HomeMy WebLinkAboutCh 91 7.24.23� Commonwealth of Massachusetts
Executive Office of Energy &Environmental Affairs
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
JUL 2 4 2023
Kelleys Point Homeowners Association, Inc.
c/o The BSC Group, Inc.
Attn: Hannah Raddatz
349 Route 289 Unit D
West Yarmouth, MA 02673
RE: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE
Waterways, License Application No. 22-WWO1-0139-APP, License No. WWO1-0000140
Kelleys Point Homeowners Association, Inc., Kelleys Bay, 0 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. An. change 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,
sixty (60) days of the date of issuance will render this license void pursuant to 310 CMR 9.18.
Upon recording the License and Plan, you must notify the Department by accessing your Authorization
record at https://eplace.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-WWO1-0139-APP, License No. WWO1-0000140
Kelleys Point Homeowners Association, Kelleys Bay, 0 Mayflower Terrace, Yarmouth
REQUEST CERTIFICATE OF COMPLIANCE
Pursuant to 310 CMR 9.191, once the proposed project is completed you must file a Request for a Certificate
of Compliance form, BRP WW05, 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 right to aDDeal?
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-WWO1-0139-APP, License No. WWO1-0000140
Kelleys Point Homeowners Association, Kelleys Bay, 0 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 requeg .
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 Cally Harper of the Wetlands and Waterways Program, (508) 946-2815 or
cally.harper@mass. ov, if you have any questions pertaining to the Chapter 91 License.
Sincerely,
Brendan C. Mullaney
Environmental Analyst
Wetlands and Waterways Program
cc: w/enc. Daniel J. Padien, Waterways Program Chief, DEP Boston
Office of Coastal Zone Management
Yarmouth Harbormaster
Yarmouth Conservation Commission
Kelleys Point Homeowners Association, attention: Gerald Manning
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No. WWO1-0000140
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Vberea.l, Kelleys Point Homeowners Association, Inc.
of -- Yarmouth -- in the County of -- Barnstable -- and Commonwealth aforesaid, has applied to the
Department of Environmental Protection for license to -- construct and maintain a float and three
(3) pilings --
and has submitted plans of the same; and whereas due notice of said application, � �' ^C +'� ti m rd
'^po flvo,a^rfl
, has been given, as required by law, to the -- Select Board -- 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
-- Kelleys Point Homeowners Association, Inc. --, 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 -- construct
and maintain a float and three (3) pilings --
in and over the waters of -- Kelleys Bay -- at -- 0 Mayflower Terrace -- in the -- Town of Yarmouth
-- and in accordance with the locations shown and details indicated on the accompanying DEP
License Plan No. WWO1-0000140 (2 sheets).
WWO1-0000140 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.
Existing structures previously authorized under Department of Environmental Protection License No.
9827 shall be maintained in accordance with the terms and conditions of said license and plan.
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 over or around 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 existing pier, 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. No dredging (including, but not limited to the effects of prop wash) is permitted herein.
4. The float shall be constructed with float -stops in order to maintain at least thirty (3 0) inches of clearance above the
substrate at MLW. The Department may approve alternative float -stop structural designs, provided that written approval
from the Department is granted prior to the deployment of the float.
5. The use of unencapsulated polystyrene as part of any permanent or temporary component of the structures and/or fill
authorized herein is prohibited.
6. The existing pilings, as shown on License Plan Sheet 1, shall be removed in its entirety from jurisdictional areas prior
the commencement of construction of the new proposed float. Per Massachusetts Division of Marine Fisheries, the piles
shall be fully removed from the substrate rather than cut at the base. All removed structures shall be properly disposed of in
conformance with all local, state and federal laws.
7. 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.
8. 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 WWO 1-0000140 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.
WWO1-0000140 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:
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.
WWO1-0000140 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 -- Kelleys Point Homeowners
Association, Inc. -- 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 i�l ay of �J � �� in the year two thousand twenty-three.
Program Chief C.
Department of Environmental Protection
Commissioner4.00- V ^�
THE COMMONWEALTH OF MASSACHUSETTS
This license is approved in consideration of the payment into the treasury of the Commonwealth by -the
said -- Kelleys Point Homeowners Association, Inc.
of the further sum of -- four hundred and seventy-four dollars and zero cents ($474.00) --
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,
G
Gove or
FOR REGISTRY USE ONLY
CERTIFY THAT THIS PLAN CONFORMS TO
THE RULES AND REGULATIONS OF THE
REGISTERS OF DEEDS.
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KELLEYS
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LOCUS MAP
NOT TO SCALE
MAYFLOWER TERRACE ro { K LLEY'S BAY
ASSESSORS MAP 120„�
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DATUM NAVD 1988 MAYFLOWER TERRACE TIMBER PIER
M LW = 1 .0' ASSESSORS MAP 120
M H W = 1 .5' PARCEL 2
SCALE: 1 of
= 30'
0 15 30 60,
PLAN ACCOMPANYING PETITION OF
KELLEYS POINT HOMEOWNERS
ASSOCIATION INC.
OFF MAYFLOWER TERR, S. YARMOUTH
TO CONSTRUCT AND MAINTAIN A 7'X20' FLOAT
AND THREE PILINGS IN AND OVER THE
WATERS OF KELLEYS BAY IN SOUTH
YARMOUTH, MA (BARNSTABLE COUNTY)
rreparea oy:
THE BSC GROUP, INC.
349 ROUTE 28, UNIT D
WEST YARMOUTH, MA 02673
DECEMBER 17, 2021
REVISED: 5/1/23
JOB NO. 5-0486.00. DWG. NO. 6741-02 SHEET 1 OF 2
UCEMPLMPM \\lW6A` 00(30 Nt)
�Ppe�d yrtlfond
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FOR REGISTRY USE ONLY
� DAVID J.
CRISPIN rn
CIVIL
No.32112 �
THIS SET OF PLANS IS FOR
PERMITTING ONLY AND NOT FOR
CONSTRUCTION.
(THE CONTRACTOR IS
RESPONSIBLE FOR ALL
CONSTRUCTION SPECIFICATIONS)
SCALE: 1 " = 20'
0 10 20 40
CERTIFY THAT THIS PLAN CONFORMS TO
THE RULES AND. REGULATIONS OF THE
REGISTERS OF DEEDS.
PLS
L1CtSE pLAN P Wwo 0 ad 0 b
Approved bM Pml Pill 11
Oates JUL
2 4 W
NOTES:
1. THIS PLAN IS BASED ON
NAVD-1988
DATUM. A WATER LOGGER
/ TIDE
GAGE
WAS SET UP NEAR THE SITE
AND
M LW
.WAS RECORDED AS —1.0
OVER A
TWO
WEEK CYCLE. MHW WAS
LOGGED
AS
ELEVATION + 1.5.
2. THE LICENSED FLOAT IS TO BE
RECONFIGURED TO ADD A
7'X20'
FLOATS. THE TOTAL FLOAT
AREA= 300 S.F.
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PLAN ACCOMPANYING PETITION OF prepared by:
KELLEYS POINT HOMEOWNERS THE BSC GROUP, INC.
ASSOCIATION INC. OFF MAYFLOWER TERRACE, S. YARMOUTH 349 ROUTE 28, UNIT DWEST YARMOUTH, MA 02673
TO CONSTRUCT AND MAINTAIN A 7'X20' FLOAT DECEMBER 17, 2021
AND THREE PILINGS IN AND OVER THE
WATERS OF KELLEYS BAY IN SOUTH REVISED: 5/1/23
YARMOUTH, MA (BARNSTABLE COUNTY) JOB NO. 5-0488.00 DWG. N0. 6741-02 SHEET 2 OF 2