A Nantucket Superior Court judge has sided with the Conservation Commission's decision to remove the controversial erosion-control geotubes installed at the base of the Sconset Bluff along Nantucket's eastern shoreline.
The Sconset Beach Preservation Fund (SBPF), which has poured millions of dollars into its fight to slow erosion and save homes along Baxter Road, had appealed the Conservation Commission's decision back in Sept. 2021, saying it had acted “arbitrarily and capriciously, and recklessly” in ordering the removal of the geotubes.
But in a 16-page decision issued late Friday, Judge Mark C. Gildea rejected SBPF's claims, affirming the Conservation Commission's enforcement order for the removal of the 900-foot geotubes that have been in place along the Sconset Bluff for nearly nine years.
"This court cannot say that the commission lacks any 'ground which ‘reasonable [persons] might deem proper’ to support' the decision to order the removal of the geotube array which is not being maintained in compliance with the unchallenged conditions set out to protect surrounding areas from the effects of the project’s obstruction of natural erosion," Gildea wrote in his decision. "Accordingly, the plaintiff fails to meet its burden to demonstrate that the enforcement order is arbitrary and capricious on this basis."
Attorney Ben Tymann, who represented the Conservation Commission during the Superior Court proceedings as special municipal counsel, described the decision as resounding and comprehensive.
"The Commission is pleased that the Superior Court so strongly validated the Commission's enforcement order, which was a difficult decision for the Commission to make, but, as Judge Gildea agreed, was thorough, thoughtful and well-justified under the facts and the law," said Ben Tymann, special municipal counsel for the Conservation Commission. "The Court also made clear in this ruling that the Commission has 'undisputed authority' to administer and enforce the state Wetlands Protection Act and Nantucket's Wetlands Bylaw. Given the intense political pressure some in town government had put the Commission under over the past several years concerning the geotube project, that was a vitally important principle for the Court to reiterate."
Back in June 2021, the Conservation Commission determined that the SBPF had failed to comply with its permit for the project, specifically with regard to the requirement for a certain amount of sand to be dumped annually over the geotube to replenish the area. The ConCom issued an enforcement order that month requiring the erosion control installation to be removed. Opponents believe the geotube installation has exacerbated erosion at beaches north and south of the project.
Arcadis, the town of Nantucket's consultant on coastal resiliency and the possible relocation of Baxter Road in response to ongoing erosion, had previously urged caution in removing the geotubes without a strategic plan in place for the retreat of utilities, roadways, and private property. The consultant said removal of the geotubes has the potential for "rapid and dramatic" shoreline realignment.
Judge Gildea acknowledged those concerns in his decision, but emphasized that he was limited to considering whether the Conservation Commission had a legitimate and legal basis for its enforcement order to remove the geotubes.
"This court acknowledges the potential implications of the commission’s choice to move immediately to a removal order, rather than explicitly ordering compliance, as a response to the ever-accumulating sand deficit and the plaintiff’s repeated refusal to provide such mitigation unless an expansion of the project is approved," Gildea wrote. "The implications are significant. However, it is outside the scope of the legal issues properly before the court to determine whether the risks described in the Arcadis memo are supported by substantial evidence or weigh those risks against other strategies which could hypothetically be undertaken in response to erosion. Instead, this court’s review is limited to a much narrower question: whether there was a rational basis for the exercise of discretion to pursue enforcement."
The Conservation Commission will hold public meetings to discuss the next steps and timetable for when and how the geotubes will be removed, according Tymann, the special municipal counsel for the commission.
SBPF President Josh Posner said he still hopes the ConCom will work with his group to allow the project to be brought into compliance.
"We are disappointed by both the court’s decision and the consistent, misguided efforts by the some to dismantle the geotubes, Posner said. "Since 2013, this privately funded project has successfully protected town infrastructure, historic homes, and access to Sankaty light, with no downside impact to neighboring beaches. The court’s decision – which allows but does not require removal – doesn’t change the basic dilemma that Nantucket is facing. The Select Board has been advised by independent, fact-based engineering experts from Arcadis that removal of the geotubes will quickly require closing Baxter Road, at significant expense and disruption."
Judge Gildea's decision could be appealed further to the Massachusetts Appeals Court, but Posner said the SBPF has not yet decided whether to take that route. Tymann said he hoped Gildea's ruling would dissuade the SBPF from doing so.
"Of course the Commission has no idea whether those plaintiffs will appeal but we hope that SBPF in particular takes to heart how resoundingly and comprehensively the Superior Court rejected its challenge to the Commission's decision," Tymann said.