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14 FRANKLIN STREET - CONSERVATION COMMISSION L4 Franklin St. - - - _- - 02/24/00 THU. 11:52 FAX 978 740 0404 Planning IM 0O9 _` � INessecAusettsAep�Gm�itolEn�ronmenta/Plnt�adon Bureau ofRBSoarce Protection-Wetlands WPA Form 2 - Determination of Applicability Massachusetts Wetlands Protection Act M.G,L. C. 131, §40 Genera/infornr OOVIII From' 3. rltle and Final Revision Date of Plans and Other Documents: City of Salem Caacrw'fKM Maintenance of seawall Cnn,e(mY� r 1. Appllcam: and ramp only at 14 Franklin Craig C. Burnham Street, Salem, MA Mmedpff"M.+F/'o AVh 93 Orne Street hlJllll�A@Bes Salem. MA 01970 MA 01 9:7 AW hp C" 2. Property Owner. Franklin Street' Realty Trust AenrararWV0WW(pcaBrrf=W# 4 14 Frankt in Ci'.rppt•_ Mailirv�Ad�ets C i3.lam CAj✓7pxr1 _, ' AUP A� Determination Pursuant to the authority of M.G.L.c.131,§40,the 2a3om CMmmowrt�H has considered your Request fora Determination of Applicability,with Its supporting documentation,and has made the following Determination regarding; 14 Franklin Street SUMAW%'Z Salem, MA 01970 GlK— to Coal a��s4rsyArar p4rxiAar i I Rov 1ng0. Pan.1 of 4 02/24/00 THtI 11:52 FAX 978 740 0404 Planning ID010 Massac1=Vfts Department of DWhVflWAW Protection Bureau ofResaurce oratection-Wedands WPA Form 2 - Determination of Applicability Mnssnchusetts Wetlands Protection Act M.G.L. c. 131, §40 Determination (Cont) The following Determination(s)is/are applicable to the ❑ 5.The area andlor work described on plan(s)atal h proposed site and/orprnjetd ralative to the We.Tlands documeni referenced above,which includes an or part of Protection Act and Regulations: the walk described in the Request,is subject to review and approval by Positive Determination Note:No work within the jurisdiction of the Wetlands - Aomad,{kmfi Protection Act may proceed until a fatal Order of Conditions (issued following submiltal of a Notice of Intent or pursuantio the following wetlands law,bylaw,or ordinance - Abbreviated Notice of intent) has been received from the (name and Medan of law). issuing authoi(I.e.,conservation cnmmission nr the Departmert of Environmental Protection). ❑ h.The area described on the plans)referenced above. which includes all or part of the am described In the Request,is an area subject to protection under the Act Therefore,any removing,filling,dredging,or altering of that arca requires the filing of a Notice of Intent, p C.Thu following area andlor work,if any,is subject to ❑ 2.The delineations of the boundaries of the resource municipal bylaw but Dpi subject to the Massachusetts areas listed directly below,described on the plan(s) Wetlands PmtecUon Act: referenced above,which includes all or pan of the area described in the Request are confirmed as accurate: 0 7.If a Notice of Intent is filed for the work In the Riverfront Area described on plans and documents referenced above, Therefore,the resource arta boundaries confirmed in this which includes all orpart of the work described in the Request,the applicant must consider the following Determination are binding asto all decisions rendered alternatives(Refer m the Wetlands Regulations at pursuant to the Wetlands Protection Act and its regulations regarding such boundaries for as long as this Determine- altrnati far more information about the scope of don is valid.However,the boundaries of resource areas not alteernativea requirements) listed directly above are not confirmed by this Determine- - tion,regardless of whether such boundaries are contained [I Alternatives limited to the lot on wit kit the project is on the plans attached to this Determination or to tireMated.ted. Mated. Request for Determination. ❑ Altemetives!united to the lot on which the project is ❑ 3.The work described on plan(s)and document(s) located,the subdivided lots,and any adjacent lots formerly referenced above,which includes all or part of the work or presently owned by the soma toner. described in the Request is within an area subject to O Alternatives limited to the original parcel on which the protection under the Act and will remove,011,dredge,or project is mated,the subdivided parcels,any adjacent alter that area.Therefore,said work requires the filing of a parcels,and any other land which can reasonably be Nouce of Intent obtained within the municipality, ❑ 4.The work described on plans)and documents) ❑ Alternatives extend to any situs which an reasonably referenced above.which includes all or part of the work be obtained within the appropriate region of the stale. described In the Request, Is within the Buffer Ione and will alter an Area subject to protection under the Act Therefore, said work requires the filing of a Notice of Intent Q. mala Pane 7 of d 02/24/00 THU 11:52 FAX M 740 0404 Planning Mas uY=ettsAWamwtorEm%ionrfmwalAote 90ft Bureau ofResovfce Protection—Wetlands WPA Form 2 - Determination of Applicability Massachusetts Wetlands Protection Act M,G.L. c. 131, §40 Determ/natlon(cont.) .Negative Determination 7X6.The area described In the Request Is subject to protection Note: No furthar action under the Wetlands Protection Act under the AIX.Since the work described therein meats the is required by the applidant.However,if the Department of requirements for the following exemption,as specked in Environmental Protection is requested to issue a Supersed- the Act and regulations,no Notice of Intent is required: Ing Determination of Applicability,work may not proceed on this project unless the Department fails to act on such Rursuant to Essex Superior request within 35 days of the date the request is post- e-'NAdAdY marked for certified mail or hand delivered to the Depart- Court, Order dated 11/8/99 - mens.Work may then proceed at the owners risk only, - upon nota to the Department and to the conservation ❑ S.The area and/or work described in the Request is not commission.Requirements for requesm for Superseding subject to review and approval by Determinations are listed atthe end of this document 0 1.The area described In ft Request is not an area subject ntrwaw w)W1r to orinection under the Act or the Buffer Zone. pursuant to a municipal wetlands law,ordinance,or bylaw, ❑ 2.The work described in the Request is within an area (name and citation of bylaw). - subject to protection under the Act,but will not remove,fill dredge,or alter that area.Therefore,mid work does not require the tiling of a Notice of Intent. ❑ 3.The work described In the Request is within the Buffer Zone,as defined in the regulaWrts,but will not alter an Area subject to protactlon under the Act.Therefore,said work does not require the filing of a Nxii of Intent ❑ 4.The work described In the Request is not within an Area subject to protection under the Act(including the Buffer Zone).Therefore.said work does not require the filing of a Notice of Intent unless and until said work altars an Area subject to protection under the Act. AuthoriM600 This Determination must be signed by a majority of the conservation commission.A copy must be sent to the This Determination is issued to the applicant and delivered appropriate Department of Environmental Protection as follows, regional office(see appendix A)and the property owner(if different tram e e pica U. ❑ by hand delivery on Sign mm ❑ by certified mail,return receipt requested on This Determination Is valid for three years from the date of ✓fZ Issuance(except Determinations for vegetation Management Plans which:are valid for the duration of the Plan). This Determination does not relieve the applicant from complying with all other applicable federal,state,or local stabrras,ordinances,bylaws,ar regulations. zf l_TO b mr Gu, inmR pane I of A 02/24/00 THCT 11:50 FAX 978 740 0404 Planning 012 Bureau of Resource Protection-Wetlands WPA Form 2 - Determination of Applicability Massachusetts Wetlands Protection Act MG.L, c. 131, §40 Appeals The applicant,owner,any person aggrieved by this Determine• issuance of this Determination.A copy of the request shall at tion,any owner of land abutting the land upon which the the some time be sent by certified mail or hand delivery to the proposed work Is to be done,or any ten residents of the city or conservation commission and to the applicant if lielshe is not town in which such land is located are hereby notified of their the appellant.The request shall state clearly and concisely the right to requestthe appropriate Department of Environmental objections to the Determination which is being appealed.To the Protection Regional Office to issue a Superseding Detemiina- extent that the Determination is based on a municipal bylaw, tion of Applicability.The request must be made by certified and not on the Massachuseas Wetlands Protection Act or mail or hand delivery to the Department,with the appropriate regulations,the Department of Environmental Protection has no filing fee and Fee Transmittal Form(see Appendix E: Request appellate jurisdiction. for Departmental Action Fee Transmittal Form)as provided in 310 CMR 10,03(7)within ten business days from the date of Rnv 1n/OR Pana a nr d 10 CXR 10.99 DE7:Tde No. (fu be pmi.!ed by DEP) Form 2 Ckyfro,, SALEM ApQbo= ..ran in St. Rea ty Trust Commonwealth Of Massachusetts Det Requou Riad Fah. 7G, 1 99L Determination of Applicability Massachusetts Wetlands Protection Act, G.L. C. 131, $40 From Salem Conservation Commission Issuing Authority To Franklin Street Realty Trnat c�mo (Name of Person making request) (Name of property owner) Address 26 Dearborn Street Address Same This determination is issued and delivered as follows: ❑ by hand delivery to person making request on (date) ® by certified mail, return receipt requested on March 14, 1994 (date) Pursuant to the authority of G.L. c.131, 540, the Conservation Commission has considered your request for a Determination of Applicability and its sup- porting documentation, and has made the following determination (check whichever is applicable) : Location: Street Address 14 Franklin Street Lot Number: 403, Map 26 This Determination is positive. 1. ❑ The area described below, which includes all/part of the area described in your request, is an Area subject to Protection under the Act. Therefore, any removing, filing, dredging or altering of that area requires the filing of a Notice of Intent. 2. El The work described below, which includes all/part 'of the work described in your request, is within an Area subject to Protection under the Act and will remove, fill, dredge or alter that area. Therefore, said work requires the filing of a Notice of intent. 2-1 Effective 11/10/89 3. ❑ The work described below, 'which includes all/part of the work described :.n tour request, is wi �h'.n the Buffer lone as dAfined iu the regulations. and will alter an r--s sul.j- �c tp Proi.ac.'on Lrld'r the Act ^r,erefore, said work requires the filing of a Notice of Intent. This Determination is negative: 1. ❑ The area described in your request is not an Area Subject to Protection Under the Act. 2. ❑ The work described in your request is within an Area Subject to Protection Under the Act, but will not remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of Intent. 3. ❑ The work described in your request is within the Buffer Zone, as defined in the regulations, but will not alter an Area subject to Protection Under the Act. Therefore, said work does not require the filing of a Notice of Intent. 4. ❑ The area described in your request is Subject to Protection under the Act, but since the work- described therein meets the requirements for the following exemption, as specified in the Act and the regulations, no Notice of Intent is recuired: issued by Salem Conservation commission signs ure(s) Fuk— Ain - l '� This Determin tion must be signed by a na3o=ity of ' .e o-isery on 'omni 5io1. on this 10th day of March 1994 before me personally appeared the above named to me known to be the person described in, and who executed, the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. ��7 /n/'u �✓ d���,���-�' July 15, 1999 otary Public Hy commission Expires This Determination does not relieve the'applieant from commlying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. This Determination shall be valid for three years from the date of issuance. The applicant, the owner, any person aggrieved by this Determination, any owner of lard abutting the lard upon which the proposed work is to be done, or any ten residents of the city or town in which such lard is located, are hereby notified of their right to request the Department of Environmental Protection to issue a Superseding Determination of Applicability, providing the request is made by certified mail or hand delivery to the Department, with the appropriate filing fee and Fee Transmittal Form as provided in 310 CMR 10.03(7) within ten days from the date of issuance of this Determination. A copy of the request shall at the same time be sent by certified mail or hard delivery to the Conservation Commission and the applicant. 2-2A 'w r) v 3. ❑ The work described below. which includes all/part of the work described in your request, is within the Buffer zone as defined in the regulations, and will alter an Area Subject to Protection under the Act. .Therefore, gai.d work r.aquirns the filing of a Notice of Intent. This Determination is negative: 1. ❑ The area described in your request is not an Area subject to Protection Under the Act. 2. ❑ The work described in your request is within an Area subject to.Protection Under the Act, but will not remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of intent. 3. ❑ The work described in your request is within the Buffer zone, as defined in the regulations, but will not alter an Area subject to Protection under the Act. Therefore, said work does not require the filing of a Notice of Intent. 4. ❑ The area described in your request in Subject to Protection Under the Act, but since the work described therein meets the requirements for the following exemption, as specified in the Act and the regulations, no' Notice of intent is .required: Issued by the Department of Environmental Protection signature on this day of 19 before me personally appeared to me known to be the person described in, and who executed, the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. Notary Public my commission Expires This Supers Ming Drtrrmination does not relieve the applicant frrn ronplving with -'.l other appiicable federal, state or local s•etutes, o,<mnanccs, by-(3ws ar reguiatirns- This Superseding Determination shad be valid for three years from the date of issuance. The applicant, the owner, any person aggrieved by:the Superseding Determination, any owner of land abutting the Land upon which the proposed work is to be ckr ,.or any ten persons pursuant to G.L. c. 30A, §10A, are hereby notified of their right to request an adjudicatory hearing pursuant to G.L. c. 30A, §10, providing the request , is made by certified mail or hand delivery to the Department, with the appropriate filing fee and Fee,. Transmittal Form as provided in 310 CMR 10.03(7) within ten days from the date of issuance of this supersedingr.. Determination, and is addressed to: Docket Clerk, Office of General counsel, Department of Envirormental Protection, one winter street, Boston, MA 02108. A copy of the request shall at the same time be sent by certified mail or hand delivery to the conservation commission, the applicant, and any other party. A Notice of Claim for an Adjudicatory Nearing shall comply with the Department's Rules for Adj-ie':atory Proceedings, 310 CMR 1.01(6), and shall contain the following information: (a) the DEP wetlands File Number, name of the applicant, and address of the project;. (b) the complete name, address and telephone number of the party filing the request, and ; if represented by counsel, the name and address of the attorney; (c) the manes and addresses of all other parties, if known; (d) a clear and concise statement of (1) the facts which are grounds for the proceeding, (2) the objections to this Superseding Determination, including specifically the manner in which it is alleged to be inconsistent with the Department's wetlands Regulations, (310 CMR 10.00) and (3) the relief sought through the adjudicatory heiring, including specifically the charges desired in the superseding Determination; (e) a statement that a copy of the request has.been sent to the applicant, the conservation commission and each other party or representative of such party, if known. Failure to submit all necessary nay result in a dismissal by the Department of the Notice of Claim for an Adjudicatory Hearing. 2-2B UNITED STATES POSTAL SERVICE �' f e �F�rl I I I I 11 ni of (r OFFICIAL BUSINESS SENDER INSTRUCTIONS Print your name,address and ZIP Code the space below. • • Complete Items 1,2,3,and 4 on the U.S.MAIL reverse. MAR 2 • 21994 -O Attach to front article it aceta permits, otherwise affix to back of ) article. �10� �,. PENALTY FOR PRIVATE • Endorse article "Return Receipt r�lt>'y USE, $300 Requested" adjacent to number. ° s RETURN Print Sender's name, address, and ZIP Code in the space below. TO Salem Conservation Commission One Salem Green Saiem, 1 91979 Nf1,1:,,1A1f„Jill 111:,:1,If,L.,1f„L1111:1{L•,,,,:ILIL,f C.ESS OSENDER: Complete items 1 and 2 when additional services are d nd co are items 3and 4. W �1 Put your address in the"RETURN TO" Space on the reverse side. Failure to this will prev et this card from being returned to you.The return recei t fee will rovide ou the name e Person deli e d to and the date off deliver . Far additional fees the following services are available. gstASPA for fees an c ed h ck box les)for additional service(s) requested. 'Y 1. ❑ Show to whom delivered, date, and addressee's address. 2. ❑ a r18,91 rvery (Extra charge) 1IWrr ge) 3. Article Addressed to: 4. Article Number @RuKurJ STREET' -1kna`1 -TeLlsr -P Uk l 1Sb yK`1 Type of Service: © Registered ❑ Insured SRLe", Hp- olcou ❑ Certified ❑ COD ❑ Express Mail;,.:.,. Return Receipt for Merchandise Always 11 s t1 ' uFe�f:addressee or agent o�tai�t pT 5. S g t — Ad ss B. Atldresse "jgdd,.` �.. NLY ifX rmred an6. Signatu Agent Tx . 7. Tte of Delivery PS Form 38 11, Apr. 1989 .U.s.G.RO.1989-23e-e15 - DOMESTIC RETURN RECEIPT P 091 156 489 Receipt for Certified Mail — No Insurance Coverage Provided M ED Do not use for International Mail .Ar sE (See Reverse) Sent to zn�tU ST P-Al -fa2us i Street and No. le I ENI00M Stir- P.O.,State and ZIP Code Postage $ Certified Fee ,1 Special Delivery Fee Restricted Delivery Fee m Return Receipt Showing W to Whom&Date Delivered 0 Return Receipt Showing to Whom, e Data,antl Addressee's Adore. —a TOTAL Postage 1 C &Fees $ V) Postmark or Date V) E `o LL N a STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE, CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES(see front). y i. It you want this receipt postmarked,slick the gummed stub to the right of the return address � leaving the receipt attached and present the article at a post office service window or hand it to your rural carrier Ino extra chargel. C 2. If you do not want ins receipt postmarked,stick the gummed stub to the right of the return address of the article,date, detach and retain the receipt,and mail the article. m 3. If you want a return receipt,write the certified mail number and your name and address an a c return receipt card,Form 3811,and attach it to the front of the article by means of the gummed ends V space permits.Otherwise,affix to back of article.Endorse front of article RETURN RECEIPT REQUESTED adjacent to the number. O O OD 4. I1 you want delivery restricted to the addressee,or to an authorized agent of the addressee, P7 endorse RESTRICTED DELIVERY on the front of the article. E 5. Enter fees for the services requested in the appropriate spaces on the front of this receipt.if u°k return receipt is requested,check the applicable blocks in item 1 of Form 3811. a 6. Sava this receipt and present it if you make inquiry. *U.S.GPO:1991-302916 :10 CMR 10.99 DE7'.W No. (TV be provided by DEP) Form 2 SALEM ran in St. Rea ty Trust Ca®omrealth of Massachusetts Dom Regms f9ed Fah. 7G 1 99G Determination of Applicability Massachusetts Wetlands Protection Act, G.L. c. 131, 540 From Salem Conservation Commission issuing Authority To Franklin Street Realty Trnat came (Name of Person making request) (Name of property owner) Address 26 Dearb6rn Street Address Same This determination is issued and delivered as follows: C] by hand delivery to person making request on (date) ® by certified mail, return receipt requested on March 14, 1994 (date) Pursuant to the authority of G.L. c.131, S40, the Conservation Commission has considered your request for a Determination of Applicability and its sup- porting documentation, and has made the followirg determination (check whichever is applicable) : Location: street Address 14 Franklin Street Lot Number: 403, Map 26 This Determination is positive. 1. ❑ The area described below, which includes all/part of the area described in your request, is an Area subject to Protection Under the Act. Therefore, any removing, filing, dredging or altering of that area _ requires the filing of a Notice of Intent. 2. ® The work described below, which includes all/part 'of the work described in your request, is within an Area subject to Protection Under the Act and will remove, fill, dredge or alter that area. Therefore, said work requires the filing of a Notice of Intent. 2-1 Effective 11/10/89 3. ❑ The work described below, which includes all/part of the work described :.n your request, is w4 �h4.n the Buffer lone as dofined in the regulations, and will aitcr an ? -> suLjr�t to Proi.act.4On Ladr+r the Act Cnerefore, said work requires the filing of a Notice of intent. This Determination is negative: 1. ❑ The area described in your request is not an Area subject to Protection Under the Act. 2. ❑ The work described in your request is within an Area Subject to Protection Under the Act, but will not remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of intent. 3. ❑ The work described in your request is within the Buffer zone, as defined in the regulations, but will not alter an Area Subject to Protection under the Act. Therefore, said work does not require the filing of a Notice of intent. q. ❑ The area described in your request is Subject to Protection Under the Act, but since the work- described therein meets the requirements for the following exemption, as sneci€ried in the Act and the regulations, no Notice of Intent is required: issued by Salem conservation commission signature(s) e signed b a ma orit of e coasery ion -orni�sioi. e .ermin tion muse t Y ] S This G 9 Y on this 10th da of March 1994 before me personally appeared the above named to me known to be the person described in, and who executed, the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. July 15, 1999 otary Public My commission expires This Determination does not relieve the -applicant from complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. This Determination shall be valid for three years from the date of issuance. The applicant, the owner, any person aggrieved by this Determination, any Owner of lend abutting the lard upon which the proposed work is to be done, or any ten residents of the city or town in which such land is located, are hereby notified OT their right to request the Department of Environmental Protection to issue a Superseding Determination of Applicability, providing the request is made by certified mail or hand delivery to the Department, with the appropriate filing fee and Fee Transmittal Form as provided in 310 CMR 10.03(7) within ten days from the date of issuance of this Determination. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and the applicant. 2-2A / 3. ❑ The work described below. which includes all/part of the work described in your request, is within the Baffer Zone as defined in the regulations, and will alter an Area subject to Protection under the Act. .Therefore, aai.d work r.aquirn's the filing of a Notice of Intent. This Determination is negative: 1. ❑ The area described in your request is not an Area subject to Protection Under the Act. 2. ❑ The work described in your request is within an Area Subject to.Protection Under the Act, but will not remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of Intent. 3. ❑ The work described in your request is within the Buffer Zone, as defined in the regulations, but will not alter an Area subject to Protection Under the Act. Therefore, said work does not require the filing of a Notice of Intent. 4. ❑ The area described in your request is Subject to Protection Under the Act, but since the work described therein meets the requirements for the following exemption, as specified in the Act and the regulations, no' Notice of intent is .required: issued by the Department of Environmental Protection signature on this day of 19 , before me personally appeared to me known to be the person described in, and who executed, the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. Notary Public My commission Expires This supers Wing Drtctminat ion does not relieve the vplicent frcn eonplving with -!t other applicable federal, state or local statutes, or!inanccs, byiaws or regulation. This superseding Deter.minatnon shaiL be valid for three years from the date of issuance. The applicant, the owner, arty person aggrieved by:the Superseding Determination, any owner of land abutting the lard upon which the proposed work is to be done,.or any ten persons pursuant to G.L. c. 30A, §10A, are hereby notified of their right to request an adjudicatory hearing pursuant to G.L. c. 30A, §10, providing the request is made by certified mail or hand delivery to the Department, with the appropriate filing fee end Fee.. Transmittal Form as provided in 310 CMR 10.03(7) within ten days from the date of issuance of this supersedinir— Determination, and is addressed to: Docket Clerk, Office of General Counsel, Department of Enviromental Protection, One winter street, Boston, MA 02108. A copy of the request shall at the same time be sent by certified mail or hand delivery to the conservation commission, the applicant, and any other party. A Notice of Claim for an Adjudicatory Nearing shall comply with the Department's Rules for Adjx°':atory Proceedings, 310 CMR 1.01(6), and shall contain the following information: (a) the DEP wetlands File Number, name of the applicant, and address of the project;. (b) the complete name, address and telephone number of the party filing the request, and ; if represented by counsel, the name and address of the attorney; (c) the names and addresses of all other parties, if known; (d) a clear and concise statement of (1) the facts which are grounds for the proceeding, (2) the objections to this Superseding Determination, including specifically the manner in which it is alleged to be inconsistent with the Department's wetlands Regulations, (310 CMR 10.00) and (3) the relief sought through the adjudicatory hearing, including specifically the charges desired in the Superseding Determination; (e) a statement that a copy of the request has.been sent to the applicant, the conservation commission and each other party or representative of suchparty, if known. Failure to submit all necessary may result in a dismissal by the Department of the Notice of Claim for an Adjudicatory Nearing. 2-2B Leg>�kfo`�i�cs + `'CITY OF'SALEM ^ I CONSERVATION COMMISSION REQUEST FOR DETERMINATION , OF APPLICABILITY The Salem Conservation Commission will hear a Request for a Determination of Applicability, under the Wetlands Protection Act,Massachusetts General Laws, Chapter 131, Section 40, at the request of Franklin Realty Trust. The proposed work, located at 14 Franklin Street, consists of maintaining a 40 feet aluminum gangway and a 9'x 60'float.The Request will be heard on Thurs- day,March 10,1994 at 6:30 p.m.,One Salem Green, Second Floor Conference Room. BETSY HORNE, Chair March 3, 1994 SN30446 to i]'j�\ ;* i 3 fYn - t, ... n,s,:%> r� ..�C_i �, r'.. 1 •�-:act. �=t�^'K.vr."'.•• �--' � _ 'Iasi, rr� r e. 6 FPWNOy r � L; F., .3ya F�� ,- �. ���� -' ��' � d- �� �a..,.aa�y�s4t� v: _ ,� ` ter � :� — � � - = rte ; � �� = r �) - r,�or ' ,� _t_. • '•, a,.,. 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L�� r'.�i�,. _ �... �' __ _�� '� r ' ^rS . 1 10 CHR 10.9 9 DPS:fie No. Cru be purred by DFP) Form 2 SALEM Ap ftwU ran in St. Rea ty Trust canwavealth of Massachusetts Dss¢RegwU FSed FPh_ 74_ 7 994 Determination of Applicability Massachusetts Wetlands Protection Act, G.L. c. 131, 540 From Salem Conservation Commission Issuing Authority To Franklin S R alto Treat c=mP (Name of Person making request) (Name of property owner) Address 26 Dearborn Street Address Same This determination is issued and delivered as follows: ❑ by hand delivery to person making request on (date) ® by certified mail, return receipt requested on March 14, 1994 (date) Pursuant to the authority of G.L. c.131, 540, the Conservation Commission has considered your request for a Determination of Applicability and its sup- porting documentation, and has made the following determination (check whichever is applicable) : Location: street Address 14 Franklin Street Lot Number: 403, Map 26 This Determination is positive. 1. ❑ The area described below, which includes all/part of the area described in your request, is an Area subject to Protection under the Act. Therefore, any removing, filing, dredging or altering of that. area requires the filing of a Notice of Intent. 2. 0 The work described below, which includes all/part'of the work described in your request, is within an Area subject to Protection Under the Act and will remove, fill, dredge or alter that area. Therefore, said work requires the filing of a Notice of Intent. 2-1 Effective 11/10/89 f' , 3. ❑ The work described below, which includes all/part of the work described _n your reauegt. is wi-htn the suf_er Zona as (tofined is the regulation^. and wsil alter an T s SUb)rLL to ProLea! 4on L drr the Act rt,arefore, said work requires the filing of a Notice of Intent. This Determination is negatives 1. ❑ The area described in your request is not an Area subject to Protection under the Act. 2. ❑ The work described in your request is within an Area Subject to Protection under the Abut will alter that area. Therefore, a i� n d work doesh not require the fiot remove, fill, ling r ngof allotice Of Intent. 3. ❑ The work described in your request is within the Buffer zone, as defined in the regulations, t to ion Therefore gben d work does not require ut will not alter an Area uthecfili g of atNoticedO the Act. Intent. 4. ❑ The area described in your request is Subject to Protection under the Act, but since the work- described therein meets the requirements for the following exemption, as speci€ied in the Act and the regulations, no Notice of Intent is required: issued by Salem Conservation commission signature(s) This Determin tion must t:e signed by a na3oritWoe sert on 'ortCniaioa. y on this 10th da of March 1994 before me personally anpeared the above named to me known to be the person described in, and who executed, the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. July 15, 1999 otary Public My commission Expires This Determination does not relieve the-applicent from coap/Ying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. This Detereination shall be valid for three years frog the date of issuance. The applicant, the owner, any person aggrieved by this Determination, any owner of lard abutting the lard upon which the proposed wort is to be done, or any ten residents of the city or town in which such lard is located, are hereby notified OT their right to request the Department of Envirom nental Protection to issue a superseding Determination of Applicability, providing the request is made by certified mail or hard detivery to the Department, with the appropriate filing fee and Fee Transmittal Form as provided in 310 CMR io.o3(7) within ten days from the date of issuance of this Determination. A copy of the request shall at the same time be sant by certified mail or hand delivery to the Conservation Commission and the applicant. 2-2A 3. ❑ The work described below. which includes all/part of the work described in your request, is within the Buffer Zone as defined in the regulations, and will alter an Area Subject to Protection Under the Act. .Therefore, 4aid work requirrs the filing of a Notice of Intent. This Determination is negative: 1. ❑ The area described in your request is not an Area Subject to Protection Under the Act. 2. ❑ The work described in your request is within an Area Subject to.Protection Under the Act, but will not remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of Intent. 3. ❑ The work described in your request in within the Buffer Zone, as defined in the regulations, but will not alter an Area subject to Protection under the Act. Therefore, said work does not require the filing of a Notice of Intent. 4. ❑ The area described in your request is Subject to Protection Under the Act, but since the work described therein meets the requirements for the following exemption, as specified in the Act and the regulations, no' Notice of Intent is .required: issued by the Department of Environmental Protection signature on this day of 19 , before me personally appeared to me known to be the person described in, and who executed, the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. Notary Public my commission Expires This Supers^ding does not relieve the arglicent from noplving with -tt other applicable federal, state or local s,etutes, opannances, by-laws or reguiatinns. This Superseding Determination shall be valid for three years from the date of issuance. The applicant, the osier, any person aggrieved by:the Superseding Determination, any owner of lard abutting the lend upon which the proposed work is to be done, or arty ten person pursuant to G.L. c. 30A, §10A, are hereby notified of their right to request an adjudicatory hearing pursuant to G.L. c. 30A, i1o, providing the request: is made by certified mail or hero delivery to the Department, with the appropriate filing fee and Fee. Transmittal Form as provided in 310 CMR 10.03(7) within ten days from the date of issuance of this Superseding_. Determination, and is addressed to: Docket Clerk, Office of General Counsel, Department of Environmental Protection, One winter Street, Boston, MA 02108. A copy of the request shall at the same time be sent by certified mail or hand delivery to the conservation commission, the applicant, and any other party. A Notice of Claim for an Adjudicatory hearing shall comely with the Departments Rules for Adilk'.:atory Proceedings, 310 CMR 1.01(6), and shall contain the following information: (a) the OEP Wetlands File Number, name of the applicant, and address of the project;. (b) the complete name, address and telephone number of the party filing the request, and ; if represented by counsel, the rams and address of the attorney; (c) the raves and addresses of all other parties, if known; (d) a clear and concise statement of (1) the facts which are grounds for the proceeding, (2) the objection to this Superseding Determination, including specifically the manner in which it is unaged to be inconsistent with the Department's wetlands Regulations, (310 CMR 10.00) and (3) the relief sought through the adjudicatory hearing, including specifically the charges desired in the Supersedingeetermination; (e) a statement that a dopy of the request has.been sent to the applicant, the conservation Commission and each other party or representative of such party, if known. Failure to submit all necessary may result in a dismissal by the Department of the Notice of Ctaim for an Adjudicatory hearing. 2-2B 11 Dusk Na (ro be provided Ey DFP) cry/La.a Salem AppliumRronbJ ; St;p ,.+ Fealty Trust Commonwealth of Massachusetts Request for a Determination of Applicability Massachusetts Wetlands Protection Act, G.L. c. 131, §40 1. I, the undersigned, hereby request that the S a 1 em Conservation Commission make a determination as to whether the area, described below, or work to be performed on said area, also described below, is subject to the jurisdiction of the wetlands Protection Act, G.L. c. 131, S40. 2. The area is described as follows. (use maps or plans, if necessary, to provide a description and the location of the area subject to this request.) LOCation: street Address 14 Franklin Street Lot Number: 403 , Nan 26 3. The work in said area is described below. (use additional paper, if necessary, to describe the proposed work.) kaintain 40 foot aluminon; gangway and 9 'x60 ' float . Gangway and float do not alter, change or affect .wetland. f t 4. The owner(a) of the area, if not the person making this request, has been given written notification of this request on (date) The name(s) and address(es) of the owner(s): Franklin Street Realty Trust , 26 Dearborn St . Salem 5. I have fileda complete copy of this request with the appropriateriate regional office of the Massachusetts Department of Environmental Protection (date) DEP Northeast Regional office DEP Southeast Regional office 10 Commerce Way Lakeville Hospital Woburn, MA 01801 Route 105 Lakeville, MA 02347 DEP Central Regional office DEP Western Regional Office 75 Grove Street State Hou as West, 4th Floor Worcester, MA 01605 436 Dwight Street Springfield, MA 01103 6. I understand that notification of this request will be placed in a local newspaper at my expense in accordance with Section 10.5(3)(b) 1 of the regulations by a Conservation Commission and that I will be billed accordingly. Craig C . Burnham, Trustee 5ignatu Address 26 earborn St.. Tel. ( 508 74.5-1 7RR _ �i DPP rk No. (ro be p,a i4c4 by DFP) Ci,yn.'.S a 1 em nppliom ran in rest Realty Trust Commonwealth of Massachusetts Request for,a Determination of Applicability Massachusetts �,f�tlands Protection Act, G.L. c. 131, §40 Salem 1. 1, the undersigned, hereby request that the Conservation Commie sio'A make a determination as to whether the area, described below, or workito be performed on said area, also described below, .is subject to the jurisdiction of the wetlands Protection Act, G.L. C. 131, $40. 2. The area is describedi as follows. )Use maps or plans, if necessary, to provide a description and the location of the area subject to this request.) Location: Street Addret1NL' 14 Eranklln Street Lot Number: 403 t) ap 26 3. The work in said area is described below. (use additional paper, if necessary, to describe the proposed work.) h_aintain 40 foot aluminum gangway and 9 'x60 ' float . Gangway and float do not alter., change or affect wetland. I RECEIVED FEB 2 4 1994 Salem rlamung Dept 4. The.owner(a) of the area, if not the person making this request, has been given written notification of this request on (date) The name(,) and address(es) of the owner(a): Franklin Street Fealty Trust , 26 Dearborn Street Salem 5. 1 have filed a complete copy of this request with the appropriate regional office of the Haasachunetts Department of Environmental Protection (date) DEP Northeast Regional"office DEP southeast Regional Office 30 Commerce Way Lakeville Hospital Woburn, HA 01801 Route 105 Lakeville, MA 02347 DEP Central Regional Office DEP Western Regional Office 75 Grove Street State House West, 4th Floor Worcester, HA 01605 436 Dwight street Springfield, MA 01103 6. 1 understand that notification of this request will be placed in a local newspaper at my expense in accordance with Section 10.5(3)(6) I of the regulations by the conservation Commission and that I will be billed accordingly. 4Signature ` � Name Craig C. Burnham, Trustee Address 26 earborn Street (508) 745-1788 ppI'' Tel. ra t :.y DUr Pik Nn (ro a p, ded by DFP) ciy/T Salem AWaamV v.@„U, ; c+,.,,,.+ Fealty Trust Cosssom+ea2th of Xassachusetts Request for a Determination of Applicability Massachusetts Wetlands Protection Act, G.L c. 131, §40 1. f, the undersigned, hereby request that the S al em Conservation Commission make a determination as to whether the area, described below, or work to be performed on said area, also described below, is subject to the jurisdiction of the wetlands Protection Act, G.L. c. 131, 540. 2. The area is described as follows. (Use maps or plans, if necessary, to provide a description and the location of the area subject to this request.) Locations street Address 14 Franklin Street Lot Number: 403 , Mao 26 3. The work in said area is described below. (Use additional paper, if necessary, to describe the proposed work.) h.aintain 40 foot aluminurn gangway and 9'xE0 ' float . Gangway and float do not alter, change or affect wetland. 4. The owner(.) of the area, if not the person making this request, has been given written notification of this request on (date) The name(a) and address(es) of the owner(a)4 Franklin Street Realty Trust , 26 Dearborn St . Salem 5. I have filed a complete copy of this request with the appropriate regional office of the Massachusetts Department of Environmental Protection (date) DEP Northeast Regional office DEP Southeast Regional Office 10 Commerce way Lakeville Hospital Woburn, MA 01801 Route 105 Lakeville, MA 02347 DEP Central Regional Office DEP western Regional Office 75 Grove Street State House West, 4th Floor Worcester, MA 01605 436 Dwight Street Springfield, MA 01103 6. I understand that notification of this request will be placed in a local newspaper at my expense in accordance with section 10.5(3)(b) 1 of the regulations by a Conservation Commission and that I will be billed accordingly. Craig C . Burnham, Trustee Signatu Address 26 earborn St.. Tel. (.90S) 74S-1 7RR KMARINA DEVELOPMENT CO. 2 BREAKWATER DRIVE CHELSEA.MA 02150 23 February 1994 Ms. Debbie Hurlbert Salem Conservation Commissiom City Hall Salem, MA 01970 RE: 14 Franklin Street, Notice of Intent, Plans. Dear Ms. Hurlbert; At the direction of Mr. Craig Burnham I am forwarding the latest site plans for the above referenced project. These are the plans submitted to D.E.P. and M.E.P.A. as part of amnesty application W93- 2180. Please feel free to call if there are any questions. Rep , William H. 1 �q Agent fo o r RECEIV cc: Burnham FED 2 4 1994 81681 Manning WGP L MARINAS - FROM CONCEPT TO COMPLETION . 617-884-6811 9 FAX 617-884-1103 v v 40e o- OL W o r NS MAP o n r r,�► S ��. _� EDWARD FERRIS LI NAPLES, RD. I SALEM,MA. 1l SEE ENLARGEO PLA41 0A Al ' 0�� e L BYOR fAM11N REALTY TRUST V HALEY RD. MARBLEHEAD, MA. • P' /• W x w'oss., M..a IWALW ZCOMPAWING o 100 zoo NOTg THIS, PLAN I5 NOT BASED ON AN IN3TRU aw 5URVEY AND SCALEV- 100' SHOULD NOT BE USED FOR DETERMINATION OF PROPERTY LINES. PETITION OF- PLAN SHEET 1 OF 3 FRANKLIN STREET REALTY TRUST CRAIG C . BURNHAM , TRUSTEE LAND AT 14 FRANKLIN STREET SALEM, MA., 01470 Ms�ssoas'sH.zy Mxrzm.. 403 ' DANIEL J. LYNCH ^.owuvr st,l"s PROFE55IONAL ENGINEERS t 5URVE COMbERCST., MARMEHEAD MA. 142, I be 291 9Ld > 2c �r t < w J 3 a < 11 _ bL A T M KM /IMT •m z o a a►nls er cK � � -a s �RV19RC. It-Z�.99, D. 4-. RlV1110 •'L�'7� D'�• PLAN ACCOMMNYING PPK�TTITION OF SOUTHWEST ELEVATION SET Z OF3. FRANKLIN N STREET REALTY TRUST CRAIG C. BURNHAM , TRU5TEE LAND AT 14 FRANKLIN 5TREET 3ALEM, MA., 01470 , A43E55nQ-t sit-;PA. PAeCEL 4103 RANI@L J. LYNCH I►uaus r 2S."11S PROfE5 ZONAL ENGINEERS 4 SURSIew RS CRAIG C.BURNHAM 44 FRANKLIN ST. EDWARD FERFUS BYOR IS FRANKLM4 5T. FAMILY Iw w Z O s �0 icaur w o L1 .a LLN w �� �_ Nov IM '}►ply *(TITION/1R6 x�N v1 .. A�71T1•M •F �WYARP �S MHW jlzxn ow MHW ENO 50.0' -' EXISTING CDEED) END FENCE FENCE E OF • RIP RAP ` A PE C2) IV PILE-5I IV d PILE 10" PILE TO EXISTING GRADE 2.0' ABOVE g TO TOP OF WALL WALL It" PILE TO EXISTING GRADE PLAN "A" j► ®AIE �ta1+W1c ra�UitW4Gf81W O' 10' 20' 7uAw EWA 1: SCALE: 1" • L0' h a o �► PETITION FO �scT1oN A ^ N,T.f. M NEW RE CEKOENT PILES NO DOCUMEN T 1 O FOUND FOR I;EET EXISTING 12 ' PI 5 PRIOR TO 1484 BY EN INE R PILES REPLA¢E D Q11 PILE STUB'S BROKEN LOW MUD LINE AS PE1t OWNERS I AFFAOAVIT. (UNDER SE ATE COVER) 1 U�INIfED a/r4/99 PLAN ACCI PETITION OF PLAN "A� 3 of 3 I,R sm aOWTV CRAIG C. MMWWAM, TRUSTEE LAND AT 14 FRANKLIN 5T. SALEM, MA. 01x110 ASSESSOR% 5 MAP t6 RO CEL405 ' DANIEL J. LYNCH AU0. 2l. 1445 ppavSSwmc ENGINEER5 4 um ZR A ION CO,I/ { 2� z C 'an Commission Salem. Massachusetts 01970 W ASS 7 ' 94 CITY Cid CI_EP,,K" Vi f icF CITY OF SALEM CONSERVATION COMMISSION REQUEST FOR DETERMINATION OF APPLICABILITY The Salem Conservation Commission will hear a Request for a Determination of Applicability, under the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40, at the request of Franklin Street Realty Trust. The proposed work, located at 14 Franklin Street, consists of maintaining a 40 feet aluminum gangway and a 9 'x 60 ' float. The Request will be heard on Thursday, March 10, 1994 at 6 :30 p.m. , One Salem Green, Second Floor Conference Room. Betsy Horne Chair hGH Fez 3, 1994 This notice posted on 'Official Bulletin Board" City Hall Ave., Salem, Mass. on1Jaw at /S�// In accordance with U. Z3A A ?3 of M.G.L ����' a• f 310CMR: DEPARTbIEN•r OFENVIRONMEN"rALPRO'rECT1ON 10.90: continued Form 9 DEP Fila No. (To be provibeo by DEP) Salem •- _` _ Commonwealth Cuyrown of Massachusetts Aamcanr :r Enforcement Order Massachusetts Wetlands Protection Act, G.L. c. 131 , §40 From Salem Conservation Commission Issuing Authority To Craig Burnham December 16, 1992 Date of Issuance Property lot/parcel number. address 14 Franklin Street, Map ti126, Lot 1,1403 Extent and type of activity: Work being conducted within a Resource Area. (Removal of debris, various material within a Resource Area. Debris being moved with large crane) The Conservation Commission has determined that the activity described above is in violation of the Wetlands Protection Act,G.L.c. 131, §40,and the Regulations promulgated pur- suant thereto 310 CMR 10.00, because: .x Said activity has been/is being conducted without a valid Order of Conditions. ❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to .dated File number , Condition number(s) U Other(specify) The Conservation Commission hereby orders the following: The property owner, his agents,permittees and all others shall immediately cease and desist from further activity affecting the wetland portion of this property. ❑ Wetland alterations resulting from said activity shall be corrected and the site returned to its original con- dition. 11/10/89 310 CMR - 280.53 11t i 310 CMR: DEPARTMENT OF ENVI RON MEN'I'AL I'R01'EC'IION Issued by the Department of Environmental Protection ❑ Completed application forms and plans as required by the Act and Regulations shall be filed with the on or before (date), and no further work snail be performed until a public hearing has been held and an Order of Conditions has been issued to regulate said work. Application forms are available at: ❑ The property owner shall lake every reasonable step to prevent further violations of the act. ❑ Other(specify) Failure to comply with this Order may constitute grounds for legal action. Massachusetts General Laws Chap- ter 131, Section 40 provides: Whoever violates any provision of this section shalt be punished by a fine of not more than twenty-five thousand dollars or by Imprisonment tar not more than two years or both. Each day or portion thereof of continuing violation shall constitute a separate offense. Questions regarding this Enforcement Order should be directed to: Issued by Signatures) (Signature of delivery person or certified mad number) HEARING RIGHTS You are hereby notiled of your ngnt to an adluoroatory hearing under the Massacnusens Administrative Procedure Act.G.L.Chapter 30A,Section 10.regarding this Enforcement Order.In accordance wim Ins Dewrtmenrs Rules for the Conduct of Adjudicatory Pro. cosdmgs.310 CMR 1.00.a Notice of Claim tot Adjudicatory Hearing must be filed in writing wmmn twenty-one 1211 days 01 IM date of issuance of this Enforcement Order:must state clearly and concisely me$acts wnicn ars grounds for Ins proceedings and the relief sougnr.must include the appropriate tiling fee and Fee Transmittal Form as provided in 310 CMR 10.03(7):and must be addressed to: Docket Clerk Office of General Counsel Department of Environmental Protection One Winter Street.3rd Floor Boston.Massacnusens 02108 A copy of saw Notice at Claim must be sent to the appropriate regional office of DEP. 11/10/89 - 310 CMR - 280.51 310Chit: DEPAIII'AILNT(JF' ENVIItUNfd ENTALPRU'IEC"IIUN 10.99: continued Issued by _ Salem Conservation Commission f I Completed application forms and plans as required by the Act an0 Regulations shall be Idea with trio- Commission on or before .Tan. 14 93 ldalei and no further work shall be performed until a public nearing has been held ano an Oraer of Conomons has been Issued to regulate said work. Application lorms are available at. One Salem Green Planning Dept, a The property owner shall take every reasonable step to prevent further violations of Ine act G Other Ispecdy) Failure to comply with this Order may constitute grounds for legal action Massachusetts General Laws Chap ler 13 1. Section 40 provides: Whoever violates any provision of this section shall be punished by a fine o! not more than twenty-five thousand dollars or by Imprisonment for not more than two years or both. Each day or portion thereof of continuing violation shall constitute a separate offense. Questions regarding this Enforcement Order should be directed to: T)Phh i n in, 1 h,,t issued by `'?illiam E. 4us ,_,Cilanner Signature(s) _•-_.•_----_.rte - ISlgnalure of delivery person or certified mad number) 11/10/89 310 CMN - 2811.55 a . I 710 CMR: UEPA R'rM ENT OP ENV IRONAIEN'fAl. PROTECTIIIN NON.'TEXT PAGE: I I/10/B9 310 C&IR - 280.56 BURNHAM ASSOCIATES INC. Marine Contractors • Engineers 2 February 1993 Conservation Commission -P�CWE® 2 Salem Green FEB 0 41993 Salem, MA 01970 Salem H aur"no Q)PL Dear Ms. Horne, We are in receipt of your letter of 25 January. It appears there is disagreement between us concerning the extent of your authority with respect to the rebuilding of an existing stone seawall on my property. The opinion of the appeals court in the case of Town of Bourne vs. Austin is clear. I am enclosing for your convenience a copy of this decision. It is not my intent to circumvent authority and its rules where authority is the written law. However, pertaining to seawalls, a request for a determination of applicability with respect to our land is not warranted. We will await a positive response from you and other members of the commission. Si rely, Cra ' C. Burnham, pres . ham Associates, Inc. CCB/ca encl. 26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984 L BURNHAM ASSOCIATES INC. Marine Contractors a Engineers ' December 18, 199 �� or Salem Conservation Commission One Salem Green Salem, MA 01970 Dear Commissioners : We are in receipt of a comminication from you regarding lot 403 (map 2,6) at 14 Franklin Street. It refers to debris or removal of debris on the property in violation of Mass . Gen. Law c . 131 , s. 40. Be advised that no debris has been removed from the prop- erty, that there never has been any upon the property and so none can be or will be removed. Our barge-mounted crane has - been in the process of moving construction materiasl and equip- ment at this property in preparation for upcoming out-of-town construction projects . However, during the last storm, this barge did damage a portion of the North River dock bulkhead causing pieces to fall into the river. The masonry pieces have been recovered. If this bulkhead wall section is not immediate- ly reset, the next storm will , undoubtedly cause more material to enter the river. Accordingly, we intend to accomplish repair by resetting the masonry as quickly as possible. This repair, of course, will not affect the wetland portion of the property. Any suggestions from the commission are welcome. Sincerely yours, BUvv�AM ASSOC ES, NC. Crai C. Burnham v CCB/hg 26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984 BURNHAM ASSOCIATES INC. Marine Contractors • Engineers 4 January 1993 4 RE: Salem Conservation Commission Lot 403 (map One Salem Green 14 Franklin St. � y Salem, Massachusetts Dear Commissioners : Your letter to us on 28 December 1992 seems rather vague and suggests that the commission is not cognizant as to the provisions of Mass Gen. Law Chap. 13i , sec. 40 . A copy of the first clause of paragraph one is enclosed for your convenience. This law controls only the filling or removing of earth in the areas of wetlands. It does not control the repair or maintenance of existing structures thereon. The removal of fallen pieces of a wall from the North River, referenced in your letter, did not violate the laws provisions. Neither does resetting the granite blocks back into the wall violate it becaibse the wall is only being restored to its original state without alteration. Since the law is clear on this work, there is no issue for determination by the commission. This was affirmed by the Massachusetts Appellate Court in 1985 in the case of the Town of Bourne v. Austin, 393 Mass 1102 . A firm representative can meet with you and discuss the matter further if desired. Burnham Associates Inc. PLB/hg i Phoebe L. Burnham, Treasurer 26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984 %ON CO1j1! �= Conservation Commission Salem. Massachusetts 01970 December 28, 1992 Burnham Associates Inc. 26 Dearborn Street Salem, MA 01970 Dear Mr. Burnham: The Salem Conservation Commission is in receipt of your letter dated December 18, 1992 . We are offering the following information. Your letter states that "Our barge-mounted crane has been in the process of moving construction-material and equipment at this property. . . " and " . . .during the last storm, this barge did damage a portion of the North River dock bulkhead causing pieces to fall into the river. The masonry pieces have been recovered. " According to Massachusetts General Laws Chapter 131, Section 40, Areas Subject to Protection Under the Act include: -any bank bordering on the ocean -land under any of the water bodies listed in the Act -land subject to tidal action -land subject to coastal storm flowage -land subject to flooding The Act goes on to state that "The Department has determined that activities within one hundred (100) feet of those areas specified in 310 CMR 10.02 (1) (a) are sufficiently likely to alter said areas that preconstruction review may be necessary. Therefore, a request for a Determination of Applicability must be filed for all activities within the Buffer Zone. " Therefore, the Conservation Commissions' believes that it would be in your best interest to submit a Request for a Determination of Applicability to the Commission as soon as possible. Mr. Craig Burnham December 28 , 1992 Page 2 In addition, any work which you intend to do on the bulkhead caused by the storm of December 11, 1992 to December 13 , 1992 necessitates a letter to the Conservation Commission requesting emergency repairs. The letter must state: -that the work is necessitated by damage caused by the coastal storm of December 11, 1992 to December 13 , 1992 -notification describing in detail the work that is to be necessary to restore conditions existing on December 10, 1992 . -Notification by mail or by hand delivery to the Conservation Commission and the appropriate Regional offices of the Department of Environmental Protection seeking approval of this work prior to the commencement of work -Work falls within certain categories specified by the Department of Environmental Protection. -Written notification is received by the Commission by January 15, 1993 and that the work is completed by February 15, 1993 . I urge you to contact the Salem Conservation Commission as soon as possible to remediate the situation. If you have any questions regarding this letter or if you desire further information, please do not hesitate to contact me or Conservation Administrator, Debbie Hurlburt at 745-9595 ext. 311. Sincerely, Betsy Horne Chair cc: Kevin Daly, City Solicitor JM\JM\BURNLETT JON C r �= Conservation Comms Suit-1n. Massuchusetts 01970 s,,,c�o� January 25, 1993 Craig Burnham Burnham Associates Inc. 26 Dearborn Street Salem, MA 01970 Dear Mr . Burnham: Pursuant to your letter dated January 4, 1993, the Conservation Commission disagrees with your opinion regarding whether the activity you have or will be doing is within the Commissions ' jurisdiction. As stated in the letter by the Commission dated December 28, 1992 ; "The Act goes on to state 'The Department has determined that 'activities within one hundred ( 100) feet of those areas specified in 310 CMR 10 . 02 ( 1 ) (a ) are sufficiently likely to alter said -areas that preconstruction review may be necessary. Theretore, a request for a Determination of Appl'icabilitX must be filed for all activities within the buffer zone. ' Again, the Conservation Conuission is requesting that you file a Regiiest for Determination of Applicability as soon as possible. It you dispute the Conservation Commissions ' opinion or if you would like to discuss this further with the City of Salem's Legal Council. , please contact City Solicitor , Kevin Daly at 745-0500. ff you desire additional information on filing a Request for Determination of Applicability, please contact Conservation Administrator , Debbie Hurlburt at 745-9595 ext . 311 . Sincerely, petsy`Korne/ Chait cc : �.ii.y Solicitor , Kevin Daly E X\011',,,BUR NMEMO. 3 BURNHAM ASSOCIATES INC. Marine Contractors • Engineers 4 January 1993 RE: Salem Conservation Commission Lot 403 (map �� One Salem Green 14 Franklin St Bj� Salem, Massachusetts Dear Commissioners : Your letter to us on 28 December 1992 seems rather vague and suggests that the commission is not cognizant as to the ! provisions of Mass Gen. Law Ciiap. 131 , sec. 40 . A copy of the first clause of paragraph one is enclosed for your convenience. This law controls only the filling or removing of earth in the areas of wetlands . It does not control the repair or maintenance of existing structures thereon. The removal of fallen pieces of a wall from the North River, referenced in your letter, did not violate the laws provisions . Neither does resetting the granite blocks back into the wall violate it because the wall is only being restored to its original state without alteration. Since the law is clear on this work, there is no issue for determination by the commission. This was affirmed by the Massachusetts Appellate Court in 1985 in the case of the Town of Bourne v. Austin, 393 Mass 1102 . A firm representative can meet with you and discuss the matter further if desired. Burnham Associates Inc. PLB/hg Phoebe L. Burnham, Treasurer 26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984 738 19 Mass. App. Ct. 738 19 Mass. App. Ct. 738 739 al • ill aoume�. :\us�in. �f noume c. Austin. Nunc_v S. Marks, Assistant Attornev General, for the Com- monwealth, amicus curiae, submitted a brief. GRANT. J. This was a complaint brought in the Superior TOWN of BOURNE vs. HILDA E. AUSTIN 3c another.' Court under G. L. c. 231A and under the second sentence of the twenty-third paragraph of G. L. c. 131, § 40, as amended B" sable. Apnt J, 1985. —April _9. 1955. through St. 1979, c. 693.= by which the plaintiff town sought Rm-•nt: GN[ANEN,C.t . Rose.&Gas r.It to enjoin the defendants from making repairs to a retaining wall located at the base of a seawall which runs alone the Wetlands Protection Act.Administrative L<nv. Primaryjurisdiction.S-funici- Pocasset River side of the defendant Hilda E. Austin's property pal Corporations. Conservation commission. in Bourne. The theory of the complaint was that the repair Although it would have been appropriate for a landowner who wished to work being done by the defendants constituted the tilling or repair a retaining wall located at the base of a seawall on her property alteration of a bank bordering on a tidal river and that the to have tiled a notice of intention under G. L. c. 131. ; 10, with the defendants had failed to rive the towns conservation commis- 1 conservation commission of the town in which the land is located. or. sion the written notice of intention which is required by the altematively to have requested the commission's determination whether and which triggers the proceedings § 40 was applicable to the two sentences of 3 -10,the proposed repairs, in the circumstances it was also permissible for her to make the repairs, subject to the possibility leaden= to a commissions issuing an order of conditions. that the town or the Commonwealth would take enforcement action The complaint was not tiled until after the repair work had " against her. 17401 been completed. The trial judge denied a motion by the town In a civil action to enforce the wetlands protection provisions of G. L.C. I-1, for summary judgment which was not tiled until the eve of trial.' i 40. a town tailed to sustain its burden of proving by a preponderance of the evidence that a landowner's repairs to a retaining_ wall on her t properiv constituted either a tilline or an alteration of wetland. which "Anv court having equity Jurisdiction may restrain a violation of this would have brought the repairs within the ,cope of i 40 and State section and enter such orders as it deems necessary to remedy such violation, j 1 regulations promulgated thereunder. 1740-7411 upon the petition of . . . a cit} or town l In an action seekine enforcement of G. L. c. 131, a 40. there was no basis 'So tar as here material those sentences read: "No person shall remove. for a town's contention, raised for the first time on appeal. that thejudge till. dredOe or alter anv bank . . . bordering on . . . anv . . . river . . . or , ..should have requested a determination by the towels conservation coin_ any land subject to tidal action . . . other than in the course of maintaining, ( 1 mission as to the applicability of ss' 40 to the defendants' repair work. repairing or replacing, but not substantially changing orenlarging, an exist- 3 [7431 ing and lawfully located structure or tacility used in the service of the public 4 and used to provide electric. izas, water, telephone. telegraph and other I telecommunication services, without tilim, written notice of his intention x CIVIL ACTION commenced In the Superior Court Department to so remove, till.dredge or alter. including such plans as may be necessary on October 5. 1981 . to describe such proposed acti%av and its effect on the environment and 4 without receiving and complying with an order of conditions and provided (. The case was heard by John F. Moriarty, J. all appeal periods have elapsed Said notice shall be tiled . . . [with{ the � Robert Sweenev Trov, Town Counsel, for the plaintiff. conservation commission . . . . " l Laurie S. Gill(Daniel O. Mahonev with her) for the defend- 'We do not consider the propriety of the order deriving the motion for ants. the reason that neither the motion nor anv of the relevant papers have been reproduced in the record appendix. See Kunen v. First Agricultural Nall. Gregor 1. McGregor, for Massachusetts Association of Con- Dank. 6 Nlass. App. Cf. 684. 685-691 (1978). Accordingly. we do not servation Commissions, amicus curiae, submitted a brief. reach the question whether a challenge to the dental of a motion for summary judgment is Foreclosed once the case has been fully tried. See Webster v. 'Charles W. Austin, a son of Hilda. Kowal. 394 :Vlass. 443, 445 n.3 (1985). I i f 740 19 Mass. App. Ct. 738 19 Mass. App. Ct. 738 741 Y Bourne r.Austin. x R¢3 Boume c.Austin. The judge, following a two-day trial, described the repairs as # written request under the second paragraph of§40 for a written follows. "The contractor erected a simple wooden for against I determination whether the section is applicable to particular the seaward face of the retaining wall and poured fresh concrete proposed repairs.' See County Commrs. of Bristol v. Conser- behind it. As intended, the fresh concrete flowed into the crack a vation Commn, of Dartmouth, 380 Mass. 706, 706-707(1980); which had opened up between the retaining wall and the sea- Department of Environmental Quality Engr. v. Cumberland wall, and into such holes and crevices as had been created in Farms of Conn., Inc., 18 Mass. App. Ct. 672, 675 (1984). the retaining wall itself by the action of the water. The contrac- The statute simply provides a second alternative to a landowner for then smoothed off the surface of the freshly poured concrete who wishes to perform some sort of work in a wetland area. and, after it had hardened, removed the wooden form."'Judg- There is nothing in the statute which can be tortured into a ment was entered declaring that the defendants had not violated blanket requirement that every type of repair work must be G. L. c. 131, § 40, "when they caused the seawall . . . to be preceded by either a notice of intention under the first paragraph repaired without filing a notice of intent with the [c]onservation of § 40 or a request for a determination under the second [c)ommission of the town of Bourne."The town appealed. We paragraph of that section. consider its contentions seriatim. 3. It follows that there is a third alternative, which is that 1. The statute does not on its face require every landowner a landowner who believes that the repairs he wishes to make (or someone acting in his behalf) to file a notice of intention in a wetland area do not fall within the scope of the prohibitory with the local conservation commission concerning each repair words "[n)o person shall remove, fill, dredge or alter" can he may wish to perform in a wetland area. The words of proceed to make the repairs and take his chances on whether prohibition employed at the very outset of § 40 are "remove, a civil action will be brought against him under the twenty-third fill, dredge [and] alter." The word "repair" is conspicuously paragraph of § 40 or a criminal prosecution instituted under absent. The fact that public utilities are expressly excused by the twenty-fifth paragraph of that section. That is the course the same sentence of the statute from filing notices of intention followed by the defendants in the present case. So long as the whenever they wish to make repairs which would not"substan- statute leaves that alternative open to the landowner, he is not tially chang[e] or enlarg[e) . . . existing and lawfully located to be faulted for pursuing it. structure[s) or facilit[ies]" avails the town nothing. The only There are understandable reasons why he may choose to do effect of that language is to exclude from the operation of the so. Quite apart from the time and expense involved in the statute certain repairs which would otherwise amount to re- administrative process, one who submits a request for a deter- moval, filling, dredging or alterations. There is nothing in mination whether the statute applies will, as a practical matter, what the town refers to as the"utility exception"which supports have the burden of persuading the commission that the statute the contention that every other type of repair must necessarily does not apply. If he proceeds to make the desired repairs amount to one of the four forbidden activities. without first approaching the commission, the town which 2. Nor is there any merit to the contention that the only brings an enforcement action under the twenty-third paragraph permissible alternative to filing a notice of intention with a will have the burden of proving by a fair preponderance of the local conservation commission is the submission to it of a 'There is no contention that any of those findings is"clearly erroneous" The thirteenthparagraphof§40 rovides for an a within the meaning of Mass.R.Civ.P. 52 (a), 365 Mass. 816-817 1974 . p ppealtotheDepanment ( ) of Environmental Quality Engineering if the local conservation commission See Marlow V. New Bedford, 369 Mass. 501, 508 (1976); New England fails to act on any such request within twenty-one days of its submission Canteen Se"., Inc. v. Ashley, 372 Mass. 671 675 (1977). €- to the commission. 742 ' ' 19 Mass. App. Ct. 738 1 19 Mass. App. Ct. 738 743 1 Bwme v.Austin. - Bwme v.Austin. evidence that the work in question amounts to one of the additional findings, we will not supply the missing finding forbidden activities. Compare Brotherhood of Alpha Upsilon, ourselves. See Building Inspector of Lancaster v. Sanderson, Inc. v. Zoning Bd. of Appeals of Bridgewater, 15 Mass. App. 372 Mass. 157, 160-161, 163-164 (1977). Ct. 991, 992 (1983). And, of course, the Commonwealth will The portions of the definition of the word "alter" which have the burden of proof beyond a reasonable doubt if a criminal — were relied on were found in 310 Code Mass. Regs. 10.02: prosecution is instituted. 1 (3) (d) and (e) (1980). Subsection (d), when read with the 4. We turn now to the efforts the town made below to sustain preamble of (3), defined "Alter" (emphasis in original) to in- its burden of proof on the question whether the repair of the clude"[t]he dumping, discharging or filling with any materials retaining wall fell within any of the prohibitions of the opening which could degrade the water quality." See Rutland v. Fife, clause of § 40. So far as can be ascertained from the trial 385 Mass. 1010(1982). Prescinding from the difficulty already transcript and from the town's requests for findings of fact and encountered with the word "fill," we join the judge in being rulings of law, it sought to establish two alternative propos]- unable to discover any evidence that fresh concrete "could tions. One was grounded on the definition of the word "fill" degrade the water quality." which appeared in the regulations promulgated by the Commis- The further definition of "alter" found in (e) of the above sioner of the Department of Environmental Quality Engineering regulation included "[t]he driving of pilings or the erection of (DEQE) under the twenty-fourth paragraph of§ 40 as in effect buildings or structures of any kind."The word"structure" was at the time the work in this case was performed, which was not defined in § 40 or in any of the regulations, but when that in the late summer of 1981. The other proposition was grounded word is placed in juxtaposition with the words "pilings" and on designated portions of the definition of the word "alter" "buildings" (neither of which was defined) there emerges a which appeared in those same regulations.' connotation of permanence not ordinarily associated with The word"fill"was defined in 310 Code Mass. Regs. 10.02: wooden forms which are customarily removed as soon as the (17) (1980) as follows: "Fill shall include the placing of any concrete hardens. We are not obliged to give "alter" a strict materia] that raises, either temporarily or permanently, the construction, such as would be appropriate if we were dealing elevation of any area subject to [§ 40]" (emphasis in original). with one of the express exceptions from the scope of § 40 The difficulty with attempting to utilize that definition is the which are set out in its eighteenth paragraph. See Department lack of any finding by the judge that the work performed by of Environmental Quality Engr. v. Hingham, 15 Mass. App. the defendants raised the elevation of any part of the retaining Ct. 409, 412 (1983); Department of Environmental Quality wall. The evidence on that point was conflicting (even the Engr. v. Cumberland Farms of Conn., Inc., 18 Mass. App. chairman of the conservation commission appeared confused), Ct. at 673. Even so, we are not persuaded that the simple and, in the absence (as here) of a motion under Mass.R.Civ.P. repairs described in the judge's findings constituted an 52(b), 365 Mass. 817 (1974), to amend the findings or for "alter[ation]" within the meaning of § 40.8 5. We deal finally with the notion, raised here for the first 'The purposes of those regulations were stated in 310 Code Mass. Reams. time, that the judge should have referred to the conservation 10.01: (2) (1980) as follows: "(a) These regulations are promulgatedto a, commission, for an initial determination by it, the whole question create uniformity of process and to help clarify the provisions of [G. L. c. 131, § 40] by establishing standard definitions and procedures as required by [§401. (b)The regulations shall complement [§401 and have the force of _ 'we are told in the brief of one of the amici curiae that the regulatory law after they have been formally published by the Secretary of the Common- definition of"alter" was changed by 310 Code Mass. Regs. 10.04 (1983) wealth."The regulations contained no definition of the word"repair." to read: "Alter means to change the condition of any Area Subject to a Protection Under [G. L. c. 131, § 401" (emphasis in original). 744 19 Mass. App. Ct. 738 � - 19 Mass. App. Ct. 745 745 + ' 'Martin v.Rent Control Board of Cambridge. Boume v.Austin. up whether § 40 had any application to the repairs effected by the defendants. That notion is contrary not only to the prayers of 4 the complaint, which sought declaratory as well as Injunctive FELIPE S.MARTIN VS.RENT CONTROL BOARD OF CAMBRIDGE• relief, but also to the theory on which the case was tried. The notion was undoubtedly inspired by the release, pending the . Middlesex. March 11, 1985.—April 30, 1985. appeal in this case, of our decision in Department of Environ- , mental Quality Engr. v. Cumberland Farms of Conn., Inc., 4' PRSenC GRFANEY,C.J..CII TER,&KAMAN,n. supra, in which the work being performed by the defendant clearly constituted an "alteration"of a wetland and the substan- Rent Control. Cambridge. Statute, Construction. five question was whether the work fell within the"agricultural A provision of St. 1976,c.36,the rent control act for the city of Cambridge, use" exception found in the eighteenth paragraph of § 40 (18 exempting from rent control a"unit or units in an owner-occupied two- 15"3'- owner-occupied house Mass. App. Ct. at 673). We were careful to point out that the �a_ family or three-family house;' contemplated an p DEQE was not asking the court to decide that question but ">`- in which there are either two or three actual dwelling units irrespective had brought the action for the limited purpose of securing of how many families may be living in the property,so that an apartment compliance with the administrative process (18 Mass. App. building consisting of four units, two on each side of a common wall, with four separate entrances,kitchens,baths,and sleeping areas,would Ct. at 672-673). We held that the applicability of the statute _ g should be determined in the first instance by the local conser- be a four-family building subject to rent control even though the owner's '. family occupied two of the four rental units. (746-7501 vation commissions rather than by,-the DEQE. There is nothing .: in that case or in Hamilton v. Conservation Commission of . t t = vAr L. ACTION commenced in the Cambridge Division of the Orleans, 12 Mass. App. Ct. 359, 368 (1981), which supports CIVIY the plaintiffs newfound contention. District Court Department on October 2, 1980. " 4 On appeal to the Superior Court Department the case was Judgment armed. "� heard by John Paul Sullivan, J. Y4i r , & Patricia A. Cantor (Seth Brian Haber with her) for the defendant. ' r GREANEY, C.J. This is an appeal by the rent control board if Cambridge from a judgment of the Superior Court which , determined that property owned by Felipe S. Martin at 109-111 µ Henry Street is an owner-occupied three-family house exempt a ' from St. 1976,c. 36,the Cambridge Rent Control Act(Act). ,. The facts are not in dispute. In 1976, Martin purchased the -' property at 109-111 Henry Street. The property is an apartment building consisting of four units, two on each side of the building. At the time of purchase, Martin, his wife, and two children moved into unit two at 111 Henry Street which oc- cupies the second and third floors at the 111 side. The other " three units in the building were rented to tenants. In July, .. 1979, after the tenant in the first floor unit at 111 Henry Street