HomeMy WebLinkAboutNovember 10, 2022 ConCom Minutes for November 10,2022,adopted Dec. 1
CONSERVATION COMMISSION., t
PUBLIC MEETING
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Nantucket,Massachusetts 02554
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Thursday,November 10,2022 5:00 p.m. Ati o•
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This meeting was held via remote participation using ZOOM and YouTube.
Commissioners: Ashley Erisman (Chair), Ian Golding (Vice Chair), Seth Engelbourg,Mark Beale,Linda Williams,
Mike Misurelli,and Joe Plandowski
Called to order at 5:00 p.m.by Ms.Erisman
Staff in attendance: Jeff Carlson, Natural Resources Director;Will Dell'Erba, Conservation Agent.Terry Norton,Town
Minutes Taker .
Attending Members: Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,and Plandowski
Late Arrivals: Williams ..
*Matter has not been heard
I. PUBLIC MEETING
A. Announcements
B. Public Comment:
1. Burton Balkind—He went to the Massachusetts Association of Conservation Commissions meeting in Devens MA;
if anyone wants information about it,he can provide them his notes. .
As a member of Nantucket Coastal Conservancy, we submitted photos of work done at 79 Baxter Road, a coir
installation.Asked if that work is covered by a permit.
Carlson—Those installations were permitted some time ago.We should have more information soon.
II. PUBLIC HEARING
A. Notice of Intent
1. *Nantucket Islands Land Bank-32 Western Avenue(87-81)SE48-3582
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Rachel Freeman,Nantucket Islands Land Bank
Public Pamela Bass,34 Western Avenue
Discussion(5:05) .Freeman-This is for improvements to this property;much of the property falls.within 100' of the coastal'
dune;we also want to remove dead Japanese pines,honeysuckle, and love grass and replant the with native
plants.We plan to install a single handicapped-accessible parking space and boardwalk to a deck with benches.
Engelbourg-Regarding the accessible sitting areas,asked if they are replacing a similar structure or new.
Freeman—The benches are new; there are 2 existing benches, and this will bring that up to 4. There is an
existing path.
Engelbourg—It seems like a patio to him.
Misurelli—Asked if the love grass will come out in the fall or spring and how it will be replaced..
Freeman—We will probably seed with a conservation or fescue mix;the love grass will come out in the winter
and we can check for possible regrowth in the spring.
Erisman -Asked if there will be anywhere to park and lock a bike;there(aren't a lot of places to leave a bike
at our beach access points.
Freeman— She will keep it in mind. Regarding the "inlaid" boardwalk, it's similar to what was installed at
"Settler's Landing"in Madaket;there is an example of it at the Youth Hostel.
Beale—Asked if they considered another surface rather than the deck.
Freeman—We didn't for this site;this material is pervious.We've have installed stone dust in some places,but
that requires a lot of maintenance,and we haven't had success with stone dust.
Beale—He would think a non-wood platform would be more suitable for that area.
Freeman—Explained that the molded grid they are using in Madaket helps contain the stone dust.
Golding—Asked what she means by high maintenance.
Freeman We have washout during rain events with stone dust;we see a lot of erosion and weeds.We haven't.
been using the molded grid long enough to ascertain the level of maintenance required.
Engelbourg—He thinks in this case the wood at-grade walk makes,more sense. You don't want to put an
unstable surface on top of another unstable surface.His only technical concern is if there is significant erosion
causing the structure to protrude.
Bass—She wrote to ConCom numerous times.You can see that the area for the proposed benches is within
the no-disturb area. We weren't allowed to build into that zone. There's another neighbor who maintains a
bench at the Land Bank site in his mother's name;she feels he should be consulted with.
Freeman—We have a stringent bench policy overseen by Marion Wilson.
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ConCom Minutes for November 10,2022,adopted Dec. 1
Bass—To her that is a natural plateau;but she wonders why they are wedging in a wheelchair parking space
and hardscaping when there is plenty of space at the public beach.Regarding the path,she agrees the wood will
work better.Asked for screening between this and her property;she is willing to donate a green"wall".
Erisman — Surfside Beach is Town of Nantucket property and this is Land Bank property; both have
accessibility requirements.
Williams—Any public entity is required to provide accessibility whenever a change to access is made.
Staff recomm. Have everything needed to close.
Motion Motion to Close. (made by:Williams) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
2. 42/44 ARB Way,LLC-9 Arbour Way(29-137) SE48-3589
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative David M.Haines,Haines Hydrogeologic Consulting
Public None •
Discussion(5:27) Haines—This is to remove a portion of an existing house and rebuild and plant almost 4,000 square feet(sf)
as a vegetated buffer.We corrected the planting list to all indigenous species within the 25'setback.The existing
structure is up to within 12'to the bordering vegetated wetlands;removing that increases the setback to 31'and
reduces the total to 312sf within the 50'buffer.Also, the foundation will be within 2' of the water table.We
converted part of the proposed deck to a dry-laid stone patio within the 50'buffer.The new foundation will
have flood vents.We eliminated the deer fence.
Beale—We had mentioned moving the structure into the green space and completely out of the 25' and 50'
buffer.
Haines—He discussed that with the owner but that green space is on a separate lot.
Staff recomm. Have everything needed to close.
Motion Motion to Close. (made by:Williams) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
3. Hallett Lane,LLC-12 Almanack Pond Road(25-11)SE48-3587
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Brian Madden,LEC Environmental
Public None
Discussion(5:33) Madden—This involves site improvements. We were waiting for Massachusetts Natural Heritage (MNH);
received their determination of no adverse impact and no take.This does not require waivers.
Staff recomm. Have everything needed to close.
Motion Motion to Close. (made by: Golding) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
4. 5 QPR,LLC-5 Quaise Pastures Road(26-21)SE48-3593
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Mark Rits,Site Design Engineering
Public None
Discussion(5:35) Rits—We were waiting for a Department of Environmental Protection (DEP) number; this is for a request
move a shed and pool equipment outside the 50'buffer.
Staff recomm. Have everything needed to close.
Motion Motion to Close. (made by:Beale) (seconded)
Roll-call vote Carried 6-0//Beale,Engelbourg,Erisman,Golding,Plandowski,and Williams-aye;Miserelli recused.
5. Steven L.Cohen,Trustee-6&11 East Hallowell Lane(30-98&17)SE48-3594
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Mark Rits,Site Design Engineering
Public None
Discussion(5:38) Rits—This is a residential redevelopment project;we were waiting for a DEP number.Several commissioners
asked to reconfigure the siting so the house would be outside the 50'buffer.We're asking to decrease the deck
by about 90sf,but it remains within the 50'buffer.
Engelbourg—The portion of the deck within the buffer,asked if it could be cantilevered.
Rits—It's ground level and too large.Reducing the size is an improvement.
Golding—It's a new building and new deck and it seems this is happening all the time. He wonders where
pushing the envelope will end.
Engelbourg—He tends to agree;this is a half measure.If the deck is close to grade,make it at grade so it isn't
a structure and better protects the resources.
Beale—He is concerned with making it a patio.
Rits—We have the existing deck which will match up with the proposed house, and we would be happy to
leave it in place.
Golding—The deck is part of the house and no longer subject to protection.
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ConCom Minutes for November 10,2022,adopted Dec.1
'Erisman—She agrees that as a new structure it should be outside the 50'buffer.
Williams—It seems we're divided; asked if Mr. Carlson would do a positive and negative order.Asked if it
should be closed or continued to let them do more work.
Erisman-They could end up with an Order of Conditions that doesn't allow a structure within the 50'buffer.
It's up to the client whether or not we close this. . . .
Carlson—Public comment-for Ken Weis,he asks about the purpose of the erosion control/silt control fence
and if the hedge will be cut down. •• . .
Rits—Doesn't think the hedge will be removed;the silt fence will go up against it;.explained the reason for the
silt fence.Asked for a continuance. •
(Lost Ms.Erisman temporarily due to technical concerns)
Staff recomm. Have everything needed to close.
Motion Continued to Dec 1st.
Roll-call vote N/A
6. *34B Walsh Street Nominee Trust-34B Walsh Street(29-104)SE48-3586
Sitting. .Erisman,Golding,Engelbourg,Beale,Misurelli,.Plandowski.
Documentation. Site and topographical plans,photos,requisite departmental reports and correspondence.
Representative Brian Madden,LEC Environmental
Steven Cohen,Cohen&Cohen Law P.0
Public . Eileen&Maureen Murphy,40 Walsh Street
Discussion,(5:50) Madden—This is to elevate and reconstruct the foundation to an existing dwelling within land subject to
coastal storm flowage, elevation 7, and within 100' buffer to a isolated vegetated wetlands. Proposing a
cantilevered deck over the 50'buffer;no waivers are required.Explained treatment of roof runoff.Asking for
a waiver to separation from groundwater;will be within 2'.
Engelbourg—He had a chance to view this site; he's concerned the wetland delineation might need to be
revisited.The 1st few feet of the lawn have wetland shrubs;the line might need to be moved northward a few
feet.That would require adjustment to site activities.Asked staff to do an on-site visit to clear this up.
Madden—We met out there last week and moved a couple of flags up gradient in coordination with ConCom
staff.There is a high-brush blueberry that's been there since 2010.
Engelbourg—The planting area appears to have a lot of recently introduced,new plants that haven't been
established since the last NOI. Wants to ensure good monitoring and conditions that everything remains in
compliance.
Madden-Subsequent to 2010,there has been a lot of deer browsing;the planting needed to be reestablished
in the area. We will 'be installing mulch to stabilize the ground cover. We welcome any conditions that
memorialize maintaining the groundcover in the future.
Golding—Asked if the addition and cantilevered deck will interfere with rainwater refreshing the wetlands.
Madden—He doesn't believe so.We are planning to update the stormwater management.
E.Murphy—We are opposed to this project and any waivers being granted.Reviewed the history of this lot.
Feels the prior owner deliberately converted a planting area to lawn.We disagree with the buffer zones.
M.Murphy—We take issue with the delineation of the 50'buffer.Cited other unpermitted work within the 50'
buffer.This is a substantial expansion of an existing home.We also strongly oppose to granting waivers.
Erisman—We regularly see buffer boundaries moving and have permitted cantilevered decks over the 50'
buffers. '
'Beale—He missed the site visit;he didn't realize this would be controversial and would like this'continued to
do a site visit with Mr.Golding. •
Golding—He agrees with Mr.Beale.
Erisman—She agrees;she couldn't attend the site visit as well.
Miserelli_Regarding the planting area,we can require monitoring for that. •
Erisman—For ono-going conditions like this,we should mark it in the Order of Conditions and require yearly
survival.reports.
Cohen—His client is amenable with any monitoring requirements. '
Madden—Compared to the 2010 plan;the wetland boundary is within a foot.Asked for a continuance.
Staff recomm. During our on-site inspection,we specifically looked at the soils adjacent to the winterberry.We were able to
• find hydro soils beneath the 18,7 threshold level.There is some level of fill that went on.In the planting area,
we documented some new plants.The 2010 certificate was closed out in 2012;in about 2013-2014,the planting
area was turned back into lawn.That has been somewhat rectified.
Motion Continued to December 1st.
Roll-call vote N/A
7. *36B Lily Street,LLC-36B Lily Street(42.4.3-94) SE48-3591 (Withdrawal) '
Motion Motion to Accept the withdrawal. (made by:Beale) (seconded)
Roll-call vote Carried 6-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski-aye;Williams recused
8. *Easton Street,LLC-55 Easton Street(42.4.1-86)SE48-3590 (Cont.12/1)
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ConCom Minutes for November 10,2022,adopted Dec. 1 _
9. *Nantucket Cottage Hospital-60 Meadow View Drive(56-167)SE48-3592
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports,and correspondence.
Representative Paul Santos,Nantucket Surveyors
Public None
Discussion(6:15) Santos—This is for proposed construction of a secondary dwelling and landscaping within the buffer to an
off-site BVW.The property is served by Town water and sewer.We do not require any waivers.
Engelbourg—His only concern is,in the accompanying photos,it appears the brush-cut area was done recently
and is now in a denuded state.Much of that area is within the 100'buffer and the work done without a permit.
Asked that area be restored to the same value it had previously.
Santos—There is an abutter fence that encroaches onto this property;based on that,part of that area is where
this dwelling will be located.
Engelbourg—Matching up the plans and photos, it seems the northwest part of the lot is within the 100'
buffer and should be restored.
Beale—It would help to know exactly where the cutting took place.
Santos —His fence line is shown within the 100' buffer; the application before you is requesting to clear as
much as necessary to develop what we're proposing.The NOI is asking to install a board fence away from what
has been cleared.
Erisman—For her it's far enough from the wetlands not to require replanting.
Staff recomm. Have everything needed to close.
Motion Motion to Close. (made by:Beale) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
10.*Kaschuluk-27 North Liberty Street(41-453)SE48-
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports,and correspondence.
Representative Art Gasbarro,Nantucket Engineering&Survey
Public None
Discussion(6:23) Gasbarro—This is for side-by-side properties where the resource area boundary was delineated 2 years ago.
We have to continue for DEP number.It came to his attention he shows a proposed plan outside the 50'buffer
but is part of the application.This is to renovate an existing structure,reduce an existing deck within the 50'
buffer. The existing driveway would be reconfigured. There's lawn adjacent to the resource area that will be
restored up to the boundary with wetland species.There are invasive species—fox grape,knot weed,sycamore
maples—so will require a blanket approval to remove those using best practices.
Golding—Thanked Mr. Gasbarro for giving us the architectural drawings and such a complete plan.
Gasbarro—Asked for a continuance.
Staff recomm. None
Motion Continued to December 1st.
Roll-call vote N/A
11.*Nanticut Realty Trust-29 North Liberty Street(41-486)SE48-
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports,and correspondence.
Representative Art Gasbarro,Nantucket Engineering&Survey
Public None
Discussion(6:29) Gasbarro—This only involves removal of invasive trees,Sycamore maples and 2 cherry trees.
Miserulli—He assumed they verified if the tree along the road is a Town tree.
Gasbarro—He checked and the Town supports the removal of that tree.
Engelbourg—Asked which trees are which on the plan.If any of those are native black cherries,we will need
accurate depiction of which trees are what
Gasbarro—He will update the plans with the species.
Golding—Asked if any new trees will be planted.
Gasbarro—He will follow up on that as well.
Staff recomm. Confirmed that they can remove those trees.
Motion Continued.to December 1st.
Roll-call vote N/A
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ConCom Minutes for November 10,2022,adopted Dec. 1
B. Amended Order of Conditions
1. Stark Point,LLC-16 Easton Street(42.1.4-11)SE48-3566
Sitting Erisman,Golding,Engelbourg,Beale,Williams,.Misurelli,Plandowski
Documentation Site and topographical plans,photos,requisite departmental reports,and correspondence.
Representative. Paul Santos,Nantucket Surveyors
Public RJ:Turcotte,Nantucket Land Council
Discussion(6:32) Santos—The resource area is land subject to coastal storm flowage and coastal bank.This amended order is to
discuss the merits of a 274sf waterproof, sub-surface vault.We added 25 flood vents.The original ConCom
Finding was that the vault diminished the ability of the lot to absorb flood water;he feels that has been mitigated
with the 25 flood vents:We will create a shallow sub-surface recharge area within the proposed shell driveway
equivalent to the area of-the vault.All structures-are tied to a subsurface recharge area.
Engelbourg—The-issue goes down to the ability to absorb flood water.The vents are great and allow water
to pass through and be infiltrated elsewhere.There might be a way to make up for that loss of absorption;you
can't have a waterproof area in the ground and still allow the ground to absorb water..
Santos—It's not so much a'vault as a concrete pad.
Erisman—Appreciates efforts to have the water absorbed elsewhere.
Beale—He recalls the discussion.He'd feel more secure if some of the more science-minded members were
comfortable with the subsurface recharge.
Turcotte—Asked for the volume in cubic liters for this vault and how that would be replicated.
Santos—We have a little direction;he's comfortable with continuing to the next meeting.
Engelbourg—There will still be some area beneath grade and just knowing what that area of the vault-so we
can deal with a compensatory storage area on site. -
Santos—asked for a continuance.
Staff recomm. None
Motion Continued to December 1st.
Roll-call vote N/A
III. PUBLIC MEETING
C. Minor Modifications
1. None ..
D. Requests for Determination of Applicability
1. None
E. Certificates of Compliance
1. Nantucket Islands Land Bank-65&67 Easton Street(42.4.1-115&115.1) SE48-3409 -
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Representative None
Staff recomm. This was for installation of a fence and vegetation;work was completed in compliance.No on-going conditions.
Discussion(6:45) • None
Motion Motion to Issue. (made by:.Golding) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
2. 56 Monomoy Nominee Trust-56 Monomoy Road(43-41)SE48-3362
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski -
Representative Paul Santos,Nantucket Surveyors •
Staff recomm. This was originally for a spa then amended to include vegetation and invasive species work.Work was done in
compliance;recommend issue with on-going Conditions having to do with the operation and maintenance of
the spa. ..
Discussion(6:46) None
Motion Motion to Issue with on-going Conditions 19,20,21,&23;(made by:Engelbourg) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
F: Orders of Condition -
1. Sunset House,LLC-15 Hallowell Lane(30-10)SE48-3570
Sitting Erisman,Golding,Engelbourg,Beale;Williams,Misurelli,Plandowski
Documentation Draft Order of Conditions
Staff Read the local regulations regarding grandfathered use..Reviewed changes made to Findings for the negative
order based upon discussion
Discussion(6:49) Engelbourg—Asked if Town Counsel had an opportunity to weigh in.on the discussion of this being pre-
existing and if any Performance Standards apply or not.
Carlson—He talked with DEP about if this must meet Performance Standards as best possible and if the pre-
existing use is meeting the Performance Standards.
Golding The wood bulkhead seems to be in good condition; there's a lot of end scour on the west and
unpermitted riprap.On January 29,2013,a Historic District(HDC)application moved the house back;in May
2013,they added 246sf;that's more than we allow for statutory protection.In the face of sea-level rise,he sees
no reason to approve a steel bulkhead when the timber will do.He's also concerned that more environmentally
friendly approaches haven't been put forward.He would ask for a roll call on a vote for denial.
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ConCom Minutes for November 10,2022,adopted Dec. 1
Engelbourg—He also supports a denial. Given comments in relation to DEP and the existence of multiple
Performance Standards in our regulations which require applicants to consider environmentally better erosion
solutions,there is enough to show the project doesn't meet the Performance Standards and can't be conditioned
to do so.The burden of proof is upon the applicant,and they have not satisfactorily done that.
Williams—She doesn't agree with a denial.She supports the applicant's position of this being grandfathered.
Erisman—She had been on the side of the approval before Mr. Carlson's comment about the DEP regarding
presenting alternatives.She thinks Coir would work here.
Carlson—Part of the issue is when looking at the definition of grandfathering work,you have to look at the
case that they are modifying the material but not the footprint.
Engelbourg—He's sensitive to the reasons for using steel;however,it doesn't meet the qualification for being
a repair.In his mind it's a wholesale replacement and modification of use.
R.J.Turcotte,Nantucket Land Council—If it's still functioning,he doesn't see a reason to disturb the resource
area.
Erisman—When she looks at the collective materials,she sees that as a greater impact.
Engelbourg—There's also the burden of proof of the applicant to show no further impact;that wasn't done.
Reviewed some of the ecologically friendly alternatives; other properties have had no trouble meeting the
restrictions of the site.
Golding—Assuming the applicant refuses to ameliorate conditions,in time they will be sticking out into the
intertidal zone.The house is not entitled to statutory protection.We're entitled to look at both the short-term
and long-term view.
Motion Motion to Issue the negative order as amended. (made by:Engelbourg) (seconded)
Roll-call vote Carried 5-2//Beale,Engelbourg,Erisman,Golding,and Plandowski-aye;Misurelli,and Williams opposed
2. Nantucket Islands Land Bank—32 Western Avenue(87-81) SE48-3582
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Draft Order of Conditions
Staff Waivers are required. Could have Condition 21 stating the deck won't be seaward of the abutter's patio and
maintain visual screening between the two.
Discussion(7:14) Beale—We had mentioned the neighbor's willingness to plant a barrier;asked if that is appropriate.
Erisman.—We could say that if they don't come to an agreement,a final planting plan is required.Ms.Freeman
said they would be willing to move the wood patio back in line with the neighbor's patio.
Engelbourg — Condition 19, based upon discussion, we talked about removing and properly disposing of
invasive species.The long-term benefit waiver as listed isn't the one we should use;we should use the waiver
for invasive removal.
Motion Motion to Approve as amended. (made by:Beale) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
3. 42/44 ARB Way,LLC—9 Arbour Way(29-137)SE48-3589
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Draft Order of Conditions
Staff Waivers are required.Have general conditions for annual reports on survival of plants.
Discussion(7:20) Erisman—We should specify all native plants with no cultivars and have our lighting condition.
Engelbourg—Make the same change to Condition 19 as previously stated.
Motion Motion to Issue as amended. (made by:Misurelli) (seconded)
Roll-call vote Carried 6-1//Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye;Beale opposed
4. Hallett Lane,LLC—12 Almanack Pond Road(25-11)SE48-3587
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Draft Order of Conditions
Staff No waivers required. Conditions 19 needs to be amended and he will add exterior lighting and have the pool
conditions.
Discussion(7:23) Engelbourg—You can't direct light downward and away from land subject to flooding;should just be directed
downward and away from the BVW.
Motion Motion to Issue as amended. (made by:Williams) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
5. 5 QPR,LLC—5 Quaise Pastures Road(26-21)SE48-3593
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Plandowski
Documentation Draft Order of Conditions
Staff Need to fix Condition 19.Added pool will not be discharged into resource area.
Discussion(7:25) None
Motion Motion to Issue as amended. (made by:Williams) (seconded)
Roll-call vote Carried 6-0//Beale,Engelbourg,Erisman,Golding,Plandowski,and Williams-aye;Misurelli recused
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ConCom Minutes for November 10,2022,adopted Dec. 1
6. Nantucket Cottage Hospital-60 Meadow View Drive(56-167) SE48-3592
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation Draft Order of Conditions
Staff No waivers required.Have Conditions 18&19.
Discussion(7:27) None
Motion Motion to Approve as drafted. (made by:Beale) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
G. EXTENSION REQUEST
1. None
H. Other Business
1. Approval of Minutes 10/06/2022:
Motion Motion to Approve as drafted.(made by:Engelbourg) (seconded)
Roll-call vote Carried 4-0//Beale,Engelbourg,Golding,and Misurelli-aye;Erisman,Plandowski,and Williams abstain
Minutes 10/27/2022:
Motion Motion to Approve as drafted. (made by:Plandowski) (seconded)
Roll-call vote Carried 5-0//Engelbourg,Erisman,Golding,Plandowski,and Williams-aye;Beale&Misurelli-abstain
2. Discussion of Select Board Letter dated 11/03/22 responding to the 10/24 letter from the Conservation Commission
regarding the Geotubes and Baxter Road.
Sitting .Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation ' Select Board Letter dated 11/03/22;10/24 letter from the Conservation Commission
Speakers Benjamin Tymann,Tymann,Davis and Duffy LLP
Discussion(7:32) Erisman—There is some confusion in the back and forth;having us discuss this publicly will clear up some
confusion with the Select Board.
Tymann=The commission issued an Enforcement Order on September 2,2021 relating to the existing geotube
array; that was appealed in Superior Court; ConCom received permission for special municipal counsel; there
were hearings in June and July 2022;on September 2,2022,Judge Gilday supported the Enforcement Order.We
received a letter on October 5th followed by a proposal to bring the geotubes into compliance. In those
documents, the commission was requested to reopen the Enforcement Order and now SBPF has asked the
Enforcement Order be modified.As best he knows,these weren't the product of a public process and related to
a court order. Purpose 3 of Chapter 30A Section 21 relates to strategy of litigation and where a public body
reasonably expects to take place in on-going litigation. The Commission was essentially asked not to move
forward with a Court Order. The Commission might have to return to court to seek execution of the Court
Order.
Regarding retention of special municipal counsel,he met the requirement to represent ConCom for the SBPF
appeal. It's his responsibility as counsel-for-record to represent the commission as long as the Superior Court
Order is not fully implemented.
Plandowski—Asked if the door is open for negotiations.
Tymann.—That is a litigation strategy question best discussed in Executive Session.He felt the process questions
should be addressed in an open session.
Plandowski—Wants assurance Mr.Tymann will to represent ConCom.
Tymann — That is matter is fair to discuss in open session. The Town didn't address that question in the
November 3rd letter. He maintains a responsibility and a duty to continue in his role since enforcement hasn't
been carried out.With respect to independent municipal counsel on a future application,that is unresolved.
Erisman — She had 2 issues aside from the Open Meeting Law (OML). First is Mr. Tymann's continued
representation since the Town is a co-applicant with SBPF; keeping him is the logical way to go. She finds it
ridiculous that the Select Board didn't answer that question. Second is the implication that we were pre-judging
an application;she's worried they are getting confused at being future co-applicants and SBPF being holders of
a"defunct"order.They are allowed to submit any NOI they want,but they were requesting an NOI under the
heading of removal.The enforcement stands and they need to work within that.
Plandowski—He was surprised by the article in today's Newspaper;it could have been approached differently.
Erisman—That article adds to the confusion for the public regarding the Select Board not being able to approve
an NOI under any wetland process.
Carlson—To date,we have not received a new NOI for that area.
Misurelli—He watched the Select Board meeting last night. They approved the NOI to go in front of the
ConCom for review.
Engelbourg— On the Select Board response to our letter and the October 2nd meeting where the letter was
discussed for drafting and review,there seems to be a Select Board notion that our letter discourages cooperation
or willingness to work for a positive outcome.We are setting ground rules on an appropriate way to collaborate.
He urges the Town Administration and Select Board to reconsider that.
Beale—He's finding it difficult that when we get a Town NOI,we will need counsel on hand.We will hear it
with an open mind;however,we need to remind them of fact that we feel we need counsel on hand.He would
like Ms.Erisman to send a reminder to Ms. Gibson and Mr.Bridges not to forget that request
Golding—If it's not forthcoming,asked if ConCom should consider an NOI until we have legal counsel.
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ConCom Minutes for November 10,2022,adopted Dec. 1
Erisman—We have to consider an NOI regardless; but that NOI might not extend their removal dates.We
have had counsel for all SBPF hearings to date;we won't be able to use Town Counsel in future considerations
with SBPF.
Misurelli—There are lots of people who thank ConCom for being environmentally conscious,but you can be
too extreme.He hopes we can come up with a solution.
Erisman"—ConCom works very well with applicants and approves a high number of applications.It's sad this
one matter is being used to paint us in a negative light.
Engelbourg— Our record of approval is 99%. We do have a regulatory responsibility that we must enforce.
However, if a permit can't be modified or conditioned to meet our Performance Standards, we have a
responsibility to issue a denial.
Plandowski—His impression from the Select Board meeting and the newspaper article is that on Monday,we
will have an NOI.
Erisman—Back to Mr.Misurelli's point of drafting a reminder letter,she'd be happy to put that into the works.
Motion Motion to have the Chair draft and send the Select Board Chair a letter reminding them of our request
for independent counsel. (made by:Beale) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
3. Discussion of Regulatory Update
Sitting . Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Discussion(7:58) Erisman—We have an in-person meeting scheduled for next Thursday,November 17t'at 5:00 pm.
Misurelli—Asked if that's a continuation of discussion or a public hearing.
Carlson—The hopes is to get it to the point a draft is ready for counsel review.
4. Harbor Plan Advisory Committee Representative
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Discussion(7:59) Carlson—The Harbor Plan is State approved and guides public policy in and around our harbors.The intent
is to update the plan and will be 12-to 16-month commitment. -
Erisman—Mr.Engelbourg is the NP&EDC representative on that committee.He is not an option.
Williams—She was on the committee that drafted the Harbor Plan.She would be interested in being ConCom's
representative on the committee.
Beale—.As a harbor-front property owner,he too is very interested in being on the committee.
Engelbourg—Asked if we have to appoint the representative today:
Carlson—It would be administratively great to have our representative so the 1st meeting can get underway by
late this November.
Motion Motion to Nominate Ms.Williams as the Harbor Plan Advisory Committee Representative. (made by:
Misurelli) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
5. Enforcement Actions/Potential Enforcement Action
a.46 Monomoy Road
Discussion(8:05) Carlson—Should have a report on that next meeting.
6. Reports:
a. CRAC,Golding—Read letter into the record.
b.CPC,Beale
7. Commissioners Comment
a.Erisman—Apologized for all her technical issues.
b.Erisman—We have an Executive Session listed;asked if we want to go into exec sess.
Golding—He'd like the letter go out expeditiously then have an Executive Session if the response isn't satisfactory.
8. Administrator/Staff Reports
a.None
I. Adjournment
Motion Motion to Adjourn at 8:12 p.m. (made by: Golding) (seconded)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams-aye
Submitted by:
Terry L.Norton
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