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Following is the text from the letter that I sent to the Town of Barnstable’s Conservation Commission prior to their February 2, 2021 meeting.
February 2, 2021
Dear Conservation Commission Members,
First off, I would like to thank you for your dedication and effort in serving on this committee.
I am writing in opposition to the Special Permit Request for the proposed waterfront project at 33 Oyster Place in Cotuit. Cotuit has and continues to be an incredibly special place to me and my extended family. My grandparents, Alfred and Mary Fiore, purchased the abutting property at 932 Main Street in 1973, and my family has owned the house for the 47+ years since. I resided there each of the past 42 summers, since I was only a few months old, and was a full-time resident while studying at the Woods Hole Oceanographic Institution. Throughout this time, I have enjoyed swimming, sailing, shellfishing, fishing, and crabbing (often at the site in question), and I now do the same with my three and five year-old girls. Cotuit has the same beauty and charm that it had 42 years ago, in large part due to enforced regulations. It is because of my experiences and this charm that Cotuit will forever hold a special place in my heart. My opposition to the proposed project is based both on my affinity for Cotuit and my education and research experience.
The removal of the existing rip rap, concrete barrier, and fill area and the stated advantages thereof are independent of the construction of a dock.
The proposed plan involves significant modifications to a coastal area that, according to a recent January 29, 2021 letter by Trey Ruthven of Applied Coastal Research and Engineering, Inc. has “been in equilibrium for the last 80 years or more.” These modifications include the removal of the existing land and the surrounding revetment and rip rap, the construction of an office building and a deck, and the construction of a dock. I have read through all of the documents submitted on behalf of the applicant as well as watched and/or participated in the various Town of Barnstable meetings relevant to the proposal. I am unable to find any discussion of why these proposed modifications are inherently coupled, i.e., why the removal of existing land and the surrounding revetment and rip rap requires the construction of a dock or building a deck and office building. Frankly, I suspect that these modifications, together with the proposal to allow the Cotuit Fire Department and Barnstable Clean Water Coalition to moor their boats are a means of currying favor so that the applicant can have a private dock. Indeed, in a recent January 29, 2021 letter by Seth Wilkinson of Wilkinson Ecological, Mr. Wilkinson appears to make a thinly veiled threat that if the Conservation Commission does not support the proposed modifications, the applicant “can and will pursue a more conventional renovation of the existing solid fill wharf” (page 7).
The construction of a dock will have long-term negative environmental impacts
If built, the proposed dock would have significant, long-term, adverse impacts on the environment. As demonstrated below, this is supported by decades of scientific research and empirical evidence that confirms the harmful effects of building, using, and maintaining docks. Among them, docks cause detrimental shading that stunts the growth of vegetation above and below the water [?], which causes a direct loss of detrital inputs to estuarine food webs that diminish benthic invertebrate diversity and abundance [?]. Docks alter the flow of water in the local environment, and in turn, induce scour and erosion, or increased deposition, which affect shellfish and wildlife habitats [?]. Further, docks and floats disturb the benthic environment [?] (e.g., as a result of the “pumping” effect of floats and the use of motor boats). Scientific consensus on the adverse impacts that docks have is consistent with the Conservation Commission regulations recognizing that “the construction, use, and maintenance of docks, piers and walkways are likely to have a significant or cumulative adverse effect on the wetland resource values of storm damage prevention, fin and shellfisheries, wildlife habitat, erosion and sediment control, and recreation” (Chapter 703-1(C)).
In a letter written on December 5, 2020 by Elizabeth A. Lewis, a shellfish biologist with the Town of Barnstable Natural Resources Program, the author states that the site in question is an “excellent shellfish habitat” and the construction of another pier in such close proximity to existing piers “can severely degrade and alter shellfish habitat by changing the movement of water in the area and creating these deposition zones where no shellfish can live” (emphasis mine). This is consistent with scientific consensus on the long-term detrimental impact that docks have on shellfish, plant growth, and marine life more generally. For example, a peer-reviewed study by the Orleans Conservation Commission [?] notes the presence of “dead zones” within several feet of dock pilings where shellfish are unable to live. As noted in the paper, “although it does not seem like much of an impact, multiplied by the number of piles in each dock and multiplied again by the number of docks in a similar type of area, the impact can be considerable.” The author finds that the detrimental effects that a dock has on shellfish are exacerbated when positioned in close proximity to existing docks, which the author defines as a separation of 150 feet (50m). If constructed, the proposed pier would be three times closer to existing piers. Specifically, it will be less than 50 feet (15.24m) from the existing pier at 916 Main St. and only 36 feet (11m) from the pilings of the Cotuit Town Dock.
These findings are consistent with Chapter 703-1(I) of the Conservation Commission regulations, which states that “docks and piers when placed in land containing shellfish or shellfish habitat have an adverse impact on the resource area value of recreation. The placement, length and size of docks and appurtenant floats can interfere with the harvesting of quahogs, soft-shell clams, and scallops. Docks and piers can have an unacceptable significant or cumulative effect on habitat and recreation as defined in Chapter 327-14 of Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable.” (emphasis mine)
The proposed dock will be used to moor four motor boats: a 32′ Pursuit Sport (outboard motors, rated up to 600HP total), a 29′ Metal Shark Marine (twin 225HP outboards), a 20′ aluminum-hulled boat and a 17′ Boston Whaler Montauk (outboard motor, rated up to 115HP). Boat propellers directly damage underwater vegetation [?], as can the pressure wave formed underneath a boat’s hull (unlike surface wakes, which spread out, pressure waves have localized impacts [?]). These boats will be moored in close proximity to the Cotuit Town Dock, which as Cotuit’s only public pier, is already very active. This is particularly concerning given current research that shows that the detrimental effects of motor boat use worsens as their density increases [?]. Included with this letter are renderings that show the location of the proposed dock, float, and four boats in the context of typical occupancy of the Town Dock during summer months, along with an August 2020 image that depicts typical activity on the South-West side of the Town Dock.
As noted in Chapter 703-1(D) of the Conservation Commission regulations, “turbulence, such as caused by jet-drive boats, and propeller dredging generated by boat use associated with piers significantly increase turbidity levels. High turbidity levels attenuate light. Light is necessary for photosynthetic process responsible for the primary productivity and oxygen regeneration of the water. The suspended sediments settle on shellfish beds, smothering existing shellfish and altering the quality of the benthic environment essential for spat (mollusk larvae) settlement. Resuspension of bottom sediments causes redistribution of sediments, alteration in sediment grain size distribution and causes changes in bottom topography relief, elevation and grade, including creation of depressions in the bottom. Settlement of sediments into depressions can create deep pockets of highly fluid-like sediment which may not be able to physically support shellfish or which can become anoxic and therefore not support shellfish. Disturbance of sediments during the period of shellfish larval settlement hinders or prevents the effective settlement of shellfish larvae. Boat traffic generated from piers will add to this disruption and may cause erosion of banks and marshes.” (emphasis mine). The regulations go on to say (Chapter 703-1(G)) that “propeller turbulence near or in areas of submerged aquatic vegetation, such as eel grass, or salt marsh damages vegetation, thereby increasing the rate at which organic detritus is produced. If this organic detritus does not completely decompose aerobically, then anoxic bottom conditions will ensue, which adversely impact shellfish and fisheries.” (emphasis mine).
The loss of shellfish in the area will have long-term impacts that extend well beyond recreational shellfishing. In conjunction with a significant population increase, land-derived nitrogen loading to Cape Cod has more than doubled over the past four decades according to studies conducted by the Marine Biological] Laboratory and Boston University [?], with the primary sources being septic systems and lawn fertilizer. The increased loading of anthropogenic nitrogen to coastal waters causes eutrophication (i.e., the increase in the supply rate of organic matter) [?],
which will negatively and significantly alter our coastal ecosystem [?], resulting in habitat destruction and fish kills. This is consistent with Chapter 703-1(E) of the Conservation Commission regulations, which states that “Construction of piers and subsequent boat activity causes resuspension of nutrient-laden sediment particles which may cause a release of sediment-bound nutrients to the water column resulting in a ‘bloom’ of vegetation. Release of nutrients to the water column leads to eutrophication and anoxic bottom conditions. Anoxic sediments and anoxic bottom conditions create adverse impacts on benthic resources, including shellfish and fisheries.”
A recent study by Woods Hole Sea Grant, Cape Cod Cooperative Extension, and the Mashpee Department of Natural Resources shows that shellfish offer a cheaper alternative to wastewater treatment and sewer systems for the removal of Nitrogen, while also providing more immediate mitigation (each oyster and quahog filter 50 gallons and 24 gallons per day, respectively) [?]. The Town of Barnstable has invested significant time and resources into the development of a wastewater management plan to curb Nitrogen loading and other anthropogenic pollution. The Town’s Comprehensive Wastewater Management Plan includes shellfish aquaculture in the Three Bays Watershed as an important component to reducing nitrogen levels. The construction of the proposed dock can severely degrade the local shellfish habitat, which will mean the loss of a natural and effective way of removing Nitrogen from the water.
Applicant does not provide evidence to credibly counter the long-term environmental impacts
As members is likely aware, Chapter 703-5(A) states that “the Commission shall presume that the proposed activity will have a significant or cumulative adverse effect upon the resource values specified in Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable.” The regulations go on to state that (Chapter 237-11) “the applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application will not have an unacceptable significant and cumulative effect upon the wetland values protected by this chapter. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.”
I have read through all of the documents submitted on behalf of the applicant as well as watched and/or participated in the various Town of Barnstable meetings relevant to the proposal. I am not aware of any credible evidence provided by the applicant showing that the construction of the proposed dock will not have significant adverse environmental impacts, including those discussed above} In a recent January 29, 2021 letter submitted by Trey Ruthven of Applied Coastal Research and Engineering, Inc., Mr. Ruthven makes the seemingly circular argument that the revetment sill at the landward end of the pier will offer stability to mitigate the accretion of sediment that would result from the applicant’s proposal to remove the existing solid fill from an area that has “been in equilibrium for the last 80 years or more.” The only other discussion of relevance is a clarification by Mr. Ruthven that the proposed modifications “would not have an impact on the overall circulation or water quality in Cotuit Bay,” but it does not comment on, let alone provide evidence to counter the reduction in flow at the proposed site and the surrounding areas, which is consistent with scientific consensus.
The proposed plan is in clear violation of established ordinances
The applicant’s proposal falls within the Dock and Pier Overlay District (Chapter 240-37), which was established with the stated goal to “protect the general public interest in, and access to, the public tidelands of the Commonwealth.” Chapter 240-37(D) clearly states that “Within the Dock and Pier Overlay District, the construction and/or installation of docks and piers is prohibited” (emphasis mine). The proposed plan is in clear violation of this ordinance. I understand that the Dock and Pier Overlay District is a zoning regulation and not formally part of the Conservation Commission’s purview. However, work and research that went into establishing the prohibition on docks is directly relevant to the Conservation Commission—Barnstable residents recognized the importance of protecting shellfish beds and local habitat, and they knew there was a long list of waterfront residents hoping to build private docks. The ban was established, despite pushback from wealthy property owners, because the residents, shellfishermen, and conservationists recognized the adverse cumulative effects of new docks. Thus, while Chapter 240-37 is not a Conservation Commission regulation, the work and research behind it is a conservation issue.
The District (Chapter 240-37(E)) allows for the “reestablishment of a lawful preexisting nonconforming dock or pier which has been destroyed or damaged by fire, acts of nature, or other catastrophe” (emphasis mine) pursuant to Chapter 240-95 (“Reestablishment of damaged or destroyed nonconforming use, building or structure”). Chapter 240-95(B) states that “The preexisting nonconforming use and/or structure or building shall be discontinued unless a building permit has been applied for within two years from the date of damage or destruction, and construction is continuously pursued to completion” (emphasis mine). It is because of these requirements that my family has regularly maintained our dock (which predates the purchase of the house by my grandparents in 1973). These conditions do not hold here. There has not been a pier or wharf at this location in more than 100 years. It was abandoned as such before Florence Claussen installed rip rap in or around 1952. Note that the Barnstable Department of Public Works document from July 23, 1952, which authorizes the construction of a “stone mound”, makes no mention of an existing pier or wharf and instead refers to the site as “an area of existing solid fill”. In no stretch of the imagination does the site constitute an existing pier or wharf. This is consistent with the fact that, unlike properties with actual piers or wharfs, the Town of Barnstable Assessing Division does not include a dock in the appraised value of 33 Oyster Place or 910 Main St. Consequently, no tax has been paid for the existence of a pier at either address. In contrast, the assessments for both 916 Main St. and 932 Main St. include docks appraised at $102,000 (listed under “Outbuildings and Extra Features”). Included with this letter are copies of the Assessing Division’s property values for these four properties. It is also consistent with the various real estate listings for 33 Oyster Place, which explicitly state that there is no dock on the property. Included with this letter is a copy of the Cotton Real Estate listing of the property, presumably associated with the sale to Paul E. Cain in 1996, which explicitly states “NoDock [sic]”. Similarly, a 2015 article in the Cape Cod Times [?] that describes the property at 33 Oyster Place makes no mention to the existence of a dock associated with the property. Interestingly, it does mention docks at neighboring properties.
The site in question consists only of overgrowth, rip rap, and revetment. In the 42 years that I have summered or been a year-round resident in Cotuit, it has remained unchanged beyond the natural growth of plant life. In the letter that I submitted to the Conservation Commission on January 18, 2021, I included pictures taken over several decades that demonstrate this fact. The only activity that I have witnessed at this site is the comings and goings of wildlife living in the undergrowth, and children (including myself) looking for crabs among the rip rap and walking to/from the Town Dock. Even assuming that there was a building or structure at this location prior to 1978, Chapter 240-97 (“Abandonment; nonuse”) states that “Any lawful preexisting nonconforming use or building or structure or use of land which has been abandoned or not used for three years shall not thereafter be reestablished” (emphasis mine). The site in question was abandoned prior to 1978 (i.e., 42 years ago), and likely since the rip rap was installed in 1952. Thus, the location under consideration is a tract of land that is subject to the Dock and Pier Overlay District, and thus the application should be denied.
An exemption would set a precedent undermining the Dock and Pier Overlay District and have significant cumulative impacts
The proposed dock clearly lies in the protected Dock and Pier Overlay District established by the Town of Barnstable. Granting an exemption would subvert the intentions of the Dock and Pier Overlay District. It would establish a precedent that would open the floodgates for the other 28 locations where a pier could be constructed if not for the Dock and Pier Overlay District. Awarding the requested special permit would create precedent for the many other waterfront property owners with the vestiges of a century-old structure to claim rights to build docks of their own. This would then have significant cumulative environmental impacts [?] as noted above.
The proposed plan is not in the public interest
At the January 19, 2021 meeting of the Conservation Commission, a comment was made that if stated benefits of the proposed plan that are not environmental in nature (e.g., the proposed mooring of the Cotuit Fire Boat) are outside the purview of the Conservation Commission, so should detriments to the public that are also not environmental in nature. However, Conservation Commission regulations specifically include such considerations as relevant to the Commission’s decision. In particular, Chapter 703-1(J) states that “Piers, depending on their length, can have an adverse impact on recreation by interfering with recreational boating activities. Not properly designed, piers can interfere with intertidal lateral access for recreational fishing and fowling. Any proposal that affects navigation is likely to have a significant or cumulative adverse effect on recreation. Excessive lighting on piers may cause temporary ‘night blindness’ in boaters and may disrupt feeding habits of nocturnal aquatic animals.” Similarly, the regulations go on to say that (Chapter 703-4(O)) “Private piers shall be constructed so as to not interfere with any longstanding public recreational use of the waterway, e.g., an area used by sailboats tacking through a narrow waterway, an area used by boaters or others because of unique wind or current conditions, a structure that would interfere with public access to or from a way to water or public.”
Residents of Cotuit have long fought to oppose the construction of new piers in order to preserve public access to the waterfront. This is despite a concerted effort on the part of property owners who seek to enhance the value of their property—a 2007 Wall Street Journal article [?] states that the addition of a dock can increase a property’s worth by 33%—which as a property developer, one would expect the applicant to be well aware of. If built, the proposed dock would seem to be the private taking of public land. It would deter the public from fishing, shellfishing, and navigating waters close to shore. This is particularly troublesome as the site is very close (13 feet) to the busy Cotuit Town Dock, Cotuit’s only public pier. As noted above, the included renderings and photo depict typical usage of the Town Dock during summer months. The proposed dock would extend into a body of water that is highly trafficked by people in motor boats, sail boats, kayaks, and dinghies, as well as swimmers and people shellfishing. At the January 19, 2021 Conservation Commission meeting, representatives for the applicant emphasized the advantages to boaters of removing the existing land, rip rap, and revetment, however the large majority of boaters using the Town Dock, including the dozens of dinghies moored to the floats adjacent to the proposed dock navigate between the Town Dock and Cotuit Bay, and not to the shore. The close proximity of the proposed dock would result in a narrow passage that would make navigation difficult.
Issues regarding the fire boat and the proposed seasonal office building are irrelevant to the Conservation Commission’s decision
As discussed in the January 19, 2021 meeting of the Conservation Commission, the stated benefits of allowing the Cotuit Fire Department to moor their boat to the proposed dock are, respectfully, outside the purview of the Conservation Commission. However, if the Commission chooses to take this into consideration, I ask that members consider that the stated benefits are invalid, as I outlined in my January 18, 2021 letter to the Conservation Commission, which I include below (please see the January 18, 2021 letter for the referenced pictures):
As part of the request, the applicant makes erroneous, unsubstantiated claims regarding the benefits to the proposed mooring of the Cotuit Fire Department’s 29′ Metal Shark Marine fire boat. In particular, the applicant falsely states that the proposed project “significantly and importantly improves the Cotuit Fire District’s access to the water”. Over the past several years, the Fire Department has kept their boat at the dock at 916 Main St. The Lazor family has officially stated that they are more than happy to continue to allow the Fire Department to moor the fire boat at their dock. Additionally, the fire department has also moored their boat at my grandparent’s dock at 932 Main St. My grandparent’s driveway extends directly to the dock, allowing the Fire Department to quickly access their boat were it moored there or at the 916 Main St. dock. Critically both docks are well maintained and, counter to statements by the applicant and Chief Rhude, both docks allow the fire boat to be moored with the bow facing away from shore. Included with this letter are images taken over several years that show both the 21′ and 29′ fire boats moored with their bows facing outward, including one from the Cotuit Fire District’s official website. The applicant further states that mooring the fire boat on the proposed dock would improve public safety. However, mooring the fire boat in such close proximity to such a busy town dock that is highly trafficked by motor boats, sail boats, kayaks, and dinghies, as well as swimmers would be an accident in the making.
In making a decision on this application for a special permit, I respectfully ask that you keep in mind the long-term implications of the decision. A decision to grant the permit will have long-term negative impacts on the entire town, including neighbors who have lived in and been members of the Cotuit community for nearly 50 years, in exchange for the benefit of one resident who has resided at this address for just over one year.
Matthew R. Walter, Ph.D.