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Home My WebLink About2016-10-18o, r-i Town and County of Nantucket ROADS AND RIGHT OF WAY COMMITTEE S 16 A_� z c")o Meeting of 18 October 2016 Conference Room of 2 Fairgrounds Road FINAL AND APPROVED MINUTES 1. Call to Order, Approval of the Agenda, Approval of Minutes, and Public Comments. A. Chair Allen Reinhard called the meeting to order at 4:03 pm. In attendance were Nelsori.' (Snookie) Eldridge, Dave Fredericks, Leslie Forbes, Allen Reinhard, Lee Saperstein, John °' t� Stackpole, and Stephen Welch; there was a quorum at all times. KZ Absent were Nat Lowell and Bert Ryder. cn C7 n ZZ r� Guest: Judy Zurheide . r� 0 The agenda as distributed was accepted except, as reported below, that Stephen Welch askedTiat consideration of the Minutes be deferred until the end of the agenda. B. Public Comment. Judy Zurheide asked if we could do anything about vehicle incursions into her driveway caused by incorrect information on Google Maps. Her property has frontage on both South Shore Road and Folger Avenue, close to Blueberry Lane. She told the Committee that Google Maps sends people to her driveway instead of Blueberry Lane. She has used the option to send feedback to Google and has been told that it has been corrected. Nonetheless, cars continue to use her driveway as a public road. The Police and the Town Manager have said that the only solution is a gate. An appraiser even included her driveway as a way on a map. She asked if this is an issue bigger than just one location. Stephen Welch offered some suggestions; Allen Reinhard suggested that she put up a "Private Driveway" sign. It was agreed that it was a clear safety hazard if a large vehicle were to drive through a driveway at speed. The group consensus was that she speak to Mike Burns for reference to the Traffic Safety Committee. Dave Fredericks explained the complexity for an entity such as the power company to purchase up -to -date maps for an extensive fleet of vehicles; it is expensive. Thus, Google could have fixed their map but any individual user could still be using an obsolete map. C. Minutes. It was requested by Stephen Welch that approval of the minutes of the meeting of September 20, 2016, be considered at the end of the meeting. There was no objection to his request. 2. Access to Founders Burial Ground. Allen Reinhard explained that now, as the Nantucket Cottage Hospital is doing construction for its new buildings, he will continue to bring attention to the issue of access to the Historic Coloured Cemetery. The hospital is moving auxiliary buildings to clear space for construction of the main building and shortly the way to the entrance to the cemetery that goes around the hospital will be blocked. He reported that Kara Buzanoski, DPW, has said that she will have work done to improve the way to the Cemetery from Mill Hill Park; we will be able to enter the Cemetery at the same point as today but will approach it from the opposite direction. [Action: Continue to monitor access to the Historic Coloured Cemetery] 3. Update of Potential Takings List: Plan and process. This topic and item 5. "Prioritization of Projects List," were discussed together. With respect to the potential takings list, Lee Saperstein, Secretary, said that he will send the latest list to members; it is in an Excel spread -sheet format. He also suggested that we include this item in the agenda for a forthcoming meeting to which we could invite, as suggested by Dave Fredericks, Kara Buzanoski and Andrew Vorce. [Action: Distribute spread sheet and schedule discussion of the Takings List] 4. Encroachment at 18 Center Street `Sconset Allen Reinhard reported that he had received a complaint about an encroachment into Center Street, `Sconset, caused by a resident on Broadway extending landscaping at the back of the lot into Center Street. He said that the situation has existed for three years. Snookie Eldridge related that the landscaping includes large boulders and that a number of houses have encroachments along Broadway. They include 2, 10, 18, 20, 22, 24, and 26 Broadway; Stephen Welch added 8 Broadway. Allen Reinhard said that Kara Buzanoski, Director, DPW, is well aware of the Center Street problem. She has organized a survey of Center Street and found that the way has irregular boundaries that make it difficult to determine encroachments. John Stackpole suggested that the road could be taken by the County and then the County could organize uniformity. Stephen Welch reported that he had looked at the road just before the meeting. He was pleased to report that the boulders have been moved toward the house and, thus, reduced the encroachment. Allen Reinhard will contact the complainant to let him know what we have learned about cleaning up the encroachment. John Stackpole asked, for the future, should we have a standard format letter that we can initiate any time we have a complaint or learn of an encroachment. Stephen Welch volunteered to draft such a form for our review. He then said that he had anticipated this idea and distributed a draft for discussion at the next meeting (attached as Appendix 1). Allen Reinhard will speak with Kara Buzanoski to find out if she has procedures or routings that could be incorporated into the form. [Action: Schedule a discussion of the form at our next meeting; Allen Reinhard to discuss the form with Kara Buzanoski to get her ideas and refinements.] 5. Prioritization of Projects List. Allen Reinhard explained that, after last month's discussion, he has been looking at the existing list in light of priorities (below). He now has divided the list into three elements: underway, in need of advancement, and on hold. Stephen Welch said that this division has been helpful. Dave Fredericks asked about progress on rebuilding and repairing sidewalks. He has not seen progress nor any contracts. Stephen Welch also wanted to know about the sidewalk along Prospect Street and whether or not there is any opportunity for them to be extended from the end of the multi -use path to Upper Vestal Street. He said that this was a candidate for pressure from our committee. [Action: Return the Prospect Street sidewalk to the agenda.] Leslie Forbes asked about the East Creek Road viewing stand: what stands in the way of building it? Allen Reinhard reviewed designated funding sources: Community Preservation Committee Grant ($30K) and State money for waterfront access. Lee Saperstein asked who is the champion for building this? AR will follow up with Dave Fronzuto both about the champion and the State money. [Action: Allen Reinhard to meet with Dave Fronzuto; bring this item back to the Agenda] 6. Chapter 91 Update. Lee Saperstein reported that he and Leslie Forbes expect to meet with Jeff Carlson later this week. Leslie Forbes has met with Dave Fronzuto on filled tidal lands and has seen the overlay map for them. She will ask if Nathan Porter (GIS Coordinator for the Town) can incorporate this into the Geographic Information System, GIS, file. [Action: Leslie Forbes and Lee Saperstein to meet with Jeff Carlson and report back to the Committee.] Stephen Welch asked if there is any record of a Home -Rule Petition from Nantucket on Chapter 91. He quoted from the Chapter 91 statute, particularly 91 MGL 18, and suggested that there were gaps in our compliance with it. He felt that we should ask the Town for legal advice on this. Lee Saperstein said that conversation with Jeff Carlson revealed that the Town's inability to manage the program was frustrating and that we should ask for State delegation of responsibility for it. Subsequent discussion between Lee Saperstein and Stephen Welch over his question led to an exchange of a -mails (attached as Appendix 2) that expands his question. 7. Old, New or other business. Stephen Welch suggested that members of the committee should be designated as Special Municipal Employees to provide appropriate shelter under the State's Conflict of Interest rules as is the case for Capital Program Committee, Conservation Commission, Historic Commission and many other TON committee and commission members. He provided Allen Reinhard with a list of committees that are already so designated and Allen Reinhard has spoken to Erika Mooney about getting us listed. She said that she will put the request before the Board of Selectmen. Through the Town Manager, she is checking with Town Counsel about this designation. Leslie Forbes wants to examine potential down sides to such action before we move forward. Stephen Welch said that advisory committees, such as Roads and Right of Way, are as liable to conflicts of interest as administrative and adjudicatory ones such as the Board of Selectmen and Board of Health. [Action: Allen Reinhard will follow up on the need for Committee members to be designated as Special Municipal Employees.] The item on grading Clifford Street was initiated by a citizen's complaint about the state of the road's surface. Allen Reinhard will bring it up with Kara Buzanoski. Secretary's note: Clifford Street is part of the connection between Nonantum Avenue and the Boulevarde; it appears to be a private way. [Action: Allen Reinhard to transmit the concern on Clifford Street to Kara Buzanoski] Allen Reinhard asked for a motion on approval of the September Minutes; Snookie Eldridge moved their approval, which was seconded by Stephen Welch. He asked that action on the minutes be deferred to the next meeting. Minutes should be accurate, he said, and he had issues with the report on the Washington Street extension. He felt that the Secretary had not reflected his comments accurately nor had the Secretary accurately written the committee's determination on action. The Secretary suggested that we do a closer exchange on drafts. Stephen Welch said that he had sent a draft revision and felt that it was not respected. [Action: Lee Saperstein will review the draft, make corrections, and send it back to the Committee for action at its next meeting]. 8. Adjournment. Adjournment came at 5:44 pm. Next meeting: November 15, 2016, 4:00 p.m., 2 Fairgrounds Road. R &ROW Committee Outstanding Projects List: Projects Underway and need only oversight until completion • Downtown Sidewalk Survey Project • In Town Bike Path from Washington St. Ext. to Rotary • Boulevarde to Airport road takings, and reconstruction as Public Ways • Bike path linking Surfside, Hummock Pond & Madaket Bike paths via Mill Hill • First Way Pedestrian/Bike Access and Road Improvement Safety Project Projects in need of advancement completion or encouragement • Installation of sidewalk from Prospect St. multi -use path to Upper Vestal Street • Sconset Footpath install Public Way Monuments • Chapter 91 Public Access License Enforcement: Harbors Plan Implementation • Nantucket Open Space Plan Update Long Term Projects and projects on hold • Nantucket Central Railroad Trail Project • Nantucket Greenway and Footpath System • East Creek Road viewing platform and CPC grant • Work with DPW on maintenance plan for public way monuments and trails • Maintenance Plan for West Chester St. Ext. and Crooked Lane • Harbor Walk Appendix 1 Date of Submission: Town and County of Nantucket Recommendation of the Roads and Rights of Way Committee Access is one of the greatest gifts the Town of Nantucket can protect for our current and future citizens. The Roads and Right of Way Committee is an [Advisory/Oversight? Committee], which works to preserve access to Nantucket's public and private lands, including our harbors, coastline, ponds, moors, conservation lands and historical sites. We review any issues concerning the status of access over public and private roads, rights of way, abutters ways, proprietors roads, footpaths, and any other ways throughout Nantucket town and county and to make recommendations to the Board of Selectmen / County Commissioners to ensure and improve public access over them. Submission to: Cc to: ln'ier "n'at'TTs'e ............................................................................................................................................................................................ ..............................: R &ROW Action Dates: J dotes (incl. Updates): Appendix 2 October 19, 2016 Rights & Roads of Way Committee c/o Lee Saperstein, Secretary RE: Discussion of G.L. c.91 Dear Lee: As I mentioned at our 10/18/16 meeting: 1. Unless altered by an approved home -rule petition G.L. c.91 appears to require Town involvement as follows: a. Planning Board is Town's lead (c.91, §181111 1, 2; §18C(b), (d)). b. Board of Selectman and Conservation Commission are: i. Involved officially in a license 45 -days prior to MA DEP issuing such a license (c.91, §18 ¶6); and, ii. involved in general licenses to receive and post related notices (c.91, §18C(e)). c. Town Clerk serves as point in required certification of zoning conformance (c.91, §18 1110; §18C(h)). 2. Other matters of interest and likely requiring advisement from Town Counsel are: a. What municipal and /or state entities are referred to in c.91, §18 17? b. Under c.91, §18119 or c.91, §18C(g), when a license is void, what are required and best practices for notifications, fines or fees, etc.? 3. After making those point, my suggestion was that: R &ROW recommend, through the appropriate Town entity, that Town Counsel review pertinent portions of G.L. c.91 and confirm or correct its applicability, and provide any necessary clarifications for its application; and that, Note: I did not have G.L. c.91 references at our meeting, but have included them in the foregoing for convenience. Also not mentioned at our meeting but worthy of note: G.L. c.91 §18 and §18C distinguish 'license' and 'general license' in context but not within c.91 §1- Definitions. Please be so kind to include above and enclosed in our minutes. Sincerely, Stephen Welch, Member At -Large Enc.. G.L. c.91 §18 - Application for license; notice; hearings; records G.L. c.91 §18C - Noncommercial small -scale docks, piers and similar structures accessory to residential use; issuance of general license; applicability of other laws to projects subject to general license. CC: Allen Reinhard, Chair PART I ADMINISTRATION OF THE GOVERNMENT TITLE XIV PUBLIC WAYS AND WORKS CHAPTER 91 WATERWAYS Section 18 Application for license; notice; hearings; records Section 18. Upon or prior to applying for a license pursuant to this section, the applicant shall submit to the planning board of the city or town where the work is to be performed, except in case of a proposed bridge, dam or similar structure across a river, cove, or inlet, the application containing the proposed use, the location. dimensions and limits and mode of work to be performed. Said planning board may conduct a public hearing within thirty days of receipt of license application. Within fifteen days of conducting said public hearing or within forty-five days of receipt of license application, the planning board shall submit a written recommendation to the department. Said recommendation shall state whether said planning board believes the development would serve a proper public purpose and would not be detrimental of the public's rights in these tidal lands. The department shall take into consideration the recommendation of the local planning board in making its decision whether to grant a license. Every license granted under this chapter shall be signed by the department, shall state the conditions on which it is granted, including, but not limited to the specific use to which the licensed structure or fill is restricted, and shall specify by metes, bounds and otherwise the location, dimensions, and limits and mode of performing the work authorized thereby. Any changes in use or structural alteration of a licensed structure or fill, whether said structure or fill first was licensed prior to or after the effective date of this section, shall require the issuance by the department of a new license in accordance with the provisions and procedures established in this chapter. Any unauthorized substantial change in use or unauthorized substantial structural alteration shall render the license void. Licenses granted by the department pursuant to this chapter shall be revocable by the department for noncompliance with the conditions set forth therein. The department shall not revoke any license until it has given written notice of the alleged noncompliance to the licensee and those persons who have filed a written request for such notice with the department and afforded them a reasonable opportunity to correct said noncompliance. The department may promulgate regulations for implementation for its authority under this chapter. No license shall be required under this chapter for fill on landlocked tidelands, or for uses or structures within landlocked tidelands. The department shall submit any regulations promulgated under the provisions of this chapter to the joint legislative committee on natural resources and agriculture, to the senate committee on ways and means and to the house committee on ways and means, for their review within sixty days prior to the effective date of said regulations. Forty-five days before any license is granted pursuant to this chapter, the department shall give notice to the selectmen of the town or the mayor of the city and the conservation commission of the town or city where the work is to be performed that they may be heard, except in the case of a proposed bridge, dam or similar structure across a river, cove or inlet, the department shall give notice to the selectmen or mayor, and conservation commission of every municipality into which the tidewater of said river, cove or inlet extends, and the department shall cause said notice to be published at the same time in a newspaper or newspapers having a circulation in the area affected by said license at the expense of the applicant. A public hearing shall be held in the affected city or town on any license application for nonwater dependent uses of tidelands, except for landlocked tidelands. No structures or fill for nonwater dependent uses of tidelands. except for landlocked tidelands may be licensed unless a written determination by the department is made following a public hearing that said structures or fill shall serve a proper public purpose and that said purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands and that the determination is consistent with the policies of the Massachusetts coastal zone management program. For those license applications where a public hearing is not mandated, a public hearing may be held. upon the request of the municipality or at the discretion of the department in the affected city or town. Any person aggrieved by a decision by the department to grant a license pursuant to this chapter shall have the right to an adjudicatory hearing in accordance with chapter thirty A. The department shall keep a record of each license and a plan of the work or structure. Said license shall be void unless, within sixty days after its date, it and the accompanying plan are recorded in the registry of deeds for the county or district where the work is to be performed. Work or change in use authorized under the license g shall not commence until said license is recorded and the department has received notification of said recordation. No license shall be granted for private tidelands unless the application therefor contains a certification by the clerk of the affected cities or towns that the work to be performed or changed in use is not in violation of local zoning ordinances and by-laws. Each license granted shall contain a statement of the tidewater displacement assessments made with respect thereto and that payment has been received therefor, or that performance of other conditions in lieu of such payment has been completed to the satisfaction of the department and a statement of the assessment for occupation of commonwealth tidelands if, any, made with respect thereto for which payment has been received or shall be required in accordance with regulations of the department. E PART I ADMINISTRATION OF THE GOVERNMENT TITLE XIV PUBLIC WAYS AND WORKS CHAPTER 91 WATERWAYS Section 18C Noncommercial small -scale docks, piers and similar structures accessory to residential use; issuance of general license; applicability of other laws to projects subject to general license Section 18C. (a) Notwithstanding any general or special law to the contrary, the department may issue a general license authorizing noncommercial small -scale docks, piers and similar structures that are accessory to a residential use, but not marinas or large-scale docks, piers or similar structures, in tidelands, great ponds, rivers and streams, otherwise subject to individual licensing under sections 12, 12A, 13, 14, 18 and 19. Projects that extend beyond harbor lines or are within areas of critical environmental concern to the commonwealth shall not be eligible for a general license under this section. The department may consider the cumulative impacts of docks, piers and similar structures in a geographic area in determining whether a project is appropriate for coverage under a general license. The licensee shall comply with all general license performance standards to be issued as regulations by the department and any additional concerns specified by the department pursuant to the general license. A proponent of a project eligible for a general license under this section shall certify compliance with its terms and conditions to the department and shall pay all applicable fees required by this chapter before beginning construction. The department shall perform annual audits to monitor compliance with the general license requirements of this section. (b) The first 2 paragraphs of section 18 shall not apply to projects subject to a general license; provided. however, that upon or prior to applying for a license pursuant to this section, the project proponent shall submit to the planning board of the city or town where the work is to be performed a statement of the proposed use, the location, dimensions and limits and mode of work to be performed. The planning board may, within 45 days after receipt of the statement, submit a written opinion to the department that the project does not comply with the general license standards set forth in this section and recommend that the project be subject to individual licensing, as applicable, under said sections 12, 12A, 13, 14, 18 and 19. The department shall not issue a general license under this section if a planning board recommends that the project be subject to individual licensing. The department may issue a general license after the expiration of 45 days without local planning board comment or upon receiving notification from the local planning board that it does not oppose the project's eligibility for a general license. (c) The first sentence of the third paragraph of said section 18 shall not apply to projects subject to a general license; provided, however, that the project proponent shall specify by metes, bounds and otherwise the location. dimensions and limits and mode of performing the work in its certification to the department. (d) The second sentence of said third paragraph of said section 18 shall not apply to a project subject to a general license; provided, however, that any changes in use or structural alteration of a licensed structure or fill, whether the structure or fill first was licensed before, on or after the effective date of this section, shall require a new certification to the department and submission to the planning board in accordance with subsection (b) for projects eligible for a general license, or a license for structures which are ineligible for the general license, in accordance with the provisions and procedures established in this chapter and the general license. (e) The sixth paragraph of said section 18 shall not apply to a project subject to a general license; provided, however, that upon or prior to applying for a general license under this section, the project proponent shall give notice to the selectmen of the town or the mayor of the city and the conservation commission of the town or city where the work is to be performed and shall publish, at the expense of the proponent, the notice at the same time in a newspaper or newspapers having a circulation in the area affected by the project. (f) The seventh and eighth paragraphs of said section 18, regarding public and adjudicatory hearings, shall not apply to a project subject to a general license. (g) The ninth paragraph of said section 18 regarding recordation shall not apply to a project subject to a general license; provided, however, that the project proponent shall submit a plan of the work or structure to the department in its certification. The general license for these projects shall be void unless, within 60 days after certification, the certification and the accompanying plan are recorded in the registry of deeds for the county or district wherein the work is to be performed. Work or change in use shall not commence until the certification is recorded and the department has received notification of the recordation. (h) The tenth paragraph of said section 18 regarding zoning approval shall not apply to a project subject to a general license; provided, however, that the project proponent shall submit a certification by the clerk of the 10 affected cities or towns that the work to be performed or change in use is not in violation of local zoning ordinances and by -laws, in its certification to the department. G) The eleventh paragraph of said section 18, regarding assessments for tidewater displacement and occupation of commonwealth tidelands, shall not apply to projects subject to a general license; provided, however, that these assessments shall be paid by the project proponent in its certification to the department. (j) Section 20 shall not apply to projects subject to a general license; provided, however, that the project proponent shall submit to the department plans of any proposed work to be performed and a copy of any legislative grant in its certification to the department. (k) The department shall adopt regulations to implement this section. The regulations shall protect and preserve any rights held by the commonwealth in trust for the public to use tidelands, great ponds and other waterways for lawful purposes and public rights of access on private tidelands, great ponds and other waterways for any lawful use. 11 From: Saperstein, Lee W. [mailto:sapersteCabmst.edul Sent: Thursday, October 20, 2016 3:13 PM To: Welch, Stephen Cc: 'Reinhard, Allen'; Forbes Leslie Subject: RE: Items for the minutes Stephen: To bring you up to date, Leslie and I will be meeting tomorrow with Jeff Carlson on Chapter 91 Licenses; we will draft a report to the Committee for our next meeting. I will be happy to include your material on Chapter 91 in its entirety when I draft the minutes. You may wish, however, to add to them. Although I am not an attorney, I am considered an expert in agency law and have both published and consulted on issues in environmental codes. The material that you reference, Chapter 91, Section 18, is law and applies to the State and its officers, namely the Department of Environmental Protection. It does not apply to ordinary citizens or towns. It gives DEP the authority to write regulations that, in turn, are promulgated in the Code of Massachusetts Regulations, CMR. We, in turn, must abide by and live by these regulations. For Waterways, you may wish to examine 310CMR9.00 etseq: http://www.mass.gov/courts/docs/lawlib/300-399cmr/310cmr9.pdf. These regulations, all 138 pages, are complex but, in the end, relatively unambiguous. Lee Stephen Welch's response (October 20, 2016) Lee: Thanks for the letting me know about the upcoming meeting w/ Jeff Carlson —good stuff and good luck to you and Leslie when you all meet. I appreciate your comments on c.91. 1 took a quick read - through the attachment I sent and my folder; you're correct, I did not provide full picture of the concept. So, in the interest of moving forward roundedly lets include my following clarifications as #4 a -e; and as appropriate, include notation these 4.a. -e. are my late clarifications: a. As promulgated within 310 CMR 9:00, MA DEP is the executive authority whose regulations apply to towns and ordinary citizens regards GL c.91. b. My understanding is, when an act is adopted into MA General Law, and such a law stipulates certain procedures or responsibilities for towns and citizens, which is the case in c.91, unless the same law or superseding law stipulates CMR regulations may be created and applied in some manner to the contrary, the procedures and responsibilities stipulated within that law are applicable to towns and citizens if and as plainly written. c. Insofar as inconsistencies between GL and CMR, which is what I have pointed to in some detail but without mucking with 310 CMR 9:00 cross references, 1 anticipate: An opinion by Town Counsel would immediately recognize and identify all inconsistencies, as well as Town dept. roles and responsibilities; and, a well- crafted request for an opinion could result in guidance towards better Town involvement, home -rule style —I'll get to in a moment, with the level of Town involvement being at least as significant as was conceived in c.91. 12 d. Directly related, are exceptions to GL, and by extension CMR, by home -rule adoption. In so far as this concept of an opinion as I've outlined, which I anticipate our committee would discuss in depth to strategize, what I am saying is that: Substantive inconsistencies between GL and CMR may help form an argument for a home -rule adoption; or, at the very least, Town Counsel will have waded into related matters, poised for a home rule petition. The idea is to be advancing c.91 on simultaneous dual tracks, home -rule being a track on- to- itself. Of course, our committee may determine there is a different or perhaps even better method to the same end, or to pass outright. I hope this is clear, planning an event as I get ready to head out the door. Again, thanks for your comments. Stephen 13