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HomeMy WebLinkAboutSE3-3237 D94N r 5 � r �... _., ,..�_....� ._.. •'r`''�, f'1.- .� ^....ru,r n,.�;.� ,,.....F.r,. _ "', - ..- �"sr..,r r4 __,.-.�r�.�►.y►v��. .., -+-. .i..__ _•-e"'"'"�,�'"�,,,-.. ., ,,.._...►�—,.�..•-, ....o--^-------- '4f " 4...�•— L7 , ��" ! `"- - � � v s F -7 # " vsf a F �`� — — a y _ — — YjT 'tft I I 1 L - _ "_ " > p S . - - - R;. OF a �' ' , , - �.i�,. w. - - - a x : „. $ ". �' ti w ..,-.: ., _ .. tl S _ ,.. ,. r ,ro.. F. ,.n all; I - � - _,�-----�w I _� � - , - - - - ,- , � �_ o__ _—, — ,.- -:&-_� . ­­ - -: k-L"'," ty - w. 1k e - F` - _ -� K - - Ko ° _ - —. -_ - _ .. w _ _ s Y ASM„ c t - `' _ i { K y 4 a P s is by '� �'r F * - _ 9 L wo 1 - ➢ - A :S - _ O Y IF t _> % _- _ zSjj - _ I pv� a 7;8 � �_ _ to 0 - _ q - �� _� _ if! - �.- _ E A 4 5 P N K :: n ` Y 4 z " &' ,-.,, r " 4 ^ { a r a -.,_ d w §. a �79 is � 0. M t v .,u a _ j> s 4�a- ,&A Qy? I M , � - ; ,�,�� - - - A { ___ R "; t,'' '�, ,,,L,; - , . _, , " "- ': . E I3 �.. _ S _ SF Y K •-� '-F { 7 a ,� a^ u' �, µ� _ _ '•4 e- ten'" x •-�+,x r s �,.,. '>r ,. a_,:a+ lK=.. :"v SrtXWssatw'G'NW+�. `..v:��ilrl:• - �• _.�s..:..:5sv i...� 4Y� r Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands - � �$ DEP File Number: WPA Form 88 — Certificate of Compliance , • SE3.3237 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 � Provided by DEP and Chapter 237 of the Code of the Town of Barnstable 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 Conservation Commission. To: Town of Barnstable Conservation Commission Please be advised that the Certificate of Compliance for the project at: 134 South Bay Road, Osterville, MA SE3-3237 Project Location DEP File Number Has been recorded at the Registry of Deeds of: Barnstable County Doc_e1s019,402 11-22-2005 8e03 for: BARNSTABLE LAND COURT REGISTRY Cz7 Property Owner W _o " and has been noted in the chain of title of the affected property on: o0 w � Date Book Page If recorded land, the instrument number which identifies this transaction is: Cd Wzrn W 00 >1 F a NOV 2 3 2005 x If registered land,the document number which identifies this transaction is: BARNSTABLE CONSERVATION Document Number d<4tf� Signature of—A cant' WPA Form 8B 7.S Page 3 of 3 Rev.02/00 Town of Bamstable Rev.02/08/05 Z 7S d r ¢r Massachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions SE3-3237 Provided by DEP rEDN1a�A Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Barnstable Ordinances Article XXVII D. Recording Information (cont.) Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. -------------------------------------------------------------------------------------------------------------------------- To: Barnstable Q Conservation Commission 2 820. Please be advised that the Order of Conditions for the Project at: 135 South BayRoad, Osterville SE3-3237 LAPR Project Location DEP File Number � ��-'"�- 0 Has been.recorded at-the Registry of Deeds.of: U County Book Page U z for: Ln LO CD WProperty Owner !LU F-t2ai and has been noted in the chain of title of the affected property in: wS Z=i } Book Page CC ZVLU of D C% _.� In accordance with the Order of Conditions issued on: m Date If recorded land,the instrument number identifying this transaction is: Instrument Number If registered land,the document number identifying this transaction is: Document Number Doc:'917,067 04-25-2003 11 :48 BARNSTABLE LAND CM1RT REGISTRY Sig ature o pplicant Wpaform5.doc•rev.12/17/02 Page 7 of 7 i RECEIVED DEC 1 7 2020 BARNSTABLE CONSERVATION Massachusetts Department of Environmental Protection Bureau of Resource Protection -Wetlands DEP File Number: WPA Form 8B — Certificate of Compliance SE 003-3237 ILI Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP A. Project Information 1. This Certificate of Compliance is issued to: JMS Holdings LLC, c/o A.M. Wilson Associates, Inc. Name . 20 Rascally Rabbit Road, Unit 3 Mailing Address Marstons Mills MA 02648 Cityrrown State Zip Code 2. This Certificate of Compliance is issued for work regulated by a final Order of Conditions issued to: Michael and Virginia Ohanian, Trustees Name December 4, 1998 SE 003-3237 Dated DEP File Number 3. The project site is located at: 134 South Bay Road Osterville Street Address City/Town 93 64 Assessors Map/Plat Number Parcel/Lot Number i the final Order of Conditions was recorded at the Registry of Deeds for.- Michael and Virginia Ohanian, Trustees Property Owner(if different) Barnstable County Book Page 224370 / Plan 9592-H (Sheet 1), Lot 6 Certificate 4. A site inspection was made in the presence of the applicant, or the applicant's agent, on: Not Applicable Date . Wpaform8-coc-registry revfeb 1 2010.doc Page 1 of 3 s Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPATorm 8B — Certificate of,Compliance • -3237 'M-as'sachiusetts Wetlands Protection Act M.G.L. c. 131, §40 P ovded by D P B. Certification Check all that apply: • �Ct'CAVr�=�l.•`C��,�t3.�,T2V;�f,f3 . . ❑ 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 released from this Order are: ® 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. ❑ 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 longer period). Condition Numbers: C. Authorization Issued by: a Southeast Regional Office � ' �a 2020 Massachusetts Department of Environmental Protection Date of Issuance Signature: Daniel F. Gilmore,�Chiof, Wetlands&Waterways Program, Bureau of Water Resources Wpaform&coc-registry revfeb 1 2010.doc Page 2 of 3 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 88 — Certificate of Compliance SE 003-3237 ILI 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 Department of Environmental Protection. To- - - - - - - - - - - - - - - --------------------------------------------------------- - - - - - - - - - - - - - - - - Southeast Regional Office Massachusetts Department of Environmental-Protection Please be advised that the Certificate of Compliance for the project at: 134 South Bay Road Osterville SE 003-3237 Project Location CITY/TOWN DEP File Number Has been recorded at the Registry of Deeds of: Barnstable County for: Michael and Virginia Ohanian, Trustees 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 DG/AP Wpaform&coc-registry revfeb 1 2010.doc Page 3 of 3 I BAXTER NYE ENGINEERING & SURVEYING Registered Professional Engineers and Land Surveyors 78 North Street,3`d Floor,Hyannis,MA 02601 Tel: (508)771-7502 Fax: (508)771-7622 March 13, 2006 APPROVED PLAN Conservation Commission : �� 200 Main Street (A Hyannis, MA 02601 1 RE: SE 3-3237, Ohanian Pier 135 South Bay Road, Osterville Members of the Commission; On behalf of my client, Virginia Ohanian, I am requesting a change in the time span the seasonal section of the pier is allowed to be deployed. Currently the pier is not allowed to be set until after May 1st and must be removed by November 30th. My client would like to be able to have the pier set after April lst. This would coincide with the April 1st date of the adjacent pier(Dacey; SE 3-4171). This would allow the marine contractor to put in and remove both piers at the same time. I can meet with the Commission to discuss this request at your convenience. O16 E7 781920�� o HEA RING APR 200600 N Very truly yours, DA TE 4r cc)is; 1z I St en A. Wilson,P.E. Baxter Nye Engineering & Surveying E C E U 2 n� MAR 14 2006 Ref:# 1995-075 L--—------ BARNSTABLE CONSERVATION O:\1995-075\Admin\letters\1995-075 CC Pier 3-13-06 Land Surveys 9 Site Design 9 Subdivisions 9 Septic Design • Wetland Filings • Planning .Gatewood, Rob From: Marcotti, Tom Sent: Saturday, February 25, 2006 5:15 PM To: 'Stephen Wilson' Cc: Gatewood, Rob Subject: RE: Ohanian Pier; 135 South Bay Road, Little Island; SE 3-3237 Hi Steve, Maybe the inconsistency with the authorizing agency' s allowance dates is a result of where the the piers are located. The Ohanian pier is situated in the West Bay Shellfish Relay Area (DMF/SC22 .21) , whereas, Dacey' s pier is located just outside of and west of the relay area. Regardless, I do not think that an April 1st deployment of the approved seasonal piers will result in any significant detriment to the shellfish resource at either of these sites. On review of the original N.O.I's, I commented to the Conservation Commission that any piers in this area of West Bay were not in the best interest of the Town's shellfishery. Let me know if you have any questions, Tom Marcotti -----Original Message----- From: Stephen Wilson [mailto:swilson@baxter-nye.com] .Sent: Wednesday, February 22, 2006 9:38 AM To: Marcotti, Tom Subject: Ohanian Pier; 135 South Bay Road, Little Island; SE 3-3237 II Hi Tom, The Order of Conditions for Ohanian has a restriction that the seasonal section of the pier cannot go in until after May 1st. The Order of Conditions for Dacey (45 Little Island Drive, right next door; SE 3-4171) allows the seasonal section to go in after April 1st. They both have to be out November 30th. I want to request a change that allows Ohanian to be put in after April 1st. Rob Gatewood recommended I get your input on this prior to making the request. Thanks, Steve My e-mail address is now: swilson@baxter-nye.com I 1 -\ Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands q. DEP Fide"umber: b f WPA Form 8B — Certificate of Compliance _ BAAN M _ sE3-3237 Massachusetts Wetlands Protection Act M.G.L. c. 131,. 4O '`b , 'A�O� • Provided by DEP and Chapter 237 of the Code of the Town of Barnstable A. Project Information Important: When filling out 1.. This Certificate of Compliance is issued to: forms on the Michael &Virginia Ohanian,Trustees computer, use Name only the tab key to move c/o Baxter, Nye & Holmgren, Inc. your cursor- Mailing Address do not use the Osterville MA 02655 return key. CitylTown State Zip Code 2. This Certificate of Compliance is issued for work regulated by a final Order of Conditions issued to: Michael &Virginia Ohanian, Trustees Name fBd°" JAN 30, 2003 SE3-3237 Dated DEP File Number 3. The project site is located at: 134 South Bay Road Osterville Street Address Village 093 064 Assessors Map Number Assessors Parcel Number the final Order of Condition was recorded at the Barnstable County Registry of Deeds for: Property Owner(if different) Barnstable County Book Page DOC: 917, 867 Certificate 4. A site inspection was made on: OCT 26, 2005 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: WPA Form 8B Page 1 of 3 Rev.02/00 Town of Bamstable Rev.02/08/05 Massachusetts Department of Environmental Protection - Bureau of Resource Protection - Wetlands DEP File Number: S 1 d I WPA Form 8B — Certificate of Compliance ' SE3-3237 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP and Chapter 237 of the Code of the Town of Barnstablefo, w B. Certification (cont.) ❑ 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. ® 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). Special Condition Numbers: see attached pages 4 and 5 C. Authorization Issued by: Town of Barnstable A Conservation Commission Date of Issuance This Certificate must be signed by a majority of the Conservation Commission and a c ent to the applicant and appropriate DEP Regional Office (See Appendi Signatures: I � On o Of Nov—As-. Day Month and Year before me personally appeared to me known to be the person described in and who executed the foregoing instrument and acknowiedged that he/she executed the same as his/her free act and deed. Notary Pubic My commission expires WPA Forth 8B Page 2 of 3 Rev.02/00 Town of Bamstable Rev.02108/05 I I Massachusetts Department of Environmental Protection Arm Bureau of Resource Protection - Wetlands '° . DEP File Number: WPA Form 8B — Certificate of Compliance SE3-3237 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP o�✓`ata ;m� and Chapter 237 of the Code of the Town of Barnstable 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 Conservation Commission. ---------------------------------------------------------------------------------------------------------------------------- To: Town of Barnstable Conservation Commission Please be advised that the Certificate of Compliance for the project at: 134 South Bay Road, Osterville, MA SE3-3237 Project Location DEP File Number Has been recorded at the Registry of Deeds of: Barnstable 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 WPA Form 88 Pabe 3 of 3 Rev.02100 Town of Bamstable Rev.02/08/05 i {, ;. Town of Barnstable r tHE,T Conservation Commission 200 Main Street i : sniuvsrnBt.� Hyannis Massachusetts 02601 _D ` 63 Office: 508-862-4093 FAX: 508-778-2412 Attachment to WPA Form 8B - Certificate of Compliance Massachusetts Wetlands Protection Act M.G.L. 131, 440 and Chapter 237 of the Code of the Town of Barnstable B. Certification Ongoing Conditions (continued from page 2) Special condition# 11: Herbicide, pesticide and fertilizer use is discouraged on lawns within Conservation Commission jurisdiction. If fertilizer is used, only slow-release,. low-nitrogen fertilizer shall be applied. Over-fertilizing shall be avoided. The pier may be maintained (without refiling) for a period not to exceed the term of the Chapter 91 Waterways license currently in.force. All maintenance and use shall conform with the Order of Conditions and approved plan. Form M (Checklist for Pier Maintenance) shall be completed and submitted to the Conservation office in advance of work. Special condition# 12: There shall be no disturbance of the existing salt marsh. Special condition# 13: No creosote-treated materials shall be used. No CCA-treated material shall be used for pier decking. Special condition# 15: Deck plank spacing shall be at least one-half inch. Special condition# 17: No dredging (including but not limited to effects of propeller wash)is permitted herein. Special condition# 18: The seasonal storage of floats and components shall be at a suitable upland site. They shall not be stored on banks, marshes or dunes. Issued To: Ohanian DEP File Number: SE3-3237 Page 4 I The following special conditions in italics shall govern boat use at the approved pier. These conditions shall continue over time. Note: For purposes of this Order of Conditions, the term "pier" shall refer not only to the linear pile-supported structure, but also to any of its components or appendages such as the float(s), ell,tee, ramp,outhaul piling, etc. Special condition#20: Boats shall only be berthed at the float. Special condition# 21: No boat shall be used or berthed at the approved pier such that at any time less than one foot of water resides between the bottom of the boat (or engine in drive position) and the substrate. Special condition#22: No jet propulsion boat shall be used or berthed at the pier unless specifically authorized by the Commission in the future.. Special condition# 23: Any desired pier lighting shall receive prior approval of the Conservation Commission or Division. Special condition # 24: Lead piling caps shall not be used. Special condition# 25: The seasonal portion of the pier shall be deployed May through October only. It shall be removed during the months of November through April. This condition shall continue over time. Special condition#26: Work on the pier shall ensue mid-tide rising to mid-tide falling or as otherwise necessary to prevent the grounding of the work barge on the substrate. I Issued To: Ohanian DEP File Number: SE3-3237 Page 5 t. Ohanian 134 South Bay Road, Osterville SE3-3237 - C a -•ram "_.�� ..a __ - k _ � ■ Nt G' r y o Fred Stepanis, Conservation Assistant 10/26/2005 Town of Barnstable Ohanian 134 South Bay Road, Osterville SE3-3237 F �"`,Cr..' ❑ `` .ate � ,� i :-r fmawr w Fred Stepanis, Conservation Assistant 10/26/2005 Town of Barnstable f Baxter Nye Engineering & Surveying D 812 Main Street, Osterville,Massachusetts 02655 1 13 September 30th, 2005 Conservation Commission - Town Hall D tS Il �n 200 Main Street Hyannis, Massachusetts 02601 SEP 3 0 � Re: SE 3-3237, Ohanian BARNS I—ABLE 135 South Bay Road, Osterville ��NS��vATipN Members of the Commission, On behalf of our client, Virginia Ohanian,we are requesting a Certificate of Compliance for the above noted project. The dock has been constructed in accordance with the approved plan (1/14/2005). Enclosed please find Form C and a check for the Commission's fee. If you have any questions or comments please call me directly at (508)428-9131; ext. 13 or via e- mail at swilson@baxter-nye.com. Sincerely, 4ten A. Wilson,P.E. encl. cc: B. Ohanian #1995-075 OhanianDockNOICtf.doc Phone (508) 428-9131; Fax (508) 428-3750 Town of Barnstable P Conservation Commission ` BMWS[ABM ' 200 Main Street 9`b�f039. Hyannis Massachusetts 02601 Office: 508-8624093 E-mail': conservation@town.bamstable.ma.us FAX: 508-778-2412 Certificate of Compliance— Form C Please check the appropriate box. Enter n.a.if not applicable: Compliant .Non- File No: SE3 3 j 3 7 Com liant FiWork limit line was not exceeded by any alteration or cutting.. ❑ ❑ A certified foundation plan was submitted to the Conservation Division. Before and after photographs of the undisturbed buffer were ❑ ❑ submitted to the Conservation Division. No plan deviations within the 50' setback from resource area. . No plan deviations between 50' and 100' of the resource area. Areas disturbed during construction have been revegetated. ❑' ❑ Mulching is not a substitute for vegetation. ❑ ❑ Drywells or gravel trenches were installed. ❑ ❑ Landscaping or vista pruning was done in consultation with. Conservation staff ❑ ❑ Work limit markers (wood.stakes) remain in place. ❑. ❑ Pool disinfection is byozone injection Post-dredge bathymetric survey was submitted [V ❑ Piers,ramps, floats and outhaul pilings are the permitted size, shape L� and configuration Piers,ramps and floats in storage are the permitted size, shape and ❑ ❑ configuration This checklist does not relieve applicants and. their representatives from compliance with other general and special' conditions of the Order of Conditions. Please describe all deviations in your request letter. Please submit this completed checklist with your written request for a Certificate of Compliance and your check of $50 made payable to the Town of Barnstable. 9�Z��a S R resentative's Signature Date Q:\Conservt\DEPFORMS\FORMC.doc rev:4/I I/2002 r, BAXTER, NYE & HOLMGREN, INC. Registered Professional Engineers and Land Surveyors 812 Main Street,Osterville,MA 02655 (508)428-9131 FAX:(508)428-3750 January 14t1i, 2005 APPROVED PLAN ' L' C E U d E Conservation Commission U Town Hall 367 Main Street .� � o�CYJ� n, JAN 1 8 2005 Hyannis, Massachusetts 02601 BARNSTABLE CONSERVATION Re: SE 3-3237, Ohanian 135 South Bay Road, Little Island Members of the Commission, On behalf of our client we are submitting the attached revised plan for the Commission's review and approval. The changes are as follows: • The float has been reconfigured from 10'x 20' to 8'x 25' (still 200 s.f.). • We are requesting permission to put lights on the dock in accordance with Commission guidelines. The dock has not yet been constructed. I am available to meet with the Commission at its next morning meeting to answer any questions they may have. If you have any questions or comments please call me directly at(508) 428-9131, ext. 13 Sincerely,00 ��Sa4e OeA. Wilson, P.E. FEB 2005 N r cc: B. Ohanian encl. #1995-075 OhanianRevPlan.doc Land Surveys • Subdivisions • Septic Design • Wetland Filings Site Design � v v� •� cxTME ,,,� Town of Barnstable Conservation Commission MAM200 Main Street 1634, . Hyannis Massachusetts 02601 Office: 508-862-4093 E=mail: conservation@town.barnstable.ma.us 'FAX: 508-778-2412 Form R Revised Plan Request File No. SE3- 32 3 7 Order of Conditions expiration date: 30 2006 . I. Why is a revised plan being submitted? e1h c i*tct&ttm 2. What is the new revision date? 1 q oS -3. : Does the revised-site ,plan have an original stamp, original:signature and . original initials in the revision block? Lim 4. What parts of project are completed? �. . 5. What parts of project are not completed? 6: Are completed parts of project in compliance with the approved plan and: Order of Conditions ? N�jg 7. Have special.conditions been met to date?' E.g. photographs of undisturbed buffer,certified foundation plan? A f A 8. Are sediment controls in effective condition? w/A / ♦N oS p sentative's Signature ate Please submit this form and a$25 check made payable to the Town of Barnstable. If this revision includes activities not part of the original application,add the rappropriate activity fee. Attendance at the meeting is required. O N QAConservt\DEPformsXFormR.doc rev: 09MarO4 Town of Barnstable Conservation Commission Form R 200 Main Street .. �039. �� � Hyannis Massachusetts 02601 N Office: 508-862-4093 E-mail: conservationgtown.barnstable.ma.Lis FAX: 508-778-2412 Revised Plan Request SE33Z5�OOC expiration date: Applicant Name: PW 1. Why is a revised plan being submitted? .1 M®CK- A � IN)eU 2. If a revised site plan is being submitted,what is its revision date? � 3. Does the revised site plan have an original stamp,signature, and initials in the revision block? A L& 4. What parts of project are completed? 5. What parts of project are not completed? 6. Are completed parts of project in compliance with the approved plan and Order of Conditions ? / �61 8 9 70117 3t` HEARIN79 -1 ave special conditions been met to date? E. photographs of undisturbed �, �05 P ; MAY r uffer, certified foundation plan? DATE ti� tip. z Vz �.� Ares dimen tr in effective condition? D� s n a iv s Signature ate Please mit this form,a cover letter, and a $25 check made payable to the Town of Barnstable. If this revision includes activities not part of the original application, add the appropriate activity fee. E C .E W E D Q:\Conservt\DEPFORMS\Form R.doc rev:061AN 2005 MAY 9 2005 BARNSTABLE CONSERVATION 11/12/2004 13:57 1-617-484-B537 MBO ASSOCIATES PAGE 04/04 Tuesday,November 08,20041:23 PM Georae Gillmore 608-477.7740 p.03 Town of Benutabte Conservation Commission s 200 Main street Hyannis Massachuam 020D1 NAM mw-m) VAX:30e•7U-2412 Form A For 9E3-92M ALL PARTM9 INVOLM WUH TEU FROJECT NUT SKX THIS STATRMBNT The ondcrsip fid confirm that they have reed and understand the Notice or Intent,Order of Condidons,and appioved plans for the project.The undeWi ped also understand that subm*mmi plea ttwia mm shall regain advance approval by the Conservation Commission. Please AP name cm Qds lice. Please V_rIp-t name on this line. Per owner Hate Roturn this fmm eo: Barnstable Consmadon Commission 200 Main Sic m Hymmis.MA 02601 Fax:5W77l-UJ2 L 2004 NSERVATION 11/12/2004 13:57 1-617-484-8537 MBO ASSOCIATES PAGE 02/04 Tuesday,November 09,20041:23 PM George Giilmore 56-477.7740 p,04 Town of Barnstable Conmvatlon Comlmudon ' 200 Mein Street - Hyannis Massachusetts 02501 ores: s�.esz�a� . FAX SW7784AU 1 Fo1'm 9 ' For SE3-� Below please find the names,addresses,skid buotiness telephone numbors of the project supervisor and alternate project supervisor vy c we responsible for ensuft on-site compliance with the Order of Conditions for SE3-s 5097 Project Sq"rAeor AlU mte Project StWervim At M sine Name Address ;Z � Aftess Business Tclepbone 0 9ueittew Tclephm 0 '"J/hy de. openy Owner's Sntttre ate Print Name AppBcanfe Sipsture(if diffetoat) Date print Nome Rettoa thii faarm to: Barnstable Conservation Commmou 200 Main Streit Hysmis,MA 02601 E E NOV 2 4 2004 BARNSTABLE CONSERVATION °Qt Town of Barnstable Conservation Commission KAM 200 Main Street A,Fo . Hyannis Massachusetts 02601 Office: 508-8624093 FAX: 508-778-2412 Permit No. Statement of Applicant/Applicant's Agent upon Obtaining a Building Permit Application Signoff from the Barnstable Conservation Division I fully understand that although I have obtained a signoff on the Building Permit Application for my project,site work may not begin under the Order of Conditions until the following requirements(from Section 11 of the'Order of Conditions)have been met: Not Met Met ❑ 1. Within one month of receipt of this Order of Conditions and prior to the commencement of any work approved herein, General Condition number 8(recording requirement)on page 3 shall be complied with. —Must be met prior to sign-off. ❑ 2. It is the responsibility of the applicant,the owner and/or successor(s)and the project contractors to ensure that all conditions of this Order are complied with. The applicant shall provide copies of the Order of Conditions and approved plans(and any approved revisions thereof)to project contractors prior to the start of work. Barnstable Conservation Commission Forms A and B shall be completed and returned to the Commission prior to the start of work. ] 3. General Condition 9 on page 3 (sign requirement)shall be complied with. ] 4. The Conservation Commission shall receive written notice 1 week in advance of the start of work- 7 ❑ ►5: a work limit line shown on the approved plan shall be staked in the field by the project surveyor/engineer. eStaked strawbales Packed by trenched-in siltation fencing shall be set alon the approved work limit '❑ g. pp tine. Effective r sediment controls shall remain until the site is stabilized with vegetation. ] ❑ 7. A sequence of color photographs showing the undisturbed buffer zone shall be submitted to the Conservation Commission. Note:the s1rawbales and siltation fence must show in the foreground(or bottom of the photographs. pp 'c r p ' ant Agent Signature Date v� � C mpany Name Phone# 6 nii;:ie Print Name foims:bldsignoff f t ' r COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 021o8 617-292-5500 March 2 , 2004 D E C E In the Matter of Docket No. 98-174 MAR - 5 Virginia Ohanian File No. SE 3-323.7 .2004 Osterville BAR STABLE CONSERVATION FINAL DECISION I have reviewed the attached Settlement Agreement signed by Michael D. Ford, Esq., for the applicant,Virginia Ohanian, Trustee, on January 21, 2004,by T. David Houghton,Assistant Town Counsel, for the petitioner;Barnstable Conservation Commission, on January 15, 2004, and by Gary S. Moran,Regional Director for the Department's Southeast Regional Office, on February 2, 2004. The Department issues this final decision incorporating the Settlement Agreement. The superseding order of conditions appealed from is vacated with the order of conditions issued by the Barnstable Conservation Commission on January 30, 2003 made final. Under the terms of 310 CMR 1.01 (8)(c),this proceeding under G.L. c.131, § 40, is dismissed,with the parties waiving whatever rights they may have to further administrative review before the Department as well as any appeal to court. Robert W. Golledge J . Commissioner . This information is available in alternate format..Call Debra Doherty,ADA Coordinator at 617-292-5565.TDD Service-1-800-298-2207. DEP.on the World Wide Web: http://www.mass.gov/dep 0 Printed on Recycled Paper i i SERVICE .LIST In Re : Michael Ohanian and Virginia Ghanian Trustees 135 South Bay Road Realty Docket No. 98-174 File No. 3-3237 Part Representative APPLICANT John R. Alger, Esq. Michael Ghanian and Virgina P.O. Box 449 Ohanian, Trustees, 135 South Osterville, MA 02655 Bay Road Realty Trust Mi APPLICANT chael D. Ford, Esq. Michael Ghanian and Virgina 72 Main Street Ohanian, Trustees, 135 South P.O. Box 665 gay Road Realty Trust West Harwich, MA 02671 PETITIONERS Robert W. Gatewood Barnstable Conservation Conservation Administrator Commission Barnstable Conservation Commission 367 Main Street Barnstable, MA 02601 Daniel d'Hedouville, Esq. DEPARTMENTDe t . of Environmental DEP - Southeastern Regional Office Dept . 20 Riverside Drive, Route 105 Lakeville, MA 02347 CC : DEP STAFF Mitch Ziencina DEP - Southeast Regional Office 20 Riverside Drive, Route 105 Lakeville, MA 02347 Robert Smith Town Attorney Town Hall, 367 Main Street Hyannis, MA 02601 Date: March 2, 2004 r_ Zr4� COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION Docket No.: 98-174 DEP File No. SE 3-33237 In the Matter of:. ) MICHAEL OHANIAN and ) VIRGINIA OHANIAN, TRUSTEES, ) 135 BAY ROAD REALTY TRUST ) Applicant. SETTLEMENT AGREEMENT Pursuant to M.G.L. c. 30A and 310 CMR 1.01(8)(c), the Department of Environmental Protection (the "Department"), the Barnstable Conservation Commission and Virginia Ohanian, Trustee (Michael Ohanian being deceased), enter into and submit this Settlement Agreement for approval as required by 310 CMR 1.01(8)(c) in order to finally resolve the above-referenced adjudicatory proceedings, pursuant to an Agreement between them and on the following terms: I . The Parties hereby request that the Superceding Order of Conditions be vacated. and this appeal be dismissed. 2. The terms and conditions of this Settlement Agreement shall be. binding upon the Parties' respective successors and assigns. 3. The parties understand and hereby waive, if this Settlement Agreement is approved, whatever rights they have to further administrative review before the Department as well as an appeal to court. 4. This Settlement Agreement may be executed in counterparts, each of which, when executed and delivered to the Department, shall be an original. All counterparts shall constitute one and the same instrument. 98-0025 Ohsettll I 5. The signatories to this Settlement Agreement attest that they are duly authorized to execute.this Agreement and bind the respective parties. 6. The effective date of this Settlement Agreement is the date of the last signature below. 7. The parties agree that the Order of Conditions issued on January 30, 2003 by the Barnstable Conservation Commission, a copy of which is appended to this Settlement Agreement, shall become the Final Order of Conditions for the work described therein once signed by the Commissioner of the Department of Environmental Protection. Department of Environmental Protection, by Dated: LAAW111 •r•- Petitioners, by Dated: avLVCt,v 0 Q T. David Houghton, Assistant Town Attorney, For Town of Barnstable Conservation Commission Applicant, by Dated: a a c ael D. Ford, Esq., Attorney For Virginia Ohanian, Trustee 98-0025 Ohsettll I i BAXTER, NYE & HOLMGREN, INC. Registered Professional Engineers and Land Surveyors 812 Main Street,Osterville,MA 02655 (508)428-9131 FAX:(508)428-3750 November 26'h, 2003 � � RU„ E D Conservation Commission - Town Offices DEC 1 2003 200 Main Street. Hyannis,Massachusetts 02601 BARNSTABLE CONSERVATION Re- Waterways License Application #W03-0914 V. Ohanian, 135 South Bay R.T., West Bay, Osterville Dear Sirs, In accordance with the instructions the Wetlands&Waterways Program(copy attached) we are sending you a copy of the Notice of License Application and a copy of the plans. Please follow the instructions on the Notice if you have any comments or questions. Sincerely, Ste e�AWilson,�PE. CM/RR encl. #95075 OhanianCh91 Note4.doc Land Surveys Subdivisions • Septic Design • Wetland Filings Site Design i COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE . 20 RIVERSIDE DRIVE, LAKEVILLE, MA 02347 508-946-2700 MITT ROMNEY ELLEN ROY HERZFELDER Governor Secretary FERRY HEALEY ROBERT W.GOLLEDGE,Jr. Lieutenant Governor Commissioner November 18, 2003 Tha 13� Rn1 ith Ray Realtv TnjSt c/o Baxter, Nye, & Holmgren, Inc. 812 Main Street Ostef-ville, IMI 026-5.5- Re: PUBLIC NOTICE OF WATERWAYS APPLICATION NO. W03-0914 West Bay, Barnstable (Osterville), Barnstable County Dear Sir or Madam: The Waterways Regulation Program (WRP) has received the referenced application requesting authorization to perform certain activities in state waterways pursuant to M.G.L. Chapter 91, the Public Waterfront Act and its regulations at 310 CMR 9.0 etc. The WRP has assigned this application filing with the above-referenced Waterways License.application number. IT IS IMPERATIVE THAT YOU REFER TO THIS APPLICATION NUMBER WHENEVER YOU SUBMIT OR REQUEST INFORMATION FOR THIS FILE_ Upon review of this application, the WRP has made a determination that this project is a water-dependent use projp_t. Attached is the WRP's Public Notice form for this application. The Applicant is required to publish this notice, at his/her expense, in one or more newspapers having circulation in the area affected by the proposed activity. This notice must.be published in the local newspaper(s) for at least one day on or before the Notification Date. The required public comment period shall begin on this designated Notification Date. The Applicant is required to submit proof of publication to the WRP by sending a copy of the newspaper notice showing the date of publication or a copy of the newspaper notice and a letter from the newspaper indicating the date the public notice was published. This information is available in alternate format_Call Aprel McCabe,ADA Coordinator at 1-617-556-1171.TDD Service-1-800-298-2207. DEP on the World Wide Web: http:/twww.mass.gov/dep Za Printed on Recycled Paper i Pursuant to 310 CMR 9.13(1)(a), the Applicant is also required to concurrently provide this notification, along with a copy of the project site plans submitted.with the Waterways License Application, to the appropriate municipal officials, regulatory agencies and abutters to the project for their review and comment, by Certified mail. (see Notification mailing list attached). For Chapter 91 purposes, an abutter is defined as the owner of land that shares a common boundary or corner with a project site at the water's edge, as well as the owner of land that lies within 50' across a waterbody from such site, see; 310 CMR 9.02. The WRP will publish the Public Notice in The Environmental Monitor, if required. Lastly, the WRP cannot complete its review of this application until the following information/document(s) checked below have been submitted: U Proof of publication of the Public Notice ❑ Receipt of the Municipal Zoning Certification I^_1 Receipt of the Municipal Planning Board Notification Form ❑ Receipt of a valid Wetlands Order of Conditions ❑ Receipt of a valid DEP Water Quality Certification ❑ Completion of the MEPA review process ❑ Plans according to the specifications of Appendix A of the Waterways Application. NOTE: Final Mylar Project Site Plans will be required upon notice from the Department and prior to issuance of the Chapter 91 License. El Should you have any questions, please contact me at (508) 946-2730. Thank you. Sincerely, David E. Hill. Environmental Engineer Waterways Regulation Program i Pursuant to 310 CMR 9.13(1)(a), the Applicant is also required to concurrently provide this notification, along with a copy of the project site plans submitted with the Waterways License Application, to the appropriate municipal officials, regulatory agencies and abutters to the project for their review and comment(see Notification mailing list attached). The applicant shall send the notice of license.or permit application by Certified mail to the attached list and abutters and notify the Department when completed. Mailing List, Notice of License Application pursuant to M_ G_ L Chapter 91 Board of Selectmen;Town of Barnstable Barnstable Planning Board Barnstable Conservation Commission Barnstable Zoning Board Barnstable Harbormaster Coastal Zone Management 251 Causeway Street, Suite 500 Boston, MA 02114 Brenda Harper DEP SERO, DWW 20 Riverside Drive Lakeville, MA 02347 Pat Huckery Division of Fish &Wildlife and Law Enforcement Field Headquarters 1 Rabbit Hill Road Westboro, MA 01581 Division of Marine Fisheries 50 A Portside Drive Pocasset, MA 02559 Massachusetts Historical Commission 22 Morrissey Blvd., Columbia Point Boston, MA 02125 Cape Cod Commission P.O. Box 226 Barnstable, MA 02630 Abutters—For Chapter 91 purposes,an abutter is defined as the owner of land that shares, along the waters edge, a common boundary or comer with a project site, as well as the owner of land that lies within 50'across a waterbody from such site. See 310 CMR 9.02. . I CERTIFY THIS PLAN HAS BEEN PREPARED IN CONFORMITY WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS. ' - vA REGIS ERED LAND SURVEYOR ra �y R. . ELLIS ' No.M74 fs� 1[FISJFt•' x4.50i 10.7 ' 10.8 EXISTING.STONE N a WALL x 10.8 t NORTH BAY 9.0 5 C h�<3 PROPOSED 2. 41/s GRASS PATH x-05_ ''•Z \y TO RfA�v'9.2N a 9.2RS S. �FpS o•� �cQ 9.2 \Qom\� 37 1.2 'SfNT p� `C _ 2.5 MyW ER' 9. LOCUS. .3 2.5 3 h WEST BAY G-3X-,1.1 2'5 L O C U S M A P -1.0 i \\ '\ :-/ ACCESS N.T.S. 4 0.6 �4W ---- 0- 1.0 o- 0.5 x PILE$. x -1.0 x 2.0 X 1. q Q -2.2 x h g OUTHAUL POSTS*--- 14'x3' RAMP- z 2.1 10'x20' x -2.9 FLOAT' K . 0-D 722. TO x -2.9 ILES(typ.)• NO OOCk x -2.7 ��P`vi OF Af, x -2.5 TEPx No.30218 cn GlG �q`Q ASS/0 AL x —2.5 � iO3 s 3-em NOTE: • DENOTES PROPOSED P L A N V I F W SCALE: 1• a 40' 0 w PLANS ACCOMPANYING PETITION _ OF THE 135 SOUTH BAY REALTY TRUST . TO CONSTRUCT AND MAINTAIN A PERMANENT & SEASONAL PIER IN OSTERVILLE, MASS. - COUNTY OF BARNSTABLE. MASSACHUSETTS , BAXTER NYE & HOLMGREN, INC. •'' OCTOBER 31• 2003 ELEVATIONS ARE ON MLW DATUM J:\1995\95075\95075cftap9l.dwg SHEET 3 OF 3 THE 135 SOUTH BAY REALTY TRUST OCTOBER 31. 2003 2 X 10' DECK 1' SPACING (TYP) I 4.0' "4HAN 4 f(. r2' x 4' - 4f� pp gg 8 KAtdR4L n�J. — 5.5' 6'X6' POSTS 8� r 2'X 10' DECK WATER '9 1-SPACING (TYP) 3'X 8' CRQ$S BRACE ELECTRIC '—.WATER SERVICE 2 — 3'X8' .. SERVICE ALL PIUNGS 10'-12' - 2�X 8' CROSS BRACE � . ( ) _ M.LW. Q•OELW. _ —0.5 DETAIL A-A DETAIL B-B N.T.S. N.T.S. \IN OF AI4SSc -V STEPHEN N No.30216 H 4Q. 20' I� 1 TOP OF PILES SSIONAL ' EL 7.B`MLW— 6'X6'OR 6'DIA. PILINGS(TYP.) M.H.W. — 2.5 4'x 4'TREATED POSTS CENTER OW i'SPACNG BETWEEN STAIR TREADS RELATE SLOPE OF STAIR CHAINS FROM FLOATS TO SLOPE OF GROUND TO PILINGS TO PREVENT GROUNDING m F-XIS77NG BOTTOM 2'x.-4'NAND RAIL 2'x 4'KICK RAIL 2'x 12'TREADS 2'x 4'CLEAT OR LUDO GALVANIZED BOLT CONCRETE BLACK ABLE ENO SECTION (IF REOUIRED) FLOAT DETAIL D-D CAM POSTS 5'B£IAM p7DE - N,TS: ELEVATED STAIRWAY DETAIL C-C N.T.S. N 0TES: MINIMIZE DISRUPTION TO EXISTING GRADE AND VEGETATION TO PREVENT EROSION. LENGTH OF STAIRWAY CAN BE ADJUSTED TO HEIGHT OF EMBANKMENT. LANDINGS OR REST STATIONS ARE RECOMMENDED AT EVERY 14 RISERS WHEN STAIRWAY MAKES A 1 LONG RUN- RECOMMENDED WIDTH OF STAIRWAY: 3' TO 3' 8'. IF NO RAILING IS DESIRED, CUT POSTS FLUSH WITH STRINGERS. LANDINGS AND STAIRWAYS MAY BE ADJUSTED IN FIELD TO AVOID TREES AND FACILITATE CONSTRUCTION. J:\1995\95075\950?5chap9I.dwg 1 173.0' 5.5' 10.65 4 BAYS ® 12' = 48' 10 BAYS ® 8' = 80' 10:x20' FLOAT_.....__._..... . EXISTING STAIRS DETAIL C-C OPTIONAL DETAIL D-6 WALL 4' X 4' HANDRAIL BOTH SIDES .r. ELEV. 5:5' M.H.W. - 2.5' ETAIL B-B DETAIL A-A EXISTING BOTTOM PROFILE OF PROPOSED PIER 1t1 OF Wj m 20 0 20 40 02� EF gOti '-� SCALE IN FEET m$_ ai 03 u c i A I' • r `I Massachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands SAM M . WPA Form 5 - Order of Conditions SE3-3237 Provided by DEP �bA i659. tt Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Barnstable Ordinances Article XXVII A. General Information Important: From: When filling out forms on Barnstable the computer, Conservation Commission use only the tab key to This issuance if for(check one): move your cursor-do ® Order of Conditions not use the return key. ❑ Amended Order of Conditions reb To: Applicant: Property Owner(if different from applicant): Michael & Virginia Ohanian,Trustees Michael &Virginia Ohanian, Trustees Name Name 135 South Bay Road Realty Trust 350 South Ocean Blvd. 350 South Ocean Blvd. Mailing Address Mailing Address Boca Raton FL 33432 Boca Raton FL 33432 City/Town State Zip Code City/Town State Zip Code 1. Project Location: 134 South Bay Road Osterville Street Address City/Town 093 064 Assessors Map/Plat Number Parcel/Lot Number 2. Property recorded at the Registry of Deeds for: Barnstable County Book Page 137058 being Lot 6 on Land Court Plan 9592H Certificate(if registered land) 3. Dates: July 18, 2002 September 10 2002 `}';{ 3 Date Notice of Intent Filed Date Public Hearing Closed Date of Issuance 4. Final Approved Plans and Other Documents (attach additional plan references as needed): Revised Site Plan Dec. 11, 2002 Title Date Title Date Title Date 5. Final Plans and Documents Signed and Stamped by: Stephen Wilson, PE Name 6. Total Fee: $482.00 (from Appendix B:Wetland Fee Transmittal Form) Wpaform5.doc•rev.12/17/02 Page 1 of 7 r Massachusetts Department of Environmental Protection DEP File Number: o� Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions SE3-3237 sasxsra13 yL Mass. g. Provided by DEP `op i63� �0 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 QED M1Py� and Town of Barnstable Ordinances Article XXVII B. Findings Findings pursuant to the Massachusetts Wetlands Protection Act: Following the review of the above-referenced Notice of Intent and based on the information provided in this application and presented at the public hearing,this Commission finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply: ❑ Public Water Supply ® Land Containing Shellfish ® Prevention of Pollution ❑ Private Water Supply ® Fisheries ® Protection of Wildlife Habitat ❑ Groundwater Supply ® Storm Damage Prevention ® Flood Control Furthermore,this Commission hereby finds the project, as proposed, is: (check one of the following boxes) Approved subject to: ® the following conditions which are necessary, in accordance with the performance standards set forth in the wetlands regulations, to protect those interests checked above. This Commission orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. Denied because: ❑ the proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations to protect those interests checked above.Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect these interests, and a final Order of Conditions is issued. ❑ the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act.Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the Act's interests, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMR 10.05(6)(c). General Conditions (only applicable to approved projects) 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, bylaws, or regulations. Wpaform5.doc-rev.12/17/02 Page 2 of 7 I Massachusetts Department of Environmental Protection DEP File Number: • "o� Bureau of Resource Protection - Wetlands STAB * WPA Form 5 - Order of Conditions SE3-3237 Mass Provided by DEP Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Barnstable Ordinances Article XXVII B. Findings (cont.) 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. If this Order is intended to be valid for more than three years, the extension date and the special circumstances warranting the extended time period are set forth as a special condition 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. Any fill shall contain 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. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. 8. No work shall be undertaken until the Order has become final and then 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 the 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 done. The recording information shall be submitted to this Conservation Commission on the form at the end of this Order, which-form must be stamped by the Registry of Deeds, prior to the commencement of work. 9. A sign shall be displayed at the site not less then two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection"[or, "MA DEP"] "File Number SE3-3237 " 10. Where the Department of Environmental Protection is requested to issue a Superseding Order,the Conservation Commission shall be a party to all agency proceedings and hearings before DEP. 11. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A)to the Conservation Commission. 12. The work shall conform to the plans and special conditions referenced in this order. 13. Any change to the plans identified in Condition #12 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent. 14. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours . to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. Wpaform5.doc•rev.12/17/02 Page 3 of 7 Massachusetts Department of Environmental Protection DEP File Number: ,* Bureau of Resource Protection - Wetlands MUMsTaeM = WPA Form 5 - Order of Conditions SE3-3237 Mass. Provided by DEP �prE16.39.a,0 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Barnstable Ordinances Article XXVII B. Findings (cont.) 15. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person performing work conditioned by this Order. 16. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Conservation Commission. 17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed.The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. see attached Findings as to municipal bylaw or ordinance Furthermore, the Barnstable hereby finds (check one that applies): Conservation Commission ❑ that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw specifically: Municipal Ordinance or Bylaw Citation Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order of Conditions is issued. ® that the following additional conditions are necessary to comply with a municipal ordinance or bylaw, specifically: Article 27 of Town Ordinances Municipal Ordinance or Bylaw Citation The Commission orders that all work shall be performed in accordance with the said additional 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. Wpaforrn5.doc•rev.12/17/02 Page 4 of 7 l SE3-3237 O'Hanian Approved Plan= Dec 11, 2002 Revised Site Plan by Stephen Wilson, P.E. Special Conditions of Approval I. Preface Caution: Failure to comply with all Conditions of this Order of Conditions can have serious consequences. The consequence may include issuance of a stop work order,fines,requirement to remove unpermitted structures,requirement to re-landscape to original condition,inability to obtain a certificate of compliance, and more. The General Conditions of this Order begin on page 2 and continue on pages 3 and 4. The Special Conditions are contained on pages 4.1,4.2 and 4.3 if necessary.All conditions require your compliance. H. Prior to the start of work,the following conditions shall be satisfied: 1. Within one month of receipt of this Order of Conditions and prior to the commencement of any work approved herein,General Condition number 8(recording requirement)on page 3 shall be complied with. 2. It is the responsibility of the applicant,the owner and/or successor(s)and the project contractors to ensure that all conditions of this Order are complied with. The applicant shall provide copies of the Order of Conditions and approved plans(and any approved revisions thereof)to project contractors prior to the start of work. Barnstable Conservation Commission Forms A and B shall be completed and returned to the Commission prior to the start of work. 3. General Condition 9 on page 3 (sign requirement)shall be complied with. 4. The Conservation Commission shall receive written notice 1 week in advance of the start of work. 5. The Natural Resources Dept. shall be notified at least 21 working days prior to the start of work at the site, to inspect the areas for shellfish. If deemed necessary by the Shellfish Constable,shellfish shall be removed from the work area to a suitable site and/or replanted at the locus following construction. The foregoing measures for shellfish protection shall ensue at the expense of the applicant. 6. The applicant shall obtain a building permit for the proposed pier from the Town Building Commissioner. p.4.1 `r III. The following additional conditions shall govern the project once work begins. 7. General conditions No. 12 and No. 13 (changes in plan)on page 3 shall be complied with. 8. General condition No. 17(maintaining sediment controls)on page 4 shall be complied with. 9. The Conservation Commission,its employees,and its agents shall have a right of entry to inspect for compliance with the provisions of this Order of Conditions. 10. This permit is valid for 3 years from the.date of issuance,unless extended by the Commission at the request of the applicant. 11. Herbicide,pesticide and fertilizer use is discouraged on lawns within Conservation Commission jurisdiction. If fertilizer is used,only slow-release low-nitrogen fertilizer shall be applied. Over-fertilizing shall be avoided. 12. There shall be no disturbance of the existing salt marsh. 13. No creosote treated materials shall be used.No CCA-treated material shall be used for pier decking. 14. The proposed stairs shall be constructed without solid risers. 15. Deck plank spacing for the pier shall be at least one half inch. 16. Work shall occur during the off-season only: October 15 through May 1. 17. No dredging(including but not limited to effects of propeller wash) is permitted herein. 18. The seasonal storage of floats and components shall be at a suitable upland site. They shall not be stored on banks,marshes or dunes. 19. Permanent piling shall be driven into place. The following special conditions in italics shall govern boat use at the approved pier.These conditions shall continue over time. Note: For purposes of this Order of Conditions,the term"pier" shall refer not only to the linear pile-supported structure,but also to any of its components or appendages such as the float(s),ell,tee,ramp,outhaul piling,etc. 20. Boats shall only be berthed at the float. 21. No boat shall be used or berthed at the approved pier such that at any time less than one foot of water resides between the bottom of the boat(or engine in drive position)and the substrate. p.4.2 22. No jet propulsion boat shall be used or berthed at the pier unless specifically authorized by the Commission in the future. 23. Any desired pier lighting shall receive prior approval of the Conservation Commission or Department. 24. Lead piling caps shall not be used. 25. The seasonal portion of the pier shall be deployed May through October only. It shall be removed during the months of November through April. This condition shall continue over time. 26. Work on the pier shall ensue mid-tide rising to mid-tide falling or as otherwise necessary to prevent the grounding of the work barge on the substrate. IV. After all work is completed,the following condition shall be promptly met: 27. At the completion of work,or by the expiration of this Order,the applicant shall request in writing a Certificate of Compliance for the work herein permitted. Barnstable Conservation Commission Form C shall be completed and returned with the request for a Certificate of Compliance. Where a project has been completed in accordance with plans stamped by a registered professional engineer,architect,landscape architect or land surveyor,a written statement by such a professional person certifying substantial compliance with the plans and setting forth what deviation,if any,exists with the record plans approved in the Order shall accompany the request for a Certificate of Compliance. At the time of the request for a Certificate of Compliance an updated sequence of color photographs of the undisturbed buffer zone shall be also submitted. p.4.3 i IH rE Massachusetts Department of Environmental Protection DEP File Number: o� Bureau of Resource Protection - Wetlands • &kMSTABU • WPA Form 5 Order of Conditions SE3-3237 y MA93 $ Provided by DEP �p 1639. Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Barnstable Ordinances Article XXVII B. Findings (cont.) Additional conditions relating to municipal ordinance or bylaw: see attached This Order is valid for three years, unless otherwise specified as a special condition pursuant to General Conditions #4, from the date of issuance. Date This Order must be signed by a majority of the Conservation Commission. The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate Department of Environmental Protection Regional Office (see Appendix A) and the property owner (if different from applicant). Signatures: On Of 03 Day Month and Year before me personally appeared T w J ��-S j.I� �—f►N 1 to me known to be the person described in and who executed the foregoing instrument and acknowledged that he/she executed the same as his/her free act and deed. Notary Public My Commission Expires This Order is issued to the applicant as follows: ❑ by hand delivery on by certified mail, return receipt requested, on Date Date Wpaform5.doc•rev.12/17/02 Page 5 of 7 of rqy Massachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands: WPA Form 5 - Order of Conditions SE3-3237 MIASS. I Provided by DEP �OrE039. Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 and Town of Barnstable Ordinances Article XXVII C. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, 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 DEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Appendix E: Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. 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 concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act, (M.G.L. c. 131, § 40) and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations,the Department has no appellate jurisdiction. D. Recording Information This Order of Conditions must be 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 subject to the Order. In the case of registered land,this Order shall also be.noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions.The recording information on Page 7 of Form 5 shall be submitted to the Conservation Commission listed below. Barnstable Conservation Commission Wpaform5.doc•rev.12/17/02 Page 6 of 7 i Massachusetts Department of Environmental Protection DEP File Number: �y o� Bureau of Resource Protection - Wetlands MMST"LE, WPA Form 5 - Order of Conditions SE3-3237 MIASSProvided by DEP q,A 059. .0 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 lED MA'S A and Town of Barnstable Ordinances Article XXVII D. Recording Information (cont.) Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. -------------------------------------------------------------------------------------------------------------------------- To: Barnstable Conservation Commission Please be advised that the Order of Conditions for the Project at: 135 South Bay Road, Osterville SE3-3237 Project Location DEP File Number Has been recorded at the Registry of Deeds of: County Book Page for: Property Owner and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Number If registered land, the document number identifying this transaction is: Document Number Signature of Applicant Wpaform5.doc•rev.12/17/02 Page 7 of 7 i BAXTER, NYE & HOLMGREN, INC. Registered Professional Engineers and Land Surveyors 812 Main Street,Osterville,MA 02655 (508)428-9131 FAX:(508)428-3750 Memo To: Conservation Commission 0From: Steve Wilson i QEC'I 0 77u" LIL- j, Date: December 12t", 2002 BARNST,ggLE CONSERVATION Re: Se 3-3237; Ohanian, South Bay Road Enclosed please find the revised plan for this proposed pier reflecting the changes requested by the Commission. The changes from the plan dated July 51", 2002.are as follows: • The float has been reduced to 10' x 20' (from 12' x-28'):. • One addition 8' section of the seasonal pier has been.added. . . • The overall length of the pier(including ramp & float) remains the same. If you have any questions or comments please call me directly at 508-428-9131; ext. 13. cc: M. Ford, Esq. w/encl. #95075 Ohanianldoc Land Surveys • Subdivisions Septic Design Wetland Filings • Site Design .s, 09/24/2002 08:53 15084283750 BAXTER,NVE&HOLMGREN PAGE 01 Baxter, Nye & Holmgren,Inc. O (� 812 Main Street Osterville,Massachusetts 02655 i 1214 20 Land Surveyors&Civil Engineers BARN, TABLE CONSERVATION FAX(508) 428-3750 Date: i TO: C�,j," . FAX# soO-17 9' - 241 J& I RE: 32 3 O From: Stephen A.Wilson,P.E. I I _A—Pages, Including This Cover Sheet If you do not receive all of the pages included with this transmittal 4 if there is a problem please contact me at(508)428-9131, ext. 13 I m'LIC4- 4LSlla W& - x ftmS ♦o 1uaa 14J. 1A6-1tic 4c, +t,4. �cF� �v'it� W < <� tn���I Ve&CGua� bo N'tiwf staQ�w.c�t� Up LJ h dr L14 1"m46` G�Aa�e1h4 4.orYt el t'�'1 l f Job# `f`5 o-7-S Faxftw.doc i f 09/24/2002 08: 53 15084283750 BAXTER,NVE&HOLMGREN PAGE 02 I /r Memo To: Mike Ford From: Steve Wilson Date: September 24t', 2002 Re: Boat for Ohanian Dock I have been in contact with Mr. Peter Smith, Chief Engineer, Hinckley Yachts regarding the jet drive boat(Hinckley T29)proposed for the Ohanian Dock, 1. The vertical distance from the keel to the centerline of the je> drive is 13.25". The diameter of the jet drive is 11,5". Therefore the lowest point Of the jet drive is 7.5" above the keel. If the Conservation Commission holds to its 12"minimum clearance there will be 19.5" of clearance between the jet drive and the bottom of the bay. 2. The intake for the jet drive is on the keel of the boat and recessed about 2.25". It is 19.5"wide by 42" long. 3. Engine speed(while docking)can vary from 750 RPM to 1500 RPM depending on wind and wave conditions. I have attached some calculations showing the approximate velocity of the water at the intake and 12"beloved the boat while docking. 09/24/2002 08:53 15084283750 BAXTER,NYE&HOLMGREN PAGE 03 y T �►'+��v+cRPrn �LOu Ft��ltilw� logo 7?- Ir�Eok�. ISvO °14c� f9�s"��Z�r = $I`� 2-0o rs 125 V VIN%A Ogg ZT06 313�6 N c v v 3000 469-6 3 boa�n�.11�� Sat o at------------ IYl�kt 1000 r2FM 74z 1'T��Inlh w��►�., �,6.i �� X lac�sec .:� 2,Z. ��s�� � I S w►ph f 2,7 Vcloc,►� d� l,J a ltr a.€ I Z" he l o w I h�e.ItL V i 1 / � r � .`y Z kAJ I 09/24/2002 08:53 15084283750 BAXTER,NYE&HOLMGREN PAGE 04 6 oxc Z loot9 ►n 14�1►n Z RPm p�� 1 moo Rq-o �'1'3�r„►� 1 Min .J i 1 I 1 °�i` . Town of Barnstable BMWSfABLE Marine and Environmental Affairs Division 163 a Natural Resources AjEO�� 1189 Phinney's Lane, Centerville, MA 02632 Office: 508-790-6272 Douglas M Kalweit FAX: 508-790-6275 Supervisor TO: Conservation Commission AUG 1 9 200 FROM: Natural Resources, Town of Barnstable BARNSTABLE CONSERVATION DATE: August 17, 2002 RE: APPLICATION: (N.O.I.), Construction of a seasonal pier, ramp and float at 135 South Bay Road, Osterville as shown on Assessors Map 093 Parcel 064. SE3-3237 APPLICANT: Michael Ohanian and Virginia Ohanian, Trustees LOCATION: 135 South Bay Road, Osterville, MA 02655 REPRESENTATIVE: Michael D. Ford, Esq. 72 Main Street, P.O. Box 665 West Harwich, MA 02671 The following information is submitted for the record regarding the designation and time of designation of the West Bay Relay Area. (As stated in previous correspondence to the Town of Barnstable Conservation Commission) Prior to the original (1997) project proposal the Natural Resources Office and the Massachusetts Division of Marine Fisheries designated the area in which the (1997 and 2002) pier proposal(s) are sited as a "Shellfish Relay Area". Included is a copy of a permit issued on April 18, 1997, by the Division of Marine Fisheries, allowing the relay of contaminated shellfish to the designated relay area. In discussion with Rob Gatewood, he stated that the Ohanian's filed their first notice of intent for a proposed pier project within the classified relay area on July 6, 1997. Also included is a copy of a spreadsheet list of classified shellfish relay areas, the times the relay areas were closed to shellfishing and the amount of shellfish relayed to the each relay area. Shellfish Relay Areas are designated as such based primarily on the fact that they are suitable habitats for the long term survival and growth of selected transplanted shellfish. The West Bay Relay Area (DMF/SC 22.21) is an active relay area. 548, 781 and 1,136 bushels, respectively, of quahogs were relayed to the area during the springs of 1997, 1999 and 2001. The relay area was closed to the harvest of shellfish during the late spring and summer of those years only. 1 DMF allows shellfish relays to occur when the coastal marine water temperature meets or exceeds 45 deg. F, in order for the relayed shellfish to become active enough to reburrow. This usually occurs around mid April. DMF implements a protocol to allow for the natural occurring spawning of quahogs during the warmer summer season, and has set a June 15th deadline for all shellfish harvesting and relaying procedures to cease. Shellfish relayed before the June 15th deadline may be harvested as early as the immediately proceeding Fall (Autumnal Equinox). Spawning also releases substantial fatty content (i.e. lipids) from the shellfish increasing the potential purging of certain contaminates that may be bound to the fatty matter. Shellfish harvested and relayed after the June 15th deadline, of any given year, can not be harvested until the Fall of the following year in order to technically assure for this natural spawning and purging process to occur at least once. Please call If you have any questions regarding these matters. Sincerely, Thomas Marcotti Shellfish Biologist/ Deputy Shellfish Constable 2 /w PHtuP G.COATs DIR[GTOR V�j � 02202 727-3193 AMENDMENT TO SPECIAL SHELLFISH PERMIT NO.9916-97-1 TYPE CONTAMINATED RELAY DATE OF AMENDMENT APRIL 18, 1997 TO WHOM IT MAY CONCERN: Acting under authority of Paragraphs 2 and 3, Section 17; Sections 69, 75, 80 and 83, Chapter 130 M.G.L. , permit No. 9916-97-1 is hereby amended to allow: MR. JAMES TINSELY ACTING TOWN MANAGER , TOWN HALL HYANNIS, MA. 02601 to take, possess and relay seed and adult shellfish (OUAHOGS) from THE AREA STATED, IN THE ORIGINAL PERMIT to NORTH BAY AND BARNSTABLE HARBOR AS STATED IN THE ORIGINAL PERMIT. THE WEST BAY RELAY SITE HAS BEEN AMMENDED TO CONSIST OF THE AREA BETWEEN_THE, "NO.SHELLFISHING!!._SIGNS AT #52 BRIDGE STREET AND #134 SOUTH STREET EXTENDING TO THE TWO OFFSHORE BUOYS. subject to the following conditions: 1.. Not more than 1000 BUSHELS shall be transplanted. 2. The inclusive dates of the transplant Shall be APRIL 21, 1997 to MAY 23 , 1997 at which time all relaying shall cease. 3 . This permit shall. expire DECEMBER 31, 1997 unless sooner revoked for cause. 4. A record of the shellfish relaid shall be kept and a copy sent to this office AT THE TERMINATION OF THE RELAY! 5. This permit is amended to add a GREEN 1988 FORD F-250 (Reg. # 792-9CE) registered to Ray Silva to be used to transport contaminated shellfish to Barnstable. J. Michael Hickey, Philip�G. Coates, Chief Biologist Director cc: Division of Environmental Law Enforcement: 1) Deputy Director of Enforcement, B. McKeon 2) Chief of the Coastal Bureau, P. McMann 3) Deputy Chief of Coastal Enforcement, K. . Dolan 4) Regional Supervisors; P. Hanlon & R. Concannon Division of Marine Fisheries: 1) Assistant Director, James Fair 2) Chief Biologist, J. Michael Hickey DPH: Division of Food & Drug: 1) Supervisory Inspector (Seafood) , R. Waskiewiz U.S. Food & Drug Administration: 1) Regional Shellfish Specialist, M. Dowgart Town of Barnstable: 1) Shellfish Constable, D. Kalweit Town of Somerset: 1) Shellfish Constable, Lou Moniz City of Fall River: 1) Shellfish Constable, John DeSilva Vessel Captain: . R. Silva west tjay-Kelay Area is aetinecl as the waters and shoreline of that portion of West Bay from "No Shellfishing" sign located at the pier at 52 Bridge Street to the "No Shelifishing" sign ited along the shore at 134 South Bay Road and extending to the offshore "No Shellfishing" - i buoys. J :ate S i 0 ... Qb .......... . 3helifishin9" 0 ....�Q'::_:::tz� sign at iouth Bay Rd. ­71 ... ...... It, F3 ... .......0 0 ­-4ivtnilfill ="No Shelifishing" -sign at fill 152 Bridge Street NOTICE RELAY AREA CLOSED TO SHELLFISHIENG ."No Shelifishingy' AREA PLANTED WITH -sign / buoys CONTAMINATED SHELLFISH WE F BAY PER ORDER TOWNU ' (DER TOWN OF BARMA-, r DMF CONTAMINATED QUAHOG RELAYS 1994-2002 RELAY=AREA f '4 t ®`N1F AREA CO DES"EASON/YEIRSEASFON/YEARAMOU.NT , a .� �� ��` PLANT E® OPENED PLANTE® ' 741. SHELS) SCUDDER LANE DMF/CCB 31.20 SPRING '94 FALL '94 500 (BARNSTABLE HARBOR) SPRING '95 FALL '95 360 . SPRING '96 FALL '96 98 SPRING '97 FALL '97 , .465 SPRING '98 FALL '98 325 SPRING '99 FALL '99 304 CORDWOOD LANDING DMF/SC 21.21 SPRING/FALL '95 FALL '96 1,246 (COTUIT BAY) SPRING '98 FALL '98 207 SPRING '00 FALL '00 240 (In-Town Relay) SPRING '02 . FALL '02 366 55-70 lb. bu. COTUIT BAY DMF/SC 21.22 FALL '96 FALL '97 500 BLUFF POINT DMF/SC 21.20 SPRING/FALL '95 FALL '97 432 (COTUIT BAY) SPRING'98 FALL '98 275 SPRING '01 FALL"01 311 NORTH BAY DMF/SC 23.22 SPRING '97 FALL '97 177 BAY STREET DMF/SC 23.20 SUMMER '96 FALL'97 "1,000 (NORTH BAY) SPRING '00 FALL '00 565 SPRING '01 FALL '01 535 CAMP CANDUIT SPRING '97 FALL '97 60 (NORTH BAY) WEST BAY Eastern West Bay SPRING '96 FALL '96 875 West Relay Area DMF/SC 22.21 SPRING '97 FALL '97 548 West Relay Area DMF/SC 22.21 SPRING '99 FALL '99 781 (In-Town Relay)Joe's Grant DMF/SC 22.22 SPRING 99 FALL '99 640 55-70 lb. bushels (In-Town Relay)Joe's Grant DMF/SC 22.22 SPRING '00 FALL '00 715 55-70 lb. bushels (In-Town Relay)West Relay Area DMF/SC 22.21 SPRING '01 FALL 01 1,136 55-70 lb. bushels (In-Town Relay)Joe's Grant DMF/SC,22.22 SPRING.'02 FALL '02 845 55-70lb. bushels HYANNIS HARBOR DMF/SC 27.22. SPRING '98 FALL '98 275 SPRING '99 FALL'99 235 SPRING '00 FALL '00 195 SPRING'01 FALL.'01 154 TOTAL OUT OF,TOWN 10,663' TOTAL IN TOWN 3,702 Page 1 MICHAEL D. FORD, ESQUIRE C��exvriv� ATTORNEY AT LAW C©m rT11�S5i ova 72 MAIN STREET, P. O. BOX 665 WEST HARWICH,MA. 02671 . TEL. (508)430-1900 FAX(508) 430-8662 EMAIL: mdfesq@capecod.net ABUTTER NOTIFICATION LETTER As an abutter within 300 feet of a proposed project,please be advised that the Town.of Barnstable Conservation Commission will reconsider the application for the following proposed project: i Applicant: 135 South Bay.Road Realty Trust Michael Ohanian and Virginia Ohanian, Trustees Project Location: 135 South Bay Road, Osterville Proposed Project: Construction of seasonal pier,ramp and float. Applicant's Agent: Michael D. Ford, Esq. 72 Main Street, P.O. Box 665 j West Harwich, MA 02671 phone (508)430-1900 Public Hearing: Date: August 13, 2002 Time: 6:30PM Place: Barnstable Town Hall, Hyannis, MA 2°d Floor conference room Plans and the application describing the proposed activity are on file at the Town of Barpstable Conserrvation Commission office.at 200 Main:S.tr-eetHyannis,(phorie,#508-862-4043),at the Office of Steve Wilson of Baxter, Nye_&_Holmgr_en,_812_Main Street, Oster le,-MA Oda at Attorney Ford's office. Please.call if you have any questions regarding this application. i ZJ W/ I ° o� Town of Barnstable AUG J 2 2002 s &UWSensre Marine and Environmental Affairs Division 9� MAS& �•� Natural Resources 'OtFp�(A fBARNSTABLE CONSERVATIONi 1189 Phinney's Lane, Centerville, MA 02632 a. Office: 508-790-6272 Douglas M Kalweit FAX: 508-790-6275 Supervisor TO: Conservation Commission FROM: Natural Resources, Town of Barnstable DATE: August 9, 2002 RE: APPLICATION: (N.O.I.), Construction of a seasonal pier, ramp and float at 135 South Bay Road, Osterville as shown on Assessors Map 093.Parcel 064. SE3-3237 APPLICANT: Michael Ohanian and Virginia Ohanian, Trustees LOCATION: 135 South Bay Road, Osterville, MA 02655 REPRESENTATIVE: Michael D. Ford, Esq. 72 Main Street, P.O. Box 665 West Harwich, MA 02671 The Natural Resources Office submitted a shellfish survey report for the original proposed pier project located approx. 70 feet to the west of the current proposed pier project (report dated August 18, 1997). The sediment and habitat constituency of the footprint of the current proposal is similar to the footprint of the original proposal. Prior to the original (1997) project proposal the Natural Resources Office and the Massachusetts Division of Marine Fisheries designated the area in which the pier proposal(s) are sited as a "Shellfish Relay Area". Shellfish Relay Areas are designated as such based primarily on the fact that they are suitable habitats for the long term survival and growth of selected transplanted shellfish. The West Bay Relay Area(DMF/SC 22.21) is an active relay area. 548, 781 and 1,136 bushels, respectively, of quahogs were relayed to the area during the springs of 1997, 1999 and 2001. For several years, the Natural Resources Office has also free planted cultured quahogs throughout the relay area for public shellfish enhancement purposes. The proposed project is situated within an area that undergoes periodic and intensive commercial and recreational harvesting of shellfish, particularly quahogs. Commercial and recreational shellfishermen have provided testimony to the historical and current productive quality of the area within the proposed project footprint. 1 i The Natural Resources Office is considering relaying,shellfish to the area during 2003 pending the availability of suitable relay stock. All designated and classified Shellfish Relay Areas are considered significant shellfish habitats by the Town of Barnstable Natural Resources Office, the Massachusetts Division of Marine Fisheries and the year 2000 Natural Resources sub-committee to the Town of Barnstable Pier Committee. These agencies advocate that these areas be afforded protection from coastal development projects. There is considerable documented evidence and research that . illustrate the environmentally/biologically deleterious effects of piers in marine habitats/ecosystems (i.e., CZM November 2000 workshop references: "The Science and Management of Docks and Piers"). The implementation of a pier within this significant habitat conflicts with the best interests of the West Bay shellfishery, further compromising the interests of the Town's commercial and recreational shellfishermen. In the best interests of preserving the commercial and recreational shellfishery and quality shellfish habitat of West Bay, Natural Resources cannot support the proposed project. Sincerely, Thomas Marcotti Shellfish Biologist/ Deputy Shellfish Constable I 2 DMF CONTAMINATED QUAHOG RELAYS 1994-2002 EASO'N/YE�1R SE��S®N M YEAR �AMOUNl �t x R RELAYAREA ' x„ DMF�REA COD'gE. S �; � ill"» PLAIN sb 1+8® LB. BIJSHE S) SCUDDER LANE DMF/CCB 31.20 SPRING '94 FALL '94 500 (BARNSTABLE HARBOR) SPRING '95 FALL '95 360 SPRING '96 FALL '96 98 SPRING '97 FALL '97 465 SPRING '98 FALL '98 325 SPRING '99 FALL '99 304 CORDWOOD LANDING DMF/SC 21.21 SPRING/FALL '9 FALL '96 1,246 (COTUIT BAY) SPRING '98 FALL '98 207 SPRING '00 FALL '00. 240 (In-Town Relay) -SPRING '02. FALL -'02 366 14,4 , COTUIT BAY DMF/SC 21.22 FALL '96 FALL '97 500 BLUFF POINT DMF/SC 21.20 SPRING/FALL 'S FALL '97 432 (COTUIT BAY) SPRING '98 FALL '98 275 SPRING '01 FALL '01 311 NORTH BAY DMF/SC 23.22 SPRING '97 FALL '97 177 BAY STREET DMF/SC 23.20 SUMMER '96 FALL '97. 1,000 (NORTH BAY) SPRING '00 FALL '00 565 SPRING'01 FALL '01 535 CAMP CANDUIT SPRING '97 FALL '97 60 (NORTH BAY) WEST BAY Eastern West Bay SPRING '96 FALL '96 875 1Nest'RelayArea; - y �QMF/_SG_22 21 _SPRING'97 . -- FALL" __'97 West Rel y - " - - ,� _'.DMF/SC 22:21 _._:-S PRING'99i FALL_99i._F - ,__781 _? (In-Town Relay)Joe's Grant DMF/SC 22.22 SPRING 99 FALL '99 640 55-70 lb. bushels (In-Town Relay)Joe's Grant DMF/SC 22.22 SPRING '00 FALL '00 715 55-70 lb. bushels (In-Town-Rela`y)Wesf=Relay=Area DMF/SC 2,2�2;1`"'� � SP_RIN_G '01, FALL '01 _ ,1 1"36 55=7.0Ib.;bushels (In-Town Re/ay)Joe's Grant DMF/SC 22.22 SPRING '02 FALL '02 845 55-7 b bushels HYANNIS HARBOR DMF/SC 27.22 SPRING '98 FALL '98 275 SPRING '99 FALL '99 235 SPRING '00 FALL '00 195 SPRING '01 FALL '01 154 TOTAL OUT OF TOWN 10,663 TOTAL IN TOWN 3,702 Page 1 I Stepanis, Fred From: Stepanis, Fred Sent: Thursday, July 18, 2002 3:21 PM To: Houghton, David Cc: Gatewood, Rob Subject: SE3-3237-Ohanian David, I have compared the plan submitted 7/18/2002 to the previously denied plan. Please see table below. Fred plan revised 9/30/97 plan revised 7/5/2001 pier Permanent 10'- 12"pilings) Permanent to m.l.w. Seasonal from m.l.w. to end (using 6" X 6" posts) length 166' total pier length 132' pier length 34' rarnp & float length 166' overall length shape "L" shape pier Straight pier, ramp & float 6' X 32' pier section to west Ram + 6' X 24' floats to east width 68' maximum footprint width 12' maximum footprint width Float 6' X 24' 12' X 28' array Note 1 Two outhaul posts added west of floats Note 2 Sections C—C and D—D side views not shown on plan i Fes- MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET, P. O. BOX 665 WEST HARWICH,MA. 02671 TEL. (508) 430-1900 FAX(508)430-8662 EMAIL: mdfesq@capecod.net By Hand July 18, 2002 Conservation Commission 0 M` ate Town Hall 200 Main Street JUL 18 Hyannis, MA 02601 to BARNSTABLE COt qSERVAT1ON Re: Michael Ohanian and Virginia Ohanian, Trustees 135 South Bay Realty Trust 135 South Bay Road, Osterville Barn. Assessor's Map 93, Parcel 64 r { DEP # SE3-3237 a AUG Dear Members of the Commission: DAT"- Please accept this letter and the accompanying plans as a formal request to hold a public hearing for the purpose of considering revised plans for the construction of a pier, ramp and float at the Ohanian premises at 135 South Bay Road, Little Island, Osterville. By way of background, in July of 1997 the Ohanians filed a Notice of Intent(SE3-3237)with the Commission to construct a boardwalk/pier with access steps extending 168 feet, including 98 feet from Mean Low Water, together with a 6 ft. x 32 ft. L float with 4 bays and a 6 ft. x 24 ft. float with ramp. The plan called for a single permanent pier with 12 ft. spacing and one L with double piling to provide stability for mooring. The Commission, after public hearing, under a decision dated December 12, 1997, issued an Order of Conditions denying the project both under the State Wetlands Protection Act and Article 27 of the Town of Barnstable Ordinances. The Ohanians.caused appeals to be filed to DEP under the State Act and to the Barnstable Superior Court under the local Ordinance,the latter being styled Michael Ohanian, et al v. Elizabeth Clark, et al. Barnstable Superior Court No. 98-97. The DEP, after consideration, issued a Superceding Order permitting the project to go forward. The Commission appealed the Superceding Order requesting an administrative hearing which has been stayed pending the outcome of the local by-law case. The Superior Court on March 9, 2000, after hearing,set aside the decision of the Commission and ordered the Commission to issue an Order of Conditions permitting the Ohanians to proceed with the project per the plans on file. The Town then caused an appeal of the Superior Court judgment to be filed with the Massachusetts Appeals Court. The Ohanians and the Town of Barnstable participated in the Massachusetts Appeals Court Conference program for the purpose of attempting to mediate a resolution of the matter. As a result '.Conservation Commission July 18, 2002 Page 2 of that process,the Ohanians have caused plans for the pier to be revised to include the construction of a seasonal timber pile pier extending approximately 72 ft. from Mean High Water with a 14 ft. x 3 ft. ramp down to 1 float, 12 ft. x 28 ft. Those revisions are shown.on the plans filed herewith prepared by Baxter,Nye and Holmgren, Inc. and revised as of July 5, 2001. It is my understanding that this matter will be considered at your meeting scheduled for August 13, 2002. If you have any questions,please do not hesitate to contact me. Very y yours, Michael D. Ford MDF/mbf Enclosures cc: Michael Ohanian T. David Houghton, Asst. Town Attorney Stephen Wilson, P.E. MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET, P. O. BOX 665 WEST HARWICH,MA. 02671 TEL. (508)430-1900 FAX(508)430-8662 EMAIL: mdfesq@capecod.net . ABUTTER NOTIFICATION LETTER As an abutter within 300 feet of a proposed project,please be advised that the Town of Barnstable Conservation Commission will reconsider the application for the following proposed project: Applicant: 135 South Bay Road Realty Trust Michael Ohanian and Virginia Ohanian, Trustees Project Location: 135 South Bay Road, Osterville Proposed Project: Construction of seasonal pier, ramp and float. Applicant's Agent: Michael D. Ford, Esq. 72 Main Street, P.O. Box 665 `West Harwich, MA 02671 phone (508)430-1900 Public Hearing: Date: August 13, 2002 Time: 6:30PM Place: Barnstable Town Hall, Hyannis, MA 2°d Floor conference room Plans and the application describing the proposed activity are on-file at the Town of Barnstable Conservation Commission office at 200 Main Street, Hyannis (phone #508-862-4043), at Peter Sullivan's office, 7 Parker Road, Osterville, and at Attorney Ford's office. Please call if you have any questions regarding this application. r xu 9J O+o * ' 47 inl 41 77 wa93 ina .. ins -itb5 rv93 58-5 i29 s ' ❑ II Nu93 ` 58 8 586 59 9-1 wale 36 i46 93 i is3 in 5#0 � (\ 111 I'mSg93 1 / �\. 65 587 s 54, + -.NL\'lAL wa93 II I I W93 - ' — 1 II 1 �� x I W93 42-3 II II x ❑ x W 47 '� 1 in xu93 IY��11 i4 1 64 I s f � I i 134 O% I o x I \ '� I\ - AJL - MAP 093 PARCEL 064 W-*E With 300" Buffer s *NOTE: Planimetrics,topography,and **NOTE: The parcel lines are only graphic representations DATA SOURCES: Planimetrics(man-made features)were interpreted from 1995 aerial photographs by The James vegetation were mapped to meet National of property boundaries. They are not true locations,and W.Sewall Company. Topography and vegetation were interpreted from 1989 aerial photographs by GEOD Map Accuracy Standards at a scale of do not represent actual relationships to.physical objects Corporation. Plonimetrics,topography,and vegetation were mapped to meet National Map Accuracy Standards on the map. at a scale of 1"=100'. Parcel lines were digitized from FY2002 Town of Barnstable Assessor's tax mops. r Abutters Within 300' of Map 093 Parcel 064 This list by itself does NOT constitute a certified list of abutters and is provided only as an aid to the determination of abutters. The requestor of this list is responsible for ensuring the correct notification of abutters. Owner and address data taken from Assessor's database March 8,2002. Mappar Ownerl Owner2 Address City State Zip Country 093044 FIREMAN,PAUL&PHYLLIS %PFP ASSOC SUITE 905 1601 FORUM PLACE W PALM BEACH FL �33401 093045001 LANE,CAROLYN C 132 SOUTH BAY RD OSTERVILLE MA �0265 1 5 093047 MARKEY,WILLIAM F JR&ELAINE K 129 LITTLE ISLAND DR OSTERVILLE �MA �02655 093056 BARNSTABLE CONSV FOUND INC P O BOX 224 COTUIT MA �02635 093057 DEWITT,M&SCHULTZ&FARRINGTON &BARNSTABLE LAND TRUST INC 143 TURTLEBACK RD MARSTONS MILLS MA 02648 093058005 �MARKEY,ELAINE K 29 LITTLE ISLAND DR OSTERVILLE MA �02651 093058006 FORD,PETER B&SARA S 43 LITTLE ISLAND DR OSTERVILLE �MA �02655 093058007 �DACEY,BRIAN T TR LOT NO 7 WEST BAY NOMINEE P O BOX 95 CENTERVILLE MA �02632 TRUST 093058008 rYNOLDS,MADELYN L 46 LITTLE ISLAND DR OSTERVILLE �MA �02655 093064 OHANIAN,VIRGINIA TRS 350 S OCEAN BLVD 18B �BOCA RATON FL �33432 093065 ELIO,ELAINE %ROBERTS,CRISTINA E 121 SOUTH BAY RD OSTERVILLE MA �02655 093066 HOMESTEAD PROPERTIES INC 764 PLAIN ST MARSHFIELD MA 02050 Monday,June 24,2002 Pagel oft r' LAW OFFICES OF JOHN R. ALGER, P.C. ATTORNEY AT LAW 886 MAIN STREET P. O. BOX 449 OSTERVILLE. MA 02655-0449 TELEPHONE(508)428-8594 FAX (508) 420-ZIS2 July 19, 2000 JUL 20 20ou IBARNSTABLE C0"1SE2VAT10;',1 Mr. Robert W. Gatewood -- —_ Conservation Administrator Barnstable Conservation Commission 367 Main Street Hyannis, MA 02601 Dear Rob: Among our pier files on appeal is the Ohanian pier(SE 237). This, I believe, was approved under 131 and denied under the town. The appeal in the Superior Court is being scheduled for a pretrial hearing. Do you think it would be advantageous to bring this back for rehearing before the board? Also the in the O'Keeffe appeal(SE3-3301), the land has been purchased by Rewey and the abutter to the east, Hull, is interested in filing an application for a joint pier. This, of course, is what the Conservation Commission has been advocating. It would eliminate an existing float. Do you think there is any advantage to bringing it back before your committee? Very truly yours, JRA/bt c.c. Sullivan Engineering, Inc. TOWN OF BARNSTABLE : snar+sr�ete. • OFFICE OF TOWN ATTORNEY MAR 15 2000 [Vj MASS peg 367 MAIN STREET rECM�� HYANNIS, MASSACHUSETTS 02601-3907 BARNSTABLE CONSERVATION ROBERT D. SMITH, Town Attorney TEL. (508)862-4620 RUTH J. WEIL, Assistant Town Attorney FAX#(508) 862-4724 CLAIRE R. GRIFFEN, Legal Assistant THERESA M. CAHALANE, Legal Clerk March 14, 2000 Mrs. Phyllis A. Day, Clerk Barnstable Superior Court, Civil County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630 Re: C.A. No. 98-97, Barnstable Superior Ct. Ohanian, et al v. Strauss, etc. Conservation Commission Our File Ref: #98-0025 Dear Mrs. Day: Enclosed is the Barnstable Conservation Commission's Notice of Appeal on behalf of said Defendants in the above matter which we would appreciate your filing. Thank you. Sincerely, RJW:cg uth J.Weil, 1st ssistant Town Attorney Encs. own of Barnstable cc: Michael D. Ford, Esq. cc: Conservation Commission [98-0025Wayappi2j O COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-97 --------------------------------------------------------- MICHAEL OHANIAN and VIRGINIA OHANIAN, Trustees of 135 SOUTH BAY ROAD REALTY TRUST, NOTICE OF APPEAL. Plaintiffs, a V. DR. ERIC G. STRAUSS, AUDREY A. OLMSTEAD, ELISABETH EATON ) CLARK, ROY CATIGNANI, ALBERT 0. ) BARBOUR, EDWARD 0. HANDY, as they ) are Members of the BARNSTABLE ) CONSERVATION COMMISSION, ) Defendants. ) --------------------------------------------------------- NOTICE IS HEREBY GIVEN, that the Defendants, Dr. Eric G. Strauss, et al., as they are Members of the BARNSTABLE CONSERVATION COMMISSION, hereby appeal to the Appeals Court from: (1) the Memorandum of Decision and Order on Plaintiffs Motion for Judgment on the Pleadings of this Court [J. Connon] entered with this Court on December 10, 1999; and, (2) the Judgment on Findings of the Court [J. Connon] entered with this Court on March 9th, 2000. Dated: March 14, 2000. STRAUSS, et al, CONSERVATION COMMISSION, Defendants, By th ' Attorneys, OBERT D. SMIT T n Atto ney [B.B.O. No. 469980 RUTH J. WEIL, 1st Assistant Town Attorney [B.B.O. No. 5192851 [98-00251notcap12] d 1 T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 862-4620; (508) 862-4724 Fax TO: Michael D. Ford, Esq. [B.B.O. No 174440] Attorney for Plaintiffs 72 Main Street, P.O. Box 665 W. Harwich, MA 02671 (508) 430-1900; (508) 430-8662 FAX CERTIFICATE OF SERVICE Barnstable, ss: March 14, 2000. 1 hereby certify under the pains and penalties of perjury, that I caused to be mailed by first-class mailing, postage prepaid, a copy of the Notice of Appeal to the attorney for plaintiffs on the date written above. Claire riffen Le a sistant Town of Barn le 367 Main Street, New Town Hall Hyannis, Ma 02601-3907 (508) 862-4620; (508) 862-4724 Fax I [98-00251notcapl2i TOWN OF BARNSTABLE BARNSTABLE. OFFICE OF TOWN ATTORNEY MASS peg 367 MAIN STREET rtoi " HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)862-4620 RUTH J. WEIL, Assistant Town Attorney FAX#(508)862-4724 CLAIRE R. GRIFFEN, Legal Assistant January 10, 2000 THERESA M. CAHALANE, Legal Clerk Ms. Deneen Simpson, Docket Clerk JAN 1 12000 Department of Environmental Protection FN ' One Winter Street - 10th Floor BARNSTABLE CONSERVATION Boston, MA 02108 Re: DEP File No. SE3-3237 Docket No. 98-174 - Status Report on Mtr. of Michael Ohanian, et ano, etc., App I Ica nts-Petitioners and Barnstable Conservation Comm- 'on; and DEP Our File Ref: #98-0025 Dear Ms. Simpson: Enclosed herewith please find the Barnstable Conservation Commission's Status Report with attachment, together with the Certificate of Service in the above action which we would appreciate your filing with the Department. Thank you. Sincerely, RJW:cg Ruth J. Weil, 1st Assistant Town Attorney Encs. Town of Barnstable cc: Michael D. Ford, Esq. cc: Daniel d'Hedouville, Esq., DEP cc: Mr. Mitch Ziencina, DEP Staff Southeast Regional Office [98-00251depstat4] r COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION BARNSTABLE, ss: Docket No. 98-174 File No. SE 3-3237 In the Matter ) BARNSTABLE CONSERVATION of ) COMMISSION'S STATUS REPORT FILED PURSUANT MICHAEL OHANIAN and ) TO ORDER OF VIRGINIA OHANIAN, TRUSTEES, ) ADMINISTRATIVE 135 BAY ROAD REALTY TRUST, ) LAW JUDGE DATED Petitioners. ) MAY 18, 1999. NOW COMES the Barnstable Conservation Commission and pursuant to the Order of the Administrative Law Judge dated May 18, 1999, states that with regard to the status of the pending Superior Court action involving the appeal under the Town of Barnstable local wetlands protection ordinance, this matter was heard in the Barnstable Superior Court on the Plaintiffs' (Petitioners herein) . Motion for Judgment on the Pleadings on October 22, 1999 (having been continued from September 27, 1999). By decision dated December 10, 1999, this Court ruled in favor of the Applicants herein. On or about December 28, 1999, the Defendant, Barnstable Conservation Commission, filed a Notice of Appeal. (See copy of Notice of Appeal attached hereto). Dated: January 10, 2000. [98-0025/status4] 1 r t ' BARNSTABLE CONSERVATION COMMISSION, TOWN OF BARNSTABLE, By their Attorneys, /ROBERT D. SM T , Town Attorney [B.B.O. No. 469 0] RUTH J. WEIL, 1st Assistant Town Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: (All Parties on Service List) SERVICE LIST Deneen Simpson, Docket Clerk Office of Administrative Appeals DANIEL d'HEDOUVILLE, Esq. Dept. of Environmental Protection Attorney for D.E.P. One Winter Street, Third Floor DEP Southeast Regional Office Boston, MA 02108 20 Riverside Drive Lakeville, MA 02347 Michael D. Ford, Esq. Attorney at Law MITCH ZIENCINA, D.E.P. Staff 72 Main Street DEP, Southeast Regional Office P.O. Box 665 20 Riverside Drive W. Harwich, MA 02671 Lakeville, MA 02347 CERTIFICATE OF SERVICE BARNSTABLE, ss: January 10, 2000 1 hereby certify under the pains and penalties of perjury that I caused to be mailed by first-class mailing, postage prepaid, a copy of status report to all parties on the service list, on the dataDwrititen. ff , Assistant Town of B ,_able [98-0025/status4] 2 r y . 1 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-97 MICHAEL OHANIAN and VIRGINIA OHANIAN, Plaintiffs, NOTICE OF APPEAL. V. DR. ERIC G. STRAUSS, AUDREY A. OLMSTEAD, ELISABETH EATON CLARK, ROY CATIGNANI, ALBERT 0. ) . BARBOUR, EDWARD 0. HANDY, as they) are Members of the BARNSTABLE ) CONSERVATION COMMISSION, ) Defendants. ) NOTICE IS HEREBY GIVEN, that the Defendants, Dr. Eric G. Strauss, et al., as they are Members of the BARNSTABLE CONSERVATION COMMISSION, hereby appeal to the Appeals Court from the Order of this Court [J. Connon] entered with this Court on December 10, 1999. Dated: December 28, 1999. STRAUSS, et al, CONSERVATION Defendants, COMMISSION, By t Attorneys, OBERT D. M TH, Town Attorney B.B.O. No. 4 9 80] RUTH J. WEIL, 1 st Assistant Town Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 862-4620,, (508) 862-4724 Fax Pa2ftotcaPO r , TO: Michael D. Ford, Esq. [B.B.O. No 174440] Attorney for Plaintiffs 72 Main Street, P.O. Box 665 W. Harwich, MA 02671 (508) 430-1900; (508) 430-8662 FAX CERTIFICATE OF SERVICE December 28, 1999. Barnstable, ss: I hereby certify under the pains and penalties. of perjury, that I caused to be mailed by first-class mailing, postage prepaid, a copy of the Notice of Appeal to the attorney for plaintiffs on the date written above. Aaire Assistantn table 367 Main Street, New Town Hall Hyannis, Ma 02601-3907 (508) 862-4620; (508) 862-4724 Fax [%M25VWtMPQ TOWN OF BARNSTABLE BARNSTABLE. • OFFICE OF TOWN ATTORNEY e 9 `e8 367 MAIN STREET �Eowu+" HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)862-4620 RUTH J. WEIL, Assistant Town Attorney FAX#(508)862-4724 CLAIRE R. GRIFFEN, Legal Assistant THERESA M. CAHALANE, Legal Clerk December 28, 1999 Mrs. Phyllis A. Day, Clerk Barnstable Superior Court, Civil County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630 Re: C.A. No. 98-97, Barnstable Superior Ct. Ohanian, et al v. Strauss, etc. Conservation Commission Our File Ref: #98-0025 Dear Mrs. Day: Enclosed is the Barnstable Conservation Commission's Notice of Appeal on behalf of said Defendants in the above matter which we would appreciate your filing. Thank you. Sincerely, G ' c RJW:cg Ruth J. Weil, 1 st Assistant Town Attorney Encs. Town of Barnstable cc: Michael D. Ford, Esq. i cc: Conservation Commission O c JAN 5 2000 ' BARNSTABLE CONSERVATION (98-00251dayapear) COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-97 --------------------------------------------------------- MICHAEL OHANIAN and VIRGINIA OHANIAN, Plaintiffs, NOTICE OF APPEAL. V. DR. ERIC G. STRAUSS, AUDREY A.. OLMSTEAD, ELISABETH EATON CLARK, ROY CATIGNANI, ALBERT O. BARBOUR, EDWARD O. HANDY, as they) are Members of the BARNSTABLE ) CONSERVATION COMMISSION, Defendants. --------------------------------------------------------- NOTICE IS HEREBY GIVEN, that the Defendants, Dr. Eric G. Strauss, et al., as they are Members of the BARNSTABLE CONSERVATION COMMISSION, hereby appeal to the Appeals Court from the Order of this Court [J. Connon] entered with this Court on December 10, 1999. Dated: December 28, 1999. STRAUSS, et al, CONSERVATION COMMISSION, Defendants, By t Attorneys, OBERT D. M TH, Town Attorney B.B.O. No. 4 9 80] RUTH J. WEIL, 1st Assistant Town Attorney [B.B.O. No. 5192851 T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 2411601 TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 862-4620: (508) 862-4724 Fax [98-002Riotcapl] TO: Michael D. Ford, Esq. [B.B.O. No 1744401 Attorney for Plaintiffs 72 Main Street, P.O. Box 665 W. Harwich, MA 02671 (508) 430-1900; (508) 430-8662 FAX CERTIFICATE OF SERVICE Barnstable, ss: December 28, 1999. 1 hereby certify under the pains and penalties of perjury, that I caused to be mailed by first-class mailing, postage prepaid, a copy of the Notice of Appeal to the attorney for plaintiffs on the date written above. aire riff Assistant Town of Ba n table 367 Main Street, New Town Hall Hyannis, Ma 02601-3907 (508) 862-4620; (508) 862-4724 Fax i [98-00251Aotcapl] TOWN OF BARNSTABLE BARNSTABLE. ' OFFICE OF TOWN ATTORNEY MASS `eS 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)862-4620 RUTH J. WEIL, Assistant Town Attorney FAX#(508)862-4724 CLAIRE R. GRIFFEN, Legal Assistant November 12, 1999 THERESA M. CAHALANE, Legal Clerk Ms. Deneen Simpson, Docket Clerk Department of Environmental Protection One Winter Street - 10th Floor Boston, MA 02108 Re: DEP File No. SE3-3237 Docket No. 98-174 Mtr. of Michael Ohanian, et ano, etc., Applicants-Petitioners and Barnstable Conservation Commission,✓and DEP Our File Ref: #98-0025 Dear Ms. Simpson: Enclosed herewith please find the Barnstable Conservation Commission's Status Report together with the Certificate of Service in the above action for service of the same upon those listed on the attached Service List in said status report, which we would appreciate your filing with the Department. Thank you. Sincerel , RJW:cg Ruth J. Weil, st Assistant Town Attorney Encs. I Town of Barnstable cc: Michael D. Ford, Esq. (For Applicants) cc: Daniel d'Hedouville, Esq., DEP cc: Mr. Mitch Ziencina, DEP Staff Southeast Regional Office D LBAR NOV 161999 NSTABLE CONSERVATION [98-00251depstat3] COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION BARNSTABLE, ss: Docket No. 98-174 File No. SE 3-3237 In the Matter ) BARNSTABLE CONSERVATION of ) COMMISSION'S STATUS REPORT FILED PURSUANT MICHAEL OHANIAN and ) TO ORDER OF VIRGINIA OHANIAN, TRUSTEES, ) ADMINISTRATIVE 135 BAY ROAD REALTY TRUST, ) LAW JUDGE DATED Petitioners. ) MAY 18, 1999. NOW COMES the Barnstable Conservation Commission and pursuant to the Order of the Administrative Law Judge dated May 18, 1999, states that with regard to the status of the pending Superior Court action involving the appeal under the Town of Barnstable local wetlands protection ordinance, this matter was heard in the Barnstable Superior Court on the Plaintiffs' (Petitioners herein) Motion for Judgment on the Pleadings on October 22, 199 (having been continued from September 27, 1999). The court took the matter under advisement. Dated: November 12, 1999. BARNSTABLE CONSERVATION COMMISSION, TOWN OF BARNSTABLE, By their Attorneys, Z�- /ROBERT D. SMITH, Town Attorney [B.B4O. No. 4699801 [98-0025/status3] 1 RUTH J. WEIL, 1st Assistant Town Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: (All Parties on Service List) SERVICE LIST Deneen Simpson, Docket Clerk Office of Administrative Appeals DANIEL d'HEDOUVILLE, Esq. Dept. of Environmental Protection Attorney for D.E.P. One Winter Street, Third Floor DEP Southeast Regional Office Boston, MA 02108 20 Riverside Drive Lakeville, MA 02347 Michael D. Ford, Esq. Attorney at Law MITCH ZIENCINA, D.E.P. Staff 72 Main Street DEP, Southeast Regional Office P.O. Box 665 20 Riverside Drive W. Harwich, MA 02671 Lakeville, MA 02347 CERTIFICATE OF SERVICE BARNSTABLE, ss: November 12, 1999 1 hereby certify under the pains and penalties of perjury that I caused to be mailed by first-class mailing, postage prepaid, a copy of the status report to all parties on the service list, on the date above written. ire riffen, Leg IXMistant Town of Barn 367 Main Street, New Town Hall Hyannis, MA 02601-3907 i [98-0025/status3J 2 TOWN OF BARNSTABLE BARNSTABLE. • OFFICE OF TOWN ATTORNEY 639. 1 ' 367 MAIN STREET °j9 HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)862-4620 RUTH J. WEIL, Assistant Town Attorney FAX N(508) 775.3344 CLAIRE R. GRIFFEN, Legal Assistant September 9, 1999 THERESA M. CAHALANE, Legal Clerk Ms. Deneen Simpson, Docket Clerk 1SEP - 9 1999 Department of Environmental Protection One Winter Street - 1 Oth Floor Boston, MA 02108 BARNSTABLE CONSERVATION Re: DEP File Noy SE3-3237 Docket No. 98-174 Mtr. of Michael Ghanian,;et ano, etc., Applicants-Petitioners and4arnstable Conservation Commission and DEP Our File Ref: #98-0025 Dear Ms. Simpson: Enclosed herewith please find the Barnstable Conservation Commission's Status Report together with the Certificate of Service in the above action for service of the same upon those listed on the attached Service List, which we would appreciate your filing with the Department. Thank you. Sincerely, RJW:cg Ruth J. Weil, A si tant Town Attorney Encs. Town of Barnsta le cc: John R. Alger, Esq. (For Applicants) cc: Daniel d'Hedouville, Esq., DEP cc: Mr. Mitch Ziencina, DEP Staff Southeast Regional Office [98-00251depstat2J t• COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION BARNSTABLE, ss: Docket No. 98-174 File No. SE 3-3237 In the Matter BARNSTABLE CONSERVATION of COMMISSION'S STATUS REPORT MICHAEL OHANIAN and FILED PURSUANT VIRGINIA OHANIAN, TRUSTEES, TO ORDER OF 135 BAY ROAD REALTY TRUST, ADMINISTRATIVE Petitioners. LAW JUDGE DATED MAY 18, 1999. NOW COMES the Barnstable Conservation Commission and pursuant to the Order of the Administrative Law Judge dated May 18, 1999, states that with regard to the status of the pending Superior Court action involving the appeal under the Town of Barnstable local wetlands protection ordinance, the matter is scheduled for hearing in the Barnstable Superior Court on the Plaintiffs' (Petitioners herein) Motion for Judgment on the Pleadings on September 27, 1999. Dated: September 9, 1999. BARNSTABLE CONSERVATION COMMISSION, TOWN OF BARNSTABLE, By their Attorneys, RO ERT D. SM , Town Attorney [B.B.O. No. 469 80] RUTH J. WEIL, Assistant Town Attorney [B.B.O. No. 519285] TOWN OF BARNSTABLE [9ND251s1atus2J 1 I 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: (All Parties on Service List) SERVICE LIST Deneen Simpson, Docket Clerk Office of Administrative Appeals Dept. of Environmental Protection One Winter Street, Third Floor Boston, MA 02108 (617) 556-1003; (617) 556-1064 Fax John R. Alger, Esq., P.C. Attorney at Law 886 Main Street P.O. Box 449 Osterville, MA. 02655-0449 (508) 428-8594; (508) 428-3162 Fax DANIEL d'HEDOUVILLE, Esq. Attorney for D.E.P. DEP Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 MITCH ZIENCINA, D.E.P. Staff DEP, Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 [98-0025/status2l 2 I CERTIFICATE OF SERVICE BARNSTABLE, ss: September 9, 1999. 1 hereby certify under the pains and penalties of perjury that I caused to be mailed by first-class mailing, postage prepaid, a copy of the status report document to all those identified in the above-cited service list at the addresses designated by them for that purpose on the date above written. r_� 6, C ire Griffen, egal Ass s ant Town of Bar q Sable 367 Main Street, New Town Hall Hyannis, MA 02601-3907 [98-0025/status2] 3 TOWN OF BARNSTABLE RAN ABLC. • OFFICE OF TOWN ATTORNEY MASS. ,� 367 MAIN STREET �Eo +� HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)862.4620 RUTH J. WEIL, Assistant Town Attorney FAX N(508)775.3344 CLAIRE R. GRIFFEN, Legal Assistant THERESA M. CAHALANE, Legal Clerk July 29, 1999 D r_-- ALSO BY FAX: (508) 430-8662 i,9UL 2 9 �99G Michael D. Ford, Esq. 13ARNSTABLE CONSERVATiv.• Attorney at Law 72 Main Street P.O. Box 665 W. Harwich, MA 02671 Re: Crocker v Conservation (Our File Ref#98-0116) Re: DeVesto v Conservation (Our File Ref# 98-0117) Re: r_6 ani na v Conservation (Our File Ref#98-0025) Re: Zakin v Conservation (Our File Ref#98-0097) Dear Mike: As a follow-up to your previous letter and our conversations, we need to revise the briefing schedules for the above-entitled matters as soon as possible. Since I believe that hearing dates have been assigned to several of the above- entitled actions, continuances on those hearings will be necessary. (I am advised by Rob Gatewood that the transcript on the Crocker case is in the process of being transcribed and will be filed at the beginning of next week.) I look forward to hearing from you at your earliest convenience. Sin ly, RJW:cg uth J. Well, Assistant Town Attorney Town of Barnstable cc: Barnstable Conservation Commission [98-0025;98-0097;98-0116;98-01171mikdtordl Z MICHAEL D. FORD ATTORNEY AT LAW 72 MAIN STREET,P.O. BOX 665 WEST HARWICH,MA 02671 (j - TEL.(508)430-1900 FAX(508)430-8662 EMAIL:mdfesq@capecod.net ' �Y� July 16, 1999 WN of RARNgTAB(F Ruth J. Weil, Asst. Town Attorney Town Hall 367 Main Street [IV Hyannis, MA. 02601 11999 Re: Michael Ohanian, et al v Barnstable Conservation Commissio L_________� BA RNSTASLEE CO'4SERVAT)0r%j Dear Ruth: I am enclosing pursuant to Superior Court Rule 9A, the following: 1. Plaintiffs' Motion for Judgment on the Pleadings; and 2. Memorandum in Support of Plaintiffs Motion for Judgment on the Pleadings. While I have sent you the Motion and Brief on Crocker and am now sending you the Motion and Brief on Ohanian, I owe you a revised time schedule for these and three other matters. Therefore, consider the time in which you have to respond to both Crocker and Ohanian tolled until I can get to you the first of next week a proposed schedule and something I can agree upon. As always, I appreciate your cooperation and assistance. Very truly yours, Michael D. Ford MDF/ enc. COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT NO. 98-97 MICHAEL OHANIAN AND ) VIRGINIA OHANIAN ) TRUSTEES OF 135 SOUTH BAY ) ROAD REALTY TRUST ) PLAINTIFFS ) VS ) PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS ELISABETH EATON CLARK,ALBERT) O. BARBOUR, EDWARD O. HANDY, ) VIRGINIA D. KEIL, DEBORAH J. ) SHIFLETT-FITTON,JUDITH D. ) HELLER AND ROBERT A. ) LANCASTER, AS THEY ARE ) MEMBERS OF THE BARNSTABLE ) CONSERVATION COMMISSION ) DEFENDANTS ) Plaintiffs,Michael Ohanian and Virginia Ohanian,Trustees of 135 South Bay Road Realty Trust, respectfully move this Court to enter Judgment on the Pleadings pursuant to Massachusetts Rules of Civil Procedure 12(c) and Superior Court Standing Order 1-96. Specifically, Plaintiffs move this Court to issue a Judgment that the Order of Conditions issued by the Defendant Commission be annulled as it is unsupported by substantial evidence in the record. In support of this Motion, Plaintiffs state that the Defendant, Barnstable Conservation Commission has filed the Administrative Record with the Court and that the Administrative Record indicates that the decision of the Defendant,Barnstable Conservation Commission,is not supported by substantial evidence and is not in accordance with the law. Said grounds are more fully set forth in the memorandum of law filed herewith. Respectfully submitted, Plaintiffs, By their Attorney, i Michael D. Ford, Esq. P. O. Box 665 W. Harwich, MA 02671 (508) 430-1900 BBO#174440 cAdata\ohanianmotion. COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT NO. 98-97 MICHAEL OHANIAN AND ) VIRGINIA OHANIAN, ) TRUSTEES OF 135 SOUTH BAY ) ROAD REALTY TRUST ) PLAINTIFFS ) MEMORANDUM IN SUPPORT VS ) OF PLAINTIFFS MOTION FOR JUDGMENT ON THE ELISABETH EATON CLARK, ALBERT) THE PLEADINGS O. BARBOUR, EDWARD O. HANDY, ) VIRGINIA D. KEIL, DEBORAH J. ) SHIFLETT-FITTON,JUDITH D. ) HELLER AND ROBERT A. ) LANCASTER,AS THEY ARE ) MEMBERS OF THE BARNSTABLE ) CONSERVATION COMMISSION ) DEFENDANTS ) I. INTRODUCTION This case involves an appeal filed pursuant to M.G.L. c. 249 §4 wherein the plaintiffs, Michael Ohanian and Virginia Ohanian, Trustees (hereinafter "plaintiffs" or "Ohanian"), seek review of an Order of Conditions issued by the Barnstable Conservation Commission ("Commission")which denied the Ohanians a permit to construct a boardwalk and pier with access steps at their waterfront property located at 134 South Bay Road in Osterville,Massachusetts. The plaintiffs contend that the Commission's Order denying the proposed project is arbitrary and capricious and not in accordance with the law before the Commission. The plaintiffs further -1- I contend that the Commission based its decision on findings that are unsupported by competent evidence; and on factors not relevant to the interests protected by the Town Ordinance; committed errors of law and exceeded its authority in seeking to regulate public trust rights in "tidelands," a subject reserved to the Commonwealth pursuant to M.G.L. c. 91. II. STATEMENT OF THE CASE The Ohanians are the owners of residential property located at 134 South Bay Road, Osterville, Massachusetts ("the Property"). On July 2, 1997 the Ohanians in accordance with the Wetlands Protection Act,G.L.c. 131, §40 ("the Act") and the Town of Barnstable Wetlands Protection Bylaw, Article 27 (the "Town Ordinance"), filed a Notice of Intent with the Commission to construct a boardwalk and pier with access steps extending 98 feet from mean low water together with a 602' ell and one 6'x24' float ramp. (A.R. 1)' The Commission held public hearings on the Notice of Intent on September 9, 1997 and November 25, 1997. (A.R. 16) At the public hearings,agents of the Ohanians presented evidence in support of the project, including evidence that the proposed work met all of the requirements of the Town Ordinance and the Commission's pier regulations. These agents included, a registered professional engineer from Baxter & Nye, Inc. 812 Main Street, Osterville, MA. 02655 and George Hampson, a Shellfish Biologist of P. O. Box 323,North Falmouth, MA. 02356. On December 15, 1997, the Commission issued a Decision denying the project. (A.R.11) 'All references to the Administrative Record filed by the Commission are identified as "A.R." with the appropriate tab number cited therein. -2- The Plaintiff filed an appeal with the Department of Environmental Protection for a Superseding Order of Conditions under the Act.2 This action relates to the Commission's denial under the Town Ordinance. III. STATEMENT OF THE FACTS The proposed pier was designed as a single pile pier, cantilevered and structured in accordance with the Regulations and Guidelines of the Commission. (A.R. 16, Trans. 11/25/97 p. 1; A.R. 9-plan) The single pilings would have 12 foot spacing to minimize bottom displacement and disturbance with only one ell with double pilings to provide stability for mooring. (A.R.1, p. 3-5) The pier would provide berthing for the Ohanians power boat, a boat picked precisely for this location because of its draft. (A.R. 16,Trans. 11/25/97,p. 2) Further,the evidence indicated that the pier would be located in a corner of West Bay with minimal boat traffic and would not interfere with navigation. (A.R. 1; A.R. 12). The Town of Barnstable Natural Resources Division conducted a shellfish survey of the area on August 9, 1997. The report noted that the Natural Resources Division had recently designated the area as relay area and deposited 548 eighty pound bushels of contaminated quahogs to the area during the Spring of 1997. As a result the survey revealed substantial amounts of relayed quahogs in the area. The quahogs are polluted and have been deposited on the property to purify themselves. The area has been posted with signs reading "NOTICE CLOSED TO SHELLFISHING AREA PLANTED WITH CONTAMINATED SHELLFISH." The Resources Division was not in favor of the pier. (A.R. 7) Mr. Hampson, the Shellfish Biologist, conducted a thorough shellfish survey of the area. 'The Department of Environmental Protection issued a Superseding Order of Conditions on December 4, 1998 approving the proposed pier under the State Act. -3- (A.R. 10) He uses a small quadrant and puts it through a fine mesh in order to tell the small individuals. (A.R. 16, Trans. 11/25/97, p. 3 & 4) Mr. Hampson found very low densities of shellfish in the inshore area. In the more seaward locations quahogs mostly of adult size were found. He found very few one inch,one and a half inch,and even very few two inch clams. In one square yard, Mr. Hampson found 27 two and a half inch quahogs and 41 three inch or greater quahogs, for a total of 74 quahogs in one square yard. Mr. Hampson noted that this was unique to the area and it indicated to him that this was a transplanted area. Although Mr. Hampson was aware that this was a transplanted area he was still quite surprised at the actual numbers of the transplanted shellfish. The survey showed that there were very few,young,natural shellfish in the area. In addition, Mr. Hampson found no evidence of eelgrass growing within the immediate area and no evidence of bay scallops or oysters. Mr.Hampson concluded that most of the shellfish were transplanted stock. (A.R. 10, A.R. 16, Trans. 11/25/97, p. 3&4) Further,during his surveys Mr. Hampson observed shell.fishermen within the area working under and around neighboring docks. Mr. Hampson determined that the proposed dock using the single piles would offer little or no impediment to the settling of shellfish larvae or the harvesting of shellfish. (A.R. 10 and 16,Trans. 11/25/97,p. 3&4) In short,Mr.Hampson concluded that this pier would do minimal disturbance to the water, would not affect the harvesting of shellfish and would not interfere with the replacement of the shellfish by other shellfish brought to the relay area.(A.R. 16, Trans. 11/25/97, p. 8) The Division of Marine Fisheries also reviewed the notice of intent for the proposed pier and the shellfish survey conducted by the Barnstable Natural Resources Division and submitted a letter noting that it opposes private recreational boating facilities in significant shellfish resource areas. The Division asked the Commission to consider the environmental effects of the proposed pier -4- before issuing a decision. (A.R. 8) The Division of Maine Fisheries apparently did not review the findings of Mr.Hampson the Shellfish Biologist,who,as noted above, found that most of the stock had been transplanted. IV. ARGUMENT A. STANDARD OF REVIEW General Laws c. 249 §4 permits an aggrieved party to bring an action in the nature of certiorari to correct errors in proceedings which are not otherwise reviewable by motion or by appeal.Cepulonis v. Commissioner of Correction,15 Mass.App.Ct.292,293(1983). The court may affirm or quash such proceedings or make "such other judgment as justice may require." The standard of review in certiorari cases is determined according to"the nature of the action sought to be reviewed". Id. When considering a local conservation commission's action pursuant to a wetlands bylaw, the Massachusetts Courts apply the substantial evidence test. See Lovequist v. Conservation Commission of Dennis, 379 Mass. 7, 17 (1979)18; Boston Edison Company v. Board of Selectmen of Concord,355 Mass.79(1968). To be acceptable the Commission's decision must rest upon substantial evidence on the record. Wolbach v.Beckett,20 Mass.App.Ct. 302,308, Rev. denied, 396 Mass. 1102(1985). "Substantial evidence"means "such evidence as a reasonable mind might accept as adequate to support a conclusion." Bunte v. Mayor of Boston,361 Mass. 71, 74 (1972). The Court may only consider evidence that was before the Commission in order to determine whether its decision was supported by substantial evidence. The Commission's action must be responsive to the application and its "decision must contain definite statement of rational causes and motives,founded upon adequate findings." MacGibbon v.Board ofAppeals ofDuzbury, 347 Mass.690,692(1964). Accordingly,the standard of review in this case is to determine whether -5- i the Commission's findings were supported by substantial evidence on the record as a whole. B. THE TOWN ORDINANCE,ARTICLE 27 The Barnstable Wetlands Protection Bylaw was enacted by the Town under its home rule powers to regulate work in and around wetlands more strictly than the State's Wetlands Protection Act. See e.g. Loveguist v. Conservation Commission of Dennis, 379 Mass. 7, 12-15 (1979). In addition to the interests protected under the Act, the Town Ordinance also includes protection for recreation and public trust rights. (A.R.13 ) Section 6 of the Town Ordinance provides, in pertinent part, that: "If the commission, after a public hearing, determines that the proposed activities which are the subject of a notice of intent are not likely to have a significant or cumulative effect on the wetlands values protected by this bylaw, the commission . . . shall issue a permit for the activities requested . . ." (A.R. 13) Moreover, if a project has an affect on wetlands interests a denial of a permit under the Town Ordinance is appropriate only where no conditions are adequate to protect those interests. (A.R. 13, Sec. 6). The Commission has also promulgated regulations entitled"Regulations for Private Piers and Docks"(Amended June 5, 1990),which establish performance standards for private piers and docks. The Pier Regulations specifically provide that the Commission consider any and all pier proposals on"a site specific basis,disposing of each according to its merit and the degree to which statutory interests have been protected and preserved at the locus." (A.R.16) C.THE DECISION OF THE COMMISSION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD. 1 The pier would not have an unacceptable effect on shellfish interests. The Commission's Decision included a finding that the pier would pose a significant -6- f adverse cumulative impact to the preservation and maintenance of the high levels of natural shellfish productivity of the area. This finding ignores the fact that most of the shellfish at the site were placed there by the Town of Barnstable Natural Resources Division as a relay area for polluted shellfish. The polluted shellfish are deposited on the beach and cannot be harvested until they purify themselves. The area has been marked with prominent signs warning that the area has been planted with contaminated shellfish. Thus, it is grossly misleading and incorrect to characterize this area as high in natural shellfish. The habitat is not natural - it is man-made. The Commission also found that the loss of existing and productive shellfish habitat by pile placement represented an immitigable and unacceptable loss of said habitat. Again this area is a man-made habitat of polluted shellfish. Hence, there will be no loss of an "existing" habitat. Moreover, Mr. Hampson, the Shellfish Biologist found that the single pile pier would not impede the growing or harvesting of shellfish (A.R. 8). In addition, the Ohanians proposed that any. shellfish encountered in the area of the dock would be removed and replanted at the discretion of the Department of Natural Resources. (A.R.1, P. 3-5) Thus any effect from the piles would be de minimis. The finding that the pier posed a significant adverse affect due to shading and habitat loss stemming from pile emplacement and turbidity and scouring is not supported by evidence in the record. Indeed there was no evidence whatsoever on shading or bottom scouring. As noted above the Ohanians picked a specific boat that would be appropriate for this particular location. The single pile pier will not impede nor interfere with shellfish settling nor the harvesting of the shellfish. The Commission also found that the pier would pose a significant adverse impact to public trust rights and recreation in that access to the shellfishery is significantly reduced. This finding -7- is inconsistent with the record because there was no evidence that access would be reduced. Indeed,while conducting his shellfish survey,Mr.Hampson observed shellfishermen harvesting in and around nearby piers. (A.R. 8 & 16) Moreover, the size and design of the pier complies with the Commission's Regulations. The pier design includes stairs in the intertidal zone to provide access to those using the area for Colonial Ordinance purposes. (A.R. 9,Plan). Shellfish may still be harvested in, around and under the pier. Pile supports do not limit the raking of shellfish, but rather allow for such harvesting by providing necessary structural stability for such ongoing activities to occur without hazard. Moreover, due to the short summer season boats will not be at the pier on a year-round basis. The pier will not prevent nor prohibit recreational or commercial fishermen from exercising their rights under the Colonial Ordinance. In summary, this particular area has shellfish because it is a relay area with transplanted contaminated shellfish. To deny the pier in the interest of protection of shellfish habitat;on such a basis is arbitrary and capricious and not based on a legally tenable ground. Even assuming that the area at one time supported a natural habitat of shellfish,the pier will not have an adverse impact - it has been designed as a single pile pier to minimize any effect on the area. The pier will not prevent nor impede the Division of Natural Resources from depositing additional relay shellfish in the area. Therefore the pier project should not have been denied in the interests of land containing shellfish and protection of fisheries. 2 There was insufficient evidence for the Commission to deny the pier in the interests of public trust rights and recreation as they pertain_to recreational navigation. Section 11 of the Town Ordinance requires an applicant to prove by a preponderance of credible evidence that the work proposed in the application will not have an unacceptable significant -8- and cumulative effect upon the wetland values. The evidence in the record shows that the Plaintiff met his burden and established that the proposed pier would not have a significant and cumulative effect upon public trust rights and recreation in West Bay. As part of the denial the Commission found that the pier would pose significant adverse cumulative impacts upon recreation and public trust rights in West Bay and in particular on small craft recreational sailboating. The record is devoid of evidence to support this finding. The site of the proposed pier is in a corner of the bay that has minimal boat traffic. (A.R. 1) Indeed this area of West Bay has no moorings because there is no public access to this water to get to the moorings. (A.R. 16,Transcript 11/25/97,p. 10) Further, there were no objections to the pier from abutters or from the local sailing or yacht clubs. In order to control any interference with recreational rights, the pier was designed to comply with the Commission's design guidelines i.e. 100 feet. The pier is entirely within the Guidelines and the Regulations of the Commission.(A.R. 16,Trans. 11/25/97,p. 10) The pier does necessarily occupy space, however, to find on that basis that the pier will adversely affect small sailboats would mean that all piers must be denied. This is not a legally tenable ground to deny the permit where the Ordinance and the Regulations specifically allow piers. In any event, there is absolutely no evidence in the record that recreational navigation will be impaired in any appreciable respect and thus it is clear, considering all the evidence, that this pier will not have a significant effect on recreational navigation. In a recent case, the Reading Conservation Commission approved a project under M.G.L. c. 131 §40 and denied the project under the town's wetland bylaw. The court found that: "Although the commission is entitled to all rational presumptions in favor of its interpretation of its own by-law, there must be a rational relation between its -9- decision and the purpose of the regulations it is charged with enforcing. . . The commission failed to state a legally tenable ground for its denial of the property owner's proposal. The criteria it applied were devised for the occasion, rather than of uniform applicability. Thus flawed, the commission's decision was arbitrary." Fafard v. Conservation Com'n of Reading, 41 Mass. App. Ct. 565, 672 N.E.2d 21 (1996) Likewise in this case, the Conservation Commission acted arbitrarily and failed to state a legally tenable ground for its Decision where the project complied with the Pier Regulations and where the evidence showed that the project would not have an adverse impact on public trust rights and recreation particularly as they pertain to recreational navigation. The Town Ordinance does not require that the proposed activity in a resource area have"no effect," rather the wording is "no significant effect." In this case the record is clear that the pier will not have a significant effect on the wetland interests. The Ohanians met their burden of proof on all the interests protected under the Bylaw showing clearly by a preponderance of the credible evidence that the construction of the pier would not have an unacceptable significant and cumulative effect on the wetland values. 3 The Commission erred in denying the project in the interest of prevention of pollution because the record is devoid of evidence that pollution will result from the proposed pier. There is no evidence in the record that the water pollution will result from the proposed pier. The Commission made no specific findings with respect to this interest other than to note in Finding No. 2 that the area was significant to the prevention of pollution. (A.R. 11) The record is devoid of evidence that the pier will have a negative effect on this interest. Therefore, for the Commission to base its denial on this finding, unsupported by any evidence in the record, is an egregious error of law. -10- i 4 The finding by the Commission that the plaintiff failed to provide adequate evidence to the Commission supporting the burden of proof under Section 11 of the Ordinance is not supported by the substantial evidence in the record. A review of the entire record reveals that the Ohanians met their burden of proof on all the interests protected under the Bylaw showing clearly by a preponderance of the credible evidence, that the construction of the pier would provide them with access to the water for recreational purposes and would not have any unacceptable significant and cumulative effects on the wetland values of shellfish, fisheries,pollution,public trust rights and recreation. 5 The Commission's denial of a permit for the proposed pier has caused the plaintiffs Substantial Injury and Manifest Injustice. The Ohanians have expended considerable sums of money in engineering, legal and permitting costs in their efforts to install a pier at their waterfront property so as to obtain access to the water for recreational navigation purposes. The Town of Barnstable deposited tremendous amounts of contaminated shellfish on the Ohanians waterfront property and then denied them a permit based on the high levels of shellfish brought to that very area by the Town. It is unjust to deny a permit based on a shellfish relay area created by the Town with contaminated shellfish. For a waterfront owner paying substantial taxes this is not a mere technical error on the record- this is a manifest injustice. As a result of the denial the Ohanians will be denied access to the water in front of their home for recreational navigation. The Decision is arbitrary and unjust and must be annulled so as to prevent a material wrong. See Whitney v. Judges of Dist. Court of Northern Berkshire, 271 Mass. 448, 171 N.E.648 (1930). D. THE COMMISSION'S REGULATIONS ARE PRE-EMPTED BY M.G.L. CHAPTER 91. -11- I The Wetlands Protection Act, G.L.c.131 §40, imposes minimum standards and municipalities are free to adopt more stringent local controls.Lovequist v. Conservation Commission of Dennis, 379 Mass. 7 (1979) The Barnstable Wetlands Protection Bylaw was enacted by the Town under its home rule powers to regulate work in and around wetlands more strictly than the State Act. In addition to the interests protected under the Act, the Town Ordinance also includes protection for recreation and public trust rights. As noted above, the Commission has also promulgated regulations entitled "Regulations for Private Piers and Docks" (Amended June 5, 1990), which establishes performance standards for private piers and docks. (A.R. 15) The applicant has the burden of proof to show that no significant adverse effects will occur as a result of the construction or use of a pier. In addition, the Commission has issued "guidelines for new private piers." (A.R. 16) The attempt by the Commission to regulate tidelands in support of the public trust doctrine is pre-empted by G.L.c.91. Municipalities lack authority to adopt regulations that are"inconsistent with . . . laws enacted by the general court." Art. 89 of the Amendments to the Constitution of Massachusetts,section 6. Legislative intent to preclude local action either must be clear,or it"may be inferred if legislation deals with a subject comprehensively."Bloom v. Worcester,363Mass. 136, 155 (1973); See Amherst v. Attorney General, 398 Mass. 793, 796 (1986). Unlike the Wetlands Protection Act, Chapter 91 is not intended to provide a minimum level of protection for certain natural resources, rather it seeks to protect and preserve the ability of citizens to gain access to the water. Chapter 91 deals with the regulation of waterways and it provides mechanisms for balancing the competing needs of the public for the use of tidelands.3 To preserve the ability of the 3G.L.c.91§2 defines "tidelands" as "present and former submerged lands and tidal flats lying below the mean high water mark;" -12- Commonwealth to maintain this balance, Chapter 91 clearly reserves to the Commonwealth authority concerning the regulation of public trust rights in tidelands. A review of Chapter 91 and the regulations promulgated thereunder reveals that the Commonwealth intended to preclude local regulation of navigation in tidal waters in support of the public trust doctrine. See Pearson v. Town of Plymouth, 44 Mass. App. Ct. 741, rev.denied, 427 Mass. 1109 (1998) (Local authority attempt to regulate float airplanes upon great ponds is preempted.) Unlike the Wetlands Protection Act,Chapter 91 is not administered on the local level,except in certain narrowly defined areas. Chapter 91 license applications are submitted to and acted on by the Department of Environmental Protection ( DEP). G.L. c. 91, §14 ("The department may license and prescribe the terms for the construction or extension of a wharf, pier. . ."). The local planning boards may conduct a public hearing and submit a recommendation to DEP and DEP must take the recommendation into consideration. G.L. c.91§18. DEP has promulgated regulations at 310 CMR 9.00 governing the issuance of licenses and permits for permanent structures and temporary moorings or floats in public and private tidelands. DEP adopted the regulations to "establish procedures, criteria and standards for uniform and coordinated administration of the provisions" of G.L. c. 91 §§1-63 and G.L. c. 2 1 A §§2, 4, 8 and 14 (310 CMR 9.01(1) and "to carry out its statutory obligations and responsibility of the Commonwealth for effective stewardship of trust lands..." 310 CMR 9.01(2). Under the DEP "Commonwealth tidelands" are"tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose; " and "Private tidelands" are "tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water." -13- Regulations municipalities may petition DEP for"approval to administer a local permitting program for small structures accessory to residences." 310 CMR 9.07(3). And, in accordance with the provisions of Chapter 91 §10A, the DEP Regulations authorize the local harbor master to issue annual permits for temporary moorings and floats. 310 CMR 9.07. The DEP Regulations provide for a right of appeal from an adverse local decision to DEP which reserves to itself the right to affirm the local decision, set it aside, or amend it by imposing its own conditions as it deems necessary. 310 CMR 9.07(5). Finally, the DEP Regulations authorize cities and towns to adopt "municipal harbor plans"which,when approved by the Secretary of Environmental Affairs under 301 CMR 23.00, become binding on DEP in the issuance of licenses within that jurisdiction. See 310 CMR 9.34. Outside of those limited responsibilities,all of which are subject to state oversight and approval, the rights of municipalities are limited to receiving notice of, and being given the opportunity to comment on,private license applications. The nature of waterways regulations requires the uniformity of approach that Chapter 91 and the DEP Regulations were intended to achieve. Unlike the natural resource protection, the advancement of the public trust rights necessarily requires a balancing of competing interests, including a balancing of navigational interests. DEP reserves to itself, as the Commonwealth's licensing authority the right to strike that balance. Specifically, 310 CMR 9.35(1)provides that: The project shall preserve any rights held by the Commonwealth in trust for the public to use tidelands, Great Ponds and other waterways for lawful purposes; and shall preserve any public rights of access that are associated with such use. In applying this standard the Department shall act in accordance with the provisions of 310 CMR 9.35(2) through(6), and shall give particular consideration to applicable guidance specified in a municipal harbor plan,as provided in 310 CMR 9.34(2)(b)2. Further,in assessing the significance of any interference with public rights pursuant to 310 CMR 9.35(2)and(3),the Department shall take into account that the provision of public benefits by certain water-dependent uses may give rise to some -14- unavoidable interference with certain water-related public rights. Such interference may be allowed provided that mitigation is provided to the greatest extent deemed reasonable by the Department,and that the overall public trust in waterways is best served. The Commission's application of its Pier Regulations to the Ohanians pier is inconsistent with the limitations of Chapter 91 and the Regulations promulgated thereunder. In effect the Commission has established a"local permitting program"that controls"small structures accessory to residences" without the approval of DEP as required by 310 CMR 9.07(3)(a). The Commission has attempted to avoid administrative review of its permitting decisions by DEP. The Commission's Pier Regulations also impose standards and criteria for the use of waterways under state jurisdiction in the manner that a municipal harbor plan is designed to do, but without endorsement by the local planning authority(see 301 CMR 23.05(1)),or approval by the Secretary of Environmental Affairs. In Lovequist v. Dennis, 379 Mass. 7 (1979) the inability to appeal to DEP under the local wetlands bylaw was not fatal because the court held that the Wetlands Protection Act imposed minimum standards for the protection of the environment. However,Chapter 91 is different from the Wetlands Act and concerns the balancing of competing interests in public trust lands i.e. the tidelands. Chapter 91 is not solely an environmental statute imposing minimum standards. Under Chapter 91 and the Regulations, the Commonwealth acting through DEP must balance the competing interests of the public in tidelands. In denying the Ohanians the right to install a pier based on impacts to recreational navigation, including small craft recreational sailboating, the Commission has usurped the power reserved to DEP to balance the competing interests for the use of Commonwealth tidelands. Under Chapter 91 the regulation of these competing interests is reserved to DEP,whose rights to supersede -15- decisions of local harbor masters is clear. By making such determinations on its own,without DEP review, the Commission has attempted to preempt the authority reserved to the Commonwealth under Chapter 91.' Therefore,the Commission's decision should be annulled because it relied upon alleged interference with public trust rights and navigation. See also Pearson v. Town of Plymouth, 44 Mass. App. Ct. 741, rev.denied, 427 Mass. 1109 (1998). In Pearson v. Town of Plymouth,44 Mass.App.Ct. 741,rev.denied,427 Mass. 1109(1998) the court considered whether a town bylaw which prohibited the operation of aircraft upon any pond in town, including great ponds was pre-empted by the Great Pond Statute. The Court held that M.G.L.c. 131,§45 requiring that town rules or regulations regarding use of float airplanes on great ponds first be approved by Massachusetts aeronautics commission precluded unilateral local action and thus town's by-law was invalid and unenforceable without the approval of the aeronautics commission. Pearson v. Town of Plymouth, 44 Mass.App.Ct. 741. In reaching its decision the court considered both the Great Pond Statute and the statute which established the aeronautics commission. The Great Pond Statute provides, in part, that great ponds "shall be public for the purpose of hunting or boating thereon and shall ... be open to all inhabitants of the commonwealth for fishing purposes." G.L. c. 131, §45. Municipalities may enact local rules and regulations with respect to hunting fishing and boating on the great ponds, however, all such and regulations are 'Subsection DA of the local regulations includes the explicit policy judgment that "activities not specifically related to simply transiting the area in safety, such as cruising, fishing, sailboarding, swimming, etc. ...require open water, and should not be eliminated for private interest." DEP, on the other hand, does not consider a water-dependent structure such as a private pier to interfere with the navigation rights of the public unless it extends into "an existing channel such as to impede free passage,"requires "the alteration of an established course of vessels, " "generate[s] water-borne traffic that would substantially interfere with other water-borne traffic in the area at present," or"impair[s]...the ability of the public to pass freely upon the waterway and to engage in transport or loading/unloading activities." 310 CMR 9.35(2)(a)l. -16- subject to the approvals of various State agencies having special competence and responsibility in the particular subject. Municipalities may also enact regulations with respect to float airplanes, however such regulations consistent with the pattern of the statute, must be approved by the aeronautics commission. G.L.c. 131, §45. Under G.L. c. 90, §39, the commission has "general supervision and control over aeronautics." Looking at the entire statutory system, the court concluded that the task of the aeronautics commission under the Great Pond Statute is: "to modulate the need for public safety on such ponds with the public interest in developing aeronautics in the Commonwealth. The Legislature has determined that this complex task is one that the commission is especially suited to perform and that cities and towns are less suited to accomplish. While cities and towns are certainly competent to deal with issues of public safety, they have no reason to be dedicated to the development of aeronautics in the Commonwealth. We conclude that the intent of the Legislature is clear: only the commission may consider and evaluate the competing claims of public safety and the development of aeronautics, and, with those considerations in mind, appraise the town's by-law prohibiting the use and operation of aircraft equipped with floats on the town's great pond. . . there is no room for unilateral,local regulation in this area." Pearson v. Town of Plymouth,44 Mass.App.Ct. 741, 745. The public's rights to navigate in tidal waters is similar to the public rights in great ponds.' Likewise the comprehensive statutory system with respect to public trust rights set forth in Chapter 91 and the regulations promulgated pursuant thereto, indicates that DEP must modulate the competing interests of the public in the use of the tidal waters. The DEP Regulations do permit towns to establish local permitting programs,however, such programs must be approved by DEP. This is similar to the Great Pond Statute which requires that local rules and regulations be approved 'Great ponds are the subject of sections 18A, 19A, 20 and 35 of Chapter 91. -17- by various state agencies. In Fafard v. Barnstable Conservation Commission,Barnstable Superior Court No.97-711, the Court found that the Commission's authority to regulate piers on the basis of public trust rights was not pre-empted, however, the parties in that case did not take into account the Pearson decision.' In addition,the record in Fafard did not indicate whether the Town had been approved by DEP to administer a local permitting plan for small structures. In fact,neither the Town nor the Commission has been approved by DEP to administer a local permitting program. Consequently, it is clear that the Commission does not have the authority to regulate on the basis of public trust rights. This is similar to the Pearson case which found that a town could regulate aircraft on great ponds but only if the regulations were approved by the aeronautics commission. V. CONCLUSION The record in this case amply shows that the plaintiffs met their burden of proving that the work proposed will not have an unacceptable significant and cumulative effect upon the wetland values. The Commission's decision represents a substantial error of law which is apparent on the record and which has caused the Plaintiffs manifest injustice. For the foregoing reasons, the plaintiffs respectfully request that this Honorable Court issue an order vacating the Commission's Decision and directing the Commission to approve the project under Article 27 of the Barnstable Town Ordinance. Plaintiffs Respectfully submitted, Michael D. Ford, Esq. 72 Main Street, P. 0. Box 665 West Harwich, MA 02671 (508)430-1900 BBO#174440 1 "The Fafard decision has been appealed. -18- o23� . �1 TO SO Ua` +j -- f i _. .. '. i P ._. .�.�.. _ __ .....,..__�,..___ 1._.._ �.r., - s_._.. _ .. _.. _.,_..�—_.�_.__,.. i n TOWN OF BARNSTABLE BARNSTABt.E. ' OFFICE OF TOWN ATTORNEY MASS. 039. peg 367 MAIN STREET �Eorw�+� HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)862-4620 RUTH J. WEIL,Assistant Town Attorney FAX#(508)775-3344 CLAIRE R. GRIFFEN, Legal Assistant July 15, 1999 THERESA M. CAHALANE, Legal Clerk Ms. Deneen Simpson, Docket Clerk Department of Environmental Protection One Winter Street - 10th Floor ► 2 11999 Boston, MA 02108 `f Re: DEP File No. SE3-3237 BARNSTABLE CONSERVATION Docket No. 98-174 Mtr. of Michael Ohanian, et a�noc., Applicants-Petitioners and Barnstable Conservation"Commission and DEP Our File Ref: #98-0025 Dear Ms. Simpson: Enclosed herewith please find the Barnstable Conservation Commission's Status Report together with the Certificate of Service in the above action for service of the same upon those listed on the attached Service List, which we would appreciate your filing with the Department. Thank you. Sincerely, RJW:cg Roth J. Weil, Assistant Town Attorney Encs. Town of Barnstable cc: John R. Alger, Esq. (For Applicant-Petitioner) cc: Daniel d'Hedouville, Esq., DEP cc: Mr. Mitch Ziencina, DEP Staff Southeast Regional Office (98-00251depstatl] COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION BARNSTABLE, ss: Docket No. 98-174 File No. SE 3-3237 In the Matter BARNSTABLE CONSERVATION of COMMISSION'S STATUS REPORT MICHAEL OHANIAN and FILED PURSUANT VIRGINIA OHANIAN, TRUSTEES, TO ORDER OF 135 BAY ROAD REALTY TRUST, ADMINISTRATIVE Petitioners. LAW JUDGE DATED MAY 18, 1999. NOW COMES the Barnstable Conservation Commission and pursuant to the Order of the Administrative Law Judge dated May 18, 1999, states that with regard to the status of the pending Superior Court action involving the appeal under the Town of Barnstable local wetlands protection ordinance, the matter is scheduled for hearing in the Barnstable Superior Court on the Plaintiffs' (Petitioners herein) Motion for Judgment on the Pleadings on September 27, 1999. Dated: July 15, 1999. BARNSTABLE CONSERVATION COMMISSION, TOWN OF BARNSTABLE, By their Attorneys, OBERT D. SMIT own Attorney [13.B.O. No. 469980] RUTH J. WEIL, Assistant Town Attorney [B.B.O. No. 5192851 TOWN OF BARNSTABLE [98-0025/statusl] 1 1 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: (All Parties on Service List) SERVICE LIST Deneen Simpson, Docket Clerk Office of Administrative Appeals Department of Environmental Protection One Winter Street, Third Floor Boston, MA 02108 (617) 556-1003; (617) 556-1064 Fax JOHN R. ALGER, ESQ., P.C. Attorney at Law 886 Main Street P.O. Box 449 Osterville, MA. 02655-0449 (508) 428-8594; (508) 428-3162 Fax DANIEL d'HEDOUVILLE, Esq. Attorney for D.E.P. DEP Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 MITCH ZIENCINA, D.E.P. Staff DEP, Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 i i [98-00251statusl] 2 CERTIFICATE OF SERVICE BARNSTABLE, ss: July 15, 1999. I hereby certify under the pains and penalties of perjury that I caused to be mailed by first-class mailing, postage prepaid, a copy of the status report document to all those identified in the above-cited service list at the addresses designated by them for that purpose on the date above written. Claire Griff n, a Assistant, Town of B a e [98-0025/statusl] 3 TOWN OF BARNSTABLE • BAWMAMX OFFICE OF TOWN ATTORNEY mmm 1630. �� 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D.SMITH, Town Attorney TEL.(508)862-4620 RUTH J. WEIL,Assistant Town Attorney FAX#(508)775-3344 CLAIRE R. GRIFFEN,Legal Assistant THERESA M.CAHALANE,Legal Clerk May 25, 1999 Mrs. Phyllis A. Day, Clerk Barnstable Superior Court, Civil County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630 Re: C.A. No. 98-97 Michael Ohanian, et al, etc. v. Barnstable Conservation Commission Our File Ref: #98-0025 Dear Mrs. Day: Enclosed herewith please find the Administrative Record for filing with the Court in the above matter on behalf of the Defendant, the Town of Barnstable's Conservation Commission, together with Certificate of Service relative thereto. Thank you. Sincerely, RJW:cg kuthJ. ' , Asst. Town Attorney, Encs. Town of Barnstable cc: Michael D. Ford, Esq. --H MAY 2 5 1999 BARNSTABLE CONSERVATION [98-00251dayadmin] COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-97 MICHAEL OHANIAN and VIRGINIA OHANIAN, Trustees of 135 SOUTH BAY ROAD REALTY TRUST, Plaintiffs, CERTIFICATE OF SERVICE. V. DR. ERIC G. STRAUSS, AUDREY A. ) OLMSTEAD, ELISABETH EATON ) CLARK, ROY CATIGNANI, ALBERT O. ) BARBOUR, EDWARD O. HANDY, as they ) are Members of the BARNSTABLE ) CONSERVATION COMMISSION, ) Defendants. ) Barnstable, ss: May 25, 1999. I hereby certify under the pains and penalties of perjury, that I caused to be mailed by first-class mailing, postage prepaid, a copy of the Administrative Record to the attorney for the above-named plaintiffs on the date written above: Michael D. Ford, Esq., at 72 Main Street, P.O. Box 665, W. Harwich, MA 02671. ?��/Aa r Claire Griffe , Le I istant Town of Bar le 367 Main Street, New Town Hall Hyannis, Ma 02601-3907 (508) 862-4620; (508) 775-3344 Fax I [9N0251cenSrvc) 1 1 x� COMMONWEALTH OF MASSAC14USETTS BARNSTABLE,ss: SUPERIOR COURT C.A.No.98-97 MICHAEL OHANIAN and VIRGINIA ) AFFIDAVIT of OHANIAN,Trustees of 135 SOUTH BAY ROAD ) ROBERT W.GATEWOOD, REALTY TRUST, ) CONSERVATION Plaintiffs, ) ADMINISTRATOR V. ) DR.ERIC G. STRAUSS,AUDREY A. ) OLMSTEAD,ELISABETH EATON ) CLARK,ROY CATIGNANI,ALBERT ) O.BARBOUR,EDWARD O.HANDY, ) as they are Members of the BARNSTABLE ) CONSERVATION COMMISSION, ) Defendants. ) I,ROBERT W.GATEWOOD,on oath depose and state as follows: 1.) 1 hold the position as Administrator of the Conservation Commission of the Town of Barnstable. 2.) 1 have full knowledge of the facts stated herein. 3.) As part of my duties as Administrator,I assure that when a Notice of Intent is filed under the Massachusetts Wetlands Protection Act. G.L.c. 131,s.40 and the Town of Barnstable Wetlands Bylaw,Article 27,a file is opened and maintained in the Office of the Conservation Commission. 4.) The Conservation Commission,through the Town Attorney's Office,was requested to assemble the administrative record of its case heard before the Conservation Commission involving Michael Ohanian and Virginia Ohanian,Trustees of 135 South Bay Road Realty Trust. 5.) I have attached hereto the following materials involving the administrative record of the conservation commission's file regarding the Notice of Intent under the Town's Wetlands Bylaw,Article 27,filed by John R.Alger,Esq. ohanian 1 2 Exhibits submitted at the Administrative Hearing: Exhibit Number Description 1. Notice of Intent Application for Michael Ohanian&Virginia Ohanian,received July 2, 1997 2. Directions to property of Michael Ohanian&Virginia Ohanian 3. Plan of Land for 135 South Bay Road Realty Trust,dated May 22, 1997 by Peter Sullivan,PE 4. Notice of Intent Fee Transmittal Form 5. Affidavit of Service by John R.Alger,dated July 1, 1997 6. DEP notification of file#-SE3-3237,received July 28, 1997 7. Letter to Conservation Commission from Department of Natural Resources,received August 27, 1997 8. Conservation Commission from Mass. Division of Marine Fisheries,received Sept. 8, 1997 9. Revised Plan of Land for 135 South Bay Road Realty Trust,dated Sept.30, 1997 by Baxter& Nye,Inc. 10. Shellfish Survey for Mr.O'Hanian by George R.Hampson,shellfish biologist,received Nov.24, 1997 11. Denial Order of Conditions, issued Dec. 15, 1997 12. Town of Barnstable GIS-3 Bay 96.dgn,photos taken July 18, 1996 13. Town of Barnstable Ordinance,Article XXVII 14. Town of Barnstable Regulations for Private Piers and Docks 15. Town of Barnstable"Guidelines for New Private Piers" 16. Transcripts of Hearings- A. Sept.9, 1997 B. Nov. 25, 1997 ohanian 1 3 q�l Signed under the pains and penalties of perjury this 1 day of May, 1999. Robert W.Gatewood, Conservation Administrator Town of Barnstable 367 Main Street,New Town Hall Hyannis,MA 02601-3907 (508)862-4093 (508)790-6230 FAX ohanian 1 I� Z.. COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS a DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 02108 617-292 0 ARGEO PAUL CELLUCCI BOB DURAND Governor APR 2 U 1999 Secretary JANE SWIFT EDWARD P.KUNCE Lieutenant Governor ''t' Acting Commissioner BARNSTABLE CONSERVATION April 13, 1999 In the Matter of Docket No. 98-174 File No. 3-3237 Michael Ohanian and Virginia Ohanian, Trustees, 135 South - Bay Road Realty Trust Barnstable PREHEARING CONFERENCE ORDER A mandatory prehearing conference in this case will be held before Administrative Law Judge Mark L. Silverstein on Wednesday,. I June 16, 19991 beginning at 10 :30 a.m. in the 6th floor Conference room, Department of Environmental Protection, One Winter Street ("The Corner Mall") , Boston, Massachusetts . Purpose of the Prehearing Conference The Conference is intended to: 1 . Assist the parties in resolving some or all of the issues without a hearing. Consistent with this intention, - the Administrative Law Judge will explore with the parties the possibility of referring this case to a trained mediator. For special accommodations for this event,contact Louise Rigg at this address or call(617)556-1132. This information is available in alternate format by calling our ADA Coordinator at(617)574-6872. DEP on the World Wide Web: http:/Avww.magnet.state.ma.us/dep Q* Printed on Recycled Paper i i 2 . possibility of referring this case to a trained mediator. 2 . Establish a schedule for all further proceedings, including a date for a hearing. 3 . Identify the issues to be addressed, and the evidence to be introduced, and the witnesses who will testify at the hearing. Required Action by the Parties All parties are ORDERED to: 1 . Confer at least once prior to the date of the Prehearing Conference to discuss settlement, including the possible use of mediation to resolve some or all .of the issues in the case, and be prepared to report -on the outcome of their discussions at the Prehearing Conference. 2 . Exchange, and file with the Docket Clerk, at least 7 calendar days prior to the conference: a. written statements of all unresolved issues (joint statements of issues are encouraged) ; b. written lists of the witnesses each party intends to present at the hearing, together with a brief written summary of the expected testimony of each witness (see paragraph 4 of the enclosed Directive) ; and C. if the case involves the appeal of a permit or a license, the applicant must provide to all of the other parties, and file with the Docket Clerk, copies of any new or altered .project plans on which the applicant intends to rely in this proceeding; or d. if the case involves the appeal of a civil administrative penalty, the Department must provide to the petitioner a written explanation of the calculation of the penalty amount . 3 . Attend the Prehearing Conference - in person or by a duly authorized representative who has the authority to make binding agreements, including scheduling commitments . Alternatively, any representative without such authorization must come to the Prehearing Conference with the name (s) of . any person (s) from whom authority is required and must be able to reach such person at the time of the Prehearing Conference. 4 . Bring to the Prehearing Conference, with copies for the Administrative Law Judge and other parties, any written statements of Department policy or guidance that a party intends to cite or introduce into evidence at the hearing. 5 . Be prepared to state your position on whether to elect a simplified hearing in this case. See 3.10 CMR 1 . 0.1 (8) (a) . 6. Be prepared to commit to scheduling for all further proceedings consistent with the Directive. 7 . Be prepared to state your position on whether direct testimony should be prefiled in this case. See 310 CMR 1 . 01 (12) (f) . Please note that because the use of . prefiled direct testimony tends to speed the hearing and avoid surprise, its use is strongly preferred, particularly when there are complex issues of fact. Applicable Time Line It is expected that the final hearing will take place within four months of the date of the Conference. See "Case Handling .� . 4 Time Line" attached to the Directive. Any party. that wishes the final hearing to be scheduled more than four months after the date of the Prehearing Conference must come to the Conference prepared to present detailed reasons in j support of such an extension. The parties are advised that a strong. showing of special circumstances must be made for an extended hearing date to be -assigned. Sanctions for Noncompliance with This Order Any party that fails to comply with this Order will be subject to appropriate sanctions, including, but not limited to; dismissal for failure to prosecute or termination as a party. - Rescheduling of Prehearing Conference Disfavored Requests to reschedule the Prehearing Conference are disfavored and generally will not be granted. In the extraordinary event of scheduling conflicts which cannot be resolved, requests to reschedule must be made by written motion served on all parties . The motion must provide specific reasons for the request and state alternative dates that have been agreed to by all of the parties . A request for rescheduling will not stay, or otherwise alter, the scheduled date of the Conference unless, and until, the request is granted by the Administrative Law Judge. Notice to Persons Copied on Service List Those persons shown on the attached Service List as receiving copies of this Order (other than D.E. P. personnel) are advised that they are not parties in this case and will receive no further notice .of these proceedings unless they both a) file a Motion to Intervene or a Motion to Participate (see 310 CMR 1 . 01 (7) ) on or before the date of the Prehearing Conference; and b) comply with all the other requirements of this Order, including the requirement that they attend the Prehearing Conference. Mark L. S ' erstein Administ ative Law Judge Enclosures. SERVICE LIST In Re : Michael Ohanian and Virginia Ohanian, Trustees, 135 South Bay Road Realty Trust Docket No. 98-174 File No. 3-3237 Representative Party John R. Alger, Esq. APPLICANT P.O. Box 449 Michael Ohanian and Virgina Osterville, MA 02655 Ohanian, Trustees, 135 South Bay Road Realty Trust Robert W. Gatewood PETITIONERS Conservation_ Administrator.— Barnstable Conservation, Barnstable Conservation Commission Commission . 367 Main Street Barnstable, MA 02601 Daniel d'Hedouville, Esq. DEPARTMENT DEP - Southeastern Regional Office Dept . of Environmental 20 Riverside Drive, Route 105 Protection Lakeville, MA 02347 CC : Mitch Ziencina DEP STAFF DEP - Southeast Regional Office 20 Riverside Drive, Route 105 Lakeville, MA 02347 Robert Smith Town Attorney Town Hall, 367 Main Street Hyannis, MA 02601 Date : April 13 , 1999 ACCESS TO DEP'S BOSTON OFFICES: s _cstcn offices are at Downtown Crossing at The Corner Mali (1 Winter Street) , a retail building located on the northeast corner of Washington Street and Winter Street (opposite Filene' s and Macy' s department stores, and one block from Boston Common) . The Department' s offices occupy the building' s upper floors . You can reach the Department 's offices by using the escalators at the Summer Street entrance . You will be required to show a picture identification (such as a Massachusetts driver' s license) and sign a registration book maintained by the receptionist . DIRECTIONS TO DEP'S BOSTON OFFICES: By META Subway: Green Line to Park Street (main subway exit is at Boston Common on Tremont Street , across from Winter Street , 1 block from DE ) Red Line or Orange Line to Downtown Crossing (at the intersection of Washington. and Winter Streets across from The Corner Mall ) , Elue Line to State Street (from subway exit at Old State Meeting House , walk four blocks south along Washington Street to Winter Street). . - By Commuter Rail : From North Station, take Green Line inbound to Park Street or Orange Line inbound to Downtown Crossing (see subway directions above) From South Station, take Red Line inbound to Downtown Crossing (see subway directions above) , or walk west on Summer Street to t':e Washington:/winger Street. intersection . By Auto: See the directions on the back of this page . Please note that Winter Street and the adjacent portion , of Washington Street are closed to auto traffic during regular business hours, and that during those hours there is no on-street parking in the vicinity of DEP' s Boston offices. In addition, Central Artery/Tunr�el construction has made auto transit into and out of Boston' s financial and Chinatown districts more difficult, especially during commuter rush hours, and may cause chatdes in exiting from the Mass Pike and Southeast Expressway to Chinatown and the financial district . Cr_e Winter Street , =cstcr_, Ma . 02--= From the South : Take Rte 3/93 , the Expressway. From the h_chwav take Exit T20, Mass Pike, Chi at-Wri, a_nd when fife e:Y_t SDI _tS-Sta.! to the left for "loca_" (the Pike ramp goes to the right) 'C-o left at the Iigrts, and travel straight on Kneeland Street for several blocks . Seethe following suggestions for parkine ideas . From the West : Take Rte 90 (Mass Pike) to the end, (stay to the right when the road splits) . At the traffic lights, go left onto Kneeland Street . Travel stra_cht for several blocks . See the following suggestions for parking ideas . From the North: Take Rte 3/93 , the Expressway. From the highway, take. Exit #25 , Haymarket Sc/Gcv' t "Center, turn right at the bottom cf the ramp • Drive stra_c ht through the first set of tra=i:c A.- s ur. New Chard"= Street , turn left at the next set of lights on Cambr_dge Street . Cambridge Street will change to Scollay Square, and Sccllay Square beccmes -Tremont Street . Winter Street will be on your left as you reach Boston Common, although it is closed to automobiles . There are several parking lots nearby. If you continue on Tremont Street , you will reach Kneeland, and the following suggestions wi=_ rle=p "Icu locate parking. Closest _ark:nc (=rcm scut- and west) : From Y- ee_and, tu-r. right onto +vas':'=C_c:: Stree= . Cc stra_ch: _.:_ouch the r_rst_ traffic light . (.-om nc- .., :C__OW Tre^,C::t, t'.:r :- left on Boylston Street, and _e cn Tivas:_:^ctor.. There is pa_kinc in a _et cn the riot and left side of Washinctcn Street . Suisse rote_ a_sc :as a hotel parking 5arace /flol of Amnar � BARNSTABLE, ss. SUPERIOR COURT NC9J I1 M MICHAEL OHANIAN et al, TRUSTEES of 135 11 U SOUTH BAY ROAD REALTY TRUST .BAN - 2 VS. ' fi BARNSTABLE CONSERVATION COMMISSION BARNSTABLE.CONSEP' NOTICE TO APPEAR FOR FINAL PRE-TRIAL CONFERENCE A final pre-trial conference in the above-referenced:case will be held at Barnstable Superior Court on February 12 , 19 9 9 , at 2:0 0 p.m.All trial counsel are required to attend and submit their joint pre-trial memorandum to the Court. Motions to continue will not be allowed. Failure of counsel to attend may result in their client being bound by actions taken at the pre-trial conference, or by diapositive rulings. In accordance with Standing Order 1-88, the time standards tracking order, and in order to facilitate orderly and efficient progress towards trial, counsel for all parties shall meet for the purpose of preparing a joint pre-trial memorandum. Unless all counsel agree otherwise, counsel for the plaintiff shall be responsible for preparing and circulating the first draft of the memorandum which shall contain the following component parts: (1) Agreed facts in a form suitable for submission as an exhibit at trial; (2) .A brief statement by each party of what that party expects the evidence to show; (3) Agreed suggested description of the case to be read to the jury during empanelment; (4) Statement of all unusual legal issues (including, particularly, any unusual evidentiary issues), the position of the parties on these issues, and a statement of authorities. Provide a copy of all cases and other authorities relied upon other than reported SJC and Appeals Court cases. (5) The name and address of each witness to be called by each party. (Failure to list in the pre-trial memorandum a witness, other than a rebuttal witness, the need for which cannot reasonably be anticipated prior to trial, may lead to an order precluding the testimony of that witness.) (6) The names, addresses and qualifications of each expert witness the parties intend to call, together with the subject matter on which the expert is expected to testify, the substance of all facts and opinions to which the expert is expected to testify and a detailed summary oft lie grounds.oI'each expert's opinion. If an expert witness' identity and expected testimony has previously been disclosed in response to expert interrogatories, this item may be covered by appending to the pre-trial memorandum a copy of the expert interrogatory responses. i 'NOTE: Inclusion of an expert witness' identity and expected testimony in the joint pre-trial memorandum does not waive any party's right to object to that expert's testimony on the ground that responses to expert discovery were untimely or inadequate. (7) Estimated length of trial. (8) All parties shall meet prior to the time of the pre-trial conference to discuss the possibility of settlement, and the amenability of the case to mediation or other forms of alternate dispute resolution. The parties shall state in the pre-trial memorandum that the parties have so met and shall itemize the special or liquidated damages alleged and except in jury-waived cases;state the demand, the offer and any agreement concerning alternate dispute resolution. No later than five (5) business days prior to the scheduled trial, counsel shall meet and re,-lew the exhibits proposed to be introduced by each party and all materials to be shown to the jury. Based on that meeting and review of exhibits, counsel shall prepare.a joint exhibit list identifying: 1) stipulated exhibits (which shall be pre-marked and introduced at the commencement of trial); and') proposed exhibits of each party as to which there is no agreement on admissibility. The exhibit list is to be presented to the trial judge at the commencement of trial with a copy for the court reporter. In the event deposition transcripts are to be offered at trial or video-taped depositions are to be shown, and there are objections to and of the answers set forth in the transcript or on the video tape, the parties, not less than three (3) days prior to the commencement of trial, are to supply to the court a transcript of the testimony with objections highlighted and, in the margn, a brief statement of the grounds.of the objection and the response by the proponent of the testimony. By the Court ( Connon , J.) Linda C. Morin First .71sst Clerk Entered: December 2.9, 1998 First �n I 1 + BARNMBLF4 • MAC' $ 367 Main Street i63q• �0 AtE039 a Hyannis Massachusetts 02601 December 22, 1998 Department of Environmental Protection P.O. Box 4062 Boston, MA 02211 CERTIFIED MAIL#Z 203 498 019 Dear Sirs: The Barnstable Conservation Commission requests a Formal Ajudicatory Hearing of the following matter: This letter amends the prior notification sent Dec. 21, 1998, adding Attorney John R. Alger to the service list. 1. BARNSTABLE Wetlands File No. SE3-3237 Superseding Order of Conditions Ohanian/West Bay 2. The party filing the request for hearing is: Barnstable Conservation Commission Town Hall, 367 Main St. Hyannis, MA 02601 (508) 862-4093 FAX(508) 790-6230 Robert Smith, Town Attorney same address as above (508) 862-4620 3. Other parties and representatives are as follows: a) Michael &Virginia Ohanian 350 S. Ocean Blvd. Boca Raton,FL 33432 CERTIFIED MAIL#Z 203 498 020 b) Baxter&Nye,Inc. Attn: Steven Wilson Re: Ohanian 812 Main St. Osterville, MA 02655 CERTIFIED MAIL#Z 203 498 021 c) Attorney John R.Alger P.O.Box 449 Osterville, MA 02655 ZAKIN 1 r 2 i CERTIFIED MAIL#Z 203 498 018 i d) Division of Marine Fisheries 50A Portside Dr. Pocasset, MA 02559 Attn: Paul Caruso;re Ohanian CERTIFIED MAIL#Z 203 498 023 e) DEP-DWW c.91 Licensing&Permits Attn: Ron Potter,Bureau of Wetlands 20 Riverside Dr.,Route.105 Lakeville, MA 02347 CERTIFIED MAIL#Z 203 498 024 f) DEP- SERO 20 Riverside Dr. Route 105 Lakeville, MA 02347 CERTIFIED MAIL#Z 203 498 025 4. This is a request for a formal adjudicatory hearing. 5. The Conservation Commission objects to the Superseding Order because it fails to conform with pertinent performance standards contained in 310 CMR 10.25 (6)(a,c,d and e), 310 CMR 10.27 (6)(a,b and c)and 310 CMR 10.34(4)(a,b,c,d and f). 6. The facts which constitute the grounds for the appeal are: (a) that the project consists of not just the pier construction component addressed by the Department and the Superseding Order,but also of the attendant motorcraft use of the structure. (b) the project fails to meet applicable performance cited above in Point 5. 7. The Conservation Commission seeks a change in the Superseding Order which, in the form of a Final Order, denies the project for cause as provided for in 310 CMR 10.05 (6)(b)sentence 2. 8. 1 hereby certify that a copy of this request was mailed this date(December 21, 1998)to each party or representative listed above. For the Conservation Commission, Robert W. Gatewood Conservation Administrator RG/kt ZAKIN 1 1 1 °Fn+e ram, �4�G(k2 Q� BARNSTABM NAM 367 Main Street .9 � t6 g ��16 Hyannis Massachusetts 02601 December 21, 1998 Department of Environmental Protection P.O.Box 4062 Boston, MA 02211 CERTIFIED MAIL#P 015 558 131 Dear Sirs: The Barnstable Conservation Commission requests a Formal Ajudicatory Hearing of the following matter: 1. BARNSTABLE Wetlands File No. SE3-3237 Superseding Order of Conditions Ohanian/West Bay 2. The party filing the request for hearing is: Barnstable Conservation Commission Town Hall,367 Main St. Hyannis, MA 02601 (508) 862-4093 FAX(508) 790-6230 Robert Smith,Town Attorney same address as above (508) 862-4620 3. Other parties and representatives are as follows: a) Michael &Virginia Ohanian 350 S. Ocean Blvd. Boca Raton,FL 33432 CERTIFIED MAIL#P 015 558 132 b) Baxter&Nye,Inc. Attn: Steven Wilson Re: Ohanian 812 Main St. ; Osterville, MA 02655 CERTIFIED MAIL#P 015 558 133 c) Division.of Marine Fisheries 50A Portside Dr. Pocasset, MA 02559 Attn: Paul Caruso;re Ohanian ZAKINI 2 i CERTIFIED MAIL#Z 203 498 012 d) DEP-DWW c. 91 Licensing&Permits Attn: Ron Potter,Bureau of Wetlands 20 Riverside Dr.,Route 105 Lakeville, MA 02347 CERTIFIED MAIL#Z 203 498 013 e) DEP- SERO 20 Riverside Dr. Route 105 Lakeville, MA 02347 CERTIFIED MAIL#Z 203 498 014 4. This is a request for a formal adjudicatory hearing. 5. The Conservation Commission objects to the Superseding Order because it fails to conform with pertinent performance standards contained in 310 CMR 10.25 (6)(a,c,d and e), 310 CMR 10.27 (6)(a,b and c)and 310 CMR 10.34(4)(a,b,c,d and f). 6. The facts which constitute the grounds for the appeal are: (a) that the project consists of not just the pier construction component addressed by the Department and the Superseding Order, but also of the attendant motorcraft use of the structure. (b) the project fails to meet applicable performance cited above in Point 5. 7. The Conservation Commission seeks a change in the Superseding Order which, in the form of a Final Order, denies the project for cause as provided for in 310 CMR 10.05 (6)(b) sentence 2. 8. I hereby certify that a copy of this request was mailed this date(December 21, 1998)to each party or representative listed above. For the Conservation Commission, Robert W. Gatewood Conservation Administrator RG/kt ZAKIN 1 h COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS k9i - DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE ARGEO PAUL CELLUCCI D TRUDY COXE Govemor DECSecretary EC 9 1998 ]D� l ID B. STRUHS C( Dply Commissioner BARNSTABLE CONSERVATION December 4, 1998 Mr. & Mrs . Ohanian ',,RE : Barnstable - Wetlands c/o John R. . Alger File No . SE 3-3237 886 Main Road Superseding Order of Conditions P.O. Box 449 ` West Bay Osterville, MA 02655-0449 Dear Mr. & Mrs . Ohanian: Following an in-depth review of the above-referenced file and in accordance with Massachusetts General Laws, Chapter 131, Section 40 , the Department of Environmental Protection has issued the enclosed Superseding Order of Conditions . This Order approves the proposed project subject to certain conditions . The Department has reviewed a proposal illustrated on the plan entitled "Plan of Land In (Osterville) Barnstable, MASS . 135 South Bay Road Realty Trust" , revised September 30 , 1997, by William C. Nye . The proposed work involves the construction of a 4 by 172 foot pier supported by 12 single stanchion piles . The proposal includes a 6 by 32 foot "L" supported by 11 piles attached to the west end of the pier; and a 3 by 14 foot ramp connecting to two 6 by 12 foot floats on -the east side of the pier held in place by two 10-12 inch diameter piles . The Department has determined that the location of the proposed piles, ramp, floats and access stairs results in minimal wetlands impacts over a coastal beach (310 CMR 10 .27) , salt marsh (310 CMR 10 . 32) and over and into the waters of West Bay (Land Under the Ocean, 310 CMR 10 . 25) and Land Containing Shellfish which has been designated significant Land Containing Shellfish by the Massachusetts Division of Marine Fisheries (MDMF) in accordance with the provisions of 310 CMR 10 . 34 (3 ) (a) . In accordance with the Act and its Regulations, the above-cited resource areas are presumed significant to one or all of the following statutory interests : ground water supply, prevention of pollution, storm damage prevention, flood control , protection of fisheries, land containing shellfish, and protection of wildlife habitat . 20 Riverside Drive 0 Lakeville, Massachusetts 02347 • FAX(508) 947-6557 0 Telephone (508) 946-2700 i 2 - In the Department' s opinion, the land containing shellfish will be returned substantially to its former productivity in less than one year from the commencement of work as . permitted in 310 CMR 10 . 34 (5) . In addition, the enclosed Superseding Order contains a Special Condition requiring that the applicants, in consultation with the MDMF and/or the Barnstable Shellfish Constable seed adjacent areas with both soft shell clams (Mya arenaria) and quahogs (Mercenaria mercenaria) in sufficient numbers as approved by the above cited entity. Although the proposed structure is located in and over several different coastal resource areas, the Department has determined that as designed and conditioned herein, it complies with the performance standards set forth in 310 CMR 10 . 25, 10 . 27 , 10 . 32 and 10 . 34, and adequately protects the interests of the Act . In the opinion of the Department, the reasons given here are sufficient to justify this Superseding Order of Conditions . However, the Department reserves the right, should there be further proceedings in this matter, to raise additional issues and present further evidence as may be appropriate . Please be advised that the issuance of this Order does not relieve the permittee of the necessity of compliance with the Town of Barnstable Wetlands By-law. If you have any questions concerning this Superseding Order of Conditions, please contact Mitch Ziencina at (508) 946-2734 . Very truly yours, Eliza eth A. Kouloheras, Chief Cape Cod Watershed Enclosure EAK/mz CERTIFIED MAIL # Z 539 133 561 RETURN RECEIPT REQUESTED CC : Barnstable Conservation Commission Michael & Virginia Ohanian Division of Marine Fisheries 350 South Ocean Blvd. 50A Portside Drive Boca Raton, FL 33432 Pocasset, MA 02559 ATTN: Paul Caruso Baxter & Nye, Inc . 812 Main Street Osterville, MA 02655 ' ATTN: Steven Wilson DEP - DWW c . 91 Licensing & Permits ATTN: Ron Potter 310 CMR 10.99 Form 5 DEP File No SE 3-3237 (To be provided by DEP) City/Town Barnstable Applicant Michael & Virginia Ohanian Superseding Order of Conditions Massachusetts Wetlands Protection Act G.L. c.131, §40 From Department of Environmental Protection To Michael & Virginia Ghanian (Name of Applicant) Address 350 South Ocean Blvd. , Boca Raton, FL 33432 (applicant) To same (Name of Property Owner) Address same (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 December 4, 1998 (date) Certified Mail #Z 539 133 561 This project is located at 134 South Bay Road Osterville The property is recorded at the Registry of Deeds Barnstable County Book Page Certificate (if registered) 137058 being Lot 6 on Land Court Plan 9592H The Notice of Intent for this project was filed on July 2, 1997 (date) The public hearing was closed on November 25, 1997 (date) Findings The Department of Environmental Protection has reviewed the above-referenced Notice of Intent and plans and has held a public hearing on the project. Based on the information available to the Department of Environmental Protection at this time, the Department of Environmental Protection has determined that the area on which the proposed work is to be done is significant to the following interests in accordance with the Presumptions of Significance set forth in the regulations for each Area Subject to Protection Under the Act (check as appropriate) : ❑ Public water supply ® Flood control ® Land containing shellfish ❑ Private water supply ® Storm damage prevention ® Fisheries ® Ground water supply ® Prevention of pollution ® Protection of wildlife habitat Total Filing Fee Submitted $482 .00 State Share $228.50 City/Town Share $253 .50 (M fee in excess of $25) Total Refund Due $ 0.00 City/Town Portion $ 0.00 State Portion $ 0.00 (M total) N total) Effective 11/20/92 5-1 f 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. 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 SE 3-3237 " 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. I 12. The work shall conform to the following plans and special conditions: i Plans: Title: Plan of Land Barnstable, MASS. for 135 South Bay Road Realty Trust Dated: May 22, 1997, Revised September 30, 1997 Signed & Stamped by: William C. Nye, RLS and Stephen A. Wilson, RPE On File With: DEP Title: Dated: Signed & Stamped by: On File With:. Title: Dated: Signed& Stamped by: On File With: Title: Dated: Signed & Stamped by: On File With: Special Conditions (Use additional paper if necessary) 1. Prior to the commencement of construction, General Condition No. 8, above, must be complied with. 2. All construction must comply with the above-referenced plans and the conditions of this Order. For any proposed change in the approved plans or in the. work; the applicant shall file a new Notice of Intent or inquire, in writing, of the Department whether the change is substantial enough to require a new Notice of Intent. No change in plan, under this filing, is .permissible without prior writtenoapproval from the .Department allowing,' this change. 3 . It is, the responsibility of the applicant, owner and/or successor(s) to ensure that all conditions of this Order are complied with. The project engineer and contractors are to be provided with a copy of this Order and referenced documents before commencement of construction. 4. Members and agents of the local Conservation Commission and the Department shall have the right to enter and inspect the property at all reasonable times to evaluate compliance with the conditions stated in this Superseding Order, and may require the submittal of any data deemed necessary by this Department for that submittal. See the attached sheet for additional conditions numbered 5 through 15 I 5-3B Issued by the Department of Env iron e �ai Protection Signature /4� 2- Elizabeth A. Kouloheras, Chief, Cape Cod Basin On this 4th day of December 1998 before me personally appeared Elizabeth A. Kouloheras 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 f/"e o ry Public 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; (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. 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 134 South Bay Road, Osterville File Number SE 3-3237, has been recorded at the Registry of Deeds in Barnstable 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 If registered land, the document number .which identifies this transaction is Signature Applicant 5-4B Superseding Order of Conditions for File No . SE 3-3237 Special Conditions (continued) S . Installation of the pier ramp and floats, as proposed, may either be accomplished by working out from and upon completed portions of the pier or from a barge operating during the interval from three hours prior to high tide and three hours following high tide . The barge shall not be permitted to touch the bottom at any time during construction. No heavy construction equipment, vehicles or barges are permitted on the salt marsh or tidal .flat during installation of the pier, floats, ramp or piles . 6 . Wooden piles of a diameter not to exceed 12 inches at cut-off shall be mechanically driven into place to• a depth of 15, or to refusal . Jetting in of piles-is prohibited. 7 . All floats shall be removed from the water seasonally, from October 15 through April 15 , and stored in the upland, landward of the top of the coastal bank. The floats shall not be pulled over the wetland to the storage area . 8 . The proposed pier is to be elevated a minimum of 3 ' above the beach, and the individual deck planks of the structures are to be spaced at least 1/2 inch apart . 9 . The use of timber pressure-treated with ACQ (Alkaline Copper Quartz) or CCA (chromated copper arsenate) or the equivalent is permitted as construction material . Creosote treated timber is prohibited. Wood preservative must be dry before the treated wood is used in construction. 10 . At the discretion of the Massachusetts Division of Marine Fisheries and/or the Barnstable Shellfish Constable, adjacent areas shall be seeded with juvenile soft shell clams (Mya arenaria) and quahogs (Mercenaria mercenaria) The quantity of seed shall be approved by the Barnstable Shellfish Constable and/or Massachusetts Division of Marine Fisheries . 11 . Dredging is neither proposed nor permitted under this filing. 12 . Future maintenance of the approved structure, in strict compliance with the ,plan of record and the conditions of this Order, is permissible . 13 . This Order shall apply to 'any successor in control , or successor in interest of the property described in the Notice of Intent and plan (s) of record cited above . 14 . This Order does not relieve the permittee of the necessity of receiving approval under the Town of Barnstable Wetland By-Law prior to commencement of construction. 5-5B Superseding Order of Conditions for File No. SE 3-3237 15 . Upon completion of the project, a Certificate of Compliance shall be requested in accordance with General Condition No. 11, and under the provisions of 310 CMR 10 . 05 (9) (d) . An "AS- BUILT" plan and a statement from a Registered Professional Engineer certifying compliance with the conditions of this Order shall accompany the request for a Certificate of Compliance . 5-6B I NOTICE OF APPEAL RIGHTS/ADMINISTRATIVE ORDER/DETERMINATION APPEAL RIGHTS AND TIME LIMITS This Order/Determination 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) days of the date this Order/Determination was issued. CONTENTS OF HEARING REQUEST i Under 310 CMR 1. 01(6) (b) , the request must state clearly and concisely the facts which are the grounds for the request, and the relief sought. Additionally, the request must state why the Order/Determination is not consistent with applicable laws and regulations. FILING FEE AND ADDRESS The hearing request along withh - a valid check payable to Commonwealth of Massachusetts in the amount of $100 must. be mailed to: Commonwealth of Massachusetts Department of Environmental Protection P.O. Box 4062 Boston, MA 02211 The request will be dismissed if the filing fee is not paid, unless the appellant is exempt or granted a waiver as described below. EXEMPTIONS 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. REQUEST FOR DEPARVY ENTAL ACTION FEE TM-UNSMI TAL FORM Department ofEnvironmenta!Protection Division of Wetlands and Water ways PEEZ.SON/P.ARTY ilvfAKLNG RE'QUE.�1: APDT TC-AdN 1: (If anpreori= name the citizen (As shown an Vatic=of Intent ;raup's represcntative) or R=uesc far De:cminatian) Name: Name: Sa S Cirii Town: Cityt sown: _ I Z•io Code: State: Zip Code: Phone Number. P'eje=: Location: DE? F:ie Number. Date Lccai or Supersedin-OrderT'e•.c:iiinacion Issued: -mount,of rtiing Fes_ Aaacac•: S INSg,MU=1 ONS: irr DE'a_R',,y=. -% iC::ON R,=, =1 i': (c=r-.'c one) Rzquest for Superseding Order at Conditions (5.50) _ Recucst for Supersedin-Der^-,inzaon of Appiir_bilirl (S50) 1. Send this form and a c -- or money order for S=0M,payable to tc Co=cnwcaith of lfassac:user. tc he DE?Lock Sox at: kept. of Envircnmentai Prom-;on pax 406E Boston, ?VU, 022II _. Send a cony of this farm and a cnpy of:he c!7,=k or money order with d c R.:_es:fcr a Superseding Ord_:of Conditions or Sucersei,ing De•.-n-ninatian of Aeaii=biiiry rote approc^:ate DEF R.- anal 0 -c_: DE'/Narthe s:Regional OFc= DE/Sauthe=Rcgianai Ota:c_ 10 CJmme..-cr Way 20 Riverside Dr_. Route 105 Woburn, MA 01301 Lakeville, 072-7 DE'!Crzaa1 Rcgionzi 0Fr_ DE"Western Regional CEc= 75 Crave Sate: 436 Dwighc Sim= Warester,ti(A 01605 State House Wes:. 4th Fcer Sarin; eid, yL-. 01105 .W,;y(irs DE?An"TlY=lAL.AC-:ON REQUESTIM IS: (check one) _ R,rqucst for Adjudicararl Hearing(51C0) _ R.=:cst;or'Non —kings" Var.•anc=(�•C�0) _ R=u=t to Inter tone in Adjudic•cr-/Proc.._.:ing(S 1C0) _ R.runt far'i.:kings"Natant=(S i00) I. Send this form and c.Z�.tC or mcnr/order, payabie to the Commamxcith of M. ss: hose=• in '�c indictrd amount to the DE' Lock Sox (at the above address) and _- Send a copy of this farn=d'a copy of the Q�ck or money ordc wit:: the Rcc_-s:for Deparr-n==l Ac:on to: Dock=Cleric OFc=of General Caunsci 1 Winter Sire-_% Boston, LM A 02 108 clrc-i.a:V'M 5c3_ TOWN OF BARNSTABLE BARNSTA9LE. OFFICE OF TOWN ATTORNEY . MASS.079• eg 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)790-6280 RUTH J. WEIL, Assistant Town Attorney NIGHT LINE-.AFTER 4:30 P.M. CLAIRE R. GRIFFEN, Legal Assistant (508)790-6283 EILEEN S. MOLLICA, Legal Clerk FAX N(508)775-3344 March 6, 1998 Mrs. Phyllis A. Day, Clerk Barnstable Superior Court, Civil Division County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630 Re: C.A. No. 98-97 Ohanian v. Barnstable Conservation Commission Our File Ref: #98-0025 Dear Mrs. Day: Enclosed herewith please find Answer interposed on behalf of the Defendant, the Town of Barnstable Conservation Commission, together with Certificate of Service, which we would appreciate your filing with the .Court. Thank you. Sincerely, RJW:cg R th J. Weil, sst. Town Attorney, Encs. T6wn of Barnstable cc: Michael D. Ford, Esq. � T N0 WR MAR - 9 1000 BARNSTABLE CONSERVATION [98-00281day1 ans] COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-97 MICHAEL OHANIAN and VIRGINIA ANSWER TO OHANIAN, Trustees of 135 SOUTH COMPLAINT. BAY ROAD REALTY TRUST, Plaintiffs, V. DR. ERIC G. STRAUSS, AUDREY A. ) OLMSTEAD, ELISABETH EATON . ) CLARK, ROY CATIGNANI, ALBERT O. ) BARBOUR, EDWARD O. HANDY, as they ) are Members of the BARNSTABLE ) CONSERVATION COMMISSION, ) Defendants. ) As to INTRODUCTION: 1) The introductory paragraph of Plaintiffs' Complaint calls for a conclusion of law and, therefore, no answer is necessary. As to JURISDICTION: 2) Paragraph "2" of the Plaintiffs' Complaint calls for a conclusion of law and, therefore, no answer is necessary. As to PARTIES: 3) Neither admit nor deny the allegations set forth in paragraph "3" of J Plaintiffs' Complaint by reason that said Defendants have insufficient information to form a belief as to its truth or falsity. 4) ADMIT the allegations set forth in paragraph "4," sub-paragraphs "a" through T' of Plaintiffs' Complaint. [98-0025'ansohani] As to FACTS: 5) Neither admit nor deny the allegations set forth in paragraph "5" of Plaintiffs' Complaint by reason that said Defendants have insufficient information to form a belief. 6) As to the allegations contained in paragraph "6" of the Plaintiffs' Complaint, the Defendants ADMIT only so much of the allegations set forth therein wherein Plaintiff alleges that "Plaintiffs ::. filed a Notice of'-Intent with the Commission..." and as to the remaining allegations or any portions thereof contained therein, Defendants neither admit nor deny the allegations set forth therein but state that Exhibit A referenced therein speaks for itself, and further answering, DENY each and every other allegation not specifically admitted herein. 7) ADMIT the allegations set forth in paragraph 7" of Plaintiffs' Complaint; but in further answering, state that said public hearing was continued to November 25, 1997. 8) ADMIT only so much of the allegations set forth in paragraph "8" of Plaintiffs' Complaint wherein-Plaintiffs allege that agents of the Plaintiffs presented a shellfish survey and report ..." and specifically DENY all remaining allegations therein contained. 9) ADMIT the allegations set forth in paragraph "9" of Plaintiffs' Complaint with the exception of the allegation wherein Plaintiffs allege that George Hampson is a shellfish biologist, and as to said allegation, Defendants neither admit nor deny the allegations set forth therein because they are without sufficient information to form a belief. [98-00251ansohani] 2 i 10) ADMIT the allegations set forth in the first sentence of paragraph "10" of Plaintiffs' Complaint; but as to the remaining allegations of said paragraph, Plaintiffs call for a conclusion of law and, therefore, no answer is necessary. 11) ADMIT the allegations set forth in paragraph "11" of Plaintiffs' Complaint and further state that Plaintiffs' reference to Exhibit B speaks for itself. 12) ADMIT the allegations set forth in paragraph "12" of Plaintiffs' Complaint. As to the DECISION: 13) DENY the allegations set forth in paragraph "13" of Plaintiffs' Complaint. 14) DENY the allegations set forth in paragraph "14" of Plaintiffs' Complaint. 15) DENY the allegations set forth in paragraph "15" of Plaintiffs' Complaint. 16) DENY the allegations set forth in paragraph "16" of Plaintiffs' Complaint. 17) DENY the allegations set forth in paragraph "17" of Plaintiffs' Complaint. 18) DENY the allegations set forth in paragraph "18" of Plaintiffs' Complaint. 19) DENY the allegations set forth in paragraph "l9" of Plaintiffs' Complaint. [98-00251ansohanil 3 20) DENY the allegations set forth in paragraph "20" of Plaintiffs' .Complaint. 21) DENY the allegations set forth in paragraph "21" of Plaintiffs Complaint. 22) Defendants DENY all remaining allegations in said Complaint contained not hereinbefore specifically admitted. . FIRST AFFIRMATIVE DEFENSE: The Plaintiffs' claims fail to state a claim upon which relief can be granted,. and, therefore, Plaintiffs' Complaint should be dismissed. SECOND AFFIRMATIVE DEFENSE: The Plaintiffs are barred from recovery under itheir Complaint because said Plaintiffs did not commence this action within the time specified under the applicable statutory limitations and, therefore, Plaintiffs' Complaint should be dismissed. THIRD AFFIRMATIVE DEFENSE: Plaintiffs have failed to comply with the applicable ordinances, regulations and guidelines under Article 27 of the Town of Barnstable Wetlands Ordinances and, therefore, Plaintiffs' Complaint should be dismissed. .WHEREFORE, the Defendants respectfully pray for judgment against the Plaintiffs as follows: (1) That a decree be entered dismissing Plaintiffs' Complaint herein; (2) That a decree be entered affirming the Decision of the Barnstable i Conservation Commission in all respects; [98-00251ansohani]. 4 (3) That judgment be entered in Defendants' favor under all counts of Plaintiffs' Complaint; (4) That Defendants be granted their costs, disbursements, and attorneys' fees in the defense of this action; and, (5) That Defendants be granted such other and further relief as to this Court it deems just and appropriate. Dated: March 6, 1998. i STRAUSS, et al, CONSERVATION COMMISSION, TOWN OF BARNSTABLE, Defendants, By thei Attorney, ROBERT D. SMI H Town Attorney [B.B.O. No. 4699 0 RUTH J. WEIL, A istant Town Attorney [B.B.O. No. 5192851 TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: MICHAEL D. FORD, ESQ. [B.B.O. No 174440] Attorney for Plaintiff 72 Main Street, P:O. Box 665 W. Harwich, MA 02671 (508) 430-1900; (508) 430-8662 Fax [98-0025Wsohani] 5 CERTIFICATE OF SERVICE Barnstable, ss: March 6, 1998. 1 hereby certify under the pains and penalties of perjury, that I caused to be mailed by first-class mailing, postage prepaid, a copy of the above document to the attorney for the above-named parties on the d itten CI riff , Le a(/Assistant Town of Ba nst le 367 Main Street, New Town Hall Hyannis, Ma 02601-3907 (508) 790-6280; (508) 775-3344 FAX [98-00251ansohanil 6 :5 H 1.3 _ r iL � o �\. -0.0 ;� d` 4y w 0. AL ALL . 0.4 J. 0.5 2q ® o x -1.0 *6`� —2.0 Qy 5 x —1.2 7Q _ - o 176 o k, O'NQtila,✓ * DENOTES PROPOSED o 9 0 20' —2. .+ /2 X72�Sq_ X�RQ K E Sr9/'7p4ES B x —2.1 qYS Q- A F �sr pp, r0 A6 g4fA 2S, x —2.9 / •W. 1.3AL AL AL ,dtc o 0AL .0 ;� a Myw + • • .4 0. gCCF �s' . -0.0 �RS 1.0 „ �Q of • . AL AIL • • IL 0.5 24 ® o „3 x 4t • 36 x o ._ x -1.0 o �! x -0 N ss • -2.0 x -1.2 Q� 6 o 76 O k O l-lQAv14,✓ * DENOTES PROPOSED OA x/2 Sg F X RKF.SRIIPZEs M1 e X X� �i B x —2.1 ,10- �22 TO A' G �P x -2.9 a _ v line, �� O Bo Ilan '. �. ° ,` ►aQ°v 'n n y p 1 10 Sl Marya\% o •a o Island PbnPt V�4 "Isabella � _ �O 8—%• BOO \I•✓ -�tq �0 10 Tims Ttima O e • .�.'. �o� sa .I:: ��--- Handy. Pt p q p k, iana� oo Bch i� • lllJ// ',�. .r p� Noisy 's ? TS o a �, �•.� Pt ° • o ° �Ba� a Park4 7 ` o. • II •, �" 0 q • O O 20 0 i Ista Osad Beach Ors .. a ors :.l:. er ] 6. /a a 10 U. S. G. S. QUADRANGLE BAXTE- & N1F• INC. 812 11AAIN 5 fREET OSTERVIL"E. MAdS•f 02655 (50L3)-428- •0131 G_ .` Attachment B ►.��... ate. „� �ti S ��s....... e s+ iaa'w a. 11.00 �- 43 1.43At © d /1 7AG Ioa,� 77 t�• • �a 60 � a Are ,w I.116AC. L L 1 � � 57 tic-a 1.3a��' O Sa iw • 111 ~ � �^q� 1ao cASQ ENV, AZ 4.1 1 r ` 0 ! f " 1.L ASSESSORS MAP °13 BAXTER do NYE, INC. 812 MAIN STREET OSTERVILLE, MASS., 02655 (508)-428-9131 Attachment C LIST OF ABUTTERS Michael & Virginia Ohanian Locus Map 93 Parcel 64 Map No. Parcel No. Name and Address 93 44 Paul & Phyllis Fireman C/o PFP Assoc. , Suite 905 1601 Forum Place W. Palm Beach, FL 33401 93 45-2 Carolyn C. Lane 45-1 132 South Bay Road Osterville, MA 02655 93 56 Barnstable Conservation Foundation, Inc. P. 0. Box 224 Cotuit, MA 02635 93 .57 Marion Sawyer & M. Dewitt & Schultz & Farrington, .Trs. 43 Tur leba R ad Marsto s_Mill_s, MA 02648 �_. 93 58-5 Brian T. Dacey, Trustee 58-6 Caddy Camp Holding Trust 58-7 P. 0. Box 95 58-8 Centerville, MA 02632 93 65 Jeanne M. Gordy 40 Cove Island Road Centerville, MA 02632 93 66 Timothy Largay & Karen S. Largay 7 Highwood Circle Avon, CT 06001 Attachment D r LAW OFFICES OF JOHN R. ALGER, P.C. ATTORNEY AT LAW 886 MAIN STREET P. O. BOX 449 OSTERVILLE, MA 02655-0449 TELEPHONE(508)428-8594 - FAX (508) 420-3162 NOTIFICATION TO ABUTTERS UNDER THE MASSACHUSETTS WETLANDS PROTECTION ACT TOWN OF BARNSTABLE ORDINANCES, ARTICLE XXVII RE: Michael Ohanian and'Virginia Ohanian, Trustees, 135 South Bay Road Realty Trust TO WHOM IT MAY CONCERN: As a person listed as an abutter,or owning property within 300 feet of the above mentioned property, please be advised that a Notice of Intent has been filed at the Barnstable Conservation Commission regarding the above referenced location which is subject to protection under the Wetlands Protection Act and Ordinances of the Town of Barnstable. Additional detail is as follows: APPLICANT: Michael Ohanian and Virginia Ohanian, Trustees 135 South Bay Road Realty Trust PROPERTY LOCATION: 134 South Bay Road, Osterville, Town of Barnstable ASSESSORS MAP: Map No. 93 Parcel No. 64 PROJECT DESCRIPTION: To construct a boardwalk and pier with access steps extending 98 feet from mean low water together with a 6'x32' ell and one 6'x24' float with ramp. AGENT: John R. Alger 886 Main Street P. 0. Box 449 Osterville, MA 02655 ENGINEER: Baxter&Nye, Inc. 812 Main Street Osterville, MA 02655 PUBLIC HEARING: Barnstable Town Hall Hearing Room- 2nd Floor Date: September 9, 1997 Time: 7:00 p.m. i Plans and application describing the proposed activity are on file with the Barnstable Conservation Commission and in the offices of John R. Alger, P.C. and may be examined at those locations between the hours of 8:30 a.m to 4:30 p.m., Monday through Friday. If you have any questions or desire to comment for the record, do not hesitate to contact Mr. Alger at (508) 428-8594 or the Barnstable Conservation Commission at (.508) 790-6245. NOTE: Notice of the public hearing, including its date, time and place will be published at least five (5) days in advance in the Barnstable Patriot. NOTE: Notice of the public hearing, including its date, time and place will be posted in the Town Hall not less than forty-eight (48) hours in advance. NOTE: You also may contact your local Conservation Commission or the nearest Department of Environmental Protection Regional Office for more information about this application or the Wetlands Protection Act. To contact DEP, call (508) 946-2800 (Southeast Region). Attachment E Trial Court of Massachusetts 3a DOCKET NUMBER , ,CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT Barnstable Division PLAINTIFF(S) DEFENDANT(S) Michael Ohanian and Virginia Ohanian Eric G. Strauss, et al as they are members of the Barnstable Conservation Commission ATTORNEY(S)FIRM NAME,ADDRESS AND TEL.) 508-430-1900 ATTORNEY(S)(if known) Michael D. Ford, Esq. Robert D. Smith, Town Attorney - Box 665, W. Harwich, MA. 02671 Town Hall, 367 Main St. , Hyannis, MA. 02601 Board of Bar Overseers # (Required) 174440 508-790-6280 . ORIGIN CODE AND TRACK DESIGNATION Place an ® in one box only: 1. F01 Original Complaint ❑ 4. F04 District Ct. Appeal c231, s. 97 (X) ❑ 2. F02 Removal to Sup. Ct. c 231, s. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from ❑ 3. F03 Retransfer to Sup. Ct. c 231, s. 102C (X) judgment/order (Mass. R Civ. P. 60 (X) ❑ 6. E10 Summary process appeal (X) TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side) C NO.r TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? Appeal o Conservation Commission ender (X ) ❑ Yes x0 No Chapter Z49, Sec. 1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions) This is an appeal in the nature of certiorari pursuant to General Laws Chapter 249, Section 4 from a decision of the Barnstable Conservation Commission which denied an Order of Conditions to construct a boardwalk and pier with access steps extending 98 feet from mean low water together with 61X321 ell and one VX24' float with ramp at 134 South Bay Road, Osterville, MA- 2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY, MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY WOULD EXCEED $25,000: 3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT. i i SIGNATURE OF ATTORNEY OF RECORD R PLAINTIFF DATE 2/12/98 OFFICE, ONLY . • NOT-WRI'TE*BELOW THIS'LINE.' DISPOSITION RECEIVED A. Judgment Entered ' B. No Judgment Entered BY: 1. Before jury trial or non-jury hearing ❑ 6. Transferred to District DATE 112. During jury trial or non-jury hearing Court under G.L. c.231, ❑ 3. After jury verdict s.102C. DISPOSITION ENTERED Q 4. After court finding Dispisition Date BY: ❑ 5. After post trial motion DATE: OCAJ 6-mic 005-6/91 t '.(TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) �autmnnurpttltl� of !�tt>g>Rttrl�u>>3ri#� . BARNSTABLE, ss. SUPERIOR COURT No. 98-97 . MICHAEL ONANIAN AND VIRGINIA ONANIAN, TRUSTEES OF 135 SOUTH BAY ROAD REALTY TRUST VS. DR. ERIC G. STRAUSS, ET AL AS THEY ARE MEMBERS OF THE BARNSTABLE CONSERVATION COMMISSION SUMMONS To die above-named defendant TOWN CLERK OF BARNSTABLE You are hereby summoned and required to serve upon. ...........Michael D. Ford, Esq. ... ........ ....... .... ....................... .................................. . ... ........... ..... plaintiff's attorney, whose address is P.O. Box 665, West Harwich, MA. 02671 .......................... , an answer to the ...................................................r,,....................................... ........................ complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, ROBERT A. MULLIGAN, Esquire, at Barnstable, the ...... ....12.tth.......................................... day of ........February......................... ......... . in the year of our Lord one thousand nine hundred and eighty-nine................ q/ i ' 6 Clerk NOTE: When more than one defendant is involved, the names of.all defendants shall appear in the caption: If,a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not .appear personally in court to answer for complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified her-lin and also file (lie original iii the ('1erk's office. COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT MICHAEL OHANIAN AND ) o VIRGINIA OHANIAN, ) TRUSTEES OF 135 SOUTH BAY) ROAD REALTY TRUST ) PLAINTIFFS VS DR. ERIC G. STRAUSS, ) AUDREY A. OLMSTEAD, ) ELISABETH EATON CLARK, ) ROY CATIGNANI, ALBERT 0. ) BARBOUR, EDWARD 0. HANDY ) THEY ARE MEMBERS OF THE ) BARNSTABLE CONSERVATION ) COMMISSION ) DEFENDANTS ) INTRODUCTION 1. This is an appeal in the nature of certiorari pursuant to General Laws Chapter 249, Section 4 from a decision of the Barnstable Conservation Commission (the "Commission") which denied an Order of Conditions to construct a boardwalk and pier with access steps extending 98 feet from mean low water together with 61x32' ell and one 61x24' float'with ramp at 134 South Bay Road, in the Village of Osterville in the Town of Barnstable, Barnstable County, Massachusetts. JURISDICTION 2 . This Court has jurisdiction over this matter pursuant to General Laws Chapter 249, Section 4 . PARTIES 3 . Plaintiffs, Michael Ohanian and Virginia Ohanian, are Trustees .of 135 South Bay Road Realty Trust and reside at 350 Ocean Blvd. , Baco Raton, FL 33432 (hereinafter "Plaintiffs") . 4 . Defendants are the duly appointed members of the Barnstable Conservation Commission and reside as follows: 1 . a. Dr. Eric G. Strauss resides at 651 Main Street, W. Barnstable, MA. 02668. b. Audrey A. Olmstead resides at 3512 Main St. , Barnstable, MA. 02630. C. Elisabeth Eaton Clark resides at 1.2 Bay Street, Osterville, MA. 02655. d. Edward 0. Handy, P. 0. Box 463 , Barnstable, MA. 02668 . e. Roy Catignani resides at 60 Gemini Drive, W. Barnstable, MA. 02668. f. Albert 0. Barbour resides at, 226 Indian Trail, Barnstable Village, MA. 02630 FACTS 5. The Plaintiffs are the owners of residential property located at 134 South Bay Road, Barnstable (Osterville) , Barnstable County, MA. shown as Parcel 64 on Barnstable Assessor's Map Number 93 which property is registered as Certificate Number 137058 and is shown as Lot 6 on Land Court Plan 9592H (the "Premises") . 6. On or about July 2 , 1997, Plaintiffs in accordance with General Laws Chapter 131, §40 and the Town of Barnstable Wetlands Protection Bylaw, Article XXVII filed a Notice of Intent with -the Commission to construct a boardwalk and pier with access steps extending 98 feet from mean low water together with 6'x32' ell and one 61x24' float with ramp at 134 South Bay Road, in the Village of Osterville in the Town of Barnstable, Barnstable County, Massachusetts. (See Exhibit "A" attached hereto) . 7 . On September 9, 1997, the Commission held a public hearing on the Notice of Intent. 8. At the public hearing agents of Plaintiffs presented evidence in support of the project which evidence included a shellfish survey and report prepared by George Hampson, a Shellfish Biologist. 9 . These agents included Peter Sullivan, a registered professional engineer of Baxter & Nye, Inc. 812 Main Street, Osterville, MA. 02655; George Hampson, a Shellfish Biologist of P. 0. Box 323 , North Falmouth, MA. 02356. 10. The Commission closed the public hearing on November 25, 1997. 2 11. On December 15, 1997, the Commission issued a Decision denying the project. (See Exhibit B attached hereto) . 12. The Plaintiffs have appealed to the Department ' of Environmental Protection for a superseding order under General Laws Chapter 131. This action relates to the Commission's denial under the town bylaw. THE DECISION 13 . The Decision of the Commission to deny the Notice of Intent for the Order of Conditions was arbitrary and capricious, constituted an error of law, constituted an .abuse of discretion, exceeded the authority of the Commission, was against the weight of evidence . .presented at the public hearings and was otherwise unlawful. 14 . The Decision of the Commission was arbitrary and capricious and a substantial error of law because there was no rational basis for the Commission to conclude based on the evidence presented that the proposed project would harm the environmental interests protected by the State Act and the Town Bylaw. The evidence presented showed that the pier would not have a negative impact on the interests to be protected and would not diminish the number of shellfish. Moreover, the proposed pier meets all the standards and criteria of the relevant wetlands laws and regulations. 15. The Decision of the Commission is defective on its face because the Commission failed to apply the appropriate criteria and .make the necessary findings. 16. As part of the denial the Commission found that the proposed pier posed significant adverse impacts to the protection of land containing shellfish and marine fisheries because of shading and habitat loss stemming from pile emplacement. This finding is not supported by the .record and is an error as a matter of law. 17 . The Commission found that the de facto loss of existing shellfish habitat by pile placement to represent an unmitigable and unacceptable loss of said habitat. This finding is not supported by the record, is arbitrary and capricious and a substantial error of law. 18. The Commission found that the pier would pose a significant adverse impact to public trust rights and recreation in that access to shellfish is significantly reduced. This finding is inconsistent with the record and is an error as a matter of law. 3 19. The Commission found that the proposed pier would pose a significant adverse cummulative impact to the preservation and maintenance of the high levels of natural shellfish productivity of the area. This finding is inconsistent with the evidence and an error of law. 20. The Decision of the Commission, where the proposed pier would not harm the environmental interests protected by the Wetlands Protection Act and the Town Bylaw, is manifestly unjust. 21. The Plaintiffs are aggrieved by the Decision of the Commission. CLAIMS FOR RELIEF WHEREFORE, Plaintiffs request that this Honorable Court: 1. Issue an Order that the denial of the Notice of Intent and the Order of Conditions dated December 15, 1997, was error as a matter of law; or, in the alternative 2 . Remand the matter back to the Conservation Commission for further proceedings to set appropriate restrictions under which the proposed pier project could be carried out; 3 . For such other relief as this Court deems meet and just under the circumstances. -- Plaintiffs Respectfully submitted, ichael D. Ford, Esq. P. O. Box 665 W. Harwich, MA. 0267 (508) 430-1900 BBO#174440 c:\aata\ohAnian.com A COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE ARGEO PAUL CELLUCCI TRUDY COXE Governor - Secretary DAVID B. STRUHS Commissioner February 11, 1998 Michael Ghanian RE: Barnstable - Wetlands c/o John R. Alger, P.C. File No. ,SE 3-3237 886 Main Street, P.O. Box 449 Request for Information Osterville, MIA 02655-0449 Dear Mr. Ohanian: The Department of Environmental Protection is reviewing the above-referenced file prior. to the issuance of a Superseding Order of Conditions regulating the proposed construction of an elevated pier over and into the waters of West Bay. West Bay, and specifically the project site has been designated Land Containing Shellfish by the Massachusetts Division of Marine Fisheries pursuant to 310 CMR 10 . 34 (3) (a) as well as a shellfish relay. site . Therefore, the Department is requesting the investigation of alternatives to placing pilings within the shellfish habitat from the seaward edge of the beach to -3 . 1 ' feet mean low water. Such alternatives include but are not limited to aluminum ramps, fiberglass or aluminum floats, or other suitable materials and consider reducing the size of the proposed the structure . The Department request that you submit the revised plans within sixty (60) days of the date of this letter. Failure to do so may result in the Department' s denial of the project for lack of information (310 CMR 10 . 05 (7) (g) . Please submit the requested plan to my attention at the above address or call me at (508) 946-2734 if you have any questions . Sincerely, Mitch Ziencina Environmental Analyst lF EB*12 1998 ;. Wetlands And Waterways Progra CC : Barnstable Conservation Commission BARNSTABLE CONSERVATION Michael Ohanian MDMF, 50A Portside Drive, Pocasset, MA 02559 Att : Paul Caruso 20 Riverside Drive 0 Lakeville, Massachusetts 02347 • FAX(508) 947-6557 • Telephone (508) 946-2700 r COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE ARGEO PAUL CELLUCCI Governor TRUDY COXE 'p y Secretary o Lanuary 8, 1998 DAVID B. STRUHS C � Commissioner Michael & Virginia Ohanian RE: BARNSTABLE-Wetlands c/o John R. Alger, P. C. File No. SE 3-3237 P.O. Box 449 Superseding Order of Osterville, MA 02655-0449 Conditions On-site Dear Mr. & Mrs . Ohanian: The Department of Environmental Protection has scheduled an on-site meeting on the above-referenced file for all concerned parties so that the Department can properly evaluate the situation and issue an appropriate Superseding Order of Conditions and 401 Water Quality Certificate in accordance with Chapter 131, Section 40 and Chapter 21, Section 43 , 314 CMR 4 . 00, 314 CMR 9 . 00, and Section 401 of the Federal Clean Water Act as amended (Public Law 95-217) . This information is available in alternate format upon request format upon request to Bette Stewart, ADA Coordinator; BAS/HR, 4th floor, One Winter Street, Boston, MA. 02108 . For Special accommodations for this event contact. Wetlands & Waterways Program at (508) 946-2734 . Said meeting has been scheduled for January 27, 1998, at 11:45 a.m. In order to expedite the Department' s review of the project, it is recommended that the applicant have , the wetland resource areas and significant project components identified in the field at the time of the above scheduled on-site . If you have any questions regarding this matter, please contact me at (508) 946-2734 . Very truly yours, liev, G1encina Wetlands & Waterways Program CC: Barnstable Conservation Commission Division of Marine Fisheries 50A Portside Drive Pocasset, MA 02559 �.. . . Attention: Sports Fisheries (a (� O is ll�vJJ l5 (J Trumen Henson, MCZM �I 3225 Main Street I Barnstable, MA 02630 JA N 9 IQQA Michael & Virginia Ohanian -� 350 South Ocean Blvd. BAR1ySTA8LE.CONSERVATIQN Boca Raton, FL 33432 - 20 Riverside Drive 0 Lakeville, Massachusetts 02347 0 FAX(508) 947-6557 • Telephone (508) 946-2700 c� COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE TRUDY COXE ARGEO PAUL CELLUCCI Fy Secretary Govemor T DAVID B. STRUHS 0J Commissioner December 26 , 1997 John R. Alger RE: BARNSTABLE--Wetlands 866 Main Street, P .O. Box 449 File No. SE 3237 Osterville, Massachusetts 02655-0449 Appeal/Acceptance for Superseding Order of Conditions Dear Mr. Alger: Please be advised that the Department of Environmental Protection has received your appeal to the Order of Conditions issued on the above-referenced file and that, in accordance with General Laws, Chapter 131, Section _40, the Department of Environmental Protection will make a determination on whether the area on which the proposed work is to be done -is significant to public or private water supply, to the ground water supply,-.to- flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of fisheries, and to the protection of wildlife habitat . After making such determination, the Department of Environmental ProtectWollwill contribute to the ding ordr protection imposing ofthe such conditions as interests described herein. If the appellant is other than the applicant, please be advised that a copy of your appeal must immediately be sent certified mail or hand delivered to the Conservation Commission and the applicant in accordance with 310 CMR 10 . 05 (7) (d) . The applicant is advised that no work, as proposed in the Notice of Intent for the above-referenced file, shall be undertaken until the Final Order is issued by the Department of Environmental Protection, and all appeal periods have elapsed. If you have any questions or need additional information, PLEASE-CONTACT Tena J. Davies at (508) 946-2804 . 15. Ver _truly yours, - C.3.�• �97 Eli; a7�eCh A. DE Koiz��oY#eras, Chief wetlands -Section K/TJD BARNSTABLE CONSERVATION 20 Riverside Drive 0 Lakeville, Massachusetts 02347 0 FAX(508) 947-6557 ' 0 Telephone (508) 946-2700 -2 cc : J-�Barnstable Conservation Commission Michael "Ohanian & Virginia Ohanian, Trustees 135 South Bay Road Realty Trust 350 South Ocean Blvd. Boca Raton, FL 33432 MDMF - Sports Fisheries Biologist 50A Portside Dr. Pocasset, MA r P LAW OFFICES OF JOHN R. ALGER, P.C- ATTORNEY AT LAW 886 MAIN STREET P. O. BOX 449 OSTERVILLE, MA 02 6 5 5-044 9 TELEPHONE(508)428-6594 FAX (508) 420-3162 December 17, 1997 CERTIFIED MAIL - RRR Department of Environmental Protection Division of Wetlands and Waterways Southeast Regional Office R 20 Riverside Drive D 15 Route 105 Lakeville, MA 02347 ��' 8 W7 Re: DEP File_.SE3-323.7 BARNSTABLE CONSERVAT!01? Dear Sir/Madam: Michael and Virginia Ohanian hereby request the issuance of a Superseding Order permitting the work described in a Notice of Intent in DEP File SE3-3237 to construct a boardwalk and pier with access steps extending 98 feet from mean low water together with a 6'x32' ell and one 6'x24' float with ramp in the Village of Osterville in the Town and County of Barnstable (the"Project"). The Town of Barnstable Conservation Commission (the"Commission") issued an Order of Conditions for the Project on December 15, 1997 (copy enclosed). The Commission densed the Project and its findings and special conditions contained in the Order of Conditions are not authorized by G.L.c. 131§40 for the reasons stated below: 1. The Project as currently proposed meets the performance standards of 310 C.M.R. section 10.00 et 2. The evidence presented by the applicant at the Public Hearing before Commission established that there would be no effect by the Project on any area subject to protection. There was no evidence offered to the contrary which would justify findings 1-10 contained in the Order of Conditions and the same are therefore without basis. Further, the decision setting forth the interests of public trust rights and recreation, land containing shellfish, protection of wildlife are without foundation in i Department of Environmental Protection -2- December 16, 1997 the record and do not contribute to the protection of the interests identified. 3. There was no evidence presented as:to.any, interferences.with any small boats or, recreational boating nor was there any evidence of shellfish presented,other than the transported polluted shellfish replanted by the Department of Natural Resources. For the reasons above stated the applicants request that the Department view the site.and issue a Superseding Order of Conditions allowing the Project as proposed in the Order of Conditions. . Very truly yours, JRA/bt Enclosures c.c. Town of Barnstable Conservation Commission (via Certified Mail) ✓ Department of Environmental Protection - Boston 310 CMR 10.99 Form 5 DEOE File No. SE#3-3237 �• CF THE Tp (To be prov+oeo oy 0EQEi v .- - Commonwealth •� City.Town Barnstable '+ of Massachusetts 111ARISTA311 Applicant Qh^^' ^ :. MARL 059. .L. Order of Conditions Massachusetts Wetlands Protection Act G.L. c. 131, §40 TOWN OF BARNSTABLE ORDINANCES, ARTICLE XXVII From Barnstable Conservation Commissio 135 South Bay Rd. Realty Trust To michael and Virginia0hanian 350 South Ocean Blvd. , Boca Raton FL 33432 (Name of Applicant) (Name of property owner) C/o John Alger 886 Main Street, PO Box 449 Osterville Address Mft 82655 Address Map Number 93 Parcel Number 64 This Order is issued and delivered as follows: ❑ y hand delivery to applicant or representative on (date) p by certified mail. return receipt requested on Dec. 15, 1997 (date) This project is located at 134 South Bay Rd. , Osterville The property is recorded at the Registry of Deeds in Barnstable Book Page Certificate (if registered) 137058 being Lot 6 on Land Court Plan 9592H The Notice of Intent for this project was filed on jillu 9, t Ag- (date) The public hearing was closed on Nov 25, 1997 (date) Findings The Barnstable Conservation Commission has reviewed the above-referenced Notice of Intent and plans and has held a public hearing on the project. Based on the information available to the 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 Presumptions of Significance set forth in the regulations for each Area Subject to Protection Under the Act(check as appropriate): ❑ Public water supply CR� Flood control Er'�Land containing shellfish ❑ Private water supply C3�Storm damage prevention Cl-'Fisheries ❑ Ground water supply CD-"'Prevention of pollution [Protection of wildlife habitat Total Fling Fee Submitted State Share $228.50 City/Town Share $25 • ('/_fee in excess of S25) Total Refund Due S City/Town Portion S State Portion S ARTICLE 27 Only: (1/2 total) (1/2 total) 0-- Public Trust Rights ❑ Agriculture Erosion Control ❑ Aquaculture []'Recreational j] Historic 13"Aesthetic SE3-3237-Ohanian Submitted plan=Sept.30, 1997 revised site plan by Stephen Wilson,R.P.E. Findings: 1. The proposed pier is located in West Bay,an increasingly crowded basin from the standpoint of boat moorings, piers,power and sailboat recreational use,and of sailing instruction programs for youth. The Commission finds the proposed pier to pose both a significant adverse impact and significant cumulative impact on public trust rights and recreation as they pertain to recreational navigation in West Bay. The Commission finds that in particular,small-craft recreational sailboating will be adversely affected should the pier be constructed. 2. The Commission finds the proposed pier to reside in a coastal beach,salt marsh, land under the ocean and land containing shellfish all presumed to be,and found by the Commission significant to the statutory interests of the protection°of-land containing shellfish,marine fisheries,-and prevention of pollution. Under Article 27,the locus and project are significant to those same interests and to the interests of public trust rights and navigation. 3. The shellfish habitat at the locus is found very productive and important for both hard and soft shell species.The Natural Resources Division has documented the importance of the shellfish habitat at the site,and has recommended against the present project. 4. The Commission finds that the proposed pier poses significant adverse impacts to the protection of land containing shellfish and marine fisheries because of both construction-related(i.e. shading, habitat loss from pile emplacement)and use-related(i.e.heightened turbidity,bottom scour) effects. Moreover,the Commission finds the de facto loss of existing and productive shellfish habitat by pile placement to represent an unmitigatable and unacceptable loss of said habitat. 5. The Commission finds the pier to pose a significant adverse impact to public trust rights and recreation in that access to the shellfishery is significantly deterred. 6. The Commission finds the proposed pier to pose a significant adverse cumulative impact to the preservation and maintenance of the high levels of natural shellfish productivity of the area. 7. The Wetland Regulations 310 CMR 10.05 (6b)establishes that the Order of Conditions shall prohibit any work or portion thereof that cannot be conditioned to meet performance standards. 8. Article 27 of the Town of Barnstable Ordinances(section 11)requires that an applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application will not have an unacceptable significant and cumulative effect upon the wetland values protected by this ordinance. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit. 9. The Commission finds that the burden of proof was not met in the present case. 10. Moreover,Article 27 of the Town of Barnstable Ordinances provides that the Commission is empowered to deny a permit for failure to avoid or prevent unacceptable significant or cumulative effects upon the wetlands values protected by this ordinance;where it is deemed that the denial is necessary to preserve environmental quality of resource areas; and where no conditions are adequate to protect those values. Decision: The project is denied under Massachusetts General Law Chapter 131, Section 40 in the interests of protection of land containing shellfish,protection of fisheries,and prevention of pollution.The project is denied under Article 27 of the Town of Barnstable Ordinances in the foregoing interests,and in the interests of public trust rights and recreation. Therefore, the Barnstable Conservation Commission hereby finds that the following conditions are necessary, in accordance with the Performance standards set forth in the regulations, to protect these interests checked above. The Commission 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. . This' order,does• not- grant-,any property rights, or zany, 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. The recording information 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 SE3-3237 w 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. 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. Issued By BARNSTABLE Conservation Commission S' urefs) This Order must be signed by a majority of the Conservation Commission. _ /�7 day of �/ ��m-P�� 19 —. before me On this personally appeared AUDREY A. OLMSTEAD * , 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. _ MY COMIvilSSlOIt EXPInES • Notary Public My commission expires The applicant.the owner,any person aggrieved by this Order.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 Department of Environmental Quality Engineering to issue a Superseding Order, providing the request is made by certified mail or hand delivery to the Department within ten days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and the applicant. Detach on Dotted Line and Submit to the Issuer of this Order Prior to Commencement of Work. To Barnstable Conservation Commission (Issuing Authority) PLEASE BE ADVISED THAT THE ORDER OF CONDITIONS FOR THE PROJECT AT 134 South Bay Rd. , Osterville FILE NUMBER SE3-3237 HAS BEEN RECORDED AT THE REGISTRY OF ON (DATE) If recorded land. the instrument number which identifies this transaction is If registered land. the document number which identifies this transaction is I Signed Applicant ` . 1 �f 310 CMR 10.99 Form,5 oEOEFieNo. SE#3-3237 (To be Provioea oy Or City.Town Barnstable Commonwealth of Massachusetts t l►SI3 _ nha ni n- ' WL Applicant A W— Order of Conditions Massachusetts Wetlands Protection Act G.L. C. 131, §40 TOWN OF BARNSTABLE ORDINANCES, ARTICLE XMI From Barnstable Conservation Commission 135 South Bay Rd. Realty Trust To Michael and Virginia Ghanian 350 South Ocean BLvd. , Boca Raton FL 334= (Name of Applicant) (Name of property owner) C/O John Alger 886 Main Street, PO Box 449 Osterville Address Address Map Number 93 Parcel Number 64 This Order is issued and delivered as follows: ❑ by hand delivery to applicant or representative on (date) 8/by certified mail. return receipt requested on Dec. 15, 1997 (date) This project is located at 134 South Bay Rd. , Osterville The property is recorded at the Registry of Deeds in Barnstable Book Page Certificate (if registered) 137058 being Lot 6 on Land Court Plan 9592H The Notice of Intent for this project was filed on T„1�z 9, 1997 —(date) The public hearing was closed on Nov. 25, 1997 (date) Findings The Barnstable Conserva i on rnmmigginn 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 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 Er"'Land containing shellfish ❑ Private water supply Storm damage prevention C�Fisheries ❑ Ground water supply 0--Prevention of pollution Protection of wildlife habitat Total Fling Fee Submitted �S7R3_�5 _ State Share $228.50 City/Town Share $25S• (Y.,fee in excess of S255) Total Refund Due S City/Town Portion S State Portion S ARTICLE 27 Only: (1/2 total) (1/2 total) ('Public Trust Rights ❑ Agriculture Erosica Control ❑ Aquaculture Recreational aistoric 01'- Aesthetic SE3-3237-Ohanian Submitted plan=Sept. 30, 1997 revised site plan by Stephen Wilson,R.P.E. Findings: 1. The proposed pier is located in West Bay,an increasingly crowded basin from the standpoint of boat moorings,piers,power and sailboat recreational use,and of sailing instruction programs for youth. The Commission finds the proposed pier to pose both a significant adverse impact and significant cumulative impact on public trust rights and recreation as they pertain to recreational navigation in West Bay. The Commission finds that in particular,small-craft recreational sailboating will be adversely affected should the pier be constructed. 2. The Commission finds the proposed pier to reside in a coastal beach,salt marsh, land under the ocean and land containing shellfish all presumed to be,and found by the Commission significant to the statutory interests of the protection of land containing shellfish,marine fisheries,and prevention of pollution. Under Article 27,the locus and project are significant to those same interests and to the interests of public trust rights and navigation. 3. The shellfish habitat at the locus is found very productive and important for both hard and soft shell species. The Natural Resources Division has documented the importance of the shellfish habitat at the site,and has recommended against the present project. 4. The Commission finds that the proposed pier poses significant adverse impacts to the protection of land containing shellfish and marine fisheries because of both construction-related(i.e.shading, habitat loss from pile emplacement)and use-related(i.e.heightened turbidity,bottom scour) effects. Moreover,the Commission finds the de facto loss of existing and productive shellfish habitat by pile placement to represent an unmitigatable and unacceptable loss of said habitat. 5. The Commission finds the pier to pose a significant adverse impact to public trust rights and recreation in that access to the shellfishery is significantly deterred. 6. The Commission finds the proposed pier to pose a significant adverse cumulative impact to the preservation and maintenance of the high levels of natural shellfish productivity of the area. 7. The Wetland Regulations 310 CMR 10.05 (6b)establishes that the Order of Conditions shall prohibit any work or portion thereof that cannot be conditioned to meet performance standards. 8. Article 27 of the Town of Barnstable Ordinances(section 11)requires that an applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application will not have an unacceptable significant and cumulative effect upon the wetland values protected by this ordinance. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit. 9. The Commission finds that the burden of proof was not met in the present case. 10. Moreover,Article 27 of the Town of Barnstable Ordinances provides that the Commission is empowered to deny a permit for failure to avoid or prevent unacceptable significant or cumulative effects upon the wetlands values protected by this ordinance;where it is deemed that the denial is necessary to preserve environmental quality of resource areas;and where no conditions are adequate to protect those values. Decision: The project is denied under Massachusetts General Law Chapter 131,Section 40 in the interests of protection of land containing shellfish,protection of fisheries,and prevention of pollution.The project is denied under Article 27 of the Town of Barnstable Ordinances in the foregoing interests,and in the interests of public trust rights and recreation. Therefore, the Barnstable Conservation commission hereby finds that the following conditions are necessary, in accordance with the Performance standards set forth in the regulations, to protect these interests checked above. The Commission 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 modif- 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. This 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 permitter 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. S. 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 l 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-Is Grantor index under the name of the owner of the land upon which the proposed work is to be done. The recording information 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 SE3-3237 ew 10e 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. 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. I Issued By BARNSTABLE Conservation Commission S' sl This Order must be signed by a majority of the Conservation Commission. On this day of �'�-%� 19 _, before me personally appeared AUDREY A. OLMSTEAD , 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. MY COMMISSION'EVi ES 441-S, /f 1 Jam. Notary Public My commission expires The applicant.the owner.any person aggrieved by this Order.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 Department of Environmental Quality Engineering to issue a Superseding Order. providing the request is made by.certified mail or hand delivery to the Department within ten days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and the applicant. Detach on Dotted Line and Submit to the Issuer of this Order Prior to Commencement of Work. To Barnstable Conservation Commission(Issuing Authorityl PLEASE BE ADVISED THAT THE ORDER OF CONDITIONS FOR.THE PROJECT AT * 134 South Bay Rd. , Osterville , FILE NUMBER SE3-3237 , HAS BEEN RECORDED AT THE REGISTRY OF ON IDATEI If recorded land. the instrument number which identifies this transaction is If registered land, the document number which identifies this transaction is Signed Applicant .k 4r j i c • 1 ro C6. ! SOD l a r ( �� � a . i l O f r � A � } ` ° o r . � f ' ' I e . . r i � � - � v v L\r �.✓\ i i � � r 1 � JV � I f r �❑ I { t • � � � . . i �,� - a r. SE3'3 (pier) //Sub ' ed plane dune 1' 6, 1997 rev'sea site by, e 0j �RpE findings: 1• The Commission finds the proposed pier to reside in a coastal beach,salt marsh, land under the ocean and land containing shellfish all presumed to be,and found by the Commission significant to the statutory interests of the protection of land containing shellfish,marine fisheries,and prevention of pollution. Under Article 27,the locus and project are significant to those same interests and to the interests of public trust rights and navigation. 2. The shellfish habitat at the locus is found very productive and imp=t for both hard and sofa shell species.The Natural Resources Division has documented the sta s of the shellfish habitat at the site,and ha recommended against the present project. 3. The Commission finds that the proposed pier poses significant adverse impacts to the protection of land containing shellfish and marine fisheries because of both construction-related(i.e.shading, habitat loss from pile emplacement)and use-related(i.e.heightened turbidity,bottom scour) effects.Moreover,the Commission finds the de facto loss of existing and productive shellfish habitat by pile placement to represent an unmitigatable and unacceptable loss of said habitat. 4. The Commission finds the pier to pose a significant adverse impact to public trust rights and recreation in that access to the shellfishery is significantly deterred. 5. The Commission finds the proposed pier to pose a significant adverse cumulative impact to the preservation and maintenance of the high levels of natural shellfish productivity of the area. 6. The Wetland Regulations 310 CMR 10.05(6b)establishes that the Order of Conditions shall prohibit any work or portion thereof that cannot be conditioned to meet performance standards. 7. Article 27 of the Town of Barnstable Ordinances(section 11)requires that an applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application will not have an unacceptable significant and cumulative effect upon the wetland values protected by this ordinance.Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit. The Commission finds that the burden of proof was not met in the present case. 8. Moreover,Article 27 of the Town of Barnstable Ordinances provides that the Commission is empowered to deny a permit for failure to avoid or prevent unacceptable significant or cumulative effects upon the wetlands values protected by this ordinance;where it is deemed that the denial is necessary to preserve environmental quality of resource areas;and where no conditions are adequate to protect those values. Decision: The project is denied under Massachusetts General Law Chapter 131,Section 40 in the interests of protection of land containing shellfish,protection of fisheries,and prevention of pollution.The project is denied under Article 27 of the Town of Barnstable Ordinances in the foregoing interests,and in the interests of public trust rights and recreation. TRANSCRIPT `. OF THAT PORTION OF MEETING OF THE BARNSTABLE CONSERVATION COMMISSION HELD ON November 25, 1997 AND I CONTAINING THE HEARING ON THE APPLICATION OF I I Michael and Virginia Ohanian i Commissioners present: Eric Strauss Roy Catignani Albert Barbour Elisabeth Clark Virginia Keil Audrey Olmstead Also present: Robert W. Gatewood, Conservation Administrator 1 CHAIRMAN Acting under the provisions of General Law Chapter 1311 2 Section 40, and Chapter 3 Article 27 of the General Town of 3 Barnstable Ordinances, the Conservation Commission will hold a 4 continuance on the hearing, of the hearing for the application 5 of Michael and Virginia Ohanian at 350 South Ocean Boulevard, 6 Boca Raton, Florida to construct a boardwalk and pier with 7 steps together with an ell, float and ramp at Map 93 Parcel 8 64, South Bay Road in Osterville. This hearing is continued 9 until Tuesday November the 25t° and plans for the proposed 10 project are on file at the Commission. 11 Good evening, John. 12 JOHN ALGER Good evening, good evening. 13 CHAIRMAN Thank you. 14 JOHN ALGER These are, I've some more copies of the shellfish, our 15 shellfish study. Two of them were handed in, and I give one 16 up to this end. 17 CHAIRMAN Hang on. Place this one in the public record. 18 MAN • [garbled] sure where we get • [garbled] 19 Paper shuffling 20 JOHN ALGER For the record, my name is John Alger, attorney for Mr. and 21 Mrs. Michael Ohanian. This is a project that originally came 22 before you in September and was postponed because we wished to 23 change the location of the pier, which we did with a new plan 24 and copies I just sent in • [garbled] receipts where new plans 25 were sent to the Department of Natural Resources - [garbled] . 26 I have with me tonight, uh, Bill Nye, of Baxter and Nye, and 27 George Hamson, a marine biologist who has done the shellfish 28 survey in this. This, as you can see, is a private pier on 29 Little Island in Osterville and built with a single pile 30 cantilevered and structured in accordance with the regulations 31 and guidelines of the Commission. I think that on this pier, 32 as probably on others, much is going to depend on the Ohanian-November 25, 1997 1 I shellfish report. And we have the shellfish report by Mr. 2 Marcotti, which shows that a tremendous amount of the polluted 3 shellfish have been deposited on this property and it is now a 4 closed area while these shellfish purify themselves. This 5 study which is filed and showed that there are no, or very, 6 very few, young, natural shellfish in this area. What's 7 there, mostly adults and mostly transplanted adults. Mr. 8 Hamson has conducted a very detailed survey, the results of 9 which are in your hand, and I think, uh, you know, Mr. Nye 10 could explain to you any sections of the plan, but probably 11 the quickest way to get this hearing going is to have Mr. 12 Anderson explain what he did and what he found. 13 COMMISSIONER Sure. 14 WOMAN Just before you go to that, John, could you tell us, um, I 15 don't see where the • [garbled] to this • [garbled] 16 JOHN ALGER Where what? 17 WOMAN The boat to be served. 18 JOHN ALGER We have the boat, Mr. Nye has the - come up here Bill. 19 BILL NYE Bill Nye from Baxter and Nye. The boat to be served is a 20 thirty-six foot Intrepid. An Intrepid is a power boat. It 21 has, uh, it's got an IO and your little inboard outboard, 22 maybe a little bit bigger than you normally see, but they 23 picked this boat for the location. It has a twelve inch draft 24 with the engines up, and thirty-six with the engines down - 25 thirty with engines, I'm sorry, with the engines down. And 26 the boat was picked specifically for this location. 27 MAN Good evening. 28 WOMAN That doesn't, that doesn't give you the one foot. • [garbled] 29 MAN • [garbled] 30 WOMAN You gotta put the engine in dra - in, in dry position mode. 31 MAN - you can, you can just drop the engine slightly, like you 32 can with outboard until you get into that type of water. Ohanian-November 25, 1997 1 WOMAN Oh, okay. Okay. Thank you. 2 HAMSON For the record, George Hamson of Falmouth. I'm the one that 3 performed this shellfish survey and, um, you have before you, 4 uh, two tables, one is, uh, station one to station eight and 5 the next page is, uh, station nine through twenty. And the 6 reason there's two different techniques here is because I, I 7 really like to use this small quadrant and put it through a 8 fine mess screen in order to tell the small individuals. And 9 that's essential what station to eight does. It's a one 10 BREAK IN TAPE 11 HAMSON It's a twelve inch square, uh, sampler which I place on the 12 bottom and then, uh, dig out all the contents and put it 13 through a half a millimeter screen. Uh, I'm sorry a five 14 millimeter screen. And so that, you can get all the 15 juveniles. Uh, the second part is, uh, done with a 16 conventional clam rake, as Mr. Marcotti does and, and that's 17 less accurate for the smaller juveniles, but it does capture 18 some of them. And that was done continuing on the center 19 line, and I also went out to the, to the east and west to 20 accommodate where the, where the piers are going to be. I 21 covered that area too, although I think the town only did one 22 side. 'And what I found, uh, is that, in the, in the 23 quadrants, the twelve inch quadrants, there was a marginal 24 density up until, uh, station eight. There were softshell 25 clams, and, there wasn't really a high density in other places 26 I found a lot more in this area. But, when, when we got onto, 27 uh, station nine through sixteen, continuing on the 28 centerline, as you see, uh, stations fifteen and sixteen I 29 started pick up high density of mercenaria•, but they were all 30 adults. See this is one of the things that was kind of unique 31 here, is I didn't find juveniles and it, it sort of led me in 32 the direction that it was a transplanted area. I knew that, Ohanian-November 25, 1997 3 1 but I, I didn't really appreciate the numbers until I did 2 this. And then I found out by the, the docks station twenty, 3 and nineteen and eighteen, fifteen, sixteen, and seventeen, 4 that's where I had my heaviest concentration. And my opinion 5 is, uh, um, let's say not beyond a reasonable doubt, but I'm 6 pretty, pretty sure that most of the shellfish are of, of the 7 transplanted stock. Uh, so, um, at this point if you would ask 8 me, is this a, a viable shellfish place where naturally the 9 shellfish are coming in, I couldn't answer that. Mainly 10 because it's, it's sort of confusing with the transplanted 11 stock and, and the small one. But I have obtained greater 12 numbers of small juveniles in other places within this general 13 area than this spot. Uh, what can I tell you. Eel grass. I 14 didn't see much eel grass. Uh, oysters, I did not or, or, uh, 15 scallops. And I did not encounter any eel grass, uh, or 16 spartina that be within the dock. And I'm also pleased that 17 your are approving the single post constructions because that, 18 of course, minimizes the damage than any dock at all that 19 built on the Cape it would be nice to see that occur. So, if 20 you have any questions? 21 Yes. 22 CHAIRMAN Liz? 23 LIZ Yeah. I, if there's just one boat to be served, why do we 24 have, uh, what, one, two, three, four, five floats • [garbled] 25 HAMSON • [garbled] want me to answer that. [garbled] 26 LIZ Well, somebody can. I mean, you know, what 27 HAMSON No, I understand. It's a legal question. It's a good 28 questions. 29 LIZ what we do is allow for what is actually needed. 30 WOMAN Exactly. 31 LIZ And no more. Ohanian-November 25, 1997 4 1 JOHN ALGER Part of it is a fixed pier as you look at the plans, an ell to 2 the left. There's only two floats. He has children and 3 grandchildren and so on that have small boats and things like 4 that. 5 LIZ Those could be right along the 6 MAN Well, you use the single file design, you really can't bring 7 boats effectively along the side and keep them out from 8 underneath the pier. 9 -CHAIRMAN Are there other questions? 10 Rob, can we have a review from staff at this point. 11 LIZ I have, I just thought of a question. 12 CHAIRMAN Liz. 13 LIZ I don't see why he couldn't put the dinghies on the outside of 14 the other boat. And why, why do you need that. 15 WOMAN Four bays there. 16 LIZ Um, why do you need the floats when you have a fixed pier that 17 size? 18 MAN You couldn't put the floats outside the big boat, I mean the 19 boats outside the large boat. 20 LIZ Other side of the float from where the 21 MAN Because, 22 LIZ the inland side of those floats. You could put the skiffs 23 - [garbled] place for, you know. 24 MAN This is very technical. And all those piers along there that 25 have the, the children the skiffs, small rowboats and always 26 separated over on that side. 27 LIZ But, but that's just because somebody else has done it that 28 way in the past. What they're trying to do is to limit the 29 intrusion upon the public. 30 WOMAN Public trust. 31 LIZ trust. Ohanian-November 25, 1997 5 1 MAN It's not just skiffs. There are things like waterskiing boats 2 and small sailboats and things like that. He wasn't specific 3 on the kids boats in the changes, but he did say he wanted 4 places for his grandchildren to be able to keep a sailboat or 5 waterski boat, or lazar- or sunfish, things like that. 6 LIZ Still think they could do it the other side of • [garbled] that 7 are being put in. 8 MAN If you pull a lazar up on land or a sunfish up on one side you 9 couldn't, there wouldn't be room to walk down the float to get 10 to the main - (garbled] . 11 LIZ You can pull a lazar up on the shore. My point is we're 12 trying to minimize to the point where it's actually required 13 for the use of the boats that were on that use there. 14 • [garbled] 15 MAN I would just add for the public record additional comments 16 section that, um, we received from Tom Marcotti, dated the 18th 17 of August, under additional comments. 18 West Bay is relatively undeveloped, largely not subject to 19 water quality closures and an open space area. The surveyed 20 area is a productive area of quahogs and softshell clams. The 21 Little Island Flat within which the proposed pier project site 22 is located, has historically been one of the most productive 23 shellfish areas in the bay. Recreational and commercial 24 shellfishermen have traditionally harvested significant 25 amounts of shellfish from this area, particularly quahogs. 26 Recent harvests have depleted the current standing natural 27 population of shellfish. The Natural Resources Division 28 recently designated the area as a relay location and relayed 29 548 (five hundred and forty-eight) eighty (80) pound bushels 30 of quahogs to the area during the spring of 1997. This 31 shellfish survey 32 LIZ • [garbled] Ohanian-November 25, 1997 6 1 MAN Let me finish, please. This shellfish survey reveals 2 substantial amounts of relay quahogs established in the area 3 of proposed pier project. The proposed pier project conflicts 4 with the use of the existing habitat as a shellfish relay 5 area. The significant shellfish habitat would be eliminated 6 further impeding the livelihood and recreational interests of 7 shellfishermen. The best interests of the shellfishery and 8 preserving shellfish habitat the Natural Resources Division 9 cannot support the proposed pier project. 10 Liz. 11 LIZ Why didn't we read that before we started. I'd like to say 12 there wasn't any - [garbled] 13 MAN No, that was from the previous hearing. 14 WOMAN That's from the previous hearing, sorry. 15 LIZ - [garbled] 16 JOHN ALGER Could I just. 17 WOMAN/LIZ Yes. 18 JOHN ALGER speak to that just briefly. 19 MAN Sure. 20 JOHN ALGER Here's a property that has, based on both shellfish surveys, 21 shows very little natural stock. Because of that the town has 22 seen fit to determine that as a relay area and to dump in five 23 hundred and forty eight (548) ninety (90) pound bushels of 24 quahogs. That's a tremendous amount of quahogs. So we have 25 something that has no shellfish, and we, or very few 26 shellfish, and we suddenly put in five hundred and forty eight 27 (548) eighty (80) pound bushels and we say, but don't eat 'em, 28 they' ll kill you. And they've been brought in until they're 29 clean. And also, when you go down and look at Mr. Marcotti's 30 survey and then look at Mr. Hamson's survey and tell me which 31 one you think is credible? When they both come down through 32 you'll see that, there are very few one inch, less than one Ohanian-November 25, 1997 7 I inch, one inch, one and a half inch, even very few two inch. 2 But then you get up to two and a half, three, you're getting, 3 the adult fish that were brought in there. And in one square 4 yard, we had twenty seven (27) two and a half inch quahogs and 5 forty-one (41) three inch or greater quahogs, for a total of 6 seventy-four (74) quahogs in one square yard. Now, they must 7 have forgot to dump 'em out of the bag. They must have thrown 8 the whole bag over. You'd have to pile on to get 'em that 9 thick. This is not, it's not fair to a property owner who is 10 paying property owner's waterfront taxes to be able to put, 11 bring in shellfish to be purified and dump 'em on his beach 12 and then say, no, you can't have a pier because there's so 13 much shellfish. What we heard from Mr. Hamson is that this 14 pier would do minimal disturbance to the water, that it would 15 not affect the harvesting of shellfish and it certainly would 16 not interfere with the replacement of the shellfish by other 17 shellfish they chose to bring into the relay area. And I 18 would hope that in your decision you would take that into 19 consideration. 20 LIZ I would say that has, um, that has historically been a major 21 shellfish area. 22 JOHN ALGER Historically, it has been perhaps, but now it is, does not 23 - [garbled] . And that's what we're measuring today. 24 LIZ Historically, within recent years. 25 MAN Al. 26 AL There seems to be a conflict here between an area that was a 27- major shellfishing area and has, according to the shellfish 28 warden, been overfished to the point where there aren't any at 29 present and whether that will, is still a .habitat area in the 30 part - [garbled] that's consideration. Just because it's been 31 overfished, doesn't change the habitat. It changes the 32 individuals in the habitat. But we're looking at habitats not Ohanian-November 25, 1997 8 1 individual areas. The fact that clams were brought in 2 temporarily or permanently, uh, does not change the habitat 3 either. This is sort of a red herring or red clam or however 4 you want to look at it. 5 SNICKERS 6 AL But, uh, we're dealing with a habitat and, unfortunately, at 7 this point, it has been overfished and it looks like the 8 habitat doesn't exist because it was such a good one everybody 9 went there. But I think the habitat still does exist. 10 WOMAN Still exists. 11 AL And that's, uh, what we have to consider. 12 MAN Rob, can we have a proposed - analysis. 13 ROB I'll just give comments. Following on Al's comments, um, the 14 issue of the significance of the shellfish habitat is not a 15 small issue. Um, shellfish productivity is very important 16 matter in this town. People, um, harvest from that locality, 17 um, on a recreational basis, more importantly commercial 18 shellfish, commercial shellfishermen make their livelihood, 19 um, this is regarded by our town expert, Mr. Marcotti as a 20 very significant area for shellfish productivity, for 21 shellfish harvest - [garbled) . There is no doubt about that 22 and the snapshot in time survey, um, which may show an area 23 harvested and totally • [garbled] with shellfish, or 24 impoverished shellfish because it has been intensely 25 harvested, that's not showing a prime- survey I would regard 26 as irrelevant. I think - it is essential what is absolutely 27 relevant is, um, the knowledge of wardens of a given shellfish 28 area to this panel. And Mr. Marcotti has portrayed this area 29 as just that very, very significant. Another thing that I 30 would point out is that, um, under our town by-law the 31 Conservation Commission looks under the interests of public 32 trust • [garbled] and recreation to navigational • [garbled] . Ohanian-November 25, 1997 9 1 Um, we have at present, um, over eleven hundred (1,100) 2 moorings in the three bay area. This is over and above those 3 • [garbled] including piers, eleven hundred (1,100) moorings, 4 in West Bay itself at the, um, at the • [garbled] Street 5 anchorage what had been closed for many years • [garbled] bay 6 too full of boats, um, we had at the West Bay entrance a 7 hundred and forty eight (148) moorings, presently. As I said, 8 those remain - [garbled] . We had forty-five (45) people on the 9 waiting list, um, that's data as, as of today. Um, I believe 10 that this West Bay can ill afford, um, another bit of pier 11 encroachment into this waterway where there is increasing, um, 12 year by year, pier by pier too little bay space for sailing, 13 for recreational boating programs which exist on West Bay, um, 14 and that's something that concerns me very much with this 15 present application. 16 JOHN ALGER Could I just, just add that there are not moorings in this 17 area. If there were they would be shown on the plan. There 18 are no moorings because there is no access, no public access 19 to this water to get to the moorings. And, as to the 20 interference with, uh, uh, recreational rights, in order to, 21 to control that, we've lived within your by-law, which your 22 guideline which is a hundred (100) feet. So we're entirely 23 within the guidelines and the recommendations of the, of the 24 Conservation Commission. So, we've tried to live with those. 25 There are no moorings. The shellfish are polluted. We have 26 no real evidence that there's any shellfish growing there 27 other than what was planted. 28 WOMAN Um, that cove area you say here that there is very little use. 29 uh, recreational interest there. That, putting that 30 additional pier would again stop, um, and restrict small 31 boats, sailboats, canoes. It's a perfect area for very small 32 craft. Ohanian-November 25, 1997 10 1 JOHN ALGER That's why you have a hundred (100) foot guideline and we 2 lived with that. 3 WOMAN Okay. But it's still will restrict further that particular 4 area, because you have to go all around the other side of the 5 cove. It's nice open area right now for recreational use. So 6 I do believe that it does intrude in that public trust. 7 JOHN ALGER What Mr. Gatewood said, what you're saying will apply to every 8 pier in the Town of Barnstable. 9 •LIZ • [garbled] 10 JOHN ALGER Can you, so if, my point, and we've mentioned it over and over 11 again, if you're going to turn down every pier in the Town of 12 Barnstable, then you should do it by zoning. Do it the way 13 that it's supposed to be done, not by, uh, not by who it is 14 and whether who - 15 WOMAN I don't think they do it who 16 LIZ who it is 17 WOMAN Well 18 JOHN ALGER or where they are. 19 WOMAN It's a struggle enough, John. I don't think we ever pick by 20 who it is. This is a struggle we're all going through 21 JOHN ALGER • [garbled] by where it is and, and 22 LIZ Precisely, that's because of the natural resources 23 WOMAN Exactly, where it is 24 LIZ which it is our job to do. 25 JOHN ALGER All right, the Department of Natural Resources, has never, 26 never recommended any pier anywhere, so, I mean, let's make 27 that 28 LIZ That's, that's not true. 29 JOHN ALGER Well, then show me. 30 LIZ That's • [garbled] 31 CHAIRMAN Is there, are there other, uh, public comments or questions 32 relevant to this proposal? Ohanian-November 25, 1997 11 1 Yes. 2 Hi. 3 CLARK Chris Clark from West Barnstable. Um, I am familiar with that 4 flat. I was on the Shellfish Committee for five years. Um, 5 uh, prior to now. And, um, I know that that has been 6 historically productive. I understand the work that Tom 7 Marcotti has done and, um, I think he spoke eloquently 8 regarding the, um, habitat there. Um, that flat was chosen 9 for the relay precisely because it is a premier flat where the 10 shellfish like quahogs in particular it would be no, uh, it is 11 not the habitat for the, um, other shellfish, shellfish, um, 12 that are common in the town to be there. That is quahog flat 13 and, uh, that is precisely why the relay stock was chosen to 14 be there. Um, also, the shellfish committee in partnership 15 with the Department of Natural Resources has developed, had 16 developed, it's been two years now, a strategy for lessening 17 the pressure to the shellfish area. They have tapped the 18 number of shell - commercial shellfish licenses which now will 19 enable the shellfishermen to become invigorated and have a 20 chance to, um, take hold before the crop gets fished out. Uh, 21 enabling this pier as others, but particularly this spot with 22 the, um, with its historical, um, prominence for, um, for 23 productivity, uh, enabling this pier will, um, not only 24 extract the 1997 and 1996, um, 1996 years of class of 25 harvesting, but forevermore displace the, um, the habitat that 26 for future shellfish, um, to be, uh, harvested from. That and 27 the, and the spat- which this adult stock will then flow- . 28 So, do take that into consideration and not only the present 29 shellfish at risk but all, all future shellfish that are 30 likely to grow in that productive flat. 31 Thank you. 32 WOMAN Thank you. Ohanian-November 25, 1997 12 1 CLARK - [garbled] 2 CHAIRMAN Thank you. Are there other comments? 3 Oh, yes, sir. 4 LIZ - [garbled] is a biologist - [garbled] just wondering 5 - [garbled] opinions. 6 MAN I just wanted to state that, uh, as I said before, it's 7 applauded that single piling docks are coming into vogue now. 8 Too bad that didn't happen a long time ago, but what I am 9 saying is, a lot of the shellfishermen as I'm doing these 10 tests and sampling, they're, they're "around the, around the i 11 posts and pilings of, of, adjacent, uh, areas shellfishing 12 under the docks and around the posts. If they're not 13 excluded, that is not a situation, it could be more difficult, 14 but they are not excluded from around the docks. We've shown 15 that reasonably enough. They will settle around the docks and 16 they're present. Obviously, during the summer, you wouldn't 17 feel welcome going underneath there, but out of season, out of 18 season is when the shellfishermen come into this, all right. 19 So it doesn't exclude them. That's a myth. 20 CHAIRMAN Are there other public comments or questions relevant to this 21 proposal. 22 It would seem appropriate that we probably take this under 23 advisement with this information we've received. 24 WOMAN Was this continued already? 25 CHAIRMAN Yes. 26 LIZ Can we take it under advisement? 27 CHAIRMAN Yes. That means that we meet, make a decision 28 LIZ I vote that we take it under advisement. 29 CHAIRMAN Is there a second? 30 Is there a second to this. 31 vARIOUS unintelligible whispers and silence 32 MAN Sure Ohanian-November 25, 1997 13 i 1 CHAIRMAN I thought, I thought there was the Marcotti letter. 2 Could it be Division of Marine Fisheries? 3 VARIOUS unintelligible whispers and silence 4 CHAIRMAN That was September 8th though. 5 VARIOUS unintelligible whispers and silence 6 CHAIRMAN September 9ch 7 MAN Read this into the record? 8 CHAIRMAN Okay, before we, uh, move this question any farther, we do 9 have another piece of material that was submitted for the 10 public record, by Phillip Coates of the Division of Marine . 11 Fisheries. I'll and just get to the cogent components here. 12 Okay, beginning in paragraph two: 13 "The Division concurs with the assessment of the town 14 shellfish biologist that the site of the proposed structure 15 represents significant shellfish habitat for quahogs. As such 16 the area is significant to the protection of marine fisheries. 17 Both numbers and sizes of the standing stock are indicative of 18 natural reproduction at this site. Additionally, the area has 19 historically been utilized by both commercial and recreational 20 harvesters and is currently an active relay area. " 21 And then jumping two paragraphs: 22 "We would urge that the Town of Barnstable as well, as well as 23 the Department of Environmental Protection Wetlands and 24 Waterways Divisions, carefully consider both individual and 25 cumulative negative environmental effects and the resulting 26 impact to the fisheries productivity before deciding on the 27 merits of this proposed structure. " 28 Uh, we have had a motion, but not yet a second to take this 29 under advisement. Is there a second? 30 MAN Second. Ohanian-November 25, 1997 14 1 CHAIRMAN And the quorum for voting for this motion would be Audrey, Al, 2 Liz and Roy. All those in favor of the motion signal by 3 saying aye. 4 VARIOUS Aye 5 CHAIRMAN All those opposed. 6 SILENCE 7 CHAIRMAN The motion carries. We'll make a decision at our next 8 meeting. 9 Thank you. 10 JOHN ALGER Thank you. The meeting December 6th� 11 CHAIRMAN Correct. 12 END OF TAPE 13 Ohanian-November 25, 1997 15 6 i TRANSCRIPT OF THAT PORTION OF MEETING OF THE BARNSTABLE CONSERVATION COMMISSION HELD ON September 9, 1997 AND CONTAINING THE HEARING ON THE APPLICATION OF Michael and Virginia Ohanian Commissioners present: Audrey Olmstead, Vice-Chairman Edward Handy Albert Barbour Elisabeth Clark Also present: Robert W. Gatewood, Conservation Administrator t CHAIRWOMAN Acting under the provisions of General Law Chapter 131, Section 40, and Chapter 3 Article 27 of the General Town of Barnstable Ordinances, the Conservation Commission will hold a public hearing on the application of Robert Lurie, 28 Caitlin Road in Brookline, MA 02146 (To replace an existing stair, construct ramp and a 28' pier and float) at Map 74, Parcel 3- 3, 1025 Old Post Rd in Cotuit, MA. The hearing will be held on Tuesday, September 9, 1997 at 7 :00 PM in the Conference Room at Town Hall, 367 Main Street, Hyannis. A plan of the proposed project is on file with the Barnstable Conservation Commission. MAN • [garbled] JOHN ALGER For the record I am attorney for Michael, John Alger attorney for Michael Ohanian. There is a shellfish report that's been file by the Department of Natural Resources which indicates that this is an area where polluted shellfish are planted to be brought to harvest. As I said, and I think two weeks ago, George Hamson, a shellfish expert, has just returned to Woods Hole, so we would respectfully ask that this hearing be continued to such date as convenient - [garbled] . There is also a problem Mrs. Ghanian doesn't like the pier right in the middle. of property, so they'll probably come in with a new plan, new shellfish reports and new reports of the Bureau of Natural Resources. WOMAN • [garbled] for the next hearing. WOMAN • [garbled] WOMAN Okay. VARIOUS • [garbled] we should request a copy then. JOHN ALGER Okay. Mr. and Mrs. Caruso? MAN • [garbled] JOHN ALGER Okay. Ohanina- September 9, 1997 1 f MAN Mr. Alger hearing would be November 25. • [garbled] Thanksgiving • [garbled] Tuesday. I JOHN ALGER Acceptable to me. • [garbled] waiting. Seven o'clock? I MAN That's fine. WOMAN Do I have a motion to approve this continuance. I MAN So moved. WOMAN Second. WOMAN All in favor. WOMAN Aye WOMAN Aye. WOMAN Okay. MAN Thank you. End of Tape Ohanina- September 9, 1997 2 �T �. � � i � � �� PHILIP G.COATES 'fOO (�JC2IYLlp�4GCLQPi cl�Ii DIRECTOR !!O// 02202 727-3193 W September 3, 1997 8 , Town of Barnstable Conservation Commission Town Hall ISARNSTABLE CONSERVATION 367 Main Street. Hyannis, MA 02601 Dear Commissioners: Division of Marine Fisheries biologists have reviewed the notice of intent to construct a pier, ramp and floats at 134 South Bay Road, Osterville in and over the waters of West Bay and have performed a site visit at this location. Additionally, a shellfish survey conducted by the Town of Barnstable Natural Resources Division was reviewed. We offer the following comments relative to the existing fisheries habitat in this location. The Division concurs with the assessment of the town shellfish biologist,that the site of the proposed structure represents significant shellfish habitat for quahogs (Mercenaria mercenaria). As such the area is significant to the protection of marine fisheries. Both numbers and sizes of the standing stock are indicative of natural reproduction at this site. Additionally the area has historically been utilized by both commercial and recreational harvesters and is currently an active relay area. The Division of Marine Fisheries has gone on record as opposed to new private recreational boating facilities located in significant shellfish resource areas, and in this regard has been supported by recent decisions of the Department of Environmental Protection. We have based our opposition on both the permanent loss of existing habitat from the structure(a Wetlands Protection Act issue) as well as resultant impacts to the habitat from long term vessel use/storage and access impacts to harvesters (Waterways issues). Impacts to the habitat at this site could be particularly significant given the shallow draft available at the proposed float locations. We would urge that the Town of Barnstable, as well as the Department of Environmental Protection Wetlands and Waterways Divisions, carefully consider both the individual and cumulative negative environmental effects, and the resultant impacts to fisheries productivity, before deciding on the merits of this proposed structure.. Y Should you have any questions concerning the above comments please contact Paul G. Caruso at our Pocassett office (508-563-1779 ext. 107). Sincerely, Philip G. Coates cc: Liz Kouloheras @ DEP SERO Thomas Marcotti @ TOB NRD ,j40v=72-97 . 12 :31P p � cC � M (� NOV 2 4 1997 George R. Hamp son Shellfish Biologist IBARNSTABLE CONSERVATION Box 323; North Falmouth, Ma. 02556. Methods and comments on the shellfish survey for Mr. O'Hanian proposed pier and floats located at 135 South Bay, Osterville. Methods: This shellfish survey was completed over 2 sampling events. One on October 13,97 2:30pm, ending at 4:15 pm. The other event on October 17.97 @ 5:30 am. ended @ 7:30 am. Sampling typically occurred prior to low tide and ended about 1 hour after low. All samples were ' measured from a survey marker(MHW) which was installed 21 1/2 feet from the sea wall(sec figure 1). Most all samples collected this day(Oct.13th) were processed with a 12'.'X 12" metal frame with open bottom and top. The frame was pushed into the sediment to around 12" deep. Contents were removed and screened through a 5 mm screen. All clams were picked from the screen, measured (cm), and returned to the area from were they were dug. This quadrate method provides good quantitative samples and ensures collecting the smaller"0" year class. However, this method is restricted to working in relatively shallow water without having to SCUBA dive to excavate the samples. Location and results of this sampling are provided in fig.l. and table 1( 1-8 sta's). Paired quadrates (a&b) were collected at each location. A total of 16 quadrates were collected at 8 locations. Sampling on October 17,97 was done @ 5:30am with a small shell fishermen's rake with a mesh basket. This method is less quantitative than using the 12"X12" quadrate sampler and it is not as effective in collecting smaller year classes. The rake method makes it possible to work in deeper water without having to dive. Generally 4 rake samples were collected at each station. (sta's 9-20, see figure 2 & table 2). At 150 feet, an additional 16 rake samples were collected on the east side, where proposed.floats are to be installed. On the West side, another 16 rake samples were collected to evaluate the area where ark"L" pier is proposed. l Station 1-14 are located along the center axis, line where the proposed pier is to be constructed. Stations 15,16,17 are out to 30ft. on the East side. Stations ]8,l 9,20 are located out to 30ft. on the West side where additional dock piles are to be installed. A total of 49 rake 's 11-20 and result are provided in table 2. samples were collected between sta Results: From the quadrate stations(1 to 8) a. total of only 5 Mya(soft shells) and 2 Mercenaria(quahogs) were collected. Shellfish were found in relatively low densities within this inshore area. However, within the more seaward stations, Mercenaria(quahogs) were. dominant in moderate to high,densities, particularly within the -150 ft area.(see table 2). Most of the Mercenaria were collected east and west of the central axis. Most of the shellfish were adults of marketable size. Considering the concentration of shellfish within this area, it is strongly recommended that the single piling construction be used in this site when ever possible considering that the outer area of this pier is located within viable shellfish habitat. Nov-22-97 12 :32P P. 03 No evidence was found of eelgrass growing within the immediate area. Also no evidence any bay scallops or oysters within the area sampled. However, scallops can migrate and what one sees and counts one day can change. The construction of this proposed dock using single pile construction should offer little or no impediment to the settling of shellfish larvae nor the harvesting of shellfish. Shellfishermen have been observer within the area during my sampling work working under and around neighboring docks. George R. Hampson November 1, 1997. P . 04 dNov=22-97 12 : 32P November 1, 1997. SHELLFISH SURVEY FOR Mr. O'Hanian ; 135 South BAY, Osterville, Ma. Collected by George R. Hampson, shellfish biologist. Table #2 Date: October 13, 97. Begin survey 2:30 pm, end 4:15 pm. 12"x12" sample quadrates: STA. # DIST.SURVEY STAKE SHELLFISH #, SPECIES. COMMENTS la -25 ft. 0 sand,med.fine,w/cobbles lb -25ft 0 sand,med.fuie.w/cobbles 2a -35 1 Mya-9cm. sand,med.w/cobbles 2b -35 0 3a -40 0 sand,med.coarse, w/ cobbles. 3b _40 Mya-2;6.8,9.Ocm. 4a -50 Mya72; 8,9.4cm. sand,med.coarse w/ gravel. 4b -50 0 , Sa -60 0 sand. med.fine 5b -60 0 6a -70 0 sand.med.coarse 6b -70 Merc.-1;4.5cm. w/ gravel 7a -80 0 sand med.coarse w/ gravel 7b -80 0 8a -90 , 1-Ensis(razor clam) sand med.coarse 8b -90 0 End of 12"X 12" sample quadrates. Nov-22-97 12 : 32P TABLE 2. Rake samples: O'Hanian shellfish survey; 10/17/97 Begin survey 5:30 am; end survey 7:30 am. STA.# DIST. SURVEY STAKE SHELLFISH # SPP. COMMENTS 9 -100 ft. rake #1-4Merc.-8.3,8.3,8.5,9cm, mudw/sand rake #2-0 rake #3-0 rake #4-1 Merc-8cm. 10 -110 rake #1-0 mud w/ sand rake #2-0 rake #3-0 rake #4-1 Merc.8.5cm. 11 -120 rake #l-I-Merc.-8.0cm. mud w/ sand rake #2-1 Merc.-7.Ocm. rake #3-0 rake #4-0 12 -130 rake #1-0 mud w/ sand rake #2-0 rake #3-0 rake #4-1 Merc.4.5cm. 13 -140 rake #1-0 mud w/ sand rake #2-0 rake #3-0 rake #4-0 14 -150 rake #1-1 Merc. 2cm. ►nud w/ sand. rake #2-0 rake #3-0 rake #4-0 15 -150 rake #1-2 Merc.7.5,8.Ocm. mud/soft 10 ft' east rake #2-0 rake #3-1 Merc.7.5cm. rake #4-1 Merc.7.0cm. 16 -150 rake #1-2 Merc.7.7,8.5cm. mud/soft. 20ft. East rake #2-0 rake #3-0 rake #4-0 .:.. P . Ob Nov-22-97 12 : 33P O'Hanian shellfish survey Cont. 10117/97. RAKE SAMPLES 17 rake #1-0 50ft 1- 50ft. side. rake #2-2 Merc.-7.0,10.2cm. mud/soft rake #3-6 Merc.-7.0,7.6,8,8,8.5 8.5cm. rake #4-5 Merc.-5.5,5.5,7.0,7.5,8cm 18 -150 ft. rake #1-0 mud. 10 ft. West side rake #2-0 rake #3-0 rake #4-3 Merc.-7.5,9.2,9.5cm. 19 -150 ft. 20ft West side rake #1-0 rake #2-0 rake #3-0 rake #4-0 20 -150 ft. rake #1-1 Merc.-9.Ocm. mud. 30ft. West side rake #2-0 j rake #3-0 rake #4-0 rake #5-2 Merc.7.5,10.4cm. depth @ end of proposed dock 70cm. @ 7:30 am. (low tide). 9 7 i I ; 1 i 1 P . 07 ' Nov-22-97 12 - 33P 5 REMA/� 9.2 40 G. L '�` 1.1 L ;L �L °� •'�' 0.0 JL ;�,. • .4 0. • / • . -0.0 MARSH 1.0 ® D` 0.5 -1.1 • X 36 • . 10 �. --0 . Sd N *6 x -1.2 -2.0 Qom` 6 7Q o ®7d o k ° ( 4 O 0 ✓ 9 o * DENOTES PROPOSED ° o zo x 'k Q/2X/Z�S9- -2. X RAKF SRrtp�ES 0 e kX ii B x -2.1 � �9 k�k ?4 O A8Ur1 8 -;Zt. 3 4X3 k� O 2' �o v PN1uP G.COATEs 7OO JGxea DIRECTOR odton, 0,2.20,2 727-3193 September 3, 1997 Town of Barnstable Conservation Commission To rm.1-1all 367 Main Street Hyannis, MA 02601 Dear Commissioners: Division of Marine Fisheries biologists have reviewed the notice of intent to construct a pier, ramp and floats at 1075 Baxter Neck Road, Cotuit in and over the waters of North Bay and have performed a site visit at this location. Additionally, a shellfish survey conducted by the Town of Barnstable Natural Resources Division was reviewed. We offer the following comments relative to the existing fisheries habitat in this location. The Division concurs with the assessment of the town shellfish biologist, that the site of the proposed structure represents significant shellfish habitat for quahogs (Mercenaria mercenaria) and soft shelled clams (Mya arenaria). As such the area is significant to the protection of marine fisheries. Both numbers and sizes of the standing stock are indicative of the high productivity of this area, which has historically been utilized by both commercial and recreational harvesters. ?rl fact, extensive commercial harvesruig was noted at die [halls of die site visit. The Division of Marine Fisheries has gone on record as opposed to new private recreational boating facilities located in significant shellfish resource areas, and in this regard has been supported by recent decisions of the Department of Environmental Protection. We have based our opposition on both the permanent loss of existing habitat from the structure (a Wetlands Protection Act issue) as well as resultant impacts to the habitat from long term vessel use/storage and access impacts to harvesters (Waterways issues). We would urge that the Town of Barnstable, as well as the Department of Environmental Protection Wetlands and Waterways Divisions, carefully consider both the individual and cumulative negative environmental effects, and the resultant impacts to fisheries pro ----�---' before deciding on the merits of this proposed structure. d Bow 13ARNSTABLE CONSERVATION If you should have any questions concerning the above comments please contact Paul G. Caruso at our Pocassett office (508-563-1779 ext. 107). Sincerely, i Philip G. Coates cc: Liz Kouloheras @ DEP SERO Thomas Marcotti @ TOB NRD r Bi�-lRll�,'TASLE 11NR. 508 79L-) 5275 08-20-97 1 1:24PM (471 41 Town ®f Barnstable, Department or Health,Safely,'and E nvirenvnental Senim "AM 1 1619. Natural Resources Division 1189 Phinnev's Lane, Cclitcrville. MA!J2632 office::: !W-790.6'M FAX: 503-7904)275 TO: RECEIVER' S FAX a," z '> FROM: VL 00- rZ, S or— DATE C 024ME 24 TS PAGE (S (EXCLUDING COVER SHEET) /7 BARNSTABLE DNR 508 790 6275 05-20-97 11 :24PM 1471 42 1 r Town ®f Barnstable aAMdr UL& ° Department of Health, Safety, and Fnvironniental Services Natural Resources Division 1 )89 Phinney's Lane, Centerville, MA 02632 Of icc: 508-790.62?2 Douglas kulwcia FAX: 508-790.6275 Suparoisor TO: CONSERVATION COMMISSION FROM: NATURAL, RESOURCES DIVItiION TOWN OF BARNSTABLE DATE: `August 18, 1997 RR: APPLICATION: (N.0.1.), To construct a boardwalk and pier with access steps extending 98 feet from mean low water together with a 6' X 32' ell and one 6' X 24' float with ramp. APPLICANT: Michael and Virginia.Ohanian LOCATION: 134 South Bay Road, nsterville, Ma. #93164 REPRESENTATIVE: John R. Alger 996 Main St., Osterville, Ma, 02655 SHELLFISH SURVEY RESULTS: A shellfish survey of the proposed project site was conducted on August 9, 1997 between 9:45 A.M. and 1 1:30 A.M. by Thomas Marconi from the Natural Resources Division. Low tide occurred at 10:56 A.M. (height +0.81): The project site was not staked. Harvest by jerk rake and basket rake was conducted on all subtidal sample plots. A clam rake was used on intertidal plots (j)lot#0) and a hand plunger was used oil subtidal plots for soft shell clam. (plot#1).Various year classes and sizes of quahogs were found in a number of subtidal sample plots(sec included data. sheets). ADDITIONAL COMMENTS: West Bay is relatively undeveloped, largely not subject to water quality closures and an open space area.The surveyed area is a productive area for quahogs and soft-shell clams.The"Little Island Flat" ,within which the proposed pier project site is located, has historically been one of the most productive shellfishing areas in the bay. Recreational and commercial shellfishermen have traditionally harvested significant amounts uf'shclliish from this area, particularly quahogs. Recent harvests have depleted the current standing natural population ol'shellfish. The Natural Resources Division recently designated the area as a relay area and relayed 548 eighty pound bushels of quahogs to the area during the Spring of 1997. The shellfish survey revealed suhstantial amounts of relayed quahogs established in the: area of the proposed pier project. The proposed pier project conflicts with the use of the existing habitat as a shellfish relay area. Significant shellfish habitat would be eliminated further impeding the 1 BARNSTABLE DNR 508 790 5275 08-20-97 11:25PM 1471 43 livelihood and recreational interests Orshellfishemien. In the hest interests of the hellfishcry and preserving shellfish habitat the Natural Resources Division cannot support the proposed pier project. Sin/cerely, Thomas Marcotti Shellfish Biologist' Deputy Shellfish Constable i BARNSTABLE ONR 508 790 6275 08-2'1-_3 7 1 1 :25PM 1471 44 1 SHELLFISH SURVEY DATA SHET FILE Il. APPLICANT: N'IGHAPL A-0 1/ivZ( W,A UHf+N�AN PROJECT: ��o�''�S •�'� p�F�Z LOCATION: r,frY ROA 0 Os EXLVII—Li � r-,A, BEd I.D. -- R AAnaA DATE: -9 - �1� , TIME OF SURVEY: '/:`i;�A.r',-11,-tOA-r-. TIDE: /O LO �o. ur"e.14T- HIGH PUBLIC ACCESS: MOORING AREA: MARINA: TOWN FACILITIES: SHELLFISHING: RECREATIONAL COMMERCIAL ✓ SHELLFISH TYPE: QUAHOG ✓ SOFT SHELL CLAM ✓ SCALLOP ✓ OYSTER � 011JER EEL CRASS: HAS AREA BEEN SUBJECT TO HARVEST: -- AVERAGE DEPTH: 2 Z C� /JD M L-w-SILT: SAND: ✓� MUD ✓ ROCK HARD CLOSURE HISTORY: —~ COLIFORM: SEASONAL r� SAMPLE PLOT SIZE: 1 Y'� z # OF SAMPLE PLOTS ILl PLOT ll C 2} 2 r, � 3� total o N r/ is, 3 y io c 3 �s ED TOTAL kJA H 095 COMMENTS: 1 SURVEY TEAM• TI- 0 T17 5ar?�f�fA'� DIAR 508 790 6275. 03-20-97 1 1'2 �-D ilk 9.2 AL Ak AL ALAL Ilk Lam''` .•_ AL 0.0AL _ W AkL o. & AL �~ 0.0 AL AL -�_- \ 0.0 MARSH 1.0 . 0.4 AIL 0.5 � xz . x -1.0 2.0 NOTE: a DENOTES PROPC x 22 ` x -2. O x —2.9 ys. x —29 x -2.7 ....... ..v' �lV$"y erve�:c8 �a urreef eC:t/ a7 VIV YYOLGI.� tUiU v0 111di pumun ai vvesi tray from the "No Sheilfishing" sign located at the pier at 52 ®ridge Street to the "No Shelifishing" sign located along the shore at 134 South Bay Road and extending to the offshore "No Shellfishing" sign 1 buoys. .: Co No Sheflfishing r- pg sign at 134 South Bay Rd. �� 0 -- i , geeiAYuueiy� ="No Shell Sa4tirngf a� 1 riiiiiins+N1e �NimiiMn id`'ti`+yieae + o _ Sign at y =52 Bridge Street RELAY AREA OTICE CLOSED ifuuefuuu:uuuue;wuuuewmmfuuiuituatirnuneounuuuauiumeuunnequuauwimumuueueae+uuesunnuuiF fJ TO SHELLFIS G ; Pas£% "No Shellfishingf' AREA PLANTED W1rFH -- �n sign 1 buoys CONTAMINATED A WESTMAY PER ORDER 'Y'm" M MAGM TOWN Off'BABNBTABLL' 310 CMR 10.99 Form 3 _ otp`"fft Commonwealth fro to wwcw oy OEP1 ' of Massachusetts �� � ;'•'r Barnstable (Osterville) GtyTpwn 1 31177T11L .�1.Y• ACGl160nt Ohanian V,Y Notice of Intent Under the Massachusetts Wetlands Protection Act, G.L. c. 131 ;,§4W0 and Application for a Department of the Army Permit• . I JUL -2 1997 i 1,! Part I: General Information TOWN OF BARNSTABLE ORDINANCE.3, ARTICLE XXVII F I ''E 1. Location: Sheet Address 134. South Bay Road, Osterville, Town of Barn'sta°b-1-e-----��------ Assessor's .Map Number. 93 Parcel Number 64 2. Project: Type Coastal Description To construct a boardwalk,and pier with access steps extending 98 feet from mean low water together with a 6'x32' ell and one 6'x24' float with ramp, all as shown on plan filed herewith. 3. Registry: County Barnstable Current Book d Page Certificate(If Registered Land) 137058 being Lot 6 on•Land Court Plan 9592H 4. Applicant Michael Ohanian and Virginia Ohanian, Trustees Tel 135 South Bay Road Realty Trust Address 350 South Ocean Blvd. , Boca Raton, FL 33432 5. Property Owner Same as applicant Tel. Address 6. Reoresentative John R. Alger Tel, (508) 428-8594 Address886 Main Street, P. 0. Box 449, Osterville,. MA 02655 7. a. Have the Conservation Commission and the Department's Regional Once eacn been sent. by certified mail or hand delivery, 2 copies of completed Notice of Intent.with supporting plans and documents? Yes L No D submit one additional copy to Barnstable Natural Resources Dept b. Has the fee been submitted? ® Yes Q No for Coastal projects only. c. Total.Filing Fee Submitted $482.00 plus Town Fee $301.25 = $783.25 d. City/Town Share of Filing Fee $253.50 State Share of Filing Fee$228.50 (sent to City/..own) + 301.25 = $554.75 of tee in excess of$25, sent to DEP) e. Is a bast statement a;.ached indicating how the ap is cto1ot�d h ee�? Af�'19s�E) No 9 9 Effective 11/20/92 8. Have all obtainable permits.variances and approvals required by local by-law been obtained'r Yes iS No ❑ None.other required by local bylaw. Obtained: Applied For: Not Applied For: 9. Is any portion of the site subject to a Wetlands Restriction Order pursuant to G.L. C. 131 . §40A or G.L. c. 130. §1057 Yes ❑ No 17 10. List all plans and supporting documents submitted with this Notice of Intent. Identifying Number/Letter Title. Date A Plan of Land in (Osterville) Barnstable, Mass. for 135 South Bay Road� Realty Trust drawn by Baxter & Nye, Inc. dated May 22, 1997 B Locus:�Map C Assessors Map D . List of Abutters E Notice to Abutters 11.Check those resource areas within which work is proposed: (a) a Buffer Zone (b) Inland: 0 .Bank• Land Subject to Flooding. 0 Bordering Vegetated Wetland' ❑ Bordering 0 Land Under Water.Body d Waterway' Q Isolated (c)Coastal: ❑ Land Under the Ocean• 12 . Designated Port Area ® Coastal Beach• ❑ Coastal Dune . ❑ Barrier Beach D Coastal Bank 0 Rocky Intertidal Shore• ® Salt Marsh• 0 Land Under Salt Pond ® Land Containing Shellfish' Q Fish Run• ❑ F;oodplain •Likely to involve U.S. Army Corps of Engineers concurrent jurisdiction. See General Instructions for Completing Notice of Intent. 3.2 12. Is the project within estimated habitat which is indicated on the most recent Estimated Habitat Map of State-Listed Rare Wetlands Wildlife (if any) published by the Natural Heritage and Endangered Species Program? YES ( ) NO ( X ) Date printed on •tha Estimated Habitat Map (if any) 1997-1998 NO MAP AVAILABLE 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 for priority mail (or otherwise sent it in a manner that guaran- tees delivery within two days) no later than the date of. the filing of this Notice of -Intent with the Conservation Commission and the DEP regional office? YES ( ) NO If yes, please attach evidence of timely mailing or other delivery to the Natural Heritage and Endangered' Species Program. 13. Have you sent two copies of your Notice of Intent form, two copies of your plans, and two copies of your locus map to the Department of Environmental Protection, Southeast Regional Office, Lakeville Hospital, Route 105, Lakeville, MA 023477 YES ( x i NO ( ) 14. Note that a required legal advertisement will be published by the Conservat: Department at the applicant's expense. . I 3-3 Part It:Site Description Indicate which of the following information has been provided (on a plan. in narrative description or calcula- tions)to clearly, completely and accurately describe existing site conditions. Identifying Number/Letter (of plan. narrative or calculations) Natural Features: Soils Vegetation A Topography A 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 A Boundaries of resource areas checked under Part I, item 11 above Other Man-made Features: A 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 Roadways and parking areas A Property boundaries. easements and rights-of-way Other Part III:Work Description ` Indicate which of the following information has been provided(on a plan. in narrative description or calcula- tions)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) Planview and Cross Section of: A Structures(such as buildings, piers, towers and headwalls).. Drainage and flood control facilities. including culverts and open channels(with inverts), dams and dikes Subsurface sewage disposal systems&underground utilities Filling, dredging and excavating,'indicating volume and composition of material Compensatory storage areas. where required in accordance with Part III, Section 10:57 (4)of the regulations Wildlife habitat restoration or replication areas Other Point Source Discharge 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 following: 1. Delineation of the drainage area contributing to the point of discharge: 2. Pre- and post-development peak run•ofI from the drainage area.at the point of discharge, for at least the 10•year and 100•year frequency storm: 3. Pre- and post•development rate of infiltration contributing to the resource area checked under Part I. Item 11 above: 4. Estimated water quality characteristics of pre-and post-development run-off at the point of discharge. Part IV:Mitigating Measures 1. Clearly. completely and accurately describe. with reference to supporting plans and calculations where necessary: ' (a) All measures and designs proposed to meet the performance standards set forth under each re- source area specified in Part II or Part III of the regulations: or (b) why the presumptions set forth under each resource area specified in Part II or Part III of the regula• tions do not apply. • R ® coastal Resource Area Type- Land Under the Ocean Identifying number or letter O Inland Land Containing Shellfish of support documents Pier is to be constructed of single pilings with 12 foot A spacing to minimize bottom displacement and disturbance with only ell with double pilings to provide stability for mooring. Any shellfish encountered would be removed and replanted at the discretion of Department of Natural Resources. t C�1 coastal Assource"Area Type: Coastal Beach O Inland Salt Marsh Identifying number or letter • of support documents Pier placed so as to avoid existing salt marsh and raised A above the existing beach to eliminate disturbance. 3.5 O coastal Resource Area Type Identifying number or letter O Inland of support documents 2. Clearly. completely and accurately describe. with reference to supporting plans and calculations where necessary: (a) all 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 1.Section 10.02(1)(a)of these regulations; or (b) If work in the Buffer Zone will alter such an area,all measures and designs proposed to meet the performance standards established for the adjacent resource area specified in Part 11 or Part III of these regulations. O coastal Resource Area Type Bordered By 100•Foot Discretionary Zone: identifying number or letter 0 Inland of suow documents (A& CLIC xxv I ONLY) Impact of proposed action applied for: (use additional sheet 1. Effects an erosion control t See attached Sheet neces 2. Effects on wildlife : 1. Effects on recreational interests : 4. Effects on aesthetic interests I 5. Effects on public trust rights I 6. Effects on agriculture I 7. Effects on aquaculture t S. Effects on historic interests I 3.6 (ARTICLE XXVII ONLY) Impact of proposed action applied for: 1. Effects on erosion control: Minimal - project will lesson foot traffic, in area and help to decrease erosion. 2. Effects on wildlife: Minimal - wildlife can freely pass under or over project. 3. Effects on recreational interests: Pier complies with guidelines and is in a corner of the bay that has minimal boat traffic. 4. Effects on aesthetic interests: ` None. 5. Effects on public trust rights: Access stairs are provided over 'pier. 6. Effects on agriculture: None. 7. Effects on aquaculture: None - no aquaculture in this area. 8. Effects on historic interests: None. PLEASE INDICATE WHO IS TO RECORD THE ORDER OF CONDITIONS (CHECK ONE): Applicant o Agent Part V:Additional Information for a Department.of the Army Permit 1. COE Application No. 2. - (to be provided by COE) (Name of waterway) 3. Names and addresses of property owners adjoining your property: 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. 8ti" x 11" drawings in planview and cross-section. showing the resource area and the proposed activ• ity within the resource area. 0rawin93 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'01vision of Water 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 consistent 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 d supporting data are true and complete, to the best of my knowledge. Michael Oha a Vir H fan, Trustees of 135 South Bay Rpad Realty Trust July / 1997 SigWalub Sf' Date July 1997 JW sfe*UA.O I aril's Representatl Date "Exrootion to ENG Form 4349 approved by HQUSACE. 6 May Iola" N E D FOR 100 (TEST) ••This document contain. . joint Department of the Army and 811110 of Massarhitsetts applies"on 1 MAY 82 for a permit to obtain permission to perform activtlies to United States waters. The ofher of Management and Budget tOMBI has approved those questions required by the US Army Corp$ of Engineers. OMB Number 0702.0036 and expiration date of 30 Sootember 1963 applies" This statement will be sot in l point type. 3.7 FUJNG FEE CALCULATION WORKSHEET Plants, roadways/driveways NOT subject to 310 CMR 10.53(3e) SHALL NOT BE SUBJECT TO ADDITIONAL FEES CATEGORY 1 $55 PER ACTIVITY $ No. if said activities are reviewed under a SINGLE NOI A. Existing House/residential lot (addition, deck, C. Construction of EACH ROADWAY/DRIVEWAY within the garage,pool, shed,or DRIVEWAY) — Buffer zone or Coastal Floodzone NOT reviewable Be Site Preparation (removal of vegetation, exca- under 310 CMR 10.53 (3e) and NOT associated with a SFH • vation grading where home cunstruction isn't - D. HAZARDOUS WASTE CLEANUP (except so noted in proposed under this %01) category 4)C. Control of nuisance vegetation by removal, herb- TOTAL CATEGORY 3 ACTIVITIES _ irides, etc. within a Resource Area PER LOT pursuant to 310 CMR 10.53(4) CATEGORY 4 $725 PER ACTIVITY 10.53 (4) other-then 1C above D. Resource A Improvement pursuant to 310 CMR A. EACH WETLAND FILLING/CROSSING LIMITED PROJECT _ oth ACCESS ROADWAY/DRIVEWAY under 310 CMR 10.53 (3e) E. SEPTIC SYSTEMS or any part thereof/repairs, associated with COMMERCIAL, INDUSTRIAL, INSTITU- replacement, UPGRADING — TIONAL DEVELOPMENT OR RESIDENTIAL SUBDIVISION CONSTRUCTION. (*see category 2g for SFH driveways*) F. Monitoring Wells/well B.• Flood Control Structures (construction, REPAIR, TOTAL CATEGORY 1 ACTIVITIES and/or modification) - C. LANDFILLS-public 6 private CATEGORY 2 $250 PER ACTIVITY • D. SAND do GRAVEL OPERATIONS A. EACH NEW single family house (SFH) INCLUDING site preparation, retention/detention basins, E. NEW railroad lines or EXTENSIONS of EXISTING utilities, SEPTIC SYSTEM, roadway/driveway other lines than those pursuant to 310 CMR 10.53(3e) F. Control of NUISANCE VEGETATION under 310CMR If reviewed under a SINGLE NOI 10.53(4) other than on a SFH lot B. Parking lot/ ANY size G. BRIDGES (construction, reconstruction, expansion, C. Beach Nourishment maintenance) ASSOCIATED with a SFH lot - 0. Coastal Activities pursuant to 310 CMR 10.24 H. Raising or lowering WATER LEVELS _ (7a-c) including 7a-Electric Generation Facilities, I. ALTERATION OF RESOURCE AREA d diversion of water 7b-Public Utilities, 7c-Coastal Limited Projects including REPAIR/MAINTENANCE of EXISTING piers, associated with HAZARDOUS WASTE CLEANUP, non- buildings culverts, etc. %osquito control projects, or for ANY OTHER PURPOSE NOT EXPRESSLY IDENTIFIED ELSEWHERE IN THIS FEE SCHEDULE E. LIMITED PROJECT ACTIVITIES pursuant to 310 CMR 10.53 (a-d) AND 310 CMR 10.53 (f71) per footprint — J. DREDGING ACTIVITIES not associated with a NEW _ dock, pier or other structure described in category 5 F. NEW agricultural/equacultural projects — TOTAL CATEGORY 4 ACTIVITIES _ G. EACH WETLAND DRIVEWAY CROSSING associated with a SFH pursuant to 310 CMR 10.53(3e) CATEGORY 5 $2 PER LINEAR FOOT; TOTAL FEET NOT TO BE LESS H. ANY point source discharge THAN $50 NOR MORE THAN $1000 241 LF x $2 = $482.00 Plus town fee $1.25 per LF = 301.25 I. ANY OTHER ACTIVITY not described in categories A• Construction, reconstruction, REPAIR, or replace-7d.L25 1,3,4 & 5 — ment of OOCKS, PIERS, REVETMENTS, DIKES, or other engineering structures on COASTAL or INLAND RESOURCE TOTAL CATEGORY 2 ACTIVITIES AREAS including the placement of RIP-RAP or other material on coastal or inland resource areas CATEGORY 3 $525 PER ACTIVITY TOTAL CATEGORY 5 ACTIVITIES 78 3.25 A. SITE PREPARATION for ANY development other than TOTAL FILING FEE CALCULATED $ 7 83.25 for a SFH INCLUDING removal of vegetation, excavation & grading when actual construction is PERSON CALCu ATING FEE SCHEDULE (Print Name) NOT proposed under this NOI John R. A�ger S. CONSTRUCTION OF EACH BUILDING within commercial, ADORESSP•O.Box 449, Osterville, MA 02655 / industrial, institutional, or apartment/condo/ townhouse type of development, ANY PART of which TELEPHONE NUMBS (5 0 8) 4 2 8- 5 9 4 is in a BUFFER ZONE or RESOURCE AREA. Associated activitiest site preparation retention/detention SIGNATURE DATE`Z� �'�9 7 basin construction,septic systems, parking lots, utilities, point source discharges, sewerage treatment �1. Directions to. property of: Michael Ohanian and Virginia Ohanian at 134 South Bay Road, Osterville 1. Proceed from Wimpy's toward West Bay Road to Bridge Street. Take a left on Bridge Street. 2. Pass over Oyster Harbors Bridge and take second way on left marked South Bay Road. 3.Turn right at end of way and proceed to cul-de-sac at end. 4. Property is last.house on cul-de-sac on left. i REVISED PLAN SUBMITTAL SKEET SE 3 -3237 APPLICANT'S NAME: 135 South Bay Realty Trust PROJECT LOCATION: 1.35 South Bay Road, Little Island;Osterville This Project has already been-issued an Order of Conditions [:.] OR Check One Order of Conditions not vet issue d This plan will.be considered on: F$',':,I-j�3, Y� CONSERVATION CM REVISED PLAN SUBMITTAL SHEET SE 3 - 3237 APPLICANT'S NAME: 135 South Bay Realty Trust PROJECT LOCATION: 135 South Bay Road, Little Island, Osterville This Project has already been issued an Order of Conditions [X] OR Check One 4i Order of Conditions not yet issued [ ] This plan will be considered on: i x N ASSESSORS x 4.2 x 10.E x 11.1 ��L 1 i. 14.2 MAP 93 PARCEL 64 N r S �o,L Fl, 12.0 A.P. F` S '�'C 11.6 12.2 NORTH BAY 1 o F �,A11 BAY ST. RF-1 x 7.4 x 9.4G0j, G�iO x 19 MINIMUMS co 29 ti AREA = 43,560 S.F. \ �S 13. L 9 FRONTAGE = 20' to . - 11.6, �S , R�pG f WIDTH = 125 '$�C5 "� y x 10.4 .3 s FRONT SETBACK = 30' i O�h 12.0 o SIDE SETBACKS = 15' QV O`� , ,h cry 'a+.-o x 10. 4 6.93' LOCUS REAR SETBACK - 15' Qp� �o^� �,o rye. �,$ x 7 x 11.3 x 1 WEST BAY BUILDING HEIGHT = 30' x 5 2 '•�O ry "� �.s x 1 .3 Q'�- - Q' VOv LOCUS MAP j SCALE 1 25,000 rn V x 8.4 PATIO x 13.5 { U N x 9.8 10.0 x 10.4Lo t� x � �� 10.1 { i Z � N ' 2� 2.5 } 0W { �. 9.4 10.7 A U = ^ I 00 x 4.5 c0 �c 10.8 0 cn c. 10. EXISTING STONE WALL cv I 10.8 o C Laj o 9.3 r o x 10.8 12.0 � F 2.5 `�.� 1 11.4 2.5 W x 12.0 EX/St/NG 'v� o I t RS I 4 ft. 0.5Ak . 1.2 to9.2/ O N o NYC 2 •- b 6" X 6" POSTS HANDRAIL Ak 2 £ �' \ k7iNo .2 2 X 8 w » » ` � � NC V M 2"X 10 DECK 5 Wq�� ! T i 1 SPACING (TYP) x -1.� �,k 1.2 RE 00 0. AL � MA 9.246NGFETE RETAINING WALL 0. .g ELECTRIC WATER SERVICE AL _ S � _ _ - MARSH .v_ SERVICE S* 2"X 8" CROSS BRACE ` ,� �yw �h r (OPTIONAL) -0.0 'IY` iYc 1.3 3•s CAL AL AL �p • • -2.0 ,� • • 0-ILAL A �Ih 1.1 Sp 5 AL �►14 Fp • ALAk 9Yc o � x :-1:0 � � • , AL AL,�AL ' ' 0. AL 2.aZd• � 2.5 i -0.0 ; �� � 2.5 f ` H MAR 1.0 9 0� G DETAIL A-A ? ,� \ � . I! 0.4 ALA, 9 � . 0.5 q o a a 2 X 10 DECK I 1 SPACING (TYP ) -3.0 O x -1.0 w x C I 4.0 I �p 4 X 4 HAN RAIL i �-T TPROPOSED' x 1.2 - NOTE: Q f ELECTRIC 2.0 NO E. DENOTES, 0 SERVICE 2 x 4 . q Q- - p ELEV. 5.5 3X 8< WATER a » 2 3 X 8 E.H.W._ 3.5 x M.H.W. - 2.5• 3 X 80 CROSS BRACE -3.1 x ALL PILINGS 101, 12M 2.2 M.L.W. - 0.0 i _ E.L.W. _0.5 I o Q Q < x - I v 1 , 2.1 lv , J k Q- v 3 z Q R i _q _ M J A O i 1 2 0 h Z t 1 ti 2 ti T 0 x A 2.s U 0 / N .� G 1 DETAIL :B_B 0 _ � 0 C r - k x 3.4 x - a '. 2.9 j { x 2.7 PLAN x 3.3 1 20 x '_2.5 0 ., 10 20 F _ 9 9 ' x _ 3.1 AZ s i O 3.2 O 0 x x 2.5 3.1 { I ! x 2.7 ! x -2.9 I i i - { x 2.5 c i I 1 i • I ! i E _ I i i 10711 � 2 I , i PROPOSED PIER r 135 SOUTH BAY ROAD _ I IN { OSTERVILLE i i , STERVILLE MASS . { ! FOR { ! , 135 SOUTH BAY ROAD ` REALTY TRU ST I , I NOTED ATE. MAY 1 SCALE: AS 22, 997 REV. SEPT. 30 1997 r I I, ...A. �1 G, s. ��. sREV. DULY 5,_ 2001 J{ /. S EV. DEC. 11 2002 EV JAN. 14 2005 o.3J?_16 s S L} f BAXTER NYE & HOLM REN, INC. i I REGISTERED `LAND SURVEYORS�. 0 S VI. ., CIVIL ENGINEERS SE 3 3237 2 OSTERVILLE, MASS. I (Permit Expires January 30, 2006) J 9 75dc WG� 50 k3 D rn 4, i t . x \ t � N \ \ ASSESSORS �r 1` ; 10.7 `` . 14.2 X 4.2 ' x x 11.1 11.2` 01 MAP 93 PARCEL. 64 11► ;' S, ��, �i \ 12.0 f 11.6 `_ 12.2 NORTH BAY A.P. _ F x �_ 11.5 S G BAY ST. 1 - S MINIMUMS 99 13.8 �, j AREA = 43 , S 11.6 s`F i ,560 S.F. FRONTAGE = 20 1s�s WIDTH = 125' :t `� C) ^j' 3 10.4 x i FRONT SETBACK = 30' 1 �4" 4 h N�° ,�O it 12.0 J SIDE SETBACKS 15 p�r0 ` ' "� rn hh jF, �' �' > 10.7 x 11.3 1.4 j6.93' l LOCUS REAR SETBACK = 15' Q �°Tca� �O `' �v'�°p x 1.3' I BUILDING HEIGHT = 30' �� �O �cti � x 1t.3 WEST BAY o LOCUS MAP SCALE l 25,000 r vQ 1 x 8.4 / 7 PATIO 13.5 I ` j X1 r` i U l i X 9.$ 10.0 X 10.4 y l \ x 1 UJ 2"X 10" DECK •. ` E 10.1 \\ Q o w 1" SPACING (TYP) x 5�7; -' Q ALL PILINGS 10"-12" 9.4 \� 10.7 .I �. S � L0 I p to w U 1 6 `\ \ o J 3 FAUCET x 4.5 cpNC `� 10.7\ c��\ EXISTING STONE WALL Q ELEV. = 5.5' - \., x 5.1 4/ 10.8 0r%j 1 \y x 10.8 r ELECTRICITY-- WATER 2_ 3>,X 8„ S s.3 3,,X 8" • ��, R x 12 a E.H.W. - 3.5' <£ F� M.H.W. = 2.5• 2.5 1 11.4 2.5 XlS r/NG o X 12.0 -�. F _ 3"X 8 CROSS BRACES \ S � M.L.W. L 0.0 0, 2 \ rAIRS .E.C,W, -- -0.5 ,► '� 9.2 Z N IL ,L Ekl rj 9.2 COIL N , \ C P . x -1.0` _lL � 1.2 �. 5 - r RE�q/ 9.2 vON6RETE RETAINING WALL 0. . MARAL SH k AL -0.03 etc. iL SECTION A- A -2.0 AL s 0• • �Iic ;kLAL AL 0 2 4 8 x 0. s qc 2g .5 . 4 �� F 0.0 MARSH 1 2.5 .0 • 0.5 ° , ; I 2 X 10 DECK 1„ SPACING TYP x -1.0 ( ) 3.0 4>,X 4" HAN RAIL Q \ _ x -1.2 -2.0 �r o X _4 Q o ELECTRICITY 4 2 i FAUCET _ ELEV. 5.5 3X 8 ; WATER °E.H.W. 3.5 2 - 3 X 8 i.i ,,: o 3,.X 8 CROSS x I M.H.W. 2.5 S BRACE NOTE: * DENOTES PROPOSED o ' I x ALL PILINGS 10"-12" -2. a ,M.L;W., 0.0 8 _ ELW. -0,5 � 6 x - Q.. �* 21 'I ro X e -2.9FL goo. g0rr/� SECTION B-B s• ^� °qls* �. 'DOCK F ,32, k3 1" 4' Rq�A 2� 0 2 4 3.4 x -2.9 - r - I I i PLAN x -2.7 , I x -3.3 - 1" 20' x -2.5 0 10 20 -- - 6� -3.1 i , i 0O x -3.2 ' Y I x -2.5 x -3.1 j x -2-7 j 1 - x -2.9 i x -2.5 I - _ 172.15 OVERALL 5.5' 10.65 13 BAYS @ 12' = 156' EXISTING WALL s OPTIONAL. - -: \ f"^f '( _ _-., -._-,- ,. . -- .... 1, A M 1 \-! T1<•,.t--i T,.. 12 }-YP. ELEV. 5.5' E.H.W. &5' \ %\ M.H.W.LEA " 25' M,L..W. 0.0' . , _ E,L.W. _ -0.5 Id Id a, SECTION C- C 1„ _ 10, 0 5 10 20 N PLAN OF LAND IN 71.0' OSTERVILLE I _ I ` I 32' 4.0' g' 12' 12' , BARNSTABLE ,_ MASS. 8' TYP. 7' 7, FOR ELEV. = 5.5' E.H.W. = 3.5' M.H.W. s 2.5' 135 SOUTH BAY ROAD REALTY TRUST 00 . � .` . . . • ..: f,, M;AI CALE: AS NOTED DATE: MAY 22 1997 i [p ,, REV. SEPT. 301997 � ��� -a StYft3.tAM Gu -. ` f , NYE , BAXTER & NYE IN , C CROSS BRACE OPTIONAL BARN STABLE CC�PStrAT?Oi No- 19334 REGISTERED LAND SURVEYORS 9TEPFi€1V '� s CIVIL ENGINEERS g WILSOli ' R ❑STERVILLE,. MASS. SECTION, -D- D Wit- SCALE. ,1 = 10 p 10 ._• 97 I #95075 04, I N - ASSESSORS 11.1 1. 14.2 x 4.2 �' x 10.7 1 x � x MAP 93 PARCEL 64 S 00� 1qq 0 NORTH BAY A.P. tiC 11 1 BAY ST. RF-1 x 7.4 x 9.4 sF�\ vj> MINIMUMS ?� AREA 43,560 S.F. .fls 13. FRONTAGE = 20' 11.6 ERIDGe ST WIDTH = 125' 01�7O x 10.4 .3 FRONT SETBACK _ 30' .o2h �o I O SIDE SETBACKS = 15` O" hh �'• A x_10. 6.1115 93°0 LOCUS 4 Z ; x .4 .REAR SETBACK _ 15' �• Q 0-�- `�� `� �� '`�°o .7 x 11.3 x '• WEST BAY BUILDING HEIGHT 30` x s � �� "� �.s� x 11.3 LOCUS MAP _ oo Z" p� SCALE 1 25,000 �,�' 1 G x 8.4 X .7 PATIO 13.5 J x 9.8 10.0 x 10.4 l a0.1 \� z �N 2.5 gQow co 9.4�, 10.7 001 v _ � I L co \� 10.8 o � J � X 4.5 X 5. OTC 10.7 \� EXISTING STONE WALL v N w J TO iQ 9.3 / \Tti x 10.8 �012.0 2.5 0 � .1 11.4 2.5 R 14/s w x 12.0 4 ft. .2 /NC rq/RS Lo O.b AL c� 2» x 6" x�- 0 'IY` iyt ilk 2 ` AL •- o AL 6 X 6 POSTS HANDRAIL A A AL '2 eX/T o I 2,f X 10 DECK • . NC wAC C� 1 SPACING (TYP) x -1.0� • • AL 1.2 8 T i RE�'1A11�/ 9 0 ETE RETAINING WALL i \ 0. � ELECTRIC WATER SERVICE -0. AL 5 1 MARSH � SERVICE - �Ir�. • s�+► 2 X 8 CROSS BRACE '�` AL (OPTIONAL) AIL AL 0.0 AL 1.3 gL AL AL AL 0. AL ALAL • jL>L , AL AL 0 • 0.0,,,,� & 4.H w • . -0.0 2.5 2.5 DETA MAR 10 e II,A A H . ? > 0.4 AL ` e os X ° , x . . x -2 X 10 DECK x 1 SPACING TYP ( ) -3.0 x -1.0 4.0 �5 X 4 4 HAN RAIL x I - NOTE: 1. 2.0 OTE. DENOTES PROPOSED ELECTRIC � o - 4 f SERVICE 2 x 4 o E ri ELEV. - 5.5 3 X 8 q WATER i � q ' 2 3 X 8 ., E.H.W. = 3.5 // V i f 3 X X " M.H.W. - 8 CROSS BRACE I 2.5 • -3.1 aD , I ALL PILINGS 10 2 1 x I 2.2 M.. .W.L. . = 0.0 . . . . E.L.W. - 0.5 QQ ' v t. J x -2.1 Q Rw- O Air `1 �* 2 r 0 0 q 8 i 2.9 C/ DETAIL- B B D 0 _ C k x - 3.4 x - 2.9 1 I i x _ 2.7 PLAN x 3.3 i 1 _ 20 i X _ 25 I I 0 `10 20 F � 9 9 3.1 ' I "V I i , I I F Q 0O X _3.2 = I� f I - x - 3.1 x 2.S i - i i x 2.7 i i I x -2.9 1 I x -2.5 I-- i i jj I PROPOSED PIER 135 SOUTH BAY ROAD I IN OSTERVILLE i i OSTERVILLE MASS . FOR - 135 SOUTH BAY ROAD REALTY TRUST I SCALE: AS NOTED DATE: MAY 22,1997 i REV. SEPT. 30,1997 REV. JULY 5, 2001 REV. DEC. 11 , 2002 I PH N c � Fu © �") BAXTER, NYE & HOLMGREN, INC. I F , T 1 , , IS REGISTERED LAND SURVEYORS ry =1 li 8/ONaLE CIVIL ENGINEERS SE 3 323 r Lw, kr£ OSTERVI LLE, MASS. I PIN STI LE C0 NSER\/,AT10N #95075dck2.DWG , {i 6 ^ _ 3 O/ x i x 11.1 N ASSESSORS x 4.2 x 10.7 14.2 co 12.0 � MAP 93 PARCEL 64 IV - s .y ,i�, A.P. F� SJ G' 11.6 12.2 F NORTH BAY BAY sT. 10 ,r �pG G 11. RF-1 x 7.4 x 9.4 F� C�j MINIMUMS �9 y _ 9 13. AREA 43,560 S.F. FRONTAGE - 20 _, co 11.6 B Q- .3 6 R _ . : D WIDTH 125 � ; E ST, ''� ,� _10.4 , FRONT SETBACK - 30 p �O h 12.0 I ,a h 6.93 O v. -0 10. - A K 15 h x SIDE 'SETB C S : � .4:` "� x O _x 11.,3 LOCUS o 7 SETBACK 15 REARS o - x 11.3 x 1: m - <v � F BUILDING HEIGHT 30 x WEST BAY 5 ? Q a .o 0 �Q V p v o O Q LOCUS MAP o �� N Q' SCALE 1 25,000 rn .7 Ln G x 8.4 PATIO I x 13.5 U �{ N fi . -..: x t - 10:4 U X LO 'f/ i 0.1 LLJ \ Z N 1 ?- 0 W , 2:5 , m ¢ 0 U r� O Z F- 00 S N G o O _10.8 - U C \ o cn x : > 4.5 O G' 10.7 rr C EXISTING STONE WALL ¢ N x -5.1 S _ w \S M q .. 10.8 � to T ti x O 9• 10.8 3 _12.0 F p f ti .. 2.5 .1 11.42.5 , A w £ z �( r / o R 0.5 �IIIr z . ,d4 .- ., y x � � o i . . .. g _r �lllc O : i q .. 2 .2 : _ ._ � HANDRAIL ,� kr , 6 X 6 POSTS a..- . T/ \ N , 4 a ye. -C • N p C c.� W 2 X ,10 -DECK qL , .5 C »_ T x �.\ � R 1 SPACING TYP 0 1.2 E � ) Mq s.2 0• �/ O ETE RETAINING WALL 4 AL 0. _,►I� 5 S ,WATT=Et SERVICE ,i►� ELECTRIC l _ ... _ MARSH F,o E SERVICE .�,.._ . . - . ,� 2 : E , " � _X 8 CROSS BRACE ,� � �133,0.0 $AL , L ; 2.0 5 0. illlc AL 1.1 S , T AL Fio 0 ;t AL_ � � - S M 0.0 N. , IL ,dl� �lllc � ! { 2. _ . p S 2.5 2. �Vc e _ M R H , _ . w 1.0 DETAII,A A AL AL AL AL _ \ 0.4 e Z SCALE 1 5 <v 0.5 q / " .._ ::. 2>X 10 DECK { _ x • Cl " PA kNG TYP 1.0 0 r _ W r- 4•0 D 2. 4 4 N AI . Y:. X H RAIL _ - _ i: . x _ _ 1. s� - _,,, _ T DENT PROPOSED _ NOTE: DENOTES ( ._: TRI_ELEC C I x 4._ 2 z 'SE CE _ r) Q : - O _.. - _ ._ _.. _, LEV .. .. . . WATER E.H.W 3 ; �,X 8 ._ , r x 3 X 8 CR_ OSS BRACE , - 1 : ., o M A PILINGS 1 12 sp . ""ALL, P L GS 0 2.2 - .. M.L.W. - -0.0 , v k z , x _ 2. j . 1 :.. O ! jcr , �4 T r _ 0 q B x 2.9 (1 I N G SECTION B B 'D r , o c 2 k I 1 4 , x 3.4 2.9 i - I i x -2.7 I , PLAN I x 3.3 , I I ; x 25 tip.. ,. 1 , 2 _ l - 6 I 4 0 ; 0 a „ : . x 3.2 i ; .x x x =2.5 I x _ _ 2:7 I _ - -2.9 _ i x -2.5 „r c.. { ' fi t • ,ter f CLO Lu `•%. }} I PROPOSED PIER 135 SOUTH BAY -ROAD.. ' IN y OSTERVILLE L. 3 ,. OST� RV LL MA ` I F o� r4 • FAR _ ,t ! No.30216 r� Jc �� Le �� }-135 SOUTH BAY ROAD REALTY TRUST AL :. SCALE: AS NOTED DATE: MAY 22 1997 - - r F n : T 30,1997 REV. SE :W REV. DULY, 5,: 2001 BAXTER, NYE 4, HOLMGREN, JNC: I REGISTERED LAID SURVEYORS CIVIL ENGINEERS OSTERVILLE, MASS. #95075 Y i I x x p 11.2' t �j ASSESSORS x 4.2 x 11.1 ! 10.7 O 14.2 r` O ��/ :.` 12.0 MAP 93 PARCEL 64 ,< 1r I+ ✓ j S, .�, I ; NORTH BAY A.P. �' to. FF s tic 11s 15 ( BAY ST. =' sG G,` RF-1. x 7.4 � x 9.4 F� O p 9. MINIMUMS `;PIP L j AREA = 43,560 S.F. , f' 9s / 13.8 FRONTAGE = 20' �. / 11.6 r 1 _ � i i is WIDTH = 125' ` FRONT SETBACK 30' O 12.0 h rn. o6.93 SIDE SETBACKS = 15 _ _� Q o� h i 0.9 1.4 REAR SETBACK = 15 �p co 1 ryto kj` "� , x 11.3 x . BUILDING HEIGHT 30' x 55 Q v;Fa oc"� I VEST BAY coo) LOCUS MAP' { :o SCALE 1 25,000 rn " cv t ; .7 x 8.4 PATIO 13.5 1 v { }. l I J x9.8 010.0 r x 10.4 ti x 1 � »2"X 10" DECK ' iy10.1 Qz o 1 SPACING (TYP) 2.5 x 5, :7� < w ALL PILINGS 10"-12" ti -! m Q oI _00 3 FAUCET x 4.5 C�NC 10.7\ cw� EXISTING STONE WALL Q � ELEV. = 5.5' x ''1 . �'1'9� \sso td.a v ,N,� ELECTRICITY WATER „ >, C \l ' „ 2- 3X8 - S } `• � 9.3 �` - ti x10.8 E.H.W.` = 3.5' 12.d M.H.W. = 2.5' 2.5 . 1 11.4 ST/ 2.5 x 12.0 NG _ 3"X 8" CROSS BRACES 2 M.L.W. = 0.0 - g 2 n 2 �� O j-� Q r �. C _ � 9.2 `Np,�,K CONC x ,,a 5 OPRO d INgLL T R "'�,,�"' ! 4!tl� %Xlll k!R/ 8lYlY1Gc - xrz�e � - 1.0\ �utc�y� L2 ✓ - EMAl N 9.2p 0 R TAINING WALL 5 , C�ETE E i MARSIi iL try �� � 3 { SECTION A- AIL 0 2 4 8 AL jkL AL AL 0.0 JL x . , 4 ¢• 5 AL 0.0 .5 I .., 4 MARSH AL AL 1.0 0.4 ,�.. ,L ` • AL 0.5 x - : 2"X 10 DECK • • . x v ' 1 SPACING (TYP) -3.0 9 x'-1.0 4.0' 4„X 4,, HAN RAIL x -1,2 2.0 o , 2 x 4 e o ELECTRICITY FAUCET i ELEV. _ 5.5 3 X 8 ` / \ e NOTE: * DENOTES PROPOSED WATER .� 2 - 3 X 8 ,., ,,, E.H.W. 3.5' M.H.W. 2.5 3 X 8 CROSS BRACE x �I ,> �O x 2.2 � ALL PILINGS 10 -12 j [ Q ( M.L.W. - 0.0 Y O E.L.W. 0.5 � f 4 F j 3?• �'3 x -2.1 , I , } O 9 2 T S 0 A& x -2.9 U�jN SECTION B-8 G DOCK I 1>, 4, k 0 2 4 x -3.4 x' -2.9 I i x - i 2.7 PLAN L. x -3.3 I 1') 20' x 10 20 8e ti • r F� 00p x -3.2 I x -3.1 x -2.5 l 3.0' - 2 X 10 DECK I 1 SPACING TYP „ „ } � � 2 X 8 S � N �� x -2.7 4» X4 POSTS @8' O.C. 1 SECTION C i { 1" 4' x -2.9 i x -2.S 1 I I I I - I 175 OVERALL 4 X 4 -HANDRAIL _jLJf, ' Jilit-S - - ' 30 -BOARD WALK � __ _ --- 7- i 12 TYP. g �.. --- 8 8 8 � _ ELEV. 8.5 EXISTING STAIRS - -ELF V. 5.5 E.H.W. _ 3.5, M.H.W. 2.5 �� M.L.W. 0.0' ., . _ - _ _ E.L.W. 0.5' l : SECTION D D t 1 = 10' I _ 0 5 10 20 I PLAN [IF LAND N� tN 71.0' -� PETER (OSTERVILLE) SULLIVAN i Q NO.29733 i f , , f > G7 �!J 32 ,4.0 9 12 12 CIVIL 9 M Y BARNSTABLE . .ASS. 3 8' TYP. FOR ELEV. _ 5.5' E.H.W. - M.H.W. = 2.5' _ -. , t 1� SOUTH BAY ROAD REALTY TRUST M.L.W. = 0.0' . . I E.LW. - 0.5 , t 4, .. ' SCALE. AS NOTED DATE. MAY 22,1997; I ' 1 BAXTER & NYE INC. EGISTERED LAND SURVEYORS r CROSS BRACE OPTIONAL CIVIL ENGINEERS IE-E _ _ WtLLIAMt SECTION . , � asTERVILLE, MASS.' . C. » , ,5 NY N SCALE: 1 = 10 No 193 a } 0 10 #95075 Q�