee to
carry out the purposes of this Conservation Restriction. Furthermore, no
assignment by the Grantee of this Conservation Restriction shall be effective
unless previously approved in writing by the Nantucket Planning Board and by
the Grantor, whose approval will not be unreasonably withheld. Any assignment
shall be in accordance with Article 97 of the Amendments to the Massachusetts
Constitution if applicable.
M. Effective Date. While the Grantor may execute this instrument prior to
obtaining title to the Premises and the receipt of final acceptance and approvals
of this Conservation Restriction, this Conservation Restriction shall be effective
only when Grantor has obtained such title, Grantor and Grantee have both
executed this Conservation Restriction, the administrative approvals required by
Section 32 of Chapter 184 of the General Laws have been obtained, and this
Conservation Restriction has been filed for registration at the Nantucket Registry
District of the Land Court and noted upon the Certificate of Title for the Premises.
The Grantee shall file this instrument for registration in timely manner at the
Nantucket Registry District of the Land Court and note it upon the Certificate of
Title for the Premises.
N. Subsequent Transfers. Grantor agrees:
(1) to incorporate by reference the terms of this Conservation Restriction
into any deed or other legal instrument which divests Grantor of any interest in all
or a portion of the Premises, including, without limitation, a leasehold interest,
and
(2) to make reference to this Conservation Restriction in any executory
contract for the transfer of any interest in the Premises. Grantor further agrees to
give written notice to Grantee of all transfers of any interest in all or a portion of
the Premises and to provide such notice forthwith upon every transfer if such
notice has not been given prior to a transfer. Such notice to Grantee shall include
the name, address and telephone number of the transferee and his/her legal
representative, if any. Failure of Grantor to comply with this Paragraph N shall
not impair the validity of this Conservation Restriction or limit its enforceability in
any way.
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0. Estoppel Certificates. Upon request by Grantor, Grantee shall within
twenty (20) days execute and deliver to Grantor any document which certifies the
status of Grantor's compliance with any obligation of Grantor contained in this
Conservation Restriction and which otherwise evidences the status of this
Conservation Restriction, as may be reasonably requested by Grantor, including
a so-called estoppel certificate if applicable in form suitable for registration with
Nantucket Registry District and notation upon the Certificate of Title then
outstanding for the Premises.
P. Limitation of Grantor Liability. The Grantor shall not be liable for violations
occurring after its, his or her ownership. Liability for any acts or omissions not
excepted by operation of Paragraphs F or G hereof occurring prior to any transfer
and liability preceding any transfer if in violation of this Conservation Restriction
and not excepted by operation of Paragraphs F or G hereof shall survive the
transfer. Irrespective of the above, any new owner of the Premises shall
cooperate in the restoration of the Premises or removal of violations caused by
prior owner(s).
Q. Non Merger. The parties intend that any future acquisition of the
Premises shall not result in a merger of the Conservation Restriction into the fee.
The Grantor agrees that it will not grant, and the Grantee agrees that it will not
take title, to any part of the Premises without having first assigned this
Conservation Restriction to a non-fee owner to ensure that merger does not
occur and that the Conservation Restriction continues to be enforceable. If it is
determined that a transfer or assignment of any interest will result in a merger. no
deed shall be effective until this Conservation Restriction has been assigned tc a
non-fee owner or other action taken to avoid a merger and preserve the terms
and enforceability of this Conservation Restriction. It is the intent of the parties
that the Premises will be subject to the terms of this Conservation Restriction in
perpetuity, notwithstanding any merger.
R. Successor Grantee. If Grantee shall cease to exist or to be a qualified
organization under Section 170(h) of the internal Revenue Code of 1986, as
amended, or to be authorized to acquire and hold conservation restrictions under
M.G.L. Chapter 184, Section 32, as amended, and a prior assignment of this
Conservation Restriction has not been made, then Grantee's rights and
obligations under this Conservation Restriction shall become vested in and fall
upon the first (by order of listing) of the below-named organizations which agrees
to acceptance of the assignment and which qualifies for assignment under the
terms of this paragraph, and such vesting shall have been previously approved
in writing by the Nantucket Planning Board:
(a) Nantucket Conservation Foundation, Inc., Nantucket, Massachusetts
(b) The Massachusetts Audubon Society, Lincoln, Massachusetts
13
Conservation Restriction
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
on. v i avv ry. i vo
(c) Nantucket Islands Land Bank, Nantucket, Massachusetts
In the event that none of the above-named organizations agrees to acceptance
and qualifies for assignment, Grantee's rights and obligations shall become
vested in such other organization, previously approved in writing by the
Nantucket Planning Board and by the Grantor, whose approval will not be
unreasonably withheld, as a court of competent jurisdiction shall direct under the
doctrine of cy pres.
S. Restriction in Perpetuity. The provisions hereof shall inure to and be
binding upon the heirs, executors, devisees, administrators, successors and
assigns as the case may be of the parties hereto and shall be restrictions running
with the land in perpetuity. The term "Grantor" herein, unless the context or
wording otherwise requires, shall include all successors and assigns of the
original Grantor. The term "Grantee" herein, unless the context or wording
otherwise requires, shall include all successors and assigns of the original
Grantee Nantucket Land Council, Inc.
T. Amendment. If circumstances arise under which an amendment to or
modification of this Conservation Restriction would be appropriate, Grantor and
Grantee may jointly amend this Conservation Restriction; provided that no
amendment shall be allowed that will affect the qualification of this Conservation
Restriction or the status of Grantee under any applicable laws, including Section
170(h) of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of
Chapter 184 of the General Laws of Massachusetts. Any amendments to this
Conservation Restriction shall occur only in exceptional circumstances. The
Grantee will consider amendments only to correct an error or oversight, to clarify
an ambiguity, or where there is a net gain in conservation value. All expenses of
all parties in considering and/or implementing an amendment shall be borne by
the persons or entity seeking the amendment. Any amendment shall be
consistent with the purposes of this Conservation Restriction, shall not affect its
perpetual duration, shall be approved by the Secretary of Energy and
Environmental Affairs and the Town of Nantucket, and if applicable, shall comply
with the provisions of Art. 97 of the Amendments to the Massachusetts
Constitution, and any gift, grant or funding requirements. Any amendment shall
be filed for registration at the Nantucket Registry District of the Land Court and
noted upon the Certificate of Title for the Premises.
U. Controlling Law The interpretation and performance of this Conservation
Restriction shall be governed by the laws of the Commonwealth of
Massachusetts.
V. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Restriction shall be liberally construed in favor
of the grant to effect the purpose of this Conservation Restriction and the policy
14
Conservation Restriction
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
1
un. V I VW r l9. 1 VY
and purposes of Massachusetts General Laws Chapter 184, Sections 31-33. If
any provision in this instrument is found to be ambiguous, any interpretation
consistent with the purpose of this Conservation Restriction that would render the
provision valid shall be favored over any interpretation that would render it
invalid.
W. Recordation. The Grantee shall record this instrument in timely fashion
at the Nantucket Registry District of the Land Court and noted upon the
Certificate of Title for the Premises.
X. Entire Agreement. This instrument sets forth the entire agreement of
the parties with respect to this Conservation Restriction and supersedes all prior
discussions, negotiations, understandings or agreements relating to the
Conservation Restriction, all of which are merged herein.
Y. Pre-Existing Public Rights. Approval of this Conservation Restriction
pursuant to M.G.L. Chapter 184, Section 32 by any municipal officials and by the
Secretary of Energy and Environmental Affairs is not to be construed as
representing the existence or non-existence of any pre-existing rights of the
public, if any, in and to the Premises, and any such pre-existing rights of the
public, if any, are not affected by the granting of this Conservation Restriction.
15
Conservation Restriction
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
tSK: u l ouu vg: 'l uo
The foregoing Conservation Restriction is hereby executed by the
undersigned, as a sealed instrument under Massachusetts law.
Executed and sealed on -Xone. � � , 2015.
Sachems Path LLC .:
By:
Officers Name: Mc' .\ we•
• VQ 4:11.0',"5 -4- ,rye_
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
siA
On this 11 day of o1`A''`-�� , 2015, before me, the undersigned notary public,
personally appeared M,cJae/S0,61,q proved to me through satisfactory
evidence of identification, which C('as PuAw on ctiici -Ceriou.ni , to be the person
whose name is signed on the preceding or attached document, and
acknowledged to me that he signed itvoluntarily for its st- -d .urpose.
/0"._L s_
otary P :lic
My Commission Expires: mV ! 02 .02•O
OLMA MARIE JOHNSON
`" Notary PubJJc
Commonw,altt► of Massachusetts
My Commission Expires
May 1, 2020
16
Conservation Restriction
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
tsK: urt out; rg: I uo
ACCEPTANCE OF GIFT BY THE NANTUCKET LAND COUNCIL, INC.
The gift of the above Conservation Restriction from Sachems Path LLC is hereby
accepted this day of , 2015.
Nan• ck:land Co n ' nc./
'O.."' 41
0 icer'sVme Officer's Name
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this l'4 day of Jw/ , 2015, before me, the undersigned notary public,
personally appeared iy tac��o..L 5 file -�c�i_ T1- ►1-iproved to me through
satisfactory evidence of identification, which were owe s v &E , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
(Print Name) Notary Public
My Commission Expires:
EMILY HUDSON
ket240004004
rrs
vnission bores
October fit.2019
17
Conservation Restriction
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
on. v I wv ry. iv/
APPROVAL BY BOARD OF SELECTMEN OF THE TOWN OF NANTUCKET
We, the undersigned members of the Board of Selectmen of the Town of
Nantucket, Massachusetts, hereby certify that at a meeting held on
A.LI g , 2015, the Board of Selectmen voted to approve
the fofegog Grant of Conservation Restriction by Sachems Path LLC to the
Nantucket Land Council, Inc., pursuant to Massachusetts General Laws, Chapter
184, Section 32, as being in the public interest.
Board of Selectmen of the
Town of Nantucket
afr
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss. {���1 g , 2015
On this 8rn day of `0H , 2015, before me, the undersigned
notary public, personally appeared
p4 r,tebn hitt F3z
c2 L4fLc. *►- INA")n 1dsa
proved to me through satisfactory evidence of identification, which were
50CV. 160 tACo{g.( , to be the person(s) whose name is
signed on the preceding document, and acknowledged to me that he/she signed
it voluntarily for its stated purpose, as a member of the Board of Selectmen for ,,.,...
r.y� '
the Town of Nantucket. ;off:. .
•
Notary '"jlblic , •
My Commission Expires: . to
ERIKA DAVIDSON
18Notary Public
I COMMiONW ALTH Cr M4L48ACHlETTB
My Commission Exptres
Conservation Restriction 1 t4ovember 17,X17
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
Bk: 01500 Pg: 105
APPROVAL BY
SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS,
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the
Commonwealth of Massachusetts, hereby certifies that the foregoing Grant of
Conservation Restriction by Sachems Path LLC to the Nantucket Land Council,
Inc. has been approved in the public interest pursuant to Massachusetts General
Laws, Chapter 184, Section 32. Said approval is not to be construed as
representing the existence or non-existence of any pre-existing rights of the
public, if any, in and to the Premises, and any such pre-existing rights of the
public, if any, are not affected • they ntin. • h': onservation Restriction.
tot � � w
Dat Se r- of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
5. \\‘-- , ss.
On this (D day of . svS+ , 2015, before me, the undersigned notary public,
personally appeared , proved to me
through satisfactory evidence of identification, which wereSa- A\
to be the person whose name is signed on the preceding attached document,
and acknowledged to me that (he)(she) signed it voluntarily for its stated
purpose.
(Print(fName) Notary Public
My Commission Expires: CAId° 12021
•.s1 Air �� . • ••••1 it
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"-
• \ G''-o . �' C.WW1rY lira
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1.11 armK�►°"
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19
Conservation Restriction
Sachems Path LLC to
Nantucket Land Council
Surfside Rd
on. vivvv ry. Iva
ACKNOWLEDGEMENT BY
THE MA DIVISION OF FISHERIES AND WILDLIFE
This grant of Conservation Restriction $et forth above to the Nantucket
Land Council, Inc. is acknowledged this 2(pday of 4-- , 201 5.
The MA Division of Fisheries and Wildlife (DFW) acknowledg s the reserved
rights and oblig.tions of the Division set forth herein,
41
. iiii, ______
,c.k -f , Director.d
r t ete: At�3(,c.s4- 7/Col 20 k-5
•-, COMMONWEALTH OF MASSACHUSETTS
N0r.c.GS -1 , ss.
•On this7- day of , 2015, before me, the undersigned notary public,
personally appeared a _ x..4c/Lt../L1 , proved to me
through satisfactory evidence of identification, which were -‘1M"-•51-J241-%9,_
to be the person whose name is signed on the preceding d attached document,
and acknowledged to me that (he)(she) signed it voluntarily for its stated
purpose,
40) ., •l - ( / L
(Print Name) Notary Public
My Commission Expires: 7& AMANDA C. VEINOTTE 1
a,0 Nc wy ublic
7M OfPHARAC�TTB'
My Ccirtirrission Esairss `
Ouobw 9,ZDti
20
Conservation Restriction
Nantucket Housing Authority to
Nantucket Land Council
Suriside Rd
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CONSERVATION RESTCflQH PLAN WW1 Ws-
N OY 14M
SACHLYS PATOPARCEL
XASSICSUSd77S
EXHIBIT E
Town and County of Nantucket, MA July 22, 2019
Parcel 695
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Property Information
Property ID 67 695 _`..,'„------.„<,
��r
Location SURFSIDE RD -
Owner HERRICK TYLER W ETAL TR �oFj y�
�CgAS.,
�r.;
MAP FOR REFERENCE ONLY
NOT A LEGAL DOCUMENT
Town and County of Nantucket,MA makes no claims and no
warranties,expressed or implied,concerning the validity or
accuracy of the GIS data presented on this map.
Geometry updated 11/13/2018
Data updated 11119/2018
Map Theme Legends
Natural Resource Protection
NHESP Certified Vernal Pools
NHESP Potential Vernal Pools
Q
NHESP Priority Habitats of Rare
Species
NHESP Estimated Habitats of
Rare Wildlife
0
Areas of Critical Environmental
Concern
179
Massachusetts DCR,Natural Heritage and
Endangered Species Program
EXHIBIT 2
COMMONWEALTH OF MASSACHUSETTS
HOUSING APPEALS COMMITTEE
)
SURFSIDE CROSSING,LLC, )
)
Appellant, )
v ) Docket No.2019-07
)
NANTUCKET BOARD OF APPEALS, )
)
Appellee. )
)
NANTUCKET LAND COUNCIL'S MOTION TO INTERVENE
Nantucket Land Council, Inc. ("NLC"),which has preserved over 1400 acres of wildlife
habitat on Nantucket over the past forty-five years, hereby moves to intervene in this
administrative proceeding under 760 CMR 56.06(2)(b).The proposed intervenor actively
participated in the public hearing process,retained counsel and experts to present evidence of the
project's impacts to its conservation properties,and successfully prevailed on the Board to
impose conditions to protect those legal interests. Because the Appellant Surfside Crossing,LLC
("Developer")now seeks to strip those protections from the comprehensive permit,NLC would
be substantially and specifically affected by the outcome of this proceeding.
Separately,NLC has appealed the same comprehensive permit to Superior Court in
Nantucket Land Council,Inc.,et al.v.Surfside Crossing, LLC,et al., No. 1975CV00025
(Nantucket Super. Ct.),in which the Developer and Appellee Nantucket Board of Appeals
("Board"), are both parties("Superior Court Action"). A copy of NLC's Superior Court
Complaint is attached as Exhibit A. The Developer's filing of this matter automatically stays
NLC's Superior Court Action) In addition to the two appeals involving this comprehensive
permit, there is another administrative appeal involving endangered species and priority habitat
on the project site pending in the Massachusetts Department of Fish and Game, In the Matter of
Take Determination for Surfside Crossing,Dkt. No. 2018-02-RL("NHESP Appeal"). The
hearing in that matter is scheduled for August 6, 2019.
Background
Founded in 1974 as a non-profit conservation organization to protect endangered species
and habitat, NLC holds some 85 conservation restrictions on Nantucket encompassing over 1400
acres,one of which was established as mitigation for residential development on land adjacent to
this project that was part of a different c.40B development called Sachem's Path. (Affidavit of
Emily Molden,9i 4, 14-15)NLC's core mission for the past four and a half decades has been to
preserve wildlife habitat and protect endangered species by creating habitat corridors that link its
conservation lands and those of similar organizations. (Molden Aff.1f. 4-8) It accomplishes this
mission through scientific research,public education, and the acquisition of conservation land on
Nantucket for environmental protection. (Id.)
During the permitting of this Project, NLC appealed the"Take Determination" made by
the Natural Heritage and Endangered Species Program ("NHESP"), arguing that in addition to a
certain moth (Coastal Heathland Cutworm),the project would also impact the endangered
Northern Long-eared Bat. Nantucket provides critical breeding habitat for this particular species
of bat because a disease(White-nose Syndrome) that has decimated its populations on the
mainland is not present on Nantucket.
t/Taylor v. Bd.of Appeals of Lexington,451 Mass.270,272 n.4(2008)("[W)e henceforth require that,once an
applicant for a comprehensive permit appeals from a board's decision to the housing appeals committee(HAC)
under G.L.c.40B,§22,any appeal pursuant to G.L.c.40B,§21,be automatically stayed pending the outcome of
the appeal to the HAC.").
2
negotiating the acquisition of a conservation restriction on this parcel.Attached as Exhibit B to
the Molden Affidavit is a color map showing the parcels of land in the vicinity of the project site
that are either under a conservation restriction or soon will be,and which form a habitat
continuum in the area of the project. Specifically, the map shows the project site(yellow);open
space owned by the Nantucket Island Land Bank(green); Nantucket Conservation Foundation
Land (Blue); Nantucket State Forest Land (purple); the Camp Richards parcels(red);and the
Sachems Path parcel (NLC CR) (dark blue). These parcels together form an almost continuous
swath of largely undeveloped and protected pitch pine habitat. While the area immediately to the
south of the site,between it and the NILB lands,is not formally protected,it is developed at a
very low density and essentially it functions as part of the continuous ecosystem.
The Department of Fish and Game hearing officer agreed that the unique history and
"focus of activities of the NLC"supported a conclusion that"the Division's Take Determination
has a disproportionate impact upon that mission as compared to the general public."(4/24/19
Recommended Final Decision, NHESP Appeal,at p.39). Critical to the hearing officer's
conclusion that the NLC had standing was his finding that NLC was unique in its"substantial
investment in state-listed species protection within the habitat continuum in the immediate area
of the project site."(Id.,pp.42-43).
The Nantucket Zoning Board recognized the existence of"rare species habitat issues at
the Site and a resulting dispute over the accuracy of information the[Developer] provided to the
Natural Heritage Endangered Species Program." (6/14/19 Comprehensive Permit,at p.5)
Recognizing that this project could vitiate NLC's long-standing investment in environmental
conservation—including to preserve adjacent land—the Board conditioned its comprehensive
permit on the resolution of the NHESP Appeal: "No site disturbance shall be permitted pursuant
4
to this Decision until the Nantucket Land Council's currently pending administrative appeal of
the NHESP determination for the Site is fully and finally resolved, including exhaustion of court
appeals."(6/14/19 Comprehensive Permit,condition 75,at pp.22-23)Developer's Initial
Pleading contests this condition as"uneconomic" and"unequal treatment",which it claims
violates c.40B.(7/3/19 Initial Pleading,para. 98, at p. [unnumbered]).
Statement of Reasons
NLC has a direct,material interest in the outcome of this administrative proceeding
because it successfully argued for a condition to protect its legal interests that was adopted by the
Board as part of the comprehensive permit and which is now being contested by Developer in
this forum. Parties may intervene at HAC if"substantially and specifically affected by the
proceedings."760 CMR§56.06(2)(b)As an initial matter,NLC has already been substantially
and specifically affected because their lawsuit in the c.40A appeal involving the same
comprehensive permit has been stayed indefinitely pending resolution of this administrative
proceeding. In addition to NLC's Superior Court Action, it has already expended substantial
resources in the NHESP Appeal that is going to trial in just two weeks.Developer's effort in this
forum to de-couple the comprehensive permit from the NHESP Appeal would undermine NLC's
position in the other administrative matter,substantially and specifically affecting its rights.
Concerning the intervention standards contained in the Committee's regulations,NLC's
intervention responds directly to the issue of"consistency with local needs,"as Condition 75
specifically prohibits any"site disturbance"until the NHESP Appeal is finally resolved.
Conditions 97(h)and (i)require the Developer to identify all areas proposed for vegetation
clearing,and to minimize the extent of tree removal. Any modification of these conditions
would significantly affect the NLC's interests, as trees on the project site are likely habitat for
5
•
the rare bats that are at issue in the NHESP Appeal.(4/24/19 Recommended Final Decision,
NHESP Appeal,at pp.36-37,41-42,citing Affidavit of Danielle O'Dell). Further, and more
broadly, the NLC's interests are also affected by the numerous zoning dimensional
nonconformities proposed in the Developer's 156-unit plan. Under that plan,the project site
would be virtually clear-cut,eliminating any habitat for protected wildlife on the site. Even the
60 units permitted by the Board will require significantly more habitat alteration than would be
necessary for a development that conforms to the Zoning Bylaws(Malden Aff.,1123).
Finally,with the Superior Court Action stayed,the only opportunity for a possible global
resolution of this matter involving all parties would be to allow intervention so that NLC may
participate in any mediation or discussion of settlement.Absent intervenor status,NLC could not
be bound by any negotiated resolution of this matter in this forum.Because the outcome of this
matter would be substantially and specifically affected by this proceeding,NLC should be
allowed to intervene.
Conclusion
WHEREFORE,NLC respectfully moves to intervene in this administrative proceeding.If
this Motion is denied, the NLC,while preserving is rights,respectfully requests to participate as
"Interested Persons"to the fullest extent allowed by law,760 CMR 56.06(2)(C).
Proposed Intervenors
Byth • a •
rif41111M
Daniel C.Hill(BBO#644885,
Dennis A.Murphy(BBO #645 68)
HILL LAW
6 Beacon Street,Suite 600
Boston, MA 02108
• (617)494.8300
dhill(@danhilllaw.com
dgusmurphv(&gmail.com
6
CERTIFICATE OF SERVICE
I certify that I served a copy this document on t• -. r parties by .mailing a copy to all
counsel of record on this 23 day of July,2019.
Daniel C.Hill(BBO#644885)
Dennis A.Murphy(BBO#645168)
July 23,2019
7
EXHIBIT A
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss. SUPERIOR COURT
DEPARTMENT
OF THE TRIAL COURT
C.A. NO.
NANTUCKET LAND COUNCIL, INC. )
)
and )
)
TWELVE PERSONS DOMICILED IN THE )
COMMONWEALTH OF )
MASSACHUSETTS )
)
)
Plaintiffs )
)
v. )
)
)
TOWN OF NANTUCKET ZONING BOARD )
OF APPEALS, et al., )
)
and )
)
SURFSIDE CROSSING, LLC, )
)
Defendants )
)
COMPLAINT
Brought pursuant to
M.G.L. c. 40A, §17
and
M.G.L. c. 214, §7A
Introduction
This is an action pursuant to M.G.L. c. 40A, §17, which seeks to annul a decision by the
Zoning Board of Appeals of the Town of Nantucket, Massachusetts("Board") filed with the
Town Clerk on June 14, 2019 ("Decision"). The Decision grants a comprehensive permit,
superseding local zoning requirements, pursuant to M.G.L. c.40B, §§20-23 to defendant
Surfside Crossing, LLC, to allow construction of a 60 dwelling unit project (the"Project").
A certified copy of the Decision is attached hereto as Exhibit A.
The plaintiffs also seek an injunction, pursuant to M.G.L. c. 214, §7A,to enjoin harm to
the environment pursuant to Chapter 214, §7A, which requires a pre-suit notice be sent at
least 21 days prior to filing a complaint, absent an emergency, but Chapter 40A, §17 requires
that an appeal from a decision of a Zoning Board of Appeal be brought within 20 days of the
filing of the decision. Thus, in order to preserve their right to bring a §7A claim arising out
of the Decision, the plaintiffs must plead their §7A claim before completing the 21-day pre-
suit notice period. The Superior Court has exclusive jurisdiction over claims sounding in
M.G.L. c. 214, §7A.
Jurisdiction
M.G.L. c. 40A, §17 confers jurisdiction in this Court over the subject matter of Count I of
this action. M.G.L. c. 214, §7A confers exclusive jurisdiction in this Court over claims filed
pursuant to that statute.
The Parties
1. The Nantucket Land Council, Inc. ("NLC") is a duly constituted non-profit
Massachusetts corporation with recognition by the IRS as a 501(c)(3)organization.
2. The NLC has approximately 1500 members, assets of approximately $30,500,000 and an
annual budget of approximately $750,000.
3. The NLC mission statement is as follows: "The NLC is a 501(c)(3)non-profit dedicated
to protecting Nantucket's natural world and rural character by holding and enforcing
2
conservation restrictions, commissioning scientific research, monitoring development
proposals, engaging in legal proceedings to protect natural resources, and educating the
public on local environmental issues."
4. The NLC was founded in 1974 with the sole purpose to protect the environment of the
Island of Nantucket and environs.
5. Since its founding, the NLC has engaged in extensive title work, acquisitions projects,
and litigation involving title and land use, by itself and in conjunction with other public
and private island groups.
6. The NLC owns and manages critical conservation land, primarily by acquiring and
holding non-fee interests, to protect open space and indigenous and endangered species
and habitats, and it engages in scientific research and public education projects on
environmental issues.
7. The NLC currently holds over 85 conservation restrictions ("CRs") on over 1400 acres in
Nantucket County, and it has facilitated the acquisition of many more CRs and fee
purchases by the Nantucket Islands Land Bank(the "NILB") and the Nantucket
Conservation Foundation (the "NCF").
8. Many of the CRs held or facilitated by the NLC were obtained specifically to protect
listed endangered species and habitat, including CRs in the vicinity of the site.
9. The Nantucket Land Council, Inc. is a person aggrieved by the Board of Appeals'
Decision.
10. The list of plaintiffs enumerated below are all natural persons domiciled in the
Commonwealth of Massachusetts:
Lucy S.Dillon
37 Liberty Street
Nantucket MA 02554
3
Susan E. Robinson
144 Orange Street Apt. 302
Nantucket, MA 02554
William Willet
6 Monomoy Creek Road
Nantucket, MA 02554
Kathryn K. Pochman
4 Catherine Lane
Nantucket, MA 02554
Catherine Raphael
26 Miacomet Road
Nantucket, MA 02554
Linda S. Holland
29 Broadway
Siasconset, MA 02564
Joshua L. Eldridge
2 Mikes Drive
Nantucket, MA 02554
Carl J. Sjolund
1 New Hummock Circle
Nantucket, MA 02554
Carol Muehling
21 Okorwaw Ave
Nantucket, MA 02554
Patrick Taaffe
21 Okorwaw Ave
Nantucket, MA 02554
Caren Oberg Gomes
4A Folger Avenue
Nantucket, MA 02554
Bruce Robert Mandel
10 Midland Avenue
Nantucket, MA 02554
4
11. The Defendant Nantucket Zoning Board of Appeals (the"Board") is a duly-constituted
municipal board within a political subdivision of the Commonwealth of Massachusetts,
with a regular place of business located at Town Hall, 37 Washington Street,Nantucket,
Massachusetts, 02554.
12. The Defendant Surfside Crossing, LLC (the "Developer") is,upon information and
belief, a Massachusetts Limited Liability Company with a regular place of business at 37
Old South Road,Nantucket Massachusetts, 02554.
13. The Defendant Edward Toole is a member(and Chair) of the Zoning Board of Appeals
and upon information and belief he resides at 28 Burnell Street, Siasconset,Nantucket,
MA 02564
14. The Defendant Susan McCarthy is a member of the Zoning Board of Appeals and upon
information and belief she resides at 26 Goldfinch Drive,Nantucket, MA 02554
15. The Defendant Lisa Botticelli is a member of the Zoning Board of Appeals and upon
information and belief she resides at 24 Pine Street,Nantucket,MA 02554
16. The Defendant Geoffrey Thayer is a member of the Zoning Board of Appeals and upon
information and belief he resides at 5 Doc Ryder Drive,Nantucket,MA 02554-,
Nantucket, Massachusetts.
17. The Defendant James Mondani is a member of the Zoning Board of Appeals and upon
information and belief he resides at 9 Appleton Road, Nantucket, MA 02554.
Proiect and Decision
18. The Plaintiffs incorporate by reference herein the allegations contained within paragraphs
1-17, above.
5
19. The location of the Project is 3,5,7 and 9 South Shore Road,Nantucket, Massachusetts,
shown as Parcels 336, 336.9, 336.8 and 336.7 of the Nantucket Assessors Map 67(the
"Project Site").
20. The Project Site lies within a mapped Water Resource Protection District(MassDEP
Zone II).
21. The Island of Nantucket has been designated by the United States Environmental
Protection Agency as a"sole source" aquifer.
22. The Board issued a comprehensive permit under M.G.L. c.40B, §§20-23, which permit
approved the development of 60 dwelling units and accessory structures.
23. Pursuant to the Rules and Regulations of the Nantucket Zoning Bylaw, but for the
comprehensive permit issued under M.G.L. c.40B, §§20-23, the Project Site would be
approvable for no more than fourteen single family homes.
24. The Board purported to grant waivers from various provisions of Nantucket's Zoning
Bylaw and related rules and regulations governing the development of land on Nantucket
including those relating to the Nantucket Historic District Commission, and the
regulations of the Nantucket Board of Health.
25. The Board failed to require the Developer to identify project impacts upon state listed
endangered species on and abutting the Project Site.
286. The Board failed to require the Developer to demonstrate that the Project was not
economically feasible at a lower density, that would not require the grant of such
extensive waivers.
26. The proposed project site is habitat for the Northern Long Eared Bat("NLEB"), a listed
species under the Massachusetts Endangered Species Act (the"Act").
6
27. In addition, the state listed vascular plants New England Blazing Star(Liatris novae-
angliae) and Sandplain Blue-eyed Grass (Sisyrinchium fuscatum),both protected under
the Act, are supported by the habitat on the project site.
COUNT I - G.L. c. 40A, §17
28. The Plaintiffs incorporate by reference herein the allegations contained within paragraphs
1-27, above.
29. The Board approved the Project without requiring an analysis of the Project's impacts
upon groundwater quality. Such approval was arbitrary and capricious; ultra vires; an
abuse of discretion, and an error of law.
30. The Board approved the Project without requiring an analysis of the Project's impacts
upon known rare and endangered species on and abutting the Project Site. This was
arbitrary, capricious, an abuse of discretion, and an error of law, and the decision exceeds
the authority of the Board.
31. The Board purported to "waive" requirements of the Zoning Bylaw, among other
provisions of lawfully adopted rules and regulations, without first making necessary
findings for or the necessity of such waivers. Such actions were thus ultra vires,
arbitrary, capricious, errors of law, and abuses of discretion.
32. The Board concluded that the Developer's possession of a"Project Eligibility Letter"was
sufficient evidence that the Developer had "site control" and constituted a valid subsidy
as required by G.L. c.40B, §§20-23. Such a conclusion without evidentiary support was
thus ultra vires, arbitrary, capricious, an error of law, and an abuse of discretion.
7
COUNT II—M.G.L. c. 214, s.7A-DAMAGE TO THE ENVIRONMENT
33. Plaintiffs incorporate by reference herein the allegations contained within paragraphs 1
through 32, above.
34. The action of the Board in issuing a comprehensive permit, allowing the construction of
the Project, will cause damage to the environment, as a result of violations of local and
state statutes, bylaws and regulations, the purpose of which is to prevent or minimize
damage to the environment, including but not limited to:
1. M.G.L. c. 21A, §13 (Title V,the State Sanitary Code)) and state and local
regulations and by-laws implementing and enforcing the same;
2. The Massachusetts Endangered Species Act, (M.G.L. c. 13IA), and the
regulations promulgated in conjunction therewith;
3. The Safe Drinking Water Act, 42 U.S.C. Subchapter XII; and
4. Massachusetts Department of Environmental Protection Regulations regarding
sewer connections, including but not limited to 314 CMR 7.05(c)(1) & 12.04,
314 CMR 12.04, and 314 CMR 7.05(c)(1).
35. Pursuant to M.G.L. c. 214, §7A, "damage to the environment" includes, among other
matters, water pollution, improper sewage disposal, and improper or inadequate waste
or stormwater disposal.
36. The Town and County of Nantucket is a sole source aquifer, and improper or
inadequate sewage and/or waste or stormwater disposal and pollution has severe public
health consequences.
37. As the Board noted in its Decision, the Town's water department is operating under an
expired water withdrawal permit, and has requested but not yet received permission
from the Massachusetts Department of Environmental Protection to increase its water
withdrawals to serve additional residential development on the Island.
8
38. The Town and County of Nantucket has limited sewage disposal capacity and limited
public water supplies, and the Project will overburden these services,with severe public
health consequences.
[balance of page intentionally blank]
9
WHEREFORE,the Plaintiffs request that this Court:
1. Find that the Board's Decision was issued in error on any or all of the above
grounds;
2. Annul the Board's Decision;
3. Issue a temporary and permanent injunction to prevent harm to the environment;
and
4. Grant any such other relief deemed proper by the Court.
Plaintiffs, the Nantucket Land Council,Inc.,
et al.
by their attorneys,
Peter Fenn, BBO# 162720
PETER R. FENN&ASSOCIATES
53 Milk Street
Westwood, MA 02090
617/522-9292
cell: 617/529-3111
fax: 617 522-4120
email: peterfenn 1(mac.com
Dated: July 2, 2019
10
EXHIBIT B
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
DEPARTMENT OF FISH AND GAME
)
In the Matter of )
)
Take Determination for ) Docket No. 2018-02-RL
Surfside Crossing )
NHESP File No. 12-31035 )
)
Nantucket, MA )
)
RECOMMENDED FINAL DECISION
DISMISSING PETITIONERS' CLAIM THAT DIVISION
ERRED BY NOT DETERMINING WHETHER THE PROJECT
WILL RESULT IN A TAKE OF THE NEW ENGLAND BLAZING STAR
AND
DISMISSING NANTUCKET SELECT BOARD AND
THIRTEEN RESIDENTS FOR LACK OF STANDING
AND
RULINGS DENYING MOTIONS TO DISMISS
NANTUCKET LAND COUNCIL FOR LACK OF STANDING
OR FOR REASONS OF JUSTICIABILITY
AND
RELATED ORDER FOR ADJUDICATION OF
NANTUCKET LAND COUNCIL'S APPEAL
Summary
This appeal involves challenges by the Nantucket Select Board("Select Board"),
the Nantucket Land Council,Inc. ("NLC") and thirteen(13) individual petitioners who
are residents of Nantucket("Individual Petitioners"or"13 residents")to a October 19,
2018 determination by the Division of Fisheries and Wildlife (the"Division") that a
project proposed by the Proponent, Surfside Crossing LLC ("Surfside Crossing") of sixty
2
(60) single-family homes, ninety-six (96)condominium units,roadways and associated
site work on a 13.5 acre property in Nantucket, MA (the"Project")will result in a
prohibited Take of the Coastal Heathland Cutworm,a moth that is listed as a species of
special concern for protection by the Division under M.G.L. c. 131A,the Massachusetts
Endangered Species Act("MESA"), and 321 CMR 10.00 (the"MESA Regulations")(the
"Division's Take Determination").
The appeals filed by the above Petitioners on November 8, 2018 claim that the
Division's Take Determination was issued in error because the Division ignored credible
evidence proffered by the Select Board and the NLC that Surfside Crossing's Project will
also impact at least two other state-listed species,the endangered Northern Long-eared
Bat and the New England Blazing Star, a species of special concern. The Division and
Surfside Crossing subsequently filed separate Motions to Dismiss the appeals for lack of
standing, and with respect to certain claims, for reasons of justiciability. The Petitioners
filed written Oppositions to the Motions to Dismiss.
For the reasons stated herein, I am issuing a Recommended Final Decision that
grants the Division and Surfside Crossing's respective Motions to Dismiss(1)the
Petitioners' claim that the Division erred by not determining whether the Project will
result in a Take of the New England Blazing Star(Section III); and (2)the appeals of the
Select Board and the 13 residents for lack of standing(Section IV.C. and D respectively).
However, I deny(1)the Division and Surfside Crossing's respective Motions to Dismiss
the NLC's appeal for lack of standing; and(2) Surfside Crossing's Motion to Dismiss the
NLC's appeal with respect to the NLEB for reasons of justiciability(both addressed in
Section IV.E.).
3
Finally, Section V. sets forth the single issue for adjudication in the NLC's appeal
and orders the remaining parties (Surfside Crossing,the Division and the NLC)to jointly
propose a schedule for adjudication of that issue.
II. Factual Background and Procedural History
Under MESA and the MESA Regulations,the Division has the authority and duty
to identify and list those animals and plants in Massachusetts that the Division determines
to be endangered,threatened or species of special concern, and to protect and conserve
such state-listed species. Pursuant to 321 CMR 10.12,the Division has delineated the
geographic extent of habitat for state-listed species ("Priority Habitat")within the
Commonwealth, as shown in the Division's Natural Heritage Atlas, effective August 1,
2017. 321 CMR 10.18 requires any project or activity proposed to take place in Priority
Habitat to be reviewed by the Division to determine if it will cause a Take' of a state-
listed species.
In September 2018, Surfside Crossing submitted a MESA Project Review
Application to the Division for the Project proposed to occur on property that is mapped
as Priority Habitat for seven(7) state-listed moth and butterfly species(Lepidoptera). See
Division Motion to Dismiss at 1 and Attachment 1; Surfside Crossing Motion to Dismiss
at 2. The MESA Regulations at 321 CMR 10.13(3) allow a property owner to undertake
a voluntary assessment to determine if state-listed threatened species or state-listed
species of special concern are present on their property,provided that the protocols for
such assessment are pre-approved in writing by the Division. Surveys for the presence of
' "Take"is broadly defined in 321 CMR 10.02 to include,but is not limited to,the killing or harming of
animals as well as the disruption of their nesting,breeding,feeding or migratory activity,and the killing,
collection,picking of plants.
4
state-listed Lepidopeta species were conducted by a Division-approved biologist on the
Project site in 2016 and 2018 and documented the presence of two state-listed species of
special concern, the Coastal Heathland Cutworm and the Northern Brocade Moth
respectively. Division Prehearing Statement at 1-2. By letter to the Division dated
September 27,2018, the Select Board submitted a report by Avalon Consulting Group
("Avalon")that concluded that the Project site also "likely provides high quality habitat"
for the Northern Long-eared Bat("NLEB"), an endangered state-listed species,and that
"the deer trails and open spots within these habitat types could host populations" of the
New England Blazing Star, a state-listed plant species of special concern. Consolidated
Opposition of Select Board, Town Counsel Affidavit ¶ 19 and referenced Exhibits. The
Select Board's September 27, 2018 letter requested the Division to review the
information provided by Avalon and reevaluate its initial determination regarding the
state-listed species present on the Project site. Id.
By email dated October 2, 2019,the Division responded to the Select Board that
the above information did not meet the criteria for delineating the Project site as Priority
Habitat for the additional state-listed species identified by the Select Board. Attachment
2 to the Division Prehearing Statement. Regarding the NLEB,the Division noted that
consistent with the rule promulgated by the U.S. Fish and Wildlife Service("USFWS")
pursuant to section 4(d) of the federal Endangered Species Act("ESA"),the Division
reviews projects within .25 mi. of the NLEB's known winter hibemacula(i.e., caves or
mines) and within 150 ft. of known roost trees. Because the Division has no record of
verified observations of NLEB roosting within 150 ft. or no known caves or mines within
.25 mi of the Project site, the Division determined that the property does not meet the
5
criteria under 322 CMR 10.13 for delineating it as Priority Habitat for the NLEB.
Therefore,the Division stated, it cannot review the Project to determine whether it will
cause a take of the NLEB or require Surfside Crossing to conduct a study for the presence
of the NLEB. Regarding the New England Blazing Star,the Division noted that the plant
was recently observed immediately north of the Project site within existing sandplain
grassland/heathland habitat and also observed during the surveys performed at the request
of the Division -but only in this type of habitat. The Division determined that based on
habitat mapping of Nantucket by The Nature Conservancy and current aerial photos,the
Project site does not appear to provide suitable habitat for the New England Blazing Star.
The Division concluded that because the Project site does not meet the criteria for
mapping it as Priority Habitat for the New England Blazing Star,the Division will not
review the Project to determine whether it would cause a Take of this state-listed species
of special concern. Id.
The Petitioners' appeals, both filed on November 8, 2018, assert that the
Division's Take Determination was issued in error because the Division ignored credible
evidence proffered by the Select Board and the NLC that Surfside Crossing's Project will
also impact the NLEB and the New England Blazing Star,but did not require the
Proponent to conduct additional surveys to determine their presence on the Project site.
Select Board Notice of Claim at 4; NLC and Individual Petitioners Notice of Claim at 10.
Accordingly,the Petitioners argue that the Division's Take Determination fails to protect
the interests of MESA and the MESA Regulations.
As the Presiding Officer for this appeal, I conducted a Prehearing Conference
("PHC") on January 24, 2019 with counsel for the Petitioners,the Division and Surfside
6
Crossing. The Division and Surfside Crossing both identified the standing of the
Petitioners as a threshold issue for adjudication. Prior to the PHC, on January 16,2019,
the Division filed a Motion to Dismiss the appeals of the Select Board and the NLC and
the 13 residents due to their lack of standing. I also granted a request by counsel for
Surfside Crossing to file its own motion to dismiss the appeals of these Petitioners for
lack of standing, which it did on January 28, 2019. At the PHC, I asked counsel for the
Division, Surfside Crossing and the Petitioners to each explain how they framed the
issue(s) in their respective Prehearing Statements.
The Division argued that the only issue for adjudication is whether it properly
applied its regulatory criteria under 321 CMR 10.13 with respect to the NLEB when it
made its Take Determination pursuant to 321 CMR 10.18 that the Project will only result
in a take of the Coastal Heathland Cutworm. The Division contended that because the
Project site is not mapped as Priority Habitat by Division for either the NLEB, a state-
listed endangered species, or the New England Blazing Star, a state-listed species of
special concern,the provisions of 321 CMR 10.13 govern whether and how the Division
may conduct a review of the impacts of the Project on these species. The Division
further stated that 321 CMR 10.13 provides that only projects in mapped Priority Habitat
are subject to review under 321 CMR 10.18,unless the Division(1)receives new
information on an occurrence of a state-listed endangered or threatened species; and(2)
determines that it meets the criteria for delineating Priority Habitat under 321 CMR
10.12. (Emphasis added.) The Division therefore argued that because the New England
Blazing Star is a special concern species,the MESA Regulations preclude the Division
from conducting a take review for this species on the project sifie- even if there is new
7
information of an occurrence of the New England Blazing Star that meets the criteria for
delineating Priority Habitat under 321 CMR 10.12 (which the Division disputes).
Consequently, in the Division's view,the only issue for adjudication is whether the
Division properly applied the criteria under 321 CMR 10.13 with respect to the NLEB
when it made its Take Determination.
Surfside Crossing essentially concurred with the Division but framed its
description of the issue(s) differently. Specifically, Surfside Crossing asserted that the
request by the Petitioners that the Division determine whether the Project will cause a
take of the New England Blazing Star asks the Division to, in effect, extend Priority
Habitat to that special concern species, which is prohibited by 321 CMR 10.13. Thus,
Surfside Crossing framed this issue as whether that component of the Petitioners appeal
is"justiciable" (i.e., a matter that the Presiding Officer may adjudicate),and argued that
the Petitioners are seeking remedies contrary to the MESA regulations. Surfside
Crossing's subsequent Motion to Dismiss argues more broadly that the MESA
Regulations do not afford the Petitioners the right to appeal the Division's Take
Determination for its failure to delineate the project site as Priority Habitat for the New
England Blazing Star or the NLEB under 321 CMR 10.13. Surfside Crossing Motion to
Dismiss at 10-14.
Regarding the NLEB, Surfside Crossing noted that even if the Project site were
mapped as Priority Habitat, it has voluntarily committed not to cut trees in June or July in
compliance with the federal 4(d)rule for the NLEB. The other issue identified by
Surfside Crossing in its Prehearing Statementis stated generally as whether the
Division's Take Determination was issued in accordance the MESA Regulations.
8
As described more specifically in the Prehearing Statement of the NLC and the 13
residents, Petitioners identified the same issue: whether the Division's Take
Determination, which concluded that the Project will cause a take of the Coastal
Heathland Cutworm but did not determine it will also cause a take of the NLEB and New
England Blazing Star,was in"derogation of the Division's legal obligation"under
MESA. See NLC Prehearing Statement at 1. I noted to counsel for both Petitioners that
I read the claims in their appeals more narrowly—i.e.,that the Division's failure to
require the additional surveys to determine whether the Project will also cause a Take of
the NLEB and the New England Blazing Star meant that the Division's Take
Determination was inadequately supported and did not meet the requirements of a Take
review under 321 CMR 10.18. The Petitioners responded that their position is that the
information they provided to the Division warranted additional surveys and shows that
the Project will cause a Take of these two state-listed species. Neither of the Petitioners
addressed the applicability of 321 CMR 10.13 in their respective statement of the issue
for adjudication or at the PHC.
I thereafter issued the Prehearing Conference Report and Order on January 30,
2019, which established an agreed upon deadline of March 1,2019 for the Petitioners to
file their Oppositions to the Motions to Dismiss filed by the Division and Surfside
Crossing. The Prehearing Conference Report and Order also provided that within 14
days of my issuance of a ruling on the Motions to Dismiss by the Division and Surfside
Crossing that determines that all or some of the Petitioners have standing to appeal,the
parties shall submit a proposed joint schedule for adjudication, or separate proposed
schedules if the parties are unable to agreed. I subsequently granted separate requests by
9
the Select Board and the NLC for a short extension of time to file their Oppositions,
which they did on March 4, 2019. The 13 residents did not, however, file a separate
opposition.
On the question of the Petitioners' standing to appeal,the Division and Surfside
Crossing both assert in their Motions to Dismiss that the Select Board's sole contention to
support its claim to be an aggrieved person is that it"presented clear and compelling
information that [Surfside Crossing] failed to provide properly updated field survey and
data"to the Division. Division Motion to Dismiss at 12-13;Surfside Crossing Motion to
Dismiss at 7-8. Surfside Crossing also argues that the Select Board has very limited
powers and does not own any of the Project site in fee or any abutting properties.
Suffside Motion to Dismiss at 7. The Division states that the Select Board"seems to
argue aggrieved status because it was trying to protect interests guaranteed to its residents
and visitors under [MESA]." Division Motion to Dismiss at 12. The Division and
Surfside Crossing both emphasize that the Select Board's Notice of Claim fails to
demonstrate that it has suffered an injury that is different from the general public and
results from a duty owed to the Select Board by the Division. Division Motion to Dismiss
at 7; Surfside Crossing Motion to Dismiss at 8.
Similarly,the Division's Motion to Dismiss contends that no credible evidence
has been presented by the 13 residents2 to show that they are aggrieved. If being an
abutter does not automatically confer standing under the MESA Regulations,the Division
argues,then neither does being a resident of a town in which a project will occur.
Division's Motion to Dismiss at 8. Surfside Crossing states that the 13 residents should
2 The Notice of Claim(at 8)identifies them only as"year-round residents on the Island."
10
be dismissed because they failed to provide evidence of an injury that is different from
the general public. Surfside Crossing Motion to Dismiss at 8.
The Division and Surfside Crossing contend that NLC's core purpose and
activities as an organization are not to protect MESA state-listed species,but to more
generally preserve and protect the environment by limiting development on Nantucket.
See Division's Motion to Dismiss at 8-I1; Surfside Crossing Motion to Dismiss at 8-10.
The Division and Surfside Crossing therefore argue that the NLC's appeal fails to show
that it has a definite interest in the matters that fall within the scope of interests or areas
of concern of MESA, or that the NLC has suffered an injury that is different from the
public. Surfside Crossing instead characterizes the NLC's interest in this matter as
seeking to ensure that MESA is properly applied and enforced with respect to the Project,
which Surfside Crossing argues does not,however, establish NLC's standing. Surfside
Crossing Motion to Dismiss at 10.
In response to the Motions to Dismiss filed by the Division and Surfside,the
Oppositions of the Select Board and the NLC introduced supplemental evidence to
bolster their claims of standing, including through supporting affidavits.
The Select Board's Opposition argues that it has demonstrated a"unique and
substantial commitment"to the preservation of open space and wildlife habitat,including
state-listed species habitat, which are within the interests protected by MESA. Select
Board Opposition at 8-12 and Pucci Affidavit. Highlighting its efforts to provide timely
input to the Division by retaining at its own expense a consulting firm(Avalon) with
expertise in the MESA-related habitat and species particular to the Project site,the Select
Board argues that it will be"injured in its shared goals of MESA"if the deficiencies in
11
the Division's Take Determination are not remedied. Select Board Opposition at 9-12
and the Cardoza and O'Dell Affidavits cited therein. Dismissing its appeal for lack of
standing, the Select Board contends,would"eviscerate the goals of MESA"and be.
"contrary to sound public policy"which should seek to encourage local participation in
these type of MESA determinations. Select Board Opposition at 13-14.
The NLC's Opposition explains that it owns and manages critical conservation
land, primarily by acquiring and holding non-fee interests,to protect open space and
indigenous and endangered species and habitats. Collier Affidavit¶¶1, 4;NLC
Opposition at 6-8. The NLC attests more specifically that a large portion of the NLC's
acquisition of thousands of acres of critical habitat on Nantucket"have been specifically
designed to protect rare or endangered species and habitats, including globally rare and
endangered habitats." Collier Affidavit ¶ 7. The NLC cites its work in certifying the
majority of vernal pools on Nantucket,to allow them to be added to the Division's
Natural Heritage and Endangered Species Program("NHESP") database; expending
$15,000 on Lepidoptera studies specifically to improve the NHESP database; performing
Element Occurrence("EO")surveys for NHESP for plants and animals; and working
with NHESP to protect significant endangered species habitat on Nantucket, including
west of the Project site. Collier Affidavit¶ 7. The NLC therefore argues that its core
interests as an organization are preservation of habitat and protection of endangered
species on Nantucket, which are interests"indisputably grounded in an area of concern of
the statutory or regulatory authority governing the Division's action." NLC Opposition at
8.
12
Moreover,the NLC's Opposition asserts that its interests will be directly impacted
and injured by the Division's Take Determination based on its investment of substantial
resources in projects that contribute to the protection of Nantucket's state-listed species
and habitats,particularly those found on the Project site. NLC Opposition at 9. Such
projects include working with NHESP and several conservation groups to protect vital
habitat in the areas surrounding the Project site. Collier Affidavit¶¶ 13-14, 16-17 and
the referenced Exhibits. The NLC identifies itself as the holder of a conservation
restriction("CR") on a nearby property, Sachem's Path,which is mapped in its entirety
as Priority Habitat for a number of state-listed species that include the New England
Blazing Star and four moths. Collier Affidavit ¶16 and Exhibit D. In addition,the NLC
has been appointed by NHESP to serve on a scientific advisory committee to monitor
land management activities as part of a MESA Conservation and Management Permit
that the Division issued for the property of the Nantucket Island Land Bank in the same
area. Id. The NLC is also in the process of acquiring a CR on a large parcel of land
containing state-listed species habitat approximately 100 yards from the Project site.
Collier Affidavit¶¶ 18-20 and Exhibit B.
The NLC argues that the areas protected through its efforts form a"habitat
continuum for protected species"in the area of the Project,which itself is a critical
section of this habitat continuum.3 Collier Affidavit¶¶ 19-20 and Exhibit B. Moreover,
through the supporting affidavit of Danielle O'Dell of Avalon,the NLC alleges that the
Project site is"very likely to support"the NLEB. For this reason,the NLC argues that it
has thereby presented credible evidence that the Division's Take Determination, which
3 In the NLC's Opposition's only reference to the 13 residents who are individual Petitioners,it states that
the abutting properties of several of these residents also function as part of this"continuous ecosystem."
Collier Affidavit at¶19 and Exhibit E.
13
was not based on a review of the Project's impacts on the NLEB,may result in harm to
this state-listed endangered species. NLC Opposition at 13-14; O'Dell Affidavit at 1113;
Collier Affidavit¶T 11-12, 15. Thus, the NLC contends, development of the Project site
and the associated Take of state-listed species will have a direct and deleterious impact to
the areas and species already protected by the NLC. Id at 21. The alleged resulting
Take will "vitiate NLC's investment"4 in the immediate area of the Project site, and this
harm is peculiar to the NLC due to its unique role in protecting the habitat continuum
within this area. Collier Affidavit¶¶ 13-20. For these reasons, the NLC argues that the
Division's Take Determination has a disproportionate impact on the NLC's core public
mission that constitutes a harm that is distinctly greater in kind and magnitude from the
harm to the interests of the general public. NLC Opposition at 12-13. Accordingly,the
NLC's Opposition concludes, it has demonstrated standing to appeal the Division's Take
Determination. Id. at 14.
Finally,the Oppositions of both Petitioners continue to argue that the presence of
the New England Blazing Star on nearby property and the existence of similar habitat on
the Project site required the Division to determine whether the Project will also cause a
Take of this state-listed species of special concern. See NLC Opposition at 10; Select
Board Opposition at 10. However,neither the Notices of Claim nor the Oppositions of
the Select Board or the NLC offers a response to the sharedposition of the Division and
Surfside Crossing that the MESA Regulations at 321 CMR 10.13(1)(a)expressly limits
the authority of the Division to consider new occurrence information on an endangered
The NLC describes its investment in these land protection efforts,through litigation,advocacy,and
acquisition of CRs,as totaling hundreds of thousands of dollars,and states further that the NLC and its
partners are poised to expend almost$1 million more to acquire a CR on neighboring property. Collier
Affidavit at¶21.
14
and threatened species, not a species of special concern. Consequently, I will begin my
adjudication of the Petitioners' appeals by addressing and ruling on this threshold issue of
justiciability in Section III below.
III. Dismissal of the Petitioners' claim that Division erred by not determining
whether the Project will result in a Take of the New England Blazing Star, a
Species of Special Concern
The Select Board and the NLC both claim that the Division's Take Determination
is deficient and violates MESA because it did not also determine that the Project will
result in a Take of the New England Blazing Star, a state-listed species of special
concern. However, there is no factual dispute that at the time of the Division's Take
Determination and presently,the Project site is not mapped as Priority Habitat for the
New England Blazing Star. The MESA Regulation applicable to such situations, 321
CMR 10.13(1), provides that projects that are not located in Priority Habitat for a state-
listed species shall not be subject to review by the Division pursuant to 321 CMR 10.18
to determine whether the project will cause a Take of that state-listed species, except in
the circumstances described in 321 CMR 10.13(1)(a) and(b). 321 CMR 10.13(1)(a),in
turn,provides in pertinent part that if the Division receives new information on a"State-
listed Endangered or Threatened species occurrence"relating to a site that is not located
in Priority Habitat, the Division may determine whether this new state-listed species
occurrence meets the criteria in 321 CMR 10.12 for delineating the site as Priority
Habitat and whether any proposed project at the site shall be reviewed under 321 CMR
10.18 to determine whether it will cause a Take. (Emphasis Added.) The Division and
Surfside Crossing therefore argue that the Division is precluded by 321 CMR 10.13(1)(a)
from providing the Petitioners with the remedy they seek—i.e.,to delineate the Project
15
site as Priority Habitat for the New England Blazing Star and then determine whether the
Project will cause a take of this species of special concern. See the Prehearing
Statements of Division and Surfside Crossing at5-6 and 3 respectively.
In effect,the Select Board and the NLC are claiming that any provision of the
MESA Regulation that prevents the Division from taking such action is invalid because it
is in"derogation of the Division's legal obligation"under the MESA statute. See NLC
Prehearing Statement at 1. In this way,the Petitioners' claim constitutes a facial
challenge to the substantive validity of 321 CMR 10.13(1)(a). However, as the Presiding
Officer for this appeal, I lack the subject matter jurisdiction to adjudicate the Petitioners'
claim. As affirmed in a previous MESA adjudicatory decision,it is well settled that the
substantive validity of a regulation may not be challenged in an adjudicatory proceeding.
See In the Matter of South Road, Lots 11 and 12, Hampden, MA, Decision on Motion of
Division of Fisheries and Wildlife to Dismiss Petitioner's Second Claim (May 19, 2009),
at 3-5, citing M.G.L. c. 30A, s.75; Ryan v. Kehoe, 408 Mass. 636(1990); Salisbury
Nursing& Rehabilitation Center, Inc. v. Division of Administrative Law Appeals, 448
Mass. 365 (2007);Rate Setting Commission v. Division of Hearings Officers, 401 Mass.
542 (1988); and Beth Israel Hospital Association v. Rate Setting Commission, 24
Mass.App.Ct. 495 (1987). Moreover,the SJC's ultimate decision in Pepin v. Division of
Fisheries and Wildlife, 467 Mass. 210 (2014)—which arose out of the same above
referenced MESA adjudicatory appeal—noted that a claim by Pepin in that proceeding
5 M.G.L.c.30A,s.7 makes clear that,unless otherwise provided by law,judicial review of any regulation
is through an action for declaratory relief under M.G.L.c.23 IA. Because MESA does not specify an
exclusive mode for judicial review of the MESA Regulations,any challenge to these regulations is by
seeking declaratory relief from a court,not through an adjudication by the Division.
16
directly challenging the validity of the Priority Habitat provisions in the Division's
MESA Regulations was properly dismissed by the administrative magistrate. Id at 214.
Accordingly, I hereby dismiss the Petitioners' claim that Division erred by not
determining whether the Project will result in a Take of the New England Blazing Star
because I do not have the jurisdiction to adjudicate their de facto challenge to the validity
of 321 CMR 10.13(1)(a).
IV. Determination of the Petitioners' Standing
A. The Standard of Review for a Motion to Dismiss for Lack of Standing
The threshold question of whether a person has standing to appeal is "one of
critical significance,"and an issue of subject matter jurisdiction for the reviewing court.
Ginther v. Commissioner of Insurance, 427 Mass. 319, 322 (1998), citing Tax Equity
Alliance v. Commissioner of Revenue, 423 Mass. 708, 715 (1996). Because of the
jurisdictional nature of standing, a petitioner's status as an"aggrieved person"is an
essential prerequisite to obtaining review by a court or by an administrative agency in an
adjudicatory proceeding. Nickerson v. Zoning Board of Raynham, 53 Mass.App.Ct. 680,
681 (2002);Matter of Town of Hanson, 2005 WL 4124572,p.2 (standing"is a
jurisdictional prerequisite to being allowed to press the merits of any legal claim,"and
"impacts the effective adjudication of administrative appeals"). Thus,a motion to
dismiss for lack of subject matter jurisdiction should be granted where the specific matter
raised is not within the jurisdiction granted by law to the court deciding the matter. Jones
v. Jones, 297 Mass. 198 (1937).
In reviewing a motion to dismiss,the Division has adopted the same standards
that are applied in Massachusetts courts under Mass. R. Civ. P. 12(b)(1). In the Matter of
17
Cape Wind Associates, LLC, NHESP Tracking No. 01-9604, Final Decision dated July 2,
2008, adopting the Recommended Final Decision of the Presiding Officer dated May 16,
2008, at 6). Since 2008 the Massachusetts Supreme Judicial Court(the"SJC")has
adopted the United States Supreme Court's refinement of the standard of review for
evaluating the sufficiency of a plaintiff's complaint on a motion to dismiss. Iannacchino
v. Ford Motor Co., 451 Mass. 623 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). As discussed by the SJC in Iannacchino, the Supreme Court determined in
Bell Atl. Corp. v. Twombly that the previous,long-standing articulation of the standard in
Conley v. Gibson, 355 U.S. 41,45-46, 78 S. Ct. 99(1957)—a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief—had
"earned its retirement." Iannacchino at 635-636. The Supreme Court explained that
under Conley's"no set of facts"standard, a wholly conclusory statement of claim would
survive a motion to dismiss whenever pleadings left open the possibility that a plaintiff
might later establish some set of undisclosed facts to support recovery. Id. Under the
refined standard adopted by the SJC in Iannacchino,the decision-maker generally
accepts a petitioner's factual allegations and reasonable inferences drawn from them,but
a petitioner's obligation to provide the grounds for its entitlement to relief requires more
than"mere labels and conclusions," and factual allegations "must be enough to raise a
right to relief above the speculative level....plausibly suggesting(not merely consistent
with)an entitlement to relief."Id. The SJC noted that it quoted the language of Conley
"no set of facts" standard in a previous decision of its own,Nader v. Citron, 372 Mass.
18
96, 98 (1977), and affirmed that"we follow the [Supreme Court's] lead in retiring its
use." Id.
A party defending against a motion to dismiss is free tointroduce supplemental
evidence to bolster a claim set forth in their Notice of Claim, but may not add a new
claim as part of their opposition to such motion to dismiss. In the Matter of Conditional
No-Take Determination, NHESP File No. 15-34327, Docket No. 2018-01-RL, Final
Decision dated April 12, 2019, adopting the Recommended Final Decision of the
Presiding Officer dated March 15, 2019, at 22,footnote 8;In the Matter of Cape Wind
Associates, LLC at 6, citing Callahan v. First Congregational Church of Haverhill,441
Mass. 699, 709-710 (2004).
B. Summary of the Law regarding Standing to Appeal under MESA
The Standing Requirements under the MESA Regulations
The scope of the Division's interests and areas of concern under MESA and the
MESA Regulations6 encompass its authority and responsibilities to list species for
protection thereunder;to delineate the Priority Habitats where state-listed species occur;
to review proposed projects and activities within Priority Habitat to determine whether
they will result in a prohibited Take of state-listed species; and to conduct research,data
collection and other management activities related to the conservation and protection of
state-listed species.
In Pepin v. Division of Fisheries and Wildlife, 467 Mass. 210, 221-225 (2014),the
SJC's discussion and affirmation of the Division's MESA regulatory provisions requiring
the review of project and activities in Priority Habitat make clear that the Division's
6 Also referred to in this decision as the"MESA Zone of Interests."
19
interest thereunder is not to categorically prohibit any or certain types of development in
such areas. Instead, the Division seeks to determine whether the proposed development
will avoid,with or without conditions, a Take of state-listed species, and if not,whether
the Take can be permitted by the Division in accordance with the performance and
mitigation standards in the MESA Regulations.
The requirements and process associated with appealing a final decision made by
the Division pursuant to the MESA Regulations is set forth in 321 CMR 10.25 ("Appeal
Process"). Under 321 CMR 10.25(1), any person aggrieved by a final decision of the
Division made pursuant to 321 CMR 10.12, 10.18 or 10.23 shall have the right to-an
adjudicatory hearing. Under 321 CMR 10.25(2), any notice of claim for an adjudicatory
hearing must be sent to the Division within 21 days of the date of the Division's final
decision. 321 CMR 10.25(3)(b)provides, in pertinent part,that any such request for an
adjudicatory hearing shall include the specific facts that demonstrate that a party filing a
notice of claim satisfies the requirements of an aggrieved person,including but not
limited to:
1. how they have a definite interest in the matters in contention within the scope of
interests or areas of concern of M.G.L. c. 131A or the regulations at 321 CMR
10.00; and
2. have suffered an actual injury which is special and different from that of the
public and which has resulted from violation of a duty owed to them by the
Division.
In addition, several previous MESA adjudicatory decisions have affirmed that 321
CMR 10.25(3)(b)does not automatically confer standing on property abutters by
regulation, or allow abutters to make a more limited or less stringent showing to
demonstrate their standing. In the Matter of Conditional No-Take Determination.
20 •
NHESP File No. 15-34327, Docket No. 2018-01-RL, at 15-16;In the Matter of Marion
Drive, Kingston, MA, Docket No. 07-22182-2010-02-RL, Final Decision dated October
20, 2010; In the Matter of 16 Medouie Creek Road, Nantucket, MA, Docket No. 11-
30084-2012-01-RL, Ruling on Joint Motion to Dismiss for Lack of Standing dated July
16, 2012. As discussed in these decisions,the MESA regulations differ from, e.g., the
state Zoning Act, pursuant to which"parties in interest" (which includes abutters) enjoy a
rebuttable presumption that they are"persons aggrieved." Marion Drive at 9; 16
Medouie Creek at 4;see also M.G.L. c. 40A, §11 and§17, and Watros v. Greater Lynn
Mental Health &Retardation Ass Inc., 421 Mass. 106, 107, 653 N.E.2d 589 (1995).
Consequently, it is well established that an abutting property owner is still required to
demonstrate their compliance with all of the standing requirements in 321 CMR
10.25(3)(b) in the same manner as any other aggrieved person.
Summary of Key Case Law on the Standards for Demonstrating Standing
In summarizing the relevant case law for demonstrating standing under the MESA
Regulations, I begin with the three-part,"irreducible constitutional minimum of standing"
established by United States Supreme Court case law as set forth in Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992):
1. First, the plaintiff must have suffered an"an injury in fact,"meaning, an invasion
of a legally protected interest which is (a)concrete and particularized,7 and(b)
actual or imminent, not conjectural or hypothetical;
2. Second,there must be a causal connection between the injury and the conduct
complained of—the injury has be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not
before the court; and
7 By"particularized,"the Court said,"we mean that the injury must affect the plaintiff in a personal and
individual way." Id., n.1 at 561.
21
3. Third, it must be likely, as opposed to speculative, that the injury will be
redressed by a favorable decision. Lujan at 560-561.
The party invoking the jurisdiction of the reviewing court or agency bears the burden of
establishing the above elements of standing. Lujan at 562. "Since they are not mere
pleading requirements but rather an indispensable part of the plaintiffs case,each
element must be supported in the same way as any other matter on which the plaintiff
bears the burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of litigation." Id. at 561-562.
Moreover,the Supreme Court has described injury in fact as"first and foremost of
standing's three elements." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The
Court emphasized that"[w]e have made it clear time and time again that an injury in fact
must be both concrete and particularized."Id. at 548(Emphasis in original). As stated
above in Lujan, for an injury to be "particularized", it must affect the plaintiff in a
personal and individual way. A"concrete"injury,the Court said,"must be 'de facto;'
that is,it must actually exist." Spokeo, Inc. at 548 (Emphasis in original).
Massachusetts case law similarly requires a showing that a plaintiff has suffered a
non-speculative, concrete injury that is different from that of the public. See Standerwick
v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27(2006); quoting Havard Sq.
Defense Fund, Inc. v. Planning Bd of Cambridge, 27 Mass.App.Ct. 491, 493 (1989) ("A
person aggrieved...must assert a plausible claim of a definite violation of a private right,
a private property interest, or private legal interest."); see also Fraser v. Zoning Bd of
Appeals of Marshfield, 2009 WL 1975388 (Mass. Land Ct) (2009). An aggrieved person
must also "establish—by direct facts and not speculative personal opinion—that his
22
injury is special and different from the concerns of the rest of the community." Barvenik
v. Alderman of Newton, 33 Mass.App.Ct. 129, 132 (1992); see also Standerwick, supra,
at 208; Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 554(1999);
Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass.App.Ct. 680, 761 N.E.2d. 544,
547 (2002); Butler v. City of Waltham, 63 Mass.App.Ct. 435, 440 (2005); Fraser, supra.
"Injuries that are speculative, remote, and indirect are insufficient to confer standing."
Ginther, at p. 323. "[T]he aggrieved party must show that the injury suffered is one that
is non-speculative and a substantial injury to him personally, as distinct from a
speculative injury or an injury to the public generally." Lopez v. Board of Health of
Topfield, 76 Mass.App. Ct. 1118(2010). While it is not necessary to prove a claim of
particularized injury by a preponderance of evidence, "the possibility of injury must be
more than an`allegation of abstract, conjectural, or hypothetical injury.' In the Matter
of Three Bays Preservation, Inc. and Massachusetts Audubon Society, 2018 MA Env.
Lexis 40, 44.
The Supreme Court in Lujan acknowledged that the desire to use or observe an
threatened or endangered animal species is a"cognizable interest"for the purpose of
showing standing under the federal Endangered Species Act, but also emphasized that the
injury in fact test"requires more than an injury to a cognizable interest...[i]t requires that
the party seeking review be himself among the injured." Lujan at 563. This necessitates
"evidence showing,through specific facts, not only that such federally listed species were
in fact being threatened...but also that one or more of the respondents' members would
thereby be `directly' affected apart from their`special interest' in the subject." Id.
23
The Court has also made clear that persons do not acquire standing based on a
contention that they seek to enforce an environmental law, stating"[w]e have consistently
held that a plaintiff raising only a generally available grievance about government—
claiming only harm to his and every citizen's interest in proper application of the
Constitution and the laws and seeking relief that no more directly and tangibly benefits
him than it does the public at large—does not state an Article III case or controversy."
Dijon at 574-575. In short, "standing is not measured by the intensity of the litigant's
interest or the fervor of his advocacy." Valley Forge College v. Americans United for
Separation of Church and State, 454 US. 464, 486(1982); Enos v. Secretary of Envtl.
Affairs, 432 Mass. 132, 135 (2000).
Furthermore, 321 CMR 10.25(3)(b) expressly requires a petitioner to demonstrate
how they have a definite interest in the matters in contention that fall within the scope of
interests or areas of concern of MESA or the MESA Regulations. "A party has standing
when it can allege an injury within the area of concern of the statute or regulatory scheme
under which the injurious action has occurred. Enos at 135, citing Massachusetts Ass'n
of Indep. Ins. Agents &Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977).
Determining the proper scope of the interests and area of concerns of a particular
statutory and regulatory scheme is a necessary means of assessing a petitioner's
compliance with the above standing requirement. By way of example,the SJC held in
Enos that nothing in the Massachusetts Environmental Policy Act ("MEPA") language,
purpose or administrative scheme suggested a legislative intent to allow judicial review
of a determination thereunder of what constituted a proper environmental impact report.
The SJC found the Appeals Court's characterization of MEPA's area of concern as the
24
"protection of the environment from damage caused by projects"to be"far too broad for
our purposes." Id. at 138. "To grant standing based on MEPA's ultimate goal of the
protection of the environment,"the SJC stated,"would allow suit in almost every project
within MEPA jurisdiction, based on generalized claims by plaintiffs of injury such as loss
of use and enjoyment of property."Id. Similarly,the scope of interests and concerns
under MESA does not extend to prohibiting any or certain types of development in
Priority Habitat or to preventing or regulating broadly defined environmental impacts that
do not have a direct enough nexus to protecting state-listed species and their habitats.
Finally, as is also expressly required by 321 CMR 10.25(3)(b), "[ijt is not enough
that the plaintiffs be injured by some act or omission of the defendant;the defendant must
additionally have violated some duty owed to the defendants." Penal Insts. Comm'r for
Suffolk County v. Commissioner of Correction, 382 Mass. 527, 532 (1981), quoting L.H.
Tribe, American Constitutional Law§3-22, at 97-98(1978). In the same Enos decision,
the SJC emphasized that"we pay special attention to the requirement that standing is not
present unless a governmental official or agency can be found to owe a duty directly to
the plaintiffs." Enos at 136.
"Under the theory of organizational standing,the organization is just another
person—albeit a legal person—seeking to vindicate a right." Knight First Amendment
Inst. At Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 562 (2018), quoting N.Y. Civil
Liberties Union v. N.Y.C. Transit Auth., 684 F. 3d 286. 294(2d Cir. 2012). For an
incorporated organization to have aggrieved status and standing, it must establish some
harm to a corporate legal right that is traceable to the Division determination being
appealed. Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27
25
Mass. App. Ct. 491, 496(1989). Whether the organization has suffered such an injury is
determined, in part, by an examination of its corporate purpose, or stated another way,of
its core public mission. In the Matter of Conditional No-Take Determination, NHESP
File No. 15-34327, Docket No. 2018-01-RL, at 26. This inquiry is, in turn,relevant to the
required showing under 321 CMR 10.25(3)(b) that a petitioner has a definite interest in
the matters in contention within the scope of interests and areas of concern of MESA and
the MESA Regulations. Id.
"A mere statement of corporate purpose which expresses a general civic interest
in the enforcement of[environmental] laws, or in the preservation of[natural resources],
is not enough to confer standing upon the corporate entity." In the Matter of Entergy
Nuclear Operations, Inc. and Entergy Nuclear Generation Co., 2016 MA ENV LEXIS 3,
24, citing Harvard Square Defense Fund, Inc. at 496. In determining whether an
organization suing on its own behalf has standing to sue,the court conducts the same
inquiry as in the case of an individual: "Has the plaintiff alleged such a personal stake in
the outcome of the controversy as to warrant his invocation of[the court's]jurisdiction."
Havens Realty Corp. v. Coleman, 102 S. Ct. 1114 (1982). Thus,when an organization
sues on its own behalf, it"bears the burden of showing: (i) an imminent injury in fact to
itself as an organization(rather than to its members)that is `distinct and palpable;' (ii)
that its injury is `fairly traceable' to the complained-of act; and(iii)that a favorable
decision would redress its injuries." Knight First Amendment Inst. At Columbia Univ. at
563.
Taking these MESA regulatory requirements and relevant case law standards for
demonstrating standing into consideration, I have analyzed and ruled on the standing of
26
the Select Board,the 13 residents and the NLC respectively in Sections IV.C., D. and E.
below.
C. Dismissal of Nantucket Select Board For Lack of Standing
Like any other legal person,the Select Board has the burden of showing that it is
aggrieved within the meaning of 321 CMR 10.25(3)(b). As is the case for abutters,the
MESA Regulations do not automatically confer standing on a municipality or allow a
different or less stringent showing of standing for a municipality. Consequently,the
Select Board must show that it has a definite interest in the matters in contention within
the MESA Zone of Interests and has suffered an actual injury that is special and different
from that of the public and due to a violation of a duty owed to it by the Division.
The Select Board's Opposition states that it is seeking to prosecute its appeal on
behalf of the Town of Nantucket, and argues that the Town has demonstrated a"unique
and substantial commitment"to the preservation of open space and wildlife habitat,
including state-listed species habitat. Select Board Opposition at 8-12 and Pucci
Affidavit. More specifically,the Select Board highlights the actions of the Town,through
its Natural Resources Department, Conservation Commission and/or Land Bank,to
protect and preserve the environmental resources of the Island, some of which fall within
the MESA Zone of Interests. Select Board Opposition at 3-5. However, relying on the
fact that various Town entities engage in a range of respective regulatory, permitting and
land protection and management activities is a too broadly stated basis for showing that
the Select Board specifically or the Town as a whole has a special interest in the
Division's review of Surfside Crossing's Project under MESA. See Enos at 135-138.
Similarly,the fact that the Select Board submitted information on the Project to the
27
Division does not,by itself, satisfy this particular standing requirement. To grant
standing on that basis alone would allow appeals by parties who have no private or
special interest at stake beyond a personal or civic desire to see MESA properly applied
and enforced. And that is how I view the Select Board's interest in this matter-acting on
behalf of the Town as an advocate for the community as a whole to ensure that the
Division's Take Determination is based on an adequate assessment of the Project's
impact on all the state-listed species that are or may be present on-site. Furthermore,the
relief sought by the Select Board—that the Division modify its Take Determination
consistent with Avalon's assessment—no more directly or tangibly benefits the Town
than it does the public at large. See Lujan at 574-575. In short, by seeking to ensure that
MESA is properly applied and enforced with respect to this Project, the Town has not
established its right to an adjudicatory appeal to challenge the Division's Take
Determination. Id. at 575.
As noted Section IV.B,supra, at 20,the U.S. Supreme Court has described
injury in fact as"first and foremost of standing's three elements." Spoken, Inc. v. Robins,
at 547. Neither the Select Board's Notice of Claim nor Opposition sets forth a plausible
showing that the Division's Take Determination has resulted in an actual injury to either
the Select Board or to the Town as a whole that is different from the public. In its Notice
of Claim,the Select Board contends that it is an aggrieved person simply because it
"presented clear and compelling information that [Surfside Crossing] failed to provide
properly updated field survey and data"to the Division. Select Board Notice of Claim at
1. In its Opposition,the Select Board explains further that it was injured"in its shared
goals of MESA"by the Division's failure to modify its Take Determination consistent
28
with Avalon's assessment. Select Board Opposition at 9. But stated either way,the
Select Board has not alleged with the requisite specificity why any resulting alleged Take
of the NLEB or the New England Blazing Star injured the Town differently than the
public at large or violated any duty owed to the Town by the Division. As discussed
above,the record supports a finding that the Select Board's involvement this matter is to
vindicate the public's interest in seeing MESA properly applied to this Project. Thus,
the Division's decision not to modify its Take Determination as requested by the Select
Board did not impact the Town as a municipality any more directly or disproportionately
than it did the community as a whole. Simply put,the Select Board failed to show that
the Town suffered a concrete injury in fact particular to it.
Finally, the Select Board's inability to clearly identify the injury to itself or the
Town, as distinct from the public, is reflected in the conclusion to its Opposition,which
broadly claims that denying it standing under the circumstances of this case would
"eviscerate the goals of MESA"and be contrary to"sound public policy"of encouraging
local input on MESA determinations. See Select Board Opposition at 14. But an alleged
conflict with these generally stated objectives does not equate to a plausible showing of
an injury within the scope of interests of MESA. For all of the above reasons, I find that
the Select Board has not met its burden of demonstrating standing within the meaning of
321 CMR 10.25(3)(b)and therefore dismiss its appeal.
D. Dismissal of Thirteen Residents of Nantucket for Lack of Standing
The Notice of Claim filed by the NLC and the 13 Individual Petitioners identifies
the latter as year-round residents of Nantucket who allege that they are aggrieved by the
Division's Take Determination because it fails to protect and preserve state-listed species
29
found on the Project site. Notice of Claim at 3. These residents claim that they are
aggrieved persons with a definite interest in this matter that is within the scope of
interests or areas of concern under MESA and the MESA Regulations,and that they have
suffered actual injuries which are special and different from the public resulting from
violation of a duty owed to them by the Division. Id. at 4, 8.
The 13 residents did not file a separate opposition to the Motions to Dismiss by
the Division and Surfside Crossing. While the NLC's Opposition states that the abutting
properties of several of these residents are part of a"continuous ecosystem" in the area of
the Project, it does not claim that any of them are NLC members or otherwise address the
arguments made by the Division and Surfside Crossing challenging their standing. See
Collier Affidavit at¶ 19 and Exhibit E.
The 13 residents have the burden of individually demonstrating that they satisfy
each of the requirements of an aggrieved person in 321 CMR 10.25(3)(b). Simply put,
their allegations of standing as described in the Notice of Claim are conclusory and
unsupported by any specific facts. For those residents who own property abutting the
Project Site,previous MESA adjudicatory decisions make clear that the MESA
Regulations do not automatically confer standing on abutters or allow them to make a
more limited or less stringent showing to demonstrate their standing. Moreover, even
assuming that the properties of these abutters function as part of a"continuous
ecosystem" or"habitat continuum" in the area of the Project,that fact would not,by
itself, establish a plausible claim of a concrete injury to that property owner, as distinct
from the general public. See Marion Drive at 19. The abutters themselves have not
alleged any additional facts, by affidavit or otherwise, to support a claim of having a
30
special interest in the outcome of the Division's Take Determination or having suffered
an actual injury to their private interests. At best,these 13 residents'conclusory
allegations of aggrievement are evidence of their interest in seeing that MESA is properly
applied to the Project proposed on a neighboring property,but such an interest is not
sufficient to confer standing on them.
For these reasons, I hereby dismiss the 13 residents for lack of standing.
E. Denial of Motions to Dismiss the Nantucket Land Council For Lack of
Standing
The Motions to Dismiss of the Division and Surfside Crossing
The Motions to Dismiss of the Division and Surfside Crossing both contend that
NLC's core purpose and activities as an organization are not to protect MESA state-listed
species, but to more generally preserve and protect the environment by limiting
development on Nantucket. See Division's Motion to Dismiss at 8-11; Surfside Crossing
Motion to Dismiss at 9-10. Surfside Crossing's Motion more specifically highlights
information on the NLC's website, including pointing to its Mission statement,to argue
that the NLC's core purpose is merely to curtail development on Nantucket by holding
and enforcing conservation restrictions on open space parcels and by commissioning
scientific research, monitoring development proposals,engaging in legal proceedings to
protect natural resources, and educating the public on local environmental issues. See Id.
at 9 and Exhibit 4. Consequently, Surfside Crossing states,the NLC's mission to reduce
development on Nantucket differs from the purpose of the MESA statute which is to to
protect state-listed species. Id. Surfside Crossing instead regards the NLC's interest in
this matter as seeking to ensure that MESA is properly applied and enforced with respect
31
to the Project, which Surfside Crossing argues does not establish NLC's standing.
Surfside Crossing Motion to Dismiss at 10.
The Division, in turn, contends that the NLC's recitation in its Notice of Claim of
its expenditure of the funds, land protection and related activities (such as certifying
vernal pools) do not demonstrate that the NLC has suffered an injury that is special and
different from the public and traceable to the Division's Take Determination. Division
Motion to Dismiss at 9-11. Similarly, Surfside Crossing argues that the NLC failed to
show how the Division's Take Determination causes specific harm to the NLC or how
the Determination violated a duty owed to the NLC by the Division. Surfside Crossing
Motion to Dismiss at 10. For these reasons,the Division and Surfside Crossing each
request that I dismiss the NLC's appeal for lack of standing.
Finally, Surfside Crossing characterizes the NLC's appeal as seeking to challenge
the Division's determination under 321 CMR 10.13(a)(2)that the criteria for mapping the
Project site as Priority Habitat for the NLEB had not been met because the NLC did not
provide with the Division with any new occurrence information on the NLEB. Surfside
Crossing Motion to Dismiss at 12-14. Surfside Crossing contends,however, that the
MESA Regulations do not provide an avenue for the NLC to appeal the above Division
determination because under 321 CMR 10.25 appeals are limited to determinations made
by the Division pursuant to 321 CMR 10.12, 10.18 and 10.23 only. Id. at 13. Surfside
Crossing therefore asserts that even if I were to find that the NLC has standing to appeal,
its Notice of Claim should be dismissed because it challenges a Division determination
for which no appeal is allowed under the MESA Regulations.
32
The NLC's Opposition to the Motions to Dismiss
In response to the Motions to Dismiss filed by the Division and Surfside,the
NLC's Opposition provides supplemental evidence to bolster its claims of standing,
including through supporting affidavits from. Cormac Collier, the NLC's Executive
Director, and Danielle O'Dell, an Ecologist/Field Supervisor with the Nantucket
Conservation Foundation("NCF")who is serving as a subcontractor to Avalon.
At the outset,the NLC's Opposition states that"[i]n adjudicatory appeals across
the Commonwealth's regulatory agencies under a variety of statutory schemes,the term
`person aggrieved' has been interpreted as requiring the claimant to assert 'a plausible
claim of a definite violation of a private right, a private property interest,or a private
legal interest...of particular importance,the right or interest asserted must be one that the
statute...intends to protect." NLC Opposition at 3, citing Matter of Corey, 2018 MA ENV
LEXIS 10, 30. The NLC acknowledges that a mere statement of corporate purpose to
enforce environmental laws or preserve natural resources is not sufficient to confer
standing upon a corporate entity. Id. at 4, citing Harvard Square Defense Fund at 496.
The NLC argues, however,that an organization may establish aggrievement through
evidence that its core mission serves interests protected under the applicable statutes and
regulations. Id. at 4. Among the DEP adjudicatory decisions cited by the NLC as
support for its argument is the above referenced Matter of Corey,which ruled that the
Buzzards Bay Coalition("Coalition") had standing to appeal under the Wetlands
Protection Act("WPA") because the protection of interests impacted by the regulation of
activities in Buzzards Bay wetlands and watershed was"integral to the Coalition's
mission." Matter of Corey at 38. The presiding officer explained that where the core
33
public mission of the Coalition is to protect,preserve and advocate on behalf of one or
more interests enumerated in the Wetlands Protection Act and Regulations, decisions
made by the local conservation commission and/or DEP "can have a disproportionate
impact upon that entity's core public mission and may or does constitute a harm that is
distinctly greater in kind and magnitude from the harm to the interests to the general
public." Id at 39.
To that end,Mr. Collier's Affidavit attests that while the NLC was founded in
1974 "with the sole purpose to protect the environment of the Island of Nantucket and
environs,"since then the NLC has worked by itself and in conjunction with other public
and private groups to own and manage "critical conservation land,primarily by acquiring
and holding non-fee interests, to protect open space and indigenous and endangered
species and habitats." Collier Affidavit¶4. At present, the NLC holds over 85
conservation restrictions ("CRs") on over 1,400 acres on Nantucket. Id. Furthermore, a
large portion of the NLC's acquisition of thousands of acres of critical habitat on
Nantucket has been"specifically designed to protect rare or endangered species and
habitats, including globally rare and endangered habitats." Collier Affidavit 1111 7, 8. The
NLC cites to its work in certifying the majority of vernal pools on Nantucket for the
purpose of getting them added to the Division's Natural Heritage and Endangered
Species Program ("NHESP") database; expending$15,000 on Lepidoptera studies
specifically to improve the NHESP database; performing Element Occurrence("EO")
surveys for NIESP for plants and animals; and working with NHESP to protect
significant endangered species habitat on Nantucket,including west of the Project site.
Collier Affidavit¶ 6.
34
In summary, the NLC argues that its core interests as an organization are
preservation of habitat and protection of endangered species on Nantucket, which are
interests"indisputably grounded in an area of concern of the statutory or regulatory
authority governing the Division's action." NLC Opposition at 8. Furthermore, like the
Coalition in Matter of Corey,the NLC and its members have a significant interest in
protecting Nantucket's natural resources and its habitat for a variety of threatened and
endangered species. Id. The NLC asserts that by demonstrating the nexus between its
mission and actions and interests protected under MESA, it has shown the legal interest
that is the predicate for its standing to appeal the Division's Take Determination. Id., and
the adjudicatory decisions cited as support.
The NLC agrees that to establish standing it must additionally establish—by
direct facts and not by speculative personal opinion—that it has suffered an injury is
special and different from the concerns of the rest of the community. NLC Opposition at
5; see also Standerwick at 28. The NLC argues,however, standing does not require the
NLC to prove the merits of its case or that it is entitled to the relief sought on appeal. Id.
at 5. Instead,the NLC must only put forth a"minimum quantum of credible evidence"to
substantiate its allegations of an injury related to an interest protected by MESA. Id. at
6, citing Matter of Corey at 39.
The NLC asserts that its interests will be directly impacted and injured by the
Division's Take Determination based on the NLC's investment of substantial resources in
projects that contribute to the protection of Nantucket's state-listed species and habitats,
particularly those found on the Project site. NLC Opposition at 9. Such projects include
working with NHESP and several conservation groups to protect vital habitat in the areas
35
surrounding the Project site. Collier Affidavit¶¶ 13-14, 16-17 and the referenced
Exhibits. To that end,the NLC is the holder of a CR on a nearby parcel of land called
Sachem's Path that is mapped in its entirety as Priority Habitat for a number of state-
listed species, including the New England Blazing Star and four moths. Collier Affidavit
¶ 14 and Exhibits B and D. In addition,the NLC has worked with the NHESP to protect
significant endangered species habitat to the west of the Project site. Collier Affidavit¶
16 and Exhibits B. More specifically, when the Nantucket Island Land Bank("NILB")
expanded their golf course from 9 holes to 18 holes in 2003,the NLC advocated for a CR
to protect this area with a CR and was appointed by NHESP to serve on a scientific
advisory committee to monitor land management activities as part of the MESA
Conservation and Management Permit that the Division issued for this property. Id.
The NLC recently participated in lengthy litigation and expended in excess of$250,000
to protect the Camp Richards Boy Scouts Land, a parcel of undeveloped land of over 100
acres containing state-listed species habitat that is located approximately 100 yards from
the Project site. Collier Affidavit¶ 18 and Exhibit B. The NLC states that it and the
NILB are currently in the final stages of negotiating the acquisition of a CR on the Camp
Richards Boy Scouts Land at the cost of just under$1 million,and asserts that the value
of the NLC's activities and holdings with respect to on this site will be specifically
diminished by the Take that will allegedly result from the Surfside Crossing Project. Id.
at¶21. As depicted in the aerial photo in Exhibit B to the Collier Affidavit,the NLC
argues that the Project site and the nearby highlighted parcels form an"almost continuous
swath of largely undeveloped and protected pitch pine habitat"and a"habitat continuum
for protected species" in the area of the Project. Collier Affidavit¶ 19 and Exhibit B. In
36
addition, while the area immediately to the south of the Project site,between it and the
NILB land, is not formally protected, it is developed at a very low density(and owned in
part by several of the 13/Individual Petitioners/residents)and essentially functions as part
of this same"continuous ecosystem." Collier Affidavit 1120 and Exhibit B. In
conclusion, Mr. Collier's Affidavit attests that protecting intact ecosystems and their
associated state-listed species"is at the core of the NLC's mission,"and that the
development of the Project site and the alleged associated Take caused by the Project will
have a"deleterious and direct impact to the areas already protected by the NLC" and
result in harm "peculiar to the NLC and entirely different and distinct from the impact
that will accrue to the general public." Collier Affidavit¶20.
The supporting Affidavit of Danielle O'Dell,the NLC's expert on the NLEB,
states that the Project site is identified on The Nature Conservancy's island-wide habitat
mapping of Nantucket as primarily pitch pine/scrub oak with a smaller portion of coastal
shrubland. O'Dell Affidavit ¶S and Exhibit 1. Ms. O'Dell cites to a 2018 publication
entitled "Bat Use of an Island off the Coast of Massachusetts"that she co-authored with
Zara R. Dowling,which reported consistently high detection rates of NLEB adjacent to
mature pitch pine stands and the presence of breeding populations and maternity roosts in
pitch pine scrub oak in other locations on Nantucket.$ O'Dell Affidavit ¶8 and Exhibit
3. Her Affidavit further states that multiple calls of NLEBs were recorded by acoustic
detectors placed within.25 miles of the Project site during peak maternity roost season
from early May to August of 2017, and May through September of 2018. O'Dell
S Her Affidavit explains that high quality habitat and the presence of a large breeding population and at
least one known hibernacula of NLEB on Nantucket are of particular importance for this state-listed
endangered species because White-nose Syndrome,which has decimated New England mainland
populations by 90-99%,is not present on Nantucket. O'Dell Affidavit at¶ 7.
37
Affidavit ¶ 9. Two additional acoustic detectors deployed on September 19 through
October 2, 2018 on nearby sites in the immediate vicinity of the Project site also
documented high levels of NLEB activity. O'Dell Affidavit ¶9 and Figures in Exhibit 1.
Ms. O'Dell's Affidavit ends by opining that the Project site includes high quality habitat
for the NLEB that is very similar to other known maternity roost habitat on Nantucket
and that it is "highly likely"to contain potential roost trees. O'Dell Affidavit¶ 13.
In conclusion, the NLC argues that the affidavits of Mr. Collier and Ms. O'Dell
presented facts showing the possibility of injury related to an interest protected by MESA
- namely the preservation of crucial habitat for a breeding population of the endangered
NLEB. NLC Opposition at 14. Through such expert testimony, the NLC contends,it
has set forth credible evidence to substantiate its allegations of harm to interests protected
by MESA and central to the NLC's mission. Id., citing Matter of Three Bays
Preservation, Inc. at 14. Therefore,the NLC has met"minimal evidentiary threshold"
required for its appeal to proceed. Id., citing Matter of Corey at 34.
Determination of the NLC's Standing
The NLC, a 501(c)(3)non-profit corporation, bears the burden of establishing that it
meets each of the required elements of standing under the MESA regulations at 321 CMR
I 0.25(3)(b), consistent with the three-part, "irreducible constitutional minimum of
standing" described by United States Supreme Court in Lujan and with the specific
standing test applicable to corporate organizations set forth in Knight First Amendment
Inst. at Columbia Univ., and Harvard Square Defense Fund, Inc. As discussed in
Section N.A.,supra, at 15-17, I accept as true the facts alleged by the NLC in its Notice
38
of Claim and Opposition and supporting affidavits in accordance with the standard of
review adopted by the SJC in Iannacchino.
The Motions to Dismiss for lack of standing by the Division and Surfside Crossing
are based on their review of the NLC's Notice of Claim only. In response, the NLC's
Opposition to these Motions bolstered its claim of standing through the supporting
affidavits of the NLC's Executive Director, Cormac Collier, and the NLC's state-listed
species expert,Danielle O'Dell,and the amplified legal arguments made therein.
For the purposes of determining standing,the first question to address is whether
the NLC as a corporate"person"has a definite interest in the matters in contention within
the MESA Zone of Interests. The Division and Surfside Crossing argue that NLC's core
purpose and activities as an organization are not to protect MESA state-listed species,but
to more generally preserve and protect the environment by limiting development on
Nantucket. However, I find that Mr. Collier's detailed Affidavit,as summarized,supra,
at 32-35, has presented sufficient evidence of the nexus between the NLC's core mission
and activities and interests that fall squarely within the MESA Zone of Interests. Mr.
Collier's showing includes attesting that: (1)a large portion of the 85 CRs acquired by
the NLC since 1974 has been specifically for the purpose of protecting state-listed
species and habitats; (2)the NLC has made a substantial monetary investment and
incurred other significant litigation and transactional expenditures to acquire(or advocate
for) CRs on properties that comprise a larger habitat continuum for state-listed species
(e.g. the Sachem Path and Boy Scout Land parcels), some of which are alleged to be
present on the nearby Project site; and(3)the NLC has engaged in MESA-specific work
certifying vernal pools,performing EO surveys, funding Lepidoptera studies,and serving
39
on an NHESP scientific advisory committee associated with a CMP issued for NILB land
located near the Project site, Most of these long-standing activities of the NLC preceded
the Division's review of the Surfside Crossing Project and encompassed the purpose of
protecting interests within the scope of MESA,rather than merely constituting a discrete
effort to oppose the Project during the MESA review process. In short,the description
and related recitation of the history and focus of activities of the NLC in the Collier
Affidavit make the requisite showing that MESA-relevant interests are sufficiently
integral to the public mission of the NLC, thereby supporting a conclusion that the effect
of the Division's Take Determination has a disproportionate impact upon that mission as
compared to the general public.
Furthermore,the NLC's demonstration in this regard is consistent with one of the
reasons I found that the petitioners in Matter of 16 Medouie Creek Road had standing.
See Matter of 16 Medouie Creek Road at 21 (detailed affidavits by the petitioners and
others showed that the petitioners' long standing professional and/or personal
commitment to bird conservation predated and went beyond seeking to enforce MESA
against the project at issue.) In comparison,in the instant appeals neither the Select
Board's specific powers and actions nor the Town's overall environmental or land
protection responsibilities, constitute an adequate showing that their core purpose and
activities are substantially and consistently directed at matters within the MESA Zone of
Interests. See the discussion, supra, at 25-26. Instead,the record supports a finding that
the interest of the Select Board specifically and the Town as a whole is to advocate for
the proper application of MESA to this particular Project. Id., supra, at 26. Finally,the
NLC's above showing as a corporate entity is distinguishable from my recent MESA
40
adjudicatory decision,In the Matter of Conditional No-Take Determination, NHESP File
No. 15-34327, Docket No. 2018-01-RL, where I determined that the petitioner,Protect
Sudbury, did not demonstrate that its core mission and activities fall within the MESA
Zone of Interests. See In the Matter of Conditional No-Take Determination, NHESP
File No. 15-34327, Docket No. 2018-01-RL, at 26-28(finding that the core corporate
purpose of this self-described"501(c)(4)non-profit organization formed in opposition to
the [electric transmission line project proposed by Eversource]"was, as evidenced by
Protect Sudbury's mission statement and the affidavit of a founding member,to oppose
that project for primarily energy facility siting reasons and to also seek changes to DPU's
regulation of such facilities.)
The next question to address is whether the NLC has made a plausible showing it
has suffered an actual injury in fact traceable to the Division's Take Determination that is
special and different from the public. As an organization, the NLC bears the burden of
showing an injury to itself as an organization(rather than to its members)that is distinct
and palpable. Knight First Amendment Inst. At Columbia Univ. at 563. For the purposes
of standing, it is not necessary for the NLC to prove an alleged injury by a preponderance
of evidence or to otherwise prove the merits of its case. However,the NLC's showing
must be (1)more than an allegation of abstract,conjectural, or hypothetical injury; (2)
supported by credible factual evidence that substantiate its allegations of an injury related
to an interest protected by MESA; and(3) identify a harm to it as an organization that is
distinctly greater in kind and magnitude from the harm to the interests to the general
public. See the discussion and case law cited in Section N.B., supra, at 20-22, 25;NLC
Opposition at 5. .
41
To recap,the NLC's expert on the NLEB,Danielle O'Dell, attests in her Affidavit
that:
• A 2018 publication entitled"Bat Use of an Island off the Coast of
Massachusetts"that she co-authored reported consistently high detection rates of
NLEB adjacent to mature pitch pine stands and the presence of breeding
populations and maternity roosts in pitch pine scrub oak in other locations on
Nantucket.
• The Surfside Project site is primarily pitch pine/scrub oak with a smaller portion
of coastal shrubland.
• During peak maternity roost season for NLEBs, from early May to August of
2017, and May through September of 2018,multiple calls of NLEBs were
recorded by acoustic detectors placed within .25 miles of the Project site.
• Two additional acoustic detectors deployed on September 19 through October 2,
2018 on nearby sites in the immediate vicinity of the Project site also
documented high levels of NLEB activity.
• In her expert opinion,the Project site includes high quality habitat for the NLEB
that is very similar to other known maternity roost habitat on Nantucket and that
it is "highly likely" to contain potential roost trees.
See O'Dell Affidavit ¶j¶5, 6, 8, 9-13.
The NLC's Opposition, in reliance on the Collier and O'Dell Affidavits, further
alleges that:
• Given the proximity and consistency of NLEB habitat to the Project site,it is
"very likely"to be used by the NLEB and to be supporting their population for
feeding and/or breeding.
• The areas protected through the NLC's work form a habitat continuum for state-
listed species in the area of the Project site, and the Project site itself is a critical
section of this habitat continuum.
• Habitat fragmentation resulting from the Project will result in a Take of state-
listed species under MESA,both on the Project site and beyond.
• Development of the Project site and the associated Take of state-listed species
will have a"direct and deleterious impact"to the areas and state-listed species
already protected through the NLC's own efforts.
42
• The NLC's investment in its protection of state-listed species—through
litigation, advocacy and the acquisition of CRs—totals hundreds of thousands of
dollars, and the NLC and its partners are poised to expend almost$1 million to
acquire a CR on property approximately 100 yards from the Project site.
• Consequently,the Take of state-listed species on the Project site will"vitiate"the
NLC's investment in the immediate area of the Project site,resulting in harm that
is peculiar to the NLC due to its unique role in protecting the habitat continuum
through its long-term efforts and at considerable expense.
See NLC Opposition at 9-11 and the references to the Collier and O'Dell Affidavits cited
therein.
I find that through the cited studies and expert opinion of its state-listed species
expert,the NLC has set forth plausible factual allegations that the NLEB are likely
present on the Project site and that the Project will result in a Take of the NLEB. Again,
for the purpose of showing standing,the NLC is not required to prove that a Take of the
NLEB will occur. Furthermore,the fact that Surfside Crossing has voluntarily agreed not
to cut not to cut trees on the Project site during June or July in compliance with the
federal 4(d)rule for the NLEB does not moot out the issue of whether a Take review by
the Division is necessary. Among other reasons,were the Division to determine that the
Project will cause a Take of the NLEB that cannot be avoided, Surfside Crossing would .
be required to meet the long-term Net Benefit mitigation standard in 321 CMR 10.23 in
order for the Division to authorize the Take through a Conservation and Management
Permit.
I further find that through the representations of its Executive Director in
particular,the NLC has also identified a harm distinct to it as an organization that would
result from a Take of the NLEB on the Project site and beyond—i.e.,the adverse impact
to its substantial investment in state-listed species protection within the habitat continuum
43
in the immediate area of the Project site. The proximity to and nexus between the NLC
mission-related,MESA-relevant investments/efforts and the Take that will allegedly
occur on the Project site and extend into the NLC-supported habitat continuum are key
factors supporting my finding that the NLC as an organization will suffer an injury that is
greater in kind and magnitude from the harm to the general public.
My determination that the NLC has adequately alleged an injury in fact is also
consistent with the showing made by the petitioners in 16 Medouie Creek,which
included an affidavit from the petitioners' state-listed species expert that attested with
specificity that the proposed project work would reduce the area of habitat and directly
disturb a local pair of the state-listed species in question(the threatened northern harrier)
on adjacent property and likely cause that pair to abandon their nesting area. See 16
Medouie Creek at 22. In contrast to the NLC,the Select Board failed to plausibly show
how it would be injured by the Division's Take Determination in a manner that is special
and different than the public. See the discussion, supra, at 27-28. Similarly,those
among the 13 Individual Petitioners/residents who own property within the alleged
habitat continuum in the area of the Project site made no showing(beyond being abutters)
as to how they individually have a special interest in protecting state-listed species on
their properties such that they will be harmed personally if the Project results in a Take of
such species. Compare also with In the Matter of Conditional No-Take Determination,
NHESP File No. 15-34327, Docket No. 2018-01-RL at 23-26; 31-35, where I determined
that neither Protect Sudbury as an organization nor its members demonstrated an injury in
fact different from the public (finding that,particularly when considered in light of the
scope of the grounds for its appeal,their allegations of injury were insufficiently
44
supported by credible evidence or attributed to the Division's failure to actively consult
with the organization or certain members/supporters during the review of the project
under MESA).
For all of the above reasons, I hereby deny the Division and Surfside Crossing's
respective Motions to Dismiss the NLC's appeal for lack of standing.
Finally, I disagree with Surfside Crossing's argument that the NLC's appeal
constitutes a challenge of a determination made by the Division pursuant to 321 CMR
10.13(a)(2) and is therefore is not justiciable because the MESA Regulations do not
provide an avenue to appeal such Division determinations. See Surfside Crossing
Motion to Dismiss at 12-14. The NLC appealed the Take Determination made by the
Division for the Project pursuant to 321 CMR 10.18. In the circumstances of this case,
determining whether the Project will cause a Take of state-listed species pursuant to 321
CMR 10.18 necessarily included the Division's consideration of new occurrence
information on the NLEB and the related determination of whether the Project site meets
the criteria under 321 CMR 10.12 for delineating it as Priority Habitat for the NLEB. If
so,the MESA Regulations then envision the Division reviewing the Project to determine
whether it will cause a Take of the NLEB. Consequently,it is reasonable and appropriate
to regard the NLC's appeal as challenging the adequacy of Division's Take
Determination made pursuant to 321 CMR 10.18, with a focus on whether it properly
applied the criteria under 321 CMR 10.13. The Division's conclusion that the Project site
should not be delineated as Priority Habitat for the NLEB meant that no review of
whether the Project will cause a Take of the NLEB was required under 321 CMR 10.18.
The absence of such a review of the Project's impact on the NLEB in the resulting
45
Division Take Determination is the subject of the NLC's appeal and falls within the
appeal provision in 321 CMR 10.18. Moreover,this reading of the appeal provisions of
the MESA Regulations is consistent with the Division's own position. In its Prehearing
Statement, the Division stated that the only remaining issue for adjudication is whether
the Division properly applied under 321 CMR 10.18 with respect to the NLEB when it
made its Take Determination pursuant to 321 CMR 10.18. See Division Prehearing
Statement at 6. I therefore deny Surfside Crossing's Motion to Dismiss the NLC's appeal
for the above reasons, and have identified the Division's identification of single issue for
adjudication in the NLC's appeal in Section V below.
V. Order Establishing Issue for Adjudication and Directing Parties to Propose
Schedule for Adjudication
A. Issue for Adjudication
The single issue for adjudication is as follows:
1. Whether the Division properly applied its regulatory criteria at 321 CMR 10.13 and
10.18 when it made its October 19, 2018 Take Determination that the project will
only result in a take of the Coastal Heathland Cutworm.
B. Order requiring the Parties' Proposed Joint Schedule for Adjudication
By no later than Wednesday,May 8,2019,the remaining parties (Surfside
Crossing, the Division and the NLC) shall submit a proposed joint schedule for
adjudication, or separate proposed schedules if the parties are unable to agreed. Such
schedule(s) shall propose dates for each of the following adjudicatory actions:
Action Filing Deadline
1. Prefiled Written Direct Testimony
2. Prefiled Written Rebuttal Testimony
46
3. Hearing
(limited to cross examination of the parties'witnesses)
I am further requesting that the parties propose a schedule for adjudication that
has the hearing completed in advance of Labor Day, 2019. Finally, as agreed upon at the
Prehearing Conference,the NLC and/or Surfside Crossing shall arrange for a
stenographer to be present at the heating to transcribe the proceeding and thereafter
provide copies of the hearing transcript to the Presiding Officer and the Division free of
charge.
VI. Notice Related to those Rulings that constitute the Final Recommended
Decision of the Presiding Officer
The Rulings(1) dismissing the Petitioners' claim that the Division erred by not
determining whether the Project will result in a Take of the New England Blazing Star
(Section III); and (2) dismissing the Select Board and the 13 residents for lack of standing
(Section IV.C. and D respectively) constitute the Recommended Final Decision of the
Presiding Officer.
The above described Recommended Final Decision has been transmitted to the
Director of the Division of Fisheries of Wildlife,Department of Fish and Game,for his
final decision in this matter. This decision is therefore not a final decision of the
Division, and may not be appealed to the Superior Court pursuant to M.G.L. c. 30A. The
Division Director's final decision is subject to court appeal and will contain a notice to
that effect.
47
Because the above described Recommended Decision has now been transmitted
to the Division Director,no party shall file a motion to renew or reargue this
Recommended Final Decision or any portion of it, and no party shall communicate with
the Director regarding this Decision, unless the Division Director, in his sole discretion,
directs otherwise.
Dated: Z�}-//9 By: ArLai1tit
Richard Lehan, Esquire
Presiding Officer
Division of Fisheries and Wildlife
Department of Fish and Game
251 Causeway Street, Suite 400
Boston, MA 02114
48
SERVICE LIST
Take Determination for Surfside Crossing, NHESP File No. 12-31035
Docket No. 2018-02-RL
PETITIONERS
Nantucket Select Board
George X. Pucci,Esquire
Andrew Weisheit,Esquire
KP Law, P.C.
101 Arch Street, Boston, MA 02110
Nantucket Land Council and 13 residents of Nantucket
Peter R. Fenn, Esquire
53 Milk Street
Westwood, MA 02090
Jonathan D. Witten,Esquire
Barbara Huggins Carboni,Esquire
Huggins and Witten, LLC
156 Duck Hill Road
Duxbury,MA 02332
DIVISION OF FISHERIES AND WILDLIFE
Beverly Vucson,Esquire
Division of Fisheries and Wildlife
251 Causeway Street, Suite 400
Boston, MA 02114
Jessie Leddick
Division of Fisheries and Wildlife
1 Rabbit Hill Road
Westborough, MA 01581
PROJECT PROPONENT
Richard A. Nylen,Jr., Esquire
Lynch, DeSimone&Nylen, LLP
10 Post Office Square, Suite 970N
Boston, MA 02109