On Jan. 10, the Massachusetts Department of Environmental Protection (DEP) will decide whether the Squibnocket Farm access structure currently under construction in Chilmark requires a Chapter 91 license. In the wake of an injunction defeat in Dukes County Superior Court, Edgartown attorney Daniel Larkosh filed a request for determination of applicability on behalf of 11 people who are opposed to the structure. Chilmark residents Paul Hornblower, Zachary Lee, Thomas Bena, and Chris Fischer; Edgartown residents Greg Worley and Minah Worley; Oak Bluffs resident Grace Barrie; Cambridge residents Will Sawyer and Rosalie Hornblower; and Dedham residents Thomas Burns Jr. and Astrid Burns comprise or comprised the group.
On Jan. 4, the Building Code Appeals Board, a component of the Board of Building Regulations and Standards, will hold a hearing in Milford on whether or not the Squibnocket access structure requires a building permit. In mid-December, the Chilmark Zoning Board of Appeals denied an appeal by Doug Liman and David Stork that sought a construction freeze at the structure jobsite because a building permit was never issued by the town building inspector, Lenny Jason. Representing Mr. Liman and Mr. Stork, Daniel Larkosh vowed continued action at the state level, while town counsel Ron Rappaport leveled an accusation of frivolousness at the appeal that night.
Meant to guard tidelands and waterways, Chapter 91 is the oldest environmental law of its type in America. Mr. Larkosh maintains that the piling-supported steel and concrete structure being erected on the edge of Squibnocket Pond violates Chapter 91, chiefly because it’s situated in wetlands and is causing damage to them.
“There are a number of residents who believe that the department should have required the builders of the structure to obtain a Chapter 91 license prior to the construction, because they allege that the area that the structure is in is jurisdictional tidelands,” DEP press secretary Edmund Coletta wrote in an email to The Times. “To address that issue, MassDEP issued a Request for Determination of Applicability on 11/10, and we are due to make a decision on the RDA by 1/10/18 …”
Squibnocket Farm attorney Peter Alpert told The Times that the handwriting was on the wall about two years ago.
“DEP indicated in November 2015 that the Project would not require a Chapter 91 license,” he wrote in an email, “and nothing has changed, factually or legally, that would cause the agency to change its mind on that topic. I think Judge Nickerson understood this.”
As The Times reported in October, Mr. Larkosh said that Squibnocket Farm had the opportunity to seek a determination of applicability for the structure in 2016, but opted instead for a cursory review.
“I think they took a shortcut,” he said, adding that they might not have liked the answer they got back if they had made the request. Judge Gary Nickerson rendered his Oct. 27 decision not to grant an injunction after a surprise field trip to the access structure job site. In his decision he noted that the project would yield “great public benefit,” and pointed out that positive environmental impact from Chilmark’s Squibnocket Beach project is contingent on the completion of the access structure. Chilmark’s contractor, John Keene Excavation, is poised to move the Squibnocket Beach parking lot and demolish a granite revetment running parallel to the beach. In addition, Keene Excavation will replenish beach sands, build a dune, and install coastal plants. The linchpin for all of Chilmark’s Squibnocket work is the revetment, which doubles as a causeway for Squibnocket Farm residents to access their subdivision. Chilmark needs the stone structure eliminated in order to realize its project, but that cannot happen until the access structure is finished; otherwise Squibnocket Farm residents will have no way in or out. Should MassDEP find that the access structure must attain a Chapter 91 license, it’s unclear what effect such a determination would have on Squibnocket Farm’s access project. However, based on Squibnocket Farm’s access dynamic, any order that delays the access structure will likely delay Chilmark’s beach project. Should MassDEP order Squibnocket Farm’s contractor, C. White Marine, to cease and desist construction, cost escalations are likely. In October, C. White Marine attorney Francis Shannon III told Judge Nickerson at a hearing that the contract his client has with Squibnocket Farm stipulates that a work stoppage will incur a $4,300.00-per-day fee, plus a six-figure bill to barge a crane offsite and back again. Chilmark may also lose a time-sensitive state grant if the project is hung up by such a delay.
“The applicants are really proceeding at their own peril,” Mr. Larkosh said in October after Judge Nickerson’s decision. At the time Mr. Larkosh told The Times that depending on what DEP determines, such peril could include the cost of completely disassembling the access structure, and mending the environment at the job site.
Opponents have long argued that the access structure, which is frequently referred to as a bridge or causeway, requires a building permit, but the Chilmark building inspector, backed by the town’s zoning board of appeals, has disagreed at every turn.
Mr. Larkosh lodged a complaint with the Board of Building Regulations and Standards this past autumn on behalf of his clients, arguing that a structure meant to provide elevated vehicular access for residents of the Squibnocket Farm development requires a building permit and does not have one. What will transpire at the hearing is unclear, as repeated inquiries by The Times about board adjudicatory procedures and related matters have not been answered. It is unclear whether a ruling will happen at the hearing, and it is also unclear what the ramifications are for a ruling that necessitates a building permit. A spokesperson for the Division of Professional Licensure, the parent state organization for the board, could only confirm that the hearing was scheduled.
Peter Alpert, lawyer for Squibnocket Farm, said his team will likely attend the hearing. “We are at the frivolous end of a feckless campaign,” he said.
Daniel Larkosh told The Times that Boston attorneys who have been working with him on the matter are slated be at the table during the hearing, whether or not he is there too. As to the merits of his clients’ argument, he said, “It’s a structure under the building code, and structures need permits. It doesn’t fall within any other exemptions within the building code. In our mind it’s pretty straightforward.”
“There are two cranes out there working every day,” Doug Liman wrote in an email to The Times. “There’s no building permit. And without a building permit, the town has no way of knowing what is being built, or if what is being built matches what they said they were gonna build.”