Indian Trail Erosion Case Still A Cliffhanger

Hillside erosion is threatening homes on Indian Trail in Sagamore Beach.
MICHAEL J. RAUSCH/ENTERPRISE - Hillside erosion is threatening homes on Indian Trail in Sagamore Beach.

Homeowners on Indian Trail in Sagamore Beach are still waiting to hear from the town if they will be able to move forward with a project that would help stabilize their beach and protect their cliff-top homes from damaged caused by ongoing erosion.

The matter was on the agenda for the August 7 Bourne Conservation Commission meeting. Attorney J. Ford O’Connor, who represents the homeowners, went before the commission requesting authorization to file a Notice of Intent for an erosion mitigation project. However, commission members did not make a decision on whether to authorize the filing. Instead, they chose to seek clarification from town counsel Robert S. Troy on language in the original building permits for four of the affected homes, Bourne conservation agent Brendan C. Mullaney said.

“The permits seem to state you cannot construct a coastal engineering project like they are proposing,” Mr. Mullaney said.

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The six homes overlook Sagamore Beach and the cliff they rest upon is eroding away. 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.

Mr. Troy said in a telephone interview this week that the order of conditions placed on the construction permits for four out of the six homes did not allow revetments. He said Mr. O’Connor has taken the position that the language applies only to the property on which the homes sit, and not the area where the revetment would be built, which is town-owned land.

Mr. Troy said he wrote Mr. Mullaney and requested any documents attesting that a conservation restriction had been attached to the land on which the revetment is proposed. In an e-mail response, Mr. Mullaney said there were no such files.

“We cannot find any evidence that there was ever a Conservation Restriction executed here,” Mr. Mullaney wrote.

Mr. Troy said that he has not researched the matter completely or written his opinion yet.

The request for an additional legal opinion from Mr. Troy has added another layer to an already complicated legal labyrinth for the Indian Trail homeowners. In late June, it was determined that because residents at Town Meeting voted to have the land turned over from the Bourne Conservation Trust to the conservation commission, the property is, in essence, owned by both the selectmen and the commission. The dual ownership requires both bodies to approve filing a Notice of Intent with the conservation commission. Only if both entities approve filing the notice can the project go before commission members, who can then decide whether or not to approve the work.

Without authorization from the selectmen, Mr. O’Connor could not file for a corresponding notice from the conservation commission and subsequently make a presentation to its members. Selectmen gave their approval during their June 24 meeting.

At that same June meeting, Mr. Troy explained it was originally believed that the homeowners wanted an easement for access over town property to have work done on private property. It has since become apparent that the work and the permanent structure would be on town-owned property. For that permission, several steps would need to be followed, he said.

If the commission approves the work to be done, because the land is town-owned, voters would have to approve, by two-thirds, an article placed on the Town Meeting warrant requesting an easement over town-owned land.

If the commission and Bourne Town Meeting voters approve the project, approval must then be secured from the state legislature, under Article 97 of the Declaration of Rights, which protects conservation land. Mr. Troy has said that, generally, if the town approves a project, the state will too.

Mr. Troy was scheduled to attend last week’s meeting, but was unable to due to a last minute conflict. Mr. Mullaney said that the matter was continued to the commission’s next meeting on August 21, pending confirmation that Mr. Troy can attend.

Mr. Troy said that he anticipates attending that meeting and presenting his findings to the commission.

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