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HomeMy WebLinkAbout2018-12-3ConCom Minutes for December 3 2018 adopted Mar. 25 2019 CONSERVATION COMMISSION N A 14 T J G K PUBLIC MEETING T C W N C L E 2 Bathing Beach Road Nantucket, Massachusetts 02554 2��9�R 26 P� + 3� www.nantucket-ma.gov Monday, December 3, 2018 4 Fairgrounds Road, Community Room — 4:00 p.m. Commissioners: Andrew Bennett(Chair), Ashley Erisman(Vice Chair), Ernie Steinauer, David LaFleur, Ben Champoux, Ian Golding, Joe Topham Called to order at 4:08 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resources Office Administrator, Terry Norton, Town Minutes Taker Attending Members: Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Absent Members: None Late Arrivals: None Earlier Departure: None Town Counsel: George Pucci, K&P Law P.C. Agenda adopted by unanimous consent I. PUBLIC MEETING A. Announcements B. Public Comment — None II. PUBLIC HEARING A. Notice of Intent 1. *Sconset Beach Preservation Fund — 59-119 Baxter Road (49&48 -various) Area SE48-3015 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Recused None Documentation Supporting documents and plans. PowerPoint® presentation. Applicant Steven Cohen, Cohen & Cohen LP Representatives Dwight Dunk, Epsilon Associates Inc. Les Smith, Coastal Geologist Epsilon Associates Inc Gordon Thomson, Baird Associates Josh Posner, 77 Baxter Road, Chairman'Sconset Beach Preservation Fund Jamie Feeley, Construction Manager Cottage and Castle Inc Arthur D. Gasbarro, Nantucket Engineering & Survey Public Emily Molden, Nantucket Land Council (NLC) Hugh Ruthven, III, Applied Coastal Research and Engineering, for NLC Warren Wegner, 50 Quidnet Road Rick Atherton, Former Board of Selectman D. Anne Atherton, 48 Squam Road, Nantucket Coastal Conservancy Discussion Dunk — Two weeks ago we summarized material dated November 16. Material provided Friday was in response to material discussed two weeks ago. Attachment 2 of the letter addresses the proposed project versus SE48-2124: how they are the same and minor changes. This is an extension of the existing project to bring the structure up to 4000 linear feet as previously applied for. Reviewed history leading to the proposed NOI. Cohen — There's been a lot of information submitted and a lot of discussion. He'd like to identify any decisions or information necessary to reach a positive order and how that might look. We are waiting for Massachusetts Natural Heritage (MNH) letter so don't anticipate closing for that reason. Steinauer — The commission didn't approve the revetment project, we denied it. The Department Environmental Protection (DEP) overruled the denial and it went to Superior Court. We agreed to allow the project with the hope we would see a real 3 -day Nor'easter to test the project. He's not sure what we had hoped to see ever really happened. Coir logs are not shown as an alternative; one alternative is a hybrid system with the fourth geo-tube replaced by coir logs. It goes back to sand storage; he's not satisfied with the proposed nourishment. In a big storm, it would over top the three geo-tubes and take the sand from the logs into the system. Cohen — If the commission wants to identify areas to make adjustments, we can discuss that. What we did has shown was no discernible negative impact on down -beach erosion through the 5 years. At the end of the day, he thinks this system meets all of the legal standards. He wants to identify where in the design there is room for improvement; however, it should be applied to an actual concern, not just piling up sand. Feeley — Reminded the commission about the three consecutive Nor'easters in March that each lasted through several high tides. The problem we had getting the tubes covered during that period led to buying the dozer and the application to use coir logs on the returns. Page 1 of 6 ConCom Minutes for December 3, 2018, adopted Mar. 25, 2019 Dunk — The front template is over 6 cubic yards per linear foot (CYLF). The proposal is for 22 CYLF on top of the template to be available for recovering. That 22 CYLF would be placed once a year providing plenty of stockpiled material on top of the structure. Champoux — If 22 CYLF per year becomes insufficient, there should be flexibility built into the plan to compensate. Dunk — Conditions are that if tubes are exposed, they must be recovered within 10 days. Erisman — She's concerned for the years when more than 22CYLF is required and how they would know the bluff would have given off more sand; we need to quantify that difference. We are entering a period when well get larger storms on a more regular basis. Dunk — The DEP policy is to meet the long-term average; that was less than 1 foot per year over 150 years. More recent erosion has been greater. We can't predict the future, but we can use data to calculate how to compensate. Any exposed tubes are to be covered after an event Smith —We have surveys of unprotected areas. If we see increased erosion there, we can make adjustments. Champoux — We don't have an accurate reference point; we don't want to be locking into an amount that won't be sufficient in the future. Cohen — The adaptive program puts out 22 CYLF sand at the beginning of the year, they can track the amount used during the year. Topham — There's a lag between a storm and the report we get He's concerned ConCom could get a report several months later and learn the system has been starving all that time. Cohen — We are required to submit a report after storm events. If you want a one-time contribution resulting from a massive event, you can condition that. Golding — Mr. Dunk stated that the Coastal Zone Management (CZM) calculation for erosion was 1 foot per year averaged out over 150 years. He presented a photo taken in 1975, showing how much lawn his family's property had; now there is virtually no lawn left. We lost up to 15 feet of bluff in a storm- Dunk tormDunk — That is why that 1 -yard amount isn't being used We identified that long-term erosion isn't applicable because the erosion rate has increased. Golding — He wants it on the record that the 1 -foot erosion is wildly inaccurate. Smith —The previous order of conditions has a failure criterium that if the beach goes away, the project goes away. Golding — He thinks Mr. Steinauer's idea would be work looking at We all saw in March the system was starving. Feeley — The point he was trying to make was the period of three good Nor'easters in response to the comment we hadn't measured the current structure in a Nor'easter. Dunk — For the years prior to construction, erosion averaged 8 to 9 CY; last year was 20. Golding — Beach dewatering was installed long before 2000; he has photos showing it in 1997. Two weeks ago, Mr. Dunk said zone three, south of the existing structure, Lots 83-73 were eligible for protection under the local regulation. He went through building department records to ascertain those buildings are not eligible under the local bylaw. Submitted that information into the record Dunk — We submitted back up for those details, also from building department data. Cohen — When we're talking about a project like this, if you identify houses that don't qualify, it doesn't make sense to put soft spots intermittently in a hardened Coastal Engineering Structure (CES). The road and many houses qualify for protection and justify the structure being solid end to end Asked the commission to focus on whether or not the applicant has the legal justification for this CES and how to address concerns using the most reasonable and best -practices alternatives. Under the State definition, nearly all lots qualify; this commission granted waivers for the current structure. Steinauer — The Bluff Walk doesn't qualify as a structure; as the bluff erodes, it should simply be moved back- This ackThis whole project started as an emergency to allow the town to move Baxter Road back They have a plan to do that. Cohen — The Bluff Walk doesn't have a legal ability to move back; it is a piece of public access the commission and community enjoy. If we enter into an expansion project, we can come up with ways to change the existing easement. In terms of Baxter Road, there is an alternative access agreement in place; all it does is create a path to get from the golf course to the back of Baxter Road; there is no plan to move the road There is enough road layout room to move the road back some; however, all infrastructure would also have to be moved 10 more feet away from the bluff. We're looking at protecting the road and houses through a CES that meets the regulations; he thinks they've presented the best plan. Bennett — Asked what lot the alternative access goes to, what lots would be served Cohen — The location of the access is at the end of the road; it would serve whatever lots were north of a breach. Erisman — Under DEP regulations, we can't permit a CES in front of post -1978 houses and empty lots. Asked which lots need infrastructure protection and if the town weighed in on that On the existing structure, The Town weighed in about the infrastructure at the northern end. We haven't heard if the infrastructure is threatened. Cohen — The town established 25 feet from the bluff as the benchmark when the road needs to be closed If ConCom were to say 100 feet is innr•+inent danger and 50 is immediate danger, almost every lot is within that Page 2of6 ConCom Minutes for December 3, 2018, adopted filar. 25, 2019 Steinauer — Asked if Hurricane Sandy was a 100 -year storm or how it was categorized. Cohen — We can figure that out; a chart was submitted showing that. During Hurricane Sandy, the areas that lost the most were areas protected by coir bags, which were wiped out in the storm. Steinauer — Asked the life expectancy of the current geo-tube installation and would the idea be to keep replacing it as it over the years. Cohen — Yes, the project would be perpetual. Dunk — The product will last many 10s of years as long as it is covered with sand. Bennett — You mentioned stairs terminate on top of the structures and to reach the beach, people have to go down to the ends. The previous NOI had many points of beach access from the top of the CES; this has none of that. Cohen — We don't want to end up puncturing the bags with the installation of stairs; from a design and engineering point of view, we could provide access all the way down. There are a number of stairs on Tom Nevers which are removed at the end of the season. We could mark the stairs as public. Bennett — He wants to see a plan showing public access; that's critical. Golding — We are talking about proposing steps from the bluff to the beach. This is a discussion we've had before. Steinauer — He still has concerns about the notion of sand storage off shore; he wonders how that can be when we aren't seeing the bottom being covered. He questions where that sand is if not covering the bottom. Cohen — The sand doesn't necessarily go off -shore immediately, it has several systems it passes through first. We want to ensure we're providing enough sand to prevent starvation as well as not over nourishing. The off- shore video monitoring ensures we aren't over nourishing. Dunk — The 30 -feet of loss is episodic in areas, not along the whole structure. Bennett — One of Mr. Gordon Thompsons' points was constant nourishment during an event subdues the break zone, where waves are breaking. That adds weight to the argument for needing something available for the system all the time. Erisman — Mr. Dunk said one way to know to adjust the template is recognizing down -beach starvation. The question is how the commission proves that down -beach erosion is due to starvation or natural. Cohen — We have real-time assessment of how much is lost and data on the down -beach erosion rate. If natural erosion seems to be increasing, we can react to that. We're not required to prove causality; we are required to adapt to resolve any changes. Golding — There was clearly a problem this past Spring. He thinks Mr. Steinauer's suggestion of a hybrid structure is valid. Asked if the applicant would be willing to look at that as a reasonable alternative. Cohen — We have a dozer on site that can respond quickly, and we have a proposal that will have three times the amount of sand available. Golding — He has photos showing the geo-tubes stripped clean day after day. Our difficulty is how to permit a project to prevent the system from being starved. Cohen — One response is we were contributing enough sand because it had already moved into the system. The next question is about reducing the response time; we can look into that and come back in two weeks. Dunk — The 22 CYLF lost during the March storms is what was contributed off the template into the system; the adjacent un -protected bluff only contributed 6 CYLF. Erisman — This is a nodal point that will erode more. Dunk — That goes back to why we need to protect the homes and roads. Cohen — We don't have to have constant contribution to prevent starvation; minimizing starvation is the issue. Feeley — Last March, we had an access problem due to tidal run up; getting the right person with the right machine proved to be a challenge. That's why we got a bulldozer dedicated to this project and why it's important to have as many feet of sand as possible to cover the front in a short window of time. Bennett — Asked if they will have access to the proposed ends. Feeley — We would have access to the northern but not the southern. Bennett — Asked if the dozer can be lowered with a crane to the beach. Feeley — No; it's about 40 tons. We have access to the northern end. We can get close to the southern end. He feels the one machine will be sufficient. Stockpiling material on top of the tubes takes longer than pushing it over the side. Topham — His main concern is keeping the project covered. Feeley — As long as material is on top, the one dozer is sufficient. If it isn't, we'll figure it out. We haven't had a scenario where we have a machine on the template but not enough time to move the material off. We have an excavator, a dozer, and smaller machines. Dunk — The material on top of the tubes is the stockpile. The best available measure is to provide replacement sand in stockpile at the top of the tubes so the tubes can be quickly recovered. We are providing plenty of material. Steinauer — We might need an independent review of the mitigation plan. We haven't heard how much it would cost to remove the project; a fund should be set aside so tax payers don't get stuck paying for that. Since we talked about bringing in off -island sand, do we have a grain -size assessment of sand in the system. Page 3 of 6 ConCom Minutes for December 3, 2018 adopted Mar. 25 2019 Cohen — We have the grain size. The current project required money in escrow with the Town for the removal of the CES; the new one would also have that. Suggested that if ConCom wants to have a sufficient peer review, it should be of a proposed order of conditions that include a mitigation plan. Dunk — The existing project was peer reviewed by Milone & MacBroom. At that time, they suggested using adaptive management. There is a requirement that sand brought to the template be approved; sand data is on file. Golding — Another of his concerns is that the bluff has a lot more than sand that it contributes: cobble and clay. He doesn't see how material on the tube will replicate that contribution. Dunk — The standard is that the material be compatible with the adjacent beach- Bennett eachBennett — Asked if the Town engineer helped figure out the cost of removal or if that was from a proposal- Cohen roposalCohen — He thinks it was a proposal that the Town agreed to; that is on record with the Town treasurer. The estimate was provided by Toscanna. Thinks the escrow amount doesn't need to be updated yearly, perhaps every three to five years. Erisman — Asked if the bulldozer has to go on the beach in front of the CES. Feeley — Yes, we would leave it on the beach a few days at Hoicks Hollow. On the point of efficiency -capacity, the dozer has a laser system installed that we can program with the coordinates and grade. Golding — Noted the ramps have been washed away several times. Asked how long it takes to replace them. Feeley — Explained how the ramps are replaced and it takes about half a day. Cohen — Issues we should tighten up on have been raised. Reiterated his opinion that the peer reviewer should review a draft order of conditions. He'd like to get to the point where meetings are productive. He wants to make sure something is in front of a reviewer before the holidays. Molden — Throughout this process, a concern has been expressed that adequate nourishment hasn't been provided during consecutive or large event storms. Testimony and reports from Applied Coastal Engineering have indicated nourishment is inadequate. Mr. Ruthven is here to speak to points he made in his last letter. Ruthven — This project has more data than any in the state. The problem is it's not being used. There are critical concerns. Critical issues include long-term erosion rates, using information from over the past 100 years is inadequate; the questions is how to get adequate sand into the system. Short term shows the current erosion rate; we want to ensure the neighboring areas continue to receive the same amount of material the bluff is currently providing. He has an accretion rate of 1 foot; after that, it was eroding significantly. He calculates the erosion rate is 7.27 CYLF. He looked at the top of bluff and found a far more significant erosion rate. If you're looking for a cohesive system, you have to look at everything and he doesn't see that happening. DEP versus CZM becomes a question; look at the whole picture. CZM agrees the most current data should be used; long- term data is used when there is not short-term data. Another problem he found in reviewing data reports, the Woods Hole Group documents are public documents; he doesn't know why those are being used for a private application. The applicant should be doing and using their own research. He used the applicant's shoreline data to plot the shoreline pre- and post-geo-tube, which indicates erosion has increased The reason we're seeing more sediments as erosion increases, the bluff is giving off less sediment `Sconset is one of the highest eroding bluffs in the country; it will require more nourishment. Once sand has been in the system for a while, it probably isn't there any longer. Down beach, there is a sandbar, which is providing protection to the beach; if we take away that protection, neighboring erosion rates are going to increase. We need actual volume of what the bank is providing. The one thing with changing out the fourth tube, over those March storms, it was dry; you'd probably want to replace the top two geo-tubes. Wegner — Submitted a letter from his wife into the record. R.Atherton — In terms of receiving advice from non -applicant professionals, he encouraged the commission also have the peer reviewer look at the presented alternatives; those are usually presented in a negative format The Nantucket community owes a debt of gratitude to NLC, they have provided excellent advice; otherwise the only advice ConCom receives if from the applicant and their experts. Asked the commission to pay dose attention to the material provided. D.A.Atherton —The member Nantucket Coastal Conservancy are not experts but we are informed, concerned citizens. Our comments are submitted in a different vein.. We submitted 15 key points we would like considered; we have a longer narrative that will be submitted in the morning. We want the ConCom to know that when the Select Board voted to give consent to the NOI, it was specific that the Select Board was making no judgment on the merit of the project. It seems to the lay person that the current installation and the proposed installation do adversely impact the beach; the area over which machines must pass and the beach under the geo-tube are being destroyed. The off -shore cobble habitat forms a unique fish habitat and the cobble has been cut off from it. Public use and enjoyment of the beach has been degraded; there are times the public can't get by on the beach because of the CES. This area has been turned into a perpetual construction site due to the mitigation and repair that will be required forever. The permitting history is very revealing; this commission denied the 900 -foot project twice and even voted to appeal the State superseding order. It wasn't until the Select Board refused to provide funds for the appeal that pressure was brought on ConCom to permit the project; at that time there was an emergency and it was a joint SBPF and Town application. We've asked how many days the geo-tube was uncovered; we don't have that information We've asked how many days the beach has been impassable; we haven't been provided that information. The amount of sand required is enormous and requires 1000s of dump trucks putting wear and tear on the roads to place several millions of Page 4 of 6 ConCom Minutes for December 3, 2018, adopted -Mar. 25, 2019 dollars for the sand on this site. We believe the alternative analysis is incomplete; the soft projects have been in place a number of years side-by-side with the geo-tube. The project was to provide the Town time to come up with alternative access; there is a shovel -ready plan available and the bid process is about to begin. Another alternative, not before the commission five years ago, is property owners getting licenses to move their homes into the road layout; if Baxter Road were moved to the west edge of the 10 -foot layout that would provide 20 more feet for the homes to move. The stairs leading to the beach go over town -owned land; they should not be locked or say private. Cohen — We can't be perfect, but we do meet the legal standard and providing the best available measures in engineering and mitigation. Look at this project against the legal standard under which it is proposed The alternative access proposed for Baxter Road is only available if protection is maintained; the land owners don't have to agree to the easement if a breach occurs. Applied Coastal said to look at short-term data; that is exactly what we're doing. He'd like to see the calculations that came up with 7 times the erosion rate we calculated. ConCom needs to focus on the State law and regulations and local regulations. These people have a legal right to protect their homes; abandonment is not a choice. At the next meeting, we'll provide responses to questions brought up tonight. Asked when the next meeting would be. It would be productive to have materials to Mr. Carlson in time for the peer review report to be available at the next meeting. Staff We've dealt with removal escrows before in other locations; we condition for a yearly estimate for removal be filed so that there is an update and it has to be from a contractor capable of doing the work. Our peer reviewer is in place and ready; he's in possession of everything and gets all new information. We have this room booked for additional time if we need more meetings. Ms. Wegner's letter was received today and will be up in the next group of comments. Next hearing Carlson — The question is how long it will take to get the peer review done. Next week is too soon, the following week has a regular meeting; the next two weeks are Christmas and New Years. Monday the December 171h, we could have a regular 4 o'clock upstairs. He has booked this room in January. Golding — He won't be here on December 171h; he'd prefer to wait until after the holidays for a public hearing. Pucci — Clarified that Mr. Golding and Mr. Steinauer missed a meeting; they can only miss one even if they waived back in. Carlson — December regular meeting could be a "check in date." However, if Mr. Steinauer or Mr. Golding miss that, they would be off the project. Pucci — You should pick a date certain for the hearing when everyone would be available. Carlson — December 19 would be the deadline submission of material for the peer review and we could set the next meeting date; there would be no discussion on the project. Cohen — Asked if the reviewer would have a model order of conditions. Carlson — If the commission directs Mr. Carlson to write one, yes. He requires instructions before taking any action. Bennett — The question is if we have enough information to instruct Mr. Carlson on an order of conditions. Carlson — He'll ensure the reviewer has all the information provided up to this point; he'll provide comments back on the merits of the project. DA.Atherton — Asked if all communication with the 3rd -party reviewer would be through staff. Carlson — All information and communication is coordinated through staff to ensure there is no implication of direct communication with other parties. Anything to be reviewed should be submitted by December 19, 2018. Golding — There has been a lot of legal points brought up; asked if executive session might be appropriate. Pucci — No. Right now, you have a permitting application in front of you. He anticipates the commission will seek legal opinion on some issues, which were brought up. If his opinion is used as part of the permitting decision, it is public record. Carlson — Recommended continuing to December 19, 2018 to get a schedule update for an actual hearing. Cohen — That is his request. Motion Continued to December 19, 2018 at 4:00 p.m. by unanimous consent. Vote N/A III. PUBLIC MEETING A. Order of Conditions 1. Keybank National Association —14 Washing Pond Road (31-19) SE48-3133 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff This is a singular Wilkinson array between two others. He drafted a positive order. Will add Condition 36 that all existing debris be removed prior to or during installation. Discussion (6:40) Erisman — Asked if this is where the debris needs to be removed. Art Gasbarro, Nantucket Engineering & Survey — This is the one that has a stone revetment on the west end; there is a fence, shown on the plan, which will be removed. Motion Motion to Approve as amended. (made by: LaFleur) (seconded by: Steinauer) Vote Carried unanimously Page 5 of 6 ConCom Minutes for December 3 2018 adopted Mar. 25 2019 B. Other Business 1. Approval of Minutes 11/19/2018: Approved by unanimous consent. 2. Monitoring Report: None 3. Enforcement Actions: None 4. Reports: a. CPC, Golding b. NP&EDC, Bennett c. Mosquito Control Committee, Erisman 5. Commissioners Comment a. Golding — He's submitted documents that indicate their assertion the properties qualify for protection is false. Carlson — He will post all Mr. Golding's information. b. Erisman — Asked if the 2019 meeting schedule is up. Carlson — Yes, but we are making some shifts in the meeting date to have a room. Another option was moving to Wannacomet Water Company which seats at best 12 people. There is a push to move our office out of our office into the old Fire Station; he and Roberto Santamaria have pushed to tum part of the garage into a dedicated meeting space. Discussion about when and where these meetings would move. Champoux — Asked that the Town find some meeting space available on Wednesday nights. 6. Administrator/Staff Reports: None Adjourned at 6:52 p.m. by unanimous consent. Submitted by: Terry L. Norton Page 6 of 6