Half a dozen property owners on Indian Trail in Sagamore Beach face a lengthy legal process to win approval for construction on an erosion control project that they hope will save their ocean-front, clifftop homes. The process could take several months and stretch from Bourne Town Hall to the State House on Beacon Hill.
Their first step was to obtain authorization from selectmen to file a notice of intent with the Bourne Conservation Commission. Authorization from the selectmen was needed because the land involved with the project is owned by the town. Step one was accomplished Tuesday night, June 24.
“We are asking for your permission to file, at our expense, a notice of intent with the conservation commission and make a presentation to them in the hopes that they would grant us the relief we need in order to protect these houses,” attorney J. Ford O’Connor said.
Mr. O’Connor is representing the homeowners. He explained that without authorization from selectmen he cannot file a notice of intent and appear before the conservation commission, and that could prove catastrophic.
“If we don’t file, sooner or later, probably sooner, one of these houses will wind up on the beach.”
The six homes overlook Sagamore Beach, and the cliff they rest upon is eroding. The severe storms over the last two winter seasons have resulted in significant loss of vegetation and land. At this point, the properties are only six to 16 feet from the edge.
The homeowners are seeking town approval to build a 550-foot long wall that would stretch 22 feet up the hillside. The entire wall would be on land that residents approved handing over to the care and custody of the conservation commission during Town Meeting in 2005.
“We’re just asking you for that opportunity to appear in front of them and try and convince them,” Mr. Ford said.
At their April 8 meeting, selectmen granted the homeowners a temporary license to do the work, but the temporary license was okayed pending approval of the project by the conservation commission. However, at the commission’s April 15 meeting, members did not give their approval. At that time, town conservation agent Brendan C. Mullaney said that there were questions as to whether the project will be effective, and if it would negatively impact other homes as well as the beach.
Tuesday night, town counsel Robert S. Troy explained that early on in the process, it was believed that the homeowners wanted an easement for access over town property to have work done on private property. He said it has since become apparent that the work and the permanent structure built would be on town-owned property. For that permission, several steps would need to be followed, Mr. Troy said.
He said that ordinarily the selectmen have complete authority over town-owned land, but because residents approved at Town Meeting to have the land in question turned over from the Bourne Conservation Trust to the conservation commission, there is “a confluence of ownership.” The land is, in essence, owned by both the selectmen and the conservation commission.
That joint ownership requires both bodies to approve filing a notice of intent with the conservation commission, he said. If the commission approves filing the notice of intent, the project goes before it, at which time its members then decide whether to approve the work.
If the commission approves the work to be done, because the land is town-owned, an article would have to be placed on the Town Meeting warrant requesting an easement over town-owned land. A two-thirds vote would be required for approval of the article.
If the commission and Town Meeting voters approve the project, it would then have to be permitted by the state Legislature. Article 97 of the Declaration of Rights protects conservation land and prohibits anything from being done on land so designated, Mr. Troy said.
The good news, he said, is that, generally, if the town is on board with the project, the state will approve it.
“If it seems you have green lights, then probably the general court will approve it,” he said.
Attorney Barbara D. Sullivan represents the property owners at 2 Indian Trail, the most recent homeowners to join the movement to have the work done. Ms. Sullivan reminded the selectmen that the town granted an easement that helped out homeowners on Sagamore Road and Phillips Road when they ran into erosion problems in 2013. She said that denying the people on Indian Trail similar help would create “a perception of serious unfairness.”
Ms. Sullivan also reminded the board that the Indian Trail homeowners will be paying all costs related to the project.
“Every single penny of this project is paid for individually by the homeowners to protect town property, so it’s in your best interest,” she said.
Selectmen voted unanimously in favor of authorizing Mr. O’Connor to file a notice of intent with the conservation commission. It is now up to the commission to decide whether to approve the filing, which would allow Mr. Ford to make a presentation to them.
Mr. Mullaney said the next conservation commission meeting is scheduled for July 10, but the Indian Trail issue likely will not be taken up by the commission until its July 24 meeting, at the earliest.