Commission presses for perpetual protection at restored Act 2 LLC site; issue continued to July 24

Nantucket Conservation Commission members debated at length on June 26 whether a private deed restriction or a formal conservation restriction would better secure permanent protections for the Act 2 LLC restoration area at 14 Clover Lane (74 Madaket Road). Commissioners ultimately accepted the applicant’s offer to extend the decision window and continued the matter to July 24 to allow town counsel and the applicant to refine enforceable language.

The applicant’s representative and counsel asked for additional time; attorney Glenn Wood (representing the property owner) gave the commission express verbal consent to extend the statutory decision period and agreed to provide a confirming email and formal letter. As Chair Seth Engelborg summarized, the extension gives town counsel and staff the space to draft conditions that will achieve a “perpetual” protection mechanism while minimizing the risk of challenge.

Commission discussion focused on enforceability and duration. Commissioner Linda Williams and others explained that a private deed restriction that is not enforceable by a governmental holder can expire after 30 years under Massachusetts practice, whereas a conservation restriction (also called a conservation easement in other jurisdictions) is structured to be perpetual and is monitored yearly. “Private deed restriction that is not enforceable by a government body expires, period, after 30 years,” Williams said. RJ Turcotte urged a conservation restriction where feasible: “There’s nothing better. It requires someone — it would be us — to go and check every year.”

Town counsel and staff said the commission has statutory authority under its bylaw to require a conservation restriction or other covenant running with the land as security for permit compliance. Staff detailed proposed permit conditions (numbered in the draft order) that include monitoring reports for 2025–2027, temporary irrigation removed before final compliance, disposal of invasive species at the landfill, and an annual monitoring schedule with specific triggers for supplemental plantings if native regrowth is below thresholds.

The commission and applicant agreed to continue the matter to July 24 so counsel can finalize recommended language about the holder and durability of a restriction. Attorney Wood committed to deliver a confirming email and letter to staff the next morning.

The continuance preserves the commission’s ability to require a conservation restriction or another legally enforceable instrument that the commission and town counsel determine best protects the restored resource in perpetuity. Staff said that if commissioners prefer, the final condition will require an amended order before any regulated work proceeds and will list the specific instrument the commission accepts (conservation restriction, recorded certificate of compliance with perpetual conditions, or equivalent recorded covenant).