Opposition Brief — Nelson v. Massachusetts

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ga-143 AUG 23 1994

No. 94-, , THe _GLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994.

ALFRED NELSON, EVELYN NELSON,

LEwis HIcKs III, AND BERNICE HICKS,

Petitioners,

Vv.

COMMONWEALTH OF MASSACHUSETTS AND

TOWN OF CHATHAM,

Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO THE

MASSACHUSETTS SUPREME JUDICIAL COURT

BRIEF IN OPPOSITION FOR THE |

COMMONWEALTH OF MASSACHUSETTS

SCOTT HARSHBARGER

Attorney General

of Massachusetts

WILLIAM L. PARDEE*

MADELYN MoRrRIS

Assistant Attorneys General

1 Ashburton Place

Boston, MA 02108

(617) 727-2200

*Counsel of Record

Question Presented

May the Petitioners maintain their taking claim where the

Massachusetts agency has not yet issued a final decision on

their permit and variance applications, where the agency

proceedings are neither futile nor excessively long, and where

the Petitioners have had the full use of the property throughout

the administrative process?

Table of Contents.

Statement of the Case 2

| Summary of the Argument 7

| Argument 9

|; I. Consistently With Long-Standing Precedent, the

Massachusetts Courts Correctly Held That the

| Nelsons Could Not Maintain Their Taking

Claim Until They Obtained A Final Decision On

Their Permit And Variance Appli-

cations. 9

II. Consistently With Well-Established Precedent,

The Massachusetts Courts Correctly Concluded

That It Was Not Futile For The Nelsons To

Pursue Their Administrative Remedies. 1]

Il. Since the Administrative Process Has Not Been

Shown To Be Futile, The Nelsons Cannot Avoid

The Final Decision Requirement. 14

A. The Nelsons Cannot Establish A Taking Solely

Because It Takes Time To Complete The

Permitting Process. 14

B. The Nelsons Cannot Rely On Coastal Flooding

To Establish A Taking By Physical Invasion. 16

IV. The Massachusetts Courts Properly Handled The

Nelsons’ Facial Challenge To The Regu-

lations. 18

Conclusion 19

Table of Authorities.

Cases.

1902 Atlantic Ltd v. United States,

26 Cl. Ct. 575 (1992)

Agins v. Tiburon, 447 U.S. 255 (1980)

California v. Taylor, 353 U.S. 553 (1957)

Commonwealth v. Alger, 61 Mass. 53 (1851)

Commonwealth v. Tewksbury,

52 Mass. (11 Metc.) 55 (1846)

Dolan vy. City of Tigard, US. _,

1994 Westlaw 876693 (1994)

Dufau v. United States, 22 Cl. Ct. 156 (1990)

First Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987)

Gilbert v. City of Cambridge,

932 F.2d 51 (ist Cir. 1991),

cert. denied, 112 S.Ct. 192 (1991)

Hodel v. Virginia Surface Mining and

Reclamation Ass’n, 452 U.S. 264 (1981)

Kinzli v. City of Santa Cruz,

818 F.2d 1449 (9th Cir. 1987),

cert. denied, 484 U.S. 1043 (1988)

11,

sa hi a aan OR

Lawn v. United States, 355 U.S. 339 (1968)

Lucas v. South Carolina Coastal Council,

112 S.Ct. 2886 (1992)

MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340, reh. den., 478 U.S. 1035 (1986)

Michaelson v. Silver Beach Improvement

Association, Inc., 342 Mass 251,

173 N.E.2d 273 (1961)

Nectow v. Cambridge, 277 U.S. 183 (1928)

Pennel v. San Jose, 485 U.S. 1 (1988)

Pumpelly v. Green Bay Co.,

80 U.S. (13 Wall.) 166 (1871)

Sequin v. City of Sterling Heights,

968 F.2d 584 (6th Cir. 1992)

Smithfield Concerned Citizens v.

Town of Smithfield, 907 F.2d 239 (Ist Cir. 1990)

Southern Pacific v. City of Los Angeles,

922 F. 2d 498 (9th Cir. 1990),

cert. denied, 112 S.Ct. 382 (1991)

Southview Associates Ltd. v. Bongariz,

980 F.2d 84 (2d Cir. 1992),

cert. denied, 113 S.Ct. 1586 (1993)

Traweek v. City & County of San Francisco,

920 F.2d 589 (9th Cir. 1990)

10, 13

17, 18

10, 11

United States v. Lynah, 188 U.S. 445 (1903) 17, 18

United States v. Riverside Bayview Homes,

474 U.S. 121 (1985) 7, 10

Williamson County Regional Planning

Comm’n v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) 10, 13, 15, 19

Wilson v. Commonwealth, 413 Mass. 352,

597 N.E.2d 43 (1992) 14, 16

Massachusetts Statutes and Regulations.

General Laws of Massachusetts

M.G.L. c. 30A, § 14 4

M.G.L. c. 131, § 40 a3

M.G.L. c. 30, §§ 62-62H 4

Code of Massachusetts Regulations

301 C.M.R. 11.01(4) 4

310 C.M.R. 10 4

310 C.M.R. 10.06 3, 6

310 C.M.R. 10.20 5

310 C.M.R. 10.28 5, 14

310 C.M.R. 10.30 5

310 C.M.R. 10.36 3, 14

No. 94-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994.

ALFRED NELSON, EVELYN NELSON,

LEWIS HICKS III, AND BERNICE HICKS,

Petitioners,

COMMONWEALTH OF MASSACHUSETTS AND

TOWN OF CHATHAM,

Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO THE

MASSACHUSETTS SUPREME JUDICIAL COURT

BRIEF IN OPPOSITION FOR THE

COMMONWEALTH OF MASSACHUSETTS

The Commonwealth opposes the Petition for a Writ of

Certiorari, because the decision of the Massachusetts Appeals

Court, remitting the Petitioners to their administrative reme-

dies, in no way conflicts with established law with respect to

any federal question, and because there is no reason why this

Court should review the Petitioners’ claims before the Com-

monwealth has reached a final decision on the Petitioners’

application to build seawalls.

Statement of the Case

The Petitioners Alfred Nelson, Evelyn Nelson, Lewis Hicks

II and Bernice Hicks (the “Nelsons”), own residential proper-

ties located on a coastal dune in Chatham Massachusetts. !

(Respondent’s Appendix [“Resp. App.”] 64). In January 1987,

a breach in the barrier beach left these properties exposed to

the ocean. (Resp. App. 65). About two and a half years later,

the Nelsons applied for permits? under the Massachusetts

Wetlands Protection Act, M.G.L. c. 131, § 40, to build stone

seawalls to protect their properties.’ (Resp. App. 60). They

1 Mr. and Mrs. Nelson own two parcels of land, and Mr. and

Mrs. Hicks own a non-abutting parcel 1000 feet south of the lots

owned by Mr. and Mrs. Nelson. (Resp. App. 65-66).

2 Mr. and Mrs. Nelson did not begin the permitting process

until June 22, 1989, two and a half years after the breach. Mr.

and Mrs. Hicks did not file a permit application until February

5, 1990, more than three years after the breach. Petitioners’

Appendix (“Pet. App.” 25). These initial permit applications

were withdrawn. The permit applications that are the subject of

the ongoing administrative proceedings were commenced by Mr.

and Mrs. Nelson on December 23, 1991 and by Mr. and Mrs.

Hicks on May 15, 1992. (Pet. App. 34).

3 The Massachusetts Wetlands Protection Act, M.G.L. c. 131,

§ 40, promotes certain public interests including flood control

and storm damage protection. The Act requires a permit for the

construction of coastal engineering structures on coastal dunes or

banks. This requirement allows the Massachusetts Department

of Environmental Protection the opportunity to determine

whether a dune or bank is significant to any of the Act’s protect-

ed interests, including flood control and storm damage preven-

tion, and, if so, whether the proposed project would adversely

subsequently applied for variances from the requirements of the

Wetlands Regulations. (Resp. App. 80). ze 310 C.M.R.

10.36.

In 1990 and again in 1992, the Massachusetts Department of

Environmental Protection (the “Department”) issued initial

decisions denying the Nelsons permission to build seawalls.

(Pet. App. 31-33, 45-48, 52-59, 72-76). The Department

determined that because they would aggravate flooding and

impose storm damage on adjacent properties, seawalls could

not be permitted under the Wetlands Regulations. Consequent-

ly, the Department suggested that the Nelsons use other

protective techniques.* (Petitioner’s Appendix [“Pet. App.”]

31-33, 45-48, 55-59, 72-76).

In issuing these permit denials, the Department advised the

Nelsons of their right to appeal by requesting an adjudicatory

hearing. (Resp. App. 54).° The Department also informed

affect any of these interests. To prevent such adverse effects, the

Wetlands Regulations allow the Department to issue orders

ensuring that the proposed structures complies with the perfor-

mance standards set forth therein. 310 C.M.R. 10.06.

4 Alternative flood control techniques include beach nourish-

ment, the construction of groins and jetties, and raising the

houses. (Resp. App. 76).

> If the Nelsons did not appeal the initial permit denials, these

denials would become the final decisions of the Department.

Otherwise the Department would issue final decisions following

the adjudicatory hearing. The Nelsons would have the right to

obtain judicial review of the Department’s ffinal decisions in

accordance with the Massachusetts Administrative Procedures

Act, M.G.L. c. 30A, § 14.

them that they would have to evaluate the environmental

impacts of the proposed seawalls in accordance with the Massa-

chusetts Environmental Policy Act, M.G.L. c. 30, §§ 62-62H

(“MEPA”), before the Department could make a final decision

on their project. (Pet. App. 55-59, 72-76).°

Despite this notice, the Nelsons appealed the Department’s

permit, without taking any action to move the administrative

process to a conclusion. From 1990 to 1992, the Nelsons

neither commenced the environmental review process required

by MEPA nor challenged the requirement that they prepare an

environmental impact report. (Pet. App. 21, 60). Faced with

this inaction, the Department could not issue a final decision

permitting their project. 301 C.M.R. 11.01(4); 310 C.M.R.

10.

Rather than pursue their administrative remedies, the

Nelsons commenced this action in 1990 to challenge the

Department’s permit denials.’ (Pet. App. 139-146). As

of an environmental impact report (“EIR”) evaluating the

environmental impacts of alternative flood control measures

before the Department allows certain coastal engineering

structures. This report is intended to inform the Department of

the environmental impacts of the proposed structure before it

issues a final permit decision. 301 C.M.R. 11.01(4).

7 At the time they commenced this action, the Nelsons had not

even applied for a variance. (Resp. App. 79). The Nelsons did

not apply for variances until September, 1993, after they were

urged to do so by the Massachusetts Appeals Court. (Resp. App.

80). On October 26, 1993, the Department issued initial decisions

denying these variance applications. (Pet. App. 158-161). The

Nelsons’ administrative appeal is pending.

grounds for this challenge, the Nelsons claimed that the

application of the Wetlands Regulations to their properties

amounted to a taking. The Nelsons also mounted a facial

challenge on substantive due process and equal protection

grounds to the provisions of the regulations which restrict the

construction of coastal engineering structures on coastal dunes

and coastal banks.* See 310 C.M.R. 10.28 and 10.30.

Because the Nelsons’ administrative appeal was pending,

the Superior Court dismissed the takings claim as premature.

(Pet. App. 20-24). The Superior Court also issued a judgment

upholding the Wetlands Regulations. (Pet. App. 9 -19)

On appeal, the Massachusetts Appeals Court affirmed,

noting that the use to which the Nelsons “put their properties

has not at all been affected by the denial of their requests.

Both homes remain intact and it is far from a foregone conclu-

sion that the Department will ultimately prohibit protective

measures or that the homes will be claimed by the sea.” (Pet.

App. 2). The Massachusetts Supreme Judicial Court subse-

quently denied the Nelsons’ request for further appellate

review. (Pet. App. 8).

Two years after the commencement of this action, in 1992,

the Nelsons began to experience some coastal flooding.

Accordingly, they applied for and obtained an emergency

certification permitting the installation of a temporary sandbag

8 Throughout this action, the Nelsons attempted to bypass the

administrative process by seeking preliminary injunctions

restraining the Department from enforcing the Wetlands

Protection Act, M.G.L.c. 140, § 40, and the Wetland Regulations

310 C.M.R. 10.20. (Resp. App. 4-9).

revetment.2 See 310 C.M.R. 10.06. (Resp. App. 44).

Because the Nelsons had not begun to evaluate the environmen-

tal impacts of their seawalls, the Department conditioned this

emergency certification on the requirement that they participate

in the MEPA environmental review process. (Resp. App. 44-

45). It was only after this emergency certification that the

Nelsons began to conduct the necessary environmental review.

The Department subsequently established a schedule for the

conduct of the adjudicatory hearing in conjunction with the

completion of the MEPA environmental review process.

(Resp. App. 43).

In June 1994, the Nelsons completed the environmental

review process. (Pet. App. 80-82). The environmental impact

report (the “EIR”) produced in the course of this review noted

that the Nelsons’ properties had benefitted from the accretion

of large amounts of sand and were not in immediate danger.

At the same time, the EIR predicted that in approximately two

to ten years, the Nelsons properties would again become

vulnerable to coastal erosion. (Resp. App. 66). To alleviate

the affects of this erosion, the EIR recommended the construc-

tion of a continuous wall that would extend from the properties

owned by Mr. and Mrs. Nelson to the property owned by Mr.

and Mrs. Hicks. (Resp. App. 76).

9 On May 7, 1992 Mr. and Mrs. Nelson applied for an emer-

gency authorization to install a temporary sandbag revetment,

and on May 11, 1992, the Department issued that authorization.

(Resp. App. 44). This sandbag has fully protected the properties

owned by Mr. and Mrs Nelson. (Pet. App. 5). To date, Mr. and

Mrs. Hicks have not applied for an emergency certification. (Pet.

App. 5).

In accordance with the Department’s schedule, the adminis-

trative process has proceeded in conjunction with the environ-

mental review process. On March 25, 1994, the Department

issued a decision bifurcating the hearing into a permitting phase

and a variance phase.'” (Pet. App. 162-163). The first phase

of this hearing took place May 1994. (Resp. App. 18). At

that hearing, representatives of the Department supported the

wall recommended in the EIR. (Resp. App. 76). A decision

on the Nelsons’ permit application is pending. In accordance

with its bifurcation order, the Department intends to hold the

second phase in the near future. (Pet. App. 162-163).

Summary of the Argument

The Massachusetts courts correctly dismissed the Nelsons’

regulatory taking claim as premature. Without a final decision

on their request for permission to build seawalls, the Nelsons

are left to argue that the Commonwealth took their properties,

merely by requiring them to obtain a permit. It is well settled

that such a permit requirement is not a taking. United States

v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985).

Moreover, it is entirely possible that the Nelsons will be

allowed to protect their properties, once the administrative

process is complete. Through this process, the Nelsons applied

for and obtained permission to build a temporary sandbag

revetment, which has in the interim completely protected their

properties. Indeed, at the adjudicatory hearing, the Department

supported the construction of a continuous seawall that would

'0 If the Nelsons obtain permits at the end of the first phase,

the variance phase may not be necessary.

extend from the properties owned by Mr. and Mrs. Nelson to

the property owned by Mr. and Mrs. Hicks. Accordingly, the

Nelsons have not shown and cannot show that they should be

excused from the final decision requirement on the ground that

it would be futile for them to complete the administrative

process.

Further there is no merit in the Nelsons’ claim that the

Commonwealth has taken their properties by unreasonably

delaying the administrative process. To the contrary, the

Department has attempted to expedite this process, although the

Nelsons have failed to pursue their administrative remedies

diligently and have devoted considerable effort to avoiding

these remedies. To expedite the administrative process, the

Department has developed and adhered to a schedule for the

adjudicatory hearing in conjunction with the environmental

review process for the proposed seawalls, a schedule that

provides for the Department to issue a final decision on the

Nelsons’ permit application by October 15, 1994. In light of

this schedule, the Nelsons should certainly not be allowed to

establish a taking, merely because of the length of the permit-

ting process.

To avoid the final decision requirement, the Nelsons make

an argument which they failed to raise in the state court

proceedings. More specifically, the Nelsons claim that they

suffered a “physical invasion” of their properties, because there

was some flooding before they built their temporary sandbag

revetment. Courts have long recognized the highly dynamic

and fluctuating nature of the coastline. Given the inherent

vulnerability of beachfront real estate, the Commonwealth

cannot be held liable for a taking just because flooding occurs

at some point in the administrative process.

Finally, the Nelsons claim that the Massachusetts courts

| applied the wrong standard to their taking claim. This claim

| is wholly without merit, since the Massachusetts courts did not

act on their taking claim, but merely dismissed that claim as

premature.

Argument

Review on a Writ of Certiorari is discretionary. Such

review will be granted only where there are special and

important reasons. In the exercise of this discretion, the Court

reviews state court opinions interpreting federal law only when

there is an important legal question that has not been decided

by the Court or when the state court decision conflicts with

Supreme Court or circuit court precedent. For the reasons

stated below, the petition clearly does not meet these criteria.

Accordingly, the petition should be denied.

I. CONSISTENTLY WITH LONG-STANDING

PRECEDENT, THE MASSACHUSETTS COURTS

CORRECTLY HELD THAT THE NELSONS

COULD NOT MAINTAIN THEIR TAKING

CLAIM UNTIL THEY OBTAINED A FINAL

DECISION ON THEIR PERMIT AND VARI-

ANCE APPLICATIONS.

The Nelsons are attempting to litigate their taking claim

before the Department issues a final decision on their permit

_ and variance applications. In this posture, the Nelsons are left

to argue that the Commonwealth has “taken” their properties

simply by requiring them to obtain a permit. The Massachu-

setts courts correctly rejected this argument.

Ase ately

It is well established that the state does not take private

property merely by requiring the owner to obtain a permit

before he devotes his property to a particular use. “After all,

the very existence of a permit system implies that permission

may be granted leaving the owner free to use his property.”

United States v. Riverside Bayview Homes, 474 U.S. 121, 127

(1985). Indeed, it is only when a regulatory agency issues a

final determination denying a permit that a landowner may

attempt to bring a regulatory taking claim based on the

imposition of a permit requirement. Id.

In MacDonald, Sommer & Frates v. Yolo County, 477 U.S.

340, 348, reh. den., 478 U.S. 1035 (1986), the Court ex-

plained why a final decision is an essential element of a

regulatory taking claim based on the application of a permit

requirement:

It follows from the nature of a regulatory tak-

ings claim that an essential prerequisite to its

assertion is a final and authoritative determina-

tion. A court cannot determine whether a

regulation goes too far, unless it knows how far

the regulation goes.

See also Williamson County Regional Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 199-200

(1985); Hodel v. Virginia Surface Mining and Reclamation

Ass’n, 452 U.S. 264, 293-297 (1981).'' Consistent with this

11 Tucas v. South Carolina Coastal Council, 112 S.Ct. 2886

(1992) did not eliminate the need to obtain a final decision

before bringing a regulatory taking claim. See Southview

Associates Lid. v. Bongartz, 980 F.2d 84, 98 (2d Cir. 1992), cert.

denied 113 S.Ct. 1586 (1993). The Court’s recent decision in

precedent, the Massachusetts courts correctly held that the

Nelsons could not maintain their taking claims until the

Department issues final orders on both their permit and

variance applications.

Il. CONSISTENTLY WITH WELL-ESTABLISHED

PRECEDENT, THE MASSACHUSETTS COURTS

CORRECTLY CONCLUDED THAT IT WAS

NOT FUTILE FOR THE NELSONS TO PUR-

SUE THEIR ADMINISTRATIVE REMEDIES.

The Nelsons suggest that it would be futile for them to

pursue the administrative process through to a final decision.

This suggestion is without merit.

Courts have recognized that there is a narrow “futility

exception” to the final decision requirement for takings claims.

See e.g. Traweek v. City & County of San Francisco, 920 F.2d

589, 594 (9th Cir. 1990); Sequin v. City of Sterling Heights,

968 F.2d 584, 588 (6th Cir. 1992); Southview Associates Ltd.

v. Bongariz, 980 F.2d 84, 96 (2d Cir. 1992), cert. denied, 113

S. Ct. 1586 (1993). To fall within this exception, a landowner

cannot rely on the mere possibility or even the probability that

the Department may deny their permit and variance applica-

tions. “A sort of inevitability is required; the prospect of

refusal must be certain (or nearly so).” Gilbert v. City of

Cambridge, 932 F.2d 51, 61 (1st Cir. 1991), cert. denied, 112

S.Ct. 192 (1991).

Dolan v. City of Tigard, ___ U.S. ___, 1994 Westlaw 876693

(1994) further underscores the need for a final decision.

Moreover, because it may be difficult to determine whether

a particular landowner falls within this narrow exception,

courts have held that a property owner cannot allege futility

until he or she has made at least one meaningful application for

administrative relief. To be meaningful, the application must

be essentially complete, and should include a request for both

a permit and a variance. In addition, the property owner must

follow at least one complete application for a permit and a

variance through to conclusion. Id. See Kinzli v. City of Santa

Cruz, 818 F.2d 1449, 1455 (9th Cir. 1987), cert. denied, 484

U.S. 1043 (1988).'7

In this case, the Department has already allowed the

Nelsons to protect their properties by granting permission to

build temporary sandbag revetments. Moreover, the Depart-

ment testified at the adjudicatory hearing in favor of the

approach identified in the EIR, the construction of a continuous

seawall that would protect the portion of the Chatham coastline

extending from the properties owned by Mr. and Mrs. Nelson

to the parcel owned by Mr. and Mrs. Hicks. (Resp. App. 44).

Accordingly, the Nelsons have not shown and cannot show that

12 The circuit court cases cited in the text follow Supreme

Court precedent. See, e.g., Witliamson Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172 (1985); MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340, 353, n. 9, (1986),

reh. den., 478 U.S. 1035 (1986). In Williamson, the Court held

that a taking claim was not ripe because the developer failed to

follow the procedures for obtaining a variance. 473 U.S. at 190.

In Yolo County, the Court held a taking claim unripe, because

only one development plan had been rejected. The Court noted

that it was possible that some development would be permitted.

477 U.S. 352, 353, n. 9 (1986).

it is “virtually inevitable” that the Department will issue final

orders denying them permission to protect their properties. '

Nor can the Nelsons show that it is impossible-for them to

complete the administrative process and obtain final orders

from the Department. To the contrary, the adjudicatory

hearing has proceeded substantially as scheduled. On May 25,

1994, the Department concluded the permitting phase of the

adjudicatory hearing. The schedule calls for the Department to

issue its final permit decision no later than October a3,

1994.'* The Department has also indicated that it will hold

the variance phase in the near future. At this point in the

proceedings, it is clear that the Massachusetts courts were

13 Under the Wetlands Regulations, the Department may allow

the Nelsons to build seawalls, if it determines that

(i) the property is a coastal dune that is not

Significant to any of the interests identified in the

Wetlands Protection Act includirg storm damage

prevention and flood control, 310 C.M.R. 10.28;

(2) although the property is on a significant

coastal dune the proposed structure does not have

any of the adverse effects identified in the regula-

tions. 310 C.M.R. 10.28(3).

The Department may also allow the Nelsons to build seawalls by

granting them a variance from the regulations. See 310 C.M.R.

10.36. See also Wilson v. Commonwealth, 413 Mass. 352, 357 n.5,

597 N.E.2d 43 (1992).

'* The Department established a deadline of August 16, 1994

for post-hearing submissions. The schedule calls for the Depart-

| Ment to issue its final permit decision within sixty days of the

| date that the adjudicatory hearing record is closed. (Resp. App.

| 43).

correct when they concluded that it would not be futile for the

Nelsons to pursue the administrative process to a conclusion.

Consistent with well-established precedent, the courts properly

required the Nelsons to obtain final decisions from the Depart-

ment before they could litigate their taking claim.

Ii. SINCE THE ADMINISTRATIVE PRO-

CESS HAS NOT BEEN SHOWN TO BE

FUTILE, THE NELSONS CANNOT

AVOID THE FINAL DECISION RE-

QUIREMENT.

The Nelsons make two additional arguments to avoid the

final decision requirement. The Nelsons claim that the

Commonwealth has taken their properties by unreasonably

delaying the permitting process. (Pet. App. 9-10). The

Nelsons also attempt to recast their regulatory taking claim as

a case of physical invasion. (Pet. App. 16). As shown below,

neither of these arguments has merit.

A. The Nelsons Cannot Establish A Taking

Solely Because It Takes Time To Complete

The Permitting Process.

This Court has repeatedly stated that absent “extraordinary

delay,” any fluctuations in value that occur during the process

of governmental decision making are “incidents of ownership”

rather than a “taking”. Agins v. Tiburon, 447 U.S. 255, 263,

n.9 (1980); First Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 320 (1987). See

Williamson County Regional Planning Comm’n v. Hamilton

Bank, 473 U.S. 172 (1985). Recognizing the complexity of

many permitting decisions, courts rarely hold regulatory

agencies responsible for creating such an “extraordinary delay”

that it results in a taking. See 1902 Atlantic Ltd v. United

States, 26 Cl. Ct. 575, 582 (1992)(more than four and a half

years to obtain a wetlands permit not extraordinary delay);

Dufau v. United States, 22 Cl. Ct. 156, 163 (1990)(sixteen

months to obtain a wetlands permit not extraordinary delay). '*

In this case, there is certainly no “extraordinary delay.” To

the contrary, the Department has tried to expedite the adminis-

trative process by developing and adhering to a schedule for the

adjudicatory hearing. Pending completion of this process, the

Department has allowed the Nelsons to protect their properties

with sandbag revetments. Moreover, the Nelsons have

continued to enjoy the full use of their properties. In light of

these facts, the Commonwealth should not be held liable for a

taking, merely because of the length of the permitting process.

‘5 In Wilson v. Commonwealth, 413 Mass. 352, 597 N.E.2d 43

(1992), the plaintiffs claimed that the Commonwealth had taken

their properties by delaying the wetlands permitting process. The

Massachusetts Supreme Judicial Court remanded the case to the

Superior Court to assess the validity of that claim, solely because

/ their properties were totally destroyed before the administrative

} Process was complete. But for this destruction, the court would

have required the Wilson plaintiffs to complete the administrative

process and obtain a final decision before bringing a taking claim.

Id. at 355-358.

B. The Nelsons Cannot Rely On Coastal Flood-

ing To Establish A Taking By Physical Inva-

sion.

In a further effort to avoid the final decision requirement,

the Nelsons claim that they suffered a “physical invasion,”

because there was some limited coastal flooding of their

properties,’ before they constructed the temporary sandbag

revetment. This Court should not consider this claim, because

the Nelsons did not make the “physical invasion” argument in

any of the state court proceedings. See California v. Taylor,

353 U.S. 553, 556-557, n.2 (1957); Lawn v. United States,

355 U.S. 339, 362-363, n. 16 (1968).

However, if it were to consider the physical invasion claim,

this Court should conclude that it is entirely without merit. In

alleging this “physical invasion,” the Nelsons rely on Pumpelly

v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871), and United

States v. Lynah, 188 U.S. 445 (1903). That reliance is

misplaced.

In Pumpelly and Lynah, the Court held the United States

liable for the damages that resulted when the federal govern-

ment built dams which caused the flooding of private property.

16 Because of changes in the breach and the temporary

sandbag revetment, the Nelsons’ properties are not currently

experiencing flooding. Instead, large amounts of sand have been

deposited on their properties, providing natural protection

against flooding. The EIR predicted that the Nelsons would not

be likely to experience flooding for two to ten years. (Resp. App.

66). In these circumstances, the Nelsons’ attempt to craft a

“physical invasion” taking claim out of the threat of future

flooding is premature.

The instant case is entirely different. By requiring the Nelsons

to obtain a permit before they build a seawall, the Common-

wealth is simply trying to prevent the construction of any

structures that would cause abutting properties to flood. The

Commonwealth should certainly not be held responsible for a

taking, simply because it is attempting to prevent the very harm

that the federal government was held liable for in Pumpelly and

Lynah.

Moreover, courts have long recognized that because of its

unique and highly fragile nature, land abutting the coast

requires more regulation than inland property. See, e.g.,

Commonwealth v. Tewksbury, 52 Mass. (11 Metc. 55) (1846);

Commonwealth v. Alger, 61 Mass. 53 (1851). Because the

coastline is undergoing constant change as a result of natural

forces, courts have held that the owner of littoral land necessar-

ily takes his property with the knowledge that the boundary

may change by accretion or reliction. See, e.g., Michaelson v.

Silver Beach Improvement Association, Inc., 342 Mass 251,

173 N.E.2d 273 (1961).

Given the highly dynamic nature of the shore, the Com-

monwealth clearly cannot be held responsible for a taking, just

because a coastal property experiences flooding at some point

in the administrative process. The taking clause was not

intended to make a state the insurer of coastal property,

whenever the owner applies for a permit to construct a seawall.

IV. THE MASSACHUSETTS COURTS PRO-

PERLY HANDLED THE NELSONS’

FACIAL CHALLENGE TO THE REGU-

LATIONS.

The Nelsons argue that the Massachusetts courts applied the

wrong standard to their taking claim. This position is wholly

without merit, since the Massachusetts courts dismissed the

taking claim as premature and did not address it on the merits.

The Massachusetts courts did, however, address the merits of

the facial challenge to the Wetlands Regulations on substantive

due process and equal protection grounds and correctly upheld

the regulations after applying the rational basis test to that

claim. See Pennel v. San Jose, 485 U.S. 1, 14 (1988); Nectow

v. Cambridge, 277 U.S. 183, 187-188 (1928); Gilbert v. City

of Cambridge, 932 F. 2d 51, 65-66 (ist Cir. 1991), cert.

denied, 113 S.Ct. 1586 (1993); Southern Pacific v. City of Los

Angeles, 922 F. 2d 498, 507-508 (9th Cir. 1990), cert. denied,

112 S.Ct. 382 (1991)."’

17 The Massachusetts court correctly treated the Nelsons’ equal

protection and substantive due process claim as a facial chal-

lenge. In the absence of a final adjudicatory decision, the

Nelsons could not maintain an as-applied challenge on substan-

tive due process and equal protection grounds. See Williamson

County Regional Planning Comm'n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 199-200 (1985); Pennel v. San Jose, 485 U.S.

1, 11 n.5 (1988). See also Gilbert v. City of Cambridge, 932 F.2d

51, 57 (ist Cir. 1991), cert. denied 113 S.Ct. 1586 (1993). Unlike

an as-applied challenge, a facial challenge to the regulations does

not require a final permit decision. See Smithfield Concerned

Citizens v. Town of Smithfield, 907 F.2d 239, 241-243 (ist Cir.

1990).

Conclusion

For the reasons set out above, the Court should deny the

petition for a Writ of Certiorari.

Respectfully submitted,

SCOTT HARSHBARGER

Attorney General

of Massachusetts

WILLIAM L. PARDEE*

MADELYN MORRIS

Assistant Atiorneys General

1 Ashburton Place

Boston, MA 02108

(617) 727-2200

*Counsel of Record

isin Sa A Aan

Appendix

Table of Contents

Page

Decision on Plaintiff’s Motion for Preliminary App. 1

Orders dated 1/3/90, (Dolan, J.) Barnstable

Superior Court C.A. No. 90-1712

Decision on Plaintiffs’ Petition Pursuant to App. 4

G.L. c. 231, Sec. 118 dated January 14, 1991,

Smith, J., Appeals Court 91J28

Judgment dated February 13, 1991, (Abrams, J.) App. 6

Supreme Judicial Court for Suffolk County No. 91-31

Memorandum and Order dated January 17, 1992 App. 7

Kass, J., Appeals Court 91-J-933

Commonwealth’s Opposition to Petition for App. 10

Single Justice Review Pursuant to

G.L. c. 231, § 118 and Request for Hearing

Department of Environmental Protection’ s App. 16

Post Hearing Brief, August 16, 1994

Department of Environmental’s Decision on App. 31

Request for Variance October 23, 1993

Emergency Certification dated May 11, 1992 App. 46

Superseding Order of Conditions Massachusetts App. 52

Wetlands Protection Act G.L. c. 131, §40 DENIAL

DEP File No. SE 10-804 Applicant Alfred Nelson

Superseding Order of Conditions Massachusetts App. 55

Wetlands Protection Act G.L. c. 131, §40 DENIAL

DEP File No. SE 10-855 Applicant Lewis Hicks, I

Pre-Filed Testimony of James Mahala App. 58

dated 5/12/94

Affidavit of Mary F. Connolly dated App. 79

November 1, 1993

CO i laa

perithe. Lae. 3

Datel Soe 2

1/3/90

Denied

Dolan, J.

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS SUPERIOR COURT

C.A. NO. 90-1712

ALFRED NELSON, EVELYN NELSON

LEWIS HICKS, If, AND BERNICE HICKS,

Plaintiffs

COMMONWEALTH OF MASSACHUSETTS

Defendant

PLAINTIFFS’ MOTION FOR PRELIMINARY ORDERS

Now come the plaintiffs in the above-captioned matter and

move pursuant to this Honorable Court’s genral

superintendency powers and statutes including but not limited

to Mass.R.Civ.P. 65(b), G.L. c. 231A sec. 2, and Superior

Court Rule 9A that the following be entered as orders:

PRAYER I: Plaintiffs are allowed to construct the

following on properties at Chatham Harbor, Chatham,

Barnstable County, Massachusetts:

a) Stone seawalls per specifications of defendant for the

Chatham Harbor area, with height twenty feet above beach

elevation and depth twelve feet below said elevation:

App. 1

b) Rock windrows with height twelve feet above beach

elevation; or

c) Steel bulkheads with height twenty feet above beach

elevation and depth twelve feet below said elevation.

PRAYER II: Stone seawalls requested in Prayer I shall

remain in place until issues raised in plaintiffs’ Complaint are

ettled or fully adjudicated. Plaintiffs will post a bond of

$20,000.00 with this Court to cover the cost of removal of said

seawalls. Said bond shall remain posted until issues raised in

plaintiffs’ Complaint are settled or fully adjudicated. Count IV

of the Complaint in this matter (taking without compensation)

is dismissed without prejudice.

As grounds, plaintiffs say that without the relief requested

they will suffer the immediate and irreparable loss of their

homes.

Further grounds for this Motion are presented in the

Complaint filed in this matter, Plaintiffs’ Memorandum in

Support of Motion for Prelinimary Orders, the Affidavit of

Nicholas B. Soutter, Esq. and the Affidavit of Robert E.

Weaver.

Request for Hearing of Emergency Motion

Plaintiffs request hearing pursuant to Superior Court Rules

9A(c)(3) and 9A(c)(e)(1).

RESPECTFULLY SUBMITTED,

ALFRED NELSON, EVELYN

NELSON, LEWIS HICK, I,

AND BERNICE HICKS

By their attorneys,

Nicholas B. Soutter

BBO #473740

Paul S. McGovern

BBO #549167

One Washington Street

Suite 208

Wellesley, MA 02181

(617) 237-6300

App. 3

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

No. 91J28

ALFRED NELSON, EVELYN NELSON

LEWIS HICKS, Il, AND BERNICE HICKS,

Plaintiffs

COMMONWEALTH OF MASSACHUSETTS

THE TOWN OF CHATHAM

Defendants

PLAINTIFFS’ PETITION PURSUANT TO G.L. c. 231,

SEC. 118

1. Request for Interlocutory Review

Plaintiffs request seawalls pending determination of the

constitutionality of state requlations. (Request denied by Order

of January 3, 191, Nelson, et al. v. Commonwealth, Barnstable

Superior Court, C.A. No. 90-1712).

2. Statement of Issues Presented

Plaintiffs’ properties will be destroyed without seawalls (see

Trial Court findings, Attachment A).

State regulations prohibiting seawalls (310 CMR relation to

legislative purpose (Wetlands Protection Act, G.L. c. 130, sec.

40).

3. Relief Requested

See prayers of Plaintiffs’ Motion for Preliminary Orders

requesting seawalls (Attachament B).

4. Copy of Trial Court Findings and Order

See Attachments A and B for Trial Coury findings and

Order in this matter.

For further grounds see Plaintiffs’ Brief in Support of

Petition Pursuant to G.L. c. 231, sec. 118.

Appeals Court RESPECTFULLY

SUBMITTED,

The within requested ALFRED NELSON, EVELYN

relief is denied. NELSON, LEWIS HICK, 1,

Smith, J. AND BERNICE HICKS

By their attorneys,

January 14, 1991

Attest: Nancy Turck Foley

Clerk

Nicholas B. Soutter

BBO #473740

Paul S. McGovern

BBO #549167

App. 5

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

NO. 91-31

ALFRED NELSON,’ et al.

COMMONWEALTH OF MASSACHUSETTS?

JUDGMENT

After hearing, the request for relief pursuant to

G. L. c. 211, § 3 is denied.

By the Court (Abrams, J.)

/s/

Assistant Clerk of Court

ENTERED: February 13, 1991

1/ Evelyn Nelson, Lewis Hick and Bernice Hicks

2/ Commonwealth of Massachusetts and the Town of Chatham

Raraiisig mntes a aa —— i

ee ip =

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

91-J-933

ALFRED NELSON, EVELYN NELSON,

LEWIS HICKS, I & BERNICE HICKS

VS.

COMMONWEALTH OF MASSACHUSETTS

and the

TOWN OF CHATHAM.

MEMORANDUM AND ORDER

Although not immune to review, the regulations of

administrative agencies and the decisions of those agencies

applying their regulation, carry great weight. In this case the

Department of Environmental Protection has developed

regulations concerning coastal dunes. They are based on

assupiptions founded in hydrodynamics and geology. The

Superior Court judge who refused to enjoin application of the

regulations and, in consequence, refused to authorize the

building of stone revetments by the petitioners, correctly

prognosticated slim chance of success on the merits.

The adverse consequences to the petitioners, that the sea

may wash their houses away, are sufficiently grave, that I

invited the governments to furnish me with material touching

on what harm might accrue to the general public interest should

a sea wall be erected and left in place pending adjudication of

App. 7

the merits. That is, might steps taken so that adjudication of

the merits does not become academic?

I have been furnished with affidavits from government

engineers which say that the construction of revetments by the

Nelsons and the hicks would tend to erode the beaches on

either end of those revetments. I read the government

affidavits as predicting that protection of the Nelson and Hicks

properties will simply place at risk other properties. Natural

dune movement, the government affidavits say, is the best hope

for coastal preservation. Indeed, the government affidavits say,

the revetments are not even likely to save the Nelson and Hicks

houses. Of course, the petitioners do not agree with this

scientific view and put forward scientific opinions of their own.

In this situation of conflict, and taking into account the

considerable unlikelihood that the plaintiffs would be able to

establish that the underlying regulation is unlawful, let alone

unconstitutional, I think the Superior Court judge correctly

declined to make an order which would permit the petitioners

to construct seawalls to protect their oceanfront houses. On the

question of whether injunctive relief ought to be granted,

government steps to protect the general public interest receive

deference. See Commonwealth v. Mass CRINC, 392 Mass. 79,

88-89 (1984).

I deny the petition for relief under G.L. c. 231, § 118, first

par.

I add as a postscript that the interests of the plaintiffs in this

action may be better served by reaching a commonly acceptable

App. 8

9 ae

SESE tlhe iy diekacr tie ist EK mew AE)

solution (the government, for example, has recommended dune

nourishment), rather than engaging in protracted combat with

local and State authorities,

By the court (Kass, J.),

Ashley Ahearn

Assistant Clerk

Entered: January 17, 1992.

November 1, 1993

BY HAND

Clerk of Court

Appeals Court

New Court House, 15th Floor

Pemberton Square

Boston, MA 02108

RE: Nelson, et al. v. Commonwealth et al., No. 92-P-827

Dear Clerk of Court:

I have enclosed the following for filing in the above-

referenced case:

1. the Commonwealth’s Opposition to Plaintiffs’ Petition

for single-Justice Review Pursuant to G.L. c. 231, § 118 and

Request for Hearing;

2. exhibits 1-5 to the Commonwealth’s Opposition; and

3. certificate of service.

Thank you for your assistance with this matter.

Very truly yours,

Mary B. Griffin

Assistant Attorney General

Environmental Protection Division

(617) 727-2200 ext. 2553

App. 10

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

NO. 92-P-827

ALFRED NELSON, ET AL.,

Plaintiffs - Appellants,

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Defendants - Appellees

COMMONWEALTH’S OPPOSITION TO

PETITION FOR SINGLE JUSTICE REVIEW

PURSUANT TO G.L. c. 231, § 118

The Commonwealth of Massachusetts (the

“Commonwealth”) opposes the Plaintiffs’ Petition for Single

Justice Review Pursuant to G.L. c. 231, § 118 and Request for

a Hearing (the “Petition”). The Petition is moot because the

Department of Environmental Protection (“DEP”) has already

issued its decisions on the Plaintiffs’ request for variances.

The Court should deny the Petition for Single Justice

review because it is moot. The Plaintiffs argue that the Court

Should allow the Petition because DEP has not responded to

their request for variances. On October 26, 1993, however,

DEP issued its Decisions on Request for Variances with respect

to both the Nelson and the Hicks properties. See Decisions on

Request for Variances, attached as Exhibit 1.

App. 11

The Court should not grant Single Justice review when DEP

has already issued its decisions.' See Int’l Marathons, Inc. v.

Attorney General, et al. , 392 Mass. 376, 380 (a984) (mootness

doctrine applies to judicial review of administrative decisions

as well as appellate review of lower court decisions); Degrace,

et al. v. Conservation Commission of Harwich, 31 Mass. App.

Ct. 132, 136 (1991) (dismissal of appeal of Conservation

Commission’s wetlands permit decision on mootness grounds).

In addition, the Court should not grant Single Justice

review when DEP promptly responded to Plaintiffs’ request for

variances. Contrary to the assertions in the Petition, the Court

did not order the Commonwealth “to decide within thirty days

whether the plaintiffs can build seawalls.” Petition, p. 1.

Instead, the Court urged the Commonwealth to respond

promptly if the Plaintiffs requested a variance. At oral

argument, counsel for the Commonwealth estimated that the

Commonwealth could respond in about thirty days. Affidavit

of Mary Connolly, attached as Exhibit 2. After the oral

argument, the Plaintiffs filed the request for variances on or

about September 20, 1993. Shortly thereafter, on October 26,

1 Even if the Court were to allow the Petition for review, it

would be improper for the Single Justice to grant the relief that

the Plaintiffs request. In the Petition, the Plaintiffs “request that

this Court issue an order granting plaintiffs permission to

construct seawalls as shown in the engineering plan” submitted

to DEP. The Court, like DEP, should not issue an order

allowing the construction of engineering structures on Plaintiffs’

properties without access to the information in _ the

Environmental Impact required under the Massachusetts

Environmental Policy Act, G.L. 30, §§ 61-62H.

App. 12

1993, DEP issued its Decisions on Request for Variances.

Decisions on Request for Variances, Exhibit 1.

Further, DEP issued its decisions in accordance with the

Wetlands Protection Regulations.” DEP carefully evaluated

the Plaintiffs’ request, and wrote detailed decisions in response

to the request. DEP denied the request on the grounds that the

Plaintiffs failed to make the showing required under 310

C.M.R. 10.36. In its variance decisions, DEP informed the

Plaintiffs of their right to an administrative appeal. In

addition, DEP set out an expedited schedule for an adjudicatory

hearing on Plaintiffs’ appeal of the denial of Superseding

Orders of Conditions. See Decisions on Request for Variances,

Exhibit 1. After receiving DEP’s decision, the Plaintiffs filed

an Appeal of Wetland Variance Denial with DEP.

2 The Wetlands Protection Regulations do not require DEP

to issue a decision on a request for a variance within a certain

number of days. Instead, 310 C.M.R. 10.36 provides that “[a]fter

teviewing the information submitted with the request for a

variance and any other information submitted by any party within

twenty-one (21) days of the request, the Commissioner shall issue

a decision as to whether to grant the request.” The regulation,

therefore, requires other parties to submit information to the

Commissioner within twenty-one days of the request for a

variance. The regulation further implies that the Commissioner

Must wait twenty-one days to receive this additional information

before issuing a decision, but does not establish a deadline for

the decision.

> Appeal of Wetland Variance Denial, attached as Exhibit 3.

The Wetlands Protection Regulations at 310 C.M.R. 10.36 allow

certain persons, within ten days of issuance of the Commissioner

of DEP’s decision on a variance request, to request an

adjudicatory hearing. According to DEP’s Decisions on Request

App. 13

In addition, the Plaintiffs’ seek Single Justice review

pursuant G.L. c. 231, § 118 although they are not aggrieved by

an interlocutory order specified in that statute. G.L. c. 231, §

118 establishes a procedure for a “party aggrieved by an

interlocutory order of a frial court in the superior court

department, the housing court department, the land court

department or the probate and family court department: to

request relief from that order (emphasis added).* In this case,

the Plaintiffs do not even allege in the Petition that they are

aggrieved by an interlocutory order of a trial court.

Furthermore, this Court never issued an order at the Septeinber

20, 1993 hearing.° The Court, therefore, should not grant the

Petition for G.L. c. 231, § 118 review.

Finally, the Court should not grant single Justice review

when DEP is actively working to resolve this matter as quickly

for Variances, the administrative law judge may hold the variance

appeal in conjunction with the schedule for the adjudicatory

hearing on the Plaintiffs’ appeal of denial of Superseding Orders

of Conditions. See Decisions on Request for Variances, Exhibit

‘., @L.& 20: § 118 only creates a narrow exception to the

general policy that interlocutory rulings should not be presented

piecemeal to the Appeals Court for review. Packaging Industries

Group, Inc., et al. v. Cheney, 380 Mass. 609, 612 (1980); CUNA

Mutual Insurance Society v. Attorney General, 380 Mass. 539, 541

(1980) (general policy disfavoring appeals from interlocutory

orders).

5 See Affidavit of Mary Connolly, Exhibit 2; see also copy of

Appeals Court Docket, Case 92-P-000827, attached as Exhibit 4

(Appeals Court docket does not indicate that the Court issued

any order at or subsequent to the oral argument).

App. 14

as possible in accordance with established administrative

procedures. DEP set forth an expedited schedule for the

adjudicatory hearing in its Decision on Request for Variances.

In addition, DEP has taken a number of actions to facilitate

prompt resolution of this matter, including 1) site visits to

assess and monitor current conditions, 2) emergency

certification of a temporary structure on the Nelson property 3)

meeting with the consultants preparing the draft Environmental

Impact Report to expedite its completion. See Affidavit of

James Mahala, attached as Exhibit 5.

Respectfully submitted,

SCOTT HARSHBARGER

ATTORNEY GENERAL

Madelyn Morris, BBO #355870

Mary Griffin, BBO #555986

Assistant Attorneys General

Environmental Protection Division

One Ashburton Place, 19th Floor

Boston, Massachusetts 02108

DATE: November 1, 1993

App. 15

COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Docket No. 92-140

File No. SE 10-987

Docket No. 93-090

(Variance Denial)

CHATHAM

In the Matter of

ALFRED B. NELSON

Docket No. 92-152

File No. SE 10-1027

Docket No. 93-089

(Variance Denial)

CHATHAM

In the Matter of

LEWIS W. HICKS

eS a a a a Ae a ee

DEPARTMENT OF ENVIRONMENTAL PROTECTION’S

POST HEARING BRIEF

I. FACTUAL AND PROCEDURAL HISTORY

Chatham, occupying Cape Cod’s extreme southeastern

comer, lies at the end of two littoral drift systems: one directed

easterly along the Cape’s south coast and one directed southerly

along the southern portion of the east coast. (JM Ex. 13, fig.

1). On January 2, 1987, during a northeasterly storm,

Nauset Beach was breached at a point almost directly east of

the lighthouse at Chatham resulting in increases in wave energy

and tidal range which produced increased coastal erosion. (JM,

Pars. 20-22).

App. 16

The breach has widened in ensuing years, and has become

known as New In et.

The section of Nauset Beach located to the north of New Inlet

iscalled North Beach, and the section located to the south of

New Inlet is called South Beach.

The Little Beach area is that part of the Chatham mainland

that is landward of South Beach. (JO Par. 8). Alfred B.

Nelson and Lewis B. Hicks, ("the Applicants“), each own

shorefront property in the Little Beach area. (JO Par. 8). The

Nelson property is located immediately south of Bearse’s Way.

The Hicks property is located about one thousand feet south of

the Nelson property, at the eastern end of Dune Drive.

On December 23, 1991 Nelson filed a Notice of Intent with

the Chatham Conservation Commission proposing construction

of a two sided rock revetment, 320 feet long, with a maximum

elevation of 16 feet above mean sea level. It was proposed to

be located along the landward edge of a primary dune. (JM

Pars. 9, 35). On January 30, 1992, the Conservation

Commission issued an Order of Conditions denying Nelson

permission to construct the revetment. (JM Ex. 3).

On May 11, 1992, the Department issued an Emergency

Certification permitting Nelson to build a sand bag, (Dura Bag)

wall to abate the threat of erosion. (JM Par. 45 (b)). It was

built, and consists of approximately fifty bags of sand weighing

4 tons each, a total of 200 tons of sand. (RW p. 5 par. 23).

On October 20, 1992 the Department issued a Superseding

Order of Conditions denying Nelson permission to build the

revetment. (JM par. 14, Ex. 5). The denial was based upon

the revetment’s anticipated adverse effects on the coastal beach

and primary dune. On October 28, 1992, Nelson appealed.

App. 17

Lewis Hicks filed a Notice of Intent with the Chatham

Conservation Commission on May 15, 1992 also seeking

permission to construct a revetment, similar in design to the

two sided Neison proposal, and also proposed to be located on

the landward side of a primary coastal dune. (JM pars. 11, 36).

On July 2, 1992, the Conservation Commission denied Hicks

permission to build. (JM par 11.; Ex. 4). The Department

issued a Superseding Order of Conditions on November 9,

1992 again denying the project, and Hicks also appealed. (JM

par. 14; Exs. 6, 7, 8).

Aubrey Consulting, Inc., (”ACI“) was retained by the

Town of Chatham to prepare a coastal management plan for the

area affected by the breach. A draft Environmental Impact

Report, (”"DEIR“) for the area from Bearse’s Way south to

Morris Island, the so-called Phase II area, including Little

Beach, was received by the Department on December 7, 1993.

(JM Ex. 11; Ex. 23B). It found that the Little Beach area,

is protected from all sides by either a barrier beach or shoaled

regions that inhibit the propagation of wave energy and ...is

dominated by shallow water fetch-limited waves..... (p.27). It

also concluded that the area is....protected by South Beach and

is actively accreting” (Ex. 23B p.41).

Following the statutorily required public notice and

comment period, a Final Environmental Impact Report was

issued in May 1994. Substantially the same as the DEIR, it

concluded that South Beach would begin to break up within 10

to 20 years, and that Little Beach would then be subject to high

rates of erosion. (Ex. 23A p. 9). It recommended temporary

groins, beach nourishment and arevetment . (Ex 23A pps. ix-

xii).

Il. FACTS

App. 18

The Department submitted testimony by James Mahala,

(“Mahala”), an Environmental Analyst with the Department,

and by James O’Connell, (“O’Connell”), Senior Coastal

Geologist with the Massachusetts Coastal Zone Management

Office, (“MCZM7”).

Mahala holds a Masters degree in Coastal Geology and has

been employed as an Environmental Analyst with the

Department since 1986. He has conducted over 300 on-site

inspections, (JM pars.1-7), and is intime’ * familiar with the

Chatham shoreline, having conducted approximately 25 site

visits there since the 1987 breach. (JM par. 8). He made

numerous on-site inspections of the Nelson property, as early

as February 1, 1988 and as recently as April 26, 1994. (IM

pars. 8, 13).

O’Connell holds a Masters degree in Physical Coastal

Geography, (JO pars. 1-4), has been employed by the MCZM

since 1985, and has held the position of Senior Coastal

Geologist since 1989. (JO par. 1). He is familiar with the

Little Beach area, having visited there on numerous occasions

since January 1987, most recently on October 21, 1993 (JO

pars. 6, 7).

Coastal dunes aid in storm damage prevention and flood

control by supplying sand to coastal beaches, thereby furthering

the dissipation of wave energy. Coastal dunes protect inland

coastal areas from storm damage and flooding by storm waves

and storm elevated sea levels because such dunes are higher

than the coastal beaches which they border. In order to protect

thisfunction, coastal dune volume must be maintained while

allowing the coastal dune shape to conform to natural wind and

' water flow patterns. On retreating shorelines, such as the

Chatham coast, the ability of coastal dunes bordering the

App. 19

coastal beach to move landward at the rate of shoreline retreat

allows these dunes to maintain their form and volume, which

in tum promotes their function of protecting against storm

damage or flooding.(JM, 33).

The Nelson revetment is proposed to be built along the

landward edge of a primary dune, (JM par. 35, JO par. 14,

18). The Hicks revetment is also proposed along the landward

edge of a primary dune, (JM par 36; JO, par. 15). Although

landform alterations have occurred on the Hicks property, thie

locus of the proposed construction is elevated, and performs the

functions of flood prevention and storm damage control. (JO

pars. 16, 17, 19). Additionally, the United States Geologic

Service has identified both the Nelson and Hicks properties as

containing beach and dune deposits, so it is likely that any

artificial fill on the Hicks property overlays a coastal dune

deposit, (JM par. 19).

Revetments have been documented in both laboratory and

field studies to cause increased erosion on the fronting beach

and adjacent properties by eliminating the scurce material for

beaches and dunes due to retention of sand behind the

structures which would otherwise be available in the absence of

vse structure, (JO par. 20). The phenomenon referred to as

~end scour” or “flanking”, is defined as the excess erosion

which the presence of a structure causes to occur beyond the

naturally occurring erosion, and is awell documented process,

(JM par. 42; Tr. I1-167, lines 9-19).

The revetments proposed across the Nelson and Hicks

properties will cause severe end scour on the adjacent

properties. This will result in significant erosion of beach and

dune areas, and increased storm damage and flooding potential

to these properties. These effects will be particularly severe on

App. 20

the immediately adjacent downdrift properties, (JO par. 22; Tr.

II-167 1. 7). In addition, the anticipated end scour of the

proposed individual revetments may flank the structures,

thereby causing their failure. This is of particular concem for

a revetment on a coastal dune due to the unconsolidated, highly

porous and dynamic nature of the dune material. (JO par. 25).

The revetments will have adverse effects on the coastal

dunes by affecting the ability of waves to remove sand from the

dune, by disturbing the vegetative cover, thereby destabilizing

the dune, by modifying the dune form, by interfering with the

landward and lateral movement of the dune, and by removing

sand from the dune artificially. (JO par. 24).

Coastal beaches serve the purpose of storm damage

prevention and flood control by dissipating wave energy and by

providing sediment to supply other coastal wetland resource

areas including coastal dunes, nearshore areas of land under the

ocean and other coastal beaches. (JM par. 32).

The Nelson house is fronted by a primary coastal dune.

Seaward of the dune is an area of coastal beach approximately

300 feet in width. (JM, Par. 18). The Nelson revetment would

change the beachfrom a dissipative one to a reflective one

leading to increased beach scour. Incoming waves and waves

reflected from the revetment would apply their energies to the

beach, accelerating the transport of sediment in front and

downdrift of the revetment. (JM Par. 41). This would lead to

the narrowing and the lowering of the coastal beach. (JM par.

44 (a)). The revetment would also increase erosion of the

downdrift beaches through reflection of wave energy, thereby

causing end scour. (JM par. 44(b)).

fil. CONCLUSIONS OF LAW

App. 21

A. The Nelson and Hicks projects are both located within

primary coastal dunes and, therefore are per se significant to

the interests of flood control and storm damage prevention.

(310 CMR 10.28 (1)).

B. The Nelson and Hicks projects will have adverse effects

on the dunes, by:

1. affecting the ability of waves to remove sand from

the dunes, (310 CMR 10.28 (3) (a);

2. disturbing the vegetative cover so as to destabilize

the dunes, (310 CMR 10.28 (3)(b);

3. causing modification of the form of the dunes,

therebyincreasing the potential for storm and flood

damage, (310 CMR 10.28 (3)(c));

4. interfering with the lateral and landward movement

of the dunes, (310 CMR 10.28 (3) (d)); and

5. causing removal of sand from the dunes

artificially, (310 CMR 10.28 (3) (e)).

C. The Nelson project is located within the buffer zone to

a coastal beach, (310 CMR 10.27 (1));

D. The Nelson project will have an adverse effect on that

coastal beach:

1. by increasing erosion, (310 CMR 10.27 (3);

2. by changing its form, (310 CMR 10.27 (3); and

3. by decreasing its volume, (310 CMR 10.27 (3).

E. The Nelson project will have an adverse effect on

downdrift coastal beaches:

1. by increasing erosion, (310 CMR 10.27 (3);

2. by changing its form, (310 CMR 10.27 (3); and

3. by decreasing its volume, (310 CMR 10.27 (3).

IV. ARGUMENT

App. 22

———EEEOEOO—Ereooeoroorooeooeoorrereee.— a eae LLL ee amas: ee

A. Location of Project Proposals

The Applicants have not challenged the Department’s

determination that both revetments are proposed to be built

within primary coastal dunes, nor its determination that the

Nelson project is within the buffer zone to a coastal beach.

B. Significance

As they pertain to the primary dunes, the Applicants’

significance arguments fail because such dunes are per se

significant to storm damage prevention and flood control. 310

CMR 10.28 (1).

The Applicants have not made a clear showing that the

coastal beach in front of the Nelson dune does not play a role

in stormdamage prevention or flood control. (Tr. 1-105 1. 21).

The Applicants admit that South Beach currently provides them

with protection. (OM/WB p. 3 (par (c)). Applicants argue that

the volume of sand on their property is insignificant in relation

to the volume of sediment trapped by revetments along the

mainland to the north of them, but they admit that the primary

source of sediment for their properties is the outer barrier

beach and not the mainland. (Tr. -128 1.17; Tr. p. 1241.14).

C. Effects on Coastal Dunes and Beaches

Applicants argue that the negative effects of revetments are

limited or negligible, and any negative effects that may be

caused by revetments are immaterial, because all sand is

eventually lost to deep water, (OM/WB p. 17 par. d).

On cross examination, Ole Madsen, (“Madsen”), the

Applicants’ expert on waves, admitted that all sand is not lost

_ to deep water, and that he had in fact filed an affidavit in a

court action filed on behalf of the Applicants against the

_ Commonwealth relating to the same properties, in which he

Stated that two-thirds of the sand eroded from a beach will

App. 23

return to the beach. (Tr. p. 175 1.20 to p. 177 1.4). Walter

Bohlen, (“Bohlen”), the Applicants’ expert on sediment

transport, also admitted that some of the sand currently in front

of the Nelson and Hicks properties will move landward and

some of it will move to the southwest. (Tr. I-98 1.3 to I-99

1.4).

On cross examination Madsen admitted that wave energy

was reflected off the face of revetments, (Tr. p. 167 1. 3) and

that he did not know whether such reflection affected the

fronting beach. (Tr. p. 171 1. 12). He also admitted that

Robert Dean of the University of Florida, Gary Griggs of the

University of California, and James Tait of Oregon State

University had done studies documenting that revetments cause

end scour. (Ir 0-55 1. 20 to H- 56 1. 17). Bohlen also

acknowledged that revetments affect the extent of erosion in

unrevetted areas. (Tr. 1-120, 1. 6). By contrast, both Mahala

and O’Connell have observed end scour. (Tr. 1-200 1. 19; Tr.

I-40 1. 7).

The Applicants’ witnesses conclude that a single revetment

is preferable to isolated revetments, (Trs. p. 163 1.4; 1-118 1.

10) The conclusion is inescapable that the Applicants seek to

minimize the effects of revetments on neighboring properties

because the properties so affected are their neighbors’ and not

their own.

The Applicants argue that individual revetments are

necessary to protect them from an imminent threat of serious

flooding and the potential loss of their houses. (RW pars. 21,

30, 31). Applicants’ witnesses agreed with the Department

however, that the proposed revetments will not alleviate the

Applicants’ flooding problems. (Trs. p. 117 1. 2; 0-34 1. 10,

1. 17, 1. 22 to 2-36 and 1. 24). |

App. 24

The comerstone of the Applicants’ argument regarding the

threat of erosion is the testimony of Robert Weaver. Weaver

testified that the beach in front of the Applicants’ properties

will disappear sometime between six and twenty-five months.

(RW pars. 45 through 48). Weaver lacks the expertise based

upon either his education or experience to make predictions

about future ratesof erosion in the Little Beach area. He also

failed to make an adequate factual inquiry to support his

predictions.

Weaver holds a high school diploma, took three college

level mathematics courses, and attended 40 hours of continuing

education courses with the Massachusetts Association of Land

Surveyors, (Tr. p. 48 1. 16 through p.49 1. 10). His relevant

work experience consists of supervision of the construction of

revetments from 1974 to 1979, and employment from 1°86

through 1991 for Engineering Information Technology, (EIT)

where he acquired permits for the construction of revetments

and subsurface sewage disposal systems.

Weaver was not involved in preparing the plans for the

proposed revetments which are the subjects of the adjudicatory

appeal. (Tr. p. 123, 1.1). He permanently relocated to North

Carolina in 1991, and since leaving Massachusetts, had been to

the Applicants properties on three occasions.

In order to make an informed prediction of future rates of

erosion, sound geological practice requires the review of

historical literature regarding shoreline changes of the outer

Cape, as well as a review of aerial photographs, and all

pertinent scientific and government reports. (Tr. 1-66 1. 1, to

2-69 1. 1). Weaver’s testimony fails to indicate whether he took

any of these steps. Much of the data he relied upon came from

a 1968 Corps of Engineers report, (Tr. 91, 1. 17), despite the

App. 25

fact that the DEIR discussed several reports and studies of the

area prepared after the 1987 breach. (Exs., 23A, 23 B).

In support of his predictions, Weaver relies heavily on

ratesof erosion which occurred at the subject properties between

1989 and 1991. Weaver admitted that this period included at

least two severe storms, Hurricane Bob and the October 1991

Halloween or “no- name” nor’easter, (Tr. p. 68 1. 13), and

that the latter storm in-particular caused extensive damage and

erosion to the Outer Cape. (Tr. p. 69, 1. 5). He also admitted

that during the period from 1991 to the present, the beach has

accreted by approximately 300 feet. (Tr. p. 70 1. 22). Bohlen

alsc admits that the beach has grown. (II-117 1.2; see also JM

pars. 23, 24). Weaver nevertheless maintains that the two year

period from 1989 to 1991 is a representative period which can

form the basis for predicting future rates of erosion. (Tr. p.73

ae: ae

Weaver’s testimony is also based upon erroneous factual

assumptions, the most glaring of which is his assertion that the

Applicants are vulnerable to 18 foot waves, (RW par. 4). Each

of the Applicants’ witnesses admit, however that it would be

impossible for an 18 foot wave to propagate across the swash

platform and strike the Applicants’ properties. (Tr. p. 191 1.

4 to 195 1. 1; p. 96 Is. 20-24; Tr. I-22, 1. 15; H-103, 1. 5;

Ex. 22). The average shallow-water wave height is

approximately 1.6 ft. (Ex. 23B, p. 26, sec. 4.1.2).

The arguments advanced by Madsen and Bohlen rely

heavily upon the observations and conclusions of Weaver and

should therefore be given little weight. (Tr. Vol II, pps. 26, 1.

23; 28 1., 15; 39, 1. 5; 108, 1. 10; and 117, 1. 2). Madsen had

last been to the site in August 1992, (Tr. p. 165 1.24), and had

not reviewed the EIR (Tr.p. 161 1. 18).

App. 26

ACI used an historical shoreline analysis to formulate a

quantitative predictive model of the future evolution of New

Inlet. The DEIR included an extensive literature review. (Ex.

23B, pps. 8- 10). Results of the US Army Corps Wave

Information Phase III, (Jensen, 1983), were used to determine

offshore wave conditions. A study of waves and sediment

transport performed by Gallagher in 1988 at Woods Hole

Oceanographic Institute under the advisement of Dr. Aubrey

was also considered. The 1992 FEMA study of Chatham was

used to determine flood elevations. Wetland areas were studied

by reviewing Department of Environmental Management

Orthophoto Maps, vertical aerial photos and by site visits.

(Ex. 23B).

The situation in Little Beach is unique and complex. (JO

par. 11). The Department agrees with the ACI conclusion that

the spit or tombolo currently protecting the Nelson and Hicks

properties will begin to break up and migrate at some time in

the future between two and ten years from now. (Ex 23A; Tr.

p. 2-186, 1. 12). The threat to the Applicants from erosion

will be temporary. (JM 51).

As a result of littoral drift, the focus of coastal erosion will

shift south of the Applicants’ properties, and as North Beach

migrates southward over time, their properties will again be

protected by a barrier beach. At that time the Little Beach area

will no longer be subject to direct wave attack from the

Atlantic Ocean. (JM par. 51). Additionally, if the channel

meanders close to the dunes in the Little Beach area, the

natural function of the dunes eroding during storms and

providing nearshore sand bars, andthen migrating shoreward

allowing reformation of the dunes during post-storm conditions

would be compromised, i.e. the sand would be swiftly carried

App. 27

downdrift in the channel currents and the sand would not be

available to migrate landward and reform the dunes, as

typically occurs. (JO par.12).

The DEIR recommends that a continuous revetment be

constructed as far landward as possible, extending from the

Nelson property to the Hicks property. Constructing the

revetment as far landward as possible will maximize the natural

protective attributes of the beach and dune system. A

continuous revetment will prevent the end scour and flanking

problems associated with separate revetments. Separate

revetments would cause severe impacts on adjacent properties,

and gaps would compromise the integrity of the structures.

The recommended plan also proposes that a series of

temporary groins, filled with sediment to entrapment capacity,

be constructed to slow the loss of fronting beach. Filling the

groins to entrapment capacity will ensure that they do not

interfere with longshore sediment transport. As the shoreline

retreats, the groins should either be shortened or artificially

filled with sand. Once the area is again protected by a barrier

beach, the groins should be removed since they will no longer

be needed. An ongoing condition requiring beach restoration

should be required, in the event that the beaches are not fully

restored by natural processes. (JM pars. 50, 51). The

Department recommends that a single entity file a Notice of

Intent for the entire project in order to ensurethat the revetment

is constructed in a contiguous manner, and that mitigation is

implemented and coordinated throughout the lifetime of the

project. (JIM 52).

The Applicants have arrived at exaggerated and flawed

conclusions regarding the imminence and the extent of the

erosion they will face. Witnesses who are either unqualified, or

App. 28

lack familiarity with all of the facts relating to current site

conditions, have relied on outdated, irrelevant and incomplete

facts to arrive at incorrect conclusions.

The Department believes that the Little Beach area will

temporarily be subjected to high rates of erosion in the future.

Piecemeal construction of isolated revetments however, will

cause considerable damage to significant protected coastal dune

and beach areas, will have potentially devastating consequences

for unrevetted areas, and are likely to be flanked and fail. The

plan more fully outlined in the FEIR, involving the use of

temporary groins filled to entrapment, and a continuous

revetment, combined with an ongoing condition requiring beach

nourishment, will have negligible long term environmental

impact and is acceptable to the Department.

App. 29

Dept. of Environmental Protection, by

Date:

Vincent Maraventano

Assistant General Counsel

Dept. of Environmental Protection

One Winter Street

Boston, MA 02108

Tel (617) 292-5728

FAX (617) 338-5511

EXHIBIT 1

October 26, 1993

Nicholas B. Spoutter, Esq.

One Washington Street

Wellesley, MA 02181

Re: Alfred B. Nelson

Docket Nos. 90-082 and 92-140

Wetland Variance Decision

Dear M. Soutter:

Enclosed please find the Department’s Decision on Request for

Variance from the Wetlands Protection Act in connection with

the above applicant’s request to build a stone revetment in front

of his home in Chatham.

Following a thorough review of this proposal based on the

regulatory criteria for granting a wetland variance, I find that

a variance is not appropriate for this project. This decision is

based on a number of factors which are more fully discussed

in the text of the decision.

You have the right to appeal this decision. Should you wish to

do so, your rights to appeal are explained fully in this decision,

Very truly yours

Daniel S. Greenbaum

Commissioner

App. 31

COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

)

In the Matter of ) Docket No. 90-082

) File No. SE 10-804

) Docket No. 92-140

Alfred B. Nelson ) File No. SE 10-987

DECISION ON REQUEST FOR VARIANCE

I. ISSUES

Alfred B. Nelson (the “Applicant”) owns waterfront

property containing a single family house which is located on

Morris Island Road, in Chatham. It is located within a coasta!

beach as defined in 310 CMR 10.27. The Department of

Environmental Protection, (the “Department”) has also

determined that it is within a coastal dune as defined in 310

CMR 10.28. The Applicant contends that the property is

subject to increased erosion as a result of the breach of the

barrier beach in Chatham caused by a January 1987 storm.

The Department issued two orders denying the Applicant’s

successive requests to build a stone revetment. The applicant

appealed these orders by requesting an adjudicatory hearing.

Although the Applicant obtained permission to build a sandbag

wall, he still seeks to build a stone revetment.

The Department is precluded, by the Massachusetts

Environmental Policy Act (“MEPA”), from making a final

App. 32

decision granting permission to construct the proposed

revetment unless and until an environmental impact report,

(“EIR”) is prepared evaluating the impacts of this and other

revetments in the area of Chatham affected by the breach, G.L.

c. 30 s. 61-62H, 310 CMR 11.25-11.27. The Town of

Chatham has informed the Department that the draft EIR for

phase II will be submitted to the Secretary around November

15, 1993. Once the phase II draft is completed the Department

may proceed with the adjudicatory hearing process.

The Department intends to hold an adjudicatory hearing on

the Applicant’s appeal in accordance with the schedule set forth

in Exhibit “A” attached hereto. This schedule will allow the

Department to have the information generated by the EIR prior

to making its final decision on the proposed project as required

by law.

Pursuant to 310 CMR 10.36, the Applicant now seeks

permission to build the permanent revetment by asking the

Department to issue a variance from its regulations. He has

failed to make the showing required by the variance standard

set forth in section II of this decision, and for the reasons

stated hereafter, the Applicant’s request for a variance is

denied. If the Applicant decides to appeal this denial, the

Department will consider such an appeal in the course of the

adjudicatory hearing on the superseding orders.

Il. FACTUAL AND PROCEDURAL HISTORY

A coastal storm on January 2, 1987 caused a breach in the

outer barrier beach in Chatham. This breach caused enormous

changes in erosion rates, water circulation and sedimentation

patterns. As a result there have been significant shoreline

changes along a large portion of the Chatham coastline

App. 33

formerly protected by the barrier beach, including the Little

Beach area in which the Applicant’s property is located.

The breach caused by the 1987 storm has migrated

southward, and it is anticipated that it will continue to do so.

The beach area to the north of the breach, now known as North

Beach, will move to the south, in time providing protection to

the Little Beach area again.

In 1988 several owners of affected coastal properties sought

permission under the Wetlands Protection Act, G.L. c. 131s.

40, to build coastal engineering structures, or revetments. As

additional property owners have become affected, they have

also sought permission to construct revetments.

When proponents of private projects having significant

environmental impacts seek a permit from a public agency, the

Massachusetts Environmental Policy Act (“MEPA”), requires

the preparation of an EIR which evaluates the project in

conjunction with other development, or projects existing and

expected in the area, G.L. c. 30 s. 62A. Therefore the

affected property owners were required to prepare an EIR

evaluating the environmental impacts of the proposed

revetments on the entire coastal area affected by the breach.

See, Certificate of the Secretary of Environmental Affairs (the

“Secretary”), dated October 27, 1988.

On March 14, 1990 the Secretary issued a new certificate

repeating the requirement that the EIR cover the entire section

of the Chatham coast affected by the breach. It also clarified

that the area extended from the Chatham fish pier to Morris

Island, and included the Little Beach area in which Applicant’s

property is located.

The Secretary subsequently adopted the town’s

recommendation that the EIR should be done in two phases.

App. 34

Phase I addresses the portion of the coast north of the

Applicant’s property, where revetments have been constructed.

Phase II addresses the portion of the affected area from the

Applicant’s property south to Morris Island. Revetments have

not been built in this area, which is not currently jeopardized

by erosion.

The EIR on phase I is now complete, and as stated

previously, the draft EIR on phase I is expected to be

completed around November 15, 1993. A working draft of the

EIR states that the Applicant’s property is currently in an

accretionary stage, and is not experiencing erosion, although

conditions may change in the next one to five years. The part

of the outer barrier beach located southward of the breach has

welded to the shore in the Little Beach area, thereby creating

a wide beach area in front of the Applicant’s property.

On June 22, 1989, the Applicant filed a Notice of Intent

with the Chatham Conservation Commission (the

“Commission”), seeking permission to build a stone revetment

under both the State Wetlands Protection Act, G.L. c. 130 §

40, and the Chatham Wetlands Protection Regulations enacted

under the town by-law. The structuie which was labelled an

“internally armored dune,” consisted of a bottom layer of trap

rock covered by a layer of 1/2 ton stones, another layer of two

ton stones and a covering layer of sand. The plans indicate a

final elevation of 16 feet.

On October 22, 1989 the Commission denied the Applicant

permission to build the proposed structure under both the

Wetlands Protection Act and the local regulations. The

Commission concluded that the Applicant’s property was a

significant part of a primary dune system and that the proposed

structure would significantly interfere with the natural process

App. 35

of dune migration, storm damage prevention and flood control.

The Commission also concluded that in the event of a major

storm surge, the structure would exacerbate damage to adjacent

structures.

The Applicant appealed the decision of the Commission

under the local Wetlands Regulations to the Superior Court,

which remanded the case to the Commission. On April 25,

1990, after conducting additional hearings, the Commission

issued a new decision solely under the local regulations. In

that decision the Commission determined that the proposed

structures would have unacceptable environmental impacts on

the foreshore and on abutters. The Commission also

determined that the Applicant had not submitted adequate

information from qualified coastal geologists on present and

future erosion patterns and had not evaluated specific

alternatives that might have less environmental impact. The

Commission stated, that it was

most concerned with maintaining the ability of

the property in question and all of the

neighboring properties to disperse and absorb

flood waters. The proposed armored dune on

the applicant’s property will function as a levee

under flood conditions and will divert waters to

the north and to the south of the structure with

the attendant concentration of hydraulic and

wave action. In performing this levee function,

the armored dune will aggravate flooding and

storm damage to adjacent properties, virtually

forcing the neighbors into building similar

structures. In effect, each structure built forces

the problem further down the coast.

App. 36

The Superior Court upheld this decision.

The Applicant also appealed the Commission’s decision by

requesting that the Department issue a superseding order. On

March 29, 1990 the Department issued that superseding order

and denied the Applicant permission to build the proposed

project was located on a significant coastal dune.° The

Department also determined that the proposed structure did not

meet the performance standards set forth in the regulations, 310

C.M.R. 10.28(3)(a) and (d) in that the proposed revetment

would affect the ability of waves to remove sand from the dune

and would obstruct the movement of sediment to downdrift

beaches.

On December 23, 1991 the Applicant filed a second notice

of intent seeking permission to build a similar revetment. The

Commission found that the revised project was more extensive

than the previously proposed structure and again issued an

order of conditions denying the Applicant permission to build

under both the Wetlands Protection Act and the Chatham

regulations.

The Applicant again appealed the Commission’s decision

under the Act by requesting that the Department issue a

superseding order. On November 9, 1992, the Department

again issued a superseding order denying the Applicant

6 The area on which Applicant’s property is located was

designated a significant coastal dune pursuant to GL c. 130s.

105. An order has been issued pursuant to said statute, and

recorded at the Barnstable Registry of Deeds on August 1, 1982,

which provides at paragraph 3 (G) that “coastal engineering

structures may be allowed only where such structures willhave no

adverse effects on adjacent property or downcoast areas”.

App. 37

permission to build a stone revetment. The Department

determined that the second proposed revetment interfered with

the ability of the coastal dune to act as a sediment source for

downdrift properties, would increase the erosion of downdrift

beaches and interfere with the lateral movement of the dune.

The Applicant again appealed this superseding order by

requesting an adjudicatory hearing.

In the meantime, the Applicant’s emergency request for

permission to build a temporary dura bag” wall, had been

denied by the Town of Chatham in May 1992. Permission to

build such a wall, was granted by the Department on May 11,

1992 and was authorized by the Secretary on May 19, 1992, in

order to provide protection to the Applicant’s house until the

EIR was completed. The Applicant constructed a dura bag

wall which provides significant protection for his home.

Most recently, on September 20, 1993, the Applicant

requested a variance from the Department’s regulations

governing coastal beaches and dunes.

Il. VARIANCE STANDARD

The provisions of the Department’s regulations pertaining

to coastal banks, coastal beaches and coastal dunes at 310

C.M.R. 10.00 et seq. may be waived upon a finding by the

Commissioner that:

(1) there are no reasonable conditions or

alternatives that would allow the project to

proceed in compliance with the regulation(s);

2 Dura bags are firmly packed sand in synthetic bags, are very

heavy, and can be as long as twenty feet in length.

App. 38

(2) that mitigating measures are proposed that

will allow the project to be conditioned so as to

contribute to the protection of the interests

identified in the Act; and

(3) that the variance is necessary to

accommodate an overriding community,

regional, state or national public interest; or that

it is necessary to avoid an Order that so restricts

the use of property as to constitute an

unconstitutional taking without compensation.

Procedure.

A request for a variance shall be made in

writing and shall include, at a minimum, the

following information:

(a) a description of alternatives explored

that would allow the project to proceed in

compliance with the regulation(s) and an

explanation of why each is unreasonable;

(b) a description of the mitigating measures

to be used to contribute to the protection of the

interests identified in the Act; and

interest is associated with the project which

justifies waiver of the regulation(s) or evidence

that the Superseding Order so restricts the use of

the land that it constitutes an unconstitutional

taking without compensation.

310 CMR 10.36.

IV. DISCUSSION

The Applicant has not shown that he meets any part of the

above standard for obtaining a variance. He has not identified

any specific mitigation measures he proposes to implement to

address adverse impacts created by his proposed revetment. He

has also failed to explore alternatives that would enable him to

App. 39

obtain protection from storms and erosion in a manner

consistent with the regulations or to explain why such

alternatives are not reasonable.

The Applicant’s failure to address alternatives is particularly

significant. Important alternatives which he has failed to

address include cooperative beach nourishment and a sandbag

wall. He has not thoroughly evaluated alternatives involving

the relocation of the house, raising the elevation of the house,

or a combination of more than one ot the above measures.

The Applicant has not provided any evidence regarding the

cost of beach nourishment in the area. He has not indicated

whether there have been any efforts to undertake beach

nourishment in cooperation with other neighboring properties.

Nor has he addressed the issue of whether a cooperative beach

nourishment program would be more successful and more cost

effective than the isolated efforts attempted in the past.

In addition, the Applicant has not provided any evidence

that a sandbag wall similar to that already permitted pursuant

to the emergency certification is not an acceptable solution. As

the area of impact caused by the breach migrates to the south

of the Applicant’s property, his vulneerability to erosion and

storm damage will be dramatically reduced. In these

circumstances, there may be good reason to use a sandbag wail

rather than a stone revetment, since sandbags can be easily

removed when no longer necessary. Accordingly, the

continued use of a sandbag wall should be evaluated.

In addition to beach nourishment and a sandbag wall, the

Applicant has not thoroughly considered the possibility of

moving his house further back from the sea or elevating it.

After visiting the site, the Department is of the opinion that the

Applicant has ample room to relocate the house. The

Applicant has presented no expert geological evidence that the

anticipated rate of erosion prior to the southward migration of

the breach would make such relocation futile. The Applicant’s

conclusory allegation that “there is no likelihood that the

App. 40

houses could be moved back or stilted” is insufficient to

establish that these alternatives are not feasible. He has failed

to present any credible evidence on the costs of relocating or

elevating the house.

To the extent that the Applicant has rejected relocation and

elevation due to anticipated costs, consideration should be given

to the availability of public funds to ameliorate the burdens that

such costs may place on individual homeowners who choose to

take such measures. The State Hazard Mitigation Grant

Committee comprised of several agencies, including the

Department and the Office of Coastal Zone Management,

recommended that $200,000 be allocated to the Chatham area

from the Federal Emergency Management Agency, (“FEMA”)

Hazard Mitigation Fund. Such allocation has been approved

ans priority is to be given to funding flood mitigation measures

in the Little Beach area. As stated in the working draft of the

EIR, it should be emphasized that,

. . . the Little Beach area is low and floods

from many locations depending on the size and

direction of storm approach. Protection from

flooding must come from a combination of

raising structures and other flood-proofing

measures outlined in the Town’s hazard

mitigation plan.

The Applicant has also failed to satisfy the other aspects of

the variance standard. He has not presented any evidence of

the existence of-an overriding public interest that would justify

the granting of the requested variance. He has also failed to

present any evidence that, in the absence of the requested

variance, the application of the regulations to his property

would result in a taking for which he is entitled to

compensation. In the absence of such evidence, and the

Applicant’s failure to explore alternatives to the proposed

project and to consider its effect on the surrounding area, it is

App. 41

premature for me to further discuss those aspects of the

variance standard relating to either the existence of an

overriding public interest, or relating to a taking for which the

Applicant would be entitled to compensation.

I anticipate that many if not all of the above issues will be

fully explored and analyzed in the EIR to be completed shortly.

I am sympathetic to the Applicant’s situation as shown by my

willingness to expedite this decision and to hold an adjudicatory

hearing on the expedited timetable previously discussed. At the

same time, permanent revetments in dune areas present major

environmental problems and I am obligated to fully consider

the availability of alternatives less damaging to the environment

as well as the effects of the proposed project on neighboring

coastal property owners. Upon completion of the necessary

EIR process I direct my staff to meet with the Applicant or his

representatives to review the merits of his proposal in light of

the findings and recommendations of the EIR regarding

comprehensive solutions to the problems of the entire coastal

area.

V. APPEAL RIGHTS

This order is an action of the Department. If you are

aggrieved by this action, you may request an adjudicatory

hearing. A request for a hearing must be made in writing, and

postmarked within ten (10) business days of the date this order

was issued... .

DANIEL S. GREENBAUM

COMMISSIONER

App. 42

EXHIBIT “A”

The MEPA office of the Secretary of Environmental Affairs

will issue a Certificate on the Draft Environmental Impact

Report approximately six weeks after it is filed. It is

anticipated that a draft report will be filed soon, and that such

a certificate will be issued before the end of 1993.

Within one month from the issuance of the MEPA

certificate, the Department will hold a prehearing conference

on the Applicant’s appeal of its denial of a Superseding Order

of Conditions.

Within one month from the date of the prehearing

conference the Applicant will file with the administrative law

judge, all pre-filed direct testimony which the applicant intends

to introduce in the adjudicatory hearing. Within one month

thereafter, the Commonwealth and the Town of Chatham will

file all pre-filed direct testimony which they intend to introduce

at the adjudicatory hearing.

The hearing will commence within one month from the

filing of all pre-filed direct testimony. The hearing record will

Close fourteen business days from the later to occur of the end

of the hearing or the issuance by the MEPA office of a final

Environmental Impact Report.

A decision will be issued within sixty days from the date

that the hearing record closes.

It is within such administrative law judge’s discretion to

determine whether the hearing on the appeal of the Superseding

Order of Conditions will be bifurcated from the hearing of the

appeal of the variance denial.

App. 43

May 11, 1992

Nicholas B. Soutter, Esq. RE: Chatham—Wetlands

Attorney at Law Emergency Certification

One Washington Street Alfred B. Nelson

Wellesley, MA 02181 27 Morris Island Road

Dear Mr. Soutter:

The Department of Environmental Protection is in receipt

of your request, dated May 7, 1992, for an Emergency

Certification at the above-referenced address. The Department

is issuing the enclosed Emergency Certification to install sand-

filled bags as a temporary measure to abate erosion threatening

the Nelson home, in accordance with an agreement reached

with the Office of the Attorney General, as set forth in a letter,

dated January 29, 1992 (copy attached). This Emergency

Certification is issued pursuant to the Wetlands Protection Act,

M.G.L., c. 131, Section 40, and subject to the specified

written conditions.

This Emergency Certification allows the temporary use of

sand-filled bags, as proposed by the Nelsons, to abate the

emergency until such time as all necessary permits may be

obtained for a more permanent solution which complies with

the performance standards of the Wetland Protection Act

Regulations, 310 CMR 10.00. As you know, the Nelsons must

comply with the requirements of the Massachusetts

Environmental Policy Act, before the Department can issue a

Final Order of Conditions approving any project proposing the

App. 44

alteration of the primary dune. It is therefore necessary that

the Nelsons fully participate in the development and

implementation of the comprehensive plan (Environmental

Impact Report) which is currently being pursued by the Town

of Chatham to address the erosion caused by the Chatham

Breach, or prepare their own Environmental Impact Report

which meets the requirements of the Secretary of the Executive

Office of Environmental Affairs.

Please be advised that the Department views this method of

erosion abatement as temporary in nature, and once again

strongly urge4s the Nelsons to elevate the house, and move it

landward of its present location. The Department is willing to

assist with this effort, and to expedite such a request to relocate

the dwelling in accordance with the Wetlands Protection Act.

If you have any questions, or need additional information,

please contact me, of Jim Mahala, at telephone number

(508)946-2800, or at the above referenced address.

Very truly yours,

Elizabeth A. Kouloheras, Chief

Wetlands Section

App. 45

COMMONWEALTH OF MASSACHUSETTS

WETLANDS PROTECTION ACT AND REGULATIONS,

G.L. 131, § 40, 310 CMR 10.00

EMERGENCY CERTIFICATION

FROM: Department of Environmental Protection

TO: Nicholas B. Soutter Alfred Nelson

(Name of Applicant) (Name of Property Owner)

One Washington Street 27 Morris Island Road

(Address) (Address)

Wellesley, MA, 02181 Chatham, MA, 02633

DATE: May 11, 1992

LOCATION: 27 Morris Island Road

FINDINGS:

1. The Department hereby certifies pursuant to 310 CMR

10.06 that the work described below is necessary for the

protection of the health and safety of the Citizens of the

Commonwealth and will be performed by or has been ordered 4

to be performed by an agency of the Commonwealth or a

subdivision thereof.

2. A site inspection was performed on May 7, 1992.

3. The agency authorizing the emergency work is the

Office of the Attorney General . (Not the commission unless

work is on land owned or controlled by them.)

4. Describe below, the work which is allowed to proceed

under this certification. No work beyond that necessary to

abate the emergency may be so certified.

Placement of sandbags within a Coastal Dune, 310 CMR

10.28 and a Coastal Beach, 310 CMR 10.27, in accordance

with the plan entitled “NELSON PROPERTY ”, dated May 6,

1992, signed by R.H. Wilson, P.E., provided that the owners’

permission is obtained to install the sandbags on their property

in accordance with condition numbers 6 & 7 below. Additional

emergency certification, pursuant to the Wetlands Protection

Act, is necessary prior to the replacement of any damaged

bags. See additional conditions #’s 1-12, attached.

5. The above-described work shall be completed by June

10, 1992(date). (Work performed under an Emergency

App. 47

Certification shall not exceed 30 days from the date of

certification unless the Commissioner of DEP so approves.

Issued by:

Elizabeth A. Kouloheras, Chief

Wetlands Section

App. 48

Special Conditions-Emergency Certification-Alfred B. Nelson,

27 Morris Road, Chatham

1. The sand to be used will be special borrow quality sand

with less than 10% passing the #200 sieve (fines) of a

grain size comparable to the existing beach/dune sand.

a The sand shall be brought in from a suitable upland off-

site location. Use of existing beach/dune sand is

prohibited. Verification of the borrow pit may be

required.

3. Any fill required to support the sand filled bags shall be

consistent with the grain size as referenced under

special condition #1.

4. Use of cement concrete or a similar hardening add-

mixture within the bag is prohibited.

3 For drainage purposes 4 inch PVC pipe should be

installed at 10 feet on center for every other course of

sandbags.

6. The plan of record for Chatham Wetlands File No. SE#

10-987, dated 12/26/91, by Coastal Engineering Co.,

references Bearse’s Lane as a 20 foot wide Town Way.

Whereas, your proposal calls for crossing Bearse’s Lane

and connecting the sandbags with the existing stone

revetment at the Chatham Beach and Tennis Club prior

approval of the property owners (for Bearse’s Lane and

the Beach and tennis Club) will be required.

7. In the absence of the granting of property rights, a

sandbag return may be installed on the Nelson property,

parallel and adjacent to Bearse’s Lane and Mr. Nelson’s

Northern property line.

App. 49

10.

11.

The existing “unpermitted” timber bulkhead must be

removed within 30 days upon completion of the

installation of the sand filled bags.

Any work proposed below Mean High Water, will

require your obtaining emergency authorization pursuant

to M.G.L., c. 91.

Because the Nelsons own more the 300’ of property

between the existing dwelling, and Morris Island Road,

the Department strongly recommends that the property

owners investigate the feasibility of relocating the house

landward of its present location, and/or elevating the

house of a properly designed pile foundation, above the

Base Flood Elevation.

Upon the showing of any adverse affect the Department

reserves the right to order the removal or modification

of the sand filled durabags.

It is an express condition of this Emergency

Certification that the Nelsons take, as expeditiously as

possible, all necessary steps to obtain the permits

required for a permanent solution to protect the

structure. Failure to meet this condition may be cause

for the Department to require the Nelsons to remove the

sandbags permitted under this Emergency Certification,

or to take other measures to bring the Nelsons into

compliance with the Wetlands Protection Act.

App. 50

TOWN OF CHATHAM

Conservation Commission

FINDINGS ON APPLICATION FOR PERMIT

UNDER WETLANDS PROTECTION BY-LAW

APPLICANT: Alfred B. Nelson

ADDRESS: P.O. Box 8995

Naples, FL 33940

LOCATION OF WORK: 27 Morris Island Road

After public hearing in accordance with open meeting law

M.G.L. Ch. 39, s. 23B, closed on January 28, 1992 , the

Chatham Conservation Commission, in accordance with the

Town of Chatham Wetlands By-Law finds:

Permit is granted - work may proceed;

Permit is denied;

This project is denied because it does not meet the

performance standards of the Town of Chatham Wetlands

Protection By-Law, 2.02 and 2.03.

Conservation Commission

App. 51

SUPERSEDING

Order of Conditions

Massachusetts Wetlands Protection Act

G.L. c. 131, §40

DENIAL

From Department of Environmental Protection

To Alfred Nelson Same

(Name of Applicant) (Name of property owner)

Address 401 Edwards - 1500 Address Same

Shreveport, LA 71101

This Order is issued and delivered as follows:

by hand delivery to applicant or representative on

(date)

x by certified mail, return receipt requested on March

29, 1990(date)

This project is located at 27 Morris Island Road

The property is recorded at the Registry of Deeds,

Barnstable

Book Page

Certificate(if registered) 29197, 68253

App. 52

Notice of Intent for this project was filed on June 22, 1989

(date)

The public hearing was closed on September 6, 1989

(date)

Findings

The Department has reviewed the above referenced

Notice of Intent and plans and has held a public hearing on the

project. Based on the information available to the Department

at this time, the Department has determined that the area on

Effective 11/10/89 5-1

which the proposed work is to be done is significant to the

following interest in accordance with the Presumptions of

Significance set forth in the regulations for each Area Subject

to Protection Under the Act(check as appropriate):

Public water supply x Flood control Land containing

shellfish

Private water supply x Storm damage prevention Fisheries

Ground water supply Prevention of pollution

x Protection of wildlife habitat

Total Filing Fee Submitted State Share

City/Town Share (0 fee in excess of $25)

Total Refund Due $ City/Town Portion $ State Portion $

(0 total) (0 total)

App. 53

Issued by the Department of Environmental Protection

Signature

Elizabeth A. Kouloheras, Chief, Wetlands Section

On this 29th day of March 19 90 , before me personally

appeared Elizabeth A. Kouloheras to me known to be the

person described in and who executed the foregoing instrument

and acknowledged that he/she executed the same as his/her free

act and deed.

Jeanne E. Turney Sept. 21, 1995

Notary Public My commission expires

The applicant, the owner, any person aggrieved by the

Superseding Order, any owner of land abutting the land upon

which the proposed work is to be done, or any ten persons

pursuant to G.L. c. 30A §10A, are hereby notified of their

right to request an adjudicatory hearing pursuant to G.L. c. 30

§10A, providing the request is made be certified mail or hand

delivery to the Department, with the appropriate filling fee and

Fee Transmittal Form as provided in 310 CMR 10.03(7),

within ten days from the date of issuance of this Superseding

Order, and is addressed to: Docket Clerk, Office of General

Counsel, Department of Environmental Protection, One Winter

Street, Boston, MA 02108. A copy of the request shall at the

same time be sent by certified mail or hand delivery to the

conservation commission, the applicant, and any other party.

App. 54

SUPERSEDING

Order of Conditions

Massachusetts Wetlands Protection Act

G.L. c. 131, §40

DENIAL

From Department of Environmental Protection

To Lewis Hicks, II Same

(Name of Applicant) (Name of property owner)

Address Box 6308 Address Same

Lawrenceville, NJ 08648

This Order is issued and delivered as follows:

by hand delivery to applicant or representative on

(date)

x by certified mail, return receipt requested on

November 20, 1990(date) P 707 026 846

This project is located at 40 Dune Drive

The property is recorded at the Registry of Deeds,

Barnstable

Book 1342 Page 997

Certificate(if registered)

App. 55

Notice of Intent for this project was filed on February 5,

1990 (date)

The public hearing was closed on March 21, 1990

(date)

Findings

The Department has reviewed the above referenced

Notice of Intent and plans and has held a public hearing on the

project. Based on the information available to the Department

at this time, the Department has determined that the area on

Effective 11/10/89 5-1

which the proposed work is to be done is significant to the

following interest in accordance with the Presumptions of

Significance set forth in the regulations for each Area Subject

to Protection Under the Act(check as appropriate):

Public water supply x Flood control Land containing

shellfish

Private water supply x Storm damage prevention Fisheries

Ground water supply Prevention of pollution

x Protection of wildlife habitat

Total Filing Fee Submitted 250.00 State Share 112.50

City/Town Share 137.50 (0 fee in excess of $25)

Total Refund Due $ City/Town Portion $ State Portion $

(0 total) (0 total)

App. 56

Issued by the Department of Environmental Protection

Signature

Elizabeth A. Kouloheras, Chief, Wetlands Section

On this 20th day of November 19 90 , before me personally

appeared Elizabeth A. Kouloheras to me known to be the

person described in and who executed the foregoing instrument

and acknowledged that he/she executed the Same as his/her free

act and deed.

Jeanne E. Turney Sept. 21, 1995

Notary Public My commission expires

The applicant, the owner, any person aggrieved by the

Superseding Order, any owner of land abutting the land upon

which the proposed work is to be done, or any ten persons

pursuant to G.L. c. 30A §10A, are hereby notified of their

right to request an adjudicatory hearing pursuant to G.L. c. 30

§10A, providing the request is made be certified mail or hand

delivery to the Department, with the appropriate filling fee and

Fee Transmittal Form as provided in 310 CMR 10.03(7),

within ten days from the date of issuance of this Superseding

Order, and is addressed to: Docket Clerk, Office of General

Counsel, Department of Environmental Protection, One Winter

Street, Boston, MA 02108. A copy of the request shall at the

same time be sent by certified mail or hand delivery to the

conservation commission, the applicant, and any other party.

App. 57

COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

In the Matter of ) DEP Docket No. 92-140

) File No. SE 10-987

Alfred B. Nelson )

)

In the Matter of DEP Docket No. 92-152

File No. SE 10-1027

Lewis W. Hicks

— YY eS SY

PRE-FILED TESTIMONY OF JAMES MAHALA

Qualifications

I. My name is James Mahala. I have been employed by the

Department of Environmental Protection, Division of Wetlands,

as an Environmental Analyst since September 1986, and since

December 1990, as an Environmental Analyst IV.

II. I hold a Bachelor of Science degree in Geology from the

State University of New York at Oneonta (1982) and a Master

of Science degree in Coastal Geology from Western

Washington University (1985).

Il. _I have co-authored the following publications:

- Schwartz, M.L., Mahala, J., and Bronson, H.S., 1985,

App. 58

Net Shore-Drift Along the Pacific Coast of Washington

State: Shore and Beach, v. 53, pp. 21-25.

- Schwartz, M.L., and Mahala, J., 1985, Clallam

County, Washington, Net Shore-Drift: Washington

State Department of Ecology, 13 p.

- Schwartz, M.L., and Mahala, J., 1985, Jefferson

County, Washington, Net Shore-Drift: Washington

State Department of Ecology, 11 p.

IV. I have co-authored the following abstracts:

- Schwartz, M.L., Mahala, J., and Bronson, H.S., Net

Shore Drift Along the Pacific Coast of Washington State:

Geological Society of America, Cordilleran Section,

Vancouver, B.C.., Canada, May 1985.

- Schwartz, M.L., Mahala, J., and Bronson, H.S., Net

Shore Drift Along the Pacific Coast of Washington State:

West Coast Regional Coastal Design Conference, Oakland,

CA, November, 1985.

5S. My work at the Department includes administering and

enforcing the Wetlands Protection Act (“the Act”), M.G.L. ie.

131, s.40, and the regulations that implement the Act at 310

CMR 10.00. My responsibilities include the review of designs

of coastal engineering structures proposed in coastal areas

protected by the Act. I also provide technical expertise on the

impacts of proposed projects on such areas.

6. In the performance of these duties I review Notices of

Intent, site plans, and complex calculations and write Orders of

Conditions, Determinations of Applicability, Enforcement

Orders, Notices of Noncompliance, and Penalty Assessment

Notices. These duties require that I conduct on-site inspections

to identify and delineate coastal and inland wetland resource

areas, including coastal dunes, coastal beaches and coastal

App. 59

banks. I also assess the potential impact of proposed projects

on the statutory interests of the Act. As an Environmental

Analyst IV, I am also responsible for reviewing the work of

wetlands staff of lower grade.

7. During my tenure with the Department I have conducted

over 300 on-site inspections. Most of my field experience with

the Department has been along the Massachusetts coastal zone,

with a particular emphasis on Cape Cod. I have qualified and

testified as an expert witness in several adjudicatory

proceedings before the Department on the extent and type of

coastal resource areas as well as the impact of proposed

activities on such areas. 1 wave submitted technical affidavits

in court supporting the scientific basis of the Coastal Wetland

Regulations. I have provided technical assistance to the

Division of Waterways, Department of Environmental

Management, the State Attorney Generals’ Office, andto local

Conservation Commissions.

8. I am familiar with the shoreline of Chatham, and I have

personally worked on at least ten (10) revetment proposals

along the inner-shoreline of Pleasant Bay (Chatham Harbor).

I have conducted numerous on-site inspections (approximately

25 site visits) along the Chatham shoreline since the formation

of the new inlet and have provided technical assistance to the

Town of Chatham and Aubrey Consulting, Inc., in developing

the Environmental Impact Report for this area. I most recently

visited this area on April 26, 1994.

History of the Proceedings

9. On or about December 23, 1991, Alfred B. Nelson filed a

Notice of Intent with the Conservation Commission in the town

of Chatham and the Department (Ex. 1) describing the

construction of a stone revetment upon a coastal beach. On or

App. 60

about May 15, 1992, Lewis W. Hicks, filed a Notice of Intent

with the Conservation Commission in the town of Chatham and

the Department (Ex. 2) describing the construction of a stone

revetment behind a primary coastal dune.

10. On January 16, 1992, the Department issued file

number SE 10- 987 to Mr Nelson’s filing and on June 5, 1992,

the Department issued file number SE 10-1027 to Mr. Hick’s

filing.

11. On or about January 30, 1992, the Chatham

Conservation Commission issued an Order of Conditions (Ex.

3) denying the project proposed by Mr. Nelson. The

Commission’s Order of Conditions denied the proposed project

because the proposal did not meet the performance standards

for Coastal Beaches (310 CMR 10.27) and Coastal Dunes (310

CMR 10.28). On or about July 2, 1992, the Chatham

Conservation Commission issued an Order of Conditions (Ex.

4) denying the project proposed by Mr. Hicks. The

Commission’s Order of Conditions denied the proposed project

because the proposal did not meet the performance standards

for Coastal Dunes (310 CMR 10.28).

12. On July 8, 1992, Nicholas B. Soutter, Esq.,

representing Mr. Nelson, appealed the Commission’s Order of

Conditions to the Department. On February 7, 1992, Mr.

Soutter, representing Mr. Hick’s, appealed the Commission’s

Order of Conditions to the Department.

13. On April 7, 1992, I conducted an on-site inspection of

the Nelson property. On November 7, 1989, I conducted an

on-site inspection of the Nelson property in conjunction with a

previous wetland filing. The Department waived the on-site

inspection of the Hick’s property, in accordance with 310 CMR

10.05 (7)(i), because said inspection would not have been

App. 61

either necessary or useful for a proper and complete review of

the proposed project. I had previously inspected Mr. Hick’s

property on February 1, 1988,and on several other occasions

prior to waiving the on-site inspection.

14. On October 20, 1992, the Department issued a

Superseding Order of Conditions denying the Nelson’s proposal

(Ex. 5). On November 9, 1992, the Department issued a

Superseding Order of Conditions denying the Hick’s proposal

(Ex. 6). The Department’s Orders cited as the reasons for

denial its determination “that the project area is significant to

storm damage prevention and flood control.” Specifically, the

Department denied the proposed projects because the proposed

revetments would result in impacts to the coastal beach and

coastal dune that do not meet the performance standards

established by 310 CMR 10.27 and 10.28. Furthermore, the

Department determined that the proposed revetments would not

comply with terms of a Wetland Restriction Order which was

recorded at the Registry of Deeds against the subject properties

pursuant to M.G.L., Chapter 130, Section 105 (Ex. 7— July

1, 1982 Wetlands Restriction Order), (Ex. 8—Wetlands

Restriction Program Aerial Photograph, April/May, 1978).

The Department determined that the proposed revetments would

obstruct the movement of sediment and would adversely affect

adjacent properties and downcoast areas. These impacts are

expressly prohibited under the terms of the Wetland Restriction

Order.

15. On October 28, 1992, Nicholas B. Soutter, Esq.,

representing Mr. Nelson, appealed the Department’s

Superseding Order ofConditions for an adjudicatory hearing.

On November 20, 1992, Mr. Soutter, representing Mr. Hick’s,

App. 62

appealed the Department’s Superseding Order of Conditions for

an adjudicatory hearing.

16. The Department’s Superseding Orders of Conditions

informed the applicants that because the proposed projects

involve the alteration of a primary dune, if the Superseding

Orders were appealed, the Applicants would be required to file

an Environmental Notification Form (ENF) pursuant to the

Massachusetts Environmental Policy Act (MEPA). Mr. Nelson

filed an ENF (EOEA #8133), (Ex. 9), and received a

Certificate from the Secretary of Environmental Affairs on

March 14, 1990, (Ex. 10), requiring the preparation of an

Environmental Impact Report (EIR). The area immediately to

the north of the Nelson property was the subject of an earlier

MEPA filing, EOEA #7345, for which an EIR was also

required. The Secretary subsequently amended the scope for

EOEA #7345 and requested that a single EIR analyze the entire

shoreline from Aunt Lydia’s Cove on the north to Morris

Island on the south. Aubrey Consulting, Inc. (ACI), hired by

the Town of Chatham and others, accomplished this by

analyzing the Chatham shoreline in two phases. The Phase I

EIR dealt with the adequacy of revetment construction and

mitigation from Aunt Lydia’s Cove to the Chatham Beach and

Tennis Club. The Phase II EIR, (Exhibit 11—Phase I DEIR,

December 6, 1993), analyzed various shoreline protection

alternatives for the unprotected area commencing south of the

Beach and Tennis Club to Morris Island. The MEPA scope for

the Phase [area also mandated that mitigation requirements and

the significance of each coastal wetland resource area be

evaluated. The Nelson and Hicks properties are both included

in the Phase II EIR.

App. 63

17. In the October 27, 1988, Certificate (EOEA #7345)

and again in the March 14, 1990, Certificate (ROEA #8133),

the Secretary of Environmental Affairs requested that a single

EIR be prepared so that a comprehensive system-wide solution

to the coastal erosion problems could be addressed. A

comprehensive EIR is necessary to inform the regulatory

agencies of the potential effects of various shoreline protection

alternatives and to develop an appropriate mitigation and

monitoring program to ensure that adjacent and downdrift

property owners are not adversely effected by ill-advised

coastal construction. Further, an EIR prepared from a regional

perspective is the preferred way to study the Chatham shoreline

due to the complex and dynamic nature of the Nauset breach

cycle and its resulting erosion patterns.

Site Description and Significance

18. | The Nelson property is located immediately south of the

Chatham Beach and Tennis Club. The Nelson property is

bounded on the south by an undeveloped lot also owned by the

Nelsons. Presently, the Nelson dwelling is fronted by a

primary coastal dune and an approximately 300 foot wide

coastal beach.

19. The Hicks property is located at the eastern end of Dune

Drive about 1000 feet south of the Nelson property. The

Hicks’ dwelling is fronted by a primary coastal dune and a

broad coastal beach significantly wider than that found in front

of the Nelson’s dwelling. Commencing at the Hicks property

(near the house) and continuing southward is a distinct break in

slope between the fronting coastal dune and an area of artificial

fill. Absent subsurface boring information on _ the

characteristics of the fill sediments, I would delineate the fill

area as coastal dune in accordance with the definition at 310

App. 64

CMR 10.28 (2) which States, in part, that “Coastal dune also

means sediment deposited by artificial means and serving the

Purpose of storm damage prevention and flood control.”

Further, the U.S. Geological Survey has identified both the

Nelson and Hicks properties as containing Beach Deposits,

designated as “(Qb)”; and Dune Deposits, Undifferentiated,

designated as “(Qd)” (Ex.12—USGS Chatham Quadrangle,

GQ-911, 1970). Thus, it is likely that the artificial fill

overlays a coastal dune deposit.

20. The following is a brief review of the regional coastal

geology. On January 2, 1987, during a severe northeasterly

storm, Nauset Beach was breached at a point almost directly

east of Chatham Lighthouse. The new inlet resulted in an

increase in tidal range and wave energy within Chatham Harbor

producing coastal erosion and channel shoaling problems.

21. | Numerous studies have contributed to the understanding

of the evolution of the Nauset Beach-Monomoy barrier system,

(Exhibit 13— Geise, Graham, S.., “Cyclical Behavior of the

Tidal Inlet at Nauset Beach”), (Ex. 14 — Geise, Aubrey and

Liu, “Cyclical Behavior of the Tidal Inlet at Nauset Beach,

Chatham, MA”). One particularly interesting feature of the

system’s behavior is its approximately 150-year cycle of

change. To describe the process briefly, the cycle occurs as

the Nauset barrier beach System elongates to the south and

begins to increasingly restrict the entrance channel to Pleasant

Bay (Chatham Harbor). Eventually, this process sets up the

conditions necessary for a breach of Nauset Beach to develop

into a new inlet. Prior to the 1987 breach of Nauset Beach,

the geomorphological and hydrodynamical conditions existed

such that the probability of such a breach and new inlet

development was relatively high. The last cycle in the Nauset

App. 65

Beach barrier was initiated in 1846 during a severe coastal

storm when the barrier breached and a new inlet formed.

22. The January 1987 breach of Nauset Beach and

subsequent development of a new inlet represents a new cycle

in the history of the Nauset barrier system. Presently, the new

inlet is responsible for the increase in tidal range and shoreline

erosion within Pleasant Bay (Chatham Harbor) and in the

vicinity of the Applicants’ properties. However, as littoral drift

causes the new inlet, and eventually North Beach, to migrate

southward over time, the focus of coastal erosion will also shift

south of the Applicants’ properties.

23. Current site conditions in the immediate vicinity of the

Applicants’ properties indicate that a broad, low-lying barrier

sand spit offers considerable protection to the Little Beach area,

including the Applicants’ properties. This barrier spit is

attached to the mainland at approximately the Chatham

Lighthouse and extends out to South Beach.

24. The Draft EIR (DEIR) states that “At the time this

DEIR was written there was no erosion problem in the Little

Beach area. Instead, there has been rapid accretion at the north

end of Little Beach during the past few years.” The rapid

accretion is related to the formation of the barrier spit referred

to in paragraph 23 above. I agree with the DEIR in this

regard.

25. Aubrey Consulting, Inc. (ACI) predicts that the

Applicants’ properties will be threatened in the near future. I

agree that the Applicants’ properties will eventually be

threatened due to erosion. ACI predicts that it will take

between 2 - 10 years for the spit connecting South Beach with

the mainland to breach and break up, thereby exposing the

Applicants’ properties to wave attack. In the long term,

App. 66

however, the cycle of the Nauset barrier beach system indicates

that the Applicants’ properties will eventually receive greater

protection due to southward moving littoral drift causing North

Beach to migrate southward over time. As a result of this

littoral drift, the focus of coastal erosion will begin to shift

south of the Applicants’ properties. This is one of the unique

features of this complex coastal system.

26. Coastal beach, is defined as “unconsolidated sediment

subject to wave, tidal and coastal storm action which forms the

gently sloping shore of a body of salt water and includes tidal

flats. Coastal beaches extend from the mean low water line

landward to the dune line, coastal bankline or the seaward edge

of existing man- made structures, when these structures replace

one of the above lines, whichever is Closest to the ocean.” 310

CMR 10.27 (2) “Coastal beaches dissipate wave energy by

their gentle slope, their permeability and their particulate

nature, which permits changes in beach form in response to

changes in wave conditions.” 310 CMR 10.27(1).

27. A critical characteristic of coastal beaches is their ability

to respond to changes in wave action. Wave action is the

principal driving force responsible for the transport of beach

sediments. The oblique approach of waves moves sediment

along shore in the general direction of wave travel. The net

rate of longshore beach sediment transport depends upon the

angle of wave approach, the wave energy, and the wave

steepness (the ratio of wave height to wave length). The

characteristics of the sediment being transported, as well as the

form of the beach, also affects the rate of longshore sediment

transport.

28. As deep water waves approach the shore they begin to

feel the bottom. Contact with the bottom transforms the wave

App. 67

form causing it ultimately to break upon the beach. This

breaking generates turbulence in the water which dissipates

wave energy and transports sediment lifted off the bottom.

Most of the remaining wave energy is dissipated as the

turbulent mass rushes up the beach slope, with some of the

energy lost by percolation into the beach.

29. | When there is an increase in the incoming wave energy,

as in larger storms, the beach adjusts its profile to facilitate the

dissipation of the additional energy. This is accomplished by

transporting beach sediment seaward resulting in the formation

of an offshore bar. The offshore bar causes waves to break

further seaward, widening the surf zone over which wave

energy will be dissipated. Tides compound the dynamic beach

response by constantly changing the elevation at which the

water intersects the shore. Thus, the beach is always adjusting

to changes in both wave energy and water level.

30. The motion of beach sediment in response to wave

action has been studied by marking the sediment with

fluorescent dyes and tracing its movement. When waves strike

the shore at an angle sediment grains move alongshore in the

general direction of wave travel. Thus, the coastal beach at

any point serves as a sediment source for the beach down the

shore from that point.

31. | Coastal beaches serve as a sediment source for dunes

and subtidal areas as well. Steep storm waves cause beach

sediment to move offshore, resulting in reduced beach volume,

gentler beach slope and greater energy dissipation for nearshore

areas of land under the ocean. Following storms, less steep

waves return sediment landward and the beaches can recover to

approximately pre-storm conditions. The net movement of

sediment, either onshore or offshore, at a particular location

App. 68

depends upon many factors including the characteristics of the

sediment, the beach, or the nearshore land under the ocean, the

nearshore hydraulics, and the incoming waves, all of which are

interdependent. Along the inner shoreline of Chatham,

onshore/offshore sediment transport is further complicated due

to the presence of strong tidal currents in the navigational

channel which lies close to the inner shore.

32. Coastal beaches serve the purpose of storm damage

prevention and flood control by dissipating wave energy and by

providing sediment to supply other coastal wetland resource

areas including coastal dunes, nearshore areas of land under the

ocean and other coastal beaches.

33. Coastal dune, as defined at 310 CMR 10.28 (2), means

“any natural hill, mound or ridge of sediment landward of a

coastal beach deposited by wind action or storm overwash.

Coastal dune also means sediment deposited by artificial means

and serving the purpose of storm damage prevention or flood

control.” Coastal dunes occur either as part of a barrier beach

complex or fronting a coastal bank or upland. The coastal

dunes in the vicinity of the applicant’s properties are backed by

coastal banks, artificial fill areas and/or uplands. Coastal

dunes aid in storm damage prevention and flood control by

supplying sand to coastal beaches, thereby furthering the

dissipation of wave energy. Coastal dunes protect inland

coastal areas from storm damage and flooding by storm waves

and storm elevated sea levels because such dunes are higher

than the coastal beaches which they border. In order to protect

this function, coastal dune volume must be maintained while

allowing the coastal dune shape to conform to natural wind and

water flow patterns. On retreating Shorelines, the ability of

coastal dunes bordering the coastal beach to move landward at

App. 69

the rate of shoreline retreat allows these dunes to maintain their

form and volume, which in tum promotes their function of

protecting against storm damage or flooding.

34. For the aforementioned reasons the Department has

determined that the project sites are significant to the statutory

interests of flood control and storm damage prevention.

Effects of the Proposed Work

35. | The Nelson project involves the construction of a 320

foot long, two-sided revetment along the landward edge of a

primary Coastal Dune. The proposed revetment would be

constructed acrossboth lots owned by the Nelson’s. The

revetment would consist of a 2-4 ton primary armor stone

layer, a 2-4 ton secondary armor stone layer, a 0.5 ton stone

cover layer placed over an eighteen inch thick layer of 6-8 inch

trap rock bedding which in tum would be placed over filter

cloth. The landward side of the proposed revetment would

consist of a 2-4 ton armor layer, a 0.5 ton stone cover layer

placed over an eighteen inch thick layer of 6-8 inch trap rock

bedding which in turn would be placed over filter cloth. The

top elevation of the revetment would be set at 16 feet above

mean sea level.

36. | The Hicks’ project involves the construction of a 125

foot long two-sided revetment along the landward edge of a

Coastal Dune. The Hicks’ revetment utilizes the same design

as the Nelson’s revetment.

37. Because the proposed revetments would be emplaced in

a Coastal Dune they must comply with the performance

standards for Coastal Dunes at 310 CMR 10.28 (3). These

standards require that “any alteration of, or structure on, a

coastal dune or within 100 feet of a coastal dune shall not have

an adverse effect on the coastal dune by:

App. 70

(a) affecting the ability of waves to remove sand from the

dune;

(b) disturbing the vegetative cover so as to de-stabilize the

dune:

increase the potential for storm or flood damage;

(d) interfering with the landward or lateral movement of the

dune;

(€) causing any removal of sand from the dune artificially;

(f) interfering with mapped or otherwise identified bird

nesting habitat.”

38. Because the proposed revetments would be emplaced

within the buffer zone of a Coastal Beach it must comply with

the performance standards for Coastal Beaches at 310 CMR

10.27 (3). These require that “any project on a coastal beach,

except any project permitted under 310 CMR 10.30 (3)(a),

Shall not have an adverse effect by increasing erosion,

decreasing the volume or changing the form of any such coastal

beach or an adjacent or downdrift beach.”

39. The construction of two separate revetments will not

meet the performance standards for Coastal Dunes at 310 CMR

10.28 (3) (a), (c) and (d) and Coastal Beaches at 310 CMR

10.27 (3).

40. The proposed revetments would have an adverse effect

on the adjacent and downdrift coastal beaches and dunes for the

reasons given in the following paragraphs.

41. The proposed revetments would change the beach from

a dissipative one to a reflective one leading to increased beach

Scour. Sediment transport due to wave reflection is a

commonly cited process in the interaction between beaches and

App. 71

revetments. Reflection from revetments increases the applied

energy to the sedimentary bed leading to increased scour in

front of the wall and some distance downcoast. This occurs

because both incoming waves and those waves reflected from

the revetment apply their erosive energies to the beach. In this

way revetments accelerate the transport of sediment in front

and downdrift of the revetment.

42. Revetments also have adverse impacts on adjacent

beaches and/or dunes. This phenomena is often referred to as

flanking or end scour. This is a well documented problem and

is defined as the excess erosion which the presence of the

structure causes to occur beyond the naturally occurring

erosion. This excessive erosion leads to acceleration of the loss

of beach in front of neighboring properties. It is this problem

that forces neighboring property owners to erect revetments and

leads to the proliferation of walls.

43. The proposed revetments will impound sediment behind

them thereby removing a source of sediment which would

otherwise be available to provide storm damage protection to

downdrift properties. This sediment would be significant (i.e.

would play a role) to the protection of the storm damage

prevention interest of the Act. The loss of these sediment

sources are particularlysignificant if revetments are allowed to

be constructed with gaps (non-contiguous).

Conclusions

44. Based upon the preceding, I conclude that the

construction of the proposed revetments within a Coastal Dune

and in the buffer zone to a Coastal beach would adversely

effect the statutory interests of storm damage prevention and

flood control in that:

App. 72

45.

. The proposed revetments would enhance scour by

reflecting wave energy thereby leading to the narrowing

and lowering of the coastal beach and enhancing erosion

of the abutting and downdrift coastal dunes, impacts

expressly prohibited by the performance Standards for

Coastal Beaches at 310 CMR 10.27 (3) and Coastal

Dunes at 310 CMR 10.28 (3) (a), (c) and (d).

- The proposed revetments would enhance erosion of the

downdrift beaches and dunes through reflection of wave

energy inducing end scour. This impact is prohibited

by the performance standards for Coastal Beaches at

310 CMR 10.27 (3) and Coastal Dunes at 310 CMR

10.28 (3) (a), (c) and (d).

- The proposed revetments would impound sediment

behind them and would therefore deprive sediment for

the downdrift coastal resources. This impact is

prohibited by the performance standards for Coastal

Beaches at 310 CMR 10.27 (3) and Coastal Dunes at

310 CMR 10.28 (3) (a), (c) and (d).

. The proposed revetments would not comply with terms

of a Wetland Restriction Order which was recorded at

the Registry of Deeds against the subject properties

pursuant to M.G.L., Chapter 130, Section 105. The

Proposed revetments would obstruct the movement of

sediment and would adversely affect adjacent properties

and downcoast areas. These impacts are expressly

prohibited under the terms of the Wetland Restriction

Order at 3 (G) and 4 (BE).

There are alternative means of protecting the

Applicants’ properties and the entire Little Beach area for that

matter in a more comprehensive manner that would not result

App. 73

in adverse impacts to abutting and downdrift property owners.

Personnel from the Department and the Massachusetts Office

of Coastal Zone Management (CZM) have worked extensively

with the Town of Chatham and Aubrey Consulting, Inc., to

formulate a comprehensive plan for the protection of the Little

Beach area while preserving the natural resources to the

maximum extent possible. Following is a description of the

Department’s involvement in the development of the EIR for

this area.

(a)

(b)

On February 1, 1988, November 7, 1989 and April 7,

1992, in conjunction with the applicants’ request for

Superseding Orders of Conditions, I visited the area

where the applicant’s properties are located.

On May 11, 1992, the Department issued an

Emergency Certification to Alfred Nelson permitting the

construction of a temporary sand bag structure to abate

the threat of erosion until a comprehensive long-term

solution could be developed by the Nelsons. Said sand

bag structure consists of PVC-coated polyester dura

bags that fill with sand and are about 20 feet long. The

applicant constructed a dura bag wall which provides

considerable protection for his home. Prior to this

Certification, the applicants agreed to participate with

the Town of Chatham and others in the preparation of

an Environmental In uct Report that evaluates the

impacts of various measures on the entire area affected

by the 1987 breach. An Environmentai Impact Report

is needed to analyze the potential impact that coastal

erosion controls at one location may have on adjacent

_ or downcoast areas. A system-wide approach to the

coastal erosion problems along the inner-shore of

App. 74

(c)

(d)

(e)

(f)

(g)

Chatham Harbor is necessary due to the unusual and

dynamic nature of the Nauset breach cycle and its

resulting erosion patterns.

On or about September 27, 1993, I began to review

portions of a working draft EIR (WDEIR). The

Purpose of my review was to prepare comments on the

Proposals in the WDEIR, and to expedite completing a

Final Environmental Impact Report.

On October 13, 1993, I met with Dave Aubrey, Lee

Weisher, and John Ramsey of Aubrey Consulting, Inc. .,

personnel from the Massachusetts Office of Coastal

Zone Management, personnel from the MEPA Office,

personnel from the Cape Cod Commission,

andrepresentatives from the Town of Chatham to

discuss the contents of the draft EIR for the Little

Beach area of Chatham. The Purpose of this meeting

was to facilitate the preparation of the EIR by ensuring

that all alternatives to shoreline armoring are given

proper consideration and that appropriate mitigating

measures are incorporated into the recommended plan.

On October 21, 1993, I accompanied personnel from

Aubrey Consulting, Inc., personnel from the Cape Cod

Commission staff, and Jim O’Connell from the

Massachusetts Office of Coastal Zone Management

(CZM) on a site visit. The purpose of this site visit

was to provide technical feed-back on resource area

delineations and to facilitate the preparation of the EIR.

On October 29, 1993, I submitted comments on the

WDEIR to Aubrey Consulting, Inc.

On January 28, 1994, I submitted comments on the

DEIR to Aubrey Consulting, Inc.

App. 75

46. The DEIR prepared by ACI evaluated various shoreline

protection alternatives, including both “hard” and “soft”

engineering solutions, for the Little Beach area. The most

effective alternatives were found to be _ revetments,

groins/jetties, raising the houses, and beach nourishment. The

two primary alternatives that will protect the landform while

slowing the longshore transport of sand are revetments and

groins/jetties. Properly designed and constructed revetments

should prevent the erosion of the landform and therefore will

result in sedimentdeprivation for areas downdrift of the

revetments. However, in the Little Beach area the primary

long-term source of sediment for the beaches and dunes will be

from the breakup and shoreward migration of South Beach.

Nevertheless, downdrift monitoring of the beach profile should

be done and mitigation in the form of beach nourishment

should be conducted if needed.

47. | The recommended plan put forth by ACI in the DEIR

proposes that a continuous revetment be initially constructed as

far landward as possible, and extending from the Nelson

property on the north to the Hicks property on the south.

Constructing the revetment as far landward as possible will

maximize the natural protective attributes of the beach/dune

system. Erosion will progress from north to south once the

barrier spit begins to break- up and migrate southward and

westward. A continuous revetment will prevent the end scour

and flanking problem associated with revetments. The DEIR

Stresses the importance that the proposed revetment be

constructed as a contiguous structure. Discontinuous sections

of revetment would result in potentially severe impacts on

_ adjacent properties and a gap in the revetment would

compromise the integrity of the entire structure. The

App. 76

recommended plan also proposes that a series of temporary

wood or steel sheet pile groins be constructed to slow the loss

of fronting beach. The groins would be filled with Sediment to

to keep the groins filled to €ntrapment capacity as the Shoreline

retreats they should either be Shortened and removed in sections

Or artificially filled with sand.

48. The recommended revetment must be constructed as a

contiguous structure in order to maintain its structural integrity.

The DEIR states that a &ap in the revetment would compromise

the integrity of the entire revetment. This would occur because

a discontinuous revetment would be flanked at its ends and the

49. The recommended Plan is intended to slow the expected

erosion but is not intended to provide protection from flooding.

The Little Beach area is low in elevation and floods from more

50. The ACI recommended revetment would be constructed

as a Contiguous structure and would be located almost entirely

landward of the coastal dune delineated under the Wetlands

therefore would comply with the terms of the Wetland

Restriction Order.

51. As substantiated in the EIR, the ACI recommended plan

will cause negligible long-term impacts. This is in large part

related to the unique nature of the 150 year erosion cycle in

Chatham. The cycle of the Nauset barrier beach system

indicates that the Applicants’ properties will eventually receive

protection due to southward moving littoral drift causing North

Beach to migrate southward over time. As a result of this

littoral drift, the focus of coastal erosion will begin to shift

south of the Applicant’s properties. At that time the Little

Beach area will no longer be subject to direct wave attack from

the Atlantic Ocean and therefore the presence of the revetments

will pose no environmental threat. Further, at that time the

groins should be removed since they will no longer be needed

and the beaches should be restored either through natural

processes or through an on-going condition in the Order of

Conditions that requires beach restoration (nourishment).

52. In order to implement the ACI recommended plan and to

ensure that appropriate actions and mitigation are effectuated,

I would recommend that a single entity, possibly the Town of

Chatham, file a Notice of Intent for the entire project. This

would ensure that the recommended revetment be constructed

in a continuous manner (without gaps) and that mitigation

would be coordinated throughout the lifetime of the project.

Signed under the pains and penalties of perjury.

James Mahala

Date :

App. 78

EXHIBIT 2

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

NO. 92-P-827

ALFRED NELSON, ET AL.,

Plaintiffs - Appellants,

COMMONWEALTH OF MASSACHUSETTS, ET AL..,

Defendants - Appellees

AFFIDAVIT OF MARY F. CONNOLLY

I, Mary F. Connolly, do hereby state and depose of my

personal knowledge as follows:

1. I am a paralegal in the Environmental Protection

Division of the Office of the Attorney General.

2. I accompanied Assistant Attorney General Madelyn

Morris and was present for the September 20, 1993 hearing on

plaintiffs’ appeal of the Superior Court Order dismissing the

plaintiffs’ regulatory taking claim and upholding the Wetlands

Regulations.

3. At the hearing, I heard Assistant Attorney General

Morris state that the plaintiffs’ had not applied for a variance

to build a seawall, even though the Department of

Environmental Protection eliminated the $4,000 fee for

requesting a variance.

App. 79

5. At the hearing, Assistant Attorney General Morris

estimated that DEP could review the request for a variance in

about thirty days.

6. At that point, the Court urged Assistant Attorney

General Morris to have DEP respond promptly to plaintiffs’

request for a variance after the receipt of plaintiffs’ application.

The Court further indicated that it would not look favorably

upon delay by DEP in responding to the variance request.

7. I did not hear the Court issue an order of any kind

during the hearing on September 20, 1993.

SIGNED THIS 1ST DAY OF NOVEMBER 1993 UNDER

THE PAINS AND PENALTIES OF PERJURY.

Mary F. Connolly

App. 80

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.