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.