HomeMy WebLinkAbout2015-9-10Minutes for September 10 2015 adopted Oct. 21
CONSERVATION COMMISSION
SPECIAL HEARING
2 Bathing Beach Road
Nantucket, Massachusetts 02554
www.nantucket - ma.gov
Wednesday, September 10, 2015 5:00 P.M. ^ r r
4 Fairgrounds Road, Training Room D
Commissioners: Ernie Steinauer (Chair), Andrew Bennett, Ashley Erisman, David LaFleur
Ben Champoux, Ian Golding, Joe Topham ?�j ?�' N' 11 2 i c
! 3 C�
Called to order at 5:00 p.m. , T r-
Staff - rr ( i
Staff in attendance: Jeff Carlson, Natural Resources Coordinator, Terry Norton, Town Minutes Taker
Attending Members: Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Absent Members: None
Late Arrivals: None
Earlier Departure: None
Agenda adopted by unanimous consent
*Matter has not been heard
I. PUBLIC MEETING
A. Public Comment — None
II. PUBLIC HEARING
A. Notice of Intent
I . *Sconset Beach Preservation Fund — 87 -105 Baxter Road (43 -21, 22, 19,18,17; & 49 -8) SE48 -2824
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Documentation Supporting documents and plans. PowerPoint@ presentation.
Town Counsel George Pucci, Kopelman & Paige, LLP
Applicant Steven Cohen, Cohen & Cohen Law PC
Representatives Josh Posner, 77 Baxter Road, Chairman'Sconset Beach Preservation Fund
Marie Hartnett, Geologist Epsilon Associates Inc
Public D. Anne Atherton, 48 Squam Road
Dirk Roggeveen, Quidnet /Squam Association (QSA)
Emily MacKinnon, Nantucket Land Council (NCL)
Jose Trillos, 8 Parson Lane
Karen Werner, , 8 Hoicks Hollow Road
Rick Atherton, Board of Selectmen
Discussion Cohen — Reviewed appeal status of prior applications. This hearing is to decide whether or not to approve a
compromise put together by the working group. They have provided responses to some questions raised at
the September 2, 2015 hearing; those are in the packet. Feels the board has all the information it needs to
make a decision. Reviewed the proposed compromise. Technical only change in the packet is the velocity
dissipater added to the drainage pipe that slows the flow of water. The program being requested is the same
as originally presented: maintain existing 3 geo- tubes, add a 4d, tier geo -tube in certain locations, add returns,
and vegetation above the returns. The preferred result would be the ConCom permit would track the
superseding order of conditions with some additional features, functions, and conditions; the superseding
order would stay in place with this piggy- backed onto it. His clients feel this is a good and robust way to get
through the next few years as well as it will provide substantial data to the commission.
Erisman — Asked which plan the Department of Environmental Protection (DEP) had before them when
they wrote the superseding order.
Staff — They had the plan of record SE48 -2610, which contained the actual stamped plan of the as -built of the
3- geo -tube system, and a design set from Ocean & Coastal Consultants showing the 3- tiered system with the
proposed 41' tier and the returns.
Erisman — Wonders if DEP saw the 2nd set of returns for the 4d' tier going onto the neighboring vacant
properties.
Cohen — At that time, we were asking for 4 tiers with returns on each tier.
Roggeveen — Submitted memo at the table. This is not a temporary 3 -year test program; nowhere does DEP
call it a 3 -year test program. DEP issued a permit that allowed a temporary geo -tube installation to abate an
emergency while the road access is being relocated. Also DEP allowed installation of a coastal engineering
structure to protect what they thought are pre -1978 buildings. Mr. Cohen has said that in two years his clients
plan to apply for a more extensive revetment project. It is important that this commission keep track of which
lots require what and not issue a permit which in the future could be used to protect empty lots. Also it is
important for this commission not piggy -back onto the DEP document; this commission needs to include
explicit statements which can be enforced independently of the DEP order.
Page 1 of 5
Minutes for September 10 2015, adopted Oct. 21
Item Nr. 2 in the memo is an important issue quoted out of the DEP order. The Town is working to get
easements for an alternative access for Baxter Road should in the future the road need to move; DEP says the
structure is permitted so long as the Town is working to get alternative access and should come out in 3 years
or 6 years if good faith is shown in working toward relocating the road. DEP provided temporary permits to
protect the roadways; the 3 lots with pre -1978 structures can apply for more permanent structures. An SBPF
letter in the record dated 9 -8 -15 explains that in 2005 all structures were removed from 99 Baxter Road and not
until 2010, the shed purported to be a pre -1978 structure was moved onto the lot; now it deserves protection.
Also, he doesn't believe the 41' tier is necessary; looking at the mathematics, the three -tier height is sufficient.
The waves have never been that high. If the 4a' tier is allowed, it should only be on lots with qualifying pre -
1978 structures.
In terms of writing the order, asked the board to consider a performance standard that requires a beach in front
of the structure, and his clients believes'Sconset Beach Preservation Fund should prove any beach loss to
down or up -drift beaches is not a result of the structure.
McKinnon — Asked the commission to review state regulations about qualifying pre -1978 structures, which is
different than local regulations.
Worked with NCL consultants reviewing the superseding order and developed a list of possible special
conditions. Submitted that list at the table.
NCL also questions whether or not the 41` tier is necessary; she doesn't believe DEP envisioned an extension
of the 46 tube onto adjacent properties; the returns should be included on the properties that qualify for the 4a'
tube.
Trillos — The main question about his project is the nourishment providing sand for many years to come. Last
week it was stated there is enough sand on the island to last 20 years after which it would be shipped in.
Suggested letting the project remain as is for 3 years with no nourishment to ascertain the amount of damage
caused.
D. Atherton — Letter submitted at the table from Robert Young, PhD, a coastal geologist; he lists some
conditions he believes should be included in the order of conditions; reviewed those conditions.
Nantucket Coastal Conservancy Coordinating Team letter submitted at the table; touched on its key points:
engaging an independent consultant to monitor the project and oversee enforcement, reliable and objective
data, place burden of proof on the applicant, establishment of concise failure criteria as well as success criteria,
monitor and compare against a nearby soft structure, provide a dry beach seaward of the geo- tubes, and require
financial guarantees to fund mitigation and maintenance throughout the period of the permit. Also, they believe
the information brought up by Mr. Golding of whether or not the structures meet the qualifications for pre -
1978 structures is an important technical matter. In all NOIs, the signature of the property owner should
appear on the form; on this NOI there is a notion "per MOU (memorandum of understanding) dated July
2013." The signature of the property owner should appear on the NOI, not reference just a MOU; this is an
appealable legal matter.
In regards to the gully in front of a vacant lot, referenced an historic photo that shows gullies are natural
formations occurring on the bluff; they question why it is being filled in and walled off it is natural; filling in
and walling the gully should be a separate NOI.
This NOI shouldn't be used to extend the existing structure onto adjacent properties. Alternate access for the
north end of Baxter Road is critical and included as a special condition in the superseding order; asked who
would monitor that condition. The 4t' geo -tube seems unnecessary; if it is considered, asked the commission to
consider a sand -filled bag.
Cohen — There are two different legal standards at play: first, the emergency certification to mitigate a public
health and safety threat; second, protecting pre -1978 structures (cited the 1997 Charles Warner case as a
supporting protecting moved pre -1978 structures).
The reason a soft structure won't work is because those bags are designed to fail in a big storm and when the
bags break there would be no new sand applied to the template for six to eight weeks because that's how long
it takes to fix the bags. The geo -tubes are designed to prevent massive slumping due to erosion at the toe; the
beach grass is for protection against erosion.
Encourages the board to come up with robust monitoring conditions. They can bring the tubes in to keep the
returns within the boundaries of the qualified properties.
Erisman — The Office of Coastal Management (OCM) recommends jute as a solution to protecting banks. she
is concerned about the belief that soft structures are designed to fail when in fact is designed to reflect nature.
Cohen — The problem here is the extreme marine environment and what happens if the bags break open.
OCM is also pushing beach nourishment; however here it would have an effect on the cobble and marine
fishery.
Steinauer — Asked about the town not signing off on the NOI
Pucci — He agrees with Ms Atherton; that is not a proper signoff. Believes that it was ministerial action.
Steinauer — If this board states the applicant must have the burden of proof, asked if that would be binding.
Pucci — In terms of some conditions mentioned and assuming a positive order, much discussion of the
settlement work group the severity of stringent conditions that would 'Sconset Beach Preservation Fund
accept; an example is the maintenance of a dry beach as a condition.
Page 2of5
Minutes for September 10 2015, adopted Oct. 21
The issue of burden of proof is an interesting concept and something worth looking into; if it is a legal
condition, he will provide language
Cohen — Believes that would be the wrong application of burden of proof in regards to causation of damages.
The ConCom is the ultimate authority in deciding the cause of damages.
Pucci — The condition as he heard it proposed is not that ConCom would serve as a court but more a matter
of compliance with conditions.
Steinauer — Asked where the Town stands in regards to liability.
Pucci — There is no liability for the Town through the permitting board or the permitting board; here is the
unique position of Town -owned land included in the project they could be sued as a property owner for
causing a nuisance or damage to property. The license contains an indemnification clause where'Sconset Beach
Preservation Fund covers the Town for any liability.
Roggeveen — 'Sconset Beach Preservation Fund is a corporation with no assets; if there were catastrophic
damage suit, 'Sconset Beach Preservation Fund would just disappear. His client is concerned about financial
resources being set aside for damages. They ask the commission to look for some financial security. The people
who live on the bluff now won't be there forever and the structure will be.
Werner — Everything she's read about hard armoring says it affects up and down drift. All of Nantucket will be
affected. Not in favor of hard armoring; just because it's legal doesn't mean it's right.
Cohen — Asked the chair to close the public hearing.
Steinauer — Asked if the NOI needs a Town signature on it before it closes.
Staff — Mr. Pucci says no.
Bennett — Asked if Mr. Roggeveen recalled the 1997 Charles Warner case on Sheep Pond Road.
Roggeveen — Mr. Warner had a property with an eroding beach; his application for sand bags was denied and
DEP overrode that decision. He ended up moving the house back on the same property. The emergency
certification process at the time was only a provision of State law. The provision now in the bylaw, which
creates an emergency certification requirement of the local bylaw, resulted from that case.
Pucci — They will provide a memorandum to the commission on how the DEP interprets the decision on the
case. Reviewed the circumstances of the case.
Golding — Asked if the Warner house had be altered more than 20 %.
Pucci — He doesn't know about the 20% but it was altered; DEP considered that.
Roggeveen — In the Warner case it was 2 properties in joint ownership.
Further discussion about the 1997 Charles Warner case and the repercussion.
Cohen — Again asked to close the hearing.
Steinauer — Haven't talked about the new drainage system. Referenced the Town application on that system
and concerns raised during those hearings. He believes it should be a separate system; but since it is imbedded
in the tubes, suggested allowing them to install it but not hook it up until this board discusses it.
Cohen — Pointed out that the previous system was next to a wetland and this is not.
Golding — If the hearing is closed, haven't had time to read view items submitted at the table.
D. Atherton — Reiterated that the NOI has no signature; Town Meeting decided that public property on the
eastern end of the island would not be used for erosion control structures except in the case of an emergency.
Questions if the Town Manager can sign the NOI; the people of Nantucket are the owners of the property and
their representatives are the Board of Selectmen (BOS).
Discussion about whose signature must be on the NOI application.
Pucci — The signature isn't grounds for not closing the hearing.
Staff Read the definitions in the bylaws resulting from the 1997 Charles Warner case.
If this board closes tonight, it has 21 days to issue the Orders of Conditions; this provides time to review
information submitted at the table and discussed at this hearing.
Motion Motion to Close. (made by: LaFleur) (seconded by: Champoux)
Vote Carried unanimously
Page 3 of 5
Minutes for September 10, 2015, adopted Oct. 21
III. PUBLIC MEETING
A. Orders of Conditions
1. *SBPF — 87 -105 Baxter Road (48- 21,22,19,18,17; 49 -8) SE48 -2824
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Staff We have 21 days to issue an order. A draft negative order would look similar to the original negative
order.
He will to put together a draft positive order for review at the next meeting. If necessary, there is time for
another special meeting.
Discussion (6:39) Golding — We are looking to Town Counsel for rulings on the Pre -1978 structures and findings on the
vacant lots.
Pucci — This is a unique case with conditions that have been suggested by people opposed to the project.
This board might want to consider having the draft positive order and posting for the public to review
before deliberation.
Steinauer — This structure will remain a substantial amount of time; even if it is denied, it will go through
the appeal processes.
Pucci — That's a reason why settlement negotiations were entered into. This board is not getting any data
on the structure at present.
Steinauer — He got the feeling that the majority of the BOS is not eager to go to court again on this then
the revetment.
Bennett — Concurs.
Erisman — Political pressure should not sway ConCom decisions.
Champoux — If we draft a positive order, it allows us to monitor it and provides empirical data of what
really happens on the ground as well as providing information for a case with DEP.
Golding — Provided that language, as provided by Town Counsel, protects our interests.
Steinauer — There is nothing in the regulations that state an experimental project is exempt from
anything. This is a unique site. From the beginning we talked about collecting data to see what it actually
does. Noted that this is not actually designed as a research project; that makes the data less than pristine.
Golding — It can be conditioned so that it becomes research project.
Erisman — Asked if this board can permitted with returns on just the three tubes, not the 4d, tube.
Staff — That requires justifications and findings as to why the 41h tube isn't permissible.
Golding — Would also like findings against a 41' tube; he believes it's unnecessary. Stated he lived on that
bluff 40 years and he never saw waves that high.
Steinauer — Noted that the 22 cubic yards (CY) per linear foot is not there to protect the geo- tubes; it is
mitigation sand or loss from the bank. If it's on top of the 41h tube, it will take only the very biggest waves
and storms.
Golding — Depending upon what Town Counsel finds, he believes DEP's decision about protecting the
pre -1978 houses was flawed.
Erisman — Stated that she believes there are reasonable alternatives to the 4th tube.
Golding — Read DEP Provision 14 about placement of mitigation sand; asked what would stop 'Sconset
Beach Preservation Fund from putting a ton of sand at both ends of the structure on the grounds they
don't have adequate storage area on the tubes.
Staff — That was discussed earlier to include language from the SFC and improving upon it. This board
could condition that to define how that criteria is met. Things like that will have to be interactive with this
board at all times; decisions they make about how the sand is placed and what it will look like will have to
be vetted through the commission.
Steinauer — Noted that if 22 CY are put on this year and it doesn't move into the system; 22 CY is added
next year and it piles up on the beach. Likes the idea of success criteria.
Discussion about what might constitute success criteria.
B. Certificate of Compliance (7:00)
1. *Price — 35 Baxter Road (49.2.3 -6) SE48 -2708
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Staff New foundation, no grading changes were done. Recommend this be issued with no on -going conditions.
Discussion None
Motion Motion to Issue as recommended. (made by: Bennett) (seconded by: Champoux)
Vote Carried unanimously
2. *Nicholls- 37 Tennessee Avenue (59.4 -2450) SE48 -2758
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Staff Construction of a new Innovative - Alternative A septic. It has received its sign off from the Board of
Health. Recommend this be issued with the on -going Condition 20 requiring testing results and the
Operation and Maintenance Agreement to be filed with the Natural Resources Office.
Discussion None
Motion Motion to Issue as recommended. (made by: Golding) (seconded by: Bennett)
Vote Carried unanimously
Page 4 of 5
Minutes for September 10, 2015, adopted Oct. 21
C. Orders of Conditions continued
2. *Hoffman —15 Sherburne Turnpike (30 -34) SE48 -2819
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Staff For a landscaping project. Condition 20 requests installation of sensors for irrigation within the 100 -foot
buffer; Condition 21 states leaf compost is the only compost permitted. There are a couple of normal
condition about invasive species. A new condition requires only licensed fertilizer used within the
ConCom jurisdiction shall be applied by licensed fertilizer applicators only and a copy of the license shall
be provided to the commission prior to fertilizer use and supply a report of the type and amount and use
shall be compliance with the best management practices; suggested adopting this as a standard condition.
Will add a condition about irrigation only outside the 50 -foot buffer; they can ask for an amendment or
modification if this isn't acceptable.
Discussion (7:04) Golding — There had been discussion about the irrigation only outside the 50 -foot buffer; that should
that be specified.
Motion Motion to Issue as amended. (made by: Golding) (seconded by: Erisman)
Vote Carried unanimously
3. *Bayliss — 52 Eel Point Road Lot 2 (35 -25) NAN -122
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Staff For construction of a 2nd dwelling and installation of well and part of a driveway. No waivers. Added
Finding 2, the isolated vegetated wetland is subject to local regulations. Added that other project
components included on the plan of record including the main dwelling, pool, tennis court, and septic are
located outside the ConCom area of jurisdiction.
Discussion (7:08) None
Motion Motion to Issue as drafted. (made by: Golding) (seconded by: Bennett)
Vote Carried unanimously
D. Extension of Orders of Conditions
1. * Squam Partners- 89 Squam Road (13 -3) SE48- 2530- Reissue
Sitting Steinauer, Bennett, Erisman, LaFleur, Champoux, Golding, Topham
Staff Was issued last week but they put the wrong deed information on it. This needs to be resign.
Discussion (7:09) None
Motion Motion to Re- Issue. (made by: Erisman) (seconded by: Champoux)
Vote Carried unanimously
E. Other Business
1. Approval of Minutes: None
2. Reports: None
3. Commissioners Comment:
a. Steinauer — Talked to Robert Williams, Pond Coalition; they will write up the protocol they are using for
phragmites and propose it as a standard hand -out order of conditions when spraying of phragmites is permitted.
b. Golding — Stated he would like to acknowledge Peter Boyce's ten years of volunteer work with the Natural
Resources Office.
4. Administrator /Staff Reports:
"CPC Letter" — Asked if the board wants to sign the letter as supporters for the Brant Point Hatchery project; he is asking
the CPC for $875,000 to finish the project off.
Motion to Support the renovation proposal for the Shellfish Propagation Facility to the CPC. (made by: LaFleur)
(seconded by: Bennett) Carried unanimously
Motion to Adjourn: 7:16 p.m.
Submitted by:
Terry L. Norton
Page 5 of 5