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Home My WebLink Aboutch 91 lisenceCommonwealth 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 Governor Kimberley Driscoll Lieutenant Governor '· .·;, \/.f l Linda M. Jean and John F. Nellenback c/o The BSC Group, Inc. Attn: Paul Mancuso 349 Route 28, Unit D West Yarmouth, MA 02673 RE: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Rebecca L. Tepper Secretary Bonnie Heiple Commissioner Waterways License Application No. 24-WW03-0001-AMD, License No. WW0l-0000150 Linda M. Jean and John F. Nellenback, Mill Creek, 72 Gleason Avenue, 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 ofrecorded 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 of310 CMR 9.00. This information is available in alternate format. Please contact MassDEP at 617-292-5500. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep Printed on Recycled Paper ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Waterways License Application No. 24-WW03-0001-AMD, License No. WW0l-0000150 Linda M. Jean and John F. Nellenback, Mill Creek, 72 Gleason Avenue, Yarmouth REQUEST CERTIFICATE OF COMPLIANCE Page2 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 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, § l0A, 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 0234 7 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 Waterways License Application No. 24-WW03-0001-AMD, License No. WW0l-0000150 Linda M. Jean and John F. Nellenback, Mill Creek, 72 Gleason Avenue, 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? Page3 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 defmition of "aggrieved person" found in 310 CMR 9 .02; (t) 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 fmal 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 fmancial hardship together with the hearing request as provided above. Please feel free to contact Cally Harper of the Waterways Program, (617) 549-3598 or cally.harper@mass.gov, if you have any questions pertaining to the Chapter 91 License. Sincerely, Brendan C. Mullaney Section Chief Waterways Program cc: w/enc. Daniel J. Padien, Waterways Program Chief, DEP Boston Office of Coastal Zone Management Yarmouth Harbormaster Yarmouth Conservation Commission Linda M. Jean and John F. Nellenback 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 of½". • 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. ~ FOR WW01- 0000150 1 Mass DEP M.G.L Ch.91 LICENSE# ------- W:be <!Commonluealtb of ;!ffilassarbusetts No. WW0l-0000150 l»btrtaj, Linda M. Jean and John F. Nellenback of --Yarmouth --in the County of --Barnstable --and Commonwealth aforesaid, have applied to the Department of Environmental Protection for license to --maintain an existing pier and ramp and reconfigure and maintain existing floats -- and have submitted plans of the same; and whereas due notice of said application, and of the time and place fixed for a hear..ng thereon, 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 --Linda M. Jean and John F. Nellenback--, 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 --maintain an existing pier and ramp and reconfigure and maintain floats -- in and over the waters of --Mill Creek --at --72 Gleason Avenue --in the --Town of Yarmouth -- and in accordance with the locations shown and details indicated on the accompanying DEP License Plan No. WW0l-0000150 (4 sheets). WW0I-0000150 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. This license supersedes Department of Environmental Protection License No. 4619, issued to William Malaspino, on June 26, 1995. 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 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 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 ofM.G.L. c.21, s.l 7c apply. 3. No dredging (including, but not limited to the effects of prop wash) is permitted herein. 4. The use of unencapsulated polystyrene as part of any permanent or temporary component of the structures and/or fill authorized herein is prohibited. 5. The floats shall be constructed with an appropriate number of piles with float-stops in order to maintain at least fourteen inches of clearance off the bottom at all tides. The Department may approve alternative float-stop structural designs, provided that written approvld from the Department is granted prior to the deployment of the floats. 6. When removed, all seasonal structures shall be stored landward of the mean high water line and outside of other wetland resource areas. Said storage shall be in conformance with any applicable local, state or federal requirements. 7. The project authorized herein has been completed in conformance with the accompanying plan. The issuance of this License, therefore, fulfills the Licensee's obligation to obtain a Certificate of Compliance pursuant to 310 C:MR 9.19. Duplicate of said plan, number WW0 1-0000150 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. WW0I-0000150 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. WW0I-0000150 Page4 THIS PAGE INT TIONALLY BLANK wwo 1-0000150 Page 5 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 --Linda M. Jean and John F. Nellenback --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 W[I:tJESS ~E~AS, said Department of Environmental Protection have hereunto set their hands this rw'day of rlb( \.JCV(j in the year 20 2-f \Program Chief Department of Environmental Protection Commissioner THE COMMONWEAL TH OF MASSACHUSETTS This license is approved in consideration of the payment into the treasury of the Commonwealth by-the said --Linda M. Jean and John F. Nellenback -- of the further sum of --seven hundred and forty-one dollars and zero cents ($741.00) -- the amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. BOSTON, Approved by the Governor. I CERTIFY THAT THIS PLAN CONFORMS TO 1HE RUlES AND REGULATIONS OF THE REGISTERS Of DEEDS OF THE COMMONWEA lH OF MASSACHUSETTS. SHEET 1 2 3 4 a.Ml U:fflN) ----I-IS~ MtGH WAlO't M£M HlGH WATIR (IL• 1.3 NAVO 11) " • " • " • MEAN LOW WAllft. (IL• -2.0 NAVO II) E>GS'RNC CON·•"f'Oit.MI ----FEMA FlOCG ZONt Ar. IOUNDMY PltQfl · aiAEJEI SM AWJHMliAIQU AUlHOAtlAT40N ISSUING AGENCY DA "fE UC. f46'19 D£P 1995 MQ;JD; 1. DIPNG ~ltONS SHOWN ARE M0'4DI;[:) FROM AN ON THE GROUND SUR\£Y IY MISC GROUP wt. ON 5/11/23. 2. El.lVA'IONS OEACTED ON· THIS· PLAN~ TO NAVO 88 DATUM. l. FEMA INFORMATION Ar. n..-11. DAlm 7 /11/14 A£. El.•11, DATED 7 /11/14 4. SOURCE OF: HHW -MA MAPPER (CONTEMPORARY HtGH WAll:R MO HHW OtPlAYED) HLW -NO DATA AVMLAIL[ MHW. MlW (BUZZARDS IAY tNll:RA.CliVE 11DAl DAll.JM VIE'WER) 5. WATER a.EVATION IASED ON •s 09ERVA110NS. 6. THIS SEr OF PUNS 8S ·MM NIIY'f't~ ONLY #I) F'OR ~-(11« ~ 5 ~ ,-All -.~110NI) 7. M PlMPOIE OF UJCATION. I. 1HE PDllTIID PlM tNSTM.UD. M WRM CQ¥iR SHEET HET10f4 DATE 2/15/24 REV. 7/2/24 REV. 11 /47 /24 REV. 12/20/24 ACCOMPANYING PETI110N OF LINDA M. .£AN & JQMN. F. ~AQ< lO W.NNTMN AN DIITINO AIR· .. ·.MD RAW. MD -~ MO MNNTMN F'LOA1S IN #MJ .OW,R M WAltftl Of MLL CREE( AT 72 Qt.£ASON AVENUt fN WBT YAMIOUlH. MA (IMNSfMI..£ COUNTY) cumENT Prepared by. THE BSC GROUP, INC. 349 ROUlE UNIT D WEST 'AMiOO MA 02673 ' .-.~~ X'S@W _!~~; ~Ms !'t?ffl!lf!£Sil$:m&,.,~ffll!Wi'iil1§W~§ I&.~ I CIR11FY THAT Ml PLAN CONFORMS TO 1HE flAIS Ml> REGULA1ICIII (If ff REOISTOtS OF DIID8 (If THt CCJMMONWEA1H OF MASSACHUSITTS. ------ ---1 ... I I I f I CERTIFY lHAT THtS PLAN CONFORMS TO THE RULES AND REGULA.TIONS Of lHE REGISTERS OF DEEDS OF THE COMMONWEATH Of MASSACHUSETTS. I i 8 - I ~ I a Ill 1ft ._N - g! ~ Ulo 0 ' ~by. THE BSC GROUP, INC. 349 ROUTE 28, UNIT 0 W£ST YARMOUTH, MA 02673 I CERTIFY lHAT THIS PLAN CONFORMS TO 1HE RULES AND REGULATIONS OF THE RECIS'lERS Of r&DS OF THE COMMONWEA TH OF MASSACHUSETTS. 12"' PUNG = - 100 rm NOTE: 1. 2. PROflll: AND IETAtlS SHIET 4 OF 4 DA11 2/1 24 MY. 7 REV. 11 /4/24 RIV. 12/20/24 · •• •·. 84M PPM$ HOT TO SCALE PLAN ACCOMPAN'V!NG Pf11110N Of LINDA M. JEAN A JOHN f. H£U.DBACK TO MAINTAIN AN EXISTING PD ANO RAMP, ANO R£CONF10URE ANO MNNTMN FlOAlS IN AND 0\!l:R THE WA1US OF MU CREEK AT 72 a..lASON AVENUE IN W£ST Y~TH. MA &NleTAILE COUNTY) RAMP ed by: BSC GROUP, INC. 341 ROUTE 21, UMT D WEST YARMOUTH, WA 02'f573