HomeMy WebLinkAboutSeptember 2, 2021 ConCom Minutes for September 2,2021,adopted Sept. 9
t
CONSERVATION COMMISSION
' aKsucN SPECIAL MEETING
o• vi�� 131 Pleasant Street
1 * ,,Y Nantucket,Mai achusetts 02554
�' �OQ 4� www.nantucket-ma.gov
9�°oAA = Thursday,September 2,2021
Commissioners: Ashley Erisman (Chair), Ian Golding (Vice Chair), David Lafleur, Seth Engelbourg,
Maureen Phillips,Mark Beale, and Linda Williams
Called to order at 4:08 p.m.by Ms.Erisman
Staff in attendance: Jeff Carlson,Natural Resources Director;Terry Norton,Town\Minutes Taker
.Attending Members: Erisman,Golding,Engelbourg,Phillips,Beale,Williams
\bsent Members: Lafleur
Agenda adopted by unanimous consent v
I. PUBLIC MEETING t''
rt-
A. Announcements
B. Public Comment—None r -
C. Enforcement Action Update G
1. Sconset Beach Preservation Fund—87-105Baxter Road(49&48-various)Area SE48-2824 -_
-
,
Sitting Erisman,Golding,Engelbourg,Phillips,Beale,Williams
Recused None •�
Documentation Supporting documents and plans;correspondence;draft Order of Conditions ,n
-J
SBPF Rep's Steven Cohen,Cohen&Cohen LP
David Bailey, 100 Baxter Road,for`Sconset Civic Association (SCA)
Margaret McQuade,97 Baxter Road
David Golden,70 Baxter Road
Meridith Moldenhauer,71 Baxter Road
Public speakers Dennis Murphy,Hill Law,counsel for the Greenhills
R.J.Turcotte,Nantucket Land Council,Inc.
Discussion Carlson—We heard at the last hearing the role Town Counsel will play in this.
Williams—Her preference has been for a formal joint meeting with the Select Board;they have a bigger picture
of the situation on Baxter Road. She doesn't support this enforcement action. She doesn't see a detriment in a
delaying the vote on issuing the order; feels the problems cited in the enforcement order are minor and
correctable. We should read the letter asking for a meeting and work out a solution with SBPF. Asked how
SBPF would respond to ConCom formally should the Enforcement Order to remove the array be issued.
Contends the project has not been detrimental and some of the violations are minor:reporting violations,ramp
issues,sand mitigation.
Erisman—We were denied an opportumtv to parricipate in the Select Board executive session. SBPF has been
in violation of their Order of Conditions for years.This is the one project to her knowledge which has amassed
enforcement issues and met the failure criteria. We've worked for years with this applicant and the violations
are not minor;they meet failure criteria.If the vote to issue the Enforcement Order passes,SBPS can file a new
application for a project.
Carlson—With submission of a new application,there would be reheating questions regarding similarity.Any
applicant can file a new application. The Order of Conditions (SE48-2428) is still valid; any change in sand
delivery would require a modification.
Erisman—Asked Mr. Carlson to review the draft Emergency Order for removal.
Engelbourg—He sees 3 findings;he thought there was a 4th relater to violation of the Cease-and-Desist 'C&D,
Order.
Carlson—That was wrapped up in 12/11.
Golding—To Mr.Engelbourg's point,wonders if it should be considered as another violation;what's listed as
Violation 3 was listed as Violation 2 in the letter and Violation 3 in the letter references photos or work done
in violation of C&D Order.It has nothing to do with the contaminated material referenced in Violation 2.
Phillips—She has read the Emergency Order and concurs on the correction Mr.Golding outlined.She reviewed
this for all facts and findings on what has happened regarding the original order and violations; this is an
excellent summary of many years of work. She would move that this Enforcement Order be issued.
Carlson—Explained there was no formal enforcement,but he added a note regarding violation of the C&D
Order.
Williams—Asked why it is necessary to do this today rather than waiting for the_SRC ADIS report or a joint
meeting with Select Board.
F..,-,, n—We've waited 2 months and we need to finish what we started.The ARCADIS report doesn't speak
,___a_._a ..-t,:,-1, r1;rl tint remond:
ConCom Minutes for September 2,21)2]. adopted Sep.:
on( mu reached out to them in Apri] 2020; they didn't rcsrond, and
project has keen kept incompliant. A letter from SBPI- stated they did not to i-1C-1,` compi, r. -
Me\ got the expansion of the tube approved. If this drags on,it could still be out of compliance when tlie
storm season hits. Other areas along the shore have complained about damage to their properties. Ims _-
stands alone;it is not tied to an expansion project.
Engelbourg - It is important to remember this Enforcement Order is also related to Improper
nourishment material.A discussion with Select Board regarding a long,term planning process is warranted
reviewing the ARCADIS report is also warranted; however, neither is related to the :21-uan0n —
question now is whether or not the permit holder is di compliance:they are not.
Erisman-Regarding other options put before us,including the option received after our lone vote. asr.ed
thoughts on those options in order to get the project back into compliance.
Williams-It is incumbent upon us to consider those options as well as the letter.
Carlson - Clarified the process, the Commission found SBPI- 15 in deficit for the current amount o:
Playing catch up would be through issuing a specific order. Any adjustment to the nourishment volume
amended order.
Erisman-Looking at the proposal to catch up on sand,she's concerned about the discrepancy bett.veer.
proposal and other proposals; SBPI-t's proposal is half the sand. Their order of conditions doesn't reference a
"sand year"but a calendar year. She would look at the higher volumes proposed.
Golding- The amounts referred, bv SBPF's representative Mr. Berman 'sic is 26.636 cubic yards cy
Ruthven suggested 46,537cy;and Dr.Kriebel referenced 4-,450cy. There is a significant discrepancy.
Engelbourg-Mr.Dunk is SBPF's representative,not Mr.Berman. Reviewed what would have to be done
him to accept an alternate plan. Condition 32 requires 22,000cv of sand per year,not "sand year
.-
Golding-Mr. Berman was working with the definition of a sand year, which contains 22 months. 22 month.
is over 38,000cv of sand.
Phillips - ConCom has a stated process that has worked for decades. \\hat's being proposed here does n,,•follow that stated process,SBPI has never filed for a modification or amendment to their Order of Conti:7;ot-,s;
they have not followed the rules and conditions laid out. To her,it makes no sense to upend a useful re5-ulat6r:
scheme because of one applicant's decision that the Order of Conditions need not be attended Tc.unprecedented in terms of putting together a new rule book for this one applicant.
Erisman - Mr. Carlson sent out a draft letter that asks to meet with the Select Board: asked if there
discussion on that. Issuing the letter would require a vote to reconsider the lune vote.
Williams-She's in support of that letter.
Erisman-This letter should have a deadline for the meeting to minimize further delays.
Engelbourg- Communication is warranted but he doesn't understand the purpc se of this letter;if it is tus7
request a meeting.
Carlson -The letter's intent is to get the structure on the ground and permitted by SE-1 .-242S back on track
and in compliance or settle on removal.
Engelbourg-By sending this letter and requesting the meeting,we would delay further why we're here today.
Asked if the meeting with the Select Board would address the Wetland Protection ct or would it inchide
discussion of concerns and purview of the Select Board.
Erisman - V'e would look at the project as a whole and all aspects of non-compliance and the Select Board
licensing agreement. That would delay us issuing the Enforcement Order at this time.
Carlson-The letter talks about reviewing the licensing agreement and coming together to en ire there are :lc
other outstanding issues and requirements covered by the licensing agreement or the permit.
Engelbourg - If the discussion focused on non-compliance, he would support this. He doesn't ',VS,ir:7
discussion to devolve into aspects which are Select Board jurisdiction.
Phillips - She shares some of Mr. Engelbourg's concerns. She wants outside independent counsel to look 7
the letter first. She doesn't want ConCom to end up in a position where ARC:ADIS becomes relevant irJ
mess and what we specifically deal with. It muddies the waters regarding the extension request currently
Superior Court.SBPI' and M .Posner have made it clear that they align this with the expansion protect and
if they don't get what they want, they will abandon the existing array. In b-er opinion. that tactic abhorrent
and makes it difficult to consider other aspects beyond what's before us. The down is the property owner; sl:e
feels the Select Board hasn't worked with ConCom on this; cited as an example the Select Board execu
session when they voted to ask ConCom to reconsider and voted that paying our leua] fees is not appropriate
Williams-If the Enforcement Order goes forward,it will result in further litigation. It took the Town a w'mle
to buy into the process, and ConCom shouldn't turn them down. ConCom doesn't have the right Tr, dictate
what will and won't lie discussed in the meeting; she's not willing to support any restrictions on the meetir-i .
Enforcing the local and State laws regarding wetlands is based upon whether or not it is detrimental to
natural resources; she fails to understand how leaving the array in place is detrimental to the resource area.
Erisman-\N'e have received data regarding damage to down-drift beaches due to lack of compliance %ViTh 'Pc
mitigation sand volume. The Massachusetts Department of Environmental Protection -D1-_,P had iht same
sand volumes in their superseding order; sand volumes can't be left out of compliance.
Beale-The Select Board is worried about Baxter Road. We'd be remiss if we didn't have a joint meeting. 'X'e
should do it Promntle
ConCom Minutes for September 2,2021,adopted Sept. 9
Golding—'I he apparent ignorance of some members of the Select Board astonishes him;if they had read the
2/4/2020 Dull appeal,they wouldn't have made some of the comments they made.Now they want us to walk
back on our wetland regulations.Valid points have been made today;however,he feels the Select Board is not
supporting ConCom as a Town commission. He's willing to speak to them after the Enforcement Order is
issued.
eak
toEtisman
hem at—She'd like to have an s open
she wasn't allowed;also,our request for independent counsel was cussion with the Select Board.She had made herself available to
to them then executive sessions,
It is possible to issue out the Enforcement Order with the potential of rescinding it based upon a joint meeting
with the Select Board.
Carlson—That is an option;his concern would be SBPF starting the appeal process.
Engelbourg—He'd be opposed to the aptr entalk;f ssuing she feelseCOrder with the onCom needs optionown counsel. She°dlmeet with
Phillips —This gets more complicated
the Select Board once ConCom engaged its independent counsel.
Williams—We all work for the Town and ht �nsidering our jurisdictiove a common oal; shen and we oesn't aren't considering th>rshthatus as aversaries and l
toward each other.The Select Board is
where a joint meeting would help.
Erisman—We've been yen- clear about heeolsr support the Selectf the Boardtis not recognte Act and hzing the;�vork are
dune 1b�within
To�n
pounds to do what we're doing.
regulatory board and they have left their"lane"in an effort to get us to rescind our vote.
Engelbourg—The processes are independa�,we both have our as now. yJe need to wao ksour pro to ocedSseshndependently�are times wI ong�
becomes difficult to maintain both sides,
term planning is important but that's not our ob to ensureect projoectaare complain can do that t independent
the OrderOrder of Co's our nditions.
uon��
to listen to what they have to say;it's also ourj
Erisman—Opened discussion to the public.
ns and
Cohen—Thinks ConCom is going down a path a test ey periodafter whicn't. h we would returergency n with improvements)While
SBP there isr h aggregate;thisi project hadp
he
SBPF is clear that some sand is deficient;`°e came out publicly with he understood the globalh ssues�FeelsoConCom made atcate dec�i�,n
was less inclined to fix the situation until
er would be
without a public hearing on the plans to bring thethe projectn is P°mtimpve aPProach rather than fixingce;thinks a compliance rahe problem.
more appropriate. It seems the Commaems to
massive erosion
Removing the tubes wouldn't solve the problem ebs.t in fact crate Contendst hatgtrhee Enater
elment Order include a issued without
and damage to the Bluff from the removalproe
allowing the applicant a public hearing inw
ich to present a always had enough sand to rye o cer the tubes.rTheac°mr>u"a'n shouldtime the
geotubes were not covered;the template
to
eater
reconsider if there is any actual harm he�ter submitted e and if termination
June calculated tghre deficit`atothe end of lunental e problems.
we
Murphy A ac clarification,the le
are now approaching a 3-year deficit. SBPF holds oth�rp��o'theeTo vneipthat happens jomtted rneeungat tf they
"�ould
don't get what they want,they will turn the prole
one this in ay ando
be warranted. However, all that is politics;d has alreadyataken ConCom had publict we'rehearinacre for today is to
memorialize votes and actions the boar
June 2021.The longer this goes on,the more karm aPP��sto emove it expires.The pert in 30 days;if ConCom wouldn't
to renew that,the question is why they wouldn't
Bailey — In conjunction with development of the `Sconset area plan, the SCA sent out a questionnaire to
`Sconset residents;one question was if the
for the result should
_revent t erosionIS to
he e bluff;
takinge action ong majority
voted yes.
It is SCA's view that we waitoveMcQuade—I love my location but have already
aaheore I amhKe 1 peo`ple house;
are affected b� any dea ion painful
made
and the SBPF geotubes have allowed me to remain
k, that is
today. Taking out the geotubes will hurt many
ade deost�rucnon of som thing that ha le and the Island. If there's ovorl;cd for willingness
�5(�ear ; efforts
shoutbeima eRemoval would be a man m
should be made to come to a good conclusion.Urged the ConCom to give whatever time is necessary because
destruction of the geotubes is not a solution.
Erisman—We realize this is impacting real people but we're in a difficult situation.Not everyone will behappy
with the Commission's decision or direction.
Engelbourg—Asked about the permit holder;
if the
eap itt ant aand
property owner are different parties and the
Order of Conditions is issued,both parties pP`
Carlson—\X-'hen someone applies for an
to thOelathey plicant,thguired e property geo�;ner�andethe Registry signature;f Deeds where
it the e Order of Conditions is provided P
it is put against the title for future owners. In this case there are a�number of property owners, not just the
Town.
Golden—He is on the western side of eroa;he'sse if it wouldth "saga"Th of the eotube perrrut gave themlueReit was
'
s in
first approved, it seemed a good tehst project e which to evaluate and decide if it should be extended.Thaof ConCom�s meander includesrprr tecnonion to cofa the
and it has worked in that regard. The leading sentence
ConCom Minutes for Sc ptember 2 2,T21. adopted Set-. ;
•
resources of the Town.Rationality would suggest the Select Board is looking for a hr,i,,t:c
levels,not just for Baxter Road. --
Moldenhauer—I lopefully we can al] agree to work together to presen-e the Island she hope,
find a way for the project to be brought into compliance.Storms are increasing in frequer_c-, and:n:e _ :
is frightening for Islanders.A solution is already in place here in `Sconset: the tubes have protected i, __ _
from being shut down for the past 8 years. Removal creates problems for which there are no ,hits,,
Turcotte —As a Commission, ConCom has a narrow purview_ the Commission has the information _
from experts supporting that this project is failing. ConCom needs to issue the Enforcement Oriel-,
else will create chaos. Pointed out the SBPI=didn't submit their compliance plan until after the ;:tic
Walking back on that Vote will create problems for even-Town regulator,-board.
Williams—She takes exception to the use of the word failing: there is no evidence the project has fa. ed.
Erisman — It has met failure criteria as outlined in their permit. SBPI- is out of compliance and ;-net :a:_ _-
criteria.
Engelbourg— It has been recorded that the project has met failure criteria. Taking exception to 're c,:
"failure"is a grammatical argument.
Carlson—Many\Vawro asked for a copy of a document,which he emailed to her.
'Discussion on GIs. Williams motion to issue the letter requesting a joint meeting with the Select Board:
Engelbourg—We need to meet with the Select Board either way. The motion needs to clarif•, if the iette-: _-
prior to or after determination of issuing.
Williams — She wants the letter to go to Select Board either way. Asked if it would be appropriate .c
motion to draft an order demanding sand compliance.
Carlson—We could draft that order.
'Discussion on Ms.Williams motion to draft an order requiring compliance 'motion withdrawn :
Phillips—The number of motions is getting confusing;we should meet with the Select Board
Engelbourg—It's his understand that in order to do anything related to the original removal order.i' -,.;- =
to be a vote to amend that order after the vote on the removal order is taken.
Carlson—If you are going to change direction,you have to change the original vote.
Golding—The 1,l order of business is to address why this meeting is taking place—to vote for or again:.rer<c, -__
We would have to rescind the prior vote before we amend the Order of Conditions. Under Robert Rules of tJrT_r.
it states a reconsideration can only be made on the day the vote was
motion to rescind,repeal or annul a vote can be made by any member�akcn or the immediate], succeedir.= _ : a
Engelbourg—We still need to vote on issuing the removal order.
Beale—Suggested adding to the letter that a vote on removal will take place at our next meeting.
Erisman—The next regular meeting is September 9th. It's a little tight to do that with the holida•, on ',Ionda--
Phillips—I ler motion would be to send a letter stating that a joint meeting is a good idea but before doing
request Outside counsel due to the far-reaching implications.
Carlson—_Added a sentence to the letter stating a joint meeting with the Select Board be held pnor to TTerte_m::.er
17t1' to allow a vote on September 23r'.
Golding—Doesn't see how meeting with the Select Board will change our pun-iew.:le doesn't suppor
but Supports opening a dialogue with the property owner after voting on the Enforcement Order lie
want to vote on a letter until after a vote on the Enforcement Order.
Motion ���,esn .
Motion to send the letter to the Select Board to meet with them by September 1 to allot,. -
September 23r�i. (made by:Williams) (Not seconded'
Roll call votea final ,-e c�_
N/.\ ,
Motion Motion to Issue the Enforcement Order as amended. (made by:Beale, 'seconded
Roll call vote Carried 5-1//Beale,Ingelbourg,Erisman, Golding, Phillips-aye;
Motion Motion to respectfully request the Select Board provide ConCom N8i h outside counsel in advance
a joint meeting,to be held once ConCom has had an opportunity to meet with higher counsel on this
issue. (made by: Phillips) (seconded) of
Roll call vote Carried 42//Beale,Erisman, Golding, Phillips-aye;Williams and Engelbourg-nay
'Further discussion about meeting with the Select Board regarding SBPF�CL-4S_2-12k
and whether or no-
ConCom should have independent counsel prior to and during that meeting.
1I. ADJOURNMENT
Motion Motion to Adjourn at 6:33 m.
Roll call vote � P (made by: Williams) (seconded
Carried unanimously//Beale,Engelbourg,Erisman, Golding, Phillips and Williams
Submitted by:
Terry I.. Norton