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Home My WebLink Aboutreissuance of chapte r91Commonwealth 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 'JAN 2 4 2024 Micozzi Management, Inc., Trustee of the Island Realty Trust c/o Down Cape Engineering, Inc. Attn: Daniel Ojala 939 Route 6A Yarmouth Port, MA 02675 RE: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Waterways License Application No. 22-WWO1-0127-APP, License No. WW01-0000176 Micozzi Management, Inc., Trustee of the Island Realty Trust, Sweetheart Creek, 369 Great Island Road, 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. Any 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 Websile: w .mass.govldep Printed on Recycled Paper ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Page 2 Waterways License Application No. 22-WW01-0127-APP, License No. WWOl-0000176 Micozzi Management, Inc., Trustee of the Island Realty Trust, Sweetheart Creek, 369 Great Island Road, 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 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 anneal? 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/adjudicatory-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-W WO1-0127-APP, License No. W WO1-0000176 Micozzi Management, Inc., Trustee of the Island Realty Trust, Sweetheart Creek, 369 Great Island Road, Yarmouth Mass. Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 4062 Boston, Massachusetts02211 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 Cally Harper of the Wetlands and Waterways Program, (617) 549-3598 or call,yharper e mass.goy, if you have any questions pertaining to the Chapter 91 License. Sincerely, V" C Brendan C. Mulla. Section Chief Waterways Progr€ cc: Were. Daniel J. Padien, Waterways Program Chief, DEP Boston Office of Coastal Zone Management Yarmouth Harbormaster Yarmouth Conservation Commission Micozzi Management, Inc. The Commoubjeaitb of Aa.5.5arbuatt5 Iftereag, Micozzi Management, Inc., Trustee of the Island Realty Trust of -- Newton -- in the County of -- Middlesex -- and Commonwealth aforesaid, has applied to the Department of Environmental Protection for license to -- reconstruct and maintain a pier, ramp and two (2) floats -- and has submitted plans of the same; and whereas due notice of said application, and of the time an „'aee fixed for a wevMrrt there, 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 ,,ppfeval of the Ga e.. a authorizes and licenses the said -- Micozzi Management, Inc., Trustee of the Island Realty Trust --, 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 -- reconstruct and maintain a pier, ramp and two (2) floats -- in and over the waters of -- Sweetheart Creek -- at -- 369 Great Island Road -- in the -- Town of Yarmouth -- and in accordance with the locations shown and details indicated on the accompanying DEP License Plan No. WWO1-0000176 (4 sheets). W WO 1-0000176 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 over all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access sign on both the easterly and westerly 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, 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 floats shall be constructed with an appropriate number of piles/pipes with float -stops in order to maintain at least thirty (30) inches of clearance of the bottom at all tides. 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(s). 4. No dredging (including, but not limited to the effects of prop wash) is permitted herein. 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. 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. 7. 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-0000176 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. WWOI-0000176 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. 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. WWO1-0000176 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 -- Micozzi Management, Inc., Trustee of the Island Realty Trust -- 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 14111day of 5Fl N (�2y in the year two thousand twenty-four. VProgram Chief said -- of the further sum of -- Department of Environmental Protection THE COMMONWEALTH OF MASSACHUSETTS the amount determined by the Governor as a just and e e charge for rights and privileges hereby granted in the land of the Commonwealth. BOSTON, SIGNAGE SPECIFICATIONS - MassDEP Waterways Regulation Program (Updated September 20, 2012) • Signs shall utilize durable materials and methods of construction and maintained in good condition. • Signs shall be a minimum of 5" x 10" (or 50 square inches) in size. Letter height shall be a minimum of Y2". • The MassDEP Chapter 91 License number shall be displayed on all signs (as applicable). • Each sign shall indicate that public passage is allowed for on -foot lateral access along the shoreline for the purpose of fishing, fowling, navigation and strolling. • Signs shall be posted on both sides of the pier or structure, at the mean high water shoreline, or as directed by the Chapter 91 License (see Special Waterways Conditions, Page #2 or Page #3 for Simplified Licenses). An example of an acceptable sign is provided below. pe PUBLIC PASSAGE Mass DEP M.G.L. Ch.91 LICENSE # 0wWwO°176 NOTES MAP 14 PARCEL 1 DATUM: NrAVD 88 FLOODZONE: AE (EL 1'3) REF: INT. APPROVAL. LIC #2312 POST SIGN TO ALLOW LATERAL PASSAGE AT STAIRS EXIST. DOCK PROP.72) 6 x 16.5' FLOATS REMOVE SEASONALLY 2.8'x 14' & FIXED FLOAT I CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE COMMONWEALTH OF MASSACHUSETTS. OWNER OF RECORD MICOZZI MANAGEMENT, INC TRUSTEE OF THE ISLAND REALTY TRUST 14 HUNTINGTON ROAD NEWTON, MA 02451 -11: 5-IZ- 23 Date: Lewis Bay Nantucket Sound I LOCUS MAP I G� APPR CK SYSTEM 08 2278 361 / S, & A, BRINKMAN ES EXA T 06426 ADD STEPS TO ALLOW PUBLIC'S 'RiGHT OF PASSAGE ALONG HORE (COLONIAL ORDNANCE) OF'G ��g(• ��j6 �S�'P� G� ,1S OF,ggp S DANIEL A. OJALA down cape engineering, inc. qVL ENGAEERS. LAND SURVEYORS off. 508 362 4541 fax. 508-362-9880 939 main st. yormouth, ma 02015 Scale:1 "= 40' 0 20 40 ryD SURVEY" #369 GREAT ISLAND ROAD DANIEL A. OJALA PLS, PE TO RECONSTRUCT, PERMIT AND MAINTAIN FIXED PIER, RAMP & FLOATS AND OVER THE WATERS OF SWEETHEART CREEK YARMOUTH, MA 5, 2022 Y 12 SHLET�13OF 4 5 —12— 23 DATE EXISTING PIER, RAMP AND FLOAT ORIG. LIC.#2312 SALT EXISTING STEPS (PROVIDE SAME OPP. SIDE FOR 'LONG SHORE ACCESS) I CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE COMMONWEALTH OF MASSACHUSETTS. PROFILE 1"=20' NOTE: AT TIME OF NEXT MAINTENANCE, (EXPECTED IN 2 - 3 YEARS) FIXED PIER SHALL BE RAISED TO PROVIDE MIN. 4' BETWEEN SALT MARSH ELEVATION AND LOWEST PORTION OF PIER STRUCTURE PLAN ACCOMPANYING PETIT(( MICOZZI MANAGEMENT, INC, THE ISLAND REALTY "TF #369 GREAT ISLAND RC TO RECONSTRUCT, PERMIT F MAINTAIN FIXED PIER, RAMP AND OVER THE WATERS OF SWEETHEART CRI YARMOUTH, MA -342 2OF4 DANIEL A. OJALA No.40980 Surveyor Date: 9 2.8'x 1=4' RAMP -MHW 1.4 ...........MLW -2.3 \-(2) PROP. 6'x 16.5' (FLOATS LRE-LOCATED/ADDED 10" PILINGS FOR FLOAT ATTACHMENT (4 TTL) o r1 939 main st. yormouth, ma 02015 El I CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE COMMONWEALTH OF MASSACHUSETTS. DANIEL A. OJALA r-lA Ll\ l= j 5-12-23 esslonal Land Surveyor Date: 4'-0" WIDE MAX 2„X:6» fff 2"x4' DEC EXIST. PILINGS MHW EL. 1.4' 3/4"4 H.D. GALV. THRU BOLT (TYP) X 6" DECKIN 3/4" SPACING ® 3X8 BRACE EACH BAY SECTION NOTCH 4X4 'THRU BOLT TO STRINGER 3X8 LEDGER PIER CONSTRUCTION DETAIL NTS A. No.46502 r C PLAN ACCOMPANYING PETITION OF r1ICOZZI MANAGEMENT, WC., TRUSTEE Oil - THE ISLAND REALTY TRUST DANIEL A. OJALA PLS PE DATE #369 GREAT ISLAND ROAD TO RECONSTRUCT, PERMIT AND MAINTAIN FIXED PIER, RAMP & FLOATS 1N do wn Gape AND OVER THE WATERS OF engineering, Inc. SWEETHEART CREEK CIVIL ENGINEERS YARMOUTH, MA 41M SURVEYORS GUST 5, 2022 V. MAY 12, 2023 —342 SHEET 3 OF 4 off. 508-362-4541 fax. 508-362-9880 939 main st. yarmouth, ma 02675 I CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE COMMONWEALTH OF MASSACHUSETTS. DANIEL A. OJALA �Nt) SURVQ- �. essional Land Surveyor AT TIME OF NEXT MAINTENANCE, PIER SHALL BE BROUGHT INTO CONFORMANCE WITH CURRENT LOCAL AND STATE REGULATIONS S -12- Z3 Date: 2 X 6 DECKING 3_/4" SPACING FASTEN WITH STAINLESS SCREWS 4'-0" LONG BOARDS OVERHANG EA. SIDE PILING (2) 3"X8" BENTS x SISTER STRINGERS LAT JOINTS 4X4 HANDRAIL POS BOLTED TO 3X8 (3) 3"X8" STRINGERS @ 20" ON CENTER PIER PLAN VIEW DETAIL N TS HANDRAILS NOT SHOWNFOR CLARITY PLAN ACCOMPANYING PETITION OF DANIEL A. OJALA CIVIL No.46502 41,369 GREAT ISLAND ROAD DANIEL A. OJALA P P S DATE TO RECONSTRUCT, PERMIT AND MAINTAIN FIXED PIER, RAMP & FLOATS IN AND OVER THE WATERS OF SWEETHEART CREEK YARMOUTH MA 5, 2022 Y 12, 2023 21-342 4OF4 down cape engineering, inc. CIVL ENGINEERS L" MIRVEYORS off. 508-362-4541 fax. 508-362-9880 939 main A yarmouth, mo 02675