HomeMy WebLinkAbout2020-12-3 ConCom Minutes for December 03,2020,adopted Dec. 17
CONSERVATION COMMISSION
PUBLIC MEETING .
i +�4'i+' 2 Bathing Beach Road
Nantucket,Massachusetts 02554 tt
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Thursday,December 03,2020—5:00 p.m.
This meeting was held via remote participation using ZOOM and YouTube,
Pursuant to Governor Baker's March 12, 2020 Order Regarding Open Meeting Law
Commissioners: Ashley Erisman (Chair), Ian Golding (Vice Chair), David LaFleur,Joe Topham,
Seth Engelbourg, Maureen Phillips, and Mark Beale
Called to order at 5:00 p.m.by Ms. Erisman
Staff in attendance: Jeff Carlson, Natural Resources Director; Joanne Dodd, Natural Resources Coordinator; Terry
Norton,Town Minutes Taker
Attending Members: Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Absent Members: Phillips
Agenda adopted by unanimous consents
*Matter has not been heard
I. PUBLIC MEETING
A. Announcements
B. Public Comment—None
I1. PUBLIC HEARING
A. Notice of Intent
1. Eli Zabar—47 Squam Road(13-22)5E48-3253
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Art Gasbarro,Nantucket Engineering&Survey
Public None
Discussion(5:06) Gasbarro — This was continued for Massachusetts Natural Heritage information requiring an official study.
Work is invasive species control and landscape work in the buffer to a vegetated wetland abutting to Squam
Pond.Massachusetts Natural Heritage has signed off on the project.
Beale—Asked what he means by removal by mechanical means.
Gasbarro—Up-rooting and digging out by hand,not using herbicides.
Staff Have everything needed to close.
Motion Motion to Close. (made by:Beale) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
2. `Town of Nantucket Department of Public Works (DP' —Town Wide (Various) SE48-3366
Sitting Erisman,Golding,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Tori Brown,VHB Environmental Scientist
Gene Crouch,VHB
Public None
Discussion(5:10) Brown — We are waiting for comments from Massachusetts Natural Heritage, which we hope to get
tomorrow. We will respond to Massachusetts Natural Heritage and commissioner comments at the next
hearing.
Beale—He's leery about giving them an open-ended approval.
Erisman—She shares Mr.Beale's concerns. One concern is over clearing for sight-line work.
Golding—Agrees with Mr.Beale.
Topham—He too agrees.
Engelbourg — He agrees but thinks most issues can be dealt with through conditions and definitions. He
expects the order would be long,its review might require a special meeting. No one is asking for carte blanche-,
we are trying to create an order with strict limitations. No matter how many conditions we add, it would be
less work than reviewing every single DPW project. We just need more information and definitions on the
activities included in this proposal.
Beale—He'd prefer more general Orders of Conditions on specific properties than this general one.
Engelbourg— Activities would be for across properties; if one property needs to be treated differently, we
are within our rights to attach those conditions or require an NOI.
Erisman — Asked if we could look at a sample order from another ConCom; that might help us wrap our
heads around these types of applications.
Topham—If we have a sensitive property,we can request an application and attach conditions.
Erisman—They should notify staff before work starts so staff can warn them about any resource areas.
Page 1 of 8
ConCom Minutes for December 03,2020,adopted Dec. 1-
Engelbourg—Basic information in a basic workplan submitted at the beginning of each year would helpful.
When actual work is to take place, the DPW would contact the Commission or staff. Monitoring should be
conditioned so at the end of the year,we can track the work they did.
Brown—Asked for a 2-week continuance.
Staff He can try to get a copy of this type of Order of Conditions from a Mid-Mass town.
Something to think about is that a lot of DPW work is not parcel specific.
Motion Continued to December 17tH
Roll-call Vote N/A
3. Weissenberger—84 Pocomo Road (15-40)SE48-3364(Cont.12/17/20)
4. 5 Sherburne Way,LLC—5 Sherburne Way(30-38) SE48-3363 (Cont. 12/17/20)
5. 'Nester—4 East Lincoln Avenue (42.4.1-49) SE48-3367
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Ryan Maxwell,Bracken Engineering
Public None
Discussion (5:24) Maxwell — Property is within land subject to coastal storm flowage; this is for relocation of an existing
structure and building a new structure on a crawl space. A stone structure around each building will handle
roof runoff.
Golding—Asked the material for the pervious driveway.
Maxwell—That hasn't been decided;would be shell or stone or gravel.
Staff Have even-thing needed to close.
Motion Motion to Close. (made by:Topham) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-ace
6. tGoldrich&Rice—41 Crooked Lane (41-202) SE48-
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Art Gasbarro,Nantucket Engineering&Survey
Public None
Discussion(5:27) Gasbarro— This is to remove an existing garage and replace it with an addition and add a garage studio, all
within the buffer to a bordering vegetated wetland. An existing outdoor shower would be convened to
interior living space.Asking for a waiver for 2-foot separation from groundwater.
Engelbourg—He doesn't see the existing structure as justification for all the additional structures within the
50-foot buffer and so close to the 25-foot buffer. The outdoor shower could easily be set outside the 50-foot
buffer. He's okay with turning the existing garage into an addition. Wants to hear about the construction
protocol on the infill since it is happening so close to the wetlands.
Gasbarro—He can get that information;would probably be a small block wall.
Golding—As far as he's concerned, the 50-foot demarcation is pretty sacrosanct. He's not very sympathetic
to their request.
Topham—Agrees about not breaking the 50-foot no build line.
Engelbourg—Agrees with Mr. Golding and Mr.Topham about work within the 50 without some offset.
Erisman—Agrees about approving new construction.
LaFleur—He agrees;the 50-foot buffer has been getting attacked lately and it should be preserved.
Gasbarro—Asked for a 2-week continuance.
Staff None
Motion Continued to December 17th.
Roll-call Vote N/A
7. *Trojah Nominee Trust—26 Easy Street(13-22) SE48-
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Art Gasbarro,Nantucket Engineering&Survey
Public None
Discussion (5:37) Gasbarro — Remove two existing structures and construct new with an ADA-compliant ramp within the
buffer to the timber bulkhead and on land subject to coastal storm flowage.Asking for a solid foundation: the
displacement would be similar to existing conditions. Do not believe there would be adverse impact on the
resource areas.
Topham — He feels this is an opportunity for lifting the house onto piers to allow flood waters to be
absorbed.The lot next door should have had the same detail.
Engelbourg—He agrees we should think about a pile-supported structure.
Golding — He also agrees. In the application, it says it adheres to requirements; he doesn't think it does. It
needs to take into account sea-level rise.
Erisman—She would prefer piers over solid fill.
Topham — Commercial buildings can have a foundation if they wish; but he'd prefer no solid foundation in
this location.Noted that the new harbor master building is on piers with a slab.
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ConCom Minutes for December 03,2020,adopted Dec. 17
Gasbarro — Regarding flood zone requirements, that was a reference to the Building Code; we would not
want storage below grade.Asked for a 2-week continuance.
Staff Commercial structures have different standards; he can verify that information with the Building
Commissioner.
Motion Continued to December 17th.
Roll-call Vote N/A
8. Killian—10 Mayhew Lane (41-443) SE48-3356 (Cont. 12/17/20)
9. Norton—24 North Cambridge Street(38-20) SE48-3358 (Cont.12/17/20)
10.*Mary Jo Buckland—113 Hummock Pond Road (546-59) SE48-3330 (Cont.12/17/20)
11.14 North Road,LLC—14 North Road(43-83) SE48-3359
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Brian Madden,LEC Environmental
Steven Cohen,Cohen&Cohen Law P.C.
Public R.J.Turcotte,Nantucket Land Council,Inc.
Discussion (5:47) Madden— Reviewed revisions made per previous commissioner comments. Remaining structural foot print
within the 50-foot buffer is a total of 29 square feet(sf).All topography slopes away from the bank;will install
dry wells.Will revegetate 1260sf of existing lawn with native shrubs and herbaceous plugs right up against and
into the 25-foot buffer.There is a net of 2279sf structural reduction within the 50-foot buffer zone.
Erisman—Appreciates the revisions and added vegetation.
Engelbourg—When he looked at the plan,he saw that it is so close;it seems like all that needs to be done to
get it all outside the 50-foot buffer is a shift of 4 linear feet south.
Madden—Looked hard at what is feasible.The west side of the structure is now 48 linear feet away from the
coastal bank;that's about 20"encroachment into the buffer.
Topham—He agrees it could be shifted back;that's a minor tweak.
Beale—He doesn't see why they can't shift it back 4 more feet.
Madden—From a design standpoint,they were unable to make that change and still have everything fit.
Erisman—We've run into designer desires versus the environment. She doesn't always agree with the human
aesthetic.
Engelbourg—He's trying to get measurements off the plans. Some of his concerns have to do with what's
below grade south of the main house; he thinks there is a way to make that smaller and still have a similar
designs aesthetic while protecting the resource area.
Cohen—The question here is whether or not the applicant providing a massive amount of improvement, not
the design element.
Erisman—We want the applicant's structures as far back from an eroding bluff as possible. It is well within
our justification to ask that the structures be moved.
Engelbourg—Part of the issue here refers to quantifying what long-term net benefit means. There isn't a lot
of information about what does and doesn't qualify;it is up to the commission to determine what classifies as
long-term net benefit and give weight to the definition.
Topham — On the far left down to the garage from the proposed house and east to west to the driveway
would all be habitable subterranean space; all that area would be excavated. He doesn't think everyone
understands the impact of that 1% Mr. Cohen is asking for. Still thinks it should be shifted back as Mr.
Engelbourg suggested;it is for the betterment of the property.
Madden — He doesn't believe the "basement" is dictating above-ground design. Architects like to keep a
straight line.
Turcotte—Wonders why a project like this is being handled differently from an NOI for construction on an
empty lot.
Golding— This structure isn't entitled to statutory protection; it is circa 1979; if it were being moved, we'd
ask it be brought back behind the 50-foot buffer.He asks that be done;it isn't arduous for the applicant.
Beale—Asked if Mr.Madden wants a denial or a revisit.
Madden—Requested a 2-week continuance.
Staff Historically when we look at razing and reconstruction,we are looking at the overall net benefit and if there
are grounds to grant the waiver.
We must have findings that it is not subject to protection included in the Order of Conditions.
Motion Continued to December 17tt'.
Roll-call Vote N/A
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ConCom Minutes for December 03,2020,adopted Dec. 1-
Ill. PUBLIC MEETING
C. Requests for Determination of Applicability
1. Houilhan Swift Rock,LLC—28 Swift Rock Road (40-43)
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Ryan Maxwell,Bracken Engineering
Public None
Discussion(6:u8) Maxwell — The bordering vegetated wetland was previously approved under another Order of Condition...
The applicant wants to extend the existing pool patio by 10 feet, putting it 63 feet from the wetlands. Al
proposing a bocce court and relocating the walking path.
Staff Recommend Negative 3 for work within the buffer.
Motion Motion to Issue as a Negative 3. (made by:Topham) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-ave
2. The Horchow Family Nominee Trust—33 Cliff Road (42.4.4-5)
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Brian Madden,LEC Environmental
Public None
Discussion(6:11) Madden—This is to confirm the wetland resource areas, a bordering vegetated wetland. Northeast of the site
is an elevation-, flood area,which is not part of this RDA.
Staff Recommend Positive 2A confirming resource boundaries.
Motion Motion to Issue as Positive 2A. (made by: Engelbourg) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
3. EPR RGH,LLC—119 Eel Point Road (33-17.2)
4. Scannell— 119R Eel Point Road (33-17.1)
Sitting Erisman,Golding,LaFleur,Topham,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Paul Santos,Nantucket Surveyors
Public None
Discussion(6:14) Santos—This is to confirm the resource area on the two lots. The resource areas are a coastal bank and costal
beach. The property is on the Massachusetts Natural Heritage Endangered Species Map, but that is outside
ConCom jurisdiction. We and the staff are of the opinion the area of wind-blown sand does not constitute a
dune. No work proposed under this application.
Golding—Asked what difference a dune makes to new construction going forward.
Santos—It would move the 25-foot no-disturb zone.
Erisman — She recalls a similar proposal with a questionable dune. Concerned the Commission might be
missing something when it comes to dunes which are possibly being created. Asked how long the RD_,.
applies regarding our ability to change that perspective.
Golding — We could address this under our revision of local regulations. He's concerned the Commission
could be boxing ourselves in.
Santos — Pointed out that the plan provided to the architect shows the 50-foot buffer off the wind-blown
sand;that is the plan everyone is working off.
Staff A new dune would move the setback more landward of the bank.Looking at the guidance for dunes and how
they work, if the wind-blown sand is able to make a connection to dunes below, it would qualify as a dune.
Over time it could connect and be jurisdictional, but it does not qualify at this time. If resources change
substantially and any work came in through an NOI,at that time we would address that change.
Recommend a Positive 2A for both properties.
Motion Motion to Issue as a Positive 2A. (made by:LaFleur) (seconded)
Roll-call Vote Carried 6-0/Beale,Erisman,Golding,LaFleur,and Topham-aye;Engelbourg recused
D. Minor Modification
1. Croquet Pitch, LLC—24 West Chester Street(42.4.3/57) SE48-3305
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Art Gasbarro,Nantucket Engineering&Survey
Public None
Discussion (6:25) Gasbarro—This is to ensure the final footprint is approved.
Staff Recommend issue as a minor modification.
Motion Motion to Issue as a Minor Modification. (made by:Beale) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-ave
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ConCom Minutes for December 03,2020,adopted Dec. 17
E. Certificates of Compliance
1. BFP Properties,LP- 13 Easton Street(42.1.4-26) SE48-2490 (Cont.12/17/20)
2. New England Development—Lot 3 Mariner Way(55.1.4-72) SE48-2745
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Staff This was an amended order of conditions; with that approval, the site is now in compliance. Recommend
issue.
Discussion(6:28) None
Motion Motion to Issue the Certificate. (made by:LaFleur) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
3. Hans Dalgaard—33 Madaket Road (41-409) SE48-3704
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Staff We did the site inspection after the recent storm and could see how water was acting on the site. The buffer
zone and bio-retention area are working very well.Recommend on-going Conditions 20,22,23,24,and 25.
Discussion(6:29) Brian Madden,LEC Environmental—It is in substantial compliance;permitted 127sf within the buffer and
only 107sf constructed.
Topham—He thinks it's great that everything we asked to be installed is working.
Motion Motion to Issue with on-going Conditions 20,22,23,24,and 25. (made by:Topham) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
F. Orders of Condition
1. Eli Zabar—47 Squam Road(13-22) SE48-3253
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Draft Order of Conditions
Staff Reviewed the conditions and waivers.
Discussion(6:34) None
Motion Motion to Approve as drafted. (made by:Engelbourg) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
2. Nester—4 East Lincoln Avenue(42.4.1-49) 5E48-3367
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Draft Order of Conditions
Staff No additional conditions to add.
Discussion(6:36) None
Motion Motion to Approve as drafted. (made by:Topham) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
G. Extension of Orders
1. 36 Lily Street,LLC—36&36B Lily Street(42.4.3-93&94) SE48-3005 Withdrawn
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Representation Sarah Alger,Sarah F.Alger P.C.
Terry Sanford,36 Lily Street,LLC,Blue Flag
Brad Guidi,36 Lily Street,LLC,Blue Flag
Brian Madden,LEC Environmental
Public Rachael Freeman,Nantucket Islands Land Bank
R.J.Turcotte,Nantucket Land Council,Inc.
Discussion(6:38) Golding—He sees no reason to consider it to be open ended and the limitation on actual construction was 6
weeks. He wonders what Town Counsel would say.
Alger—The State of Emergency Order 42, section 17.b.iii provides that a permit in existence as of March 10,
2020 shall not expire during the State of Emergency. We are still in the State of Emergency. We applied for
the extension prematurely.We feel we are in compliance with the permit.Two of the principals are here.
Engelbourg — He understands the process. His question is that if we feel work on this order has been in
non-compliance,can we issue an enforcement action to bring it back into compliance.
Erisman—She thinks that now the extension is withdrawn,we can enforce the order. Concerns were brought
up concerning flooding.
Sanford — Flooding existed before work on the site began. The wetness of the easement was also a pre-
existing situation. We've been actively engaged with the Land Bank on how to do improvements to their
access easement. DPW is fully aware that the drainage system has failed; the failure of that storm drain has
exacerbated the situation.
Guidi — Echoed Mr. Sanford's comments. The COVID lockdown and the Summer season delayed
construction.
Erisman—We have photos that showed the foundation full of water in 2019;you people are responsible for
the property and preventing that. She believes construction has exacerbated the situation. It is incumbent on
the applicant to present any and all information supporting their claim that construction hasn't worsened the
situation.
Freeman—There has been flooding on the site, but the difference is it usually dries out in the summer; this
summer,while experiencing a drought,we still had a wet site.
RaSnfR
ConCom Minutes for December 03,2020,adopted Dec. 1-
Guidi—It is important to note we are in the middle of construction and the stormwater management system
has not been installed.
Engelbourg — His issue is negligent or improper site management; leaving an unsecured foundation is
extremely detrimental. There is testimony a deer drowned in the flooded area. Given current conditions, he
doesn't think the proposed raingarden will adequately handle flooding. He'd like the Commission to issue a
narrow enforcement order to clear up issues related to flooding and wildlife protection.
Golding — As a former abutter, he has noted that there has been a remarkable change in condinons since
construction began. The applicant feels the drainage system is responsible. He doesn't know how to prove
one or the other.Asked if we have legal basis for stopping work to investigate.
Topham—Mr. McNeil said the DPW is trying to get 5 land owners to provide permission to fix the drainage:
he would think they would be eager to be on board with that. Also, more communication by the applicant
with the ConCom about the delays would have been helpful.
Guidi —We've been in contact with the DPW and allowed them access to the site. We don't want standing
water any more than anyone else. Found a neighbor is draining into an inlet and so onto our site.
Madden — The water in the open foundation will be pumped to a truck and taken off site. We have an
application with DPW to dewater into the existing catch basin. Once the foundation is set, the issues related
to that should go away. The raingarden provides compensatory storage for water within the land subiect to
flooding.
Freeman —We are working to look at possibilities for water retention and a restoration; to that end, we are
working with the DPW regarding the failed pipe; that work is held up due an engineering issue. Our hope is
that the water can be managed on their own site,so it doesn't impact other properties. She has concerns about
the raingarden being sufficient,especially considering how wet it is now.
Engelbourg—It seems due to the order of construction, flooding has been exacerbated. He'd like to see the
compensatory flood storage prioritized ASAP. Also, conditions might have changed since issuance of the
Order of Conditions and perhaps that should be looked at.
Erisman — We should probably issue an enforcement order, so they come before us to work on the
raingarden,which might have to be resized.
Alger— Regarding the raingarden, it was to go in last week; we had to cancel that when we agreed to stop
work. We'd like to put that in as quickly as possible; we can commit to doing that before continuing other
work. It's not fair to put all responsibility for the area on this one application, especially in the face of the
failing drainage system.
Topham—The raingarden will help; but it goes back to Mr. McNeil getting everyone together. On live chat,
one abutter says they haven't been approached by 'Mir. McNeil. He would like them to put in the raingarden
then come back in about 8 weeks to update us on the conditions. We should bring the situation to the Select
Board to encourage repairs of the drainage pipe are financed.
Turcotte—We support the Land Bank's position and concerns; also support enforcement action being taken
tonight. Noted that the applicant didn't do anything to keep water out of the foundation.
Madden—We can provide monitoring reports as we continue work. The raingarden is not the answer to the
area's problems.
Topham—They will pump out the foundation,but the water will come back in. It will be 2-3 weeks until that
water is gone,and it will require multiple pump outs.
Carlson — Read on-line comments of concerns from Sarah Noelle McLane argues the conditions have
changed since issuance of the permit; they have increased ground water;wants to know where the applicant is
proposing to redirect the water during DP\X'ditch work;have a photo of a dead deer and a police report; the
DPW has not approached her, but she would grant them access. Suzanne Forsyth, said we have given Rob
total access and have urged him to prioritize the project
Erisman—We need to first accept the withdrawal.
Staff Explained the reasons for the withdrawal: under the Governor's COVID Order 42, all permits valid as of
March 10, 2020 have the expiration date continued; therefore, an extension isn't required since the permit is
good for at least 8 additional months. Town Counsel agrees with Ms.Alger.
If we feel activates could be harming interests, the commission can address that through the full power of the
commission.
The question with any enforcement is having clear evidence.We are dealing with a situation where people see
things going on that might or might not be related to activities on the site. This area if fraught with water
problems.
If the ConCom identifies something as harming its interests,we can issue an enforcement action. Conversely,
everyone is here now, and you can ask that be done; if that doesn't happen, then we issue an enforcement
order. It's helpful we have everyone here today;Mr.McNeil is the one missing voice.
Motion Motion to Accept the withdrawal. (made by: Engelbourg) (seconded'
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
Erisman—The commissions should now discuss whether or not to issue an enforcement action.
Golding—He'd like a meeting of the minds. However,he can't accept that the drainage pipes collapsed in the
last couple of months and takes exception to Mr. Guidi's and Mr. Sanford's assertion they are not to blame
for the build-up of water.
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ConCom Minutes for December 03,2020,adopted Dec. 17
Madden — One contributing factor is the basin at West Chester Street and Gull Island has not seen the
amount of standing water that there has been over the past couple of years.He feels that is the primary reason
for increased flooding. Also,when pumps were on,we saw that once water was removed,it was seeping back
in from the north side,Gull Island.
Engelbourg—If the representatives are willing to take our recommendations and proceed as described, there
is no need for enforcement now;if they don't,then action will be taken.
Erisman — The applicant now knows they need to communication with Natural Resources when they see
increased water.
Carlson—It makes sense to try and get someone from Blue Flag on site with Mr. McNeil and someone from
the Land Bank to go over the flooding and possible triggers.We are happy to facilitate that. A project update
could be put on the agenda for discussion.
Guidi—We are willing to work with all parties involved to solve this problem. Our first call tomorrow will he
to get back on track with installing the raingarden.
Carlson—It's important to review and get an update on this in two weeks.We can have Mr. McNeil here.
Motion Tabled to December 17th.
Roll-call Vote N/.-\
H. Other Business
1. Approval of Minutes 11/19/2020:
Erisman—Page 12: "Same Kefferstan" should be"Sam."
Golding—Page 11: about seeking Town Counsel's opinion,he wanted the whether or not the discussion continued to be
contingent on Town Counsel advice. Page 12: in the aspects not discussed regarding regulations,he wants to reduce the
509/a restoration.Page 12:where it says,"bulkheads with pre-1978 houses",it should say"78 house".
Engelbourg—Last page 12 under commissioner comments:having a total disturbance percentage within the Zero to 100-
foot buffer not just the 509/a disturbance within the 25-and 50-foot buffers
Motion Tabled to December 17th,
Roll-call Vote N/A
2. Reports:
a. CRAC,Golding
3. Enforcement update
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Discussion(7:45) Carlson—Moving forward on others;have a new one:
27 Washington Street next to the Town pier parking lot with bright orange trim; the pocket wetland brush
and grass was mowed or cut.
Erisman — When she was last at Natural Resources, she noted workers at this location; asked if they had a
permit for work on the structure.
Engelbourg—What he knows about the wetland is sometimes those plants are persistent with seedheads.We
will probably have to monitor the area for invasive species going forward
Motion Motion to Issue the enforcement for 27 Washington Street. (made by:LaFleur) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman,Golding,LaFleur,and Topham-aye
Continued Topham—Asked about 115/117 Baxter Road Enforcement order.
Discussion Carlson — They received the enforcement order and we were contacted by their consultant. We
discussed the issues; they are preparing their response; we should have that written response by
December 17t''.
Erisman—Asked about the Enforcement Action with the Frables.
Carlson— Sent a number of citations; he'll follow up with the Town Clerk to see if they were paid. We will
have to follow up with the police;at some point it will roll over into a criminal complaint.
Golding—Asked about 71 Baxter Road and the blocked off access.
Carlson—The owner contacted the office and they have engaged a professional to review the situation.
4. Discussion of SBPF—77-122 Baxter Road SE 48-1659;SBPF-65-67 Baxter Road 5E48-1602
Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Beale
Documentation Emailed comments from D.Anne Atherton
Speakers Rick Atherton
Discussion(7:55) Carlson — Ms. Atherton sent in comments that will be distributed regarding SE48-2824 and how long the
rolls were exposed.It had questions about sediment delivered to the array farther south and its current status.
Atherton—This all started with the delivery of contaminated sand and if it was meant for the installation to
the south, that led to the discussion about who was responsible for the southerly installation. His recollection
is that someone was going to ask Town Counsel to help determine who was responsible;we have not heard of
an answer. A simple solution is to compare the NOIs and the 1`t page of the Order of Conditions. If there is
no difference,SBPF is responsible.
Golding—He recalls that the NETCO Representative indicated SBPF was responsible.
Topham — He thinks the whole chain of command broke down, and he can't point his finger at any one
person. He feels NETCO has been hiding from any responsibility.
Erisman—We have numerous open permits,and no one is taking responsibility;it isn't just NETCO. Having
a clear permit holder will help us fix this.
TARP 7.,F A
ConCom Minutes for December 03,2020,adopted Dec. 1-
Carlson - In the standard Order of Conditions, Condition 16 states that the applicant, the properr: owner.
their successor, and the contractor are responsible. That is important in that it states both the applicant and
the contractor are responsible. If your name is on an Order of Conditions, you are responsible; if you are a
contractor hired to do the work,you are responsible.
Atherton-A number of parties might have responsibilities, but that doesn't alleviate SBPF as the applicant.
It is important on any application when dealing with owners, architects, contractors and subcontractor: the
easiest way to deal with all of them is to hold the primary applicant responsible.
Erisman-Asked if the Town of Nantucket is the land holder for all of this.
Carlson-Yes.
Erisman-We might need a representative of the Town to attend the meeting and help parse this out; as the
land owner,it might be them who will have to deal with what's going on and get it rectified.
Atherton - It's important to understand if there is some distinction with the proposition proposed by `.Ir.
Cohen for the southern array.
Engelbourg - It seems the supposition was that SBPF assisted in the permitting process then went hands
off;but if their name is on the permit,they are legally involved.
Golding-Technically,the NETCO projects aren't in compliance.
Erisman-That is where we need to involve the Town as the property owner.
Carlson-He's not sure what licensing agreements are in place for use of the Town property. That might be a
way to compel compliance.
Topham - Once you want to shut something down or levy fines, people suddenly show up. He thinks an
enforcement violation should have been started the day NETCO came to ConCom and been running to date.
Asked if we can send the Enforcement Order to the Town;they are the land owners. People need to he made
aware of the problem here.
Erisman-We sent letters to the Select Board and never got a response. Confirmed if NETCO is still under a
stop-work order for those sites.
Carlson - Yes, NETCO is still under a stop-work order. To Mr. Topham's comment, we can issue
Enforcement Actions to the Town.We can compel action if not impose a fine.
R.Atherton-This discussion has been helpful. As long as we all agree all parties hold responsibility, he feels
confident the Commission will deal with the best way to move forward.
Carlson-Recommends getting all entities involved together at a later date; suggested sending everyone entity
involved notice that they are expected to attend a meeting on a specific date and if they don't appear, they will
be issued an Enforcement Order. We are going to get Gregg Berman's SBPF annual report tomorrow; his
thought is to schedule the annual review in mid January, and that would he the perfect day for everyone
involved to be in attendance.
Motion No action at this time.
Roll-call Vote N/A
5. Commissioners Comment
a. Golding - Regarding regulations we don't have any definition for pervious surfaces; with all the challenges our
wetland face,it would help to have standards for porosity.
b.Golding-The Select Board had an executive session today about SBPF and is curious why no one from ConCom was
invited.
Carlson-None of us were in attendance at that executive session; the Select Board has asked if the ConCom would
like to have a joint executive session on December 14 or 15 at 4 p.m.
c. Comment 2
6. Administrator/Staff Reports
a. Still working on pulling regulatory information together.
b.Report 2
I. Adjournment
Motion Motion to Adjourn at 8:32 p.m. (made by: Golding) (seconded)
Roll-call Vote Carried unanimously//Beale,Engelbourg,Erisman;Golding,LaFleur,and Topham-aye
Submitted by:
Terry L. Norton
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