HomeMy WebLinkAboutCorrespondence - 143 LACY STREET 12/12/2012 BRODIGAN AND GARDINER LLP
ATTORNEYS AT LAW
40 BROAD STREET
JOSEPH J. BRODIGAN,P.C. BOSTON, MASSACHUSETTS 02109
WILLIAM D. GARDINER
MICHAEL B. BRODIGAN 1
JOSEPH J. BRODIGAN,JR.
December 12, 2012
Via Email and First Class Mail
Thomas J. Urbelis, Esq.
Urbelis & Fieldsteei, LLP
155 Federal Street
Boston, MA 02110-1727
RE: O'Mahony Property in North Andover
Dear Tom:
This is a response to your letter dated November 30,
2012 regarding the use by my client, The O'Mahony Family
Farm, LLC, of its property on Lacy Street in North Andover.
The O'Mahonys acquired the property by deed dated
December 30, 2010 from the Estate of Barbara Tighe. Ms.
Tighe had operated the Whipporwill Horse Farm at the
property having acquired it herself in 1967 . She
continuously operated a farm on the premises until her
death in 2002. A Notice of Agricultural Tax under M.G.L. c.
61A dated July 6, 1997 was recorded in the Essex South
Registry of Deeds. That tax status has not changed since
then. Subsequent to Ms. Tighe' s death, Stacy Hughes-Birch
operated a horse farm there until approximately 2010 when
she vacated the property pursuant to an order of the Essex
Probate Court.
The Essex Probate Court order also determined that
certain barns and structures on the farm were a public
safety hazard and ordered that they be razed. This was
done by the Tighe Estate in January 2011 as a condition of
the sale to the O'Mahonys. Since that time, my clients have
expended a substantial amount of time, effort and money to
reconstruct the farm structures in order to properly and
safely operate the farm on the property.
BRODIGAN AND GARDINER LLP
Most of the farm buildings have been constructed to
date. All work was done pursuant to validly issued permits
and approvals from the Town of North Andover. The
construction and erection of the structures required to
house solar panels is the last significant piece of work to
be done. That work is the subject of the building permit
application that John O'Mahony submitted on Monday to the
Town. Those solar panels are going to be used to provide
efficient, environmentally friendly energy to power the
farm operation. My clients have opted to utilize solar
power, in part, because they will receive a combination of
grant money and tax credits from the state and National
Grid for its use. One of the conditions of the grant is
that the panels be constructed by December 31, 2012.
As per our telephone conversation of today, I did
speak to my client . He informs me that he has never
prohibited the building inspector from accessing the
property. If there is some misunderstanding in this
regard, I suggest that Mr. Brown contact either John or
Stephanie O'Mahony and they will make arrangements with him
for access. Because of the looming December 31 deadline, my
clients are anxious to satisfy any conditions required for
the issuance of the permit.
As soon as all of the improvements are completed, my
clients fully intend to continue the farm operations. They
will have approximately 10 horses, 12-24 chickens and
possibly, goats as well. They are also investigating the
feasibility of planting and raising vegetable crops as well
as housing other types of animals. The structures that the
O'Mahonys have erected clearly support the fact that they
intend to use the property as described above.
I have been told that the permit to erect the solar
panels will not issue until there is some determination
about whether a permit under the Erosion Control Bylaw was
BRODIGAN AND GARDINER LLP
required for grading work that my client did at the
property. While I do not believe that that is a valid
basis for withholding the solar panel permit, I am of the
opinion that my clients are exempt from the bylaw.
Section 160-4 B (2) expressly exempts from the
requirements of the bylaw "Normal maintenance and
improvement of land in agricultural use. " The bylaw relies
upon the definition of agriculture use contained in
Massachusetts Wetlands Protection Act (MGL c. 30, §40) and
its implementing regulations (310 CMR 10.00 et seq. ) . 310
CMR 10 . 04 (a) , a copy of which is attached to this letter,
defines agricultural use to include the producing and
raising of animals and vegetable crops. That regulation
also specifically states that land in agricultural use may
lie inactive for up to five consecutive years without
losing its status as agricultural property. While I submit
that performing the improvement work to the farm structures
is sufficient to deem the property to be "in agricultural
use", the five year protection provided in the regulation
eliminates any argument that my client's property is not in
agricultural use because there are no animals nor crops on
site today.
Please review the above and let me know if you need
any further information in order to bring this issue to a
resolution. Thank you for your cooperation in this matter.
Sin erely,
i
William Gar ner
ZG. No person shall remove, (ill,dredge or alter any area subject to protection tinder this section%vithoul the
required authorization,or cause,sutler or allow such actiwit�.or leave in place unauthorized lilt,or
otherwise fail to restore illegally altered land to its original condition,or fail to comply with an
enforcement order issued pursuant to this section.Each day such violation continues shali constitute a
separate ot-fense except that any person who fails to remove unauthorized lilt or otherwise fails to restore
illegally altered land to its original condition after giving wwrilien not ircalion of said violation to the
conservation commission and the deparnnent shall not be subject to additional penalties unless said
person thereafter fails to comply with an enforcement order or order of conditions.
27. Whoever violates any provision of this section,(a)shall be punished by a fine of not more than twenty-
five thousand dollars or by imprisonment for not snore than two+ears,or both such fine and
imprisonment;or(b),shall be subject to a civil penalp-not to exceed twenty-five thousand dollars for
each violation.
Definitions of Agriculture 1310 CNIR 10.04 (Agriculturefl
10.03:continued
.agriculture.For the purposes of 310 CMR 10.04 the followving words and phrases have the following
meanings:
(a) band in agricultural use means land within resource areas or the Buffer Zone presently and primarily
used in producing or raising one or more of the following agricultural commodities for commercial
purposes:
I. animals,including but not limited to livestock,poultry,and bees;
2, fruits,vegetables,berries,nuts,maple fap,and other foods for human consumption;
3. feed,seed,forage,tobacco.flowers,sod,nursery or greenhouse products,and ornamental plants or
shrubs;and
1. forest products on land maintained in forest use,including but not limited to biomass,saw-logs,and
cordwood but not including the agricultural commodities described in 310 CMR 10.04
( gnculturc)(a)1.through 3.
Additionally,land in agricultural use means land within resource areas or the Buffer Zone presently and
primarily used in a mariner related to,and customarily and necessarily used in,producing or raising such
commodities,including but not limited to:existing access roads and livestock crossings;windbreaks,
hedgerows;field edges;bee yards;sand pits;landings for forest products; fence lines;water management
projects such as reservoirs, Farm ponds,irrigation systems,field ditches,cross ditches,canaWchannels,grass
waterways,dikes,sub-surface drainage systems,watering facilities.water transport systems,and water
storage systems;agricultural composting sites;agricultural storage and work areas;and land under farm
structures.
XLand in agricultural use may lie inactive for up to five consecutive years unless it is under a United States
event o A riculture(USDA contract for a longer term ursuant to the Conservation Reserves
Program a Food Securities Act of 19 85,as amen e y the Food,Agriculture onservatton and'frade
et o ;an 410),or it is used for the forestry purposes w escn e to Ci4imu-
( gricu ure ., .an .).The issuing authority may require appropriate documentation,such as
a USDA Farm Plan or aerial photography.to demonstrate agricultural use,
(b) Normal maintenance of land in agricultural use,which in all cases does not include placing substantial
amounts of fill in Bordering Land Subject to Flooding or filling or dredging a Salt Marsh,means the
following activities,without enlargement as to geographical extent,that are occurring on land in
agricultural use,when directly related to production or raising of the agricultural commodities refercnccs
in 310 CMR 10.04(Agriculture)(a),when undertaken in such a manner as to prevent erosion and
siltation ofadjaeent water bodies and wetlands,and when conducted in accordance wish federal and
state laws:
-37-
�
a
From: Tymon, Judy
Sent Thursday, December 13. 2U124:4OPN1
/o: muym/. Am/ew
Co: Thomas J. Urbeks; Bel|avanne' Curt; Hughae, Jennifer; Brown, Gerald; Enright, Jean
Subject: Re: D'W4ehony
Andrew,
I think that the item can be put on the agenda for discussion next Tuesday. I would advise the Planning Board that I
agree with Jennifer Hughes' interpretation of our Bylaw,that the O'Mahoney property has not been in agricultural use
according Lo the MA Wetlands Protection Act W1GL131, P4O regulations CIVIR31O. |would also advise that ifthe
O'Mahoney's simply apply for a Land Disturbance Permit, we can issue the Building Permit for the solar panels, while the
review of the Land Disturbance Permit takes place.
Judy
Sent from my iPad
On Dec 13, 2012, at 4:27 PIVI, "May|or,Andrew" wrote:
Judy,
Should this be brought before the planning board?
Regards, �
Andrew W. KOay|mr �
�
Town Manager
Town of North Andover
13D Main Street
North Andover,N1AD1845
Phone 978.688.9510
Fax 978.688.9556
Email
Web
|
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From: Thomas UrbeUs
Sent: Thursday, December 13, 20124:23PM /
To: May|or, ADdrew
Cc: Bd|avance, Curt; TymnD/ Judy; Hughes, Jennifer; Brown, Gerald; Brown, Gerald
Subject: FVV: D'MahVny
�
Andrew........ per You rrequest. Torn
Please note the Maasocx oou secretary*State's office has uetenoimm that roost mmaimm and frommummpa|offices and officials are
puu|icmoomo.po'mum mfonmaVv^p|neno refer to: .
Please consider the environment before printing this omai|. �
�
�
1
�
�
EneW t, Jean
From: '
Sent: Sunday, December 16, 2012 12:59 PM
To: Tymon, Judy
Cc: Bellavance, Curt; Enright, Jean
Subject: Re: Fwd: O'Mahony
Judy........I suggest that the Board have copies of Attorney Gardiner's Dec. 12 letter to me, my memo to the Town
Manager and my Dec 14 letter to Attorney Gardiner.Tom
Sent from my Verizon Wireless Blacl<Berry
From
Date: Sun, 16 Dec 2012 02:55:33 +0000
To:Tymon,Judy<°
ReplyTo: `
Cc: Bellavance, Cu rt< _M Enright,Je
Subject: Re: Fwd: O'Mahony
I did
Sent from my Verizon Wireless BlackBerry
From: "Tymon,Judy"
Date: Sat, 15 Dec 2012 16:20:27-0500
To:Tom Urbelis _ ____! "r°fi
Cc: Bellavance, Curt ; Enright,Jean<'
Subject: Fwd: O'Mahony
Tom,
Are You going to communicate to their attorney and ask them to attend the PB meeting?
Judy
Sent from my iPad
Begin forwarded message:
From: "Maylor, Andrew"
Date: December 13, 2012 4:27:21 PM EST
To: "Thomas J. Urbelis"
Cc: "Bellavance, Curt" , "Tymon,Judy"
"Hughes,Jennifer"
"Brown, Gerald" "Brown, Gerald"
Subject: RE: O'Mahony
Judy,
Should this be brought before the planning board?
Regards,
Andrew W. Maylor
Town Manager
1
Town of North Andover"
120 Main Street
North Andover,MA 01845
Phone 978.688.9510
Fax 978.688.9556
Email
Web okwrw.TownofNorthAndover.ccmn
<image003Jpg>
From: Thomas J. Urbelis
Sent: Thursday, December 13, 2012 4:23 PM
To: Maylor, Andrew
Cc: Bellavance, Curt; Tymon, Judy; Hughes, Jennifer; Brown, Gerald; Brown, Gerald
Subject: FW: O'Mahony
Andrew.........peryOUrreqUest. Tom
Please note the Massachusetts Secretary of State's office has determined that most emails to and from municipal offices and officials are
public records.For more information please refer to:I)ttD://www.sec.state.ma.us/ore/Dreidx,htni.
Please consider the environment before printing this email.
2
MEMORANDUM
TO: Andrew Maylor, Town Manager
FROM: Thomas J, Urbelis,Town Counsel
CC: Curt Bellavance
Judy Tymon
Gerald Brown
Jennifer Hughes
RE: O'Mahony Property on Lacy Street
DATE: December 13, 2012
You asked for my opinion as to whether or not the Stormwater Bylaw applies to the
O'Mahony property. As discussed below, there are factual findings which need to be made in
order to determine whether the Stormwater Bylaw applies.
Applicability of Bylaw:
Section-160-4 provides in part:
"Except as permitted by the Planning Board in a land disturbance permit or as
otherwise provided in this Bylaw, no person shall perform any land disturbance
involving disturbance of 43,560 square feet or more of land."
Therefore,there must be a determination as to whether there has been(or will be)a
disturbance of 43,560 square feet or more of land.
Exemption:
If it is determined that 43,560 square feet of land has been, or will be disturbed, one of
the exemptions is as follows in 160-413:
"Exempt Activities. The following activities are exempt from the requirements of
this Bylaw:
2. Normal maintenance and improvement of land in agricultural use."
The O'Mahonys claim they are exempt under the foregoing provision, as stated in a letter
dated December 12, 2012 from Attorney William Gardiner, attached hereto, which recites
alleged facts to justify the exemption.
"Agricultural Use" Definition:
(a) In 160-2 the Bylaw defines agriculture as follows:
"AGRICULTURE: The normal maintenance or improvement of land in
agricultural or aquacultural use, as defined by the Massachusetts Wetlands
Protection Act(M.G.L. c. 131, §40) and its implementing regulations (310 CMR
10.00). (emphasis supplied)
(b) The applicable regulation (310 CMR 10.04) which defines agricultural use is
attached to Attorney Gardiner's letter. (The underlining and highlighting are his.)
Factual Determination Required:
While Attorney Gardiner's letter describes the alleged history of the use,a factual
determination needs to be made as to the accuracy of the assertions in his letter:
(a) Whether the use of the land is. or has been, consistent with the listing of
agricultural uses in 310 CMR 10.04(x)and
(b) If the land is not currently in agricultural use,then whether the land was in
agricultural use and satisfies the criteria that it may be inactive for up to five
consecutive years, (i.e., sometime since 2007).
Enforcement:
This is a general bylaw, and not a zoning bylaw (which is enforced by the Building
Inspector).
Section 160-5A of the bylaw states:
"The primary authority for the administration, implementation, and enforcement
of section 160-4 shall lie with the Planning Board."
Section 160-2 (Definitions)states in part:
"PLANNING BOARD. The designees authorized to implement all actions and
procedures authorized by the Bylaw. The Planning Board may, by majority vote
at a public meeting, delegate any of the responsibilities for the administration of
this Bylaw to the Town Planner."
Conclusion:
Therefore,unless the Planning Board is willing to accept the factual assertions in
Attorney Gardiner's letter regarding the use of the land and the timeframe for such use as
being accurate, in my opinion the following factual determinations need to be made by
the Planning Board (or designee if so voted) in order to determine whether or not the
Stormwater Bylaw applies to the O'Mahony property or whether the property is exempt
under the agricultural use provision:
1. Has there been, or will there be, a disturbance of 43,560 square feet? (I
believe Judy Tymon is already of the opinion that there has been a
disturbance in excess of 43,560 square feet.)
2. The factual determinations as stated above.
According to Attorney Gardiner's letter,the O'Mahonys will lose grant funding if
the solar panels are not installed this year. If the Planning Board places this matter on the
agenda for December 18, the O'Mahonys or their counsel should be notified.
Please let me know if you have any questions.
URBELIS&FIELDSTEEL.LLP
155 FEDERAL STREET
BOSTON.MASSACHUSETTS 02110-1727
December 14. 2012
BY FMAIL and FIRST CLASS MAIL
William Gardiucr, Esq.
Brodie au and Gardiner LLI'
40 Broad Street
Boston. NMA 02109
Re: O'Mahonv Property in North Andover
Dear Attornev Gardiner:
In your December 12. 2012 letter you state that your clients are clalnllll') an
a1ricuIUII-al use exemption from the town's Storin ater Management & Erosion Control
Bwlaw. \VJth regard to agriculture.that bylaw rel'ers to the Massachusetts Wetlands
Protectiou Act and its implementing regulations.
310 CMR 10.04 of those regulations (as attached to)'01.11•letter) requires that the
agricultural activities be for commercial purposes.
Attached hereto is an excerpt from a Department of Environmental Protection
pUbliCat1011 which discusses the agricultural exemption tinder 310 C'IvIR 10.01 and the
commercial purposes requirennent.
In analyzing the meaning of the word "commercial" please note that the publication
States:
Operating a stable is not commercial agrlCLlltUre because no corlllnlodity
grown on the premises is sold. The services associated with the stable--
boarding, groonning,and feedinuy the horses—do not Constitute raisin�� an
agricultural commodity. It would be different if Mrs. Green bred horses for
sale. Merely keeping them on the premises. however,does not qualify the
land used in that business for the exemption.
I RBEI.IS&, FIELDSTEEL.LLP
December 14. 2012
Pa�zr
As the claimant for an exemption from the bylaw. your clients have the burden of
proof xyrth regard to showing the past or present allegedly agricultural activity vas For
commercial purposes. Neither your letter nor anything else submitted to the Town by your
clients provides evidence (i.e. not just an assertion) of the commercial purposes required for
lie exemption.
Please have your clients provide such evidence of the -commercial purposes"as
required by CN4R 10.04.
Vern truly tiours,
"Thomas.l. Urbelis
tJl sat,
1=.nclosurc
cc: Andrew Maylor. Town Manager
Chapter Two;
Approaching ApproocNng the Exem Lion
Maintenance activities involve practices that keep existing operations in good working Maintenance
order.
Examples of"maintenance"include all aspects of crop rnanagennent,management of related
seater bodies,and repairs to existing farm structures,access roads and ways,and fencing.I'v4aintenance
will not necessarily happen often.Sanding of cranberry bogs rourinel•happens every 3 to 5 years and
repair or restoration of subsurface drainage may happen every 10 years;still, they are considered to be
normal maintenance.
Maintenance activities must be necessary and directly related to the production or raising of
agricultural or aquacultural commodities. Building a farm stand or a produce-packaging facility in a
wetland resource area therefore generally would not be exempt.Also, the size and scale of maintenance
activities must be appropriate to the farm enterprise.
Improvement activities involve change. Improvement
Improvements may enhance growing conditions, involve construction,or require Elie use of
equipmcnt in resource areas or a buffer none.Examples include:creating a windbreak to reduce
soil loss; building a by-pass channel/canal to improve water quality in a cranberry system;digging a
manure pit to prevent leaching;or establishing an irrigation systenh.
Improvements might be innovative,such as adopting rotational grazing,a practice that involves
changes in fencing and pasture seeding. Intensi(yino production,diversifYing crops,and adding
livestock are examples of improvement strategies ts-pictlly used by cpmpetiti-e Massachusetts farmers.
An improvement to one area may trigger a change in the use Of related area.For example, if
a farmer converts from dairy to vegerable production,it would he considered a normal improvement
not only to convert suitable pasture or field,corn land to rocs-crops,but also to adapt a livestock
water in facility to irrigation and to set up greenhouses or colt(frames in a former barrivard.
As with maintenance activities,improvement activities must be necessary and direah•related
to the production or raising of agricultural or aquacultural commodities. Building a farm stand or a
produce-packaging facility therefore vyould not be exempt.Alto,the size and scale of inhprovenhetnt
activities must be appropriate to the farm enterprise.
To qualify for the Agriculture Exemption,land must be in agricultural use. Land in
The Agriculture Regulations are quite specific about what constitutes land in agricultural or Agricultural USE
aquactdtural use. the exemption applies only to those land areas within the farm gate chat presently (L�AU)
and primarily are in production or that customarily and necessarily are related to production. l
Thus,bringing abandoned land back into production(see discussion below),opening new land
to farming(enlarging a farm enterprise into previously unaltered resource areas),or creating new access
roads and or work areas are not exempt activities because the land in question is not presently
Mid primarily in or related to production.
(Certain improvement activities are an exception to the ode just stated,that land must be
`presently and primarily in production"or"customarily and necessarily related to production"to
qualify for the Agriculture Exemption.These activities-the squaring off of field edges and the creation
of certain water control structures-are described later in this Guide. Oehenvise,it is NOT considered
exempt to convert so-called related land to cropland.)
The Agriculture Regulations also stipulate that,to be exempt,land mast be used in producing
or raisins agricultural commodities for commercial purposes.The definition of"commercial"is
C iscussed below(see page 2-3).
Although the land must be"presently and primaidy"in agricultural use, the definition allows Active vs. Inactive Land
it to be"inactive"for up to 5 consecutive Years without losing exempt status-or longer, if the land is
inactive as part of a USDA contract pursuant to the Conservation Reserves Program,For example,a
field or pasture may be out of use temporaril because o changes in enterprise,a financial situation,
or as a strategy to manage weeds or fertility;still,it is considered land in agricultural use for up to five
years.Land that currently is inactive as part of an active rotation is considered land in agricultural use.
- Farming in Wetland Resource Areas
Chapter Two:
Approaching the Exemption
Arid a field that is fallow- chat is,plowed but unneeded-is not considered inactive.
Land under the jurisdiction of the Wetlands Protection Act that has been out of production for
longer than five years(without being under USDA contract)is considered new land. Farming activities
proposed for such areas are not exempt and therefore require a permit(an Order of Conditions)under
the Wetlands Protection Act.Thus,a pasture that has not been grazed or managed at all during the
past five years is nor considered land in agricultural use,even though fencing still surrounds it.
It is proper for a Conservation Commission or DEP to require documentation of the extent
and the timing of agricultural use.Such proof could be aerial photography,a USDA farm plan, hay
receipts,or ASC:S cropping records.
Land in Production "Land in Production"is one kind of land in agricultural use as defined by the Agriculture
Regulations.It is iliac portion of the farm presently and primarily used to produce or raise agricultural
commodities for commercial purposes.A field of corn,a fenced pasture of grazing sheep,an orchard,
a chicken yard,a pick-your-own strawberry patch-all of these are clear examples.The area of a forest
under active management also is considered productive land.
Necessary and ":necessary and related land"is the other kind of land in agricultural use as defined by the
Related Land Agriculture Regulations.It is the portion of the farm that is"presently and primarily used in a manner
related to,and custon;arily and necessarih,used in,producing agricultural commodities."These are
areas of the farm that are not productive cropland but that are essential to the operation of the faun
because they support existing land in production.Examples include:existing access roads and ways;
composting areas;barns and sheds;fire ponds;livestock crossings;woodloc landings;and field ed,es._
Related land also includes those areas where water management activities take place,such as:
pond inlets and ourlets;accesses;field surErce and subsurface drainage systems, including pipes and
outlets;pumphouses;and permanent or temporan•culverts.
Related areas may be used continually,such as an access to a field;seasonally,such as the area
set aside fitr the burning of orchard pnutings;or infrequently;such as a sand pit for cr nberry bog
sanding.All of these areas are integral and necessary components ofaerive enterprises.
Definition of According to the definition of"land in agricultural use"at 310 CN4R 10.04(Agriculrtrre)(a),the
Commercial land in question must be used to produce or raise certain agricultural commodities"for commercial
purposes."u'har distinguishes commercial purposes from non-commercial purposes;
The American Hcricage Dictionary(Second College Edition, 1935),gives the following relevant
definitions:
"l.a. Of or pertaining to commerce." -Commerce,"in turn, is defined as"The buying and
selling of goods.")
3. Having profit as a chief aim."
Using these definitions,a"commercial purpose"can be characterized by two key elements: first,
the activity of selling;and second, the goal of making a profit. It is not enough to have one without
the other-both elements must be present.NN'hether they are present must be determined on a case-by-
case basis.
- -Farming in-Wefiond Resource Areas - - -- 2-3
Chapter Two;
Approaching the Exemption
It is not possible to give an exhaustive list of examples that will cover every question that nIight Examples
arise about the meaning of the word"commercial."The following examples, therefore,are meant as
illustrations only:
For 7nany years,Ms. Snnith hats grown st;-atobeivIes an her propert):A potion of the crop grows
in the 100 foot buffer zone to a resota"ce area under the 11'Mands Protection Act,Mc,Smith consumes
some of the st)"awberriec herself Solne she gives aivig pesh to fn•iendc and relatives. The rest she turns into
preserves;she uses some of the preserves herscland, again,she gives the reit away.ML),she pr7 orm "no)-mal
m ainrenance"or'normal improvement"activities,suwh its spreading compost, wirhour filing with the
Conservation Commission?
The answer is no. The land is not "in agricultural tae"as defined in the Agric ulrure Regulations.
AMS.Smith is not selling the st)mwbetics. Shc has no goal of making a prof r..
For n7an�,years,Aln Jones has grown sn•awber)tes on his propcty.A portion of the crop grows in
the 100 foot Guff r zone to a resource area unde)•the 11'etleinas Protection Art,Mr.Jones consunics
some of the strawberries himself. Tl.5c rest he sellls on weekendsf•oat his f)-ont porch to help cower his costs
n-f')•trlize); water,and the like.May hepe)forni "nomnal maintenanee"U7-"normal in)p)•ovelnent"
activities,such as spreading compost, without fling with the Conservation Commission?
The anrrwrT is no. The land is;,,or "in agricultural rte"as defrneal ill the Agriculture Regulations.
AMr.Janes is selling hir strawberries, but he haf no goal o)-cvj)ectllli6,n of making a profit.Note that
whether or nor he makes a)n-ofit is not the i sin r-rather, whether or not he has'�)ra_lit as a chiefahn"is the
issue.
Mls. Green runs a stable. Her cusio zes board their horses there. The customers take the hoses
Q—)o•rides of rll)s. Green}property. Some of•the Bose trails pass through rectlrntds and Mrs. Grcell
c the nails to keep then)open.She also)Wises and harvests hay,partly in wetlands resoterce arras and
bufer zones, which she feeds to the hoses. The customers we rhznged for the ha),that Mrs. Green p)-ovides.
Is Mrs. Green's land in agricultural use? '.
answer is yes and no. Yes, the land where hay is raised and harvested is in ag)"irullio-al use.
J IThe The is an ag)-icultural co modit)•that is sold Mrs. Given as pa)•t of he)-fo"f)roftt activity in
winning the stable.She could just as well sell the hay to a feed business and require her customwrs to supply,
their 011,1:hay;instead,she has cut oltt the middle nnaln. That does)not)rffict the connnercial muure of
the activity.However, the riding paths arc)tot ill agrtcldtinttl.we• Operating a stable is not commercial
rgriculrur: because no connnodih,grown on the premises is sold. Tke services associated wish the stable
-boarding,groonnbrg,anal feeding the hoses-do not constitute rani)ngall agricultural comntodit} It loorld
be diff-rent if.1lrs. Green bred hoses for sale.tllrrrl) keeping then on the pre)nist:, however,does not
quali,,j,the land used in that business for the ercnlption.
It is important to remember the significance of these activities not qualifying for the Agriculture
Exemption•It does not mean that the landowner inay not grow strawberries or operate a stable. It
does mean that before the landoy:ner takes actions that would remove,fit!,dredt,•e, or alter a wetland
resource area or alter a Buffer Zone,lie or she must file a Notice of Intent and receive an Order of
Conditions.
Forming in Wetiand Resource Areas
Chapter Two:
Approaching the Exemption
Summary To summarize,the exemption for normal maintenance or improvement of land in agricultural
use must meet the following tests:
• It is the«•ork,or activity,that is exempt,and not the land itself.
• The activity must be considered normal.
• The activity must be considered maintenance OR
the actiyin•must be considered improvement;AND
• The activity must occur on land in agricultural or aquacultural use.
Wall of these conditions are met,the activity can qualify for the Agriculture Exemption. Before
the farmer may proceed with the exempt activiq•,however,certain conditions must be met.
Conditions Even though an activity is considered"exempt," there are conditions that must be satisfied
in order to exercise the.Agriculture Exemption. Farmers and Conservation Commissioners need to
understand these conditions,which can be classified as either"general'or"specific."
General Conditions The following general conditions apply every time the Agriculture Exemption is exercised:
• All maintenance or improvement activities shall be"undertaken in such a manner as to
prevent erosion and sil ratio n of adjacent water bodies and wetlands."This condition is
contained in the introductory paragraph to 310 CMR 10.04(Agriculture)(b)and in 310
CAM 10.04(A-7 riculture)(c)(1).
• pilling or dredging of a salt marsh is prohibited under all circumstances.This condition is
contained in the introducrory paragraphs to both 310 CNIR 10.04(Agriculture)(b)and 310
C IR 10,04(Agrieulture)(c).
• All maintenance and improvement activities must be"conducted in accordance with
federal and state laws."This condition is contained in the introductory paragraph to 310
CMR 10.04(Agriculture)(b) and in 310 CMR 10.04(Agriallture)(e)(1).Examples of laws
that aught be relevant are those dealing with pesticide application,fuel storage, and
conlposnalg.
Specific Conditions ']'here also are specific conditions that appear in particular sections of the Agriculture
Regulations.These have to do with:
• Limitations on size_
• Limitations on location.
• Limitations on loss of flood storage capacity.
• Particular prohibitions on storage sites for fertilizer and pesticides.
• Protection for rare species habitat.
• Requirements for conservation plans approved by SCS (see page?-S of this Guide).
The forestry provisions of the Agriculture Regulations have additional conditions that refer to
other laws and regulations,as well as to specific forestry practices.
2-5
Farming in Wetland Resource Areas
Enright, Jean
Fronm, TV0on' Judv
Sent: Friday, 18. 201310:00AM
To: Enright, Jean
Subject: RE: Land Disturbance Permit
Jean`
I should have told you that the land Disturbance Permit is not going before the Planning
Board. It will be administrative only. Z did not realize that there was no time stamp.
Could you have it stamped at the clerk's office today? thanks
Judy
`
From: Enright, Jean
Sent: Friday, April 19/ 2013 8:55 AM
To: Tymon, Judy
Subject: Land Disturbance Permit
]udy-
I have several questions related to the Lacy Street Land Disturbance Permit application:
Are you handling this as administrative only (like Brooks School) or are they going before
the Board for a public hearing?
If they are going before the Board, why is there only one copy of the plan and application!
Why isn't the application time stamped?
Should the Legal Notice say that they have leveled and re-graded their property for a farm or
�
that they are proposing to do this work? �
Did you tell them June 4th for a hearing date?
Jean Enright �
Planning Assistant �
Town of North Andover �
1600 Osgood Street` Suite 2035
!
North Andover, M4 01845 �
Phone
Fax
Email
Web >
[ ]
Please note the Massachusetts Secretary of State's office has determined that most emaiIs to
and from municipal offices and officials are public records. For more information please
refer to: .
Please consider the environment before printing this emolI,
Ln� �
From: Tymon, Judy
Sent: Monday, January 07, 2013 4:OGPM
To: Enright,
Subject: RE: Language for vote
Jean,
| think it's fine, with the re-stated language. The remainder of the minutes are also OK. Thanks
Judy
From. Enright, Jean
Sent: Monday, January O7, 2013 3:41 PM
To: Tvmon, Judy
Subject: RE: Language for vote
I have included the edit but should the original language that Dave actually said remain? Are the rest of the minutes
approved?
�
From: Tvnlon, Judy
Sent: Monday, January O7, 2013 2:34 PM �
To: Enright, Jean �
Subject: Language for vote �
�
Jean, �
Here is the language that Tom oKd for the[}'K4ohoneyvote:
"The Board finds that the plan for the installation of the solar panels as described on land located on Lacy Street, owned �
by the O'Mahoneys, is subject to review by the town planner and that the actual installation of the solar panels is not
subject to the town's Land Disturbance Permit." �
|
Judy
/
Judith K0.Tymnn
|
Town Planner
Town of North Andover
120 Main Street
North Andover,K4A 01845
�
Phone 978.6883535 �
Fax 978.688.9542
Email �
VVeh
�
�
1
PLANNING BOARD
Meeting Minutes
Tuesday,December 18,2012
Town Hall,120 Main Street
7:00 PM
1 Present: M.Colantoni,D.Kellogg,L.Rudnicki.L.McSherry,R.Rowen
2 Absent: J.Simons
3 Staff Present: J.Tymon,J.Enright
4
5 Meeting began at 7:00pm.
6
7 BOND RELEASE
8 Red Gate Lane: Request for a partial roadway bond release.
9 J.Tymon: Gene Willis has inspected the site and provided a memo approving a total release of
10 $14,100. This will leave a remaining bond of$16,200. This will cover continued maintenance
11 of the detention pond,final cleanout of the catch basins,and street acceptance procedure.The
12 developer would also like to request a waiver of the sidewalk fund donation due to extreme
13 financial circumstances.
14 The Board denied the request for waiver of the sidewalk fund donation.
15 MOTION
16 A motion was made by L.Rudnicki to keep a roadway bond of$16,200 and release the
17 remaining for Red Gate Lane. The motion was seconded by D.Kellogg. The vote was
18 unanimous.
19
20 PUBLIC HEARINGS
21 CONTINUED PUBLIC HEARING,72 Great Pond Road: Application for a Land Disturbance
22 Permit and a two(2)lot Definitive Subdivision Plan.One of the two lots contains an existing
23 home.
24 J.Tymon: A draft Decision has been completed. The Decision has incorporated the ANR
25 previously approved as a third lot in the Definitive Subdivision. Therefore,the Decision is for a
26 3-lot Definitive Subdivision.
27 MOTION
28 A motion was made by M. Colantoni to close the Public Hearing for 72 Great Pond Road. The
29 motion was seconded by D.Kellogg. The vote was unanimous.
30 A draft Decision was reviewed and edited.
31 MOTION
32 A motion was made by M. Colantoni to approve the Decision for 72 Great Pond Road North
33 Andover,as amended. The motion was seconded by L.McSherry. The vote was unanimous.
34
35 CONTINUED PUBLIC HEARING, 1018 Osgood Street: Application for Site Plan Review-
36 Special Permit for proposed construction of a 2,250 sq.ft.coffee shop with drive-thru and
37 associated site amenities including drive-thin lane and twenty five(25)parking spaces. In
38 addition,applicant has filed for a Request of Determination of Applicability of Watershed
39 Protection District Requirements.
40 J.Tom: A Watershed Special Permit application has been filed. There have been some
41 changes made to the site plan in response to the civil and stormwater reviewer comments. There
42 will be more infiltration at the front of the site,the number of parking spaces has been reduced,
43 and the width of the drive-through aisle has been reduced.
1
PLANNING BOARD
Meeting Minutes
Tuesday,December 18,2012
Town Hall,120 Main Street
7:00 PM
44 Mark Gross,MHF Design Consultants,Inc: To improve the stormwater management design and
45 because of the watershed concern the amount of pavement has been reduced. A special permit
46 application has been filed for the reduction in parking and for a modification to the loading area
47 requirements. The entrances have been revised to an entrance only and exit only. Transaction,
48 parking,queuing,and traffic flow data comparisons for a similar site in Methuen,Ma have been
49 utilized to design this site. A Notice of Intent has been filed with the Conservation Commission
50 and a second infiltration system has been added to the site. The grade on the driveway will be
51 approximately 5%. The top of the foundation for the proposed building will be lower than the
52 top of foundation of the existing house.
53 R.Rowen: This will be continued until January 15,2013.
54 NEW PUBLIC HEARING 41 Second Street: Application for Special Permit-Site Plan Review.
55 Applicant proposes to demolish an existing dwelling and to construct a new 3-unit residential
56 building with an eight space,off street,parking lot.
57 J.Tymon: This would replace a single family residential building in the R-4 Zoning District.
58 The ZBA granted a zoning variance for a multi-family for this plan in September 2012. There
59 were several abutters that came to that hearing. One of the items of concern was the placement
60 of the parking in front of the structure. The Site Plan Review is due the number of parking
61 spaces proposed. L.Eggleston has requested less grading and a grass swale on the eastern side.
62 Bill MacCleod,Andover Consultants,Inc: The original proposal before the ZBA was for a four
63 unit building. It has been reduced to a three unit structure with parking on the side. The Zoning
64 requires six spaces. Two additional spaces have been added for visitor parking. A landscaping
65 plan,elevations and a rendering of the building are included with the application. The structure
66 is connected to sewer and a drainage system is included to take care of the parking lot. There
67 will be a 6' fence installed around the perimeter of the lot that will provide screening for the
68 neighbors.The applicant disagrees with L.Eggleston's suggestion that something has to be done
69 with the slope on the eastern side of the lot. There is a grass area to the side of the house. All of
70 the roof runoff will run to the front and to the back of the house. The stormwater on the front
71 will run off to a gutter. The drainage calculations show that the runoff from the back of the roof
72 should just drain off and flow. The only water that will fall onto the side of the lot is what falls
73 from the sky. Water is not being channeled to the side of the lot. The slope on the side of the
74 property is only 4'feet over 15'of land.The existing top of foundation is higher than the
75 proposed top of foundation.
76 R.Rowen:There will be less water runoff to this corner of the lot in the future than there is
77 today.
78 J.Tymon: There overall runoff will be a little less;however,the peak runoff will be a little bit
79 higher. L.Eggleston is suggesting some slight grading to keep the runoff on the property.
80 B.MacCleod: If it is just a matter of putting a 6"deep swale it can be done.
81 L.Rudnicki: Will there be an impervious pavement under the decks?
82 B.MacCleod: It will be crushed stone.If it were ever to be changed in the future it is not an
83 issue that will cause more runoff to the neighbors.
84 R.Rowen: We will keep the hearing open until January 15,2013.
85
86 DISCUSSION
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PLANNING BOARD
Meeting Minutes
Tuesday,December 18,2012
Town Hall,120 Main Street
7:00 PM
87 0 Lacy Streets,John and Stephanie O'Mahony: Application for Land Disturbance Permit
88 J.Tom: This has to do with a request for an application for a Land Disturbance Permit.
89 Jennifer Hughes,Conservation Agent,has been on the property within the last six months
90 because of some re-grading and clearing close to a wetland that is on the property. According to
91 J.Hughes there has been some re-grading and vegetation removal,over the last year,in an area
92 on the property that is not within jurisdiction of that wetland on the property. The Land
93 Disturbance Permit is designed to oversee any clearing or disturbance of more than an acre of
94 land. Based on aerial photos it is estimated that there has been more than two acres of re-grading
95 and clearing outside of the 100'buffer to the wetlands.The Land Disturbance Permit Bylaw
96 requires that an application be made. What has come into question is the use of the property as
97 Agricultural Use and whether it is exempt from the Bylaw. In the Bylaw,as it is written,the
98 definition of Agricultural Use is defined within the Wetland Regulation. This means it has to be
99 a commercial,agricultural use.
100 R.Rowen: Is the purpose now to right an apparent wrong over the past period of time and apply
101 for a Land Disturbance Permit now?
102 J.Tymon: There is more clearing being proposed for the installation of solar panels. An
103 application for construction of the solar panels has been submitted to the Building Department.
104 R.Rowen: So the application for the disturbance is for what has been done plus what they want
105 to do in the future to have a totally compliant Decision.
106 J.Tymon: Yes.
107 Bill Gardiner,Representing John and Stephanie O'Mahony: Stated that he does not believe there
108 is to be anymore clearing to be done for the erection of the solar panels. About two years ago the
109 O'Mahonys bought the old Whipple Will Farm property on Lacy Street. They own the property
110 and they have resided in their house right next door for several years prior to this. There was
111 litigation surrounding the old Tighe property,which is the farm property referred to here. The
112 litigation ultimately resulted in the prior occupant,the neighbor on the other side,being ordered
113 to vacate the property and it gave the estate the ability to sell it. The O'Mahonys saw the
114 opportunity to take over the farm and to run a commercial farm operation. As part of the
115 purchase agreement the estate was required,per court order,to raze the buildings that were on
116 the farm. In January of 2011 the O'Mahonys began the permitting process through the Building
117 Department to improve the property and bring it back to the farm it once was.The construction
118 process began later in 2011. They have worked with the Conservation and Building
119 Departments throughout the entire process. They did not know about the Land Disturbance
120 process. At this point they are ready to have the animals delivered and to determine what they
121 can do in terms of crops. The last piece of construction is the erection of the solar panels.There
122 are incentives that National Grid and the State offer for solar power generation.If they can erect
123 these solar panels by the end of this year there are grants and tax credits that they are eligible for.
124 It was not until just recently that the Land Disturbance Permit and Chapter 160 came to the
125 O'Mahony's attention. The estimate of two acres of land disturbance could be accurate. The
126 Agriculture Use exemption requires that you sell product and that you do it for profit. Town
127 Counsel has requested something that demonstrates it is going to be used for commercial use,
128 either currently or in the past.
3
�
PLANNING BOARD
Meeting Minutes
Tuesday,December 18,2n12
Town Hall,1Z0 Main Street
7:00 PM
zzn R.Rowuen/: There are two separate and distinct issues. One oC them b the timeline you are under
130 to got the solar panels erected. lf there innn clearing and h consists only nC putting op the solar
zaz panels on existing grade whether or not they need a Land Disturbance Permit is a moot point as
zaz m whether or not they have permission to put up the solar panels. The second discussion needed
zaa is that perhaps they should have applied for a Land Disturbance Permit.That is not pertinent to
134 the task of putting up the solar panels.If the Board can say that it sees no reason not to move
zys forward with the erection of the solar panels because the),are not disturbing the land this can be
136 separated from the land disturbance issue. Then the Board can take its time|o discuss tile Land
zs, Disturbance Permit and determine if they should have one,if they should be exempt from one,or
zao if they should request a waiver.All of these should be considered without having the burden oY
zay trying/o rush something through and not doing it improperly.
140 B. Gardiner: That io totally acceptable.
141 l. Iymon: TheZoningEnforcernent Officer/Building Inspector issues the Building Permit for
zuz solar panels. 0y State law solar panels are not subject mZoning, �
�
z^a Zuo Uibslis,IowuCnunae|: D would bo helpful to the Building Inspector i[the Board took n �
144 vote that there is no requirement for them to file an application for a Land Disturbance Permit for �
145 the solar panels. �
146 R.JRmmen: I[itia true that the installation of the solar panels will not require any land
147 disturbance and you can present that plan to the Town Planner and she concurs with that
148 assessment then we can have a contingent vote providing guidance to the Building Inspector that
149 there would not be any land disturbance permit required for the installation of the solar panels.
zso J.Q'Mahony: The panels are a ground mounted,stationary system. There are 62 panels with 12
az sonar tubes that would require small holes dug. The panels are approximately 20"off the ground �
152 in the front and 6`off the ground iu the back. �
zss MOTION �
154 /\motion was made hyD.KoUogg m� °-- �
� �
zss ILI�itif�Lrt�)eiristallationoftl)esolat- inej,s as described on land located nl..acySt,reet,oMgdbytl-Lq
166 �
�
157 J.!�.not sul the town's Land Disturbance Permit."
158 |
158 �
zsO | e**mm� The motion was seconded 6yLMkVhony. The vote was unanimous. �
tsz R. Losnen: Uio expected that iu the very near future\hoymporapn|icmioutbrLaudDinm,bnoco
zoz Permit hu applied for vr formal application for u waiver voexemption.
163 D.Kellogg: Donu need 10 issue o cease and desist orders for further clearing?
164 J. [vnilm: That lnupm the Building Inspector.
zss
166 Approval of December 4,20|2 meeting minutes.
167 & O%%1UN �
zsu A motion was made by L.Rudnicki to approve the December 4,2012 meeting minutes. Tile
169 motion was seconded byL.0c3borry. The vote was unanimous.
oo
4
PLANNING BOARD
Meeting Minutes
Tuesday,December 18,2012
Town Hall,120 Main Street
7:00 PM
171 ADJOURNMENT
172 MOTION:
173 A motion was made by D.Kellogg to adjourn the meeting. The motion was seconded by M.
174 Colantoni. The vote was unanimous.
175
176 The meeting adjourned at 8:25pm.
177
178 MEETING MATERIALS: Agenda,Letter dated 12/18/12 from Eugene P.Willis,Town
179 Engineer,RE:Red Gate Pasture Subdivision bond release,Revised Plan 72 Great Pond
180 Road,draft Decision 72 Great Pond Road dated 12/18/12,Definitive Subdivision Plan
181 "Turkey Hill"dated 12/7/2,email dated 12/12/12 from Lisa D.Eggleston,P.E.RE:72 Great
182 Pond Road,1018 Osgood Street: October 19,2012 letter from Mark S.Gross,MHF Design
183 Consultants,Inc.,Letter dated December 11,2012 from Chris M.Tymula,MHF Design
184 Consultants,Inc.,Proposed Site Plan Development Plans for Map 35 Lot 19 1018 Osgood
185 Street North Andover,Massachusetts 01845 dated 12/7/12,41 Second Street: letter dated
186 November 26,2012 from James S.Fairweather II,P.E.,Andover Consultants,Inc.,
187 Community and Traffic Impact 41 Second Street North Andover,MA dated 12/7/12,Site
188 Plan Review Application 41 Second Street,Letter dated 12/6/12 from Lisa D.Eggleston,
189 Eggleston Environmental,Letter dated 12/11/12 from James S.Fairweather II,P.E.,
190 Andover Consultants,Inc.,Letter dated 12/18/12 from James S.Fairweather II,P.E.,
191 Andover Consultants,Inc. Site Plan 41 Second Street and Site Plan&Details 41 Second
192 Street dated 11/20/12,Front Elevation 41 Second Street,Landscape Plan 41 Second Street,
193 0 Lacy Street: Letter dated 12/13/12 from Thomas J.Urbelis,Town Counsel,Letter dated
194 12/14/12 from Thomas J.Urbelis,notes related to Land in Agricultural Use,Active vs.
195 Inactive Land,Land in Production,Definition of Commercial and Necessary and Related
196 Land,aerial view of O'Mahony property dated 11/26/12,Letter dated 12/12/12 from
197 William D.Gardiner, Brodigan and Gardiner LLP,aerial view 0 Lacy Street dated 12/18/12,
198 draft 11/4/12 meeting minutes.
5