ConCom Blasts Town's "Deeply Problematic" SBPF Agreement

The Nantucket Conservation Commission is urging the Select Board to reject a proposed memorandum of understanding with the Sconset Beach Preservation Fund (SBPF), calling it “deeply problematic” and “riddled with problems.”

The memorandum of understanding (MOU), which is set to be voted on during tonight’s Select Board meeting, is an attempt to resolve the dispute over the controversial erosion-control geotubes installed at the base of the Sconset Bluff, which the Conservation Commission had ordered to be removed last year due to SBPF’s failure to comply with its permit. The MOU would establish a partnership between the SBPF and the Select Board to expand the project, while also setting the groundwork for cooperation on the future relocation of Baxter Road away from the eroding bluff.

But the Conservation Commission is sounding the alarm about the written agreement. In a document obtained by the Current, the commission’s new independent counsel, attorney Benjamin Tymann, ripped the MOU and called on the Select Board to reject it.

“The Proposed MOU is riddled with problems, both legal and factual,” Tymann wrote the letter written to the Select Board on Monday. “The (Conservation) Commission isn’t interested in pointing fingers or ascribing motivations, but somewhere along the way this Board-SBPF initiative went seriously awry and has culminated in a fundamentally deficient and legally unenforceable Proposed MOU.”

The failure, Tymann said, began with the Conservation Commission’s exclusion from the formulation and drafting of the MOU. If approved by the Select Board, he said, the MOU would usurp the Conservation Commission’s authority under the Massachusetts Wetlands Protection Act, and set a “disturbing precedent” for the island’s municipal government.

“The document has the potential to do serious damage to municipal governance on Nantucket and the public’s confidence in the same because of the confusion it would create concerning the Board’s and the Commission’s respective legal duties and responsibilities,” Tymann wrote. “In addition, by seeking to marginalize the Commission and unlawfully usurp critical aspects of its regulatory and enforcement authority, the Proposed MOU would also set a disturbing precedent were it to be given the Board’s imprimatur. It would put Nantucket on a path to splintered, arbitrary, and ineffective coastal protection efforts in the coming years, when the opposite will be needed to successfully address these accelerating environmental challenges on the island.”

The 900-foot sand-filled geotube has been installed at the bottom of the bluff on the east end of Nantucket for more than eight years. But the Conservation Commission determined last June that the SBPF had failed to comply with its permit for the project, specifically the requirement for a certain amount of sand that should have been dumped annually over the geotube to replenish the area, It issued an enforcement order last September requiring the erosion control installation to be removed. Opponents believe the geotube installation has exacerbated erosion at beaches north and south of the projects.

The Select Board subsequently took the extraordinary step of formally requesting that the Conservation Commission reconsider its previous vote, and the commission pushed back strongly to reject that request. The Conservation Commission’s removal order has spurred additional litigation in Nantucket Superior Court, where the SBPF appealed the decision and a neighboring property owner filed his own lawsuit against both parties.

The SBPF’s plan to bring the project back into compliance, which is referenced in the MOU, was another point of contention for the Conservation Commission.

“Even under SBPF’s own recent ‘Proposal for Bringing Baxter Road Geotube Project Into Compliance,’ its project will not be compliant with the OOC’s (order of conditions) conditions until 2026 at the earliest, so by what standard would the Board possibly be able to determine SBPF’s ‘compliance with the existing permit conditions [being] achieved’ in time for obtaining Commission approval for a new OOC for an expanded project by this summer?” Tymann asked in his letter.

Tonight's Select Board meeting will be conducted in a hybrid format - both in person and virtual. The meeting is being held in the community room at the Public Safety Facility on Fairgrounds Road, starting at 5:30 p.m. To participate remotely, click here.