Current through Register 1531, September 27, 2024
A nonwater-dependent use project that includes fill or
structures on any tidelands shall not unreasonably diminish the capacity of
such lands to accommodate water-dependent use. In applying this standard, the
Department shall take into account any relevant information concerning the
utility or adaptability of the site for present or future water-dependent
purposes, especially in the vicinity of a water-dependent use zone; and shall
adhere to the greatest reasonable extent to applicable guidance specified in an
Approved Municipal Harbor Plan, as provided in
310 CMR
9.34(2)(b)2. At a minimum,
the Department shall act in accordance with the following provisions:
(1) If the project includes
nonwater-dependent facilities of private tenancy, such facilities must be
developed in a manner that prevents significant conflict in operation between
their users and those of any water-dependent facility which reasonably can be
expected to locate on or near the project site. Characteristics of the
respective facilities that may give rise to such user conflict include, but are
not limited to:
(a) presence of noise and
odors;
(b) type of equipment and
accessory services;
(c) hours of
operation and spatial patterns of activity;
(d) traffic flows and parking
needs;
(e) size and composition of
user groups;
(f) privacy and
security requirements; and
(g)
requirements for public infrastructure.
(2) If the project includes new structures or
spaces for nonwater-dependent use, such structures or spaces must be developed
in a manner that protects the utility and adaptability of the site for
water-dependent purposes by preventing significant incompatibility in design
with structures and spaces which reasonably can be expected to serve such
purposes, either on or adjacent to the project site. Aspects of built form that
may give rise to design incompatibility include, but are not limited to:
(a) the total surface coverage by buildings
and other permanent structures, insofar as it may affect the amount of open
space where flexibility to serve water-dependent purposes will be
retained;
(b) the layout and
configuration of buildings and other permanent structures, insofar as they may
affect existing and potential public views of the water, marine-related
features along the waterfront, and other objects of scenic, historic or
cultural importance to the waterfront, especially along sight lines emanating
in any direction from public ways and other areas of concentrated public
activity;
(c) the scale of
buildings and other permanent structures, insofar as it may affect wind,
shadow, and other conditions of the ground level environment that may affect
users of water-dependent facilities; and
(d) the landscape design of exterior open
spaces, insofar as it may affect the attainment of effective pedestrian and
vehicular circulation within and to areas of water-dependent
activity.
(3) The
Department shall find that the standard is not met if the project does not
comply with the following minimum conditions which, in the absence of an
Approved Municipal Harbor Plan which promotes the policy objectives stated
herein with comparable or greater effectiveness, are necessary to prevent undue
detriments to the capacity of tidelands to accommodate water-dependent use:
(a) new pile-supported structures for
nonwater-dependent use shall not extend beyond the footprint of existing,
previously authorized pile-supported structures or pile fields, except where no
further seaward projection occurs and the area of open water lost due to such
extension is replaced, on at least a 1:1 square foot basis, through the removal
of existing, previously authorized fill or pile-supported structures or pile
fields elsewhere on the project site; as provided in
310 CMR
9.34(2)(b)1., the Department
shall waive the on-site replacement requirement if the project conforms to an
Approved Municipal Harbor Plan which, as determined by the Secretary in the
approval of said plan and by the Department through the adoption of substitute
provisions in said plan, specifies alternative replacement requirements which
ensure that no net loss of open water will occur for nonwater-dependent
purposes, in order to maintain or improve the overall capacity of the state's
waterways to accommodate public use in the exercise of water-related rights, as
appropriate for the harbor in question;
(b) Facilities of Public Accommodation, but
not nonwater-dependent Facilities of Private Tenancy, shall be located on any
pile-supported structures on flowed tidelands and at the ground level of any
filled tidelands within 100 feet of a project shoreline. The Department may
allow any portion of the equivalent area of a Facility of Public Accommodation
to be relocated within the building footprint, or in other buildings owned,
controlled or proposed for development by the applicant within the Development
Site if the Department determines the alternative location would more
effectively promote public use and enjoyment of the project site. As provided
in
310 CMR
9.34(2)(b)1., the Department
shall waive the above use limitations if the project conforms to an Approved
Municipal Harbor Plan which, as determined by the Secretary in the approval of
said plan and by the Department through the adoption of substitute provisions
in said plan, specifies alternative limitations and other requirements which
ensure that no significant privatization of waterfront areas immediately
adjacent to the water-dependent use zone will occur for nonwater-dependent
purposes, in order that such areas will be generally free of uses that conflict
with, preempt, or otherwise discourage water-dependent activity or public use
and enjoyment of the water-dependent use zone, as appropriate for the harbor in
question;
(c) new or expanded
buildings for nonwater-dependent use, and parking facilities at or above grade
for any use, shall not be located within a water-dependent use zone; except as
provided below, the width of said zone shall be determined as follows:
1. along portions of a project shoreline
other than the edges of piers and wharves, the zone extends for the lesser of
100 feet or 25% of the weighted average distance from the present high water
mark to the landward lot line of the property, but no less than 25 feet;
and
2. along the ends of piers and
wharves, the zone extends for the lesser of 100 feet or 25% of the distance
from the edges in question to the base of the pier or wharf, but no less than
25 feet; and
3. along all sides of
piers and wharves, the zone extends for the lesser of 50 feet or 15% of the
distance from the edges in question to the edges immediately opposite, but no
less than ten feet.
As provided in
310 CMR
9.34(2)(b)1., the Department
shall waive the above numerical standards if the project conforms to an
Approved Municipal Harbor Plan which, as determined by the Secretary in the
approval of said plan and by the Department through the adoption of substitute
provisions in said plan, specifies alternative setback distances and other
requirements which ensure that new buildings for nonwater-dependent use are not
constructed immediately adjacent to a project shoreline, in order that
sufficient space along the water's edge will be devoted exclusively to
water-dependent activity and public access associated therewith, as appropriate
for the harbor in question;
(d) at least one square foot of the project
site at ground level, exclusive of areas lying seaward of a project shoreline,
shall be reserved as open space for every square foot of tideland area within
the combined footprint of buildings containing nonwater-dependent use on the
project site; in the event this requirement cannot be met by a project
involving only the renovation or reuse of existing buildings, ground level open
space shall be provided to the maximum reasonable extent; as provided in
310 CMR
9.34(2)(b)1., the Department
shall waive the above numerical standard if the project conforms to an Approved
Municipal Harbor Plan which, as determined by the Secretary in the approval of
said plan and by the Department through the adoption of substitute provisions
in said plan, specifies alternative site coverage ratios and other requirements
which ensure that, in general, buildings for nonwater-dependent use will be
relatively condensed in footprint, in order that an amount of open space
commensurate with that occupied by such buildings will be available to
accommodate water-dependent activity and public access associated therewith, as
appropriate for the harbor in question;
(e) new or expanded buildings for
nonwater-dependent use shall not exceed 55 feet in height if located over the
water or within 100 feet landward of the high water mark; at greater landward
distances, the height of such buildings shall not exceed 55 feet plus 1/2
foot for every additional foot of separation from the high water mark; as
provided in
310 CMR
9.34(2)(b)1., the Department
shall waive such height limits if the project conforms to an Approved Municipal
Harbor Plan which, as determined by the Secretary in the approval of said plan
and by the Department through the adoption of substitute provisions in said
plan, specifies alternative height limits and other requirements which ensure
that, in general, such buildings for nonwater-dependent use will be relatively
modest in size, in order that wind, shadow, and other conditions of the ground
level environment will be conducive to water-dependent activity and public
access associated therewith, as appropriate for the harbor in
question;
(4) the
requirements of 310 CMR 9.51(1) through (3), shall also apply in the event a
nonwater-dependent use project is located on a Great Pond;
(5) the requirements of 310 CMR 9.51(3),
shall not apply to projects on filled tidelands in Designated Port Areas
involving temporary uses, supporting DPA uses that are industrial, and marine
industrial parks.
