Nantucket Land Council -Fall 2015
40 years of protecting our island
by: Lindsay Pykosz
photography by: Nicole Harnishfeger
When it comes to protecting and preserving the natural beauty of the island, the team that makes up the Nantucket Land Council will fight to make sure the environment is properly represented with respect to growth and development.
For 40 years, the Land Council has argued before many boards, engaged in legal proceedings and educated the public on issues ranging from conservation restrictions to water quality.
This is, in essence, the mission of the nonprofit organization.
“The Land Council is broken down into four major programs: Open space protection through conservation restrictions, research, education and advocacy with a litigation component,” executive director Cormac Collier said.
The Land Council was formed in 1974 in reaction to a perceived need for an environmental group focused primarily on the “messier” legal side of environmental conservation, Collier said.
Initially the Land Council focused on two efforts: Clearing title to land whose owners were often unknown, formerly known as sheep commons, and protecting Nantucket’s water resources, its aquifer and the health of the ponds.
Starting in the 17th century, much of the land on Nantucket was held “in common.” Islanders would own a parcel of land in one of the settlements dotted around the harbor, and would also hold a small part of a collective common title to land on which they could graze livestock.
Fast-forward to the 1960s and 1970s, however, and the collectively-held land began to hinder both developers’ plans and conservation efforts. Not only was the land held by many different owners when it was originally parceled out, but the titles had transferred to even more individuals.
“Those people had descendants, and those people had descendants, and those people had descendants, so there was a one-hundredth title here, a one-fiftieth title there, and this, this, this. A lot of developers at the time were seeking out these individuals, purchasing their rights, clearing the title through Land Court, and then developing it. So there was an obvious need to do some research and work and pay some attention toward that from a conservation standpoint. So that’s what the Land Council did,” Collier said.
Almost all of the protected open space in Squam was acquired through the Land Council’s work clearing sheep commons titles. Additional parcels were acquired in Smooth Hummocks, Madaket and the Middle Moors, Collier said.
But that land was not kept by the organization. It did not attempt to buy the land in a similar fashion to the Nantucket Conservation Foundation or Nantucket Islands Land Bank, but instead deeded the parcels to other conservation groups, sometimes in exchange for the legal costs incurred through clearing titles.
The Land Council was able to clear title to more than 500 acres of land that was once held as sheep commons, and possibly more, although exact figures are hard to come by, Collier said.
Collier received his bachelor’s degree in science from the University of Vermont School of Natural Resources in 1996, and did seasonal work in Vermont. He then took a position at the Cape Cod National Seashore in Wellfleet as a seasonal biological technician.
Prior to stepping into his role as executive director of the Land Council, Collier served as a resource ecologist with the organization beginning in 2001. He then succeeded Linda Holland, who served as executive director from 1987 to 2005.
Now, either he or Emily MacKinnon, the Land
Council’s resource ecologist, can be found at Conservation Commission, Board of Selectmen or other town board meetings, keeping tabs on development and speaking about applications they believe could impact the island’s fragile ecosystem and water quality.
ADVOCATING FOR WATER QUALITY
A major part of the work the Land Council has done since the 1980s involves protecting the island’s water resources, including the many fresh-water ponds and its sole-source aquifer that provides all of Nantucket’s drinking water. This ties into the second tier of its mission, research, which is primarily led by MacKinnon.
MacKinnon is well-versed in the complexities of water-quality research on the island. Since joining the Land Council in 2004, she has sat on the Coastal Management Plan workgroup, and moderated a panel at the Nantucket Coastal Conservancy’s erosion conference.
“We’re trying to participate as much as we can in general community discussion and education about these issues, because the way the issue is being addressed right now is lot by lot, based on what a property owner brings to the Conservation Commission,” MacKinnon said. “The Coastal Management Plan was focused on town-owned properties. We have to try to talk about it from a bigger picture, a bigger perspective.”
The Land Council was one of the first to map the groundwater flow of the island, consequently garnering Board of Health approval for regulations that protected the island’s drinking water. The organization was also instrumental in getting Nantucket’s groundwater supply designated as a sole-source aquifer.
As part of the advocacy portion of its mission, the Land Council makes recommendations to the town’s regulatory agencies, or, if necessary, will hire expert consultants for further investigation of environmental issues. It also teams up with other organizations like the Nantucket Pond Coalition, where the groups are studying nutrient overloading in Hummock and Miacomet ponds.
In July, the Pond Coalition was awarded a $26,850 Water Quality Management Planning Grant from the Massachusetts Department of Environmental Protection, which is funded by the U.S. Environmental Protection Agency through the federal Clean Water Act. The town provided an additional $5,000 grant.
MacKinnon will serve as the point person on the project, collecting groundwater and sediment samples from in and around the ponds. She will then submit the findings to Ken Wagner, a limnologist – an expert in inland waters – who assisted with the Mass DEP grant submission, who will help with the reports.
“The main point of the project is to really hone in on some additional water-quality work, focusing on phosphorus in Hummock and Miacomet ponds,” MacKinnon said. “Some work on phosphorus in the pond has been done, but it’s primarily focused on nitrogen and nitrogen sources...”
Both Hummock and Miacomet ponds are considered to be brackish, with a mixture of salt and fresh water. It is generally assumed, MacKinnon said, that nitrogen is the limiting nutrient in salt-water bodies. But the work done in this study will establish phosphorus sources for each pond, both of which experience algae blooms in the summer, including cyanobacteria (blue-green algae) at potentially hazardous levels.
The algae has been proven to disrupt the regular flow of the ponds and poses particular health risks to those who live within close proximity to the ponds, and for the species that live within them. The algae uses up oxygen in the ponds, preventing any plant growth during the time when the blooms take place, which is typically between mid-July and October.
Partnering with the Pond Coalition seemed like a natural fit for the Land Council, MacKinnon said. Founded in 2014, the member-supported, nonprofit organization is dedicated to restoring and protecting the 80-plus ponds across the island, and to support scientific studies to further that mission.
“I would hope our group can help with that because the whole idea of the Pond Coalition came from the abutters to these water bodies who care more about them,” said Robert Williams, founder and director of the group. “If anything else, you want your home to be on a beautiful pond rather than a swamp.”
Tying into the issue of water quality across the island is the proper use of fertilizers on properties close to water resources. There can be many different sources of nutrients that contribute to the algae blooms, with septic-system runoff and fertilizer use being the two main ones, MacKinnon said. The Massachusetts Estuaries Project, which examined nitrogenloading thresholds in 2006, suggested that a majority of the nitrogen ending up in Hummock and Miacomet ponds results from septic systems.
At the Annual Town Meeting five years ago, voters approved a home-rule petition that would allow the Board of Selectmen to introduce legislation on Beacon Hill that would establish regulations on the use of fertilizers on Nantucket known as Best Management Practices.
The recently-approved legislation currently requires anyone applying fertilizers for commercial use (i.e. landscapers) to be certified in the BMPs. By 2012, Work Group 68 – a collection of island scientists, landscapers and conservationists who created the new regulations –released the new standards.
“We’re at the forefront, working with the Board of Health and other policy-makers to really facilitate the appropriate regulations, whether they be septic-system regulations or wetland regulations, to keep an eye on protection,” Collier said.
Although these regulations are now in place, Collier thinks the town needs to step up enforcement, but there currently is no fully-funded position to conduct field inspections.
“There is no direct communication with landscapers to make sure they’re doing it properly, and they see other people doing it. And I’ve seen it first-hand,” Collier said. “Inappropriate product is being used at an inappropriate time, or too much of a product is being put down.”
The town offered a seminar last year for landscapers and homeowners to get a certification in fertilizer application that would be valid for one year.
“It’s a lot of the landscapers that just don’t know any better, and that’s where I think we sometimes need to improve our regulation and outreach. But, more often than not, they know but they just don’t care,” Collier said.
The intent of the new regulations was to amend more general fertilizer protocols to speak more directly to the specific climate and soil on Nantucket. The two major differences in the Nantucket-specific guidelines include a new restriction on the time of year fertilizer application must stop and the acceptable maximum quantity of fertilizer used.
The new time restriction will prohibit fertilizer application after Oct. 15 and before April 15. Oct. 15 marks the time when most island plants begin to go dormant, in which case, they are no longer able to take up nutrients from fertilizers.
In the future, there will be more small-scale classes to focus on specific issues rather than general certification classes, Collier said. But without enforcement, the task is a daunting one.
“Do we just keep doing this education and outreach, knowing the town isn’t going to do anything? It’s not pointless, but it’s very, very frustrating,” he said.
Collier envisions a positive domino effect, where every land-owner buys into the intent behind the new regulations. For those who don’t comply, he hopes they will be brought to a public Board of Selectmen meeting that is recorded, or that the Land Council will sponsor a fertilizer-abuser log in The Inquirer and Mirror.
“There are so many opportunities to improve the program, but it’s not going to happen without leadership from the town,” he said. “It is an issue that hasn’t been prioritized. We’ve been giving them a pass for the last two years. Since it’s almost year three, I would say it’s almost a complete mismanagement of administration. We’ve been trying to work with the town to facilitate change in a positive way, but we don’t see the town responding in a manner that needs to happen. So we are now changing our tune and calling out the town for not doing what it’s supposed to be doing.”
While the Land Bank and the Conservation Foundation buy land outright, or receive it in donations, the Land Council seeks to secure conservation restrictions on property.
A conservation restriction is a binding legal agreement that confines the use of a particular property, and holds its owner, the heirs of its owner, and any future purchaser of the property by the terms of the agreement forever. By obtaining conservation restrictions, often referred to as buying the development rights, the Land Council can ensure that large swaths of land remain pristine and undeveloped, while avoiding the high prices that open land commands when bought outright.
“The land-owner will still continue to own the property and will receive a tax deduction for a gift to charity for giving up development potential, and, going forward, the land will be assessed at a lower rate,” Collier said.
As a result of the program, more than 1,300 acres have been preserved through the use of conservation restrictions without the Land Council actually buying any of it.
Currently, the Land Council holds the entirety of Muskeget Island under a conservation restriction, essentially blocking all development. Additionally, of the roughly three-fourths of Tuckernuck Island that is conservation land, almost half is in Land Council-held conservation restrictions.
The largest tract of land held in conservation restriction by the Land Council on Nantucket proper is on Madaket Road. Half the former property of Linda Loring was used to form the Linda Loring Nature Foundation, while the other half remains in Loring’s personal possession with a conservation restriction over it that is held by the Land Council. The council raised $14 million to buy the restriction.
The second largest tract under a conservation restriction is on Bartlett Farm. The conservation restriction on the farm is less prohibitive than most, allowing for agricultural uses and a small building. Although $6 million was paid for the restriction on the 104 acres of Bartlett land, the Land Council generally receives conservation restrictions as donations.
THE FIGHT FOR CAMP RICHARD
The Land Council has also been involved in a legal battle between the island scouting organization that oversees Boy Scout camp Camp Richard, and the Cape & Islands Council of the Boys Scouts of America, over ownership of the property.
The issue dates back to 2013 when a developer was eyeing the 100-acre property, igniting a battle between the Yarmouth-based Cape Cod & Islands Council, which wanted to sell a portion of the property, and the island’s Boy Scout leaders who want to protect it.
The property was given to the Nantucket District Committee of the Boy Scouts of America by the Nantucket Civic League in a series of deed transfers in 1955, 1971 and 1972. The land was donated with one explicit condition: that if the Nantucket Boy Scouts ever ceased using the property, its ownership would revert back to the Civic League. Those deed restrictions, however, expired after 30 years, as dictated by state law, and were never renewed, leaving the property vulnerable.
The case has been pending in Barnstable Superior Court since the island scouting group and Civic League filed a motion in December in an attempt to prevent the mainland organization from selling the property. The property remains open as a camp and can not be sold or altered until the case is resolved.
To aid with mounting legal fees, the Land Council announced in April the launch of a challenge grant to fund the Nantucket Boy Scouts as they fight to keep Camp Richard as it exists today.
“It falls so in line in terms of our legal watchdog role in the community to protect open space, and the Campers Association needed legal expertise and financial assistance to help defend this false claim of ownership, which would have caused a fairly large-scale development of the property,” Collier said.
In terms of development, the Land Council is also currently undertaking a strategic-planning process to analyze where the organization fits in the affordablehousing discussion. Fully recognizing the need for affordable housing on the island, Collier and MacKinnon said their hope is that the attention takes into consideration the limited carrying capacity of Nantucket, whether that be with regard to electricity, municipal services, fire, police or quality of life.
“We need to make sure affordable housing is provided to those people already on the island who need it, as opposed to people coming because there’s affordable housing,” MacKinnon said.
One area in particular that the Land Council and the town will be focusing on in the next five to 10 years is the Old South Road corridor, as multiple projects are currently in the works.
One in particular is being spearheaded by developer Phil Pastan, who unveiled plans to build at least 105 single-family homes and 264 rental apartments in 16 buildings on about 35 acres off Old South Road under the state’s 40B affordable-housing law that allows private developers to skirt local zoning in exchange for designating at least a quarter of the homes in a given project affordable under government guidelines.
The homes would be built on 3,000and 5,000square-foot lots adjacent to Daffodil Lane, Evergreen Way and Mayflower Circle, while the two-story garden-apartment buildings would be built further back off Old South Road. As currently zoned, the property where the single-family homes would be built could be developed with 36 to 38 homes today, town planners said. By comparison, the 46-acre Naushop subdivision across the street contains approximately 200 houses.
If approved, the project would be the largest 40B ever built on the island. In order to move forward, it must first be approved by the state and then receive a comprehensive permit from the town’s Zoning Board of Appeals following input from other municipal agencies including the Planning Board, Historic District Commission, Conservation Commission and others.
“The owners have a right to develop, and something will be developed. It’s just that, one, it has to be in keeping with the nature of Nantucket’s quality of life, and two, the way it’s been going right now, it’s being done piecemeal,” Collier said. ///
Lindsay Pykosz is a Nantucket native and staff writer for The Inquirer and Mirror, Nantucket’s newspaper since 1821.