HomeMy WebLinkAbout2020-11-5 ConCom Minutes for November 5,2019,adopted Nov. 12
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Thursday,November 5,2019
4 Fairgrounds Road,Training Room—4:00 p.m.
Commissioners: Ashley Erisman (Chair), Ian Golding (Vice Chair),David LaFleur,Joe Topham,
Seth Engelbourg,Maureen Phillips,and Mark Beale
Called to order at 5:30 p.m.by Ms.Erisman
Staff in attendance: Libby Gibson, Town Manager; Jeff Carlson, Natural Resources Director, Joanne Dodd, Natural
Resources Coordinator;Terry Norton,Town Minutes Taker
Attending Members: Erisman,Golding,LaFleur,Topham,Engelbourg,Phillips,Beale
Town Counsel: George Pucci,K&P Law P.C.
I. PUBLIC MEETING
A. Announcements
B. Public Comment—None
II. PUBLIC HEARING
A. Pre-hearing discussion
1. *Sconset Beach Preservation Fund—59-119 Baxter Road(49&48-various)Area SE48-3115
Sitting Erisman,LaFleur,Golding,Topham
Recused None
Documentation Correspondence,Memorandum of Understanding,2019 SBPF annual report,
Applicant Steven Cohen,Cohen&Cohen LP
Representatives Dwight Dunk,Epsilon Associates Inc.
Josh Posner,77 Baxter Road,Chairman'Sconset Beach Preservation Fund
Glenn Wood,Rubin&Rudman,LLP
Public Matt Fee,Select Board
Bob Felch Sconset resident former head of`Sconset Trust
Dennis Murphy,Hill Law,for Mr.Greenhill
Meghan Perry
Rick Atherton,Former Select Board member
D.Anne Atherton,48 Squam Road,Nantucket Coastal Conservancy
Bruce Perry
Discussion Erisman—This pre-proposal discussion is presented by SBPF.
Pucci—Reviewed the process leading to these proposed options and those involved in the discussion.This is
not an effort to seek a new decision;it is to seek a good-faith proposition to avoid litigation.The Select Board
has concerns that go beyond ConCom jurisdiction. In 2010, the existing project was permitted due to a
catastrophic breach threatening 87-105 Baxter Road; that permit resulted in SBPF having an obligation to the
Town with SBPF bearing the burden of the cost.
Reviewed the history leading to the litigation for the extended project and to this discussion. The purpose for
tonight is to get out to public domain the substantive discussion of the process and to bring to the ConCom the
result of conversations between SBPF and the Town.
Erisman—The Commission authorized her to be part of the Select Board/SBPF dialogue;her role was to advise
the workgroup as best possible on how this project could be curtailed to comply with some ConCom issues.
Pointed out her participation in that workgroup discussion was in no way indicative of her support of the
outcome.
Carlson—His role in the workgroup discussion was as agent and administrator for ConCom.
Fee—The goal of the workgroup was to explore a compromise path to avoid litigation.The compromise won't
cost the Town more money—divisiveness does cost the Town money.We need fair and clear oversight of the
project so that should the day come the tubes are causing damage,the structure will be removed and that request
for removal will stand up to a legal challenge.
Phillips—Not having been aware of the exact charge of the workgroup and that this was put together to bring
together a new and better settlement,she was surprised when she saw this.A lot of her surprise was because it
was her impression that we were in the midst of litigation and waiting for the Superior Court decision. The
concern about additional litigation expenses was also a surprise.
To overturn a decision by a group like ConCom,the standard for the applicant to prevail would be to prove to
Superior Court that the action taken by ConCom was not reasonably related to preservation and protection of
the interests protected by the bylaw and they must show the decision was arbitrary and capricious.She understood
ConCom's position at Superior Court was a good one. Normally,it's the party with the weaker case who take
ConCom Minutes for November 5,2019,adopted Nov. 12
steps to negotiate for a settlement. She thinks ConCom has a winning argument and moving forward with this
would result in ConCom negotiating with itself;that doesn't make sense.
The impact on the environment has been absent from these discussions;what is mentioned is interests of the
Town, relation with SBPF, and private ownership of the homes. The makeup of the workgroup was heavily
weighted to provide a position where there were many highly-paid people on behalf of SBPF and ConCom had
a volunteer with a full-time job and Town employees who trying to do multiple jobs at once. Feels the
Environment did not have adequate representation on this workgroup,i.e.no independent expert.The concept
of how this came about,the lack of balance on the group,and failure to have independent expert opinion is a
huge surprise.The environment is ConCom's jurisdiction;that's what we have to think about
Erisman—Believes this discussion is an opportunity to bring to light environmental issues.
Topham—The Select Board doesn't want to step on our toes.Now is the time for ConCom to provide input.
He's happy that they have negotiated for an option that is palatable.
Engelbourg—Most of tonight will be based upon the content of the letter. He is glad the Town and SBPF are
coming to this table to see if there is way for this to proceed. Nothing that's happened is forcing ConCom to
vote a certain way.He protests Mr.Fee's characterization that what happened in the past was divisive;feels we
followed the legal process.
Golding—Mr.Engelbourg and Ms.Phillips covered his concerns quite well.
Fetch—He was very aware of the eroding bluff and the thought of Baxter Road being in peril was disturbing.
He is not a member of the SBPF but a voice for Sconset Trust and engaged in the alternative access agreement
He joined the workgroup to be a neutral voice from Sconset.The memorandum that came out of the workgroup
is a framework for compromise,collaboration,and coordination and will ensure monitoring.The workgroup did
receive profession input from Ms.Erisman.The full span of Baxter Road has 78 house all of which are at risk.
Dunk—The main elements the workgroup tried to address:sustainability,improved public access,better failure
criteria, legal compliance, phase construction, all structures meeting bylaws, no alteration to coastal dunes,
adjusting design length, sand mitigation, template cover, contribution sand, use of off-shore sand, and
establishment of a"sand bank".Reviewed technical changes reflected in this proposal.The workgroup focused
on the technical details which led to the initial denial.
The current structure has not caused damage to the environment and been fairly stable over time.The proposed
project is for long-term protection of the coast. Reviewed the proposed project phases. Another component
addressed is how to handle the template not as a one-size-fits-all but to look at the varied contributions of the
bluff to the littoral system;described the 4,identified"reaches"and individual management of each reach.SBPF
is asking for a reduction in monitoring as a result of the last 7 years;described the amended monitoring.This is
a pre-application discussion and does not seek ConCom's endorsement of details;the SBPF will develop an NOI
based upon this discussion.
Cohen — Addressed Ms. Phillips' points; this is not a meeting to discuss settlement of the litigation. When
ConCom denied the last NOI, it was close—4 to 3. This workgroup tried to look at the project not only as
ConCom jurisdiction but public interests. There were legal determinations made by the Department of
Environmental Protection(DEP)that weren't available at the time of ConCom's denial.He feels one of the best
ideas to come out of the workgroup was to phase the project construction.The Commission should think about
whether or not the presented changes are improvements that would result in a positive decision on an NOI.
We're looking for feedback on the presented changes.
Engelbourg—Related to the sand sourcing as proposed,having an off-shore sand site is beneficial,but he feels
that needs to happen before Phase I.With the existing project,there have been concerns about enough sand and
clean sand; we need a clean, reliable sand source and enhanced parameters for allowing sand: grain size and
chemical-biological-color testing.
Dunk—Phase I addresses sections of the road and home criteria.
Engelbourg—Feels there is a miss characterization representing all lots as being allowed protection;ConCom
has regulatory oversight over the Massachusetts Wetlands Protection Act(WPA)and local bylaws.The Superior
Court hearing would tell us which houses actually warrant protection.
Golding—The existing geotubes protect 7 lots, five of which are vacant and not entitled to protection. The
proposal for Phase I the north end has 2 vacant lots and 3 pre-1978 houses. The section south of the existing
project has 1 vacant lot and 2 pre-1978 houses.When Mr.Felch mentioned 78 houses on Baxter Road,no house
on the west side is within ConCom jurisdiction.
He disagrees with Mr.Dunk about the existing structure not having caused environmental damage.He doesn't
feel the proposed changes are an improvement. Agrees with Ms. Phillips that the environmental issues we
discussed were not addressed by the workgroup.
Topham — He thought the 20% rule could be override by the State since it was enacted in 2004. Suggested
ConCom could be hanging its hat on something that isn't there.Asked Mr.Pucci if that is the case.
Pucci—What Mr.Topham said about the 20%rule is a claim made by the applicant Super Court would decide
the bylaw applicability.
Recommends against his giving any legal opinions on a case since he is going to both brief and argue the case in
court.He will focus on the performance standard related conditions and ConCom concerns.He's willing to meet
with ConCom in executive session to discuss litigation. If it ends up the Commission consensus is that this is a
non-starter,that is helpful for SBPF to know.
Pave 2 of 4
ConCom Minutes for November 5,2019,adopted Nov. 12
Beale—He's reluctant to move ahead with the Superior Court case still hanging.He's not sure it's up to ConCom
to say,"Let's regroup and reconsider."He is in favor of letting Superior Court play out then proceed from there.
Golding—Noted that Baxter Road is outside ConCom jurisdiction up to Lot 81.Agrees with Mr.Beale.
Phillips —She would like to accept Mr. Pucci's offer to have an executive session to discuss issues and get a
better sense of those issues;asked that be scheduled.
Engelbourg—In reviewing proposed changes to mitigation and placement,he's confused about the statistics.
At 22 cubic linear feet(CLF) across the whole project,no number is above 22 CLF,and some is much smaller.
Asked Mr.Dunk to explain his math.
Dunk—The framework out of the workgroup was for 22 CLF the length of the template and annually replacing
the sand for that year based upon that reach and the amount coming off the bluff.Our calculation off the bluff
has been much less than 22 CLF;the 22 CLF was to ensure enough sand was on the template to feed into the
system.
Erisman-The 22 CLF was determined by DEP.
Cohen—The idea of 22 CLF is a myth.The real issue is the correct way to calculate sand.As the bank height
changes,the erosion rate changes,so the amount of sand mitigation will change.
Golding—The 22 CLF is an extreme underestimation of what comes off the bluff during an extreme event.The
back-to-back storms of March 2018 proved how inadequate that was.
Engelbourg—There are ways to ensure we not only meet annual conditions but also protect against extreme
events.He'd like to see the percentage of how much sand on the current project is actually being used.It makes
sense for the sand mitigation to be adaptive and to better relate to what naturally happens to the bluff.
Phillips—Gregg Berman,ConCom's independent reviewer,had data where the ConCom felt comfortable with
the continued use of the proportions.Having an adaptive process makes sense.We also need to review the latest
annual report, and have it reviewed by an independent reviewer. Agrees about getting the sand source nailed
down before anything begins.
Carlson—Staff sent out the annual report and Mr.Berman is reviewing that report.
Read Sam Kefferstan's,Massachusetts Audubon,comment of concerns regarding impact on Sechachacha Pond
into the record;Mr.Kefferstan will send it in to be added to the record.
Read Burton Balkind question:all concerns satisfactorily addressed.
Murphy—Three points: the Superior Court case has been twice extended and is not due for resolution until
December;a decision being made based upon the bylaw and WPA;and littoral drift to the north,which impacts
his client's property.
M.Perry—Asked if the ConCom saw Town Counsel's response to her questions.There is a lot that is puzzling
to her and she supports a number of comments made by Commissioners.
Carlson—Anyone that submitted written comments,those comments have been posted and will be available on
the website;staff can provide hard copies.
As a matter of procedure,the existing Order of Conditions requires a meeting to discuss the 2019 Annual Report,
we want Mr.Berman's comments in hand before that meeting.
R.Atherton—Encouraged all commissioners to read Nantucket Land Council letter.
D.A.Atherton — Four of the present commissioner sat on the NOI for this proposal, 3 did not. Nantucket
Coastal Conservancy(NCC)went back through therecord;there were 12 special ConCom meetings and 4 regular
meetings spanning 9 months to cover massive amounts of information related to this project.
She takes exception to the characterization that the vote was a close call;the original Select Board Memorandum
of Understanding received a 3-2 vote,which hasn't been characterized as a close call.
Asked how the 3 commissioners who did not sit on the original NOI can opine on this framework to decide if
it is approvable.This is a pre-hearing for a project that has been denied after extensive review.Since 2011,SBPF
has submitted a number of proposals for hard armoring on the public beach below the bluff; every single
ConCom since 2011 has denied hard armoring.The Commission needs to understand the historical context.
Topham — Mr. Engelbourg went through the entire file; Ms. Phillips was on NCC so was following the
proceedings;and Mr.Beale is intelligent enough to get up to snuff;he feels Ms.Atherton's concern is unfounded.
He doesn't think anything will be missed.We need to look at this as an independent application.The purpose of
tonight is to decide whether or not to allow a new NOI to go forward.
Engelbourg—Everything that was submitted,including the videos of those meetings,is available;each one of
us has the ability to apply rules and regulations applicable to our jurisdiction.Ultimately it sounds like we need a
motion whether we agree with SBPF or we don't'agree.
Erisman—We don't need a motion; a straw poll would work here. Wants to ensure everyone is comfortable
before expressing an opinion to SBPF.
Phillips — She was under the impression there would be no decision made tonight. She also doesn't want to
make a decision until the Commission sees the 2019 Annual Report and have the Executive Session with Mr.
Pucci.
Beale—We should be very careful about telling an applicant that they should or should not apply.
Erisman—The difference is that this applicant has a project that was denied,and they can't reapply within a
certain period.
Carlson—There is a 3-year rehearing limit on NOIs that were acted on in an unfavorable manner.The aim of
tonight is to put the new concept forward and for SBPF to get feedback.
ConCom Minutes for November 5,2019,adopted Nov. 12
Pucci — The ConCom isn't being asked to rule tonight; that is a much more substantive discussion. This
information has been available to the public and Commissioners only very recently.The purpose of this hearing
is to get the proposed changes out into the public and get feedback from the ConCom.
Golding—He also feels we have a responsibility to future commissioners and past ones to support their decision;
that decision was to deny this, and it is going through Superior Court. He doesn't support an application
truncating the process with a new NOI.
Topham—The three new members should have the opportunity to express their opinions on the proposaL
Phillips—She can't say tonight whether she thinks it makes sense for SBPF to go forward;there are important
pieces of data she doesn't have to make the best decision possible.We need to be fair to SBPF.
Engelbourg—Feels what is really is important is if we feel the changes are significant and substantive over the
previous NOI. If it does not represent a significant change and/or does not address concerns that caused the
denial,there is no need for it to go forward.He's willing to look at a new project if this represents a significantly
new proposal.
Phillips—Feels a need to clarify;a past decision doesn't control everything and SBPF thinks this is sufficiently
different to warrant a thorough look.However,she doesn't have independent data supporting that claim.At this
moment,she doesn't know enough about this proposal to say yes to its going forward.
LaFleur—There is an awful lot to consider and the new members have to have the opportunity to have their
say.
B.Perry—Stated he submitted written comments.Not everyone wants to see the litigation go away. He thinks
ConCom's decision was well considered,and we should wait for the Superior Court ruling.
He has never seen a workgroup submit a document to a Board after consideration was complete;it appears there
have been comments on that project and a decision made before an application was filed.He sees nothing in the
submittal that is substantially different from the project that was denied.
Dunk—This pre-hearing is to get feedback on what was submitted.SBPF does not expect a decision tonight
Golding—Mr.Perry was very succinct.Since 2013 he has accumulated six inches of notes on the subject.
Erisman—Asked Mr.Carlson to schedule an executive session before the next discussion.
Pucci—Cautioned SBPF,the one thing that won't come out of the executive session is he will not present that
ConCom has a weak case and to give it up;he does not think that.His role is to advocate the Commissions case
in court.
The purpose of this pre-hearing process is to look at the alternative and decided if it can be debated upon its
merits. If SBPF has not been provided with a sufficient read on if it is worthwhile to continue pursuing,that is
an issue they need to take into account.Competing policy decisions of the Select Board,which they are pursuing,
are based upon different concerns from ConCom.
Topham — When Staff looks at available dates for executive session, please consider the Historic District
Commission meeting schedule to avoid conflicting hearings.
Carlson—Any further pre-hearing discussion would be requested by the party that is requesting that
Action Continued.
Roll-call vote N/A
III. PUBLIC MEETING
A. Other Business
1. Approval of Minutes:None
2. Commissioners Comment
a.None
3. Administrator/Staff Reports
a.None
Adjournment
Action Motion to Adjourn at 8:19 p.m.(made by:Phillips) (seconded.)
Roll-call vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,Lafleur,Phillips,and Topham-aye
Submitted by:
Terry L.Norton
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