By Beth David, Editor
The Fairhaven Select Board had a bit of confusion at its meeting on 3/11/24, when a public hearing was not conducted as a public hearing, and so had to be delayed.
About 30 people showed up to hear the proposal from Blue Stream Shellfish to place a floating upweller system (FLUPSY) in Jack’s Cove. The system will allow the company to buy the smaller, less expensive seed oysters and grow them to a size large enough to transplant to the main aquaculture farm. The matter had been advertised as a public hearing, but was listed on the agenda as an action/discussion item.
Dale Leavitt of Blue Stream reviewed the history of the project with the board, explaining that last year, there was resident resistance to having the FLUPSY in Round Cove. He met with residents and town officials and got approval to have it for one year at Hoppy’s Landing, near the floating dock, and then he would look for a spot in Jack’s Cove. The Marine Resources Committee (MRC) approved the new proposed location, which is in the mooring field near Jacob’s Neck, on the north side of Goulart Memorial Drive.
Dr. Leavitt told the board that their role was to license him to have the undersize shellfish on his aquaculture farm, but it was the Harbormaster who dictates the location and issues a mooring permit.
Dr. Leavitt also addressed a concern from the Hoppy’s Landing FLUPSY. He said the orange fencing was to keep off the people who jump off the causeway. That would not be on the new one.
Harbormaster Tim Cox said Jack’s Cove was talked about in the meeting with residents, and after a lot of surveying, they decided on the new spot. He also said he got a lot of phone calls. The town has no stake in the game, he said, except that the oysters do clean the water. A full grown oyster can filter up to 50 gallons a day.
He also noted that the Division of Marine Fisheries has closed the waters of Buzzards Bay to shellfishing three times in the last two months because the City of New Bedford has released tens of millions of raw sewage ino the bay because of the heavy rainfall. The area on the south side of Goulart Memorial Drive will be closed indefinitely due to the city’s wastewater treatment plan woes. This means that Blue Stream cannot put the FLUPSY on land on that side and pump water up, which has been suggested by residents. Dr. Leavitt said the water there also simply does not have enough food for the seed.
Resident Steve Moulton said that he found an example of an upweller on land, and when he mentioned it at the resident meeting last year, Dr. Leavitt said it was too expensive.
Mr. Moulton also insisted that Jack’s Cove was never mentioned in that meeting.
There was a bit of discussion about the closing of the bay to shellfishing.
Grace Barnes asked if they could run the water from Jack’s Cove across to Long Island, where Blue Stream has its property.
Dr. Leavitt said they would have to cut the road, which got a few chuckles. Ms. Barnes said they could still do it.
“We want a good neighbor,” she said, adding that ground-based would be the best and the new spot, as it was at Hoppy’s Landing, is, “Right in your face.”
Mr. Cox explained the difficulty Blue Stream has had for years trying to get Eversource to provide power to the company because Eversource will not cut the road.
Matthew Thomas, an attorney representing two properties on Goulart Memorial Drive,* questioned the process on several points. He started by saying he was confused, and asked if it was a public hearing.
SB Chairperson Leon Correy said it was not.
Mr. Thomas said the notice he got was for a public hearing. He said he watched the MRC meeting and they clearly believed it was supposed to be a public hearing at the SB.
He also questioned the notion that there was no need for a license, that Mr. Cox could simply authorize a mooring permit.
Mr. Thomas also questioned if quahogs were transplanted in that area in the last two years, because state law prohibits the upweller in that case. Mr. Cox said it had been closer to eight years since Jack’s Cove was transplanted.
Mr. Thomas also asked how the company would access the FLUPSY. He pointed out that using Jacob’s Neck would violate an “ancient easement” that is only for recreational use. Mr. Cox verified that, saying they could not use that road.
Mr. Thomas also pointed out that, although people generally agree that aquaculture is good in that it cleans the waters, it is the use of public waters for private use.
He also questioned if the FLUPSY would adversely affect navigation, as that is also prohibited by state law.
Mr. Thomas requested that they get answers to those questions before continuing and suggested they address the matter at another meeting.
Town Administrator Angie Lopes Ellison said it was not a public hearing, it was a public meeting.
Mr. Thomas held up the town notice that said it was a public hearing.
Mr. Cox took the hit, saying it was his error.
Ms. Ellison said there was not a need for a public hearing.
“So it’s not under Chapter 130,” asked Mr. Thomas.
He and Ms. Ellison and Mr. Cox went around a bit about Chapter 130, whether or not the state had to approve the upweller, or if Mr. Cox could just approve it with the SB’s “blessing.”
At some point Ms. Ellison said they would need to check with Town Counsel about the licensing, the issue being the “legality.”
“That’s always the issue, ma’am,” said Mr. Thomas.
“Given the ambiguity of the legalities,” Mr. Thomas suggested they continue the hearing until they hear from Town Counsel, adding that if they acted it could be invalid.
SB member Keith Silvia asked if thee were required to have a public hearing.
Dr. Leavitt said he believed they did, and he thought that evening was for a public hearing.
Resident Bill Yukna reminded the board that West Island properties are taxed higher than other parts of town because of the water, and because “we have what we have,” namely beautiful views and access to the water.
“Jack’s Cove is a beautiful location,” said Mr. Yukna.
He said the company can locate the upweller on land, it would just be more expensive, but it could be done.
“There is more than one solution,” said Mr. Yukna.
Before they ended discussion to continue it to another meeting, Mr. Cox said he thought the residents had agreed that Jack’s Cove would be a good spot when they left that meeting last year.
The residents answered with a resounding “no.”
The matter will be discussed at a future meeting.
In the first action item, which had been added to the revised agenda at 9:10 a.m. on the same day of the meeting, Mr. Correy recused himself from the discussion and left the room.
Attorney Jaime Kenny of Clifford & Kenny, the town’s labor counsel, requested that the board authorize spending for a “private, confidential personnel matter.”
She told the board that her firm needed to hire an outside Human Resources investigator to look into the matter. She said she felt it was not appropriate for her firm to handle it.
No details were provided about the person in question or the matter. Ms. Kenny said she did not know how much the investigation would cost. The board voted to approve the spending.
In another matter, the board did not approve a proposed candidates debate at Town Hall sponsored by SB member Keith Silvia and paid for by his election committee.
Mr. Silvia was not asking for any fee waivers, and the event would have cost $400: $150 for the rental fee, $100 for the audio/camera, $150 for the custodian. He recused himself and left the room for the discussion.
Board members voiced concerns on a number of issues, including that campaign funds were being used; the use of town hall for a political event; the fact that only candidates for Select Board and Planning Board were invited; and that the written policy requires a 45-day notice.
Ms. Ellison said that the state campaign office said use of the funds was okay.
SB member Stasia Powers said she was concerned about safety in today’s climate of “very passionate political views.”
Resident Ann Richard said regardless of what the state said, she believed it was “quite the conflict of interest” for a sitting board member to sponsor that kind of event.
“It just feel like it’s wrong,” said Ms. Richard. “And I don’t think it should happen.”
Mr. Correy said the 45-day policy is the 45-day policy, and so it should not be approved.
In the end, two motions were suggested, but not made, so no action was taken.
*Editor Beth David has a beneficial interest in a property represented by Mr. Thomas.
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