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HomeMy WebLinkAbout2019-5-20ConCom Minutes for May 20 2019 adopted June 5 CONSERVATION COMMISSION PUBLIC MEETING 2 Bathing Beach Road Nantucket, Massachusetts 02554 nr•� 1, C «-vvw.nantucket-ma.< ov Mondav Mav 20, 2019 4 Fairgrounds Road, Training Room - 4:00 p.m. Commissioners:-Aredrew Bennett (Chair), Ashley Erisman (Vice Chair), Ernie Steinauer, David LaFleur, Ben Champoux, Ian Golding, Joe Topham Called to order at 4:16 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resources Office Administrator; l'ern- Norton, Town Minutes Taker .lttending Members: Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Town Counsel: George Pucci, K&P Law P.C. .Agenda adopted b.\ uuanunous consent 1. PUBLIC MEETING A. Announcements B. Public Comment- Aone ll. PUBLIC HEARING A. Notice of Intent 1. `Sconset Beach 1'rcser% ation Fund - 59-119 Baxter Road (49&48 -various) Area SE48-3115 Sitting Bennett, 1'risman, Steinauer, LaFleur, Champoux, Golding, Topham Recused \ one Documentation Supporring documents and plans; Epsilon slide presentation; correspondence Applicant <te% en Cohen, Cohen & Cohen LP Representatives D% rght Dunk, Epsilon Associates Inc. Glcnn \\ ood, Rubin & Rudman, LLP 1amtc }ecic�, Cottage and Castle Public 1 �.mih \lolden, Nantucket Land Council (NCL) I Iugll Rurliven, III, Applied Coastal Research and Engineering, for Nantucket Coastal Conservancy Dirk Roggeveen, Quidnet/Squam Association (QSA) D. _Aline -Atherton, 48 Squam Road, Nantucket Coastal Conservancy Discussion Cohen - Reviewed documents submitted resulting from comments at the prior hearing and post -hearing requests. Mr. Pucci raised questions about legal standards under State and Local bylaws regarding the gap lots; we contend we are legally on solid ground. We scaled back the north end of the project at 11- and 119 Baxter Road so that the return is in front of 117 Baxter Road. `x'e think the design of the project is better in its abilin- to provide protection and lessening adverse impact. It is our intent to close the hearing today. Dunk - \\ e believe we've addressed all comments and the project complies with Performance Standards; reg ie��cd concerns that they have addressed. The waiver request is noted in the NOI. The gap lots we've addressed in writing. Reviewed the site plan showing the reduction in length. Almost all the homes have been moved as close to the road as possible and the} continue to be in danger of erosion of the coastal bank. Indicated the areas of continued bank erosion and slope failure, which exposes substrate. Explained the calculations used to ensure the structure is covered with sand and that there is sufficient on-site stockpile to recover the rubes. Wood - I le was asked to look at the concept of gap lots and look at precedence. The reality is there aren't that rti:ulI , and they don't come up that often; there is no case decision in Massachusetts Lau-. The few u -e found \l ere :t narrow gap between pre -1978 properties. One appeal allowed a revetment to span the gaps; the finding was rhea were to protect the adjacent qualifying properties. The lessons learned, with the existing structure, shoe alot of guidance on how the gap lot protects public infrastructure as well as pre -19 8 buildings. When the Department of Environmental Protection gets a request for a coastal engineered structure (CES), they study the conditions and watch it closely. He is assured Department of Environmental Protection will not appeal this to themselves since what is proposed is necessary. Bennett -'There was discussion at the last hearing about how the protection of the road %vas to be temporan- umil an .tlrernate access was established. The Department of Environmental Protection letter was clear that they did not consider it permanent. Wood - 1 le didn't read their decision that way at all. Cohen -The Department of Environmental Protection gave directions on mitigating imminent danger. They didn't haw the time to make that decision; we looked at that hard. As a result, there is an agreement for access should there be a breach in the structure. The Order of Conditions issued provides for protection of these lots. \\ c need ro look at what we're applying for here, pre -1978 houses and what is around them. A 50 -foot gap in the struciure would cause excessive end -scour damage. )X'e think the existing structures and the project as a whole justirN what's proposed. Page 1 of 3 ConCom -Minutes for MaN- 20, 2019, adopted lune 5 Dunk- The Superseding Order of Conditions (SOC) also identified a futur_ -_ -i extenssrjn. AV -e _ . have a written record that the geo-tube extension of flus is allowed under Tl-,_ - - _- a!_, _ -. _ _� -al bylaw. A' e' v e had discussion about the eligibility- of all the lots; the vacant lots are eligible for frastructure. 1 Bennett - Opened discussion to the public for new information only. Molden - Review -ed an additional letter submitted to the file. The applicant ., - _ ,, :- compliance u -ITh 1L' performance standards; we contend they are not in compliance with a numl •_- : ---_-:- --:,:nce standards. Ba,ed on submission of the new plan, the southern extent of the expansion and -rte _ __ _ - astal dune. we have documentation that coastal dune has been eroding; the commission should c-..- _ ] geologist to en-ure that erosion isn't due to the existing structure. _applied Coastal also submit- Ruthven - For clarification the beach nourishment project was w-sthdra« -. , ..- _ .. :--_ponam. You arer:-t seeing gap -lot cases because they aren't permissible. Reiterated that the on -.� r- : -,- .:. _,_ permitted to allo.x time to relocate Baxter Road and utilities. In the plans, the cross secnon ad 266k lighthouse survet; the existing structure is shown seaward of the bank, in some places -: - ._ _ rushing the strucr re out from the bank increases deflection. The erosion numbers indicate the -- _ . _ i6 feet a %ear u -hen they are saying they don't have further erosion; we are seeing quicker erosio.- 1::� .-_ -he existing structure now than in the past. Roggeveen - if tins project is permitted, the neighbors to the north are c(,:-, ,_-:.-_ :_ t has sufficient ani mitigation, and that it will not be larger than it needs to be. The lerter with t.� order of conditions explains what they mean by temporary. If you permit a CES in front ofP:� 77_ at quahf�mg houses_ you are setting a precedent. Suggested ConCom dem this and let Departs-.--• � : _ _ _�.:- ,nmenta) PrCACCUrin make the argument. That would not be setting a ConCom precedent. D.A.Atherton - We made our final comments at the last hearing. We wi_ . __. "Town ----nuon to the untten Counsel opinions sent to _attorney Cohen that points out the alters. - _ _ _ - -not predicated upon permitting this project-, the date is April 25. _asked that a settlement agreemer c in 261- be m�,er.eu into the record; the final clause is relevant given information recenth >se it recognized no precedent or pre -conditions for future ConCom actions. The November ;. : _ _ _ i ,m Dr. Young is in the record because that contains the basic planning and comment that the C'_ - beach to dssappear We have asked the applicant to provide their estimated life -expectance for :.:- -: e want that entered into the record, but it was never provided. If the hearing is closed, we' w-ar-- _ __- -:d the process g, --,In;: forward; wants to ensure there will be no one-on-one commumca-- the applicant an.: commissioners. Pucci -There is nothing that precludes a member from having a conversat: <_ .. _ ,ne: however. T!L­ :s a quasi-judicial hearing and recommends no communication with the 7_-... and no discus -:,,n outside the hearing. Clarified that he isn't confirming if there has 1-_-_--. --•- urication bet.; eer commissioners and the applicant. Cohen - It's ease to chern--pick this apart and argue numbers. AT the ens : --_ - beheves ths- to_ justified to protect pre -1978 houses and itis done to the best level possible t _ �__: ,)rmance standard-_ Requested the hearing be closed. Golding - You referred to a decision where a pre -19-8 house was demob-: -d and afforded, - 19-8 protection. ^n Wood - Yes; the question was if there was a pre -19-8 structure on the proper -it of Fncsronmcr Protection has issued the permit Golding - _asked _Mr. Pucci if he could address that and houses that were n , _ -- = expanded. Pucci - If your local by-law were more restrictive, you could dem- this or i want to be caref� about the other lot to ensure it is in your records. He recommends a final, -� - standard. The �tatc regulations are different in that they do allow reconstruction of pre -19-8 h( -,-.-- Wood - Under tour bylaw, the Easton house would not be analogous; st :. -.-__ -,:rM1tted under bylaw w7thout a waiver. Staff Once the hearing is closed, no further information will be entered mto the I lave even -thing needed to close. Jlotion Motion to Close. (made by: LaFleur) (seconded bv: Stemauer/ Vote Carried unammoush- 111. PUBLIC MEETING Staff - Now that the hearing is closed, no new information is permitted. n must now i sue a decision within 21 days. If the commissioners have question of legalin, ask Steinauer - On the gap lots, our commission needs to look at the lots; if w e ::_ _ _ - _ situation_ •.re xo id have proposed options like the ``Wilkinson arras-, which isn't considered a su Golding - He stands by his original list compiled. The owners of Lots -9 cant lots acro -s the street; asked if theN- are in imminent danger if the houses can be mored to •_: Pucci - ConCom should get a formal opinion on that from me. Golding Golding - Reviewed his research of properties that had more the _'(-i° 1, im-- . _--_�_- � -- -ce 1'�_� and for n,,- for protection and gap lots. By his calculations, onl' 5 houses are eh - -_ Review of applicable local regulations and performance standards. r. protection. Page 2 of 3 ConCom Minutes for Mat- 20 2019 adopted June 5 Bennett — Reasonable alternatives has come up frequently and whether or not moving a structure to a new site is considered reasonable. Champoux — The gap lots could be conditioned to have a less robust structure in front of them. If this were on a single lot, the returns would be on that lot. asked if anyone believes coir logs will last. He believes that maintaining coir logs could be more invasive than the geo-tubes. Erisman — She believes coir logs will last- they have held up on other beaches and act more like a natural bluff. The geo-nlhes have a potential to cause huge damage to resource areas. Golding — -lsked Town Counsel how it could be claimed anv properties south of Baybern_- Lane are in imminent ditrwcr. asked how that is defined. Staff — -\m positive order would address imminent danger for qualification. Pucci — 1 ou can use any dictionan- definition of imminent danger; you have to look at the erosion record to asccrr.rn What will cause a catastrophic impact on the bluff. Recommended looking at applicable performance sruidards and which lots qualify. Steinauer — We have some lots that qualify and many that don't; we're being forced into an all up or all down for the whole thing. The non -qualifying lots should come in with individual applications. He thinks in some vv itv � these bags are among the worst solutions; they take up a huge amount of public beach and they are hard and smooth so probably exacerbate deflection. Staff — 'I here's the possibility of finding a lot doesn't qualifies under local bylaw, we have the option of issuing i o scpartte order of conditions: one against the State Act and one against Town bylaw. You can make findings on indn-idual lots as to which requirements they do or do not meet in order to support a determination. Pucci — I le recommends the lot -by -lot evaluation approach. You could then find that certain lots don't quahf�- and decide if that provides a compelling reason supporting an extended project area. Bennett — We discussed listing the properties individually- rather than as a whole applied to the corporation. Staff — .1m time we issue an order of conditions, it is to the property impacted by the project. Since most of this is on mown property-, they had to provide with the application was the propem. owners who would benefit from rhis. A\lien the order of conditions runs with property, included in the application; the order would run the transfer of a property. Steinauer — We could look at our original NOI denial and see if we still agree or disagree. Staff — I Ie can provide all prior decisions on the existing structure. Commissioners review what information they would like staff to send them for review prior to the next meeting. Cliampoux — We might not have fully considered the performance standards as they relate to the southern end. I Ie'd like to know the triggering mechanism for the road relocation. Pucci —J here are contracts on that; those can remove any ambiguity-. He'll confirm which one would be best to make available. Golding — If this is denied, would the SOC for Phase I still be enforceable. Pucci — I1c'd have to look at that permit. Staff —The SOC was issued; then SE48-2610 was issued replacing the SOC. Bennett — \bout the diagram of the beach in front of the bank, he thinks that was corrected; the tubes should he shown :it the toe of the bank. Erisman — 'I hey don't want to disturb the existing bank, so the structure is out from it. Bennett — We need to discuss failure criteria. The ends are the weak point; at what point do we decide the returns aren't working. We need failure criteria for them. Erisman — She believes the returns should be softer and that isn't what's proposed. Discussion _rbout a date for the nest meetings: May 30, June 4, with possibly June 10. Discussion about the format for the information Staff is to send to the Commissioners. \lotion Motion to Continue the discussion to May 30, 4 p.m. (made by: Champou_x) (seconded by: Topham) Vote Carried unanimously C. Other Business 1. approval of \linutcs tis u6/2019: Held 2. Monitoring Report 3. Enforcement .Acnons a. None 4. Reports: a. None 5. Commissioners Comment a. None 6. _administrator; Staff Reports a. None Adjourned at 6:1(j p.m. hn unanimous consent. Submitted by: "fern, L. Norton Page 3 of 3