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HomeMy WebLinkAboutArticle 68 Wrk Grp Minutes - 11 09 2010_201402041900223663ARTICLE 68 WORK GROUP Meeting of November 9, 2010, at 10:30 am 2 Fairgrounds Road, Kitchen Area Final Minutes ATTENDING Members: Cormac Collier, Caroline Ellis, Bam LaFarge, Mark Lucas, Wendy McCrae, Mike Misurelli, Richard Ray (arrived at 10:41 am), Seth Rutherford, Lee Saperstein, Ernie Steinauer, Lucinda Young (Chair). A quorum existed at the time that the meeting opened. Guests: Dirk Roggeveen (arrived at 10:38 am), Dylan Wallace (arrived at 10:35 am) Absent: Peter Boyce, Dave Fronzuto, Jim Sutherland (Administrative Assistant) CALL TO ORDER Chair Young called the meeting to order at 10:30 am; a quorum was present. REVIEW AND APPROVE PRELIMINARY AGENDA The preliminary agenda, which was projected by Secretary Saperstein onto the screen, was reviewed quickly and approved by acclamation without change. REVIEW AND APPROVE MINUTES OF THE MEETING OF NOVEMBER 2, 2010 The draft minutes of the meeting of November 2, 2010, were distributed previously. Chair Young asked if there were changes or edits to be made. Hearing none, she asked if they could be accepted by acclamation and they were. The final minutes will be posted on the Committee’s section of the Town’s web site. CHAIR'S COMMENTS AND ANNOUNCEMENTS; COMMENTS FROM THE WORKGROUP Chair Young reminded the group that the goal for this meeting was to review and, all being well, to vote on the draft Home-Rule Petition and Board of Health Regulations. She also mentioned potential dates for presenting these results to the Board of Selectmen: December 1st and December 8th. She indicated that we would need to find a date for the next meeting of the Work Group before the WG adjourned. She also reminded the group that the Board of Selectmen are seeking applicants for positions on the newly constituted Board of Health. FINAL REVIEW, AND VOTE ON DRAFT REGULATORY RECOMMENDATIONS (CIRCULATED WITH DRAFT MINUTES OF LAST MEETING) 2 Home Rule Petition, HRP, statute Attached to, and an integral part of, these minutes is a “mark up” draft of the Home Rule Petition that shows the amendments made at this meeting, a comment-free, clean version of this same draft, and a draft of the BOH Regulations that incorporates the changes made to the HRP. The “comment” utility of the word-processing program is used to identify on the “mark-up” version the source of each of the changes of substance. Chair Young opened the discussion of the draft Home-Rule Petition by suggesting that we were close to a final version but that there had been reactions to last week’s draft that we should discuss. The first of these was the 100-ft buffer zone around water-bodies and wetlands. To facilitate this discussion, she had invited Dirk Roggeveen, Administrator of the Nantucket Conservation Commission, to attend the meeting; Mr. Roggeveen entered the room at 10:38 am and Mr. Ray at 10:41 am. Mr. Saperstein had the current draft of the HRP projected onto a screen where the WG could see any proposed edits and amendments. Cormac Collier helped to define the issue by reminding the WG that there are many water-front homes for which the injunction against fertilizing within 100 feet of the water would reduce or remove the ability to fertilize their lawns. A discussion ensued about implicit waivers for people who fertilized their lawns before the passage of the HRP, should that occur. In other words, would they be protected as pre-existing, non- conforming users (“grandfathered”). Mr. Ray and Mr. Roggeveen both reacted by suggesting that the 100-ft buffer was in the Conservation Commission (Con Comm) Regulations, not those of the Board of Health (BOH). From Mr. Ray’s vantage, the fertilizer regulations could set any width of buffer desired – originally the WG had suggested 25 ft but changed to 100 when it was shown that the latter number was consistent with existing Con Comm Regulations – and the BOH would enforce that number. He also reminded the WG that obtaining new personnel to manage and enforce these regulations was highly unlikely in the current budgetary status of the Town. Mr. Roggeveen, in explaining how the Con Comm operated its system of permits for land “alteration” in the buffer zone, began by suggesting that fertilization was an operation and not a use and therefore would not be considered pre-existing. He also did say that the procedures for obtaining a permit could be considered burdensome. After some reading of the Con Comm Regulations, he softened his position somewhat and suggested that there might be easier passage for a permit application for fertilization in the buffer, particularly in the zone between 50 and 100 feet. He also explained the detailed procedures for enforcing the ban against fertilization in the buffer zone. It is not automatic but is imposed as part of the suite of “Standard Order of Conditions” that are applied to any permit for alteration activities in the buffer. After discussion and contributions by most of the members of the WG, it was concluded that the 100-ft buffer was not arbitrary but was consistent with existing Nantucket Regulations. To use any number smaller would be to promote an inconsistency. Ms 3 McCrae was specific that our proposal should conform to existing regulation. Mr. Roggeveen also helped the WG to use language consistent with the Con Comm Regulations, i.e, “permit” and not “waiver.” These language changes, retention of the 100-ft buffer, and the insertion of a parenthetical phrase about consistency with existing regulations were approved unanimously. They appear in the Section on Prohibited Conduct, specifically in Section 5.1.4. (sections were re-numbered after several subsequent amendments; this is the number that existed in the draft under consideration). Mr. Roggeveen also said that the 100-ft buffer appeared in the section specifying exemptions on the application of phosphorus. The WG agreed that this section should also retain this dimension and then agreed with some of Mr. Roggeveen’s suggestions for clarifying language to be inserted into the existing Section 5.3.1. on exemptions. Mr. Roggeveen offered suggestions for editorial improvements to other parts of the HRP draft. Where these were strictly editorial, Mr. Saperstein volunteered to meet with him and obtain the edits. This was acceptable to the group. At Section 8. Amendments, however, Mr. Roggeveen stopped to suggest that, in his opinion, the restrictions on amendments were probably unconstitutional. The WG, nonetheless, reaffirmed its wishes that amendments be crafted with the same care as the initial draft statute and that it be amended only with a super-majority. At this point, Chair Young recognized Mr. Lucas who had submitted a string of amendments in support of the BMP. He also was concerned about an extended interim period during which the regulations would be in place but no one would be available to enforce them or to issue licenses. In the section on Definitions, Mr. Lucas asked that there be a separate definition for “licensed applicator” as a person authorized to apply fertilizer by the Nantucket Board of Health. He also asked that the definition of BMP include a clause that said that the BMP was adopted for use by the Board of Health. Both of these suggestions were accepted by the BMP. Mr. Roggeveen also suggested that the definitions section include “continuing education hours” and “point-source pollution.” Mr. Saperstein indicated that these were terms of use defined elsewhere and that he would, with the Group’s permission, get them and put them into the definitions list. The WG concurred. Mr. Lucas then proposed a new and separate sub-section to go into Section 5. Standards of Performance that stated that the Nantucket Best Management Practices (BMP) would be available through the Department of Health and that it, having been carefully assembled and reviewed, would be able to be amended only after similar thoughtful deliberation and review. The initial BMP was drawn from the works of and reviewed by soil and turf scientists and his proposed change requires that amendments to the BMP be created with the same care and then passed by the Board of Health only with a super majority. Effectively, his proposal was a revision and relocation of Section 8.1 of the original section on amendments. Mr. Lucas also noted that this proposal was linked to his previous suggestion for revision to the definition of the Nantucket BMP. 4 Mr. Lucas’s next discussed his concern about the limbo in which landscapers would find themselves if the HRP or the BOH Regulations were to pass and there was no program of education and licensure. The draft under review would, if everyone was honest, make it impossible to apply fertilizer if the Town did not have the resources to create and educational and licensing authority. His proposal for a new Section 5.3.3. would deal with the interim period between passage of the proposal and initiation of the licensing program. Effectively, it asks that landscapers, who would not have a license at this point, follow the dictates of the Nantucket BMP. The WG concurred with this suggestion. His final set of suggestions was that all of the penalties in the HRP be at the same level as suggested by Mr. Ray for the BOH Regulations draft, namely $300 per infraction instead of the $500 that had been written. Inasmuch as the HRP draft has a sub-section for multiple infractions, Mr. Lucas suggested that the penalty for that be lowered from $5000 to $500. The group agreed. Board of Health, BOH, Regulations. It was evident that there would not be time enough to discuss the BOH Regulations in detail. Mr. Saperstein suggested that he would create a new draft of the BOH Regs for the next WG meeting that incorporated all of the changes made to the HRP at this meeting. The BOH draft would be identical to Sections 4. definitions, 5. Standards of Performance, and 6. Education, Licensing, and Penalties. The WG agreed with this procedure. Mr. Roggeveen left at 11:54 am. NEXT MEETING A review of personal schedules showed that there was no day in the period from Thanksgiving to December 10th in which everyone would be available. Given the need to submit material to the BOS by December 1st for their meeting on December 8th, it was agreed that the next meeting of the WG would be on Tuesday, November 30th at 10:30 am. Mr. Saperstein will arrange for a room and notify people of time and place shortly. Any member who could not attend on the 30th was asked to review the attached drafts carefully and, perhaps, give her or his written (e-mail) proxy to the Chair or other designated person. ADJOURNMENT Adjournment was moved by Chair Young at 12:05 pm and the group acceded unanimously. Minutes taken by Lee W. Saperstein, Secretary