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COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE MASSACHUSETTS TRIAL COURT
NANTUCKET, ss. C.A. No. 2275CVOOO0 3%
WILLIAM FARRELL, ANNE FARRELL, FILED"
LAURIE CHAMPION, JEAN FRANCOIS
FORMELLA, THOMAS HOLLAND, and DEC 22 2022
MICHAEL GAITO and JANE GAITO as
Trustees of the GAITO FAMILY TRUST, NANTUCKET SUPERIOR
Plaintiffs, COURT CLERK
Vv. COMPLAINT
TOWN OF NANTUCKET
CONSERVATION COMMISSION
and its Members solely in their
Official Capacity, J GRAHAM
GOLDSMITH, and WESTMOOR
CLUB LLC,
Defendants.
Introduction
Plaintiffs William Farrell, Anne Farrell, Laurie Champion, Jean Francois Formella,
Thomas Holland, and Michael Gaito and Jane Gaito, as Trustees of the Gaito Family Trust
(together the “Appellants”) appeal a decision of the defendant Nantucket Conservation
Commission (the “Commission”). The Westmoor Club is a large commercial operation
providing recreational opportunities to its members, including on clay and grass tennis courts
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directly adjacent to a large wetland area with a vernal pool. The Commission, after a single brief
hearing, authorized the construction of more staff housing for the Westmoor Club entirely within
a buffer zone between these courts and a certified vernal pool that provides critical habitat for
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certain species in the area. Several of the Appellants own property on which the same wetland
and vernal pool are located. The Appellants are concerned about the health of this sensitive
ecosystem and also the impacts to their property that will flow from the proposed project.
The full scope of the impacts on the Appellants are unknown because the proposal was
approved by the Commission without adequate information. ! The Appellants know that the
proposal includes grading to increase the steepness of a hill above the wetland, changing the
surface from grass to gravel and some hardscape, and construction of two new buildings. The
Appellants know that the Commission ignored its own regulations designed to protect sensitive
habitat, and endorsed the mapping of the high water mark for a vernal pool in October, where a
vernal pool by the Commission’s definition in its regulations exists temporarily in the spring and
summer. The Commission failed to require the Westmoor Club to demonstrate that grading and
changing the surface of the ground will nonetheless avoid a significant increase in stormwater
flow into the wetland and vernal pool—stormwater (very likely bearing pollutants) that will flow
onto certain of the Appellants’ properties where these resource areas are located. The
Commission also failed to determine where trenching for drainage, sewer, and water will be
located so as to assure this construction will not harm protected resource areas.
The Appellants respectfully ask that this Court find that the Commission failed to adhere
to its own regulations and that the Westmoor Club failed to provide adequate information. The
Appellants seek relief in the nature of certiorari overturning the Commission’s determination as
1 The Nantucket Conservation Commission in issuing the Order of Conditions did so under both the state wetlands
act, codified at G.L. c. 131, § 40, and the local wetlands bylaw codified as Chapter 136 of the Town of Nantucket
Bylaws. The decision under the state wetlands act is the subject of a separate application to the Massachusetts
Department of Environmental Protection for a superseding order of conditions pursuant to 310 CMR 10.05(7)(a).
This appeal seeks review in the nature of certiorari solely under the local bylaw. See City of Bos. v. Conset tion
Comm'n of Quincy, 490 Mass. 342, 344 (2022) (Noting that relief under G.L. c. 249, § 4 is the appropriate avenue
for seeking review under a local wetlands law).
15611402.1
one that is arbitrary, capricious, unreasonable and not supported by the evidence provided or,
alternatively, remanding the matter back to the Commission for a further hearing with adequate
information about the impacts of the proposed improvements.
Jurisdiction
1 This Honorable Court has jurisdiction over this matter pursuant to G.L. c. 249, § 4
and Town of Nantucket Bylaw Section 136-4-G.
Parties
2. Plaintiffs William Farrell and Anne Farrell own 94 Cliff Road in Nantucket,
which abuts the parcel the Westmoor Club proposes to improve.
3 Plaintiff Laurie Champion owns 4 Old Westmoor Farm Road in Nantucket, which
abuts the parcel the Westmoor Club proposes to improve.
4. Plaintiff Jean Francois Formella owns 8 Old Westmoor Farm Road, Nantucket,
which abuts the parcel the Westmoor Club proposes to improve.
5 Plaintiff Thomas Holland owns 30 Pilgrim Road in Nantucket, which abuts the
parcel the Westmoor Club proposes to improve.
6 Plaintiffs Michael Gaito and Jane Gaito, own 92 Cliff Road in Nantucket, which
abuts the parcel the Westmoor Club proposes to improve, as trustees of the Gaito Family Trust.
7. Defendant Town of Nantucket Conservation Commission (the “Commission”) is
the sole public body tasked with application and enforcement of the Nantucket Wetlands Bylaw
(“Bylaw”) and the Nantucket Wetlands Regulations (“Regulations”). A copy of the Bylaw is
attached as Exhibit A and a copy of the Regulations is attached as Exhibit B.
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8. J. Graham Goldsmith was the applicant who filed a Notice of Intent seeking
approval from the Commission to add staff housing to property owned by Westmoor Club, LLC.
A copy of the Notice of Intent is appended to this Complaint as Exhibit C.
9 Westmoor Club, LLC (the “Westmoor Club”) is a domestic limited liability
company with an address of 10 Westmoor Lane, Nantucket, Massachusetts 02554 that owns or
controls 14+ acres of contiguous land used for commercial recreational purposes, including the
parcel of land for which the improvements from the Commission were sought. The Order of
Conditions authorizing improvements to the Westmoor Club’s property at issue in this case (the
“Decision”) is attached as Exhibit D.
Facts
10. The Westmoor Club owns 14+ acres of adjoining parcels but only provided notice
of the Notice of Intent to the immediate abutters to one of the parcels, which is not how the
Bylaw and Regulations contemplate notice issuing under the Bylaw when one property is
comprised of multiple parcels.
ll. The Commission is the public body tasked with reviewing applications for
permits to carry out improvements in any area covered by Section 136-3-A of the Bylaw, which
includes freshwater wetlands and certified vernal pools.
“12. The Commission is tasked with promulgating definitions “to effectuate the
purposes of” the Bylaw pursuant to Section 136-1 of the Bylaw.
13. The Commission is tasked with promulgating rules and regulations “to effectuate
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the purposes” of the Bylaw pursuant to Section 136-7 of the Bylaw. 1
14. The definition of “vernal pool habitats” is found in Section 390-2 of the
Regulations (pp. 6-7 of Exhibit B) under the definition of “habitat,” which states as follows:
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“Vernal pool habitats,” regardless of whether the site has been certified by the
Massachusetts Natural Heritage and Endangered Species Program, are defined as
confined basin depressions which, at least most years, hold water for a minimum
of two continuous months during the spring and/or summer, and which are free of
adult fish populations. Areas within 100 feet of the mean annual boundaries of
such depressions, to the extent that such habitat is within an area subject to
protection under the Town of Nantucket Wetlands Protection Bylaw as specified
in Chapter 136, Wetlands, § 136-3, of the Code of the Town of Nantucket, are
deemed essential breeding habitat, and provide other extremely important habitat
functions during the nonbreeding season as well, for a variety of amphibian
species, and are important habitat for other wildlife species, and shall be
considered significant to the interests of the Town of Nantucket Wetlands
Protection Bylaw.
(emphasis added).
15. Section 390-21-B of the Regulations (p. 36 of Exhibit B) sets out the regulations
for activity near habitat areas. One of the regulations (Section 390-21-B-(2) on p. 36 of Exhibit
B)is:
No activity shall be permitted that results in the construction or enlargement of a
structure within 75 feet of verified rare/significant species habitat, including
certified vernal pools, and vernal pools defined in § 390-2.
16. The Notice of Intent submitted to the Commission identifies the buffer
zone around a freshwater wetland and a certified vernal pool. See Exhibit C p. 41.
17. The Notice of Intent submitted to the Commission identifies the “mean.
high water” mark for the vernal pool, and identifies that it was mapped in October of
2022. See Exhibit C p. 41.
18. By definition in the Regulations “vernal pool habitat” is a confined basin
depression that holds water in the spring and/or summer. See Exhibit B, p.7.
19. There is no scientific support for identifying the high water mark of a
vernal pool in October, unless the determination is based on factors besides where the
mean high water is at that point in the year.
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20. The plan and other materials before the Commission do not assert that the
mean high water mark was determined in any way except by measuring where the mean
high water was in October of 2022.
21. The Commission, by adopting the measurement of mean high water for a
vernal pool taken in October when issuing the Decision, acted contrary to its own.
regulations and principles of good science, and in a manner that is arbitrary, capricious,
and unreasonable.
22. The plan presented to the Commission shows that the entire structure will
be located within 100 feet of the vernal pool.
23. The Commission’s regulations specifically state that the area within 100
feet of a vernal pool is “essential breeding habitat, and provide[s] other extremely
important habitat functions during the nonbreeding season as well, for a variety of
amphibian species.” See Exhibit B, pp. 6-7 definition of “habitat” in Section 390-2 of the
Regulations.
24. In issuing the Decision, the Commission failed to even consider whether
constructing a house within this habitat would have a negative impact on the species that
rely upon the habitat, and in doing so acted in a manner that is arbitrary, capricious,
unreasonable, and contrary to its own rules and regulations.
25. It is unreasonable to determine that a building that goes up to the
erroneously-located 75-foot buffer to the vernal pool will have no impact on the vernal
pool, where the regulations themselves allow no construction whatsoever within the 75-
foot buffer. See Exhibit B, p. 36.
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26. It is likely that the high water mark will be closer to the proposed
improvements if properly mapped in the spring or summer.
27. The proposal authorized by the Commission involves changes in
topography and alterations to the existing pervious vegetation to construct two buildings.
28. In issuing the Decision, the Commission failed to consider where the
stormwater runoff from the property will go—merely directing instead that the roof
runoff be captured. The Commission’s failure to require this information from the
Westmoor Club was arbitrary and capricious and a dereliction of its duty to protect the
resource areas governed by the Bylaw.
29. The Notice of Intent states that the project is exempt from state stormwater
standards because it is a single-family dwelling, but the main proposed structure is to be
used as staff housing for the Westmoor Club—a commercial entity—and state
stormwater standards do apply under the Bylaw when the proposed use is commercial in
nature.
30. In issuing the Decision, the Commission failed to consider or inquire
about the path to be taken to the sewer and water system serving the Westmoor Club and
whether those lines will exit the structures up against the erroneously-located 75-foot
buffer to the vernal pool and go into jurisdictional areas governed by the Bylaw. The
Commission’s failure to require this information from the Westmoor Club was arbitrary
and capricious and a dereliction of its duty to protect the resource areas governed by the
Bylaw.
31. Tn issuing the Decision, the Commission failed to consider or inquire
about the path taken for the storage of any roof runoff and whether that drainage will exit
15611402.1
the structures up against the erroneously-located 75-foot buffer to the vernal pool and
cross jurisdictional areas governed by the Bylaw. The Commission’s failure to require
this information from the Westmoor Club was arbitrary and capricious and a dereliction
of its duty to protect the resource areas governed by the Bylaw.
32. In issuing the Decision, the Commission failed to consider or inquire
about how the changed topography and changed surfaces will impact the wetland and
vernal pool. The Commission’s failure to require this information from the Westmoor
Club was arbitrary and capricious and a dereliction of its duty to protect the resource
areas governed by the Bylaw.
33. In general, the information presented to the Commission was incomplete
and inadequate for the Commission to make a determination in the Decision that none of
the resource areas governed by the Bylaw will be impacted or harmed.
34, The newly-authorized change in topography that makes the drop to the
wetlands much steeper, and the change in groundcover from grass to gravel and other
landscaping features will alter and change the amount and quality of water flow into the
wetland and vernal pool.
35. The Commission failed to determine where stormwater from the site will
flow, or how the stormwater flow will be different after the improvements are
constructed.
36. The Commission failed to recognize that the stormwater will be flowing
from carefully-maintained grass tennis and croquet courts over gravel and down a much
steeper embankment into the wetland and vernal pool.
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37. William Farrell and Anne Farrell own and control a parcel of property that
abuts the Westmoor Club parcel at issue, and the wetland and vernal pool straddle the
lines of both parcels.
38. The likely increase and change in quality of water flow from the proposed
project will alter the wetland and vernal pool and will directly and negatively impact
William Farrell and Anne Farrell.
39. Thomas Holland owns and controls an improved parcel of property that
abuts the Westmoor Club parcel at issue, and the wetland and vernal pool straddle the
lines of both parcels.
40. The likely increase and change in quality of water flow from the proposed
project will alter the wetland and vernal pool and will directly and negatively impact
Thomas Holland.
4l. Michael Gaito and Jane Gaito, as Trustees of the Gaito Family Trust, own
and control an improved parcel property that abuts the Westmoor Club parcel at issue,
and the wetland and vernal pool straddle the lines of both parcels.
42. The likely increase and change in quality of water flow from the proposed project
will directly and negatively impact Michael Gaito and Jane Gaito as trustees of the Gaito Family
Trust.
Count I
Relief in the Nature of Certiorari, G.L. c. 249, § 4
43. Paragraphs 1 through 42 are incorporated as if restated here.
44. The Commission did not have enough information to make the
determination in the Decision that no resource areas protected by the Bylaw will be
impacted by the proposed improvements to the Westmoor Club’s property.
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45, In issuing the Decision, the Commission ignored its own regulations
concerning the definition of “vernal pool habitat” and adopted a measurement taken in
October when the water level is (and should be) lower than in spring or summer.
46. In issuing the Decision, the Commission ignored its own regulations and
allowed the construction of a structure that will directly and negatively impact the
abutting wetland and vernal pool habitat, and will directly and negatively impact several
of the plaintiffs who own property upon which that wetland and vernal pool habitat sits.
47. In issuing the Decision, the Commission ignored its own regulations that
specifically identify the area in which the proposed structures and improvements will be
built as essential habitat for animal species.
48. In issuing the Decision, the Commission failed to require information
about changes to stormwater runoff, where the stormwater runoff will originate, what the
stormwater runoff will contain, and how the stormwater runoff will impact the wetland
and vernal pool.
49. In issuing the Decision, the Commission failed to require information
about how the proposed staff housing will be connected to water, sewer, and drainage
facilities.
50. Wherefore the Plaintiff is entitled to a judgment of this Court that the
Decision is arbitrary, unreasoriable, whimsical, and capricious.
Prayer for Relief
WHEREFORE the Plaintiff prays that this Honorable Court will:
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15611402.1
a. Adjudge that the Decision is arbitrary, unreasonable, whimsical, and
capricious because the Commission ignored its own Regulations and/or failed to
require adequate information in issuing the Decision;
b. Overturn the Decision as one that is arbitrary, capricious, unreasonable,
whimsical, and fails to comport with the Bylaw and Regulations; or, alternatively;
c. Remand the matter back to the Commission with an order that the
Commission obtain and consider additional information regarding the impacts and
potential impacts on resource areas protected by the Bylaw and Regulations;
d Grant the Appellants their attorneys’ fees and costs; and
e. Grant such further relief as the Court deems meet and just.
Respectfully submitted,
WILLIAM FARRELL, ANNE FARRELL,
LAURIE CHAMPION, JEAN FRANCOIS
FORMELLA, THOMAS HOLLAND, and
MICHAEL GAITO and JANE GAITO,
as Trustees of the GAITO FAMILY TRUST,
By their Attorneys,
/s/ Joel Quick
Donald R. Pinto, Jr., BBO No. 548421
dpinto@pierceatwood.com
Daniel J. Bailey, BBO No. 552612
dbailey@pierceatwood.com
Joel Quick, BBO No. 694265
jquick@pierceatwood.com
Pierce Atwood LLP
100 Summer Street
Boston, Massachusetts 02110
(617) 488-8100
December 22, 2022
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EXHIBIT A
12/21/22, 11:46 AM Town of Nantucket, MA Wetlands
Select Language v
Town of Nantucket, MA
Wednesday, December 21, 2022
Chapter 136. Wetlands
[HISTORY: Adopted by the Annual Town. Meeting of the Town of Nantucket 4-5-1983 by Art. 29,
approved 8-19-1983. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 139.
§ 136-1. Definitions.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-8-1996 ATM by Art. 47, approved 7-15-
1996; 4-10-2000 ATM by Art. 62, approved 8-2-2000; 4-12-2004 ATM by Art. 52, approved 9-3-2004]
Through its authority to promulgate regulations pursuant to § 136-7, the Conservation Commission
shall adopt definitions to effectuate the purposes of this chapter.
The definitions for "agricultural practices," "alter," and "person" shall be included in the Nantucket
Wetland Regulations, subject to future revision as set forth in § 136-7. The Commission is directed to
revise its regulations pursuant to § 136-7 to incorporate the current definition for "habitat" into the defi-
nitions for "habitat" contained within the Wetland Regulations, prior to this amendment taking effect.
§ 136-2. Purpose.
[Amended 4-8-1996 ATM by Art. 47, approved 7-15-1996]
The purpose of this chapter is to protect the wetlands of the Town of Nantucket by controlling activities
deemed to have a significant or cumulative effect upon wetland values, including but not limited to the
following: public or private water supply, groundwater, flood control, erosion control, storm damage
prevention, water pollution, fisheries, shellfish, wildlife, rare species, including rare, threatened or
endangered plant species and animals and habitats, recreation and wetland scenic views (collectively,
"the interests protected by this chapter"). This chapter is intended to utilize the Home Rule Authority of
this municipality to protect additional resource areas for additional values, with additional standards and
procedures in addition to those of the Wetlands Protection Act, MGL c. 131, § 40, and regulations
thereunder, 310 CMR 10.00.
§ 136-3. Permit required; procedure.
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A. No person shall commence to remove, fill, dredge, alter or build upon or within 100 feet of any
bank, freshwater wetland, coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp or upon
or within 100 feet of any estuary, creek, river, stream, pond or lake or upon or within 100 feet of any
land subject to tidal action, coastal storm flowage, inland or.coastal flooding or inundation or within
100 feet of the hundred-year storm line or within any area located within the geographic boundaries
of the resource areas listed previously that is habitat for rare/significant wildlife and/or fauna,
including Department of Environmental Protection certified vernal pools, without filing written
application for a permit to remove, fill, dredge, alter or build upon, including such plans as may be
necessary to describe such proposed activity and its effect on the environment, and receiving and
complying with the permit issued pursuant to this chapter. Said resource areas shall be protected
whether or not they border surface waters. The application and permit required by this chapter shall
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12/21/22, 11:46 AM Town of Nantucket, MA Wetlands
not be required for maintaining, repairing or replacing, but not substantially changing or enlarging,
an existing and lawfully located structure or facility used in the service of the public and used to
provide electric, gas, water, telephone, telegraph and other telecommunication services.
[Amended 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-10-2000 ATM by Art. 62, approved 8-
2-2000]
The provisions of this section shall not apply to work performed for normal maintenance or
improvement of land in agricultural use as defined under § 136-1A of this chapter.
Such application may be identical in form to a notice of intent filed pursuant to MGL c. 131, § 40,
shall be sent by certified mail or by hand delivery to the Town of Nantucket Conservation
Commission (the "Commission") and must be filed concurrently with or after applications for all
other variances and approvals required by the Zoning Bylaw,!"! the Subdivision Control Law or any
other bylaw or regulation have been obtained. The Commission shall set filing fees for filings
pursuant to this chapter by regulation, but no filing fee is required when the Town or County of
Nantucket or Nantucket Islands Land Bank files an application for a permit. The Commission is
authorized to require an applicant to pay the costs and expenses of any expert consultant deemed
by the Commission necessary to enable the Commission to evaluate the application. This provision
shall apply to all expert consultants providing services to the Commission with respect to the effects
of the proposed work or activities on the environment, including, without limitation, services in the
fields of environmental engineering and marine biology. The costs and expenses assessed to an
applicant shall reflect the actual costs and expenses incurred by the Commission for such services.
If the proposed project meets the definition of a "major commercial development," as defined in
§ 139-11B of the Code of the Town of Nantucket, or if such project includes more than four lots, the
costs and expenses assessed. to the applicant shall not, in any event, exceed $5,000 per
application. In all other instances, the costs and expenses assessed to the applicant shall not, in
any event, exceed $2,500 per application. Copies of the application shall be sent, at the same time.
by certified mail, to the Select Board, the Planning Board and the Board of Health
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-10-1989 ATM by Art. 126, approved
7-4-1989; 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-15-2003 ATM by Art. 26, approved 8-
27-2003; 6-25-2020 ATM by Art. 70, approved 10-27-2020]
[1] Editor's Note: See Ch. 139, Zoning.
Any person who desires a determination as to whether this Nantucket wetlands chapter applies to
land or to work that may affect an area subject to protection under this chapter may submit to the
Conservation Commission by certified mail or hand delivery a written request which may be
identical in form to a request for determination filed pursuant to MGL c. 131, § 40, Form 1 of 310
CMR 10.99. The Commission shall within 21 days of receipt make a written determination to such
request which may be identical in form to Form 2 of 310 CMR 10.99. Notice of the time and place
of the public meeting at which the determination is to be made shall be given by the Commission at
the expense of the applicant, not less than five days prior to the public meeting, by publication in a
newspaper of general circulation in Nantucket. At least five days prior to the public meeting, by
certified mail, return receipt requested, the applicant shall send a copy of the notice of the public
meeting, supplied by the Commission, to all abutters, as certified by the Assessor from the Town's
most recent Assessor's list. Postmarked mailing receipts and the certified abutter's list shall be
presented to the Commission at the opening of the public meeting. The Commission may
determine that the work described in a request is in an area subject to this chapter but will not alter
the wetland and, because the work is of a limited extent, does not require a permit, notwithstanding
the other provisions of this chapter.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 6-27-1989 STM by Art. Il
approved 10-17-1989]
Members of the Commission, its employees and agents may enter upon privately owned land to
perform their duties under this section and may, in furtherance thereof, take samples and
photographs and made examinations, inspections and surveys.
[Added 4-10-1989 ATM by Art. 126, approved 7-4-1989]
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Permit and waiver rehearing limit. No permit or waiver which has been unfavorably and finally acted
upon by the, Commission shall again be eligible for consideration on a‘new application within three
years after the date of final unfavorable action unless the Commission finds, by a favorable vote of
a majority of the members then present and voting, specific and material changes in the
circumstances upon which the previous unfavorable action was based and describes such changes
in the records of its proceedings: 1
1
[Added 4-12-1999 ATM by Art. 61, approved 8-10-1999]
§ 136-4..Hearing; determination; enforcement orders; appeals
plan changes or modifications
A. The Commission shall hold a public hearing on the application within 21 days of its receipt. Notice
of the time and place of the hearing shall be given by the Commission at the expense of the
applicant, not less than five days prior to the hearing, by publication in a newspaper of general
circulation in Nantucket and by mailing a notice to the applicant, the Board of Health, the Select
Board, the Planning Board, all abutters, the property owner if different from the applicant and to
such other persons as the Commission may by regulation determine. At least five days prior to the
public hearing, by certified mail, return receipt requested, the applicant shall senda 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. 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
Commission, its agents, officers and employees, may enter upon privately owned land for the
purpose of performing their duties under this chapter.
[Amended 5-17-1988 ATM by Art. 95, approved 9- 28-1988; 6-27-1989 STM by Art. Il, approved 10-
17-1989; 6-25-2020 ATM by Art. 70, approved 10-27-2020]
Permit‘and conditions. If, after the public hearing, the Commission determines that the area which
is the subject of the application is significant to the interests of this chapter, the Commission shall:
within 21 days of such hearing, issue or deny a permit for the work requested. If it issues a permit
after making such: determination, the Commission shall impose such conditions as it determines
are necessary.or desirable for protection of those interests, and all work shall be done in
accordance with‘those ‘conditions. If the Commission determines that the area which is the subject
of the application is not significant to the interests protected by this chapter or that the proposed
activity does not require the imposition of conditions, it shall issue a permit without conditions within
21 days of the public hearing. Permits shall-expire three years from the date of issuance unless
renewed prior to expiration. Permits may be extended for three one-year periods. The Commission
may determine by regulation standards for the granting or denial of an extension.
[Amended 5-17-1988 ATM by.Art. 95, approved: 9-28-1988; 4-9-2001 ATM by Art. 44, approved &
4-2001]
Relationship to MGL c. 131, § 40. Since the Wetlands: Protection Act, MGL c. 131, § 40,
establishes minimum standards, the Commission shall not impose additional or more’ stringent
conditions in. an order pursuant to MGL c. 131, § 40, than it imposes pursuant to this chapter; nor
shall it require a notice of intention filed under MGL c. 131, §-40, to provide additional materials or
data to those required under this chapter. 1
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D. The Commission may continue or adjourn a public hearing for a permit in the following situations i
'
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
(1) With the consent of the applicant, to'an agreed-upon date which shall be announced at the
hearing; or
(2) Without the consent of the applicant, to a date certain for the reasons stated at the hearing,
including receipt of additional information from the applicant or others.
-
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12/21/22, 11:46 AM ‘Town of Nantucket, MA Wetlands
—. The Commission may deny or revoke a permit at any time, even after commencement or
completion of work, if the applicant fails to comply with the requirements of this chapter, fails to
comply with the regulations promulgated pursuant to this chapter, fails to comply with the conditions
of a permit issued pursuant to this chapter or if the applicant fails to submit necessary information
or plans requested by the Commission. The inaccuracy or incompleteness of plans or other
information required to be submitted to the Commission shall be grounds for denial or revocation of
an application. This provision shall apply even if such inaccuracy or incompleteness is not apparent
until: after a permit has been issued and shall apply whether or not such inaccuracy or
incompleteness is the result of intentional or willful conduct.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 4-10-1989 ATM by Art. 126,
approved 7-4-1989] .
When the Commission determines that any work is performed in violation of this chapter, the
regulations promulgated pursuant to this chapter or the conditions specified in a permit issued
pursuant to this chapter, the Commission may issue an enforcement order. The Commission may
promulgate regulations to effectuate the purposes of this section.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
Any party aggrieved by a permit issued pursuant to this chapter may file a complaint seeking relief
in the Superior Court of the County of Nantucket not more than 20 days after the issuance of the
permit by the Commission.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
Prior to the commencement of any work permitted or required by a permit issued pursuant to this
chapter,.the permit shall be recorded by the applicant in the Nantucket Registry of Deeds or with
the Nantucket Registry of the Land Court, within the chain of title of the affected property.
Certification of recording shall be sent to the Commission.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
Persons applying for or holding a valid permit who wish to make plan changes shall request in
writing permission to do so. The Commission may determine that the plan changes are not
significant and no further action is required or that the plan changes are significant and a new
application for a permit or notice of intent must be filed in writing. Within 21 days of the issuance of
an occupancy permit by the Building Inspector for any work or activity covered by a permit issued
by the Commission, the applicant shall apply for a certificate of compliance from the Commission
certifying that the work or activity has been completed as authorized and in compliance with the
permit. As a condition to issuance of such certificate, the Commission, its members, employees or
agents may enter on privately owned land and take samples and photographs and make
examinations, inspections and surveys. If the Commission determines that the work or activity has
in fact been completed as authorized and in compliance with the permit, it shall issue a certificate of
compliance to the. applicant. Failure of the applicant to comply with this provision shall constitute a
violation within the meaning of § 136-10A and shall be punishable as provided therein.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 4-10-1989 ATM by Art. 126,
approved 7-4-1989] ~
For any project which the Commission determines will have a detrimental effect on a wetland
scenic view, the Commission may require that the project be modified in a-manner that mitigates
the effect on the wetland scenic view. Such requirements may include but are not limited to: i
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
(1) Building size or height restrictions.
(2) Imposition of distance restrictions between existing structures and proposed new structures.
(3) Landscaping and revegetation requirements.
The Conservation Commission may deny or revoke a permit at any time where the proposed
activity or previously permitted activity poses a reasonably foreseeable threat to the public health
and safety as certified by the Chief of Police, Fire Chief, Health Inspector, Marine Superintendent,
or Building Commissioner.
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[Added 4-12-2004 ATM by Art. 50, approved 9-3-2004]
§ 136-5. Emergency projects.
[Amended 4-12-2004 ATM by Art. 51, approved 9-3-2004]
An emergency project is an activity in a resource area or its buffer that is necessary to protect the public
health and’ safety, and which, because of the conditions giving rise to the emergency, to be performed
effectively cannot await compliance with the notice requirements and appeal periods associated with
the filing of a notice of intent-or request for determination of applicability. An emergency project may.
proceed only upon: the issuance of an emergency certification from the Conservation Commission,
which shall comply with the following procedures:
A. Any person requesting to.undertake an emergency project’ shall specify why the. project is
necessary for the protection of the. public health and safety and which agency or subagency of the
Commonwealth of Massachusetts is to perform the project or has ordered the project to be
performed;
An emergency certification shall be issued only for the protection of public health or safety;
If the project is certified to be an emergency by the Conservation Commission, the certification shall
include a description of the. work which is to be allowed and shall not authorize work different or
more extensive than that necessary to abate the emergency which gave rise to that certification;
An emergency permit shall be issued only following a site inspection by a.member of the
Conservation Commission, or an authorized representative thereof;
All work performed pursuant to an emergency certification shall be completed within 30 days of
issue;
Within 21 days of commencement of an emergency project, a notice of intent, or, where
appropriate, a request for determination of applicability, shall’ be filed with the Conservation
Commission for review as provided by this chapter. In the event that such a filing is not timely
received by the Conservation Commission, or is incomplete, or such filing is denied for any reason,
the Commission may revoke or modify an emergency project certification and/or order appropriate
restoration and mitigation measures.
§ 136-6. Preacquisition violation.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988]
Any person who purchases, inherits or otherwise acquires real estate upon which work has been done
in violation of the provisions of this chapter or in violation of any permit issued. pursuant to this chapter
shall forthwith comply with any such order or restore such land to its condition prior to any such
violation; provided, however, that no action, civil or criminal, shall be brought against such person
unless commenced within three years following the date of acquisition of the real estate by such person
or five years after the violation, whichever is earlier.
§ 136-7. Promulgation of rules and regulations.
After due notice and public hearing, the Commission may promulgate rules and regulations to effectuate
the purposes of this chapter. Failure by the Commission to promulgate such rules and regulations or a
legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of
this chapter.
§ 136-8. Burden of proof.
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The applicant shall have the burden of proving by a preponderance of the credible evidence that the
work proposed in the application shall not harm the interests protected by this chapter. Failure to
provide adequate evidence to the Commission supporting a determination that the proposed work will
not harm the interests protected by this chapter shall be sufficient cause for the Commission to deny a
permit or grant a permit with conditions or, in the Commission's discretion, to continue the hearing to
another date.to enable the applicant or others to present additional evidence.
§ 136-9. Security.
The Commission may require, as a permit condition, that the performance and observance of other
conditions be secured by one or both of the following methods:
A. By a bond or deposit of money or negotiable securities in an amount determined by the
Commission to be sufficient and payable to the Town of Nantucket. The bond shall be released by
the Commission only after the Commission issues a certificate of compliance.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988]
By a conservation restriction, easement or other covenant running with the land, executed and
properly recorded (or registered, in the case of registered land).
§ 136-10. Violations and penalties; enforcement.
[Amended 4-10-1989 ATM by Art. 126, approved 7-4-1989]
A. Any person who violates any provision of this chapter or of any condition of a permit issued
pursuant to it shall be‘ punished by a fine of not more than $300. Each day or portion thereof during
which a violation continues shall constitute a separate offense; if more than one, each condition
violated shall constitute a separate offense. The fine set forth herein is in addition to any fine levied
under the Wetlands Protection Act, MGL c. 131, § 40. This chapter may be enforced pursuant to
MGL c. 40, § 21D, by a Town police officer or other officer having police powers.
Upon request of the Commission, the Select Board and Town Counsel shall take such civil legal
actions, including the bringing of actions for injunctive and monetary relief, as may be necessary to
enforce this chapter and permits issued pursuant to it. Upon request of the Commission, the Chief
of Police shall take such legal actions'under the criminal law as may be necessary to enforce this
chapter and permits issued pursuant to it.
[Amended 6-25-2020 ATM by Art. 70, approved 10-27-2020]
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*/ COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT OF THE MASSACHUSETTS TRIAL COURT NANTUCKET, ss. C.A. No. 2275CVOOO0 3% WILLIAM FARRELL, ANNE FARRELL, FILED" LAURIE CHAMPION, JEAN FRANCOIS FORMELLA, THOMAS HOLLAND, and DEC 22 2022 MICHAEL GAITO and JANE GAITO as Trustees of the GAITO FAMILY TRUST, NANTUCKET SUPERIOR Plaintiffs, COURT CLERK Vv. COMPLAINT TOWN OF NANTUCKET CONSERVATION COMMISSION and its Members solely in their Official Capacity, J GRAHAM GOLDSMITH, and WESTMOOR CLUB LLC, Defendants. Introduction Plaintiffs William Farrell, Anne Farrell, Laurie Champion, Jean Francois Formella, Thomas Holland, and Michael Gaito and Jane Gaito, as Trustees of the Gaito Family Trust (together the “Appellants”) appeal a decision of the defendant Nantucket Conservation Commission (the “Commission”). The Westmoor Club is a large commercial operation providing recreational opportunities to its members, including on clay and grass tennis courts | directly adjacent to a large wetland area with a vernal pool. The Commission, after a single brief hearing, authorized the construction of more staff housing for the Westmoor Club entirely within a buffer zone between these courts and a certified vernal pool that provides critical habitat for 15611402.1 certain species in the area. Several of the Appellants own property on which the same wetland and vernal pool are located. The Appellants are concerned about the health of this sensitive ecosystem and also the impacts to their property that will flow from the proposed project. The full scope of the impacts on the Appellants are unknown because the proposal was approved by the Commission without adequate information. ! The Appellants know that the proposal includes grading to increase the steepness of a hill above the wetland, changing the surface from grass to gravel and some hardscape, and construction of two new buildings. The Appellants know that the Commission ignored its own regulations designed to protect sensitive habitat, and endorsed the mapping of the high water mark for a vernal pool in October, where a vernal pool by the Commission’s definition in its regulations exists temporarily in the spring and summer. The Commission failed to require the Westmoor Club to demonstrate that grading and changing the surface of the ground will nonetheless avoid a significant increase in stormwater flow into the wetland and vernal pool—stormwater (very likely bearing pollutants) that will flow onto certain of the Appellants’ properties where these resource areas are located. The Commission also failed to determine where trenching for drainage, sewer, and water will be located so as to assure this construction will not harm protected resource areas. The Appellants respectfully ask that this Court find that the Commission failed to adhere to its own regulations and that the Westmoor Club failed to provide adequate information. The Appellants seek relief in the nature of certiorari overturning the Commission’s determination as 1 The Nantucket Conservation Commission in issuing the Order of Conditions did so under both the state wetlands act, codified at G.L. c. 131, § 40, and the local wetlands bylaw codified as Chapter 136 of the Town of Nantucket Bylaws. The decision under the state wetlands act is the subject of a separate application to the Massachusetts Department of Environmental Protection for a superseding order of conditions pursuant to 310 CMR 10.05(7)(a). This appeal seeks review in the nature of certiorari solely under the local bylaw. See City of Bos. v. Conset tion Comm'n of Quincy, 490 Mass. 342, 344 (2022) (Noting that relief under G.L. c. 249, § 4 is the appropriate avenue for seeking review under a local wetlands law). 15611402.1 one that is arbitrary, capricious, unreasonable and not supported by the evidence provided or, alternatively, remanding the matter back to the Commission for a further hearing with adequate information about the impacts of the proposed improvements. Jurisdiction 1 This Honorable Court has jurisdiction over this matter pursuant to G.L. c. 249, § 4 and Town of Nantucket Bylaw Section 136-4-G. Parties 2. Plaintiffs William Farrell and Anne Farrell own 94 Cliff Road in Nantucket, which abuts the parcel the Westmoor Club proposes to improve. 3 Plaintiff Laurie Champion owns 4 Old Westmoor Farm Road in Nantucket, which abuts the parcel the Westmoor Club proposes to improve. 4. Plaintiff Jean Francois Formella owns 8 Old Westmoor Farm Road, Nantucket, which abuts the parcel the Westmoor Club proposes to improve. 5 Plaintiff Thomas Holland owns 30 Pilgrim Road in Nantucket, which abuts the parcel the Westmoor Club proposes to improve. 6 Plaintiffs Michael Gaito and Jane Gaito, own 92 Cliff Road in Nantucket, which abuts the parcel the Westmoor Club proposes to improve, as trustees of the Gaito Family Trust. 7. Defendant Town of Nantucket Conservation Commission (the “Commission”) is the sole public body tasked with application and enforcement of the Nantucket Wetlands Bylaw (“Bylaw”) and the Nantucket Wetlands Regulations (“Regulations”). A copy of the Bylaw is attached as Exhibit A and a copy of the Regulations is attached as Exhibit B. 15611402,1 8. J. Graham Goldsmith was the applicant who filed a Notice of Intent seeking approval from the Commission to add staff housing to property owned by Westmoor Club, LLC. A copy of the Notice of Intent is appended to this Complaint as Exhibit C. 9 Westmoor Club, LLC (the “Westmoor Club”) is a domestic limited liability company with an address of 10 Westmoor Lane, Nantucket, Massachusetts 02554 that owns or controls 14+ acres of contiguous land used for commercial recreational purposes, including the parcel of land for which the improvements from the Commission were sought. The Order of Conditions authorizing improvements to the Westmoor Club’s property at issue in this case (the “Decision”) is attached as Exhibit D. Facts 10. The Westmoor Club owns 14+ acres of adjoining parcels but only provided notice of the Notice of Intent to the immediate abutters to one of the parcels, which is not how the Bylaw and Regulations contemplate notice issuing under the Bylaw when one property is comprised of multiple parcels. ll. The Commission is the public body tasked with reviewing applications for permits to carry out improvements in any area covered by Section 136-3-A of the Bylaw, which includes freshwater wetlands and certified vernal pools. “12. The Commission is tasked with promulgating definitions “to effectuate the purposes of” the Bylaw pursuant to Section 136-1 of the Bylaw. 13. The Commission is tasked with promulgating rules and regulations “to effectuate 1 i the purposes” of the Bylaw pursuant to Section 136-7 of the Bylaw. 1 14. The definition of “vernal pool habitats” is found in Section 390-2 of the Regulations (pp. 6-7 of Exhibit B) under the definition of “habitat,” which states as follows: 15611402.1 “Vernal pool habitats,” regardless of whether the site has been certified by the Massachusetts Natural Heritage and Endangered Species Program, are defined as confined basin depressions which, at least most years, hold water for a minimum of two continuous months during the spring and/or summer, and which are free of adult fish populations. Areas within 100 feet of the mean annual boundaries of such depressions, to the extent that such habitat is within an area subject to protection under the Town of Nantucket Wetlands Protection Bylaw as specified in Chapter 136, Wetlands, § 136-3, of the Code of the Town of Nantucket, are deemed essential breeding habitat, and provide other extremely important habitat functions during the nonbreeding season as well, for a variety of amphibian species, and are important habitat for other wildlife species, and shall be considered significant to the interests of the Town of Nantucket Wetlands Protection Bylaw. (emphasis added). 15. Section 390-21-B of the Regulations (p. 36 of Exhibit B) sets out the regulations for activity near habitat areas. One of the regulations (Section 390-21-B-(2) on p. 36 of Exhibit B)is: No activity shall be permitted that results in the construction or enlargement of a structure within 75 feet of verified rare/significant species habitat, including certified vernal pools, and vernal pools defined in § 390-2. 16. The Notice of Intent submitted to the Commission identifies the buffer zone around a freshwater wetland and a certified vernal pool. See Exhibit C p. 41. 17. The Notice of Intent submitted to the Commission identifies the “mean. high water” mark for the vernal pool, and identifies that it was mapped in October of 2022. See Exhibit C p. 41. 18. By definition in the Regulations “vernal pool habitat” is a confined basin depression that holds water in the spring and/or summer. See Exhibit B, p.7. 19. There is no scientific support for identifying the high water mark of a vernal pool in October, unless the determination is based on factors besides where the mean high water is at that point in the year. 15611402.1 20. The plan and other materials before the Commission do not assert that the mean high water mark was determined in any way except by measuring where the mean high water was in October of 2022. 21. The Commission, by adopting the measurement of mean high water for a vernal pool taken in October when issuing the Decision, acted contrary to its own. regulations and principles of good science, and in a manner that is arbitrary, capricious, and unreasonable. 22. The plan presented to the Commission shows that the entire structure will be located within 100 feet of the vernal pool. 23. The Commission’s regulations specifically state that the area within 100 feet of a vernal pool is “essential breeding habitat, and provide[s] other extremely important habitat functions during the nonbreeding season as well, for a variety of amphibian species.” See Exhibit B, pp. 6-7 definition of “habitat” in Section 390-2 of the Regulations. 24. In issuing the Decision, the Commission failed to even consider whether constructing a house within this habitat would have a negative impact on the species that rely upon the habitat, and in doing so acted in a manner that is arbitrary, capricious, unreasonable, and contrary to its own rules and regulations. 25. It is unreasonable to determine that a building that goes up to the erroneously-located 75-foot buffer to the vernal pool will have no impact on the vernal pool, where the regulations themselves allow no construction whatsoever within the 75- foot buffer. See Exhibit B, p. 36. 15611402.1 26. It is likely that the high water mark will be closer to the proposed improvements if properly mapped in the spring or summer. 27. The proposal authorized by the Commission involves changes in topography and alterations to the existing pervious vegetation to construct two buildings. 28. In issuing the Decision, the Commission failed to consider where the stormwater runoff from the property will go—merely directing instead that the roof runoff be captured. The Commission’s failure to require this information from the Westmoor Club was arbitrary and capricious and a dereliction of its duty to protect the resource areas governed by the Bylaw. 29. The Notice of Intent states that the project is exempt from state stormwater standards because it is a single-family dwelling, but the main proposed structure is to be used as staff housing for the Westmoor Club—a commercial entity—and state stormwater standards do apply under the Bylaw when the proposed use is commercial in nature. 30. In issuing the Decision, the Commission failed to consider or inquire about the path to be taken to the sewer and water system serving the Westmoor Club and whether those lines will exit the structures up against the erroneously-located 75-foot buffer to the vernal pool and go into jurisdictional areas governed by the Bylaw. The Commission’s failure to require this information from the Westmoor Club was arbitrary and capricious and a dereliction of its duty to protect the resource areas governed by the Bylaw. 31. Tn issuing the Decision, the Commission failed to consider or inquire about the path taken for the storage of any roof runoff and whether that drainage will exit 15611402.1 the structures up against the erroneously-located 75-foot buffer to the vernal pool and cross jurisdictional areas governed by the Bylaw. The Commission’s failure to require this information from the Westmoor Club was arbitrary and capricious and a dereliction of its duty to protect the resource areas governed by the Bylaw. 32. In issuing the Decision, the Commission failed to consider or inquire about how the changed topography and changed surfaces will impact the wetland and vernal pool. The Commission’s failure to require this information from the Westmoor Club was arbitrary and capricious and a dereliction of its duty to protect the resource areas governed by the Bylaw. 33. In general, the information presented to the Commission was incomplete and inadequate for the Commission to make a determination in the Decision that none of the resource areas governed by the Bylaw will be impacted or harmed. 34, The newly-authorized change in topography that makes the drop to the wetlands much steeper, and the change in groundcover from grass to gravel and other landscaping features will alter and change the amount and quality of water flow into the wetland and vernal pool. 35. The Commission failed to determine where stormwater from the site will flow, or how the stormwater flow will be different after the improvements are constructed. 36. The Commission failed to recognize that the stormwater will be flowing from carefully-maintained grass tennis and croquet courts over gravel and down a much steeper embankment into the wetland and vernal pool. 15611402.1 37. William Farrell and Anne Farrell own and control a parcel of property that abuts the Westmoor Club parcel at issue, and the wetland and vernal pool straddle the lines of both parcels. 38. The likely increase and change in quality of water flow from the proposed project will alter the wetland and vernal pool and will directly and negatively impact William Farrell and Anne Farrell. 39. Thomas Holland owns and controls an improved parcel of property that abuts the Westmoor Club parcel at issue, and the wetland and vernal pool straddle the lines of both parcels. 40. The likely increase and change in quality of water flow from the proposed project will alter the wetland and vernal pool and will directly and negatively impact Thomas Holland. 4l. Michael Gaito and Jane Gaito, as Trustees of the Gaito Family Trust, own and control an improved parcel property that abuts the Westmoor Club parcel at issue, and the wetland and vernal pool straddle the lines of both parcels. 42. The likely increase and change in quality of water flow from the proposed project will directly and negatively impact Michael Gaito and Jane Gaito as trustees of the Gaito Family Trust. Count I Relief in the Nature of Certiorari, G.L. c. 249, § 4 43. Paragraphs 1 through 42 are incorporated as if restated here. 44. The Commission did not have enough information to make the determination in the Decision that no resource areas protected by the Bylaw will be impacted by the proposed improvements to the Westmoor Club’s property. 15611402,1 45, In issuing the Decision, the Commission ignored its own regulations concerning the definition of “vernal pool habitat” and adopted a measurement taken in October when the water level is (and should be) lower than in spring or summer. 46. In issuing the Decision, the Commission ignored its own regulations and allowed the construction of a structure that will directly and negatively impact the abutting wetland and vernal pool habitat, and will directly and negatively impact several of the plaintiffs who own property upon which that wetland and vernal pool habitat sits. 47. In issuing the Decision, the Commission ignored its own regulations that specifically identify the area in which the proposed structures and improvements will be built as essential habitat for animal species. 48. In issuing the Decision, the Commission failed to require information about changes to stormwater runoff, where the stormwater runoff will originate, what the stormwater runoff will contain, and how the stormwater runoff will impact the wetland and vernal pool. 49. In issuing the Decision, the Commission failed to require information about how the proposed staff housing will be connected to water, sewer, and drainage facilities. 50. Wherefore the Plaintiff is entitled to a judgment of this Court that the Decision is arbitrary, unreasoriable, whimsical, and capricious. Prayer for Relief WHEREFORE the Plaintiff prays that this Honorable Court will: 10 15611402.1 a. Adjudge that the Decision is arbitrary, unreasonable, whimsical, and capricious because the Commission ignored its own Regulations and/or failed to require adequate information in issuing the Decision; b. Overturn the Decision as one that is arbitrary, capricious, unreasonable, whimsical, and fails to comport with the Bylaw and Regulations; or, alternatively; c. Remand the matter back to the Commission with an order that the Commission obtain and consider additional information regarding the impacts and potential impacts on resource areas protected by the Bylaw and Regulations; d Grant the Appellants their attorneys’ fees and costs; and e. Grant such further relief as the Court deems meet and just. Respectfully submitted, WILLIAM FARRELL, ANNE FARRELL, LAURIE CHAMPION, JEAN FRANCOIS FORMELLA, THOMAS HOLLAND, and MICHAEL GAITO and JANE GAITO, as Trustees of the GAITO FAMILY TRUST, By their Attorneys, /s/ Joel Quick Donald R. Pinto, Jr., BBO No. 548421 dpinto@pierceatwood.com Daniel J. Bailey, BBO No. 552612 dbailey@pierceatwood.com Joel Quick, BBO No. 694265 jquick@pierceatwood.com Pierce Atwood LLP 100 Summer Street Boston, Massachusetts 02110 (617) 488-8100 December 22, 2022 11 15611402.1 EXHIBIT A 12/21/22, 11:46 AM Town of Nantucket, MA Wetlands Select Language v Town of Nantucket, MA Wednesday, December 21, 2022 Chapter 136. Wetlands [HISTORY: Adopted by the Annual Town. Meeting of the Town of Nantucket 4-5-1983 by Art. 29, approved 8-19-1983. Amendments noted where applicable.] GENERAL REFERENCES Zoning — See Ch. 139. § 136-1. Definitions. [Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-8-1996 ATM by Art. 47, approved 7-15- 1996; 4-10-2000 ATM by Art. 62, approved 8-2-2000; 4-12-2004 ATM by Art. 52, approved 9-3-2004] Through its authority to promulgate regulations pursuant to § 136-7, the Conservation Commission shall adopt definitions to effectuate the purposes of this chapter. The definitions for "agricultural practices," "alter," and "person" shall be included in the Nantucket Wetland Regulations, subject to future revision as set forth in § 136-7. The Commission is directed to revise its regulations pursuant to § 136-7 to incorporate the current definition for "habitat" into the defi- nitions for "habitat" contained within the Wetland Regulations, prior to this amendment taking effect. § 136-2. Purpose. [Amended 4-8-1996 ATM by Art. 47, approved 7-15-1996] The purpose of this chapter is to protect the wetlands of the Town of Nantucket by controlling activities deemed to have a significant or cumulative effect upon wetland values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion control, storm damage prevention, water pollution, fisheries, shellfish, wildlife, rare species, including rare, threatened or endangered plant species and animals and habitats, recreation and wetland scenic views (collectively, "the interests protected by this chapter"). This chapter is intended to utilize the Home Rule Authority of this municipality to protect additional resource areas for additional values, with additional standards and procedures in addition to those of the Wetlands Protection Act, MGL c. 131, § 40, and regulations thereunder, 310 CMR 10.00. § 136-3. Permit required; procedure. 1 1 i A. No person shall commence to remove, fill, dredge, alter or build upon or within 100 feet of any bank, freshwater wetland, coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp or upon or within 100 feet of any estuary, creek, river, stream, pond or lake or upon or within 100 feet of any land subject to tidal action, coastal storm flowage, inland or.coastal flooding or inundation or within 100 feet of the hundred-year storm line or within any area located within the geographic boundaries of the resource areas listed previously that is habitat for rare/significant wildlife and/or fauna, including Department of Environmental Protection certified vernal pools, without filing written application for a permit to remove, fill, dredge, alter or build upon, including such plans as may be necessary to describe such proposed activity and its effect on the environment, and receiving and complying with the permit issued pursuant to this chapter. Said resource areas shall be protected whether or not they border surface waters. The application and permit required by this chapter shall https://ecode360.com/printNA0948?guid=11471327 116 12/21/22, 11:46 AM Town of Nantucket, MA Wetlands not be required for maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas, water, telephone, telegraph and other telecommunication services. [Amended 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-10-2000 ATM by Art. 62, approved 8- 2-2000] The provisions of this section shall not apply to work performed for normal maintenance or improvement of land in agricultural use as defined under § 136-1A of this chapter. Such application may be identical in form to a notice of intent filed pursuant to MGL c. 131, § 40, shall be sent by certified mail or by hand delivery to the Town of Nantucket Conservation Commission (the "Commission") and must be filed concurrently with or after applications for all other variances and approvals required by the Zoning Bylaw,!"! the Subdivision Control Law or any other bylaw or regulation have been obtained. The Commission shall set filing fees for filings pursuant to this chapter by regulation, but no filing fee is required when the Town or County of Nantucket or Nantucket Islands Land Bank files an application for a permit. The Commission is authorized to require an applicant to pay the costs and expenses of any expert consultant deemed by the Commission necessary to enable the Commission to evaluate the application. This provision shall apply to all expert consultants providing services to the Commission with respect to the effects of the proposed work or activities on the environment, including, without limitation, services in the fields of environmental engineering and marine biology. The costs and expenses assessed to an applicant shall reflect the actual costs and expenses incurred by the Commission for such services. If the proposed project meets the definition of a "major commercial development," as defined in § 139-11B of the Code of the Town of Nantucket, or if such project includes more than four lots, the costs and expenses assessed. to the applicant shall not, in any event, exceed $5,000 per application. In all other instances, the costs and expenses assessed to the applicant shall not, in any event, exceed $2,500 per application. Copies of the application shall be sent, at the same time. by certified mail, to the Select Board, the Planning Board and the Board of Health [Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-10-1989 ATM by Art. 126, approved 7-4-1989; 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-15-2003 ATM by Art. 26, approved 8- 27-2003; 6-25-2020 ATM by Art. 70, approved 10-27-2020] [1] Editor's Note: See Ch. 139, Zoning. Any person who desires a determination as to whether this Nantucket wetlands chapter applies to land or to work that may affect an area subject to protection under this chapter may submit to the Conservation Commission by certified mail or hand delivery a written request which may be identical in form to a request for determination filed pursuant to MGL c. 131, § 40, Form 1 of 310 CMR 10.99. The Commission shall within 21 days of receipt make a written determination to such request which may be identical in form to Form 2 of 310 CMR 10.99. Notice of the time and place of the public meeting at which the determination is to be made shall be given by the Commission at the expense of the applicant, not less than five days prior to the public meeting, by publication in a newspaper of general circulation in Nantucket. At least five days prior to the public meeting, by certified mail, return receipt requested, the applicant shall send a copy of the notice of the public meeting, supplied by the Commission, to all abutters, as certified by the Assessor from the Town's most recent Assessor's list. Postmarked mailing receipts and the certified abutter's list shall be presented to the Commission at the opening of the public meeting. The Commission may determine that the work described in a request is in an area subject to this chapter but will not alter the wetland and, because the work is of a limited extent, does not require a permit, notwithstanding the other provisions of this chapter. [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 6-27-1989 STM by Art. Il approved 10-17-1989] Members of the Commission, its employees and agents may enter upon privately owned land to perform their duties under this section and may, in furtherance thereof, take samples and photographs and made examinations, inspections and surveys. [Added 4-10-1989 ATM by Art. 126, approved 7-4-1989] hittps://ecode360.com/printNA0948?guid=11471327, , : | 12124122, 11:46 AM F. Town of Nantucket, MA Wetlands | Permit and waiver rehearing limit. No permit or waiver which has been unfavorably and finally acted upon by the, Commission shall again be eligible for consideration on a‘new application within three years after the date of final unfavorable action unless the Commission finds, by a favorable vote of a majority of the members then present and voting, specific and material changes in the circumstances upon which the previous unfavorable action was based and describes such changes in the records of its proceedings: 1 1 [Added 4-12-1999 ATM by Art. 61, approved 8-10-1999] § 136-4..Hearing; determination; enforcement orders; appeals plan changes or modifications A. The Commission shall hold a public hearing on the application within 21 days of its receipt. Notice of the time and place of the hearing shall be given by the Commission at the expense of the applicant, not less than five days prior to the hearing, by publication in a newspaper of general circulation in Nantucket and by mailing a notice to the applicant, the Board of Health, the Select Board, the Planning Board, all abutters, the property owner if different from the applicant and to such other persons as the Commission may by regulation determine. At least five days prior to the public hearing, by certified mail, return receipt requested, the applicant shall senda 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. 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 Commission, its agents, officers and employees, may enter upon privately owned land for the purpose of performing their duties under this chapter. [Amended 5-17-1988 ATM by Art. 95, approved 9- 28-1988; 6-27-1989 STM by Art. Il, approved 10- 17-1989; 6-25-2020 ATM by Art. 70, approved 10-27-2020] Permit‘and conditions. If, after the public hearing, the Commission determines that the area which is the subject of the application is significant to the interests of this chapter, the Commission shall: within 21 days of such hearing, issue or deny a permit for the work requested. If it issues a permit after making such: determination, the Commission shall impose such conditions as it determines are necessary.or desirable for protection of those interests, and all work shall be done in accordance with‘those ‘conditions. If the Commission determines that the area which is the subject of the application is not significant to the interests protected by this chapter or that the proposed activity does not require the imposition of conditions, it shall issue a permit without conditions within 21 days of the public hearing. Permits shall-expire three years from the date of issuance unless renewed prior to expiration. Permits may be extended for three one-year periods. The Commission may determine by regulation standards for the granting or denial of an extension. [Amended 5-17-1988 ATM by.Art. 95, approved: 9-28-1988; 4-9-2001 ATM by Art. 44, approved & 4-2001] Relationship to MGL c. 131, § 40. Since the Wetlands: Protection Act, MGL c. 131, § 40, establishes minimum standards, the Commission shall not impose additional or more’ stringent conditions in. an order pursuant to MGL c. 131, § 40, than it imposes pursuant to this chapter; nor shall it require a notice of intention filed under MGL c. 131, §-40, to provide additional materials or data to those required under this chapter. 1 | D. The Commission may continue or adjourn a public hearing for a permit in the following situations i ' [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988] (1) With the consent of the applicant, to'an agreed-upon date which shall be announced at the hearing; or (2) Without the consent of the applicant, to a date certain for the reasons stated at the hearing, including receipt of additional information from the applicant or others. - https://ecode360.com/print/NA0948?guid=11471327 316 12/21/22, 11:46 AM ‘Town of Nantucket, MA Wetlands —. The Commission may deny or revoke a permit at any time, even after commencement or completion of work, if the applicant fails to comply with the requirements of this chapter, fails to comply with the regulations promulgated pursuant to this chapter, fails to comply with the conditions of a permit issued pursuant to this chapter or if the applicant fails to submit necessary information or plans requested by the Commission. The inaccuracy or incompleteness of plans or other information required to be submitted to the Commission shall be grounds for denial or revocation of an application. This provision shall apply even if such inaccuracy or incompleteness is not apparent until: after a permit has been issued and shall apply whether or not such inaccuracy or incompleteness is the result of intentional or willful conduct. [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 4-10-1989 ATM by Art. 126, approved 7-4-1989] . When the Commission determines that any work is performed in violation of this chapter, the regulations promulgated pursuant to this chapter or the conditions specified in a permit issued pursuant to this chapter, the Commission may issue an enforcement order. The Commission may promulgate regulations to effectuate the purposes of this section. [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988] Any party aggrieved by a permit issued pursuant to this chapter may file a complaint seeking relief in the Superior Court of the County of Nantucket not more than 20 days after the issuance of the permit by the Commission. [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988] Prior to the commencement of any work permitted or required by a permit issued pursuant to this chapter,.the permit shall be recorded by the applicant in the Nantucket Registry of Deeds or with the Nantucket Registry of the Land Court, within the chain of title of the affected property. Certification of recording shall be sent to the Commission. [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988] Persons applying for or holding a valid permit who wish to make plan changes shall request in writing permission to do so. The Commission may determine that the plan changes are not significant and no further action is required or that the plan changes are significant and a new application for a permit or notice of intent must be filed in writing. Within 21 days of the issuance of an occupancy permit by the Building Inspector for any work or activity covered by a permit issued by the Commission, the applicant shall apply for a certificate of compliance from the Commission certifying that the work or activity has been completed as authorized and in compliance with the permit. As a condition to issuance of such certificate, the Commission, its members, employees or agents may enter on privately owned land and take samples and photographs and make examinations, inspections and surveys. If the Commission determines that the work or activity has in fact been completed as authorized and in compliance with the permit, it shall issue a certificate of compliance to the. applicant. Failure of the applicant to comply with this provision shall constitute a violation within the meaning of § 136-10A and shall be punishable as provided therein. [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 4-10-1989 ATM by Art. 126, approved 7-4-1989] ~ For any project which the Commission determines will have a detrimental effect on a wetland scenic view, the Commission may require that the project be modified in a-manner that mitigates the effect on the wetland scenic view. Such requirements may include but are not limited to: i [Added 5-17-1988 ATM by Art. 95, approved 9-28-1988] (1) Building size or height restrictions. (2) Imposition of distance restrictions between existing structures and proposed new structures. (3) Landscaping and revegetation requirements. The Conservation Commission may deny or revoke a permit at any time where the proposed activity or previously permitted activity poses a reasonably foreseeable threat to the public health and safety as certified by the Chief of Police, Fire Chief, Health Inspector, Marine Superintendent, or Building Commissioner. https//ecode360.com/print/NA0948?guid=11471327, 416 12121122; 11:46 AM ‘Town of Nantucket, MA Wetlands [Added 4-12-2004 ATM by Art. 50, approved 9-3-2004] § 136-5. Emergency projects. [Amended 4-12-2004 ATM by Art. 51, approved 9-3-2004] An emergency project is an activity in a resource area or its buffer that is necessary to protect the public health and’ safety, and which, because of the conditions giving rise to the emergency, to be performed effectively cannot await compliance with the notice requirements and appeal periods associated with the filing of a notice of intent-or request for determination of applicability. An emergency project may. proceed only upon: the issuance of an emergency certification from the Conservation Commission, which shall comply with the following procedures: A. Any person requesting to.undertake an emergency project’ shall specify why the. project is necessary for the protection of the. public health and safety and which agency or subagency of the Commonwealth of Massachusetts is to perform the project or has ordered the project to be performed; An emergency certification shall be issued only for the protection of public health or safety; If the project is certified to be an emergency by the Conservation Commission, the certification shall include a description of the. work which is to be allowed and shall not authorize work different or more extensive than that necessary to abate the emergency which gave rise to that certification; An emergency permit shall be issued only following a site inspection by a.member of the Conservation Commission, or an authorized representative thereof; All work performed pursuant to an emergency certification shall be completed within 30 days of issue; Within 21 days of commencement of an emergency project, a notice of intent, or, where appropriate, a request for determination of applicability, shall’ be filed with the Conservation Commission for review as provided by this chapter. In the event that such a filing is not timely received by the Conservation Commission, or is incomplete, or such filing is denied for any reason, the Commission may revoke or modify an emergency project certification and/or order appropriate restoration and mitigation measures. § 136-6. Preacquisition violation. [Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988] Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this chapter or in violation of any permit issued. pursuant to this chapter shall forthwith comply with any such order or restore such land to its condition prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such person unless commenced within three years following the date of acquisition of the real estate by such person or five years after the violation, whichever is earlier. § 136-7. Promulgation of rules and regulations. After due notice and public hearing, the Commission may promulgate rules and regulations to effectuate the purposes of this chapter. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this chapter. § 136-8. Burden of proof. https://ecode360.com/printNA0948?guid=11471327 5/6 12/21/22, 11:46 AM Town of Nantucket, MA Wetlands The applicant shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application shall not harm the interests protected by this chapter. Failure to provide adequate evidence to the Commission supporting a determination that the proposed work will not harm the interests protected by this chapter shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions or, in the Commission's discretion, to continue the hearing to another date.to enable the applicant or others to present additional evidence. § 136-9. Security. The Commission may require, as a permit condition, that the performance and observance of other conditions be secured by one or both of the following methods: A. By a bond or deposit of money or negotiable securities in an amount determined by the Commission to be sufficient and payable to the Town of Nantucket. The bond shall be released by the Commission only after the Commission issues a certificate of compliance. [Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988] By a conservation restriction, easement or other covenant running with the land, executed and properly recorded (or registered, in the case of registered land). § 136-10. Violations and penalties; enforcement. [Amended 4-10-1989 ATM by Art. 126, approved 7-4-1989] A. Any person who violates any provision of this chapter or of any condition of a permit issued pursuant to it shall be‘ punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense; if more than one, each condition violated shall constitute a separate offense. The fine set forth herein is in addition to any fine levied under the Wetlands Protection Act, MGL c. 131, § 40. This chapter may be enforced pursuant to MGL c. 40, § 21D, by a Town police officer or other officer having police powers. Upon request of the Commission, the Select Board and Town Counsel shall take such civil legal actions, including the bringing of actions for injunctive and monetary relief, as may be necessary to enforce this chapter and permits issued pursuant to it. Upon request of the Commission, the Chief of Police shall take such legal actions'under the criminal law as may be necessary to enforce this chapter and permits issued pursuant to it. [Amended 6-25-2020 ATM by Art. 70, approved 10-27-2020] https://