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HomeMy WebLinkAbout83-1352To: YARMOUTH Conservation Commission MODIFIED — II Please be advised that the Order of Conditiop for the project at Lot J2, Curve Hill Road, So. Yarmouth Proiect Location DEP File Number SE 8 3 -13 5 2 has been recorded at the Registry of Deeds of BARNSTABLE County and has been noted in the chain of title of the affected property in 12929 Book 178 Page in accordance with the Order of Conditions issued on 3-22-00 Date If recorded land, the instrument number which identifies this transaction is Instrument Number If registered land, the document number which identifies this transaction is Document Number Signature of Applicant Rev. 10/98 Page 5 of 5 YARMOUTH CONSERVATION COMM-3)SION APR 7 2000 RECEIVED 4 DEP : i ne 0 fis DeaIffient d Preftladw DEP File Number Bureau of Resource Protecdon - Wedands MODIFIED - II WPA Form 5 = Order of Conditions for OEPuse only Massachusetts Wetlands Protection Act M.G.L. C. 131, §40 Applicant Information From: YARMOUTH crosv Lion Commission For: SE 83-1352 ftleaFaeNumtr To: Siddharth Siddharth AppliarNN" 283 Weymouth Street WffingMmss Holbrook, cdy/rown MA 02343 state Irp Code The project site is located at: South Yarmouth C41Town 101 J2 Assessors A601at / P&MA01 J and the property is recorded at the Registry of Deeds for. Barnstable 10204 0080 County Book Page aV= (it m9 steW land) U Findings Findings pursuant to the Massachusetts Wetlands Protection Act. Following the review of the above -referenced Notice of Intent and based on the information provided in this application and presented at the public hearing, this commission finds that the area in which work is proposed is significant to the following interests of the Wetlands Protection Act (check all that apply): = Public Water Supply • Private Water Supply Groundwater Supply X Rood Control = Land Containing Shellfish = Fisheries B Storm Damage Prevention XPrevention of Pollution XProtection of Wildlife Habitat The Notice of Intent for this project was filed on: 2/8/96 Do The public hearing was closed on: 3/16/00 Date Title and Date of final Plans and Other Documents: Plan of land, Curve Hill Rd., So.Yarmouth - Lot J2 - prepared for Siddharth Siddharth by Yunits Engineering Co., Holbrook, MA - REV. 2/22/00 Furthermore, this Commission hereby finds that the project, as proposed, is: (check one of the following boxes) Approved subject to: )'the following conditions which are necessary, in accordance with the performance standards set forth in the wetlands regulations, to protect those interests checked above. This Commission orders that all the work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. Rev. 10/98 Page 1 of 5 Massachusetle Department of Enlvironmenta/ Proiectfon Town of Yarmouth Bureau of Resource Protection- Wetlands MODIFIED - II Wetland By -Law WPA Form 5 - Order of Conditions Chapter 143 Massachusetts Wetlands Protection Act M. G. L. G. 131, §40 1;� Findings (coot.) debris, including but not limited to lumber, bricks, plaster, Denied because: wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing. the proposed work cannot be conditioned to meet the Performance standards set forth in the wetlands regulations to protect those interests checked above. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect these interests, and a final Order of Conditions is issued. ED the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the Act's interests, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMR 10.05(b)(c). General Conditions 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: (a) the work is a maintenance dredging project as provided for in the Act; or (b) the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance. If this Order is intended to be valid for more than three years, the extention date and the special circumstances warranting the extended time period are set forth as a special condition in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse, rubbish, or 7. This Order does not become final until all administrative appeal periods from this Order have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. 8. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is done. The recording information shall be submitted to this Conservation Commission on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior to the commencement of the work. 9. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection" [or, "MA DEP"] "File Number SE 83-1352 ,. Project File Number 10.Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. 11. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A) to the Conservation Commission. 12.The work shall conform to the following attached plans and special conditions: Final Approved Plans (attach additional plan references as needed): Plan of land -Curve Hill Road Title REV. 2/22/00 Dated Terrence J. Chase, P.E. SignedandSlampedby Rbt, Backman, PLS Con Com On file Witt If, -.t-cachuseft Depjrftent of Enuironmentai Protect%n Town of Yarmouth Bureau of Resource Protection - Wetlands MODIFIED - II Wetland By -Law WPA Form 5 - Order of Conditions Chapter 143 Massachusetts Wetlands Protection Act M.G. L. c. 131, §40 U Findings (coot.) 13. Any changes to the plans identified in Condition # 12 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent. 14. The Agent or members of the Conservation Commission and Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the condi- tions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commis- sion or Department for that evaluation. 15. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person perform- ing work conditioned by this Order. 16. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall serve as the limit of work (unless another limit of work line has been noted in the plans of record) and be maintained until a Certificate of Compliance has been issued by the Conservation Commis- sion. 17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construc- tion, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Special Conditions (Use additional paper if necessary) SEE ATTACHED SHEETS - PAGES 3-A & 3-B Findings as to municipal law, bylaw, or ordinance Furthermore, the YARMOUTH Conservation Commission hereby finds (check one that applies): that the proposed work cannot be conditioned to meet the standards set forth in a municipal law, ordinance, or bylaw, specifically Name and citation of municipal law, bylaw, or ordinance Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order of Conditions is issued. that the following additional conditions are necessary to comply with a municipal law, bylaw, or ordinance, specifi- cally Name and citation ot municipal law, bylaw, or ordinance. The Commission orders that all the work shall be performed in accordance with the said additional conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, the conditions shall control. Additional conditions relating to municipal law, bylaw, or ordinance: SPECIAL CONDITIONS - PAGE 3-A SIDDHARTH SIDDHARTH SE 83-1352 The applicant shall be held responsible to advise the contractor of all these Orders of Conditions. 2. The Conservation Officer shall be notified at least 48 hours prior to the commencement of the proposed work. Telephone number is 398-2231 ext. 283. 3. These Orders of Conditions shall apply to any successor in interest or successor in control. 4. Any fill required, (See General Order #6 in Order of Conditions) shall be of clean sand and contain no material over 12 inches in diameter. 5. The existing silt fence and haybales shall remain in place. No work whatsoever shall occur on the wetland side of this line. 6. Any area proposed for removal of vegetation for a period of more than seven days, shall be mulched or otherwise treated to prevent erosion. 7. The deck shall not be closed in without a filing of either a Notice of Intent or a Request for Determination of Applicability. 8. The back yard shall be planted with indigenous ground covers shrubs, trees etc. Lawn will not be allowed. 9. The general contractor shall arrange an on site meeting with the Conservation Administrator prior to the start of any work. 10. The applicant shall be responsible for having a copy of the Orders of Conditions on the job site at all times. Failure to do so could possibly result in a revocation of the Order, a fine or both. 11. The Conservation Commission, its agents or assign, shall have the express right of entry upon the property for the purposes of establishing compliance to the conditions stated herein. CONTINUED......... SPECIAL CONDITIONS CONTINUED - PAGE 3-B SIDDHARTH SIDDHARTH SE SE 83-1352 12. Upon completion of the project a Certificate of Compliance shall be requested. This Order shall be considered incomplete until the Certificate of Compliance is recorded. 13. Any changes whatsoever form the plan dated 2/22/00 shall be approved by the Conservation Commission prior to implementation. Ifo -q achnsetts Department of "--drenmentai Prot on Town of Yarmouth Bureau of Resource Protection - Wetlands MODIFIED - II wetland By -Law WPA Form 5 - Order of Conditions Chapter143 DEP Massachusetts Wetlands Protection Act M.G. L. c. 131, §40 Findings (coot.) This Order is valid for three years, unless otherwise specified as a special condition pursuant to General Conditions #4, from the date of issuance. March 22, 2000 Date This Order must be signed by a majority of the conservation commission. The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate regional office of the Department of Environmental Protection. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate Department of Environmental Protection Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Appendix E: Request for Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the conservation commission and to the applicant, if he/she is not the appellant. On this 16 In day of Month YOU before me personally appeared "k --,/� 1 �- � K" if�tr'f tss1 q-s1 to me known to be the person described in and who executed the foregoing instrument and acknowledged that he/she executed the same as his/her free act and deed. _ No" Public I`-. '-1-v AA- A �? .9—d.2 * commission evims This Order is issued to the applicant as follows: by hand delivery on Date MX by certified mail, return receipt requested, on March 22, 2000 Date The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act (M.G.L. c.131, §40 and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department of Environmental Protection has no appellate jurisdiction. Massachiusetle Deparbuent of Environmental Proteetion Town of Yarmouth Bureau of Resource Protection - Wetlands MOD IF•I ED - II Wetland By -Law WPA Form 5 - Order of Conditions Chapter 143 Massachusetts Wetlands Protection Act M.G. L. c. 131, §40 W Recording Information This Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the land Court Certificate of idle of the owner of the land subject to the Order of Conditions. The recording information shall be submitted to the YARMOUTH Conservation Commission on the form below, which must be stamped by the Registry of Deeds. Detach on dotted line and submit to the Conservation Commission. _ _ _ _ ---------- TO: YARMOUTH Conservation Commission MODIFIED — II Please be advised that the Order of Conditions or the project at _Lot J2, Curve Hill Road, So. Yarmouth ftiectLocanon D9ReNumber SE 8 3 —13 5 2 has been recorded at the Registry of Deeds of BARNSTABLE county and has been noted in the chain of tide of the affected property in Book PW in accordance with the Order of Conditions issued on 3-22-00 Date If recorded land, the instrument number which identifies this transaction is IMUMentMober If registered land, the document number which identifies this transaction is Document Number Signature of Applicant • COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE ARGEO PAUL CELLUCCI Governor f! �= f`` r Michael B. Stusse 25 Mid -Tech Drive, Suite C W. Yarmouth, Massachusetts 02673 Dear Mr. Stusse: April 9, 1998 TRUDY COXE Secretary DAVID B. STRUHS Commissioner RE: YARMOUTH -- Wetlands File No. SE 83-1352 Superseding "Modified" Order of Conditions Following an in depth review of the above referenced file and in accordance with Massachusetts General Laws, Chapter 131, Section 40, the Department of Environmental Protection has issued the enclosed Superseding Order of Conditions (SOC). This Order approves the proposed project subject to certain conditions. The Department has determined that the project site abuts a bordering vegetated wetland (BVW), as defined in 310 CMR 10.55(2). The proposed project consists of constructing a retaining wall between a single-family dwelling and a BVW to prevent the slope from constantly eroding, resulting in siltation of the BVW and destabilization of the building foundation. The enclosed SOC requires that the erosion control barrier installed between the wetland resource area and the work area, be maintained until the construction of the retaining wall is completed. The SOC directs that all disturbed areas be stabilized prior to removing the erosion control barrier. The SOC contains additional requirements to protect the - interests of the Act. It is the opinion of the Department that, as conditioned herein, the proposed project adequately protects the above -noted interests of the Act. In the opinion of the Department the reasons given here are sufficient to justify the enclosed SOC. However, the Department reserves the right to raise additional issues and present further evidence as may be appropriate should there be further proceedings in this matter. 20 Riverside Drive • Lakeville, Massachusetts 02347 • FAX (508) 947-6557 • Telephone (508) 946-2700 0 Printed on Recycled Paper -2- If you have any questions regarding this SOC, please contact Daniel F. Gilmore at (508) 946-2808. Very truly yours, -'Tena Y/Davies Regiodal Watershed Coordinator Bureau of Resource Protection D/DFG/dg /bh Enclosure CC: Yarmouth Conservation Commission Siddharth Siddharth 283 Weymouth Street Holbrook, MA 02343 Certified Mail # Z 333 585 685 RETURN RECEIPT REQUESTED 310 CMR 10.99 Form 5 DEP File No SE 83-1352 (To be provided by DEP) City/Town YARMOUTH Applicant Siddharth Siddharth Superseding "Modified" Order of Conditions Massachusetts Wetlands Protection Act G.L. c.131, 540 From Department of Environmental Protection To Siddharth Siddharth (Name of Applicant) Address 283 Weymouth Street, Hingham, MA 02343 (applicant) To Same (Name of Property Owner) Address Same (owner) This Order is issued and delivered as follows: ❑ by hand delivery to applicant or representative on (date) ® by certified mail, return receipt requested on A=J 1 9, 1998 (date) # Z 333 585 685 This project is located at Lot 2 Curve Hill Road The property is recorded at the Registry of Deeds, Barnstable County Book 10849 Page 306 Certificate (if registered) The Notice of Intent for this project was filed on 2/8/96 (date) The public hearing was closed on 2/5/98 (date) Findings The Department of Environmental Protection has reviewed the above -referenced Notice of Intent and plans and has held a public hearing on the project. Based on the information available to the Department of Environmental Protection at this time, the Department of Environmental Protection has determined that the area on which the proposed work is to be done is significant to the following interests in accordance with the Presumptions of Significance set forth in the regulations for each Area Subject to Protection Under the Act (check as appropriate): ❑ Public water supply ® Flood control ❑ Land containing shellfish ❑ Private water supply ® Storm damage prevention ❑ Fisheries ® Ground water supply ® Prevention of pollution ® Protection of wildlife habitat Total Filing Fee Submitted $250 State Share $112.50 City/Town Share $137.50 04 fee in excess of $25) Total Refund Due $ 0 City/Town Portion $ 0 State Portion $ 0 N total) (M total) Effective 11/20/92 5-1 Therefore, the Department of Environmental Protection hereby finds that the following conditions are necessary, in accordance with the Performance Standards set forth in the regulations, to protect those interests checked above. The Department of Environmental Protection orders that all work shall be performed in accordance with said conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications or other proposals submitted with the Notice of Intent, the conditions shall control. General Conditions 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: (a) the work is a maintenance dredging project as provided for in the Act; or (b) the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance and both that date and the special circumstances warranting the extended time period are set forth in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. Any fill used in connection with this project shall be clean fill, containing no trash, refuse, rubbish or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts of any of the foregoing. 7. No work shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department have been completed. 8. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. The recording information shall be submitted to the Department of Environmental Protection on the form at the end of this Order prior to commencement of the work. 9. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection, File Number SE 83-1352 " 10. Where the Department of Environmental Protection is requested to make a determination and to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. 5-2 11. Upon completion of the work described herein, the applicant shall forthwith request in writing that a Certificate of Compliance be issued stating that the work has been satisfactorily completed. 12. The work shall conform to the following plans and special conditions: Plans: Title: Revised Site Plan in South Yarmouth, MA for Siddharth Siddharth Dated: January 28 1998 Signed & Stamped by: Edward E. Kelley, RPLS & Francis E. LaJoie, RPE & T. Varnum Philbrook RPE On File With: DEP Special Conditions (Use additional paper if necessary) 1. Prior to the commencement of construction, General Condition No. 8, above, must be complied with. 2. All construction must comply with the above -referenced plans and the conditions of this Order. For any proposed change in the approved plans or in the work, the applicant shall file a new Notice of Intent or inquire, in writing, of the Department whether the change is substantial enough to require a new Notice of Intent. No change in plan, under this filing, is permissible without prior written approval from the Department allowing this change. 3. It is the responsibility of the applicant, owner and/or successor(s) to ensure that all conditions of this Order are complied with. The project engineer and contractors are to be provided with a copy of this Order and referenced documents before commencement of construction. 4. Members and agents of the local Conservation Commission and the Department shall have the right to enter and inspect the property at all reasonable times to evaluate compliance with the conditions stated in this Superseding Order, and may require the submittal of any data deemed necessary by this Department for that submittal. 5. A copy of this Order and the above -referenced plans shall be kept available on site during all phases of construction, until a Certificate of Compliance has been issued by the Department. 6. This Superseding Order of Conditions does not relieve the applicant from obtaining approval under, and complying with any requirements of, the Town of Yarmouth by-laws. 7. The erosion control barrier, as shown on the plan of record and established on the site, shall be maintained until all construction has been completed and all disturbed areas have been stabilized. 8. In any area where erosion has encroached into the bordering vegetated wetland (BVW), the applicant shall remove the sediment from the BVW using hand tools and manual labor. 9. Upon completion of the project, a Certificate of Compliance shall be requested in accordance with General Condition No. 11, and under the provisions of 310 CMR 10.05 (9)(d). An "AS- BUILT" plan and a statement from a Registered Professional Engineer certifying compliance with the conditions of this Order shall accompany the request for a Certificate of Compliance. There are no attached sheets with additional conditions. 5-3B Issued by the department of ironmental Protection Signature Tena J. Davies, -Regional Watershed Coordinator v On this 9th day of April 1998 before me personally appeared Tena J. Davies to me known to be the person described in ana wno execuLeu L.11c ��L�s��•7 instrument and acknowledged that he/she executed the same as his/her free act and deed. NotarysPubli My commission expires u,r4c��_ The applicant, the owner, any person aggrieved by the Superseding Order, any owner of land abutting the land upon which the proposed work is to.be done, or any ten persons pursuant to G.L. c.30A §10A, are hereby notified of their right to request an adjudicatory hearing pursuant to G.L. c.30A, §10, providing the request is made by certified mail or hand delivery to the Department, with the appropriate filing fee and Fee Transmittal Form as provided in 310 CMR 10.03(7), within ten days from the date of issuance of this Superseding Order, and is addressed to: Docket Clerk, Office of General Counsel, Department of Environmental Protection, One Winter Street, Boston, MA 02108. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission, the applicant, and any other party. A Notice of Claim for an Adjudicatory Hearing shall comply with the Department's Rules for Adjudicatory Proceedings. 310 CMR 1.01(6), and shall contain the following information: (a) the DEP Wetlands File Number, name of the applicant and address of the project. (b) the complete name, address and telephone number of the party filing the request, and, if represented by counsel, the name and address of the attorney; (c) the names and addresses of all other parties, if known; (d) a clear and concise statement of (1) the facts which are grounds for the proceedings, (2) the objections to this Superseding Order, including specifically the manner in which it is alleged to be inconsistent with the Department's Wetlands Regulations (310 CMR 10.00) and does not contribute to the protection of the interests identified in the Act, and (3) the relief sought through the adjudicatory hearing, including specifically the changes desired in the Superseding Order; (e) a statement that a copy of the request has been sent to the applicant, the conservation commission and each other party or representative of such party, if known. Failure to submit all necessary information may result in a dismissal by the Department of the Notice of Claim for an Adjudicatory Hearing. Detach on dotted line and submit to the Department of Environmental Protection prior to commencement of work. To Department of Environmental Protection, Issuing Authority. Please be advised that the Order of Conditions for the project at Lot 2 Curve Hill Road , File Number SE 83-1352, has been recorded at the Registry of Deeds Barnstable County and has—been noted in the chain of title of the affected propertyinaccordance with General Condition 8 on ' If recorded land, the instrument number which identifies this transaction is If registered land, the document number which identifies this transaction is Signature Applicant K/DFG/dg /bh 5-4B NOTICE OF APPEAL RIGHTS/ADMINISTRATIVE ORDER/DETERMINATION APPEAL RIGHTS AND TIME LIMITS This Order/Determination is an action of the Department. If you are aggrieved by this action, you may request an adjudicatory hearing. A request for a hearing must be made in writing within and postmarked within ten (10) days of the date this Order/Determination was issued. CONTENTS OF HEARING REQUEST Under 310 CMR 1.01(6)(b), the request must state clearly and concisely the facts which are the grounds for the request, and the relief sought. Additionally, the request must state why the Order/Determination is not consistent with applicable laws and regulations. FILING FEE AND ADDRESS The hearing request along with a valid check payable to Commonwealth of Massachusetts in the amount of $100 must be mailed to: Commonwealth of Massachusetts Department of Environmental Protection P.O. Box 4062 Boston, MA 02211 The request will be dismissed if the filing fee is not paid, unless the appellant is exempt or granted a waiver as described below. The filing fee is not required if the appellant is a city or town (or municipal agency), county, or district of the Commonwealth of Massachusetts, or a municipal housing authority. WAIVER The Department may waive the adjudicatory hearing filing fee for a person who shows that paying the fee will create an undue financial hardship. A person seeking a waiver must file, together with the hearing request as provided above, an affidavit setting forth the facts believed to support the claim of undue financial hardship. YARMOUTH CONSERVATION COMMISSION APR 19Q8 ECEIVE REQUEST FOR DEPARTMENTAL ACTION FEE TRANSMITTAL FORM Department of Environmental Protection Division of Wetlands and Waterways PERSON/RkRTY MAKING REQUEST. (If appropriate, name the citizen ;roup's representative) Name: Street: City/Town: State: Zip Code: Phone Number. APPLICANT. (As shown on Notice of Intent or Request for Determination) Name: City/Town: State: I Zip Code: Project Location: DEP FIe Number:_ Date Local or Superseding OrderlDetermination Issued: Amount of FIing F= Attached: S WF.E`1 T IM DEPART.2Y=- AL ACTION REQUESTED IS: (check one) _ Request for Superseding Order of Conditions (550) _ Request for Superseding Determination of Applicability (S50) Send this form and a check or money order for S50.00, payable to the Commonwealth of Massachusetts, to the DEP Lock Box ac Dept. of Environmental Protection Box 4062, Boston, MA 02211 2. Send a copy of this form and a copy of the check or money order with the Request for a Superseding Order of Conditions or Superseding Determination of ApplicabiIiry to the appropriate DEP Regional Office: DEP/Northeast Regional Ofiic- 10 Commerce Way Woburn, MA 01301 DEP/Central Regional OfFic- 75 Grove Street Worcester, MA 01605 DE'/Southeast Regional Office 20 Riverside Dr., Route 105 LakeviIIe, btA 02.347 DED/Western Regional Office 436 Dwight Street State House West, 4th Floor Springfield, MA 01103 WHEY THE DEPARTiMM, 4TAL ACTION REQUESTED IS: (check one) _ Request for Adjudicatory Hearing (S100) _ Request for "Yon -takings" Variance (S-1,) _ Request to Intervene in Adjudicatory Proceeding (S100) _ Request for'"Iakings" Varianc= (S100) I. Send this farm and check or money order payable to the Commonwealth of Massachusetts• in the indicated amount to the DEP Lock Box (at the above address) and 2. Send a copy of this form and a copy of the check or money order with the Request for DepartmcntaI Action to: Docket Cleric Office of General Counsel I Winter Street, Boston. IVIA 02108 n...-..... fNld : 310 CMR 10.99 r 4� Form 9 .f, —'-- - Commonwealth �c of Massachusetts OEP File No. , SE 8 3 -13 5 2 (To be provided by DEP) c:ty Town YA R M O U T H Aooi,cant SIDDHARTH SIDDHARTH Enforcement Order Massachusetts Wetlands Protection Act, G.L. c.131, §40. and the Town of Yarmouth Weiland Bylaw FromTOWN OF YARMOUTH CONSERVATION - COMMISSION Issuing Authority To Siddharth Siddharth 283 Weymouth Street Holbrook MA Date of Issuance March 19, 1998 Property loUparcel number, address Lot 2, Curve Hill road, South Yarmouth, MA Extent and type of activity: Failure to adequately address erosion. The CONSt==cVAi 10N COMMISSION has determined that the activity described above is in violation of the Wetlands Protection Act. G.L. c. 131. §40. and the Regulations promulgated Pur- suant thereto 310 C.MR 10.00. because: ❑ Said activity has been; is beine conducted without a valid Order of Conditions. Said activity has been. -is beina conducted in violation of an Order of Conditions issued to James Ph�loff ..dated 4-9-96 Re numcer 83-1352. Condition nurncer(s) 21 ❑ Other (specify) Property owner refuses to follow Commission's directives in order to address serious erosion problems. The CONcc`~V4710N COMMISSION hereby orcers the fcllowina: ❑ The.Wrcoerty owner. his agents, permittees and all others shall immediately cease and desist from fur:ner activity affec:inc :he wetland ,:ortion of this property. ❑ Wetland atteraticns resuitinc !rem said ac:.vity snail be corrected and the site returned to its cric:nal con d:ticn. 9.11 E"ec::ve 11/1c;E9 EIssued by TOtiVN OF YARMOIIT-( CONSERVATION COMMISSION p Completed application' forms and plans as required by the Act and Regulations shall be filed with the CONSERVATION COMMISSION on or before (date). and no further work shall be perforrited until a public hearing has been held and an Order of Conditions has been issued to regulate said work. Application forms are available at: COMMISSION OFFICE The property owner shall take every reasonable step to prevent further violations of the act. Il Other (specify) 1. winter rye grass shall be heavily planted on all exposed soil areas. 2. jute matting shall be placed on all slopes. Tb Gc ," p,-.A cr- 3 y 5-: 0 0 (,orn 0" 3 /Z 7l I &' Failure to comply with this Order may constitute grounds for legal action. Massachusetts General taws Chap- ter 131. Section 40 provides: Wnoeve.r violates any provision of this section shall be punished by a fine of not more tna,7-twenty-five thousand dollars or by imprisonment for not more than rtwo years or botn. Each day or portion thereof of continuing violation shall constitute a separate offense. Questions regarding this Enforcement Order should be directed to: CONSERVATION COMMISSION Issued by TOWN OF YARMO Signature(s) N CONSERVATION COMMISSION (Signature of delivery person or certified mali num.-erl j 310 9MR 10.00 ,Bo ms Commonwealth of Massachusetts DEPFileNo. SE 83-1352 City/Town YARMOUTH Applicant SIDDHARTH SIDDHARTH MODIFIED ORDER OF CONDITIONS MASSACHUSETTS WETLANDS PROTECTION ACT G.L. C.131,5.40 RIND THE TOWN OF YARbIOUTH WETLAND BY-LAW From TOWN OF YARMOUTH CONSERVATION COMMISSION To Siddharth SiddhErth (Name of Applicant) Same (Name of Property Owner) Address 283 Wevmouth Street, Address Ramp Holbrook, MA 02343 This order is issued as follows: X By hand deliven• to applicant or representative on February 11, 1998 (date) By Certified Mail on (date) The project is located at Lot 2, Curve Hill Road , South Yarmouth, MA The propem• is recorded at the BARNSTABLE REGISTRY OF DEEDS BOOK 10849 PAGE 3 0 6 OR CERTIFICATE The Notice of Intent was filed on 2 / 8 / 9 6 (date) The Public Hearing was closed on 2 / 5 / 9 8 (date) The Town of Yarmouth Conservation Commission has reviewed the above referenced Notice of Intent and plans and has held a public hearing on the project. Based on the information available to the Commission at this time, the Commission has determined that the area on which the proposed work is to be done is significant to the following interests in accordance with the Presumptions of Significance set forth in the regulations for each Area Subject to Protection Under the Act. (check as appropriate) Public Water Supply ,Flood Control Land Containing Shellfish Private Water Supply X Storm Damage Prevention Fisheries Ground Water Supply Prevention of Pollution �C Protection of Wildlife Habitat Total filing fee submitted $ 2 5 0.0 0 State Share $ 13 7 5 0 - City or Town Share 1 1 2. 5 0 (one half total fee in excess of $25.00) Total Refund Due City/Town Portion State Portion (one half total) (one half total) Effective 4/1/94 „,,Fbc Yarmouth Conservation Commission hereby finds that the following conditions are in accordance with the Performance Standards set forth in the regulations to protect those interests ,ticked above. The Yarmouth Conservation Commission orders that all work shall be performed in accordance with said conditions and with the Notice of Intent referenced above. To the extent that the following conditions modifi, or differ from the plans, specifications or other proposals submitted with the Notice of Intent, the conditions shall control. General Conditions: 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures shall be deemed cause to revoke or modify this Order. 2. This Order does not grant any property rights or any exclusive privileges; it does not authorize any injure to private propem• or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: (a) the work is a maintenance dredging project as provided for in the Ate; or (b) the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance and both that date an the special circumstances warranting the extended time period are set forth in this Order. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. Amy fill used in connection with this project shall be clean fill, containing no trash, refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts of any of the foregoing. 7. No work shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department have been completed. 8. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. in the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. The recording information shall be submitted to the Yarmouth Conservation Commission on the form at the end of this Order prior to commencement of the work. 9. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection, File Number SE 8 3 -13 5 2 ”. 10. Where the Department of Environmental Protection is requested to make a determination and to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. 5-2 106 zompletion of the work described herein, the applicant shall forthwith request in writing that a Zertificate of Compliance be issued stating that the work has been satisfactorily completed. ,j,2. The work shall conform to the following plans and conditions: PIS SE83-1352 Title Rev. Plan in So. Ymth for Siddharth Siddharth Lot 2, Curve Hill Rd., Dated REV. 1/28/98 Edward E. Kellev, Con Com PLS SPECIAL CONDITIONS: Luse additional paper if necessary) 1. The applicant shall be held responsible to advise the contractor of all the " Orders" stated herein. ?. The Conservation Administrator shall be notified at least 48 hours prior to the commencement of the proposed work. Tel. # 508-398-2231 ext. 288. 3. These "Orders of Conditions" shall apply to any successor in interest or any successor in control. 4. The applicant shall be responsible for having a copy of these "Orders of Conditions" on the job site at all times. Failure to do so may result in a revocation of the "Orders of Conditions", or a fine, or both, 5. The Conservation Commission, its agents or assigns, shall have the express right of entry on the job site at all reasonable times for the purpose of establishing "compliance" with the conditions stated herein. 6. Upon completion of the project, a "Certificate of Compliance" shall be requested in writing. This "Order of Conditions" shall be considered incomplete until the "Certificate of Compliance" is issued and recorded at the Barnstable County Registry of Deeds. Special Conditions continued on next page. 5-3 SPECIAL CONDITIONS CONTINUED SIDDHARTH SIDDHARTH SE 83-1352 PAGE 5-3A 7. All gutters and downspouts directed into drvwelis shall be installed to provide for roof runoff. 8. Excess material. if am•, excavated from the area of the building foundation and septic system, not required for backfill and grading, shall be disposed of only at locations approved by the Conservation Administrator. 9. Any fill required. (See General Order #6 in Order of Conditions) shall be of clean sand and contain no material over 12 inches in diameter. 10. A double row of "staked" havbales shall be placed on the revised work limit line prior to construction of the wall. No wort: of any hind shall occur on the wetland side of this line. 11. Any area proposed for removal of vegetation for a period of more than seven days, shall be mulched or otherwise treated to prevent erosion. 12. The deck shall not be closed in without a filing of either a Notice of Intent or a Request for Determination of Applicability. 13. The general contractor shall arrange an on site meeting with the Conservation Administrator prior to the start of any work. 14. A Certificate of Compliance shall not be issued until such time that a recorded Conservation Restriction or a recorded A.N.R. (approval not required) sub -division plan is presented to the Yarmouth Conservation Commission. Such Conservation Restriction or A.N.R. plan shall expressly prohibit the construction of a dwelling upon what is now known as lot J3, Curve Hill Road, South Yarmouth, MA Town of 1'ar•mouth Conservation Commission This "Order" must be signed by a majority of the Conservation Commission On this 5 � � dav of 19 before me personally appeared the above Conservation Commissioners, to me lmown to be the person(s) described herein and who executed the foregoing instrument and acimowledged that he or she executed the same as his or her free act and deed. �f `Notan• Public My Commission Expires The applicant, the owner, any person aggrieved by this "Order", any owner of land abutting the land upon which the proposed work is to be done, or any 10 residents of the city or town in which such land is located, are hereby notified of their right to request the Dept. of Environmental Protection to issue a "Superseding Order", providing the request is made by certified marl or hand delivery to the Department, with the appropriate Bing fee and Fee Transmittal Form as provided in 310 CMR 10.03(7), within ten days of the date of issuance of this Determination. A copy of the request shall at the same time be sent by certified mail or hand delivers to the Conservation Commission and the applicant. Detach on the dotted line and return to the Yarmouth Conservation Commission prior to starting work. ................................................................................................................................................................................ To: Town of Yarmouth Conservation Commission (Issuing authon Please be advised that the "Order of Conditions" for the project at File Number SE 8 3 -13 5 2 has been recorded at the Barnstable County Registry of Deeds and has been noted in the chain of title of the affected property in accordance with General Condition #8 on If recorded land, the instrument number which identifies this transaction is If registered land, the document number which identifies this transaction is Signature (applicant) 5-4A M Y) 10 7 w c m iTi L i e In f — N y L_} C �ko D r _gin o -.trj 7 °' n 47- t CVc A Commonwealth of Massachusetts DEPFi'r' SE 83_1352 RO oy OEM U� 11 city. Town YA R M 0 U T H IJ� Apolicant JAMES PHILLIPOFF Order of Conditions Massachusetts Wetlands Protection Act G.L. c. 131, §40 and the Town of Yarmouth Wetland From TOWN OF YARMOUTH CONSERVATION COf By By law MISSION To James PhillinOff cams (Name of Applicant) (Name of property owner) A.dc,ress 402 Highbank Rd., So. Yarmoutkdress Same T his Oster is issued and clelivered as follows: O by hand delivery to a=.-►icant or representative on (da,=- ) ®X by certified mail. return receipt recuested on n=,-; i P' igg rc-:ei This project is located at Lot 2, Curve Hill Road, South Yarmouth , MA The crocerty is recor::ed at the Re _:stry of B A R N S T A B L E Ecc). 6814 - Pape 283 Czr.;ficate (if revsterec! The Nctice of Intent for this project was filed on _ February 8, 1996 (dote ) The pub;tc hearing was cfcsed on AD_ri 1 4, 1996 (date) Findings The Town of Yarmouth Conservation Commission has revieweo the above -referenced Nonce of intent anc clans arc has ~eid a cublic hearing on the project. Based on the information available to the COMMiSSICN at this time. the COMMISSION has determined that the area on wntcr the crccoseo wor►c is to oe ccne is significant to the tciiowing interests in acccrcar,ce wi;n the ?resucroucns cf Significance set fc, ,n in the regulations for eacn Area Suojec: to Prc:e=on Uneer the Act (cnecx as aczronnatei. Pt:--i;C water succ;v F?ooe control Lard contaming shellfisn L. Private water succ:v Storm damage prevention r' F:sner!es Ground water sucpiy Prevention of pollution fVrPro:ecccn of wildlife had:mot Taal Fiiin- Fie `up;;,,ec S 2 5 0.0 0 • State Share _q 1 17n C::vrTawr S'har a S112,50 (�. = `ee In excess z 4 S2- Tc Felting S;:e S C: :sown ?cr,:,,.. Stare -_i :on � ,lore, the COMMISSION hereby finds that the following conditions are .essary, in accordance with the Performance Standards set forth in the regulations, to protect those inter - .its checked above. The O M M I S S I n �I orders that all work shall be oerformed in accordance with said conditions and with the Notice of intent referenced above- To the extent that the f oi- lowing conditions modify or differ from the plans, specifications or other proposals submitted with the Notice of intent, the conditions shall control. General Conditions 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory meas- ures, shall be deemed cause to revoke or modify this Order. 2. This Order does not grant any property rights or any exclusive privileges: it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicaole federal, state or local statutes, ordinances, by-laws or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Omer unless either of the following apply: (a) the work is a maintenance dredging project as provided for in the Act: or (b) the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance and both that date and the special circumstances warranting the extended time period are set forth in this Order. 5. This Order may be extenaed by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. Any fill used in connection with this project shall be ciean fill, containing no trash, refuse, rubbish or de- bns, including but not limited to lumber, bricks, piaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts of any of toe foregoing. 7. No work shall be undertakenyntil all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department have been completed. 8. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land. the Final Order shall also be noted on the land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. The recording information shall be submitted to the -COMMISSION -on the form at the end of this Order prior to commencement of the work. g. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection, File Number SE 8 3 -13 5 2 10. Where the Department of Environmental Protection is requested to make a dEtermination and to issue a Superseding Order, the Conservation Commission shall be a parry to all agency proceedings and hearings before the Department. 1 1. Upon completion of the work described herein, the applicant shall forthwith request in writing that a Certificate of Compliance be issued stating that the work has been satisfactorily completed. SE 83-1352 TTTT.R DATA SIGNED AND S7RCED BY: CN , TT . ?used Septic Design .4ite Plan for J. .hillipoff for Lot 2 REV. 4 / . 9 / 96 Craig Short, P . E . Curve Hill Rd., So. Yarmouth, MA Robin Wilcox, PLS SPECIAL Q)NDITIONS (use adlIIlticnal paper if necessary) 13. The at�Lcant shall be held responsible to advise the cone actor of all these orde_s of conditions. 14. The Conse_vaticn Officer shall be notifies at least 48 hours pr. cr tc the camI_nc=_rpnt of the proposed work. Tel. # 398-2Z31 ext. 283. 15. These orde--a of conditions shall apply to anv successor in inter =r or successor, in control. 16. Gutters and downspouts directed into drywells shall be installed to provide for roof runoff. 17. Excess material, if any, excavated from the area of the building foundation and septic system, not required for backfill and grading, shall be disposed of only at locations approved by the Conservation Administrator. 18. Any fill required, (See General Order #6 in Order of Conditions) shall be of clean sand and contain no material over 12 inches in diameter. 19. Two rows of silt fence (no hay bales) shall be staked in place as shown on the plan, before any work begins on -the project. '20. This silt fence shall constitute a work limit line. No work of any kind will be permitted on the wetland side of this line. 21.Any area proposed for removal of vegetation for a period of more than seven days, shall be mulched or otherwise treated to prevent erosion. 22.The deck shall not be closed in without a filing of either a.Notice of Intent or a Request for Determination of Applicability. 23.The back yard shall be planted with indigenous ground covers shrubs, trees etc. Lawn will not be allowed. 24.General contractor shall arrange an on site meeting with the Conservation Administrator prior to the start of any work. 25.If the proposed catch basin adjacent to the driveway fails i.e. collapses the applicant shall immediately meet with the Conservation Administrator to discuss design and repairs. 26.The applicart shall be responsible for having a cony of the Orders of Conditions on the job site at all times. Failure to do so could possibly result in a revocation of the Order, or a fine, or both. 27.The Conservation Commission, its agents or assign, shall have the express right of entry upon the property for the purposes of establishing compliance to the conditions stated herein. 28.Upon completion of the project a Certificate of Compliance shall be requested. This Order shall be considered incomplete until the Certificate of Compliance is recorded. 5-3B Conservation Commiss:-n n its Oroer must be signed by a majority of the Conservation Commission. On this 41 14, day of /:r-c� 19 ��' before me personalty appeared Tyr c_ '( C ln, ►1JS Cr1 , to me known to be the person described in and who executed the foregoing instrument and acknowledged that he!she executed the sarne as hhiisrher free act and deed. Notary Public My commission expires The aooat211t, the owner. anv aerSon agC�evee bV this Oraer, any owner of land abutttn4 the Lana U00n wnich the oroncseo worx is to as Gone. or any ten residents or the city or town in wnicn sucn tans is tocatec. are nereov nottfiea of tneir ngnt to request the Debarment of Environmentai Protecton to issue a Sueerseatng Oroer. proviaire the request is mace by cenifiea mail or nano ceuvery to the Deoatzment. with the awmariate filing fee ana Fee Transmittal Form as broviaea in 310 CNIR 10.03M, within ten Gays tram the ante of issuance of tnis Deteiminawn. A ixby of the reauest snail at the same time as sent by cernfiee mail or nano asiivery to the Conservation Commission ana ins acaiicant. Detach on dotiec line ana submit to the CONSERVATION COMM I SS i ON prior to commencement of worx. ............»..................._..........................»........... »....... .........»..»........ ...........---------......................... »............. ..... ............. To TOWN OF YARMOUTH CONSERVATION OMMI-9,C)IJON IssuingAutncrity Please be abvisec that the Oroer of Concit►ons for the prclect at File Number SE 8 3 -13 5 2 has been recorcea at the Registry of BA R N S TA B LE ana has been notea in the chain or title at the atfectec proberty in accordance with General Czneition 8 on t g It recCrcea lava, the instrument number wnicn identities this transaction is It regsterea Lana. the ecc:.ment number wnicn identifies iris transaction is Signature =conc�nt FC-) .- - �)-- S 3 o a✓ �� Gam' �� � �" % � G `""7 �d coG,4;4 16" /-7 Ir � p j_ Gt C.�lu✓f — C�lh hvr� L� j G%� �� � + rl�c� ,0/ria! C 133-3 r Z.1 3 Ll—Ll— jG Sr_—S3 -13s� O "i C O d0 e ® 3 rc �� �o Lk Oise 4atj5,-r- a�2 Law mac% `✓ © Lvx f SI �P OdA-co-7 Is P view_ rU! lG yr O AZ 0,�2Z-Oel i I r I pp A v czi 4 MP �(aC/C �t C� o CJ C eo 4� ` ,.017 00 C !W (rot �� C d Slc "J cor�r �- Ca Yt�rse'C , / SSu' S i JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT, MASSACHUSETTS 02675 (508) 362-1 122 FAX (SO8) 362-1 12S JOHN C. CRENEY Conservation Commission. 1146 Route 28 SouthYarmouth, MA 02664 September 17, 1999 Re: Siddharth Siddharth vs. Conservation Commission Our File No. Y-1705 Gentlemen: You may recall that we raised as a defense in the District Court the fact that the plaintiff had not timely commenced his appeal within the twenty-one day period allowed under our bylaw. The District Court judge denied our motion to dismiss the action on such ground, and a case proceeded to trial. Following trial, we took an appeal to the Appellate Division of the District Courts, and the case was argued before the Appellate Division last July. Enclosed is a copy of the Decision and Order of the Appellate Division dismissing our appeal. In my opinion this dismissal is erroneous, and an appeal to the Appeals Court is warranted. After your review, I would be pleased to have your comments. truly ou , John C. Creney Town Counsel JCC/rl Enc. cc: Robert C. Lawton, Jr. Town Administrator V 4 LR;", IOUTH Ci011-I'SERV[PATION COMMIIISSION SEP 2 TRIAL COURT OF THE COMMONWEALTH APPELLATE DIVISION OF THE DISTRICT COURT SOUTHERN DIVISION SIDDHARTH SIDDHARTH vs. YARMOUTH CONSERVATION COMMISSION APPELLATE DIVISION NO. 1219 In the District Court, Barnstable Division: Justice: Date of Finding or Decision Appealed from Docket No. Date of Entry in the Appellate Division: In the Appellate Division: Justices: Sitting at Wareham Division Date of Argument: Date Opinion Certified: Counsel for Plaintiff: Counsel for Defendant: Wheatley, J. July 6, 1998 9825CV0231 March 26, 1999 Aguiar, P.J.; Crimmins, J.; Welsh, J. July 22, 1999 September 16, 1999 Michael B. Stusse John C. Creney OPINION CRIMMINS, J. This case is before us on an Rule 8 (a) expedited appeal. Dist. / Mun. Cts. R.A.D.A. 8(a). The sole issue raised by this appeal is whether the appeal to the district court was timely, and, if not, whether the untimeliness is a jurisdictional defect requiring the dismissal of the appeal. Section 143-10(b) of the Town of Yarmouth By -Laws governing wetlands provides that any person aggrieved by an order of the Conservation Commission may appeal to the Barnstable District Court within 21 days of the Commission's order. The Order of Condition that is the subject of this appeal was entered on February 5, 1998 and was delivered "in hand" to the applicant on February 11, 1998. This order prohibits plaintiff from building on his lot unless it is combined with an abutting lot owned by the plaintiff. On or about February 20, 1998 plaintiff mistakenly filed a complaint seeking appeal in the Barnstable Superior Court, rather than the Barnstable District Court. The plaintiff filed in Superior Court under the mistaken belief that the court had jurisdiction to review the action of the Yarmouth Conservation Commission, when in fact such orders are reviewable in the Barnstable District Court. Notice of the Superior Court action was served on the defendant "in - hand" on February 24, 1998. The plaintiff learned of his mistake in filing when he was served with the defendant's answer to the Superior Court filing on or about March 3, 1998. On March 6, 1998 the plaintiff filed the identical complaint with the Barnstable District Court. The district court filing was past the 21 day deadline contained within the Town of Yarmouth By-laws. The plaintiff argues that by virtue of filing a complaint in Barnstable Superior Court on February 20, 1998 the requirement of filing the appeal within 21 days was satisfied. -1- 1. A threshold question is whether this appeal is properly before the Appellate Division. Although Section 143-10(B) gives exclusive appellate jurisdiction of appeals from decisions of the Barnstable District Court to the Appellate Division of the Southern District, there is no provision in the by-law or the enabling statute for appeal of interlocutory issues. Rule 64(b), Mass.R.Civ.P. states that report of a case or ruling to the Appellate Division is governed by Rule 5, Dist. / Man. Cts. R.A.D.A. Rule 5 permits a judge to report an interlocutory ruling to the Appellate Division for determination. There is no indication that the judge who made the ruling as to the timeliness of the appeal and declined to dismiss the review proceedings made a voluntary report to the Appellate Division. G.L. c. 231, § 108 permits an interlocutory report of a finding of order if a single justice is of the opinion that it ought to be reviewed by the Appellate Division before any further proceedings in the trial court. Since the judge's order in effect declined to dismiss the matter and allowed the case to proceed to a determination on the merits, the matter is not reviewable as of right until a final judgment is entered by the court. We note that there is no certificate by the trial judge that the matter so affects the merits of the controversy that it should be determined before any further proceedings. Pleasant Travel, Inc. v. Butler, 1983 Mass.App.Div. 41, 43; Perlin & Connors, Civil Procedure in the Massachusetts District Court, Second ed. 1980, 12.21, n. 90. 2. If a review on the merits were in order, we would affirm the ruling that, under the circumstances, the technical non-compliance with the appeal deadline does not warrant dismissal. In Simpson v. Director of the Div. Of Employment Sec., 391 Mass. 403, 404 (1984) the court recognized that "`[m]any older decisions viewed the requirements of the appeal process, as set out in court rules or statutes, as being jurisdictional with the result that the failure to adhere to every requirement called for the dismissal of the appeal regardless of how -2- inconsequential the breach. A more recent view recognizes that a rule of such harshness is not to be countenanced in modern jurisprudence."' Id. at 405 quoting Cape Cod Bank & Trust Co. v. LeTendre, 384 Mass. 481, 484 (1981). Plaintiff's belief that the Superior Court was the proper forum for further appellate review, though incorrect, was certainly an excusable error. See Walker v. Board of Appeals of Harwich, 388 Mass. 42, 45 (1983), wherein it was intimated that Appellate Divisions of the District Courts are not generally the appropriate forum for matters grounded in equity. In Schulte v. Director of Employment Security, 369 Mass. 74 (1975) the court cited an attempt to initiate an appeal seeking judicial review of an administrative decision after the expiration of the time limited by statute or rule as a prime example of a faux pas that was so repugnant to the procedural scheme that it warranted dismissal. Id. at 79. However, the fundamental purpose of the time limitation on bringing an appeal seeking judicial review is to give all interested parties seasonable and prompt notice of intent to seek such review. Here, the purpose of prompt notice was accomplished since the Commission had received actual notice of intent to appeal, albeit from the wrong court. See Cohen v. Board of Registration in Pharmacy, 347 Mass. 96, 98 (1964). The judge below specifically found that this mistake was not an attempt by the plaintiff to seek any type of "tactical advantage." Further, the judge found that the defendant was not prejudiced by the mistake. As such, were this appeal properly before this court, we would affirm the decision of the judge below and remand the case for a hearing on the merits. Appeal Dismissed. -3- commonweaitb of Aag;0CbUWtg 0(ppeltate Zibilion of ;Biotritt Courts j�oudijern Motriet Barnstable, SS SIDDHARTH SIDDHARTH vs. Appellate Division 1219 Case N-o. _....... Trial Court: M District Court Department _ ....................................................................._.. ....... YARMOUTH CONSERVATION COMMISSION Barnstable Division _.__. Docket No..9825CV0231 DECISION AND ORDER This cause came on to and was heard in the Appellate Division for the Sonthern District sitting Appeal at Wareham _ upon�KAK ZXX from the District Court Department, Barnstable Division it is found and decided that the appeal .is not prope.�,y_ ..._,_....,,,..__.. and.__ ...... ......._... _..... ..._._....._.................. _ _ ___........_.._. _ _ __._.._.._..._....... ...................... before the Appellate Division. It is hereby ORDERED: That the Clerk of the District Court Department, Barnstable Division ry entry in said -........... _... ............................_._._.__..... _................................................. _make the following Y APPEAL DISMISSED. case on the docket of said Conrt, namely: ___... ........... .................................. ........ Opinion filed herewith. x1X=xx0PyxxAtt5s$ Stember , Date ..._e 16 ._..__P...........__......_..........._._......_1999 .............. _...._._......._.._......... _...... _......................... ........ esiding Yunice ice ......_...................._............... ....... �ti�ua Antone S. Aguiar, Jr., PresfAing Justice &aZ -'7-Z./ Robert A. Welsh, Jr., Justice Francis T. Crimmins, Jr., Justice This certifies that this is the opinion of the Appellate Division in this cause. -4- Patricia D. Minotti, Clerk YARIMOUTH COMERVATION COMMISSION SEP 2 0 1999 R CE-NED ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID -TECH DRIVE, SUITE C WEST YARMOUTH, MASSACHUSETTS 02673 EDWARD J. SWEENEY, JR. TELEPHONE SO RICHARD P MORSE, JR. MICHAEL 8. STUSSE ( 8) 775-3433 BETSY NEWELL DONNA M. ROSERTSON FAX (508) 790-4778 PAUL R. TARD!F' MATTHEW J. DUPUY CHARLES M. SABATT CHARLES J. ARDITO. PC. 'also admitted in MAINE PLEASE REFER TO FILE NUMBER HAND DELIVERED March 2, 1999 Omer R. Chartrand, Clerk First District Court of Barnstable Main Street Barnstable, MA 02630 RE: Siddharth v. Magnuson et al. Docket No. 9825CV0231 Dear Mr. Chartrand: In accordance with Rule 8A(c), filed herewith are six copies of the Brief of Appellee. I hereby certify that a copy of said brief has been mailed first class mail, postage prepaid upon counsel for the Appellants. Very truly yours " I MI HAEL B. STU MES : lh Enclosures cc: John C. Creney (w/enc.) Siddharth Siddharth (w/enc.) APPELLATE DIVISION DISTRICT COURT DEPARTMENT SOUTHERN DISTRICT BARNSTABLE DISTRICT COURT DOCKET NO. 9825CV0231 Siddharth Siddharth, ) Plaintiff/Appellee, ) V. ) Philip Magnuson et al., ) As They Are Members of ) the Yarmouth Conservation ) Commission, ) Defendants/Appellants. ) A P P E A L BRIEF FOR APPELLEE SIDDHARTH SIDDHARTH MICHAEL B.,STUSSE BBO # 483960 PAUL R. TARDIF BBO # 638746 ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. 25 Mid -Tech Drive West Yarmouth, MA 026754 (508) 775-3433 ARDITO, SWEENEY 3TUSSE,ROBERTSON & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH. MASS 02673 (508)775-3433 ARDITO, SWEENEY 3TUSSE,ROBERTSON & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH, MASS 02673 (508) 775-3433 STATEMENT OF ISSUE Whether the Trial Court properly denied the Defendants' Request to Dismiss the Plaintiff's Complaint for failing to file said Complaint within 21 days after the issuance by the Conservation Commission of the Order of Conditions. STATEMENT OF THE CASE On February 5, 1998, a Modified Order of Conditions relating to the construction of a dwelling by the Plaintiff on his property in Yarmouth, MA was issued by the Town of Yarmouth Conservation Commission. The Plaintiff received notice of this Order on February 11, 1998. The Order contained -a Special Condition which prohibited the Plaintiff from construction on his lot unless it was combined with an abutting lot also owned by the Plaintiff. Nine days later, the Plaintiff appealed the inclusion of this condition by filing a complaint on or about February 20, 1998, in the Barnstable County Superior'Court, which satisfied the requirement that appeals be filed within 21 days of the date of notice of the Order. Notice of this filing in the Superior Court was provided to each Defendant in hand on February 24, 1998. The Defendants had full knowledge of the allegations being asserted by the Plaintiff in this action. The case 2 ARDITO, SWEENEY STUSSE,ROBERTSON & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH, MASS 02673 (508)775-3433 was subsequently dismissed from the Superior Court and reinstated in the District Court, utilizing an identical Complaint, alleging the same bases for an appeal. It was only upon receipt of the Defendant's Answer to the Superior Court Complaint on or about March 3, 1998 that the Plaintiff learned of the mis-filing. The following day, the identical complaint was drafted and signed by undersigned counsel, and was thereafter filed with the District Court on March 6, 1998. The filing of the District Court Complaint was past the 21 day deadline. The Defendants answered the Plaintiff's Complaint and raised as a defense the lack of subject matter jurisdiction for the reason that the Complaint was not filed for more than 21 days after issuance of the Order of the Conservation Commission. A preliminary hearing was held on this issue and on July 6, 1998, the Court, by Judge John C. Wheatley, issued an Order finding that the Plaintiff was not seeking tactical advantage by filing the Complaint first in the Superior Court and then in the District Court, and that the Defendants did not suffer any prejudice as the result of the delay in the filing of the Complaint. Additionally, the Court held that in order to secure the just, speedy and inexpensive determination of this action, the Court would allow the case to remain active and denied the Defendants' request to dismiss the case on those grounds. The Defendants have now timely appealed that 3 ARDITO, SWEENEY STUSSE,ROSERTSON, & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH. MASS 02673 decision. ARGUMENT A. The Court's Ruling Was Properly Entered as a Matter of Judicial Discretion. As indicated above, the appeal was commenced by the Appellee within nine days of receipt of the orders from the Conservation Commission. Notice was affected upon all Appellants on February 24, 1998. The identical Complaint was re -filed in the District Court after it was learned that the District Court, and not the Superior Court, was the proper venue for these actions. As such, all of the Appellants were put on notice of the fact that an appeal had been filed, and the reasons for that appeal. The Appellants' subsequent motion, akin to a Motion to Dismiss, was heard by the District Court and denied based on the fact that no prejudice had come to the Defendants, that the Plaintiff sought no tactical advantage in filing the appeal with the District Court one day after the deadline imposed by the By -Law, and that for the speedy and inexpensive determination of the action, that the case should continue. The Court, when faced with such a determination, is cloaked with a great deal of discretion. See Pierce v. Board of Appeals of Carver, 369 Mass. 804 (1976); School Committee of Holyoke v. Duprey, 8 Mass. App. Ct. 58 (1979); Diluzio v. United Electrical, 391 Mass. 211 (1984); Schulte v. Director of the Div. of Employment Security, 369 Mass. 4 (508) 775-3433 ARDITO, SWEENEY STUSSE,ROBERTSON & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH, MASS 02673 (508) 775-3433 74 (1975); Cullen v. Board of Registration in Pharmacy, 347 Mass. 96 (1964); Twomey v, Board of Appeals of Medford, 7 Mass. App. Ct. 770 (1979). Those cases are unanimous that judicial discretion with regard to inquiry as to whether or not a moving party has been prejudiced is valid. Additionally, the Court acted within its discretion in determining that the Plaintiff had not utilized the 21 days for any particular advantage in the case. In Schulte v. Director of the Div. of Employment Security, ante, 74 (1975), the Supreme Judicial Court reviewed a number of our more recent cases and sought to demonstrate that "a coherent rationale has emerged consonant with a modern view of the functions of litigative procedure. . . . Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. . . . With respect to other slips in the procedure for judicial review, the judge is to consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice. After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether." Id. at 79-80. In the instant case, the Appellant suffered no prejudice whatsoever, especially in light of the fact that 5 ARDITO, SWEENEY STUSSE.ROBERTSON & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH, MASS 02573 all Defendants were put on notice well before the 21 days expired with a mere procedural problem of the Complaint being filed in the improper Court. Again, there is no substantive difference between the Complaint filed in the Superior Court and the Complaint filed in the District Court a few short days later. B. Appellate Procedure from a Decision of the Conservation Commission as Defined in the Town of Yarmouth By -Laws is Misleading. Contributing to the confusion of the place for filing appeals of this kind were both the language of the Town of Yarmouth By -Laws, as well as the nature of the action. Chapter 143 of the Town of Yarmouth By -Laws, Section 143-10 (B) states that an appeal shall be perfected by filing a complaint with the "First Barnstable Division of the Trial Courts of the Commonwealth". This language is confusing in that the proper place for filing the appeal is not specifically recited as the District Court. Additionally, District Courts have no jurisdiction in actions involving equity claims. Based on the fact that the Appellee was seeking a declaratory judgment from the Court, it was logical to file the Complaint in the Superior Court where equity jurisdiction is maintained, rather than in the District Court where a challenge to the jurisdiction could have been made by the Appellant. A (508)775-3433 ARDITO, SWEENEY STUSSE,ROBERTSON & DUPUY, PC ATTORNEYS AT LAW WEST YARMOUTH. MASS 02673 (508) 775-3433 C. Appellant's Position Distinguished Appellant relies upon two cases in support of its position that there is no jurisdiction in the District Court to hear the Plaintiff's Complaint, namely Nissan Motor Corp. v. Commissioner of Revenue, 407 Mass. 153, 157 (1990) and Miller v. Labor Relations Commission, 33 Mass. App. Ct. 404, 407 (1992). They are both distinguishable on their facts. In Nisson, the Plaintiff waited approximately 6 months after a statutory deadline before filing a request for abatement. In Miller, the Plaintiff appealed the decision of the Labor Relations Commission two and one half years after the deadline imposed by a Regulation. Neither case rivals the trivial delay in this case. Second, the Nisson Court recites the rigid rule of dismissal based on statute of limitations jurisprudence. It is generally true that when a remedy is created by statute, the time limit thus created must be followed. However, in this case, no statute is implicated. Rather, the Appellant relies upon the Acts and Resolves of the General Court, which are not printed in the General Laws. As such, Nisson's application is suspect. The Nisson and Miller cases address the general tenure that serious violations of statutes of limitation do not warrant case by case analysis for relieving a party of that filing 7 requirement. However, the Courts of the Commonwealth have carved out exceptions to the mechanical rule in cases including "innocuous" procedural mistakes. See Brown v. Quinn, 406 Mass. 641 n.4 (1989). CONCLUSION For the above reasons, Plaintiff/Appellee prays that the July 6, 1998 Order of the District Court should be affirmed. PLAINTIFF/APPELLEE By Its Attorneys CHAEL TPSSE B O # 48 960 _ PAUL R. TARD BBO # 638746 ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. 25 Mid -Tech Drive West Yarmouth, MA 02675 (508) 775-3433 DATED: March 2, 1999 ARDITO, SWEENEY TUSSE,ROSERTSON & DUPUY, PC ATTORNEYS AT LAW rESTYARMOUTH, MASS 02673 (508)775-3433 0 YARMOUTH CONSERVATION COMMISSION MAR 6 1999 RECEIVED Appellate Division District Court Department Southern District Siddharth Siddharth, Plaintiff V. Philip Magnuson et al, as they are members of the Yarmouth Conservation Commission, Defendants Barnstable District Court No. 9825CV0231 Brief For Appellant Yarmouth Conservation Commission ' John C. Creney Town 'Counsel 86 Willow Street Yarmouth Port, MA 02675 508 362-1122 BBO # 105000 I .X STATEMENT OF ISSUE Whether the Trial Court properly ruled in favor of Siddharth Siddharth after a preliminary hearing on the First Defense raised in the Answer of the Conservation Commission. STATEMENT OF THE CASE This action is an appeal, under sec. 143-10 of the Yarmouth Wetlands Bylaw, from a decision of the Yarmouth Conservation Commission. Section 143-10 of the Yarmouth Wetlands Bylaw authorizes an aggrieved applicant to appeal an order of the Conservation Commission by filing a complaint with the Barnstable District Court within twenty-one days of such order. In this action, an Order of Conditions relating to the construction of a dwelling was made by the Conservation Commission on February 5, 1998 and issued by delivery in hand to the applicant on February 11, 1998. The complaint was filed with Barnstable District Court on March 6, 1998. As the First Defense raised in its answer, the Conservation Commission asserted that the Court lacked subject matter jurisdiction for the reason that the complaint in this action was not filed until more than twenty-one days after issuance of the order of the Conservation Commission. After a preliminary hearing held to consider such First Defense, the Court entered a ruling on July 6, 1998, acknowledging the late commencement of the action, but declining to dismiss the action. N ARGUMENT The argument of the Conservation Commission is a simple one. Siddharth Siddharth filed his appeal after the twenty-one day limit set forth in the Bylaw. As the Supreme Judicial Court stated in Nissan Motor Corp. v. Commissioner of Revenue, 407 Mass. 153, 157 (1990): "It has long been the law of this Commonwealth that, when a remedy is created by statute, and the time within which it may be availed of is one of the prescribed conditions for relief, failure to meet that time limit deprives a judicial body, court or administrative appeals board of jurisdiction to hear the case, Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549, 552, 215 N.E.2d 7911 (1966). The remedy thus becomes unavailable after the statutory deadline. Sullivan v. Jordan, 310 Mass. 12, 17, 36 N.E.2d 387 (1941)." The Appeals Court addressed the same subject in Miller v. Labor Relations Commission, 33 Mass. App. Ct. 404, 407 (1992) in stating: "The central purpose of a statute of limitations is to bar all claims asserted after a certain period of time has elapsed from the date the right accrued. Melnick v. Perwak, 295 Mass. 512, 514, 4 N.E.2d 329 (1936), Greeley v. Zoning Bd. Of Appeals of Framingham, 350 Mass. 549, 551-552, 215 N.E. 2d 791 (1966). See also Black's Law Dictionary 927 (e ed. 1990), Statutes of limitation operate mechanically, in a manner completely unrelated to the merits of a case. 1 Corman, Limitation of Actions Sec. 1.1 (1991)." Because the action was not commenced within the twenty-one day period specified in the Bylaw, the First Defense raised in the answer of the Conservation Commission should have been sustained, and the action should have been dismissed. CONCLUSION For the foregoing reasons, the Conservation Commission suggests that the ruling of July 6, 1998 should be reversed, and the action should be dismissed. Respectfully submitted, Philip Magnuson et al as they are members of The Yarmouth Conservation Commission, Defendants t9 ! 1 �hn C. Creney Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (508) 362-1122 BBO#105000 Dated: February 16, 1999 1�< COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SIDDHARTH SIDDHARTH, ) Plaintiff ) V. ) PHILIP M-AGNUSON, WIILLIANi ) PRINZ, WILLIAM FENTON, LEO ) LaBOSSIERE, GARY ELLIS, ERIK) TOLLEY and EDWIN HOOPES, AS) THEY ARE MEMBERS OF THE ) YARMOUTH CONSERVATION ) CONID&SSION, ) Defendants ) DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825CV0231 NOTICE OF APPEAL In accordance with Appellate Division Appeal Rule 3, the defendant members of the Yarmouth Conservation Commission hereby appeal the ruling of the Court dated July 6, 1998 (a copy of which is attached hereto) denying the defendants' request for dismissal of the action upon the ground that the action was not timely commenced. . Dated: January 13, 1999 Defendants, By their attorney John C. Creney Town Counsel 86 Willow Street Yarmouth Port, Kk 02675 (508) 362-1122 BBO9105000 JAN 1 31990, Certificate Of Service I, John C. Creney, attorney for defendants, hereby certify that I have given notice of the filing of this notice of appeal by mailing a copy thereof by first-class mail, postage pre -paid to Michael B. Stusse, counsel for plaintiff. John C. Creney Dated: January 13, 1999 • lr ' - �� --- I DATE FIL=- i 1Mt J I:+NU.:nUJ �I -rr9ai Court of Massachw- - 3/6/98 4/1/ District Court DepartmE FLaINTIFF Siddharth Siddharth Barnstable District Court PI-AIN71FF Ai .ORNEY Route 6A Michael B. Stusse Barnstable Ma 02630 Ardito, Sweeney, Stusse 25 Mid Tech Drive, Suite C �iWest Yarmouth, Ma. 02673 MONEY DAMAGE AC71ON iT1ME S ANCARGS', r, i Remana &� .. Distrlc: Cour Fiiing -D :uc ''1ic== =.i :uL :iC-=CN. DCCKEi VUMFiCn 9825CV 0231 i DEFENDANT Phillip Magnuson, William Prinz,William Fentou,Leo LaBossiere,Gary Ellis, Erik ,Tolley and Edwin Hoopes as Ehe� are Members of Yarmouth on ervation Commissiou DE=ENDANT Aii ORNEY John C. Creney 86 Willow Street Yarmouthpert, Ma. 02675 :!C-_m SUMMARY—'POL^IT —OTH=3 — .-IME — CIVIL July 6, 1998 ::a z-a Upon the Defendants Application for a Preliminary Rearing in the above entitied Civil Action, I find that the Conservation Commission's order was dated 2/5/98 and that the Complaint was filed on 3/6/98, more than 21 days later. I find uo see' of tactical advantage through any pretense bo Plaintiff's counsel, nor any prejudice to the -Defendant. In order to secure the just, speedy and inezpeasive determ Ta-tiou of this action, I herewith allow the case to remain '-active and deny Defendants request to dismiss. C::: Stusse Creney N Joan C. Wheatley ' J'`�JCJS IX , ��'1 v JAN 12 1999 COMMONWEALTH OF MASSACHUSETTS TRIAL COURT- District Court Department Barnstable, ss. Barnstable Division Civil 4 9825CV023I SIDDHARTH SlDDHARTH ) VS. ) PHILLIP MAGNUSON, et al ) FINDINGS AND RULINGS OF LAW The plaintiff, an owner of land in Yarmouth, has appealed an Order of Conditions of the Yarmouth Conservation Commission which contains a restriction on building on the adjacent lot. This matter was tried in the Barnstable District Court Division of the Trial Court Department on November 23, 1998 on an agreed statement of facts. FINDINGS: On February 8, 1996, James Phillipoff filed with the defendants (the commission) an application for an Order of Conditions on lots 2 and 3 (lots J2 and J3 on Town plans) on Curve Hill Road, South Yarmouth, which lots were owned by him and adjoined conservation land. His filings were made in connection with his intention to build residences on the lots. A commission hearing held on March 7, 1996, was continued to April 4, 1996, at which time, after discussion, the commission issued an Order of Conditions (the order) on lot 2 as shown on Mr. Phillipoff s plan (revised on 4/9/96). The Order was duly recorded at the Barnstable Registry of Deeds. During the discussion, Mr. Phillipoff told the commission that he had combined both lots into one lot and, at the same time, received permission to withdraw his application on lot 3. Thereafter, on October 21, 1996, Mr. Phillipoff, on the allegation that lots 2 and 3 had been combined into one buildable lot, obtained an applicable real estate tax abatement from the Town Board of Assessors. On June 30, 1997, Mr. Phillipoff sold lots 2 and 3 to the plaintiff, and -his wife. The following year, the plaintiff filed an application with the commission to modify the Order to allow the construction of a retaining wall to the rear of the house. As requested, the modified Order was issued on February 5, 1998. However, it contained an additional paragraph to which the plaintiff objects and which has prompted this appeal, namely: "14. A Certificate of Compliance shall not be issued until such time that a recorded Conservation Restriction or a recorded A.N.R. (approval not required) sub -division plan is presented to the Yarmouth Conservation Commission. Such Conservation Restriction or A.N.R. plan shall expressly prohibit the construction of a dwelling upon what is now known as lot J3, Curve Hill Road, South Yarmouth, MA."(paragraph 14) The commission argues that the plaintiff, having had notice of reliance by the Town officials on the statement by the prior owner that he would combine lots 2 and 3 into one lot, is bound by such declaration. Even if the plaintiff, with such knowledge prior to his purchase, would be bound by such an assertion by Mr. Phillipoff, the record does not support such an argument. First, neither the order nor the record at the Registry of Deeds contains any reference to any restriction concerning lot 3. An examination of the minutes of the commission reveals only a statement by Mr. Phillipoff s engineer made on April 4, 1996 that "[Mr. Phillipoff has] combined both lots into one lot ..." Nowhere is there any reference to a commission requirement of merger of the two lots prior to the issuance of the Order of Conditions or Certificate of Compliance. In fact, the March 7, 1996 minutes contain a more clear reliance in reverse, that is, that possibly Mr. Phillipoff's grandfather gave lot 1(J 1), a lot located to the rear of lots 2 and 3 being larger in size than the combined area of lots 2 and 3, to the Town in exchange for an understanding that lots 2 and 3 would be considered buildable lots. Second, any detailed report of conversations of understandings between Mr. Phillipoff and the commission came well after the plaintiff took title to the lots, and cannot, therefore, be the basis of knowledge by the plaintiff prior to his purchase. More basic than the reliance issue, however, is the issue of whether the commission has the power in this case to tie a condition restricting building on lot 3 to the granting of a compliance order concerning lot 2. Local authorities have final power where they are acting pursuant to a by-law which is consistent with the statute but which imposes more stringent control than the minimum Statewide standards set by the Legislature. Hamilton v. Con. Com of Orleans, 12 Mass. App. Ct. 359 (1981).Clearly, the Yarmouth by-law falls within this category. Moreover, they have the prerogative to prohibit construction, if necessary, for the protection of statutory interests. Lovequist v. Con. Com of Dennis, 379 Mass. 7 (1979). However, because the restriction ostensibly prohibits the use to which most of the value of the land is attributed, it could be a confiscatory taking, unless the enforcing of the restriction would advance legitimate State interests. Lucas v. So. Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 798, 112 S.Ct. 2886 (1992); Lopes v. Peabody, 417 Mass. 299 (1994). The plaintiff has the burden of proving that the restriction does not substantially advance the Town's interest in protecting wetlands values in both the buffer zone and the wetlands resources. FTC Homes of Blackstone. Inc. v. Con. Com. of Blackstone, 41 Mass. App. Ct. 681(1996), at 690, fn. 11. In order to prove a negative, the plaintiff can only present the record that existed at the time the restriction was imposed, and ask for the Court's determination. An examination of the record in this case, specifically the minutes for meetings held on March 7, April 4, November 6 and December 4, 1997 and January 15 and February 5, 1998, reveals nothing, other than a reference to lot 3 as being "lower [than lot 2 and closer to the wetland.] It appears that it will require more fill on this lot [3] ..." The imposing of the restriction in paragraph 14, unsupported by any expert testimony relating it to the proposed construction on lot 2, is a determination made by the commission before any application for a building on lot 3 was received and considered, and, as such, exceeds the commission's authority. It is effectively a taking without just compensation, and can not stand. ACCORDINGLY, Special Condition paragraph # 14 in a modified Order of Conditions dated February 5, 1998 issued to Siddharth Siddharth concerning Lot 2, Curve Hill Road, South Yarmouth, MA is stricken, and the Order of Conditions, in its reduced form, is affirmed. PLAINTIFF'S REQUESTS FOR FINDINGS OF FACT: I decline to make any further findings of fact. PLAINTIFF'S REQUESTS FOR RULINGS OF LAW: Deemed waived. DEFENDANT'S REQUESTS FOR FINDINGS OF FACT: None filed. DEFENDANT'S REQUESTS FOR RULINGS OF LAW: None filed. January 7, 1999 71! to oq ': 7CE R .,E­- C� E ur I _VF-]r' R l COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825CV0231 SIDDHARTH SIDDHARTH, ) Plaintiff ) V. ) EXPEDITED APPEAL PHILIP MAGNUSON, WILLIAM ) PRINZ, WILLIAM FENTON, LEO ) LaBOSSIERE, GARY ELLIS, ERIK) TOLLEY and EDWIN HOOPES, AS) THEY ARE MEMBERS OF THE ) YARMOUTH CONSERVATION ) COMMISSION, ) Defendants ) In accordance with Appellate Division Appeal Rule 8A, the defendant members of the Yarmouth Conservation Commission hereby submit an Expedited Appeal upon the following items: 1. Copy of Notice of Appeal attached as Exhibit A. 2. Ruling of the Court dated July 6, 1998 attached as Exhibit B. 3. The First Defense raised in the Defendants' Answer (Exhibit C) asserted that the action had not been commenced within the twenty-one day period allowed for an appeal from a decision of the Conservation Commission. Defendants filed an Application For Preliminary Hearing (Exhibit D) of such First Defense, and the Court held a hearing on July 2, 1998. 4. The Order of Conditions of the Conservation Commission, from which the plaintiff appealed, was dated February 5, 1998, and was issued February 11, 1998. This action was commenced on March 6, 1998. More than twenty-one days elapsed between the issuance of the Order of Conditions and the commencement of this action. 5. Attached to the Answer of Defendants (Exhibit C) is a copy of Chapter 143 of the Yarmouth Bylaws governing Wetlands. Section 143-10(B) thereof provides that any person aggrieved by an order of the Conservation Commission may appeal to this Court within twenty-one days of the Commission's order. 6. In accordance with Appellate Division Appeal Rule 13(d), service of this Expedited Appeal, including all attachments, has been made this day by first-class mail, postage pre -paid upon Michael B. Stusse, counsel for plaintiff, and upon Hon. John Clark Wheatley. 7. I certify that this Expedited Appeal contains all the evidence, facts and other material necessary for consideration of the appeal by the Appellate Division. Defendants, By their attorney John C. Creney Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (508) 362-1122 BBO#105000 Dated: January 26, 1999 Certificate Of Service I, John C. Creney, attorney for defendants, hereby certify that I have given notice of the filing of this notice of expedited appeal by mailing a copy thereof by first-class mail, postage pre -paid to Michael B. Stusse, counsel for plaintiff and Hon. John Clark Wheatley. John C. Creney Dated: January 26, 1999 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SIDDHARTH SIDDHARTH, Plaintiff V. PHILIP MAGNUSON, WILLIAM ) PRINZ, WILLIAM FENTON, LEO ) LaBOSSIERE, GARY ELLIS, ERIK) TOLLEY and EDWIN HOOPES, AS) THEY ARE MEMBERS OF THE ) YARMOUTH CONSERVATION ) COMMISSION, ) Defendants ) DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825CV0231 NOTICE OF APPEAL In accordance with Appellate Division Appeal Rule 3, the defendant members of the Yarmouth Conservation Commission hereby appeal the ruling of the Court dated July 6, 1998 (a copy of which is attached hereto) denying the defendants' request for dismissal of the action upon the ground that the action was not timely commenced. Dated: January 13, 1999 Defendants, By their attorney ohn C. Creney Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (508) 362-1122 BB09105000 D, JAN 1 31999 J Exhibit A Certificate Of Service I, John C. Creney, attorney for defendants, hereby certify that I have given notice of the filing of this notice of appeal by mailing a copy thereof by first-class mail, postage pre -paid to Michael B. Stusse, counsel for plaintiff. AA t -L L John C. Creney Dated: January 13, 1999 Trial Court of Massachu�- District Court Departme• . Barnstable District Court Route 6A Barnstable Ma 02630 DATE FILEO RME STANOAACS RW' _V�rI.,3/6/98 4/1/' 1 PL-\INTIF= Siddharth Siddharth PLAINTIFF ATTORNEY Michael B. Stusse Ardito, Sweeney, Stusse 25 Mid Tech Drive, Suite C West Yarmouth, 11a. 02673 NIONE'' DAMAGE ACTION iTIME STaNCAROSi Remana XX.. District Court Riing C'ir iv �uL• -?;�R:=IS I;� icii. �LBOV� Ne12`.=iJ :iC"=C�: OCCKET NUMEEE 9825CV 0231 i DEFENDANT 'Phillip Magnuson, William Prinz,William Fentou,Leo LaBossiere,Gary Ellis, Erik trolley and Edwin Hoopes as 1they are Mem4rs of Yarmouth o ervatiou omm9ssion OE=cNDANTAM ORNEY John C. Creney 86 Willow Street Yarmouthport, Ma. 02675 ICT_M -- SUMMARY — VIOL_:I T PROCcSS — C;,IME _July 6, 1998 Uac'e _ Upon the Defendants Application for a Preliminary Hearing in the above entitled Civil Action, I find that the Consecration Commission's order was dated 2/5/98 and that the Comp saint was filed on 3/6/98, more than 21 days later. I find no seekiA of tactical advantage through any pretense by Plaintiff's counsel, nor any prejudice to the Defendant. In order to secure the just, speedy and inexpensive determination of this action, I herewith allow the case to remain active and deny Defendants request to dismiss. Stusse Creney John C. Wheatley — �;VILy Exhibit B COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SIDDHARTH SIDDHARTH, Plaintiff V. PHILLIP MAGNUSON, WILLIAM PRINZ, WILLIAM FENTON, LEO LaBOSSIERE, GARY ELLIS, ERIK TOLLEY and EDWIN HOOPES, AS THEY ARE MEMBERS OF THE YARMOUTH CONSERVATION COMMISSION, Defendants DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825C V0231 ANSWER OF DEFENDANTS First Defense This Court is without subject matter jurisdiction. Under sec. 143-10 of the Yarmouth Wetlands By -Law, any person aggrieved by an order of the Conservation Commission may appeal to this Court within twenty-one days of the Commission's order. In this action, the order of the Commission was issued on February 11, 1998. This action was not commenced within twenty-one days thereafter. A copy of the Yarmouth Wetlands By -Law is attached hereto as Exhibit A. Second Defense In response to the respective allegations of the complaint, the Defendants answer as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. Exhibit C 5. The Defendants deny that such conditions are beyond the authority of the Defendants to impose, and admit the remaining alelgations set forth in paragraph 5. 6. The Defendants admit the imposition of the condition as alleged, and deny the remaining allegations set forth in paragraph 6 of the complaint. And further answering, the Defendants say that the imposition of such condition does not deprive the Plaintiff of all economically viable uses of his adjoining property. And further answering, the Defendants say that this Court has no subject matter jurisdiction to determine damages for alleged takings of private property. WHEREFORE the Defendants pray: 1. That this action be dismissed, and for their costs. 2. For such further relief as the Court deems appropriate. Defendants, By their attorney 0111 John C. Creney - V Town Counsel 86 Willow Street Yarmouth Port, MA.02675 (508) 362-1122 BBO# 105000 Dated: March 11, 1998 WETLANDS Chapter 143 WETLANDS § 143-L Purpose. § 143-1 Filing of notice of intent and plans-, public hearing applicability of definitions. § 143-3. Definitions. § 143-4. Time limit for determination of applicability; right of entry. § 143-5. power of Conservation Commission to deny per- mission. § 143-6. Imposition of conditions as alternative to denial. § 143-7. Exception for emergency projects. § 143-8. Notification of property owners. § 143-9. Bond required. § 143-10. Appeals procedure. § 143-11. Violations and penalties. [HISTORY: Adopted by Annual Town Meeting of the Town of Yarmouth 4-7-81 as Art. 16.' Amendments noted where ap- plicable.] GENERAL REFERENCES Subdivision of land —See Ch. 171. Zoning — See Ch.175. Plot plans — See Ch. 218. , Editor's Kota- This chapter was derived from a bylaw adopted by Annnai Town. Meeting 4-10.80 as Art. 27, approved 8-11.80. 14301 6.2.i-88 Exhibit A § 143-1 YARMOUTH CODE § 143-2 § 143-1. Purpose. The purpose of this chapter is to protect the foreshores, wet- lands and groundwater supply of the Town of Yarmouth by controlling activities deemed to have a significant effect on wet- land and water quality values, including but not limited to the following- public or private water supply, groundwater, flood control, erosion control, storm damage, water pollution, fisheries, shellfish, wildlife and recreation. § 143-2. Filing of notice of intent and plans; public hearing applicability of definitions. A. No person shall remove, fill, dredge or alter any bank, freshwater wetland, beach, dune, flat, marsh, bog or swamp or estuary, creels, river, stream, pond, lake or the ocean, or land under or bordering on said waters or wetlands, or any land subject to tidal action, coastal storm flowage or flooding; or construct any causeway, bridge, marina, wharf, dock or other similar structure in, on, over or within one hundred (100) feet of any of the aforesaid, -other than in course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully, meaning fulfilling the requirements of all applicable permits, including Ifassachu- setts GeneraL Laws, Chapter 91, and Corps of Engineers 403 and 404, located structure or facility used in the service of the public and used to provide electric, gas, water, telephone or telecommunication services, without first filing written notices of his intention to remove, fill, dredge, alter or construct by sending a separate letter, by certified mail, to the Yarmouth Conservation Commission and without receiving and comply- ing with an order of conditions and provided that ail appeal periods have lapsed. Such notice of intention shall include such plans as may be necessary to describe such proposed activity and its effect on the environment. The same plans and specifications required to be filed by an applicant under Massachusetts General Laws, Chapter 131, Section 40, will be accepted as fulfilling the requirements of this chapter. [Amended 4-15-87 by A.rL 43] 14302 5 - 2s - as § 143-2 WETLANDS § 143-4 B. Said Commission shall hear any oral presentation under this chapter at the same public hearing rewired to be held under the provisions of said Chapter 131, Section 40, of the Massachusetts General Laws. C. Definitions set forth in said chapter and section and in the regulations issued and as may be amended by the Department of Environmental Quality Engineering, or any successor thereto, are hereby made a part of this chapter with the exception of land subject to flooding, which definition is further amended in the following section. [Amended 4-15-87 by Art 43] D. The Yarmouth Conservation Commission may, from time to time, adopt such additional definitions, regulations and performance standards as it may deem necessary to protect the interests of this chapter. Said definitions shall become effective upon publication following a public hearing. § 143-3. Definitions. [Amended 4-12-84 by Art 48, approved 6- 1-84; 4-15-87 by Art 431 As used in this chapter, the following terms shall have the meanings indicated - LAND SUBJECT TO FLOODING (both bordering and isolated areas) — As per the 310 CbiR 10:5 r-2A and 10:57-2B with an additional one -hundred -foot buffer zone of jurisdiction not described in said regulations. PERSON — Includes any individual, group of individuals, association, partnership, corporation, company, business, organization, trust, estate, administrative agency, public or quasi -public corporation or body or any other legal entity or its legal representative, agents or assigns, the commonwealth or any department and political subdivision thereof. § 143-4. Time limit for determination of applicability; right of entry. A. The Commission may make a determination as to whether or not this chapter applies to a specific situation prior to 14303 5 - zs - 88 § 143-4 YARMOUTH CODE § 143-7 the filing of a written notice of intention under the provisions hereof within twenty-one (21) days of the receipt of a written request, by certified mail or by hand, from any person desiring such determination. B. The Commission, its agents, officers and employees may enter upon the land on which the proposed work is to be done in response to a request for a prior determination or for the purpose of carrying out its duties under this chapter and make or cause to be made such examination or survey as it deems necessary. § 143-5. Power of Conservation Commission to deny per- mission. The Conservation Commission is empowered to deny per- mission for any dredging, filling, altering or constructing on 'subject lands within the town if, in its judgment, such denial is necessary to fulfill the purposes of this chapter on either the subject lands or land within one hundred (100) feet of said subject lands. Due consideration shall be given to possible effects of the proposal on all values to be protected under this chapter and to any demonstrated hardship on the petitioner by reason of denial, as brought forth at the public hearing. § 143-6. Imposition of conditions as alternative to denial The Commission may, as an alternative to denial, impose such written conditions as it deems necessary to contribute to the protection and preservation of subject lands in accordance with the purpose of this chapter. § 143-7. Exception for emergency projects. Notice required by § 143-2 of this chapter shall not apply to emergency projects necessary for the protection of the health or safety of the citizens of Yarmouth and to be performed by an administrative agency of the commonwealth or of the town. An "emergency project" shall mean any project certified to be an 14304 5 - `L5 - 88 § I43-T WETLANDS § 143-8 emergency by the Yarmouth Conservation Commission. In no case shall any filling, dredging, constructing or altering com- mence prior to any emergency certification nor extend beyond the time necessary to abate the emergency. § 143-8. Notification of property owners. Any person filing a notice of intention or requesting a prior determination under this chapter shall, in writing and at the same time, notify all abutters, and the owner of the subject property on which work is proposed or for which prior determination is sought if different from the petitioner, by certified sail or hand delivery (Cont'd on page 14305) 14304.1 s - zs - as § 143-8 WETLANDS § 143-10 or by publication in a local newspaper, of his intention to so alter or request said determination. A list of persons so notified shall be presented to the Yarmouth Conservation Commission with said notice of intention or request for prior determination. Said notification shall include the date, time and place of the hearing. § 143-9. Bond required. The Conservation Commission may require the posting of a bond with surety. running to the municinaiirr and sufficient as to form and surety, in the opinion of the Commission's Counsel, to secure faithful and satisfactory performance of worm required by any final order of conditions, in such sum and upon such con- ditions as the Commission may require. Other evidence of financial responsibility which is satisfactory to the Commission may be accepted in lieu of bonding. Notwithstanding the above, the amount of such bond shall not exceed the estimated cost of the work required or the restoration of affected lands and properties if the work is not performed as required, whichever is greater. Forfeiture of any such bond shall be recoverable at the suit of the municipality in Superior Court. § 143-10. Appeals procedure. A. If the Conservation Commission has failed to hold a hearing within twenty-one (21) days of filing of a notice of intent under this chapter, or if the Commission, after holding such hearing, has failed within twenty-one (21) days therefrom to issue an order, or if the Commission, upon a written request by any person to determine whether this is applicable to any work, fails within twenty-one (21) days to make said determination or where an order does not issue from said Commission. the applicant, any person aggrieved by said Commission's order or failure to act or any ten (10) residents of the Town of Yarmouth may, within twenty-one (21) days of the Commission's order or failure to act, appeal therefrom to the First Barnstable Division of the Trial Courts of the Commonwealth. 14305 6 - - 86 § 143-10 YARMOUTH CODE § 143-11 B. An appeal shall be perfected by filing a complaint with the First Barnstable Division of the Trial Courts of the Commonwealth and by sending a copy thereof, certified mail, return receipt requested, to the Town Clerk and the Conservation Commission of the Town of Yarmouth and, if the appellant is other than the petitioner, to the petitioner, all within twenty-one (21) days of said order or failure to act. The Court shall hear all evidence pertinent to the authority and findings of the Commission and determine the facts and, upon the facts so determined, annul such decision if found to exceed the authority of the Commission or make such other decree as justice and equity may require. The Selectmen are instructed to petition the Great and General Court of the Commonwealth to confer ap- pellate jurisdiction over this chapter to the First Barn- stable Division of the Trial Courts of the Commonwealth in accordance with and to effectuate the purposes and provisions of the chapter as amended; and this chapter, as amended, is accepted and adopted. provided that the Great and General Court of the Commonwealth, by Special Act of the Lea stature. confers such appellate jurisdiction over this chapter upon the First Barnstable Division of the Tr?al Courts of the Commonwealth. § 143-11. Violations and penalties. [-added 4-8-86 by Art. 17, approved 5-8-86] Any person. as defined in § 143-3 of this chapter, who violates or causes to be violated § 143-2A of this chanter shall be punished by a fine of not less than one hundred dollars (S100.) or more than three hundred dollars ($300.) for each violation and. in addition. not less than three hundred. dollars ($300.) for each subsequent violation. This section shall be enforced by any officer having police powers in the Town of Yarmouth. 14306 6 - 2s - as COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825CV0231 SIDDHARTH SIDDHARTH, Plaintiff ) vs. ) APPLICATION FOR PRELIMINARY HEARING PHILLIP MAGNUSON, WILLIAM ) PRINZ, WILLIAM FENTON, ) LEO L aBOSSIERE, GARY ) ELLIS, ERIK TOLLEY and ) EDWIN HOOPES, as they } are Members of the Yarmouth ) Conservation Commission, ) Defendants ) Defendants request that the Court hear and determine before trial the First Defense pleaded in defendants' answer, as provided by Mass. R. Civ. P. 12(d), on the ground that the issue raised by such First Defense may be determined separately from the other issues in the case and that if the issue raised by the First Defense is decided in favor of the defendants, then the action should be dismissed. Dated: June 5, 1998 Defendants, By their attorney John C. Creney Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (508) 362-1122 BBO# 105000 Exhibit D CERTIFICATE OF SERVICE I, John C. C.reney, attorney for defendants, hereby certify that I have given notice of the filing of this application and request that such application be heard on July 2, 1998 by mailing a copy thereof by first-class mail, postage pre -paid on June 5, 1998 to Michael B. Stusse, counsel for plaintiff. 'John- C. Creney �' Bt-CE/W D ,. COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SIDDHARTH SIDDHARTH, Plaintiff V. PHILLIP MAGNUSON, WILLIAM PRINZ, WILLIAM FENTON, LEO LaBOSSIERE, GARY ELLIS, ERIK TOLLEY and EDWIN HOOPES, AS THEY ARE MEMBERS OF THE YARMOUTH CONSERVATION COMMISSION, Defendants DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825CV0231 ANSWER OF DEFENDANTS First Defense This Court is without subject matter jurisdiction. Under sec. 143-10 of the Yarmouth Wetlands By -Law, any person aggrieved by an order of the Conservation Commission may appeal to this Court within twenty-one days of the Commission's order. In this action, the order of the Commission was issued on February 11, 1998. This action was not commenced within twenty-one days thereafter. A copy of the Yarmouth Wetlands By -Law is attached hereto as Exhibit A. Second Defense In response to the respective allegations of the complaint, the Defendants answer as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. Ir 5. The Defendants deny that such conditions are beyond the authority of the Defendants to impose, and admit the remaining alelgations set forth in paragraph 5. 6. The Defendants admit the impositionf of the condition as alleged, and deny the remaining allegations set forth in paragraph 6 of the complaint. And further answering, the Defendants say that the imposition of such condition does not deprive the Plaintiff of all economically viable uses of his adjoining property. And further answering, the Defendants say that this Court has no subject matter jurisdiction to determine damages for alleged takings of private property. WHEREFORE the Defendants pray: 1. That this action be dismissed, and for their costs. 2. For such further relief as the Court deems appropriate. Dated: March 11, 1998 Defendants, By their attorney John C. Creney Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (508) 362-1122 BBO# 105000 WETLANDS Chapter 143 WETLANDS § 143-1. Purpose. § 143-2. F3ing of notice of intent and plans; public hearing; applicability of definitions. § 143-3. Definitions. § 143-4. Time limit for determination of applicability; right of entry. § 143-5. Power of Conservation Commission to deny per. mission. § 143-6. Imposition of conditions as alternative to denial. § 143-7. Exception for emergency projects. § 143-8. Notification of property owners. § 143-9. Bond required. § 143-10. Appeals procedure. § 143-11. Violations and penalties. [HISTORY: Adopted by Annual Town Meeting of the Town of Yarmouth 4-7-81 as Art. 16.1 Amendments noted where ap- plicable.] GENERAL REFERENCES Subdivision of land — See Ch. 171. Zoning — See Ch. 175. Plot plans — See Ch. 218. ' Editor's Note: This chapter was derived from a bylaw adopted by Annual Town Meeting 4.10-60 as Art. 27, approved 8-11.80. 14301 5.25.88 Exhibit A J § 143-1 YARMOUTH CODE § 143-2 § 143-1. Purpose. The purpose of this chapter is to protect the foreshores, wet- lands and groundwater supply of the Town of Yarmouth by controlling activities deemed to have a significant effect on wet- land and water quality values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion control, storm damage, water pollution, fisheries, shellfish, wildlife and recreation. § 143-2. fling of notice of intent and plans; public hearing; applicability of definitions. A. No person shall remove, fill, dredge or alter any bank, freshwater wetland, beach, dune, flat, marsh, bog or swamp or estuary, creek, river, stream, pond, lake or the ocean, or land under or bordering on said waters or wetlands, or any land subject to tidal action, coastal storm flowage or flooding-, or construct any causeway, bridge, marina, wharf, dock or other similar structure in, on, over or within one hundred (100) feet of any of the aforesaid, -other than in course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully, meaning fulfilling the requirements of all applicable permits, including Massachu- setts General Laws, Chapter 91, and Corps of Engineers 403 and 404, located structure or facility used in the service of the public and used to provide electric, gas, water, telephone or telecommunication services, without first filing written notices of his intention to remove, fill, dredge, alter or construct by sending a separate letter, by certified mail, to the Yarmouth Conservation Commission and without receiving and comply- ing with an order of conditions and provided that all appeal periods have lapsed. Such notice of intention shall include such plans as may be necessary to describe such proposed activity and its effect on the environment. The same plans and specifications required to be filed by an applicant under Massachusetts General Laws, Chapter 131, Section 40, will be accepted as fulfilling the requirements of this chapter. [Amended 4-15-87 by Art 43] 14302 5 - 2s - as § 143-2 WETLANDS § 143-4 B. Said Commission shall hear any oral presentation under this chapter at the same public hearing required to be held under the provisions of said Chapter 131, Section 40, of the Massachusetts General Laws. C. Definitions set forth in said chapter and section and in the regulations issued and as may be amended by the Department of Environmental Quality Engineering, or any successor thereto, are hereby made a part of this chapter with the exception of land subject to flooding, which definition is further amended in the following section. [Amended 4-15-87 by Art. 43] D. The Yarmouth Conservation Commission may, from time to time, adopt such additional definitions, regulations and performance standards as it may deem necessary to protect the interests of this chapter. Said definitions shall become effective upon publication following a public hearing. § 143-3. Definitions. [Amended 4-12-84 by Art. 48, approved 6- 1-84; 4-15-87 by Art. 431 As used in this chapter, the following terms shall have the meanings indicated: LAND SUBJECT TO FLOODING (both bordering and isolated areas) — As per the 310 CMR 10:57-2A and 10:57-2B with an additional one -hundred -foot buffer zone of jurisdiction not described in said regulations. PERSON — Includes any individual, group of individuals, association, partnership, corporation, company, business, organization, trust, estate, administrative agency, public or quasi -public corporation or body or any other legal entity or its legal representative, agents or assigns, the commonwealth or any department and political subdivision thereof. § 1434. Time limit for determinationof applicability; right of entry. A. The Commission may make a determination as to whether or not this chapter applies to a specific situation prior to 14303 5 - zs - 88 § 143-4 YARMOUTH CODE § 143-7 the filing of a written notice of intention under the provisions hereof within twenty-one (21) days of the receipt of a written request, by certified mail or by hand, from any person desiring such determination. B. The Commission, its agents, officers and employees may enter upon the land on which the proposed work is to be done in response to a request for a prior determination or for the purpose of carrying out its duties under this chapter and make or cause to be made such examination or survey as it deems necessary. § 143-5. Power of Conservation Commission to deny per- mission. The Conservation Commission is empowered to deny per- mission for any dredging, filling, altering or constructing on subject lands within the town if, in its judgment, such denial is necessary to fulfill the purposes of this chapter on either the subject lands or land within one hundred (100) feet of said subject lands. Due consideration shall be given to possible effects of the proposal on all values to be protected under this chapter and to any demonstrated hardship on the petitioner by reason of denial, as brought forth at the public hearing. § 143-6. Imposition of conditions as alternative to denial. The Commission may, as an alternative to denial, impose such written conditions as it deems necessary to contribute to the protection and preservation of subject lands in accordance with the purpose of this chapter. § 143-7. Exception for emergency projects. Notice required by § 143-2 of this chapter shall not apply to emergency projects necessary for the protection of the health or safety of the citizens of Yarmouth and to be performed by an administrative agency of the commonwealth or of the town. An "emergency project" shall mean any project certified to be an 14304 5-25-88 0 § 143-7 WETLANDS § 143-8 emergency by the Yarmouth Conservation Commission. In no case shall any filling, dredging, constructing or altering com- mence prior to any emergency certification nor extend beyond the time necessary to abate the emergency. § 143-8. Notification of property owners. Any person filing a notice of intention or requesting a prior determination under this chapter shall, in writing and at the same time, notify all abutters, and the owner of the subject property on which work is proposed or for which prior determination is sought if different from the petitioner, by certified mail or hand delivery (Cont'd on page 14305) 14304.1 s - 2s - as § 143-8 WETLANDS § 143-10 or by publication in a local newspaper, of his intention to so alter or request said determination. A list of persons so notified shall be presented to the Yarmouth Conservation Commission with said notice of intention or request for prior determination. Said notification shall include the date, time and place of the hearing. § 143-9. Bond required. The Conservation Commission may require the posting of a bond with surety, running to the municipality and sufficient as to form and surety, in the opinion of the Commission's Counsel, to secure faithful and satisfactory performance of work required by any final order of conditions, in such sum and upon such con- ditions as the Commission may require. Other evidence of financial responsibility which is satisfactory to the Commission may be accepted in lieu of bonding. Notwithstanding the above, the amount of such bond shall not exceed the estimated cost of the work required or the restoration of affected lands and properties if the work is not performed as required, whichever is greater. Forfeiture of any such bond shall be recoverable at the suit of the municipality in Superior Court. § 143-10. Appeals procedure. A. If the Conservation Commission has failed to hold a hearing within twenty-one (21) days of filing of a notice of intent under this chapter, or if the Commission, after holding such hearing, has failed within twenty-one (21) days therefrom to issue an order, or if the Commission, upon a written request by any person to determine whether this is applicable to any work, fails within twenty-one (21) days to make said determination or where an order does not issue from said Commission, the applicant, any person aggrieved by said Commission's order or failure to act or any ten (10) residents of the Town of Yarmouth may, within twenty-one (21) days of the Commission's order or failure to act, appeal therefrom to the First Barnstable Division of the Trial Courts of the Commonwealth. 14305 6 - r:; . 86 § 143-10 YARMOUTH CODE § 143-11 B. An appeal shall be perfected by filing a complaint with the First Barnstable Division of the Trial Courts of the Commonwealth and by sending a copy thereof, certified mail, return receipt requested, to the Town Clerk and the Conservation Commission of the Town of Yarmouth and, if the appellant is other than the petitioner, to the petitioner, all within twenty-one (21) days of said order or, failure to act. The Court shall hear all evidence pertinent to the authority and findings of the Commission and determine the facts and, upon the facts so determined, annul such decision if found to exceed the authority of the Commission or make such other decree as justice and equity may require. The Selectmen are instructed to petition the Great and General Court of the Commonwealth to confer ap- pellate jurisdiction over this chapter to the First Barn- stable Division of the Trial Courts of the Commonwealth in accordance with and to effectuate the purposes and provisions of the chapter as amended; and this chapter, as amended, is accepted and adopted, provided that the Great and General Court of the Commonwealth, by Special Act of the Legislature, confers such appellate jurisdiction over this chapter upon the First Barnstable Division of the Trial Courts of the Commonwealth. § 143-11. Violations and penalties. [Added 4-8-86 by Art. 17, approved 5-8-86] Any person. as defined in § 143-3 of this chapter, who violates or causes to be violated § 143-2A of this chapter shall be punished by a fine of not less than one hundred dollars ($100.) or more than three hundred dollars ($300.) for each violation and, in addition, not less than three hundred dollars ($300.) for each subsequent violation. This section shall be enforced by any officer having police powers in the Town of Yarmouth. 14306 6-25-86 I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SIDDHARTH SIDDHARTH, Plaintiff VS. PHILLIP MAGNUSON, WILLIAM ; PRINZ, WILLIAN FENTON, LEO LaBOSSIERE, GARY ELLIS, ERIK TOLLEY and EDWIN HOOPES, as they are Members of the Yarmouth Conservation Commission, Defendants, DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION NO. 9825CV0231 AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Now comes, Bradford L. Hall who, first being duly sworn, does on oath depose and say as follows: 1. At all material times I have been the Conservation Administrator of the Town of Yarmouth. My duties include the administration of all matters coming before the Conservation Commission. I am familiar with the facts hereinafter set forth. 2. The two abutting parcels of land involved in this action are Lots 2 and 3 situated on Curve Hill Road, South Yarmouth shown on the attached copy of Yarmouth Assessors Map (Exhibit A) as Parcels J2 and J3. 3. On February 8, 1996, the then owner of such lots, one James Phillipoff filed two notices of intent with the Conservation Commission seeking authorization to construct on each lot a single family dwelling. Copies of the first page of each such notice of intent are attached hereto as Exhibits B and C. On March 7, 1996 the Conservation Commission conducted a hearing, the minutes of such hearing being attached hereto as Exhibit D. The Conservation Commission expressed concern for the proximity of the proposed dwellings to the wetlands; suggested reconfigurations of the proposed dwellings; and continued the hearings until April 4, 1996. 4. At the continued hearing of April 4, 1996, the owner's engineer, Craig R. Short, stated to the Conservation Commission that both lots had been combined into one .lot, and that only one single family dwelling would be constructed. Mr. Short requested leave to withdraw the notice of intent covering Lot 3, and the Conservation Commission voted to approve such withdrawal. A copy of the minutes of the meeting of April 4th is attached hereto as Exhibit E. On April 8, 1996, I sent a memorandum to the Department of Environmental Protection concerning such withdrawal. Exhibit F. On April 9, 1996, the engineer, Craig R. Short, filed with the Conservation Commission a revised site plan delineating the changes agreed to at the meeting of April 4th (Exhibit G). Such revised site plan shows a portion of the reserve area of the proposed septic system being located within the perimeter of Lot 3 and it shows Lots 2 and 3 combined into one parcel. On the same day, April 9th, an Order of Conditions was issued authorizing the construction of one single family dwelling on the combined area of Lots 2 and 3. Exhibit H. 5. On May 6, 1996, the Board of Health granted a variance from Board of Health requirements relating to location of a septic system to be located on Lots 2 and 3, a copy of such Board of Health variance being attached as Exhibit 1. 6. On October 21, 1996, James Phillipoff filed an application for abatement of real estate taxes with the Board of Assessors seeking a reduction in the assessed valuation of $96,200.00 on the ground that Lots 2 and 3 had been combined and now comprised only one buildable parcel, a copy of such application for abatement being attached as Exhibit J. The application was granted and the assessed valuation was reduced to $64,700.00. 7. By deed dated June 30, 1997 recorded with Barnstable County Registry of Deeds on July 14, 1997 in Book 10849 Page 306, James Phillipoff conveyed Lots 2 and 3 to Siddharth Siddharth for consideration of $30,000.00. A copy of such deed is attached as Exhibit K. In September of 1997, Siddharth Siddharth commenced construction of the single family dwelling authorized under the Order of Conditions attached as Exhibit H and the variance granted by the Board of Health attached as Exhibit I. 8. On September 26, 1997, Siddharth Siddharth filed a notice of intent with the Conservation Commission seeking authorization to construct an additional single family dwelling to be located upon Lot 3, a copy of the first page of such notice of intent being attached hereto as Exhibit L. Prior to such filing, Mr. Siddharth informally requested my opinion as to his prospect of obtaining authorization to build a second dwelling, and I told him that the previous Order of Conditions had been issued with the understanding that Lots 2 and 3 were to be combined into one buildable parcel. Notwithstanding my opinion, Mr. Siddharth filed a notice of intent seeking authorization to construct, a second dwelling. Mr. Siddharth did not hire the previous engineer, Craig R. Short, but instead hired a different engineer, Stetson Hall. At a hearing before the Conservation Commission on November 6, 1997, the previous combining of the two lots into one buildable parcel was extensively discussed. A copy of the minutes of such meeting is attached as Exhibit M. Also discussed at such meeting was the problem of erosion onto the wetlands caused by the construction of Mr. Siddharth upon Lot 2. Mr. Siddharth withdrew his notice of intent seeking authorization to construct a second dwelling upon Lot 3. 9. In December of 1997, Mr. Siddharth hired another engineer, Edward E. Kelley, to design a concrete block retaining wall intended to prevent the continuing erosion of fill into wetlands resulting from the construction of the authorized dwelling upon Lot 2. Hearings concerning such erosion were conducted before the Conservation Commission on December 4, 1997, January - 15, 1998 and February 5, 1998, copies of the minutes of such meetings being attached as Exhibits N, O and P. At the meeting of February 5, 1998, the Conservation Commission voted to amend the previously granted Order of Conditions (Exhibit H) so as to (i)' authorize construction of the concrete block retaining wall in order to prevent continuing erosion; and (ii) require that a conservation restriction be recorded covering Lot 3, or alternatively that a new approval not required plan be recorded with the Registry of Deeds showing Lots 2 and 3 combined into one parcel. 10. Any examination of records of the Conservation Commission would have shown that the Order of Conditions granted on April 9, 1996 was granted on the premise that Lots 2 and 3 were to be combined into one parcel. 11. The above facts are recited on my personal knowledge. Executed as a sealed instrument this 3rd day of June 1998. r { " .- 1,14 ' B adford L. Hall Conservation Administrator COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. Subscribed and sworn to before me My commission expires: June 8, 2001 June 3, 1998 c_ John C. Creney Notary Public 963 000 90 964 ' 2.5 , 90Ntf fONfO 90N91 JipyBe Ae 'oXy9 90Y¢7 9OX86 t0�y': 19 .Ws" 1 '4r f OPQ 0 9oso Pbo �oX61,o µ2-'r90* t AT Co LA�9To�e 12 tiI . � p, 81G3 r B .J9 i .40 F4f , • I Js \ J2 8 .47. JT 996 - JI 'h 35 _ sift ' a L54 1 - l^,JIO Q•4 0 ttNO p J30 s4 ' - 34 811,16 J.22 . 42 :13 G•AIHl3f�'M� b � ,35 J26 N 8tN4 . Jt2 TOWN OfQ. YARMOAJTH - w ONSERVATION J2jpt t JI;. ff 81 D8 i 'L '22S � � 18 1 T a4 &-) to Q N 69 G���� J2tnC MARSH „ e 'a L (l� '25 . �TOs `h .60 ,Z\, .YVf� ' 66 ' ' ! \ iV! o n�ILI T9 ,Z�y, `�_ JIgfi7 8103 $0 :so1 � r J2 6 \ 2 0 MARSH 1 b 69 84 t r- . C �_. nM 2 2t J AT a d^s j2to I /.� 523 .3S ag U JZS�� b I 0R41NA0 .42 i MONTEREY J7Q'�� J'•�O, LANEPRIVATE �' / / I AV 49 JZOT 7 J2 .�v MARSH �3 h � .Z) 30 J 32 AG � ( \.je •a _ 7, • J?s 3 , AL J19 v� ttx31 N C. in V 1 UPLAND \\� jj5 7 WETLAND4 0 4-1 TOTAL • 1.97 y` aq ' L \i+ IRN33 �l XI Jam, >• '14p .t7 y J — / QPARK 23 ' X Q� ` ED �l 7a Exhibit A � e 1c1� `� t S Qt'ttcaLY ' UPP�R�� \ G ,n� ��� .34 P / CONSERVATION COMMISSION MINUTES APRIL 4, 1996 PRESENT: Mike Hayes, Evelyn McNealy, Phil Magnuson, Bill Prinz (Chair), Bill Fenton and Leo LaBossiere. ABSENT: Bud Nugent STAFF: Brad Hall, Administrator Sandi Clark, Secretary THE FOLLOWING HEARINGS WERE ALL CONTINUED FROM MARCH 7, 1996: James Phillipoff, Lot 2 & 3, Curve Hill Rd., So. Yarmouth, MA N.O.I. Brad Hall stated that for the record he does private work for the Land Surveyor that signed Mr. Phillipoff's plan. If any objection he will gladly sit out but Mr. Hall does not vote on any hearings. Mr. Craig Short who is the representative for this project would like to withdraw without prejudice Lot 3. Phil Magnuson made a motion to approve the request to withdraw without prejudice Lot 3 SE 83-1353. Evelyn McNealy seconded. James Phillipoff, Lot 2 - SE 83-1352 continued: ,fmt iO Set back is at 31 ft. from the road and the septic is further avi 'Phis enables us to keep 100 ft. away from the wetland. They are proposing to put a 10 x 18 ft. deck off the back and a 4 x 8 balcony off the master bedroom. A walk out basement is planned. A work limit line of 36 ft. off the wetland edge will be established. Commission asked questions about grading in the back yard, gutters and downspouts and over all liked the new plan. Brad Hall asked about the catch basin at the swale and if calculations for storms have been done. Mr. Short stated he has oversized it and used the largest pit. Brad asked if we had a thunderstorm that left 2 inches of rain in an hour would the catch basin handle it. Mr. Short will put together some calculations. Roof drains will go into dry wells. Minutes of Meeting April 4, 1996 Page 2 From the audience several people asked Mr. Short various questions about the project. Mrs. Weinberger submitted a Petition with 21 signatures to the Commission opposing the project. Mr. Prinz read the Petition into the minutes. Evelyn McNealy made a Motion to approve the project with the following conditions: # 13;15;16;17 (double row of silt fence);18;20;21;22;23 and 24. Back yard will not be lawn - can be planted with indigenous species also the Conservation Administrator will meet with the construction foreman prior to any work beginning. If the catch basin fails a new catch basin be installed at the discreation and under the supervision of the Conservation Administrator and the new catch basin take into consideration more adequate drainage calculations. Four Commissioners in favor: Mike Hayes, Evelyn McNealy, Bill Prinz, and Leo LaBossiere Three Commissioners abstained: Phil Magnuson, Bill Fenton and Bud Nugent. These Commissioners were not present during the original hearing. Leo LaBossiere stated he would be standing out for the following hearings for the Town of Yarmouth as he is a summer employee for the Town. This was a decision of Town Counsel. The following six hearings were opened and closed at the March 21, 1996 hearing without any testimony. We did not have a quorum. TOWN OF YARMOUTH, DPW, BASS HOLE PARKING LOT, YARMOUTHPORT, MA N.O.I. To realign and improve the drainage at the above address. Representing the project was Ritchie Anctil from the Town Engineering Dept. and Phil Whitten from the Park Dept. Green receipts received. A letter from Sheldon Segerman an abutter to the project was read into the minutes in favor of the project. Mr. Anctil explained the project and the proposed plans. The boat ramp road will be removed and create a grass swale. The purpose of the swale will be to capture the road run off before it gets to the wetland. Photos were presented of the existing conditions. A 25 x 25 ft. apron is also proposed by the existing catch basin. Questions were asked from the Commission on how the swale will work, any digging proposed, stone trench, gates will be maintained. Evelyn Mcnealy made a Motion to approve with the following conditions: #16,22,23 and 24. Phil Magnuson seconded. Unanimous. YARMOUTH CONSERVATION COMMISSION f NOTICE a Notice is hereby given for the request of a Modified Order of Conditions by'� Siddharth Siddharth 283 Weymouth Street Holbrook, MA 02343 f To construct a retaining wall at Lot 2, Curve Hill Road, South Yarmouth, MA in accordance with the plans filed with the Yarmouth Conservation Commission. Hearing on the above will be held in the Yarmouth Town Hall, Route 28, South Yarmouth, MA on Thursday, March 16, 2000 @ 7:35 p.m. PHILIP E. MAGNUSON, CHAIRMAN CONSERVATION COMMISSION TOWN OF YARMOUTH YARMOUTH CONSERVATION COMMISSION NOTICE �U q Notice is hereby given of the intent of: James Phillipoff " m 402 Highbank Road sue: w South Yarmouth, MA 02664 Dr � To construct a single family house, deck, drivetra ' sxptic system and all work appurtenant thereto at Lot Curve Hill Road, South Yarmouth, MA in accordance with the plans filed with the Yarmouth Conservation Commission. Hearing on the above will be held in the Yarmouth Town Hall, Route 28, South Yarmouth, MA on Thursday, March 7, 1996 @ 7:30 p.m. WILLIAM PRINZ CHAIRMAN CONSERVATION COMMISSION TOWN OF YARMOUTH Commonwealth of Massachusetts Executive Office of Environmental Affairs Department of - FEB 2 6 1996 Environmental Protection l . Southeast Regional Office - 4y Wllllam F. Weld Trudy Coxe Governor secretwy Argeo Paul Celluccl David B. Struhs LL Governor C.m�r RE: NOTIFICATION OF WETLANDS PROTECTION ACT FILE NUMBER YARMOUTH DATE: February 21. 1996 (city town) The Department of Environmental Protection has received a Notice of Intent file in accordance with the Wetlands Protection Act (M.G.L. c.131, S40): Applicant: James Phillipoff Owner: Same Address: 402 Hicrhbank Rd. Address: S. Yarmouth. MA 02664 Project Location: Curve Hill Rd.. L. 2 IF CHECKED, THE FOLLOWING; ITEMS) APPLY TO THIS NOTICE OF INTENT: A. X This project has been assigned the following file #: SE 83-1352 Although a file # is being issued, please note the following: ISSUANCE OF A FILE NUMBER INDICATES ONLY COMPLETENESS OF SUBMITTAL, NO APPROVAL OF APPLICATION B. No File # will be assigned to this project until the following missing information is sent to this office, to meet the minimum submittal requirements in accordance with the Wetlands Protection Regulations at 310 CMR 10.00: ( ) copy(s) of a completed Notice of Intent (Form 3 or Form 4 of Sect. 10.99, whichever is applicable) and a copy of the Fee Transmittal Form, with a copy ofthe check for the State's share of the Notice of Intent filing fee. ( ) copy(s) of plans, calculations, and other documentation necessary to completely describe the proposed work and mitigating measures to protect resource areas. ( ) proof of abutter notification: MGL c.472 of the Acts of 1993. ( ) copy(s) of plans showing compliance with Title 5 of the State Environmental Code, 310 CMR 15.00. ( ) Proof that a copy of your Notice of Intent has been mailed or hand delivered to the Natural Heritage and Endangered Species Program. 20 Riverside Drive a Lakeville, Massachusetts 02347 a FAX (508) 947-6557 a Telephone (508) 946-2700 0 Printed on Recycled Paper C. Other Regulatory Jurisdiction ( ) Application has been forwarded to Waterways Regulation Program to determine if a Chapter 91 License is required. ( ) Applicant is advised to forward a copy of the Notice of Intent to the borps of Engineers for review (call 1-800-362-4367 for information). D. 401 Water Quality Certification (314 CMR 9.00) may be required. See below for further details: ( ) Based upon the information submitted in and with your Notice of Intent a separate 401 Water Quality Certification application form is not required. Provided that the project meets the following conditions, summarized below from 310 CMR 9.03 and 9.04, and the conditions under the Corps of Engineers Programmatic General Permit for Massachusetts (PGP), the project qualifies for 401 Certification as certified under the PGP: a) activities are conducted in compliance with MGL c.131, 540 (the Wetlands Protection Act) and the Final Order of Conditions permitting the activities does not result in the loss of more than 5,000 square feet cumulatively of bordering and isolated vegetated wetlands and Land Under Water and/or the dredging of more than 100 cubic yards of Land Under Water; b) the Final Order of Conditions requires at least 1:1 replacement of Bordering Vegetated Wetlands pursuant to 310 CMR 10.55(4)(b); c) The project is not listed in 314 CMR 9.04(1) through (11) including: discharge of dredged or fill material to any Outstanding Resource Water; any part of a subdivision unless deed restricted, so long as the discharge is not to an Outstanding Resource Water see 314 CMR 9.04(3); activities exempt from MGL c.131, S40 (except for normal maintenance and improvement of land in agricultural or aquacultural use); discharge of dredged or fill material to an isolated vegetated wetland identified as rare and endangered species habitat; loss of any salt marsh; activities subject to an individual 404 permit. Information and a copy of the PGP can be obtained from the Corps of Engineers at 1-800-362-4367. If impacts to resource areas or project size increases beyond that described in the Notice of Intent or there are discrepancies therein, you must notify the Department and request a determination that the criteria of 310 CMR 9.03 have been met before the activity may begin. ( ) Before the activity described in the Notice of Intent can commence, you must obtain a Water Quality Certification from this Regional Office. Please complete the enclosed 401 Water Quality Certification application form and file it with this Regional office for review. ( ) Your project involves dredging of greater than 100 cubic yards Land Under Water. Please complete the enclosed 401 Water Quality Certification application form and submit to the Department of Environmental Protection,.Waterways Regulation Program, One Winter Street, Boston, MA 02108. Call the Waterways Regulation Program at 292-5695 with any questions. For more information please contact: Wetlands Division @ (508) 946-2800 cc: Conservation Commission ( ) U.S. Army Corps of Engineers ( ) Owner (X) Rep.: Craig Short. PE ( ) DEP-Waterways P.O. Box 781 ( ) Mass. Div. of Marine Fisheries Dennis. MA 02638 of 3 NOTTCE 01= DEPARZ ETU OF T� FVIt:U.' ;� ilk rz1L PjZCrI'DCI'ION DIVISION OF WEI`LAE"DS AND 1,5=1AYS NOTICE OF INMU (NOI) APPLICANT: Name TAMF4 PT-TTT LIPO.FF Street 409 Highbank Road City/Town South Yarmouth State MA Zip Code 02664 Phone Nun1bar 508-398-3958 Name JAMES PHILLIPOFF Street 409 Highbank Road City/Town — South Yarmouth State MA Zip Code.02664 Project Location: Street/Lot Number Lot 2 Curve Hill Road City/T0;,,rn South Yarmouth DEP FILE NUMER (if available) NOI FILING FEE Total NOI Filing Fee: $ 250.00 State Share of Filing Fee: $ 112.50 (1/2 Of fee in excess of $25.00) City/Tc,,,-n Share of Filing Fee: $ 137.50 INSTRUCTIONS Total Disputed Fee: $ (as determined in Notice of Insufficient Fee letter from conservation commission) State Share of Fee: $ (1/2 of total disputed fee) City/Town Snare of Fee: $ (1/2 of total disputed fee) 1. Send this Fee T--a.*�tttal for:, with a c.ec- or money ordez, payable to t:e C .:..r� ;eal tZ of Massac.t'. `:uses, to the DE cv LoEox at: —=.ent of E-,vi_rc: -ental Protection Box 4062 Bcstcn, 1•r. 02211 2. At'..ach a cccv cf this form to the No; ? ce of Intent suhr tted to t`:e lccsl C::—se--raticn C..^ ;z.issicn. 3. Attach, a cc , cf t'-.is fc-- i ate: a cc= cf tt:e D- c.' e6- tO eac: o_` the 2.ct_ce c� Interz fc=s to t.e DEP regional office. 11/20/92 CV O O � a o Y N act zyse 0 0, Pm Q LLz' FON N m LL U. 0Q< MOOM J = ■ .-i N RJ N Qr CO r u ca Er rm a ti CO r. O O O S. I � OH38 6Etl OM t W'D! LIfi.LNI :8fit ,. �t co °C 5 ao TA O O 0 � o o * * * * * * * Q0= z�ss 0p�� zLL0 W- F 41 � m �F IL iF iF * * ik * * iF it * it * iF iF iF iF 1F * it iF iF * * * * M * iF * * * * LL * u.00 a�� c JZH" O =QD o 0 CO) Lij = < a�i a CM j it N N (~ U -d t-- O x w 0 a0 CL— _ ru N Ir ru CO ❑ E rm .a a 0 s CO D D D OtAA 8fl-00A1 BZLY LI(11NI UAfit o. I I I I PILING I1:I•; CALCULATION WOKKSHEET CATEGORY 1 $55 PER ACTIVITY A. Existing House/residential lot (addition, deck, garage,pool, shed,or DRIVEWAY) B. Site Preparation (removal of vegetation, exca- vation grading where home construction isn't proposed under this NOI) C. Control of nuisance vegetation by removal, herb- icides, etc. within a Resource Area PER LOT pursuant to 310 CHR 10.53(4) D. Resource Area Improvement pursuant to 310 CMR 10.53 (4) other than 1C above E. SEPTIC SYSTEMS or any part thereof/repairs, replacement, UPGRADING F. Monitoring Wells/well TOTAL CATEGORY 1 ACTIVITIES CATEGORY 2 $250 PCR.ACTIVItY plants, roadways/driveways NOT subject to 310 CMR 10.53(3e) SHALL NOT BE SUBJECT TO ADDITIONAL FEES if said activities are reviewed under a SINGLE NOI $ No. C. Construction of EACH ROADWAY/DRIVEWAY within the _ Buffer zone or Coastal Floodzone NOT reviewable under 310 CMR 10.53 ('3e) and NOT associated with a SF A. EACH NEW single family house (SFH) INCLUDING site preparation, retention/detention basins, utilities, SEPTIC SYSTEM, roadway/driveway other than those pursuant to 310 CMR 10.53(3e) If reviewed under a SINGLE NOI B. Parking lot/ ANY size C. Beach Nourishment D. Coastal Activities pursuant to 310 CMR 10.24 _ (7a-c) including 7a-Electric Generation Facilities, 7b-Public Utilities, 7c-Coastal Limited Projects including REPAIR/MAINTENANCE of EXISTING piers, buildings culverts, etc. D. HAZARDOUS WASTE CLEANUP (except as noted in category 4) TOTAL CATEGORY 3 ACTIVITIES CATEGORY 4 $725 PER ACTIVITY A. EACH WETLAND FILLING/CROSSING LIMITED PROJECT ACCESS ROADWAY/DRIVEWAY under 310 CMR 10.53 (3e) associated with COMMERCIAL, INDUSTRIAL, INSTITU- TIONAL DEVELOPMENT OR RESIDENTIAL SUBDIVISION CONSTRUCTION. (*see category 29 for SFH driveways') B. Flood Control'Structures (construction, REPAIR, and/or modification) C. LANDFILLS -public h private D. SAND h GRAVEL OPERATIONS E. NEW railroad lines or EXTENSIONS of EXISTING lines F. Control of NUISANCE VEGETATION under 310CHR 10.53(4) other than on a SFH lot C. BRIDGES (construction, reconstruction, expansion, maintenance) ASSOCIATED with a SFH lot H. Raising or lowering WATER LEVELS I. ALTERATION OF RESOURCE AREA h diversion of water associated with HAZARDOUS WASTE CLEANUP, non. mosquito control projects, or for ANY OTHER PURPOSE NOT EXPRESSLY IDENTIFIED ELSEWHERE IN THIS FEE SCHEDULE C. LIMITED PROJF_CT ACTIVITIES pursuant to 310 CMR J. DREDGING ACTIVITIES not associated with a NEW 10.53 (a-d) AND 310 CMR 10.53 (f-1) per footprint dock, pier or other structure described in category 5 F. NEW agricultural/equacultural projects — TOTAL CATEGORY 4 ACTIVITIES C. EACH WETLAND DRIVEWAY CROSSING associated with a SFH pursuant to 310 CMR 10.53(3e) H. ANY point source discharce I. ANY OTHER ACTIVITY not eesertbed in catecories 1,3,4 & 5 TOTAL CATEGORY 2 ACTIVITIES CArECCRY 3 $525 PER ACTIVITY A. SITE PREPARATION for ANY development other than for a SN INCLUDING removal of vegetation, excavation & grading when actual construction is NOT proposed under this NOI 250. 3. CONSTRUCTION OF EACH BUILDINiC within commercial, _ incustr:al, institutional, or apartment.•conao/ t3wnhUUSe type of development, ANY PART of which is ;n a 3UFFE3 ZO':E or iESOURCE AREA. associated activities: site precarnt:on retent! detention basin cl-istruction.3eot:c 3vstcn9. pdrxLng lots. ut.!.t.es, point source 1:3cnflr,es, 3eweragc t e9t�tnt CATEGORY 5 $2 PER LINEAR FOOT; TOTAL FEET NOT TO BE LESS THAN $50 NOR MORE THAN $1000 A. Construction, reconstruction, RE?4:R, or replace- ment of DOCKS, PiE=S, RI ETmENrE, DIKES, or other engineering structures on COASTAL or INLAND RESOURCE AREAS including the placement of RIP -RAP or ot:.er material on coastal or inlana resource areas TOTAL CATEGORY 5 ACTIVITIES TOTAL FILING FEE CALCULATED $ 250.00 PERSON CALCULATING Frr SCHEDULE ;aria; game) Craig R. Short. P.E. ADDRESS P.O. Box 781 /Dennis , MTA 02638 TELEPHONE NUMBER 508-385-6530 12/22/95 SIONArURE 310 CMR 10.99 raww" PMIPM-A"Mi Form 3 FEB 81996 E C E I W L Commonwealth of. Massachusetts DUP File No. (10 be pmrA*J by DEP) City/fo,m YARMOUTH Applicant James Phillipoff Notice of Intent Under the Massachusetts Wetlands Protection Act, G.L. the Town of Yarmouth Wetland Bylaw, and Application for a Department of the Army Part I: General information 1. Location: street Address Curve Hill Road! Smith Yarmnnth Lot Number Lot 2 Department of Defense United states of America C. 131, 540 Permit 2. Project: Type II Description Construction of single family dwelling with deck driveway, se-ptic system and appurtenances 3. Registry: county Barnstablecurrent Book 6814 Page 283 certificate (if Registered Land) 4. Applicant James Phillipoff Tel. 508.398-3958 . Address 402 Highbank Road South Yarmouth MA 02664 5. Property owner James Phillipoff Tel. 508_398-3958 , Address 402 Highbank Road South Y rmout-b. MA 02661, 6. Representative Craig R. Short, P.E. Tel. 508-385-6530 Address P.O. Box 781, Dennis MA 02638 7. a. Have the Conservation commission and the Department's Regional.office each been sent, by certified mail or hand deliver, 2 copies of completed Notice of Intent, with supporting plans and documents? Yes ® No ❑ b. Has the fee been submitted? Yes 0 No ❑ C. Total Filing Fee submitted $ 250.00 d. City/Town share of Filing Fee $ 137.50 state share of Filing Fee $ 112.50 (sent to City/Town) (W of fee in excess of 525, sent t— o D�— e. Is a brief statement attached indicating how the applicant calculated the fee? n Yes ❑ No 3-1 Effective 11/20/92 8. slave all obtainable permit , variances and approvals required by local by-law been obtained? Yes ® No ❑ obtained Applied eor: Not Applied For: Board of Health Building 9. Is any portion of the site subject to a Wetlands strict* n order pursuant to G.L. c. 131, S40A or G.L. c. 130, S105? Yes No LJ 10. List all plans and supporting documents submitted with this Notice of Intent. Identifying Number/Letter Title, Date Proposed Septic Design and Site Plan for James Phillipoff A. at Lot 2 Curve Hill Road, South Yarmouth dated 12/22/95 Sheet 1 of 1. B. USGS Locus Map 11. check those resource areas within which work is proposed: (a) ® Buffer Zone (b) Inland: ❑ Bank* ❑ Bordering vegetated Wetland* ❑ Land under water Body & Waterway* (c) Coastal: ❑ Land Under the ocean* ❑ Coastal Beach* ❑ Barrier Beach* ❑ Rocky Intertidal shore* ❑ Land under salt Pond* ❑ Fish Run* Land subject to Flooding ❑ Bordering ❑ Isolated ❑ Designated Port Area* ❑ Coastal Dune ❑ coastal Bank ❑ salt Marsh* ❑ Land Containing shellfish* *Likely to involve U.S. Army Corps of Engineers concurrent jurisdiction. See General Instructions for Completing Notice of Intent. 3-2 12. 18 the projoct within estimated habitat which is indicated on the most recent Estimated Habitat Map of state -Listed Rare Wetlands Wildlife (if any) published by the Natural'Heritage and Endangered Species Program?. YES [ ] No [ Xj Date printed on the Estimated Habitat Map' NO MAP AVAILABLE [ j (if any) February 23A 1995 If yes, have you sent a copy of the Notice of Intent to the Natural Heritage and Endangered species Program via the U.S. Postal Service by certified or priority mail (or otherwise sent it in a manner that guarantees delivery within two days) no later than the date of the filing of this Notice of Intent with the conservation commission and the DEP regional office? YES [ ] No [ If yes please attach evidence of timely mailing or other delivery to the; Natural Heritage and Endangered species Program. Part ii: Site Description indicate which of the following information has been provided (on a plan, in narrative description or, calculations) to clearly, completely and accurately " describe existing site conditions. Identifying Number/Letter (of plan, narrative or calculations) ; Natural Features A. Soils Vegetation ' A. Topography A. open water bodies includin ( ' g ponds and la):es ) A. Flowingwater bodies(including (including streams and rivers) N/A A. A. 0 Public and private surface water and ground water supplies on or within 100 feet of site Maximum annual ground water elevations with dates and location of test Boundaries of resource areas checked under Part;l, item 11 above other Man-made Features: Structures (such as buildings, piers, towers and headwalls) Drainage and flood control facilities;ate the site and immediately off the site, including culverts and open channels (with inverts), dams and dikes Subsurface sewage disposal systems Underground utilities 3-3 Roadways and parking areas A. Property boundaries, eaDoments and rights -of -way Other Part III: Work Description Indicate which of the following information has been provided (on a plan, in narrative description or -calculations) to clearly, completely and accurately - describe work proposed within each of the resource areas checked in Part I, item 11 above. Identifying Number/Letter (of plan, narrative or calculations) Planview and Cross Section of: A. Structures(such as buildings, piers, towers and headwalls) A. A. Drainage and flood control facilities, including culverts and open channels(with inverts), dams and dikes subsurface sewage disposal systems & underground utilities Filling, dredging and excavating, indicating volume and composition of material Compensatory storage areas, where required in accordance with Part III, section 10.57(4) of the regulations. wildlife habitat restoration or replicaticn areas -- other Point Source Discharge Description of characteristics of discharge from point source (both closed and open channel), when point of discharge falls within resource area checked under Part I, item 11 above, as supported by standard engineering calculations, data and plans, including but not limited to the following: 1. Delineation of the drainage area contributing to the point of discharge; 2. Pre -and post -devet opment peak run off from the drainage area, at the point of discharge, for at least the 10-year and 100-year frequency storm; 3. Pre- and post -development rate of infittration contributing to the resource area checked under Part I, item 11 above; 4. Estimated water quatity characteristics of pre- and post -development run-off at the point of discharge. 3-4 Part IV: Mitigating hlcasures ?. Clearly cu;oletely rM accurately describe, with reference to supporting plans and calculations where necessary: (a) All measures and designs proposed to meet the performance standards set forth under each resource area specified in Part II or Part III of the regulations; or (b) Why the presumptions set forth under each resource area specified in Part 11 or Part III of the regulations do not apply. r ❑ Coastal ❑ Inland ❑ Coastal ❑ Inland Resource Area Type: N/A Resource Area Type: N/A Identifying number:or letter of support documents identifying number or letter of support documents �, 3-5 0 coastal Resource Area Type: I r•ienti.fying number or 0 Inland letter of support N/A (documents jr 2. Clearly, completely and accurately describe, with reference to supporting plans and calculations where necessary: (a) all measures and designs to regulate work within the Buffer Zone so as to ensure that said work does not alter an area specified in Part 1, Section 10.02(1)(a) of these regulations; or (b) if work in the Buffer Zone will alter such an area, all measures and designs proposed to meet the perfonran;e standards established for the adjacent resource area, specified in Part it or Part III of these regulations. O ® Coastal Resource Area Type Bordered Inland By 100—Feet Discretionary Zone: Identifying number or letter of support documents 1, Proposed sanitary leaching area will be 91' more A. or less and reserve area will be 85' more or less from wetland 2. Bottom of leaching area will be 12' above wetland A. 3. Staked hay bales will be provided 15' off rear of A,' dwelling to stop erosion during construction 4. Roof runoff will be piped to drywells at both A. ends of dwelling. 3-6 :'art V: Additional Information for a Dopartment of the Army Permit 1. COE Application No. (to be provided by COE) 2. (Name of waterway) 3. Names and addresses of property owners adjoining your property: See Attached List 4. Document other project alternatives (i.e., other locations and/or construction methods, particularly those that would eliminate the discharge of dredged or fill material into waters or wetlands). 5. 8�" x 11" drawings in planview and cross+ -section, showing the resource, area and the proposed 'activity within the resource area. Drawings must be to scale and should be clear enough for photocopying. certification is required from the Division of water Pollution Control before: the Federal permit can be issued. certification may be obtained by contacting the Division of water Pollution control, 1 winter street, Boston, Massachusetts 02108. Where the activity will take place within the area under the Massachusetts approved coastal Zone Management Program, the applicant certifies that his proposed activity complies with and will be conducted in a manner that.is. .:onsistent with the approved program. information provided will be used in evaluating the application for a,permit and is made a matter of public record through issuance of a public notice. Disclosure of this information is voluntary; however, if necessary information. - is not provided, the application cannot be processed nor can a permit be issued. I hereby certify under the pains and penalties of perjury that the foregoing Notice of Intent and accompanying plans, documents and supporting data are true and comhrlete, to_,,the nest of my knowledge. T)Pramhar 92, 1995 signs a of Applicant James Phillipoff Date December 22. 1995 signatur of Applicant's Representative Date Craig R. Short, P.E. FORM "Exception to ENG Form 4345 approved by HGUSACE, 6 May 19821, NED 100 (TEST) 1 MAY 82 "This document contains a joint Department of the Army and State of Massachusetts application for a permit to obtain permission to perform activities in United States Waters. The Office of Management and Budget(OMB) has approved those questions required by the US Army Corps of Engineers. OMB Number 0702-0036 and expiration date of 30 September 1983 applies". This statement will be set in S point type. 3-7 �. �� ��7;1 Yy(�.,\,i�..\`•r� 'I 1( 1 .�, p-"l\ (,u.� ''_ �V •,•\`.`11 '� �,: ,\.\ .J/4` \� .�• U� u,� - .• I pv'y_:'�. r � r�/ \` d• '`- .I 1 `�J� � ���N `ap��=�. � ,u,,,(�y�o' (\ .� 1 �---- p' u ('_L.( -v.c `+ -• i^` f(•!a �,�''t( il� l ^ a F / `� •oj-�'' .Oo \ �u v t"'.rt•� ~ + PLxl °if`Ir'f��<�ir,i ''��•� ;:^,ys P .� _ ail _- � 8•� O� y M 1'��, lFlax ,x-''?�. \• I Pond' :�,t'w i " � � � � � 2s O s 19.E �e .�� � .�/ � _! �• `�¢ `� \..�-"S'.� _�./•`a . � t% p` � \`fir` 8 . i p Q \'� � Qp p . 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BM B . •:/t� ,qlo Towe _'• __ j LOCUS MAP • • •• Eli -r -` r ;j v Lot 2, Curve Hill Road/South Yarmouth Nest D nnis For James Phillip off ka ^ �/ `�• � � 28 Scale: 1 : 25, 000 v!'�,•h In / C� �' �) •'y I . I• � ` • �\/\ EXHIBIT B . `p� ♦� ( . �" Q I 'f. _— Jai � {I " /I� i i r Notification to Abutters Under the Massachusetts Wetlands Protection Act In accordance with the second paragraph of Massachusetts General Laws Chapter 131, section 40, you are hereby notified of the following. A. The name of the applicant is JAMES PHILLZPOFF B. The applicant has filed a Notice of Intent with the Conservation commission for the municipality of YARMOUTH seeking permission to remove, fill, dredge or alter an Area subject to Protec- tion Under the Wetlands Protection Act (General Laws Chapter 131, section 40). C. The address of the lot where the activity is proposed is Lot 2 Curve Hill Road, South Yarmouth D. Copies of the Notice of Intent may be examined'at YARMOTTH TO[lN HALL between the hours of 8:30 and 4:00 on the following days of the week: —MONDAY - FRIDAY For more information, call: ( 508 ) 398 2231 Check one: This is the applicant ❑, representative ❑, or other ® (specify): YARMOTIMLLMSMATION COMMISSION E. Copies of the Notice of intent may be obtained from either (check one) the applicant ❑, or the applicants representative 0, by Calling this telephone number ( 508 ) 385 - 6530 between the hours of 8:00- and _4'30 on the following days of the week: . DAY -..FRIDAY F• information regarding the date, time, and place of the public hearing may be obtained from vauMnITT rnrTeFnv^TTON COMMISSION by calling this telephone number ( 508 ) 398 _ 2231 between the hours of 8:00 and 4:30 on the following days of the week: MONDAY — FRIDAY check One: This is the applicant ❑, representative ❑, or other El (specify): NOTE: Notice of the public hearing, including its date, time, and place, will be Published at least five (5) days in advance in the Register (name of newspaper) NOTas Notice of the public hearing, including its data, time, and place, will be posted in the city or Town Hall not less than forty-eight (48) hours in advance. NOTE: You also way contact your local Conservation Commission or the nearest Depart - Went of Environmental Protection Regional office for wore informatir about this application or the wetlands Protection Act. To contact DEP, call: Central Regions 508-792-7650 Northeast Region: 617-935-2160 * southeast Region: 508-946-2800 Western Region: 413-784-1100 TENTATIVE MEETING DATE: March 07 1996 Meeting begins at 7 30 P*T AM 80/12 ABUTTERS OF JAMES PHILIPOFF Lot 2, Curve Hill Road So Yarmouth, MA File 3614-02/CRS#12-675 AM 80/12 JAMES PHILLIPOFF 943 Waterside Ln Bradenton, FL 34209 AM 80/J1 TOWN OF YARMOUTH 1146 Main Street So Yarmouth, MA 02664 80/J9 EDMUND LOVETT 8 Curve Hill Rd So Yarmouth, MA 02664 80/J10 JOSEPH WEINBERGER 9 Four Seasons Dr So Yarmouth, MA 02664 AM 80/J232 PAULA S CALLAHAN 80/J11 PETER G PAPADOPOLOS 7 Curve Hill Rd 248 W 74th St/#8 So Yarmouth, MA 02664 New York, NY 10023-2111 AM 80/395 MARILYN M MCLOUGHLIN 80/J12 ANDREW H CRIVELLI, TRS 300 S Central Ave H C-24 c/o Edward B Schneyer Hartsdale, NY 10530 21 Four Seasons Dr So Yarmouth, MA 02664 AM 80/J193 JAMES F REYNOLDS 15 Curve Hill Rd So Yarmouth, MA 02664 80/J194 HENRY E SCHMIDT 19 Curve Hill Rd So Yarmouth, MA 02664 80/B98 PALMER DAVENPORT TR 80/K1 20 North Main St So Yarmouth, MA 02664 80/J229 VERNE W CAREY 35 Curve Hill Rd So Yarmouth, MA .02664 80/J196 WALTER W CURLEY TRS Curley Family Trust 43 Curve Hill Rd So Yarmouth, MA 02664 P.O. BOX 781 DENNIS, MASSAC CRAIG R.• SHORT, P.E. AFFIDAVIT OF SERVICE Under the Massachusetts Wetland Protection Act Telephone (508)385-6530 Fax (508)398-3063 I, Craig R. Short;'hereby certify under the pains and penalties of perjury that on Fehrdary 7 1996 'I gave notification to abutters in compliance with the second paragraph of Massachusetts General Laws, Chapter 131, Section 40, and DEp Guide to Abutter Notification dated April 8, 1994, in connection with the following matter: A Notice of Intent filed under the Massachusetts Wetlands Protection Act by James PhilliPOff with the Yarmouth Conservation Commission on February 7 1996 for property located at Lot 2, Curve Hill Road, South Yarmouth where the work is proposed. The form of the notification, and a list of the abutters to whom it was given and their addresses, are attached to this Affidavit of Service. Pebruary n7 1906 Craig R. ort, P.E. Date V •u Jh � s ti cot" hlr moo t o 7 J9 .40 �t Ja v q JIf4 .32 .47 p SZ99 it 111 Z` L94 t?18 tip ' J! J10 `11 .34 .44 i\ `0 J 30 JIt f ty11L � .13 ti TOWN OF .34 !ARMOUTN h o tZ9 `I �` �Z s ON9ERVATION J27 11 1 a J13 .40 0 �e n t 0� 4\4", isti I n ( 114 N ]I \ O\ ;L '. �3 IT AWL / H n. 1 C/" 13n >z�y ' MARSH In JIG T 9S >Z` • 3AO ZZO % JY1L I b7 78 1f e 84 i O 4��� 417 �Z Asa 4 ,.1 1— 7 I AL ! � SO 7-MONTEREY LANE ►R1vAn in ��uL / ao �► �i7 J20f MAR �+ / J209 `c ~ 0] LLJJ �� J .31 `A&L J1a It UPLAND ■1.73 9 y 7 YYETLAIJD■ .24 �`" TOTAL • 1.97 II \? ti 'ISO 14 XI J31 S.3 ►f0 .9.34 7 A6 _ .■a ❑ .PARK XTQ 7 c•AII .!! Ta ,fJ' 23 Q,11O 309 174 Ft1Cf�E NI 7 `� RMERLY UPPER 9 V N �s as o (� X 61 �► m s•1 1 \ 306 .40o r H`G%AB '3,, C OPIDI a0 - 0 « ' a ♦ t .40 \ TJ3 7IJ2 71J1 fix, 963,000 PHILBROOK pC),.8� ENGINEERING " FIELD REPORT/WORKSHEET Project No: _ beewaSTRUT heat --No: efi= W" coo NNN 000 moo HP• PS1'lO S N NHS _ J 11-J RETAINING WALL: 1-617-767-2455 394-8819 Description: Siddharth Siddharth Location: Lot No. 2, Curve Hill Road, South Yarmouth, MA Soil Data Data from Test Hole: Medium Sand Data from other Source: Cape Cod Atlas Data from Direct Observation: 8 DEC 1997 USCS = SP (Medium) AREA class = A Specifics: Br(allow) 2,500 lb/pq ft w/ 20%-ITowable increases; Ftg > 110 Pressures: Active = .25 coef. (Ac) Passive = -250 lb/sq ft/ft depth Friction = .40 coef- (FE) or lb/sq ft Density (satT = _120_ lb/cu ft ( s) Design Considerations Requirement - - - - - - - - - - - - - - - - - - - - - - - - - - - -- -- - - #1. Settling (Vertical Thrust) Br(allow) x 1.5(W/A) #2. Overturning (Moment Resistive) M(r) x 2(M(o)), #3 . Sliding (Lateral Thrust) W (Fc) >= 1.5 (T) #4. Back Drainage (Filter Cloth) Open Seams @ Blocks #5. Height: <=1010 or <=510 w/ step Equivalent Fluid Method #6. Joints - Exposed 6 Durable Open Seams @ Blocks #7. Safety (Para. 827.2 SBC) Min Height Handrail 31611 (42 in.) Provide Curb Stops Materials Concrete Strength - Etc = `3,000 PSI Reinforcement - None, Mass Blocks (310 square x 410 long) Friction = .20 concrete sliding coef. (Ff) Active Soil Pressure - (Ac) x ( s) = 30 lb/sq ft (.25 x 120) Additional. -------------------------- Considerations Unbalanced fill heights: Transects A thru F transect A B C D Top Bank 89.7 89.5 89.5 89.0 Toe Bank 80.7 79.6 77.7 77.4 ------------------------------------ ft 9.0 9.9 11.8 11.6 E F 87.3 85.6 77.2 78.3 -------------- 10.1 7.3 # Tiers 4 5 5 5 4 3 Set Batter = 1 to 4 (7-1/2" horiz to 30" vert) per block tier Setbacks of wall = Block (34-1/2" ) + step (1-1/211) + (16" ) @ 5th roar ft 4.8 6.1 6.1 6.1 4.8 : 4.1 Water table height above footer base = NA ft MAXIMUM WALL HEIGHT of 5 BLOCK TIER less EMBEDMENT = 111011 P82-FRW-7 APHILBROOK b ENGINEERING IFIELD REPO RT/WORKSH EET, Project No: ,07 BEACN XMW Sheet No: ofIc _ RETAINING WALL: Lot No. 2, Curve Hill Road, South Yarmouth, MA, STEPPED BACK WALL - 4 BLOCK MASS TIER (1010" max height) SETTLING: Type -------------- Wt (lb) Len (ft) ------------------------------ PosM NegM Soil Gradation Med Sand 1500 3.3 5000 Base Block Concrete 1080 0.0 0 Middle Block Concrete 1080 0.6 -675 Middle Block Concrete 1080 1.3 -1350 Top Block Concrete --------------------------------------------- 1080 1.9 -2025 Vert Wt - 4320 Net Mom 950 ft-lb eccen - 2.6 in. Limit 1/6 width = 5.8 in. OK Soil Pres - (N/AI +/- (MIS) _ (4320/2.88) +/- (950/3.45) Soil Pres = 1,500 +/- 275 = 1,775 psf Max & 1,225 psf Min Allow Soil Pres 3,000 psf SF = 1.7 OR OVERTURNING: Type Wt.(lb) Len (ft) OM Soil Gradation --------------------------------- Med Sand 1500 3.3 --------RM-- 5000 Base Block Concrete 1080 1.4 1555 Middle Block Concrete 1080 2.1 2230 Middle Block Concrete 1080 2.7 2905 Top Block Concrete 1080 3.3 3580 --------------------------------------------- 5000 10271 ft-lb Restoring/Overturning Moment SF = 2.1 OR SOIL SLIDING: Type Wt ------------------------------------ (lb) Soil Gradation Med Sand 1500 ------------------ ---- Total Active Force = ---------- 1500 lb Type Fc Wt ----------------------- (lb) ------------ Base Block Concrete .40 1080 Middle Block Concrete 1080 Middle Block Concrete 1080 Top Block Concrete 1080 ------------------------------------ Vert Wt = 4320 Friction Resistance - 1728 lb Sliding Resistance SF = 1.2 NG Increase sliding resistance by embedding base block 1'6" in order to gain passive resistance of 275 lb/ft depth.* Note - filter fabric will also be placed from toe upward. Soil Sliding Resistance SF = 1.5 OK v CONCRETE SLIDING: Type Wt (lb) ---------------------------- Soil Gradation Med Sand -------- 94 OF MA,cyG Total Active Force - 94 lb' ���ytN T.VARNUM PHI LBRQOK H Type Fc Wt ------------------------------------ (lb) MECICAL No.:30690 Top Block Concretej' 0.20 1080 A E ------------------------------------ Vert Wt = 1080 l /QNAL Friction Resistance = 216 lb Concrete Sliding Resistance SF - 2.3 OR Z M M41-4vw I )99 8 P82-FRW-7 1 PHILBROOK ENGINEERING - ` FIELD REPORTMORKSHEET Project No: ,tip i i RETAINING WALL: 1-617-767-2455 394-8819 Description: Siddharth Siddharth ------------ Location: Lot No. 2, Curve Hill Road, South Yarmouth, MA Soil Data Data from Test Hole: Medium Sand Data from other Source: Cape Cod Atlas Data from Direct Observation: 8 DEC 1997 USCS = SP (Medium) AREA class = A Specifics: Br(allow) = 21,500 lb/sq ft w/ 20%=owable increases; Ftg > 110 Pressures: Active = .25 coef. (Ac) Passive = 250 lb/sq ft/ft depth Friction = .40 coed (F) or lb/sq ft Density (satT = _120� lb/cu ft ( s) Design Considerations Requirement ------------------------------•-- #1. Settling (Vertical Thrust) Br(allow) x 1.5(W/A) #2. Overturning (Moment Resistive) M(r) >= 2(M(o))" #3 . Sliding (Lateral Thrust) W (Fc) >= 1.5(T). #4. Back Drainage (Filter Cloth) Open Seams @ Blocks #5. Height: <=1010 or <=510 w/ step Equivalent Fluid Method #6. Joints - Exposed & Durable Open Seams @ Blocks #7. Safety (Para. 827.2 SBC) Min Height Handrail 316" (42 in.) Provide Curb Stops Materials Concrete Strength - f'c = 3,000 PSI Reinforcement - None, Mass Blocks (310 square x 410 long) Friction = .20 concrete sliding coef. (Ff) Active Soil Pressure - (Ac) x ( s) = 30_ lb/sq ft (.25 x 120) _ Additional Considerations -------------------------- Unbalanced fill heights: transect A B Transects A thtu F C D E F Top Bank 89.7 89.5 89.5 89.0 87.3 85.6 Toe Bank ------------------------------------------------------- 80.7 79.6 .77.7 77.4 77.2 78.3 ft 9.0 9.9 11.8 11.6 10.1 7.3 # Tiers 4 5 5 5 4 3 Set Batter = 1 to 4 (7-1/2" horiz to 30" vert) per block tier Setbacks of wall = Block (34-1/2" ) + step (7-1/211) + (16" ) @ 5th row ft 4.8 6.1 6.1 6.1 4.8 . 4.1 Water table height above footer base = NA ft MAXIMUM WALL HEIGHT of 5 BLOCK TIER less EMBEDMENT = 1110" P82-FRW-7 PHILBROOK ENGINEERING (FIELD REPO RTIWORKSHEET I Project No:07 coo NNN SSS NNN 000 RETAINING WALL: Lot No. 2, Curve Hill Road, South Yarmouth, MA. ssss�sasaasss�ss: STEPPED BACK WALL - 4 BLOCK MASS TIER (1010" max height) SETTLING: Type -------------- Wt (lb) Len (ft) ------------------------------ PosM NegM Soil Gradation Med Sand 1500 3.3 5000 Base Block Concrete 1080 0.0 0 Middle Block Concrete 1080 0.6 -675 Middle Block Concrete 1080 1.3 -1350 Top Block Concrete --------------------------------------------- 1080 1.9 -2025 Vert Wt - 4320 Net Mom 950 ft-lb eccen = 2.6 in. Limit 1/6 width = 5.8 in. OK Soil Pres = (N/A) +/- (M/S) _ (4320/2.88) +/- (950/3.45) Soil Pres = 1,500 +/- 275 = 1,775 psf Max & 1,225 psf Min Allow Soil Pres = 3,000 psf SF = 1.7 OK OVERTURNING: Type Wt (lb). Len (ft) OM RM Soil Gradation --------------------------------------------- Med Sand 1500 3.3 5000 Base Block Concrete 1080 1.4 1555 Middle Block Concrete 1080 2.1 2230 Middle Block Concrete 1080 2.7 2905 Top Block Concrete --------------------------------------------- 1080 3.3 3580 5000 10271 ft-lb Restoring/Overturning Moment SF = 2.1 OK SOIL SLIDING: Type Wt (lb) ------------------------------------ Soil Gradation Med Sand 1500 ------------------------------------ Total Active Force = 1500 lb Type Fc Wt ----------------------- (lb) ------------ Base Block Concrete .40 1080 Middle Block Concrete 1080 Middle Block Concrete 1080 Top Block Concrete ------------------------------------ 1080 Vert Wt = 4320 Friction Resistance 1728 lb Sliding Resistance SF = 1.2 NG Increase sliding resistance by embedding base block 1'6" in order to gain passive resistance of 275 lb/ft depth.' Note - filter fabric will also be placed from toe upward. Soil Sliding Resistance SF = 1.5 OK r ci CONCRETE SLIDING: Type Wt (lb) ------------------------------------ 94 OF Mq'p�c -+y� Soil Gradation Med Sand Total Active Force = 94 lb T.VARNU K g PHILBROO Type Fc Wt ------------------------------------ (lb) CI MECHANICAL No. 30690 Top Block Concrete' 0.20 ------------------------------------I 1080 q G�@ Vert Wt = 1080 / IONAI E� Friction Resistance = 216 lb Concrete Sliding Resistance SF = 2.3 OR Z4 3z4NVA1X t 199 8 P82-FRW-7 S TC Pe.-4Av S/DDAA-yw- SJDDR-R,T}/— I IF Ow of 44SS9l N EDWARD y E t y H o. 26100 _ C►STE�``� '►���'��L I.f�No� Atj ' I � 0001 45 I n Lo7- # 2- o; YARMOUTH CONSERVATION COMMISSION - I ON DEC 3 0 1997 _DECEIVED AN /o %% — — r ' NJ 74LZ' -N A. aall wl V r /a0.Co '-O7- A j Bt�/el/ M.9�,rL &ZIay, TAc BoLT' ,6,/098= /oo, oc., m LoT A6/ CEirrI FIED PLOT PLAN LOCATION SCALE .�.��:.3�....... DATE S�7�TZL /1g7 PLAN REFERENCE .9S 5'A,6w v ...................................... I CERTIFY THAT THE �•?77'�!�„���!'!!T)b•L SI-IOW14 ON THIS PLAN IS LOCATED ON THE GROUNC AS SHOWN HEREON AND THAT IT CONFORMS TO THE SETBACK REQUIREMENTS OF THE TOWN OF .WHEN CONSTRUCTEC DATE REGISTERED LAND SUR`. Of FxdposLrb MA-,u Smog LATzna >zsTn')-oila,�& UALL Ltrr 2 , CtjVi)L 11 I LL_ R'0410r SOuT'-, il-�A 6 266H Now— S-r-� SAt 8uac-a- 16 T3omrTp_"') ("Pi cot_ 3 77eYZ . o-PJ T► rn s . rs •� ) 9 3.31 Or fZ �5u ri �i�re�sv W 4t L I' 6" 1:KP0SED T I LTE-n, f-tJtE Lt-na- 2u•J -0vv- Cta,na 'd WOR►� -rTZp XJSEZ? - B (T-vl-7 b-L_ I?uyrcca u EAIM st-P Ir(SCE Q3.3' LAID �;° •' mar R�2 W QLL i WKIL LIMIT r)-r ntTcrL w�Mc L� 11�Z_ e OF Mgrs9c uT zo)-l€ b T. VA?NUM � ' PHILBROOK MECHANICAL No.30690 .� R �� P82-FRW-7 SSIONAL I tU0 Y( 3o DEL 199a rL1q� rj a0 b R G cp m Q' 7v 11 b 11 �' Tl 7D a - J