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HomeMy WebLinkAbout2013-7-30Minutes for July 30 2013 , adopted Oct 16 CONSERVATION COMMISSION pNrUCkEt SPECIAL HEARING N" 2 Bathing Beach Road Nantucket, Massachusetts 02554 www namucket- ma.eov Tuesday, July 30, 2013 4:00 P.M. Community Room, 4 Fairgrounds Road Commissioners: Ernie Swimmer (Chair), Sarah Oktay (Vice- chair), Jennifer Karberg, Andrew Bennett, Ian Golding, Michael Glowacki, Leslie Johnson n Called m order at 4:00 p.m. o Staff in attendance: Jeff Carlson, Natural Resources Coordinator o 3 Attending Members: Steinauer, Oktay, Kmberg, Bennett, Golding, Glowacki , n rn Absent Members: Johnson rn Earlier Departure: None L Agenda adopted by unanimous consent CD 3 0 *Matter has not been heard Z L PUBLIC MEETING A. Public Comment — Staff Asked speakers to use the microphones and provide names. M 00 f A 11. PUBLIC HEARING A. Notice of Intent 1. •Sconset Beach Preservation Fund— Baxter Road Area SE48- Sitting Steinauer, Oktay, Karberg, Bennett, Golding, Glowacki Recused None Documentation Supporting documents and plans. Submitted by Mr. Cohen at the table a sheet of bullet points. Submitted by Mr. Roggeveen a photo'Sconset Beach Preservation Fund passed out at a public meeting. Two letters from the Nantucket Land Council Consulting engineer John Ramsey and Ms Emily MacKinnon. Applicant Steven Cohen, Reade, Gullicksen, Hanley, Gifford & Cohen LLP — Responded m comments and Representatives concerns expressed at the July 24 meeting. Prohibited under 30CMR 1030 (6) through (8) that section of the statute only applies to a bank that acts as a vertical bluff and contributes and to coastal beaches and dunes, which every bluff does; it refers to when a coastal engineering structure is allowed. Briefly reviewed points made at last hearing. Feels it is important to understand that this project is important in the global sense and it satisfies every legal aspect. Les Smith, Coastal Geologist Epsilon Associates Inc. — Reviewed coastal erosion from 2003 to 2012 and sand movement used to justify the sand mitigation calculations. Reviewed Shoreline Monitoring Traosects and sand availability; the two existing island pits would have a life of about 20 years based on the sand volume. Reviewed the revetment design. Revetment failure occurs in five different modes; reviewed those failures. Explained existing revetments along the South Shore and Cape and wave energy. Reviewed impacts of revetments on the biological community and how the project meets regulatory compliance. Assume a 20- cubic -yards (CY) dump truck will make 1,953 trips or 10 round -trips a day delivering the full amount in 100 days. Initial sediment mitigation would be in 2 phases: explained those phases and number of truck trips needed.'Sconset Beach Preservation Fund is fully prepared to provide a roadway bond as a requirement of the Order of Conditions in the event of damage to the roads as a result of construction. Explained repair of the revetment. Will create a walkway along the top of the revetment and cut stairs into the stones to provide access to the beach. Jamie Feeley, Construction Manager Cottage and Castle Inc. — Explained how sediment would be delivered in the bluff while protecting the head of the banks. Cohen — The track traffic is only an example; would double or triple the number of trucks to shorten the amount of time needed to deliver sand. Reviewed questions that he feels the commissioners should be asking themselves in regards to the proposal. In regards to the survey data, there is a 2010 survey, localized updates of that up to 2012 to calculate sand mitigation, and have contracted for a By -over LIDAR (light detection and ranging) survey to provide updated information as of a few weeks ago. Reiterated the precarious situation of structures and Baxter Road. Stated that there is no alternative to protect the area for imminent danger and that imminent danger is less the 50 feet. Reviewed the positive aspects of the project. Page 1 of 6 Minutes for July 30 2013 adopted Oct. 16 Discussion Bennett —A term used a lot is "storm damage prevention'; the claim is that by armoring the base of the bluff, storm damage to the bluff is prevented. Stated that in his opinion the regulation is talking about the bluff creating nourishment for storm damage prevention. Also, the presentation seems to be secondary about sand nourishment. The tern "cosmetic veneer" is used; stated he finds that disturbing as sand is not a cosmetic veneer on this structure. Stated he is not getting the feeling that the revetment will be kept covered with sand all the time, but a yearly load of sediment equal to the amount believed to be given off by the bluff. The sand coming off the stone will wash away much quicker than sand coming off the bluff and washes away in one storm then is not available for the next. Cohen — The idea of a cosmetic veneer is in reference as a contribution to the wetland scenic views and was included as an option. Stated his opinion that (the sand) is unnecessary, that there is nothing physically objectionable about the revetment, which are typically exposed; sand does not provide any structural benefit In terms of storm damage prevention, there are two major aspects: One, the bank protects things inland of i6 and two, (the bank) feeds sand to other places. Stated both of those are important. By adding the stone revetment to the toe of the bank, you are enhancing its ability to do storm damage protection and flood protection of inland area, though inhibiting its ability to contribute sand; that is why we are proposing mitigation through provision of sand at the rate of bank retreat that mimics nature. Smith — Stated that gabion structures are covered with sand but revetments usually are not covered; sand is introduced into the system up drift, down drift and sometimes in front That is how sand mitigation would be introduced. Glowacki — In regards to failure criteria and the concept of "best available measures", noted that ConCom has its own legal review of how that applies and he stated he assumes ConCom will have its own technical review. Asked what does the commission have aside from the applicant's opinion of what is the "best available measures" and is there an objective standard to refer to. Carlson — The independent review has recently come under contract and is in the process of reviewing the project for engineering, design, whether or not they really are the "best available measures" of this project as a whole and if there are any alternatives. The initial report is due well in advance of the next regular ConCom meeting on August 7. Karberg — At the last hear ing, it was stated that this would take away the beach especially at high tide. Looking at the placement of nourishment, we want to be sure there is no decrease in the beach elevation which would reveal the toe. Questions the placement of sand as helping to prevent that from happening. Smith — Explained about mitigation placement of sand and that in his experience it is usually just the high -tide beach which is lost. Pointed out that a lot have not had proper mitigation and have failed. Karberg — The wave energy hitting the revetment, asked if that would change the erosion rate. Smith — Would have to monitor. Oktay — Between the terracing which was permitted, it was mentioned that there was less erosion at that structure. Asked how much more time would the revetment buy for the length of this beach and the wave environment than a terracing structure. Stated that in her opinion, even with the revetment, there will be wind and min erosion at the top and over - steeping of the bank. Also, to building the revetment, the northern end bank angle will have to be changed. The whole argument is that there is nothing else that can be done; how much more time does hard - armoring buy the structures and road? Cohen — That is not a legally relative question for the ConCom because that is a cost- benefit analysis question. That is a decision for the Board of Selectmen (BOS). Smith — The rock revetment is more robust in the face of future storm events. The terrace structure is softer and more likely to be lost through toe scour and bank slumping. Stabilization with the revetment can be done up to an angle of 33 degrees. Cohen — Contends the revetment should work for 100s of years. Oktay — Stated that she does not agree with that. Smith — Stated that revetments, some of which date back to the 1950s, have proved to be more stable and where sand was provided, there was no loss of beach. Jute bags have a rating of perhaps 10 years at the most. Oktay — The report refers to a sacrificial beach, stated the commission needs to see a plan that shows where the sand will placed and how thick it will be. Smitb — Stated that plan would be available before the next meeting. Page 2 of 6 Minutes for July 30 2013 adopted Oct 16 Discussion Discussion about the information on placement of the revetment that is in the packet. continued Oktay — Asked if the applicants' representatives think walking along the top of the revetment is comparable to walking along the beach. Smith — The beach will still be there at low tide. At high tide, it would be narrower and mitigate with more sand to keep it there. Oktay — Asked how that would happen if there is no beach or even room for a bob -cat. Feeley — The proposed plan can be set up at any time of the year to deliver sand onto a revetment. Oktay — End scour, which is not the same as erosion, still causes loss of bank that sand mitigation does not replace. In regards to the LIDAR and flyovers, the 3.158 retreat per year is based upon a few areas between 2003 and 2012 at the transects. Smith — The retreat is based on top -of -bank retreat per aerial photographs. Cohen — If the LIDAR survey indicates a higher rate of retreat, it is built into the proposal. Stated that he does not anticipate an increase, but in fact is anticipating a decrease. Oktay — Expressed concern about being able to add enough sand to the system when it is needed to properly mitigate against loss of beach and end scour. Referred to a paper she had written, that is part of the public record, that shows comprehensively in areas of beach grooming, revetments and coastal structures, beach and fauna go away forever. Cohen — Stated that the commission should keep in mind at the end of the day that the law allows certain things to happen and understands the facts and science being discussed. Bennett — Section 27 of the submission which references nourishment and talks about control areas. Asked who would decide when nourishment would be performed. Smith — In conjunction with DEP areas of monitoring with controls have been established. Cohen — Stated that when those reports come in, they would be presented to ConCom, which would allow ConCom to reopen the hearing to change the number. Bennett — Expressed concern that could lead to arguments about what caused the loss and thus a delay to the mitigation. It is very hard to fix damage done. Oktay — Agrees with that concern. Asked about how end scour would be monitored. Cohen — Could increase monitoring to more than every six months. Stated the opinion that wouldn't be necessary. Smith — There will be monitoring done after storm events. Input would be provided to the commission. Golding — Stated he is very concerned about the loss of beach at high tide. Asked if there is any system that could be put in place where the beach would remain as wide. In regards to the sand contribution, referred to slide 6, the proposal states that the direction trends toward the north; asked upon what is that based. Smith — Stated that those references were provided in prior applications and could pull them out to provide for this application. He said he would look at the previous sediment budgets to provide information on the bank sediment contribution. Golding — In regards to public access and the paper roads; asked how many public access points would be considered. Those are not clear on the slide or the hand out. Cohen — There are three proposed; if there was one at every paper road as well, that would make 8. Expressed the opinion that 8 access points are not necessary. Golding — Asked if there is consideration of extending the Bluff Walk. Cohen — There was a lot of debate about that. Stated that they can preserve the Bluff Walk and can created expanded public access on the revetment, but committing to how to extend the Bluff Walk would require securing easements and feels they can't commit to doing that in this proposal due to the time it would require. Part of the Memorandum of Agreement (MOA) with the BOS is to secure those easements between Phase I & H. Oktay — Stated that not all commissioners have the information from the previous nourishment applications about the north/south drift and it should be provided for this application. The alternative analysis refers to the gabions and mattresses which was the prior application. Smith — That was background information provided by OCC (Ocean and Coastal Consultants) for the wave analysis. Stated the gabions and mattresses are not being proposed here. Cohen — Asked the commission how many staircases it believes are appropriate for public access to the beach. Golding — Stated his personal opinion is that the more public access provided the more support will be garnered for the project. Discussion about public access, parking and safety walking along the revetment. Smith — Will provide information on the "U'& "E" grade revetments in Massachusetts and the revetments in Massachusetts that are in a more similar wave - energy environment. Page 3 of 6 Minutes for July 30 2013 adopted Oct 16 Discussion Oktay — Asked if the 1.5 -to -I design was a result of space limitation or what Mr. Smith felt would work continued for the 100 -year storm. Smith — Stated he had discussed this at length with OCC and they based their design parameters on the 1.5 -to-1 part of the slope in calculating the cover; the steeper slope is a trade off because a slighter angle extends further onto beach. Steinauer — Asked how the project would be removed in the event the bank should fail; would a fund be set up for that. Cohen — The MOA requires a maintenance /repair capital fund; but stated he doesn't think that would go so far as a removal of the structure in the event of a failure. The revetment is designed to be maintained, not removed. If failure were to occur and the bank collapse, natural erosion would continue until the big rocks ended up in the ocean. That is not an environmental disaster; that is a natural condition. Stated the belief it is probably not legal for the commission to require an escrow fund for removal. Steinauer — Expressed his concern about a huge pile of rocks on the beach then in shallow water where people do boat and would be a hazard to navigation. Smith — Stated he would send the commission the public inventory of coastal engineering structures; and stated that failure has not been a problem with coastal engineering structures. These types of structures go back in the turn of the 10 century. Steinauer — Stated there could be ways the structure fails without falling on the beach. The commission might determine that revetment has failed because of damage to down -drift beaches that doesn't seem to be mitigated. Stated his belief that the revetment is not fail -proof. Cohen — Stated that the commission could establish failure criteria and that is a discussion for the next meeting. Golding — Asked Mr. Cohen to elaborate on the comment, "it probably isn't legal to ask for an escrow account" in the event of failure. That was asked for in respect to the gabion application. Cohen — Stated that his client was willing to accept any requirement to get the project permitted. Stated that there is nothing in the statute or regulations that provide a basis for requiring an escrow account for removal. Also, the prior proposal that was a pilot program that could be removed. Golding — Asked Mr. Cohen wouldn't he agree that if the revetment failed and rocks were littering the beach, wouldn't that be an adverse impact and it is reasonable for the commission to ask to protect against that. Cohen — Stated the commission can protect against that but asking his client to put aside millions of dollars in advance as a speculative measure might be legally too much. Oktay — The NOI pages 64 and 65 shows a top -down view of the design; the drawing shows what looks like groins. Would like a side view of the structure. Cohen — Stated that what looks like groins is demonstrating the vertical angle. Public Dirk Roggeveen, Quidnef/Squam Association (QSA) — QSA is the people living on the north side of Sesachacha Pond to Great Point and, along with residents of Codfish Park, are immediate abutters to the project and will bear the brunt of failure. Addressed the escrow account discussion and history of such accounts with'Sconset Beach Preservation Fund. Pointed out that the proposal does not address the coastal dynamics; should have current and accurate erosion rates for all the eastern shore and information on how the QSA area is competing for sediment. Mitigation is based on a slow rate of erosion and construction of the project is based on a high rate of erosion. Suggested the commission seek consultation from a coastal geologist who has dealt with sediment transport and beaches made of glacial deposits; suggested the commission also seek independent review. Stated the failme his clients arc concerned with is what if the mitigation is insufficient or doesn't work and results in damage to up -drift and down -drift beaches. Expressed concern about where the money for mitigation will come from as properties are sold; the commission is required to take action if the project is causing actual harm and it is being asked to permit something that won't have the money to be removed. Also suggested the commission require an agreement that'Sconset Beach Preservation Fund won't appeal an order to remove. The people to the north and south who might be suffering damage need a means to cause action to be taken to address their concerns. Reviewed comments made by the Mr. Cohen in his pre -amble about the different types coastal banks and their environmental roles and compared those statements to the regulations. Contends the regulations do not support construction of the revetment to the extent suggested by Mr. Cohen. Pointed out that technically the lot on which work is being done has no pre-1978 structure; those are on adjoining lots and ConCom has always reviewed projects lot- specific. Suggested the commission ask for waivers for construction on lots without pre-1978 structures and detailed why ask for those waivers. Stated that due diligence to the project can't be accomplished if the review is rushed. Page 4 of 6 Minutes for July 30 2013 adopted Oct 16 Public John Merson, 71 Baxter Road — Stated that the part of Baxter Road that is endangered is a small section. continued Suggested Baxter Road is more in danger from the proposed construction traffic. At a meeting, members of SBFP suggested after completion of Phase 11, the Town would take over ownership of the revetment and be responsible the maintenance; so perhaps the commission should be asking questions of the Town Manager about maintenance, mitigation and removal. An alternative not mentioned is moving the small number of structures that are in danger. Kyle Latshaw, 113 Baxter Road— Reviewed the list of advantages and disadvantages of past similar projects and this project. Said that in theory, it is time for a leap of faith and asked the commission to do that. Sarah Alger, Sarah F. Alger P.C., for Baxter Road abutters — It is not accurate that only a small portion is threatened; there are several pressure points. Not accurate that the road can be easily moved because of the public infra - structure. The stability and re- vegetation is important for the wetland scenic view and access for the public; sense from looking at the application is that best practices are being employed. Stated that retreat is not an option as the structures have nowhere to go. Moving the infra- structure would require taking of private property and cause large -scale damage. With the answers to questions provided, the commission should look the best practices being employed and approve the project. Josh Posner, 77 Baxter Road — Contested the allegations about down -drift scour and that end -scoff is not something he has experienced. Explained why the jute bags have indicated that a revetment would be a success. Stated that the existing slope is 1.5 -to -1 as is the design slope. Vegetation above the toe at a steeper grade of angle of repose can be maintained; it is being maintained. There is a desire and a willingness to extend the Bluff Walk; residents like the Bluff Walk and are interested and committed to making that work. It used to be that there were not that many public access stairs down to the beach; contends that not many (8) are necessary. The science of littoral drift and revelments will be addressed in a speech by John Trowbridge, Department Chair Applied Ocean Physics and Engineering the Wood Hole Oceanographic Institute, in the 4 FOR Community Room on Monday August 5; it is sponsored by 'Sconset Beach Preservation Fund. There was a question about how mitigation would continue; the project would have to be established with an on -going maintenance plan with a tax or assessment system applied through a formal and legal system with the affected property owners; if there is a Town share, this has to go through Town Meeting. There used to be 50 homes on the ocean side of Baxter Road; 12 have been moved or demolished and 8 are very close to the edge leaving 30 structures. Sections of the road are under threat; and loss of the road would strand the homes on the landward side of the road. Addressed the notion that'Sconset Beach Preservation Fund waited to the last minute to file this application and the Town's study committee that studied Baxter Road after the 2013 winter storm damage. Stated he does not appreciate the vilification that this was a last - minutes proposal planned to force a rush decision. Emily MacKinnon, Nantucket Land Council (NLC) — The letter from Mr. Ramsey outlines NLC's remaining and additional technical concerns. The second letter is hers and represents the review of local Nantucket wetland regulations and identifies several performance standards that have not been met and require waivers. Outlined some of the more technical concerns outlined in Mr. Ramsey's letter, to include: erecting a work platform necessary to affect repairs when the high -tide beach is lost, episodic erosion slumping, an erosion rate table, the lack of reporting on near-shore and beach volumes lost wit this proposal, the need for current survey data, and what shoreline monitoring plan should include. D. Anne Atherton, 48 Squam Road — Stated that public access is important in this area and that, from what she heard today, there is no enhancement to public beach access. Expressed concern in the loss of beach which is part of the historic legacy from the Proprietors which was preserved for the people of Nantucket. No specificity is provided and that is necessary to make a determination. Marlon Miller, 80 Quidnet Road — Expressed the opinion about how greater a risk of failure becomes with this structure. If this goes wrong and the barrier beach at Sesachacha Pond fails, the commission is left figuring out how to replace Polpis Road. If it goes forward, there has to be something ftom the Town that states mitigation is in perpetuity. Helmut Weymar, 78 Baxter Road — Addressed the concept of singling out pre- and post- 1978 homes and sea -level rise. Stated that `Sconset is an historic gem that should be protected as a community. Catherine Stover, 5 Liberty Street — This bluff belongs to the people and the beach belongs to the people, and whether or not a revetment is approved, it belongs to the people and they have the final say. Page 5 of 6 Minutes for July 30 2013. adopted Oct. 16 Final statement Cohen — Made closing statements suggesting that some public comments are down -right silly. Refuted those comments. Stated that moving the road 15 feet to buy time is insulting. Glowacki — interrupted stating listening to attorneys refute each other could take forever and suggested that all the attorneys put their comments in writing and that Town Counsel distill it all down. Oktay — 310 CMR are state wetland regulations; there are local wetland regulations. Read the first regulation on coastal banks and "substantial improvement" to pre-1978 structures. Stelmmer— Reviewed what the commission would like to have: surveyed plans and accurate up -to -date erosion rates and up -to -date top of bank erosion. Suggested holding off the next hearing until that is submitted. Staff— Every application requires current information and the project proposed in totality. Spent a lot of time talking about performance standards for a coastal bank; this project would affect coastal beach and land under the ocean, and those performance standards also need to be met. Water dependency is not a waiver. There is one requirement, Nr 3 of the Performance Standards, which talks about projects affecting bank height and stability and wildlife; the project must demonstrate compliance with that and it has nothing to do with water dependency. Those also are necessary for the next hearing. Next hearing Staff— Suggested that if this goes on the regular agenda for August 7 that it go at the end. There is another special hearing scheduled for August 8; but stated he didn't know how long it would take the applicant to put the requested information together and submitted to the office by Friday, August 2. The decision should be made in the timeframe that is comfortable for the board despite the time - sensitive issues. The commission needs to be able to defend their decision through an appeal process. Cohen — Reiterated his need for an accelerated decision and some of the request for current data are unnecessary and that data submitted is only 1 -year old and being updated. Asked for a hearing at the end of the August 7 meeting and an August 8 hearing. Request continuance. Discussion about when to hold the next hearing. Continued to August 8 without objection. B. Other Business 1. Reports: a. CPC —None b.NP &EDC— Bennett c. Mosquito Control Committee — Oktay d. Coastal Management Plan — Oktay e. Other — None 2. Commissioners Comment: a. Glowacki — Suggested that at some time over the course of the summer, Mr. Carlson give some thought to the approaches and guidelines in regards the length of the meetings. MACC (Massachusetts Association of Conservation Commissions) studies indicate 2 hours is the limit people can work together effectively. Mr. Carlson offered to do some research and come up with suggestions. Pointed out meetings over 2 hours are rare. Stated he would try to have something for the next meeting. 3. Administrator /Staff Reports Motion to Adjourn: 7:47 p.m. Submitted by: Terry L. Norton Page 6 of 6