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Home My WebLink About2013-11-20Minutes for November 20 2013 adopted May 28 2014 `® CONSERVATION COMMISSION SPECIAL HEARING r° 2 Bathing Beach Road Nantucket, Massachusetts 02554 www.nantucket-ma.gov Wednesday, November 20, 2013 4:00 P.M. Public Safety Facility, 4 Fairgrounds Road Commissioners: Ernie Steinauer (Chair), Sarah Oktay (Vice- chair), Jennifer Karberg, Andrew Bennett, Ian Golding, Michael Glowacki, Leslie Johnson Called to order at 4:01 p.m. - •� Staff in attendance: Jeff Carlson, Natural Resources Coordinator, Terry Norton, Town M&tes T*er Attending Members: Steinauer, Okay (remote participation), Karberg, Bennett, Golding, G{owapk, Johnson (remote participation) Absent Members: None �:, M Late Arrivals: None CD Earlier Departure: Oktay and Johnson 7:01 p.m. — rte' Town Counsel: George Pucci, Kopelman & Paige P.C. n Agenda adopted by unanimous consent *Matter has not been heard L PUBLIC MEETING o� A. Public Comment —None - B. Announcements by the Chair — The hearing will wind up by 7:30 p.m. Speakers asked to keep comments to address the Wetlands Act. IL PUBLIC HEARING A. Notice of Intent 1. Town of Nantucket/'Sconset Beach Preservation Fond (SBPF) — 85 -107A Baxter Road Area SE48 -2610 Sitting Steinauer, Okay, Karberg, Bennett, Golding, Glowacki, Johnson Recused None Documentation Supporting documents and plans. PowerPoint® presentation. Applicant TON Representatives Kara Bunnoski, Director Department of Public Works (DPW) — Sent a waiver request for No Adverse Impact/No Reasonable Alternative from the Performance Standards for Coastal Banks as a for a sediment source. Sated the belief that the proposed mitigation efforts will address that Performance Standard. Sated that the Board of Selectmen (BOS) would be reviewing the licensing agreement with SBPF, which covers liability, at the meeting, November 20, 2013 at 6 p.m. Also sated the estimated cost of construction is $3.2 million. Revised the mitigation schedule to address concerns of seasonal impact to the toe of the slope. Stated that the butters at the end of the structure have reviewed the issue of end scour with SBPF and are now in favor of the project. Nicole Burnham, Engineer, Milone & MacBroom Coastal Engineering — Referred to a letter her firm submitted dated November 19, 2013 in which two major issues are addressed as well as sand mitigation: Calculated the sand volume for the end, how the end of the structure would be modified to limit end scour and removal. The construction plan for the ends is to add a 20 -foot long tube nested into the gap between the bank and the tubes to keep wave action from getting behind the tubes. Explained how the project would be removed using excavators at a cost of about $218,000 to include disposal of material and regrading. In regards to sand mitigation and volume nourishment rates, 22 cubic yards per linear foot (cyAf) a year sounds reasonable. Using that number, laid out a protocol that addresses the issue of fining: as soon as construction is complete, 18 cy/lf will be laid along the foot of the project. Jan through Much 2014 additional 4 cy /If will be added periodically to get to 22. Starting in April, will lay 12 cy /If through the summer to protect the tubes, then in November lay the final 4 cy /Ifbringing the number back up to 18. The pay slips will be provided to ConCom staff to track the amount of sand laid. Co- Applicant SBPF Steven Cohen, Randle, Gullicksen, Hanley, Gifford & Cohen LLP Jamie Feeley, Construction Manager Cottage and Castle Inc Josh Posner, 77 Baxter Road, Chairman'Sconset Beach Preservation Fund Page 1 of 6 Minutes for November 20 2013 ad ofd May 28 2014 Commissioner Bennett — Asked if all the sand is lost in a storm, would the replaced sand be in addition to the 22 cyllf. discussion Burnham — It would have to be; there definitely would be times nourishment is beyond the calculated amount of sand. Okmy — Stated she has two comments /questions in regards to sand volume. One, asked if the initial 18 cy/If would be placed at about the 2 "d lowest tube; that mitigation should be placed where it would most closely imitate the bluff. Burnham — Yes, it would start at the beach surface and extend above the upper bags. When lower sand is lost, it will descend from the upper bags. Stemmer —there will be a large flat surface at the top which will hold the sand. Burnham — Yes, but it will be rounded at the edge so it won't hold all the sand. Oktay — Second, from April on, there will be fast 12 cyflf then an additional 10 cyfif, it seems there will be waiting for a trigger to put in the remaining. There should always be 22cy /If each year available. Burnham — That is the intention that there will be 22 cy /If. The trigger is timing — the more frequent the better. November is the time to prepare the bank for winter storms. April is about keeping the tubes covered. Steinauer— Pointed out that we could be hit by a hurricane, though there is usually enough time to put sand down in advance. Golding — The clay escarpment at 105 Baxter Road seems to be a natural place to end the geo -tube, rather than going around and ending at 107A Baxter Road. Asked why the structure was designed to wrap the escarpment and end at 107. Also asked how they would go around the spur without cutting into it Burnham — Stated they would try at the lowest level of the geo -mbe to wrap around the spur as best as possible without cutting into the bank; it is something that would have to be evaluated in the field. The project wraps the spur because in that area, the top of the bank is still close to the road; also there are no structures on 107A Baxter Road. Steinauer — Asked how the end plugs would work and if it has been used elsewhere. Burnham — All engineers from both Ocean and Coastal and Roberge have stated that is the best way to manage and mitigate. Said she has no photos of other projects where the end plugs were used. Explained it is smaller in diameter. Steinauer —Noted that they added the possibility of extending the bag or using more geo -mbes to address the issue of end seem. Asked if that would be on the applicant's property or go straight back. Burnham — It would be under the foot print on the applicant's property. Oktay — Had the same question. Asked if it would taper or end sharply. Burnham — Stated it is hard to show it in a drawing. The intention is to be an extra layer of armor and laid inside the existing foot print. Public Jose Trillos, 8 Parsons Lane — Stated that in regards to the volume of sand mitigation, the subject of logistics has not been addressed. He said he estimated 3000 trucks loads of sand a year would be traversing the'Sconset roads and that might be a problem for the residents along the track route. if the structure were extended the full 4000 feet proposed by SBPF, that would require 8000 trucks. Steinauer— Pointed out that logistics is a subject to be discussed by the BOS. Emily MacKinnon, Nantucket Land Council (NLC) — Referred to the letter NLC submitted with final comments and continued concerns that address local performance standards and regulatory compliance in response to the waiver request. Believe the structure will have an adverse impact and that there me a number of alternative designs and materials that can meet the goals of the applicant and minimize the adverse impact. Express concerns about regulatory compliance with state regulations when the commission is looking at recommendations made by Town Counsel and that same counsel is advising the BOS as applicant. Believe the commission should have had independent review. Have been concerned that the permitting ofthis type of structure, even on a temporary basis, could set a precedent for hard armoring other areas of the island; a concern echoed by some of the commissioners. In light of these concerns, the findings and conditions made on this permit will be extremely important. Trey Ruthven, Applied Coastal Research — Stated that to date, most of their concerns have been only partially addressed or not addressed. Expressed the opinion that the structure is over-built for a temporary structures and that there are valid alternatives. Still talking about mitigation volumes and they keep changing; however feels that the mitigation volume and the volume to keep the tubes covered should be kept separate. Though details have been added at the end of the structure, those are meant to keep the structure from unraveling; the subject of end scour itself has not been addressed at all. Feels the mitigation number is still low, especially since end scour hasn't been addressed. 22 cy /If should be required every year. Page 2 of 6 Minutes for November 20. 2013, adopted May 28, 201 Public Bob Decown, Board of Selectmen — Stated that Town and SBPF have addressed all the issue and are now being asked to address even more. Stated thatjute has failed on a regular basis in that area and there is not the manpower to maintain ajute structure. As far as sand on the upper tube versus the lower mbes; regardless of the 22 cy /If, the lower tubes have to be kept cover. Suggested that whether or not this permit would set a precedent is not something the commission should be concerned with in the process of making a decision on this application. Stated the structure will be removed once Baxter Road is rerouted. Dirk Roggeveen, Quidnet/Squam Association (QSA) — Referred to a letter dated November 19 from Richard Peterson, President of the QSA. Stated that it is the belief of his clients are opposed to the geo- tube structure and that this permit is not just to protect the road and that ajute system that releases sand during a storm would be a better compromise. Referred to the BOS discussion about the project in which some BOS members expressed concerns about not being comfortable with the proposed structure. Stated that based upon that discussion, it is his opinion that the BOS is looking for feedback from the ConCom on the best solution. Reviewed the benefits of a properly designed jute system, which has been successfully installed along `Sconset Bluff. Pointed out that there we this time, two open permits for armoring structures that have the same representatives and the same advisors/designers. Reviewed an alternative analysis that was submitted for the other pending project. Reiterated that the QSA feels this is over designed. This is designed to stop all erosion when the actual goal is to slow erosion long enough to create the alternate road access. In regards to how this will be removed, if the bank slumps, it will do so on top of the tubes burying them. Removing the tubes once that happens would damage the bank's new angle of repose. Reviewed Town Counsel's opinion that states the "commission may" issue the order of conditions not that it must. Also another section states "Although no such projects may be permitted which will have any adverse affect on specified habitat sites of rare vertebrae or invertebrate species." Stated the opinion that the board cannot make a finding that there will be no adverse impact. Stated that in the opinion of Michael Bruno, PhD, PE Dean, Stevens Institute of Technology, who addressed the board on September 1 I in respect to the SBPF project, the primary impact of the structure will be the complete elimination of the bank as a sediment source. Stated that QSA is concerned that the applicant's attorney is also providing the commission with a legal opinion to justify the applicant's legal argument which they wrote; there is no independent legal review. Reminded the commission of the policy that information from the applicant should be submitted by the Friday before the meeting to allow the public a chance to review that. Expressed concern that there has been information submitted as late as the day before this meeting. Steinauer— Reminded speakers to stick to ideas and not address specific persons. DeCosta — To clarify what happened at the meeting referred to by Mr. Roggeveen, the BOS voted 3 -2 to support what their engineers thought was the best application and the best device to give them the 3 to 5 years to move the road. Alix Frick Nelson, 58 Squam Road — Stated that initially QSA did not take a position for or against the project; they wanted to understand what was happening and the affect the project would have on their properties. It was during the course of the hearings that QSA developed apprehension to the project and feel they will lose their beaches. They would support ajute structure based upon their past experiences with jute projects that are /were in place along the bluff. John Merson, 71 Baxter Road — Thanked the commission for then thoroughness. Stated his concern about damage to the beach, which he feels is central to Nantucket's tourism industry. Josh Posner, 77 Baxter Road — Spoke about the use ofjute; the large jute system in place 6 or 7 years has been permitted along the bluff from the lighthouse south. The problem with the jute is that it works well in small to medium storms spaced far enough apart to refill the bags with sand. If they are not repaired, they disappear. Stated that is what happened last year when the storms came so rapidly the bags couldn't be repaired in time. Cited 79 Baxter Road as an example of that happening and how a lot had been lost. Feels it is not a solution to a road that is less than 30 feet from the bluff. Eight cy/If is the average amount of sand used over an entire year to maintain a jute system, which is less than half the volume being proposed for this project. Rick Atherton, 48 Squam Road — Made the point he is not speaking for the BOS. After listening closely to information that has been submitted to the board, state he has come to the conclusion that the record demonstrates ConCom should come to a denial as part of the process. Urged the board to speak to the rules and regulations they are dealing with; the impacts of a positive or negative decision is something the BOS should deal with and the commission should not be influenced by those concerns. Brian Butler, commercial fisherman — Stated the belief that this proposal is too much of a system for temporary relief. Also believes that regardless of what's been said, approval of this project would set precedent. Page 3 of 6 Minutes for November 20, 2013. adopted May 28, 2014 Public Carol Damon, 36 Exeter Road — Stated that hearings are being held so close together that the public does comments not have enough time to review the new information submitted for hearings. continued Discussion about the pressures of the deadline for submitting information and making it available to the commissioners and the public before the next hearing. Bam Lafarge, 88 Vestal Street — Stated the belief that it will impossible to deliver the amount of sand needed after a storm. Town Counsel Steinauer — Asked about setting precedent; if the commission denied a project based upon this one being approved only for the Town, would they be subject to lawsuit. Pact! — If the denial were couch as suggested, yes. The commission would be subject to a claim of arbitrary and capricious. Also under the equal protection claim: this applicant can't be treated differently than any other applicant. If there were something different about the second application, it could be denied upon that element. Cited an example. Reminded the commission that they must decide upon the application before them based on the information before them at that time. Emphasized that it very dangerous for a permitting board to bring up the issue of precedent for support of decisions for denial. It would become the burden of the board to show why one applicant was approved and another denied. Steinauer— Would an implication that this is being pitched as temporary, which might reduce the impacts and help the waivers. Pucci — The commission would need a rational basis for the difference of treatment. Protecting Town infrastructure does not address the differences in the project; the purpose of the project can't be found as important enough to allow the structure in once case but not another. The analyses have to show that the Town proved compliance with a performance standard or proved the ability of the commission to grant the waiver. Recommended that the commission not look at decisions of other board meetings and extraneous reasons why this permit might or might not be granted. Focus on the evidence put before them at the table; if there is other evidence outside the hearing, it should be brought into the hearing process to become part of the record. A question was posed in terms of what project is before them: evidence has come in that the jute bag proposal is a viable alternative. The commission could not condition the project before them to become a jute system; however, the applicant can revise the project during the permitting process. The commission could ask the applicant, under alternative analysis, for a reasonable alternative and the applicant would have to prove to the board why there are no reasonable alternatives. It is then up to the commission to decide whether or not that evidence is sufficient to prove there is no reasonable alternative. Explained Town Counsel's stance in representing all aspects of the Town. Limited project: provided an opinion in writing that the language of the limiting provisions do not apply here. If it were found that this is a limited project, the commission could not deny it under 10.30 of the State regulations with respect to coastal banks. It is appropriate for the commission to make the analysis and finding due to the high profile of this case. Pointed out that the commission did not ask for an opinion on habitat; if there are questions, urged the commission to speak to the applicant. Golding — Asked about the conflict between 10.247C and 10.37. Paces —If this project were found to be a limited project, that difference would not be grounds to deny it. General Steinauer — The habitats are concerns of this commission and the reason for the discussions on littoral discussion drift and end scour. History shows that projects of this nature can have impact on down -drift beaches and thus the loss of beaches used for nesting by plovers and turns. Discussion about that analysis being part of the deliberations. (From the audio, it was not possible to tell Dr. Oktay from Ms Johnson as they did not announce themselves.) Bennett — Asked how long jute bags would last if they were covered by a comparable amount of sand. Burnham — Stated the belief that the moment the jute bags were exposed, they would fail because they are not designed to withstand the force of wave action directly on them. Bennett — If the jute bags fail, then there is no sand going into the system. Discussion about what would happen ifjute bags are covered with the same amount of sand and it being maintained and how long it takes for a jute bag to deflate. Oktay — Expressed concern about removing all the vegetation between zero and 25 will be an additional burden on the top of the bluff. Asked if that bas changed. Burnham — The intention is to remove the vegetation within the work area so as not to have organics mixing with the slurry. Page 4 o£6 Minutes for November 20, 2013 adopted May 28, 2014 Discussion Jamie Feeley, Cottage and Castle Construction — Stated that Mark Haley of Haley and Aldridge does not continued want to see any heavy equipment within 25 feet of the top of the bluff. There will be a wind row along the road which will not encroach closer than the 25 -foot line and that is the area that will be stripped. Steinauer — Expressed concern that the 6" hose, being used to deliver the slurry, would cause a lot of damage if it is being moved around where it goes over the top of the bank. Feeley — explained that the hose would be anchored at the top and manipulated below. Buzanoski — Summed up the information requested and work of the engineers. Addressed questions of the slope's stability and the possibility of it slumping onto the tubes. Expressed the urgency of the situation and that once the bluff top is within 25 feet, Baxter Road would have to be closed. It is conceivable that Baxter Road will have to be closed this window. Explained actions the Town is taking to move Baxter Road. Asked what other information is now needed. Steinauer — Stated he is not clear on the end plugs: what they look like and how they work. Believes waivers to work on the beach will be necessary. Discussion about the end plugs. A request to break out the difference between the sand used for mitigation and that for covering the tubes. Burnham — In the applicant's opinion, the 22 cy /If addresses both issues. Oktay — Wants to see any Department of Environmental Protection (DEP) comments before deliberation begins. Steven Cohen, Reade, Gullicksen, Hanley, Gifford & Cohen LLP, SBPF — All the issues are in front of the commission. No concerns or issues have been raised that can't be addressed by a finding or condition of this board. Encouraged the commission to act expeditiously. D. Anne Atherton, 48 Squam Road — Read in submitted information that the recommendation of the Town was to develop a 24 -how emergency plan to provide access in the event of a catastrophic failure. Asked if that plan was in place. Buzamoski — It is before the BOS this evening for their review. Stated that the Manager of Emergency Operations and she will out there during and after storms. When the bluff gets within 25 feet, they will issue a road closure. John DeAngelis, 109 Baxter Road — Explained a great personal hardship should the road be closed. Steinauer — Stated the belief that there is no longer a lot of new information coming in. Buzanoski — Asked if the corunission might have a discussion on the order of conditions now. 5- minute recess Commissioners Okmy — Stated there seems to be a Catch 22 between state regulations and local bylaws. Stated she does discussion not agree with the interpretation that this falls under a limited project for road maintenance. Would like to analyze whether or not there are reasonable alternatives. Said she does not believe the adverse impacts have been adequately mitigated for. Glowacki — Thinks that is the way to approach it. Earlier on there were allegations of the commission being the victim of biased legal counsel. Thinks the commission needs to give that thought and come to a decision as to whether or not that is the case. Asked any commissioner who feels the commission should have other legal advice to speak up. Oktay — Says she feels Mr. Pucci has not been biased; but reiterated her opinion that it is very important to hear from the DEP. Steinauer — Pointed out that the commission has heard many opinions from all sides of the argument. Coastal Beaches Performance Standards 7 & 8 for land under the ocean apply. Only Coastal Bank Performance Standards protect public infrastructure. Discussion about possible reasonable alternatives: fiber bags of coin or jute. An advantage is that those bags shed sand and slow impact of the storm on the bank the negative side of using fiber bags is that they can be easily damaged and lost. The geo -mbes don't necessarily stop erosion and in the face of huge waves days on end can also fail. Golding — Pointed out that the emphasis on this has been that it is temporary and can be removed. Staff— Pointed out that in the discussion of what is reasonable or not, the commission needs to discuss the ability to maintain the structure. Karberg — Stated that the 22cy /If of sand in front of ajute bag is going to be taken away at the same rate it would be for a geo-textile bag. With the geo -robes, after the sand is gone, the waves are hitting up against a hard wall and that will cause environmental impacts over 3 to 5 years. Golding — Questioned if over the life -span, will the commission get enough hard data from the project to make it worthwhile. Discussion about what would have to happen at the end of the permit life to make the project temporary: an escrow account, conditions, enforcement order. Johnson — If something is installed to slow the erosion in order to move the road than go to remove it, we're back to an eroding bluff. Whatever is installed would be long term to keep slowing the process. Feels it is an incredible exercise to install the geo -tubes then removed them for something that is temporary. Page 5 of 6 Minutes for November 20 2013 adooted Mav 28, 2014 Commissioners Discussion about how to ensure the project does not become permanent: condition which sets a removal discussion continued date and the Town licensing agreement. The Coastal Bank Performance Standards for land under the ocean deals adverse impact of a structure on wildlife, erosion control, marine fisheries, shellfish beds, storm- damage prevention, flood control, recreation, and aquatic vegetation. Glowacki — Ask if the question about reasonable alternatives has been resolved. Staff— That issue would be tied to the waiver request and will be under the performance standards for both coastal banks and coastal beaches. Sleinauer — Going back to the revetment submission: rocks dissipate energy but these smooth hard surfaces don't. That raises the concern about the loss of the beach and end scour. Golding — The principal difference is this is a temporary structure and there might not be any major storms in the lifetime of this structure. Oktay — Removing a structure can cause irreparable damage. Golding — Expressed the opinion that the applicant has provided adequate mitigation planning for a short- term, temporary project. Discussion about what would happen to the bluff should for some reason end scour not occur and whether or not the discussion is being based upon the supposition that end scour will occur. Glowacki — Would like to resolve the issue at this meeting of whether or not there is a reasonable alternative. Feels that should be resolved to figure out whether or not the commission should move forward on this. Staff DEP still has the project under review; all they have issued at this point is the file number. There has been no guarantee that they will issue comments. This project area is not within the bounds of Massachusetts Natural Heritage. Through the discussion on standards, the commission is able to choose to discuss the habitats of the down -drift beaches performance are a relative resource area. Whether or not the hearing is closed does not preclude the commission from having deliberations against the performance standards and possible creation of conditions. If the hearing is closed, the commission is done taking information to include DEP comments; however, the DEP is able to issue a superseding order of conditions. It is better to have the comments before closing the hearing. Stated that all the required information is in place to decide if the project meets all the substantive concerns. Motion Motion that the commission finds there is no reasonable alternative to the project that is proposed. (made by: Glowacki) (seconded by: Bennett) Roll -call vote Not Carried 3 -4 Glowacki -aye, Bennett-aye, Golding -aye, Karberg -nay, Oktay -nay, Johnson -nay, Steinauer -nay Next hearing Bursnoski — Given that decision, asked to keep the hearing open to allow time to come up with date something the commission feels more appropriate. Discussion about meeting December 4 and allowing the applicant to get the material in on December 2. Continued without objection to December 4. III. PUBLIC MEETING A. Orders of Conditions (If the public hearing is closed — For discussion and/or issuance 1. Town of NanmcketPSconset Beach Preservation Fund (SBPF) — 85 -107A Baxter Road Area SF48 -2010 front.) 2. Discussion of other closed notice of intent public hearings. B. Other Business 1. Reports: None 2. Commissioners Comment: Steinauer — Told the commissioners thank you for putting in the extra time. 3. Administrator /Staff Reports/Enforcements: None Motion to Adjourn: 7:04 P.M. Submitted by: Terry L. Norton Page 6 of 6