HomeMy WebLinkAbout2019-4-22ConCom Minutes for April 22 2019 adopted May 6
CONSERVATION COMMISSION
PUBLIC MEETING
2 Bathing Beach Road
Nantucket, Massachusetts 02554
www.nantucket-ma.gov '���� 1 —� P4, 1 OU
Monday, April 22, 2019
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 4:05 p.m.
Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resources Office Administrator-,Tern-
Norton,
ldministrator,TerreNorton, 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
1. PUBLIC MEETING
A. Announcements
B. Public Comment — None
11. PUBLIC HEARING
A. Notice of Intent
1. *Sconset Beach Preservation Fund — 59-119 Baxter Road (49&48 -various) Area SE48-3115
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.
Arthur D. Gasbarro, Nantucket Engineering & Survey
Jamie Feeley, Construction Manager Cottage and Castle Inc
Josh Posner, 77 Baxter Road, Chairman 'Sconset Beach Preservation Fund
Public Dirk Roggeveen, Quidnet/Squam Association (QSA)
Emily Molden, Nantucket Land Council (NCL)
Hugh Ruthven, III, Applied Coastal Research and Engineering, for Nantucket Coastal Conservancy
Maureen Phillips, Nantucket Coastal Conservancy
Burt Balkind, 10A Scotts Way
D. Anne .Atherton, Nantucket Coastal Conservancy
Karen Warren, Nantucket Coastal Conservancy
Discussion Cohen — This project can be boiled down to two questions: can erosion protection be effective in this location
and does it meet the legal standard. Explained why all the land in this area is protectable to include the so-called
gap lots. We have clearly demonstrated the structures are in danger. Feels it beneficial to allow more land to be
retained in the area to maintain the shape of the bluff. Explained why the geo-tube coastal engineering structure
(CES) is the most appropriate in this location; reviewed the pros and cons of the geo-tubes per the `Berman
Report." No one really wants this, but it is a question of installing it or abandoning the properties. The
Commission's decision should be based upon meeting the legal standards and the standards of the _Act. We
don't intend to submit further information. Our preference is to close the public meeting (sic) unless the
Commission needs further information
Steinauer — Asked -,\1r. Pucci if he agrees the roads and utilities are not public infrastructure but part of the
home
Pucci — At the last hearing, a number of legal issues came up for which there was a request for a written opinion
from Town Counsel. In connection with the history of this project and his working with ConCom over the past
9-10 years, he is concerned about providing a legal opinion for or against a project before there has been an,
deliberation or discussion about the Commissioners' leanings. For legal issues noted, it would be more
appropriate for the proponent to provide legal support, the opponent should have the opportunity- to respond
to those. For the record, he has never lost a Nantucket ConCom case, which is a compliment of the
Commission's level of consideration and application of performance standards. Suggested that if there are
unanswered questions on legal issues by the Commissioners, responses should come from the project
proponent. A threshold issue is how to analyze this project; the State does not protect infrastructure. There are
some comments about the Massachusetts Department of Environmental Protection ('\IaDEP) decision he
doesn't know where they came from. The local bylaw does protect infrastructure; a local Bylaw and regulation
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ConCom Minutes for April 22 2019 adopted -Ma: 6
can be more restrictive then the Wetlands Protection _-�Ct. Noted that protecting infrastructure is les res-nc
than the State; that speaks to the area of lots that solely protect infrastructure, not pre -19_8 buildings.
analysis should not consider infrastructure. Ender local regulations, v ou also appear to be more restnct:ve t.an
the State regarding pre -1978 structures that have been substantial]y improved since 19-8. He does nut rea
"substantially improved" as the same as "reconstruction", but he sees that as expansion of the footprir_t Tri -
analysis should come from the proponent. There is a question if there is a legal requirement to protect not ori-.
the building but also the infrastructure and/or utilities necessan- to occupy the building; that legal s_ :ro^
should come from the applicant. He has not seen that addressed in the record. He recommends That the p ir:''-c
hearing should be kept open to have the project proponent can provide legal analysis on these
should be further submission on that; if they insist on closing the heanng, the Commissioners -,,.-LE have to close
within the required time period without it.
Dunk - We have presented into the record how the project was designed to meet the performance standzrds:
the two most important: to protect the bank from wave action and the sand template program to protide sand
into the littoral system. The discussion of the pre -19-8 homes, we've provided, in a letter dated - ;pri'_ "-
which
L^
which we address at length the legal right to protect the homes under local and State regulations. There are G:
feet of vacant lots where the project is meant to protect the infrastructure, which is required for a home to 1--_
habitable. 205 feet are made up of "gap lots", across which the CES is needed to maintain a contiguous str=_I!t.
We have 500 feet between lot 81 that and 69 are all pre -19-8 homes. The evaluation of the length of the pro7ec-
to protect infrastructure is also addressed. Under the State _pct, the MaDEP superseding order of cond;tion=
found there were a number of vacant lots in front of which they allowed the 3-6er sN-stem to be installed fur
(infrastructure) to maintain the habitability of the pre -19-8 homes. The precedent set in that order of cond.-:,in-
allows for infrastructure to be protected for the pre -1978 homes. Feels that standard should be applied -o vu
project.
Erisman - That order talks about imminent threat; we have a lot of information from the Department of PubLc
Works (DPV� about what that meant to the road. With the installation of the existing project, that has been
abated. She wants to know where DPWstands regarding imminent threat: what that is, where that i�, -a-hat has
to be moved.
Cohen - AD that information is in the record. The DP\W under Rob 'McNeil hasn't taken a position. _ :bout no-
falling into the trap of taking sides during the hearing, he agrees with -Mr. Pucci. If vour says v ou can
protect infrastructure, you can't decide it isn't legal but must ascertain what that means as it pertains to -,ht
protectable structures. How to determine that is evidenced in the DPW superseding order of conditions. There
isn't a lot of case law on this but there are a lot of permits that have been issued for similar situations. If The
Commission wants more on it, he will provide that but thinks all the information is provided for *^e
Commission to make a decision.
Pucci - He was concerned about protecting public infrastructure; if we interpret the regulation that is valid. he
thinks there would be instances where coastal banks are protected under the bylaw that don't quahf, under The
_-1ct. There is still a troubling aspect about protecting infrastructure related to pre -19-8 buildings. _� superseding
law is not case law; administrative case law issued by _MaDEP would be a persuasive authonn-. The ''.IaDEP
order is troubling in that it clearIN talks about relocating the roadway- in a 3- to 6 -rear period; that doesn't mean
there aren't other valid agreements in place. It would serve the Commission if the applicant looked at Th-
more
h. more detail to ascertain how their project supports that position.
Cohen - If you look at the MaDEP emergency order then the subsequent order, the issue with the road .vas
scaled back and the alternate access plan is in place. There is a situation where a structure can be perrrutted
under local law and not needed the State law. Infrastructure could be definitional about the structures
themselves. When you issue this order, _MaDEP will review- it to ensure it complies with the State _;ct; IT can
also be appealed. Reiterated he doesn't think the commission needs more legal memos to more forw-ard-
Bennett - You had talked to MaDEP about the mitigation; asked if there was an w ntten information on
Cohen - We floated the idea of adaptive sand mitigation, which was verbally accepted as reasonable.
Golding - It seems to him that Town Counsel has advised us to have that in writing from the applicant.
Cohen - We will get a legal opinion on that issue. One problem with the superseding order is it -,vas done in a
vacuum; you can't really move utilities. We can address the idea of protecting the pre -19-8. the land. ar.
infrastructure.
Steinauer - Protecting public infrastructure was to allow time to move the road, utility. and the structures: to
now say that isn't the case feels like a bait and switch.
Roggeveen - His clients' concern is that the structure will go beyond protecting eligible houses. T:e
superseding order actually denied the geo-tube structure permanently; a lot of the arguments being made no -.%-
about why there should be permanent protection was included in the applicant's file to MaDEP. The emergent-.
permit was issued to allow relocation of the road; an emergency permit has a Yl -da, limit with no mechamsT
to extend it.
Molden -``We've repeatedly brought to the commission's attention performance standards that haven't been
met: protection of the bank as a sediment source, protection of the coastal beach, and eligibi-hr; of all the lots.
We don't believe all lots are eligible under the local or State laws. One of the first things the commission should
deliberate is meeting waiver requirements, which we believe the proponent has not met. She wants to bring up
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ConCom :Minutes for April 22 2019 adopted Mav 6
again the sand and sediment source; a permissive order should require documentation from the applicant that
they have a volume of compatible sediment source to meet a 3 -year need at least.
Ruthven -The meaning of gap lot is critical to know how they relate to the Wetland Protection Act; there are
numerous cases where MaDEP has turned down gap lots, because they aren't there to protect the pre -19-8
houses. Mitigation, the formula is fine but how but it's how it is applied and if erosion rates were calculated
correctly; he feels they are under mitigating. The Commission should look at whether or not this �tzll work
without adverse impact.
Dunk - We've discussed this topic for many months, the idea the sand on the template face gets washed away
during a storm is correct; the sand on top is a stockpile to be pushed down to cover the tubes for the following
storm. That is how the system is design.
Erisman - During the March 2018 storms, the tubes couldn't be covered; it didn't work.
Dunk - We discussed what happened and the timeframe; about 25 linear feet were contributed off the template
during that season. Most systems in the Commonwealth are a one-time distribution of sand; this has the
stockpile to allow quicker replacement of the sand.
Cohen - The problem we see repeatedly is looking at the emergency order, not the superseding order. Your
order details what we are protecting; you and the State have considered and seen that. The existing project meets
all the standards and shows that the system works. There is no such thing as a CES that constantly supplies
sand during a storm. Not all sand is accessible during a storm; it's there to be available to cover the tubes before
the next storm. His request is to get to the decision-making process soon. He thinks he can get the legal decision
to the board by the May 22 regular meeting or set another special meeting date for that information and to close
the hearing.
Bennett - We can aim for the May 22 regular meeting.
Phillips - We reviewed the SBPF annual report; Mr. Berman is to review that as well; we would like that made
available before deliberation starts.
Cohen - We can try to get the legal memo in by May IIt and close the hearing at that time.
Pucci - Suggested one more hearing session.
Bennett - Tentatively we are looking to continue to May 6.
Balkind - He has three points for denial: eye test, where is the emergency that requires mitigation; the current
project has provided a lot of data but it's inconclusive data regarding down -drift impact; Town Coastal
Resiliency Plan is being developed to identify areas that need to be protected and requires our resources.
Atherton - Three talking points: clarification, adverse impacts, and reasonable alternatives. There are five points
in need of clarification: a) current structure was intended to be temporary; b) alternate access to northern Baxter
Road is not predicated on permitting the expansion; c) number of days or tide cycles the geotubes were
uncovered remains unknown; d) number of days and tide cycles walkable beach maintained remains unknown;
e) rate of erosion has increased since geotubes have been installed. Expansion would have adverse impacts, here
are four: a) public beach will narrow and eventually disappear - the science is irrefutable; b) three additional
acres of beach habitat will be destroyed upon construction; c) end scour will continue, resulting in a need to
extend the installation; d) the beach will become a continual construction site requiring maintenance and
mitigation forever. There are four reasonable alternatives: a) soft structures; b) relocation of structures westward
into the Town -owned road layout; c) implementation of shovel -ready plans for relocation of northern Baxter
Toad; d) planning for relocation for the entire length of Baxter Road is now underway. This is not just an
beach; it is a historic beach, a legacy to the inhabitants of Nantucket from the proprietors; man believe this
stretch of beach should be declared a marine sanctuary.
Warren - Read into the record a letter from Barbara Bunn, Nantucket Coastal Conservancy, about her concern,
the quantity of sand that would be required and the impact on the Island.
Gasbarro - He monitors many erosion control projects; none of the beaches are walkable during storms. The
photos show the beach is passable most of the time. The sand that is contributed maintains the beach.
Steinauer - The agreement we negotiated contains the notion that these are walkable during normal tide
conditions. The concern is that if the beach erodes, it will become unwalkable during normal tide cycles. There
were times during normal tides the beach was not walkable.
Cohen - Argues Ms. Atherton's points are red herrings. We will provide the information requested on legal
issues. Requested a continuance to May 6
Staff If you have a Town -designed coastal bank, you could apply the bylaw in its entirety.
He spoke to L\IaDEP, they said they are withholding their opinion until there is an appeal.
He has two questions:
a. an issue that came up at the last hearing was relocating structures because some lots have common ownership
on both sides of the street;
b. it may be interesting to include a set timeframe for installation or upgrade that takes away the need for a CES.
Once the public hearing is closed, the Commission has 21 days to issue the order.
May 6 and May 13, two Mondays between the regular meetings, are available for another hearing.
\lotion Continued to May 6 by unanimous consent.
Vote N/A
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ConCom Minutes for April 22 2019 adopted -Mav 6
111. PUBLIC MEETING
A. Other Business
1. :Approval of Minutes 3/25/2019: HELD
:Adjourned at 6:08 p.m. by unanimous consent.
Submitted by:
Tern, L. Norton
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