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HomeMy WebLinkAbout070-89r r t• Form 3 -89 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 December 18 , 1989 To: Parties in interest and others concerned with the decision of the Board of Appeals in Application No-070 -89 of: Nantucket Conservation Foundation, Inc., for itself and for Jonathan G. Davis (Owner) Enclosed is the decision of the Board of Appeals which has this day been filed with the Nantucket Town Clerk. An appeal from this decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the decision must be brought by filing a complaint in court within twenty (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the decision must be given to the Town Clerk so as to be received within such twenty (20) days. William R. Sherman, Chairman cc: Town Clerk Planning Board Building Commissioner t TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS DECISION At a public hearing of the Board of Appeals, held on Friday, December 8, 1989, at 1:00 P.M., at the Town and County Building, Federal and Broad Streets, Nantucket, upon the application of NANTUCKET CONSERVATION FOUNDATION, INC., for itself and for JONATHAN G. DAVIS, as owner (070 -89) , the Board made the following DECISION: 1. This is an application for relief by variance from Nantucket Zoning By -law Section 139 -16.A (Intensity Regulations - Frontage) , to enable a parcel of land containing about 623,220 square feet (14.31 acres) , and having as its only road frontage a boundary, 658.10 feet long along the westerly side of the parcel, along a "Way ", fifty feet wide, which is unconstructed, to be divided into three lots, two of which (Lots 1 and 3 upon the proposed plan of division by Hart - Blackwell & Associates, Inc., dated November 16, 1989, a reduced copy of which is attached hereto as Exhibit A) are to be added to adjacent land of Nantucket Conservation Foundation, Inc., and combined therewith, and the third of which, having no road frontage but to be accessed by easement, is to be retained by the owner for use by him or his successors in title as a building lot, shown as Lot 2 on the plan attached as Exhibit A. The subject land (the "Locus ") is located in and near Toupchue Valley and has no street address, is approximately shown as Assessor's Parcel 90 -3, is shown as Lot 7 on Land Court Plan 5004 -B, and is zoned as Limited Use General -3. 2. The Locus is presented to us with an extensive record of litigation and administrative proceedings relating to efforts of the present owner and his predecessors in title to develop it, including matters arising under the Massachusetts Wetlands Protection Act, the Nantucket Wetlands Protection By -law, the Massachusetts Environmental Policy Act, the Subdivision Control Law and the Nantucket Planning Board's Rules and Regulations regarding the subdivision of land. The principal difficulty in such development relates to access to the Locus. Based upon the application, the materials submitted therewith, and statements and representations made at our public hearing, we find that the only appurtenant means of lawful access to the Locus consists of a way, fifty feet wide, which runs from north to south from Milestone Road to the South Shore, in a straight line. This way, sometimes known as "Russell's Way ", is an easement within land owned by Nantucket Conservation Foundation, Inc. ( "NCF ") in fee, and abuts the westerly boundary of the Locus. The northerly portion of this way, about one and one -half miles long, is a dirt road, in passable but rough condition. A travelled dirt roadway known as "New South Road ", which, however, has no legal status over the registered land of NCF (and other owners) which it traverses, runs generally from northwest to southeast, passing through the northeasterly corner of the Locus. South of "New South Road ", the fifty -foot way is unconstructed, and passes through a fully - vegetated bordering freshwater wetland, protected under the Wetlands Protection Act and Nantucket Wetlands Protection By -law. NCF has opposed the use of the Locus for subdivision purposes, on the basis of its concern for potential damage to ecosystems upon NCF land arising from intensive development of the Locus. In the course of the controversy relating to the efforts of the Owner and his predecessors to obtain necessary approvals for the development of the Locus, NCF has been requested to grant an ea4inent for access to the Locus in an alternative location over NCF -owned land which would obviate wetlands crossings. NCF denied these requests, stating its policy not to grant easements which may result in proliferation of development, because of its purposes as a conservation organization. In the case of administrative review, the Secretary of Environmental Affairs urged, in a letter contained in our file, that the parties use efforts to accomplish a solution which would enable access over existing travelled ways, thus eliminating wetlands fill. 3. Based upon this history, NCF and the Owner now come before us jointly, presenting a settlement of their controversy upon the following basic terms: a. NCF will acquire Lots 1 and 3 as shown upon Exhibit A from the Owner, to be merged with NCF's adjacent land shown as Lot 508 on Land Court Plan 5004 -7. The Owner will retain Lot 2 as a building lot, subject to various deed restrictions to be imposed in favor of NCF. (The building location, and thus Lot 2, are being situated in the northeasterly portion of the Locus because access to it can thus be accomplished by easement over New South Road with minimal disturbance to habitat. However, the result is that the building lot thus is separated from all street frontage; New South Road does not, and will not, constitute a "street" within any provision of the Nantucket Zoning By -law or the Subdivision Control Law.) b. NCF will grant an access and utility easment over the existing travelled portion of "New South Road" between the fifty -foot way and the Locus. C. The Owner will release to NCF all rights in the portion of the fifty -foot way which lies south of New South Road. 4. We are asked herein to grant variance relief, eliminating all frontage requirements for Lot 2 in order to accomplish this settlement. While the fifty-footway is shown upon a duly registered Land Court Plan, its status as a "street" is illusory at best, because it is not constructed and for practical purposes cannot be constructed without severe environmental damage. We find that this way fails to meet the definitional standard for a "street" under our Zoning By -law, in that it does not provide "a principal means of adequate access to abutting property" in its present state of construction. Accordingly, since our definition of "frontage" is the boundary between a lot and an abutting "street ", the Locus now has no frontage. Its status as a buildable lot arises under the last sentence of the first footnote to Section 130 -16.A, enabling access to a "lot of record" to be accomplished by proof of an access easement over land of others in the absence of twenty feet of frontage. The effect of this application is to preserve the status of the remaining portion of the Locus to be used for building purposes, Lot 2, as buildable without frontage, notwithstanding the fact that portions are being severed and merged with adjacent NCF land, placing "lot of record" status technically in question. 5. In an ordinary case, we would be reluctant in the extreme to grant relief from all frontage requirements. This is no ordinary case. Based upon the record of the controversies regarding development of the Locus which has been presented to us, we find that strong public policy considerations affect the use of the Locus, and make development of Lot 2 with a single dwelling much less damaging to environmental concerns than the development of the entire Locus under limitations not yet established through the presently pending administrative proceedings and litigation, which would certainly involve alteration of the portion of the protected wetland which is traversed by the fifty -foot way. We have received a letter from the Nantucket Conservation Commission, expressing its strong support for the proposed settlement and the variance relief sought in this proceeding. The correspondence from the Secretary of Environmental Affairs, referred to above, also strongly establishes the public interest in a solution such as that achieved by the parties here. Furthermore, it is to be noted that this solution will obviate the need for further prosecution of litigation and administrative proceedings, at a saving to public expense. We have the favorable recommendation of the Planning Board, as well. 6. We find all of the statutory criteria for the grant of variance relief to be met by the record before us. Because of circumstances relating to ci-r-r�,ances - -- relating-- to -1--.he soil conditions and topography of the land before us (consisting of the wetland traversed by the only present lawful access road to the Locus), and especially affecting the Locus but not affecting generally the zoning district in which it is located (since this access problem is unique to the Locus, and the fifty -foot way serves no other property south of "New South Road "), a literal enforcement of the provisions of the By -law would involve substantial hardship to the applicant (involving the environmental damage to NCF's land and the Owner's difficulty in utilizing his land), and desirable relief may be granted without substantial detriment to the public good (because of the public interest in achieving a resolution of the access to the Locus without resort to filling of the wetland) , and without nullifying or substantially derogating from the intent or purposes of the By -law (since protection of environmental concerns promotes the general welfare of the Town's inhabitants). 7. We acknowledge that the plan presented as Exhibit A will have to be submitted to the Nantucket Planning Board for endorsement under the Subdivision Control Law before it may be used for conveyance purposes. We expect that such endorsement will be sought under Chapter 41, Section 81P, on the basis that this plan does not constitute a "subdivision ", definitionally, because it constitutes a change in the size and shape of existing lots in such manner as not to leave any lot without the frontage required under applicable zoning. It is our intention in granting relief hereunder to eliminate the frontage requirement applicable to Lot 2. However, in any event it is our view that the Locus now has no frontage within the meaning of the By -law, so the effect of the boundary line change, shrinking the Locus (as a buildable lot) to Lot 2, is that frontage is the same both before and after the change; that is, there is none. Obviously, the appropriateness of a Section 81P endorsement is within the exclusive purview of the Planning Board, and we do not purport to invade their jurisdiction over this matter. 8. Relief is hereby granted subject to the following conditions: (a) The Locus shall be divided into Lots 1, 2 and 3, substantially as shown upon Exhibit A. (It is recognized that these lots will be renumbered by the Land Court when this plan is filed in the Land Registration Office.) (b) A certified copy of this decision, bearing certification by the Town Clerk as to expiration of all rights of appeal, shall be duly registered at Nantucket Registry District prior to presentation of the plan to the Nantucket Planning Board for endorsement, and reference to this decision and its recording information shall be duly noted upon the plan. (c) Lots 1 and 3 shall be conveyed to the Nantucket Conservation Foundation, Inc., and shall be combined by appropriate instrument with Lot 508 on Land Court Plan 5004 -7, prior to issuance of any building permit for Lot 2. (d) NCF shall have granted an access easement over "New South Road" from "Russell's Way" to the northeasterly boundary of Lot 2, prior to the issuance of any building permit for Lot 2. (e) The Owner of Lot 2 shall have released to NCF all rights in the portion of the Way, fifty feet wide, as referred to herein, lying south of "New South Road ", prior to issuance of any building permit for Lot 2. (f) No buildings shall be constructed upon Lot 2, except for one single - family dwelling riot to exceed 3,500 square feet in ground cover; a tennis court, swimming pool, and equipment shed may also be constructed. (g) Lot 2 shall not be subdivided so as to create additional building lots; boundary line adjustments not creating additional building lots are not prohibited. 9. For the reasons herein set forth, and subject to all provisions and conditions herein set forth, the Board, acting by the unanimous vote of the four members who participated in this matter, hereby grants relief by variance to the applicant and owner of the Locus, relieving all frontage requirements for Lot 2 as shown upon Exhibit A. Dated: 10— I$ , 1989 Wil iam R. Sherman L'nda F. Williams Ann G. Balas avid Ag§g kV (dda /35 /NCFDavis /NCFDav) l _T! T A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, DECEMEBER 8, 1989, at 1:00 P.M. in the Town And County Building, FEDERAL AND BROAD STREETS, Nantucket, on the Application of NANTUCKET CONSERVATION FOUNDATION, INC./ and JONATHAN G. DAVIS,ow Ke✓ (0Q -89), seeking a VARIANCE under Zoning By -Law SECTION 139 -16.A (Intensity Regulations - Frontage) to enable the premises to be divided into three parcels, two of which will be conveyed to the Nantucket Conservation Foundation, Inc., and merged with its adjacent land. The parcel to be retained by the present owner will be served by an easement and will not have frontage on the way upon which the premises front; this way is said to be within_ a protected wetland. The premises are located at Toupchue Valley (assessor's Parcel 90 -3), Land Court Plan 5004 -B, Lot 7, and are zoned as LUG -3. William R. Sherman, Chairman BOARD OF APPEALS (dda /32 /NCFDavis) BOA Form 1 -89 NANTUCKET ANDZONING COUNTYBOARD APPEALS BUILDING Date NANTUCKET, MA 02554 CASE No.© APPLICATION FOR RELIEF Owner's name(s): Jonathan G. Davis Mailing address: 40 Glen Avenue, Neon, Magga ` " 02159 Applicant's name: Nantucket Conservation Foundation, Inc. and Jonathan G. Davis Mailing address: c/o Reade & Alger P.C., Post Office Box 2669, Nantucket, MA 02584 Location of lot: Assessor's map and parcel number 90- 3 Street address: None (Toupchue Valley) �y Land Ct Plan, Plan Lot 5004 -B 7 Cer i is to 13961 Zoning district LUG -3 Date lot acquired: 1/89 -� Uses on lot - commercial: None X or (Vacant land) MCD ?- - number of: dwellings_ duplex_ apartments— rental rooms_ Building date(s): all pre -8/72? or C of O ?— Building Permit appl'n. Nos. Case Nos. all BOA applications, lawsuits: - -- state fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BOA to make each finding per Section 139 -32A if Variance, 139 -30A if a Special Permit (and 139 -33A if to alter or extend a nonconforming use). If appeal per 139 -3�A 17B _ attach decision or order appealed. OK to attach addendum . Applicants request a variance from By -law Section 139 -16.A (Intensity Regulations: Frontage), to enable the Owner's lot to be divided into three parcels, two of which would be conveyed to Nantucket Conservation Foundation, Inc. ( "NCF ") and merged with NCF's abutting land; the remainder of the premises, containing about 230,000 square feet, would be retained by the Owner as a building lot. The lot retained by the Owner will have no frontage. See addendum. Items enclosed as part of this Application: orderl addendum2 X Locus map _X Site plan_ showing present +planned structures Floor plans present proposed— elevations (HDC approved ?_) Listings lot area frontage setbacks GCR— parking data Assessor - certifies- addressee ist 4 sets —mailing labels 2 sets 5200 fee payable to Town of Nantucket X proof 'cap' covenant 1(If an appeal, ask Town Clerk to senU'—Bldg Comr's record to BOA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. SIGNATURE: L l Applicant Attorney /agent X If 3(If not owner or owner's attorney, enclose proof of authority) FOR B OFFICE USEj f Application copies reed: 4V or_ for BOA onlx'Y one copy filed with Town Clerk ono // 0 by omplete? v One copy each to Planning Bd and Building Dept (30 bY�l) /J��Y —y✓a ived? $200 fee check given Town Treasurer on — Hearing notice posteg60j.0mailedZbW4 I & Mf�/�� Hearing(s) on_f__/_ cont'd to__/_—/_, withdrawn ? _J__/_ Decision due by_/_/_ made_/_ filed TC_/__J_ mailed--/--/_ See related cases lawsuits other R, Y ADDENDUM TO APPLICATION OF NANTUCKET CONSERVTION FOUNDATION, INC.., AND JONATHAN G. DAVIS TO THE NANTUCKET BOARD OF APPEALS This application is the product of extensive negotiations between Jonathan G. Davis (the "Owner "), and Nantucket Conservation Foundation, Inc. ( "NCF"). The Owner owns a parcel of land shown as Lot 7 on Lard Court Plan 5004 -B (the "Locus ") , containing about fourteen acres, situated in and to the east of Toupchue Valley, surrounded by several large tracts of land owned by NCF for conservation purposes. The Owner (and his predecessors in title) have sought for several years to develop the Locus, and to that end have filed a Notice of Intent under the Wetland Protection Act and Nantucket Wetlands Protection By -law with the Nantucket Conservation Commission, and a preliminary subdivision plan under the Subdivision Control Law with the Nantucket Planning Board. The only appurtenant means of lawful access to the Locus consists of a way, fifty feet wide, which runs north to south from Milestone Road to the South Shore, in a straight line. This way, sometimes known as "Russell's Way ", is an easement within land owned by NCF in fee and abuts the westerly boundary of the Locus. The northerly portion of this way, about one and one -half miles long, is a dirt road, in passable but rough condition. A travelled dirt roadway known as "New South Road ", which, however, has no legal status over the registered land of NCF (and other owners) which it traverses, runs generally from northwest to southeast, passing through the northeasterly corner of the locus. South of "New South Road ", the fifty -foot way is unconstructed, and passes through a fully - vegetated bordering freshwater wetland, Page 1 of 6 protected under the Wetlands Protection Act and Nantucket Wetlands Protection By -law. The Owner's predecessors in title presented a three -lot preliminary subdivision plan for the Locus to the Nantucket Planning Board, which was denied on November 29, 1988, on the basis that the access road would cross a wetland subject to periodic flooding and would have excessive grade according to applicable standards. (Exhibit A) The Owner's predecessors also filed a Notice of Intent with the Nantucket Conservation Commission, proposing to fill a portion of the wetland in order to construct an access road within this way which would comply with the Planning Board's rules and regulations. (Exhibit B) This Notice of Intent resulted in an Order of Conditions issued by the Nantucket Conservation Commission under both the Wetlands Protection Act and the Nantucket Wetlands Protection By -law, which denied the proposed project. (Exhibit C) Theodore L. Tillotson, attorney for the Owner and his predecessors, filed an appeal to the Department of Enviromental Quality Engineering ( "DEQE "), for review under the Wetlands Protection Act. (Exhibit D) The Owner's predecessor also filed an Amended Complaint appealing from the Order of Conditions under the Nantucket Wetlands Protection By -law in Nantucket Superior Court as to the Order of Conditions under the Nantucket Wetlands Protection By -law, which is pending under Docket No. 88 -5. (Exhibit E) NCF has vigorously opposed the use of the locus for subdivision Page 2 of 6 purposes, because of potential damage to ecosystems upon NCF property from intensive development of the locus. The Owner and his predecessors have requested that an easement be granted by NCF to enable access to be secured in an alternative location which would obviate wetlands crossings; NCF has denied these requests, because its policy is to deny requests for easements which may result in proliferation of development of land. Nantucket Land Council, Inc., a private non - profit environmental organization with about 1,300 members, has also vigorously opposed the proposed wetlands alteration. (Exhibit F) In the course of review of this matter, DEQE referred the project to the Secretary of Environmental Affairs for review under the Massachusetts Enviromental Policy Act (MEPA). (Exhibit G) The Secretary of Enviromental Affairs determined that the project did not require filing of an enviromental impact statement, but directed that the DEQE consider the feasibility of the proposed replication of wetlands, and address impact upon endangered species habitat. He also urged efforts by the parties to accomplish a solution which would enable access over existing travelled ways, thus eliminating wetlands fill, and offered to assist with mediation efforts. (Exhibit H) NCF responded to this letter, setting forth its position as to the granting of an easement (Exhibit I) DEQE (now the Department of Environmental Protection) is still considering the matter, and has requested further information in its most recent correspondence. (Exhibit J) Page 3 of 6 Meanwhile, the Owner and NCF have conducted negotiations, and have reached a settlement upon the following basis: 1. NCF will grant an access and utility easement over the existing travelled portion of "New South Road" between "Russell's Way" and the Locus. 2. NCF will acquire the westerly and southeasterly portions of the Locus, as well as the portion at the extreme northeast corner which lies within and to the northeast of "New South Road ", from the Owner, to be merged with NCF's adjacent land. 3. The Owner's remaining land, containing about 230,000 square feet, shall be subjected to restrictions to be held and enforced by NCF, limiting such remaining land to one dwelling, ground cover not to exceed 3,500 square feet, establishing a building envelope outside which virtually all interference with natural vegetation and habitat will be prohibited, preventing further subdivision, prohibiting ancillary structures (except for a tennis court and swimming pool within the building envelope), and establishing design criteria which will, inter alia, limit the dwelling to one and one -half stories, require red cedar roof shingles, and prevent various design practices which are inconsistent with the standards now generally imposed by the Nantucket Historic District Commission. 4. The Owner will release all right in the portion of the fifty -foot way referred to herein which lies south of "New South Road ". 5. NCF will grant the Owner a footpath easement over an existing travelled roadway from his remaining land to the South Page 4 of 6 Shore. 6. NCF will have a right of first refusal upon any sale of the Owner's remaining land. The building envelope is being situated in the northeasterly portion of the Locus because access to it can be best accomplished from "New South Road" with minimal disturbance to habitat. The result of this is that the parcel being acquired by NCF will include the entire westerly portion which has frontage upon the way. Therefore this application is brought to relieve the remaining parcel from all frontage requirements under the Nantucket Zoning By -law. Access to the remaining parcel will be accomplished over an easement, not constituting a way. It is to be noted that the existing frontage upon the fifty -foot way along the westerly side of the Locus is illusory, since this wav is not constructed and for practical purposes cannot be constructed without severe environmental damage. Access over an easement in the existing travelled roadway will service the remaining portion much more practically and beneficially to all parties in interest, including particularly the public as to its interest in environmental protection. We believe that all statutory criteria for variance relief are present in this case. The need for relief is generated by circumstances relating to the soil conditions, i.e., wetland values, of the Locus and its access. These conditions arise from the placement of the access, and do not generally affect the Limited Use General -3 zoning district. Hardship is apparent in the obvious interference of these wetlands with the Owner's utilization of Page 5 of 6 his property. Variance relief, eliminating the frontage requirement, can be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the By -law, in that the public good (as underscored by Exhibit H, the directive of the Secretary of Environmental Affairs) will be accomplished through this solution, which provides access to a limited project (it is to be noted that only one single - family dwelling, with ground cover of not over 3,500 square feet, will exist upon a parcel containing, over fourteen acres) over existing roadways. It is to be noted that this solution will enable construction of the one permitted dwelling to be accomplished as a matter of right; with access coming by an upland route, the pending administrative and judicial proceedings appealing from the Conservation Commission's negative Order of Conditions will become moot and presumably will be dismissed. This will result in elimination of burden upon these agencies, and will eliminate pending litigation. This application and addendum are prepared by counsel to NCF, and, while a settlement has been reached, certain of the documentation to accomplish this settlement is still in the course of preparation. Therefore, all characterizations herein are made solely by NCF and shall not in any way bind or prejudice the interests of the Owner in connection with all pending matters relating to the use of the Locus. Respectfully submitted, Arthur I. Reade, Jr., as f counsel to Nantucket Conservation Foundation, Inc. Page 6 of 6 MTUC s3�T • •► i NANTUCKET PLANNING BOARD 4 NORTH WATER STREET William Luntz 85 Devonshire St. Boston MA 82109 NANTUCKET, MASSACHUSETTS 02554 -3593 (508) 228 -7233 November 29, 1988 RE: Preliminary Plan, Toupchue Valley subdivision (PB 3316) Dear Mr. Luntz: Please be advised that the Nantucket Planning Board, at its November 28, 1988 meeting, voted to deny your preliminary plan for a three -lot subdivision located off Russell's way in Toupchue Valley. The Board finds that the 50' way proposed as an access road crosses a wetland, and, as stated by your representative, will be subject to periodic flooding. Furthermore, the 12% grade indicated along one section of this road is.excessive according to the standards set forth in Section 4.03e of the Town's Rules and Regulations Governing the Subdivision of Land. For these reasons, the Board finds that the proposed subdivision does not fulfill the State and Town requirements for adequate access. You are not prevented from submitting another plan, either Preliminary or Definitive. However, the Nantucket Conservation Commission has made a negative determination on the proposed road where it crosses a wetland, and the Planning Board is obliged to consider this decision as long as it stands. In addition, the Board may look more favorably upon a submission which reflects the road building standards for established in the Rules and Regulations and which would have the benefit of the Town's engineering review and of a Public hearing process. Very truly yours, 1 John D. Brock "°� Chairperson • Joanne M. Holdgate, Town Clerk <''� , Theodore L. Tillotson, atty. Form 3 DEOE File No. (To be prov-ded by DEOE) Nantucket Island Commonwealth OWTown _--- -- ,:, of Massachusetts ,applicant M W C - F*ne r o P . E Notice of Intent Under the Massachusetts Wetlands Protection Act, G.L. c. 131, §40 and Application for a ``Department of the Army Permit i�N� 1 5ti ;� vF Ntt►.1T(�LI�GT CTC fiNVS \cam LA -4 Part f; General Information Between New South Road & Weweeder Ave., Nantucket Is. 1. Location: Street Address Lot Number 2 Project: Type Description Improvement of an existing Right- of-Way to conform to the Rules & Regulations Governing the Subdivision of Land, Nantucket Island, Massachusetts, by the construction of a Stabilized Gravel Road a L ``� Current Book--ti e & Pag 2LS_ Registry: Cou nt y- — _ Cerlificate :lf Registered Land)_. 1\ 4 Appf;. -nt M i c h a e l _ W . C . E m e r s o n.,__P . E_- ______ 7e1.2 6 9 - 1 0 0 137 West Ninth St., P.O. Box 462, So. Boston, MA 02127 Address William Luntz Tel. 742 ,410 -- 5 Property Owner Address 85 Devonshire St., Boston, MA 02109 Michael W. C. Emerson, P.E. Ie1269 -5100 6. Representative___ Address 137 West Ninth St., P.O. Box 462, So. Boston, MA 02127 7 Have the Conservation Commission and the DECE Regional Office each been sent, by certified mail or hand delivery, 2 copes of completed Notice of Intent, with supporting plans and documents? Yes No C) 3.1 8 Have all obtr,i,u,t)le rrerrnils, and approvals required by local by -law been oblained7 Yes U NO I"' Oblained; ' Applied For: Not Applied For: Construction Permit P. is any p,r :ion of the site subject to a wetlands Restriction Order pursuant to G.L. c. 131. §40A or G.L. C. 13 § 10 5" Yes No 10. Last att plans anc supp•drt,ng documents submitted with this Notice of Intent. Ident0ying Number :Letter Title Date _C25501 _C25502 _.0 2.5- 50 3-__ INDEX, 26 October 1987 PLAN & PROFILE OF 50 FT WAY, 10/26/87 LIMITS OF WORK, DETAILS & NOTES_ C i 1 Cllec�. Ir.:)se resource areas wi:Iiin which work is proposed: (a, X Bu 'er Zloiic ln:c'd; Bank' Land Subject to Flooding. Bordering Vege fated Welland' Li Bordering Land Under Water Body & Waterway' Isolated _% ,gin, Under the Ocean' I :Designated Porl Area' - �) Coastal Beach' L*! Coastal Dune F2 C3arrier Beach Ir-1 Coastal Bank Rocky Interlidal Shore' n Sall Marsh' -J Land Under Salt Pond' U Land Containing Shellfish' (.3 Fish Run' 'Likely to involve U.S. Arm Corps � -r'ers concurrent jurisdiction See General Instructions for � y y ps of Ens :• Completing Notice of Intent 3 2 Part II: Site Description Indicate which of the following information has been provide! (on a plan, in narrative description or calcula- tions) to clearly, completely and accurately describe existing site conditions. Identifying Number /Letter (of plan, narrative or calculations) Natural Features: Narrative Soils Narrat ive Vegetation C 2 5 5 0 2 Topography C 2 5 5 0 2 Open water bodies includin ( g ponds and lakes) Flowing water bodies (includinq streams and rivers) Public and private sur-face water and ground water supplies on or within 100 feet of site Maximum annual ground water elevations with dates and location of test C 2 5 5 0 2 & 0 3Boundw ies of resource areas checked under Part 1, item 1 1 above Other Man -made Features: Structures (such as buildings. piers, towers and headwalls) Drainage and flood control facilities at the site and immediately off the site, including culverts and open channels (with inverts), dams and dikes Subsuriace sewage disposal systems Uncergrcund utilities C2_55 02__— Roadways and parking areas C 2 5 5 0 2 Property boundaries, easements and rights -of -way Other Part III: Work Description Indicate which of the following nior met ion has been provided (on a plan, in narrative description or calcula- tions) to clearly, completely and accurately describe work proposed within each of the resource areas checked in Part 1, item 1 1 above. Identifying Number/Letter (of plan, narrative or calculations) Planview and Cross Section of: Structures (such as buildings, piers, towers and headwalls) C 2 5 5 0 3 Drainage and flood control facilities, including culverts and open channels (with inverts), dams and dikes Subsurface sewage disposal systems & underground utilities C 2.5_d02__ _&_.Q 3 Filling, dredging r,r,C excavating, indicating volume and conipositwn of material Compensatory slcrage areas (4) of the regulations Other where required in accordance with Part lit, Section 1057 Point Source Discharge Description of characteristics of discharge from point source (both closed and open channel), -when point of discharge falls within resource area checked under Par', i, item 1 1 above, as supported by standard engineering calculations, data and plans, including but not limited to the fotlov:ing- 3 -3 1 . Delineation of the drainage area contributing to the point of discharge; 2. Pre- and post - development peak run -off from the drainage area, at the point of discharge, for at least the 10 -year and 100•yeaf frequency storm; 3. Pre- and post - development rate of infiltration contributing to the resource area checked under Part I, item 1 1 above; 4. Estimated v:ater quality characteristics of pre- and post - development run -off at the point of discharge. Part IV: Mitigating Measures 1. Clearly, completely and accurately describe, with reference to supporting plans and calculations where necessary; (a) All measures and designs proposed to meet the performance standards set forth under each re- source area specified in Part II or Part III of the regulations; or why the presumptions set forth under each resource area specified in Part II or Part III of the regula- tions do not apply. Coastal Resouce Area Type: Wand — In all instances where work will be performed in i the vicinity of wetlands or within the buffer izone, all possible precautions will be taken to I prevent erosion including the use of hay bales, geotextile siltation fences and diverting any l drainage away from the wetlands and buffer zones. Coastal Resource Area Type '? Inland The work to be performed will be the constructio of a private roadway into the land of the appli- cant. The filling of the roadway has been kept to the absolute minimum and the natural topogra- phy of the land has been conformed to so as to minimize the amount of excavation and filling re quired. This is the only access to the land and is considered a "limited project" work item. A culvert will be installed to allow drainage from one side of the roadway to the other. Idenhfying number or letter of support documents C25503 and letter from wetlands con- sultant. Identifying number or letter of support documents C25502 & 03 an letter from wetlands con - consultant. 0 Cleariy completely and accurately describe, with reference to supporting plans and calculations where rece ;sa y: (a) all measures and designs to regulate wort% within the Buffer Zone so as to insure that said work does not alter an area specified in Part I, Section 10.02(1) (a) of these regulations: or of ii ork in the BL:Ver Zone will alter such an area, all measures and designs proposed to meet the pe, iotmarce standards established for the adjacent resource area specified in Part Il or Fart III of these regulations. 3.5 , i Area Type Bordered By t 00-Foot Discretionary Zone. Ir, >-:t:r :n- number or letter y y Of SuDpOrl OGCUn.enti ln.,;nl -- {{ i In all instances where work will be performed ;IC25502 & 03 and the buffer zone, all possible precautions letter from vet iwithin will be taken to prevent erosion and unnecessary i� nds consu: tan+ disturbance including the use of hay bales, \ geotextile siltation fences and diverting any I \, drainage away from the wetlands and buffer zones I i 3.5 Part V: Additional Information for a Department of the Army Permit 1. COE Application No.._ 2. (to be provided by COE) 3. Narnes and addresses of property owners adjoining your property. (Name of waterway) 4. Document other project alternatives (i.e., other locations and /or construction methods, particularly those that would eliminate the discharge of dredged or fill material into waters or wetlands). 5. 8,�" x 11 " drawings in planview and cross - section, showing the resource area and the proposed activ- ity within the resource area. Drawings must be to scale and should be clear enough for photocopying. Ceri�,c3tcn ts rrii,iir&J frcxn the Dawn of Water Palut►ort Control before the Federa! permit can be CeriuJratKx may be obtained by, contactng the Dr,isbn of Water Pollutk)n Control, 1 Water Sint 5c,_­tc -% I'lassacnLi6eens 02108 Where t )e acwrt,- will tape place whn the area urlc:er the Massachusetts approved Cc•astai Zorn Management Prcg am. iie ap pilc,)nt cenmes that his prrvosed activity comp;es vvizh arc vvill be o r Lxied n a manner that is cor;s, tent Aith tie appro�ed prcigram Ir;ferrratjc,^ P;evded will ht= used in evaluat;rg the app:c, :ben for a permit and is rr-,ade a rarer of fx;hlc retort) t,F,.oug�. c,suance of a public rrOtx,,: D&:V)sure of this information is vo,h.lntary. hi- Aevef if nee _ sary inforrnatcin is not p.rorv&d. the app!catx ;rt canmot be processed nor can a permit be Esued I hereby certify under the pains and penalties of perjury that the foregoing Notice of Intent and accompartyinp plans, documents and supporting data are true and complete, to the best of my knowledge. ot Signature of Apoll ant C Date Signature of Applicant's Representative �- Date N E D F 0 R M 100 (TEST). • . 'Exception to ENC Form 4345 arproved by HQUSACE. 6 May 1992". 1 MAY 82 This document contains s joint Department of the Army anti State of ManacRvatUa application for a permit to obtain permission to perform activities in United Stales -alers The Off,c. Of Management and Budjrt "10 has approved those qurstions required by thr 115 Army Corry of Engineer& OMB Number 01070036 and expiration date cf 30 September 1963 •prise". This statement will be art in 6 point type. 3 -6 r•. 1 BLAKE -1 REPORT ON WETLAND RESOURCE AREAS AND FUNCTIONS _Madequecham Valley Right -of -Way Nantucket, Massachusetts October, 1987 Prepared For: The Blakely Company 85 Devonshire Street Boston, Massachusetts 02109 Prepared By: IEP, Inc. P.O. Box 434 3179 Main Street Barnstable, Massachusetts 02630 Form 5 Coo PIDY DECIE File No. SE48- 446 (To be provided by DEOE) City /Town Nantucket Commonwealth Applicant William Luntz / of Massachusetts Michael W. C. Emerson PE Order of Conditions Massachusetts Wetlands Protection Act G.L.c. 131, §40 From NANTUCKET CONSERVATION COMMISSION To Michael W. C. Emerson P.E. William Luntz (Name of Applicant) (Name of Property Owner) Address 137 West Ninth Street Box 462, So Boston, MA 02127 Address 85 Devonshire St., Boston, MA 02109 This Order is issued and delivered as follows: o by hand delivery to applicant or representative on (date) by certified mail, return receipt requested on January 5 , 1988 (date) This project is located at between New South Road & Weweeder Ave The property is recorded at the Registry of Nantucket 11,314 Book 58 Page 164 Certificate (if registered) October 30, 1987 The Notice of Intent for this project was filed on The public hearing was closed on December 17, 1987 (date) (date) Findings The Conservation Commission has reviewed the above - referenced Notice of Intent and plans and has held a public hearing on the project. Based on the information available to the Commission at this time. the Commission has determined that the area on which the proposed work is to be done is significant to the following interests in accordance with the Presumptions of Significance set forth in the regulations for each Area Subject to Protection Under the Act (check as appropriate): • Public water supply Storm damage prevention • Private water supply '9"' Prevention of pollution I( Ground water supply ❑ Land containing shellfish &� Flood control ❑ Fisheries 5 -1 Town and County Building Nantucket, Massachusetts 02554 Town of Nantucket Conservation Commission ORDER OF CONDITIO?JS (PROJECT DENIAL) MICHAEL W.C. ENERSON ujILLIA -M LCilvQTZ (PROPERTY OTAP EP ) DEQE FILE ITUXBER SE48-446 UNDER HE is ETLr NDS PROTECTION ACT `, M . G . L . CHAPTER 1,:-;l, SEC 1 I C!N 40 AND THE WETLANDS BYLAW OF THE TC-)WN OF NI"NTUCK ET (CHAPTER FINDINGS Public }"1 c.l "1I.gS c.- t.:e above Notice Ce or intent. la - -ed from 12 to BeCefi1 E.r 17 = 29-7. per: ed OI7 te5t�^l �njT re °EiItE^ at - .}IOSc i:ecr 1is= both verbally and in v-ritinz, from the property ow:_er and 1:is represent tC ives well as tes t imonv from r'erresentat Lves c_ the Nantucket Conservation Foundation, Inc., the Nantucket f1 f Co?rmiiss i cn makf—s k he Co:servaticn _ndin. 1 ) The i•:_ _ iiea` t.1 rough which the proDCSed road woal;1 p• _ c Ls SUb�cC _ a t0 UrOteL � lOI'. Uni:e r the Wet PrC:teCtiGl� Act !-ieCaiiSe _L --*I S Bordering Vegetated Wetland ( 310 Ci,R 10.04 and 10.55) and i .a._ to Coastal Stoi ii Flowage (310 C?vT, As Bach, it is significant .-.a she fclio:ving interests of t1_e Act: Groundwater Supplv, F1 cod Control, ..)uC m DcVt?zF' Prevention, ani Prevention G. _Pollut-ion. The _Pollution. l`teaC<CW serve- as a po_._t or -n_undwater discharge w�.en the ;cater Table IS -- gh. lt_ `��. -.5 10W. f1a.t topography E Cw down ana rek3uce the o- of r1o0� 'Act °rS '7t r1 ]S r'e, iC'dS of pea}_ tioWS by prC,Vidil-_g + —p -y flood water storage, and by facilitating Tvater removal thrc, i_g:: e.7ap'orati_'n anu tear spi.l- 'atiG?: [3!0 t_ItiZ - 1a'.: _S ana Soils can f�_n^_tion ii: th:e removal or 'et�ntiOn of sedizil2nt. . ?- 1trient.S al -:"i! _Ox1C S'a^Stai:ceS such as heavy metals. A road th2'oLigh �1-_e m:eadcw wot:_d inh_lbit -here natlLl'al functions . 2) The wetland des!ribed above 1s also S'.:b3ect 1--.o protect--'-on ' n,te:i t.1 :e Nantu.c1'_et Wet 1antfs By1aia ( Chapter 13 6 ) pas Sed at TC:'v7n Meet g in .`rarC1� of 1933. 3) The rro ect as Proposed is not worthy of "limited protect" status Under 10 CMR. 10. 53 because the applicant has not proven t::at 1ecs.Ol.a� le alternati•.-e meals of access is unavailable. In fact, t;-.e rc,perty at which t: e proposed road wollifi terminate is already crossed by at least one existing road. E 4) As pointed out in a memo dated December 3, 1987, from Arthur I. Reads, Jr., attorney for the Nantucket Conservation Foundation, it is doubtful that the right of passage through the 50 -foot right of way held by Mr. Lunt-7 and his partners extends to the right to carry out replication work in that corridor. Wetland replication in an area equal to the area which would be destroyed [ ( 310 CYR 10.55 (4) (b) ] would not be feasible because ,he Nantucket Conservation Foundation will allow r_o trespass on its land for this purpose, as pointed out in a letter d.ate3 NC':7el?hFr 12, 1.1'87, it "'rill FCL--Ert t Laylor, an englneer represent4 r_g t �e Nantuchet Conservr:tiCn Foundation. Even _4 -1 this ;acre not ail ISsLe, tr beet replicate_ln possible would be narrow roadside ditches, and it is n'Dt even clear t..at There is enoi2,gh Space for -such r1_ _ches ithi_7 the 50 -foot right of way. 5) The applicati n, filed October 30, 1987, rtn,_:y be _rco ^-,plete because 1 a ?- i applied r l t r F a� T 1. t J1 the appliC rim. }"_.� :Cif for approval O the .� n_lIC._e Board ( 210 CMR_ and because the iv'ot=_ce of Intent =ails to name the reScurce are_.s -un( er !'crt TV and fails to describe ::l1tl� measures fc,r _t-.8sta1 storm fltilwa. -e. f�) The pr "'Oposed pro_ect Would .=eve a .1`'_-:1f1Can "t effect Upon ia11r}l ifs an interest protected by the Nantucket Wetlands Bylaw. A road through 1 me_- would, c .,T f thus a - e movement f the �� dcw � r_:l. _ is..ct the ,ci._ci7:_, � us f:.ectin,� �_ mat eme.l o wildli=> >_.p and __i�Tr the vali�-r. L a " �'� �o- 3ering Vegetate J °etian ._, are very in,,port.arnt. 4C!r W41 -14-ce habitat becai;_,e they provide food to marry - ._,e,_ie3 a-_--id Shelter many others. I.7 this case, the meadcw is a ]7u:.t4 l:g area f,- .,:>redatory birds much as the short-eared cwl, according to the above-cited letter from Robert F. Davlor. 7) T r_ ;p_.sed p1--o_ e c t 1aou1d have a signi,cant effee t upon we" end scenic views, another interest protected by the Nantucket Wetlands Bylaw. A new rC n +h4 s area wound iTi pair 5'107 4 6,,.'s the romdl and private homes to the north, from the coastal dunes to t'-le s_ -utn, and from the unspoiled upland areas to the east and iaest. CONCLUSION A close eza- minatIon cf the 20- toot -wide road proposed by the applicant indicates the t appro ximately (3,600 square feet , at least . c. fury vegetated bordering freshwater wetland Would be destroyed with little no Illiti 3atlon cr replication possible, due t0 -he width Co:lstraints of the 5C+ Moot easeme-nt. Substantial public harm is probable if the project were allowed, and the Cor."umission finds no feasible coridltions that would prevent suc]7 harm. The applicant has not overcome the presu-l.r [ 31U CYLR 10.55 (3) ] that the work proposed i_s significant t,.- the interests cited above. Because this presumption };as not been 01.7e1'co:' ?e. the prcpo£"ed work ^lay not Qestrcy or other­,alse impair any pr_,rticn of the meadow [ 10.55 (4) ] . Even if the presumption had been overcome, r plicatiGn is not feasible' ditc.Fes are not adequate means replication. 3 There is no obligation upon the Commission to grant permission for the destruction of this much wetland in order to allow access to a pre - existing lot otherwise inaccessible. Even if there were such an obligation, the claim of inaccessibility has not been proven to the Commission's satisfaction. There is already at least cne read crossing a corner of the lot in question; this road is open to the public, including the owners of the lot. The si_ze of the proposed road and the lack of mitigation measures that would meet the performance standards of the Wetlands Protection Act and the Nantucket Wetlands Eyl:w make this proposal unacceptable. For the reasons set forth abo =ve, the Notice of Intent for a road across Toupchue Valley (DEQE File 1,o. SE408-446) _s der._ed wider the state Wetlands Protection Act ( particularly CiK_R 310 10:55 and 10:53') and under the lDcal Nantucket Wetlands r,,yla-;a (Chapter 1-26). Hc,.aever, the Commission has not considered and does not address at this time Other activities and proposals of the applicant in respect to the subject parcel Which involve different designs, structures, locatinns, or types, and which are not included in t ?-:e Nctice of _ntent at issue. This denial supersedes all of the wordinz in Form 5 (attached) which implies that some Work will be permitted '.1nd!er this Zhi� den" shall apply to any successor in interest or successor in control. If the applicant fails to record _his Order in the Iantucket Fegistry of Deeds or the Massachusetts Land Court and fails to file with the L•Umi-C115s1V i the completed Slip 11rGV1(.:ed alt. iiorn: 5 within _J u inESS days of the date or issuance of this Order, t11e Comimission is e•mpowered t0 1'2C01'd this dU(ruTeia. if the CGli11i S sit n does =ecc. d t hiS dOc- lent due to the failure of the applicant to do so, t; e aprlicar:t will be charged the recording fee plus .a fine of not more than $303 per day. #$4 SHERBURNE, POWERS & NEEOHAM C(apy IS BROAD STREET NANTUCKET, MASSACHUSETTS 02554 \ �jlj% JAN °' ✓i CERTIFIED MAIL RETURN RECEIPT REQUESTED 6171225.5400 January 15, 1988 Department of Environmental Quality Engineering Commonwealth of Massachusetts Southeast Region Lakeville Hospital Lakeville, Massachusetts 02347 BOSTON OFFICE. ONE BEACON STREET BOSTON, MA 02-08 617 1523 . 2700 Re: DEQE SE 48 -446, Nantucket, William Luntz Applicant Gentlemen: Mr. William Luntz, applicant in the above - captioned matter, in accordance with the provisions of 310 CMR 10.05(7)(a)l and 310 CMR 10.05(7)(b)3, hereby requests a Superceding Order in connection with the Order of Conditions issued by the Nantucket Conservation Commission on January 5, 1988, (copy annexed) prohibiting applicant from constructing a roadway within a way shown on Land Court Plan No. 5004B (Sheet 3) (copy said way being the only legal access to applicant's property. The Nantucket Conservation Commission's refusal to issue an Order of Conditions to applicant was arbitrary and unreasonable and exceeded its authority under the provisions of the Wetlands Protection Act, G.L. Chapter 131, Section 40, and the Regulations adopted thereunder, 310 CMR 1.00 et seq. Further, the Con- servation Commission closed the public hearing on applicant's application even though applicant had been requested by the Commission to provide further information to it which applicant was in the process of obtaining but had not had ample time to provide. With regard to the Order of Conditions as issued, applicant disagrees with the determination of the Conservation Commission that he failed to prove that he did not have reasonable alter- native access. In fact, there was ample evidence presented at ,: , - SHERBURNE, POWERS & NEEDHAM PAGE 2 the public hearing by not only applicant but also the Nantucket Conservation Foundation, an abutter and opponant to the requested relief, that the "existing road" which crosses applicant's property is not a legal access as the use of said "road" requires applicant to trespass across land of the Nantucket Conservation Foundation. No evidence of alternative access was presented to the Commission to refute applicant's statement that there is no alternative legal access to his land. The evidence presented to the Conservation Commission by applicant, and not refuted by the Nantucket Conservation Foundation, was that applicant attempted to obtain an easement from the Conservation Foundation to use the alternative access and thereby not having to intrude upon a resource area, but that the Nantucket Conservation Foundation refused to grant the easement. Applicant insists that he is entitled to an order of Conditions in accordance with the provisions of 310 CMR 10.53(3)(e) as the roadway which applicant wishes to construct is of minimum legal and practical wistnoaotherar Nantucket easonable meansofaccesslfg Board from the and that there i public way to applicant's upland area. Applicant disagrees with the finding of the Conservation Commission that his Notice of Intent is incomplete in that applicant failed to obtain approval from the Nantucket Planning Board prior to filing. Applicant introduced uncontradicted evidence at the public hearing on his Notice that the 20 foot road proposed was the minimum width which the Planning Board would approve based upon applicant's discussions with the Planning Board. Further, 310 CMR 10.05(4)(f) requires either a ruling by the Planning Board or Town Counsel that said approval is required or some other evidence to the effect that an applicant must have a permit from the Planning Board as a prerequisite to the Commission issuing an Order of Conditions. Neither the requisite ruling or other evidence was received or offered in connection with applicant's Notice of Intent. Finally, applicant states that the Conservation Commission's finding that applicant failed to overcome the presumption set forth in 310 CMR 10.55(3) is inapposite for the reasons set forth above. Applicant presented ample evidence to overcome the presumption of the Regulations when considered in connection with 310 CMR 10.53(3)(e). For the reasons set forth herein, applicant requests that his Notice of Intent be reviewed and an appropriate Superceding order issue permitting the requested construction of the roadway as said roadway is applicant's sole legal access to his property. SHERBURNE, POWERS & NEEDHAM PAGE- 3 To the extent that the Order of Conditions from which applicant appeals concerns itself with provisions of the Nantucket Wetlands By -law which are beyond the jurisdiction of the Department of Environmental Quality Engineering, applicant is filing an appropriate appeal therefrom with the Superior Court. Respectfully submitted, WILL -AM-,LUNTZ By: Theodore L. Tillotson, Esq. SHERBURNE, POWERS & NEEDHAM 18 Broad Street Nantucket, MA 02554 (617) 228 -5400 TLT /dbg cc: Certified Mail /Return Receipt Requested to: Nantucket Conservation Commission cc: Mr. William Luntz Mr. Michael W. C. Emerson, P.E. DEQE File Number SE48- 446 Plans: Title Dated Signed and Stamped by: On File with: "Proposed Luntz Roadway" 10/26/87 Michael W.C. Emerson P.E. DEOE Conservation Commission #C25501 Proposed Luntz Roadwa 10/26/87 Michael W. C. Emerson P.E. DEOE Conservation Commission #025502 Limits of Work, #C25503 Details_ & Notes 10/26/87 Michael W. C. Emerson, P.E. DEOE Conservation Commission DEOE Conservation Commission Special Conditions (Use additional paper if necessary) 1. Additional Presumptions of significance set forth in Town By -law for Wetlands: o Erosion Control V' Wildlife o Recreation V Wetland Scenic Views 2. Any changes made or intended to be made in the plans or methods described in the Notice of Intent shall require the applicant to inquire of the Conservation Commission. in writing. whether the change is substantial enough to require filing a new Notice of Intent. 3. Project denied -- see attached decision. .............. ............................... Iteeve Space Blank) 5 -3A Issued By Nantucket Conservation Commission Signal r l This Order must be /signed by a majority of the Conservation Commission. q 7 da of ? ! 1A- 1 9 7 before me H� ` —day of this personally appeared /1' - �� �� ^'^ "'''"''' • to me known to be the prson described in and who executed the foregoing instrument and acknowledged that he /she executed the same as his /her free act and deed. Notary ublic My Commission Expires The applicant. the owner, any persona 9grieved by this rder, any owner of land abutting the land upon which the proposed work is to bed one or any ten residents of the city or town in which Such land is located are hereby notified or their right to request the Department of Environmental Quality Engineering to issue a Superceding Order. providing the request is made by certified mail or hand delivery to the Department within ten days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery 10 the Conservation Commission and the applicant. Detach on dotted line and submit to the CONSERVATION COMMISSION prior 10 commencement of work. ..................................................................... ............................... . To NANTUCKET CONSERVATION COMMISSION Issuing Authority Please be advised that the Order of Conditions for the project at has been recorded at the Registry of Nantucket and File Number SE 48— has been noted in the chain of tale of the affected property in accordance with General Condition 8 on 19 It recorded land. the instrument number which identifies this transaction is It registered land, the document number which identifies this transaction is Signature 5 -4A Applicant 0i �7 Town of Nantucket Conservation Commission OR 801111 Town and County Building Nantucket, Massachusetts 02554 ORDER OF CONDITTOj\Q1,S (PROJECT DE's 7 Ij MICHAEL W7. C. EA ;ER E P. Y1 WILLIPL"i L�71NTZ (PROP ' E�:TY IDECDE FILE, NTUMB._,_R SE11-6-446 1PNDER' T"-:E *1-."ETLJT'NDS 1-D-ROTECT 701J ACI!, - (111. G. L. (-'j--L4PTER S_'_'ECTT(-!N THE V-.-ETLA1-_TDS BYLt'11,7 (--.;F THE T'_-'W'N1' OT 'JA_1\j-­TC_"\-P;'T1 __' I V L NIT-D I I J G S T__u - -art j I'l I-1 I L L. - - - - - _U he=r-ings :,, abOVe Notice of Intent lasted fro.-;i D e c emi` - e. r 1 "17 ;-t 'F i 7 BaLsed or. test-LM-0.. t °erlt-edl at 'hose hearings )7 n w-r i t -i n� rhe property ow.-jer and hi as tes timony from repr esentat ve -s c, F th;e We L L L C2.c.n. 11-I C . • e a t ion Foundat the Nan ­',cket Ccinserv=t`c-n T , J aI-es -`--e I ) The t.3. ro-ugh which t) -.e prc:::,c­e, _j u 1D • to L..-( 3- the Wetla.nds Prr-,-4-ect4 c-n Act '11--)ecal, d e r i: V e �e ta -'- e3 W e t I a n 3 0 '11-UZ ai-d 20.55 and Lanu to C'.:'='Zt=1 C:-." _Iowage (':'10 CYD: D it 4L intc-rests 0f the kct: Gro-un C'7 -=ter S'-'jp'plV' Flood ccnt•oi zIn- _' 4- � r)n -. -C 'D C. � -1 -,.1 - -: - n . o -:7, e '-CVent-Lf_-jn, an,� The me-adcw :Fei-ve3 7�, - "water d-scharge when T-� -h e tahle ID C' t r S _L: r n 9 P J_ C. CS 0 ZE r' e a It -F I and hy f -=c i -I i to L. t in -L) ra t Z TV7;D a 0 jr, e re L �r_rz 4 'oval c'r e -,,:- r; r. I f n as heavy e t- a o --;-4 -A e c t ::S t L=ihred above i- L i:,aszed =+ T*c,-,r- -r r ID rc, -r- o s e, d j t r t-11 -, y c, is J ='i -I 1-d t" 'j 1) ecause the applicant i-.=s 1='rove-1 alternati..'-er' me_ns .f accr --,:n1'=vai !able in f-act the propc- rty at e Y':-, 11 ", .3 7- s a 11- eac', y c r -D s :i: e d ID, a t I s -c --cad wo�i-1,3 2 T, 4) As pointed out in t m'-mo dated December 3 - � /ati7n f rOM Arthur it is Reade , �1r . , attorney 1 or the lJantuck �t doubtful that tl-:e right Of pas;s. e t1--rough the 50 -foot right of way ;1e13 ''' partners e::t= nd s =0 + h e right to carry c` t r,y ?fir. Lents and l.i p n an Grr.a equ•- 1 r,_ridor i'etla:t3 replication i replication work n that c � i0 i'MR lU . 55 (4) (b) ] �aouid n,t he to the. cre:� lvh1C }? WC'llid be de_-- t.�oyed ( _ t 1 i I allC:w no t� 1, t:Or,Sery t107 OL1r1Cad -�G 1 1 F J:FCaL'sr� t:'� �n = L',C. -e 3 1 r_ 1} _ ted C%1.i 1. ii: etl.�i Z ' ct :� J _ _ rl t }1]_5 t''Urpose. .-.:� r�01.. t-re-Epass on 1 n1 I - — _ r •- - ;:� -e •enting the Da Even r h -J i•i ^iL not an 1.sa-ue, l.i:C - _J- C Imo' _y G.tio n F I undatic'n. LVen 1 l.. ' - _ o:.st'� e d- tches and it 3 'n p 11j! c - v:'_•l.l'] he rl .Zrl`1 r0�051' 'l =- �s `:1t }7; :1 b r' 11 �l,,c�? T�� �'Lt_ 7 �_ _Cli ii'_Jt E-ti ` the JO "t'!Ot 1_ •-,�\ , C - y';i� 11CO,'',let'� 'Be '- r)ie r'l Ly„ . i 11Cd i.:GL O,_!r 1^ �, 'J t illy •- •t- ,, _r 5 / GP 1c .? _ _ �1 t:'_ 'i t��an .fiche 1�.111:_Ilf :lic�. lit J':_ s , t ''i�e'�. for p'_c,�, t. t: T relit . moils to t }le ;jJ� „ •rr ) I-7 - ,•-e he �ot.4.,-e 'J±" 111•` ( ='s0 ? 1 ;.u5( <<)�? =r1 =caL� _ s �t�on c:ar- y \I - _,� yi 1 s :G ca: cr n"{_ti'� 4 .+ name mea -,ores f _ _J. =st flc'w'_:�n - :nt e.fect v.pc: E. l�:e i'�'-�`C:`r° ro_eCt ,�F l�l':d� J1?W. road thr='u9 %7 e T t j: 1:tCy� °� i:rptcetCd }:!y „t.he T,:� ?:LtCri_et 'r� } : 7 �, r_ L -� �a ':.CL_cn +� ' us f�ect_4n t e ; ,_'e- 6 _ 0� 1 •rj `L' ('r_•'Yj v. _,L '1 ,G -= ed eL1 1JQJ a.-re l � 1... p '? d �, -.:' ,1 '..1 ::'',• v G .t '00d !�'1 - �J :� C C `�.Ti id 1_�� - _ y� �,� ti: cy;r•�,`11 �'e iCG� �O orl 'r- 1 �'' "'L'1 "'� C.r: L..� �, \• %__._ .l .1. L - J..� - i '� G area .JL l_ - case, e m �� :cis 1 e tCl' many ot!.ry a . i;7 t } -11'� , �.. _ t} i l 1, -_ ter^ da e.CCC= ^'�1r'Cd' �tl .. � �, bia:'CS 3-c Ol �'Z e - �L` ir�'Tl rt\jrJC rt r Du\71C =r- va- oiteL 1 d - 1 .. _ up�_•n 7) T'}-= 'a:::p'_ S.Cn _ 1_ ':L. L i:G - tt,A i.7- '�U,d�}Ct j�Ctl•zl -:d5 3 v _Lei^ '_lac�'eSt. protected rJS� 1_ Na iL .!1V V_e1V •_ , l i .r '.' - <_h .r 1_[. �,'�•' �_'Y! . .: f�` -.,7 r'- .E_.d� _ a '- 'J _ t i , to :L .- � �l l.n 4.1d :� the ?Cdl -tl -, f'yr,l: L }:_ COaS c� JT�i:rS -• ' an,i 'J",- -, '1:�G11E'Q ,.li._.:.;.� X1•'1= =.�..° l -C "f.iie S�t �1= ,,,-'1 :e: the - - t' 1 d. 4 L1 1= 1 . ��.a_ C -1i r_., ti:fc'• _I- 10C+t -id �: r -- i - t j_ fLlly close - r JJGt1 ua1 -e feet. c� t.a� -•r = t'.�tr }' �_�1,1 ry 1 atE J . '� 3 1 1 ,.., ?� `JC•d -L_E�l nr :.� ^a frcSllt�'a' C1^ �:e i ., �. o�' l a e -d 1 d % �.': _ •P rl ,1:e p'� �.1tJ? CC`r1S Lre,1: L' ut1C11 r'G� 1-)13 1 t i i "awn if t o C yC�•j t. +?J��'. -l"le nt �u�- 'Stdi71- - °]• r'uJl iC ;:criil ^' `r�l�,,! . 1-:'J ' � .°_. i b l ,l'tj 'i C. Cat weie aliC•'' -Jef G''+d t :C .. lJ n -;• _ '1- lip �`J E'! ^'_. I- much. :1a1' 1. The epl'l -taut !la•`• nL + tLlb1� ',�itjuld prr'Je:1L 1°� S1Ci11f1:rcI �C' 1 `: ri.�7 C ( : +J:' t. the- [310 �•: C +lY� 1 - +1 r'' 1_,� l-1 y V iV JJ J - �'F J "',�•' I "i,�, i- 1_1e e,Z t- ', � t� "d 1..J C ._�e liltrl _ _1-f-:r1 �1SP_ 1� '7 rdJt '.i'��'� 1. Q TG� � _ � i' -• C - _�:II -li,t .l (ijl J he me.;'1�J 7 �10.5J( -4) 7 E' en 11 the �'1G` - y J,i11' -id..'i7 Gi i_ :., - i.. i . dotC1;F.s �,•ri:. i ?i;'L J1 _Jn is nom � ��ible. - G'J E1 "CC,*lU=• , � raj' _ �;,t�'. 1'e p]. iC;ation . 3 Thera is no obligation upon the Commission to grant permission for the destruction of this much wetland in order to allow ,.access to a pre- eXisting lot otherwise inaccessible. Even if there were such an the Cla1m of i 1:a cces5ibii i i_y ..as not been proven to the obl it atic:n, least satisfactlC :n. 1 Jere is alresdy at le -�� one r'-ad Cr�'SSi; :� 3 CGYiIC'1' Of the 1Gt lIl �wcSti0n; this road is open to the I=ubl1C, - ^d the including the o:ar.ers of the lot. The size of the proposed road and c _ lace of mitigation measures that would mee� the pertol-:nance szan'. arels Cr the Wetla]":ds Protection Act and the Nantucket Wetlands Eylaw mare this propc.sal unacceptable. For the rcr7_ °. : +I.S yet tGrta J�,o'Je, the I \otice Gi Intent tGl' 3 road `_r rt 1 i! :�O �E48-4��6) is denied undt-- - „- �]e ai l ey (.E�.E File Y ct ^�..- �a - ��1.�' _ p�,Ca.e'= tic�ll Act ' p.art�.cul sr ly CI'� Z 310 10.55 an'3 10:55 ) the e t :etl�nds l 'C' -:a~ 1 -16). However, ;F _o.al .' an 1_ } tt;eLl�nds �� a'•a' rt'� an'3 _ ..0 'r the. t , tuc. e ' -t this _- , oe.s not address a Li: ^e t�:e Co " itisicn has not considered d ct to c 1 the llcan in rCc.� "= - +ht' n-`.1!G1 at_':.'•J_L1eS anl: prU :G.��_ CAL � =•1`'p - �•L,J -`1- e which llii'cive dlttCrent designs, s- z- racture •ylo - -`'�rS 1 rLa+ T �-' ec t. L - i i-i- TCt.j C of jjl el'` - ia,si -e uCed �n �.. :e 1. + c_. -� which are not i I-:cl L ,_ 'c]:ial s uI ersCde� a .1 of the �tiordil :•� iIl F'�rm 5 (a tache.d) _�', :�ch _ l ed ~�IIiQ-r rI.,- li"e'-' . 1)i ' denim )�'� er_t;11.- s•ha_ _ st lr ir:terest t_r uccessor ill c.o :ltrGi . ' ! =�pi -_o ar]y �UCCes , Or iI ' `h - Order in �.he Iva. VJC' -rt registry of _., _,l i �. :]a f ±i is �o r_ =c' ru is - u:c. 1, _y . L�� C - and fails =c 1-2.e ;alp :n the i)CC _. . ' r the i��SSac: :1 C i L5 Land _'ur t_ - ✓ i-'r �. � t:on plettd slip '-- cvi _ed :'pith Form c. w1Lii1T7 _0 1,,� -' 1 :E5 ' -shill L. 1 L: (;, = f ,the d.ste C+t issuance of this Or.3e , �.- e- C07T ?t1S� Is t•1 rc'i=oru :i5 GGC :u;ner .l the •_. : :t�1115E'it_.. - �. + -r;-I- t0 d0 S.D -;C_ j-'- e. &',.) %Ii :a].t ',i 1' ✓C di.:'_', i:0 the - j11TJ.re Of t_ri? aP't-'liCd ' $ � - -ged 1 "iL. �eccrdi.lg _fee plus a tike of nol_ more Y�) :an �O0 it:i -y. j COMMONWEALTH Nantucket, OF MASSACHUSETTS ss. Superior Court Of Departmet n The Trial Co rt C.A. No.: WILLIAM LUNTZ, * Plaintiff, PETER W. DUNWIDDIE� * AMENDED COMPLAINT BORCHERT, LEE H. F. DONALD T. VISCO . DUNN WILI.ET, }IENRY ' WILLIAm GRA14VILLE WASIERSKI, JR. , * as The R • CRA14SIlON, JR . Commissiole the Conservation Nantucket, of the Town of Defendant s. IV NATURE OF THE 1• This is ACTION a civil action Chapter 249 brought pursuant Section 4 to General Laws Pursuant to ' for relief in the ' General nature of certiorari, Laws Chapter 231A Judgment, and for a declaratory Pursuant to M. G.L.c. 249, Section- the nature of mandamus. 249, s for relief. in THE PARTIES 2. The plan- stiff, William Luntz ` Nils, Norfolk - 262 Woodland CountY, Massachusetts Road, Chestnut 3. The 02167. defendants are members of the Conservation 2 MIA 7 4 rc: / - % Nantucket Lana Cou ncil, 51 Main Street Post Office Box 502 Nantucket, Massachusetts 02554 617-228-2818 March 15, 1988 Mr. Jim Mahala Department of Envi ronme Southeast ntal Quality and Engineering Lakeville Hospital En Lakeville, vital llle, Massachusetts 0234 Inc. Re :DE _ 7 QE SE 48 -446, Nantucket, Appeal Dear Mr. Mahala: of William Luntz We are a private _ aPproximately 1,300 ' non profit resources members who suenvironment and the of pport the al Organization of preservation open s protection of natural William Luntz' Paces on Nantucket. Nantucket s Notice of 20 -foot Conservation Intent the wide, filled, Commission, which was denied b gravel Proposed the Y the wetlands 100 -year flood road. construction of a owned b level, within Proposed road Y the Nantucket an easement Would lie While t Conservation through use the we do not Foundation. question application as access to the legal right of th In our because of ex r property, e owners to °Pinion, a road f e expansive we to be subdivided that width of °PPose this the local into three size, needed onithe Proposed road. Of Planning Board lots (which has Y if the square feet )• will not been land were to replace with f Wetlands, the not destroy approved by the proposed loss of which would be by An ecos s replication. impossible viewed in Y tem such its entirety. as these relationshi Y• Its Coastal wet meadows under the 'Ps, fine tuned integrated biolo must be Manmade replication over thousands of glcal Protection Act Years and Physical naturally plication at and the are protected Y evolved. In its best cannot local Wetlands a 20 -foot wide road i this case particularleate what has By -law. irreplaceable wetlands not r necessary Y, the Y and the onstruction of resources cannot be e Best ruction of justified. Sincerely, Lyn Zimm r "vz� -„�t AsSociat an xecutive Director 1 100% recycledpaper Cop/ LZ /kp enclosures cc: Nantucket Conservation Commission Town and County Building Nantucket, Massachusetts 02554 Mr. William Luntz 95 Devonshire Street Boston, MA 02109 COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** WILLIAM LUNTZ, * Plaintiff, * V. PETER W. DUNWIDDIE, CARL F. BORCHERT, LEE H. DUNN, DONALD T. VISCO, WILLIAM WILLET, HENRY WASIERSKI, JR.,* GRANVILLE R. CRANSTON, JR., as They are the Conservation Commission of the Town of Nantucket, * * Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Superior Court. Department Of The Trial Court C.A. No. d' -�j COMPLAINT NATURE OF THE ACTION _Is E� T ?ESi. FEE-3 0� C0jRT C1 ; :< 1• This is a civil action brought pursuant to General Laws Chapter 249, Section 41 for relief in the nature of certiorari,.' pursuant to General Laws Chapter 231A, for a declaratory judgment, and pursuant to M.G.L.c. 249, Section S,..for relief the nature of mandamus. in THE PARTIES 2• The plaintiff, William Luntz 262 Woodland Road, Chestnut Hill, Norfolk County; Massachusetts 02167. 3• The defendants are members of the Conservation Commission of the Tow,Z of Nantucket. Their names and residential addresses are as follows: Peter 14. Dunwiddie, 153 Hummock Pond Road; Carl F. Borchert 14 Burnt Swamp Lane; Lee H. Dunn, 74 Millbrook Road; � Donald T. Visco, 120 Miacomet Road; William Willet, 6 Monomoy Creek Road; Henry Wasierski ,: Jr., Shell Street, Siasconset• Granville R. Cranston Jr., Comeau L•" � ,.,t, 01asconset . FACTUAL ALLEGATIONS 4. The defendants, as they are the members of the Conservation > COmLllission of the Town of Nantucket ( hereinafte sometimes referred to -as r "Commission "), are the authority, designated by Chapter 136 of tile_ By-Laws of th Nantucket e Town of to review and act upon applications for permits Pursuant to said By -Law to ' remove, fill • or within 100 feet Of w I dredge, or build upon the wetlands in the Town of Nantucket, and are authority empowered by M.G.L.c. 131, Section such applications °n 40 , to under said statute. receive S• Tl1e plaintiff is the owner of certain lan referred to as �� d (hereinafter Locus ) located between New South Road and Weweeder Avenue in the Town of Nantucket. 6• On or about _ October 30, 1987 the plaintiff submit the defendant Commission ted to a "Notice of Intent" 136 of the B under both Chapter y -Laws and under M•G•L•c• 131, Section determination of applicability for a pplicability of applicable, t1le By -Law and statute, and if for authority to construct a roadway on a certain Portion of Locus. 7• The plaintiff's application, pursuant to the Wetlands By -Law, Chapter 136 and pursuant to was in accordance with all of the M•G.L.c. 131, Section 40, applicable provisions of said -2- By -Law and said Statute. 8• After a hearing, the Commission issued a. document entitled 'Order of Conditions" purporting to "deny" the: ' plaintiff's Notice of Intent, previously filed. The "Order of Conditions" issued by the Commission exceeded its authority, was arbitrary and capricious, constitutes a taking of property without just compensation and without due process of I' in violation of the United States Constitution, and the Massachusetts Constitution and deprived the plaintiff of his rights under the Wetlands Protection Act of the Commonwealth of Massachusetts. A copy of the document is attached hereto as Exhibit A. 9. The Order of Conditions discloses, on its face,. several serious errors of law, by which the plaintiff is aggrieved, including (a) The Commission purports to disapprove of the plaintiff's plan for the construction of a roadway, on the basis that "the applicant has not proven that reasonable alternative' means of access is unavailable ", where there was.uncontradicted evidence presented at the public hearing, both by the applicant and by the Nantucket Conservation Foundation, an abutter and opponent to the requested relief, that the plaintiff does not enjoy any right to access his property over the way which the Commission identified as an "existing road" to Locus. ' (b) The Commission has refused to issue any order of*' conditions, when it is required by the provisions of 310 CMR 10.153(3)(e) to do so, inasmuch as the roadway which the -3- 4�.11 JV d2l ob< CA t- . CIA ouf_e, r Signal re( ) Issued By Nantucket Conservation Commission i This Order must be signed by a majority of the Conservation Commission. On this ---L-7-/J, day of �A1 personally appeared ��-� �k ' . �,.. C '..�_, -, 19--� �--_ before me 10 me known be the Arson described in and who executed the foregoing instrument and acknowledged that he /she e ecouled the same as his /her free act and -deed. Notary 'Public , d mu r C TS * �.•_,, , ill. ( My Commission Expires The applicant. the owner, an y PC, son aggncvedbythis r der. any owner of land abutting the land upon which the Proposed of the my or town in which such land s located arc hereby notified of their right to reque5l the Department of Environm n 1 Supertedin p posed work rs to be done or any ten resrdcr,ts g Order, shall at t the reQuesl is made by cerbhed mail or hand delivery to the Department within ten days from the date of issuance of this Order. A COPY of the reQucst shat! al the same "me be scot b Engineering to issue a Clualily y cerlrhed mail or hand delivery to the Conservation Commission and the apphcanl. Detach on duped line and submit to the COttSE gVATtor4 COMMISSION prior 10 commencement of work. To NA14TUCKET CONSERVATION C01.11,71SSION Issuing Authority Please be advised that the Order of Conditions for the project at File Number SE 48 has been noted in the chain of title of the affected property in accordance with General Condition 8 on has been recorded at the Registry of Nantucket and If fCCorded land, the instrument number which identifies this transaction is If regrsleted land, the document number which identifies this transaction is Signature 5 -4A Applicant I 1. �»►m►►►w � �� pKTl1CM4 i \N Town and County Building Nantucket, Massachusetts 02554 Town of Nantucket Conservation Commission ORDER OF CONDITIONS (PROJECT "IENIAL ) MICHAEL W. C. EIKERSON VilILLIP -M LCINTZ ( PP0P;- :TY "JWNE 1 DEG-E FILE 1,7 -jM' Ek UNDER T1:E 1.-:4O1'ECTTOjq ACT (111I.G.L. CHAPTEP. 1:.1 E--T1(;N I,0) AND A T CD 1LTW CF THE 1Dj N ('-')F � 1 i IND111(:5 Publ Q1_,o`.'e 1. ?ot-J.!_e Oi. Intent. lasted f -o.-n 1 \7,:, %r�i �_' 12 to Dec:;I,- -P -C=r 17 :f a9` YLSe,i C, 2, t�.�'t. % ;'1 E:r;rrl'. �t _.hG c3 iircrl.li ^= l:ot.:. er,i -,Fdly and 'in writing, r_ .r1 the ;':.'l'perty L,wner and h; S re e_=:en ti': S aC we. 11 la s te&tJ *..*nVii'✓ frl•-1 re. preS•:' r,,- tltTe:. C, l�l•. N " :_1I1t'•.iCl :C..t CC:li e at —iOr1 FOl1 -1,2at _]:, aa�l.C. , t e Nast .c.ket- Co;iE.er'. % -at:Lc i C or.- L...«- ? :):1 11,_.1:L .e fo1.1.4i4in, 1:U Z) _')-a ', -: _ _ ;r��.���_!;, t.l;l'O�1g1 -1 .,'::ic17 t':e prc'c: t•d z-oa,_ wc•�ld p•a��� iE �ui-,�fct r.0 ?-- t: !y �._,:1: L•T t ! l' t112 `�dr_tl a::'�_ .�l', =tt Ct1C 11 i',C1i : :�?.Cc i CG i� 1S •a BOr6erl:i2 `'c ?: 'et.a'.e;i i'1et1 -5 ( J10 CI-M ZU. 0,4 7���.1 ",d i0. 5 j) i i d Lzi :-1,:i 11:•= e. c4: t: t :.!�__'.t =I �'rli7 1,1 C'w e ( �0 C!,iP iD iJ11 A � lch, 1t iJ �1`]�11 i Ca: l_ t.0 .... _ U •1. -� 1::tc°_reSts Gi FCL. Cil'o..,.d;i.r,rlri .'tipi..l1, 1vA C. i7taOI, r,r c %-ent'Lon :;-i,� Pre%rC: _rr _'lie Irir�cl Q'.4 C�'v ?C ci ,'Gs..:t G. 1'_'_l ! '�? tC''^ �r �� :a_ _ e T:J:G:1 the '.J,-,tG'1- _'l:l.. .1'_1; . I i v _ l.._. t. .. .:.� � � _. i, 1. .:t ��r_ ".r v]-'.1•i .: 1. o'w- CIo.d:l and, reduce .t: s ��11_ ng peric•Ci:J of ? I: >' =t': :,y �,JV �]_- L.,, ^,:T_ %C•�c:'_' -i:1,d )- }' f•. C:�.i1t� .::;'� .-later removal tfrGu 1: pi 7. 4r :,, [?10 (_YR IC).: ✓x'(11! Ii.� _ a :it._ ci � •x_11 c.a i•_ ::@ C';l,�,V Z _'� _t�l ":L1'_. of '= _llc'n.. G'S c 11l .aV'f rnc-t Ci i A is r!l.d t.':1':: %li;�li l :al. a C':i W,Yj i •! i.:7!.. -..li_ l: e Ott. ?'�1 �tl.':Ct_:!r:c . ,�) 1 i.0 l:'S' _.:. i�� '�t r1i'l.a C:1 !,J \•". 1., al 'D Z ";b-i ; Cct to the ((' ?; ?1J' 1 ,^ Vii.) _ Y_,._?'Er7 .- =L_ Tr,-,•m !O-r-etinz in 1Jol'Ci'1 - i 11 1 y _!J ?1'1 el`.1 --tat--is il:['ci- ed ].:5 r1�'t 1_l L'Y iD 1m:! l: a6r 1 :1 1'XR- 1.0. ` ;'O' 1,r C, u---e the uppl ic.3i":t li-.:: li!%t proven t1 t r e a aI%E�'ic1 :l`: me- --S Or access is ur:CVz: -,i1 bIr_ Ili i;:it, the 1:'ropi_{:— at �.j r11.•. �1 �_.. l - -T !i__t' - �!: .°.0 kG ?l I'3 tC�'].il:i•-te 1v aI7-'�_,r!1y t�r•J � �'!1 1J;' at IC'a�'t a_ J' 4) As pointed out i:l a m'.:mo dated December 3, 1937 , ' from Arthur I. Re_-,3c Jr. , 1.ttorney fc'r the Nantuch, C.175e.r`+atlor, Faurd�ltion, it is -}it of a�: r �,e tlir+ u -h the 50 -foot ri ht or way !'1Lla doubtful that t_he Tim: 'r. 1, ? ✓1 L�11 "1 t. and hl� j_.=r_Tjer> G: tt17t35 -.0 the 1i ht to Carly Ot:t y rt :pll + -,ation work in that Co2-- rid0r. vdeticl:7'1 TCp1lCoti0n in an area c -C�ual to th e. 2'0.7., 11-3ich ti;culd be destroyed [ ( 310 CN.R 10.55 (!i) (L) ] 'void' not be fc_as4L'lt 1�e'��•_�y1J L1ii F.i tvcket Consc:rV�.tlOn "vurl+�at1C11 W111 c,llc'w /iU_ i- - 1 -:T C. �'. -'dam.: C•]1 1::1:'.� �7•:.ttd r:te, Ctut n a letter for this purpcj EE , ii I' 01 i _ - 1 1- % it ":;il _.C}'iit F. Da7l=, d11 t' �. i,et' i 1'^:,�1- Ellt: I1 t_ t', I i }._:7 .L'�: }:+ t LC': -.� C'�V �•t.._C:7 T ^� �11:7d��tiC'... Even '! i this �,.7 --1 e lint all 1�s ''a , t;:B T rcpl i .�1 - •,] "1 }:•C .: 1 }�1C '::1�Lll'1 bi; ]ic;ll ^G'r: T'O �4= 1a:' d:.1 a,n`j it i� �1• i!i' is c1'! <:'t�11 - era f,: �•l C: }'1 _C1:E5 { , �. t_ - � , .,y 4 _ 1�L 11i:-at. :7 . � 11 � y the. 1 _ oa- t L �r i'1 it�i1 L oa- GSl']'� ('', t.� t'� :�:�:1 ..Li C� -i't J CYl:li�_jl ? 1. U J (1i ) 1 •' ) - nd i�CCaL' ✓4 tl -: ° 1 \Cit'+.L +� `Jt !:!tent t .11:, t V 1. \I - ar: a� 1� to +��:scr1?-,e iii_tigat_on 1 "1 ai 1'v° 1'; E C� +_ U :� C G L" _ °.: t::i +_! I < �•i:�•= �1:Jri11 f i'14_',C. it 1 ^ -,�� 'E" pl�i_ E,Ci. `::Gull ii = ".'E ez :l,g:-:li 1C &nt offer L }�Cr'11 wildlife. 3:7 1]:tC'1'� �t` Ll'OtC -ted b;% the }':c:7:tuC)`:at Wetlands � }' � aw • '1 1' +gad t -)i1= �u`1i _ ll- ,�,Gy I `'`.'� 1 .. 1. t.:le 1]�i1'JCmen tl �• }LC:f1+_•i•7 'e7C:u 'J 1 °•F. the . _. ( n • t - r y _ > 1.1 i_]:e. val.i.- esl. LG 4L -' E� (.l �I.�✓ Cli +� very - 1 =C,r ia__._[ L1 ='a liiaiil�:ctJTl:+�'_ .u� �!le,Y ' ,,Ji'�c° food to Illcriy = 'i'2C1a this Caa -ilia me a J. C I 1s a lli :7t1i1Lri are f1�1 C_ 1;'c• t!i 1 J.: l', !-: �.O v.'-1 h. Sli,_13...i- t�.__, ^e'."i, _: S'71 p �:. 1_ I_:i ,- - L.7C ::,vv- C:itc:d 1�.'tt�r =won >~ +,Lcr't F. DaylLr. 1 '�-�' :1 : }- tiC }_•1'V. ��t 1•i l.ail:a �'� -. °• %d C t�� ,_]:11 a c.n i•7 %'.t1Cnd i ,:r.: •� , ^``t protected 8ct @d by -the l: r.':u :�l:: ?r. �''t_tl•(I1ds ~ _ 1'7. :il�'.•7 `-'i .7 , ...J tr�L/.:. +-J'J _. ll �..I .J' _ • �. L•1':J _. r;' ^1• 'x_11? . 1:C'1't.li f rC,111 l.:l 1: 11a5 tai L /7CS tC flit: vLLl1:7 , ]ll fl'U71 ?. } ": l:'G11e 'tli: - 11'. _.1eas ti, the c•cJt =ai' -�I 1_ c_11': C LtI `" I i ?I'4' J� C.LO�'3 = ..a:llii::1�C'n '-- - };�_'• 1- f%_ 'ld.l� 1C `wv _r:'r'C'�.0 ):,j! the a %'Qllcant Wit. Of fL'll`l 'rl3td "mot =,) llcSl:'.,c(tC� Teti x:id would ):•C- '1i:::'•L1C,v =d laltl7 lilt .0 ,�1 iivo1I1111_- .�1r.11 .1' = i'- '- '-it1C•1iJ t.+ he 4:1.Ct }7`CC'rJstT'�l.r:�z Or vl'! b=ble 1f the i-'7: V 1 t: C'�:. \•; � l "t. al i0',a� :.i , d the ,17 ­17C'.. t):.•1� w +J 111 +� }:•ir`JC111 �u !1 i1d1 I]. 'lli�� U 1.1L•7;it )1..:= 11Li `�VEYC0.111: )i1, 1 "111 = ;1� „:•j.,t: �,�� �.:':,'': _ V J5( 3.i ] i_.)i_1t, t.l_: J 1•j,:11' }. j"'1"•1•' }�ozS :d 1.- Ja��_,Illl.1'�.:.Il! t.�' ' ^L - .l 1. 11 ` J ' I _ - - the into Zt:Zt:- CitLA t1) cve. i13e('c1uFe tlli:: t,'. _ l •1 I �l 1 ):t: ...,_ = .'J'J`•7 �'�`' . C)J ( Jl. ) ] L' •.:11 11 t h e - �'.11i,l- '`���, "1 lll7•� 1'�.'�]7 1'1' - �ti )' - ,' , ?+g'�i) _te iTt_ •311, ' r r ' ;" E' - ' 1 L' l lr (� ' 1 C. _. ::i -e, 1'1 C. (- :y +_.�rcC).µ_, �.pl. _.,�Y.1�_:_, i� not_ .-.:. � - - L 3 .'.Y There is no obligation upon the Cc.mmi =•lion to grant permission for the destruction of this much wctlanu` in cider to allow access to a pre- eXisting lot otherwise inaccessible. Even if these were sucl: �� i i_^ has r:(_,t been proven to --he' obAl igation, thl. Clam of I:�CCB..,_•ibi_i � j' Colr�,lissi_n's satisfZiCtion. There is alresdy at least cne r,.:ad crG_•sir�9 a r -rncr of -lie lot in question; this road is open to the puL,lic, including the owners of the: lot. The size of the proposed road and the lack, of n-,itigation mc.asure.s t.liat would meet the performance standards Cr t17c L]etla: ":ds Act aind thG 1�a17tucket Idetlands EylGw m3 3:.a this prop,:--sal un,:cceptahle . 1~Or t}:�' i E�:�•Jl:a set io:it17 u}- -•oVe, t.17e : \iotjc.e of intent for a road V alley (D EIE File SE43 -445) is denied under the ., ..�:te [':etl _=nds ?�r_:t.ectic'n Act ! p = rticularly Cr:T 310 10.55 an j 10 . `.:3 ) r ,1 <<•4 136) . Ho,...eve,. c -.i7Q :1r.uC'1' t! ":C. 1�7� =i:11 :'��.:7t,1C):e � t':Etl�n,�s _�) _G'.J : _.. �>t� , - 1e an 'S �=t ad ress a- ihi'� tiirte t, e C :r II L -•iCl; );as r.Gt. _cGl siucr�_d dc� n d o -'he a,_ ..iv; lies and �: ro_:os�:l _ of the. applicant in res_, -ct _o the. �•Lai:i�%:_ wh1 =i1 17iVCi ,E,, jjffer'�77t designs, °'mil ".:Cttll'?_ , lOCcl i Ci:s , or type S. 7�_n l 1.7: "1ich Z!re not inclu,3e,_9 in ti "iL Nctice. I1teI7t _ is-sue.. t.h� 1;Gldir::_ il: FOYM 5 dttCil:hi'A) ti.'1 =lch t] t t t e d ul,der ti7is Grier. i'his d,�nial T.o any s,�cL.��s 'or _l: i- tc:rest. (_.r Succe- or in cor�troi . fails to rr -cDrd this urc2e_ in ,.he. Nant'� h t NFgiZt f ale e.3z 'th-e ^'Amassachl-iz T.ts L,;und C• art =nd fail:. t.Q fi1.e With the hG :.,15� _O : t.i_:�� _OP.'i ?�1C'tcC� S111' _G'.7ided 4:ith �'ca :.,q �, Wit1;1n 1+J l i �•1nE`_ �= __ c C:�y' of ti:e 3_ite c__ i�cU317CG of this Or-3­r, the l:ommi:=sioi l� ,�; = =:s _e.cord this tC) 1'cC Clu -ii_� !i is . if the an _:f�lll ;�i � 4_0 t) ":e _ 111,1re of the appl ic• =,I;t to do so, t):E i;pp1 iCal -a ch,r ;e:j '�_..:i - C l Cir�3iri f C'e pl,.jz a fine: of not more than S-.103 r-er day. 1 4 I M— M R-21M Gilt)ert T. Jcly Regionai D;rec%:-, 11 3/ , Y-c—, (7-el 74�11 � �71/1_ CZA 1/1 a 7 Esq. Ene- April 4, 1588 ' k'_ Clan S SE 1 tS' zn;g.,_neer_',ng is revlew2�ng ire r .77 14 jrsu= C? x :'= S S!A C7 e r f C' DI 3 =S I On c d a c 4 e-73 tly= Z I -s _4'=o,_:_T­d n 3C1 CIR 11.26(7' (a) cf t�,a "P) g Y Jling, 32te1-:L*i erDDrai 0� a. 0---e t-2-c'as-and squars feet Cr :rr;ra cf S37- e t7h.,ousand Z IV t of 'elf= Fr--e tre 0, _a7 '" J S?Creta2l-y h ­cn =s 02202 rill 1 i9spi ' - c *ect 's re-vi, a"..7 of prf--T -_ k.r i l 1:f ca"I &C, &qua i_e y -I the t�a-r':-Sts of pt acs C 2 pzo w 1. NDtification from _ e TnInl.:- -:j l acce!D 2. the I• antuc}�e` -- P a: �,l.ng !73 aZ d, .gin writing, ng, as to l h-e ,DrcL�:�sedl Cr a el road. r ly Oi C ne pr op",Jsed 24-inch 3. Ti�.rratii _ plans — a ^prod _ ate, describing V ;.i ^1_�=ii�S ir_J�..''..C�t? -1 b?iiiq p rc, -- C•See including a listing of sPeCJ -es 1-0 t•? ,used, -he den—sity cf -c :'��etctlCl: if different frc:n ;r;l t is -re SC- ntl3% on ti: _ 'e S e, �ncd a timetable and -c :g - -,:a;D,atat'_on 2frc�t. a. ;f�aiZt1�J t�;e dTrJLl'1t i ?C? "Cc�i:�C =' =�=0� i•" �; _ ctiallas o�sed .O =1i i y.a_.= �t :'.o t" ? °_ ` C:1 _ 7 _ -_ s -- iCG� : . :.._.-_:� _ -c =_ �r -.:-C vli t.: =�_ Cll ` j it -he tea^ = e �c =_ -_o _ - _ - - �s :�• � s ^ =e _ z the Depart=s- -Y t ui i 1-- _.._j> ES'v.i L in L1!e u%c _ , (fsn;'i_r'lg the ac.� tiOn. .. _ �J._..._ r...=i�._.a 1.:�_ti.•:: a ! •' Ot irfc'r:,-ia _ _�asz _ --act JiT, .;=_;,pia a t,e �rw ,,,,,, :;c�_•o= eras, Acting Chief _ncs Sectio_7 .zu`n _CE —zz=;, _A ''212; � - - „_•- _ JJ �__ _ re `tree _ Y =S _ `lam �S n i SC',EFt =F C }.` ° i s may _0. 15 4 F --. ...--s.i }tom TIAL f- L`A.. ON THE -I NkME .L t +d:.vZ Ec `A ?hvrt_,R c ad T r ��ld �i4f,Z'Tr• �i� .k F L�i v':C 7j semi �. J. � t r n n .i�S9 S4: *s ._• -•-• �. �`- !-MS Sr ek ?ollc7y a 6 . Y . 0 E-1 - 6 A G'- sect he KI�PA re!:, R i1 `s1'� j , �hWLc-by detierr,_i- cE 41-h `C the ab k-W-.1�j w� � Ct }cf: a m,9 pi's tiit2 r ` sc C °Z Crf sue :4i to aC::ess an, a�<<_ u.Ximate =`l y 1 a "�� `i-i �.t i ^-f lamid to b?* 2-- Or fc- ♦� �� fa s'- �` ri l-s-g. Ties r` aeLdi '`.tcV��Cr � 'F�:= `Ei.ik.� .Jt t�,2Z'r .s `�`.�.: i:. j �+3' 1 e� a-..E bsl 46E t�u under tin �1,t eft ��rt r yi \d�tde the control 0 1fle NaM 4s.4kst v'LCnse �`��i+sl� C �c_ ^T T�� ell's way Th proposed 0aC` y ' S Y r alo e denied the _c: css titre ey-i s t i; g Z if 'Ys Ci2 NC- Ir 71-le x opo ed r Dad aY will ent 44.1 `- f 1 l irkj cf i,;: t- .- C ft� � �r.c�t ,a s,� t � � s5 It C rc'sSL-^s �'v� `�i 1�2y Vegetated !tom � �...� a''t _ G�sr. t..�€_ �....:. the tial e - y * '^ the pnrc'; l . The eiaCt s z - o l a = C f f i l l }ice as 6,615 square feet (EF�`t filing, bas -ed or. % 20 f=t / C ( s-}� -r -0 .. �"".� tom` x'�.. �: i 6 ' roars to 3r 8-n sgi,,`«.re feet l c A.�c w+-s_ i +.t+:� ta..t $7 -he Pa .sent h f c.h ' `a lx L' s r g4Ta &� ay Y:t ate rQa o t � �f er_.� �a tC? i2 ti 3 ,tuck et P1a,.nning d ^aTYi may allcw. 'k` %C roadway : cati -_-a is also 9uI-- Jec : S_'o P,-- r. 0d` c Cc 4tal f ood Inn . The .nr- om to wet-land areas do of `vPear tG :xx� 4 1�v -d c�.r��� 3 � �,�ry -i !-'r:_ r'zr,";Qr=rice standards Qf�ti:"(e Petl ::ds ReTala *�Cns. of t that the .'^..r�:p,`.,�.nent ill be a-19 tO !3 4= ���..+ i a t",+: �P .�•• -•v *'ti? -^ s'�t. -� x�9 t• -'chi dardS G~ this a.g the land in V'ai ey is r` i under, his :Cx t: ^i . T�:�':6"vfY`re, 1 az r e z, TT`.`-'. i, '.:a`_ Lsxf' �`+`",L ='"iviic?i` ._^.sc,: LC:':"r w:� a.2S 1 ri;3! :i.•_.�:�r:g -._C! : G- ! -:µ �: �s �$` --• El� F F l h • S e " a-.n d s w z " c CS 11 y c t " i f + � :;-- z - .4 r * W.- ord-er, Ths KEEPA e. s + a t _4 on s tud y apprleed of prc­nent must al:a-o r.. .� & � A i-t. - - t t b7z taht­_ to I SO _Z4 e7mv c�f sn. t - 1- a4-1 t- _n_ �!L- -a-,gur-rd the ? z W 4�t 61- t la s i I I j�t. e f f c�r n IC n S F;M e: r May D-Illiz -5 Nat"aral Heritav? prograa Of fict 5 ?-'2 4 8 9 Sain-tucket ':-and Scott R. fit!_rr-AiLarm va:-ivo_!��kmt Conservaj_- -lort F-o- a t -4. IJ 0 r CO MS U T T�Lg S 0- -a P n an t u C t e t C + j D / xWF / ,l) w if 2 n ' ARTHUR L uF w TAE, JR. SARAH F. ALGER KENNETH A. GULLICKSEN SUSAN H. JONES MARIANNE HANLEY $EADE & ALGEi3 PROFESSIONAL CORPORATION SIX YOUNG'S WAY NAYTUCKET, MASSACHUSETTS 02554 (508) 228-3128 FAX: (508) 228-5630 July 3, 1989 John DeVillars, Secretary of Environmental Affairs Executive Office of Environmental Affairs 100 Cambridge Street Boston, Massachusetts 02202 MA>T NG ADDRESS POST OFFICE BOX 2669 NANTUCKET, MASS. 02584 Re: Project Name: Gravel Roadway Project Location: Toupuchue Valley, Nantucket EOEA Number: 7696 Proponent Jonathan G. Davis Dear Secretary DeVillars: I am counsel to the Nantucket Conservation Foundation, Inc., the private nonprofit conservation organization which owns land surrounding the above project, and have reviewed the Certificate on the Environmental Notification Form dated May 30, 1989. The Foundation is pleased with the content and determinations of the Certificate, and particularly with the requirement that the applicant address the issue of endangered species habitat. Our consultants at Daylor Consulting Group, Inc. are now further reviewing this issue and will communicate with the Natural Heritage Program as to their findings. As you are aware, the parcel which the proponent seeks to develop is in a remote area of Nantucket, more than one and one half miles from the nearest public road and surrounded by lands held by the Foundation for permanent conservation. (A copy of the Foundation's properties map is enclosed for your reference.) The only legal access to the proponent's land is an easement across Foundation land, created by former owners, which traverses a wetland. The dirt road which is near a corner of the subject property is located upon registered land of the Foundation and has no legal status; the Foundation has the right to obstruct or eliminate it at any time. Granting of easements in order to facilitate development is directly contrary to the Foundation's established policies. Construction READE & AEGER PROPLSSIOI:AL CORPORATION John DeVillars, Secretary of Environmental Affairs July 3, 1989 Page 2 and use of buildings upon the Davis property would, we believe, seriously and adversely affect the unbroken area of wildlife habitat which is now protected for a considerable distance in each direction. Furthermore, in this case the Foundation is concerned that any road construction to serve the proponent's land will draw substantial vehicular traffic - most of which would be unrelated to the proponent's proposed use of his property - into the area, resulting in further impact upon habitat in this parcel and the surrounding conservation lands. As to the final paragraph of your letter, the Foundation very much welcomes your offer that your office is ready to assist in mediation efforts. We strongly support a solution which will enable access to the parcel across existing roads instead of requiring filling of wetland areas. Our concern, of course, is that any access so provided not be utilized in a manner which will result in a proliferation of development of the Davis property. Such development would be, we believe, directly harmful to the environmental values with which your office is concerned, especially as to protection of habitat. It is to be noted that the subject parcel may be currently used for construction of one dwelling under the Nantucket zoning by -law, as a matter of right and without any requirement of improvement of access which may be imposed by the Planning Board or other local agency. Such construction of one dwelling thus does not necessitate any substantial road improvement, although an Order of Conditions for a driveway and utility lines across the wetland area would still be required. Construction of a second dwelling on the lot, however, requires approval by the Planning Board as to access, and the Planning Board has in similar circumstances refused to give this approval unless substantial road improvements are made. As to subdivision into more than one lot, this would place the project within the Planning Board's jurisdiction under the Subdivision Control Law and would require improvements as determined by the Planning Board and pursuant to its Subdivision Control Rules and Regulations. After considering the impact of each of the alternatives discussed above, the Foundation restates and hereby confirms its willingness to grant an easement, 10 feet wide, for access to the subject parcel over existing travelled ways over Foundation property between the intersection of the road along the westerly boundary of the Foundation's land (sometimes called "Russell's Way ") and the travelled way sometimes called "New South Road ", READE & A.LGER PROFESSIONAL GORPORATION John DeVillars, Secretary of Environmental Affairs July 3, 1989 Page 3 thence along New South Road to the travelled roadway leading to the subject parcel, upon the following terms and conditions: 1. A permanent conservation restriction shall be granted by the owner of the subject parcel, pursuant to General Laws, c. 184, §§ 31 to 33, inclusive, to the Foundation, which shall contain provisions satisfactory to the Foundation, including: (a) Establishment of a mutually agreeable building envelope, with no alteration of the existing condition, including clearing, fencing or improvement of any type, of the portions of the parcel not included in the building envelope and driveway and with appropriate limitations upon total ground coverage and building separation; (b) Restrictions of use of the subject parcel to one single - family dwelling, with accessory garage or storage building but no additional buildings, dwelling units or living areas; (c) Prohibition upon subdivision of the subject parcel, or any other division into additional building lots; (d) Limitations upon height and exterior architectural features that are consistent with standards customarily imposed by the Nantucket Historic District Commission in the area of outwash plain, and prohibition of lighting of the access easement and driveway; (e) Right of first refusal to be held by the Foundation as to any proposed sale of the subject parcel. 2. The owner of the subject parcel shall irrevocably release to the Foundation all rights to use the portion of the unconstructed "Way" along the westerly boundary of the Foundation property which lies south of "New South Road ", except for foot passage to the beach and seashore of the Atlantic Ocean to the south. 3. The owner of the subject parcel shall irrevocably covenant not to pave the access easement or to place other impermeable substances within such easement. READS 8e AEGER PROMSSIOICAL GORPORATIOT John DeVillars, Secretary of Environmental Affairs July 3, 1989 Page 4 We very much hope that the applicant will accept this offer and thus resolve his access problem in an environmentally responsible manner. Again, thank you very much for your careful consideration and interest in achieving an appropriate resolution of this matter. Si c rely, Arthur I. Reade, Jr. AIR /hjf cc: Mr. Jonathan G. Davis c/o H.J. Davis Company 320 Washington Street Brookline, Massachusetts 02146 Theodore L. Tillotson, Attorney One Freedom Square The Commons P.O. Box 1389 Nantucket, Massachusetts 02554 Mr. Robert L. Daylor Daylor Consulting Group, Inc. World Trade Center, Inc. Boston, Massachusetts 02210 Mr. James F. Lentowski Nantucket Conservation Foundation, Inc. 118 Cliff Road Nantucket, Massachusetts 02554 Mr. Mark D. Arnold Dennis Drive Nantucket, Massachusetts 02554 Ms. Linda Holland Nantucket Land Council, Inc. 51 Main Street Nantucket, Massachusetts 02554 William Willet, Chairman Nantucket Conservation Commission 4 North Water Street Nantucket, Massachusetts 02554 (h�f #10 /nAVTF-.nAVTg1) READE & ALGER PROPPSSION'AL CORPORATION John DeVillars, Secretary of Environmental Affairs July 3, 1989 Page 5 cc: (continued) Mr. James Mahala Executive Office of Environmental Affairs Lakeville Hospital Lakeville, Mass. 02347 _ 4 Daniel S. Greenbaum Commissioner Gilbert T. Joly Regional Director Theodore L. Tillotson, Esq. Sherburne, Powers & Needham 18 Broad Street Nantucket, Massachusetts 02554 Dear Mr. Tillotson: DEQE NOW IS THE DEPARTMC-14T OF ENVIRONMENTAL PROT%C77014 August 14, 1989 RE: NANriU= Wetlands File No. SE 48 -446, Request for Additional Information The DepartrTient of Environmental Protection is reviewing the above - referenced file pursuant to the issuance of a Superseding Order of Conditions regulating the proposed construction of a stabilized gravel road throu�ft a Bordering Vegetated Wetland (BVW). The Department's April 4, 1988 letter requested details of the proposed 24 -inch diameter culvert including invert elevations. The revised site plan, dated March 17, 1989, submitted in response to the DepartmeDt's request show the details of the culvert. In response to the submission of the culvert details, the Department has the following comments: 1. The revised site plan shows that the proposed leaching catch basins would have an invert elevation at -1.0 feet. In that, wet meadow plant camas Zities have around water at the surface for a significant part of the growing season, it is the Department's opinion that the proposed catch basins would not function as intended. Therefore, the Department rquests that the proposed leaching catch basins be omitted from the site plan. 2. The Wetlands Regulations at 310 CKR 10.53 (3) (e) require that a roadway or driveway be constructed in a manner which does not restrict the flow of water. In light of this requirement, the Department requests the invert elevations for the proposed culvert. The Depc&xxtment requires receipt of this information before any further review of the file. Failure to comply may result in the Department issuing a Superseding Order of Conditions denying the project based upon lack of information. Original Printed on Recycled Paper -2- If you have any questions, please contact James Mahala at telephone mm ber (508) 946 -2800. very truly yours, a�' d' - 2 � L -4ZL,- Eliz th A. Kouloheras, Chief Wetlands Section K/im/lap cc: Conservation Ccmunission Michael Emerson, P. E. P.O. Box 462 137 W. Ninth Street So. Boston, MA 02127 William Luntz 95 Devonshire Street Boston, MA 02109 Arthur I. Reade, Jr. Reade & Alger Four Young's Way Nantucket, MA 02554 .11 4