Select Board Continues Hearing On Tense Appeal Over HDC's Deer Fence Denial

The Select Board has continued a hearing on an appeal challenging a Historic District Commission decision not to approve a deer fence and grates as submitted, a rare step intended to allow the board to review further information that could help them decide whether to overturn the HDC’s ruling.

After the Schwartz family installed deer control measures without HDC approval on their property spanning four addresses along Nonantum Avenue, they were called before the commission, which ultimately voted against allowing the grates and only approved the fence subject to significant revisions. The Schwartz family filed an appeal of that decision, bringing their case to the Select Board.

During the hearing, the family’s representatives alleged that the HDC did not allow them to speak during the commission’s discussion on the fence and demonstrated bias against the property owners in their remarks.

“There’s something against my client,” estate manager Kurt Fortin said.

Several Select Board members said they had not reviewed the recording of the HDC’s discussion and wished to do so before ruling on the appeal.

“I’ve heard some things that trouble me a bit,” Select Board member Malcolm MacNab said. “I think it’s important, for my perspective of learning if this was capricious or not, [to] see how people actually spoke.”

HDC chair Stephen Welch replied that “[the HDC is] to listen to the subject matter, and if people cannot speak on the subject matter, then the HDC is within its rights to shut down the discussion.”

“Without the context of the entire hearing,” he added, “it doesn’t provide a full and fair understanding.”

In the recorded meeting, HDC Commissioner Val Oliver said that the property owner “does whatever he wants” and that she “wants people to get fines that really hurt them.” These comments came after the fence was installed without permission, in violation of the HDC’s regulations.

The property owner’s representative was allowed to speak at the beginning of the HDC discussion. She then tried to speak several times during the HDC’s deliberations without being recognized and was denied.

The Select Board can only remand or overturn an HDC decision if it finds that the commission’s decision was arbitrary and capricious or legally defective, a high standard that is rarely met. They cannot substitute their own judgment on the merits of the case for that of the HDC.

Tempers flared on both sides during the tense appeal hearing, which ended without a resolution. The issue will be heard next on March 11th, if it is not continued again.

While the allegations of bias against the HDC during their discussion on the fence and grate were what primarily motivated the Select Board to continue the appeal hearing, this was not the only issue the appellants raised.

They also claimed that there are many other deer fences and grates across Nantucket, both permitted and unpermitted, providing maps which they claim show the locations of some such installations.

“There are dozens of installations,” attorney Ryan Douglas said. “This is just an issue of selective enforcement being arbitrary and capricious.”

Welch and Oliver acknowledged that other unpermitted deer fences and grates exist on island, but argued that the HDC does not have the capacity to investigate every violation, and instead responds on a complaint basis.

“The whole deer fencing and cattle grate thing is out of control,” Oliver said. “I don’t know how we’re going to get control of it because we don’t have the staff to go around and look at every single property.”

Select Board chair Dawn Hill repeatedly suggested the applicant could reapply with an altered application and come to an agreement with the HDC. Neither party seemed to think that was likely.

Fortin claims that the deer deterrants are needed to protect mandated vegetative screening along the property. Without a barrier, he claims, the deer will eat anything he plants.

“The deer population has caused significant and ongoing damage. We have spent hundreds of thousands of dollars,” he said. “The problem has only intensified. Plant species that were once considered deer-resistant are no longer safe.”

It’s another example of how Nantucket’s enormous deer population, which is far larger than what the state deems healthy, is impacting the island. Despite a variety of state and local initiatives to curb the deer herd, far too many deer remain on the island for the numbers to be sustainable.

Welch said that this issue is outside the scope of what the HDC can review.

“They’re eating kitty litter, they’re eating pretty much trash, everything,” Welch said. “There is a bigger problem that’s called deer on the island, but it’s not something the HDC can solve, nor can we incorporate those pieces of information into our decision.”

Several members of the public spoke about the issue of deer overpopulation and its effect on plant life during the appeal hearing, including Campbell Sutton and Victoria Ewing, the latter of whom spoke in part on behalf of her client Andrew Wing, one of the owners and founders of Wingworks landscaping.

Nantucket’s deer harvest hit a record this year after the state extended the hunting season through the winter, and will likely top 1,000 once the Nantucket Land Bank secures a deer damage permit, which will allow permitted sub-contractors to hunt deer out of season on at least one of their properties. That may not be enough to make a meaningful dent in the herd, however, meaning the overpopulation problem is likely to remain, at least in the near future.