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64-271 - 70A NORTH STREET - CONSERVATION COMMISSION -.ZgEa.- NoktH sr - e>Uet4 HArn 211 -7o IN iiu UPC 10326 as No. 2-152L �oSCCUNS°°` b a g �d II ` s,�r 2� ° Wop Cof�w�n 'F'°P�S*� 4� r' A,v S rYiv`^+°KA oM Pmt k 1 kjally �tsp"4 EX c VA a 1 ? ST0rK r,L-Ia- Po-vp; n { j� w1,e�le�g ° ovtr E Gv�V�r I �A�a 11 I j7- 4eX J �hF 47 l V jI ,z.j !nom vti g N we ii I r All GP�ScQ� ��Ce �alaee row. I ��de> :1 f I b� I L f } DIE? r 6.0� �f d , r\j CC -Ago i 4 i +i O 1' z f Commonwealth of Massachusetts Executive Office of Enee &Environmental Affairs Depa;r,fmmegt of Environmental Protection Nor i Regifflcv 2O5B Lowell Street, Wilmington MA 01887.978-694-3200 CEVAL L PATRICK 0Q P\ RICHARD K.SULLIVAN JR. Governor 13v". Secretary TIMOTHY P.MURRAY GDM KENNETH L,KIMMELL Lieutenant Governor Commissioner June 20,2013 Craig Burnham Burnham Associates, Inc. RE: WETLANDS/Salem ` 26 Dearborn Street DEP File 4064-0271 Salem,MA 01970 70A North Street Salem,MA Compliance Status Dear Mr. Burnham: The Northeast Regional Office of the Massachusetts Department of Environmental Protection, Wetlands Program(MassDEP), is undertaking a file audit of previously issued Superseding/Final Orders of Conditions(SOC) issued under the Wetlands Protection Act(WPA). An audit of the file referenced above, and a review of other public information,has revealed that the bulkhead repair authorized by the SOC,was never performed and that the SOC has expired. Therefore,MassDEP is issuing the enclosed Certificate of Compliance(COC) indicating the following: Invalid Order of Conditions: It is hereby certified that the work regulated by the above-referenced Order of Conditions never commenced The Order of Conditions has lapsed and is therefore no longer valid No future work subject to regulation under the Wetlands Protection Act may commence without filing a new Notice of Intent and receiving a new Order of Conditions. Please note that pursuant to 310 CMR 10.05(9)(f)of the Regulations,this COC shall be recorded in the Land Court or Registry of Deeds,whichever is appropriate, and certification of recording shall be sent to this office. If you have any questions regarding this matter, please do not hesitate to contact Jill Provencal at 978-694-3250 or lill.provencal(a�state.ma.us. Sincerely, Heidi Davis Acting Section Chief Wetlands &Waterways Program,NERO cc: Salem Conservation Commission, 93 Washington Street, Salem,MA 01970 This information is available in alternate format.Call Michelle Waters-Ekanem,Diversity Director,at 617-292-5751.TDD#1-866-539-7622 or 1-617-574-6868 MassDEP Website:v w v.mass.gov/dep , Printed on Recycled Paper • ' y Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 8B — Certificate of Compliance 064-0271 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP A. Project Information Important: When filling out 1. This Certificate of Compliance is issued to: forms on the Burnham Associates Inc. (c/o Craig Burnham) computer, use Name only the tab key to move 26 Dearborn Street your cursor- Mailing Address do not use the Salem MA 01970 return key. City/Town State Zip Code 2. This Certificate of Compliance is issued for work regulated by a final Order of Conditions issued to: ILf Burnham Associates Inc. (c/o Craig Burnham) ® Name July 20 2013 June 20 2013 Dated : DEP File Number 3. The project site is located at: 70A North Street Salem Street Address City/Town Assessors Map/Plate Number Parcel/Lot Number the final Order of Conditions was recorded at the Registry of Deeds for: Property Owner(if different) County Book Page Certificate 4. A site inspection was made on: June 13, 2013 Date B. Certification Check all that apply: ❑ Complete Certification: It is hereby certified that the work regulated by the above-referenced Order of Conditions has been satisfactorily completed. ❑ Partial Certification: It is hereby certified that only the following portions of work regulated by the above-referenced Order of Conditions have been satisfactorily completed.The project areas or work subject to this partial certification that have been completed and are released from this Order are: wpafo.8b.d.•DEP Addresses•rev.627/13 - Page 1 of 3 \ Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number r 1\n1\ WPA Form 8B — Certificate of Compliance 064-0271 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP B. Certification (cont.) ® Invalid Order of Conditions: It is hereby certified that the following work regulated by the above- referenced Order of Conditions never commenced. The Order of Conditions has lapsed and is therefore no longer valid. No future work subject to regulation under the Wetlands Protection Act may commence without filing a new Notice of Intent and receiving a new Order of Conditions. ❑ Ongoing Conditions: The following conditions of the Order shall continue: (Include any ' conditions'contained in the Final Order, such as maintenance or monitoring that should continue for a longer period). Condition Numbers: C. Authorization Issued by: Heidi Davis Acting Section Chief. Wetlands and Waterways Program Department of Environmental Protection Regional Office Date oil Issua ce This Certificate must be signe the Section Chief or his designee and a copy sent to the applicant. Signature: ,�qt > r{t' ' Secti n C ie f a. Y r wpaform6b doc•DEP Addresses•rev.6/27/13 Page 2 of 3 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number. WPA Form 8B — Certificate of Compliance 064-0271 - Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP D. Recording Confirmation The applicant is responsible for ensuring that this Certificate of Compliance is recorded in the Registry of Deeds or the Land Court for the district in which the land is located. Detach on dotted line and submit to the Massachusetts Department of Environmental Protection Northeast Regional Office (see address information on next page). To: ---- ---------------------- - NERO, 2058 Lowell Street Wilmington MA 01887 DEP Regional Office Please be advised that the Certificate of Compliance for the project at: Protect Location DEP File Number Has been recorded at the Registry of Deeds of: County For: Property Owner and has been noted,in the chain of title of the affected property on: Date Book Page If recorded land, the instrument number which identifies this transaction is: If registered land, the document number which identifies this transaction is: Document Number Signature of Applicant wpaform8b.doc•DEP Addresses•rev.6/27/13 Page 3 of 3 COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION METROPOLCCAN BOSTON-NORTHEAST REGIONAL OFFICE ARGEO PAUL CELLUCCI TRUDY COXE Governor %zvED DEC 2 1998 seeremry - DAVID B. STRUM Commissioner Craig Burnham Salem P@i u` -<<� ypt. RE: WETLANDS/SALEM Burnham Associates DEP File # 064-0271 26 Dearborn Street Superseding Order of Salem, MA 01970 Conditions Dear Sir: The Metropolitan Boston/Northeast Regional Office of the Department of Environmental Protection, Wetlands Division, has completed its reiew of the above-referenced filing, for installation of a sheet steel bulkhead on an eroding coastal bank on property at 70A North Street, Salem (earlier idenditied as 72 North Street) , in preparation to issuing a Superseding Order of Conditions (SOC) . 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 (SOC) allowing the project, based upon: 1) information contained in the file to date and plans submitted; 2) information gathered during the June 22 , 1998 on-site inspection and subsequently by the Department; and 3) reasons the Department has deemed necessary to protect the statutory interests identified in the Act. The Department' s review of the file and site inspection confirm that the project site contains the following Areas Subject to Jurisdiction of the Act : The 100-foot Buffer Zone to Coastal Bank, Bank itself, a Riverfront Resource Area (RRA) , a Coastal Beach (tidal flat) and Land subject to Coastal Storm Flowage (LSCSF) . These areas are significant to the statutory interests listed on the attached form. According to the project notice of intent (NOI) , approximately 180 feet of sheet steel pile bulkhead, with whales, deadmen, 15 fender piles and 3 spud piles, would be installed at the location of a deteriorated wood-and-fill bulkhead (its remains would be removed) , and granite block seawall . Landward of these steel piles would be 8 feet (ave. ) deep fill with an average width of 10 feet . Regarding the RRA, the already-developed nature of the site and the intent of the work exclude it from most regulation or relocation. 205a Lowell St• Wilmington,Massachusetts 0180 FAX (978) 661-7615 • Telephone (976) 661.7600 • TDD It(978)661-7679 page '2 064-0271 SOC The reasons for your February 24, 1998 (postmark) appeal, on behalf of yourself as applicant Burnham Associates, were due to your objection to the Salem Conservation Commission' s denial of your project . As discussed at the site visit, in responses to our information request letter of July 20, 1998 and at other times, we note that many of those concerns do not involve the Act or the Department, being more relevant to the local bylaw, previous enforcement, and\or other factors. Concerning enforcement, the matter at hand is a different (ie, non-enforcement) issue, and thus will be treated separately by the Department . MGL ch.40, s.57 appears not to apply to the Department in this case. Among its reasons listed for denial, the Commission noted that the plans and the (other) information presented by the applicant were insufficient, but the Commission did not describe what added information was needed. Although further information was presented at and subsequent to the site visit, the Commission continued its opposition to the project . As regards activity which may or may not occur on property not owned by you or to which you have no legal access, please note that this SOC in no way removes the obligation for you to comply with all other laws, bylaws, etc. All parties will recall (and this was one of the Commission' s reasons for denial) the major issue of the impact of moored barges upon shellfish and\or shellfish habitat . After inspection of the study done by Allan Michael for you, we asked the Division of Marine Fisheries (DMF) to also inspect the study, visit the area, and render an opinion. DMF concluded that, although shellfish were sparse (Mr. Michael had found none near the project) , the substrate was good habitat once pollutants were curtailed as expected. Further, the Department observes that, even with curtailed or absent harvesting, this area would be a source of shellfish spawn for other areas and organisms. Since the mooring of barges is NOT part of this proposal, said mooring is not directly a regulatable factor here. However, you are advised that we recognize the concern of DMF and the Commission (and urge that you do so likewise) about the mooring of barges near the site, due to the feared - and demonstrated - impact of such a practice. Therefore, we strongly urge you ,to take .all necessary steps to eliminate the impact . For instance, mooring of barges off-site may be a solution. The Department is of the opinion that the enclosed Superseding Order of Conditions allowing the project as now 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 concerned party 310 CMR 10.99 _ Form 5 DEP File No[ 064-0271 (Tb be Provided by DEP) CitT/Town Salem Applicant Burnham Associates Superseding Order of Conditions Massachusetts Wetlands Protection Act G.L. c.131, §40 .From Department of Environmental Protection To Burnham Associates (c\o Craig 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: [I by hand delivery to applicant or representative on (date) ® by certified mail, return receipt requested on November SO , 1998 (date) This project is located at 70A North Street. Salem (formerly identified as 72 North Street, Salem) The property is recorded at the Registry of Deeds, Essex Book 13256 Page 276 Certificate (if registered) The Notice of Intent for this project was filed on or about December 8, 1991date) The public hearing was closed on January 22. 1998 (date) Findings The Department of Environmental Protection has revsewed the above-referenced Notice of Intent and plans and has held a site inspection on the project. Based on the information available to the Department of E=.-ironmental Protection at this time, the Department of Environmental Protection has determined that the area on which the proposed work is to be done is sign ficant to, or is likely to be 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) : E Public water supply E Flood control E Land containing shellfish E Private water supply E Storm damage prevention E Fisheries ®Ground water supply E Prevention of pollution E Protection of wildlife habitat Total Filing Fee Submitted $360.00 State Share $167.50 City/Town Share $192.50 (A fee in excess of $25) Total Refund Due $_ City/Town Portion $ State Portion $ (% total) (y, 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 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, 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 have elapsed or, if such an appeal has been filed, until all proceedings before the Department have been completed. 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 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 064-0271 . " 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. Effective 11/20/92 5-2 page 3 064-0271 SOC dispute these findings, your attention is directed to the language at the end of the enclosed Order specifying the rights and procedures for appeal . Should you have any questions, please contact Ralph Perkins at (978) 661-7786 . Very tr yours, The Division of Wetlands Waterways Ra4e ekames A. pr e ?Bureau ection Chie of Resource rotection cc: Conservation Commission, City Hall, Salem, MA 01971 Kevin Daly, City Soliciter, City Hall, Salem, MA 01971 Bradford Chase, DMF, 30 Emerson Avenue, Gloucester, MA 01930 Eric Hutchins, NMFS, 1 Blackburn Drive, Gloucester, MA 01930- 2298 William Hooley, Harbormaster, City Hall, Salem, MA 01971 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: (See Attached) Title: _ (See attached.) Dated: Signed & Stamped by: On File With: See attached special conditions numbered 12 through 24. Issued b th Department 0 n 'ronmental Protection Signature - On thi ?� g day of November 1998 before me perso a y appeared James A. Snraue - to m own 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 Publ• My commission expires The applicant, the owner, any person aggrieved 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 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 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; 5-3 (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 i t 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. Detach on dotted line and submit to the Department of Environmental Protection prior to commencement of work. To Department of Environmental Protection, Issuing Authority. Please be advised that the Order of Conditions for the project at 70A North Street, File Number 064-0271, has been recorded at the Registry of Essex, and has been noted in the chain of title of the affected property in accordance with General Condition 8 on 19_ If recorded land, the instrument number which identifies this transaction is Signature Applicant 5-4 Special Conditions File # 064-0271 12 . (a) All activity shall conform to the project Notice of Intent # 064-0271 submitted by representative William H. Kelley for applicant Burnham Associates, on or about December 8, 1997, except as modified subsequently or as described elsewhere in this Superseding Order of Conditions . (b) The June 22, 1998 letter from the Salem Conservation Commission to the Department contained, among other attachments, a copy of the site' s deed, identifying it as" 70A North Street, Salem, Massachusetts. " This address shall supersede the address given in the above-referenced Notice of Intent . 13 . No work shall commence on-site until all appeal periods have elapsed and this Superseding Order of Conditions has been recorded appropriately with the registry of deeds, and the Department formally notified via the form provided at the end of this Order.. 14 . Any change (s) made in the plans, etc. referenced in condition 12 which will alter an Area Subject to Protection Under the Wetlands Protection Act, or any change (s) in activity subject to regulation under M.G.L. Chapter 131, Section 40, shall require the applicant to inquire of the Department, in writing, as to whether the change (s) is significant enough to require the filing of a new notice of intent . A copy of said request shall at the same time be sent to the Conservation Commission. 15 . The applicant shall notify the Department and the Conservation Commission in writing, 48 hours before any further or new activity commences on site. 16 . The site as identified in the project plans shall be \v/ maintained in a clean and orderly condition. Refuse, debris and waste materials shall not be placed within any resource area under any circumstance, and shall be disposed of promptly and properly. All construction refuse, debris and waste materials shall be removed from the site upon completion of the construction activities. 17 . Upon completion of the project and prior to or with any request for a Certificate of Compliance, an As-Built plan or similar such document (s) shall be submitted for the Department' s approval . 18 . Equipment shall be stored in a manner and location which will . minimize potential environmental impacts. Fuel storage and the refueling of vehicles shall be conducted outside of the buffer zone in an upland location at a horizontal distance greater than 100 feet from the boundaries of the wetlands, or on an accepted public way. 19 . This Order of Conditions supersedes all prior orders under DEP File #064-0271. 20 . This Order applies only to those activities described in the Notice of Intent for DEP file #064-0271 referenced above and as modified elsewhere in this Superseding Order, and may not be construed as approving any other activities which could affect an interest subject to the jurisdiction of the Wetlands Protection Act. 21 . Members and agents of the Conservation Commission and the Department shall have the right to enter and inspect the premises to evaluate compliance with conditions stated in this Superseding Order. The applicant shall submit any data the Department deems necessary for that evaluation. 22 . This Order shall apply to all successors or assigns in interest or control and any other party engaging in activity on the property identified in the Notice of Intent. 23 . A copy of this Superseding Order of Conditions, as well as the plans referenced in condition 12, shall be available on site and shall remain there while activities regulated by this Order are being performed. Copies of said documents shall be accessible to all contractors and subcontractors. 24 . The attached cover letter is hereby and severally made a part of this Order of Conditions, and shall be recorded at the Registry of Deeds together with that Order. 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 # 064-0271 is "categorically exempt" pursuant to the implementation of the Massachusetts Environmental Policy Act as adopted by the Secretary of Environmental Affairs. this project is "categorically exempt" as the Wetland thresholds established under 301 CMR 11 . 03 (3) of M.G.L. Ch. 30, sec. 61 to 62H inclusive, have not been exceeded. 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. COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION July 18, 2001 In the Matter of: Burnham Associates, Inc. Docket No. 98-165 File No. 064-0271 Salem ORDER OF DISMISSAL On June 26, 2001, the Salem Conservation Commission, the petitioner, withdrew its appeal. Accordingly, its claim is DISMISSED as moot. See 310 CMR 1.01(11)(d)1. The superseding order of conditions issued to Burnham Associates, Inc. on November 30, 1998 is now final. The parties to this. proceeding have the right to file a Motion for Reconsideration of this decision pursuant to 310 CMR 1.01(14)(d). Such a motion must be filed with the Docket Clerk and served on all parties within seven days of the postmark date of this decision. Any party may appeal this decision to the Superior Court pursuant to the Massachusetts Administrative Procedure Act, G. L. c. 30A, sec. 14(1). The complaint must be filed in the Court within thirty days of receipt of this decision. rancis X. Nee Administrative Law Judge This information is available in alternate format by calling our ADA Coordinator at(617)574-6872. DEP on the World Wide Web: http://w .magnet.state.ma.us/dep Z�o1 Printed on Recycled Paper •F SERVICE LIST In The Matter Of : Burnham Associates, Inc. Docket No. 98-165 File No. 064-0271 Representative Party Keith W. Kauppila, Esq. APPLICANT 29 Commonwealth Avenue, Burnham Associates Inc . Suite 906 Boston, MA 02116 Kevin T. Daly, Esq. PETITIONERS) Daly & Daly City of Salem & 32 Church Street Salem Conservation Commission Salem, MA 01970 Dorothy Montouris, Esq. DEPARTMENT DEP - Office of General Counsel Dept . of Environmental One Winter Street, 3rd Floor Protection Boston, MA 02108 CC : Ralph Perkins DEP STAFF DEP - Northeast Regional Office 205A Lowell Street Wilmington, MA 01887 Date : July 18 , 2001 COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS o DEPARTMENT OF ENVIRONMENTAL PROTECTION Metropolitan Boston - Northeast Regional Office JANE SWIFT Acting Governor BOB DURAND Secretary LAUREN LISS Commissioner DEC t : Burnham Associates, Inc.. 77 c/o Mr. William H. Kelley ; P.O. Box 212 C1, i '1 Marblehead, MA 01945 I RE: Waterways.License Application No. W96-5802, Draft Waterways License North River, Salem, Essex County ) Dear Mr. Burnham: The Department of Environmental Protection has tentatively approved the referenced License Application. Pursuant to 310 CMR 9.14(2)(b) a Draft Waterways License is enclosed. A copy is also being forwarded to the following parties as required by 310 CMR 9.14(6)(d): Salem Mayor and City Council, Salem Zoning Board, Salem Planning Board, Salem Conservation Commission and Salem Harbormaster. A valid Waterways License shall be issued twenty-one(21) days from the date of issuance of this Draft License if the Department has not received a written request, by certified mail, for an adjudicatory hearing pursuant to section 9.17(2). In addition, pursuant to 9.17(3), any notice of claim for an adjudicatory hearing must include the following information: the DEP Waterways Application File Number, name of the applicant and address of the project; the complete name, address and telephone number of the party filing the request; if represented by counsel, the name, address and telephone number of the attorney; if claiming to be a person aggrieved, the specific facts that demonstrate that the party satisfies the definition of"aggrieved person"found in 310 CMR 9.02; a clear statement that a formal adjudicatory hearing is being requested; and a clear and concise statement of the specific objections to the Department's Draft License, and the relief sought through the adjudicatory hearing, including, specifically, the changes desired in the final Waterways License. Docket Clerk Office of Administrative Appeals Department of Environmental Protection One Winter Street, 3`1 Floor Boston, MA 02108. This information is available in alternate format by calling our ADA Coordinator at(617)574-6872. 205a Lowell St. Wilmington, MA 01887 •Phone (978)661-7600 •Fax (978)661-7615 •TDD# (978)661-7679 I0 Printed on Recycled Paper A copy of the Notice of Claim must be sent at the same time by certified mail or hand delivery to the applicant, the municipal official of the city or town where the project is located, and the issuing office of the DEP at: James A. Sprague, Section Chief Wetlands and Waterways Program Department of Environmental Protection 205A Lowell Street Wilmington, MA 01887 A) Contents of Hearing Request Under 310 CMR 1.01(6)(b), the Notice of Claim must state clearly and concisely the facts that are the grounds for the request and the relief sought. Additionally, the request must state why the decision is not consistent with applicable laws and regulations. Pursuant to 3 i O'CMR 9.17(3), any Notice of Claim for an adjudicatory hearing must include the following information: (a) the DEP Waterways Application File Number; (b) the complete name, address, fax number and telephone number of the applicant; (c) the address of the project; (d) the complete name, address, fax number, and telephone number of the party filing the request and, if represented by counsel, the name, address, fax number, and phone number of the attorney; (e) if claiming to be a person aggrieved, the specific facts that demonstrate that the party satisfies the definition of"person aggrieved" found in 310 CMR 9.02; a clear statement that a formal adjudicatory hearing requested; (f) a clear statement of the facts which are the grounds for the proceedings,the specific objections to the DEP's written decision, and the relief sought through the adjudicatory hearing, including specifically the changes desired in the final written decision; and (g) a statement that a copy of the request has been sent to: the applicant and the municipal official of the city or town where the project is located. B) Filing Fee and Address A copy of the Notice of Claim along with a DEP Fee Transmittal Form and a valid check payable to the Commonwealth of Massachusetts in the amount of one hundred dollars ($100)must be mailed to: Commonwealth of Massachusetts Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 4062 Boston, Massachusetts 02211 The request will be dismissed if the filing fee is not paid, unless the appellant is exempt or is granted a waiver. The filing fee is not required if the appellant is a city or town (or municipal agency), county, or district of the Commonwealth of Massachusetts, or a municipal housing authority. The Department may waive the adjudicatory hearing filing fee pursuant to 310 CMR 4.06(2) for a person who shows that paying the fee will create an undue financial hardship. A person seeking a waiver must file an affidavit setting forth the facts believed to support the claim of undue financial hardship together with the hearing request as provided above. If you have any questions, please feel free to contact Jill E. Provencal at (978)661-7778. Since 7 ly, es A. Sprague ction Chief c. Wetlands and Waterways Program cc: Salem Mayor and City Council, City Hall, Salem, MA 01970 Salem Zoning Board, City Hall, Salem, MA 01970 Salem Planning Board, City Hall, Salem, MA 01970 Salem Conservation Commission, City Hall, Salem, MA 01970 Salem Harbormaster, Winter Island, Salem, MA 01970 (The Tommonwealth of fitassarbuoetto No. Draftlug 38herrus, Burnham Associates, Inc. of-- Salem --, in the County of-- Essex -- and Commonwealth aforesaid, has applied to the Department of Environmental Protection for license to—maintain existing fill, to construct and maintain a seawall and fill and to place and maintain three spud piles ------- and has submitted plans of the same; and whereas due notice of said application has been given, as required by law, to the -- Mayor and City Council -- of the -- City-- of Salem; - ------------------------------------------------------------------------------------------------------------- NOW, said Department, having heard all parties desiring to be heard, and having fully considered said application, hereby authorizes and licenses the said -- Burnham Associates, Inc. --, subject to the provisions of the ninety-first chapter of the General Laws, and of all laws which are or may be in force applicable thereto, to— maintain existing fill, to construct and maintain a seawall and fill and to place and maintain three spud piles ---------------------------------------------------------------------------- in and over the waters of— Salem Harbor -- in the -- City-- of-- Salem -- and in accordance with the locations shown and details indicated on the accompanying DEP License Plan No. Draft (2 Sheets). PRINTED ON RECYCLED PAPER License No. Draft Page 2 The structures hereby authorized shall be limited to the following use(s): to provide shoreline stabilization for the protection of existing structures for the purposes of a marine construction facility. This existing fill authorized pursuant to this license shall expire 99 (ninety) years from the date of license issuance. By written request of the Licensee for an amendment, the Department may grant a renewal for a term of years not to exceed that authorized by the original license. The proposed fill, seawall and spud piles authorized pursuant to this license shall expire 30 (thirty) years from the date of license issuance. By written request of the Licensee for an amendment,the Department may grant a renewal for a term of years not to exceed that authorized by the original license. In accordance with any license condition, easement, or other public right of lateral passage that exists in the area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass around all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access sign at each property line adjacent to the mean high water shoreline. Said signs, provided by the Department, shall be posted immediately upon receipt. Nothing in this condition shall be construed as preventing the Licensee from excluding the public from portions of said structure(s) or property not intended for lateral passage. All work authorized herein shall be completed within five (5) years of the date of license issuance. Said construction period may be extended by the Department for one or more one year periods without public notice,provided that the Applicant submits to the Department,thirty (30) days prior to the expiration of said construction period, a written request to extend the period and provides an adequate justification for said extension. Please see page 3 for additional conditions to this license. ------------------------------------ - ----- ------------------------------------- Duplicate of said plan, number Draft is on file in the office of said Department, and original of said plan accompanies this License, and is to be referred to as a part hereof. License No. Draft Page 3 STANDARD WATERWAYS LICENSE CONDITIONS 1. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform with all terms and conditions stated herein. 2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the provisions hereof shall be secured by the Licensee prior to the commencement of any activity or use authorized pursuant to this License. 3. Any change in use of any substantial structural alteration of any structure of fill authorized herein shall require the issuance by the Department of a new Waterways License in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure of fill authorized herein shall render this Waterways License void. 4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set forth herein. This license may be revoked after the Department has given written notice of the alleged noncompliance to the Licensee and those persons who have filed a written request for such notice with the Department and those persons who have filed a written request for such notice with the Department and afforded them a reasonable opportunity to correct said noncompliance. Failure to correct said noncompliance after the issuance of a written notice by the Department shall render this Waterways License void and the Commonwealth may proceed to remove or cause removal of any structure or fill authorized herein at the expense of the Licensee,its successors and assigns as an unauthorized and unlawful structure and/or fill.. 5. The structure(s)and/or fill authorized herein shall be maintained in good repair and in accordance with the terms and conditions stated herein and the details indicated on the accompanying license plans. 6. Nothing in this Waterways License shall be construed as authorizing encroachment in,on or over property not owned or controlled by the Licensee,except with the written consent of the owner or owners thereof. 7. This Waterways License is granted subject to all applicable Federal,State,County,and Municipal laws,ordinances and regulations including but not limited to a valid final Order of Conditions issued pursuant to the Wetlands Protection Act,G.L. Chapter 131, s.40. 8. This Waterways License is granted upon the express condition that the use of the structure(s)and/or fill authorized herein shall be in strict conformance with all applicable requirements and authorizations of the DEP, Division of Water Pollution Control. 9. This License authorizes structure(s)and/or fill on: X_ Private Tidelands. In accordance with the public easement that exists by the law on private tidelands,the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks,for the purposes of fishing,fowling,navigation,and the natural derivatives thereof. _ Commonwealth Tidelands. This Licensee shall not restrict the public's right to use and to pass freely,for any purpose,upon lands lying seaward of the low water mark. Said landsareheld in trust by the Commonwealth for the benefit of the public. _ A Great Pond of the Commonwealth. The Licensee shall not restrict the public's rights to use and to pass freely upon lands lying seaward of the high water mark for any lawful purpose. Navigable River or Stream. The Licensee shall not restrict the public's right to use and to pass freely,for any lawful purpose,in the waterways. No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license. 10. Unless otherwise expressly provided by this license,the licensee shall not limit the hours of availability of any areas of the subject property designated for public passage,nor place any gates, fences,or other structures on such areas in a manner that would impede or discourage the tree flow of pedestrian movement thereon. License No. Draft Page 4 The amount of tidewater displaced by the work hereby authorized has been ascertained by said Department, and compensation thereof has been made by the said — Burnham Associates, Inc.. by paying into the treasury of the Commonwealth-- two dollars and zero cents ($2.00) -- for each cubic yard so displaced, being the amount hereby assessed by said Department. (355.00 cu. yds. _ $710.00) Nothing in this License shall be so construed as to impair the legal rights of any person. This License shall be void unless the same and the accompanying plan are recorded within 60 days from the date hereof, in the Registry of Deeds for the County of-- Essex ----------------------- IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their hands this day of in the year two thousand and Department of Section Chief Environmental Protection THE COMMONWEALTH OF MASSACHUSETTS bythe said — ---------------------------------------------------------- -------- the further sum of-- ($0.00) ---- the amount determined by the Governor as a just and e u' e charge for rights and privileges hereby granted in the land of the Commonwealth BOSTON, Approved e Governor. FOR ' RECi15TRY USE ONLY NOTE: HISTORIC S MEAN HIGH �9Soti ,W WATERS ARE FROM FIELD OBSERVATION AND °y Sr INTERPOLATION OF yF EX15T ING CONOITI ON5. LAND OF �o COMM. OF Z _ �tN NORTH R�4 MA5S.' � pm = Q a° LOCI P4 m Iry m TOP OF SLOPE RUBBLE GRANITE BLOCK WALL LOCUS MAP 38' 47.52' Q g .9% 0 100 ASSESSORS PAR( (`PED) NUMBER , MAP 2E TOP OF SLOPE ' ; M RUBBLE- REMAINS o BROKEN GRANITE CONCRETE WALL 0 .REMAINS Or 12" *- NORTH A 3 Oyi WOOD COLUMNS RIVER + k" 1 'x . .,"S,t TO OEREMOVE�. LAND OF ` 3 BURNHAM c ',o P� p 0 FROPOSEb FEupa $ S r PILES (IS)+.�1rW/ X145 PST R F" a r G WON DENTE�. '(D tt�`�A p R to 00� MI pkopOSED GRANITE BLOCK SHEET PILE RIP- RAP WALL WALL . PLAN AREA x NOTE: THIS PLAN WAS NOT p _ 7,4001 S.F. MADE BY AN INSTRI MENT SURVEY AMC MIfW+11NW CANNOT BE USED T M 40. 5Z , DETERMINE EXACT Iq.48 PROPERTY LINES. 6�� Q �` *r LAND OF s MASS. BAY TRANSIT AUTHORITY 'A 30' 15' 0 30' SCALE = (== )O' PLAN ACCOMPANYING PETITION OF SHEET OF Z BURNHAM ASSOCIATES INC. FOR 5EAWALL , RIP RAP AICD FILL ON NORTH RIVER AT 12 NORTH ST. SALEM , MA OIglO h,145S Ado ;3/9(, FOR REGI STR`f USE ONLY w _ z_ J ? UJ Il 111 W 3 BROKEN WALL 0 a GRANITE BLOCK o ' WALL n RIP RAP WALL 70't 101 MHW w W y u u v u 3 y b V u w EL.' B'6'. ML EL:O' MUDDY BOTTOM . . . EL (-REMAINS OF EL.' -l.0 all t WOOD 31+ Sir COLUMNS EXISTING (TO OE REMOVED SECTION A - A SCALE , 1" = 30' 20 + - AVERAGE �J5`-AV6. - TIE Cour. = IO•t AVB. pop W� MHW EL .= 8.81 FILL smmrMUD FLAT5 MLW T SHEET ELW EL.= O' PILE WALL EL.° -1 jgCAL S.11EFT ', TD BE BwLT WALL SEGTIOkI i SECTION 5 - lb (NOT 7D SCALE) A NOTE : P-Z 27 To 8fF DR1VE11 2o' Mllll. WITH TIE 20 IV O - 20' BALKS EVERY 20' To A - VERTICALLY PR,VbA/ SHEET. SCALE 20' CALC0.LATIONS OF (2 S APPROX. Ex)STi1J& = FILL VOLLLME / F;p ./ CALCLLLATIOWS OF A APPRox. PgonOseD = I ) 1 Z ) = I70 - FILL VOLUME \ 2 ` 7 �' 0 33; YXn/!W 6-1"445HEET 2 OF 2 PLAN ACCOMPANYING PETITION OF BURNHAM ASSOCIATES INC. -p- ) vo 'rf FOR SEAWALL , RIP RAP AND. FILL kJ ON NORTH RIVER AT '72 NORTH ST., SALEM, MA 019 '70 310 CMR 10. 99 DEP File No. 64-271 (10 be provided by DEP) Form 5 City/Town Salem Applicant Burnham Associates commonweal th ' of Massachusetts DENIED Order of Conditions Massachuetts Wetlands Protection Act G.L. c . 131, §40 From Salem Conservation Commission Issuing Authority To Burnham Ac¢nrriatpc Same (Name of Applicant) (Name of property owner) 26 Dearborn Street Salem, 01970 Address 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 February 11', 1998 (date) This project is located at 70A North Street The property is recorded at the Registry of Essex Book 13256 page 276 Certificate (if registered) The Notice of intent for this project was filed on 12/8/97 (date) The public hearing was closed on 1/22/98 (date) Findings Commission The 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 Commission at this time, the _Commission has determined that the area on which the proposed work is to be done is significant to the following interests in accordance with the Presutptions of Significance set forth in the regulations for each Area Subject to Protection under the Act (check as appropriate): Public water supply 91 Flood Control Q land containing shellfish Private water supply Storm damage prevention C(�� Fisheries Ground eater supply Prevention of pollution Protection of Wildlife Habitat Total Filing Fee Submitted $360.00 State Share $167.50 (1/2 fee in excess of S25) City/Town Share $192.50 Total Refund Due S City/Town Portion S State Portions (1/2 total) (1/2 total) Therefore, the Commission hereby finds that the following conditions are necessary, in accordance with the Performance Standards sec fort; in the regulations, t:. protect those interests checked above. . The Commission orders that all work shall be performed in accordance with said conditions ane 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 . 1 . 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, but less than five years, from the dace of issuance and both that dace and the special circumstances warranting the extended time period are sec 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 sill used in connection with this project shall b< clean fill. containing no crash, refuse, rubbish or debris, including but not limited cc lumber, bricks, plaster, wire, lath, paper, cardboard, pipe• tires, ashes, refrigerators, motor vehicles or parts of any of the forecoing. 7 . No work, shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an anneal 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 informatin shall be submitted to the Commission 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 64-271 1. 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 chat 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 File with: Notice of Intent 72 North Street 6/19/97 Dani PT T.ynnhl&?nf? Salem Conservation Comm Special Conditions (Use additional paper if necessary) Pursuant to 310 CMR 10.5(6)(c),the Salem Conservation Commission voted by a vote of four(4) in favor,zero(0)opposed, that the Conunission issue an order denying an Order of Conditions on the additional grounds that: I. Applicant has been issued citations for.violation of the Wetlands Protection Act pursuant to G.L C.40,sec.21 D and has'failed to pay the fins imposed. 2.The proposed plans as presented do not satisfy the requirements of the Wetlands Protection Act,the Rivers Protection Act,and our local ordinance. 3.The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the Comunonwealth of Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the use for ongoing access for cranes,heavy equipment,and other vehicles and for which dump trucks loaded with stone would be required to cross during - construoion. There remains also a question of the legality of the applicant utilizing the property directly north of his site u a right of way. 4.There.is an existing Enforcement Order,dated October 10,1996,for violations on 70A North Street for which the applicant was ordered to cease and desist anivitis at the site. The applicant has failed to properly respond to the Commission and has not ceased the cited activities. s.The information submitted by the applicant with regard to the project's impact on filling in a section of the North River,is not sufficient to describe the site, the work or the effect of the work on the interests identified in hIGL ch.131 section 40 and to the North River. 6.The Notice of Intent describeswork to be done but NOT OWNED BY APPLICANT to land and/or land underwater at high tide which includes filling of s section of the North River and location of all or much of the proposed seawall,fender piles,spud piles,and other equipment and vessels of the applicant. 7.Chronic grounding of large vessels should be avoided because the grounding will limit the productivity of the underlying intertidal habitat(see file letter of %1arinc Fisheri s Biologist Bradford C.Chase,dated February 9. 1993.from the Commonwealth of Massachusens,Division of Marine Fisheries). The inwn ation submitted by the applicant with regard to the project's impact on locating and storing barges on a section of the North River at 70A North Street is not ndl i.tent to describe the site,the work or the effect of the work on 0x interests identified in MGL ch.131 section 40 and to the North River. S. Pursuant to GA-c.40,sec.57 the Conmtission is empowered to deny this application for the failure to pay fins u sated in paragraph I. Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work. (Leave Soace Blank) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-3A r Issued By Salem' Conservation Commission si to e (s) This Order must be signed by a majority of the Conservation Commission. On this 10th day. of February 19 98 before me personally appeared the above mentioned to me known to be the person described in and who executed the foregoing instrument and acknowledge cha2eexecuted the same as his/her free act and deed. iGCQO t A� ice- ga G No ary Public My commission e .pires ' 7 The epplicant, the owner, any person agrrieved by this Order, any owner of land abutting the land upon whit the proposed work is to be done, or any ten residents of the city or town in which such land is located, ar hereby nctified of their right to request 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 shalt at the same time be sent by certified Rail or hand delivery to the Conservation Commission and the applicant. i Detach on dotted line and submit to the Commission prior to commencement of work. ........................................................................................................... To Issuing Authority Please be advised that the Order of Conditions for the project at File Nurber 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 a on ,19 If recorded land, the instrument nurber which identifies this transaction is _ If registered land, the document number which identifies this transaction is Signature Applicant 5-4r. r - .J� ./•C YLyj Y�e��t�'�f P yg2 w Y Y.-Ic� rii71\�+3../�r6 ;�, ':'H�- "'. �. : '. ..?'.,2:__'La.�.y,..e-e� f,AL�c�._rd- _ ___ ....___ -gk• 3• s - _. __.._.. The following description Ss- - .. al *noting Part of an instrument '• - r !nq land In which the grantor is Phyllis N. '3Cnrlend, ? formerly known as Phyllis 8. Myers, Ancillary Adminlstratrlx and bce�r A,p - Sx, and the grantee is Burnham Associates, Inc. . '• ' - .. The land in Salem bounded and described as follows F� f - North 500 30' 31" Bast by State Highway (bridge/tunnel) of the + F•.: ., -.- Commonwealth Of Na9machue9tta, 47.52 feet, thence) T - _:..Southeasterly by the North River about 150 feet, thence) s r ;.southwesterly by land now or formerly of the Boston Maine ' � :_.Railron? Torp. 60 feet, thence; -- - t.. North 35• 331 24" Nast by North Street and the land taken by the Commonwealth of Massachusetts 142 feet to the point of beginning. ,ir - ,� ,. --..H• ell measurements more or less and containing 8,000 square feet n .. ., more or lose, meaning and intending to convey all the land which may be owned by the grantors under the North River adjacent thereto. Sae, Essex County Registry of Deeds (South) Book 3775, Page 127, for Massachusetts Department of Public works, North Street land Taking. .4 Additional title references: h�- 1. Deed of David P. Sherpa to Amelia Myers dated December 23, 1927, recorded with Essex south Registry of Deeds, Book - 2752, Page 64. 2. Essex Probate No. 2287260 Estate of Amelia Myers. h5i 3. Essex Probate No. 234043, Estate of Bison Myers. 4. See plan recorded with Essex south Registry of Deeds, Plan ?t\ Book 52, Plan 20B entitled "Lend of David P, Sharpe, Sales, Kama. , dated December 1927, Thomas A. Appleton, C.E. Said conveyance Is made without warranty or any covenant as tat A. Any compliance with or absence of condition on the "'- property which could give rise to a lien under General laws Chapter 21E; B. Compliance with or fitness for any particular use under the Salem Zonlnq Ordinance or any State, Federal, County or Municipal code, regulation, statute or by-law C. Existence of any right of way or other legal access to said land. 1'.t. Ai 9_ I ty 'i e:3gF- WI b- tr. v. 70A NORTN STREET �. 0 1WSYl512t10 132 i)y, a`t+�Y•aA`s7@'� ri'..•Ft Fes' "Y l �s,Y sY . .a r,�sgrSn { _ -"deft,. i{ ..i`a':zT Fr'•?i 4.'' �D 1 rr•�i'`�'�`�T'•�•¢ �^"� -, �y� ' The undersigned-MY=8 y["'EU�AD1Dr .lor:erlY known as 8 +`> ___ _ HXzm •r Anoillary,Adainistratrix and-Executrix of the Will • Benjamin 8:'Myirs stated Auqust'9;' 1972,"9 Island Avemi;y5b8, .� Miami Beach, Floridn, under license to sell, Essex Probate No 95P- :?•.. ..,..-_. 1087-FEl. .r . POI CONSIDBNATIOA OF : ,o-Thirty Thousand and no/loo ($�o,000.00) . - - _--. Dollars -- :•.. PAID, RELEASES TOt '•HI)RIDSAII ASSOCIATES, INC., �-.26 DearbornStrest, Sala, NA r- - tQTN REI3A8E COMANTS The land vith any buildings thereon and •further described on - EXHIBIT A attached hereto and expressly mads a part hereof and _: ' incorporated herein by reference. ADDRESS OF CRAWPRENISESS . .. --. TSD _ 7oA North Street,-Selam, Kaasachusetts - •a:� ' WITNESS our hands and seals this 19th day of July, 1995 - i:. i 4140 to a Ph a X. .Ear. antl f/k/a Phyllis s. Wgere f STATE OF FIARZDA DADE, SS. Jul / 9M, 1995 Then personally appeared the above-named Phyllis N. Kurland eras Executrix, and acknowledged formerly known as Phyllis 8- sy the foregoing instrument to be her tree act nd deed, before me �: ;:, +� c salon axpires% �, a 1 u_. ':: RIRT+IT +I cw.a.►.xanse� .1. �waa.wn t y. �.ri.v- 4Y t7 y..i ? •s r� 3 •. I NT E R . MEMO O F F I C E To: Kevin Daly, Attorney for the Conservation Commission CC: Conservation Commission memb From: Stephen Dibble, Assistant P1 er� Subject: 70A North Street Date: February 26, 1998 The attached letter from Burnham Associates, dated 21 February 1998, to the DEP is a request to the DEP for a superseding order for the 70A North Street NOI project. Please let me know if the Commission needs to respond to this action. The letter states that the alleged violations are currently before the court. Please update the Commission with issues regarding the existing enforcement order, a summary of the daily fines and if they continue, and whether the matter is before the court. R = Burnham Associates 26 Dearborn Street Salem, MA 01970 (978) 745-1788 21 February 1998 Mr. James A. Sprague Department of Environmental Protection Wetlands Division 10 Commerce Way Woburn, MA 01801 Request for superceding Order of Conditions Ref: D.E.P. file# 64-271 Location: 70A North Street, Salem, MA Dear sirs; Burnham Associates objects to the denial of an Order of Conditions for the above referenced Notice of Intent filed with the Salem Conservation Commission on 3 December 1997. The Salem Conservation issued an eight item explanation of it's denial which is enclosed. Burnham Associates objections follow on an item by item format: I) The citations and fines referred to here are capricious and discriminatory with no legal foundation. Note: the alleged violations are currently before the Court. 2) The proposed plans clearly describe the proposed project. They are the same presentation used on countless proposals that have been granted Orders of Conditions and D.E.P. licenses. 3) The strength of the abutting structure (North River culvert) has supported the , equipment of Burnham Associates since the site was purchased by Burnham and for years before that when Burnham had access to the site. No study has been done on the structure to assess it's strength, only the test of time. It should be noted that this culvert is an extension of the same culvert currently carrying 20 feet of earth as well as thousands of pleasure cars and trucks daily on North Street. The capacity of the structure far exceeds any load that would access the Burnham Property. 4) Please see# 1 above. Page#2 5) The proposed pheet pile bulkhead is further inland of the Historic High Water (HHW) line than the existing configuration and thus reduces the impact on the area resources. 6) Item#6 int the ConComm denial refers to land and/or land underwater at high tide which is not owned by applicant as regards seawall, fender piles, spud piles and other equipment and vessels. The site work proposed is all on property owned by Burnham Associates. 7) The ConComm referenced Chronic Grounding of Large Vessels will be avoided. NRespetfu submit d: for: Bu urnham Associates Enclosures I C O V E R S FAX H E E T To: Craig Burnham Fax#: 741 1984 Subject: 70A North Street Date: February 11, 1998 Pages: 2, including this cover sheet. Craig: Per your request, I have attached the Salem Conservation Commission's order denying an Order of Conditions. This order will be included under the standard DEP form and once completed it will be s you. Please let me know if you have any questions. Ste C. 1 From the desk of... Stephen Dibble Assistant Planner City of Salem, Planning Dept. One Salem Green Salem, MA., 01970 (508)745 9595 ext. 311 Fax:(508)740 0404 1n�e Pursuant to 310 CMR 10.5 (6) (c), the Salem Conservation Commission voted by a vote of four (4) in favor, zero (0) opposed, that the Commission issue an order denying an Order.of Conditions on the additional grounds that: 1. Applicant has been issued citations for violation of the Wetlands Protection Act pursuant to G.L. c. 40, sec. 21D and has failed to pay the fines imposed. 2. The proposed plans as presented do not satisfy the requirements of the Wetlands Protection Act, the Rivers Protection Act, and our local ordinance. 3. The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the Commonwealth of Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the use for ongoing access for cranes, heavy equipment, and other vehicles and for which dump trucks loaded with stone would be required to cross during construction. There remains also a question of the legality of the applicant utilizing the property directly north of his site as a right of way. 4. There is an existing Enforcement Order, dated October 10, 1996, for violations on 70A North Street for which the applicant was ordered to cease and desist activities at the site. The applicant has failed to properly respond to the Commission and has not ceased the cited activities. 5. The information submitted by the applicant with regard to the project's impact on filling in a section of the North River, is not sufficient to describe the site, the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River. 6. The Notice of Intent describes work to be done but NOT OWNED BY APPLICANT to land and/or land underwater at high tide which includes filling of a section of the North River and location of all or much of the proposed seawall, fender piles, spud piles, and other equipment and vessels of the applicant. 7. Chronic grounding of large vessels should be avoided because the grounding will limit the productivity of the underlying intertidal habitat (see file letter of Marine Fisheries Biologist Bradford C. Chase, dated February 9, 1998, from the Commonwealth of Massachusetts, Division of Marine Fisheries). The information submitted by the applicant with regard to the project's impact on locating and storing barges on a section of the North River at 70A North Street is not sufficient to describe the site, the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River. 8. Pursuant to G.L. c. 40, sec. 57 the Commission is empowered to deny this application for the failure to pay fines as stated in paragraph 1. Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work. DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSETTS 01970 KEVIN T. DALY TELEPHONE 19781 745-0500 �', �i'F= O COUNSEL MARGARET DALY CRATEAU FAX (978) 745-6606 4' -RARD E. DALY APR 12 -EX"3 Salern Plan '=ig De April 8, 1999 pt. Commonwealth of Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 ATTN: Docket Clerk RE: Burnham Associates, Inc. Docket No. 98-165 File No. 064-0271 Dear Sir or Madam: Relative to the above-named matter, please find enclosed the Pre-Hearing Conference Statement of the City of Salem and Salem Conservation Commission. Thank you for your attention to this matter. Very truly yours, KEVIN T. DALY KTD/ddw Enclosures CC: Keith Kauppila, Esq. Dorothy Montouris, Esq. Ralph Perkins i Commonwealth of Massachusetts Department of Environmental Protection AK-� 12 'L116 Salem Planning Dept. I Docket No. 98-165 In the matter of ) File No. 064-0271 Burnham Associates, Inc. ) Pre-Hearing Conference Statement of City of j Salem and Salem Conservation Commission i . I A) Unresolved Issues : It is the position of the City of Salem and the Salem Conservation Commission that the superseding order of conditions for Burnham Associates, Inc. should be denied. The City of Salem has adopted as an ordinance the Wetlands Protection Act. On October 10, 1996 a Cease and Desist Order was served on Burnham Associates, Inc. pursuant to c. 131, X40 relative to activities being conducted at 70A North Street in Salem. After receiving the Cease and Desist Order, Burnham Associates, Inc. was then required to file a Notice of Intent and appear before the Conservation Commission for a hearing to obtain either an Order of Conditions or a Determination of Non- Applicability. Burnham Associates has failed to do so. Further, pursuant to city ordinance, Burnham Associates has been issued citations with fines of $200 . 00 per day for approximately three hundred consecutive days for the placing of a spud pile and dredging pipes at 70A North Street without proper permits. These fines have gone unpaid. The City has adopted General Laws Chapter 40 section 57 . Based on this statute, as well as 310 CMR: 10 . 05 (4) (f) , an Order of Conditions should be denied. Copies of correspondence previously sent to D.E. P dated June 22, 1998, October 24, 1997 and September 9, 1997 are enclosed for further reference. Additionally, the superseding order should be denied until the applicant ceases the use of public property for its business . I I i 7 B. Witnesses : The following witnesses will be called on behalf of the City of Salem and Salem Conservation Commission: Captain Harold Blake, City of Salem Police Department (retired) ; Stephen Dibble, staff person for the Salem Conservation Commission; Jill Provencal, D. E. P. ; Ralph _Perkins, D. E. P. ' William Wholley, City of Salem Harbormaster; all members of the Salem Conservation Commission. The above-named witnesses will testify as to the activities being conducted at 70A North Street and the failure of Burnham Associates, Inc. to comply with ordinances, statutes and regulations. Dated: April 8, 1999 Respectfully Submitted Kevin T. Daly, Esq. 32 Church Street Salem, MA 01970 I it i DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSETTS 01910 KEVIN T. DALY TELEPHONE(978) 745.0500 OF COUNSEL MARGARET DALY CRATEAU FAX 1978) 745-6606 RICHARD E. DALY June 22, '1998 Commonwealth of Massachusetts Department of Environmental Protection 205A Lowell Street Wilmington, MA 01887 ATTN: Mr. Ralph Perkins RE: 70A North Street, Salem DEP File No. 64-271 Dear Mr, Perkins: It was a pleasure meeting with you at the site visit relative to 70A North Street on June 22, 1998 . As you requested, please find enclosed copies of my correspondence to your office dated September 9, 1997 and October 24, 1997 . These letters were sent in my capacity as Attorney for the Salem Conservation Commission at its request . I mistakenly assumed that these letters would be placed in the appropriate file and at your disposal. As you can see, these letters outline the concerns relative to 70A North Street. As you also requested, I am enclosing a copy of General Laws chapter 40, section 57 which was cited in the Denied Order of Conditions issued relative to this property. The owner of 70A North Street was issued fines pursuant to section 21D of this chapter and these fines. have gone unpaid. Pursuant to section 57, the Conservation Commission therefore has authority to deny the Order of Conditions . I have also researched regulations pertaining to the Department of Environmental Protection. 310 CMR: 10 . 05: (4 ) (f) provides that ,a Notice of Intent can be rejected for failer to obtain or apply for permits, varances, and approvals from the city. The Conservation DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSETTS 01970 KEVIN T. DALY TELEPHONE 15081 745.0500 OFCOUNSEL MARGARET DALY CRATEAU FAX 15081 745-6606 RICHARD E. DALY October 24, 1997 Commonwealth of Massachusetts Division of Wetlands and Waterways 10 Commerce Way Woburn, MA 01801 ATTENTION: Ms . Jill Provencal RE: 70A North Street, Salem Dear Ms. Provencal: As you know, I represent the City of Salem Conservation Commission relative to the above-named property. I have been asked by the Commission to send this letter for your review in conjunction with the Enforcement Review Meeting to be held at your office next week. 70A North Street in Salem is owned by Mr. Craig Burnham who operates Burnham Associates, Inc. , which is a marine contracting business. 70A North Street is a small parcel on Salem' s North River in close proximity to the North Street overpass. There is no public way access to this parcel, although Mr. Burnham drives heavy equipment over property owned by the Commonwealth and the City in order to access this parcel. The North River culvert runs under the state-owned land over which Mr. Burnham accesses his property. Mr. Burnham purchased 70A North Street within the last two years and began using it for the storage of his equipment and vessels. One of the vessels is anchored by the use of a spud piling which Mr. Burnham has testified sinks approximately five feet into the riverbed. On October 10, 1996 , the Conservation Commission issued a cease- and-desist order to Burnham Associates , Inc . for conducting activity at 70A -North Street without a valid Order of Conditions. Mr. Burnham has ignored the cease-and-desist order. Also, as you know Mr. Burnham did apply to the Conservation Commission for an Order of Conditions to perform certain work and renovations at the cite. The Order of Conditions was denied and his subsequent appeal to the Department of Environmental Protection for a Superseding Order was also denied. In March of 1997, the Conservation Commission requested the Salem Police Department to enforce the Wetlands Protection Act pursuant to General Laws, Chapter 40, section 21D. The police department issues daily citations to Mr. Burnham of $200.00 each. Division of Wetlands and Waterways Page 2 October 24, 1997 I believe the fines presently approach $40, 000 . 00 and Mr. Burnham' s appeal of these fines is pending in Salem District Court. Mr. Burnham argues that his spud pilings are not subject to regulation and are only used to anchor his vessels temporarily. However, as you know from your many years of involvement with Mr. Burnham, his spud pilings have been in place for some years and are only infrequently moved. For your reference, I am enclosing copies of two panoramic photographs of 70A North Street taken on September 14 , 1997 . Also enclosed is a photograph of Mr . Burnham's barge at 70A North Street taken in early 1997 . Tied to this barge are numerous dredging pipes, each of which is approximately 300 feet long. Mr. Burnham had these pipes located off 70A North Street for some months this past winter. Accordingly, on behalf of the Salem Conservation Commission, please consider these factors at your Enforcement Review Meeting. Thank you for your attention to this matter. Verytrulyyours, KEVIN T. DALY KTD/rmj CC: Salem Conservation Commission DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSEM 000 KEVIN T. DALY TELEPHONE 15081745-0500 OF COUNSEL MARGARET DALY CRATEAU FAX 15081745 8808 RICHARD E. DALY September 9, 1997 Commonwealth of Massachusetts Division of Wetlands and Waterways 10 Commerce Wav Woburn, MA 01801 ATTENTION: Mr. James Sprague, Section Chief RE : Waterways License Application No. W96-5802 Dear Mr. Sprague: Please be advised that this office represents the City of Salem Conservation Commission. As such I am in receipt of your notice of license application dated August 20, 1997 . Accordingly, kindly consider this a Petition to Intervene on behalf of the City of Salem Conservation Commission. The Conservation Commission opposes the granting of a waterways license for the property located at 70A North Street in Salem. The applicant for this license has previously applied for an Order of Conditions from the Conservation Commission and was denied. His request for a Superceding Order of Conditions from the Department of Environmental Protection was also denied. On October 10, 1990' the Conservation Commission issued a cease and desist order to Burnham Associates, Inc. for conducting activity without a valid Order of Conditions . The owner of Burnham Associates, Inc. has ignored this cease and desist order. Subsequently, the Conservation Commission requested the Salem Pclice Department to enforce the Wetlands Protection Act pursuant to General Laws, Chapter 40, 21D. To date approximately $25, 000 . 00 in fines has been issued and the matter is pending in Salem District Court . Additionally, the Conservaticn Commission has had much difficulty in dealing with this applicant regarding activity at another parcel on the North River as well as his continued use of spud pilings without the proper permitting. Waterways License No. W96-5802 Page 2 Acccrdingly, for the foregoing reasons the Conservation Commission petitions to intervene and hereby opposes the granting of a waterways license to this applicant . Thank you for your attention to this matter. Very truly yours, KEVIN T. DALY KTD/km cc: Conservation Commission -qlhqum O J,6i ie giah ti 6 eZ eaa�ua�m �vue2 �/Zlatine �� ieric� Aahf n M 30 �me2don Uirenue; �losccea�e2 0/930 PHILIP G. COATES ` DIRECTOR (508 1 282-0300 February 9, 1998 Salem Conservation Commission City of Salem _ One Salem Green Salem, MA 01970 Dear Commission Members : Upon your request I am responding to questions regarding the storage of commercial barges on the tide flats at the upper end of the North River, Salem. Having worked at the Cat Cove Marine Laboratory for most of the previous decade, I am familiar with the practice in question and of the local marine resources . I looked into the issue from a permitting standpoint and did not get a definitive answer on whether a state or federal permit is needed in this case . The Commonwealth' s wetlands Protection Act requires a permit for projects that result in alterations to intertidal wetlands . This use may qualify as an alteration. I encourage you to seek clarification from the Massachusetts Department of Environmental Protection on this question. As for federal jurisdiction, the U. S . Army Corps of Engineers also require permits for projects that alter habitats in navigable waterways . If the barges are secured to moorings then it must be in a mooring field permitted by the U. S . Army Corps of Engineers . It is my understanding that no permits are held by the barge owner and the use of the flats are supposed to be of short duration. The length of the time the barges are stored on the flats may be a critical issue for regulating this practice because impacts will become obvious during long-term groundings . From an ecological perspective, the issue is easier to address . The chronic grounding of large vessels should be avoided because the grounding will limit the productivity of underlying intertidal habitat . The extent of the impact will depend on the size of the barge and duration of the grounding in relation to the tide cycle . Tidal flats have a high density of marine invertebrates (clams, worms, crustaceans, ect . ) that need to respire to support metabolic processes even during low tides when no water is present . Large objects such as barges will cause 2 mortality to many types of organisms by direct physical damage, degrading essential habitats, and restricting respiration. If the barge is tethered to allow some movement then the impacts may extend beyond that caused by just the surface area of the barge hull . Another cause of concern is the potential for pollutants to leach off the barge to the flats . The intertidal habitat of the North River contains soft shell clams and marine worms that are important components of local food chains . Species of high commercial and recreational value such as waterfowl , striped bass and winter flounder visit these habitats to feed on sea worms, clam ciphons, and crustaceans . Many other less well known organisms depend on the tide flats for feeding or shelter opportunities . Collectively, valuable public resources are found living at or visiting these intertidal habitats, and efforts should be made to minimize unnecessary impacts . In my experience, most communities along Massachusetts Bay do not allow this practice except for emergency or short term use . I recommend that alternative storage locations are found for the North River barges . It should be possible to find commercial wharfage or mooring space in the region to store the barges between jobs . Thank you for the opportunity to comment . If you have any quest_ons please do not hesitate to call . Sincerely, / Bradford C. Chase Marine Fisheries Biologist 978-282-0308 x111 cc : W. Leigh Bridges, Asst .. Dir . , MDMF Steve Dibble, Asst . Planner, Salem ~ - 310 CMR 10. 99 DEP File No. 64-249 - 4 Form 9 (To be provided by DEP) Salem City/Torn Applicant Burnham Associates, Inc CaD®onwealth of Massachusetts Enforcement Order Massachusetts Wetlands Protection Act, G.L. c. 131, 540 From Issuing Authority To Burnham Associates, Inc. 26 Dearborn Street October 10, 1996 Date of Issuance - 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 k above is in violation of the Wetlands Protection Act,* G.L. c. 131, 440, and the Regulations promu.�gated pursuant thereto, 310 CMR lo.o0, 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 _.. r . 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 Salem Conservation Commis si n Coamiis s ion Issued by ^lCompleted arlicacion forms and plans as required by the Act and Regulations shall be filed with the (date) , on or before 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: reasonable stepto prevent further ® The property owner shall take every 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 by or imprisonment for not more thantwo yeartion shall both, Each da ayseparate portion thereof of continuing offense. J forcement Order should be directed to Questions regarding this En _�— Stephen Dibble Conse Issued by Sale Conserva ion Commission Signature( I (Signature of delivery person or certified mail number) °mom i iyt yu i 9,4 9-2b . e CGorq ern 11T�'1 Motion made by Joan Griffin to issue an enforcement order, seconded by Abby Burns and approved unanimously. Parker Brothers Demolition Steve Dibble reported that a letter was received notifying the Commission of the intent to begin the demolition of the Parker Brothers Site. Burnham Barge Steve Dibble reported that there are two new barges in the North River and it is believed that Mr. Burnham put them there. Mark George suggested that the Commission could fine Mr. Burnham $200.00 per day Fred Harney suggested that the Commission issue a cease and desist order and request that Mr. Burnham come before the Commission to discuss the property. :Motion made by Mark George to issue an Enforcement Order to Mr. Burnham, seconded by Joan Griffin and approved unanimously. There being no further business to come before the Commission at this meeting, a motion was made by Abby Burns to adjourn the meeting, seconded by Joan Griffin and approved unanimously. The meeting was adjourned at 7:50 p.m. Respectfully submitted by: Eileen M. Sacco, Clerk CC 101096 4 DEC-01-99 WED 03:04 PM NEWMAN 6 NEWMAN, P, C, FAX N0. 16177231710 P. D2 Commonwealth of Massachusetts RECEIVED SUMMONS 1999 DEC -2 AM (C* 03 �;� 00 ESSEX, ss. TRIAL. COURT Of MASSACHUSL-T7 i.S 1 DISTRICT COURT DEPAAj*F,,VT SALEM DIVISIO*LaNNfNG CrC-T NOS. 9736CR4002, -4003 COMMONWEALTH r ATIneCOPY Ate' v. IIUItNHAM ASSOCIATES, INC. TO: Keeper of the Records 7osePh P.Butl Of�oston Constable•City ' City of Salem COm�nnwealth of Massachusetts Salem Conservation Commission One Salcm Green Salem, MA 01970 YOU ARE HEREBY ORDERED, in the name of the Commonwealth of Maisaehuseas, to appear before the Salem District Court, 65 Washington Street, Salem, Massachusetts, on December G, 1999 at 9:00 AM in the forenoon, to give evidence and to testify on behalf of the defendant in the matter described above, and to appear from time to time and day to day thereafter as ordered. You are further required to bring with you: All documents, records, correspondence and memoranda relating to any permits granted by your office or its agents under Chapter 34, sections 34-1 and 34-2 of the Salem Code of Ordinances, so-called- HEREOF FAIL NOT,as you will answer your default under the pains and penallies•in the law in that hehal made and provided Datedat: c' sdt� the �S day of A-Mde( A.D. 19't'7 . By. l / (Notary Public) (617) 790-5840 John D.Fltz?otrl. NoIARY PUE31_IC My jgnro slap e:(aCs Sept.7,Zbt COVER SHEET FAX To: Deb Hurlburt Fax#: 9220285 Subject: Burnham Denial Date: February 8, 1999 Pages: 1, including this cover sheet. Pursuant to 310 CMR 10.5 (6)(c),the Salem Conservation Commission voted by a vote of four(4) in favor, zero (0)opposed,that the Commission issue an order denying an Order of Conditions on the additional grounds that: 1. Applicant has been issued citations for violation of the Wetlands Protection Act pursuant to G.L. c.40, sec. 21D and has failed to pay the fines imposed. 2. The proposed plans as presented do not satisfy the requirements of the Wetlands Protection Act,the Rivers Protection Act, and our local ordinance. 3. The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the Commonwealth of Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the use for ongoing access for cranes,heavy equipment, and other vehicles and for which dump trucks loaded with stone would be required to cross during construction. There remains also a question of the legality of the applicant utilizing the property directly north of his site as a right of way. 4. There is an existing Enforcement Order, dated October 10, 1996, for violations on 70A North Street for which the applicant was ordered to cease and desist activities at the site. The applicant has failed to properly respond to the Commission and has not ceased the cited activities. 5. The information submitted by the applicant with regard to the project's impact on filling in a section of the North River, is not sufficient to describe the site,the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River. 6. The Notice of Intent describes work to be done but NOT OWNED BY APPLICANT to land and/or land underwater at high tide which includes filling of a section of the North River and location of all or much of the proposed seawall,fender piles,spud piles,and other equipment and vessels of the applicant. 7. Chronic grounding of large vessels should be avoided because the grounding will limit the productivity of the underlying intertidal habitat(see file letter of Marine Fisheries Biologist Bradford C. Chase,dated February 9, 1998, from the Commonwealth of Massachusetts,Division of Marine Fisheries). The information submitted by the applicant with regard to the project's impact on locating and storing barges on a section of the North River at 70A North Street is not sufficient to describe the site,the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River. 8. Pursuant to G.L. c. 40, sec. 57 the Commission is empowered to deny this application for the failure to pay fines as stated in paragraph 1. Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work. From the desk of... Stephen Dibble Assistant Planner City of Salem, Planning Dept. One Salem Green Salem,MA.,01970 (978)745 9595 ext.311 Fax: (978)740 0404 yL l DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSETTS 01970 KEVIN T. DALY TELEPHONE 19781745-0500 OF COUNSEL MARGARET DALY CRATEAU\ FAX 19781 745-6606 RICHARD E. DALY December 14, 1998 Docket Clerk Office of General Counsel Department of Environmental Protection One Winter Street Boston, MA 02108 NOTICE OF CLAIM FOR ADJUDICATORY HEARING ~ RE: Applicant : Burnham Associates, Inc. Project Address : 70A North Street, Salem, MA DEP File No. : 064-0271 Dear Sir or Madam: Please be advised that this office represents the City of Salem and the City of Salem Conservation Commission relative to the above-named matter. The parties hereby request an adjudicatory hearing relative to the issuance of a Superseding Order to the applicant . Please note the mailing address of this office since prior correspondence has been misdirected. The mailing address for the City of Salem and the Conservation Commission is 93 Washington Street, Salem, MA 01970 . The mailing address for Burnham Associates, Inc. is 26 Dearborn Street, Salem, MA 01970 . My clients hereby object to the Superseding Order as it is inconsistent with the Wetlands Regulations and does not contribute to the protection of the interests of the Act. The relief sought by my clients through the adjudicatory hearing is the denial of the Superseding Order until the applicant complies with all other local and state bylaws, - ordinances and statutes which are presently disputed between the parties . Additionally, the Superseding Order should be denied until the applicant ceases the use of public property for its business purposes . Specifically, numerous problems between the applicant and the City of Salem and Conservation Commission have been outlined in previous letters to the Department dated June 22, 1998, October 24 , 1997 and September 9, 1997 . The applicant has ignored a Cease and Desist Order dated October 10, 1996 and many thousands of dollars of fines have accumulated as a result of the applicant ' s violations at the project address . Office of General Counsel Page 2 December 14, 1998 Further, the applicant is already in violation of conditions imposed in the Superseding Order. The applicant without right is utilizing public property in order to conduct its business . The applicant continues to moor heavy barges at the project site without permits from the City Harbormaster and contrary to the concerns of the Department . The applicant has allowed much debris to accumulate along the waterfront of the site. There is an abandoned motor vehicle, lumber, tires, and much ,. other equipment and refuse which has become overgrown with brush. At the adjudicatory hearing of this matter, the City and Conservation Commission reserves the right to add to these objections with additional evidence, if permitted. Accordingly, kindly process this Notice of Claim for Adjudicatory Hearing in due course. Thank you for your attention to this matter. Very truly yours, KEVIN T. DALY KTD/rmj CERTIFIED MAIL NO. Z396775523 CC: DEP, Commonwealth Masters Lockbox, CTFD MAIL NO. Z396775524 Commonwealth of Mass. DEP, Ralph Perkins, CTFD MAIL NO. Z396775525 Burnham Associates, Inc. ¢T FD MAIL NO. Z396775603 Conservation Commission Attorney William Lundregan Z D DALY & DALY °-2. ATTORNEYS AT LAW 32 CHURCH STREET Jro ✓ SALEM, MASSACHUSETTS 01970 KEVIN T8ek--M-P1anr)i-L C)ep} TELEPHONE 19781745-0500 OF COUNSEL MARGARET DALY CRATEAU `'•i' i� FAX 19781 745-6606 RICHARD E. DALY June 22, 1998 Commonwealth of Massachusetts Department of Environmental Protection 205A Lowell Street Wilmington, MA 01887 ATTN: Mr. Ralph Perkins RE: 70A North Street, Salem DEP File No. 64-271 Dear Mr. Perkins : It was a pleasure meeting with you at the site visit relative to 70A North Street on June 22, 1998 . As you requested, please find enclosed copies of my correspondence to your office dated-September 9, 1997 and October 24 , 1997 . These letters were sent in my capacity as Attorney for the Salem Conservation Commission at its request . I mistakenly assumed that these letters would be placed in the appropriate file and at your disposal . As you can see, these letters outline the concerns relative to 70A North .Street , As you also requested, I am enclosing a copy of General Laws chapter 40, section 57 which was cited in the Denied Order of Conditions issued relative to this property. The owner of 70A North Street was issued fines pursuan� ,to_ section 21D of this chapter and these fines have gone unpaid. Pursuant to section 57, the Conservation Commission therefore has authority to deny the Order of Conditions . I have also researched regulations pertaining to the Department of Environmental Protection. 310 CMR: 10 . 05 : (4) (f) provides that a Notice of Intent can be rejected for failer to obtain or apply for permits, varances, and approvals from the city. The Conservation Commonwealth of Massachusetts Mr. Ralph Perkins June 22, 1998 Page 2 Commission complied with this regulation when citing the existing Enforcement Order dated October 10, 1996 for violations on 70A North Street . When the owner of the property received this Enforcement Order, his obligation was tc then file a Notice of Intent or apply for a Certificate of Non-Applicability. He failed to do so and the Conservation Commission was within its rights to deny him an Order of Conditions . Should you require any further documentation or information from me, please do not hesitate to ask. Kindly note that I am providing copies of this correspondence to Mr. Burnham' s attorney. Thank you for your attention to this matter. Very truly yours, KEVIN T. DALY KTD/ddw Enclosures CC: Attorney Keith Kauppila City of Salem Conservation Commission COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF EwRoNMENTAL PROTECTION METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE ARGEO PAUL CELLUCCI - TRUDY COXE Governor Secretary y jr€ e r� DAVID B. STRUHS `� s� MAY 2 71998 Commissioner ED JUN Q 1 lode RE : WETLANDS/Salem Burnham Associates DEP FILE #64-271 26 Dearborn Strek5plem Ranm; 3g Dept. Appeal/Site visit Salem, MA 01970 70A North Street Dear Sirs : The Department of Environmental Protection has received and accepted your appeal regarding the above-referenced filing pursuant to the provisions of the Wetlands Protection Act , Massachusetts General Laws, Chapter 131 , Section 40 . The appeal was received by this office on February 21, 1998 . Under the provisions of the Act and pursuant to issuance of a Superseding Order of Conditions, the Department has scheduled a site visit for the project on Wednesday, June 10 , 1998 at 10 : 00 AM with you and all concerned parties at the site . The purpose of this site evaluation isto determine if the area is significant to the interests of the Act and to informally discuss those issues relevant to the referenced project . No activity may commence on any portion of the project site subject to the jurisdiction of M.G.L. Chapter 131, Section 40 , until the Department issues a Superseding Order of Conditions and all appeal periods have elapsed. Should you have any questions regarding this matter, please contact Ralph Perksin at (978) 661-7786 or Jill Provencal at (978) 661-7778 . '' jery� James A. Sprague Section Chief Division of Wetlands & Waterways Certified Mail , Return Receipt Requested t CC : Salem Conservation .Commission, City .Hall, Salem, MA 01970 205a Lowell St • Wilmington,Massachusetts 01887 • FAX (978) 661-7615 • Telephone (978) 661-7600 • TDD#(978)661-7679 L COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS 9DEPARTMENT OF ENVIRONMENTAL PROTECTION METROPOLITAN BOSTON-NORTHEAST REG10 EHE T�77UT ARGEO PAUL CELLUCCI rl �_} TRUDCOXE Governor i G Secretary w rr Dept. B. STRUHS Salem Pla,gin,:ra� p$ comm ss�oner March 12, 1998 Craig Burnham WETLANDS/SALEM Burnham Associates DEP File #64-271 26 Dearborn Street 72 North Street, Salem Salem, MA 01970 Additional Information Request Dear Mr. Burnham: The Department of Environmental Protection is in receipt of your appeal postmarked February 24, 1998, regarding the site referenced above. In order to process this appeal, the Department requires additional information. Therefore, within 7 days of receipt of this letter, please submit proof that the appeal request was also submitted to the Salem Conservation Commission. Please note that according to DEP regulations, 310 CMR 10.05(7)(2), such service copies are to be delivered concurrently with the Department's copy. Proof may be a copy of the Certified Mail Receipt. Please send this information to the attention of Susanne McCarthy at the address given below. In addition, please remit the appropriate fee as outlined on the Request for Doartmental Action Fee Transmittal Form (Page Three) of the Appeal Checklist which has been enclosed for your convenience in replying. Upon a showing that the appeal is valid, the Department will accept it and will schedule a site visit. z_ No activity may commence on any portion of the project subject to the jurisdiction of Chapter 131 Section 40 until the Department issues a Superseding Order of Conditions and all appeal periods have elapsed. 10 Commerce Way 9 Woburn,Massachusetts 01801 • FAX (781) 932-7615 • Telephone (781) 932-7600 0 TDD#(617)932-7679 .1 Page Two 64-271 Should you or any party have any questions relative to this case, please contact Susanne McCarthy at (781) 932-7784. e truly yours, s . Spr Fv n Chief Susanne McCarthy Wetlands anate Environmental Analyst Enclosure cc: Salem Conservation Commission, 1 Salem Green, Salem, MA 01970 i .SHUN Cp�� Z �i z Conservation Commissim Salem. Massachusetts 01970 f� ASS MEMO To: Ralph Perkins, DEP From: Stephen Dibble, Conservation Administrat Subject: 70A North Street, DEP File 964-271 Date: June 22, 1998 As per your request at the DEP site inspection, I am enclosing copies of several documents which should assist you in your review of the request for a Superseding Order from Mr. Craig Burnham on the above referenced file. Enclosed documents as follows: 1. Copy of Order of Conditions denying project 2. Copy of 2/9/98 Bradford Chase, Marine Fisheries Biologist, DMF letter 3. Copy of deed (plot plan included in original NOI submittal) 4. Copy of October 10, 1996 Enforcement Order, 70A North Street Please let me know if I can be of any additional assistance. CC: Craig Burnham, Cover memo and DMF letter only Kevin Daly, Cover memo only sNmnwMmiWWmrcmo NOTICE of INTENT SALEM CONSERVATION COMMISSION Meeting: 08 January 1998 Location 70A North Street Salem,Massachusetts 1 1 1 1 �.p ,� `�" "-•+ `` '�Q•S.!�.. s 'pyx , E ii\1 e I S� er _ t 6 NOTICE of INTENT January 1998 WALL RECONSTRUCTION 70A North Street, Salem, MA 01970 T q 'WA--•e�.� Y 'Y NAa1'Sk _ b � g ' x — VIEW of GRANITE WALL( river outfall) 1 6 °�` s '--ac VIEW LOOKING SOUTHERLY I N T E R MEMO O F F I C E To: Kevin Daly, Attorney for the Conservation Commission CC: Conservation Commission memb From: Stephen Dibble, Assistant Pla e, �5/ 1 Subject: 70A North Street ��J� Date: February 26, 1998 The attached letter from Burnham Associates, dated 21 February 1998, to the DEP is a request to the DEP for a superseding order for the 70A North Street NOI project. Please let me know if the Commission needs to respond to this action. The letter states that the alleged violations are currently before the court. Please update the Commission with issues regarding the existing enforcement order, a summary of the daily fines and if they continue, and whether the matter is before the court. Burnham Associates 26 Dearborn Street Salem, MA 01970 (978) 745-1788 21 February 1998 Mr. James A. Sprague Department of Environmental Protection Wetlands Division 10 Commerce Way Woburn,MA 01801 Request for superseding Order of Conditions Ref: D.E.P. file# 64-271 Location: 70A North Street, Salem, MA Dear sirs; Burnham Associates objects to the denial of an Order of Conditions for the above referenced Notice of Intent filed.with the Salem Conservation Commission on 3 December 1997. The Salem Conservation issued an eight item explanation of it's denial which is enclosed. Burnham Associates objections follow on an item by item format: 1) The citations and fines referred to here are capricious and discriminatory with no legal foundation. Note: the alleged violations are currently before the Court. 2) The proposed plans clearly describe the proposed project. They are the same presentation used on countless proposals that have been granted Orders of Conditions and D.E.P. licenses. 3) The strength of the abutting structure (North River culvert) has supported-the equipment of Burnham Associates since the site was purchased by Burnham and for years before that when Burnham had access to the site. No study has been done on the structure to assess it's strength, only the test of time. It should be noted that this culvert is an extension of the same culvert currently carrying 20 feet of earth as well as thousands of pleasure cars and trucks daily on North Street. The capacity of the structure far exceeds any load that would access the Burnham r1,:i (,,?.r,.c:Property ' f uT1• t, r; u..... .G.< cia '�aC jb a^ . i. � .. t.: i. ,. . 1.) 'vn 4) Please see# 1 above. Page#2 5) The proposed pheet pile bulkhead is further inland of the Historic High Water (HHW) line than the existing configuration and thus reduces the impact on the area resources. 6) Item#6 int the ConComm denial refers to land and/or land underwater at high tide which is not owned by applicant as regards seawall, fender piles, spud piles and other equipment and vessels. The site work proposed is all on property owned by Burnham Associates. 7) The ConComm referenced Chronic Grounding of Large Vessels will be avoided. Resp tfu submit d: for: Craig Bu urnham Associates Enclosures r rtui i nun ivnni i r-r�;,u�.i ri i c:� i iy�,. h'Hurvt NU. -SWb !41 19)84 Feb. Z4 19% 06:06HM P3 310 CMR 10. 99 BEP file No. 64-271 Form (To be provided by DEP) 5 City/Tole, Salem Applicant Burnham Associates COamloDtveal th ' of Massachusetts' DENIED Order of Conditions Massachuetts Wetlands Protection Act G.Z. c. 131, 540 From Salem Conservation Commission Issuing Authority To nurnham qtr, tit-e Same (Name of Applicant) (Name of property owner) _....,-._: .. ...._-... .'. 26 Dearborn 5tre�t •Salem MA 01970 Address 'Address' This Order is issued and delivered as follows: ❑ by hand delivery to applicant or representative on (dace) © by certified mail, return receipt requested on February 11, 1998 (date). This project is located at 70A North Street The property is recorded at the Registry of Essex Book 13256 page 276 Certificate (if registered) The Notice of Intent for this project was filed on 12/8/97 (date) The public hearing was closed on 1/22/98 (date) Findings The Commission , . has reviewed the above-referenced Notice of Intent and plans and has held a public hearing an the project. Based on, the information available to the Commission at this.. .' . ttene, the Cormnission"- • :•hai 'determihed.that. therarea on which the proposed work is to be done is . ` signil,• cant tor;ctie fotleMiy�g' knuretts.in:accordince;with-,the Presumpt-ions of Significance set forth''in the ".. ,. ^--^ regul,wnvrhr-fbr-eac -A4cr Svb`)eet ter Pirotrci.i on-under;,ho-Ac;s--(check--as appropriate): Public water supply Fl wed Control ty La+d containing shellfish Private water. supply Storm damage preventionF(®) Fisheries Ground water supply Prevention of pollution Protection of Uildlife Habitat Total Filing Fee Submitted $360.00 State share $167.50 (1/2 fee in excess of S25) city/Town Share $192.50 Total Refund Due $ City/Town Portion S Stat! Portions . .. (1/2 total) (1/2 total) Effective 11/10/89 5.1 —rria ...i..nnn rtoou�,i n cc uv�.. - r'HUNt: IYU. b'Ud (41 1984 Feb. 24 1598 08:06AM P4 11 . Upon completion of the work described herein, the applicant ghall forthwith request in writing that a Certificate of Compliance be issued stating than 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 File with: Notice of Intent 72 North Street 6/19/97 Daniel Tyy&hX&;)nf? Salem Conservation Comm. Special Conditions (Use additionalpaper if necessary) Pursuant to 310 CMR 10.5(6)(c),the Salem Conservation Commission voted by a vote of four(4) in favor,zero(0).opposed, that the Commission issue an order denying an Order of Conditions on the additional grounds.that: 1. Applicant b6 been issued eitatteru for violation of the Wetlands Protection Act pursuant to O.1','a.40,ate.21 D udhas fsikd.{o pay the lines,inlpgsed:- 2.The proposed plane as presented do not satisfy ate nquirmxnu of the Wetlands Protection Act.'Irks Riven Frotecd ACL and'our local ordinance;� ' 1.The proposed plans and submittals as presented and discussed haw not prown that the abutting North River conct'Ae culvert on land of the Cn nonwcalth of Moswctmsons can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for'the use for ongoing access for nines,heavy equipment,and other vehicles and for which dump trucks leaded with pone would berequired to"ass during: . cmirm tion. There remains also a question of the legality of the applicant utilizing the property directly north of his site as a rij luvf way. 4.Thery is an existing Entwoement Order,dated October 16,19%,for viobatioro on 70A North Street for which the appiicanty as ords ed to coast and- . desist activities at the site. The applicant hu'failed to properly respond to the Commission and has let Cursed the Cited adivilics. ' S.The information submitted by the applicant with regard to the project's Impact on filling in a section of the North River,is not sufr6et to describe the site, the work or the effect of the work on the interests Identified in MOL'ch.131 section 40 and to the Notch River. 6.The Notice of Intent describes work to be done but NOT OwNED BY APPLICANT to land and/or land underwater at high tide which include filling of a section ofthe North River and location of all or much of the proposed seawall,fender piles,spud piles,and other equipment and vessels of the applicant. 7.Chrunie grounding of large vowels should be avoided because the grounding will limit the productivity of the underlying intertidal habitat(see file letter of Marine Fisheries Biologist Bndfxd C.Chase,dated February P.I"It.from she Convnonwulth of Mauachu=rm Division of Marine Fisheries). The infi,rrrw; n sutunittd by the applicant with regard to the project's hnpact on locating and storing barges on a section of the North River at 70A North Street is not suf icient to describe the site,the work or the effect of the work on the interests identified in MOL ch.131 section 40 and to the North River. 9. Pursuant to O.L.C.40,sae.$7 the C vanlssion is empowered to deny this application for the failure to pay fins as stated in paragraph I. Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work, era p (Leave Space Blank) � 3.3A hKul`I bUNHHHM IiSSOCIHTES INC. PHONE NO. 508 741 1984 Feb. 24 1998 08:07AM P5 Therefore, the Commission hereby finds that the following conditions are necessary, in accordance with the Performance Standards set forth in the regulations, tc protect .those interests checked above. The COMM15slon 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 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. a. The work authorized hereunder shall be completed within three years from the date of this order unless either of the following apply: fat 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 Che Order, 6 . Any ; ill used in connection with,this project shall ba 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. . S . No-work shall be undertaken until the Final order has been recorded ,in .the,Regi,sary 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 Commission 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 64-271 1.0. 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 . n_2 i7Tcl ✓b:kJbHH F'b Issued By Sale Conservation Commission Si tures) This order must be signed by a majority of the Conservation Commission. On this 10th day. of February 19 98 before me personally appeared the above mentioned to me known to be the -. .. . ._. person described in and who exectitetha foregoing instrument and acknowledged"" that s e executed the same as his/her free act and deed. - 'Ile Cites'{ /(�, l g `�� Na , Yy Public My COmmisslon e/pires� The applicant, the owner, any person agrrieved by this Order, any owner of (and abutting the land upon which the"proposed work is To be done, or any tan residents of the city or town in which such tand is located, are hereby. nctified of their right To request the Oepartment of. Envirom+entat protection to issue a superseding Order, providing the request is made by certified mail or hand delivery to the Department, with the apprepriate filing fee and fee Transmittal Form as provided in 310 CMA 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. tict—h on-Ootted'Hne and submit to the . CQ4110iss,ion .prior„TA Cwyt04nFfinent of work. :..:....`......... To )ssuinp AuthpritY please be advised that the Order of Conditions for the project at Fite Number has been recorded at the Registry of and has been noted in the chain of title of the affected property in aeeerdanee with General Condition 8-on ,19 if recorded land, the instrument number which identifies this transaction is If registered land, the document nurber which identifies this transaction is . signature Applicant- 5-4A pplicant5-9A :=11-1998 11 : 17A11 FROM 3ALDI ENGINEERING 7455877+ p, 2 Pursuant to 310 CMR 10.5 (6)(c), the Salem Conservation Commission voted by a vote of four(4)in favor, zero (0)opposed, that the Commission issue an order denying an Order of Conditions on the additional grounds that: 1. Applicant has been issued citations for violation of the Wetlands Protection Act pursuant to G.L. e. 40, sec. 21D and has failed to pay the fines imposed. 2. The proposed plans as presented do-not satisfy the requirements of the Wetlands Protection Act, the Rivers Protection Act, and our local ordinance. 3. The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the Commonwealth df Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the use for ongoing access for cranes, heavy equlpmcnt, and other vehicles and for which dump trucks loaded with stone would be required to cross during construction, There remains also a question of the legality of the applicant utilizing the property directly north of his site 4 a right of way. 4. There is an existing Enforcement Order, dated October 10, 1996, for violations on 70A North Street for which the applicant was ordered to cease and desist activities at the site. The applicant has failed to properly respond to the Commission and has not ceased the cited activities. S. The in&rmatioh submitted by the applicant withwegerdao the project's impact on filling in a section bf the North River, ismomufi'icienmidaMbe theAite, the W rkk or the effsct of the work on the inter -identified,-in MGL ch.131 Isebtibit 40 and to the North River. 6. The Notice of Inient describes but NO"WNED BY APPLICANT to land and/0r-iand_Qnd.r-WAtsr,ae igh ide ltic ttolusiost'illinr1 the N,, r1 p�oaaoncd a11r Fitdti�f }te propos §egllgwg� er:equlpment and vessels of the applicant. 7.1#hronie gr9u?tdins of ta`rg6 vidoObecause the grounding willAn-4t the s prS?ductivty 6f the underlyie file letter of Marine Fisheries Biologist Bradford C, Chase, dated February 9, 1998, from the Commonwealth of Massachusetts, Division of Marine Fisheries). TheiRfarmtiommbinitted by the applicant with regard to the project's impact on locating and storing barges on a section of the North River at 70A North Street i ;ufficient to describe the site, the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River. S. Pursuant to G.L. c. 40, sec. 57 the Commission is empowered to deny this application for the failure to pay fines as stated in paragraph 1. Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work. I` N T E R MEMO O F F I C E To: Conservation C ion bers From: Stephen Dibb Subject: Special meetin 10th Date: February 4, 1998 Enclosed is the notice of meeting. We need Mark,Karen,Kevin, and Becky to be at meeting to vote. All others can fully discuss denying or approving an Order of Conditions. I have attached your draft special conditions as prepared to date. I have also enclosed a draft denial of an Order of Condition for your review. Additional items not yet addressed or fully addressed which need to be discussed: a. Barges - both during construction and ongoing use b. Filter fabric c. Pavement d. Construction vehicles and ongoing vehicular traffic over North River culvert e. Existing Enforcement Order f. Unpaid fines g. Filling of North River h. Work proposed on land beyond property line not owned by applicant February 10th will be 19th day of a maximum of 21 days required to issue or deny the Order. This is getting much too close. At the request of the City Solicitor please confirm your attendance with me. Thanks! Sdkoncom/misc/bumham r' 1� 1�-'�T � ,a�,�►. ,�O�viM �i� 21 �ursuant to 310 CMR 10e Salem.5 (6) (c), the Conservation Commission voted by a vote of (� in favor, U opposed, that the Commission issue an order denying an Order of Conditions on the additional grounds that: It _LThe proposed plans as presented do not satisfy the requirements of the Wetlands Protection Act, the Rivers Protection Act, and our local ordinance. 4, The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the Commonwealth of Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the use for ongoing access for cranes, heavy equipment, and other vehicles and for which dump trucks loaded with stone would be required to cross during construction. 3. There is an existing Enforcement Order, dated October 10, 1996, for violations on 70A North Street for which the applicant was ordered to _rAo„lt-a;.. 1i - of ritati�h Yb alem POl1Ce D0r1A1'YmP..xlk.� 4. The information submitted by the applicant with resuard to the projee%impact)tcf OA filling in a section of the North River ,,is not sufficient to describe the site, the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River. 5. The Notice of Intent describes work to be done but NOT OWNED BY APPLICANT to land and/or land underwater at high tide which includes filling of a section of the North River and location o vll or giuc:ottkbe propoy`w all, fender piles, spud piles qwa d}�nt� ”; � sr+�1 r 6. The information submitted by the applicant with regard to the project$impactX 0 0% storing barges on a section of the North River at 70A North Street is not sufficient to describe the site, the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River: Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work. W .p... �;,, I, 1►. . aF �;S s;TC. I� s I>g�1+ �, q 0 SALEM CONSERVATION COMMISSION draft SPECIAL CONDITIONS - DEP FILE 964- ADDRESS: 70A North Street 1. All work shall conform to the above-referenced Notice of Intent, site plan and supporting documents and those final specifications which shall be filed with the Commission prior to construction. Any change made or intended to be made to the approved plans shall require the applicant to inquire of the Commission in writing whether the change is substantial enough to require the filing of a new Notice of Intent. 2. Members and agents of the Commission shall have the right to enter and inspect the premises at all reasonable times to evaluate compliance with the conditions in this Order. The Commission may require the applicant to submit additional data or information necessary for the Commission to conduct that evaluation. 3. Upon completion of the project, the applicant shall submit, with the request for a Certification of Compliance, an affidavit, prepared by a professional engineer or land surveyor registered in the Commonwealth of Massachusetts, stating that the site has been developed in accordance with the requirements of this Order of Conditions,the referenced site plan and supporting documents. 4. This Order shall apply to every successor in control or successor in interest of the property described int he Notice of Intent and accompanying plans or part thereof. In the event this land or any part thereof changes ownership before or during construction, the current owner shall notify the new owner, by registered mail, of this Order prior to the transfer of ownership and shall forward proof of this notification to the Commission. 5. Siltation barriers shall be utilized and maintained during all construction. Additional erosion and sedimentation control measures deemed necessary by the Commission shall be - instituted by the applicant. Any siltation caused onto any wetland or waterway area shall be promptly reported to the Commission. Such areas shall be restored to the satisfaction of the Commission. 6. During construction, no debris, fill, or excavated material shall be stockpiled within 100 feet of designated wetlands except for overnight stockpile from material for tieback installation. Any other stockpile location will be protected sufficient to prevent sediment from surface runoff entering wetlands. 7. No equipment servicing shall be conducted on property. Overnight equipment storage must be conducted beyond 25' from waters edge. Equipment must be maintained to prevent leakage or discharge of pollutants. 8. *No spill or discharge of petroleum products or other pollutants will occur within 100 feet of any wetland resource area. 9. *Use or storage of rock salt (sodium chloride) or other toxic de-icing chemicals is prohibited within 100 feet of the resource area. Any arrangement for snow removal shall stipulate the ban. 10. Notice shall be given this Commission no more than 2 weeks nor less than 2 days prior to the commencement of construction activities. Said notice shall include, in writing,the names(s), address(es), and business and home telephone numbers of the project supervisor(s)responsible for insuring that operations are conducted in compliance with this Order. 11. All disturbed soils shall be immediately and similarly re-vegetated upon completion of construction activities or shall be mulched until the next growing season. Hydroseeding will be initiated no later than September 15. 12. ' *Fertilizers used for landscaping and lawn care shall contain a low nitrogen content and be used in moderation. Pesticides and herbicides shall not be used within 100 feet of the resource area. 13. A plan for landscaping and maintenance of vegetation for the buffer zone shall be developed and submitted for Conservation Commission approval prior to commencement of work. 14. The Order of Conditions including these Special Conditions shall be posted on site. 15. Remains of wood columns proposed to be removed shall be removed from site and legally disposed. 16. Fill shall be clean blast rock and all construction shall take place from the land side. *ongoing conditions that do not expire upon completion of the project or issuance of a Certificate of Compliance. sd\concom\ooc\speccond ., `%UY CQ1, {z Conservation . Sion Salem. Massachusetts 01970 V A SS:: Conservation Commission Notice of Meeting You are hereby notified that the Salem Conservation Commission will hold a Special Meeting on Tuesday, February 10, 1998 at 5:30 p.m. in the second floor conference room, One Salem Green to discuss an existing Enforcement Order of violations including shoreline disturbances, possible dredging, and storage of barges, cranes, and equipment at 70A North Street. The Commission will also discuss whether to issue or deny an Order of Conditions, and issue special conditions, if any, on the Notice of Intent application of Burnham Associates proposing work to construct sheetpile bulkhead at 70A North Street. Fred I Harne xy Chairman %&concom\agendaM 1099 C O V E R FAX S H E E TTioq� To: Bradford Chase�Ma�ssss Division of Marine Fisheries Fax#: 6177273337 CC: Salem Conservation Commission Kevin Daly, Attn for the Conservation Commission Subject: Request for information on mud flat issues Date: January 30, 1998 Pages: 1, including this cover sheet. At the request of the Salem Conservation Commission, I am requesting any information you can provide to clarify (1)the legalities and (2)the ecological impact of locating and storing barges on mud flats at the upper end of the North River at 70A North Street. The existing barges seem to sit on or as one Commissioner says smoother the mudflat for the majority of the day due to lessened tidal activity with the low water mark, as the applicant indicated, being located over a mile away. The Commission recently closed a Notice of Intent Public Hearing for the construction of a seawall at 70A North Street to be used for the purposes of loading and unloading barges. The Commission needs to issue or deny an Order of Conditions prior to Feb 12th. The Commission has tentatively scheduled a meeting for Feb 10, 5:30 pm to issue its decision. I will need the requested information by Feb 9th for distribution to each Commissioner for review prior to the meeting. The Commission has also requested your attendance at this meeting to assist in explaining the more technical aspects related to these issues. I apologize for the relatively short notice but it was unforeseen. On behalf of the Commission, thank you for you assistance in this matter. sd/concom/misc/bumbarg From the desk of... Stephen Dibble Assistant Planner City of Salem, Planning Dept. One Salem Green Salem, MA., 01970 (508)745 9595 ext. 311 Fax:(508)740 0404 COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION METROPOLITAN BOSTON -NORTHEAST REGIONAL CE ARGEO PAUL CELLUCCI TRUDY COSE Governor O��v3 y �+ � Secretan DAVID B. STRUHS ;1 Commissioner R7 DEP File # 064-0271 RE : NOTIFICATION OF WETLANDS PROTECTION ACT FILE NUMBER SALEM DATE : 12-16-97 (city/town) The Department of Environmental Protection has received a Notice of Intent filed' in accordance with the Wetlands Protection Act (M.G.L. c . 131 , §40) : Applicant : BURNHAM ASSOCIATES Owner: SAME Address : 26 DEARBORN STREET Address : SALEM, MA 01970 Project Location: 72 NORTH STREET IF CHECKED, THE FOLLOWING ITEM(S) APPLY TO THIS NOTICE OF INTENT: A. " This project has been assigned ;the following -:file hough a file # is being issued, Altplease note the following_ ISSUANCE OF A FILE NUMBER INDICATES ONLY COMPLETENESS OF. SUBMITTAL, NOT APPROVAL OF APPLICATION B . No File # will be assigned to this project until the following missing information is sent to this office, to meet the minimum submittal requirements in accordance with the Wetlands Protection Regulations at 310 CMR 10 . 00 : 1 . ( ) copy (s) of a completed Notice of Intent (Form 3 or Form 4 of Sect . 10 . 99, whichever is applicable) and a copy of the Fee Transmittal Form, with a copy of the check for the State' s share of the Notice of Intent filing fee . 2 . ( ) copy(s) of plans, calculations, and other documentation necessary to completely describe the proposed work and mitigating measures to protect resource areas . 3 . ( ) _ copy (s) of an 8'/6" X 11" section of the USGS map of the area. 4 . ( ) _ copy(s) of plans showing compliance with Title 5 of the State Environmental Code, 310 CMR 15 . 00 . Proof that a copy of your Notice of Intent has been mailed or hand delivered .to the Natural Heritage and Endangered Species Program. COMMENTS-: - - (gee page 2 .for additional information) 10 Commerce Way • Woburn,Massachusetts 01801 0 FAX (781) 932-7615 • Telephone (781) 932-7600 9 TDD N(617)932-7679 KEITH W. KALIPPILA ATTORNEY AT LAW ONE WINTHROP SQUARE BOSTON, MASSACHUSETTS 02110 TELEPHONE: __ i—z r rFACSIMILE: (617) 695-9092 ��i a ✓ �� (6171 482-3784 Pt December 5, 1997 Mark L. Silverstein, Esq. Administrative Law Judge Department of Environmental Protection One Winter Street Boston, Massachusetts 02108 Re: Appeal of Burnham Associates, Inc. Docket No. 97-055 File No. 064-0249 - Salem Dear Judge Silverstein: Enclosed for filing in the above referenced proceeding please find Petitioner-Applicant's Notice of Withdrawl of Appeal . This Notice is filed in accordance with the Order re Further Proceedings dated November 5, 1997. I hereby certify that service of this Notice was made by first class mail to all representatives set forth in the Service List. Thank you for your courtesy and cooperation in this matter. Very truly /yours, ith W. Kaupp la KWK/mt Enclosure cc: Samuel J. Bennett, Esq. Salem Conservation Commission/ Ralph Perkins Craig C. Burnham I� COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the Matter of Docket No. 97-055 File No. 064-0249 Salem BURNHAM ASSOCIATES, INC. NOTICE OF WITHDRAWL OF APPEAL In accordance with the Order dated November 5, 1997, Petitioner-Applicant Burnham Associates, Inc. hereby withdraws this appeal pursuant to Wetlands Program Policy 88-3. The withdrawl is without prejudice to a new wetlands filing. A new Notice of Intent was filed, by Petitioner-Applicant's agent William H. Kelley, by first class mail on December 3, 1997. The new wetlands file number is unknown at this time. Petitioner-Applicant, By its attorney, K th W. Kaup if O# 542086 ne Winthrop Square Boston, Massachusetts 02110 (617) 695-9092 Dated: December 5, 1997 y KMARINE 8 RESOURCES 4F= TUC�RBLEHEADF•MA 0$945212 ®rC Sala ,1 m Plan 0189��g L7apt: 8 December 1997 Mr. Steve Dibble Salem Conservation Commission One Salem Green Salem, MA 01970 RE: NOI Application 72 North Street, Salem, MA filed 3 December 1997 -hearing extension. Dear sir; As per your request of 8 December 1997 asking for an extension of the Conservation Committee meeting date to 8 January 1998. Be advised that your request for an extension to 8 January 1997 is acceptable to my client. We will plan to attend the Conservation Committee hearing on the evening of 8 January 1997. Sine ` r William ff elley, owner !tel WATERFRONT-LICENSING& CONSTRUCTION 617-639-4454 FAX 617-639-4640 DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSETTS 01970 KEVIN T. DALY TELEPHONE 1978) 745-0500 - OF COUNSEL MARGARET DALY CRATEAU FAX (978) 745-6606 RICHARD E. DALY November 9, 2000 Office of Administrative Appeals Department of Environmental Protection 1 Winter Street, 3rd Floor Boston, MA 02108 ATTN: Honorable Francis X. Nee, Administrative Law Judge RE: Burnham Associates, Inc. DOCKET NO: 98-165 FILE NO: 064-0271 Dear Judge Nee: Relative to the above-named matter, please find enclosed the MORE DEFINITE STATEMENT OF SALEM CONSERVATION COMMISSION which you have ordered. Thank you for your attention. Very truly yours, KEVIN T. DALY KTD/tcd Enclosure Cc: Salem Conservation Commission Keith Kauppila, Esq. Dorothy Montouris, Esq. John Keenan, Esq. t , COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL AFFAIRS In Re : ) Burnham Associates, Inc. ) Docket No. 98-165 ) File No. 064-0271 MORE DEFINITE STATEMENT OF SALEM CONSERVATION COMMISSION Now comes the Salem Conservation Commission (hereinafter ("Commission") and hereby files this More Definite Statement as ordered by the Administrative Law Judge. It is the position of the Commission that the Superceding Order of Condition as issued in this case by the Department is not consistent with the Wetland Protection Act Regulations and does not contribute to the protection of the interests identified in G.L.C. 131, §40 . (See 310 CMR 10 : 05 (7) (j ) . ) The attached cover letter to the Superceding Order, which was made a part of that Order, states that the project site contains the following: the 100 foot buffer zone to a coastal bank, a coastal bank, a riverfront resource area, a coastal beach and land subject to coastal storm flowage. These areas are significant to the statutory interests. The Superceding Order does not protect these interests. The cover letter, authored by James A. Sprague, cites a study of the Division of Marine Fisheries (DMF) which found that the substrate was good habitat once pollutants were curtailed and the area would be a source of shellfish spawn for other areas and organisms. Mr. Sprague acknowledges that the moving of barges by the applicant at the site would have an adverse impact and he "strongly urged" the applicant to moor his barges off-site. However, he did not prohibit the barges because the barges were not part of this proposal. But the barges are part of this proposal . Since 1995 the applicant has used spud pilings to moor heavy industrial barges at the site, which at low tide severely impact the area. The whole purpose of this project is to create a marina for these barges . In an interview published in the September 3, 2000 edition. of North Shore Sunday, the applicant stated he plans to install a pier at the site and bring in boats, barges and floats . Since the applicant has a history of failing to obtain permits for such equipment, it is this Superceding Order which should address this issue in order to protect the interests of the Wetlands Protection Act . Another issue to be addressed is the applicant' s failure to comply with related statutes . 310 CMR 10: 24 (4) (a) provides that a proposed project must comply with all applicable requirements of federal, state and local statutes, bylaws and regulations . In the Superceding Order, General Conditions 1, 2 and 3 repeat these requirements as well as providing that the applicant is not authorized to injure or invade private property. However, the applicant is already in violation of these requirements . On October 10, 1996 the Commission issued an Enforcement Order to the applicant regarding his equipment and debris at the site . He has never complied with that Enforcement Order. On November 8, 1999 the Essex Superior Court ordered the applicant to obtain 2 necessary permits from the Salem Harbormaster for his vessels including his barges located at the 70A North Street site. The applicant has failed to obtain these permits. The site in question can be described as landlocked riverfront property. It has no access to a public way. In order to access the property, other than from the water, the applicant must drive his vehicles across private property, including a state owned culvert . The applicant has failed to provide information on how this will be avoided during the construction of his seawall. Finally, the installation of a pier, floats and additional barges would constitute a zoning violation at the site. The applicant has failed to explain how this will be avoided. Special Condition 16 of the Superceding Order requires that the site shall be maintained in a clean and orderly condition. The applicant presently uses the buffer zone of the site as a dump. There is an abandoned truck, equipment and debris which covers the entire site and is stacked many feet high. There is obvious petroleum waste. The vegetation has been destroyed. The Superceding Order is not specific enough regarding this condition in order to protect the interests of the Wetland Protection Act . Special Condition 18 of the Superceding Order provides as follows: Equipment shall be stored in a manner and location which will minimize potential environmental impacts . Fuel storage and the refueling of vehicles shall be conducted outside of the buffer zone in an upland location at a horizontal distance greater than 100 feet from the boundaries of the wetlands, or on an accepted public way. This Special Condition is physically impossible to comply with. The site is a small landlocked parcel with no access to a public way. The site is not one hundred feet deep and the only legal 3 access to the site by the applicant is by water. Because of the tide, the site can only be accessed from the water approximately twelve hours each day. Special Condition 18, does not protect the interests of the Wetlands Projection Act . Base on the foregoing, it is the position of the Commission that the Superceding Order of Conditions, as issued in this case, is not consistent with the Wetlands Protection Act Regulations and does not contribute to the protection of the interests identified in G.L.C. 131, §40_ Dated: November 9, 2000 Respectfully Submitted, KEVIN T. DALY, ES&IR BBO# 112970 DALY & DALY 32 Church Street Salem, Massachusetts 01970 (978) 745-0500 4 CERTIFICATE OF SERVICE I, Kevin T. Daly, Attorney for the Salem Conservation Commission, hereby certify that I served a copy of the within MORE DEFINITE STATEMENT OF SALEM CONSERVATION COMMISSION upon Attorney Keith W. Kauppila, and Attorney Dorothy Montouris, by mailing a copy of the same by first-class mail, postage prepaid, to: Keith W. Kauppila, Esq. 29 Commonwealth Avenue, Suite 906 Boston, MA 02116 Dorothy Montouris, Esq. DEP Office of General Counsel One Winter Street, 3rd Floor Boston, MA 02108 Signed under the penalties of perjury this 9"' day of November, 2000 . 1 KEVIN T. DALY BBO #112970 Daly & Daly 32 Church Street Salem, Massachusetts 01970 (978) 745-0500 %(NN Coll 2� = Conservadon Commi&ion Salem. Massachusetts 01970 fy'yA SSnCt*�5 Conservation Commission Notice of Meeting You are hereby notified that the Salem Conservation Commission will hold a special meeting on Thursday, January 29, 1998 at 5:30 p.m. in the second floor conference room, One Salem Green to discuss an existing Enforcement Order of violations including shoreline disturbances, possible dredging, and storage of barges, cranes, and equipment at 70A North Street. The Commission will also discuss whether to issue or deny an Order of Conditions, and issue special conditions, if any, on the Notice of Intent application of Burnham Associates proposing work to construct sheetpile bulkhead at 70A North Street. i��' �-j'CLvtil'✓t�f`� 'Fred Harney (I Chairman ui`cnnmmWgenda�01299S Part vt Additional Information for a Department of the Army Permit 1. CAE application No. (to be provided by COE) Salem Harbor, North River 2. (Name of waterway) 3. Names and addresses of property owners adjoining your propertys City of Salem, One Salem Green, Salem, MA 01970 Masachusetts Bay Transit Authority, 10 Park Plaza, Boston, MA 02216 Louise M. Andres c/o HMA, 72 North Street, Salem, MA 01970 Eric Botterman, Mass. Highway Dept., 519 Aplpleton St., Arkig"ton, MA 02174 4. Document other project alternatives (i.e., other ocations an r construction methods,.. particularly those that would eliminate the discharge of dredged or fill material into waters or wetlands) . 5. W x 11" drawings in planview and cross-section, showing the resource area and the proposed 'activity within the resource area. Drawings must be to scale and should be clear enough for photocopying. certification is required from the Division of Water .Pollution control before the Federal permit can be issued. Certification may be obtained by contacting the Division of Nater Pollution control, 1 Winter Street, Boston, Massachusetts 02108. Where the activity will take place within the area under the Massachusetts approved Coastal Zone Management Program, the applicant certifies that his proposed activity complies with and will be conducted in a manner that is ,;onsistent with the approved program. Information provided will be used in evaluating the application for a permit and is made a matter of public record through issuance of a public notice. Disclosure of this information is voluntary; however, if necessary information is not provided, the application cannot be processed nor can a permit be issued. I hereby certify under the pains and penalties of perjury that the foregoing Notice of Intent and accompanying plans, documents and supporting data are true and complete, to the best of my knowledge. Signa ur of Ap cant Date ,gn signature of Applicant' resentative Date FORM "Exception to EMG Fars 4345 approved by NOUSACE, 6 May 1982" No 100 (TEST) - 1 MAY U "This document contains a joint Department of the Army am State of Massachusetts application for a permit to obtain permission to perform activities In United States Maters. The Office of Management and gudget(OMs) has approved those questions required by the US Army Corps of Engineers. CMB Nudxr 0702.0036 and expiration date of 30 September 1983 applies". This statement will be set In 6 point type. 3-7 AFFIDAVIT OF SERVICE Under the Massachusetts Wetland Protection Act (to be submitted to the Massachusetts Department of Environmental Protection and the Conservation Commission when filing a Notice of Intent) I kl&-ZL6�1 , hereby certify under the pains and (Name of Person Making the Affidavit) penalties of perjury that on I gave notification to abutters in compliance with (Date) the second paragraph of Massachusetts General Laws Chapter 131, Section 40, and the DEP Guide to Abutter Notification dated April 8, 1994, in connection with the following matter: A Notice of Intent filed under the Massachusetts Wetlands Protection Act by gORAlhhy& with the Salem Conservation Name of Applicant) Commission on 8 T.YN. 9B for property located at (Date) 1 77-�- (Location of Property) The form of the notification, and a list of the abutters to whom it was given and their addresses, are attached to this Affidavit of Service. Name Date jm�anwra.�tcK� INC. Ni M;u'i no Con I im..(ws w Kngmvoi< October 21 , 1996 k 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 defined in 310 ''MR 10.02(1) according to Meir 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 CMk 10.02(I ) (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(I) (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 1')rarhnr11 St 1,.(,t ,inlcm, NIA orrio 'Telephone (508) 74b-1783 Fax (508) 741-1984 rtt 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)u. 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) (b) . (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 the land 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 use. 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. Very ,truly yours, / President, Burnham Associates, Inc. r SERVICE LIST Attorney or Representative Representinct Keith W. Kauppila, Esq. Burnham Associates, Inc . 1 Winthrop Sq. (petitioner-applicant) Boston, MA 02110 Samuel J. Bennett, Esq. Department of Environmental Senior Counsel Protection Department of Environmental (respondent) Protection Office of General Counsel 1 Winter St . , 3rd fl . Boston, Ma 02108 Chairperson Salem Conservation Commission Salem Conservation Commission City Hall 1 Salem Green Salem, MA 01971 CC : Ralph Perkins DEP Northeast Regional Office 10 Commerce Way Woburn, MA 01801 n BURNHAM ASSOCIATES, INC. # 97-055 r - - - - - - - - -- - i 310 CAR 10.99 DFP File Na 64-271 - (ro be row by DPP) Form 3 SALEM City(rc— Burnham Associates Applinnt Cos�oawalth Department of Of )laaaachusetts Defense D'nited States Notice of Intent of America Under the mssachusetts Wetlands Protection act, G.L. C. 131, 540 and Application for a Department of the Army Permit Part ,i: General information . 70A North Street, Salem, Massachusetts 1. Location: street Address Lot Humber Map 026, Parcel 423 (assessor's map) 2. Project: Type Description The appheant vmvoses to construct sheet pile bulkhead replacing the existing deteriorating wood & granite rubble wall (180'+/-) to prevent collapse into the navigable waterways of the North River . Plans labeled .--:Exhibit B. *-'Essex 3. Registry: CountyCurrent Book Pace ..g. ... , certificate'(if yRegistered'LanclII 'a. 4. Applicant >,.._... sseeiates• Tel. (588) :745-i 88 Address - 26 Dearborn Street, Salem, MA 01970 5. Property Amsame as aboveer Tel. Address same as above 6. Representative Wm. H. Kelley Tel. (617) 639-4454 Address TttrkPr'c Wharf. arblehcad, ASA Q1945 7. a. Have the conservation commission and the Department's Regional office each been sent, by certified mail or hand deliver, 2 copies of completed Notice. of Intent, with supporting plans and documents? Yes ❑ No ❑ b. Sas the fee been submitted? - Yes ❑ No 13 C. Total Filing Fee,submitted d. City/Town -share of Filing Fee State Share of Filing Fee .. (sen- co City/Tam) ' '-"—_ - _ _.. .- _ - ._ . .. _ . � (% of fee tnueess-af $25, sent to OEp) e. is brief statement attached indicating how the applicant calculated the fee? ❑ Yes ❑ No - 3-1 Effective 11/20/92 RECErTED 8 Lee Street JAN 0 8 TMO Salem, MA 01970 Salem Pl,anm ;w ', r 't, 6 Januarys 1998 Mr. Fred Harney, Chairman Conservation Commission City of Salem One Salem Green Salem, MA 01970 Re: Burnham Associates, Inc. - 72 North Street, Proposed Improvements Dear Mr. Harney, This letter is submitted in support of the above named petitioner. The petitioner' s proposal to construct a sheetpile bulkhead at this location to prevent collapse of existing seawalls into the navigable waters of the North River would serve as the highest and best use in support of this marine contractor' s activities. and floating plant. The firm has been recently involved in two local projects providing broad public benefit. These have been the removal of submarine piling structures which supported the former Essex Bridge spanning the entrance to the Danvers River and a seawall rebuilding project for the U. S. Department of the Interior at the water- side end of Kosciusko Street. More direct and specific benefits will accrue to the City of Salem in terms of municipal tax revenues and provision of employment opportunities to skilled tradesmen. Your acceptance of my expressions for the record is appreciated. Sincerely, Peter T. Victory "`.AVON Cp�� C"mI vafion (a0171.1'ri1 ion Salam. Massachusetts 01970 ASSnCN�y City of Salem Conservation Commission Will hold a public hearing for a Notice of Intent under the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40, at the request of Burnham Associates, 26 Dearborn Street, Salem, MA. The purpose of the hearing is to discuss the effects of proposed work to construct sheetpile bulkhead at 72 North Street replacing the existing deteriorating wood & granite rubble wall (180' +/-) to prevent collapse into the navigable waterways of the North River. This hearing will be held on Thursday,January 8, 1998 at 7:00 p.m. in the second floor conference room at One Salem Green. Fred Harney Chairman December 30, 1997 Please send bill to: Burnham Associates 26 Dearborn Street Salem, MA 01970 \ON COIF Salem. Massachusetts 01970 Fl�5`C��S To: Bill Kelley MEMORANDUM From: Stephen DibblY�) CC: Kevin Daly �66°° Subject: NOI Application 70A North Street Date: December 9, 1997 Thank you for your memo allowing the above referenced project to be heard on January 8, 1998. The legal address for this property is recorded as #70A North Street not #72. Please make the adjustment on your records and all future correspondence. Also, please note in the NOI application that your abutters list is incomplete. The Commonwealth of Massachusetts and the owners of the HMA car care located across the channel need to also be notified. I have attached a certified abutters list for the project. Please take the necessary steps to notify all parties listed and forward updated confirmation of affidavit of service to this office. Seasons greetings. Attachment concom\misc\northMa 310 CHR 10.99 DPI Me No. (ro be pr-WA by DPI) •ora 3 aryfrw .5,A L CA4 /' / Appllam Burnham /1.SSbCIQTes Coaesonvealth Department of of Massachusetts Defense United states Notice of Intent of asertea Under the Massachusetts Wetlands Protection Act, G.L. c. 131, $40 and Application for a Department of the Army Permit Part I: General info raa tion . 1. Locations street Addresa �'Jt'��!]�9'SSAC'1{LlSET15 Lot Number 40a 41�7_3 2. Project: Type Description f . Theto hu/Kh,41z& rdl�r�i�n4 P exisfi'nn [�r�fo��/�rn nn �1QQd rohNe will / dlG lP ir�P_Fu/�vS af )P_�� PY. tX Al�Jns �/Ii7E��P/J 3. Registry: CountyQ55&Y Cu_rent Book 136;7 6 c Page c27e-) Certificate )if RegisteredLand) 1 . Applicant Burnham ksoc/r7LeS Address_Z .QearhM .9-rpto ,5ak-ln,_A414 0/470 5. Property Owner 5alur AS L/E Tel. Address 6. Representative !/Il"llia"" 1'lell t// C1L/J Te1�L9 �31L 411 Addres, / ucuelY'S WA 0.1 1� A61rhle-, Ae" . A" / 2yf- 7. a. Have the Conservation Commission and the Department's Regional office each been sent, by certified mail or hand deliver, 2 copies of completed Notice of Intent, with supporting plans and documents? Yes No ❑ b. Has the fee been submitted? yes 19 No ❑ C. Total riling Fee Submitted p d. City/Town share of Filing Festate share of riling Fee (sent to City/sown) (% of fee in excess of f2S, sent to Der) e. Is a brief statement attached indicating how the applicant calculated the . fee? Yes ❑ No 3-1 Effective 11/20/92 8. Have all obtainable pormiti, variances and apprn,vala required by local by-law been obtained? Yes ❑ No ❑ Obtained Applied tors Not Applied Tor: Building permit D.E.P. License trans. 9. Is any portion of the site subject to a wetlands ggstricn order pursuant to C.L. c. 131, S40A or C.L. C. 130, 51057 Yes LJ No? 10. List all plans and supporting documents submitted with this Notice of intent. - Identifying Number/Letter Title, Date Exhibit A Locus Plan 1985 Exhibit B Plan accompanying petition of Burnham Associates showing e - Titled: "PLAN ACCOMPANYING PETITION OF BURNHAM L ON THE NORTH RIVER AT 72 NORTH ST., SALEM, MA 01970". Wers, 29 Commercial St., Marblehead MA 10945 in two sheets. Exhibit C Fee schedule 11. check those resource areas within which work is proposed: (a) kL Huffer Zone (b) Inland: ❑ Bank* Land subject to Flooding ❑ Bordering vegetated wetland* ❑ Bordering ❑ '4Land Under Nater Body i waterway* ❑ Isolated (c) Coastal: ❑ Land Under the ocean* ❑ Designated Port Area* ❑ Coastal Beach* ❑ Coastal Dune ❑ Barrier Beach* ❑ Coastal Bank . ❑ Rocky Intertidal shore* ❑ salt Marsh* ❑ Land under salt Pond* ❑ Land Containing shellfish* ❑ Fish Run* *Likely to involve U.S. Army corps of. Engineers concurrent jurisdiction. see General Instructions for Completing Notice of Intent. 3-Z 12. is the project within estimated habitat which is indicated on the most recent Estimated Habitat Hap of State-Listed Aare wetlands wildlife (if any) published by the Natural Heritage and Endangered species Program? YES [ ] NO ( j Date printed on the Estimated Habitat Hap NO HAP AVAILABLE (WI (if any) 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 otherwise 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 [ J NO If yes please attach evidence of timely mailing or other delivery to the Natural Heritage and Endangered species Program. Part II: Hite Description Indicate which of the following information has been provided (on a plan, in narrative description or -calculations) to clearly, completely and accurately describe existing site conditions. Identifying Number/Lettar (of plan, narrative or calculations) Natural Features soils Vegetation LL_ — Topography open water bodies(including ponds and lakes) Flowing water bodies(including streams and rivers) Public and private surface water and ground water supplies on or within 100 feet of site maximum annual ground water elevations with dates and location of test Boundaries of resource areas checked under Part 1, item 11 y above Other Han-made Features: Structures (such as buildings, piers, towers and headwalls) Drainage and flood control facilities at the site and immediately off the site, including culverts and open channels (with inverts), dams and dikes subsurface sewage disposal systems Underground utilities 3-3 Roadways and parking areas �- Property bouncarier. 9A7a•w]nto and rights-of-any other Part ills work Description Indicate which of the following information has been provided (on a plan, in narrative description or calculations) to clearly, completely and accurately describe work proposed within each of the resource areas checked in Part I, item 11 above. Identifying Number/Letter (of plan, narrative or calculations) 13 Planview and 590H Section of: Stzvctures(such as buildings, piers, towers and headwalls) Drainage and flood control facilities, including culverts and open channels(vith inverts) , dams and dikes subsurface-sewage disposal systems t underground utilities Filling, dredging and excavating, indicating volume and composition of material Compensatory Storag a areas, where required in accordance with Part III, Section 10.57(4) of the regulations. wildlife habitat restoration or repiicaticn areas other Point source Discharae Description of characteristics of discharge from point source (both closed and open channel) , when point of discharge falls within resource area checked under Part I, item 11 above, as supported by standard engineering calculations, data and plans, including but not limited to the followings e 1. Delineation of the drainage area contributing to the point of discharge; 2. Pre-and post-development peak run-off from the drainage area, at the point of discharge, for at taut the 10-year and 100-year frequency store; 3. Pre- and post-development rate of infiltration contributing to the-resource ares checked trder Part 1, Item 11 above; 4. Estimated water duality characteristics of pre- and post-development run-off at the point of discharge. 3-4 ` part IV: Mitfsetinp Measures - i. Clea ;v, w,o!ata!y r'd arcura'ely descrntie, with reference to supporting plans and calculations where necessary: (a) All adasurea and designs proposed to meet the performance standards set forth order each resource area specified In pert 11 or Part III of the regulations; or (b) Why the presuiptfo s set forth oder each resource area specified in Part 11 or Fort III of the regulations do rot apply. t ❑ Coastal Resource Asea Typet. Identifying number or ❑ Inland letter of support documents ❑ Coastal Resource Area Type: Identifying number or ❑ Inland letter of support documents 3-5 L 0 coastal Resource Area Types 'Sentifyiny number or 0 Inland letter of support documents 2. Clearly, completely and accurately describe, with reference to supporting plans and calculative where necessary: (a) alt measures and designs to regulate work within the Buffer Zone so as to ensure that said work does not alter an area specified in Part I, Section 10.02(1)(%) of these regulations; or (b) If work in the Buffer Zone will alter such an area, all measures and designs proposed to meet •he perfonmre standards astu-.:Ishao fcr tt: adlactn:r resource area, specified in Port 11 u- Part III of these regulation%. ❑ coastal Resource Area Type Bordered identifying number or �( Inland By 100-Feet Discretionary Zonet letter of support_ documents BTJF�F.R ZONE All precautions to prevent environmental impact will be used. Hay bales,:dumpsters and silt barriers will be utilized where appropriate. Exhibit B l-6 Part vt Additional Information for a Department of the Army Permit 1. COE application No. (to be provided by COE) Salem Harbor, North River 2. (Name of waterway) 3. Names and addresses of property owners adjoining your propertyt City of Salem, One Salem Green, Salem, MA 01970 Masachusetts Bay Transit Authority, 10 Park Plaza, Boston, MA 02216 4. Document other project alternatives (i.e., other locations and/or construction methods,,, particularly those that would eliminate the discharge of dredged or fill material into waters or wetlands) . 5. 8y• x lie drawings in planview and cross-section, showing the resource area and the proposed •activity within the resource area. Drawings must be to scale and should be clear enough for photocopying. Certification is required from the Division of Nater pollution control before the Federal permit can be issued. certification may be obtained by contacting the Division of water Pollution control, 1 winter street, Boston, Massachusetts 02106. Where the activity will take place within the area under the Massachusetts approved Coastal Zone Management Program, the applicant certifies that his proposed activity complies with and will be conducted in a manner that is . onaistent with the approved program. Informaation provided will be used in evaluating the application for a permit and is made a matter of public record through issuance of a public notice. Disclosure of this information is voluntary; however, if necessary information is not provided, the application cannot be processed nor can a permit be issued. I hereby certify under the pains and penalties of perjury that the foregoing Notice of Intent and accompanying plans, documents and supporting data are true and complete, to the best of my knowledge. Signature of Applip Date a � Signature of App can Representative Data FORM NException to ENG Fors 4343 approved by NOUSACE, 6 May 1982- RED 100 (TEST) 1 IAT f12 mThis document contains a joint Department of the Army and State of _ Massachusetts application for a permit to obtain permission to perform activities in United States waters. The Office of Management and eudget(ame) has approved those questions required by the US Army Corps of Engineers. OMs Murber 0702.0036 and expiration date of 30 September 19x3 applies-. This statement Wit be set in 6 point type. 3-7 I _ �r ggm— IMMSWIT v AD Niel X70 _,�' � F>e ,� i I��i�� !'`�$�.�Y ►.3'�� .,.,_. ►�� as VIM go 0150 41,4 v Or W- ISM IEMLI IS IM PER I WAN •, ��\\��4�� `�'. �� - ® '� ®• fid.- I_!%�f� �• ��l+jP r`mss z� / i - M ��.Z i ®� •\� �� Full YAW 9..9� DintIN .. .,. , I�11 � III`tfi -ab wm i �� Ma vpw r NOTE: HISTORIC S MEAN HIGH A'q WATERS ARE FROM FIELD �sr OBSERVATION AND INTERPOLATION OF i9 � EXISTING CONDITIONS. Fa LAND OF 2 2 COMM. OF = <n oath NORTH RIVER MA55. �10 = Q �o� LOCUS m r� TOP OF SLOPE RUBBLE GR 47.52 ANITE BLOCK WALL LOCUS MAP 38` `pp ASSESSORS PARCEL i (DEF 0 / NUMBER ) MAP 26 ❑ � . TOP OF-SLOPE Q a ` N RUBBLE- REMAINS Z BROKEN GRANITE Olk . . . I Q, B S CONCRETE WALL yREMAINS OF 12" *- NORTH p Ati3 oy�L WOOD COLUMNS _ R l V E R 8E IzEtAo ED. D LAND OF r, BURNHAM O �RoPoSED FEND�2 $ r"s P� r PILES r (15)ai,w TOt y WON CENTEP. '(o pt4l�j v a Opp \lp� ?ROPOSED GRANITE BLOCK SNEET P/L0 RIP- RAP WALL WALL Ln PLAN AREA c NOTE: TH15 PLAN WAS NOT 7,4.00" 5.F. MADE BY AN INSTRU- rn MENT SURVEY AND MNWtHAw CANNOT BE USED TO rn 4p• SZ DETERMINE EXACT ►� 19.48' PROPERTY LINES. a � LAND 0- 'Y MASS. BAY TRANSIT i AUTHORITY 30' 15' 0 30' gr t`'r SCALE 1=90' { o7- 31 � 2 PLAN ACCOMPANYING PETITION OF SHEET OF BURNHAM ASSOCIATES INC. NOTICE of INTENT FOR SEAWALL , RIP RAP AICD FILL 72 NORTH STREET ON NORTH RIVER Al 72 NORTH ST SALEM) MA Ola 7 0 SALEM,MASSACHUSETTS AUGUST 7 , 19 9 6 EXHIBIT "B" D.J. LYNCH ENGINEERS ( 5URVEYORS i)lg4ci w z � • i Y r J W IU Q 0. O * BROKEN 60 *ALL 0- a GRANITE BLOCK WALL RIP RAP WALL 70't pi MHW W v v u v ur r r d r v W EL.= B'$ ML EL:0' MUDDY BOTTOM EL REMAINS OF EL.= -L.0 12" t WOOD 31t Sit COLO Mt-15EX15T1NG (TO DE REMOVFD� SECTION A — A - • aD' Is' 4 �o, SCALE : t" = 30' F- � 3E AVERAGE �J 4,5't AV&. T,v = loot AV6. KDD J Ei �— MHW EL.= 8.8 ' Drl1D = FILL H"d .v+CEr MUD FLAT5 k./ALL M L W SHEET ELW 7 EL.-- 0' FILE TyPi(AL SWEET TcBEWALL 15LILT - 16LALL SEcTIOnI SECTI ON 5 - 5 (Nor TO SCALP) A NOTE : P-2 27 To 8e PRIVEN 00' MIA/. WITH TIE 20' 10 ' 0 Zp' BAC,KS EvExy 20, TO A VERTICALLY DR,VCAI SHEET. SCALE 1 " ° 20' CALCLLLATIONS OF APPROX. BxIST/u6c r2�xx 5 (IDO It 185 t L y. FILL VOLUME 1i z CALCULATIDAIS OF APPRoX. PgoPose D l70 FILL VOLUME 2 / +, 60 6W,4*2 6-044'SHEET Z OF 2 PLAN ACCOMPANYING PETITION OF BURNHAM ASSOCIATES , INC. NOTICE of INTENT FOR SEAWALL , RIP RAP AND FILL -72 NORTH STREET ON NORTH RIVER AT 12 NORTH ST., SALEM, MA 0 ( 9l O SALEM,MASSACHUSETTS AUGUST T, '(G96 EXHIBIT "B"D.J. LYNCH ENGINEERS ( SURVEYORS P.O. BOX 1303 , MARBLEHEAD , MA 0 1945 DALY & DALY ATTORNEYS AT LAW 32 CHURCH STREET SALEM, MASSACHUSETTS 01970 KEVIN T. DALY TELEPHONE (978) 745-0500 OF COUNSEL MARGARET DALY CRATEAU FAX (978) 745-6606 RICHARD E. DALY SLE. ( November 14, 2000 Salem Conservation Commission F One Salem Green ' Salem, MA 01970 4 ` RE: Burnham et al . ry . City of Salem, et al . Dear Commission Members: ' Please find enclosed `'a copy of the Statement Of Facts which was submitted by myself and. our Boston attorney in Mr. Burnham' s lawsuit against the City and the Conservation Commission. In reviewing this document, you will get a good understanding of the events which have taken place between Mr. Burnham and the City from 1988 through 1999. The events involve Mr. Burnham' s use of property at 14 Franklin Street and 70A North Street . The Conservation Commission was involved with both these properties at various times . The Statement Of Facts does not contain much information regarding Mr. Burnham' s present application to build a seawall at 70A North Street . Presently that matter is pending before an Administrative Law Judge of the Department of Environmental Protection. I shall keep you informed as things progress . Thank you for your attention. Very truly yours, KEVIN T. 4DAL KTD/tcd r ! UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS CRAIG C. BURNHAM, Individually and as trustee of the ) Franklin Street Realty Trust, and ) BURNHAM ASSOCIATES, INC., ) Plaintiffs ) CIVIL ACTION VS. ) NO. 98-CV 11997-REK ) CITY OF SALEM, MASSACHUSETTS, ) LEO E. TREMBLAY, individually ) and as Inspector of Buildings of ) the City of Salem, and ) NEIL J. HARRINGTON, individually ) and as Mayor of the City of Salem, ) Massachusetts, ) Defendants ) DEFENDANTS' LOCAL RULE 56.1 CONCISE STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED Pursuant to L.R. 56.1 of the Local Rules of the United States District Court for the District of Massachusetts, the Defendants submit the following concise statement of the material facts of record as to which Defendants contend there is no genuine issue to be tried: The 1988 City Council Orders: As early as 1988, the Salem City Council, which is made up of eleven members,passed several Orders regarding the inappropriate storage of a crane and miscellaneous gear near the North River Overpass. See City of Salem Council Orders dated Jul 14, and Aug. 10, 1988 (attached hereto as Exhibit A). Plaintiffs did not own the property at 70A North Street in Salem, which is on the North River, at that time, they purchased the property in 1995. See Craig C. Burnham Depo. pp. 431-434(attached hereto as Exhibit B). Plaintiff Craig Burnham,however, acknowledges that, Burnham Associates Inc. was mooring a barge and crane at 70A North Street f prior to owning the property or leasing the property for storage. See Craig C. Burnham Depo. pp. 439-441. In 1988 Neil Harrington was not the mayor of Salem and Leo Tremblay was not the Building Inspector. See Harrington Depo. dated 8/9/99, p.6 (attached hereto as Exhibit C); 'Tremblay Depo. dated 8/9/99, p.117-18) (attached hereto as Exhibit D). The Removal of Moorings In September 1992 the Salem Harbormaster, Andrew Syska notified Plaintiff that legal action would be taken because they were not in compliance with state law and city ordinances requiring an application to the Harbormaster to moor or anchor equipment in the North River. See Letter to Burnham Assoc. dated 9/2/92 (attached hereto as Exhibit E). On December 2, 1992, the harbor master ordered the removal of the mooring that had no identification number or fi mooring permit number issued by the Harbormaster. See Harbormaster incident report dated 12/2/92 (attached hereto as Exhibit E). The mooring removal notice cites the General laws under which action was taken. Id.; see also Mass. Gen. L. ch. 102 § 21;24;Port of Salem Harbor and Mooring Regulations (attached hereto as Exhibit E). Syska testified he believed Burnham's mooring was removed, and it was common practice to have to remove moorings which did not have a mooring permit, after which the contractor that removed the moorings held them until the owner paid a service charge and the mooring was replaced. See Syska depo. p.14, (attached hereto as Exhibit E). The Harbormaster also notified Burnham Associates that he was in violation of the terms of his mooring permit by mooring a barge to the mooring that was approved only for a 47 foot boat. See Letter to Burnham Assoc. dated 10/22/93 (attached hereto as Exhibit E). Craig Burnham acknowledged that he did not have a mooring permit for his barges, and that in December 1992, the mooring was replaced within ten days. See Craig 2 Burnham Depo. pp. 421-423. Harbormaster Syska testified that he had sole discretion whether to initiate a criminal complaint, and he took this action on his own and was not ordered to do so by Harrington. See Syska depo., p.12, 16-19; Harrington depo., p.19 The 1992 Criminal Complaint: On or about October 28, 1992, Attorney Kevin Daly, the City Solicitor, applied for a criminal complaint against Burnham, alleging violations of the City's zoning and harbor master ordinances at 70A North Street. See Attorney Daly Affidavit 13 (attached hereto as Exhibit F). Former Mayor Harrington denied having instructed the City Solicitor, or Police Officer Comeau, to file the Complaint. See Harrington Depo. p. 25-27. A clerk's hearing was held at the Salem District Court on November 18, 1992 and probable cause was found. See Attorney Daly Affidavit 14; Salem Dist. Ct. Crim Compl. No.9236-CR-4715 (attached hereto as Exhibit G). During pendency of the case, the City Solicitor fled a nolle prosequi as to Count "C," the zoning violations, because it was discovered that the City zoning map was incorrect as to the actual zoning of 70A North Street. See Attorney Daly Affidavit 16;Nolle Prosequi dated 9/30/93, Commonwealth v. Burnham Assoc. Inc.,Peabody Jury of Six No. 931586 SAL (attached hereto as Exhibit G). On October 26, 1993 District Court Judge Robert Cornetts dismissed the remaining counts as to the harbor master ordinance, ruling that the harbor master.ordinance in question was unconstitutionally vague to support a criminal conviction. See Order and Findings of Cometta, J, dated 10/26/93, Commonwealth v. Burnham Assoc. Inc., Peabody Jury Session, No. 9386-JC-1586 (attached hereto as Exhibit G); Attorney Daly Affidavit 17. In subsequent litigation,however, the Essex Superior Court ruled that Plaintiffs are obligated to obtain mooring permits from the Salem Harbormaster for all their vessels, including barges or floats secured by 3 spud pilings. See Decision of Bohn, J., dated Nov. 8, 1999, City of Salem, et al. v. Craig C. Burham, et al., Essex Superior Ct. No. 93-2587-B (attached hereto as Exhibit H). The March 1993 Waterways License Application: On or about March 1993, Burnham filed an application for a waterways amnesty license with the Massachusetts Department of Environmental Protection for property owned by Burnham at 14 Franklin Street in Salem which is also on the North River. See General Waterways Application of Franklin Street Realty Trust (attached hereto as Exhibit 1). The application requires that the local zoning enforcement officer sign off as to the zoning of the premises. Id. Because the City disputed the legal use of 14 Franklin Street, Leo Tremblay was advised by the City Solicitor not to sign the application zoning certificate. See Tremblay depo., p.126-130. The Land Court, Judge Sullivan, by order dated May 20, 1993, required Tremblay to sign the zoning certificate although allowing the city to still dispute the use of the premises. See Order of Sullivan J., dated May 20, 1993, Craig C. Burnham, et al. v_ City of Salem, et al., Essex Land Court Misc. No. 192580 (attached hereto as Exhibit J). Pursuant to M.G.L.c. 40, §8C, the City has established a Conservation Commission which is an autonomous body separate from city government empowered pursuant to M.G.L.c.131, §40 to monitor and regulate activities over any and all wetlands within the City. In October 1993, the Commission filed suit, and later amended its complaint, against Burnham in Essex Superior Court alleging violations of the Wetlands Protection Act and seeking declaratory relief regarding its jurisdiction over 14 Franklin Street. See Amended Complaint, City of Salem, et al. v Craig C. Burham, et al., Essex Superior Ct. No. 93-2587-B (attached hereto as Exhibit K). Also at issue was Burnham's entitlement to the waterways amnesty license. See Id.; see also 4 Decision of Bohn, J., dated Nov. 8, 1999, City of Salem, et al. v. Craig C. Burharret al., Essex Superior Ct. No. 93-2587-B (attached hereto as Exhibit H). The Commission disputed the entitlement because of Burnham's refusal to address the concerns of the Commission. See Conservation Commission's Ans. Interrog. No. 17 (attached hereto as Exhibit L). On or about January 26, 1994, in his capacity as Mayor of Salem, Harrington wrote a letter to the Massachusetts D.E.P. opposing Burnham'a waterways amnesty license for 14 Franklin Street. See Harrington Letter to John Simpson, dated 1/26/94 (attached hereto as Exhibit M) This letter was written in response to a request for public comment from the D.E.P. See Harrington's Ans. Craig C. Burnham, Individually, Interrog. No. 13.(attached hereto as Exhibit N). Recently, on November 8, 1999, Judge Robert H. Bohn, Jr. rendered his Decision in the case, ruling in favor of the Commission on its request for declaratory relief as to the Commission's jurisdiction over 14 Franklin Street. See Decision of Bohn, J., dated Nov. 8, 1999, City of Salem et al. v. Craig C. Burham et al., Essex Superior Ct. No. 93-2587-B (attached hereto as Exhibit H) Judge Bohm ruled that Burnham is entitled to maintain and repair his existing seawall at 14 Franklin Street and ordered the Commission to withdraw its opposition to the waterways amnesty license sought by Burnham Id. Judge Bohn made no ruling as to the other alleged activities which the Commission was concerned with. Cf. Amended Complaint, City of Salem et al v Craig C. Burham. et al., Essex Superior Ct. No. 93-2587-B (attached hereto as Exhibit K). Further, Judge Bohm ruled that the harbor master ordinance in question was valid and he ordered Burnham to apply for mooring permits for his vessels within thirty days or fact the imposition of fines. See Decision of Bohm, J., dated Nov. 8, 1999, City of Salem et al. v. Craig C. Burham, et al., Essex Superior Ct. No. 93-2587-B. 5 The Building Permit for 14 Franklin Street: On or about April 8, 1993, Burnham applied for a building permit to erect an office building at 14 Franklin Street, however, Inspector Tremblay refused to issue the permit because he was aware of legal disputes between the City and Burnham Associates regarding the use of the property. See Tremblay depo., pp.16-26. Burnham subsequently filed suit in the Massachusetts Land Court, seeking a determination as to the valid use of 14 Franklin Street and to compel issuance of a building permit. Judge Kilborn decision ordered that Burnham be issued a building permit for contemplated the office building and he ruled that Burnham's marine contracting business is a valid prior non-conforming use to the extent carried on within the property sidelines, but not outside the sidelines. See Decision of Judge Kilborn, dated Nov. 7, 1994, Craig C Burnham et al. v.. City of Salem, et al.,Essex Land Court Misc. No. 192580 (attached hereto as Exhibit O). Judge Kilbom did not enjoin the City from pursuing criminal actions against Burnham and he did not award Burnham monetary damages. Id. The building eventually constructed at 14 Franklin Street, however, was not the same as the one subject to the November 14, 1994 ruling. See Decision of Kilborn, J., dated January 30, 1998, Craig C. Burnham et al. v,. Gary M. Barrett, et al., Essex Land Court Misc. No. 238654, at 714-5 (describing substantially larger building constructed, which building held to violate local zoning regulations) (attached hereto as Exhibit P). The 1993-94 Criminal Complaint On December 15, 1993, Inspector Tremblay applied for a criminal complaint against Burnham Associates Inc. for violations of the City Zoning Ordinance, after a hearing, probable cause was found and the complaint issued. See Crim Complaint Applic., dtd. 12/15/93, and 6 Crim Compl. No. 9436-CR-530 (attached hereto as Exhibit Q). The complaint alleged Craig Burnham d/b/a Burnham Associates Inc. conducted industrial activities,at 12 Franklin Street, against zoning regulations, after being notified by Zoning Enforcement Officer. Id. The Criminal complaint survived a Motion to Dismiss, Judge Anthony Sullivan fording the City had authority to bring such a criminal action. See Memo. of Decision and Order of Sullivan, J., dtd June 14, 1994, City v. Burnham Assoc. Inc., Salem Dist. Ct. No. 9436-CR-0530 (attached hereto as Exhibit Q). In November 1994, a Nolle Prosequi was filed by the Commonwealth See Nolle Prosequi, Commonwealth v. Craig Burnham, Salem Dist. Ct. No. 9436-CR-0530 (attached hereto as Exhibit Q) The Complaint for Contempt of Plaintiffs' Complaint states an incorrect On or about September 6, 1995 (paragraph 50 mp i date) the Attorney for the City filed a complaint for contempt in the Land Court alleging that Burnham was in violation of Judge Kilbom's Order by continually operating a marine contracting business outside the boundaries of 14 Franklin Street. See Compl. for Contempt, Land Court Misc. Case No. 192580 (attached hereto as Exhibit R). Judge Kilbom dismissed this complaint on procedural grounds, ruling that although Burnharn's operating outside his boundaries was previously held unlawful, Judge Kilbom had not ordered Burnham not to do so, therefor no contempt action existed. See Tremblay Depo. pp. 51-54;Attorney Daly Affidavit. The 1996 Criminal Complaints In 1996 additional criminal complaints were fled against Burnham for conducting his Industrial business "outside the boundaries of his property at 14 Franklin Street." See Tremblay depo. pp. 88-93; see also Crim. Compl. Applic. Dtd 2/2/96, and 4/17/96 (attached hereto as 7 Exhibit S). Pursuant to the Decision of Judge Kilbom, Burnham operating outside his boundaries was impermissible. See Decision of Judge Kilbom, dated Nov. 7, 1994, Craie C. Burnham, et al. v,. City of Salem, et al., Essex Land Court Misc. No. 192580 (attached hereto as Exhibit O). Craig Burnham did, in fact, store his equipment at various times over his boundaries onto 12 and 16 Franklin Street. See Craig Burnham depo. p.506 and pp.521-523. At the clerk's hearings held on these complaints, probable cause was found,however the complaints were not prosecuted to completion because Burnham represented that the violations would cease. See Tremblay depo. pp.72, 88, 90, 93. The filing of the criminal complaints were not caused by or at the direction of Mayor Harrington. See Tremblay depo., pp.77; 122. The Occuoancy Permit for 14 Franklin Street: Subsequent to the Decision of Judge Kilborn of November 7, 1994, Burnham obtained a permit to erect a building at 14 Franklin Street on November 14, 1995. Inspector Tremblay informed Burnham that additional plans were required to show that his building complied with the zoning ordinance. See Tremblay Affidavit dtd October 29, 1996 (attached hereto as Exhibit T). Additional verbal requests were made and a letter was sent to Burnham on April 2, 1996, Burnham failed to comply, so finally on June 14, 1996, Tremblay denied Burnham his occupancy permit. See Tremblay Affidavit dtd Dec. 29, 1997 (attached hereto as Exhibit M. Inspector Tremblay testified that the reasons for denying the occupancy permit were that Plaintiffs' failed to get the required "rough inspections" and "final inspections" for the building they constructed. See Tremblay Depo. pp.103-06. Indeed, the Plaintiffs Plumbing contractor testified that he informed Craig Burnham that the plumbing work did not receive final approval,however, Mr. Burnham had the concrete floor poured over the plumbing work despite this lack of approval. 8 See Keith Nadeau Depo. pp. 46-49 (attached hereto as Exhibit V). Remarkably, Craig Burnham identified Fryklund Construction Company as his general contractor for constructing the building, however, the president of that company testified that he was only a contractor for purposes of the building's steel erection and never authorized Craig Burnham to identify his company as the general contractor on the Building permit. Compare Craig Burnham Depo. pp. 23-27 with Donald Fryklund Depo. pp. 81-87(attached hereto as Exhibit W); Building Permit dated Nov. 14, 1995 (attached hereto as Exhibit W). Craig Burnham filed another suit in Land Court over the occupancy permit, and upon Burnham's motion for partial summary judgment, Judge Kilbom granted summary judgment in part for the City. See Decision of Kilbom, J., dated January 30, 1998, Craig C: Burnham, et al. v,. Gary M. Barrett, et al., Essex Land Court Misc. No. 238654 (attached hereto as Exhibit P). Judge Kilbom ruled that Burnham's building at 14 Franklin Street is "illegal" and he is not entitled to an occupancy permit. See Id. Judge Kilborn s decision stated, "the building violates zoning as the building is now used or established," and "that the use of part of the new building for industrial storage, the large one floor area on the river side of the building, is illegal." Id. The Water Hook-up to 14 Franklin Street In October of 1996 Burnham obtained a street opening permit from the City engineering department for the purpose of connecting his new building to the City water and sewer system See Street Opening Permit dated 10/15/96 (attached hereto as Exhibit X). On or about October 15, 1996 the street opening permit was revoked by the City engineer and Burnham has been unable to connect his building to City water. See Cease and Desist Work Order by City engineer Charles Quigley dated 10/15/96 (attached hereto as Exhibit X). Although Plaintiff contends that 9 the order to prohibit a water hook-up to 14 Franklin Street came from the Mayor's Office, Mayor Harrington expressly denied having made any such order and denied responsibility for a related unsigned hand-written note. See Harrington Depo. pp. 59-61. Even Plaintiffs excavation contractor, who was attempting to connect a water line to the city's water main for Plaintiffs, did not testify that Mayor Harrington admitted to him to having ordered to cease and desist the excavation. SeePP Richard Brennan Depo. . 46-50 (attached hereto as Exhibit Y). The City _ P Public Works employees they were instructed by a Public Works Supervisor Michael Collins to stop the work. See James Turcotte Depo. pp. 15-19;25 (attached hereto as Exhibit Z);James Bryson Depo. pp. 20-27 (attached hereto as Exhibit AA). On or about October 23, 1996 Burnham filed suit in Essex Superior Court against the City engineer and City seeking damages and injunctive relief compelling the City to allow water hookup to his building. See Craig C. Burnham, et al. v,. Charles Quigley, et al., Essex Superior Court No. 96-2188B (attached hereto as Exhibit BB). After a hearing on October 30, 1996, Burnham's motion for a temporary restraining order and preliminary injunction was denied. Reconsideration was also denied on November 26, 1996. See Denial of Mot. Reconsideration, Richard Welch,J. Margin Decision dtd 11/26/96, Craig C. Burnham et al. v,. Charles Ouigley, et al., Essex Superior Court No. 96-2188. (attached hereto as Exhibit CC). This suit has been consolidated with Land Court Case No. 238654 and remains pending. See Irwin, J. Order of Assignment dtd. 8/13/97 (attached hereto as Exhibit DD). The Electrical Supply to 14 Franklin Street: On or about April 18, 1997, the Massachusetts Electric company was called by the attorney for the city and requested to terminate electricity at 14 Franklin Street because of 10 building code violations. See Fabrizio Depo., p. 5-8 (attached hereto as Exhibit EE). Burnham, through his attorney, had previously been notified that the City intended to terminate the electricity into the building at 14 Franklin Street because Burnham was occupying the building without an occupancy permit See letter from Kevin T. Daly to Attorney Kaupilla of March 27, 1997)(attached hereto as Exhibit FF). Subsequently, Tremblay sent a letter to the City electrician to terminate electricity until a Certificate of Occupancy was issued. See Tremblay letter of March 31, 1997 (attached hereto as Exhibit FF); see also Tremblay Depo. pp. 108-110. The reason Inspector Tremblay requested the electricity be shut off was that the Building at 14 Franklin Street was being occupied without an occupancy permit. See Tremblay Depo. pp. 108- 109. Craig Burnham admits that he did not oppose termination of the electricity into the building at 14 Franklin Street, yet did not want the electricity shut-off to the trailers also at the property. See Burnham depo., p. 610-614. In April of 1997, Burnham filed suit against Massachusetts Electric Company an and has obtained a preliminary injunction preventing the electrical shutoff. See Interloc. Order on Prelim Inj. Dtd 5/5/97, Craig C. Burnham et al. v. Mass. Elec. Co., Essex Super. Ct. No. 97-747 (attached hereto as Exhibit GG). The City intervened in this case, which has been consolidated before Judge Kilborn along with other cases that remain pending. See Irwin, J. Order of Assignment dtd. 8/13/97 (attached hereto as Exhibit DD). The Waterways License Application for 70A North Street: In October of 1996, Burnham was served with a cease and desist order from the Conservation Commission relative to his activities at 70A North Street which Burnham had purchased in 1995. After receiving the cease and desist order, Burnham did not apply to the 11 Commission for an Order of Conditions or a Determination of Non-Applicability as defined in Mass. Gen. L. c.131, 940, instead filed for a waterways amnesty license with the Massachusetts D.E.P. for 70A North Street. See Notice of Intent under Mass. Wetlands Act (attached hereto as Exhibit HH). The Commission has intervened in the application process and opposes the issuance of this license to Burnham because he did not have a valid Order of Conditions for his activities at 70A North Street. See Atty. Daly Correspondence to James Sprague dtd 9/9/97 (attached hereto as Exhibit II). The 1997 Criminal Complaints The fifth and sixth complaints as alleged in Burnham's complaint were nolle prossed by the prosecutor in the case because the clerical staff in the Salem District Court had incorrectly typed the nature of the offenses charged, in that the complaints merely recited the language of the YP g mP Yi ordinances and did not contain the actual allegations. See Atty. Daly Affidavit. The Corrected applications for these complaints that were filed are the seventh and eighth complaints alleged in Burnham's complaint. Id. The ninth and tenth criminal complaints alleged by Burnham are not additional complaints, but are the complaints which were allowed after probable cause was found subsequent to a Clerk's Hearing on the seventh and eighth complaints. See Daly Affidavit; see also Crim Compl. No. 9736-CR-1265;Crim Compl- No. 9736-CR-2319 (attached hereto as Exhibit JJ). These complaints were brought after due notice from Tremblay was sent to Burnham. See Tremblay letter of December 19, 1996 (attached hereto as Exhibit KK). Police Captain Blake's Criminal Complaints: In January 1997 the Commission,by its attorney, requested that the Salem Police Department investigate wetlands violations at 70A North Street. See Captain Blake depo. pp. 9- 12 15 (attached hereto as Exhibit LL). Captain Harold Blake of the police department conducted an independent investigation into the alleged violations and then issued citations to Burnham for those violations. Id. Clerk magistrates hearings were then held, probable cause was found and the complaints issued. See Blake depo, pp.24-26;Criminal Compl. No.s 9736-CR-4002; and- 4003 (attached hereto as Exhibit MM) Captain Blake never discussed this matter with anyone from the mayor's office. See Blake depo.,p.32. The Paint Storage Permit Application: On more than one occasion, Burnham or his representatives have attempted to file applications pursuant to G.L.c.148, §13 with the City Clerk's office for the storage of inflammable materials on his property. See Burkinshaw Affidavit. (attached hereto as Exhibit NN). The City Clerk rejected these applications because they were not properly filled-out or completed. Id. Neither Harrington nor Tremblay had anything to do with the request that Plaintiff properly fill-out the application, or the rejection of the incomplete applications. Id. The Placement of Jersey Barriers in 1996 At his deposition, Craig Burnham described how there were jersey barriers place near his property at 70A North Street, which the Former Director of Public Services, Charles Quigley, now deceased, purportedly had acknowledged placing. See Craig Burnham Depo. pp. 535-538. Mr. Burnham testified that Mr. Quigley advised him the barriers were placed on orders from his chain of command, but never specifically mentioned Mayor Harrington or Administrative Aide David Shea. Id. at pp. 537-538. The barriers were removed shortly thereafter. Id. at pp. 541- 542. Upon review photographs, Mr. Burnham acknowledged that there were only three barriers placed, one of which was on Comrnonwealth of Massachusetts property. Id. at pp. 687-689. 13 Judge Bohn's Attempt to Encourage Settlement that included Relocating Plaintiffs Business: In April of 1996, after the trial of the Conservation Commission and City of Salem v. Burnham, Essex Superior Court No. 93-2597B, Judge Robert H. Bohn, Jr. attempted to broker a settlement between theg arties. See Craig Burnham Affidavit dated Oct. 23, 1996117 (attached p — hereto as Exhibit 00). The parties agreed to negotiate a possible settlement, whereby the City would assist Burnham in relocating his operation elsewhere, possibly to Gloucester. The City also began the process of applying for a state grant to purchase Bumham's waterfront property. This was part of the settlement negotiations being conducted with Judge Bohn and which generated the memorandum referred to in paragraph 108 of Burnham's complaint. See Letter of Kevin T. Daly of May 28, 1996 to Attorney Kaupilla and City Planning Department (attached hereto as Exhibit PP). Plaintiffs today continue to do business at the locations of 14 Franklin Street and 70A North Street. See Craig Burnham Depo. pp. 277-279. Plaintiffs tax returns for the years 1994 through 1998, that reflect corporate receipts varying from$812,000 to a high of$1,757,305 (1998) and corporate profits varying from$154,042 to a high of$412,992 (1997), while the Burnham's marital tax returns reflect his household income varying from$79,000 to a high of $166,902 (1995) with the most recent year of 1998 being $109,000. See Tax Returns(attached hereto as Exhibit SS). 14 The Defendants, By their Attorneys, PIERCE, DAVIS &PERRITANO, LLP J J Clo rtVSq4u 566522 Ten l Boston,Massachusetts 02110 (617) 350-0950 pyensrm•twowdr �M"do�,w�nt.a taxa�QW ��rlo0�prdlM�sM[ 15 1� Q.n JD^ ,� Overrass a t fz 1' �V�Z CONn,H.SS` �oK �'pCS �o� know wl at UO la) go t� (ecorc� stRk'9 �O�S o�e�r,b,n+0 Jry op v�'o�ai1��5 . �a- KS S-1r� `o` C�n'b 2'. '' Cc�nservaxlan Commission - Salem. Massachusetts 01970 Mess. Robert Ledoux, City 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 property,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, jj,-- ; Stephen Dibble Assistant Planner/Conservation Commission Agent I' i cc: Fred Hamey, Chairperson, Salem Conservation Commission Craig Wheeler,Cii Planner r sd,conmm70Anorlb �� 1 'S�Ji oy� ` � G � �V rv1�� 'O�cCi`S �� wa,.l� � �P �p_1CIJ �M,6'Jf2� , T I �� a��od� �� `, � �( y Y) I N T E R MEMO O F F I C E To: Atty. Kevin Daly From: Stephen Dibble, Assistant Planner/Conservation Administrator Subject: 70A North Street, DEP Denial Date: May 2, 1997 CC: Robert Ledoux, City Solicitor Craig Wheeler, City Planner LZ Fred Harney, Conservation Commission, Chairperson I have enclosed, as per your earlier request,the Department of Environmental Protection's decision for file#64-249 with regard to Mr. Craig Burnham's work at 70A North Street. The eleven page document received on this date, denied Mr. Burnham's request for a Superseding Order of Conditions. A variety of nonpermitted work,work that may and most likely is damaging to the resource area, coastal bank and the harbor, continues to be undertaken by Mr. Burnham and/or others on both the above referenced parcel at 70A North Street and the Franklin Street parcel. The Commission requests an update on both of Mr. Burnham's parcels where non permitted work is taking place: 70A North Street and Franklin Street. The Commission would like to know how it may assist you in ongoing litigation or take separate additional action on these two parcels to prevent additional violations of the Wetlands Protection Act, the Rivers Protection Act, our local Ordinance, and other regulations. If possible,please update and advise the Commission at its next meeting on May 8. s&wnwm�f rcd,o�o� L`. Axe a ✓., .R . " - - - � Y v..� k � � �� f A � � �'�"'_y"�y�' �.. y A� >��r��J r. Fy p r�Fi=� I'�r��'q''?Nlryn� Irfw-'7 y1 Y� �9� {S.u.ail"Ct'� � { �M{F � ��> Y �� NH�re "itf�� 11 i�4/mV rF 'r�+ '*t"t�r"Ri.x �t�,��F � �l 5 ml+ �� _.�.,c�r. f. P :.'R1,;�t.� f`/_':a�.--:..t3o-u'1" "ft '�P.i.....a "1_��I �. �.o `� _. = g COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE WILLIAM F. WELD ` "� "'°� TRUDY COXE Governor Secretary ARGEO PAUL CELLUCCI �q t� d DAVID B. STRUHS Lt.Governor MAY 0 C, 1997 Commiasioaer i _ p 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 beeD r 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 9 Woburn,Massachusetts 01801 0 FAX (617)932-7615 a Telephone (617) 932.7600 9 TDD M(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 plan, 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,-DIRECTIVE 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 and-Waterways Section Ralph Perkins Names A. Sprague, Section Chief CC : Conservation Commission, City Hall, Salem, MA 01971 310 CMR 10.99 Form 5 DSP Pile 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 ;,a 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 UPrevention of pollution Protection of wildlife habitat Total Filing Fee Submitted $280.00 State Share $127.50 City/Town Share $152 .50 (M fee in excess of $25) Total Refund Due $0 City/Town Portion $0 State Portion $0 N total) (Y, 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, 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 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 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: SEE 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: 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 meet of Enviro to P tection Signature On this 29th day of April 1997 before me personally appe r;Ed James A. Spravue 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 ' The applicant, the owner, any per n aggrieved 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 510A, 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 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 .> 21 BOARD OF ASSESSORS CITY -HALL-. PAGE:----- SALEM, MA 01970 DATE: 12/09/97 CERTIFIED ABUTTERS LIST j SUBJECT: _MAP: 26 _ LOT: 0423....._ _... PROPERTY ADDRESS: 70A NORTH STREET ASSESSED OWNER: BURNHAM ASSOCIATES INC MAP LOT SUFF PROPERTY ADDRESS ASSESSED OWNER MAILING ADDRESS 26 0423 70A NORTH STREET BURNHAM ASSOCIATES INC 26 DEARBORN STREET SALEM, MA 01970 26 0407 4 FRANKLIN STREET ANDREWS LOUIS M 72 NORTH STREET C/0 HMA SALEM, MA 01970 26 0643 70 NORTH STREET MASS BAY TRANS AUTHORITY 26 0999 70B NORTH STREET COMM OF MASS, MASS HIGHWAY MASS HIGHWAY C/O ERIC BOTTERMAN DISTRICT HIGHWAY ENGINEER 519 APPLETON STREET ARLINGTON, MA 02174 ---------- ...... .......... _ i - - PETER M. CARON CHIEF ASSESSOR