64-249 - 70A NORTH STREET - CONSERVATION COMMISSION L.�dr/-.?5/9 � or :�
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COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE
C
WILLIAM F.WELD E E 11V E® TRUDY�C�ry
ARGEO PAUL CELLUCCIDAVID B. STRUHS
Lt.Governor MAY 0 2 1997 Co�r
Salem Planning Dept. APR 2 91997
Craig C. Burnham WETLANDS\SALEM
- - Burnham Associates DEP File # 64-0249
26 Dearborn Street Superseding Order
Salem, MA 01970 of Conditions (Denial)
Dear Sir:
The Metropolitan Boston/Northeast Regional Office of the
Department of Environmental Protection, Wetlands Division, has
completed its review of the above-referenced file, "repair" of
structures along an existing shoreline, in preparation to issuing
a Superseding Order of Conditions . Pursuant to the provisions of
the Wetlands Protection Act (the Act) under Massachusetts General
Laws, Chapter 131, Section 40 , the Department is issuing the
enclosed Superseding Order of Conditions denying the project, based
upon: 1) information contained in the file to date and plans
submitted; 2) the November 27, 1996 site visit; and 3) reasons the
Department has deemed necessary to protect the statutory interests
identified in the Act .
The Department' s review of the file confirms that the project
site contains the following Areas Subject to Jurisdiction of the
Act : The 100-foot "Buffer Zone" to both Coastal Bank and Coastal
Beach, Coastal Bank itself, Coastal Beach (tidal flat) itself , Land
under the Ocean and Land subject to Coastal Storm Flowage . These
areas are presumed by the Act' s regulations to likely be
significant to the statutory interests of protection of fisheries,
protection of land containing shellfisheries (closed but mapped) ,
and protection of wildlife habitat , and are considered to be per se
significant to flood control and storm damage prevention.
Activities proposed include installation (driving) of steel
sheet piles, followed by addition of Mirafi-type siltation fabric
and clean fill . At the site visit , you acknowledged that no plans
existed which depicted these activities . You stated the project
purpose to be "repair" of the site' s deteriorated bulkhead and
stabilization of the shoreline . It was explained to you that
10 Commerce Way 0 Woburn,Massachusetts 01801 a FAX (617)932.7615 a Telephone (617) 932-7600 a TDD#(617)932-7679
page 2
064-0249
"repair" was normally applied to structures which still functioned
at least substantially as constructed. In this case, the bulkhead
has long ceased to function, so the project is more appropriately
considered to be new shore armoring than repair.
On behalf of applicant Burnham Associates, Inc. , you appealed
the Salem Conservation Commission' s denial of the project, citing
in your May 30, 1996 letter your position that the denial was not
necessary in order to protect the statutory interests enumerated in
the Act . The Department disagrees .
The Salem Conservation Commission' s May 17, 1996 decision was
issued according to 310 CMR 10 . 05 (6) (c) of the Act' s regulations.
Briefly, that regulation allows a commission to prohibit an
activity when there is insufficient information to find that the
activity complies with the Act . On appeal, the Department is
mandated by 10 . 05 (7) (h) to consider ONLY the information available
to the conservation commission. Also, please be advised that an
Abbreviated Notice of Intent, rather than a "regular" Notice of
Intent, is not appropriate for a project of this type; this was
explained at the site visit .
The Department issued its December 3 , 1996 information request
letter to you because a) at that time we were not certain as to
whether or not the Commission' s denial was based solely upon lack
of information. Subsequently the Commission stated to us that
indeed that was the case . b) It appeared that certain information
available to the Commission during its review has not been provided
to the Department . For instance, the shellfish information which
you apparently furnished to the Commission earlier was never been
provided to the Department in this matter. Also, it was explained
to you at the site visit that, regardless of the direction of this
decision, you might wish to consider the preparation of a project
.Llan, as such would almost surely be desired by any permitting
authority. Therefore, the Department' s letter attempted to outline
some aspects of such a plan. In any event, you did not respond to
that letter, and thus the Department issued to you its January 27 ,
1997 DIRECTIVE to respond. Despite your agent' s (William Kelley)
January 29, 1997 letter asking for an extension (and the
Department' s verbal approval) of the response time to March 14 ,
1997, there has been no further communication as of this date .
Consequently, the Department is of the opinion that the
enclosed Superseding Order of Conditions denying the project as
proposed serves to protect the statutory interests identified in
the Wetlands Protection Act, M.G.L. Chapter 131, Section 40 .
However, the Department reserves the right, should there be further
proceedings in this case, to raise additional issues and present
further evidence as may be appropriate . Should you or any
page 3
064-0249
concerned party dispute these findings, your attention is directed
to the language at the end of the enclosed Order specifying the
rights and procedures for appeal .
On a statutorily separate but related matter, please be
advised that even a Final Order of Conditions which permits the
project may not have any effect upon a decision issued under
another statute, e.g. , a 11401" Water Quality Certification or a
Waterways license . Therefore, you are strongly urged to attempt
anticipated compliance with all other applicable statutes prior to
trying to secure an affirmative Final Order of Conditions . Also,
please be advised that this decision should NOT be considered
dispositive of any enforcement action which may occur under any
statute.
Should you have any questions regarding this matter, please
contact Ralph Perkins of the Wetlands Section at (617) 932-7786 .
Very truly yours,
DEP Wetlands an"aterways Section
Ralph Perkins ames A. Sprague, Section Chief
CC : Conservation Commission, City Hall, Salem, MA 01971
310 CMR 10.99
Form S DEP File No 064-0249
(To be provided by DEP)
City/Town Salem
Applicant Burnham Associates
DENIAL
Superseding Order of Conditions
Massachusetts Wetlands Protection Act
G.L. c.131, 540
From the Department of Environmental Protection
To Burnham Associates by Crain C Burnham (Name of Applicant)
Address 26 Dearborn Street Salem MA 01970 (applicant)
To Same (Name of Property Owner)
Address (owner)
This Order is issued and delivered as follows:
❑ by hand delivery to applicant or representative on (date)
® by certified mail, return receipt requested on April 99, 1997 (date)
This project is located at lot 423. 70A North Street
The property is recorded at the Registry of Deeds. Essex South
Book 13256
Page 276
Certificate (if registered)
The Notice of Intent for this project was filed on March 29. 1996 (date)
The public hearing was closed on May 9 1996 (date)
Findings
The Department of Environmental Protection has reviewed the above-referenced
Notice of Intent and plans and has held a public hearing on the project. Based on
the information available to the Department of Environmental Protection at
this time, the Department of Environmental Protection has determined that the
area on which the proposed work is to be done is significant to the following
interests in accordance with the Presumptions of Significance set forth in the
regulations for each Area Subject to Protection Under the Act (check as
appropriate) :
❑Public water supply ® Flood control ® Land containing shellfish
❑Private water supply ® Storm damage prevention ® Fisheries
❑Ground water supply ❑ Prevention of pollution ® Protection of wildlife
habitat
Total Filing Fee Submitted $280.00 State Share $127.50
City/Town Share $152 .50 ('h fee in excess of $25)
Total Refund Due $0 City/Town Portion $0 State Portion $0
N total) total)
Effective 11/20/92 5-1
Therefore, the Department of Environmental Protection hereby finds that the
following conditions are necessary, in accordance with the Performance Standards
set forth in the regulations, to protect those interests checked above. The
Department of Environmental Protection orders that all work shall be performed
in accordance with said conditions and with the Notice of Intent referenced
above. To the extent that the following conditions modify or differ from the
plans, specifications or other proposals submitted with the Notice of Intent, the
conditions shall control.
General Conditions
DENIAL. See attached "Reasons for Denial. "
1. Failure to comply with all conditions stated herein, and with all related
statutes and other regulatory measures, shall be deemed cause to revoke or
modify this Order.
2. The Order does not grant any property rights or any exclusive privileges; it
does not authorize any injury to private property or invasion of private
rights.
3. This Order does not relieve the permittee or any other person of the
necessity of complying with all other applicable federal, state or local
statutes, ordinances, by-laws or regulations.
4. The work authorized hereunder shall be completed within three years from the
date of this Order unless either of the following apply:
(a) the work is a maintenance dredging project as provided for in the Act;
or
(b) the time for completion has been extended to a specified date more than
three years, butlessthan five years, from the date of issuance and
both that date and the special circumstances warranting the extended
time period are set forth in this Order.
5. This Order may be extended by the issuing authority for one or more periods
of up to three years each upon application to the issuing authority at least
30 days prior to the expiration date of the Order.
6. Any fill used in connection with this project shall be clean fill,
containing no trash, refuse, rubbish or debris, including but not limited to
lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes,
refrigerators, motor vehicles or parts of any of the foregoing.
7. No work shall be undertaken until all administrative appeal periods from
this Order have elapsed or, if such an appeal has been filed, until all
proceedings before the Department have been completed.
8. No work shall be undertaken until the Final Order 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. In
the case of recorded land, the Final Order shall also be noted in the
Registry's Grantor Index under the name of the owner of the land upon
which the proposed work is to be done. In the case of registered land,
the Final Order shall also be noted on the Land Court Certificate of
Title of the owner of the land upon which the proposed work is to be
done. The recording information shall be submitted to the Department of
Environmental Protection on the form at the end of this Order prior to
commencement of the work.
9. A sign shall be displayed at the site not less than two square feet or more
than three square feet in size bearing the words, "Massachusetts Department
of Environmental Protection, File Number DENIED . 11
10 . Where the Department of Environmental Protection is requested to make a
determination and to issue a Superseding Order, the Conservation Commission .
shall be a party to all agency proceedings and hearings before the
Department. -
5 -2
11. Upon completion of the work described herein, the applicant shall forthwith
request in writing that a Certificate of Compliance be issued stating that
the work has been satisfactorily completed.
12 . The work shall conform to the following plans and special conditions:
Plans: SHE ATTACHED REASONS FOR DENIAL
Title: ...(See attached. )
Dated:
Signed & Stamped by:
On File with:
Title:
Dated:
Signed & Stamped by:
On File With:
Title:
Dated:
Signed & Stamped by:
On File With:
Title:
Dated:
Signed & Stamped by:
On File With:
6
See attached reasons for denial, numbered 1 through 5.
5-3B
REASONS FOR DENIAL
File # 064-0249
1 . It is the opinion of the Department that the proposed project ,
as described in Notice of Intent ("NOI" ) # 064-0249 and
documents A, B, and C received with that Notice, does not meet
conditions which the Department deems necessary for
preservation of the statutory interests within the resource
area of a coastal bank, as set forth in 310 CMR 10 . 30 (3) .
Although no meaningful plans describing the project were
submitted, the bank' s slope appears to be of sufficient
steepness as to provide sediment to the adjacent coastal beach
(tidal flat) . See 10 . 30 (7) . No buildings to be protected were
identified. The project has NOT been shown to serve the
statutory interests presumed to be present, ie, flood control
and storm damage prevention. Specifically, the Act' s
regulation at 310 CMR 10 . 30 prohibits an Order of Conditions
which allows a project not shown to either meet performance
standards of that area, or have overcome the area' s
presumptions of significance.
Thus, the project is not in compliance with that
regulation, and the Department must deny the project as ,
proposed.
2 . It is the opinion of the Department that the proposed project,
as described in Notice of Intent ( "NOI" ) # 064-0249 and
documents A, B, and C received with that Notice, does not meet
conditions which the Department deems necessary for
preservation of the statutory interests within the resource
area of a coastal beach (tidal flat) , as set forth in 310 CMR
10 . 27 (3) . That regulation requires that a project shall not
increase erosion, alter the form or decrease the volume of
such a beach. By armoring the bank, the project proposal would
accomplish each of these deleterious effects via blocking of
the existing sediment supply. Further, since this tidal flat
is presumed significant to wildlife habitat, to marine
fisheries and to land containing shellfish (mapped shellfish
beds are present) , interruption of this sediment supply may
affect those interests as well . No data was submitted by the
applicant or any party to show that either statutory
presumptions would be overcome or that applicable performance
standards would be met .
Thus, the project is not in compliance with that
regulation, and the Department must deny the project as
proposed.
3 . It is the opinion of the Department that the proposed project,
as described in Notice of Intent ( "NOI" ) # 064-0249 and
documents A, B, and C received with that Notice, does not meet
conditions which the Department deems necessary for
preservation of the statutory interests within the resource
area of land subject to coastal storm flowage, as set forth in
310 CMR 10 . 21 . That regulation requires that a project shall
have sufficient information ' submitted to find that it
"protects the public interests in the coastal resources listed
in MGL c . 131, ss 40 . " Specifically, the Department finds, via
10 .24 (1) , that the statutory interests present in this
resource area are those of flood control and storm damage
prevention. No data was submitted by the applicant or any
party to show that either statutory presumptions would be
overcome or that applicable performance standards would be
met .
Thus, the project is not in compliance with that
regulation, and the Department must deny the project as
proposed.
4 . It is the opinion of the Department that the proposed project,
as described in Notice of Intent ("NOI" ) # 064-0249 and
documents A, B, and C received with that Notice, does not meet
conditions which the Department deems necessary for
preservation of the statutory interests within the resource
area of (nearshore) land under the ocean, as set forth in 310
CMR 10 . 25 (1) . That regulation requires that a project shall
not affect the statutory interests presumed to be present, ie,
flood control, storm damage prevention, protection of land
containing shellfish, protection of fisheries and protection
of wildlife habitat . Specifically, the applicant has failed to
provide information ("a clear showing" ) that either statutory
presumptions would be overcome or that applicable performance
standards would be met .
Thus, the project is not in compliance with that
regulation, and the Department must deny the project as
proposed.
5 . The attached cover letter is hereby and severably made a part
of this Order of Conditions .
Findings Pursuant to M.G.L. Chapter 30,
Sections 61 to 62H inclusive
(M.E . P.A. )
The project as described in the notice of Intent for DEP File
# 064-0249 is "categorically included" pursuant to the
"Implementation of the Massachusetts Policy Act" as adopted by the
Secretary of Environmental Affairs . The project is "categorically
included" as the wetlands thresholds established under 301 CMR
11 .26 (7) (a) (3) of M.G.L. Chapter 30 , Sections 61 to 62 H
inclusive have been exceeded. However, due to the denial of a
Superseding Order of Conditions it is the Department' s opinion that
it is not in the best interest of all parties to require the
submittal of an ENF at this time . Please be advised that in the
event this Superseding Order is appealed, the Department will
require the submittal of an ENF and the completion of the MEPA
Review process in accordance with 310 CMR 10 . 07 of the Wetlands
Protection Act Regulations before issuing a Final Order of
Conditions .
This finding is applicable only to activities proposed for the
above referenced file number before the Department of
Environmental Protection, Wetlands Division. It does not relieve
the applicant from complying with additional M.E.P.A. requirements
when applying for permits from other applicable departments or
agencies.
APPEAL RIGHTS AND TIME LIMITS
This Superseding Order of Conditions is an action of the
Department . If you are aggrieved by this action, you may request
an adjudicatory hearing. A request for a hearing must be made in
writing within and postmarked within ten (10) business days of the
date of the date this order was issued.
CONTENTS OF HEARING REQUEST
Under 310 CMR 1 . 01 (6) (b) , the request must clearly and
concisely state the facts which are grounds for the request, and
the relief sought . Additionally, the request must state why the
order is not consistent with applicable laws and regulations .
FILING FEE AND ADDRESS
The hearing request along with a valid check payable to the,
Commonwealth of MAssachusetts in the amount of $100 . 00 must be
mailed to:
Department of Environmental protection
Commonwealth Masters' Lockbox
P.O. Box 3584
Boston, MA 02241-3584
The request will be dismissed if the filing fee is not paid, unless
the appellant is exempt or granted a waiver as described below.
EXCEPTIONS
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.
WAIVER
The Department may waive the adjudicatory hearing filing fee
for a person who shows that paying the fee will create an undue
financial hardship. A person seeking a waiver must file, together
with the hearing request as provided above, an affidavit setting
forth the facts believed to support the claim of undue financial
hardship.
Issued by the Depar m t of Enviro to P tection
Signature
On this 29th day of April 1997 before me
personally appe r d James A. Sprague
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.
otary PublicMy commission expires '
The applicant, the owner, any per7naggrieved by the Superseding Order, any
owner of land abutting the land upon which the proposed work is to be done, or
any ten persons pursuant to G.L. c.30A §10A, are hereby notifiedof 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 Superseding Order, 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 comply with the Department's
- Rules for Adjudicatory 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
proceedings, (2) the objections to this Superseding Order, including
specifically the manner in which it is alleged to be inconsistent with the
Department's Wetlands Regulations (310 CMR 10.00) and does not contribute to
the protection of the interests identified in the Act, and (3) the relief
sought through the adjudicatory hearing, including specifically the changes
desired in the Superseding Order;
(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 information may result in a dismissal by the
Department of the Notice of Claim for an Adjudicatory Hearing.
5-4B
310 CHIC 30.99 DFP Fdc No.
(To be provided by DEP)
Form 5
Gq/I'owa SALE M
App(natBurnham Associates , Inc .
commonvealth
of Massachusetts
order of Conditions
lsassachuetts Wetlands Protection Act
G.L. C. 131, 540
From SALEM CONSERVATION COMMISSION Issuing Authority
To BLrnhaw A - " teen TRW
(Name of Applicant) ems of property owner)
Address 26 Dearborn Street Address
This order is issued and delivered as follows:
❑ by hand delivery to applicant or representative on (date)
® by certified mail, return receipt requested on May 17 , 1996 (date)
This project is located at 70A North Rtra t
The property is recorded at the Registry of Essex So th
-
Book 3 S h Page 2 76
Certificate (if registered) N/A
The Notice of Intent for this project was filed onMaw heti (date)
The public hearing was closed on May 9 1996 (date)
Findings
The Commission has reviewed the above referenced Notice of Intent and plans and has
held a public hearing on the project. Based on the information available to the Commiso
sin at this
time, the C 0111i s so n has determined that the area on which the proposed work is to be done is
significant to the following interests in accordance with the presumptions of significance set forth in the
regulations for each Area Subject to Protection Under the Act (check as appropriate):
Public water supply Flood Control Land containing shellfish
private water aupplY Storm damage prevention Fisheries
Ground water supply Prevention of pollution Protection of Wildlife Nebitat
Total Filing Fee Submitted S 2 R n n n State Share 12 7 (i� fee in assess of $25)
City/Town Share $152 . 50
Total Refuel Due f City/(to/w2n totalPortion
S Statc11total
Effective 11/10/89 5-1
Therefore, the comm ' —hereby finds that the following conditions
are necessary, in accordance with the Performance standards set forth.in the
regulations, to protect those interests checked above. The C mmn;sdition�; , .
s and
orders that all work shall be performed in accordance with said con
with the Notice of Intent referenced above. To the extent that the following
conditions modify or differ from the plans, specifications or other proposals
submitted with the Notice of intent, the conditions shall control.
General conditions
1. Failure to comply with all conditions stated herein, and with all related
statutes and other regulatory measures, shall be deemed cause to revoke
or modify this order.
2. The order does not grant any property rights or any exclusive privileges;
it does not authorize any injury to private.property or invasion of
private rights.
3. This order does not relieve the permittee or any other person of the
necessity of complyinwith all other applicable federal, state or local
statutes, ordinances,' y-laws or regulations.
4. The work authorized hereunder shall be completed within three years from
the date of this order unless either of the following apply:
(a) the work is a maintenance dredging project as provided for in the
Act; or
(b) the time for completion has been extended to a specified date more
than three years, but less than five years, from the date of issuance
and both that date and the special circumstances warranting the
extended time period are set forth in this order.
5. This order may be extended by the issuing authority for one or more
periods of up to three years each upon application to the issuing
authority at least 30 days prior to the expiration date of the order.
6. Any fill used in connection with this project shall be clean fill,
containing no trash, refuse, rubbish or debris, including but not limited
to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires,
ashes, refrigerators, motor vehicles or parts of any of the foregoing.
7. No work shall be undertaken until all administrative appeal periods from
this order ihave atdor, if ceencompleted.
filed, until all
proceedings before the Department have b
B. No work shall be undertaken until the Final order 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. in the case of recorded land, the Final order shall also
be noted in the Registry's Grantor Index under the name of the owner
of the land upon which the proposed work is to. be done. in the case
of registered land, the Final order shall also be noted on the Land
court certificate of Title of the owner of the land upon which the
proposed work is to be done. The recording informatin shall be
submitted to the coMaLaSInn on the form at the end of this order
e
prior to commencment of the work.
9. A sign shall be displayed at the site not less than two square feet or
more than three square feet in size bearing the words,
'Massachusetts Department of Environmental Protection,
File Number
10. where the Department of Environmental Protection is requested to make a
determination and to issue a superseding order, the Conservation
commission shall be a party to all agency proceedings and hearings before
the Department.
5-2
11. upon completion of the work described herein, the applicant shall
forthwith request in writing that a certificate of compliance be issued
stating that the work has been satisfactorily completed.
12. The work shall conform to the following plans and special conditions: .
Plans:
Title Dated Signed and stamped by: on Pile with:
special conditions (use additional paper if necessary)
Pursuant to. 310;tCh7$`_10',,05 ((6) (e')'i'.the,. Salem Conservation- Commission voted
by a vote of five (-S) in favor, one-(1)- abstention, that the information :.
submitted by the applicant is not sufficient to describe the site , the
work or the effect of the work on the interests identified in M,G .L, c .
131 , Sect. 40 , and therefore issued an Order of Conditions prohibiting the
work . The specific information which is lacking and why it is necessary
is as follows :
1 . Insufficientc.engineering plans and description of the work .
2 . No descfiption about dredging which. the Applicant indicated
verbally at the public hearing and a subsequent site visit that he
planned to perform dredging.
3 . No DEP file number has been issued due to the failure by the
Applicant to provide the required information to DEP
4 , The Applicant verbally agreed to continue the public hearing to
May 9 ,1996 , but failed to attend the continued hearing .
(Leave space Blank)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5-3A
Plans:
Title Dated signed and stamped by: on File with:
special conditions (vee additional paper if necessary)
(Leave space Blank)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . .
5-3B
Issued By GnrFn• conservation Commission
Signatures
t ( i
This order must be signed by a majority of the Conservation commission.
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.
lalitary Public My commission expires
The applicant, the owner, any person agrrieved by this order, any owner of land abutting the lend upon which
the proposed work is to be done, or any ten residents of the city or town in which such lord is located, are
hereby notified of their righttorequest the Department of Environmental protection to issue a Superseding
Order, 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 shell at the same time be sent by certified
mail or hand delivery to the Conservation Commission and the applicant.
Detach on dotted line and submit to the prior to commencement of work.
..........................................................................................
issuing Authority
To
please be advised that the order of Conditions for the project at
File Humber
has been recorded at the Registry of and
hes been noted in the chain of title of the affected property in accordance with General Condition 6 on
19
if recorded land, the instrument number which identifies this transection is
If registered lend, the document rasnber which identifies this transaction is
Applicant
Signature
5-4A
j
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 hie/her free act and deed.
Notary public My commission expires
The applicant, the owner, any person aggrieved by the superseding order, any owner of lard abutting t%e Lard
upon which the proposed work is to be done, or arty tan persons pursuant to G.L. c.30A 1IOA, are hereby
notified of their right to request`an adjudicatory hearing pursuant to G.L. c.30A, 110, 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
Superseding Order; and is addressed to: DOC Clerk, Office of General Counsel, Dapartn*nt of Environmental
Protection, one Minter 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 shy other party.
A Notice of Claim for an Adjudicatory Nearing-shall comply with the Department's Rules for Adjudicatory
Proceedings, 310 CMR 1.01(6),. and shall contain the following information:
(a) the DEP Wetlands File Number, new of the applicant and address of the project;
(b) the complete now, address and telephone number of the party filing the request, end, if represented
by counsel, the tame and address of the attorney;
the names and addresses of ell other parties, if known; 2 the
(C) which are rounds for the proceedings, ( )
(d) a clear and concise statement of (1) the including
g
`objections to this Superseding Order, iralulirg specif ieally the marxer in which it is alleged to be
inconsistent with the Department's Wetlands Regulations (310 CMR 10.00) and does not contribute to the
protection of the interests identified in the Act, arid (3) the relief sought through the adjudicatory
hearing, including specifically the'chsnges desired in the Superseding Order;
(e) a statement that a copy of the request has been serf too the applicant, the conservation commission and
each other party or representative of such party.,
Failure to submit all necessary information may result in a dismissal by the Department of the Notice of
Claim for an Adjudicatory Nearing.
Detach on dotted line and submit to the prior to cansencemeru of work. .
-............................................................................................
Issuing Authority.
To
Please be advised that the Order of Conditions for the projectat
File Number has been recorded at the Registry of ' and
has been noted in the chain of title of the affected property in accordance with General Condition 8 on
19
If recorded lard, the instrument number which identifies this transaction is
If registered lard, the document ruamber which identifies th(s'transaction is
Applicant
Signature
s-al)
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE
'
WILLIAM F.WELD uum U 71996 TRUDY CORE
Govemor Dept. Secretary
ARGEO PAUL CELLUCCI <s�iteQ�iA� ��4�f�iE1�
- DAVID B. STRUHS
Lt. Govemor Commissioner
NOTICE OF ACCEPTANCE OF APPEAL
Craig C. Burnham, President DATE:June 4, 1996
Burnham Associates Inc. TOWN:Salem
26 Dearborn Street FILE:64-249
Salem, MA 01970 Appl.:Burnham Assoc.
70A North Street
Dear Mr. Burnham:
The Department of Environmental Protection is in receipt of your Appeal postmarked
May 30, 1996, regarding the above-referenced wetlands project, and has accepted your
Appeal.
When this case is assigned to an analyst, the Department, under the provisions of
General Laws, Chapter 131, Section 40, may, if deemed necessary by the Department,
schedule a field investigation with you and all concerned parties to determine if the areas are
significant to the interests of the Act and to informally discuss the relevant issues with
parties to the appeal. At that time a written notice of the time and place of the scheduled
site visit will be sent to all parties.
No activity may commence on any portion of the project(s) subject to the jurisdiction
of Chapter 131, Section 40 until this Department issues a Superseding Order of Conditions
regulating the activity.
In the interim please contact the Wetlands Division at 617-932-7600 should you or
any party have any questions.
V truly yours,
' . . aures A. Sprague
Wetlands Section Chief
10 Commerce Way • Woburn,Massachusetss 01801 • FAX • Telephone • TDD#(617)932-7679
•�' Pnm[d on Regded Paper
BURNHAM ASSOCIATES INC.
Marine Contractors • Engineers
RECEIVED
MAY 3-01996
Salem eianfung Dept.
May 29, 1996
Conservation Commission
Salem, Massachusetts 01970
RE: 70A North St. DEP file#64-249
Dear Members:
We are in receipt of your order of conditions dated 17 May 1996 recieved by us on 18
May 1996. It is my understanding that the application for repair work to be accomplished was
denied principally due to my inability to attend your May 9 meeting. One of my staff contacted
your office on May 10 concerning the conflict and informed me that it was not a problem and that
perhaps another meeting could be attended at a later date. On May 9 I was heavily involved with
a dredging project in York Maine. This US Army Corps of Engineers project was encountering
heavy seas on the evening of May 9 and it was imperitive that I remain on board the dredge that
evening. I wish you had been more patient before issuing your order. If the order is vacated I
would be glad to assist you in drafting another order of conditions which will best serve the public
interest, including the Mass Highway Dept. and also us as owners of the property.
Due to your response and action I am forced to make Request for Superceeding Order in
accordance with 310 CMR 10.05 (7).
It is unfortunate that we must make this request, however specific amounts of time are
allowed after the issuance of the order of conditions in which to seek relief before the D.E.P.
1 am hopef ii that we might yet work together in the best ecological interests ul our city.
CCB/mf V ruly Your
Cr C��, President `
cc: DEP Woburn B ASSOCIATES, INC.
Mayor
26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984
r
%oN Cpyy'
2� "z Conservation Commission
Salem. Massachusetts 01970
yA sS.�N
Robert Ledoux, Cit} Solicitor
City of Salem August 23, 1996
93 Washington Street
Salem,MA 01970
RE: 70A North Street ongoing wetland violations
Dear Ro edoux:
The Salem Conservation Commission has requested your opinion as to what measures the City and/or the
Commission should undertake to eliminate the ongoing wetland violations by Burnham Associates, Inc and
possibly others at 70A North Street. The Commission does not want to sit back and ignore the activities on
this propem,which is expanding and undergoing work without the required approval under the Wetlands
Protection Act and our local Ordinance,but Mr. Burnham continues to ignore the Commission.
Please advise the Commission at your earliest convenience. Thank you for your assistance in this matter.
Sincerely yours,
i
i
Stephen Dibble
Assistant Planner/Conservation Commission Agent
cc: Fred Hamcy, Chairperson,Salem Conservation Commissions
Craig Wheeler;City Planner
sd,concom/70Anonh
BURNHAM ASSOCIATES INC.
Marine Contractors • Engineers
Commonwealth of Massachusetts RE:Notice of Intent,
Executive Office of Environmental Affairs repair of bulkhead
Departmant of Environmental Protection 70A North St. Salem
Northeast Regional Office File No. 64-249
10 Commerce Way
Woburn, MA 01801
In accordance with 310 CMR 10.05 (7) Request is hereby made for an order superceeding
an Order of Conditions issued by the Salem Commissions in the above referenced matter. on 9
May 1996.
A copy of said is hereto annexed.
The order is contrary to the public interest and us as property owners since it orders that
no repairs be made.
It is inconsistant with 310 CMR 10.00 and does not contribute to the protection of
interests identified in MGL ch.131,=sec. 140
l
Craig CAurnham, President
CERTIFICATE OF S CE
I, l ' certify
that a opy of this request was served
on the Salem Conservation Commission
by hand, on 30 May 1996.
The order of conditions issued on 17 May 1996 by certified mail, postmarked on the said date.
r, E07',t F-7
MAY(
O� Salem V140 fling Dept,
26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508),741-1984
`lpN CO�� a7 .
Conservatim Commission
Salem. Massachusetts 01970
APR 3 9 50
MAssnC��;•
CITY OF SALEM. MASS
CLEfRVS OFFICE
City of Salem
Conservation Commission
Will hold a public hearing for an Abbreviated Notice of Intent under the Wetlands Protection
Act, Massachusetts General Laws, Chapter 131, Section 40, at the request of Burnham
Associates, Inc,. 26 Dearborn Street, Salem, MA 01970. The purpose of the hearing is to discuss
the effects of a proposal to repair existing pilings and bulkhead to prevent their collapse into the
North River. The proposed work is located at 70A North Street.
This hearing will be held on Thursday, April 11, 1996 at 7:00 p.m. in the second floor conference
room at One Salem Green.
Fred Harney t,
Chairman
April 4, 1996
jm\tk\cncomnot.met
oated on OVICIal Bulletin Board
M ass. APR
'1�tls notice P e ®n , 19
�
City Hall Ave., Sal' rd '*th
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET, BOSTON MA 02108 (617) 292-5500
WILLIAM F.WELD . e,a«e.. TRUDY COXE
Governor Secretary
ARGEO PAUL CELLUCCI dUI� 1 1996 DAVID B. STRUH9
Lt.Governor Commissioner
WRM9flr]GA6C9 �.
Mr. Craig Burnham
C/o Burnham Associates, Inc .
26 Dearborn Street
Salem, MA 01970
RE: Repair of existing pilings and bulkhead, North River, Salem
Dear Mr. Burnham:
This office is in receipt of a copy of your Notice of Intent
regarding the reference proposed structure, fill or activity which, our
research indicates, lies within the jurisdiction of MGL Chapter 91, the
Public Waterfront Act . We are therefore requiring you to exercise one
of the two options listed below.
Option 1 . Complete the enclosed Waterways License
Application and return it to this office; or
Option 2 . Submit information demonstrating either that the
referenced proposed structure, fill or activity is already
authorized under Chapter 91, or that it is outside the
jurisdiction of C. 91 .
Please be advised that unauthorized structures, fill or
activities within the jurisdiction of Chapter 91 may be subject to
fines . Should you have any questions in regard to this matter, please
feel free to contact me at (617) 556-1019 .
F1Wale
e p
ntrways sRegulation Program
cc : Salem Conservation Commission
William- Whooley, Harbormaster
`3 Printed on Recycled Paper
310 CMR 10.99
Form 4 ����,9 :64DDFP File Nm
1-1%1 �� (To be provided by DEP)
°�'d°° SALEM
COmmomrealth 4AD City/Town
" of Massachusetts
Appliant
Abbreviated Notice of Intent
N,assachusetts Wetlands Protection Act, G.L. c. 131, 540
To be used only for projects of minimum impact, as described in the General
instructions for completing the Notice of intent.
1. Location: street Address 70A NORTH STREET, SALEM
Lot Number 423
2. Project: Type REPAIRS Description REPAIR EXISTING
- PILINGS AND BULKHEAD TO PREVENT COLLAPSE INTO NORTH RIVER
3.Registry: County ESSEX, SO Current Hook 13255 b Page 275
certificate(If Registerd Land)
4.Applicant• BURNHAM ASSOCIATES IN4e1. (508) 745-1788
Address: 25 DEARBORN ST. , SALEM, MA 01970
5.Property owner: SAME Tel.
Address:
S . Representative: CRAIG BURNHAM, PREj§�i• (508) 745-1788
Address: SAME
7. a. Have the conservation commission and the�Department's Regional office
each been sent, by certified-,inlil or hand delivery, 2 copies of completed
Notice of intent, with,supporting plans and documents?
r
Yes ® No ❑
b. Has the fee been submitted? ® Yes ❑ No
C. Total Filing Fee submitted 5280 . 00
d. City/Town Share of Filing Fee$157_ • SQstate share of filing fee $127 . 50
(sent;. to City/Town) 0, of fee in excess of $25, sent to DEP)
tee: - 'Is"a brief statemenattached indicating how the applicant calculated
the fee? ® Yes No
B. 'Have all obtainable permits, variances apd approva�.9 required by local by-
law been obtained or applied for? Yee U No LI
NIA
obtained Applied•For: Not Applied For:
9. Is any portion of the site subject to a WetlanJ- Rest�}ction order pursuant
to G.L. c. 131, S40A or G.L. c. 130, 8105? Yes No IX
X
Effective 11/20/92 4-1
10. List all plans and supporting documents submitted with this Notice 'of
Intent.
Identifying � •
Number/Letter Title/Date
A PILING/BULKHEAD CROSS SECTION
B FEE CALCULATION SHEET
C SALEM ASSESSORS MAP 25
11. For work proposed within the Suffer zone (as defined in Part I, Sections
10.02(2) and 10.04 of the regulations) describe, with reference to
supporting plans and calculations where necessary:
(a) The size, shape, type and location of the proposed work.
REPAIR EXISTING PILINGS-OR REPLACE AS NECESSPRY-
AND BULKHEAD
(b) Mitigating measures and designs to insure that the proposed work will
not alter the resource area which said Huffer zone borders; or if it will
alter said resource area, the mitigating measures and designs .proposed to
meet the performance standard established for that resource area in Part
Ii or Part III of these regulations.
WILL NOT ALTER, ONLY REPAIR EXISTING CONDITIONS
12. For work proposed within Land Subject to Flooding (as defined in
Part III, section 10.57(2) of the regulations) describe, with reference
to supporting plans and calculations where necessary:
(a) The size, shape, type and location of the proposed work.
N/A
(b) Mitigating measures and designs proposed to meet the performance
standards set forth in Part III, sections 10.57(4) and 10.60 of the ;
regulations.
N/A
13. Is the project within estimated habitat which is indicated on the most
recent Estimated Habitat Map of state-Listed Rare wetlands wildlife (if
any) published by the Natural Heritage and Endangered Species Program?
YES [ ] NO [ X ] Date printed on the Estimated Habitat, Map
NO MAP AVAILABLE [ J (if. any)
4-2
• if yes, have you sent a copy of the Notice of Intent to the Natural Heritage
and Endangered Species Program via the U.S. Postal Service by certified or
priority mail (or otnerwise sent it in a manner that guarantees delivery
within two days) no later than the date of the filing of this Notice of Intent
with the conservation commission and the DEP regional office?
YES [ ] NO [ ]
If yes, please attach evidence of timely mailing or other delivery to the
Natural Heritage and Endangered Species Program.
I hereby certify under the pains and penalties of perjury that the foregoing
Notice of tent and accompanying plans, documents and supporting data are
true and mplete, to the bee of my knowledge.
for e Pres .
B.A. ign r of Applicant Date
_. 29 MARCH 1996
Signa ure of Applicant's Repress —...Date
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BURNHAM ASSOCIATES INC.
Marine Contractors • Engineers
OCT 2 31996; October 21, 1996
vae8ifl E'i+3Cra:il Cle;'L
Stephen Dibble
Conservation Commission Agent
Salem Conservation Commission
One Salem Green
Salem, Massachusetts 01970
Re: 70A North Street
Dear Mr. Dibble:
Burnham Associates, Inc. is in receipt of an "Enforcement Order" dated
October 10, 1996 concerning the above referenced property. There are no
violations of the Wetlands Protection Act occurring at the property. Further,
any conduct or activity there is not that which requires an Order of Conditions.
Repair of the existing bulkhead will occur in the future, but that work is the
subject of an earlier Notice of Intent which has been removed from your
jurisdiction by appeal and will be the subject of a Superseding Order of
Conditions from the Department of Environmental Protection.
Since there is no activity requiring an Order of Conditions, there is no
activity that could be subject to this "Order" and ceased and desisted from. The
Order is therefore without effect. However, to the extent that it can be
construed as a request for information, the following is provided.
The areas subject to protection under the Wetlands Protection Act are
defitied in 310 CMR 10.02(1) according to their Physical characteristics and
proximity to wetlands. 70A North Street abuts the North River and is separated
therefrom by a pre-existing stone and pile bulkhead. The property itself (i .e. ,
the land away from the River) therefore is not an area subject to protection
under 310 CMR 10.02(1)(a) because it is neither bank, wetland, beach,. dune, flat,
marsh, nor swamp (as defined in 310 CMR 10.04) .
The land under the North River is an area subject to protection pursuant
to 310 CMR 10.02(1) (b) . "Activities" subject to regulation within this area are
those that will remove, fill , dredge or alter this land. 310 CMR 10.02(2)(a) .
There is no removing, filling, dredging or altering of the land under the North
River occurring at 70A North Street. The physical characteristics of the land
under the River are not being affected in any manner. Therefore, there is no
activity there over which the Conservation Commission has jurisdiction.
26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984
E With respect to the land itself, there is currently equipment and materials
being stored at 70A North Street in preparation for movement to and use at
various job sites throughout New England. There is .no construction or building
of structures in progress.
The land at 70A North Street is not within the so called "buffer zone"
because it is not within 100 feet of an area specified in 310 CMR 10.02(1)W.
310 CMR 10.02(2)(b) . Please recall that the area subject to protection here is
the land under the River due to 310 CMR 10.02(1)u. (The distinction and lack
of buffer zone is actually without significance here because there are 'no
"activities" occuring which "alter" the land.)
"Activities" on the land at 70A North Street are subject to protection
according to 310 CMR 10.02(2) (c) . Activity is not subject to regulation unless
and until that activity actually alters an area subject to protection. "'As'
stated, the area subject to protection here is not a buffer zone, but the1 and
under the North River. The storage -of-.--materials at 70A North Street does' not
actually alter the land under the North River. (Nor does it. "alter"'the land
itself in any manner.) Therefore, the Conservation Commission has no..
jurisdiction over any activity at 70A North Street.
Please advise whether, in the confines of your statutory authority, you
have any evidence that the storage of materials at 70A North Street actually
alters the land under the North River. For your information (though not relevant
to your scope of review) 70A North Street remains zoned for Industrial user"In::-
the absence of further response, Burnham Associates, Inc. will assume that you`
now recognize that the "Enforcement Order" was issued in error and in excess of
your authority.
VeryY Yours, f
Presi nt,
Burn am Associates, Inc.
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310 CMR 10. 99 I� DEP File No 64-249
Form- 9 9��1 (To be provided by DEP)
City/Tan - Salem
p4j Q3 ,�q� s� Appli�t Burnham Associates, Inc
Commonwealth
\ of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, 540
From Salem (' -r r Issuing Authority
To Burnham Associates, Inc. 26 Dearborn Street
Date of Issuance October 10, 1996
Property lot/parcel number, address 70A North Street
Extent and type of activity: Shoreline disturbance,possible dredging, and
storage of barges, crane, and equipment.
The Commission has .determined that the activity described
above is in violation of the Wetlands Protection Act,, G.L. c. 131, §40, and
the Regulations promu:gated pursuant thereto, 310 CMR 10.00, because: _
® 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 numbers) ` r
❑ Other (specify)
The 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 condition.
Effective 11/10/89 9-1 .
310 CMR 10. 99 DEP File No. 64-249
Form 9 (To be provided by DEP)
c;cyiror,
Salem
App(;cant Burnham Associates, Inc
Conzoonwealth
of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, 540
From Salam r ^r` r isepFe Issuing Authority
To Burnham Associates, Inc. 26 Dearborn Street
Date of Issuance October 10, 1996
Property lot/parcel number, address 70A North Street
Extent and type of activity: Shoreline disturbance,possible dredging, and
storage of barges, crane, and equipment.
The Commission has determined that the activity described
above is in violation of the Wetlands Protection Act, G.L. c. 131, 540, and
the Regulations promu.gated pursuant thereto, 310 CMR 10.00, because:
[� 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) �
❑ Other (specify)
The 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 condition.
Effective 11/10/89 9-1
Issued by
Salem Conservation Commis s.ion commission
❑ Completed a,,lication forms and plans as required by the Act and
Regulations shall be filed with the
on or before (date) ,
and no further work shall 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 take every reasonable step to prevent further
violations of the act.
® Other ' (specify)
The property owner oC its agent is requested to appear
before the Commission to discuss ongoing activity on and adjacent to
the parcel. Failure to appear before the Commission may result in
a fine of not more than $200.00 each day or portion thereof during
which a violation continues shall constitute a separate offense:
if more than one, each condition violated shall constitute a
separate offense.
Failure to comply with this Order may constitute grounds for legal action,
Massachusetts General Laws Chapter 131, Section 40 provides:
Whoever violates any provision of this section shall be punished
by a fine of 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
Stephen Dibble Conservation Commiqqinnapp=+ 7 S_gSgS ��tt
Issued by sale!l Conserva ion Commission
Signature (
L
T/II
(Signature of delivery person
or certified mail number)
9-2b