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HomeMy WebLinkAboutchapter 91 5.9.23Commonwealth of Massachusetts Executive Office of Energy & Environmental Affairs L01 Department of Environmental Protection Southeast Regional Office • 20 Riverside Drive, Lakeville MA 02347.508-946-2700 Maura T. Healey Rebecca L. Tepper Governor Secretary Kimberley Driscoll Bonnie Heiple Lieutenant Governor Commissioner MAY 0 8 2023 Thomas and Lisa Dwyer c/o Shorefront Consulting Attn: Mark Burgess 290 Center Street Dennis Port, MA 02639 RE: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Waterways License Application No. 22-WWO1-0066, License No. WWO1-0000109 Thomas and Lisa Dwyer, Dinahs Pond, 160 Mayflower Terrace, Yarmouth Dear Sir or Madam, The Department of Environmental Protection hereby issues the above -referenced Waterways License, enclosed, authorizing you to perform certain activities pursuant to M.G.L. c. 91, the Public Waterfront Act and its regulations 310 CMR 9.00. Anchange in use or alteration of any structure or fill not authorized by this license may render this license void. This License is not final until all administrative appeal periods from this License have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. The appeal period is for twenty-one (21) days. No work shall be undertaken until the License has become final and 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 RECORDING OF THE LICENSE This License must be recorded at the Registry of Deeds or, if registered land, with the Land Registration Office within sixty (60) days from the date of license issuance. In the case of recorded land, the License shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the project is located. In the case of the registered land, the License shall be noted on the Land Court Certificate of Title of the owner of the land upon which the project is located. Failure to record this license within sixtv (60) days of the date of issuance will render this license void Dursuant to 310 Cyr=13 I�;� Upon recording the License and Plan, you must notify the Department by accessing your Authorization record at https:Heplace.eea.mass.gov/citizenaccess and entering the recording information. Instructions for entering recording information may be found at: https://www.mass.gov/doc/eplace-waterways- recording-information-amendment/download. Failure to notify the Department of the recording of this License is a violation of 310 CMR 9.00. This information is available in alternate format. Please contact Melixza Esenyie at 617-626-1282. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep Printed on Recycled Paper ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Page 2 Waterways License Application No. 22-WWO1-0066, License No. WWO1-0000109 Thomas and Lisa Dwyer, Dinahs Pond,160 Mayflower Terrace, Yarmouth REQUEST CERTIFICATE OF COMPLIANCE Pursuant to 310 CMR 9.19, once the proposed project is completed you must file a Request for a Certificate of Compliance form, BRP WWO5, within sixty (60) days of completion but in no event later than five (5) years from the License's issuance date. The license for any project for which such a request is not filed and certificate issued may be revoked pursuant to 310 CMR 9.26. NOTICE OF APPEAL RIGHTS Who has the ri hg t to appeal? The following persons shall have the right to an adjudicatory hearing concerning this decision by the Department to grant or deny a license or permit, in accordance with 310 CMR 9.17(1): (a) an applicant who has demonstrated property rights in the lands in question, or which is a public agency; (b) any person aggrieved by the decision of the Department to grant a license or permit who has submitted written comments within the public comment period; (c) ten (10) residents of the Commonwealth who, pursuant to M.G.L. c. 30A, § 10A, have submitted comments within the public comment period with at least 5 of the 10 residents residing in the municipality(s) in which the license or permitted activity is located. The appeal shall clearly and specifically state the facts and grounds for the appeal and the relief sought, and each appealing resident shall file an affidavit stating the intent to be part of the group and to be represented by its authorized representative; (d) the municipal official in the affected municipality who has submitted written comments within the public comment period; and (e) CZM, for any project identified in 310 CMR 9.13(2) (a) for CZM participation or, in an Ocean Sanctuary, if it has filed a notice of participation within the public comment period. How can I request an adjudicatory hearing? A person requesting an adjudicatory hearing must submit a "Notice of Claim" to the Department, with a copy of the MassDEP Transmittal Form and including the detail specified below, within twenty-one (21) days of the date of issuance of this decision. The MassDEP Fee Transmittal Form is available at the following website: https://www.mass.gov/doc/adiudicatory-hearing-fee-transmittal-form/download. The Notice of Claim must be made in writing and sent by certified mail or hand delivery to: MassDEP Office of Appeals and Dispute Resolution Case Administrator 100 Cambridge Street, Suite 900 Boston, MA 02114 A copy of the complete Notice of Claim must be sent at the same time by certified mail or hand delivery to: (1) the applicant, (2) the municipal official of the city or town where the project is located, and (3) the issuing office of the MassDEP, which in this case is located at: MassDEP Waterways Regulation Program 20 Riverside Drive Lakeville, MA 02347 The MassDEP Fee Transmittal Form and a valid check payable to the Commonwealth of Massachusetts in the amount of one hundred dollars ($100) must be mailed to: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Page 3 Waterways License Application No. 22-WWO1-0066, License No. WWOl-0000109 Thomas and Lisa Dwyer, Dinahs Pond,160 Mayflower Terrace, Yarmouth Mass. Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 4062 Boston, Massachusetts 02211 What information must be included in the hearing request? Pursuant to 310 CMR 9.17(3), any Notice of Claim requesting an adjudicatory hearing must include the following information: (a) the MassDEP Waterways Application File Number; (b) the complete name, address, fax number and telephone number of the applicant; (c) the address of the project; (d) the complete name, address, fax number, and telephone number of the party filing the request and, if represented by counsel, the name, address, fax number, and phone number of the attorney; (e) if claiming to be a person aggrieved, the specific facts that demonstrate that the party satisfies the definition of "aggrieved person" found in 310 CMR 9.02; (f) a clear statement that a formal adjudicatory hearing is being requested; (g) a clear statement of the facts which are the grounds for the proceedings, the specific objections to the MassDEP's written decision, and the relief sought through the adjudicatory hearing, including specifically the changes desired in the final written decision; and (h) a statement that a copy of the request has been sent to: the applicant and the municipal official of the city or town where the project is located. Dismissal of request The request for appeal will be dismissed if the filing fee is not paid, unless the appellant is exempt or is granted a waiver. 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. The Department may waive the adjudicatory hearing filing fee pursuant to 310 CMR 4.06(2) for a person who shows that paying the fee will create an undue financial hardship. A person seeking a waiver must file an affidavit setting forth the facts believed to support the claim of undue financial hardship together with the hearing request as provided above. Please feel free to contact me at (508) 946-2707 or brendan.mullaney(cr�,mass.gov, if you have any questions pertaining to the Chapter 91 License. Sincerely, SC` C. Brendan C. Mullaney Environmental Analyst Wetlands and Waterways Program ecc: Daniel Padien, Waterways Program Chief, DEP Boston Office of Coastal Zone Management Yarmouth Harbormaster Yarmouth Conservation Commission Thomas and Lisa Dwyer aA `� � o w O � � U _ N e O � O � N O � N ^N O N w 'C N +Jcz O N O S~ p cts O a.) _ v p to=�B -0 b-0 cn O N g--� � U O N U_ b10 cz 3 N 4J N v U U tb a O. � M c n o t� N CZ a--+ O �$ 4 cu ^ O O N w -p w O U O N o O 3 a-'k G� o ao G CL)cz o a �. Cam CL) CD5 vi .z W O o i~ N bb C� U ,bi) � CL) �. EI cC CL) M O c� 4 • U o a) U � in. CL) cn V Z5 > -0 � W p w a., cz �&.- C� �1-- N :~ o M o W n �n � .bjO n G, Ebe Commonweattb of d No. WWO1-0000109 cam, s , tOereo, Thomas and Lisa Dwyer of -- Dedham -- in the County of -- Norfolk -- and Commonwealth aforesaid, have applied to the Department of Environmental Protection for license to -- remove existing pier and construct and maintain a pier, ramp, and floats -- and have submitted plans of the same; and whereas due notice of said application, and of the ti and plaee fixed r^r ^ heafi g ther, has been given, as required by law, to the -- Board of Selectmen -- of the -- Town of Yarmouth. -- NOW, said Department, having heard all parties desiring to be heard, and having fully considered said application, hereby, subject to the approval of the Governor, authorizes and licenses the said -- Thomas and Lisa Dwyer --, subject to the provisions of the ninety-first chapter of the General Laws, and of all laws which are or may be in force applicable thereto, to -- remove existing pier and construct and maintain a pier, ramp, and floats -- in and over the waters of -- Dinahs Pond -- at -- 160 Mayflower Terrace -- in the -- Town of Yarmouth -- and in accordance with the locations shown and details indicated on the accompanying DEP License Plan No. WWO1-0000109 (4 sheets). License No. WWO1-0000109 Page 2 The structures hereby authorized shall be limited to the following use(s): noncommercial docking and boating access to navigable waters. This license will expire thirty (30) years from the date of license issuance. By written request of the licensee for an amendment, the Department may grant a renewal for the term of years not to exceed that authorized in the original license. Special Waterways Conditions: 1. In accordance with any license condition, easement, or other public right of lateral passage that exists in the area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass freely under all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access sign on both the northerly and southerly sides of the pier authorized herein, adjacent to the mean high water shoreline. Said signs, designed in accordance with the signage specifications provided by the Department, attached hereto, shall be posted immediately upon the completion of construction. Nothing in this condition shall be construed as preventing the Licensee from excluding the public from portions of said structure(s) or property not intended for lateral passage. 2. In partial compensation for private use of structures on tidelands of the Commonwealth, which interferes with the rights of the public to use such lands, the Licensee shall allow the public to pass on foot, for any purpose and from dawn to dusk, within the area of the subject property lying seaward of the high water mark. This condition shall not be construed to prevent the Licensee from taking reasonable measures to discourage unlawful activities by users of the area(s) intended for public passage, including but not limited to trespassing on the adjacent private areas and deposit of refuse of any kind or nature in the water or on the shore. Further, the exercise by the public of free on -foot passage in accordance with this condition shall be considered a permitted use to which the limited liability provisions of M.G.L. c.21, s.17c apply. 3. The existing pier, as shown on License Plan Sheets 1 & 2, shall be removed in its entirety from jurisdictional areas prior the commencement of construction of the new pier, ramp, and floats. All removed structures not intended for reuse shall be properly disposed of in conformance with all local, state and federal laws. 4. No dredging (including, but not limited to the effects of prop wash) is permitted herein. 5. All work authorized herein shall be completed within five (5) years of the date of license issuance. Said construction period may be extended by the Department for one or more one year periods without public notice, provided that the Applicant submits to the Department, thirty (30) days prior to the expiration of said construction period, a written request to extend the period and provides an adequate justification for said extension. 6. Within sixty (60) days of completion of the licensed project, the Licensee shall request, in writing, that the Department issue a Certificate of Compliance in accordance with 310 CMR 9.19. The request shall be accompanied by a certification by a registered professional engineer licensed in the Commonwealth that the project was completed in accordance with the License. Duplicate of said plan, number WWOl-0000109 is on file in the office of said Department, and original of said plan accompanies this License, and is to be referred to as a part hereof. License No. WWO1-0000109 Page 3 STANDARD WATERWAYS LICENSE CONDITIONS 1. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform with all terms and conditions stated herein. 2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the provisions hereof shall be secured by the Licensee prior to the commencement of any activity or use authorized pursuant to this License. 3. Any change in use or any substantial structural alteration of any structure or fill authorized herein shall require the issuance by the Department of a new Waterways License in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein shall render this Waterways License void. 4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set forth herein. This license may be revoked after the Department has given written notice of the alleged noncompliance to the Licensee and those persons who have filed a written request for such notice with the Department and afforded them a reasonable opportunity to correct said noncompliance. Failure to correct said noncompliance after the issuance of a written notice by the Department shall render this Waterways License void and the Commonwealth may proceed to remove or cause removal of any structure or fill authorized herein at the expense of the Licensee, its successors and assigns as an unauthorized and unlawful structure and/or fill. 5. The structures and/or fill authorized herein shall be maintained in good repair and in accordance with the terms and conditions stated herein and the details indicated on the accompanying license plans. 6. Nothing in this Waterways License shall be construed as authorizing encroachment in, on or over property not owned or controlled by the Licensee, except with the written consent of the owner or owners thereof. 7. This Waterways License is granted subject to all applicable Federal, State, County, and Municipal laws, ordinances and regulations including but not limited to a valid final Order of Conditions issued pursuant to the Wetlands Protection Act, G.L. Chapter 131, s.40. 8. This Waterways License is granted upon the express condition that the use of the structures and/or fill authorized hereby shall be in strict conformance with all applicable requirements and authorizations of the MassDEP. 9. This License authorizes structure(s) and/or fill on: X Private Tidelands. In accordance with the public easement that exists by law on private tidelands, the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks, for the purposes of fishing, fowling, navigation, and the natural derivatives thereof. X Commonwealth Tidelands. The Licensee shall not restrict the public's right to use and to pass freely, for any lawful purpose, upon lands lying seaward of the low water mark. Said lands are held in trust by the Commonwealth for the benefit of the public. a Great Pond of the Commonwealth. The Licensee shall not restrict the public's right to use and to pass freely upon lands lying seaward of the high water mark for any lawful purpose. Navigable River and Streams. The Licensee shall not restrict the public's right to use and to pass freely, for any lawful purpose, in the waterway. No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license. 10. Unless otherwise expressly provided by this license, the licensee shall not limit the hours of availability of any areas of the subject property designated for public passage, nor place any gates, fences, or other structures on such areas in a manner that would impede or discourage the free flow of pedestrian movement thereon. License No. WWO1-0000109 Page 4 The amount of tide -water displaced by the work hereby authorized has been ascertained by said Department, and compensation thereof has been made by the said -- Thomas and Lisa Dwyer -- by paying into the Treasury of the Commonwealth -- two dollars and zero cents ($ 2.00) -- for each cubic yard so displaced, being the amount hereby assessed by said Department. (0 cy = $ 0.00) Nothing in this License shall be so construed as to impair the legal rights of any person. This License shall be void unless the same and the accompanying plan are recorded within 60 days from the date hereof, in the Registry of Deeds for the County of Barnstable. IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their hands this '64� day of naa- in the year two thousand twenty-three. Program Chief Commissioner -- Department of Environmental Protection THE COMMONWEALTH OF MASSACHUSETTS This license is approved in consideration of the payment into the treasury of the Commonwealth by the said -- Thomas and Lisa Dwyer -- of the further sum of — one thousand two hundred sixty dollars and zero cents ($ 1,260.00) -- the amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. Approved by the Governor. BOSTON, i Governor I CERTIFY THAT THIS PLAN WAS PREPARED IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE REGISTRARS OF DEEDS. Date Li —3 o - 2-1— P. L S A. 11"L ; 1-3"4 4ily,Su^ �7 •: l '�ti• SSa� i J:. LEGEND N .......::..:.:..:::: EDGE OF MARSH --- MHW MEAN HIGH WATER MLYY MEAN LOW WATER w E LOCUS — 2 ELEVATION CONTOUR DCU S 4 PROPERTY LINE POND 1fI SALT MARSH N/F ROSALIE NELSON & MICHAEL MAJI I r 546 AIRLINE ROAD, v� \�G YARMOUTH, MA S. DENNIS, MA 0 IF.L A. � rJ^ 02660 j ®JA!.A \ �Q , '= CIVIL140.46592 S�OMAL EM J� i 1 ? ` \ \� �® It It It Soo ;OA `, ` •• PAT16 A, , 1 I / \ 41- `\ •l I THOMAS & }ISA `� RE it\\`: \ \ , DWYER LiY 1 cc % DWYER REATRUST '• , yr INTERVALE R DHAM, MA 02t ` 't�Nd \ E BK. 2803�'; • 15 ,� PATIOpG. ,• / 33It Opp,'09-TE It \k t,It lIk" � \ _y l • l \ 1 1� i \ t �- 4 �' PROPOSEDR40CATED y0�4 i ROBERT & EVE NA FITZGERALD RECONSTRUCTEDAND AN�., 166 MAYFLOWER TERRACE PIER, RAMP, D Q;if' n��A S iE PLAN S. YARMOUTH, MA MA 02675 FLOATS 15 715 9 15 3Q 60 1 "=30' PLANS TO ACCOMPANY PETITION OF DATUM FOR ALL ELEVATIONS" `=" NAVD 8 THOMAS AND LISA DWYER, DWYER REALTY MHW = 1.9' MLW = —0.3' TRUST, 160 MAYFLOWER TERRACE, TO RECONSTRUCT, RELOCATE, LICENSE AND = LICENS MMNO. WQo t• C0o t0°! MAINTAIN A PIER, RAMP, AND FLOATS IN Approvedby ntofEnviumcaWPw"m DINAH'S POND, (BASS RIVER), ofMa�Id'b YARMOUTH, BARNSTABLE COUNTY BY: SHOREFRONT CONSULTING, DENNIS, MA AND DOWNCAPE ENGINEERING, YARMOUTH, MA APRIL 30, 2022 SHEET 1 OF 4 I CERTIFY THAT THIS PLAN WAS PREPARED IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE REGISTRARS OF DEEDS. Date tA- 30 - ZZ P.L.S.7�--1 L' 1 N DA141EL A. OJALA �0 4t1yi}0 s -' J LICENSE PLAN N0. W W0 t • 0 000 t 0°k SITE PLAN - PROPOSED Approved by Department of Environmental Protection Date: MAY 8 M13 1*=2 PLANS TO ACCOMPANY PETITION OF THOMAS AND LISA DWYER, DWYER REALTY TRUST, 160 MAYFLOWER TERRACE, TO RECONSTRUCT, RELOCATE, LICENSE AND MAINTAIN A PIER, RAMP, AND FLOATS IN DINAH'S POND, (BASS RIVER), YARMOUTH, BARNSTABLE COUNTY DATUM FOR ALL ELEVATIONS NAVD88 MHW = 1.9' MLW —0.3' BY: SHOREFRONT CONSULTING, DENNIS, MA AND DOWNCAPE ENGINEERING, YARMOUTH, MA APRIL 30, 2022 SHEET 2 OF 4 1 CERTIFY THAT THIS PLAN WAS 0.1A P, PREPARED IN ACCORDANCE WITH No. 40" THE RULES AND REGULATIONS OF THE REGISTRARS OF DEEDS. 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