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HomeMy WebLinkAbout310 North Bay analysis of ch. 703 Jan 17Shawn D. Martin, Trustee 310 North Bay Road, Osterville SE#-6058 Hearing date and purpose: Findings of Fact on January 17, 2023 Larry Morin’s response to be included in the record Review and analysis of Town of Barnstable ordinances:as they relate to the NOI for replacing a seasonal pier with a permanent pier Chapter 703, Private Docks and Piers (most recent version: February 20, 2018) Section 703-5Presumption of Adverse Effect; Burden of Proof; Cumulative ImpactA. altering orcausing a potentially adverse effectCommission shall presume that the proposed activity will have a significant or cumulative adverse effect upon the resource values as specified in TOB ordinance Ch. 237 [no reference to which subsection may apply].Presumptions are rebuttable and may be overcome only by a preponderance of evidence….. that the work does not have a significant or cumulative adverse effectThe Commission will consider the impact of both existing docks, and future docks…. In determining the cumulative effects.Cumulative impact of such docks and the related boat uses pattern on the values protected by the ordinances.C. [dealing with the concept of “Site Specific Basis”]… the Commision will consider any and all pier proposals on a site-specific basis, disposing ofeach according to its merit and to the degree that the preponderance of evidence shall showthat the statutory interests have been preserved and protected. Larry’s comments regarding the proposed findings when compared to the foregoing provisions under 703-5 A. and C.While the applicant’s burden of proof requires a preponderance of evidence to overcomethe “presumption”, based on the consultant’s presentation, the burden has shifted to theCommission to make and include clear recitation of facts from all sides of the issue thatthe change to a permanent pier WILL cause a “potentially adverse effect” on the shellfishhabitat.That unless there is evidence upon which the findings are recited that impacts as to anyother existing docks as well as other relevant conditions, then there is no basis to supportfindings of a “cumulative effect”. 703-4 Regulations The following subsections are either not applicable or are not in dispute regarding this pending NOI A.,B., D., E., F., G., I., J., K. L., N., P., Q. and R.Larry’s comments regarding the proposed findings when compared to the foregoing provisions under 703-4 C., H., M. and O., as are noted following each specific subsectionof 703-4. C. deals with “only NON CCA materials, which, from the NOI narrative, appears to not be at issue H. deals with floats, which makes specific reference and requirements that:...”the USE of floats”,… “combined with the size of all floats shall be consistent with the impactof the entire project”. And...”with a minimum depth of 12 inches of water measured at MLW…”From the representations of the consultant, the float will be the same as has been usedand installed with the seasonal pier, and there will be no further change of “use” in termsof kayaks and non-motorized vessels. M. deals with performance standards governing the length of docks, and depth requirementsto be met for motorized vessels and (resulting) draft requirements;and this specific requirement is to be determined as relating to “high value shellfish habitat”The facts clearly presented in the NOI narrative and confirmed by the consultant, coupledwith the limited factors noted above as constituting the performance standards, thereare no other requirements that are needed to overcome any presumption.Further, there are no differences in shellfish habitat or ratings or quantity; andthe scientific and environmental evidence produced offers no bearing or relevanceto the impact on the “high value shellfish habitat”.Further reference is made to 703-4M as discussed with reference to the Preamble O. deals with (ensuring that) private piers shall be constructed so as to not interfere with any long-standing public recreational use of the waterway.There has been no evidence presented that by replacing a seasonal pier with apermanent pier in exactly the same location will have any bearing or impact onany navigational issues including any long-standing public recreational use ofthe existing waterway. 703-3 Filing ProtocolsThe following subsections appear to be not “at issue” and/or, because this NOI is for the replacement of a previously approved pier, and for which this application avers that other than this new pier being a permanent rather than a seasonal pier, the location, features and conditions will be identical as to the pier approved in 2003.\Other than the following lettered subsections of 703-3, only the following appear to be relevant, or at least deserving of some consideration and discussion A. deals with Notice of Intent requirements as follows:any NEW PIER, whether fixed of floating, permanent or seasonal, (as well as) for anysubstantial alteration or extension of an existing pier or dock. D. The Notice of Intent shall include:Other than brief comments relating to the following subsections, it is believed andunderstood that compliance with any of the other subsections either are not requiredor are not in dispute, uncertainty or controversy.(1) brief comments, where appropriate, on each of the Guidelines:the only feature of this proposed new/replacement pier is that it will befrom a seasonal to a permanent pier, further discussion as noted below.(2) deals with length, draft and type of boats, horsepower and type of propulsion systemintended for docking or use at the pier. But this application, as with its predecessor, is and remains only for a kayakor other non-motorized vessel, for which depth limitations are not required.(6) deals primarily if not exclusively shellfish survey. Appropriate and suitable shellfishsurveys have been provided in compliance with applicable statutes and regulations.(7) deals with shellfish survey reports, for which the comments under (6) above applyand have been resubmitted or satisfied; at issue, is, or may be, whether or notthere are any specific features or conditions upon which any scientific opinionhas been submitted in support of any claim of adverse impact. [703-3 continued on following page] E. The project plans shall show:Other than brief comments relating to the following subsections, it is believed andunderstood that compliance with any of the other subsections either are not requiredor are not in dispute, uncertainty or controversy.Further, Larry’s comments regarding the proposed findings when compared to the foregoing provisions under 703-3 A., D. and E. are included within each section.(1) the materials to be used in this proposed permanent pier understandably differ fromthose used in the seasonal pier, and the method of construction, including pileinstallation, is also clearly described as being customary for one-time installationof permanent piers rather than twice annual procedures associated with seasonal piers.(2) not applicable to a permanent pier installation; however, it is apparent that thisregulation contemplates and considers applications for either a seasonal orpermanent pier, without noticeable differentiation or prohibition of one over the other,notwithstanding the content of 703-5B.(3) this section deals with soundings within 100 feet of the dock, etc., which for purposesof this new filing, reference is and has been made to the exact and precise locationsof this permanent pier to coincide with the 2002 plan that was approved, and for whicha Chapter 91 License was issued. 703-2 Definitions(there are no numbered or lettered subsections in this category)Other than the following Definitions under this Regulation, there appear to be no otherdefinitions included that apply directly or indirectly to any aspect or feature of thisfiling.DOCKS AND PIERSthis definition is focused on pier construction and location with respect tothe defined areas under 310CMR10…. Which have been identified in theNOI Narrative.The Resource Areas cited under “Project Description” in the NOI include the following:Land Under Ocean (310CMR10.25)Land Containing Shellfish (not included under 310CMR10 in the Regulation)Coastal Beach (310CMR10.27)Coastal Bank above the stone revetment (310CMR10.30) … not includedin the regulationLand Subject to Coastal Storm Flowage (not included under 310CMR10 in theregulation)DRAFT – in that the pre-existing pier as well as this new/replacement permanent pieris only for kayaks and non-motorized vessels, it appears that there is/are no issuesassociated to the “draft” of any vessel.SEASONAL USE – special feature and requirement is that the dock, ramp, float andall supporting materials are not to be “in place” in any wetland resource areaprior to April 1 of each year and are to be removed prior to November 1 of eachyear.While these requirements and conditions are customary for seasonal docks and piers,it is not clear whether or to what extent any features of a permanent dock and pieris/are subject to this definition other than the removal and storage of the ramp andfloat for which provision is stated to be stored in an 0ff-site location.SHELLFISH HABITAT -- there appears to be no differentiation regarding shellfishhabitat, whether for seasonal or permanent docks and piers. The various sedimenttypes and conditions, with reference to “site development programs” as well as mapsdeveloped by the Marine and Environmental Affairs Division, not only apply to bothtypes of piers but also are included within the Project Description. 703-1 PreambleA. Chapter 237 as adopted by the Town for purposes of acknowledging Wetlands Protection and incorporation under the General Ordinances for the Town, by including this reference in its totality, there is no clear distinction or delineation as to any specific or relevant subsection of Ch. 237 which applies to any of the specific provisions under Ch. 703.B. Reference is made in this subsection that “...the purpose … is to establish performance standards for private docks and piers. However, other than under 703-4M, there are no specific performance standards to support or validate this “purpose”.C. Under this provision, the only as well as clearly mentioned purposes for Ch. 703 and for the construction, use and maintenance of docks, piers and walkways is to identify and deal with “significant or cumulative adverse effects on wetland resource values” including but not limited to storm damage prevention, fin and shellfisheries, wildlife habitat.Further, this provision makes reference to and concern over piers having adverse effects on resource areas on the use of these areas for recreational purposes (emphasis added).D. The only reference to, or use of the word or concept of “turbulent” or “turbulence”, is as described in this section. What is most interesting, as it applies to the application at issue, is that the examples of means or causes of such “turbulence” are limited and clearly not applicable to the pre-existing use of the seasonal pier, and/or the likelihood that by converting such pier to a permanent installation, will or may have any further detrimental uses or consequences.The mentioned uses include: jet-boat drives, propeller dredging generated by boat use, the impact on light attenuation to protect and further the photosynthentic processes, the (presumably adverse) impact from suspended sediment settling on shellfish beds, just to mention a few of them.While the installation of pier pilings after April 1, and the mandated removal of pilings prior to November 1 of each season does in fact cause “turbulance”, there is no mention of turbulence either during the seasonal period, nor is there any evidence as to the measure or extent of adverse impact resulting at and under a permanent pier with year-round data.E. This section takes it one step further by raising or suggesting that the combination of “Construction of Piers” as well as “subsequent boat activity” as being causes for “resuspension of nutrient-laden sediment particles which may cause …. and result in a “bloom” of vegetation.Specifically in the last sentence, reference is made to “anoxic sediments and anoxic bottom conditions create adverse impacts on benthic resources”.Reference is also made to Section H. as it relates to “Cumulative Impacts on construction, maintenance and use of piers”. However, other than this very specific description of potential causes that might fit under “cumulative effects”, there appear to be no other examples or illustrations to create a list of activities which, if discovered or observed, may rise to the level of creating any sort or level amount of being “cumulative” 703-1 Preamble Sections that are relevant to this NOI are continued on the following page.F. is not applicable because it makes reference only to a pier construction crossing a marsh.I. this may be the only directly specific provision or description under this Preamble that approaches relevance or direct application to this pending filing.By providing discussion of “docks and piers” which and when “placed in land containing shellfish or shellfish habitat, (that such action may have an adverse impact (emphasis added) on “the resource area value of recreation” (emphasis added again). But, as applied to this application, no reference to or suggestion that from the twenty-plus year placement of a seasonal pier, and/or the proposed replacement with a permanent pier, will somehow create an adverse impact upon the resource area value of recreation.