Seventeen Island Residents Sue Select Board, SBPF For “Abusing Town’s Corporate Power”

Seventeen island residents have filed a lawsuit against Nantucket’s Select Board and the Siasconset Beach Preservation Fund (SBPF), alleging that a recent agreement between the two groups subverts the authority of the Conservation Commission with respect to the controversial erosion-control geotube project at the Sconset Bluff.

The lawsuit, filed Thursday in Nantucket Superior Court, alleges that the non-binding agreement is an attempt to shift regulatory and enforcement authority under the Massachusetts Wetlands Protection Act and the Nantucket Wetlands Protection Bylaw from Nantucket’s Conservation Commission to the Select Board as it relates to the geotubes.

According to the suit, the Board and SBPF representatives drafted a Memorandum of Understanding (MOU) without consulting the Conservation Commission. The plaintiffs assert that a provision in the MOU states the Select Board can determine whether the 947-foot geotube project can remain in place. The lawsuit describes this provision as the SBPF and the Select Board “engaging in an unlawful exercise or abuse of the town’s corporate power.”

The MOU - signed by the Select Board in late March - is an attempt to resolve the dispute over the 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 geotube project, while also setting the groundwork for cooperation on the future relocation of Baxter Road away from the eroding bluff.

“The MOU omits a statement that had been included in a 2013 memorandum of understanding (when the geotube project was approved) acknowledging that the Select Board 'has no control over the hearing process or the ultimate decision that the Conservation Commission may make,'” the plaintiffs allege.

The Conservation Commission and its independent counsel had harshly criticized the MOU in March just prior to its approval by the Select Board.

The lawsuit claims that SBPF began falling out of compliance with the order of conditions shortly after they were amended in 2019. They say some of the violations include large shortfalls in the volumes of replacement sand required under the amended order of conditions, the use of substandard fill containing construction debris, the use of non-compatible, out-of-specification replacement sand, and the failure to provide the Conservation Commission with timely monitoring reports.

“There is no credible scientific evidence that the benefits of keeping the Geotubes installed on the beach outweighs the environmental damage caused by their continuing presence,” the lawsuit says. “This environmental damage adversely affects the publicly owned and enjoyed Siasconset Beach, adjoining areas of shoreline, residential properties abutting those adjoining shorelines, and the already-threatened natural habitats whose existence relies upon proper preservation and careful management of these coastal areas."

The 17 plaintiffs who filed the lawsuit are: Warren W. Wegner, William Willet, Mary F. Wawro, Esta-Lee F. Stone, Edith A. Ray, Bruce W. Perry, Blair C. Perkins, Peter A. Morrison, Susan S. Landmann, Douglas A. Horst, Meghan R. Glowacki, Jane Hobson-Dupont, Barbara E. Bund, Joyce B. Berruet, and John W. Atherton, Jr., Virginia Andrews, and Dirk G. Roggeveen.

They are asking the court to take several actions, including:

- Enter an order prohibiting the Board from expending any funds or carrying out any obligations intended to bind the Town under the MOU.

- Enter an order declaring that any provision that attempts to shift authority to enforce or administer the Conservation Commission to the Select Board is void and of no legal effect.

- Enter a permanent injunction that precludes the Board from attempting to exercise any powers under the act or bylaw that are vested in the Commission.

While the lawsuit has been officially filed in Nantucket Superior Court, town officials said over the weekend that they have yet to be served and told the Current they will wait to comment on the allegations until they have been able to thoroughly review the lawsuit.
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.