, Newburyport, MA

January 29, 2013

Process muddies erosion efforts

Questions surround permit request to complete work

By Jennifer Solis

---- — NEWBURY — Plum Island residents are encountering a bureaucratic tangle as they seek to continue efforts to shore up their homes against the devastating impact of beach erosion.

A plan to file a notice of intent with the town’s Conservation Commission and state Department of Environmental Protection in pursuit of a permit for the installation and maintenance of a coir sandbag system along more than 2,000 feet of beachfront became muddled last week.

Local officials were informed that, under the current wording, the 35 affected homeowners would not be allowed to work on their own properties if the town pursues the application.

The sandbags are in place now, but still need to be completely covered with sand before exposure to the elements degrades them.

In a conference call with a representative from DEP’s northeast regional office, Newbury Conservation Agent Doug Packer, Town Administrator Tracy Blais and a representative for town counsel were told that it was “unacceptable” to have homeowners doing the work unless they — not the town — applied for the permit, also known as an order of conditions.

Local officials learned that the request would face “an extreme amount of resistance” if the town were the sole name on the application.

Packer described the conversation as “nonconfrontational” and said he believed “DEP was attempting to help us.” But at the end of the call, the state’s position was left somewhat ambiguous.

“Their final words were, ‘Do what you want to do,’” Packer said.

But one Plum Island resident was critical of DEP’s position.

“If the DEP has the audacity to interrupt people trying to protect their homes — God help them,” Annapolis Way resident Bob Connors said. “It’s continuing bad behavior from (DEP’s) northeast regional office and it’s shameful.”

Connors argued that he suspects DEP’s recommendation for individual homeowners to file separate notices of intent was influenced more by a desire for profit than for proper procedure. The state waives the filing fees for municipalities, but no such accommodations are made for private citizens, he said. And fees for these types of applications can run as high as $200 to $500, he said.

“This is about additional fees for people who are already stressed financially,” Connors said,

Selectmen discussed the town’s possible legal exposure and whether the entire project would be more vulnerable to delays or appeals if all the properties were included under one umbrella application.

Selectman David Mountain suggested that perhaps the state agency didn’t want to set a precedent for other communities by moving forward with a project that places such a large number of properties under one order.

He said the town should participate to the extent that the water and sewer infrastructure were in jeopardy, but felt it was unreasonable to be the sole applicant for work being done on private property.

“We have to represent the entire town,” he said.

Following last month’s winter storms, town officials and emergency crews helped homeowners shore up portions of Plum Island with industrial-type sandbags in an attempt to stem damage from the tides.

The cost for the work — estimated at between $120,000 and $140,000 — is being paid for by the property owners. The town of Newbury was to pitch in $10,000 for engineering costs to supervise the project and to improve anti-erosion measures.

Connors said the DEP commissioner has already weighed in on the question of whether property owners can work under an order of conditions assigned to the town when in March 2011, an attempt by the state to halt similar emergency efforts on Plum Island was successfully appealed.

The October 2011 appeals decision, which the commissioner signed off on, found that property owners were “free to undertake directly or through contractors’” the work outlined in the order of conditions, provided the work was authorized by the town and the property owners were clearly identified in the permit.

Connors argued it made sense for the town to serve as the applicant since it needs to protect its infrastructure and its tax base. The work and the liability would be shouldered by the identified property owners, who have a vested interest in making sure it gets done properly, he said.

He added Annapolis Way is “in catastrophic condition” and other roads nearby, including Southern Boulevard and Fordham Way, are next in line.

After a lengthy discussion, selectmen decided to pursue a compromise approach by having the town and the homeowners serve as co-applicants on separate notice of intent applications for four priority areas.

Nine houses on Annapolis Way will be the top priority. The dunes in that area are severely eroded and the decks of several houses are now within 10 feet of the dune scarp.

The second-highest priority encompasses seven houses located generally north of the intersection of Harvard and Fordham ways, extending about 100 feet south and 400 feet north respectively.

The third priority is 11 houses between the first and second priority areas, where dune conditions are somewhat more stable than in the first two priority areas.

The final area is located to the south of the second priority area, extending to the southern end of Fordham Way, where the beach is a bit wider and the dunes flatter than in other areas.