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Noyes Appeals Gerry Island Orders

Appeal to Superior Court seeks the right to drive on a causeway leading out to the island 'for all purposes.'

Peter Noyes has filed an appeal against the town in Superior Court challenging the Conservation Commission's pair of enforcement orders issued against him for driving a large truck across the causeway from Gas House Beach onto Gerry Island in late May.

Noyes, whose application to the commission for a permit to rebuild old seawalls on the island was denied, asked the court “to order that the owners of Gerry's Island (Little Harbor Island) and their assignees have the right to use the deeded Way for the purpose of passing and repassing to and from said Island for all purposes.”

In addition to his application to rebuild seawalls, Noyes has asked the commission for a permit to build a gravel pad to facilitate access to the island. And he filed a third application for a permit to anchor a float off the island and access it by gangway.

Those applications are scheduled to be reviewed by the commission on July 14.

Noyes told the commission that he would like to store and repair boats on the island. He confirmed at the hearing that he would also like to build a campground on the island.

“It would seem like a logical summertime use,” he said. “Right now you can't use the island.”

In a popular decision with the large crowd that showed up at the hearing in Abbot Hall on June 9 to oppose Noyes' application, the commission denied the application because the proposed construction would violate the Wetlands Protection Act.

The commission fined Noyes $900 for driving his truck onto the island the week before the hearing and for not telling the commission when he was driving it off. The commission issued an order to Noyes to remove the truck.

Noyes Claims Town Allows Driving on Other Beaches

A native Marbleheader and restaurateur, Noyes said in his appeal that the commission's order “is contrary to law because the town has agreed to allow the Way to be used.”

The appeal further claims that the causeway is not subject to state law, Chapter 131, Section 40 because it excludes projects existing before 1973.

“Construction in coastal wetlands of access driveways is allowed in a manner which allows the flow of the tide,” the appeal said.

He said the commission's order was also “arbitrary and capricious” because the town of Marblehead allows driving on beaches such as Riverhead Beach without approval from the commission. In addition, the state has a policy of allowing property owners to regulate driving on their beaches.

Noyes had 10 days from the decision to file an appeal before the Superior Court. The commission referred the matter to Town Council Lisa Mead. The town has 20 days to respond to the appeal.

At the hearing, commission Chairman Walter Haug read a letter from the Natural Heritage and Endangered Species program that said driving across the causeway to the island was not a violation of its regulations.

Noyes asked the commission at the hearing if he could drive across the causeway. He was told he would have to get a permit to do so.

In an email after the hearing, Noyes said there are two state agencies that have supported his right to drive across the causeway. He accused Haug of refusing “to admit it in public.”

So he asked: “If there is a right to drive to the Island, then how does the fine for driving on the Island square up?”

Fears of Harming Little Harbor Lobster Nursery

The fear among environmentalists and lobstermen is that use of the causeway and the island might disturb a very prolific lobster nursery around the island in Little Harbor.

Denise Fiore with the Lobster Conservancy said, “I was blown away by the (juvenile lobster) nursery site you have here,” she said. “Marblehead is the place to be for lobsters.”

The baby lobsters need the nutrients that flow in the water around Gerry Island and the rocky bottom that provides excellent hiding places from their fish predators, Fiore said.

She said the proposed construction and boat maintenance would have a negative impact on one of the best lobster nurseries in Massachusetts, New Hampshire and southern Maine.

Several commercial lobster men also spoke against Noyes' application, saying they feared his plans would damage the lobster industry.

Laurie Krentzman-Giddens June 23, 2011 at 11:25 AM
Little Harbor has been there since before any of us have been here. Yet we have enjoyed it over the years from generation to generation. It was a great source of a Sr. MHS Party back in the late 60's. The fact that we have a Little Island so close is wonderful, it allows those who live in the area to swim, canoe, or boat over and picnic or just play for the day. This is and has been don’t without upsetting the lobsters and whatever other sea life that was or is there. To turn it into a place to work and store boats; in my humble opinion is just one more addition this town can do without. Why must every parcel of empty land be put to material use? Isn't there something in the town documents to protect us from becomeing more overbuilt? M"head is beautiful, why can't we leave it and maintain it and enjoy her just as she is.
Jack Buba June 23, 2011 at 12:09 PM
If the town wants to keep it for public use then they have to buy it. What if all of your neighbors were to get together and decide that you house "has been there since before any of us have been here... and it is a great place to party?" - Can they just take it? Or will you just give over the deed to them? In America we have the the concept of private property. Just like on Bubier Road, people seem to think that they have a right to other people's property. Not a big fan of the plans for the island, but if you don't like it, then get a bunch of rich people together (no shortage of them in Marblehead) and collect enough money to buy the property and then donate it to the town. But don't render this property useless for the owner without proper compensation.
Allan White June 23, 2011 at 02:03 PM
Marblehead in general has a long history of chasing away commercial business. If one wants to complain about the tax rate in town you don't have to look to hard to see all the commercial that has been micro managed and made to feel unwelcome here in town. From yacht builders, sail makers to boat yards it has been sad to see the town micro managed and businesses made to feel unwelcome threw out the years, the end result is businesses leaving town and thriving elsewhere. (Good for them, bad for the town). It is sad it has become an either or situation here in town. What was once the "sailing capitol of the world" isn't. I agree with Jack above, if don't like it put your money where your mouths are. Strange how things change when people have to open their wallets.
Frank L. McElroy June 23, 2011 at 04:23 PM
Jack and Allan, great to hear from you. Maybe the owner of Gerry Island could simply donate the island to the Town or the Trustees. After all, hasn't he taken a great deal already? For some it's never enough. As for Bubier Road, you may have forgotten that the owner of 74 created an illegal lot and built an illegal house on it in spite of notice years in advance, a lawsuit pending in Land Court against him, and a warning from Justice Cauchon that if he started construction he did so at his own risk and that the Court would remove whatever was constructed. The Noyes nonsense comes down to his apparent decision not to obey the Wetlands Protection Act, just like the owner of 74 Bubier, who made a decision not to obey the Zoning By-law. So my question to both of you, is why do you support people who shun the law? As for commercial activity in Marblehead, take a look at the old Hood foam plant, Tioga Way, etc. If you are referring to Ted Hoods operation, developed into housing by entities under the guidance Ted Moore, you are rewriting history to suggest that Ted Hood was run out of Town by micromanagement of his operations. As I recall, he had a problem obeying the Wetlands Protection Act as well. But the reasons he left Marblehead were (a) the site wasn't large enough for his operation; (b) tidal access at Little Harbor; (c) he found a larger site with deep water access; (d) he received tax benefits and avoidance; (e) he received a big offer on his property.
Jack Buba June 23, 2011 at 04:57 PM
Frank, I know it pays your bills to represent these people, but please stop using the town as your foil. If you don't like what the owner has done then sue him for damages, but please stop tying the town boards up in knots just to get even with people you or your clients disagree with. We all know that with enough time and money any lawyer can tie up any proceedings for years. The fact the Bubier road home is still standing (and will be for years, maybe forever) is testimony to that. Now your client there will be on the other end of the delay tactics. Karma is a great thing. I am not big fan of the island owner or the guy with the truck, but I am a fan of property rights. So far you are always representing people who are trying to tell other people what they can and can't do with their property. A few years back I was interested in a piece of property with ocean views. I did not buy it because I could not afford the additional lot in between the property in question and the view. I did not buy the property. By your rules I should have bought the property and then waited for someone else to buy the intervening lot. Then I could hire you to sue them so they could not block my view. Instead of the owner donating the island property, what if you buy it from him and then you can donate it to the town.
Frank L. McElroy June 23, 2011 at 06:01 PM
As I expected, no answer to the simple question. I don't represent anyone in connection with Gerry Island. And regarding Bubier Road, the passage of time since the judgment in 2000 is completely attributable to the owner of 74 and the Land Court. Maybe Allan will offer an answer.
Jack Buba June 23, 2011 at 06:48 PM
My answer was plain but I will spell it out for you. You like most lawyers look for any small loophole in the law and then exploit it. The owner clearly has a right of way to access his property. The fact that you can go to the CON COM and point to how this normal use is ruining the environment does not make it so nor does it take away his right. Normal folks would work together so that he can get to his property and still comply with the CONCOM. But you and they don’t want him to get to his property so you call him a lawbreaker. However, the Wetlands act was not set up to deny owners access to their land. So maybe the CON COM is guilty of perverting a law to enact a social / political end? I am sure that if I crawl through your property I can find many violations of some law or another. Then would it be OK if I took out a billboard telling everyone that Frank is a lawbreaker? We just ask that everyone involved use common sense. He has a right of way to the land (that is not in dispute,) but you want to use some loophole in the wetlands act to take that right away. To take a right away you have to compensate the other party. I notice I did not get an answer to my question as to why you don’t buy the property and give it to the town. If you did, the case is closed and everybody wins. QED.
Allan White June 23, 2011 at 07:13 PM
To answer Mr.McElroy's question ,at no time did I or do I condone breaking the law. I will comment on the Bubier Rd issue now for the first time, I don't know what is right, seems the town has a certain accountability in this issue.Not so black and white as one would think. I have a question for a seasoned professional, If in fact the Bubier Rd home is removed ,would any house in town which received a variance after the fact be torn down? If not,why not? We are in disagreement on the commercial viability and acceptance here in town, many of your examples of the Little Harbor operation(C,D,E) where the end results of going threw the process . (B) was the biggest issue, lack of deep water access (dredging the channel which had been done in previous years) would make the area unviable for the current operations otherwise. I had first hand experience with the Hood Foam building,cleanup and re development, thank you for the refresher. The comment that "the owner of the island should just donate it" is insane ,and backs up the lack of business backing here in town. Not in my back yard is a fitting motto...
Frank L. McElroy June 24, 2011 at 09:05 PM
Allan, thanks for your comments. The question on Bubier Road is a good one. From my personal perspective, the person responsible is the guy who made repeated decisions to ignore the zoning by-law before he got into trouble. And you are right that Marblehead could have more commercial activity. You probably remember the Moratorium on coastal development back in the mid-'1980s which was intended to stop development of coastal resources into exclusive residences so that study could take place. The result is the Harborfront District (which includes the island) and coastal zone around the entire town. I wish Ted Hood was still here, but he made all the right moves for his company, and those led him to Rhode Island. Now the foam plant is the Charter School, and I think still Sound Down. And I didn't mean to imply that Mr. Moore should simply donate the island to the Town. It's more of a question, why wouldn't he engage in an act of generosity to the Town? The NIMBY comment I don't understand because nobody really has a clue about the actual and ultimate intentions of Mr. Noyes. And contrary to some recent comments, owning or controlling property does not allow its use for any purpose. Mr. Noyes claims to have extensive experience in vessel operations and is surely familiar with the regulations of the Commonwealth and Federal Government which apply to the activities he plans and has engaged in on the island. Thanks for sticking up for Marblehead's by-laws.

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