ConCom Finalizes Punishment For Wauwinet Clear-Cutting: $11,000 Civil Penalty & Permanent Deed Restriction

More than six months after contractors at a property in Wauwinet clear-cut a half-acre of vegetation without a permit, the Conservation Commission issued an $11,100 civil penalty for the violation on Thursday, also requiring a deed restriction on the affected area that will mandate it is conserved in perpetuity.

The penalty is significant by the standards of the Conservation Commission, but it is still only around two-tenths of a percent of the property's estimated value of $4.49 million.

On the town’s maps, the owner of the property is listed as a Kingston, Massachusetts-based limited liability company called ACK TU LLC. The LLC is registered to Matthew Dacey, the president of Champion Builders Inc. Dacey purchased the .91-acre property for $1 million in 2022.

Creating effective, enforceable deterrents for bylaw violations remains a significant issue for local boards, though Conservation Commission chair Seth Engelbourg, who called the violation the most egregious he has ever seen, previously told the Current he believes the Conservation Commission has the best enforcement tools of any regulatory board on Nantucket.

The case remained pending for months as the Conservation Commission debated which of those tools to use and how to use them. Much of the debate centred on whether to impose a deed restriction or a conservation restriction.

The deed restriction prevents future activity in the restricted area without a valid order from the Conservation Commission. While there was initially some debate, Town Counsel George Pucci told the Commission Thursday that the deed restriction could be enforced in perpetuity. But the deed restriction doesn’t give the Commission the right to enter private property to determine whether the owners are abiding by the terms they have agreed to.

A conservation restriction is a more powerful tool, mandating yearly inspections of the property. It can be more challenging to obtain, and Pucci told the Commission it wouldn't be appropriate in this case.

“Conservation restrictions are really not the type of instrument to use to remedy an enforcement issue,” he said. “[A] conservation restriction is for…something [that] is being restricted for a public purpose.”

But Conservation Commission member RJ Turcotte, who advocated for a conservation restriction, said that without one, the Commission is essentially in the same place it was before the violation occurred initially.

“The deed restriction, it’s got a bunch of language saying ‘don’t do this,’ and it’s going to be going with the property forever, but we got into this whole thing with them doing something that there was language in laws saying ‘hey, don’t do this,’” Turcotte said. “We’re essentially just adding to the language that tells them not to do what they did.”

Several nearby property owners, including the president of the Wauwinet Land Owners Association, wrote to the Conservation Commission to support a conservation restriction.

The Conservation Commission did alter its order of conditions slightly to allow monitoring of the site to continue indefinitely without a conservation restriction. However, Engelbourg said that the provision would be incredibly difficult to enforce.

“We can try, but those types of conditions aren’t generally the ones that would continue in perpetuity,” he said. “There’s nothing that would really be enforceable if we did that.”

Ultimately, the vote for the deed restriction was 6-1, with Turcotte dissenting.

In addition to the hefty civil penalty and the deed restriction, the property owners are also required to engage in significant remediation efforts to mitigate the long-term impacts of the clear-cutting.