HomeMy WebLinkAboutMiscellaneous - 12 CARRIAGE CHASE (2) /Y1 3'74
310 CMR 10.99 / �
Form 8
DEP Fite Na. 242— 627
(To ne oroviaed by DEP)
Commonwealth
Citylown ' North Andover
--�—{t of Massachusetts Aooucant Hayes Engineering, Inc.
Lot #)'15 Carriage Chase
Certificate of Compliance
Massachusetts Wetlands Protection Act, C.L. c. 131 , §40
From North Andover Conservation CommissioA issuing Authority
603 Salem Street
To Hayes Engineering, Inc. Wakefield, MA 01880
(Name) (Address)
Dace of Issuance August 20, 1997
his Certificate is issued for work regulated by an Order of Conditions issued to Kenneth P. Wil ner
dated 12/10/92 .and issued by the NACC
C-7 It is hereby certified that the work regulated by the above-referenced Order of Conditions has
been satisfactorily completed.
2. It is hereby certified that only the following portions of the work regulated by the above-
refer-enced Order of Conditions have been satisfactorily completed: (it the Certificate of Compliance
does not include the entire project, specify what portions are included.)
Lot #15 Carriage Chase
3. Q It is hereby certified that the work regulated by the above-referenced Order of Conditions was
never commenced.The Order of Conditions has lapsed and is therefore no longer valid. No future
work subiect to regulation unser the Act may be commenced without filing a new Nonce of Intent
and receiving a new Order of Conditions.
...........................................................................................................................
(Leave Soace Blank)
8•t
a, p This certificate shalt be recorded in the Registry of Deeds or the Land Court for the district in
which the land is located. The Order was originally recorded on 8/15/95 (date)
at the Registry of Deeds, North Essex . Book . Page
Instrument #17690
5. [J The following conditions of the Order shall continue: (Set forth any conditions contained to the
Final Order, such as maintenance or monitoring, which are to continue for a longer period.)
Issued by t r Conservation Commission
Signatures)
-Zzl(Y"IVG
i
When issued by the Conservation Commision this Certificate must be signed by a majority of is members.
On this 20th day of August , 1 9 97 before me
personally appeared Joseph W. Lynch. Jr. to me known to be the
person described in and who executed the foregoing'instrument and acknowledged that he/she executed
the same as his/her free act and deed.
Notary Public My commission expires
Detach an dotted line and submit to the
......................................................................................................................................................._.........................................................
To NACC Issuing Authority
Please be advised mat the Certificate of CompiLance for the protect at.
FileNumcer 242— has been recorcedatthe Registry of Deeds, Northern Essex
and has been noted in the cnain of tide of:tie affected aroeerty on 19
It recorded tand.:ne instrument numoer wnicn identities trns transaction is
!_registered fano.the cocument numoer wnicn identifies tnis transaction is
w A �
370 CMR 10.99
JN
Form 56t' 242-627
(Tom oewmo ar oEPI
+r.
T North Anodver
- Commonwealth d'ry' °M"' -
of Massachusetts aoeacant Kenneth Wi11 npr
Lot 15 Carriage Chase
Order of Conditions
Massachusetts Wetlands Protection Act
O.L. C. 131, §40
and under the Town of North Andover's Wetlands Bylaw, Chapter 178
From NORTH
To Kenneth P Willnar Scott Follansbpp
(Name of Applicant) (Name of property ownerl
Address 2 Bellehaven nr , e--- =^-= =r--�- Address -
This Orcer is issued and delivered as follows:
❑ by hand delivery to applicant or representative on
(date)
(date)
by certified mail.return receipt requested on a
This project is iocated at 1 ni- 11; (#21) Carriage C -,,p
The property is recorded at the Registry of
gook
337 -Page 261
Certificate(it registered) t
The Notice of Intent for this project was filed on September 25. 1992 (date)
The oublic nearing was closed on Nlyembei 18, 392 (date)
Findings
The NACC _ has reviewed the above-referenced Notice of
Intent anc mans anc has netd a punlic hearing on the project.3esed on tt]e"�nfomtation available to the
NArr at this time.the rTArr has deterntmed that
the area on which the proposed work is to be done Is significant to the toilowmg interests in accordance with
the Presurtlptldns of Significance set forth in me regulations for each Area Subject to Protection Under the
Act tC:ecfc zs appropriate): Ch.178 prevention of erosion and sedimentation.
Pubifc water supply Flood control 11 Land containing shellfish
Private water supply Storm camage prevention Fisheries tife habitat
Prevention of pollution Protection of wild
Ground watersuppfy Ch.17 Recreation
Ch. 178 Wildlife State Share
Total Fiing Fee Su�mrte�O (1F fes in excess cf 52:.)
Cityi7own Share State Portion S
Total Refund Due S CitylTown Portion S - (3/2 total)
(1/2 total)
E!te ,ve 'V1
#242-627 Lot 15 Carriage Chase
Therefore, the North Andover Conservation Commission (hereafter
the "NACC") hereby finds that the following conditions are
necessary, in accordance with the Performance Standards set forth
in the State Regulations, the local ByLaw and Regulations, to
protect those interests- noted above. The NACC orders that all
work shall be performed in accordance with said conditions and
with the Notice of Intentreferencedabove. To the extent that
the following conditiogs-modify-or differ from the plans,
specifications or other proposals submitted with the Notice of
Intent, the conditions shall control.
GENERAL CONDITIONS
1. Failure to comply with all conditions stated herein, and with
all related statutes and other regulatory measures, shall be
deemed cause to revoke or modify this Order.
2 . This Order does not grant any property rights or any
exclusive privileges; it does not authorize any injury to
private property or invasion of private rights.
3 . This Order does not relieve the permittee or any other person
of the necessity of complying with all other applicable federal,
state or local statutes, ordinances, by-laws or regulations.
4. The work authorized hereunder shall be completed within three
years from the date of this Order.
5. This order may be extended by the issuing authority for one
or more periods of up to one year each upon application to the
issuing authority at least 30 days prior to the expiration date
of the Order.
6. Where the Department of Environmental Protection is requested
to make a determination and to issue a Superseding Order, the
Conservation Commission shall be a party to all agency
proceedings and hearings before the Department.
7. The proposed work includes construction of residence and
appurtenances.
8. The work shall conform to the following (except as noted in
the remainder of this document where revisions may be required) :
(a) Notice of Intent filed by Thomas E. Neve Assoc. , Inc.
I
(b) Plans prepared by Thomas E. Neve, September 17, 1992.
9. The following wetland resource areas are affected by the
proposed work: bordering vegetated wetland. The site is within
the watershed of Lake Cochichewick and therefore deemed a vital
resource under the Town Bylaws. These resource areas are
c
#242-627 Lot 21 Carriage Chase 3
significant to the interests of the Act and Town Bylaw as noted
above. These resource areas are also significant to the
recreational and wildlife e interests of the .B lawe
PP
Th applicant
Y
has not attempted to overcome the presumption of significance of
these resource areas to the identified interests.
10. The NACC agrees with the applicant's delineation of the
wetland resource areas on the site as shown on the plans dated
revised September 17, 1992 and November 16, 1992.
11. Issuance of these Conditions does not in any way imply or
certify that the site or downstream areas will not be subject to
flooding or storm damage.
12 . The conditions of this decision shall apply to, and be
binding upon, the applicant, owner, its employees and all
successors and assigns in interest or control.
13. The NACC finds that the intensive use of the upland areas and
buffer zone proposed on this site to construct a residence and
appurtenances will cause further alteration of the wetland
resource areas. In order to prevent any alteration of wetland
resource areas beyond those proposed in the Notice of Intent and
approved herein, a twenty-five (25) foot no-disturbance zone and
a thirty-two (32) foot no-construction zone shall be established
from the edge of the adjacent wetlands. No disturbance of
existing grade, soils or vegetation is permitted in the no-
disturbance zone. (See Appendix 5 of the local Regulations) .
PRIOR TO CONSTRUCTION
14. No work shall be undertaken until all administrative appeal
periods from this Order have elapsed or, if such an appeal has
been filed, until all proceedings before the Department or Court
have been completed.
15. This Order shall be recorded by the applicant at the
Registry of Deeds immediately after the expiration of all appeal
periods. No work shall be undertaken until the Final Order has
been recorded in the Registry of Deeds or the Land Court for the
district in which the land is located, within the chain of title
of the affected property. In the case of recorded land, the
Final Order shall also be noted in the Registry's Grantor Index
under the name of the owner of the land upon which the proposed
work is to be done. In the case of registered land, the Final
Order shall also be noted on the Land Court Certificate of Title
of the owner of the land upon which the proposed work is to be
done. The recording information shall be submitted to the North
Andover Conservation Commission on the form at the end of this
Order prior to commencement of the work.
I
#242-627 Lot 21 Carriage Chase 4
16. A sign shall be displayed at the site not less than two
square feet or more than three square feet in size bearing the
words, "Massachusetts Department of Environmental Protection,
File Number 242-627".
17. Any changes in the submitted plans caused by the applicant,
another Board's decision or resulting from this Order of
Conditions must be submitted to the NACC for approval prior to
implementation. If the NACC finds said changes to be
significant, the NACC will call for another public hearing (at
the expense of the applicant) . Within 21 days of the close of
said public hearing the NACC will issue an amended or new Order
of Conditions. Any errors found in the plans or information
submitted by the applicant shall be considered as changes. The
proposed project may be still under review by other local or
state boards or agencies. This may result in changes to the
project plans or wetland impacts. If any such changes occur a
revised plan and an explanation of the revisions shall be
submitted to the NACC for review and approval prior to the start
of construction. No work shall begin on a project until written
approval has been granted by the NACC.
18. The applicant shall contact the Conservation Office prior to
site preparation or construction and shall arrange an on-site
conference with an NACC representative, the contractor and the
applicant to ensure that all of the Conditions of this Order are
understood. This Order also shall be made a part of the
contractor's written contract. The applicant or contractor shall
notify the NACC in writing of the identity of the on-site
construction supervisor hired to coordinate construction and to
ensure compliance with this Order.
19. The applicant shall submit a construction schedule/sequence
to the NACC detailing the proposed sequence of work on site to
complete this project.
20. Wetland flagging shall be checked prior to start of
construction and shall be re-established where missing so that
erosion control measures can be properly placed and wetland
impacts can be monitored.
21. A row of staked hay bales backed by a siltation fence shall
be placed between all construction areas and wetlands. The
erosion control barrier will be properly installed and placed on
the plan to be filed and shall be inspected and approved by the
NACC prior to the start of construction and shall remain intact
until all disturbed areas have been permanently stabilized to
prevent erosion. All erosion prevention and sedimentation
protection measures found necessary during construction shall be
implemented at the direction of the NACC.
22 . The applicant shall have on hand at the start of any soil
#242-627 Lot 21 Carriage Chase 5
disturbance, removal or stockpiling, a minimum of thirty (30) hay
bales and sufficient stakes for staking these bales (or an
equivalent amount of silt fence) . Said bales shall be used only
for the control of emergency erosion problems, and shall not be
used for the normal control of erosion.
23 . A proper bond or a deposit of money running to the Town of
North Andover shall be provided in the amount of $3,000.00 which
shall be in all respects satisfactory to Town Counsel, Town
Treasurer, and the NACC, and shall be posted with the North
Andover Town Treasurer before commencement of work. Said bond or
deposit of money shall be conditioned on the completion of all
conditions hereof, shall be signed by a party or parties
satisfactory to the NACC, and Town Counsel, and shall be released
after completion of the project, provided that provision,
satisfactory to the NACC, has been made for performance of any
conditions which are of continuing nature. The applicant may
propose a bond release schedule keyed to completion of specific
portions of the project for the NACC's review and approval. This
condition is issued under the authority of the local Bylaw.
DURING CONSTRUCTION
24. Upon beginning work, the applicant shall submit written
progress reports every one (1) month detailing what work has been
done in or near resource areas, and what work is anticipated to
be done over the next period. This will update the construction
sequence.
25. Any fill used in connection with this project shall be clean
fill, containing no trash, ' refuse rubbish or debris, including
but not limited to lumber, bricks, plaster, wire, lath, paper,
cardboard, pipe, tires, ashes, refrigerators, motor vehicles or
parts of any of the foregoing.
26. No exposed area shall remain unfinished for more than thirty
(30) days, unless approved by the NACC.
27. No regrading in the buffer zone shall have a slope steeper
than 2:1 (horizontal:vertical) . Slopes of steeper grade shall be
rip-rapped to provide permanent stabilization.
28. There shall be no stockpiling of soil or other materials
within twenty-five (25) feet of any resource area.
29. Washings from concrete trucks, or surplus concrete, shall not
be directed to, any drainage system or wetland resource area.
30. All waste generated by, or associated with, the construction
activity shall be contained within the construction area, and
away from any wetland resource area. There shall be no burying
#242-627 Lot 15 Carriage Chase 6
of spent construction materials or disposal of waste on
p the site
by any other means. The applicant shall maintain dumpsters (or
other suitable means) at the site for the storage and removal of
such spent construction materials off-site.
31. Accepted engineering and construction standards and
procedures shall be followed in the completion of the project.
32 . Members of the NACC or its agent shall have the right to
enter upon and inspect the premises to evaluate and/or effect
compliance with this Order of Conditions. The NACC reserves the
right to require, following field inspection, additional
information or resource protection measures.
33 . During and after work on this project, there shall be no
discharge or spillage of fuel, or other pollutants into
any wetland resource area. If there is a spill or discharge of
any pollutant during any phase of construction the NACC shall be
notified by the applicant within one (1) business day. No
construction vehicles are to be stored within 100 feet of wetland
resource areas, and no vehicle refueling, equipment lubrication,
or maintenance is to be done within 100 feet of a resource area.
34. In an effort to protect the public water supply, the
landowner will record a permanent deed restriction on the wetland
portion of this lot, which will prohibit any cuttings or
disturbance of vegetation, soils or topography.
AFTER CONSTRUCTION
35. No underground storage of fuel oils shall be allowed on any
lot within one-hundred (100) feet of any wetland resource area.
This Condition shall survive this Order of Conditions, and shall
run with the title of the property. This condition is issued
under the authority of the Town's Wetland Protection ByLaw.
36. Fertilizers utilized for landscaping and lawn care shall be
organic and not greater than 5% nitrogen content, and shall be
used in moderation. Pesticides and herbicides shall not be used
within 100 feet of a wetland resource area. This condition is
issued under the authority of the Town's Wetland Protection
Bylaw. The landowner will record a permanent deed restriction to
ensure compliance with this condition.
37 . Upon completion of construction and grading, all disturbed
areas located outside resource areas shall be stabilized
permanently against erosion. This shall be done either by
loaming and seeding according to SCS standards. If the latter
course is chosen, stabilization will be considered complete once
vegetative cover has been achieved.
#242-627 Lot 15 Carriage Chase 7
38. Upon completion of the project, the applicant shall submit a
letter to the NACC from a Registered Professional Civil Engineer
certifying compliance with this Order of Conditions and the
approved plans referenced herein (or approved revisions) . A
letter from a qualified wetland scientist certifying compliance
with local/state regulations is also required for the wetland
replication/restoration area. A stamped "As-Built" topographic
plan of all areas within the jurisdiction of the Wetlands
Protection Act and Bylaw shall be submitted when a Certificate of
Compliance is requested. This plan will include:
a. "As-Built" elevations and grades of all
filled or altered wetland resource areas.
b. Distances from structures to wetlands.
c. A line showing the limit of work. "Work" includes
any disturbance of soils or vegetation.
39. The following special conditions shall survive the issuance
of a Certificate ,of Compliance for this project:
33 . Discharge or spillage of pollutants.
34. Conservation restriction.
35. Prohibition of storage of fuels underground.
36. Limitations on the use of fertilizers, herbicides
and pesticides.
Issued By North Andover Conservation Commission
Signature(s)
This Order must be signed by a majority of the Conservation Commission.
On this ,Ld day of_ V61PE 19 before me
personally appeared to me known to be the
person described in and who executed the foregoing instrument and acknowledged that he:she executed
the same as his/iter free act and deed.
otary Public My commission ex fres
The apblicant,the Owner.any person aggrieved by this Order,any owner of land abutting the land upon which the proposed work is to be
done.or any ten residents of the city or town in which such land is located,are hereby notified of their right to recuest the Deoartment of
Environmental Protection to issue a Superseding Order,providing the reouest is made by certified mail or hand delivery to the Deoartment.
with the appropriate filing fee and Fee Transmittal Form as provided in 310 CMR 10.03(7).within ten days from the date of issuance of this
Determination.A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission
and the applicant.
If you wish to appeal this decision under the Town Bylaw, a complaint
must be filed in Superior Court.
Detach on dotted line and submit to the North Andover Conservation Comm. prior to commencement of work.
.......................... . ...................................................................................
North Andover ConservationCommission '
To Issuing Authority
Please be advised that the Order of Conditions for the protect at Lot 15 021) Carriage Chase
File Number 242— 62 has been recorded at the Registry of Deeds, North Essex aria
has been noted in the chain of tate of the affected property in accordance with General Condition 8 on . t 9
It recorded land. the instrument number which identifies this transaction is
If registered land. the document number which identifies this transac0on is
Sicnature Acolic3n!
5-4A
f
(TO PLAINTIFF'S ATTORNEY: Please C*%*Type of Action Involved., — - MOTOR VEHICLE TORT—
rCONTRACT-EQUITABLE RELIEF OTHER. A `TRUE COPY ATTEST
114COMMONWEALTH OF MASSACHUS AS*
o l ESSEX, ss. SUPERIOR COURT
a CIVIL ACTION
0
No. 93-0126
v
s
C—
Z
C Kenneth P Willner , Plaintiff(s) r",)
... ............ ...................... ...... ................ ..
v rl
x George Reich, Allison Brewster, Richard Milliard, fN3
Paul Tariot, Robert Mansour, Kevin Foley and ry ;carr
° Albert Manzi Jr as the are members of the '-�
�....... ................ ....... Defendant(s)
North Andover Conservationomucissioii'arid'fh'e'
Town of North Andover
.o SUMMONS
To the above named Defendant: Town of North Andover, Main St., North Andover, MA
� L= ,
Mark .. Johnson
o You are hereby summoned and required to serve upon...----rk.....r.............................................................................
plaintiff's attorney,whose address is ..... 1810.................... . an answer to the
T complaint which is herewith served upon you,within 20 days after service of this summons upon you,exclusive of the
o a
0
a day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the
Tcomplaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at
Salem............................................ either before service upon plaintiff's attorney or within a reasonable time thereafter.
v =
n
3 Unless otherwise provided by Rule 13(a),your answer must state as a counterclaim any claim which you may
a v have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's
3 claim or you will thereafter be barred from making such claim in any other action.
O C
C 'S
v DATE OF SERVICE:
a 3
>- ; WITNESS,Robert L. Steadman,Esquire, at Salem,the 19th
! ° day of January in the year of our Lord one thousand
Z 0
nine hundred and ninety-three
¢ a
og
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W v
0
�J N
Clerk
o °
4- a NOTES:
1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure.
2. When more than one defendant is involved,the names of all defendants should appear in the caption. If a separate summons is used for each
defendant,each should be addressed to the particular defendant.
Office#30
A
INI:i::;NEW9 ESSEX COURT FOR CIVIL 12J;i:L'NESS
P R E:: 6 1.1 I"1 E•' T I V E D A f E:: U- P D A 'T E::
DOCKET 9300126 P A.IN'T [FF WII._L_NER KENNETH F'
DEFENDANT f RFWS(E R FAIME MIC ONSV CIriu3M N A
DOCKET NO ENTRY DATE CASE TYPE TRACK SESS
9300126 011593 C.:99 F: t
02 SERVICE t...t.lMPI._.ETED . . . 041593
05 ANSWER FILED , • • , • • • • • • . .
.1.0 RULES 12, 15, 19, :'Q • •Pl(Irl:(]itiltallFt�lil:). �S:L�t�;3
'0
DISCOVERY COMPLETED . . . . . . . . . . . . . . . . 1.1.1.19:.3
i•�• 40 PRETRIAL CONFERENCE . . . . . 01.109r
;t..:
APPROXIMATE DATE r• S TO EE '6 "r -tWIil-1 NOTICE= WILL BE ,SENT
60 TRIAL
60 TRIAL t�'i]N f:f.Nt1E:i7 'T'Ti , , , . , . . � . . . . . . . . 000009
LAST CONTINUANCE . . . . . . . . . . .
Dx'r NO SUF F
INQUIRY P.RE AK
WiPM T. .11 PL( F fS
CGS _ 1 GF 1, , i. .._
-. I Gia- I 7 pa 1' :EN
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�� �,fa led to
Trial Court of Massachusetts \ DOCKET NUMBER
i SUPERIOR COURT DEPARTMENT
CIVIL ACTION COVER SHEET
Essex
Division 410V
PLAINTIFF(S) DEFENDANT(S)George Reich, Allison Brewster,
Kenneth P. Willner Richard Milliard, Paul Tariot, Robert Mansou
Ir a--- members-of-
ATTORNEYS)FIRM NAME,ADDRESS AND TEL.) ` Mark B. Johnson ATTORNEY(S)(if known) NO. And Cons Comm & Town of Nc
Law Office of Mark B. Johnson Andovez
12 Chestnut Street (508) 475-4488
BAMOOY'ffat &ersRA19 (Required) 252760
ORIGIN CODE AND TRACK DESIGNATION
Place an ® in one box only:
1. F01 Original Complaint ❑,4. F04 District Ct. Appeal c231, s. 97 (X)
❑ 2. F02 Removal to Sup. Ct. c 231, s. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from
❑ 3. F03 Retransfer to Sup. Ct. c 231, s, 102C (X) judgmentlorder (Mass. R Civ. P. 60 (X)
❑ 6. E10 Summary process appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side)
CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
C99 MGL c 249 sec 4 & Declaratory_,I1idg-went ' (F )
❑ Yes ® No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions)
This is an action in the nature of Certiorari pursuant to MGL c. 249, section 4 and
Declaratory Judgment, appaaiiag seeking a declaration that the Conservation Commission
exceeded its authority, that the Conservation By Law is unenforceable, and that the
Conservatin By Law is illegal and invalid.
i 2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY,
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED $25,000: N/A
3. PLEASE IDENTIFY,BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
None
SIGNATURE OF ATTORNEY OF RECORD OR PLAINTIFF./)/V DATE
Attorney Mark B. Johnson 4 1/14/93
• •11 n 4 11111[ellln d-.1171 It
DISPOSITION RECEIVED
A. Judgment Entered + B. No Judgment Entered BY.
❑ 1. Before jury trial or non-jury hearing ❑ 6.Transferred to District DATE
❑ 2. During jury trial or non-jury hearing Court under G.L.c.231, DISPOSITION ENTERED
❑ 3. After jury verdict s.102C.
❑ 4. After court finding Disposition Date BY:
❑ 5. After post trial motion DATE.
COMMONWEALTH OF MASSACHUSETTS
f
Essex, ss SUPERIOR COURT DEPARTMENT
CIVIL ACTION" NO:
KENNETH P. WILLNER
Plaintiff
VS.
GEORGE REICH, ALLISON BREWSTER,
RICHARD MILLIARD, PAUL TARIOT,
ROBERT MANSOUR, KEVIN FOLEY
and ALBERT MANZI, JR.
as they are members of the
Conservation Commission of
the Town of North Andover, and
the TOWN OF NORTH ANDOVER,
Defendants
COMPLAINT IN THE NATURE OF CERTIORARI PURSUANT TO
MASSACHUSETTS GENERAL LAWS CHAPTER 249 SECTION 4
AND DECLARATORY JUDGMENT
STATEMENT OF CASE
This is an action in which the Plaintiff seeks
Declaratory Judgment: (1) that the Conservation Exceeded its
authority in imposing certain conditions in the Order of
Conditions issued to the Plaintiff; (2) that the
Conservation By law of the Town on North Andover and the
Regulations thereto are illegal and unenforceable; and (3)
that the Conservation By Law of the Town of North Andover is
less stringent than the DEP Regulations and therefore are
unenforceable and invalid.
PARTIES
1. The Kenneth P. Willner is an adult individual residing
in Andover, Essex County, Massachusetts.
2 . The Defendant George Reich is an adult individual who
resides at 284 Salem Street, North Andover,
Massachusetts and is a member of the North Andover
Conservation Commission (hereinafter referred to as
"NACC") .
3 . Allison Brewster is an adult individual who resides at
1005 Forest Street, North Andover, Massachusetts and is
a member of the NACC.
4 . Richard Milliard is an adult individual who resides at
195 Barker Street, North Andover, Massachusetts and is
a member of the NACC.
1
r '
5. Paul Tariot is an adult individual who resides at 46
Osgood Street, North Andover, Massachusetts and is a
member of the NACC.
6. Kevin Foley is an adult individual who resides at 52
Hewitt Avenue, North Andover, Massachusetts and is a
member of the NACC.
7 . Robert Mansour is an adult individual who resides at
1001 Johnson Street, North Andover, Massachusetts and
is a member of the NACC.
8 . Albert Manzi, Jr. is an adult individual who resides at
72 Foster Street, North Andover, Ma.
9. The Town of North Andover is a municipal corporation in
the Commonwealth of Massachusetts established in April
1855 and having a place of business on Main Street,
North Andover, Massachusetts
JURISDICTION
10. This Court has jurisdiction to review by Certiorari the
decision of the NACC Order of Conditions issued
pursuant to Town By Law and pursuant to Massachusetts
General Laws, Chapter 249, Section 4 .
11. Plaintiff has sought a superseding Order of Conditions
with the Department of Environmental Protection based
upon the Order of Conditions issued by the NACC.
FACTS
12 . Plaintiff submitted a Notice of Intent to the NACC for
the property known as 21 Carriage Chase, North Andover,
Massachusetts pursuant to 310 CMR 10. 53 (3) (e) and Town
Bylaw, Chapter 178.
13 . Following hearing, the NACC issued on December 12,
1992 , the "Lot 15 Carriage Chase Order of Conditions
Pursuant to Massachusetts Wetlands Protection Act G. L.
c. 131, sec 40 and under the Town of North Andover's
Bylaw Chapter 178". (A copy of the Order of Conditions
is annexed hereto and marked EXHIBIT "1") .
14 . The Order of Conditions contains 39 numbered paragraphs
describing conditions imposed by the NACC.
15. This Complaint in the Nature of Certiorari, seeks
review of the decision of the `followings conditions set
forth in the Order of Conditions: conditions numbered
13 , 23 , 27, 32, 34, 36, and 38.
ACTION BEYOND JURISDICTION ERRORS OF LAW
AND DECLARATORY JUDGMENT
2
16. The Plaintiff hereby restates, realleges and
incorporates by reference
paragraphs
Complaint as fully and completelyas thou res within
their entirety herein. g tated in
17. The decision of the NACC exceeded its jurisdiction
Pursuant to Massachusetts General Laws, Chapter 40 and
the Town of North Andover By-lawas to the following
g
Condition. 13 The NACC finds that the intensive
use of the upland areas and buffer zone proposed
on this site to construct-a residence and
appurtenances will cause further alteration of the
wetland resource areas, In
any
alteration of wetland resource aareas beyonder totthose
proposed in the Notice of Intent and approved
herein, a twenty-five (25) foot no-disturbance
zone and a thirty-two (32) foot no-construction
zone shall be established from the edge of the
adjacent wetlands. No disturbance of existing
grade, soils or vegetation is permitted in the no-
disturbance zone. (See Appendix 5 of the local
Regulations) .
Condition 23. A proper bond or a deposit of money
running to the Town of North Andover shall be
provided in the amount of $3, 000. 00 which shall be
in all 'respects satisfactory to Town Counsel, Town
Treasurer, and the NACC,and shall be posted with
the North Andover Town Treasurer before
commencement of work. Said bond or deposit of
money shall be conditioned on the completion of
all conditions hereof, shall be signed by a party
or parties satisfactory to the NACC, and Town
Counsel, and shall be releases after completion of
the project, provided that provision, sati
to the NACC, has been made for performances ofCanyy
conditions which are of continuing nature. The
applicant may propose of bond release schedule
keyed to completion of specific
portions
project of the NACC's review and a pra of the
l.
condition is issued under the authorityaof theis
local Bylaw.
Condition 27. No regrading in the buffer zone
shall have a slope greater than 2 :1
(horizontal:vertical) Slopes of steeper
shall be rip-rapped to provide P grade
stabilization. permanent
Condition 32. Members of the NACC or its agent
shall have the right to enter upon an inspect the
premises to evaluate and/or effect compliance with
this Order of Conditions. The NACC reserves the
right to require, following field inspection,
3
additional information or resource protection
measures.
Condition 34. In an effort to protect the public
water supply, the landowner will record a
permanent deed restriction on the wetland portion
of this lot, which will prohibit any cuttings or
disturbance of vegetation, soils or topography.
Condition 36. Fertilizers utilized for
landscaping and lawn care shall be organic and not
greater than 5% nitrogen content, and shall be
used in moderation. Pesticides and herbicides
shall not be used within loo feet of a wetland
resource area. This condition is issued under the
authority of the Town's Wetland Protection ByLaw.
The landowner will record a permanent deed
restriction to ensure compliance with this
condition.
Condition 38. Upon completion
applicant shall submit a letter tothe thepNACCcfromha
Registered Professional Civil Engineer certifying
compliance with this Order of Conditions and the
approved plans referenced herein (or approved
revisions) . A letter from a qualified wetland
scientist certifying compliance with local/state
regulations is also required for the wetland
replication/restoration area. A stamped "As
Built" topographic plan of all areas within the
jurisdiction of the Wetlands Protection Act and
Bylaw shall be submitted when a Certificate of
Compliance is requested. This plan will include:
a. "As-Built" elevations and grades of all
filled or altered wetland resource
areas
b• Distances from structures to wetlands.
C. A line showing the limit of work.
"Work" includes any disturbance of soils
or vegetations.
18 . Plaintiff submitted ample credible evidence that
activity proposed in the notice of intent will not
cause significant harm to any wetland resource areas or
any area which the Defendants may lawfully protect.
19. The Conditions imposed by the Conservation Commission
are exceed the authority of the Conservation Commission
and the Commission has committed an error of law in
that the Conditions:
A. are based upon a by-law which has not been
lawfully adopted by the Town;
4
B. are based upon regulations which exceed the
authority of the Conservation Commission to adopt;
C. impose conditions which are not within the
jurisdiction of the Conservation;
D. seek to regulate activities which are not within
the jurisdiction of the Conservation Commission;
E. are arbitrary, not based upon credible evidence
and are illegal;
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter the followings
1. That the appropriate process issue by the Court
requiring the Defendants to Certify fully, within
a time specified by the Court, the record and/or
proceedings of the Conservation Commission
relative to the Plaintiffs applications.
2 . The Court enterud
j gment that the. NACC and the
Town of North Andover have exceeded their
Jurisdiction by including the conditions set forth
in paragraphs 13, 23, 27, 32, 34, 36, and 38 in
the Order of Conditions which are the subjects of
this action.
3 . The Court enter judgment that the NACC and the
Town of North Andover have committed errors of law
by including the conditions set forth in
paragraphs 13, 23, 27, 32, 34, 36, and 38 in the
Order of Conditions which are the subjects of this
action.
4 . The Court enter aud
j gment annulling the
conditions which are the subject of this
Complaint.
5. The Court enter a
judgment that.. the decision of
the NACC which places conditions upon the
applicant where there was no substantial evidence
that wetland areas would be adversely affected is
beyond the jurisdiction of the NACC.
6. The Court enter a judgment that the decision of
the NACC which places conditions upon the
applicant where there was no evidence that
wetlands areas would suffer significant adverse
effects constitutes an error of law.
7. Enter judgment that Plaintiff submitted ample
credible evidence that activity proposed in the
notice of intent will not cause significant harm
to any wetland resource areas.
5
8 • Enter judgment directing the NACC to issue
Order of Conditions, deleting the subject the
conditions.
9• The Court enter such other and further reli
the Court deems, just, of as
COUNT
AQARATO Y JUDGMEiurm
20. Plaintiff restates and realleges and hereby
incorporates by reference paragraphs i through 51 of
the within Complaint as fully and completely as 'tho
restated in their entirety herein. ugh
21. The NACC establishedtheOrder of Conditions
applicants property based upon its ConservationrB l
and Regulations allegedly promulgated thereunder.
y law
22. A dispute has arisen as to whether the Conservation
Commission has the authority to issue the conditions
set forth above.
23 . A dispute has arisen as to whether the Conservation
Commission has the authority to issue the regulations
which the conditions are based upon.
24 . A dispute has arisen as to whether the Conservation
Law is more stringent than Wetlands Protection Act. By
25. There is a dispute between the
pes as
the NACC has the legal authorityarttolenact theWhether
Conditions set forth in the Order of Conditions and
forth above. set
WHEREFORE, Plaintiff respectfully requests that thi
Honorable Court enter the following: s
1. The Court enter Declaratory Jud
ent s
that the NACC does not have authorityeorablishing
jurisdiction to issue the conditions at issue in
his action.
2 . The Court enter Declaratory Judgment establishin
that the NACC does not have authority or g
Jurisdiction to impose the Conditions based upon
the Conservation By Law as said by law was not
lawfully enacted.
3 • The Court enter Declaratory Judgment establishi
that the NACC does not have authority or ng
Jurisdiction to impose the Conditions based upon
the Conservation Regulations as said regulations
go beyond the scope of the bylaws or the authority
Of the Conservation Commission and are therefore
illegal and void.
6
4 . Enter judgment that the Conservation By-Law is of
no effect as it isnot more stringent than the
Wetlands Protection Act.
5. Such other and further relief as the Court deems
just.
Count III
(Damages)
26. The Plaintiff realleges the allegations set forth
above.
27. The Conservation Commission has imposed the following
condition upon the Plaintiffs land:
"Condition 34. In an effort to protect the public
water supply, the landowner will record a
permanent deed restriction on the wetland portion
of this lot, which will prohibit any cuttings or
disturbance of vegetation, soils or topography. "
28. The above condition amount to a taking for which the
Plaintiff is entitled to compensation.
29. The Defendants have not followed the statutory
procedure for an eminent domain taking
30. As a result of the imposition of this condition the
Plaintiff has suffer a loss of his property and has
suffered monetary damages
Wherefore, the Plaintiff request that this Court, if it
upholds the above condition, award the Plaintiff damages for
the partial loss of his property, `plus costs and attorney
fees.
Kenneth P. Willner
by his attorney,
M Joh son
d1 Chestnut Street
Andover, Ma. 01810
508 475-4488
litig/willner B.B.O. #252760
7'
310 CMR 10.99
Form 5 , 9=1 ]6 I 242=627
DEPI
' Gty.Towt+ North Anod _gz -
Commonwealtri
' =•of Massaeriusett5 Aooucant Kenneth Wily
Lot 15 Carriage Chase
Order of Conditions
Massachusetts Wetlands Protection Act
C.L. 0. 1311 §40
and under the Town of North Andover's Wetlands, Bylaw, Chapter 178
From NORTH
To. Kenneth P. Will— Scott Fo langhpP -
(Name of Applicant) - (Name of property owner)
AOCress 2 Bellehnyan nr AAJ—X-- Me Address
This Orcer is issued and delivered as follows:
• (Date)
p by nano delivery to applicant or representative oft_
(::ate)
by certified mail.return receipt requested on
P � 1
This project is located at (#21) Carriage
The property is recorced at the Registry of
Boo33'7 -Page 261
n -
Cenriicate(it registered) ,
The Nonce of Intent for tuts project was files on
September 95• 1999 (p2te)
The ouofic nearing was closed on November 18, 1992 (date!
Findings
NACC has reviewed the above-referenceC NotiC_of
The
rias nets a puotic nearing on the~role-t. 8asec on the�intormauon avaiiao:e tc the
Intent anc:.cans anc S
N^ter' at this time.the Nary has cetermtned that
the area on wnt cit tate OrOcosea worts is to oe cone rs slgndtcartt t0 tfle f0110wtng interests M accordance with
the Presurnutions of Significance set form in the reguiaaons for earn Area Suoject to Proteson Under the
Act tC:ecK 2S�roartatet: Ch.-1784 prevention o£ erosion and sedimentation
' Pubiic.water suoatY Flood control C3 Land rung stielltisri
Storm carnage prevention Fisherriesies
Private water sutipty Protection of wildlife habitat
Ground water supply Prevention of poltuuon
Ch. 178 Wildlife Cts 1 re Recreation
Total rising t=ee SU mored State,..hare .
City(?own Share 1 137.50 ('h tee in exce�cf 52.1
Total Retuno Due S City/Town Portion S State Por5
(,,h total) (�/z tatal)
il
#242-627 Lot 15 Carriage Chase
Therefore, the. North Andover Conservation Commission (hereafter
the "NACC") hereby finds that the following conditions are
necessary, in accordancewiththe Performance Standards set forth
in the State Regulations, the local Bylaw' and Regulations, to
protect those interests noted above. The NACC orders that all
work shall be performed in accordance with said conditions and
with the Notice of Intent referenced above. To the extent that
the following conditions-modify-or differ from the plans,
specifications or other proposalssubmittedwith the Notice of
Intent, the conditions shall control
GENERAL CONDITIONS
1. Failure to comply with all conditions stated herein, and with
all related statutes and other regulatory measures, shall be
deemed cause to revoke or modify this Order.
2. This Order does not grant any property rights or any
exclusive privileges; it does not authorize any injury to
private property or invasion of private rights.
3 . This Order does not relieve the permittee or any other person
of the necessity of complying with all other applicable federal,
state or local statutes, ordinances, by-laws or regulations.
4 . The work authorized hereunder shall be completed within three
years from the date of this Order.
5. This order may be extended by the issuing authority for one
or more periods of up to one year each upon application to the
issuing authority at least 30 days prior to the expiration date
of the Order.
6. Where the Department of Environmental Protection is requested
to make a determination and to issue a Superseding Order, the
Conservation Commission shall be a party to all agency
proceedings and hearings before the Department.
7 . The proposed work includes construction of residence and
appurtenances.
8. The work shall conform to the, following (except as noted in
the remainder of this document where revisions may be required) :
(a) Notice of Intent filed by Thomas E. Neve Assoc. , Inc.
(b) Plans prepared• by Thomas E. Neve, September 17, 1992 .
9. The following wetland resource areas are affected by the
proposed works bordering vegetated wetland. The site is within
the watershed of Lake Cochichewick and therefore deemed a vital
resource under the Town Bylaws. These resource areas are
i
1242-627 Lot 21 Carriage Chase 3
significant to the interests of the Act and Town Bylaw as noted
above. These resource areas are also significant to the
recreational and wildlife interests, of the Bylaw. The applicant
has not attempted to overcome theresum t' '
p p ion of significance of
these resource areas to the identified interests.
10. The NACC agrees with the applicant's delineation of the
wetland resource areas on the site as shown on the plans dated ,
revised September 17, 1992 and November 16, 1992.
11. Issuance of these Conditions does not in any way imply or
certify that the site or downstream areas will not be subject to
flooding or storm damage.
12 . The conditions of this decision shall apply to, and be
binding upon, the applicant, owner, its employees and all
successors and assigns in interest or control.
i 13 . The NACC finds that the intensive use of the upland areas and
buffer zone proposed on this site to construct a residence and
appurtenances will cause further alteration of the wetland
resource areas. In order to prevent any alteration of wetland
resource areas beyond those proposed in the Notice of Intent and
approved herein, a twenty-five (25) foot no-disturbance zone and
a thirty-two (32) foot no-construction zone shall be established
from the edge of the adjacent wetlands. No disturbance of
existing grade, soils or vegetation is permitted in the no-
disturbance zone. (See Appendix 5 of the local Regulations) .
PRIOR TO CONSTRUCTION
14 . No work shall be undertaken until all administrative appeal
periods from this Order have elapsed or, if such an appeal has
been filed, until all proceedings before the Department or Court
have been completed.
15. This Order shall be recorded by the applicant at the
Registry of Deeds immediately. after the expiration of all appeal
periods. No work shall, be undertaken until the Final order has
been recorded in the Registry of Deeds or the Land Court for the
district in .which the land is located, within the chain of title
of the affected property.- In the case of recorded land, the
Final Order ,shall also be noted in the Registry's Grantor Index
under the name of the owner of the land upon which the proposed
work is to be done. In the case of registered land, the Final
Order shall also be noted on the Land Court Certificate of Title
of the owner of the land upon which the proposed work is to be
done. The recording information`shall be submitted to the North
Andover Conservation Commission on the form at theend of this
Order prior to commencement of the work.'
1242-627 Lot 21 Carriage Chase 4
16. A sign shall be displayed at the site not less than two
square feet or more than three square feet in size bearing the
words, "Massachusetts Department of Environmental Protection,
File Number 242-62711.
17. Any changes in the submitted plans caused by the applicant,
another Board's decision or resulting from this Order of
Conditions must be submitted•_to the NACC for approval prior to
implementation. If the NACC finds said changes to be
significant, the NACC will call for another public hearing (at
the expense of the applicant) . Within 21 days of the close of
said public hearing the NACC will issue an amended or new Order
of Conditions. Any errors found in the plans or information
submitted by the applicant shall be considered as changes. The
proposed project may be still under review by other local or
state boards or agencies. This may result in changes to the
project plans or wetland impacts. _If any such changes occur a
revised plan and an explanation of the revisions shall be
submitted to the NACC for review and approval prior to the start
of construction. No work shall begin on aproject' until written
approval has been granted by the NACC.
18 . The applicant shall contact the Conservation Office prior to
site preparation or construction and shall arrange an on-site
conference with an NACC representative, the contractor and the
applicant to ensure that all of the Conditions of this Order are
understood. This Order also shall be made a part of the
contractor's written contract. The applicant or contractor shall
notify the NACC in writing of the identity of the on-site
construction supervisor hired to coordinate construction and to
ensure compliance with this Order.
19 . The applicant shall submit a construction schedule/sequence
to the NACC detailing the proposed sequence of work on site to
complete this project.
20. Wetland flagging shall be checked prior to start of
construction and shall be re-established where missing so that
erosion control measures can be properly placed and wetland
impacts can be monitored.
21. A row of staked hay bales backed by a siltation fence shall
be placed between all construction areas and wetlands. The
erosion control barrier will be properly installed and placed on
the plan to be filed and shall be inspected and approved by the
NACC prior to the start of construction and shall remain intact
until all disturbed areas have been permanently stabilized to
prevent erosion. All erosion' prevention and sedimentation
protection measures found necessary during construction shall be
implemented at the direction of the NACC.
22. The applicant shall have on hand at the start of any soil
r
1242-627 hot 21 Carriage Chase 5
disturbance, removal or stockpiling, a minimum of thirty (30) hay
bales and sufficient stakes for staking these bales (or an
equivalent amount of silt fence) . Said bales shall be used only
for the control of emergency erosion problems, and shall not be
used for the normal control of erosion.
23 . A proper bond or a deposit of money running to the Town of
North Andover shall be provided in the amount of $3, 000. 00 which
shall be in all respects satisfactory to Town Counsel, Town
Treasurer, and the NACC, and shall be posted with the North
Andover Town Treasurer before commencement of work. Said bond or
deposit of money shall be conditioned on the completion of all
conditions hereof, shall be signed by a party or parties
satisfactory; to the NACC, andTownCounsel, and shall be released
after completion of the project, provided"that -provision,
satisfactory to the NACC, has been made for performance of any
conditions which are of continuing nature. The applicant may
propose a bond release schedule keyed to completion of specific
portions of the project for the NACC's review and approval. This
condition is issued under the authority of the local Bylaw.
DURING CONSTRUCTION
24 . Upon beginning work, the applicant shall submit written
progress reports every one (1) month detailing what work has been
done in or near resource areas, and what work is anticipated to
be done over the next period. This will update the construction
sequence.
25. Any fill used in connection with this project shall be clean
fill, containing no trash, ' refuse rubbish or debris, including
but not limited to lumber, bricks, plaster, wire, lath, paper,
cardboard, pipe, tires, ashes, refrigerators, motor vehicles or
parts of any of the foregoing.
26. No exposed area shall remain unfinished for more than thirty
(30) days, unless approved by the NACC.
27 . No regrading in the buffer zone shall have a slope steeper
than 2 : 1 (horizontal:vertical) . Slopes of steeper grade shall be
rip-rapped to provide permanent stabilization.
28 . There .shall be no stockpiling of soil or other materials
within twenty-five (25) feet of any resource area.
29. Washings from 'concrete trucks, or surplus concrete, shall not
be directed to, any drainage system or wetland resource area.
30. All waste generated by, or associated with, the construction
activity shall be contained within the construction area, and
away from any wetland resource area. There shall be no burying
#242-627 Lot 15 Carriage Chase 6
of spent construction materials or disposal of waste on the site
by any other means. The applicant shall maintain dumpsters (or
other suitable means) at the site for the storage and removal of
such spent construction materials off-site.
31. Accepted engineering and construction standards and
procedures shall be followed in the completion of the project.
32 . Members of the NACC or its agent shall have the right to
enter upon and inspect the premises to evaluate and/or effect
compliance with this Order of Conditions. The NACC reserves the
right to require, following field inspection, additional
information or resource protection measures.
33 . During and after work on this project, there shall be no
discharge or spillage of fuel, orotherpollutants into
any wetland resource area. If there is a spill or discharge of
any pollutant during any phase of construction the NACC shall be
notified by the applicant within one (1) business day. No
construction vehicles are to be stored within 100 feet of wetland
resource areas, and no vehicle refueling, equipment lubrication,
or maintenance is to be done within 100 feet of a resource area.
34 . In an effort to protect the public water supply, the
landowner will record a permanent deed restriction on the wetland
portion of this lot, which will prohibit any cuttings or
disturbance of vegetation, soils or topography.
AFTER CONSTRUCTION
35. No underground storage of fuel oils shall be allowed on any
lot within one-hundred (100) feet of any wetland resource area.
This Condition shall survive this Order of Conditions, and shall
run with the title of the property. This condition is issued
under the authority of the Town's Wetland Protection ByLaw.
36. Fertilizers utilized for landscaping and lawn care shall be
organic and not greater than 5% nitrogen content, and shall be
used in moderation. Pesticides and herbicides shall not be used
within 100 feet of a wetland resource area. This condition is
issued under the authority of the Town's Wetland Protection
ByLaw. The landowner' will ;record a -permanent deed restriction to
ensure compliance with this condition.
37. Upon completion of construction and grading, all disturbed
areas located outside resource areas,shall be stabilized
permanently against erosion. This shall be done either by
loaming and seeding according to SCS standards. If the latter
course is chosen, stabilization will be considered complete once
vegetative cover has been achieved.
#242-627 Lot 15 Carriage Chase 7
38. Upon completion of the project, the applicant shall submit a
letter to the NACC from a Registered Professional Civil Engineer
certifying compliance with this order of Conditions and the
approved plans referenced herein (or approved revisions) . A
letter from a qualified wetland scientist certifying compliance
with local/state ,regulations is also required for the wetland
replication/restoration area. A stamped "As-Built" topographic
plan of all areas within the jurisdiction of the Wetlands
Protection Act and Bylaw_shall 'be submitted when a Certificate of
Compliance is requested. This plan will include:
a. "As-Built" elevations and grades of all
filled or altered wetlandresourceareas.
b. Distances from structures to wetlands.
c. A line showing the limit of work. "Work" includes;
any disturbance of soils: or vegetation.
39 . The following special conditions shall survive the issuance
of a Certificate of Compliance for this project:
33. Discharge or spillage of pollutants.
34. Conservation restriction.
35. Prohibition of storage of fuels underground.
36. Limitations on the use of fertilizers, herbicides
and pesticides.
t
. J
Issued By North Andover Conservation Commission
Signature(s)
�JdVA-AA
This Order must be signed by a majority of the Conservation Commission.
On this ZILd _..sday o} f 19 . before me
personally appeared ��� Aid Z' , to me known to be the
person described in and who executed the foregoing instrument and acknowledged that hershe executed
the same as his/her free act and deed.
otary Public Mycommission ex Cres
The apoucant.the owner,any person aggrieved by this Order,any owner of land abutting the land upon which the proposed work is to be
cone,or any ten residents of the City or town in Which Sucn land is located.are hereby notified of their right to recuest the Decanmenl of
Environmental Protection to issue a Superseding Order,providing the reouest is made by certified mail or hand delivery 10 the Deoanment,
with the appropriate filing fee and Fee Transmural Form as provided in 310 CMR 10.03(7),within ten days from the date of issuance of this
Determination.A copy of the request shall at the same time be sent by certified mail or hand owivery to the Conservation Commission
and the applicant
If you wish to appeal this decision under the Town Bylaw, a complaint
must be filed in Superior Court.
Detach on dotted line and submit to the North-Andover Conservation o m prior to commencement of work.
To North Andover Conservation 'Commission Issuing Autnorrty
Please be advised that the Order ofConditiorts for the project at Lot l (}f21) Carriiagp,Chase
242— Deeds North F�gx and
��te Number 627 has been.recorded at the Registry of
has been noted in the chain of title of the atiecteo property in accordance wan General Condition a on 19
It recorded land. ins instrument number which identifies tius saasacaon ra
11 regisiereo land. the document number which identifies this transaction 05
Acoucan,
Sagna,ure
5•4A
310 CMR 10-99 DFP File Na 242-6,,?
Form 9 (ro be provided by DEP)
afro„o NORTH ANDOVER
mak= Kenneth Willner
commonwealth
of Massachusetts
Lot 15 Carriage Chase
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, 540
AND UNDER THE TOWN OF NORTH ANDOVER BYLAW, CHAPTER 3, SECTION 3.5
Prom NORTH ANDOVER CONSERVATION COMMISSION (NACC) issuing Authority
To Kenneth P. Willner, PO Box 423, Hathorne MA 01937
To oward P. Speicher, Esi. , One Boston Place, Boston, MA 02108-4470
Date of. Issuance Apk Z. 1"6
Property lot/parcel number, address Lot 14 Carriage Chase
Extent and type of activity: THIS ENFORCEMENT ORDER ALLOWS WORK TO BE CARRIED
OUT UNDER AND EXPIRED ORDER OF CONDITIONS. THE APPLICANT:MUST ABID.E:BY ALL -THE
CONDITIONS STATED_ IN ,THE_ORDER,OF CONDITIONSISSUED 12/10/92. ALL WORK MUST BE
COMPLETELY BY SEPTEMBER 30, 1996. SEE "VIOLATIONS" ATTACHED HERETO_AND MADE A PART
The NACC has determined that the activity describe HEREOF.
above is in violation of the wetlands Protection Act, G.L. C. 131, $40, and
the Regulations promulgated pursuant thereto, 310 CHR 10.00, because:
❑ said activity has been/is being conducted without a valid Order of
Conditions.
C] said activity has been/is being conducted in violation of an order of
Conditions issued to dated ,
Pile number 242-
condition number(s)
other (specify)
The NORTH ANDOVER CONSERVATION COMM. hereby orders the following:
[� The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
0 wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
9'1
Effective 11/10/89
NORTH ANDOVER CONSERVATION Comission
Issued by `
y the
t and
❑ completed application forms and plans as required
C N ERVATI N COMMISSION shall be filed with the
(date),
on or before
and no further work shall be performed until a public hearing has been held
and an order of Conditions has been issued to regulate said work.
Application forme are available at:
NACC Office, Town Hall Annex
❑ The property owner shall take every reasonable step to prevent further
violations of the act.
❑ other (specify)
Failure to comply with this order may constitute grounds for legal action,
Massachusetts General Laws chapter 131, Section 40 provides:
Whoever violates any provision of this section shall be punished
by a fine of not more than twenty-five thousand dollars or by
imprisonment for not more than two years or both. Each day or
portion thereof of continuing violation shall constitute a separate
offense.
Questions regarding this Enforcement order should be directed to
Michael D. Howard, Conservation Administrator
Issued by NORTH ANDOVER CONSERVATION COMMISSION
Signature(s)_ '
Chap rman.) (Ad n strator)
i
(Signature of delivery person
or certified mail number)
9-2b
242-627 April 17, 1996
VIOLATIONS
The applicant must immediately address the violations observed on Wednesday,
April 17, 1996:
- The DEP sign must be posted
- Haybales must be replaced
- Silt fence must be re-installed properly
- 15 haybales must be stockpiled on the property.
The applicant must submit a $100 check to the Town of North Andover for the
Enforcement Order issued to allow work to be completed under an expired Order of
Conditions pursuant to Section I, D2 (g) of the North Andover Wetlands
Regulations.
3'
(b) Notices of Intent submitted under both the Act and Bylaw
shall be subject to the filing fees mandated by State
Regulation. In addition, a fee of $25 . 00 will be
charged under the Bylaw for the verification of a
wetland resource area delineation. If at the time of
filing, or after the Commission' s review, the wetland
resource area delineation is found to be greater than
100 feet in length, an additional fee of $25. 00 shall be
charged for each 100 linear feet of wetland line (or any
portion therof. ) Adopted by the North Andover
Conservation Commission March 15, -1995)
(c) $50 . 00 shall be charged for each requested or required
Modification or Amendment of an Order of Conditions.
This shall not apply to Modifications or Amendments
required by the Commission' s order of Conditions or
required by another Town Board.
(d) $50. 00 shall be charged for each request for a
Certificate of Compliance request after the first such
request has been denied,
(e) $50 . 00 shall be charged for each request to extend an
Order of Conditions.
(f) $50 . 00 shall be charged for an Emergency Certification.
This fee shall be applied to a Notice of Intent filing
fee if required.
(g) $100. 00 shall be 'charged for each Enforcement Order
issued to allow work to be completed under an expired
Order when the work is substantially complete and the
applicant is seeking a Certificate of Compliance.
3. Waivers from Regulations
Strict compliance with these Regulations may be waived when, in
:he judgment of the Commission, such action is consistent with
.he intent and purpose of the Bylaws and these Regulations. The
applicant shall have the burden of proof that the granting of the
waiver is consistent with the intent and purpose of the Bylaws
ind these Regulations. The Commission shall act on the request
and shall provide to the applicant, either by certified mail or
land delivery, its written decision. See Appendix 2 for a waiver
2equest Form.
aOfficers and Members
i. Officers
There shall be a Chair and Vice-Chair, who shall be elected
by a majority vote of the eligible Commission members. The
MALm& D'AGosTi r
- DAviS, YCJEG' '
A PROFESSIONAL CORPORATION TOWN {1.L.E.R.K
One Bos7'oN PLACE NORTH ANDOVER
0
G 8 p9
Julian J.D•Agostine Richard A.Nyden,Jr. BosTON,MAssACNusLnTs 02108-447AU
C.Michael Maim Carol R.Cohen
Harold R.Davis Howard P.Speicher (61 TELEPHONE;
Frank P.Conrad Paul L.Feldman 7)367-2500
William F.Griffin,Jr. Kevin F.Long TE XCOP1[+&(617)523-6215
Paul E.Levenson Peter L.Koff
Robert C.Gerrard Gary M.Feldman
John G.Serino George A.Hewett
John R.Berman Harold G.Clarke.Jr.
Sidney J.Wartel Robert J.Diettrich
Gary S.Matsko J.Gavin Cockfield
Judith Ashton Ellen Donovan McCann
John T.Lynch Thomas S.Fitzpatrick
Grover S.Parnell,Jr. Robert E.Richards,Jr.
Robert J.Galvin Jennifer L.WOinsky
John D.Chambliss Lori H.Freedman
August 8, 1995
Charles Trombly, Recorder
Land Court Department
408 Old Courthouse
Boston, MA 02108
Re: Kenneth P. Willner. et al v
Town of North Andover Planning Board et al
Misc. No. 219232
Dear Mr. Trombly:
Enclosed please find for filing a Notice of Voluntary
Dismissal in the above entitled matter.
Thank you for your attention to this matter.
Very truly yours,
Howard P. Speicher
i
Enclosure
CC: Kenneth P. Willner
Joel B. Bard, Esq.
J:%PEfCHERXWILLNERICLERKLTa
DAvis, MALM& D'AGonm
A PROFESSIONAL CORPORATION
ONE BOSTON PLACE
BosToN,MAssAcHusErrs 02108-4470
Julian J.D•Agostine Richard A.Nylen,Jr.
C.Michael Maim Carol R.Cohen
Harold R.Davis Howard P.Speicher TELEPHON& 61 361-2500
Frank P.Conrad Paul L.Feldman
William F.Griffin,Jr. Kevin F.Long TWY=PWu(617)523-6215
Paul E.Levenson Peter L.Koff
Robert C.Gerrard Gary M.Feldman
John G.Serino George A.Hewett
John R.Berman Harold G.Clarke,Jr.
Sidney J.Wartei Robert J.Diettrich
Gary S.Matsko J.Gavin Cockfield
Judith Ashton Ellen Donovan McCann
John T.Lynch Thomas S.Fitzpatrick
Grover S.Parnell,Jr. Robert E.Richards,Jr.
Robert J.Galvin Jennifer L.Wilinsky
John D.Chambliss Lori H.Freedman
August 8, 1995
Charles Trombly, Recorder
Land Court Department
408 Old Courthouse
Boston, MA 02108
Re : Kenneth P. Willner, et al. v.
Town of North Andover Planning Board, et al -
Misc. No. 219232
Dear Mr. Trombly:
Enclosed please find for filing a Notice of Voluntary
Dismissal in the above entitled matter.
Thank you for your attention to this matter.
Very truly yours,
01
Howard P. Speicher
1
Enclosure
CC : Kenneth P. Willner
Joel B. Bard, Esq.
J:iSPEICHEMW ILLNERICLEPK LT8
t+
Y t t
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. G IJ G
COURT
MISC. NO. 219232
KENNETH P. WILLNER and
JACQUELINE D. BEST-WILLNER,
Plaintiffs
V.
RICHARD A. NARDELLA, JOHN NOTICE OF VOLUNTARY DISMISSAL
SIMONS, JOSEPH MAHONEY,
ALISON LESCARBEAU and RICHARD
ROWEN, as they are the
members of the PLANNING BOARD
OF THE TOWN OF NORTH ANDOVER,
Defendants
The plaintiffs hereby voluntarily dismiss this action pursuant
to Rule 41 (a) (1) (i) , Mass. R. Civ. P. , no answer having been
served.
KENNETH P. WILLNER and
JACQUELINE D. BEST-WILLNER,
By their attorney,
r
Howard P. Sp cher/BBO#47438
DAVIS, MALM & D'AGOSTINE, P.C.
One Boston Place
j Boston, MA 02108
(617) 367-2500
Dated: August 8, 1995
I NEREW,CERTIFY THAT ACOPV OF TMEABOVE DOCUIi M
JASPEICHER\WILLNEROISMISS.Nar unm TM9 ATMRNFLnF RECORD FOR
t
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss . LAND COURT
MISC. NO. 219232
KENNETH P. WILLNER and
JACQUELINE D. BEST-WILLNER,
Plaintiffs
V.
RICHARD A. NARDELLA, JOHN NOTICE OF VOLUNTARY DISMISSAL
SIMONS, JOSEPH MAHONEY,
ALISON LESCARBEAU and RICHARD
ROWEN, as they are the
members of the PLANNING BOARD
OF THE TOWN OF NORTH ANDOVER,
Defendants
The plaintiffs hereby voluntarily dismiss this action pursuant
to Rule 41 (a) (1) (i) , Mass. R. Civ. P. , no answer having been
served.
KENNETH P. WILLNER and
JACQUELINE D. BEST-WILLNER,
By their attorney,
r
Howard P. Sp cher/BBO#47438
DAVIS, MALM & D'AGOSTINE, P.C.
One Boston Place
j Boston, MA 02108
(617) 367-2500
Dated: August 8, 1995
1i 0gWCERTIFYTHATACOPYOFTHEABODE000 MWT
J:WEICHER\WILLNEROISMISS.NOT S HE ATTORNE FR RCF
a. s
, 3• •
E C E '# 0
f•. ( .: JOYCE RAZ;_.HAW
Any appeal shall be filed ';mss••„•. TOW? CLERK
within (20) days after the '*+ �l;;?•' NORTH ANDOVER
date of filing of this
NOF NORTH ANDOVERotice in the OfficeTOWN JULr3AS9ACHLTSETTJULZ411 24 �
of the Town Ciera.
BOARD OF APPEALS
NOTICE OF DECISION
Date 7.24 . 95
Petition No. 027-95
Date of Hearing June 13
July 11, 1995
Pe'-ition of: Kenneth & Jacqueline Wilner
Premises :f ected Lot 15 Carriage Chase
Referring to the above petition for a variation from the requirements
o Section 4. 133, para, (3) (c) of the 1984 Zoning Bylaw so as
L to permit relief of 5 feet for purposes of the construction of
-a- new house in the 25 foot no cut zone to a wetland resource area
in the Watershed District, The applicants also requested a variation
from Section 7, para. 7 .3 and Table 2 of the Zoning Bylaw so as to
permit relief of 11 feet from the left side _setback requirement of
30 feet and relief of 4 feet from the front setback requirement
of 30 feet .
After a cublic hearing given on the above date , the Board of Appea=s
voted to GRANT the Variances and hereby
author-ze the Building Inspector to issue a permit to:
Kenneth & Jacqueline Wilner
for t':-.e construction of the above work, ,99ffXXjXX iXXXXXXN1XXX'XXiq
cXXkkKkxx-AXX
The Board finds that the petitioner has satisfied the provisions of
Section 10, para. 10. 4 of the Zoning Bylaw and that the granting of these
variances will not adversely affect the neighborhood or derogate from
the the intent and purpose of the Zoning Bylaw.
Board of Appeals ,
Joseph Faris
John Pallone
Robert Ford
Ellen McIntyre
-W
J4 r £
TOWS OL
}�
kNDOyER
Town of North C'Sover= , 40RTH
ff tt,' ys O "'20 ,6 ti
MCECOMMUNITY DEVELOP NT AND SERVICES A
n
146 Main Street
KENNETH R.MAHONY North Andover,Massachusetts 01845C
9SSAHUS�t
Director (508)688-9533
Kenneth & Jacqueline Wilner Decision
55 Union Street Petition # 027-95
Boston, MA 02108
The Board of Appeals held a regular meeting on June 13, 1995 and continued until
July 11, 1995 upon the appeal of Kenneth & Jacqueline Wilner requesting a variation
of Section 4.133, para. (3) (c) of the 1984 Zoning Bylaw so as to permit relief of 5 feet
for purposes of the construction of a new house in the 25 foot no cut zone to a wetland
resource area in the Watershed District. The applicants also requested a variation from
Section 7, para 7.3 and table 2 of the Zoning Bylaw so as to permit relief of 11 feet
from the left side setback requirement of 30 feet and relief of 4 feet from the front
setback requirement of 30 feet for a proposed house to be located at Lot 15 Carriage
Chase Road.
The following members were present and voting: Robert Ford, Joseph Faris, Ellen
McIntyre and John Pallone.
The public hearing was advertised in the North Andover Citizen on May 24 and May
31, 1995 and all abutters were notified by regular mail.
Motion by Joseph Faris to Grant the Variances as requested, seconded by Ellen
McIntyre. Vote: unanimous. Voting in favor: Robert Ford, Joseph Faris, Ellen McIntyre,
and John Pallone.
The Board finds that the petitioner has satisfied the provisions of Section 10, para.
10.4 of the Zoning Bylaw and that the granting of these variances will not adversely
affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw.
Board of Appeals,
Joseph Faris
Dated: July 24, 1995 John Pallone
Robert Ford
Ellen McIntyre
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 6$8-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Parrino D.Robert Nicetta Michael Howard Sandra Starr KAWeen Bradley Colwell
IOYCI 11A AW
TOWN OF NORTH AND OVE TOWN CLERK
H A S S A C H U S E T T SORTH ANDOVER
Any appeal shall be, filedjUN ;-7 P `
MORTN
t 1,y
within (20) days after the oro•4•`�0 l''° ���
F 9
date of filing of this [notice
• 10
in the Office of the Town �, �,.....•��ty
Clerk. ss4CH
NOTICE OF DECISION
Date. June 9,, .1995 . . . . . . . . . . . . . .
Date of Hearing • June. 6,. 1995.
Kenneth P. Willner and Jacqueline Best-Willner
Petitionof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lot 15
Premises affected . . . . .. .. . . .5) •Carriage•Chase
Referring to the above petition for a special permit from the requirements
North Andover Zoning Bylaw Section 133 Paragraph (3) (d) as in effect
of the . , . . . . . ,
in 1984.
so as to .411QW.the.GQUStxuCtiQn.of .a.single .familg .dwell ing and -r-elated
improvements within the Watershed Protection District.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
After a public hearing given on the above date, the Planning Board voted
conditionally SPECIAL PERMIT
toaQPrTvq . . . . . . . .the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CC: Director of Public works based upon the following conditions:
Building Inspector
Natural Resource/Land Use Planner
Health Sanitarian qr
Assessors Signed�444&
Police Chief
rman
Fire Chief Joseph. . . . . . . .. . . . .. .. . . . . • . . . .
Applicant
Richard Rowen. ViceChairman
Engineer • • •
. . . •
File
Interested Parties Alison Lescarbeau, Clerk
Richard A. Nardella
John Simons •• . • • • . •• •••• . • • . . .•
Town of North Andover t AoRrh
OFFICE OF 3?C`,,to le,b��0.
COMMUNITY DEVELOPMENT AND SERVICES p
146 Main Street
KENNETH R MAHONY North Andover,Massachusetts 01845SACN
CH
4SUS��
Director (508)688-9533
June 9, 1995
Ms. Joyce Bradshaw
Town Clerk
120 Main Street
North Andover, MA 01845
Re: Special Permit - Watershed Protection District
Lot 15 (#15) Carriage Chase
Dear Ms. Bradshaw:
The North Andover Planning Board held a public hearing on
Tuesday evening, June 6, 1995 in the Senior Center behind the Town
Building, upon the application of Kenneth P. Willner and Jacqueline
Best-Willner, 55 Union Street, Boston, MA 02108 requesting a
Special Permit under Section 133, Paragraph (3) (d) of the Zoning
By-law as in effect in 1984. The legal notice was properly
advertised in the North Andover Citizen on May 17 and May 24, 1995
and all parties of interest were duly notified. The following
members were present: Joseph Mahoney, Chairman, Richard Rowen,
Vice Chairman, Alison Lescarbeau, Clerk, Richard Nardella and
Alberto Angles, Associate Member.
The petitioner was requesting a special permit to allow the
construction of a single family dwelling and related improvements
in the Watershed Protection District.
Ms. Lescarbeau read the legal notice to open the public
hearing.
Atty. Howard Speicher was present representing the Willner's.
Ms. Colwell stated that there was concern over the drainage system
and where the water will flow. The applicant added a drainage
system to handle stormwater.
Awaiting certification that the plan addresses all issues regarding
quality of water entering the lake.
On a motion by Ms. Lescarbeau, seconded by Mr. Rowen, the Board
voted unanimously to close the public hearing.
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Puffin D.Robert Niceda Michael Howard Sandra Starr Kathleen Bradley Colwell
At the same meeting, on a motion by Mr. Rowen, seconded by Ms.
Lescarbeau, the Board voted unanimously to approve the special
permit as written and amended.
Attached are those conditions.
Sincerely,
North Andover Planning Board
44zt4�YL R)
oseph- Mahoney, airman
Lot 15 Carriage Chase
special Permit rmit -
Watershed Protection District
The Planning Board grants this special permit under Section 133,
Paragraph (3) (d) of the Zoning Bylaw in effect in 1984, for the
purpose of allowing construction of a dwelling and related
improvements in the Watershed Protection District, on land known as
Lot 15 Carriage Chase, owned by Kenneth P. Wilner and Jacqueline D.
Best, 55 Union Street, Boston, MA 02108. The granting of . this
special permit is in accordance with the settlement of
Massachusetts Land Court Misc. No. 205479.
FINDINGS OF FACT:
1. The lot was created as part of the Marbleridge Subdivision.
The preliminary subdivision plan was filed in the Spring of
1984. The preliminary plan was followed by a definitive plan
which was approved by the Planning Board on January 8, 1985.
The plans were endorsed on March 13, 1985. As such, the
property herein is considered subject to the North Andover
Zoning Bylaw as it was in effect at the time of submission of
the preliminary, subdivision plan in May of 1984 for eight
years from endorsement of the plan on March 13, 1985 as
extended by the period of any litigation involving the right
to develop the property.
2. The property was the subject of litigation with the North
Andover Conservation Commission which commenced prior to March
13, 1993 and was resolved favorably to the plaintiffs by a
settlement. Therefore the property herein is considered
subject to the North Andover Zoning Bylaw in effect in May of
1984.
3. Under the 1984 North Andover Zoning Bylaw, no construction may
occur one hundred (100) feet horizontally from the edge of all
tributaries, except by Special Permit issued by the Planning
Board.
Upon reaching the above findings, the Planning Board approves this
Special Permit for the construction of a single family home within
one hundred (100) feet horizontally from the edge of a tributary
based upon the following conditions:
SPECIAL CONDITIONS:
1. This decision must be filed with the North Essex Registry of
Deeds. The following information is included as part of this
decision:
Plan of Land in No. Andover, MA
Scale: 1" = 20'
1 .
k
Hayes Engineering, Inc.
603 Salem Street
Wakefield, Mass 01880
August 18, 1993; last revision date 5/1/95
An changes made to these plans shall be Approved b the Town
Y g P PP Y
Planner. Any changes deemed substantial by the Town Planner
will require a public hearing and modification by the Planning
Board.
2. Prior to any work on site:
a. The applicant must submit to the Planning Department
written certification by a Registered Professional
Engineer, or, other scientist educated in and possessing
extensive experience in the science of hydrology and
hydrogeology, stating that no significant degradation of
the quality or quantity of water in or entering Lake
Cochichewick will occur as a result of the development of
this lot.
b. The applicant must submit a statement that there is no
reasonable alternative location outside the one hundred
(100) foot no-construction zone for the structure.
C. A performance guarantee of two thousand ($2,000) dollars
in the form of a check made out to the Town of North
Andover must be posted to insure that construction will
take place in accordance with the plans and the
conditions of this decision. This will also insure that
an as-built plan will be submitted.
d. All erosion control measures as shown on the plan
including hay bales and silt fence must be in place and
reviewed by the Town Planner. All work on the site will
be monitored by the Planning Office and/or the Division
of Public Works on a regular basis.
e. The site shall have received all necessary permits and
approvals from the North Andover Conservation Commission,
Board of Health, the Zoning Board of Appeals, and the
Department of Public Works
3. Prior to FORM U verification (building permit issuance) :
a. All plans for the tie-in to the municipal sewer must be
reviewed and approved by the Division of Public Works.
4. Prior to Planning Board verification of the Certificate of
Occupancy:
a. The roof drains and stone trench must be constructed as
2
. k
shown on the plan.
b. The stone masonry retaining wall must be constructed 'as
shown on the plan and reviewed by the Town Planner.
5. Prior to release of the Performance Bond:
a. The applicant shall submit a certification by either a
Registered Professional Land Surveyor or Practicing
Engineer that the site has been constructed in accordance
with the approved plan.
b. The Planning Board must by a majority vote make a finding
that the site is in conformance with the approved plan
and that any unforeseen circumstances have been
adequately addressed by the applicant.
6. Upon conveyance of the property by the current owner, the deed
must contain language restricting the area of maintained lawn
to those areas outside of the proposed stone masonry wall as
shown on the plan. Areas between the stone masonry wall and
the wetland resource area are to remain in their natural
state.
7. Fertilizers utilized for landscaping and lawn care shall be
organic and not greater than 5% nitrogen content, and shall be
used in moderation. Pesticides and herbicides shall not be
used within 100 feet of a wetland resource area.
8. In no instance shall the applicant's proposed construction be
allowed to further impact the site than as proposed on the
plan referenced in Condition # 1.
9. No open burning shall be done except as is permitted during
burning season under the Fire Department regulations.
10. The Contractor shall contact Dig Safe at least 72 hours prior
to commencing excavation.
11. The provisions of this conditional approval shall apply to and
be binding upon the applicant, it's employees and all
successors and assigns in interest or control.
12. This permit shall be deemed to have lapsed after a two (2)
year period from the date on which the Special Permit was
granted unless substantial use or construction has commenced.
Therefore the permit will expire on :7'Unc. /,�, /997
cc. Director of Public Works
Building Inspector
Health Agent
Assessor
3 .
Conservation Administrator
Police Officer
Fire Chief
Applicant
Engineer
File
Carriage.settle
4
of"O"TH;
~"
OFFICES OF: a� m Town of 120 Main Street
North Andover,
APPEALS
.off::-. NORTH ANDOVER Massachusetts o 1845
BUILDING
CONSERVATION48a"O"Sys DIVISION OF (617)685-4775
HEALTH
PLANNING PLANNING & COMMUNITY DEVELOPMENT
KAREN H.P. NELSON, DIRECTOR
MODIFICATION TO
ORDER OF CONDITIONS
File No. 242-627
Project: Lot 15 Carriage Chase
T6 NORTH ANDOVER CONSERVATION COMMISSION at its meeting on
„ t December 15, 1993 , agreed to accept a change to Condition #13 requiring
X. a 71-1� no-disturbance zone in lieu e of the original nal Irl' no-disturbance zone,
as a Modification to the
Order of Condition issued in file #242- 627 dated December 10, 1992
and recorded in Book # and Page #
Issue by the NORTH ANDOVER CONSERVATION COW ISSION
F
On this day of 19 Q q ,
before me personally appeared , to me known
to be the person described in and ho executed the foregoing
instrument and acknowledged that he/she executed the same as
his/her free act and deed.
,.My Commission Expires Jun®20,1997,
Notary Pub is My commission expiies
A receipt from the Registry of Deeds must be submitted t--a Lhis
office showing that this Modification has been recorded and
referenced to the Book and Page numbers where the original Order
#242- 627 was recorded.
Town of North Andover , NORTN ,
OFFICE OF 3?0t,,,.o ,,16 0Z.
COMMUNITY DEVELOPMENT AND SERVICES °
4L
♦ 9 i
146 Main Street 4Q.,;,o .•`�y
KENNETH R.MAHONY North Andover,Massachusetts 01845 "SSAW'
Director (508)688-9533
MODIFICATION TO
` ' ORDER OF CONDITIONS
242-627
s File No.
co~x Projects Lot 15 Carriage Chase
The NORTH ANDOVER CONSERVATION COMMISSION at its meeting on
June 21, 1995 , agreed to accept the following: The site is to
be approved by the Natural Resource/Land Use Planner; Perimeter Drain Only;
no connection to house or pool as a Modification to the
Order of Conditions issued in file # 242- 627 dated 12-10-92 Amended
10-20-94
and recorded in Book # and Page #
is ed by ,th H ANDOVER CONSERVATION COMMISSION:
W i G
Aim
On this 21st day of June 19 95 before me personally
appeared - Joseph Lynch , to me known to be the
person described in and who executed the foregoing instrument and
acknowledged that he/she executed the same as his/her free act and
deed.
March 22, 2002
Notary Public onna ae DIZ54ta My Commission Expires
A receipt from the Registry of Deeds must be submitted to this
office showing that this Modification has been recorded and
referenced to the Book and Page numbers where the original Order
242- 677 was recorded.
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Parrino D.Robert Nicetta Michael Howard Sandra Starr Kathleen Bradley Colwell
fit:
Joh c r rt k AW
310 CMA 10.94 TOW'(
NORTH b, c {.`E`ER
Form 5 t ? tw 242-627
:r.
DICT ZO 18 (Facem— -aoEm
Commonweaffh ,-7owr,, North Andover
of Massacnusetts Kenneth Wllner
**AMENDED**
Lot 15 Carriage Chase
Order of Conditions
Massachusetts Wetlands Protection Act
C.L. c. 131, §40
and under the Town of North Andover's Wetlands Bylaw, Chapter 178
From North Andover Conservation Commission
Te Kenneth P. Willner Scott Follansbee
(Name of Applicant) (Name of property owners
3 Bellehaven Dr.
Acoreas Andover, MA 01810 Address
This Orcer is issued and delivered as follows:
C2 by hand delivery to apoiicant or representative an (date)
by certifies mail. return receipt requested on OCTOBER 20, 1994 Z115 797 997 (pates
This project is located at Lot 15 (#21) Carriage Chase
The procerty is recorded at the Registryof Deeds, North Essex
Boo4 3377 Page 261
Cenricate (if re_sstered)- -- - -
The Notice of Intent for trtts protect was files on September 25, 1992 (sate)
The eublic nearing was closed on November 18, 1992 (pate)
Findinas
The NACC has reviewec the above•referertced Nonce of
Intent anc;.cans ana nas nets a-uoiicneanng on;ne c:o;e.z. Sasso on the tn:orrrauon avanao!e to the
NACC at this time. the NACC has ce;ertmneo that
the area on wntcn the orcoosec worts is to be cone is significant to the toifowing interests in amcroance wan
the Pfesutr.=uwls of Significance set form ►n the re-uta:nons for each Area Suoiect to Pmtecton Uncer the
Act tC:ecx as acoroortate): Ch.178( Prevention of erosion and sedimentation
Pubiic water suaaiy Q Flood comroi C2 Land containing shellfish
Private water supply Q Storm damage orevention Fisheries
Ground water supply 110 Prevention of pofiuuon Protection of wildlife habi=
Ch.17
t n
C 7 io
c s�_� W1 ldlif a State Share $
Total Fling s=ee ..ubmnied
Citvs?own Share $137.50 ('l4 fee in excess c:==i
Tota! Retunc Due S Cityfrown Portion 5 State Portion 5
('/z total) (1/2 total)
S
#242-627 Lot 15 Carriage Chase 2
** This amended Order of Conditions incorporates the December 15,
1993 vote of the Conservation Commission regarding amendments to
Conditions 8 and 13. **
Therefore, the North Andover Conservation Commission (hereafter
the "NACC") hereby finds that the following conditions are
necessary, in accordance with the Performance Standards set forth
in the State Regulations, the local ByLaw and Regulations, to
protect those interests noted above. The NACC orders that all
work shall be performed in accordance with said conditions and
with the Notice of Intent referenced above. To the extent that
the following conditions modify or differ from the plans,
specifications or other proposals submitted with the Notice of
Intent, the conditions shall control.
GENERAL CONDITIONS
1. Failure to comply with all conditions stated herein, and with
all related statutes and other regulatory measures, shall be
deemed cause to revoke or modify this Order.
2 . This Order does not grant any property rights or any
exclusive privileges; it does not authorize any injury to
private property or invasion of private rights.
3 . This Order does not relieve the permittee or any other person
of the necessity of complying with all other applicable federal,
state or local statutes, ordinances, by-laws or regulations.
4 . The work authorized hereunder shall be completed within three
years from the date of this Order.
5. This Order may be extended by the issuing authority for one
or more periods of up to one year each upon application to the
issuing authority at least 30 days prior to the expiration date
of the Order.
6. Where the Department of Environmental Protection is requested
to make a determination and to issue a Superseding Order, the
Conservation Commission shall be a party to all agency
proceedings and hearings before the Department.
7 . The proposed work includes construction of residence and
appurtenances.
8 . The work shall conform to the following (except as noted in
the remainder of this document where revisions may be required) :
(a) Notice of Intent filed by Thomas E. Neve Assoc. , Inc.
(b) Plans prepared by Thomas E. Neve, September 17, 1992,
amended by Hayes Engineering, Inc. , plan dated August 18,
1993, revised December. 13, 1993, December 15, 1993 , December
17 , 1993 and December 28, 1993 .
#242-627 Lot 15 Carriage Chase 3
9. The following wetland resource areas are affected by the
proposed work: bordering vegetated wetland. The site is within
the watershed of Lake Cochichewick and therefore deemed a vital
resource under the Town Bylaws. These resource areas are
significant to the interests of the Act and Town Bylaw as noted
above. These resource areas are also significant to the
recreational and wildlife interests of the Bylaw. The applicant
has not attempted to overcome the presumption of significance of
these resource areas to the identified interests.
10. The NACC agrees with the applicant's delineation of the
wetland resource areas on the site as shown on the plans dated
revised September 17, 1992 and November 16, 1992.
11. Issuance of these Conditions does not in any way imply or
certify that the site or downstream areas will not be subject to
flooding or storm damage.
12 . The conditions of this decision shall apply to, and be
binding upon, the applicant, owner, its employees and all
successors and assigns in interest or control.
13 . The NACC finds that the intensive use of the upland areas and
buffer zone proposed on this site to construct a residence and
appurtenances will cause further alteration of the wetland
resource areas. In order to prevent any alteration of wetland
resource areas beyond those proposed in the Notice of Intent and
approved herein, a twenty (20) foot no-disturbance zone and a
thirty-two (32) foot no-construction zone shall be established
from the edge of the adjacent wetlands. No disturbance of
existing grade, soils or vegetation is permitted in the no-
disturbance zone. (See Appendix 5 of the local Regulations) .
PRIOR TO CONSTRUCTION
14. No work shall be undertaken until all administrative appeal
periods from this Order have elapsed or, if such an appeal has
been filed, until all proceedings before the Department or Court
have been completed,
15. This Order shall be recorded by the applicant at the
Registry of Deeds immediately after the expiration of all appeal
periods. No work shall be undertaken until the Final Order has
been recorded in the Registry of Deeds or the Land Court for the
district in which the land is located, within the chain of title
of the affected property. In the case of recorded land, the
Final Order shall also be noted in the Registry's Grantor Index
under the name of the owner of the land upon which the proposed
work is to be done.,* In the case of registered land, the Final
Order shall also be noted on the Land Court Certificate of Title
#242-627 Lot 15 Carriage Chase 4
of the owner of the land upon which the proposed work is to be
done. The recording information shall be submitted to the North
Andover Conservation Commission on the form at the end of this
Order prior to commencement of the work.
16. A sign shall be displayed at the site not less than two
square feet or more than three square feet in size bearing the
words, "Massachusetts Department of Environmental Protection,
File Number 242-62711 .
17 . Any changes in the submitted plans caused by the applicant,
another Board's decision or resulting from this Order of
Conditions must be submitted to the NACC for approval prior to
implementation. If the NACC finds said changes to be
significant, the NACC will call for another public hearing (at
the expense of the , applicant) . Within 21 days of the close of
said public hearing the NACC will issue an amended or new Order
of Conditions. Any errors found in the plans or information
submitted by the applicant shall be considered as changes. The
proposed project may be still under review by other local or
state boards or agencies. This may result in changes to the
project plans or wetland impacts. If any such changes occur a
revised plan and an explanation of the revisions shall be
submitted to the NACC for review and approval prior to the start
of construction. No work shall begin on a project until written
approval has been granted by the NACC.
18. The applicant shall contact the Conservation Office prior to
site preparation or construction and shall arrange an on-site
conference with an NACC representative, the contractor and the
applicant to ensure that all of the Conditions of this Order are
understood. This Order also shall be made a part of the
contractor's written contract. The applicant or contractor shall
notify the NACC in writing of the identity of the on-site
construction supervisor hired to coordinate construction and to
ensure compliance with this Order.
19. The applicant shall submit a construction schedule/sequence
to the NACC detailing the prdposed sequence of work on site to
complete this project.
20. Wetland flagging shall be checked prior to start of
construction and shall be re-established where missing so that
erosion control measures can be properly placed and wetland
impacts can be monitored.
21. A row of staked hay bales backed by a siltation fence shall
be placed between all construction areas and wetlands. The
erosion control barrier will be properly installed and placed on
the plan to be filed and shall be inspected and approved by the
NACC prior to the start of construction and shall remain intact
until all disturbed areas have been permanently stabilized to
#242-627 Lot 15 Carriage Chase 5
prevent erosion. All erosion prevention and sedimentation
protection measures found necessary during construction shall be
implemented p nted at the direction of the NACC.
22 . The applicant shall have on hand at the start of any soil
disturbance, removal or stockpiling, a minimum of. thirty (30) hay
bales and sufficient stakes for staking these bales (or an
equivalent amount of silt fence) . Said bales shall be used only
for the control of emergency erosion problems, and shall not be
used for the normal control of erosion.
23 . A -proper bond or a deposit of money running to the Town of
North Andover shall be provided in the amount of $3, 000.00 which
shall be in all respects satisfactory to Town Counsel, Town
Treasurer, and the NACC, and shall be posted with the North
Andover Town Treasurer before commencement of work. Said bond or
deposit of money shall be conditioned on the completion of all
conditions hereof, shall be signed by a party or parties
satisfactory to the NACC, and Town Counsel, and shall be released
after completion of the project, provided that provision,
satisfactory to the NACC, has been made for performance of any
conditions which are of continuing nature. The applicant may
propose a bond release schedule keyed to completion of specific
portions of the project for the NACC's review and approval. This
condition is issued under the authority of the local Bylaw.
DURING CONSTRUCTION
24 . Upon beginning work, the applicant shall submit written
progress reports every one (1) month detailing what work has been
done in or near resource areas, and what work is anticipated to
be done over the next period. This will update the construction
sequence.
25. Any fill used in connection with this project shall be clean
fill, containing no trash, refuse rubbish or debris, including
but not limited to lumber, bricks, plaster, wire, lath, paper,
cardboard, pipe, tires, ashes, refrigerators, motor vehicles or
parts of any of the foregoing.
26. No exposed area shall remain unfinished for more than thirty
(30) days, unless approved by the NACC.
27 . No regrading in the buffer zone shall have a slope steeper
than 2 : 1 (horizontal:vertical) . Slopes of steeper grade shall be
rip-rapped to provide permanent stabilization.
28. There shall be no stockpiling of soil or other materials
A g
within twenty-five (25) feet of any resource area.
29 . Washings from concrete trucks, or surplus concrete, shall not
#242-627 Lot 15 Carriage Chase 6
be directed to, any drainage system or wetland resource area.
30. All waste generated by, or associated with, the construction
activity shall be contained within the construction area, and
away from any wetland resource area. There shall be no burying
of spent construction materials or disposal of waste on the site
by any other means. The applicant shall maintain dumpsters (or
other suitable means) at the site for the storage and removal of
such spent construction materials off-site.
31. Accepted engineering and construction standards and
procedures shall be followed in the _completion of the project.
32 . Members of the NACC or its agent shall have the right to
enter upon and inspect the premises to evaluate and/or effect
compliance with this Order of Conditions. The NACC reserves the
right to require, following field inspection, additional
information or resource protection measures.
33 . During and after work on this project, there shall be no
discharge or spillage of fuel, or other pollutants into
any wetland resource area. If there is a spill or discharge of
any pollutant during any phase of construction the NACC shall be
notified by the applicant within one (1) business day. No
construction vehicles are to be stored within 100 feet of wetland
resource areas, and no vehicle refueling, equipment lubrication,
or maintenance is to be done within 100 feet of a resource area.
34. In an effort to protect the public water supply, the
landowner will record a permanent deed restriction on the wetland
portion of this lot, which will prohibit any cuttings or
disturbance of vegetation, soils or topography.
AFTER CONSTRUCTION
35. No underground storage of fuel oils shall be allowed on any
lot within one-hundred (100) feet of any wetland resource area.
This Condition shall survive this Order of Conditions, and shall
run with the title of the property. This condition is issued
under the authority of the Town's Wetland Protection ByLaw.
36. Fertilizers utilized for landscaping and lawn care shall be
organic and not greater than 5% nitrogen content, and shall be
used in moderation. Pesticides and herbicides shall not be used
within 100 feet of a wetland resource area. This condition is
issued under the authority of the Town's Wetland Protection
Bylaw. The landowner will record a permanent deed restriction to
ensure compliance with this condition.
37. Upon completion of construction and grading, all disturbed
areas located outside resource areas shall be stabilized
#242-627 Lot 15 Carriage Chase 7
permanently against erosion. This shall be done either by
loaming and seeding according to SCS standards. If the latter
course is chosen, stabilization will beconsideredcomplete once
vegetative cover has been achieved.
38. Upon completion of the project, the applicant shall submit a
letter to the NACC from a Registered Professional Civil Engineer
certifying compliance with this Order of Conditions and the
approved plans referenced herein (or approved revisions) . A
letter from a qualified wetland scientist certifying compliance
with local/state regulations is also required for the wetland
replication/restoration area. A stamped "As-Built"topographic
plan of all areas within the jurisdiction of the Wetlands
Protection Act and Bylaw shall be submitted when a Certificate of
Compliance is requested. This plan will include:
a. "As-Built" elevations and grades of all
filled or altered wetland resource areas.
b. Distances from structures to wetlands.
c. A line showing the limit of work. "Work" includes
any disturbance of soils or vegetation.
39. The following special conditions shall survive the issuance
of a Certificate of Compliance for this project:
33. Discharge or spillage of pollutants.
34. Conservation restriction.
35. Prohibition of storage of fuels underground.
36. Limitations on the use of fertilizers, herbicides
and pesticides.
** This amended Order of Conditions incorporates the December 15,
1993 vote of the Conservation Commission regarding amendments to
Conditions 8 and 13 **
242-627
Lot 15 (421) CarriageChase
i
Issued By North 4doveg Conservation Commission
Signature(s)—
This Order must be signed by a majority of the Conservation Commission.
On this 19TH day of OCTOBER 19 94 before me
personally appeared George Reich . to me known to be the
person described in and who executed the foregoing instrument and acknowledged thathershe executed
the same as his/iter free act and deed.
Notary Public My commission expires
The apolican-,.irie owner,any person aggrieved by this Order,any owner of land abutting the land upon which the oromseo work is to be
cone,or any ten residents of the city or town in which such land is located,are hereby notified of their right to request the Department of
Environmental Protection to issue a Superseding Order, providing the request is made by certified mail or hand delivery to the Department.
with the appropriate filing tee and Fee Transmittal Form as provided in 310 CMR 10.03(7),within ten days from the date of issuance of this
Determination.A copy of the request shall at the same time be sent by Certified mail or hand delivery to the Conservation Commission
and the applicant.
If you wish to appeal this decision under the Town Bylaw, a complaint
must be filed in Superior Court.
Detach on dotted line and submit to the North Andover Conservation Comm. prior to commencement of work.
..................................................................................................................................................................................................................
MA 01845
To North Andover Conservation Commission, 120 Main St. , No. Andover IssungAulnority
Please be advised that the Order of Conditions for the project at Lot 15 (4421) Carriage Chase
;r,le Numoer 242–627 has been recorded at the Registy of Deeds, North Essex and
has been noted in the chain of title of the atfectec prooerty in accordance with General Condition 6 on 1 9
if recorded land. the iRstTument number Which acenciies this transacttorl is
if registered land, the document number which identities this trwsaction is
Sicnawre %+coucant
5-4A
r;
DAvis, MALM& WAGosTnvE
Gi R
A PROFESSIONAL CORPORATION
401-0,A.
ONE BOSTON PLACE ry{{( _ ;
BOSTON,MASSACHUSETTS 02108-4470 a7 UK �j`
55
Julian J.D,Agostine Carol R.Cohen Uts
C.Michael Malm Howard P.Speicher
Harold R.Davis Paul L.Feldman TELEPHONE: 617 367-2500
Frank P.Conrad Kevin F.Long ( )
William F.Griffin,Jr. Peter L.Koff TELECOPItitt:(617)523-6215
Paul E.Levenson Gary M.Feldman
Robert C.Gerrard George A.Hewett
John G.Serino Harold G.Clarke,Jr.
John R.Berman Robert J.Diettrich
Sidney J.Wartel J.Gavin Cockfield
Gary S.Matsko Ellen Donovan McCann
Judith Ashton Thomas S.Fitzpatrick
John T.Lynch Robert E.Richards,Jr,
Grover S.Parnell,Jr. Jennifer L.Wilinsky
Robert J.Galvin Lori H.Freedman
John D.Chambliss
June 30, 1995
HAND DELIVERED
Ms. Joyce Bradshaw, Town Clerk
Town Hall
120 Main Street
North Andover, MA 01845
Re: Kenneth P. Willner, et al. v.
Town of North Andover Planning Board
Dear Ms. Bradshaw:
You are hereby notified pursuant to G.L.c. 40A, Section 17 that the plaintiffs in the
above-referenced action yesterday filed an action in the Land Court appealing the decision of the
North Andover Planning Board, filed with you on June 12, 1995, granting with conditions a
special permit with respect to the plaintiffs' property at Lot 15, Carriage Chase, North Andover.
A copy of the complaint is attached hereto.
Please acknowledge the date of the receipt of this letter on the copy provided as well as
on the original and give the copy to the person delivering this letter.
Very truly yours,
Howard P. Speicher
Enclosures
cc: Kenneth P. Willner
Received:
By:
'• M: ,,,.ter. RECEIVED
s.. taas ,JOYCE BRADSHAW
Any appeal shall be filed •�s....,.`� TOWN CLERK
within (20) days after the ''.9 V NORTH ANDOVER
date of riling of this TOWN OF NORTH ANDOVER
Notice in the Office MASSACHUSETTS JCIL 14 II 24A M,
of the -Lown, Clerk.
BOARD OF APPEALS
NOTICE OF DECISION
Date 7.24. 95
Petition No. 027-95
Date of Hearing June 13
July 11, 1995
Pet tion of Kenneth & Jacqueline Wilner
Premises ?fffected Lot 15 Carriage Chase
Referri^g to the above petition for a variation from the require -eats
oZ Section 4. 133, para, (3) (c) of the 1984 Zoning Bylaw so as
to permit relief of 5 feet for purposes of the construction of
-a- new house in the 25 foot no cut zone to a wetland resource area
in the Watershed District. The applicants also requested a variatio
from Section 7, para. 7. 3 and Table 2 of the Zoning Bylaw so as to
permit relief of 11 feet from the left side setback requirement of
30 feet and relief of 4 feet from the front setback requirement
of 30 feet .
Alfter a public hearing given on the above date, the Board of Aw=e=- =s
votes _o GRANT the VariancAs and hereby
aut cr_ze the Building Inspector to issue a permit to:
Kenneth & Jacaueling Wilner
for t^:e construction of the above work, ffXXX_ X €XXXXXXXXXXX'XXX
cXX��XXXX=XXX
The Board finds that the petitioner has satisfied the provisions of
Section 10, para. 10. 4 of the Zoning Bylaw and that the granting of the:
variances will not adversely affect the neighborhood or derogate from
the the intent and purpose of the Zoning Bylaw.
Board of Appeals ,
Joseph Faris
John Pallone
Robert Ford
Ellen McIntyre
L\t;,�LitLi
JOYCE BSA^ W
- TOWS CLERK
tt RTsovery
ANDOVER
Town of North rnNORTN
OFFI('.E t 24 �r^ ?Oystap Ie`'�OO
`�
3 c
COMMUNITY DEVELI NT AND SERVICES41A
f 1 ^ X
146 Main Street
KENNETH R.MAHONY North Andover,Massachusetts 01845 "Ssgc►+us�t
Director (508)688-9533
Kenneth & Jacqueline Wilner Decision
55 Union Street Petition # 027-95
Boston, MA 02108
The Board of Appeals held a regular meeting on June 13, 1995 and continued until
July 11, 1995 upon the appeal of Kenneth & Jacqueline Wilner requesting a variation
of Section 4.133, para. (3) (c) of the 1984 Zoning Bylaw so as to permit relief of 5 feet
for purposes of the construction of a new house in the 25 foot no cut zone to a wetland
resource area in the Watershed District. The applicants also requested a variation from
Section 7, para 7.3 and table 2 of the Zoning Bylaw so as to permit relief of 11 feet
from the left side setback requirement of 30 feet and relief of 4 feet from the front
setback requirement of 30 feet for a proposed house to be located at Lot 15 Carriage
Chase Road.
The following members were present and voting: Robert Ford, Joseph Faris, Ellen
McIntyre and John Pallone.
The public hearing was advertised in the North Andover Citizen on May 24 and May
31, 1995 and all abutters were notified by regular mail
Motion by Joseph Faris to Grant the Variances as requested, seconded by Ellen
McIntyre. Vote: unanimous. Voting in favor: Robert Ford, Joseph Faris, Ellen McIntyre,
and John Pallone.
The Board finds that the petitioner has satisfied the provisions of Section 10, para.
10.4 of the Zoning Bylaw and that the granting of these variances will not adversely
affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw.
Board of Appeals,
Joseph Faris
Dated: July 24, 1995 John Pallone
Robert Ford
Ellen McIntyre
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Parrino D.Robert Nicetta Michael Howard Sandra Start Kathleen Bradley Colwell
AW
DAVIS, MALM& D'AGOSTINE TOWN C L : ;K
A PROFESSIONAL CORPORATION NORTH ANDOVR
ONE BOSTON PLACE !{�f 'l}0(}[ iy-
BOSTON.MASSACHUSETTS 02108-"70 jUN 39 "'6 AM 'b5
Julian J.D•Agostine Carol R.Cohen
C.Michael Malm Howard P.Speicher
Harold R.Davis Paul L.Feldman
Frank P.Conrad Kevin F.Long TELEPHONE:(617)367-2500
William F.Griffin,Jr. Peter L.Koff TELECOPtER:(617)523-6215
Paul E.Levenson Gary M.Feldman
Robert C.Gerrard George A.Hewett
John G.Serino Harold G.Clarke,Jr.
John R.Berman Robert J.Diettrich
Sidney J.Wartel J.Gavin Cockfield
Gary S.Matsko Ellen Donovan McCann
Judith Ashton Thomas S.Fitzpatrick
John T.Lynch Robert E.Richards,Jr.
Grover S.Parnell, Jr. Jennifer L.Wifinsky
Robert J.Galvin Lori H.Freedman
John D.Chambliss
June 29, 1995
HAND DELIVERY
Charles Trombly, Recorder
Land Court Department
408 Old Courthouse
Boston, MA 02108
Re : Kenneth P. Willner, et al v.
Town of North Andover Planning Board, et al ,
Misc. No.
Dear Mr. Trombly
Enclosed please find an original Complaint for filing in the
above-referenced action. Also enclosed is a check in the amount of
$110 . 00 made payable to Massachusetts Land Court for a filing fee.
Thank you for your attention to this matter.
Very truly yours,
Howard P. Speicher
Enclosure
CC : Kenneth P. Willner
>J:\SPEICHER\WILLNER\CLERK.LETa
t
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss . LAND COURT
MISC. NO.
KENNETH P. WILLNER and
JACQUELINE D. BEST-WILLNER,
Plaintiffs
V.
RICHARD A. NARDELLA, JOHN COMPLAINT
SIMONS, JOSEPH MAHONEY,
ALISON LESCARBEAU and RICHARD
ROWEN, as they are the
members of the PLANNING BOARD
OF THE TOWN OF NORTH ANDOVER,
Defendants
INTRODUCTION
1 . This is an action pursuant to G.L. c . 40A, §17 appealing a
decision of the Town of North Andover Planning Board granting
a special permit with conditions.
PARTIES
2 . Plaintiffs Kenneth P. Willner and Jacqueline D. Best-Willner
are residents of Danvers and are the owners of the property
which is the subject of this action, located at and known as
Lot 15, Carriage Chase, North Andover (the "Property" ) .
3 . The individual defendants are the members of the North Andover
Planning Board. Their names and addresses are as follows :
Richard A. Nardella
63 Haymeadow Road
North Andover, MA 01845
John Simons
25 Ironwood Road
North Andover, MA 01845
Joseph Mahoney
24 Mill Pond
North Andover, MA 01845
Alison Lescarbeau
68 Laconia Circle
North Andover, MA 01845
Richard Rowen
102 Bearhill Road
North Andover, MA 01845
FACTS
4 . The Property, purchased by the plaintiffs in December, 1991,
is an approved subdivision lot located in an R-1 zoning
district and the Watershed Protection overlay district under
the Town of North Andover Zoning By-law (the "By-law") .
5 . The Property is one of several lots approved as the
Marbleridge Estates Subdivision, all of which, except the
Property, have been developed by the construction of single
-2
family dwellings without the Town of North Andover requiring
the issuance of a special permit .
6 . The preliminary subdivision plan for the Marbleridg e Estates
Subdivision was submitted in May, 1984 and was followed within
seven months by the submission of a definitive subdivision
plan. The definitive subdivision plan was approved by the
Planning Board in January, 1985 and the plan was endorsed on
March 13 , 1985 .
7 . Accordingly, pursuant to G.L. c. 40A, §6, the Property is
subject to the Town of North Andover Zoning By-law as it was
in effect at the time of submission of the preliminary
subdivision plan in May, 1984, for eight years from the date
of endorsement of the plan on March 13, 1985 as extended by
the period of any litigation involving the right to develop
the Property, including this action.
8 . The Property was the subject of litigation with the North
Andover Conservation Commission which was commenced prior to
March 13, 1993 and was resolved favorably to the plaintiffs by
a settlement which resulted in the modification of an order of
conditions allowing the plaintiffs to go forward with their
building plans for the Property.
-3-
r
9 . The property is presently the subject other litigation with
the Board and, the Town. Such other litigation is pending in
this Court
10 . Consequently, pursuant to the zoning freeze provisions of G.L.
c . 40A, §6, the Property is subject to the provisions of the
By-law as it was in effect in May, 1984 .
11 . On or about February 11, 1994, at the insistence of Town
officials, the plaintiffs applied to the Planning Board for a
special permit pursuant to the watershed protection district
provisions of the By-law as it was in effect in 1984 in order
to construct a single family dwelling on the Property, while
reserving their right to claim that the special permit is not
required.
12 . Under the By-law, a special permit is required for
construction within 100 feet of a tributary of Lake
Cochichewick. Mr. Willner' s planned construction is within
100 feet of a wetland which is not a tributary of Lake
Cochichewick.
13 . On March 1, 1994, the Planning Board held a duly advertised
public hearing on the plaintiffs , application for a special
permit, The hearing was continued to March 15, 1994, at which
time the hearing was closed and four members of the Planning
-4-
Board, only three of whom had been present at the public
hearing on March 1, voted to deny the special permit .
14 . The Planning Board' s decision was filed with the town clerk on
March 29, 1994. That decision is the subject of other
litigation now pending in this Court .
15 . In the course of the other litigation now pending in this
Court, the parties contemplated and negotiated a compromise
and settlement which would allow the plaintiffs to go forward
with the construction of the dwelling they had proposed for
the Property. The settlement contemplated and required, among
other things, the granting of three variances by the North
Andover Board of Appeals
16 . On June 6, 1995 the Board held a public hearing on the
plaintiff' s request for a special permit which would implement
the terms of the settlement between the parties int he earlier
litigation.
17 . At the hearing, the Board approved a special permit, subject
to conditions. The Board' s written decision was dated June 9,
1995 and was filed with the Town Clerk on June 12, 1995. A
true and attested copy of the decision is attached hereto.
-5-
CLAIM FOR RELIEF - G.L. c. 40A, 517
18 . Plaintiffs reallege and incorporate as if stated herein the
allegations contained in paragraphs l through 17 of the
Complaint
19 . The approval of the special permit by the Planning Board with
conditions was an abuse of the Planning Board' s discretion,
exceeded the Planning Board' s authority and was on grounds
that are legally untenable, unreasonable, whimsical, and
arbitrary and capricious for the reason that the special
permit was made subject to conditions which tied its validity
to approval by other town boards and agencies, in particular
the Board of Appeals, and for other reasons.
20 . There was no evidence from which the Planning Board could
reasonably find that the wetland on the Property is a
tributary of Lake Cochichewick.
21 . The Planning Board arbitrarily and capriciously applied the
Watershed Protection District provisions of the By-law to the
Property. On information and belief, neither the Town of
North Andover nor the Planning Board required the issuance of
a special permit for the similarly situated adjacent and
nearby lots on which construction has occurred within one
hundred feet of the same wetland resource as the one on the
-6-
Property. Similarly, no special permit was required, and a
building permit was issued for construction on the Property
before it was purchased by the plaintiffs.
22 . The plaintiffs are aggrieved by the decision of the Planning
Board.
WHEREFORE, the plaintiffs request that the Court grant the
following relief :
1 . Hear the evidence and annul the conditions on the granting of
the special permit found in the decision of the Planning
Board;
2 . Enter judgment ordering the issuance of the requested special
permit without conditions;
3 . In the alternative, issue a judgment declaring that pursuant
to the By-law as it affects the Property, the plaintiff is
entitled to construct a single family dwelling as proposed as
a matter of right without any requirement for the issuance of
a special permit; and
-7-
5 . Such other relief as the Court deems just and proper.
KENNETH P. WILLNER and
JACQUELINE D. BEST-WILLNER,
By their attorney,
Howard P. cher/BBO#474380
DAVIS, MALM & D-AGOSTINE, P.C.
One Boston Place
Boston, MA 02108
Dated: June 28, 1995 (617) 367-2500
JASPE ICHERMI LLNEMCOMPLNT2.P8
-8-
P�AM�IHG 80A80 JOYCE BCiVEO
� CLERK W
TOWN OF NORTH AN DOVE RNORTNTOWN ANDOVER
H A S S A C H U SETTS
Any appeal sha!l be filedNORTH SUN �2 I 1.7 P�
within (20) days after the
o
41
date of filing of this Notice
R
in the Office of the Town ;�•...... �5'
SSACMUSE'
Clerk.
NOTICE OF DECISION
ATTEST'
.i ES i
A True Copy
"Or a&o - Date. .
June 9. 1995 . . . . . . . . . . . . .
Town ClerkDate of Hearing , June. 6.,. 1995.
Kenneth P. Willner and Jacqueline Best-Willner
Petitionof . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Carriage Chase
Premises affected . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a special permit from the requirements
North Andover Zoning BylawSection 133 Paragraph (3). . .(d) as in .effect
of the • • . •
in 1984.
so as to p d .4114;y.tbe.Caustruction.Qf .a .single .Eamily .dwelling -and -related
improvements within the Watershed Protection District.
After a public hearing given on the above date, the Planning Board voted
conditionally
rove SPECIAL PERMIT
to a EQ . . . . . . . .the . . . . . . . . . . . . . .
CC: Director of Public works based upon the following conditions
Building Inspector
Natural Resource/Land Use Planner
Health Sanitarian
Assessors Signed n
Police Chief
airman
Fire Chief Joseph . .. . . .ahoney.. . ... .. .. . . . . . . .
Applicant
. Richard Rowen, Vice Chairman
Engineer • '
. .
File
Interested Parties Alison•Lescarbeau, Clerk
• . • _ .•
Richard A. Nardella
John Simons
• • . . . .planning .Board. .. . . . . .
Town of North Andover , „oRT►, 1
OFFICE OF
COMMUNITY DEVELOPMENT AND SERVICES p
146 Main Street "SsgcMus�`�5
KENNETH R.MONY North Andover,Massachusetts 01845
Director (508)688-9533
June 9, 1995
Ms. Joyce Bradshaw
Town Clerk
120 Main Street
North Andover, MA 01845
Re: - Special Permit - Watershed Protection District
Lot 15 (#15) Carriage Chase
Dear Ms. Bradshaw:
The North Andover Planning Board held a public hearing on
Tuesday evening, June 6, 1995 in the Senior Center behind the Town
Building, upon the application of Kenneth P. Willner and Jacqueline
Best-Willner, 55 Union Street, Boston, MA 02108 requesting a
Special Permit under Section 133, Paragraph (3) (d) of the Zoning
By-law as in effect in 1984. The legal notice was properly
advertised in the North Andover Citizen on May 17 and May 24, 1995
and all parties of interest were duly notified. The following
members were present: Joseph Mahoney, Chairman, Richard Rowen,
Vice Chairman, Alison Lescarbeau, Clerk, Richard Nardella and
Alberto Angles, Associate Member.
The petitioner was requesting a special permit to allow the
construction of a single family dwelling and related improvements
in the Watershed Protection District.
Ms. Lescarbeau read the legal notice to open the public
hearing.
Atty. Howard Speicher Was present representing the Willner's.
Ms. Colwell stated that there was concern over the drainage system
and where the water will flow. The applicant added a drainage
system to handle stormwater.
Awaiting certification that the plan addresses all issues regarding
quality of water entering the lake.
On a motion b . e
y MsLescarbeau, seconded. by Mr. Rowen, the Board
-
voted unanimously to close the public hearing.
BOARD OF APPEALS 688-9541 BLMJ)ING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Parrino D.Robert Nicetta Michael Howard Sandra Starr Kathleen Bradley Colwell
At the same meeting, on a motion by Mr. Rowen, seconded by ,Ms.
Lescarbeau, the Board voted unanimously to approve the special
permit as written and amended.
Attached are those conditions.
sincerely,
North Andover Planning Board
(Joseph Mahoney, airman
Lot 15 Carriage Chase
Special Permit Watershed Protection District
The Planning Board grants this special permit under Section 133,
Paragraph (3) (d) of the Zoning Bylaw in effect in 1984, for the
purpose of allowing construction of a dwelling and related
improvements in the Watershed Protection District, on land known as
Lot 15 Carriage Chase, owned by Kenneth P. Wilner and Jacqueline D.
Best, 55 Union Street, Boston, MA 02108 The granting of this
special permit is in accordance with the settlement of
Massachusetts Land Court Mise. No. 205479.
FINDINGS OF FACT:
1. The lot was created as part of the Marbleridge Subdivision.
The preliminary subdivision plan was filed in the Spring of
1984 . The preliminary plan was followed by a definitive plan
which was approved by the Planning Board on January 8, 1985.
The plans were endorsed on March 13, 1985. As such, the
property herein is considered subject to the North Andover
Zoning Bylaw as it was in effect at the time of submission of
the preliminary subdivision plan in May of 1984 for eight
years from endorsement of the plan on March 13, 1985 as
extended by the period of any litigation involving the right
to develop the property.
2. The property was the subject of litigation with the North
Andover Conservation Commission which commenced prior to March
13 , 1993 and was resolved favorably to the plaintiffs by a
settlement. Therefore the property herein is considered
subject to the North Andover Zoning Bylaw in effect in May of
1984 .
3 . Under the 1984 North Andover Zoning Bylaw, no construction may
occur one hundred (100) feet horizontally from the edge of al
tributaries, except by Special Permit issued by the Planning
Board.
Upon reaching the above findings, the Planning Board approves this
Special Permit for the construction of a single family home within
one hundred (100) feet horizontally from the edge of a tributary
based upon the following conditions:
SPECIAL CONDITIONS:
1. This decision must be filed with the North Essex Registry of
Deeds. The following information is included as part of this
decision:
Plan of Land in No. Andover, MA
Scale: 1" = 20'
i
Hayes Engineering, Inc.
603 Salem Street
Wakefield, Mass 01880
August 18, 1993; last revision date 5/1/95
Any changes made to these plans shall be approved by the Town
Planner. Any changes deemed substantial by the Town Planner
will require a public hearing and modification by the Planning
Board.
2. Prior to any work on site:
a. The applicant must submit to the Planning Department
written certification by a Registered Professional
Engineer, or, other scientist educated in and possessing
extensive experience in the science of hydrology and
hydrogeology, stating that no significant degradation of
the quality or quantity of water in or entering Lake
Cochichewick will occur as a result of the development of
this lot.
b. The applicant must submit a statement that there is no
reasonable alternative location outside the one hundred
(100) foot no-construction zone for the structure.
C. A performance guarantee of two thousand ($2,000) dollars
in the form of a check made out to the Town of North
Andover must be posted to insure that construction will
take place in accordance with the plans and the
conditions of this decision. This will also insure that
an as-built plan will be submitted.
d. All erosion control measures as shown on the plan
including hay bales and silt fence must be in place and
reviewed by the Town Planner. All work on the site will
be monitored by the Planning Office and/or the Division
of Public Works on a regular basis
e. The site shall have received all necessary permits and
approvals from the North Andover Conservation Commission,
Board of Health, the Zoning Board of Appeals, and the
Department of Public Works
3 Prior to FORM U verification (building permit issuance)
a. All plans for the tie-in to the municipal sewer must be
reviewed and approved by the Division of Public Works.
4. Prior to Planning Board verification of the Certificate of
Occupancy:
a. The roof drains and stone trench must be constructed as
2
shown on the plan.
b. The stone masonry retaining wall must be constructed as
shown on the plan and reviewed by the Town Planner.
5. Prior to release of the Performance Bonds
a. The applicant shall submit a certification by either a
Registered Professional Land Surveyor or Practicing
Engineer that the site has been constructed in accordance
with the approved plan.
b. The Planning Board must by a majority vote make a finding
that the site is in conformance with the approved plan
and that any unforeseen circumstances have been
adequately addressed by the applicant.
6. Upon conveyance of the property by the current owner, the deed
must contain language restricting the area of maintained lawn
to those areas outside of the proposed stone masonry wall as
shown on the plan. Areas between the stone masonry wall and
the wetland resource area are to remain in their natural
state.
7. Fertilizers utilized for landscaping and lawn care shall be
organic and not greater than 5% nitrogen content, and shall be
used in moderation. Pesticides and herbicides shall not be
used within 100 feet of a wetland resource area.
8. In no instance shall the applicants proposed construction be
allowed to further impact the site than as proposed on the
plan referenced in Condition # 1.
9. No open burning shall be done except as is permitted during
burning season under the Fire Department regulations.
10. The Contractor shall contact Dig Safe at least 72 hours prior
to commencing excavation.
11. The provisions of this conditional approval shall apply to and
be binding upon the applicant, it's employees and all
successors and assigns in interest or control.
12 . This permit shall be deemed to have lapsed after a two (2)
year period from the date on which the Special Permit was
granted unless substantial use or construction has commenced.
Therefore the permit will expire on U'U11c, /-?A /997
CC. Director of Public Works
Building Inspector
Health Agent
Assessor
3
Conservation Administrator
Police Officer
Fire Chief
Applicant
Engineer
File
Carriage.settle
4
DAVIS, MALM & D'AGOSTINE P.C. BANKOF BOSTON 0002019
ONE BOSTON PLACE THE FIRST NATIONAL BANK OF BOSTON
BOSTON, MA 02108 NO.
5-39/110
DATE AMOUNT
06--28 95 $110. 00
PAY01111:_ HUhl.Dltl::.' OND (00/1.00 DC71..1_ARS
TO THE
ORDER NE ACCOUNT
OF Lc1T7CE t.(�Rl'f
11900 20 i 9u'
1--O "0003904- S01,-61207111
L
i
•
r'
TOWN OF NORTH ANDOVER
MASSACHUSETTS
PLANNING BOARD
APPLICATION FOR SPECIAL PERMIT
NOTICE: This application must be typewritten
Kenneth P . Willner and 55 iJnion St
Applicant: Jacqueline D. Best- Address: Bosfon, MA � g�8
Willner
1. Application is hereby made
(a) For a Special Permit under Section4, 1 13 , Paragraph(344-d)
of the Zoning Bylaw.* *as in effect in 1984
2 . (a) Premises affected are land and buildings
numbered15 (lot 15) ZT)t3tXJM Carriage Chase
(b) Premises affected are property with frontage on th,�
North South X East West side oi
Carriage Chase . SX iktA, known as No. 15 (lot 15) Carriage
Chase A-Jrn�X
(c) Premises affected are in Zoning District Rl arj
the premises affected have an area of 44 , 075
and frontage of 150. 05 feet.
3 . Ownership:
(a) Name and Address of owner (if joint ownership, give al !
names) :
Kenneth P . Willner and Jacqueline D. Best-Willner
Date of purchase 12/31/91 Previous ownelMarbleridge Dv�g
(b) If applicant is not owner, check his interest in the rp'
premises:
Prospective purchaser
Leasee
Other (explain)
4 . Size of proposed building: 128 front: 3R feet deer
Height: 2 stories: 35 feet.
(a) Approximate date of erection Spring, 1994
(b) Occupancy or use (of each floor)Single Family Residential
(c) Type of construction Wood Frame
5 . Size of Existing Building: r_,.. feet front: feet deet.
Height: stories feet.
(a) Approximate date of erection
(b) Occupancy or use (of each floor)
i
6. Has there been a previous application for a Special Permit
from the Planning Board on these premises? unknown
If so, when
7 . Description of purpose for which Special Permit is sought on
this petition: See attached
8. Deed recorded in the Registry of Deeds in Book3377 Page 261
or Land Court Certificate No. Book Page
9 . The principal points upon which I base may applicacion are
as follows: (must be stated in detail) .
See attached
I agre to pay for advertising in newspaper and postage fee for
mail leg ce to "P ies iIn r t"
AJ
(P it' oner' s Signature)
Every application for action by the Board shall be made on a form
approved by the Board. These forms shall be furnished by the
Clerk upon request. Any communication supporting to be an
application shall be treated as mere notice of intention to seek
relief until such time as it is made on the official application
form. All information called for by the form shall be furnished
by the applicant in the manner therein.
Every application shall be submitted with a list of "Parties in
Interest" which shall include the petitioner, abutters, owners of
land directly opposite on any public or private street or way and
abutters to the abutters within three hundred (300) feet of the
property line all as they appear on the most recent applicable
tax list, notwithstanding that the land of such owner is located
in another city or town, the Planning Board of the Town and the
Planning Board of every abutting city or town.
LIST OF PARTIES IN INTEREST
NAMES ADDRESS
See Attached
Add additional sheets if necessary
Any question should be directed to the Planning Office
4
LIST OF PARTIES OF INTEREST
SUBJECT PROPERTY
MAP PARCEL LOT NAME ADDRESS
ABUTTERS
ADDRESS
MAP PARCEL LOT NAME
See At ached H stin
ATTACHMENT SPECIAL PERMIT APPLICATION
FOR LOT 15 CARRIAGE CHASE
The applicants seek approval of a special permit
from provisions of the Zoning By-law as it was in effect in
1984 , pursuant to the zoning freeze provisions of Massachusetts
General Laws, chapter 40A, Section 6. Specifically, the applicants
request the issuance of a special permit for construction of a
dwelling in accordance with Section 4 . 133 (3) (d) , the Watershed
Protection district, as in effect in 1984 ,,
The conditions for the granting of the special permit are met
and the special permit should be granted for the following reasons:
A. The specific site is an appropriate location for the use,
structure or condition. The site is presently in an R-1 single
family residential zoning district. The proposed use and structure
is a single family dwelling consistent with the allowed uses in the
district. The property is also in the Watershed Protection overlay
district and as such is subject to the special permit requirements
of the By-law if the proposed construction is within 100 feet of a
tributary of Lake Cochichewick.l The proposed dwelling is located
as far as is practically possible on the site from the wetlands on
the site. There is no location on the property where the dwelling
could be constructed without being within the 100 foot buffer zone
from the wetlands.
B. The use as developed will not adversely affect the
neighborhood. The single family use proposed for the property is
consistent with the single family character of the neighborhood and
will not adversely affect the neighborhood in any way. Conditions
on the development of the property contained in the Order of
Conditions issued for the property by the North Andover
Conservation Commission further assure that there will be no
_ adverse impact or effect on the
mons t construction ighrhood or on on and huse rof kthe
ing
water supply as a result of
property.
1 The applicants take the position that the property is not
subject to the Watershed Protection provisions of the By-law on the
ground that the wetlands on the property e r the applicants"tributary"
By-law.
Therefore,
within the meaning of the y ermit and the
the position that the granting of the special p lawful
� 4 . 133 (3) c is not necessary for the lata
variance from Section ( ) licants have agreed
construction of the proposed dwelling. Thermitt but reserve their
to apply for the variance and special p
rights regarding this matter.
ATTACHMENT SPECIAL PERMIT APPLICATION
FOR LOT 15 CARRIAGE CHASE
The applicants seek approval of a special permit
from provisions of the zoning By-law as it was in effect in
1984 , pursuant to the zoning freeze provisions of Massachusetts
General Laws, chapter 40A, Section 6. Specifically, the applicants
request the issuance of a special permit for construction of a
dwelling in accordance with Section 4 . 133 (3) (d) , the Watershed
Protection district, as in effect in _19840
The conditions for the granting of the special permit are met
and the special permit should be granted for the following reasons:
A. The specific site is an appropriate location for the use,
structure or condition. The site is presently in an R-1 single
family residential zoning district. The proposed use and structure
is a single family dwelling consistent with the allowed uses in the
district. The property is also in the Watershed Protection overlay
district and as such is subject to the special permit requirements
of the By-law if the proposed construction is within 100 feet of a
tributary of Lake Cochichewick.1 The proposed dwelling is located
as far as is practically possible on the site from the wetlands on
the site. There is no location on the property where the dwelling
could be constructed without being within the 100 foot buffer zone
from the wetlands.
B. The use as developed will not adversely affect the
neighborhood. The single family use proposed for the property is
consistent with the single family character of the neighborhood and
will not adversely affect the neighborhood in any way. Conditions
on the development of the property contained in the Order of
Conditions issued for the property by the North Andover
Conservation Commission further assure that there will be no
adverse impact or effect on the neighborhood or on the drinking
water supply as a result of the construction on and use of the
property.
1 The applicants take the position that the property is not
Watershed Protection provisions of the By-law on the
subject
to the Water
J ground that the wetlands on the property are not a "tributary"
within the meaning of the By-law. Therefore, the applicants take
the position that the granting of the special permit and the
variance from Section 4 . 133 (3) (c) is not necessary for the lawful
construction of the proposed dwelling. The applicants have agreed
to apply for the variance and special permit but reserve their
rights regarding this matter.
C• There will be no
Pedestrians- nuisance nc
a
ns e
or
serious r '
The sous
roadway proPert hazard to vehicles or
y and will Y is located on an approved subdivision
with the d will
subdivision used for a single famil
kion approval. Y dwelling in accordance
D• Adequate and appropriate Proper facilities
p ,ration of the will be
the benefit of proposed use. Provided for
town water and sewer facilities, property will have
the watershed
system, from the adverse effects of thereby protecting
Burin The property will also the use of
g construction asbe subject to other a Septic
These include the c as provided tion of for
oe protections
edge of theOrder of Conditions.
wetlands on the pro ert retaining wall 20 feet
cutting, grading or other p Y► a restriction from the
and the addition of activities within 20 against any
and the watershed. a pond which will be beneficial to the wetlands
the wetlands
E. The use is in harmony
Of the By-law. y with the general
Of the g The purpose of the Watershed Protection and intent
By-law is to protect the integrity Provisions
a supply of drinking water, g Y of Lake Cochichewick as
Proposal before the That purpose is amply protected by the
any, is arguable and is ads a tributar �► involvement of the
time, Y of Lake Cochichewick, if
the proposal best marginal in an
wetlands o affords more than Y Case. At the same
I part of the water property to the extent that they protection to the
Of r water supply. Standard Y function at all as
Y bales, will be taken precautions, such as the use
construction to facilitate erosion control.rotect the
been taken for wetlands during
These protection of the watershed ther Precautions have
include a prohibition a construction.
of town water and sewer facilities
underground fuel storage;
a Well or septic Y , thereby avoidingg use
Pesticides
and herbicides a prohibition the need for
requirement within against the use of
that only100 feet of the wetlands; a
content be used • organic fertilizers with a
the integrity and construction of a low nitrogen
Y of the 20 foot retaining wall to protect
Provisions specified in the Orderlofu Conditions bance zone as Well as other
-2-
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jt-1ST OF PARTIES OF INTEREST
I
i SUBJECT PROPERTY
t MAP ]PARCEL 'LOT (NAME (ADDRESS
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1 ABUTTERS
'MAP !PARCEL ;LOT INAME JADDRESS '
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TOWN OF NORTH ANDOVER $-al;
MASSACHUSETTSI� � DOVER
oer It�a�! '
OiNao �'�qO }YS .
Any appeal shell be filed
within (20) days after the
date of filing of this Notice
NOTICE OF DECISION
in the Office of the Town
Clerk.
Date. March. 29, 1994
' Ma'rbh' I','1Y)4' ' .
March 15, 1994
Date of Hearing . . . . . . . . . . . . . . . . .
Petition of . Kenneth P. Willner
Premises affected . , Lot .15 Carriage .Chase , . . . . . . . . . . . . . . . .
Referring to the above petition for a special permit from the requirements
of the North Andover Zoning BYlaw Section 4.133, as in effect .in .1984 ' . .
So as to permit ,the .construction .of a.dwelling .within.100 .feet.of ,a.wetland. .
After a public hearing given on the above date, the Planning Board voted
DENY to . . . . . . . . . . . . . . . .the . .SPECIAL.PERMIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
based upon the following conditions:
Signed A&&w— a- /tkf'r'
CC: Director of Public Works Richard A. Nardella, Chairman
Building Inspector . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .
Conservation Administrator John Simons, Vice Chairman
Health Sanitarian
Assessors Joseph Mahoney, Clerk
Police Chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .
Fire Chief John Daghlian
Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Engineer
File ' ' ' ' ' ' ' 'Planning Board
Interested PArties
NONrN
KAREN H.P.NELSON o
Director Town of 120 Main Street, 01845
Y° NORTH ANDOVER (508) 682-6483
BUILDING ; `�:i:a;�.,sm
CONSERVATION ,8s'°��9`t DIVISION OF
HEALTH
PLANNING PLANNING & COMMUNITY DEVELOPMENT
March 29, 1994
Mr. Daniel Long,
Town Clerk
Town Building
120 Main Street
North Andover, MA 01845 Re: Special Permit Watershed
Protection District - Lot 15
Carriage Chase
Dear Mr. Long:
The North Andover Planning Board held a public hearing on
March 1, 1994, in the North Andover Senior Center, behind the Town
Building upon the application of Kenneth P. Willner, requesting a
Special Permit under Section 4. 133 of the North Andover Zoning
Bylaw as in effect in 1984, so as to permit the construction of a
dwelling in the Watershed Protection District on the premises
located at #15 (Lot 15) Carriage Chase. The legal notice was
properly advertised in the North Andover Citizen and all parties of
interest were duly notified. The following members were present:
Richard Nardella, Chairman, Joseph Mahoney, Clerk, Richard Rowen
and John Daghlian. John Simons was absent.
Howard Speicher, attorney for the Willners:
settlement with Conservation Commission
concern about placement of house on the lot, moved house
as far as possible from wetland
need a side yard and front yard variance
creating a pond
on Town water and sewer
20 ' no disturbance zone
Ms. Colwell - Construction is entirely within 100' non-
disturbance zone. Board has never approved a house within non-
disturbance zone and should deny application.
Discussion of Conservation commission settlement. Board needs
statement from Conservation Commission as to their position on this
project for the next meeting.
Mr. Perna - Beaver dam has caused increase in the wetland
area, additional pond created, therefore extra wetlands.
Page 2 :
Lot 15 Carriage Chase
Attorney Speicher Plan does everything it can to protect the
watershed.
Mr. Nardella asked the Board if they wanted to consider this.
Mr. Mahoney would like to have time to review the plans.
Mr. Perna suggested the Board take a site walk.
Mr. Daghlian was not comfortable with construction that close
to the watershed.
Continue to March 15, 1994
Mr. Robert Nicetta, Building Inspector:
Zoning Board of Appeals will not act until the Planning Board
makes a decision.
Mr. Nardella not in favor of approving this and would be
willing to vote on this tonight.
Attorney Speicher believes that they do not need a Special
Permit because wetland is not a tributary to Lake Cochichewick.
willing to submit to some conditions
applicants are addressing all of the issues related to
the Watershed Protection District.
Mr. Nardella:
Need an opinion in writing from the Conservation
Commission, not the Conservation Administrator, regarding
their position.
Mr. Willner Conservation Commission has approved this with
20' no cut zone and retaining wall.
On a motion by Mr. Mahoney, seconded by Mr. Rowen, the Board
voted to continue the public hearing to March 15, 1994.
Mr. Rowen wants to walk the site with the Conservation
Commission.
On March 15, 1994 the Planning Board held a regular meeting.
The following members were present: Richard Nardella, Chairman,
John Simons Vice Chairman, Joseph Mahoney, Clerk, and John
Daghlian. Richard Rowen was absent.
Mr. Mahoney read a memo from the Conservation Commission to
the Planning Board.
Page 3:
Lot 15 Carriage Chase
Mr. Nardella asked if there was any way to reconfigure house
to better fit on the lot?
Mr. Willner told Mr. Nardella he did reorient the house.
Mr. Simons:
lot is now in area with 2 acre zoning
require 75% CBA
large house for the lot
not willing to approve it
Mr. Nardella asked if there was anything the Board could
suggest to create an acceptable lot.
There was no comment.
Attorney Mark Johnson:
none of the other houses in the subdivision were required
to obtain a special permit in 1984
building permit was issued on the site in 1986
Willners bought the lot with the understanding that it
was a buildable lot
Mr. Michael Kasabuski, developer:
He was allowed to affect wetlands in that subdivision
without a permit
states that standing water was required for a wetland
Nicholas Petrucci, 56 Castlemere and John Pollano, 10 Carriage
Chase both support the application.
Attorney Johnson:
applicant is protecting existing wetlands on site
creating more wetlands
On a motion by Mr. Simons, seconded by Mr. Mahoney, the Board
voted to close the public hearing.
Mr. Mahoney made a motion to approve the special permit.
There was not second.
On a motion by Mr. Simons, seconded by Mr. Daghlian, the Board
voted to deny the special permit. The Chairman voted in the
affirmative. Mr. Mahoney voted in the affirmative.
Staff to draft denial. Mr. Simons to review prior to filing.
Page 4:
Lot 15 Carriage Chase
Attached are the reasons for denial.
Sincerely,
North Andover Planning Board
Rtr-&t-Z a -�Ca,4 a-
Richard A. Nardella,
Chairman
attachment
cc: Director of Public Works
Building Inspector
Conservation Administrator
Health Sanitarian
Assessors
Police Chief
Fire Chief
Applicant
Engineer
File
LOT 15 CARRIAGE CHASE
KENNETH P. WILNER/JACQUELINE BEST-WILNER
WATERSHED PROTECTION DISTRICT SPECIAL PERMIT
The Planning Board herein DENIES the Special Permit requested by
Kenneth P. Wilner and Jacqueline D. Best-Wilner, 55 Union Street,
Boston, MA 01208, dated February 11, 1994, for the construction
of a single family dwelling within 100 feet of the edge of a
wetland resource area (tributary) of the Watershed Protection
District.
FINDINGS
This lot was created as part of the Marbleridge Estates
Subdivision. The preliminary plan for the subdivision was filed
in May of 1984 with a definitive plan filed in October of 1984.
The plan was subsequently approved in January of 1985 and the
plans endorsed on March 13, 1985.
This lot has never been developed thus the question arose of
which zoning bylaw should be applied to the special permit
request. The Board determined that although eight years has
passed since the endorsement of the plans, litigation with the
Conservation Commission may have tolled the running of this time
period. (Kenneth P. Wilner v. George P. Reich, et al. Essex
Superior Court C.A. No. 93-0126)
However, as the litigation is unresolved, the Planning Board was
unable to establish definitively, pursuant to M.G.L. Ch. 40A,
Sec. 6, which zoning bylaw to apply. If the litigation is
finally adjudicated "in favor" of the Wilners, the Wilners may be
able to assert that the 1984 zoning bylaw should apply. However
if the litigation is finally adjudicated "in favor" of the Town,
the current zoning bylaw will apply.
Due to the unresolved litigation, the question of which zoning
bylaw to apply was unanswered at the time of the public hearing.
Therefore the Planning Board considered the application under the
principles of both bylaws.
1. Both bylaws create a no-construction zone within one hundred
(100) feet from the edge of all wetlands ("tributaries"
1984) ("wetland resource area" 1993) as a mechanism for
protecting the Town's water supply.
Both bylaws allow for construction within this zone if a
special permit is granted by the Planning Board. However, a
special permit to construct is not granted unless the Board
finds that the project will not be detrimental to the
quality of the water supply. The Board finds that
construction of a home and driveway entirely within the no-
1
construction zone is detrimental to the quality of the water
supply.
2. Both the 1984 and the current Watershed Protection District
Bylaw have the same purpose. Both bylaws are
"intended to preserve and maintain the filtration and
purification function of the land, the ground water table,
the purity of the groundwater and the lake, to conserve the
natural environment, and to protect the public health,
safety, and welfare. " ZBL 4. 133 (1) 1983; ZBL 4.236(1) 1993 .
The Planning Board finds that the construction of a single
family home entirely within the 100 foot no construction
zone would adversely affect the filtration and purification
function of the land, the ground water table, the purity of
the groundwater and the lake, and the natural environment.
3 . Under both bylaws the Planning Board "shall not" approve any
application for a Special Permit unless the Board finds in
its judgment that all of the required conditions are met.
ZBL 10.31(1) 1984, 1993. These conditions are as follows:
a. The Board finds that the specific site is not an
appropriate location for the construction of a single
family home, driveway, and associated changes to the
landscape. As stated in the Lake Cochichewick
Watershed Plan (1987) p. 72, development in the
watershed leads to increased nutrient loading and urban
stormwater runoff. The Plan recommends limiting
development to the least sensitive areas and mitigating
water quality degradation as important factors in
protecting the future of the lake. This project is
entirely within the most, sensitive section of the
watershed and no mitigating measures have been
presented..
b. The Board finds that construction of a single family
home, driveway, and associated land changes in this
location will adversely affect the neighborhood.
Erosion of soils in areas of new construction is one of
the primary sources of elevated suspended solids,
nutrient and bacteria concentrations in the Lake. "Lake
Cochichewick Watershed Plan" (1087) , p. 72. The entire
project is located within the 100 foot "no construction
zone" Absent a showing to the contrary, the erosion
of soil due to the new construction will affect the
quality of the, lake.
C. The Board finds that there will be no nuisance or
serious hazard to vehicles or pedestrians.
d. The Board finds that adequate and appropriate
2
f
other scientist similarly educated) that the quality
and quantity of the water in or entering Lake
Cochichewick will not be significantly degraded as
required in Section 4.136(7) (c) of the Town of North
Andover Zoning Bylaw (May 1992) .
d. The applicant failed to demonstrate that all on-site
preparation including but not limited to, construction,
wastewater disposal, and fertilizer applications will
not create concentrations of Nitrogen in groundwater,
greater than the federal limit of 10 mg/Liter at the
down gradient property boundary as required by Section
4 . 136(7) (d) (2) of the Town of North Andover Zoning
Bylaw (May 1992) .
e. The applicant has failed to provide the Planning Board
with projections of down gradient concentrations of
nitrogen, phosphorus and other relevant chemicals at
property boundaries as required by Section
4 . 136(7) (d) (3) of the Town of North Andover Zoning
Bylaw (May 1992) .
CONCLUSION
Given the above findings the Planning Board voted to DENY the
applicant's request for a special permit.
The following plan shall be deemed part of the denial:
Plan of Land in North Andover, MA
Scale: 1" = 20'
Date: August 18, 1993;
rev. 12/13/93, 12/15/93, 12/17/93, 12/28/93
Prepared by: Hayes Engineering, Inc.
603 Salem Street
Wakefield, MA 01880
cc: Director of Public Works
Building Inspector
Health Administrator
Assessors
Conservation Commission Administrator
Police Chief
Fire Chief
Applicant
Engineer
File
Lot15.CarriageChase
4
facilities have not been provided for the proper
operation of the proposed use. Construction of a
single family home will affect the- quality of the lake.
As stated in Finding 4 below, no information has been
provided demonstrating that the operation of the
proposed use will properly protect the Watershed.
e. The Board f inds that in the absence of a showing that
the Watershed will be protected, the construction of a
single family home within 100 feet of the edge of a
wetland area within the non-disturbance zone of the
Lake Cochichewick Watershed Protection District is not
in harmony with the general purpose and intent of this
bylaw.
The Planning Board finds that the applicant meets only one of the
five conditidns that must be met prior to the issuance of a
Special Permit.
4. The Watershed Protection District bylaw was amended in 1988
as a result of a study conducted on the watershed of Lake
Cochichewick. Many of the policies followed by the Planning
Board under the earlier bylaw were codified at this time.
Thus, although these standards are not specifically stated
in the 1984 bylaw, they had been considered by the Planning
Board when enforcing the bylaw. Thus the Board also
considered the requirements of the current bylaw in its
review of this application.
a. The Planning Board makes the specific finding as
required under section 4. 16(7) (c) of the current bylaw
that the proposed use in conjunction with other uses
nearby will cause a significant degradation in the
quality and quantity of water in or entering Lake
Cochichewick.
b. The proposed construction is within 100 feet of the
edge of a watershed wetland. As such, the applicant
must take steps to insure that any runoff from
impervious surfaces (other than driveways, rooftops,
walkways and patios servicing single family dwellings)
shall, to the extent possible, be recharged on site and
diverted toward areas covered with vegetation for
surface infiltration. Where this is not possible, other
mitigating measures such as sedimentation ponds shall
be used after approval by the appropriate Boards as
listed in Section 6(b) of the Zoning Bylaws. The
applicant did not present any proof to the Planning
Board of any mitigation measures.
C. The applicant failed to provide at a minimum, a written
certification by a registered Professional Engineer (or
3
3 0
RE ivLl)
r . DANIEL L 3NG
IL TOWN CLUIK
NORTH A flvER
�a
CHU
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Date gbruary, .!4, . 199A . .. . . . . .
Petition No.. . D.Q8-94. . . . . . . . . . . . .
Date of Hearing. . .I�ebx'uary. .8. . 1994
Petition of . . . . .Kenneth .P. WiUner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Premises affected . 15. Carriage. .Chase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Special Permit
Referring to the above petition for a XAMM from the requirements of)EM Section .4-133'.
Paragraph, .0) M. of, ,the, Zoning,Bylaw An.effect ,in, 1984 . . . . . . . . . . . . . . . . . . . . . . . . . .
so as to permit .construction. of. .a .dweil.ing,in, ,the waterahed ,no-ds.turbence, zgne,. .
After a public hearing given on the above date, the Board of Appeals voted to . ALLOW. . . . . the
PREJUDICE.
PETITIONER .TO.WITHDRAW.WITHOUT. .YMM
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signed
��4
. . . . . . . . . . .Frank .Serio,. Jr..,
. . . . . . . . . . .Walter. .Soule.,. Clerk. . . . . . . . . .
. . . . . . .Raymond .VivenziQ . . . . . . . . . . . .
. . . . . . . .Robert .Ford. . . . . . . . . . . . . . . . .
John .P.allone. . . . . . . .
Board of Appeals
Any appeal shall be f"ad
within (20) days after tle
N , lit4
E ORTH TOWN C l i_iM
'?t2 of filing of tats ��� ,. 3?OtT` "00 RTHtiuf) ER
she Office of tt
w p fES 14 11 49- N
� O 1eyM
S�CHUSES
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
*
Kenneth P. Willner * DECISION
15 Carriage Chase
North Andover, MA 01845 * Petition #008-94
*
The Board of Appeals held a regular meeting on Tuesday evening,
February 8, 1994 upon the application of Kenneth P. Willner
requesting a Special Permit under Section 4. 133, Paragraph (3) (d)
of the Zoning Bylaw in effect in 1984 so as to permit
construction of a dwelling in the watershed no-disturbance on the
premises located at 15 Carriage Chase. The following members
were present and voting: Frank Serio, Jr. , Chairman, Walter
Soule, Clerk, Raymond Vivenzio, Robert Ford and John Pallone.
The hearing was advertised in the Eagle Tribune on January 25 and
February 1, 1994 and all abutters were notified by regular mail.
Upon request of the petitioner, a motion by Mr. Vivenzio and
second by Mr. Soule, the Board voted unanimously to ALLOW THE
PETITION TO WITHDRAW WITHOUT PREJUDICE.
Dated this 14th day of February 1994.
BOARD OF APPEALS
Frank Serio, Jr/
Chairman
Any appeal shall be filed
S '""'"" within (20) days after the
rV ER
+,�•. �, �. date of filing of this Notice
}AI , 43 A '` HU in the Office of the Town
TOWN OF NORTH ANDOVER a "!
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Date . .MaY. ?x,. .1994. . . . . . . . .
Petition No.. . 007-94. . . . . . . . . . . . .
Date of Hearing. May. 10, 1,994. . . .
Petition of . . . . .Kenneth .P, ,W?Ilner. . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Premises affected . . 15. .cerriag.e. .Chase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a variation from the requirements of AU . .S e c t ion .4,13 3,
Paragraph .3(C). and Table. .2 .of. the. Zanixig. Bylaw.in. ef.£ect. in. .1.9.84 . . . . . . . . . . . . . . .
so as to permit .const,ruction .of .a.dwelling.in. the .vat er.shed.no-disturbance. zoue.. .
After a public hearing given on the above date, the Board of Appeals voted to . ALLOW. . . . . the
PETITIONER TO WITHDRAW .WITHOUT PREJUDICE
, . . . . . . . k �g
ilX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
f > liti
Signed
_ .
raerio, Jr. , Chairman
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Walter Soule, Clerk
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Robert Ford
Scott Karpinski
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board of Appeals
G
K Any appeal shall be filed
�•i I NORTH
Y ER
within (20) days after the
0 date of filing cf t,iis 1otice
ft
A
M 43
AY in the Office of the Town
SACHUS
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Kenneth P. Willner DECISION
15 Carriage Chase
North Andover, MA 01845 Petition #007-94
The Board of Appeals held a public hearing on Tuesday evening,
January 25 continued to February 8, March 8, April 12 then
continued to April 19 for a Special Meeting where the public
hearing was re-opened then continued to May 10, 1994 upon the
application of Kenneth P. Willner requesting a variation of
Section 4. 133, Paragraph 3 (c) and Table 2 of the Zoning Bylaw in
effect in 1984, so to permit construction of a dwelling in the
watershed no-disturbance zone on the premises located at 15 (Lot
15) Carriage Chase. The following members were present and
voting: Frank Serio, Jr. , Chairman, Walter Soule, Clerk, Robert
Ford and Scott Karpinski.
The hearing was advertised in the North Andover Citizen on
January 25 and February 1, 1994 and all abutters were notified by
regular mail.
Upon a motion by Mr. Soule and second by Mr. Ford, the Board
voted unanimously to ALLOW THE PETITIONER TO WITHDRAW WITHOUT
PREJUDICE.
Dated this 20th day of May 1994.
BOARD OF APPEALS
Frank Serio, Jk.
Chairman
JOV
Received by Town Clerk: NORTH A14C,0VER
TOWN OF NORTH ,ANDOVER, MASSACHUSE 5
BOARD OF APPEALS
APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE
55 Union Street
Applicant Kenneth P. Willner Address Boston, M 02108
and Jacqueline D. Best-WillnerTel. No. ( 617)_ 227-9090
1, r Application is hereby made:
-4. 133 1
a) For a variance from the requirements of Section_______
Paragraph (3) (c) and Table 2 of the Zoning Bylaws,*
as in -effect in 1984.
b) For a special Permit under section_ ,Paragraph
of the Zoning Bylaws, as in effect in 1984.
c) As a Party Aggrieved, for review of a decision made by
the Building Inspector or other authority.
2. a) Premises affected are land and building(s)
numbered 15 - (Lot 15) CarriageCF—ase - Street.
b) Premises affected are property with frontage on the
North ( ) South ( x) East ( ) West ( ) side of
Carriage Chase street.15 (Lot 15 ) Carriage `Chase
Street, and known as No.
Street.
C) Premises affected are in Zoning Di tric44, 075 R15 ,are anditthe
premises affected have an area of
and frontage of 15._` feet.
3. Ownership: '
a) Name and address of owner (if joint ownership, give all
names) : -Willner
Kenneth P. Willner and Jacqueline D. Best
-l9illn?r
Date of Purchase 12/31 91 Previous Owner MarblepLdge
Dev. Corp.
b) 1. ; If applicant is not owner, check his/her interest
in the premises:
Prospective Purchaser Lessee Other
2 . Letter of authorization for Variance/Special Permit
required.
4 . Size of proposed building: 128 front; 38 feet deep
Height 2 stories; 35 feet.
_ a) Approximate date of erection:
S:umme r.,. 19-95.
b) Occupancy or use of each floor:
Single family residential
C) T pe of construction: wood frame
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5. Has there been a previous appeal, under zoning, on these
premises? Unknown If so, when?
6. Description of relief sought on this petition
7. Deed recorded in the Registry of Deeds in Book3377 Page 261
Land Court Certificate No. Book Page
The principal points upon which I base my application are as
follows: (must be stated in detail)
See attached.
I ag ee to pay the filing fee, advertising in newspaper, and
i ental expenses
Signatur D Petitioner(s)
Every application for actio by the Board shall be made on a form
approved by the Board. These forms shall be furnished by the
Clerk upon request. Any communication _purporting to be an
application shall be treated as mere notice of intention to seek
relief until such time as it is made on the official application
form. All information called for by the form shall be furnished
by the applicant in the manner therein prescribed.
Every application shall be submitted with a list of "Parties of
Interest" which list shall include the petitioner, abutters,
owners of land directly opposite on any public or private street
or way, and abutters to the abutters within three hundred feet
(3001 ) of the property line of the petitioner as they appear on
the most recent applicable tax list, notwithstanding that the
land of any such owner is located in another city or town, the
Planning Board of the city or town, and the Planning Board of
every abutting city or town.
*Every application shall be submitted with an application charge
cost in the amount of $25. 00. In addition, the petitioner shall
be responsible for any and all costs involved in bringing the
petition before the Board. Such costs shall include mailing and
--- publication, but are not necessarily limited to these.
Every application shall be submitted with a plan of land approved
by the Board. No petition will be brought before the Board
unless said plan has been submitted. Copies of the Board's
`-requirements regarding plans are attached hereto or are available
the Board of Appeals upon request.
Rev. 4/93
P
Irv•;.
,,ST OF PARTIES OF INTEREST
SUBJECT PROPERTY
,MAP IPARCEL 'LOT (NAME ADDRESS
( I �
ABUTTERS
;MAP ;PARCEL !LOT INAME ADDRESS
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ATTACHMENT TO VARIANCE AND SPECIAL PERMIT APPLICATION
FOR LOT 15 CARRIAGE CHASE STREET
The applicants seek approval of variances from three
provisions of the Zoning By-law as it was in effect in 1984,
pursuant to the zoning freeze provisions of Massachusetts General
Laws, chapter 40A, Section 6 . Specifically, the applicants request
the issuance of variances from Section 4 . 133 (3) (c) (Watershed no-
disturbance zone) and Table 2 (dimensional requirements) for front
yard and side yard setbacks, all as in effect in 1984 .1
The conditions for the granting of the requested variances are
met and the variances should be granted for the following reasons:
A. There are circumstances relating to the soil conditions,
shape or topography of the property which especially affect the
property but not generally the zoning district in which it is
located. The property is a long, rectangular lot, twice as long
front to rear as it is wide. A narrow projection of wetlands, only
about one-fifth the width of the lot, extends from the rear of the
lot for almost two-thirds of the length of the lot, for a distance
of about 180 feet of the 300 foot length of the lot. A subdivision
roadway cul-de-sac also infringes on the front 20 feet of the lot.
These conditions relate specifically to the soil conditions
(wetlands) and shape (cul-de-sac infringement) of the property in
a way which is unique to the property and which does not affect
generally the zoning district in which the property is located nor..
for that matter other properties in the district. g
B. Owing to the above conditions, a literal enforcement of
the provisions of the By-law will involve substantial hardship,
financial or otherwise, to the applicants. The extension of the
wetlands over the rear 180 feet of the lot and the infringement of
the cul-de-sac over the front 20 feet leaves only about 100 feet in
which to locate a house. That 100 feet is entirely within the
buffer zone under both the Watershed Protection provisions of the
By-law and the Wetlands Protection Act, G.L. c. 131, Sec. 40. The
Conservation Commission as well as the purpose of the Watershed
Protection provisions of the By-law call for maximizing the
distance of disturbance and construction from the wetlands on the
property. Given the tight space between the edge of the wetlands
and the cul-de-sac, it is impossible to provide an acceptable zone
1 The applicants take the position that the property is not
subject to the Watershed Protection provisions of the By-law on te
round that the
wetlands on the property are not a "tributary"
g applicants take
within the meaning of the By-law. Therefore, the .app
the position that the granting of a variance from Section
4 . 133 (3) (c) is not necessary for the lawful construction of
the
the
proposed dwelling. The applicants have agreed to apply for
variance but reserve their rights regarding this matter.
i
01
of no-disturbance and no-construction from the edge of the wetlands
without invading the front and side yard setbacks required by the
j By-law. Even then it is impossible to do so without reducing the
width of the no-disturbance area from the edge of the wetlands to
some extent, in violation of the 25 foot requirement in Section
4 . 133 (3) (c) of the By-law. Because of the conditions noted above,
it is impossible to build a single family dwelling consistent with
the neighborhood which will comply with the front and side yard
setback provisions of the By-law and which will comply with the no-
cut provisions of the Watershed Protection provisions of the By-
law. Furthermore, the Conservation Commission has agreed to issue
a modified Order of Conditions, referred to above, which will allow
the proposed dwelling and related grading and cutting, to come no
closer to the wetlands than the 32 feet for the house and 20 feet
for grading and cutting shown on the plan submitted in conjunction
with this application. As a result, a literal enforcement of the
noted provisions of the By-law will render the lot, as a practical
matter, unbuildable, with the resulting financial and practical
hardship to the applicants, who purchased the property in order to
build their home on it and live there.
C. Desirable relief- may be granted without substantial
detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of the By-law.
The granting of the requested relief will actually further rather
than derogate from the intent and purpose of the By-law and will
not involve any detriment to the public good. The requested
variances will further the goal of protecting the watershed by
maximizing to the extent possible the distance of the cutting,
grading and construction from the wetlands while preserving as much
of the front and side yard setbacks as possible and minimizing any
intrusion on the existing cul-de-sac, which is encroaching on the
property without the benefit of an easement, to an extent
acceptable to the Town' s Public Works Department . Since there are
only three houses on the street, the slight intrusion into the
front and side yard setbacks will have little if any negative
effect on neighboring properties, and the owner of the abutting lot
on the affected side of the property has expressed no opposition to
the granting of the variances. The variances requested are the
minimum variances that will accomplish the intended purpose.
-2-
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For the reasons stated above, and others which will be stated
j at the public hearing, the applicants respectfully request that the
Board grant the requested relief.
Kenneth nnet P. Willner and
Jacqueline D. Best-Willner,
By their attorney,
Howard P. p ' c er
Davis, Malm t D'Agostine, P.C.
One Boston Place
Boston, MA 02108
(617) 367-2500
-3-
LIST OF PARTIES OF INTEREST
x SUBJECT PROPERTY
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