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HomeMy WebLinkAbout[J] 221021, Judge Roberts, MEMORANDUM OF DECISION ON CASE pages 13-1413 To James T. and Evelyn A. Cranmer, by Document No. 177,773, lot 199; To Ervina Sawin Marstin, by Document No. 177,774, lot 198; To Virginia A. Hixon, by Document No. 177,775, lot 197; To Maxwell J. and Dorothy Pearson, by Document No. 177,776, lot 196; To Everett S. and Lois E. Olson and Maxwell J. and Dorothy Pearson, by Document No. 177,777, lot 195; To Everett S. and Lois E. Olson, by Document No. 177,778, lot 194; To Everett S. and Lois E. Olson, by Document No. 177,779, lot 193; and To Hiram E. Smith, by Document No. 177,780, lot 192. 58. Lot 202 is shown on LCP 17933H as bounded northerly by the mean high water mark of Barnstable Harbor, easterly 67 feet +/- by lot 203, southerly 75 feet by lot 183, and westerly 61 feet +/- by lot 201. Ex. 3. The Proposed Artificial Dune 59. In November 2018, Mr. Matthew Creighton, Sr. Associate/Coastal Scientist for BSC Group, Inc., West Yarmouth, Massachusetts, submitted a Notice Of Intent Application (“NOI”) to the town of Barnstable Conservation Commission (“the Commission”) on behalf of Mr. Casassa’s predecessor to install, plant and maintain a coastal dune along the interface of what was described as “a coastal beach” and the lawn (“the Dune Project”). Ex. 10. 60. According to the project description contained in the NOI: The proposed project consists of the installation and maintenance of a Coastal Dune. Portions of the seaward edge of the lawn have eroded away in recent years due to winter storms. To protect the remaining lawn and property from further erosion, the owner is proposing the installation of the dune to cover the eroding edge of lawn and extending over a small section of beach. The proposed dune will be landward of the High Tide Line (HTL) at the property. There are no structures proposed within the aforementioned resource areas. A four-foot-wide path will be created through the middle of the dune to allow walking access from the lawn to the beach. The proposed due will be approximately 3 feet tall on either side of the pathway and 7 feet wide. The dune will be planted with American beachgrass (Ammophila breviligulata) upon completion. The proposed dune will cover 75 S.F. of seaward edge of the lawn, and the remaining 435 S.F. will be constructed on top of existing beach. Exs. 10, 11. 61. The Commission issued an order of conditions on December 4, 2018 (“Order Of Conditions”), recorded in the Registry District as Document No. 1,361,001. Ex. 12. 62. The Order Of Conditions approved the Dune Project, subject to conditions. Ex. 12. 14 63. Among other things, the Order Of Conditions “does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights.” Ex. 12 at 5. The Current Condition Of Lot 202 64. The court conducted a view of lot 202 and the surrounding area on June 16, 2022, to which no objections were lodged and which is documented in 14 photographs marked as Ex. 186. 65. At the time of the view, surveyor’s stakes delineated the four corners of lot 202 and the proposed location of the artificial dune that Mr. Casassa seeks to construct on lot 202. 66. Lot 183 and lot 202 are visually a single lot, with a split rail fence running in an unbroken line along the easterly and the westerly boundaries of the two lots. 67. As can be approximated from observations made at the view and from a plan in the record entitled “Plan Of Land 111 Sunset Lane in Barnstable Massachusetts Barnstable County Dune Installation Plan November 6, 2018 Prepared For Paul Casassa” (“Dune Installation Plan”), Ex. 9, the house on lot 183 sits roughly 15 feet from the southerly boundary of lot 202. 68. The lawn extends from lot 183 onto lot 202, covering approximately 75% of lot 202 before transitioning, in the final 15 feet or so, to approximately 10 feet of beach grass and then approximately five feet of sand before reaching the mean high water mark. 69. The rack line on the day of the view was southerly of the mean high water mark and ran along the edge of or encroached within the area dominated by beach grass at various points. 70. It appears that site conditions have changed since the creation of the Dune Installation Plan, as the mean high water line, as staked for the view, is closer to the location of the proposed dune than is shown on the Dune Installation Plan. 71. The lawn and an irrigation system were installed prior to Mr. Casassa’s parents’ acquisition of lot 202 and lot 183 in November 1976, Ex. 1 ¶ 37, and have remained in their current location ever since, leaving aside the lawn erosion described below. Ex. 1 ¶ 38. 72. From photographs in the record, it appears that part of the irrigation system, presumably previously located within the lawn area, is now located on the beach or coastal dune, presumably as a result of erosion of the lawn. Exs. 47-51. There is a flagpole located on lot 202 approximately 12 feet from its southerly boundary, installed by Mr. Casassa’s father shortly after acquiring lot 202 and lot 183, Ex. 1 ¶ 42, and having a footprint of approximately one square foot. Ex. 1 ¶ 43.