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HomeMy WebLinkAboutSBPF_2824 Greenhill Ltr to Con Com re reconsideration of SBPF removal order 7_15_216 Beacon Street, Suite 600 Boston, MA 02118 p:617-494-8300 f: 617-307-9010 Dennis A. Murphy dgusmurphy@gmail.com 781-588-7881 July 15, 2021 VIA EMAIL: jdodd@nantucket-ma.gov & Jcarlson@nantucket-ma.gov Nantucket Conservation Commission 2 Bathing Beach Rd. Nantucket, MA 02554 Re: reconsideration of Siasconset Beach Preservation Fund (“SBPF”) removal order Dear Commissioners: As you know, I represent the Greenhill family of Hoicks Hollow Road, whose property north of the geotube project has been among the most affected by SBPF’s failure over the past five years to comply with the Commission’s Amended Order of Conditions dated November 28, 2018 (“OOC”). Two weeks ago, the Commission voted to require removal of the geotubes, not only due to SBPF’s longstanding non-compliance with the OOC, but also because it could not -- and steadfastly would not -- comply with the sand mitigation requirement in the future, unless the expansion project that the Commission denied in 2019 were to be approved. That proposed expansion, which would have quadrupled the length of geotube installation, was properly denied by you two years ago, and is now poised to be affirmed by the Superior Court. In essence, SBPF’s bargain boils down to this: it will finally agree to comply with the OOC if and only if the Commission reverses the position it has held for the past two years in litigation over the expansion project. More than a week after your vote, Attorney Wood, who attended the June 30 hearing but did not address the Commission, reiterated this position: “SBPF does not intend to provide this additional sand mitigation. As has been stated in the past, it is simply not feasible for SBPF to maintain the existing project unless there is a viable path to building the full-sized project”. (7/7/21 Ltr. Wood to Erisman, p. 1) The following day, the Select Board voted in executive session to ask the Commission to reconsider the June 30, 2021 vote for removal of the geotubes (7/12/21 Memo Bridges to Erisman) In light of SBPF’s and the Select Board’s post-hearing submissions, I hope you will consider these three comments on the procedural path forward. First, it should now be abundantly clear that the Commission needs to retain its own independent counsel for this matter. You are a party in existing litigation over this project, SBPF has promised to file a further appeal from any enforcement removal order, and your appointing authority (Select Board) controls the Town-owned beach on which the geotubes sit. Now, both 6 Beacon Street, Suite 600 Boston, MA 02118 p:617-494-8300 f: 617-307-9010 SBPF and the Select Board have asked you to reconsider your votes. Your first order of business in light of these requests for reconsideration should be to ask the Select Board to appoint special municipal counsel for the Commission to advise you on this matter. Second, SBPF did not submit any proposed remediation plan in advance of the Commission’s vote, but instead waited more than a week after the public hearing to ask you to reopen it and reconsider the removal vote. Before doing so, you should insist that SBPF agree in writing to an extension of the time period to issue a written decision. The Commission should not even entertain a motion to reconsider unless it is clear you are not operating under the threat of constructive approval. See Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich, 449 Mass. 859, 865 (2007 (“where a conservation commission does not issue its decision within the required twenty-one day period and the applicant appeals to the DEP, it is the DEP's superseding order that controls; any late-issued decision of the commission is without effect.”). Third, as you may recall, the remediation plan suggested by the experts was based on a calculated sand deficit of some 46,537 cubic yards as of December 31, 2020, which has grown to over 57,000 in the six months since then. (6/17/21 Ltr. from Kriebel & Ruthven) SBPF’s belated submission dated July 7, 2021 proposed to remediate only half of the actual deficit: “SBPF documented a sand deficit of 26,637 cy through essentially December 31, 2020.” (7/7/21 Memo from D.R. Dunk) The Commission should not reconsider its vote, but if it opts to do so any remediation plan must start with an accurate figure for the sand deficiency. SBPF’s July 7th proposal understates the sand shortfall by some 30,000 cubic yards, as calculated by two independent experts (Kriebel & Ruthven). The July 7 SBPF remediation plan, even if adopted and followed through, would not bring the project back into compliance with the OOC. For that reason, if the Commission does reconsider its vote in light of SBPF’s subsequent submissions, the outcome should be no different because the July 7 plan it has proposed does not even get the project halfway back into compliance. The Commission now faces legal and political pressure brought to bear on what should be purely scientific, data-driven decisions. We hope you continue to be guided solely by science and data in future votes to enforce the regulations you are charged with implementing. Very truly yours, /s/ Dennis A. Murphy Dennis A. Murphy cc: George Pucci, Esq. Glenn Wood, Esq.