Judge Vacates Extension Permit For 36B Lily Street Project

David Creed •

An extension permit granted in February by the Nantucket Conservation Commission to 36 Lily Street, LLC and their developer, Blue Flag Development, for a construction project at 36B Lily Street was vacated by superior court judge Mark C. Gildea on Friday through a preliminary injunction. This order requires all construction work at this property to come to a stop, pending a trial on the merits.

The original complaint was filed in March by several members of the Save Lily Pond Coalition including Mark Forsyth, Suzanne Forsyth, Beth Lowy, and Thomas Lowy, arguing that the Conservation Commission failed to adhere to its own regulations and meet the mandatory requirements of the Wetlands Protection Act when they issued the extension permit. The plaintiffs also alleged in the suit that the project has been causing damage to their homes, the environment, and wildlife in the area for years.

The plaintiffs say the problems began in November of 2017 following the commission’s granting of the LLC’s order of conditions.

Since that time, they said certain conditions have not been followed such as the LLC not providing the commission with photographs of restoration areas on an annual basis for three years and failing to provide the commission with photographs to review of any standing water greater than five days.

The order specifically permitted the LLC to carry out a project where they could relocate and renovate existing structures, demolish and remove existing structures, reconfigure an existing driveway, restore wetland area, restore buffer zone, and install a patio.

In January of 2020, the plaintiffs said the LLC installed a steel foundation retaining system on the property, which created a large, uncovered pit on the property.

“The Pit was left uncovered for several years,” the plaintiffs said in the original complaint. “As a result, it was constantly full of water and dead wildlife. In one instance, a deer fell into the pit and drowned. Several dogs also fell into the pit and were, thankfully, rescued.”

The commission ordered the LLC to fill the pit months later and the LLC complied. They also complied with a town request to survey and redesign the property's storm drain system to address the excess water in the area. The new design wasn’t approved until August of 2021 according to Sarah Alger, who was at the meeting as a representative, but the drains are now installed and working.

The plaintiffs also expressed frustration with what they believe was not an appropriate approval of the extension permit.

Four of the seven commission members were sitting for the vote at the February 24 meeting to form a quorum, but Seth Engelbourg and Maureen Phillips abstained, leaving commission chair Ashley Erisman and Mark Beale as the only two members to vote on the permit. The approval was for a one-year extension of the project. Erisman expressed concern about the excess water prior to the vote, which prompted Alger to remind the commission about the new storm drain system.

After evaluating all of the submitted photos and documents, Gildea came away siding with the plaintiffs despite the LLC arguing that they have been cooperating with the town and acting in good faith.

“The affadavits of the plaintiffs submitted in support of the request for injunctive relief show that the Lily LLC construction has caused issues to the Forsyths through groundwater flooding in their basement, large fissures in their driveway, the collapse of retaining wall located along a common boundary, and cracks in their foundation, plaster walls, and chimney,” Gildea said in a filed court document. ”The Forsyths have spent over $14,000 attempting to remedy the damage the construction has caused to their home and property. The construction has negatively impacted the Lowy’s ability to fully use and enjoy their property for several reasons that include the saturation of their property.”

The LLC expressed to the court that they would be harmed by an injunction because they have invested significant time and money into this project and that both the LLC and its developer (Blue Flag Development) will suffer financial losses. That wasn’t enough to sway Gildea’s decision.

“In balancing financial harms of a developer with plaintiffs’ harms of negative impacts on the use and enjoyment of their property, including the Forsyths who live at 8 Gull Island Lane full time, the plaintiffs prevail,” Gildea said.

Gildea said the LLC may perform work necessary to remove equipment from its property and to secure any buildings, but the work must be completed within five days of receiving the notice of his decision.

A counterclaim is still open in Nantucket Superior Court by the LLC against the Forsyths. The LLC alleges that the Forsyth's drain pipe, PVC pipe, and driveway encroach onto the LLC property and that their drain pipe and PVC pipe channel water onto the LLC's property. They argue the Forsyths are not doing anything to prevent this and are hindering the LLC's ability to use the property.

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