A nonwater-dependent use project that includes fill or
structures on Commonwealth tidelands, except in Designated Port Areas, must
promote public use and enjoyment of such lands to a degree that is fully
commensurate with the proprietary rights of the Commonwealth therein, and which
ensures that private advantages of use are not primary but merely incidental to
the achievement of public purposes. In applying this standard, the Department
shall take into account any factor affecting the quantity and quality of
benefits provided to the public, in comparison with detriments to public rights
associated with facilities of private tenancy, especially those which are
nonwater-dependent; and shall give particular consideration 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 310 CMR 9.53(1) through (4).
(1) The project shall not include fill or
structures for nonwater-dependent use of Commonwealth tidelands which the
Department determines are necessary to accommodate a public agency which
intends to pursue a water-dependent use project on such lands, provided written
notice of such agency's intention is submitted to the Department prior to the
close of the public comment period on the license application. Such
determination shall be based upon a clear showing, within a period of time
deemed reasonable by the Department, that the agency's project has met the
criteria of
310 CMR
9.36(5)(a)2. through
4.
(2) The project shall attract
and maintain substantial public activity on the site on a year-round basis,
through the provision of water-related public benefits of a kind and to a
degree that is appropriate for the site, given the nature of the project,
conditions of the waterbody on which it is located, and other relevant
circumstances. In making this determination, the Department shall act in
accordance with 310 CMR 9.53(2)(a) through (e):
(a) in the event the project site includes a
water-dependent use zone, at least one facility utilizing the shoreline in
accordance with the provisions of
310 CMR
9.52(1)(a) must also
promote water-based public activity; such facilities include, but are not
limited to, ferries, cruise ships, water shuttles, public landings and
swimming/fishing areas, excursion/ charter/rental docks, and community sailing
centers;
(b) the project shall
include exterior open spaces for active or passive public recreation, examples
of which are parks, plazas, and observation areas; such open spaces shall be
located at or near the water to the maximum reasonable extent, unless otherwise
deemed appropriate by the Department, and shall include related pedestrian
amenities such as lighting and seating facilities, restrooms and trash
receptacles, children's play areas, and safety ladders along shoreline
walkways, as appropriate; such facilities shall be sized in accordance with 310
CMR 9.53(2)(b)1. through 2.:
1. the amount of
such space shall be at least equal to the square footage of all Commonwealth
tidelands on the project site landward of a project shoreline and not within
the footprint of buildings, less any space deemed necessary by the Department
to accommodate other water-dependent uses; the Department may also allow a
portion of such open space to be devoted to public ways and/or surface parking
open to the public, including users of the facility of public accommodation,
provided that below grade or structured parking is not a reasonable alternative
and that the open space devoted to public vehicular use does not exceed that
devoted to public pedestrian use;
2. as provided in
310 CMR
9.34(2)(b)1., the Department
shall waive the requirements of 310 CMR 9.53(2)(b)1., 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 requirements for
public outdoor recreation facilities that will establish the project site as a
year-round locus of public activity in a comparable and highly effective
manner;
(c) the project
shall devote interior space to facilities of public accommodation, other than
public parking, with special consideration given to facilities that enhance the
destination value of the waterfront by serving significant community needs,
attracting a broad range of people, or providing innovative amenities for
public use; such public interior space shall be located at the ground level of
all buildings containing nonwater-dependent facilities of private tenancy,
unless the Department determines that an alternative location would more
effectively promote public use and enjoyment of the project site or is
appropriate to make ground level space available for water-dependent use or
upper floor accessory services; the extent of such interior space shall be
determined in accordance with 310 CMR 9.53(2)(c)1. through 2.:
1. such space shall be at least equal in
amount to the square footage of all Commonwealth tidelands on the project site
within the footprint of buildings containing nonwater-dependent facilities of
private tenancy;
2. as provided in
310 CMR
9.34(2)(b)1., the Department
shall waive the requirements of
310 CMR
9.34(2)(c)1., 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
requirements for interior facilities of public accommodation that will
establish the project site as a year-round locus of public activity in a
comparable and highly effective manner;
(d) the project shall include a management
plan for all on-site facilities offering water-related benefits to the public,
to ensure that the quantity and quality of such benefits will be effectively
sustained; management elements which may be covered by the plan include, but
are not limited to, signage, maintenance, hours and rules of operation,
organizational arrangements and responsibilities, pricing, financing, and
procedures for resolving use conflicts; if deemed appropriate, the Department
may require the applicant to offer to the public, in the form of an easement,
an enforceable right of access to or use of a proposed water-dependent facility
of public accommodation; and
(e) in
the event that water-related public benefits which can reasonably be provided
on-site are not appropriate or sufficient, the Department may consider measures
funded or otherwise taken by the applicant to provide such benefits elsewhere
in the harbor or otherwise in the vicinity of the project site.
(3) The project shall promote
other development policies of the Commonwealth, through the provision of
nonwater-related benefits in accordance with applicable governmental plans and
programs and in a manner that does not detract from the provision of
water-related public benefits. In making this determination, the Department
shall act in accordance with 310 CMR 9.53(3)(a) through (d):
(a) the Department shall take into account
any guidance forthcoming from a state, federal, regional, or municipal agency
as to the extent to which the project will contribute to or detract from the
implementation of any specific policy, plan or program relating to, among other
things: education; employment; energy; environmental protection; historic or
archeological preservation; housing; industry; land use; natural resources;
public health and safety; public recreation; and transportation.
(b) the Department shall act in accordance
with the written recommendation of the Secretary of any state Executive Office
in whose area of agency or program jurisdiction the proposed project falls,
provided that said recommendation is made pursuant to an MOU or other written
agreement with the Department as to the manner and extent to which the
nonwater-related policies, plans, and programs of said Executive Office will be
promoted in relation to water-related public interests.
(c) the Department shall give primary
consideration to the implementation of policies, plans, or programs that:
1. have been officially adopted by statute,
regulation, or other formal instrument of legislative or administrative action;
and
2. complement measures taken by
the project to serve water-related public purposes; examples of such
complementary policies include the improvement of public transportation systems
in order to foster ease of public movement to and from waterfront facilities,
and the inclusion of affordable housing in residential development in order to
make waterfront tenancy and access available to a broader segment of the public
than would be the case under prevailing market conditions;
(d) the Department shall consider only those
nonwater-related benefits accruing to the public in a manner that is reasonably
direct, rather than remote, diffuse, or theoretical. Examples of direct public
benefits include meeting a community need for mixed-income residential
development, creating a large number of permanent jobs on-site, and reutilizing
idle waterfront properties. Corresponding examples of indirect public benefits
include increasing the general supply of market-rate housing, improving overall
economic conditions, and expanding the property tax base of a
municipality.
(4) In the
event a nonwater-dependent use project is located on Great Ponds, the
Department shall apply the provisions of 310 CMR 9.53(1) through (3), to the
portion of the project site lying below the natural low water mark.
