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HomeMy WebLinkAbout2012-10-4Minutes for October 4 2012 adopted Nov. 14 CONSERVATION COMMISSION MINUTES 2 Bathing Beach Road Nantucket, Massachusetts 02554 www.nantucket - ma.gov Commissioners: Ernie Steinauer (Chair), Sarah Oktay (Vice- chair), John Braginton- Smith, Jennifer Karberg, Andrew Bennett, Ian Golding, Michael Glowacki Thursday, October 4, 2012 4:00 P.M. 2 °d Floor Training Room, 4 Fairgrounds Road All or a portion of this meeting is being recorded. If you plan to record this meeting yourself, please check with the chairman of the board before you begin Called to order at 4:00 p.m. Staff in attendance: J. Carlson, Natural Resources Coordinator Attending Members: Steinauer, Oktay, Kerberg, Braginton- Smith, Bennett, Golding, Glowacki Absent Members: None Late Arrivals: None Agenda adopted by unanimous consent N c� C Z7 *Matter has not been heard M rn � I. PUBLIC MEETING A. Public Comment - None ° :--D rn r, o II. PUBLIC HEARING r A. Notice of Intent 7:0 w 1. Sconset Beach Preservation Fund — Baxter Road (48 -8) SE48 -2474 71- Sitting Steinauer, Oktay, Karberg, Braginton- Smith, Bennett, Golding, Glowacki Recused None Documentation Supporting documents and plans. Representative Steven Cohen, Reade Gullicksen Hanley & Gifford LLP Barry Fogel, Keegan Werlin LLP — No new information to present. Les Smith, Environmental Scientist Epsilon Associates Inc. Jamie Feeley, Cottage and Castle Inc. Public D. Anne Atherton, 48 Squam Road Mary Wawro, 3 Eat Fire Springs Road Catherine Stover, 5 Liberty Street Page 1 of 6 Minutes for October 4 2012 adopted Nov. 14 Discussion Golding — About Condition 14, which determines a criterion for failure is still water high tide location with consecutive 4 quarters, asked if it would be onerous if it was 2 consecutive quarters. Smith — Prefer a year as it is more representative of the annual beach cycle. Golding — Same logic for Condition 15, determines criterion for failure semi - annual shoreline profile showed greater deterioration of beach erosion area; could that be changed to quarterly? Fogel — On adjacent profile if there is scarping that extends back; once you start scarping into the coastal bank is a permanent impact. Golding — On Condition 17, about reclamation bond and escrow account, a 3 -year period is delineated; would you have an objection about it being for the lifetime of the project with inflation built in? Feeley — Initial 3 years is the life of the order of conditions. Carlson — If they come in for an extension of the orders after that, we can extend the account at that time. Bonding companies are loath to set an unlimited term. Golding — Item 18 covers in the event the project must be removed; it sets quarterly reporting for one year; would like to extend that to two years. Fogel — No objections to that. Mulcahy — Asks for comments from the public. Stover — Asks if releases will be signed by residents either side of the project that prevents them from holding the Town and Conservation Commission liable for damages to their property. Carlson — Any agreement like that is solely on a single parcel of land; the actual use and grievance comes through as part of licensing the use of the land by Board of Selectmen. Through our act and by -laws, this commission cannot condition things off the property applied for. Through the town licensing, there is a criteria that can be triggered. Fogel — The license for use from the Town has an indemnification clause. 'Sconset Beach Preservation Fund also has to carry insurance. Stover — Asked if ConCom could be held liable for damages from anybody else. Carlson — ConCom and each commissioner are covered as agents of the Town. Cohen — The license says "whether or not related to the negligence of the applicant." That is a strong indemnification. Carlson — That license has not been activated through the Town yet as it relates to this project. That will be a separate discussion by the Board of Selectmen if the project is approved by ConCom. Warwo — Asked if public would be allowed to speak during the discussion of the conditions? Steinauer — Stated that once the hearing is close, the public and applicant will not be allowed to speak unless invited by the commission. Any questions or comments from the public should be heard now. DA Atherton — Asked if Attorney Fogel's responses to information that had been received since last Friday was available to the public. Carlson — At some point, a line must be drawn on acceptance of comments and questions from the public. There needs to be a cut -off date if the hearing is to close. Steinauer — In agreement with Mr. Carlson. Consensus, commission agrees. Discussion about whether or not to close the hearing. Staff Have everything we need to close. Motion Motion to Close Public Hearing at 4:26 p.m. (Bennett) seconded Vote Carried 6- 1HGlowacki opposed Page 2 of 6 Minutes for October 4 2012 adopted Nov 14 (a:z7) III. PUBLIC MEETING A. Orders of Conditions (for discussion and /or issuance) 1. Sconset Beach Preservation Fund — Baxter Road (48 -8) SE48 -2474 Sitting Steinauer, Oktay, Karberg, Braginton- Smith, Bennett, Golding, Glowacki Recused None Staff Suggest commissioners discuss the merits of the project to provide staff guidance and what direction they are going so that staff understands what needs to be drafted. Approval needs conditions and a denial needs reasons. Discussion Steinauer — Now that we have heard this submission in detail and most of us have heard the previous submission in detail, the question is do we want to have another look at whether or not this project is substantially different than the previous submission. Carlson — As part of an approval would want a statement that the commission finds this significantly different from SE48 -2395 and was therefore able to be heard by the commission. Likewise for a denial, the statement would say that the commission finds this project similar enough to SE48 -2395 that it should be denied and site the appropriate bylaw. Steinauer — Should we start with the proposed conditions brought forth by ' Sconset Beach Preservation Fund or start cold? Oktay —The first discussion should be if this is different from the first submission or not and why. Expressed opinion that the pilot nature of this project is not substantially different from the previous submission. Though it is smaller in footprint, I am deeply concerned about the gap lot and have all the same issues as I had with the first submission, the area without anchors does not substantially change the project and won't help us learn anything new. Believe there will be construction issues and end scour and it cannot be sufficiently conditioned. Golding — Ms Oktay addressed both the specific and material changes. We had that discussion on August 8 with Town Counsel present and I feel it is fruitless to rehash that. Bennett — Our bylaws are vague in respect to criteria defining whether or not a project is substantially different and that was one reason why we went forward with this. Glowacki — The commission did make the determination that it was substantially different. The most recent decision was that this was material different. Have trouble following the logic of placing weight on previous decisions. Bennett — Agree with Ms Oktay that now we have heard the whole project; it is a valid point to include it in the conditions. Steinauer — Town Counsel advised that the question of substantially different could be left open during the public hearing and resolved later. Carlson — Listened to that specific discussion recently; much of the discussion revolved around the fact that the issue had to be heard in order to decide if it was substantially different or not. An important part of the discussion was not giving up the right to make that decision. After the initial presentation, this commission decided the project had enough merit to hear it to its conclusion. Braginton -Smith — Stated that all concerns from the first still exist with this submission and have not been swayed. Page 3 of 6 Minutes for October 4 2012 adopted Nov. 14 Discussion of Karberg — Did vote on the side that it was not substantially different from the orders previous presentation and have not changed my opinion. continued Steinauer — The whole thing comes down to, if you cut a project in half, is it a significant enough change to call it a new project? What are the criteria: size or the functional aspects of the project? Has heard enough difference on the commission that if we draft a positive order, it can be included; or if it is denied, it would be a reason for the denial. Golding — Didn't TC state that our bylaws are based on a 1981 ruling where the judge stated the law was designed to allow applicants address the objections of the board? Carlson — That is correct; it was part of the discussion. ConCom bylaws are stand alone and not tied to zoning. Also at the August 8 meeting it was said that once heard to conclusion, the commission might observe this different. Glowacki — The biggest concerns are the loss of beach and possibility of end scour; on those issues, where the commission could define failure and where there is cash escrow to remove the project, we could deal with those in a way that is reasonable and meets all our responsibilities. Suggested moving forward on a decision. Steinauer — Want to hear other opinions on strong points and weak points to help condition the orders. Golding — Pointed out that both the approval and denial from the previous submission with all those conditions and reasons are available. Share Mr. Braginton- Smith concerns. Concom needs to decide if it is in the islands long -term interest to craft this in a way to get detailed information on what is happening on the east end of the island. Karberg — In addition, failure criteria is in place in order to stop the project and protect the resources. One concern is that if failure criteria are reached and the project removed, what will the coastal bank and beach look like? The bank has to be altered to install the gabions and mattresses. Once removed, the bank and beach do not go back to "reset "; the bank will still have been impacted, there will still be end scour, and the bank destabilized. Golding — The bank will collapse if none of this takes place. Oktay — That is a function of normal events. Do not believe the monitoring scheme will be appropriate enough or adequate enough to give us anything we don't already know. A coastal bank erodes differently than this sacrificial bank they are placing on top of it. Bennett — Concerned about the erosion on the sides; however there is not a history of bank profiles, which would make it difficult to support the end scour argument. Also concerned about the gap lot. This is not new technology and it will come up again and again; so see some value in doing it to see what a hardened structure will do and so have a record for the rest of the bank along the road. Braginton -Smith — Referred back to the geo- textile bags in front of the Ratner property in Madaket, what occurred when those bags penetrated into the sand and become a harden structure, either side suffered significantly. If one looks at that area now, some of the coastal bank has re- stabilized; however the tidal shift and lateral drift of the sand has been permanently influenced. In the past, the commission has never been permissive in allowing hard armoring. Page 4 of 6 Minutes for October 4 2012 adopted Nov 14 Discussion of Oktay — The "burritos" are a softer solution that do not have as serious an adverse orders impact. continued Golding — Do not feel this is hard armor provided that replacement sand performs its function. Steinauer — Agree with Ms Oktay and Mr. Bennett that this is not new; similar projects are in place on many shorelines. However, foresee a problem keeping the sand in place. If the project is permitted, need to require the average annual sand volume be replaced. These structures are being put on one property owned by the Town to protect structures on properties owned by someone else, and we cannot condition properties being protected by the project; that is very troubling. If we do agree to this, need to get deed restrictions from those property owners that states they agree not to expand their footprints. Agree that there will not be enough data coming in on this project. One of the main functions of this bank is to provide sand into the system. There are a lot of failure criteria; however believe this should be evaluated on whether or not it will fail. It will be a lot harder to take it out than it seems and the tendency would be to fix it. Golding — At some point it will fail. Bennett — At what point is the design wrong? If people are constantly repairing it, something is wrong. Also concerned about how much sand is being pulled out of the middle of the island; there is only so much free sand on this island. Oktay — Believe there will be more adverse impact than I am comfortable with. Steinauer — Asked for further comments or concerns. None at this time. Carlson — Have drafted up a couple of orders for the commission to review. The denial order mirrors the denial for SE48 -2395. The approval order is much different. Commissioner read through the two draft orders. Break 5:06 -5:16 Discussion resumes. Steinauer — Proposed starting to work on conditions of the positive order. Condition 21— Project area may not be expanded until one full year of monitoring: would prefer 3 years and deletion of "expanded" because it assumes an okay for other projects. If this is a pilot project and meaningful data is going to be collected, believe 3 years is rather short; would rather it be extended to include a major storm event. This project needs to get hit with a major storm if we are going to evaluate its effectiveness. Also can't allow the altering of conditions within a distance of this project; need to include a moratorium on the entire town lot to facilitate evaluation of this pilot project. Discussion about rewording Condition 21. Condition 18 — Monitoring of the project, only work area permitted by this order is adjacent to Lots 79 -83 but actually affects 1/4 mile in each direction. Discussion about inclusion of lots addressed in Condition 18 and the gap lot. Conditions 28 & 30 & 33 — Discussion about failure criteria. Condition 35 — Should be for more than one year; three years. Add a Condition — To address lack of a notation for end scour or profile change as failure criteria; need a broader scope than just the ends, perhaps up to 500 feet and include beach, toe and bank erosion. Craft something that compares erosion rates at a distance from the project and need a control. Further discussion. Oktay — Every year a yearly amount of sand needs to be deposited. That has to be provided independent of what is being provided to cover up. Page 5 of 6 Minutes for October 4 2012 adopted Nov. 14 Discussion of Steinauer — Expanding that off the immediate project foot print would be nourishing orders adjacent areas upon which we are trying to ascertain erosion. Sand which is being continued eroded from the project site would prohibit the bank from contributing to that area. It must be contained within the project site. A critical function of the bank is supplying sand. Glowacki — It is going to erode faster out of the template area. If it doesn't erode, it doesn't erode. Don't see the problem. Steinauer — If it does not erode for three years, there is still just one year of volume of sand there. A 50 -year storm hits and takes three -years of sand from everywhere else, but the project site is only contributing one -year of sand. They need to contribute what the bank contributes. Carlson — Have to be careful about moving away from conditions into redesigning a project. There is a fine line. Oktay — Could argue that the annual sand amount was brought up during discussion and no change was offered. Karberg — Looking at photographs provided, suggest that monthly photos from the exact same spot and time to create a visual record. Oktay — Include a visual benchmark in the photos. Bennett — Would like an active (video) record of how the wave motion removes sand to show how fast it occurs. Steinauer — There was a lot of discussion about anchors and whether or not to anchor all the mattresses. Braginton -Smith — Was concerned about the installation of the anchors; once it is done, it cannot be undone. However, if the project goes forward, would want to enhance the chance for success. Discussion about anchoring all mattresses. Oktay — Does our consideration for wetlands /scenic view change summer to winter? Would like to restrict trucks when the beaches are in use. Carlson — Need to allow the trucks access year -round to replace sand. Karberg — Wetlands are more important to this commission than scenic view. Steinauer — Need to define, even in a permissive order, that ConCom does not find this to be a water - dependent project. Condition 39 — "Pedestrian access across a public beach shall be maintained at all times," discussion whether or not that is specific enough. Discuss insertion of a repair window and a statement that facilitates emergency access. Deed Restrictions — Discussion about legal ability for ConCom to impose deed restrictions. Steinauer — Proposed starting to work on conditions of negative order. Carlson — Reviewed findings outlined in the negative order. Finding 4 — Discussion about omitting denial based on finding pilot project was not substantially different from the original proposal. Motion Motion to Issue Denial as amended. ( Oktay) seconded Vote Carried 4 -3 Motion to Adjourn at 6:19 p.m. Submitted by: Terry L. Norton Page 6 of 6