HomeMy WebLinkAbout2013-11-27*Matter has not been heard
PUBLIC MEETING
A. Public Comment —None
II. PUBLIC HEARING
A. Emergency Certification
L "Sconset Beach Preservation Fund — Baxter Road Area SE48 -2581
Sitting Steinauer, Oktay, Karberg, Bennett, Golding, Glowacki
Recused None
Documentation Supporting documents and plans. PowerPoint® presentation.
Staff An Emergency request that requires action within 24 hours. The commission can chose to not take action
in which cast it will be passed up to DER Under the local by -law the commission is required to take
action. Reviewed pertinent regulations and by -laws. An emergency situation does not require 48 hours
notification. An emergency certification requires that all other permits be obtained before work begins.
Applicant Steven Cohen, Reade, Gullicksen, Hanley, Gifford & Cohen LLP — Presentation is in four parts: agency
Representatives & project area, project design, The application of the regulations and Performance Standards. Emergency
certification is authorized under CMR 10.6 and Town Code 136.5. The target to protect 12 pre -1978
houses along the bluff side of Baxter Road as well as adjacent infrastructure. Average long -term erosion
rate is 4.6 per year; the worst spots have been about 30 feet per year. Reviewed increase erosion rates over
the past year and proximity of houses and road from the bluff top. Expressed concern that due to present
storm conditions, those areas could experience damaging erosion on this day. Length is about 900 linear
feet long from 91 to 105 Baxter Road. Reviewed the project: 4 geo -tubes about 20 feet long stepped
vertically and covered with sand. Explained how end scour would be addressed. Sand mitigation would
be 14.3 cubic yards per linear foot (CY/LF) per year placed after storm events. Explained installation and
removal; his clients willing to establish an escrow to pay for removal in event of failure.
Jamie Feeley, Construction Manager Cottage and Castle Inc
Josh Posner, 77 Baxter Road, Chairman'Sconset Beach Preservation Fond
Bryan Jones, Ocean and Coastal Consultants
Michael Bruno, PhD, PE Dean, Stevens Institute of Technology
Les Smith, Coastal Geologist Epsilon Associates Inc
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Minutes for November 27 2013, adopted May 28 2014
CONSERVATION COMMISSION
SPECIAL HEARING
2 Bathing Beach Road
Nantucket, Massachusetts 02554
www. nantucket -ma. eov
Wednesday, November 27, 2013 3:00 P.M.
Nantucket High School Cafeteria, 10 Surfside Road
Commissioners:
Ernie Steinauer (Chair), Sarah Oktay (Vice- chair), Jennifer Karberg, Andrew Bennett,
ban Golding, Michael Glowacki, Leslie Johnson
Called to order at 3:00 p.m.
Stuff in attendance:
Jeff Carlson, Natural Resources Coordinator, Terry Norton, Town Minutes Taker
Attending Members:
Swimmer, Oktay (remote participation), Karberg, Bennett, Golding, Glowacki
Absent Members:
Johnson
Late Arrivals:
None
Earlier Departure:
None
Town Counsel:
George Pucci, Kopelman and Paige P.C.
Agenda adopted by unanimous consent
Chair — Speakers asked to keep then presentation brief, to the point and address only issues within the Conservation Commission
purview.
*Matter has not been heard
PUBLIC MEETING
A. Public Comment —None
II. PUBLIC HEARING
A. Emergency Certification
L "Sconset Beach Preservation Fund — Baxter Road Area SE48 -2581
Sitting Steinauer, Oktay, Karberg, Bennett, Golding, Glowacki
Recused None
Documentation Supporting documents and plans. PowerPoint® presentation.
Staff An Emergency request that requires action within 24 hours. The commission can chose to not take action
in which cast it will be passed up to DER Under the local by -law the commission is required to take
action. Reviewed pertinent regulations and by -laws. An emergency situation does not require 48 hours
notification. An emergency certification requires that all other permits be obtained before work begins.
Applicant Steven Cohen, Reade, Gullicksen, Hanley, Gifford & Cohen LLP — Presentation is in four parts: agency
Representatives & project area, project design, The application of the regulations and Performance Standards. Emergency
certification is authorized under CMR 10.6 and Town Code 136.5. The target to protect 12 pre -1978
houses along the bluff side of Baxter Road as well as adjacent infrastructure. Average long -term erosion
rate is 4.6 per year; the worst spots have been about 30 feet per year. Reviewed increase erosion rates over
the past year and proximity of houses and road from the bluff top. Expressed concern that due to present
storm conditions, those areas could experience damaging erosion on this day. Length is about 900 linear
feet long from 91 to 105 Baxter Road. Reviewed the project: 4 geo -tubes about 20 feet long stepped
vertically and covered with sand. Explained how end scour would be addressed. Sand mitigation would
be 14.3 cubic yards per linear foot (CY/LF) per year placed after storm events. Explained installation and
removal; his clients willing to establish an escrow to pay for removal in event of failure.
Jamie Feeley, Construction Manager Cottage and Castle Inc
Josh Posner, 77 Baxter Road, Chairman'Sconset Beach Preservation Fond
Bryan Jones, Ocean and Coastal Consultants
Michael Bruno, PhD, PE Dean, Stevens Institute of Technology
Les Smith, Coastal Geologist Epsilon Associates Inc
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Pagel of 4
Minutes for November 27. 2013, adopted May 28 2014
Discussion Steinauer — Asked Mr. Cohen to explain any differences between this project and the project proposed by
the Town for temporary protection of Baxter Road to allow for relocation of utilities and the road.
Cohen — Installation and design are the same; this project is shorter and mitigation is proposed at 14.3
CY /LF.
Golding — Asked if this is a temporary or permanent structure.
Cohen — Permanent; one wouldn't apply for a `temporary emergency."
Staff— Under state and local regulations, an emergency certification can be allowed only to abate an
emergency situation. Work above and beyond abating an immediate emergency is not allowed. It is more
appropriate to condition a normal NOL
Golding — The road within 29 feet in one place seems to be the one place where there is an emergency;
does not consider 65 feet from the bluff to be an emergency.
Steinauer — This is to not a Town project to protect Baxter Road but to protect the homes along the bluff.
It is not realistic to think the bluff will stop eroding.
Golding— Referred to Town administrative procedures 2.3.
Steinauer— Pointed out that the vote on the joint project, made November 21 was in regards to whether
or not there were reasonable alternatives, which resulted in a vote of 4 -3 supporting the idea that there are
reasonable alternatives.
Staff— Cited 136.5A which carries forward into the Wetlands Protection Act: the board needs to
determine why this project is necessary for the protection of public health and safety, which governmental
agency has ordered this done and which governmental agency will be doing the work.
Golding— Questions if'Sconset Beach Preservation Fund has any standing as there is no government
agency involved in the process.
Staff— Reminded the board they are obligated to take action, which could include the decision that the
application does not meet the emergency criteria Stated the opinion that to take no action is not an ideal
move for the board. Referred to Chapter 130 §40 Nr 26. Reviewed examples where a government agency
orders work to be done to protect public health and/or public safety.
Cohen — Stated that the Board of Selectmen (BOS) has adopted an Emergency Management Plan (EMP)
that would require closing a right of way within 25 feet of an eroding bluff.
Staff— The BOS also voted to allow the Department of Public Works (DPW) to file an emergency
certification request the first week in December for Baxter Road.
Oktay — Asked a question about the Town versus a private jurisdiction (difficult to understand).
Staff— Under the regulations, governmental agencies have an advantage in gaining emergency
certification. A private citizen needs an order from a governmental agency to do the work.
Cohen — Referred back to the recently adopted EMP.
Golding— Was out there at 10:30 a.m. with high tide having been at 6:30 and the wind from the SSE; he
observed the angle of repose at 99 Baxter Road. In his experience, 20 feet would have to be lost at the
base before the top of the bluff to slump. Stated he walked the bluff and there is no indication of any
slump that presages an actual collapse.
Cohen — Said that based on information from the Haley and Aldridge engineers. Any project that allows
the toe to be exposed will not work and will result in a catastrophic loss.
Golding — Stated he did not feel his point was recognized that in his opinion 20 feet at the toe would have
to be loss. That would require a 3- or 4-day Nor'easter.
Cohen — That type of storm is predictably coming; therefore there is imminent danger.
Staff — Reminded the board they are viewing the merits of this application. Another important point is to
determine whether or not this project is the proper amount of work to abate the emergency.
Glowacki — Going back to the issue of a governmental agency requiring the work, asked how much
further they can proceed before resolving that question.
Steinauer — Asked if a private entity can come in with an emergency certification request without
outlining which government agency ordered the work and can they circumvent that requirement.
Staff —No, it is a requirement to have all the applicable standards filled.
Cohen — Contends that his clients are not skipping steps and reiterated that the BOS has taken steps in
regards to protecting Baxter Road.
Discussion about whether or not this application is complete in regards to that governmental agency
requirement.
(unidentified speaker) — Stated that he agrees with Mr. Glowacki; the applicant has not proven their
ability to be before the ConCom: they have shown no agency in the town that has ordered the work to be
done.
Page 2 of 4
Minutes for November 27 2013 adopted May 28 2014
Discussion James Walker, 104 Baxter Road — Read criteria detailed in a document from Malone and MacBroom for
continued closing Baxter Road; based upon those criteria, stated the opinion that this is an emergency situation.
Pointed out that the Town is a co- applicant on a project to provide protection.
Staff— Reiterated that no government agency has ordered this project to be done.
Discussion about whether or not the criteria outlined in 136.5A for an emergency situation has been met.
Bob DeCosta, Board of Selectmen — On the issue of whether or not an emergency exists, the BOS has
voted to allow the DPW to put forth its own emergency certification request and the Town is taking steps
to begin takings to allow for Baxter Road to be moved. That indicates that clearly an emergency exists.
Steinauer— It would be much cleaner, given the language in 136.5A, to go with the Town's proposal.
This project does not fit the definition of an emergency situation.
Staff— The board can only evaluate is before them at this time. Pointed out that the application doesn't fit
the first criteria. Recommended that if action is taken based upon that, the board should comment on the
other requirements.
Dirk Roggeveeq Quidnet/Squam Association — Asked that Mr. Cohen be allowed to address the last two
points of his presentation.
Rick Atherton, Board of Selectmen — Confirmed the pending application from DPW.
Feeley — Read 136.5A; suggested in his opinion that if the word "project" with the word "abatement" it
fits the emergency criteria.
Cohen — Continued initial presentation: Reviewed when the Wetlands Protection Act and the local by-
laws allow for a coastal structure. Reviewed how this project meets the performance standards.
Staff— The purpose of filing a NOI is to have a discussion about the performance standards. Right now
this project is being looked at to take preventative or abatement action to end an emergency. One of the
standards that must be set is whether or not the proposed project is the correct amount of work to abate
the emergency.
Oktay — Asked to make a motion to establish whether or not this project as designed is appropriate for an
emergency abatement.
Steinauer -1) what agency ordered this action, 2) what agency declared and emergency, and 3) what
agency will carry this action out; none of these have been met. Need to go through the rest of the
questions to make a complete decision.
Staff— This board should develop a finding whether or not the project is adequate or over designed to
abate the emergency to include in the decision.
Roggeveen — Emergency certification allows an applicant to short cut the process to avoid the notification
process. Also, the application is incomplete in that the government agency requiring the work has not
been noted on the form. Protecting private dwellings is not a public health and safety emergency. Feels
the commission has sufficient grounds to deny the project.
DeCosta — The road is 29 feet from the bluff; when it hits 25 feet, the road cannot be used. It is necessary
to provide for an emergency and mitigate for it. If ConCom doesn't declare this an emergency, the road is
going to fail. The BOS was not given the option to vote on whether or not to support this project.
(unidentified speaker) — Agrees that there is an emergency in a portion of the road; but stated she does not
understand why this board has the ability to side step notification on an application.
Feeley — The effort is to get the permits in place to start construction before it is too late.
Bruce Perry, Third -party Consultant Conservation Commission — Pointed out that the commission has
issued emergency certifications for private property before.
Kara Bunnoski, Director DPW — Stated that in a discussion with the Department for Environmental
Protection, it was pointed out that the pre -1978 houses have more standing for protection than the road.
Reminded that this is for protection of the houses and the DPW application will be for the road; two
different issues.
Oktay —Asked if the board is ready to make a decision.
Emily MacKinnon, Nantucket Land Council — There is a distinction between this and the DPW project.
Cited the regulations and local statutes about going forward with discussions on a project for which there
is a NOL
Motion Motion to Close. (made by: Bennett) (seconded by: Kmberg)
Voice vote Carried unanimously
Glowacki aye, Bennett aye, Golding aye, Karberg aye, Oktay aye, Steinauer aye.
Page 3 of 4
Minutes for November 27. 2013. adorned Mav 28. 2014
III. PUBLIC MEETING
A. Emergency Certification
1. - Sconset Beach Preservation Fund — Baxter Road Area SE48 -2581
Sitting Steinauer, Oktay, Karberg, Bennett, Golding, Glowacki
Discussion Glowacki — Stated that based upon the action the BOS has taken, local government believes an
emergency exists. What is compelling is the idea of the reasonable alternative; if the alternative fails, it
doesn't abate the emergency. He would be comfortable approving this.
Golding — The Town's application is separate from'Sconset Beach Preservation Fund and only goes
to 105 Baxter Road. This still covers 6 empty lots and extends much farther than it should to protect
the 2 houses.
Karberg — To her the question is whether or not the houses qualify as a public health issue or if that
just pertains to road access for emergency vehicles.
Bennett — There is nothing to say those houses could not get approved for simple protection under a
normal application. The emergency situation is at fault here. Suggest a change to the application.
Steinauer — The house should be protected through a regular NOI. There are two NOls still open
before ConCom for which it has not been decided whether or not there are adverse impacts.
Karberg — Stated she does not want o go forward with this application when there was a sense of the
board that reasonable alternatives do exist. There is a chance that under the NOI, this structure would
not get approved and have to be pulled out in the future.
Oktay — Don't feel this is the appropriate way to accomplish this protection.
Glowacki — Expressed concern that thejute or coir construction would fail at the critical time. Would
like to discuss what is a reasonable alternative.
Steinauer— Pointed that discussion was about a temporary structure to allow time to move Baxter
Road and the utilities not protecting houses in perpetuity.
Staff— That is part of a discussion on an active application. The board needs to focus on whether or
not this qualifies for emergency certification.
Bennett — Propose the board think of a revised plan that would comply.
Golding — In his opinion this far exceeds other plans, which are con, the board has approved to slow
erosion. That begs the philosophical debate about what is adequate protection.
Bennett — Asked if the whole shown area is in an emergency situation. This seems in cover more road
than homes.
Staff— Reminded the board they need to decide whether or not the project meets the standards for
emergency certification.
Golding — It seems clear, as of today, under section 135.6A, this can't move forward.
Karberg — Agrees. As far as abating the emergency, it is more extensive than necessary.
Steinauer — Feels that if the transects show there is damage to abutters and down -drift beaches, part of
the emergency would be to fix that as well. (Staff: that is part of the NOI discussion.)
Bennett — Questions an emergency in the case of houses on the other side of the road. Asked if he
could propose a revision that extends only from 99 to 105 Baxter Road.
Oktay — If this is denied; the applicant can come back in 48 hours with another plan.
Steinauer — The next questions are: what is the emergency, how long does that emergency last and is
this structure over designed.
Staff Restated the standards the application must meet to receive Emergency Certification. There are homes
in imminent danger; however, the board must decide whether or not the application meets the criteria
for emergency certification. Changes in the design would come up during the NOI process. All work
must be completed within 30 days; that does not include monitoring or nourishment A motion should
encapsulate findings as to whether or does or does not meet the requirements.
Motion Motion to Deny on the basis that it does not meet the three standards required under emergency
certification. (made by: Oktay) (seconded by: Karberg)
Voice vote Carried 5 -1
Glowacki no, Bennett aye, Golding aye, Karberg aye, Oktay aye, Steinauer aye.
B. Other Business
I. Reports: None
2. Commissioners Comment: None
3. Administrator /Staff Reports/Enforcements: None
Motion to Adjourn: 5:33 p.m.
Submitted by:
Terry L. Norton
Pam, 4 of 4