SIASCONSET BEACH PRESERVATION FUND, INC. VS. CONSERVATION COMMISSION OF NANTUCKET
On Friday September 2, 2022, a year to the day after the Nantucket Conservation Commission ordered geotubes to be removed from ’Sconset Beach on Nantucket’s eastern shore, a judge of the Superior Court resoundingly affirmed the Commission's order of removal. The geotubes, erosion-control tubes filled with sand placed at the toe of the bluff, were installed several years ago by homeowners who live atop the bluff, the Siasconset Beach Preservation Fund (SBPF). Among its reasons the Court cited for affirming the Commission’s removal order were SBPF’s longstanding history of noncompliance with the Commission’s Order of Conditions (OOC), which SBPF never appealed or sought to amend, and SBPF’s steadfast refusal to bring the project into compliance unless it were expanded.
Hill Law represents the Greenhill family, who own a neighboring property whose shoreline has suffered increased erosion due to the geotubes and SBPF’s failure to place the mitigation sand required by the OOC.
In upholding the Conservation Commission, the Court recognized the Commission’s “undisputed authority to enforce” the state Wetlands Protection Act. (9/2/22 Decision, p. 8) By not appealing the original OOC, or seeking to amend it, SBPF had forfeited any argument for "adaptive mitigation” to lessen the amount of sand:
“Having failed to exhaust such administrative remedies in a timely fashion, the plaintiff is not entitled to litigate the merits of such [sand mitigation] condition through collateral attack at this late date.” (Id., p. 12-13)
And by conditioning compliance with the OOC on expansion of the project, SBPF sought an impermissible “quid pro quo” from the Commission, which it rightfully rejected.
The Commission’s order required the geotubes to be removed within 60 days. The OOC provided for an escrow fund for their removal. The sand within the geotubes will then be placed on the beach.