HomeMy WebLinkAboutDecember 15, 2021 ConCom Minutes for December 15,2021,adopted Dec.22
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Thursday,December 15,2021 2:
Remote Participation Via ZOOM—5:00 p.m.
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; Vincent Murphy, Coastal Resiliency Coordinator; Terry
Norton,Town Minutes Taker
Attending Members: Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,and Plandowski '
Late Arrivals: Williams,5:06 pm.
Agenda adopted by unanimous consent
I. PUBLIC MEETING
A. Announcements
B. Public Comment •
1. R.J.Turcotte,Nantucket Land Council—In August or September we discussed the in-Town stormwater structure
not being up to task and not being properly serviced.That has not been addressed.
Carlson—We'll put it on next week's agenda or the 1st meeting in January.
H. PUBLIC HEARING
A. Notice of Intent
1. Sconset Beach Preservation Fund—41-119 Baxter Road(multiple)SE48-3598
Sitting Erisman,Golding,Engelbourg,Beale,Williams,Misurelli,Plandowski
Documentation NOI supporting documents and plans, correspondence,Arcadis Report, Coastal Resiliency Plan, and Town-
SBPF Memorandum of Agreement.
SBPF Dwight Dunk,Epsilon Associates Inc.
Representatives Gary Ronan,Goulston&Storrs
Merideth Moldenhauer,71 Baxter Road
Town Jennifer Lachmayr,Arcadis
Representatives Matt Fee,Select Board
Public R J.Turcotte,Nantucket Land Council
Dennis Murphy,Hill Law,attorney for the Greenhills
Richard Atherton,48 Squam Road
Discussion Erisman—First and foremost we must discuss the hearing limit and if we can proceed.
Beale — Asked if there has been any action on ConCom's independent counsel. He's concerned about
conflicting legal views and not having counsel.
Erisman—As far as she's aware,the Select Board has not discussed the issue,despite their statement that they
would bring the issue up at last night's meeting. We have some questions that are of a legal nature. and she
would prefer to have representation.
Plandowski—His concern is the same as Mr.Beale's.He'd make a motion to adjourn;he doesn't understand
the legalese and feels it will be very difficult to have a discussion without counsel. Both Town and SBPF are
well lawyered up.
Erisman—We can still have productive discussion about material changes;but agrees we need legal counsel.
With a project of this nature,it's surprising that the Town wouldn't want ConCom to have its own legal counsel;
it would provide two views when looking at the information.
Williams—Said she's quite familiar with the issue of repeat applications between the ZBA and the Planning
Board. She's inclined to go forward on this and wants to hear from Town Counsel; she doesn't agree with
Attorney Dennis Murphy's letter at all. SBPF was never denied, and she is in favor of going forward with a
different scope of the project.
Carlson—He thinks there will be disagreement whether or not the bylaw provision applies here.The secondary
standard indicates that if it does apply,it can be overcome by material changes that allow it to be heard. Some
of those changes will need to be applied.
V.Murphy—He's not here with any legal representation and has no opinion from Town Counsel. He could
seek their opinion.
Erisman — As SBPF has legal counsel at this meeting and the Town is a co-applicant, you do have legal
representation. However, it might be better to have Town Counsel, but ConCom should have its own
independent representation.
Golding—Read a letter from Hill Law dated December 12. No one currently on this commission has a law
degree,and he mirrors Mr.Plandowski's concerns about reviewing this NOI.
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ConCom Minutes for December 15,2021,adopted Dec.22
Erisman—Thinks we'll have a difficult time coming to a conclusion about the rehearing limit this:eveningf
However,we can use the time wisely to have the applicant provide evidence that they have made significant
material changes.
Engelbourg—The hearing limit isn't relevant since it can be overcome by the finding there are sufficient
material changes.We should focus on whether or not there are material changes;if we find there are not,we
can close the hearing.
Williams — Confused about the purpose of this meeting; she understood there would be no hearing on the
merits but only whether or not we want to hear this.
Erisman—SBPF must present the material changes from the permit upon which the enforcement was issued.
We should discuss if they meet the threshold for a rehearing;then we vote on whether we rehear it or not.This
meeting was scheduled with the hope that we would have counsel,which we don't; she wants to discuss the
changes.
Fee—It was not on the Select Board agenda last night;his understanding was that there would be parameters
on ConCom's request for Counsel.Town Counsel could weigh in on this as ConCom asks but Mr.V.Murphy
is concerned about tainted opinions.Town has counsel on behalf of all of us;if we get to a point where we're
at odds,then we can get ConCom independent counsel.We don't need to be adversarial at this point.
Erisman—We sent a letter outlining all our reasons for why we feel we need independent counsel.The Town.
is a joint applicant;from the perspective of the application,SBPF and Town are working together.We are trying
to move forward in a non-adversarial way.
Golding—The Town is a co-applicant so he would like ConCom to have independent counsel;doesn't see how
Town Counsel can advise both sides of the application. We sent a letter outlining what we would consider
including no extension of the current array;that was ignored by the Town.That's why we need separate counsel.
Plandowski—He's read these documents;it's clear SBPF and the Town are"joined at the hip"on this.We can
work together but we are a separate entity from the Town for the purpose of the application.
Carlson — Whether the rehearing limit applies or not, we still have to analyze whether or not the NOI
. application is substantively different to warrant review.Recommends moving on with a discussion whether or
not the application is different enough from the previous application.
Dunk—The plain reading of Section 133 F is that the most recent application was for the NOI submitted in
2018;the most recent action was on the currently installed geotubes.Asked to have Attorney Ronan respond
to Mr.D.Murphy's letter then have Ms.Lachmayr describe the differences.
Plandowski—We should ignore the attorney letters at this time and concentrate on the NOIs.
D.Murphy—This arises only under ConCom's bylaw;whoever drafted Nantucket's wetland bylaw used the
State bylaw as a template.The 1st part of the analysis is the legal applicability of the section.The 2nd is the factual
determination of specific material changes.He highlighted the one on Page 4 of the proposal;it's a continuation
of the existing.You don't have to decide tonight;but watch the clock and be mindful of the 21-day requirement.
His last point is that the person who wrote the local wetlands bylaw made specific comments different from the
state;the local bylaw references a permit,not an application.
Engelbourg—Both factual and legal sides must be acted upon;we can take on the factual side tonight.ConCom
should have independent counsel in the event there is a conflict of interest with the Town. He'd like Staff to
look into possible court cases where a Town was the applicant and shared counsel with their ConCom; he
doesn't feel such cases will be found.None of the speakers retained by the Town will be reporting on behalf of
ConCom. Right now, by definition,we and the Town are on different sides of an application with separate
interests.
Misurelli—Everyone's had plenty to say about legal counsel.We should move forward to the factual aspect.
Ronan—Suggested he and Mr.D.Murphy present the factual information and also provide comments about
the legal aspect so that independent counsel would have the benefit of those comments.
Erisman—Asked the SBPF representatives to make their presentation.
Lachmayr—It's been about 1 year since Arcadis was hired to do the analysis for Baxter Road.We came.away
with a safe alternative that keeps the tubes in place until road relocation is ready to go.The tubes stabilize the
toe of the bluff from higher intensity storms.Both the NOI and Baxter Road relocation were cited in the Arcadis
report.
The material changes include the Memorandum of Agreement(MOU) between Town and SBPF and Town's
understanding,as a result of previous ConCom hearings,that there needs to be Town oversight on the project
with a plan submitted.The Town has secured the monies for the cost of removal.The Town is a co-applicant
because it feels there is a civic benefit in protecting Baxter Road. The worse erosion is at the north end and
threatens utilities as well as the road. Access to the beach has been improved. There are more nature-based
solutions identified in the Coastal Resiliency Plan(CRP).
V.Murphy—The project would be structured in a way to not be as impactful as the current structure.Reach 4
would start as coir with a trigger that would indicate it should go to the next level;Reach 5 is almost all nature
based.
Ronan—It's important to recognize what we are comparing.The context is that you can still hear the application
if there are specific and material changes from the enforcement.The existing geo-tube project is the subject of
the court decision. The project covered by the NOI is 3-times bigger and includes some softer solutions in
addition to geotubes.There is a different in the application as the Town is co-applying with SBPF.The only
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way they aren't different is that the proposed project includes the existing array. The fact the geotubes are
included in this NOI doesn't make it the same.
Erisman—Her point is that the permit acted upon is for the 947'of 5 geotubes,and now SBPF and Town are
•
proposing the same structure within that space.She finds that problematic with the extension exasperating the
concerns ConCom acted upon regarding the 947'.Our ruling and the judges are that the geotubes be removed.
Beale—His question to an attorney for ConCom would be what to do with the enforcement order—ignore it,
rescind it,or enforce it.
Erisman—The enforcement issue will come up on January 12th.This does add to the confusion.If we favorably
approve this NOI,which includes the 947',that approval would make the Enforcement Order moot.
Engelbourg—He doesn't think the question of how the 947'plays in is a merit question. It's non-compliant
and should be removed because it doesn't meet the standards of the Wetland Protection Act.That being said,
it doesn't mean the application can't be heard.There are some substantial changes in material.
Plandowski—Reading through the document, the issue that pops up is that of sand and sand source; the
project won't work without sand.The reason we're in this situation is because of the lack of sand. •
Golding—Regarding Attorney Ronan's comparison of the NOI to a meal,he argues that if people get sick,it's
• still bad a meal.
Misurelli—He sees differences in the application:a co-applicant and 5 different areas with triggers.Asked the
last date the last SBPF application was heard.
Ronan—It was filed January 2018 and was denied June 20,2019.
D.Murphy—Going back to Section 133 F,it says the significant material changes should be in the circumstance
upon which the previous action was based.You're being asked what has changed from the application against
which the Enforcement Order was issued;Mr.Plandowski is correct about the removal order being based upon
the lack of sand.This has the same sand per linear feet;it doesn't talk about pathways,relocation of the road,
and MOU;it says it's a continuation of the pilot project.If they could identify a source for sand,that would be
a significant material change.
Moldenhauer—Arcadis and Mr.V.Murphy outlined 15 differences; she noted 6 that apply to changes from
the existing.There are substantial changes in circumstances.The relationship with the Town as a co-applicant
is a result of the Enforcement Order.Other changes include:collaborative drafting,new Town oversight,checks
&balances,public recreation space,monitoring,analysis from Arcadis,sand calculations and sourcing,nature-
based solutions,and triggers.
R.Atherton—Explained why the issue of rehearing is important. Those are not substantial changes and the
1000'is not changing.
Fee—The Town is involved to support ConCom and address concerns.The intent was always positive and to
include oversight.He thinks that's a substantial change in circumstances.
Turcotte—The Commission is being asked to approve the geotubes at the toe of the bluff.He feels the Reaches
are a foot in the door to expanding the geotube.Arcadis doesn't recommend expansion.Asked when the appeal
of the 2018 NOI was withdrawn.The Land Council letter indicates the Select Board and ConCom need to get
on the same page;the Town has an interest to relocate Baxter Road.
Erisman—The appeal was dropped in September 2021.
Dunk—Mr.Engelbourg made some excellent points in the difference in the applications and moving forward.
Some discussion since then has regarded technical merits. The discussion has gone beyond the material
difference.The current NOI references the Arcadis report and takes it into account;that's a circumstance that
has changed—this is a medium-term action to allow the Town to move forward on a long-term action.
Erisman—Asked commissioners to discuss the changes.If we had Counsel,they would help keep us on track.
She's stuck on the 947 feet and enforcement of that permit; she doesn't see circumstances changing and it
exasperates the current situation.The Town is a co-applicating because it is a property owner for the array.
Williams —The underlying situation doesn't have to be removed or ignored but can remain within the new
application.The material change is that it no longer is a stand-alone structure.
Golding—He agrees with Ms. Erisman. Reading Section 133 F, he doesn't see the circumstances as having
changed.We are being asked to trust an applicant to provide sand that they haven't provided before.
Carlson—If you feel it's significantly different,you need to make that determination and proceed with the
hearing;that determination doesn't impact.ConCom's final decision to approve or deny the application.
Plandowski—Looking at the plan,he doesn't understand the breakpoints between the Reaches.
Williams -Asked if ConCom would continue this discussion to January 12th because we don't have Town
Counsel.
Golding—He wants an opinion from counsel that represents ConCom alone,not Town Counsel
Engelbourg—He believes this Board doesn't need every change to be significant,just one significant material
change;he'd like a legal opinion on that.
Beale—Asked if we would be approving the geotubes as they stand and then they would come back for any
changes up within the Reaches or would we essentially be approving for them to change up to geotubes for the
full length when a trigger activates.
Carlson—Past practice is you can discuss how triggers activate;we can include a provision in the Order of
Conditions that they come back to the commission before they act upon the triggers.
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Beale—The 5 Reaches express a possibility for expansion of geotubes.There was no note in the NOI iydicatirig
they would come back for any changes,but it would be a carte blanche approval.
Carlson—That's why we have the Order of Conditions.
Golding—He reads the Section as material changes in the circumstances;the circumstances haven't changed.
Misurelli—If we elect to go on to hear this,we would have to discuss each section and phase.
Lachmayr—As a civil engineer working with the Town and imminent failure of Baxter Road,her concern is
the impact to the resource areas in the event the road fails.Asked if there's a way to bring the Select Board and •
ConCom together for a technical discussion.
Erisman—If the Select Board wants to meet with us,they can make that request.
Engelbourg—He's 100%in favor of meeting with the Select Board;he has a broad understanding of possible
solutions he'd like to share. However, the process is we hear applications and,base them on merits.We each
have a different idea of what would be ideal in protecting our interests.There are many more alternatives that
aren't considered for this and he feels the alternative analysis is inadequate.
Ronan—The issue isn't whether or not it's a good project,it's just about hearing this NOI. He understands
there are people with strong feelings about geotubes and past management of this project.Please listen to what
we have to say and hear the application.
Plandowski—He wonders how different this discussion would have been if the past.few years could be erased.
Golding—He takes the point about how much has been done on this plan. There has been an awful lot of
work on this from many parties.
Fee—His understanding is when the Select Board asked to meet ConCom,there was no application.He'd be
happy to have a joint meeting,but it shouldn't slow this process up. He'll asked the Select Board if they want
to send a letter about having that conversation.
Erisman—What's slowing us down is the lack of independent counsel.
Beale—A sit down with the Select Board would be very hopeful.
Engelbourg—We're at the point where no more substantive information will be entered into the record.We
should ask the applicant if they want to continue the hearing.
Williams—The Select Board has made an application to us;therefore,we would have to meet with them within
our regular hearing process.
Erisman—She would want counsel's.decision on that but tends to agree.
Carlson—You can post a meeting for discussion on the application with the Select Board and have a broader
discussion.He knows our staff and Town staff can assemble a topic list to be circulated.Asked if everyone is
okay with Staff looking for a date for a joint meeting with the Select Board.
Erisman—She's wondering if the.applicant would be willing to request a continuance of this hearing to a date
certain;the 21 days would start from that date certain.
Dunk—On December 15",ConCom voted to start the days upon submission of NOI;the day it was submitted
started the 21-day count with merits discussion on January 12th.Would consent to a continuance to January
12th.
Motion Continued to January 12,2023.
Roll-call vote N/A
B. Orders of Conditions
1. None
C. Other Business
1. Discussion about a joint meeting with SB.
2. Adjournment
Motion Motion to Approve at 7:00 pm. (made by:Golding) (seconded by:)
Roll-call vote Carried 7-0//Beale,Engelbourg,Erisman,Golding,Misurelli,Plandowski,and Williams
Submitted by:
Terry L.Norton
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