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Home My WebLink Aboutletter from homeowner re: enforcement 7.31.2023RUBIN and RUDMAN LLP Attorneys at Law 53 STATE STREET I BOSTON, MA 02109 I P:617-330-7000 500 UNICORN PARK DRIVE, SUITE 502 I WOBURN, MA 01801 I P:781-933-5505 Michele A. Hunton Direct Dial: 617-330-7024 E-mail: MHunton@rubinrudman.com July 31, 2023 By Email and Overnight Mail Edwin Hoopes, Chair Yarmouth Conservation Commission Town Hall 1146 MA-28 South Yarmouth, MA 02664 RE: Jeffrey Cutter, 33 Prince Road, West Yarmouth Dear Chair Hoopes and Commission Members: On behalf of our client, Jeffrey Cutter, we are submitting this letter in response to your February 2022 Enforcement Order and request that Mr. Cutter remove the fl oats at the 33 Prince Road property (the "Property"), which is owned by the Cutter-Prince Realty Trust, by August 1, 2023. As you may be aware, a dock has existed at the Property since at least 1960, as a former owner of the Property, Louise Tomaiolo, confirmed by a letter to Harold Cutter in 1992. See Tomaiolo letter, Exhibit A. On or about June 8, 1992, the Commission issued an Order of Conditions, DEP File No. SE83-1186, to Harold Cutter, to maintain the existing dock. An April 15, 1992 plan, depicting the existing dock and fl oat as existed prior to the 1992 OOC, was attached to the 1992 OOC. Again, this dock and float were in place well before the 1992 OOC was issued. In June 1992, Harold Cutter submitted an application to the Commonwealth for an amnesty license to retain and maintain the existing dock. On July 1, 1992, the Regulatory Division of the Department of the Army sent a letter to Harold Cutter indicating that it believes that the existing dock, ramp, and float satisfy the requirements for its General Permit for piers, floats, and mooring buoys. The Department of the Army also indicated in a June 9, 1992 letter that the grandfathered date for structures or work beyond Mean High Water is December 18, 1968, and that piers constructed prior to that date do not require written authorization from the Department. See 1992 Letters from the Department of Army, Ex. B. In September 1992, the Commonwealth of Massachusetts issued an Interim Approval of Harold Cutter's request to maintain the pier, ramp, and fl oat at the Property under Chapter 91. 3531845_1 Yarmouth Conservation Commission July 31, 2023 Page 2 The Commission's Enforcement Order dated February 10, 2022 addresses concerns regarding the float size. While we understand that a Certificate of Compliance was never issued for the 1992 OOC, the 1992 Order of Conditions has since expired. As the Commission is likely aware, an enforcement action against violators must be brought within two years of the violation. As provided in G.L. c.131, §91, "Actions and prosecutions under this chapter shall, unless otherwise expressly provided, be commenced within two years after the time when the cause of action accrued or the offence was committed." Here, over 30 years has elapsed from when the alleged violation (increased float size) occurred, and thus the Commission cannot now issue an Enforcement Order for failure to comply with a 31- year old OOC. We also understand that the local Wetland Protection Regulations in the section entitled "Submittal Requirements" for "Docks and Piers" in Section 1.09(4)(a)(13) requires that floats not exceed 200 sf. As indicated, the existing float has been at the Property since at least 1960, well before the local Wetlands Protection Regulations were enacted in 2016. It is well-established in Massachusetts that the retroactive application of statutes and local Bylaws is unlawful. As a general matter, all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication, the pre-existing state of the law, and the effect upon existing rights, remedies, and obligations. There is no retroactive effect unless such effect manifestly is required by unequivocal terms. Fleet Nat'l Bank v. Commissioner of Revenue, 448 Mass. 441, 448-49 (2007). In determining retroactively, Courts review whether applying the statute to the person objecting would have a retroactive consequence by affecting substantive rights, liabilities, or duties, and if so, applying a statute retroactively was not intended. Fannie Mae v. Nunez, 460 Mass. 511, 517 (2011). Further, the Massachusetts Land Court, in Casella v. Sacco, 12 LCR 411, 2004 Mass. LCR LEXIS 96 (October 8, 2004), reviewed the issue of whether a town could retroactively extinguish the grandfathered status of certain properties in an amendment to a zoning bylaw. Id. at *20. The Land Court found that the Town's attempt to impermissibly change the definition of what lots were entitled to grandfathered protection was improper. Id. at *24. Based on the above, the current 200-foot limitation in float size is not applicable to the existing dock. Brittany DiRienzo recommended in a February 28, 2023 email that Mr. Cutter request approval for a fl oat up to 200 sf by way of a new Notice of Intent. Mr. Cutter has since removed the two finger floats, which were 8' x 5', in response to the Commission's concerns with the float. In addition, Mr. Cutter intends to file a Notice of Intent in approximately one month requesting to reduce the current float to 200 sf so that it is in compliance with the current Regulations. 3531845_1 Yarmouth Conservation Commission July 31, 2023 Page 3 For all of the above reasons, we respectfully request that the Commission allow the float to remain at the Property until it has heard and made a determination on the forthcoming NO1. Thank you for your consideration. Please contact us should you have any questions. Sincerely, Michele A. Hunton Enclosures cc: Jeffrey Cutter Roy Okurowski, P.E., WRS Engineering, LLC Glenn A. Wood, Esq. 3531845_1 EXHIBIT A Mrs. Louise M. Tomaiolo 40 Prince Road West Yarmouth, MA May 22, 1992 Mr. Harold S. Cutter 33 Prince Road West Yarmouth, MA To Whom It May Concern: This is to certify that I purchased the property at 40 Prince Road, West Yarmouth in 1960. 1 further certify that, at that time, a Pier and Dock existed at 33 Prince Road. I remember my late husband had a boat and the then owners of the property at 33 Prince Road allowed my husband to keep his boat there. urs very truly, f'ta\eilCtt.:04...t) rte- Louise Louise M. Tomaiolo EXHIBIT B DEPARTMEN r OF Tiff ARMY NEW FN(li AND nivi.sroN CORPS OF CNORNEERS 424 tRAPELD ROAD WAL)HAM MASSACHUSITTS 07754 414;) June 9, 1992 Regulatory Division CENED-O13711-1992-O1327 Harold S. Cutter 33 Prince Road West Yarmouth, Massachusetts 62601 Dear Mr. Cutter; This letter is in reference to an application made to the State for an amnesty license to retain and maintain an existing pier in Mill Creek in West Yarmouth, Massachusetts. This letter is to inform you that a Department of the Army permit may be required for the pier, if it is not grandfathered or covered under our General Permit for piers. The grandfathered date for structures or work beyond mean high water is December 18, 1968. Piers constructed prior to that date do not require a written authorization from this office. Piers constructed after that date do not require written authorization, provided the terms and conditions of the General Permit for piers are met. A copy of the General Permit is enclosed for your information. If your structure is grandfathered or meets the General Permit conditions, no further action is necessary. otherwise, it will be necessary to apply for a permit to retain and maintain it. Application forms and information are available from this office. If you have any questions about the General Permit or our jurisdiction, do not hesitate to contact me at (617) 647-8862. Enclosure ; zio • r ' Sincerely, clA L.4( J fru,,t. Monica J. Webster Project Manager Regulatory Division F r 0.4 1 ,6•'74 4. L. 4 I 04 r: I) 4 DEPARTMENTOFTHEARMY NF4V CNGLANtP (Hvosiurg CORPS OF ENGINEERS 424 1 RAPELO 1112M) WMTIUAM MASSACHUSETTS 02254-4)149 u It Regulatory Division CENED-OD-R-1992-01327 July 1, 1992 Harold Cutter 33 Prince Road West Yarmouth, NassaChusetts 02601 Dear Hr. Cutter: We have completed our evaluation of your application for authorization to retain and maintain an existing pier at your property on Prince Road in West Yarmouth, Massachusetts. We believe the pier, ramp and float satisfy the requirements for our General Permit for piers, floats, and mooring buoys, provided you agree to comply with certain conditions necessary to protect the public's interest and the resources affected. Enclosed is a copy of the permit requirements. Please review it carefully, to thoroughly familiarize yourself with its contents. You are responsible for complying with all of the permit's requirements and conditions. If any change in the materials, dimensions or location of the pier, ramp and float is found necessary, please contact us, immediately, since any change must be approved in advance. You should note that a separate, individual permit may be required for the placement of any fill that is not shown on your plans. Also, note condition (n) of this permit which requires that you notify us before beginning any maintenance work that may be necessary at this time (notification form attached). In addition to this authorization, you must obtain all other required federal, state and local authorizations. Performing any work not specifically authorized by this permit or failing to comply with the permit conditions may subject you to the enforcement provisions of our regulations. If you have any questions, please contact Monica Webster of my staff at (617) 647-8862. Enclosure Sincerely, 2 Kirk Adams Chief, Permits Branch Regulatory Division