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0000 BLANEY STREET - BUILDING JACKET BLANEY STREET UPC 10330 %y Nn.1531_ .41T HASTINGS, HN Massachusetts Department of Environmental Protection Bureau of Resource Protection -Wetlands WPA Form 2 — Determination of Applicability Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. General Information Important When filling out From: forms on the Salem computer,use Conservation Commission only the tab key to move To: Applicant Property Owner(if different from applicant): your cursor- do not use the Gary Palardy return key. Name Name 0-411MaMa Street Mailing Address Mailing Address +' Beverly MA 01915 ® City/Town State Zip Code City/rows State Zip Code 1. Title and Date(or Revised Date if applicable)of Final Plans and Other Documents: Plan of Land in Salem, Me rale Date rale Date rale Date 2. Date Request Filed: B. Determination Pursuant to the authority of M.G.L. c. 131, §40,the Conservation Commission considered your Request for Determination of Applicability,with its supporting documentation, and made the following Determination. Project Description (if applicable): Addition to multi-family dwelling at 4 Blaney Street Project Location: 4 Blaney Street Salem Street Address City/Town Map 41 Lot 278 Assessors Map/Plat Number Parcel/Lot Number wpefom2.da•m.12115ao Pape 1 or 5 Massachusetts Department of Environmental Protection Bureau of Resource Protection -Wetlands WPA Form 2 — Determination of Applicability Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Determination (cont.) The following Determination(s) istare applicable to the proposed site and/or project relative to the Wetlands Protection Act and regulations: Positive Determination Note: No work within the jurisdiction of the Wetlands Protection Act may proceed until a final Order of Conditions(issued following submittal of a Notice of Intent or Abbreviated Notice of Intent) has been received from the issuing authority(i.e., Conservation Commission or the Department of Environmental Protection). ❑ 1. The area described on the referenced plan(s)is an area subject to protection under the Act. Removing,filling, dredging,or altering of the area requires the filing of a Notice of Intent. ❑ 2a.The boundary delineations of the following resource areas described on the referenced plan(s)are confirmed as accurate. Therefore,the resource area boundaries confirmed in this Determination are binding as to all decisions rendered pursuant to the Wetlands Protection Act and its regulations regarding such boundaries for as long as this Determination is valid. ❑ 2b. The boundaries of resource areas listed below are not confirmed by this Determination, regardless of whether such boundaries are contained on the plans attached to this Determination or to the Request for Determination. ❑ 3. The work described on referenced plan(s)and document(s) is within an area subject to protection under the Act and will remove, fill, dredge, or after that area. Therefore, said work requires the filing of a Notice of Intent. ❑ 4. The work described on referenced plan(s)and document(s) is within the Buffer Zone and will alter an Area subject to protection under the Act. Therefore, said work requires the filing of a Notice of Intent. ❑ 5. The area and/or work described on referenced plan(s) and document(s) is subject to review and approval by: Name of Munidpalfty Pursuant to the following municipal wetland ordinance or bylaw: Name Ordinance or Bylaw Citation wpa[0MQAw-mr.1211SW Page 2 of 5 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 2 — Determination of Applicability Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Determination (cont.) ❑ 6. The following area and/or work, if any, is subject to a municipal ordinance or bylaw but no subject to the Massachusetts Wetlands Protection Act: ❑ 7. If a Notice of Intent is filed for the work in the Riverfront Area described on referenced plan(s) and document(s),which includes all or part of the work described in the Request, the applicant must consider the following alternatives. (Refer to the wetland regulations at 10.58(4)c. for more information about the scope of altematives requirements): ❑ Altematives limited to the lot on which the project is located. ❑ Alternatives limited to the lot on which the project is located, the subdivided lots, and any adjacent lots formerly or presently owned by the same owner. ❑ Alternatives limited to the original parcel on which the project is located, the subdivided parcels, any adjacent parcels, and any other land which can reasonably be obtained within the municipality. ❑ Alternatives extend to any sites which can reasonably be obtained within the appropriate region of the state. Negative Determination Note: No further action under the Wetlands Protection Act is required by the applicant However, if the Department is requested to issue a Superseding Determination of Applicability,work may not proceed on this project unless the Department fails to act on such request within 35 days of the date the request is post-marked for certified mail or hand delivered to the Department. Work may then proceed at the owner's risk only upon notice to the Department and to the Conservation Commission. Requirements for requests for Superseding Determinations are listed at the end of this document. 1. The area described in the Request is not an area subject to protection under the Act or the Buffer Zone. ❑ 2. The work described in the Request is within an area subject to protection under the Act, but will not remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of Intent ❑ 3. The work described in the Request is within the Buffer Zone, as defined in the regulations, but will not alter an Area subject to protection under the Act. Therefore, said work does not require the filing of a Notice of Intent, subject to the following conditions(if any). ❑ 4. The work described in the Request is not within an Area subject to protection under the Act (including the Buffer Zone). Therefore, said work does not require the filing of a Notice of Intent, unless and until said work alters an Area subject to protection under the Act. wpefamiUm•w.17115= Page 3 of 5 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands / WPA Form 2 — Determination of Applicability Massachusetts Wetlands Protection Act M.G.L. c. 131 , §40 B. Determination (cont.) ❑ 5. The area described in the Request is subject to protection under the Act. Since the work described therein meets the requirements for the following exemption, as specified in the Act and the regulations, no Notice of Intent is required: Exempt Activity(site applicable statuatory/regulatory provisions) ❑ 6. The area and/or work described in the Request is not subject to review and approval by: Name of Municipality Pursuant to a municipal wetlands ordinance or bylaw. Name Ordinance or Bylaw Citation C. Authorization This Determination is issued to the applicant and delivered as follows: ❑ by hand delivery on 9 by certified mail, return receipt requested on Date Date This Determination is valid for three years from the date of issuance (except Determinations for Vegetation Management Plans which are valid for the duration of the Plan). This Determination does not relieve the applicant from complying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. This Determination must be signed by a majority of the Conservation Commission. A copy must be sent to the appropriate DEP Regional Office (see Attachment) and the property owner(if different from the applicant). Signatures t-eii✓aiy 9,Z006 Date wpaform8.doc rev.3/1/05 Page 4 of Massachusetts Department of Environmental Protection Bureau of Protection -Wetlands Resource 2 — WPA FormDetermination of Applicability Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 D. Appeals The applicant,owner, any person aggrieved by this Determination, any owner of land abutting the land upon which the proposed work is to be done, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate Department of Environmental Protection Regional Office(see Appendb(A)to issue a Superseding Determination of Applicability. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and Fee Transmittal Form(see Appendix E: Request for Departmental Action Fee Transmittal Form) as provided in 310 CMR 10.03(7)within ten business days from the date of issuance of this Determination. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant if he/she is not the appellant The request shall state clearly and concisety the objections to the Determination which is being appealed.To the extent that the Determination is based on a municipal ordinance or bylaw and not on the Massachusetts Wetlands Protection Act or regulations,the Department of Environmental Protection has no appellate jurisdiction. wpelam2.eoe•nn.12115= Pepe 5 of 5 LIMassachusetts Department of Environmental Protection Bureau of Resource Protection -Wetlands WPA Appendix A — DEP Regional Addresses Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Mail transmittal forms and DEP payments,payable to: Commonwealth of Massachusetts Department of Environmental Protection Box 4062 Boston,MA 02211 DEP Western Region Adams Cokaa, Hampden Mmme PM&%W Trnpaem 436 Dwight Street aConway Hancock Mmtepue Platfvb Wut Mad Cmmhpton Hadfield Mmaey, Richmond Woe Suite 402 Attest Darton Hawley Monty Raw Warwick Springfield,MA 01103 Artificial DearfbM Heed, Maem Russell Washington Phone:413-7641100 BBf Eeetharglm Hawser, Mand Washi gtor, Sandaled Wendell ffim Fax 413-7841149 BernE monsLongav � Holyoke New Marlborough Shaffleld WOSewr,m Blabfad Erveg HWegtrn New Salem Shamure weaspnow BrhseM Florida L9reeEadyh Nath Adera saae,bMy wet sbdarrWpe S,uadart Gill Lee fb,than," SWMrpm Wharety ChalerroN Gotsi Lam Northfield Su1h Hadley Nfi®ahen Chaehka Granby Lowered orange SoudMirk wilNemearg Center Grahvae Leyden Ors Sprbgseld waarrWawn Chase~ Grey Berrington Longmeadow Palmer Slockbridpe whMaa Chkopea Greenfield Ludbw Peon Sunderland Worthington Clarksburg Hadley Midtll~ Peru Tolland DEP central Region Action Chardon Hopkinson kamay Ralmro Uxbridge 627 Main Street A°"°'n^er" Clirmn Hwmrdton Mlmua Shirley Warner Worcester,MA 01608 emel D�� My Holliston Nathboragh watbwmo Phone:508-792-7650 Awn Ounsh a terms. Nomiaidpa S%Ahbn ge Wear aoymon Fax:506.792-7621 Ayer Eat Brocldeld Lebestw North Brookfield SPOICK Wet Broadfield Bene FiMhbLM Leominster Galilean sterling Westford TDD:508-767-2788 Bellingham Gardner Motor, Oxford Stow WO$Wk,tw Berlin GrYW, L,rnri0ug Patin saraidge winchendon 6wdtl Groton Marlborough Pepperell Sutton Worcester Bolton Harvard Maynard Pelertan Templeton Baibaagh H8"hVKt Medway PPolloston Townsend Boylaton Holder) Menta, Precision Tyrgsbaoug) aroYdeld Htops,dYs, Mixed RoyYton Upon DEP Southeast Region Abington maftwdsed p + Too 20 Riversde De nCUshrad ue � M Ra Lakeville,MA 02347 Amen Die GalnYd NewBedrt Michelle Wareham Die" Haym Newaedfad Raaeta WelMeo Fax:5 -947-6.2700 Barnstable Eastham Harlovar Ham AtlMbaagh Radder,d wet Bridgewater Fax:508-947-6557 BBerMeroy E ar area, Nowell SSaCiate weYrr,pey TOO:508.946-2795 BrewMar Edgamwr, Idnptcn Oak Bbdrs Seelak vwub m Bridpa~ Fabhevan Lekevills, Orleans Slam Wrardhon eroddm FYI Rarer Mmtreld Pomace sanereat YfmcWh Cover FYmod, Marini Plahvills stouya"I" Chethon Finaomeh MarahlbM Pyrmum Sauna cldlmark FreNtlh Maetpae plympton Tamton DEP Northeast Region Nn cheantad Hkghwn Merrlmae Gawy Wekefleld 205 Lowell Street Andover ChYaae Holbrook Method, Ramp, waglae Arlington Contents Wilmington,MA 01887 Ashland C d 1pps id Hieb, Reading weartoor, Phone:978661-7600 Bedard Dmears LHMerri Milan Raegat wwat Fax: 978-661-7615 Benue Dedem Levhgon Nehml ROM" wYMee, TOD:978661.7679 Bdaial o m LiowNeedham Sa iway WON Kowa" Boston Eau Lynn Newauy SaupM Ween, Boxford Everett Lynnfad Newh ypw Sharban Wetaood Braintree Frenkigen, MaMea Newton son lie WeymaM Broadire Georgetown Mardhe 4;y-Th&-- a Norfolk Seaham wilineM - Sumpter, Gbuetar Marblehead Nam M,dorer SUMOY ws,aeter .CarrEndpe Greelart Medlest North Reading SWengamd wmarop Cardin HaYbm Medrad Noreood Teteary wham Carlisle Haverhill Metals, Peabody TopYieM WpefmrdAoc•Appends A-rev.1 MV00 Page 1a t RONAN, SEGAL & HARRINGTON lava, Py ATTORNEYS AT LAW FIFTY-NINE FEDERAL STREET JAMES t RONAN(1971.1987) sALEM.MASSACHUSETTS 01970,3470 JACOB S.SEGAL MARY PIEMONTE HARRINGTON (9178)7444T.A GEORGE W.AMM,III FAX(978)746-7493 FIE NO. March 9, 2000 Commonwealth of Massachusetts Department of Environmental Protection P.O. Box 4062 Boston, MA 02211 RE: Chapter 91 Amended Written Determination Goldeneye Corporation (applicant) Waterways License Application No. W99-9152 Salem Harbor in Salem, MA (Blaney Street) Dear Sir/Madam: On behalf of Hawthorne Cove Marina, Inc. of 10 White Street, Salem Massachusetts and others listed on Exhibit A attached hereto (collectively referred to as the petitioners) as an aggrieved party, being abutters and residents who have intervened during the public comment period in accordance with 310 CMR 9.02 and 9.17, appealing the above captioned determination and specifically requesting an adjudicatory hearing. SPECIFIC OBJECTIONS TO WRITTEN DETERMINATIONS I PROJECT DESCRIPTION The project as described does not conform with the Salem Zoning Regulations as determined by the Salem Zoning Board of Appeals on November 30, 1999. (see decision of the Zoning Board of Appeals, attached as Exhibit 1). IV. DEPARTMENT'S SUMMARY D) Other Approvals The proposed project as determined by the Salem Zoning Board of Appeals is in violation of local zoning by-laws and therefore a chapter 91 license cannot be issued. A zoning certificate of compliance is required under MGL c. 91 sec. 18 before a chapter 91 license can be issued. Further, in accordance with 310 CMR 9.31(1) (c) "No license or permit shall be issued by the Department for any project.... Unless said project: (c) conforms to the applicable provisions of ... local zoning laws.... " (310 CMR 9.31(1)(C)). The Zoning Board of Appeals has determined that the proposed project does not conform with the Zoning By-laws. Therefore, a Chapter 91 license cannot be issued for the proposed project. At the time of the Amended Written Determination, the Certificate of Zoning Compliance issued on September 21, 1999 was rescinded by a unanimous decision of the Salem Zoning Board of Appeals on November 30, 1999. (Exhibit 1). Upon information and belief, the Department of Environmental Protection ("DEP") had notice of the rescission of the Zoning Compliance Certificate. However, even if DEP did not have notice of the rescission, the applicant had knowledge that the Certificate of Zoning Compliance that DEP was relying on, was rescinded and failed to so inform DEP. Further, in accordance with the Supreme Judicial Court, "A decision of the enforcing officer that there is not a [zoning] violation is in a sense, a decision 'in violation of the zoning laws, if the establishment complained of exists in violation of the law." Brady v. Board of Appeals of Westport, 348 Mass. 515, 522, 204 N.E.2d 513, 518 (1965). Additionally, in accordance with Brady, the fact that "the outer extremities of the piers may be outside the area subject to zoning regulation in no way enlarges the use which may be made out of private property..." Id at 524, 519. As a result the proposed project does not comply with local zoning regulations and therefore a chapter 91 license can not be issued. V. DEPARTMENT'S AMENDED DETERMINATION PURSUANT TO CHAPTER 91 The conditions listed in the Amended Determination do not address the concerns of the petitioners previously expressed during the public comment period. Further, the petitioners' concerns are concerns similar to that of the City of Salem. These concerns include but are not limited to: the impact on the mostly residential area and the traffic flow in and around historic Derby Street; the number of vessels and daily trips which said number would impact the flow of traffic; and gambling and/or gaming being conducted on vessels using the site. (See Exhibit 2, request for adjudicatory hearing from John Keenan, dated October 19, 1999). Petitioners' Proposed Conditions which would address these concerns are attached as "Exhibit 3". RELIEF SOUGHT THROUGH ADJUDICATORY HEARING The petitioners respectfully request that the Hearing Officer order the following: A final Amended Determination and a chapter 91 license can not be issued until a final determination is made that the proposed project complies with local Zoning regulations. Further, when and if a Final 2 Determination and a chapter 91 license is issued, that the concerns of the petitioners named herein shall be addressed by incorporating the attached proposed conditions thereto. Respectfully Submitted Hawthorne Cove Marina, Inc., et al. By their attorneys, RON GAL & .,A3IrRI GTON Date: March 2000 By, / eorge W. Atkins, III "BBO#023350 59 Federal Street Salem, MA 01970 (978) 744-0350 CERTIFICATE OF SERVICE I, George W. Atkins, III, hereby certify that a copy of the within Appeal/Request for an Adjudicatory Hearing and supporting Exhibits were served by certified mail, to: James Sprague, Section Chief, Department of Environmental Protection, Northeast Regional Office, 205A Lowell Street, Wilmington, MA 01557; Robert Blair, c/o Goldeneye Corp., 4 Blaney Street, Salem, MA 01970; Lois Bruinooge, DEP/Boston, 1 Winter Street, 6`h Floor, Boston, MA 02108; Gregory Carrafiello, DEP/Boston, 1 Winter Street, 6th Floor, Boston, MA 02108; Heidi Zisch, DEP-OGC/Boston, 1 Winter Street, 3rd Floor, Boston, MA 02108; Honorable Stanley J. Usovicz, Jr., Mayor of Salem, City Hall, 93 Washington Street. Salem, MA 01970; John D. Keenan, Assistant City Solicitor, 60 Washington Street, Salem, Massachusetts 01970; City Council, 93 Washington Street, Salem, MA 01970; 3 Salem Conservation Commission, 1 Salem Green, Salem, MA 01970; Brian Valiton, ACOE, Regulatory Division, 696 Virginia RD, Concord, MA 01742; Peter D. Colosi, c/o NOAA, One Backburn Drive, Gloucester, MA 01930; Walter B. Power, Salem Planner Board, 1 Salem Green, Salem, MA 01970; �lern Zoning Board, 1 Salem Green, Salem, MA 01970; William Whooley, Harbor Master, Winter Island, Salem, MA 01970; Peter Victory, 8 Lee Street, Salem, MA 01970, Kristine J. Cheetham, 50 Webb Street, Salem, MA 01970; Michael McLaughlin and Claudie Chuber, 3 White Street, Salem, MA 01970; David Bystrom, 42 Turner Street, Salem, MA 01970; Douglas Haley, 43 Turner Street, Salem, MA 01970; Richard Pabick, 35 Winter Island Road, Salem, MA 01970; Annie Harris, c/o Salem Port Development Corp. 6 Central Street, Salem, MA 01970; Maureen Keefe, 6 White Street, Salem, MA 01970; Deborah Luskey, 94 Derby Street, Salem, MA 01970; Priscilla Lord, 33 Carlton Street, Salem, MA 01970. Hand Delivery to: Joseph Correnti;attorney for the applicant, Serafini, Serafini, Darling & Correnti,-LLP, 63 Federal S , A 01970. George W. Atkins, III Dated: MarchV,12000 4 EXHIBIT A 1. Alice M. Jordan 97 Derby Street, Salem, Massachusetts 2. Delores Jordan 97 Derby Street, Salem, Massachusetts 3. Stephen F. Hultgren 6 White Street, #5, Salem, Massachusetts 4. George L. Smith 6 White Street, #5, Salem, Massachusetts 5. Heidi Milman 109 Derby Street, Salem, Massachusetts 6. Jessica Arena 6 White Street, #2, Salem, Massachusetts 7. John Arena 6 White Street, #2, Salem, Massachusetts 8. Debbie Adair 96 Derby Street, Salem, Massachusetts 9. Russell T. Vickers Hawthorne Cove Marina, Inc. 10 White Street, Salem, Massachusetts 10. Sandy Martin 6 White Street, #5, Salem, Massachusetts 11. Carol Naranjo 6 White Street, #5, Salem, Massachusetts m (1lifg of �$ttlrm, �4 E a5j35rlius e Poarb of �t enl �J DECISION ON THE PETITION OF HAWTHORNE COVE MARINA INC, et al, REQUESTING AN ADIMISTRATIVE RULING FOR THE PROPERTY LOCATED AT , BLANEY STREET I A hearing on this petition was held on November 17,1999 with the following Board Members present: Nina Cohen, Chariman, Richard Dionne, Stephen Harris, Stephen Buczko and Ronald Harrison. Notice of the hearing was sent to abutters and others and notices of the hearing were published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner are requesting an Administrative Ruling that the Board rescind the decision of the Salem Zoning Officer to issue a certificate of Zoning Compliance in connection with an application of a Waterways License for the structures located at 4 Blaney Street I. After hearing the evidence the Board of Appeal makes the following findings of fact: 1. Petitioners, represented by Attorney George W. Atkins III, Esq. are abutters and neighbors of the property at 4 Blaney Street in an Industrial Zone that is owned by Goldeneye Corp. 2. Petitioners sought relief under Section 9-3 (d) of the Salem Zoning Ordinance, requesting that the Board rescind the decision of Peter Strout, the Building Inspector, to issue a Certificate of Zoning Compliance, stating that the Goldeneye application and plans are not in violation of local zoning ordinances. Petitioners further seek to prohibit issuance of a Building Permit or Certificate of Occupancy for any building or use at the Blaney Street property (the "site") as described in the Goldeneye application and plans. 3. Goldeneye is represented by Joseph C. Correnti, Esq. in connection with its application to this Board and also its application to the Massachusetts Department of Environmental Protection ("DEP") for a Waterways License for the site. 4. Goldeneye initially applied on August 18, 1999 for a Special PermiWariance for marine related and water dependent uses for the site. At its initial presentation and at the subsequent site visit and subsequent meetings with the Board, Goldeneye described in general terms some of the intended uses for the site. These included a marina and pier, walkway, barge, gangways and terminal building, with parking for DECISION OF THE PETITION OF HAWTHORNE COVE MARINA REQUESTING AN ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 4 BLANEY STREET page two 200 + cars. Goldeneye also submitted a "Vicinity Map' and plan entitled " Parking Lot Layout Plan" prepared by Bourne Engineering of Franklin, Ma. 5. Goldeneye's proposed plan was deemed not to be in compliance with existing zoning regulations affecting the industrial district. The Board asked for further information regarding the types of businesses that might operate on the site, but were not provide any further information by Goldeneye. 6. On October 20, 1999, Goldeneye requested leave to withdraw the petition on Che - grounds that the Board lacked authority to regulate uses of structures beyond the mean low water level. 7. Goldeneye's request to withdraw the petition was denied, and the Zoning Board voted 5-0 to deny the requested relief. Therefore, based on the fact and on evidence presented, Nina Cohen made a motion and was seconded that the Zoning Board of Appeal voted unanimously, 5-0 to grant the petitioners request for an Administrative Ruling. Nina Cohen, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws, Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11. The Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. EXHIBIT 4 Z CITY OF SALEM - MASSACHUSETTS WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street 60 Washington Street Tei:978-741.3888 Salem, Massachusetts 01970 Tel:97ington Street 53 Fax:978-741-8110 Fax:978-740-0072 VIA FAX: 1-978-661-7615 & North Shore Courier (in hand) October 19, 1999 Commonwealth of Massachusetts Commonwealth of Massachusetts Department of Environmental Protection Dept. of Environmental Protection Northeast Regional Office P.O. Box 4062 James Sprague, Section Chief Boston, Massachusetts 02211 205a Lowell Street Wilmington, MA 01887 RE: Chapter 91 Written Determination (09/28/99) Goldeneye Corporation (applicant) Waterways License Application No. W99-9152 Salem Harbor in Salem, MA (Blaney Street) Dear Chief Sprague: I am writing on behalf of the Mayor Stanley J. Usovizc, Jr., and the City of Salem as an aggrieved party (310 C.M.R. 9.17(d)) appealing the above captioned determination and specifically requesting an adjudicatory hearing.' Specific Objections to Written Determinations II. PROJECT DESCRIPTION: Project as described in within determination DOES NOT conform with the temporary, (so called Phase I) existing structure approved by the Salem Conservation Commission on July 9, 1999 (DEP File No. 64-295). See attached Exhibit "A" Order of Conditions and Plan). The Conservation ' Jill Provencal from your office requested yesterday that we fax her a copy of our intent to appeal this decision. We did fax a notice yesterday. This filing with amendments and exhibits is being served today as a completed request and within the appeal period of twenty-one days of said decision. 310 CMR 1.01(3)(c). Notwithstanding same, the City of Salem does not waive any rights to contest proper notice of this decision from the DEP. Specifically, Mayor Stan Usovicz, although copied on your letter, did not receive a copy of the decision until yesterday when Jill Provencal faxed it to another intervenor, Russ Vickers. Page Two of Four October 19, 1999 Request for Hearing RE: Written Determination W99-9152 Commission approved only a temporary floating pier system held in place by no greater than six screw driven spud piles which shall be removed prior to December 1, 1999. The larger project approved in the written determination was withdrawn by the applicant. III. DETERMINATION OF WATER DEPENDENCY The City of Salem does not contest the determination of water dependency for this project. As presented to date and in accordance with the Salem Zoning Ordinance the parking lot and single building are accessory to the water dependent use. IV. DEPARTMENT'S SUMMARY C.) Public Notice and Hearing The development of the New Salem Wharf is the single most important public development project facing Salem today. A public hearing was held on March 24, 1999 at which time it was expressed that this was the beginning of the public process. No additional hearing was held notwithstanding the many concerns, questions and issues raised by the many parties present. Most glaring of the concerns was the potential impact on the mostly residential area surrounding this major project and its effect on traffic on the very congested, narrow and historic Derby Street, a one way street at that point. Mayor Usovicz specifically addressed this issue in his correspondence of March 8, 1999, seeking to be an intervenor as well. (See attached Exhibit "B'). This was the primary concern of the neighbors/residents expressed at the public meeting. Unquestionably, the traffic created by this project corresponds directly to the number and types of vessels arriving and departing this site on a daily basis. Again, Mayor Usovicz specifically requested that approval of this license be held until such time as the applicant provide traffic and parking impacts of the proposal. (Exhibit "B'). None was provided. The only response provided was an extremely vague and nondescript response from Bob Blair. Apparently, in letter of April 6, 1999, Mr. Blair explains, "Boston Ferry service with 4 daily round trips, a harbor excursion service which would run on an hourly basis, whale watch tours (2-3 per day), and regional ferry services with connections to Provincetown, Nantucket, Gloucester, Manchester and Marblehead. They would also make the facility available to visiting vessels such as sailing schooners, historic replica vessels, naval vessels, and cruise ship support." Page Three of Four October 19, 1999 Request for Hearing RE: Written Determination W99-9152 There is absolutely no Indication of how many daily trips there would be in total of these various services. There is absolutely no indication of how many people and how many motor vehicles (cars, buses, shuttles etc.) would be entering and exiting the site onto the one way historic Derby Street. There is no indication or verification that the number of parking spaces available (200) can accommodate the unknown number of vehicles for the various services. Another issue raised by many at the single public hearing was that of gambling and/or gaming being conducted from the site. Both members of the neighborhood and Mayor Usovicz have been steadfastly clear on the condition imposed that there be no gambling or gaming originating from this parcel. The written determination describes this project as an "interim step" to the redevelopment of Salem Harbor and new Salem Wharf. The permanent pier structure proposed is not an interim to that project rather a hindrance in that it will need to be removed in order for the new Salem Wharf to move forward. Most importantly, the City of Salem and the Commonwealth of Massachusetts Executive Office of Administration and Finance are presently engaged in discussions as to what extent of control of this very parcel of land is necessary for the state funding of the harbor revitalization. Permission to build this permanent pier may thwart that state funding.2 D.) Other Approvals. This project as described in the written determination WAS NOT approved by the Salem Conservation Commission. Moreover, Mayor Usovicz in his correspondence of April 6, 1999, again specifically requested that the Chapter 91 License not be issued until an Order of Conditions is issued by the Salem Conservation Commission. (Exhibit "B'). The Salem Conservation Commission approved only "Phase I" which included a temporary moored docking float system — much less extensive than that originally proposed. Thus, the determination is inconsistent with the Massachusetts Wetlands Protection Act (Mass. Gen. L. c. 131, § 40) Relief Sought through Adjudicatory Hearing The City of Salem hereby requests that above-mentioned concerns be reviewed by the hearing officer. Further, the City of Salem seeks that the matter be 2 In fact, the City of Salem and Goldeneye in their negotiations had begun discussions of a more flexible pier plan that could be more readily used and moved in conjunction with the redevelopment of the new Salem wharf. Page Four of Four October 19, 1999 Request for Hearing RE: Written Determination W99-9152 remanded for further public input and hearing to require the applicant to specifically address said issues. Specific changes to the written determination must incorporate the specific information provided by the applicant regarding traffic, number of vessels and gambling. Also, the written determination must be conditioned upon Salem Conservation Commission approval of the project as described. Additional special conditions must address: • Specific limit on daily number of vehicles allowed to enter and exit the facility; • Specific limit on daily number of vessels allowed to use the docking facility; • Absolute prohibition of any gambling/gaming originating from the site; • The license issued should expire one year from the date of the license with no options for an extension under the same license. Thank you for your attention to these matters. Do not hesitate to contact me with any questions. I hereby certify that the within appeal/request for an adjudicatory hearing has been delivered to the applicant through its attorney, Joseph Correnti. Very best regards, John D. Keenan, Assistant City Solicitor JDK/kjm CC. Stanley Usovicz, Jr., Mayor Michael Ruane, Salem State Representative Peter Paskowski, Salem Ward One Councilor William Lundregan, City Solicitor Patrick Reffett, City Planner Mark George, Salem Conservation Commission Nina Cohen, Salem Board of Appeals Joseph Correnti, Esq. $ EXHIBITSX" �$"T4-Y toe PROPOSED CONDITIONS 3 Re: 4 Blaney Street, Salem, MA (Premises) 1. All construction shall be in accordance with plans entitled prepared by dated 2. The Premises (meaning and intending to include land area and seaward structures associated with the land areas) shall be used solely for the purposes of conduct of the business of operating a ferry boat service; a harbor tour boat service (to include whale watches and special events); and a harbor water-taxi service (to include docking services for occasional visiting vessels). 3. The Premises shall not be used for the conduct of the business of hiring or dockinrl of vessels for purposes of passenger gambling. 4. The Premises shall not be used for the conduct of the business of bulk cargo tran'-port. 5. The Premises shall be used by a maximum of three (3) regularly scheduled oper,;'Cing vessels with the exception of occasional visiting vessels. Vessels shall have a capacity of no c ater than one hundred forty-nine (149) passengers, with the exception of one (1) vessel used in the anduct of ferry service. 6. No entertainment, including without limitation live music or amplified radio and re_orded music, shall be allowed on the Premises light unless any and all required licenses and permits are obtained from the City of Salem. 7. Entertainment provided on board vessels shall not commence on outbound ves: 3 until vessels reach Winter Island light and shall terminate on inbound vessels when vessels reach Wit iter Island. 8. Ferry service and harbor tour service shall consist of no greater than six (6) round trips per day. Departures shall be no earlier than 6:45 a.m. and the last inbound vessel shall dock at the Premises no later than 11:00 p.m. 9. No fueling of vessels shall be conducted at the Premises unless any and all Federal, State, and municipal licenses and permits are obtained. 10. The motor vehicle parking area shall be used as provided in a plan prepared in accordance with dimensional requirements contained in the Salem Zoning Ordinance and decisions of the Salem Zoning Board of Appeals and Salem Planning Board. 11. Security and traffic control supervision shall be provided one (1) hour prior to vessel departures and one (1) hour following vessel arrivals (excluding water tax service departures and arrivals) as the same may be required to provide for reasonable security and traffic control. 12. All structures to be constructed on the land area shall conform to the provisions of the Salem Zoning Ordinance and decisions of the Salem Zoning Board of Appeals and Salem Plannii ig Board.