Category: dock

Appeal No. 2021-021 (relating to the properties at 33 Oyster Place and 910 Main Street) was granted by the Zoning Board of Appeals on June 23^rd. The suggested conditions of the variance were adjusted slightly and approved as well. Condition #3 initially stated, “there shall be no further expansion of the structures, construction of accessory structures, or impervious surface coverage on the lot.” The applicant requested that the language of this condition be adjusted to include the wording “without approval of the Board.”

During the hearing, the applicant noted that the plans included with this request offered the Board a “big picture” overview of the proposed project. There was no mention of waterfront alterations included in these plans or in the applicant’s presentation.

Major waterfront alterations, which included the construction of a private pier, were part of plans provided with a previous ZBA request pertaining to these properties (Appeal No. 2020-042). Because Appeal No. 2020-042 was withdrawn without prejudice, it is not clear whether additional requests will be forthcoming or whether a future request might include alterations to the waterfront. However, it is our hope that the “big picture” plans provided with Appeal No. 2021-021 reflect the complete scope of the intentions for these properties.

Lastly, it is important to note that part of this variance request involved the installation of I/A NitROE wastewater treatment systems on both properties. These systems are a promising step toward reducing nitrogen loading to the Three Bays and surrounding watershed. We are hopeful that awareness of this eco-friendly technology continues to increase and that more systems will be installed throughout Cape Cod in the near future.

Following the continuance on June 9th, the ZBA will consider the 910 Main St/33 Oyster Pl variance request (official documents available here) at the hearing this Wednesday, June 23rd, 2021.

This will be an in-person meeting, with no option to participate remotely.

Time: 7pm
Location: 2nd Floor Hearing Room, 367 Main St. Hyannis

If at all possible, we encourage you to attend Wednesday’s meeting to share your opinions on the variance request. The ZBA takes public comment into account and, unfortunately, there wasn’t an opportunity to comment during the last meeting due to the continuance.

We also encourage you to share your comments in a letter to the ZBA, particularly if you are unable to attend in-person. Letters can be sent to Anna Brigham (anna.brigham@town.barnstable.ma.us).

At the start of Wednesday’s ZBA meeting, the board granted the applicant’s request for a continuance until the next hearing on Wednesday, June 23. There was no presentation by the applicant and no public comments were accepted. Both will take place on the 23^rd.

The 7:00pm June 23^rd ZBA meeting is currently scheduled to be in-person only. Currently, there is no option for remote participation. Many residents have requested that the Town continue to provide this option. As noted below, there is a state-wide effort to extend, if not make permanent, the remote participation option.

In March 2020, Governor Baker issued an executive order that relaxed the requirements of the Open Meeting Law, requiring public bodies to provide “adequate, alternative means” for people to remotely participate in public meetings. In many cases, this meant the option to participate in meetings via Zoom.

The executive order is scheduled to expire on June 15^th, after which the Open Meeting Law will be in full effect. The Open Meeting Law does not mandate that public bodies allow for remote participation. However, it does allow public bodies to adopt this option as described in 940 CMR 29.10 (see page 11).

The ability to participate in public meetings remotely has significantly increased transparency and the engagement of residents in local government. As such, there is a push to extend the requirement that public bodies allow for remote participation and, ideally, to make it a permanent option. Yesterday, the Massachusetts Senate approved a bill that would, among other things, extend the option for remote participation until December 15, 2021. The hope is to get the bill on Governor Baker’s desk very soon.

Note: You are encouraged to look at the variance request description and plans (link).

Earlier this year, residents learned of a special permit request to build a private 155 foot pier just a few feet from Cotuit’s Town Dock, as well as to substantially alter the adjacent shoreline.

Cotuit residents have a long history of opposing the construction of private piers out of concerns for protecting public access to the shoreline and preserving the marine habitat. Consistent with this tradition, a large number of residents voiced their opposition to the proposed plan, flooding town officials with letters and speaking up during public hearings.

The proposal required the approval of the Town of Barnstable’s Zoning Board of Appeals (ZBA) and the Conservation Commission (ConComm). Two concerns raised by both groups involved the property with which the pier would be associated. The proposal called for the dock to be part of the applicant’s property at 910 Main Street, in which case the pier would be in violation of zoning regulations (Section 703-4(J)) that limit the pier’s length to 1/2 of the lot’s water frontage. Instead, the proposal based the length of the dock on the water frontage of the adjacent property at 33 Oyster Place, which is owned by a family member of the applicant, under the argument that the lot lines would be changed at a later date.

Town officials expressed their reluctance to grant the special permit request before the lot lines had been revised. Presumably to avoid a negative ruling, which would limit their ability to reapply, the applicant withdrew the request without prejudice, reserving the right to submit a new application at any time in the future.

Last month, the applicant submitted a request for a variance (link to the plans and description of the request) to make substantial changes to the properties at 910 Main Street and 33 Oyster Place. The request includes:

1. Taking the entire water frontage and much of the surrounding property away from 33 Oyster Place and instead associating it with 910 Main Street;
2. Upgrading the existing septic systems to new, nitrogen-removing waste water treatment systems;¹
3. Making substantial additions to the house at 910 Main Street, which lies in a historic district;
4. Extending a fence to prevent access to the rocks adjacent to the town dock.

A variance is required since the proposed changes violate zoning regulations regarding minimum lot areas, minimum lot frontage, and minimum front and side setbacks (Section 240-14(E)); as well as the more restrictive lot area requirements for properties in the Resource Protection Overlay District (Section 240-36(D)).

While this application does not make a request for a dock, if granted, the proposed transfer of the waterfront area to the 910 Main Street property would address concerns voiced by the ZBA and ConComm during their deliberations regarding the applicant’s previous private pier application. Will the applicant resubmit an application to build a private pier at the property if this zoning variance request is granted? We urge Cotuit residents to read the application, look at the plans and make their voices heard regarding the various items in this variance request by sending letters and participating in public hearings. The next Zoning Board of Appeals meeting open for public comment/ questions is scheduled for Wednesday June 9th at 7:00pm ET via Zoom (https://zoom.us/j/98935476587).

*this post was edited on June 12

In response to a request on February 25, 2021 from the Town of Barnstable for updated plans in anticipation of next week’s Conservation Commission meeting, representatives for the applicant announced their request that the special permit application and notice of intent application be “withdrawn without prejudice”.

We want to thank the large number of you who worked hard to make the Town aware of the importance of preserving public access to the waterfront, whether it was by sending letters, participating in various hearings, or helping to improve awareness.

By withdrawing without prejudice, the applicant reserves the right to submit a new application at any time in the future. Therefore, it’s important that we keep an eye on upcoming requests.

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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.¹

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”² 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 boat³ 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.⁴

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.⁵ 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.⁶ 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.

Best Regards,
Matthew R. Walter, Ph.D.

This opinion piece was published in The Barnstable Patriot (online 2/22/21 and expected print edition 2/26/21):

I am writing in response to an op-ed titled “My View: Peers and Piers” by Zenas Crocker published on Feb. 11, 2021. I would like to thank Mr. Crocker for explaining the reasons that Barnstable Clean Water Coalition (BCWC) supports a proposal to construct a private pier adjacent to Cotuit’s Town Dock. (The proposed project’s location is in a congested area where existing zoning laws prohibit the construction of new docks.). However, I have some lingering questions and comments after reading this article.

In the February 11th op-ed, Mr. Crocker states “many people believe that docks are harmful” to shellfish habitat. I think it’s important to note that many people believe this to be true because many independently funded, peer-reviewed studies have concluded this to be true. I agree with Mr. Crocker’s point that controversy exists around this issue, however, it is not grounded in “belief.”

Mr. Crocker notes two potential benefits of docks: their ability to provide a safe haven for shellfish and their potential use to grow oysters that filter and improve water quality. As Mr. Crocker notes, docks can “become a refuge for shellfish” because commercial and recreational shell-fishermen tend to avoid harvesting around docks. However, it is also important to consider that in order for shellfish to take refuge under a dock, the environment where the dock is located must be healthy enough for shellfish to live.

Mr. Crocker references an oyster gardening program currently utilized in Chesapeake Bay. This initiative seems like an incredibly resourceful and creative way that dock owners in Maryland and Virginia contribute to improved water quality by cultivating oysters underneath their docks. As described in the Chesapeake Bay Foundation’s website www.cbf.org, oysters are farmed for the sole purpose of filtering water, not for human consumption. The program requires a year-round commitment from dock owners. Oyster cages must be regularly cleaned and tended to- even during winter months. Just like any garden, it is not a “set it and forget it” undertaking. It would be very interesting to see if a program like this would be effective and sustainable here on Cape Cod. However, is it necessary that new docks be constructed for this purpose? Why not pilot this idea using existing docks?

The article then describes several reasons that BCWC supports the aforementioned dock proposal in Cotuit. My understanding of six of the stated reasons and my lingering questions are as follows:

Reason 1: The BCWC supports this proposal because the applicant has committed to install two NitROEâ septic systems at his property. These nitrogen-reducing septic systems effectively remove nitrogen so wastewater can be safely returned to the environment. Nitrogen loading is a daunting environmental issue to our Cape Cod watershed. NitROEâ septic systems may be an integral part to the nitrogen loading solution. However, in this specific instance, the applicant’s installation of a new septic system is not relevant to the construction of a dock. The new septic system is related to home renovations that are also occurring at the property.

Reason 2: The BCWC supports this proposal because the applicant has offered to fund a future BCWC study involving the “restoration of a sizable area of the bay’s bottom to determine if growing eel grass and native shellfish is feasible.” As Mr. Crocker notes, the “pilot project would be expensive and complicated” and the “permitting process would be arduous and costly.” What is the feasibility that this study will become a reality? What is the expected time frame?

Reason 3: The BCWC supports this proposal because the applicant “has offered to replace a significant number” of existing moorings with “new, less destructive” models. Where will these potential mooring replacements occur? Does the applicant own these moorings? Does permitting/ approval need to be granted for this exchange? Are the moorings located at the site of the proposed dock?

Reason 4: The BCWC supports this proposal because the applicant has “offered to provide an easement for a bathroom and office at the Cotuit Town Dock.” I think all would agree that a public rest room at the Cotuit Town Dock would be a welcome upgrade. Has the Town been approached with this offer? Where would the septic system for the potential restroom be located? What type of system would it be? Does the town have the funds to transform this offer into a reality? Does the Town have the funds to pay for the upkeep of this hypothetical restroom? Again, what is the expected time frame for this potential project?

Reason 5: The BCWC supports this proposal because the applicant has offered a space on the dock for the Cotuit fire boat. The Cotuit FD should have a permanent place for their boat. However, a solution to this problem must exist that is separate from the construction of this one dock. Please visit www.preservecotuit.org to read more about this issue.

Reason 6: The BCWC supports this proposal because adding a dock will increase the assessed value of the property. Mr. Crocker notes, “with the Town about to embark on a major wastewater project, every assessed dollar counts.” Is the implication of this statement that increased tax revenue resulting from this project would be ear-marked for Barnstable’s future sewer expansion project?

After reading the Feb. 11 article, it seems to me that BCWC supports the many “add-ons” that have been packaged within this proposal, not necessarily the construction of a dock in a congested area where current zoning regulations prohibit new docks. In addition, many of the “add-ons” are hypotheticals and not actualized at this point in time (i.e. a potential restroom, a future scientific study, etc.) Most of the reasons listed for BCWC’s support do not address the environmental impacts that the construction of a new dock in that specific location might have. Maybe this is what Mr. Crocker meant when he described the need to “balance the relative damage” done to the marine environment by boats? Is it BCWC’s position that in order to benefit from the (hypothetical) “add-ons” included in this proposal, the residents of Cotuit must accept a new dock that existing zoning regulations prohibit and that (many would argue) will have a long-term detrimental impact to Cotuit Harbor’s marine environment?

I whole-heartedly support BCWC’s mission to educate, monitor, mitigate and advocate for our watershed. I value this organization’s commitment to conservation, and I think Cape Cod residents are lucky to have the BCWC as an environmental ally. I also believe that a pathway to repair our fragile coastal ecosystem exists that is not conditional on the construction of new docks. Many of the generous offers included in this proposal are future hypotheticals; however, the construction of this new dock would be an immediate reality.

A year-round Cotuit resident, the author is a chemistry instructor at Massachusetts Maritime Academy and 2008 graduate of the University of Rhode Island Graduate School of Oceanography.

The Barnstable Patriot published a letter that I wrote regarding the Barnstable Clean Water Coalition’s support of the waterfront project at 33 Oyster Place. The following is a summary of the letter.

Zenas Crocker wrote a letter on behalf of the Barnstable Clean Water Coalition (BCWC, formerly Three Bays Preservation, Inc.) in support of significant modifications to the waterfront at 33 Oyster Place, which include the construction of a large dock, where BCWC will be able to moor their boat. In the letter, Mr. Crocker states that he and BCWC support the project in part due to the “Nitroe” septic system that the applicant is proposing. While they have less of an environmental impact than traditional septic systems, the “nitroe” septic system is not part of the applicant’s special permit request, as Mr. Crocker suggests. Instead, it is part of a separate permit request on behalf of the applicant to expand his home. Despite this, Mr. Crocker continues to erroneously tout the benefits of the nitrogen-reducing septic system in his support of the special permit request.

There is clear scientific consensus on the significant adverse effects that piers have on the environment, effects that are exacerbated when a pier is installed in such close proximity to existing piers, as this pier would be. The details of these cumulative effects, can be found in a letter that I submitted to the Town of Barnstable Conservation Commission.

Mr. Crocker wrote an op-ed in The Barnstable Patriot that disparages the many members of the community who have spoken up in opposition of the project. Mr. Crocker accuses them of being driven by a simple not-in-my-back-yard (NIMBY) mentality, as opposed to serious conservation concerns. I find this offensive. This matter is fundamentally different from one’s opposition to projects that have clear environmental benefits, such as a wastewater treatment plant. I and the large majority of others in opposition object to the proposal to build a dock specifically because it will only harm the environment for many years to come.

In a January meeting of the Conservation Commission, Mr. Crocker urged people to contact him to discuss the project (see video at 3:40:25). I and others have reached out to Mr. Crocker to get a better understanding of BCWC’s stance on the project. Unfortunately, we have not heard back.

I struggle to see why BCWC would be in favor of, let alone formally support, a project that involves the construction of a pier. I think it would be a shame if the BCWC took such a compromising position for the sole benefit of having a place to moor their boat. Certainly there are solutions that are far less harmful to the environment (e.g., why not moor it at one of the existing piers owned by the BCWC president or the other members of its board?). I urge BCWC to reconsider their stance on this project.

Matthew R. Walter

On February 25, 2021, the applicant withdrew the special permit request without prejudice. This means that they can submit an application for a similar project at any time. Please consider subscribing below to receive updates on any future applications as well as other issues of interest to the Cotuit community

Prohibition Against New Docks in Cotuit Bay

As you likely know, there is a prohibition of new docks in Cotuit Bay, in order to preserve public access to the beautiful shoreline and protect our local quahog and oyster beds—see Town of Barnstable’s Dock and Pier Overlay District for more information. According to the regulation, the purposes of the Dock and Pier Overlay District include:

1. Maintaining public access along the shore and to shellfish and shellfish beds, whether existing or potential, for the purposes allowed by law;
2. Maintaining safe, open waters for recreational pursuits, including swimming, power boating, rowing, rowing instruction, sailing, sailing instruction, sailboat racing, and kayaking; and
3. Protecting and retaining the natural open character and scenic vistas of the seacoast and water.

The Dock and Pier Overlay District prohibits the construction of new piers along the western and northerly shores of Cotuit Bay from Loop Beach to Handy Point. It also significantly restricts what can be done to piers that existed prior to the regulation. Specifically, it only allows for modifications to correct damage caused by a natural catastrophe (Section 240-37(E)), so long as a permit is requested within two years of the damage and work is continuously pursued till completion (Section 240-95(B)).

The applicant is requesting a special permit under the claim that the site is an existing pier, referencing an 1874 license to construct a solid-fill pier/wharf, used by the Cotuit Oyster Company. However, the site has not been used as a pier since the early 1900s and any vestiges of the former pier were destroyed in the 1942 hurricane. In 1952, then property owner, Florence Claussen—daughter of Charles F. Gifford and mother of Frederic Claussen, Barnstable’s long-serving Register of Probate—installed a concrete barrier (a revetment) and a slope of large rocks (“rip rap”) around the site. Since 1952, the site has consisted only of undergrowth and has not changed with the exception of plant growth. The only comings-and-goings are of animals that live on the land and children who climb the rocks looking for crabs. It is clear to residents who have lived in Cotuit for 50+ years, that the site is in no way a pier or wharf, nor has it been for nearly a century. It is an area of solid-fill that, according to one of the applicant’s experts has “been in equilibrium for the last 80 years or more.”

In an attempt to earn support from the Town to get a private dock, which other residents are forbidden from building, the applicant is offering several concessions to, in the words of a town commissioner, “sweeten the deal”. Among them is the removal of a portion of the existing solid-fill, the creation of a small marsh, and an offer that will allow the Cotuit Fire Department and the Barnstable Clean Water Coalition to moor their 29′ and 19′ power boats, respectfully, to the floats on the side adjacent to the Town Dock. The fire boat is currently moored at the adjacent dock at 916 Main St. and it, along with the previous fire boat have been moored there or at the 932 Main St. dock for many years. The applicant claims that this will allow the fire boat to be moored with the bow facing away from shore and falsely states that this is not possible at the two other piers. However, this is factually untrue, as evidenced by numerous pictures taken over the past decade, including as part of a 2018 post on the Cotuit Fire District website, that show both fire boats moored to these docks facing bow-out.

A large number of Cotuit residents as well as others who use the Town Dock and the nearby coast are in strong objection to the proposed plan. Many of these residents only recently learned of the plan, despite it being in the works for more than a year, and the number of people in objection is likely much higher. Their reasons for opposing the proposed plans are exactly those for which the moratorium was created:

It would make navigation around the town dock difficult

The dock would limit navigation around the Town Dock, Cotuit’s only public pier. If built, the proposed dock would allow for only 13′ of navigatable water between the power boats that would be moored to the floats and the dozens of dinghies on the south-west side of the Town Dock, and would make it difficult for boats to access that side of the Town Dock.

It would pose a significant risk to public safety

The dock would pose a significant safety risk. The dock and floats would occupy 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. The idea of putting a 29′, 500 HP fire boat that, as the applicant states needs to quickly depart the dock, within a few feet of an active body of water is a risk to public safety.

It would have significant cumulative adverse environmental impacts

The dock would have significant adverse environmental impact. As noted by the Town’s official shellfish biologist, the site is an “excellent shellfish habitat” and that the construction of another pier “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”. Decades of scientific research confirms the harmful effects of building, maintaining, and using docks. These include shading that stunts the growth of vegetation above and below water, depleting the food web and thereby diminishing the abundance and diversity of marine life. Docks alter the flow of water in the local environment, causing erosion or deposition that affect shellfish and wildlife habitats. Power boats further damage underwater vegetation and shellfish habitats, which is particularly concerning given the plan to pack four large power boats (a 34′ center console with twin 300 HP outboards, the 29′ Metal Shark Marine fire boat with twin 250 HP outboards, a 20′ power boat, and a 17′ center console with a 115 HP outboard) in an area that is already very busy. The environmental damage that docks cause is magnified when they are located in close proximity. In this case, the proposed dock would be less than 50 feet from the existing pier at 916 Main St. and only 36 feet from the Town Dock. This is more than three times closer than the 150 feet that scientists consider to be in close proximity.

Granting the permit would undermine the Dock and Pier Overlay District

Cotuit residents recognized the importance of protecting shellfish beds, the local habitat, and preserving public access. They have long fought to oppose the construction of new piers in order to preserve public access to the waterfront (see this post for an historical perspective on these efforts). This is despite a concerted effort on the part of waterfront property owners seeking their own private dock.

Granting a special permit would subvert the intentions of the Dock and Pier Overlay District and, in turn, the taxpayers of Cotuit. It would establish a precedent that would open the floodgates for the many other 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 private docks of their own.

For the past several years, the Cotuit Fire Department has had use of the docks at 916 Main St. and 932 Main St—at first for free and later for an annual fee. These are pre-existing, well-maintained, and easily accessible docks, but they are not a permanent solution. In his request for a special permit to build a dock, the applicant has offered to meet this need, by providing mooring for the fire boat in perpetuity. While this offer may be soon withdrawn—as recent feedback from the Conservation Commission and the ZBA prompted the applicant to scale down his plans—it nevertheless underscores the importance of finding longterm mooring for the fire boat. We agree a temporary lease is far from ideal, but the construction of a private dock abutting our town dock is not the solution we deserve. We urge the village to pursue other alternatives.

The Cotuit Fire Department puts their lives on the line to ensure the safety of Cotuit residents, and we support their efforts in doing the same on the water.

If you have suggestions or ideas for a possible long-term solution, please pass your thoughts along to the appropriate committees and public servants listed under contacting local officials.