(1)
Projects Eligible for
Simplified Procedures. Notwithstanding other procedural provisions
of 310 CMR
9.00 to the contrary, the procedural standards of
310
CMR 9.10 shall apply to the licensing of
certain small-scale structures by the Department. An application for a license
under
310
CMR 9.10 may be submitted only for a project
consisting entirely of a dock, pier, seawall, bulkhead, or other small-scale
structure that is accessory to a residential use or serves as a noncommercial
community docking facility, provided that:
(a)
for proposed structures, or for structures built or substantially altered after
January 1, 1984:
1. any structure is
water-dependent and pile-supported (e.g., by wooden or metal
posts) or bottom-anchored, without any fill;
2. any structures total no more than 600
square feet below the mean high water shoreline for coastal waters or below the
ordinary high water shoreline for inland waters;
3. any structure is not a marina
(i.e., does not serve ten or more vessels);
4. if within an ACEC, such structures were
existing on October 4, 1990 or the effective date of the ACEC designation,
whichever is later, and if a resource management plan for the ACEC has been
adopted by the municipality and approved by the Secretary, said structures are
consistent with said plan; and
5.
if within an ACEC, any structure built or substantially altered after October
4, 1990 or the effective date of the ACEC designation, whichever is later, is
consistent with a resource management plan adopted by the municipality and
approved by the Secretary; and
(b) for structures or fill constructed prior
to January 1, 1984 and not substantially altered since that date:
1. any structure or fill may be
water-dependent or nonwater-dependent;
2. any structures and fill total no more than
600 square feet below the mean high water shoreline for coastal waters or below
the ordinary high water shoreline for inland waters; and
3. the structure is not a marina
(
i.e., does not serve ten or more vessels).
The above thresholds are established for determination of
eligibility only; structures licensed under
310
CMR 9.10 shall be the minimum size necessary
to achieve the intended water-related purposes. Projects meeting the provisions
of 310 CMR
9.10(1), which previously
obtained a license, amnesty license or interim approval, may apply for renewal
under
310
CMR 9.07,
9.10, or
9.25.
(c) projects eligible for general
license certification under
310
CMR 9.29 shall comply with the certification
procedures of
310
CMR 9.29 to obtain an affirmed certification
under
310
CMR 9.29, instead of a simplified license
pursuant to
310
CMR 9.10.
(2)
Standards. 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.
The project shall preserve public rights of access on private tidelands that
are associated with fishing, fowling, and navigation, and public rights to use
Commonwealth tidelands, Great Ponds, and other waterways for any lawful use.
The provisions of
310
CMR 9.33 through
9.38 apply to projects
authorized under
310
CMR 9.10 except that, notwithstanding the
provisions of
310
CMR 9.37(1)(a), fill and
structures need not be certified by a Registered Professional Engineer except
as specified in
310
CMR 9.10(3). For eligible
nonwater-dependent structures or fill, the Department will generally presume
that a proper public purpose is served through the provision of on-foot passage
to ensure lateral public access along the shore for any lawful
purpose.
(3)
Applications Under Simplified Procedures. For purpose
of authorizing eligible projects under simplified procedures the following
provisions apply:
(a)
Application
and Plans. An applicant for a license shall submit a written
application on forms provided by the Department, signed by the applicant and
the landowner if other than the applicant. The application shall be prepared in
accordance with all applicable instructions contained in the Department's
application package. When plans have been submitted with a Notice of Intent or
referenced in an Order of Conditions under the Wetlands Protection Act, M.G.L.
c. 131, § 40, a copy of those plans shall accompany the application. Under
the Wetlands Protection Act, Conservation Commissions and the Department
generally require plans for new structures to be certified by a Registered
Professional Engineer or Registered Land Surveyor where there are questions
relating to structural integrity (
e.g., where a structure is
located in a velocity zone or floodway) or to the location of important wetland
resource areas (
e.g., salt marsh or eelgrass), as well as in
other circumstances at the discretion of the issuing authority; see
instructions for filing a Notice of Intent pursuant to
310 CMR
10.00:
Wetlands Protection.
If plans certified by an engineer or surveyor are not required
under M.G.L. c. 131, § 40, the Wetlands Protection Act pursuant to
310 CMR
10.00: Wetlands Protection,
certification for projects meeting the eligibility requirements of 310 CMR
9.10(1) will generally not be required. However, based on comments submitted
during the public comment period or other relevant information, the Department
may require plans to be certified by a Registered Professional Engineer or
Registered Land Surveyor for a structure when it finds that the preparation of
plans by a professional is necessary to ensure:
1. an adequate review of public
access;
2. the preservation of
public navigational rights;
3.
structural integrity;
4. the
accuracy of stated distances from property boundaries; or
5. that the plan is sufficiently clear and
accurate to allow a licensing decision which otherwise could result in
significant interference with public rights or environmental interests in
tidelands, Great Ponds, and other waterways. The Department will provide a
statement of reasons to support this finding.
When plans have not been prepared under M.G.L. c. 131, §
40, the Wetlands Protection Act, a plot plan or other scaled plan with
structures to be licensed measured accurately from lot lines or other
structures shall be prepared in accordance with application
instructions.
(b)
Applications for Projects within Great Ponds. The
Department shall publish an inventory of Great Ponds which shall be available
upon written request. Prior to the addition of any pond to the inventory, the
Department will hold a public hearing in the vicinity of the pond. After a pond
is added to the inventory, the Department will provide an opportunity for
owners of existing structures that require licenses to come into compliance
with M.G.L. c. 91 regulatory requirements by submission of an application
within six months from the date of the addition of the pond to the inventory.
The Department will take no enforcement action against the owners of a
structure on a Great Pond not listed on the inventory, unless and until the
Great Pond has been added to the inventory and the opportunity for compliance
has been afforded.
(c)
Coordination with the Conservation Commission. At
least 45 days prior to issuance of a license, the Department and the applicant
shall coordinate with the Conservation Commission as follows:
1. The Department will not require
Conservation Commission approval for existing structures built before enactment
of M.G.L. c. 131, § 40, the Wetlands Protection Act (1963 for coastal
wetlands and 1965 for inland wetlands) and not substantially altered
subsequently. Applicants should consult their local Conservation Commission
regarding application of M.G.L. c. 131, § 40, the Wetlands Protection Act
to maintenance or alteration of existing structures.
2. For structures built between 1963 or 1965
(as applicable) and December 31, 1983, and not substantially altered after the
latter date, the applicant shall provide notice of the application to the
Conservation Commission. The Department shall proceed with licensing, unless
the Conservation Commission informs the Department that it has provided written
notice to the applicant prior to the close of the public comment period to
promote compliance with or to enforce M.G.L. c. 131, § 40, the Wetlands
Protection Act.
3. For structures
proposed, built, or substantially altered on or after January 1, 1984,
applicants shall provide an Order of Conditions, a negative or conditional
negative Determination of Applicability, or a Certificate of Compliance. The
Department may waive this requirement based upon evidence of a written request
for action by an applicant to a Conservation Commission, and subsequent failure
of the Conservation Commission to respond.
(d) The applicant shall submit the notice of
the application included in the application package to the Board of Selectmen
or Mayor, the planning board, zoning authority and the Conservation Commission
of the town or city where the work will be performed. The Department shall
presume compliance with applicable state and local requirements, unless it
receives information to the contrary during the public comment period. Unless
the Department receives a contrary determination from the proper zoning
authority, signed by the Clerk of the affected municipality, compliance with
applicable zoning ordinances and bylaws pursuant to
310 CMR
9.34(1) shall be deemed
certified 45 days after notice to that zoning authority and clerk. Proposed
structures must also conform to plans for waterways developed by agencies or
commissions with legal authority, such as Approved Municipal Harbor Plans
developed pursuant to
301 CMR 23.00: Review
and Approval of Municipal Harbor Plans and listed in 310 CMR 9.57, or
lake, regional commission, or other formal area-wide policies or plans
developed pursuant to
310 CMR
9.38(2)(b).
(e)
Public Notice and Notice to
Abutters. The applicant shall publish in a newspaper of general
circulation in the area where the project is located a public notice including
the applicant's name and address, the project location, a description of the
project, a statement that written comments will be accepted within 30 days of
the Notification Date stated therein, the address where comments may be sent,
and a statement that a municipality, ten citizen group or any aggrieved person
who has submitted written comments within the public comment period may appeal
the Department's decision and that failure to submit written comments within
the public comment period will result in the waiver of any right to an
adjudicatory hearing. A copy of the notice shall also be sent by the applicant
to the landowner if not the applicant, to any person having a record easement
interest in the property where the structure is or may be located, and to all
abutters to the property where the structure is or may be located, by certified
mail, return receipt requested. Joint notice under
310 CMR
10.05(4): Notices of
Interest, 310 CMR 9.10 and
314 CMR
9.05(3): Public
Notices of an Application may be published and sent to persons
entitled to notification, provided it contains the requisite information and
meets the requisite standards pursuant to each statute.
(f)
Fees. For
structures totaling more than 300 square feet pursuant to 310 CMR 9.10(1)(a),
applicants for simplified licenses shall pay an application fee, or the renewal
fee, in accordance with the provisions of
310
CMR 4.10(8)(f) and (l)
respectively. All other applicants for licenses under simplified procedures
shall pay the application fee, or the renewal fee in accordance with the
provisions of
310
CMR 4.10(8)(f) and (l)
respectively. No tidewater displacement fees shall be assessed. Any person
granted a license from the Department in, on or over any land the title to
which is in the Commonwealth shall compensate the Commonwealth for the rights
granted in such lands through payment of an occupation fee ($1 per square yard
per year for the term of the license), in accordance with the provisions of
310 CMR 9.16. No occupation
fee shall be assessed by the Department for structures within the enhanced
portion of Great Ponds. An occupation fee shall be assessed for the portion of
any structure that the Department determines, after opportunity for public
comment, extends below the natural high water mark into the historic portion of
the Great Pond. Enhanced Great Ponds are those which contain a surface area
greater than their historic natural state, resulting from alteration by damming
or other human activity.
(4)
Decision on
Applications. The Department shall issue a license, draft license,
or written determination to deny a license within 90 days of a complete
application, commencing no earlier than the close of the public comment
period.
(5)
Terms and
Recordation for Licenses from the Department. The license term
shall be 15 years, unless the Department determines that a shorter term is
necessary to protect the public interest. In accordance with M.G.L. c. 91,
§ 18, the license, with the plan as an exhibit, shall be recorded at the
Registry of Deeds within the chain of title of the affected property within 60
days of the date of issuance. Failure to record the license and accompanying
plan within 60 days will render the license void in accordance with M.G.L. c.
91, § 18.
(6)
Renewal and Transfer of Licenses from the Department.
A license may be renewed provided the structure remains sound and conforms to
plans submitted with the original application. At the time an application for
renewal is submitted, the applicant shall send a notice of application for
renewal included in the application package to the mayor or board of selectmen,
planning board, and conservation commission of the city or town where the
project site is located. The Department may require additional public notice
based on comments received about the structure or other relevant information.
If such additional public notice for renewal is required, the public comment
period is 30 days. Applicants for renewal shall pay a renewal fee
(see
310
CMR 4.10(8)(1)). Any person
applying for a renewal under 310 CMR 9.10, including renewals of interim
approvals or licenses originally granted under the Amnesty Program, shall
compensate the Commonwealth for the rights granted in such lands through
payment of an occupation fee ($1 per square yard per year for the term of the
license), in accordance with the provisions of
310
CMR 9.16. Unless otherwise provided in the
license, a valid license shall run with the land and shall automatically be
transferred upon a change of ownership of the affected property within the
chain of title of which the license has been recorded. All rights, privileges,
obligations, and responsibilities specified in the license shall be transferred
to the new landowner upon recording of the changed ownership.
(7)
Appeals. The
appeal provisions in
310
CMR 9.17 apply to projects licensed under
310
CMR 9.10.
