The West Tisbury conservation commission (ConCom) won the latest legal round in a long-running battle with a Tisbury Great Pond property owner who was denied permission to construct a stone revetment to protect his property from erosion.
In a decision dated November 29, 2012, Dukes County Superior Court Justice Cornelius J. Moriarty II upheld the conservation commission’s September 13, 2011, denial of a request by Endofthedirtroad, LLC “to construct a stone revetment in protected wetlands to defend adjacent residential property against coastal erosion.”
Wesley and Lynn Edens own the house, which is west of Long Point on the east side of Tisbury Great Pond, at the end of a point of land. Court records said the house is 88 feet from the water and, “There is no dispute that the property has lost approximately two feet per year to erosion since 1988.”
Mr. Edens, chairman of the board of Newcastle Investment and chief executive of Fortress Investment Corporation, initially proposed to build a 255-foot stone revetment. Later, during the ConCom review process, he agreed to reduce the length to 170 feet. He also agreed to provide 38 cubic yards of beach nourishment to address concerns that the absence of his eroding bank would deprive other areas of the pond of beach nourishment.
However, the main point of contention between Mr. Edens and the ConCom was the stone revetment. The ConCom wanted Mr. Edens to try so-called soft measures to protect the bank, for example coir fiber rolls made of tightly bound cylinders of coconut fiber.
Mr. Edens presented testimony to the ConCom in the public hearing phase, that fiber rolls would not be sufficient, according to court documents.
Mr. Edens appealed the denial of his state permit to Massachusetts Department of Environmental Protection (DEP) and filed suit against the town in Dukes County Superior Court over the denial of the local permit.
On January 31, 2011, DEP issued what is known as a “superseding order of conditions,” essentially overruling the earlier West Tisbury conservation commission order.
DEP said the revetment, initially proposed to be 255 feet, must be no more than 135 feet.
In its decision, DEP said, “A number of alternatives to the revetment were evaluated but were rejected due to on-site conditions that reduce the likely feasibility of softer solutions such as coir fiber rolls.”
However, the DEP order was stayed pending a Superior Court decision.
The case was decided on a motion for summary judgement in which the facts are not in dispute and the judge rules on matters of law.
In his ruling, Judge Moriarty highlighted a 2006 West Tisbury bylaw that states that “coastal engineering projects may be permitted only upon a clear showing that no alternative exists to protect from imminent danger a structure that had not been substantially improved or built prior to the effective date of the bylaw.”
The bylaw also emphasizes that the activity must have no adverse effect on bank height, bank stability, wildlife habitat, vegetation, or the use of the bank as a sediment source for adjacent beaches. The ConCom contends that the construction of a revetment would essentially affect other nearby beaches.
Judge Moriarty said, “The commission properly concluded that no structure on the property was in imminent danger from erosion. ‘Imminent’ is defined as ‘liable to happen soon.’”
Judge Moriarty said the ConCom decision was not arbitrary or capricious and that the homeowners had some 30 years to try soft engineering projects before the rate of erosion posed an imminent threat.
“While the LLC did submit some expert testimony that those ‘soft engineering’ alternatives would not succeed in arresting the rate of erosion, the Commission was free to reject that evidence and demand more convincing proof that no feasible alternative to the revetment existed,” Judge Moriarty said.
Amy E. Kwesell of the Boston law firm of Rubin and Rudman represented the town of West Tisbury.
Brian Hurley of the Boston law firm of Rackerman, Sawyer and Brewster represented the Edens. Mr. Hurley could not be reached for comment on the likelihood of an appeal.