THE OFFICE OF APPEALS AND DISPUTE RESOLUTION

January 18, 2012

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In the Matter of OADR Docket No. WET-2011-042

Hamid Shirkhan DEP File No. 039-0638

Manchester, MA

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RECOMMENDED FINAL DECISION

On December 6, 2011, the Petitioner Hamid Shirkhan filed this appeal challenging a Superseding Order of Conditions (“SOC”) that the Northeast Regional Office of the Massachusetts Department of Environmental Protection (“MassDEP” or “the Department”) issued to the Petitioner on November 22, 2011, under the Massachusetts Wetlands Protection Act, G.L. c. 131, § 40 (“MWPA”), and the Wetlands Regulations, 310 CMR 10.00 et seq. (“the Wetlands Regulations”). The SOC affirmed a prior Order of Conditions (“OOC”) issued by the Town of Manchester-by-the-Sea Conservation Commission (“MCC”) denying approval of the Petitioner’s construction of an addition to an existing single-family home at 15 Smith’s Point Road in Manchester-by-the-Sea (“the Property”).

The proposed addition was determined to be in the buffer zone of Coastal Bank, a wetlands area protected by the MWPA and the Wetlands Regulations. The MCC denied approval of the proposed addition for lack of lack of sufficient information purportedly


submitted by the Petitioner in support of the project.

Recently, on January 12, 2012, the parties filed a Joint Motion requesting dismissal of this appeal, the vacating of the SOC, and remand of the matter to MCC for further review because the Petitioner has obtained and will provide the MCC with additional, new information regarding the Coastal Bank delineation at the Property. In light of the parties’ Joint Motion, the issue in this appeal: whether the Department properly issued the SOC, is moot. Accordingly, I recommend that the Department’s Commissioner issue a Final Decision that grants the parties’ Joint Motion, and dismisses this appeal, vacates the SOC, and remands the matter to MCC for further review on the Coastal Bank delineation issue in accordance with the parties’ Joint Motion.

NOTICE-RECOMMENDED FINAL DECISION

This decision is a Recommended Final Decision of the Presiding Officer. It has been transmitted to the Commissioner for his Final Decision in this matter. This decision is therefore not a Final Decision subject to reconsideration under 310 CMR 1.01(14)(e), and may not be appealed to Superior Court pursuant to G.L. c. 30A. The Commissioner's Final Decision is subject to rights of reconsideration and court appeal and will contain a notice to that effect.

Because this matter has now been transmitted to the Commissioner, no party and no other person directlyor indirectly involved in this administrative appeal shall neither (1) file a motion to renew or reargue this Recommended Final Decision or any part of it, nor (2) communicate with the Commissioner’s office regarding this decision unless the Commissioner, in his sole discretion, directs otherwise.

Date: ______

Salvatore M. Giorlandino

Chief Presiding Officer

SERVICE LIST

Applicant/Petitioner: Hamid Shirkhan;

Legal representatives: Glenn A. Wood, Esq.

Rubin and Rudman LLP

50 Rowes Wharf

Boston, MA 02110

e-mail:

Amy E. Kwesell, Esq.

Rubin and Rudman LLP

50 Rowes Wharf

Boston, MA 02110

e-mail: ;

The Local Conservation Commission:

Manchester-by-the-Sea Conservation Commission

c/o Mary Reilly, Conservation Agent

10 Central Street

Manchester, MA 01944;

e-mail:

Legal representative: John J. Goldrosen, Esq.
Kopelman and Paige, P.C.
101 Arch Street, 12th floor
Boston, MA 02110
e-mail: ;

The Department: Jill Provencal

MassDEP/Bureau of Resource Protection

205B Lowell Street

Wilmington, MA 01887

e-mail: ;

Legal Representative: Heidi Zisch, Esq., Chief Regional Counsel

MassDEP – Northeast Region Office

205B Lowell Street

Wilmington, MA 01887

e-mail: .

cc: Leslie DeFillipis, Paralegal

MassDEP/Office of General Counsel

One Winter Street

Boston, MA 02108.

In the Matter of Hamid Shirkhan, OADR Docket No. WET-2011-042

Recommended Final Decision

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