Wetlands Bylaw Violation Alleged In Lawsuit Against Land Bank, ConCom

The owners of 9 Falmouth Avenue are suing the Nantucket Land Bank and Conservation Commission over what they claim are legal deficiencies in a Land Bank application for a recently approved plan to relocate a portion of the street.

The complaint, filed with the Nantucket Superior Court, claims that the owners of 9 Falmouth Avenue never received a regulatorily mandated letter notifying them that the Land Bank’s application would be heard before the Conservation Commission, and that the Land Bank never supplied proof that such letters had been sent, a violation of wetlands law.

Land Bank executive director Rachael Freeman told the Current that “the Land Bank hasn't received any notification of an appeal or lawsuit regarding the Falmouth Road relocation.”

Representatives of the Conservation Commission did not immediately return requests for comment.

The Land Bank is seeking to move a portion of Falmouth Avenue further inland to protect it from erosion and sea-level rise. Falmouth Avenue provides access to the Cisco Beach parking lot from the east, and a separate road provides access from the west. The Conservation Commission decided that preserving the accessway to the parking lot provided a significant enough public benefit to justify disturbing a portion of the endangered sandplain grassland habitat to the north of the current roadway and approved the relocation.

9 Falmouth Avenue directly abuts the Land Bank’s property to the east. It is owned by Ocean Heath LLC. Local attorney Sarah Alger is listed as the LLC’s manager, and she is also listed under real property in the company’s filings with the Secretary of the Commonwealth. Alger declined to comment when asked by the Current.

Wetland regulations stipulate that “the applicant shall send a copy of the notice of the public hearing, supplied by the Commission, to all abutters, as certified by the Assessor from the Town's most recent Assessor's list,” and that “postmarked mailing receipts and the certified abutter's list shall be presented to the Commission at the opening of the public hearing. Return receipt cards shall be presented to the Commission before the hearing can be closed.”

The complaint claims that the mailing receipts and return receipt cards were never presented, and that the abutters list that the Land Bank provided was not certified.

“The Land Bank failed to comply with the Wetlands Bylaw's notice requirements, and the Commission failed to follow its own procedures which require evidence of proper notice to abutters,” the complaint reads in part. “Absent compliance, and evidence of compliance, with the Wetlands Bylaw's notice prerequisites, the Conservation Commission's issuance of the Order of Conditions where the Land Bank failed to provide any notice to Ocean Heath LLC, a direct abutter, was unlawful.”

The Land Bank’s public submission available online for the meeting where the application was approved does not appear to include any receipts, and seems to lack a signature on the certification page for the abutters list.

A previous submission for a similar project proposed last year did include receipts. The owners of 9 Falmouth Avenue concede that they were notified of the previous application. The two applications have different file numbers and are listed separately on the dedicated state website used to track wetlands applications.

The owners of 9 Falmouth Avenue had objected to the previous plan, citing concerns about threats to rare wildlife species and an inadequate alternatives analysis. The Land Bank’s own application notes these objections.