HomeMy WebLinkAboutMiscellaneous - 16 JETWOOD STREET LMassachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 - Order of Conditions-�� �1� � 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131 §40
A. General Information ,
Important: North Andover
When filling From: t. Conservation Commission
out forms on
the computer, 2. This issuance is for(check one): ® Order of Conditions ❑ Amended Order of Conditions
use only the
tab key to 3. To: Applicant:
move your
cursor-do not Dan Nicolosi
use the return a. First Name b.Last Name c.Company
key. 16 Jetwood Street
d. Mailing Address
Q North Andover
MA. 01845
e.City/Town f.State g.Zip Code
4. Property Owner(if different from applicant):
Same
a. First Name b. Last Name c.Company
d. Mailing Address
e.City/Town f.State g.Zip Code
5. Project Location:
16 Jetwood Street North Andover
a. Street Address b.Cityn"own
Map 11 Lot 24
c.Assessors Map/Plat Number d.Parcel/Lot Number
Latitude and Longitude, if known (nate:
electronic filers will click for GIS locator): e.Latitude f.Longitude
6. Property recorded at the Registry of Deeds for(attach additional information if more than one parcel):
Essex North
a.County b.Certificate(if registered land)
4043 330
c. Book d.Page
7. Dates: 7/15/05 10/26/05 11/16/05
a.Date Notice of Intent Filed b.Date Public Hearing Closed c.Date of Issuance
8. Final Approved Plans and Other Documents(attach additional plan or document references as
needed):
Site Pian
a. Plan Title
New_England En ineerin Services, Inc. Benjamin C. Osgood, Jr., P. E. _
b. Prepared By c.Signed and Stamped by
10/25/05 V=20'
d. Final Revision Date e.Scale
See Attached
f.Additional Plan or Document Title
g.Date
9. Total WPA Fee Paid: $215.00 $42.50 $ 172.50
a.Total Fee Paid b.State Fee Paid
c City/Town Fee Paid
wpaform5.doc- rev.3/1/05
Page 1 of 9
l
1
LlMassachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 - Order of Conditions 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
B. Findings
t. Findings pursuant to the Massachusetts Wetlands Protection Act:
Following the review of the above-referenced Notice of Intent and based on the information provided
in this application and presented at the public hearing, this Commission finds that the areas in which
work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that
apply:
a. ❑ Public Water Supply b. ❑ Land Containing Shellfish c. ❑ Prevention of Pollution
d. ❑ Private Water Supply e. ❑ Fisheries f Protection of Wildlife
Habitat
g. ❑ Groundwater Supply n. ® Storm Damage Prevention i. ® Flood Control
2. This Commission hereby finds the project,as proposed, is: (check one of the following boxes)
Approved subject to:
❑ the following conditions which are necessary in accordance with the performance standards set forth
in the wetlands regulations. This Commission orders that all work shall be performed in accordance
with the Notice of Intent referenced above, the following General Conditions, and any other special
conditions attached to this Order. To the extent that the following conditions modify or differ from the
plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall
control.
Denied because:
® the proposed work cannot be conditioned to meet the performance standards set forth in the wetland
regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is
submitted which provides measures which are adequate to protect these interests, and a final Order of
Conditions is issued. A description of the performance standards which the proposed work cannot
meet is attached to this Order.
® the information submitted by the applicant is not sufficient to describe the site, the work, or the effect
of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may
not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information
and includes measures which are adequate to protect the Act's interests, and a final Order of Conditions
is issued. A description of the specific information which is lacking and why it is necessary is
attached to this Order as per 310 CMR 10.06(6)(c).
Inland Resource Area Impacts: Check all that apply below. (For Approvals Only)
❑ Buffer Zone Impacts: Shortest distance between limit of project disturbance and
wetland boundary(if available) linear feet
Resource Area Proposed Permitted Proposed Permitted
Alteration Alteration Replacement Replacement
3. ❑ flank a. linear feet b. linear feet c.linear feet d.linear feet
4. ❑ Bordering Vegetated
etated
Wetland a.square feet b.square feet c.square feet d.square feet
5. ❑ Land Under
a.square feet b.squarefeet c.square feet d.square feet
Waterbodies and
Waterways
e.cu.yd dredged f.cu.yd dredged
wpaform5.doc• rev.311105
Page 2 of 9
L i
LlMassachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 - Order of Conditions - 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
I<.
B. Findings (cont.)
Resource Area Proposed Permitted Proposed Permitted
Alteration Alteration Replacement Replacement
6. ❑ Bordering Land
Subject to Flooding a.square feet b.square feet c.square feet d.square feet
Cubic Feet Flood
Storage e.cubic feet f.cubic feet g.cubic feet h.cubic feet
7. ❑ Isolated Land Subject
to Flooding a.square feet b.square feet
Cubic Feet Flood
Storage c.cubic feet d.cubic feet e.cubic feet f.cubic feet
8. ❑ RlverfrOnt area a.total sq.feet b.total sq.feet
Sq ft Within 100 ft c.square feet d.square feet e.square feet f.square feet
Sq ft between 100-200 ft e.square feet f.square feet e,square feet f.square feet
Coastal Resource Area Impacts: Check all that apply below. (For Approvals Only)
9. ❑ Designated Port Indicate size under Land Under the Ocean, below
Areas
10. ❑ Land Under the
Ocean a.square feet b.square feet
c.cu.yd dredged d.cu.yd dredged
11. ❑ Barrier Beaches Indicate size under Coastal Beaches and/or Coastal Dunes below
12. ❑ Coastal Beaches
a.square feet b.square feet c.Gy nourishmt. d.cty nourishmt.
13. ❑ Coastal Dunes a.square feet b.square feet c.c/y nourishmt. d.c/y nourishmt
14. ❑ Coastal Banks
a. linear feet b.linear feet
15. ❑ Rocky Intertidal
Shores a.square feet b.square feet
16. ❑ Salt Marshes a.square feet b.square feet c.square feet d.square feet
17. ❑ Land Under Salt
Ponds a.square feet b.square feet
c.cu.yd dredged d.cu.yd dredged
18. ❑ Land Containing
Shellfish a.square feet b.square feet c.square feet d.square feet
19. ❑ Fish Runs Indicate size under Coastal Banks, inland Bank, Land Under the
Ocean, and/or inland Land Under Waterbodies and Waterways,
above
a.cu.yd dredged b.cu.yd dredged
20. ❑ Land Subject to
Coastal Storm Flowage a.square feet b.square feet
wpaform5.doc• rev.3/1/05 Page 3 of 9
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 — Order of Conditions - Dov),f26 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
C. General Conditions Under Massachusetts Wetlands Protection Act
(only applicable to approved projects)
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. The 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, bylaws, or regulations.
4. The work authorized hereunder shall be completed within three years from the date of this Order
unless either of the following apply:
a. the work is a maintenance dredging project as provided for in the Act;or
b. the time for completion has been extended to a specified date more than three years, but less
than five years, from the date of issuance. If this Order is intended to be valid for more than three
years, the extension date and the special circumstances warranting the extended time period are
set forth as a special condition in this Order.
5. This Order may be extended by the issuing authority for one or more periods of up to three years each
upon application to the issuing authority at least 30 days prior to the expiration date of the Order.
6. Any fill used in connection with this project shall be clean fill.Any fill shall contain 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.
7. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such
an appeal has been taken, until all proceedings before the Department have been completed.
8. No work shall be undertaken until the Order has become final and then 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 the 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 done. The recording
information shall be submitted to this Conservation Commission on the form at the end of this Order,
which form must be stamped by the Registry of Deeds, prior to the commencement of work.
9. A sign shall be displayed at the site not less then two square feet or more than three square feet in
size bearing the words,
"Massachusetts Department of Environmental Protection" [or, "MA DEP"]
"File Number
242-1325 "
wpaform5.doc• rev.3/1105 Page 4 of 9
r
ILIMassachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 — Order of Conditions - 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
C. General Conditions Under Massachusetts Wetlands Protection Act
10. Where the Department of Environmental Protection is requested to issue a Superseding Order, the
Conservation Commission shall be a party to all agency proceedings and hearings before DEP.
11. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of
Compliance (WPA Form 8A)to the Conservation Commission.
12. The work shall conform to the plans and special conditions referenced in this order.
13. Any change to the plans identified in Condition#12 above shall require the applicant to inquire of the
Conservation Commission in writing whether the change is significant enough to require the filing of a
new Notice of Intent.
14. The Agent or members of the Conservation Commission and the Department of Environmental
Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours
to evaluate compliance with the conditions stated in this Order, and may require the submittal of any
data deemed necessary by the Conservation Commission or Department for that evaluation.
15. This Order of Conditions shall apply to any successor in interest or successor in control of the
property subject to this Order and to any contractor or other person performing work conditioned by
this Order.
16. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland,
the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden
stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate
of Compliance has been issued by the Conservation Commission.
17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully
stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or
water body. During construction, the applicant or his/her designee shall inspect the erosion controls
on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately
control any erosion problems that occur at the site and shall also immediately notify the Conservation
Commission, which reserves the right to require additional erosion and/or damage prevention controls
it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of
work line has been approved by this Order.
18. All work associated with this Order is required to comply with the Massachusetts Stormwater Policy
Standards.
Special Conditions:
If you need more
space for
additional
conditions,
select box to
attach a text
document ❑
wpaform5.doc- rev.3/1105 Page 5 of 9
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 - Order of Conditions Vl- 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
6 � ! c ��
D. Findings Under Municipal Wetlands Bylaw or Ordinance
1. Is a municipal wetlands bylaw or ordinance applicable? ® Yes ❑ No
2. The North Andover hereby finds (check one that applies):
Conservation Commission
3. ® that the proposed work cannot be conditioned to meet the standards set forth in a municipal
ordinance or bylaw specifically:
North Andover Wetlands Protection Bylaw Chapter 178
a. Municipal Ordinance or Bylaw b.Citation
Therefore, work on this project may not go forward unless and until a revised Notice of Intent is
submitted which provides measures which are adequate to meet these standards, and a final Order of
Conditions is issued.
4. ❑ that the following additional conditions are necessary to comply with a municipal ordinance or
bylaw:
a. Municipal Ordinance or Bylaw b.Citation
The Commission orders that all work shall be performed in accordance with the following 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.
If you need more
space for c. The special conditions relating to municipal ordinance orb law are as follows:
additional
conditions,
select box to
attach a text
document ❑
wpaform5.doc• rev.3/1/05 Page 6 of 9
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 — Order of Conditions --Pc �b 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
F. Appeals
The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject
to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of
their right to request the appropriate DEP Regional Office to issue a Superseding Order of Conditions.
The request must be made by certified mail or hand delivery to the Department, with the appropriate filing
fee and a completed Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR
10.03(7)within ten business days from the date of issuance of this Order. A copy of the request shall at
the same time be sent by certified mail or hand delivery to the Conservation Commission and to the
applicant, if he/she is not the appellant.Any appellants seeking to appeal the Department's Superseding
Order associated with this appeal will be required to demonstrate prior participation in the review of this project.
Previous participation in the permit proceeding means the submission of written information to the
Conservation Commission prior to the close of the public hearing, requesting a Superseding Order or
Determination, or providing written information to the Department prior to issuance of a Superseding Order
or Determination.
The request shall state clearly and concisely the objections to the Order which is being appealed and how
the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands
Protection Act, (M.G.L. c. 131, §40)and is inconsistent with the wetlands regulations (310 CMR 10.00).
To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts
Wetlands Protection Act or regulations, the Department has no appellate jurisdiction.
Section G, Recording Information is available on the following page.
it
wpaform5.doc• rev.3/1/05 Page 8 of 9
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
' WPA Form 5 - Order of Conditions --fD242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
G. Recording Information
This Order of Conditions must be 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
subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court
Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information
on Page 7 of this form shall be submitted to the Conservation Commission listed below.
North Andover
Conservation Commission
Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission.
---------------------------------------------------------------------------------------------------------------------------
To:
North Andover
Conservation Commission
Please be advised that the Order of Conditions for the Project at:
242-1325
Project Location DEP File Number
Has been recorded at the Registry of Deeds of:
County Book Page
for:
Property Owner
and has been noted in the chain of title of the affected property in:
Book Page
In accordance with the Order of Conditions issued on:
Date
If recorded land, the instrument number identifying this transaction is:
Instrument Number
If registered land, the document number identifying this transaction is:
Document Number
Signature of Applicant
wpaform5.doc• rev.3/1/05 Page 9 of 9
ATTACHMENT TO THE DENIED ORDER OF CONDITIONS
16 Jetwood Street
North Andover, MA 01845
DEP File #242-1325
THIS DENIAL ORDER IS BEING ISSUED UNDER THE MASSACHUSETTS
WETLANDS PROTECTION ACT(WPA) AND REGULATIONS (310 CMR 10.00) AND
THE NORTH ANDOVER WETLANDS PROTECTION BYLAW AND REGULATIONS
(CHAPTER 178 CODE OF NORTH ANDOVER).
FINDINGS OF FACT
I. Overview:
The applicant, Dan Nicolosi, filed a Notice of Intent with the North Andover Conservation
Commission (NACC) on July 15, 2005 for the construction of a 40' x 30' addition to an
existing duplex dwelling and expansion on an existing driveway with associated grading
within 100-feet to a Bordering Vegetated Wetland (BVW). The proposed addition is located
approximately 10 feet at its closest point to the BVW boundary. The driveway expansion is
proposed approximately 20 feet from the BVW at its closest point. A legal notice was
properly published in accordance with the state and local regulations in the Laznrence Eagle
Tribune. A public hearing was opened on July 27, 2005 (within 21 days from the date of
filing). The public hearing was continued to the following dates per the written or verbal
request (at a public hearing) of the applicant: August 10, August 24,September 14,September
28, and October 261h. The public hearing was closed on October 26, 2005 (vote 7-0-0) and this
decision was rendered and issued within the 21-day time requirement.
At the July 271h public hearing, the applicant's representative, Benjamin Osgood,Jr. of New
England Engineering Services, was present to explain the proposed project. During this
hearing, the NACC found that the project as proposed did not meet the 25' No-Disturbance
Zone and 50' No-Construction Zone setbacks as required under the North Andover Wetlands
Protection Bylaw section 178.1 and section 3.4 of the Bylaw Regulations. The addition and
the driveway expansion were proposed almost entirely within the 50' No-Construction Zone
and the 25' No-Disturbance Zone, impacting approximately 1,165 s.f of the 50' No-
construction Zone and approximately 355 s.f of 25' No-Disturbance Zone. The original
project filing did not propose mitigation as required for impacts in accordance with the
provisions set forth in section 5.0 & 6.0 of the Bylaw regulations as referenced below. A
waiver request for the local buffer zone disturbances and for buffer zone mitigation
standards (section 6.0) was provided in accordance with these provisions. An alternative
analysis was also provided in accordance with these provisions.
Section 5.1 & 5.2 of the Bylaw Regulations states that the Commission may grant a waiver
from these regulations for alteration of a buffer zone resource area in situations where there
are no feasible alternatives that provide less impacts to the resource area values. The
applicant is responsible for conducting this alternatives analysis to show that there are no
1
feasible alternatives. The Commission may grant a waiver of the 25-Foot No-Disturbance
Zone and 50-foot No-Build Zone performance standards and impose such additional or
substituted mitigative requirements as it deems necessary, upon a clear and convincing
showing by the applicant that:
❖ There are no practicable conditions or alternatives that would allow the project to
proceed in compliance with the regulations; and
❖ The project, or its natural and consequential effects, will not have any adverse effects
upon any of the interests protected by the Bylaw. It shall be the responsibility of the
applicant to provide the Commission with any information that the Commission may
request to enable the Commission to ascertain such adverse effects. The failure of the
applicant to furnish any information that has been so requested shall result in the
denial of a request for a waiver pursuant to this subsection; and
❖ The project will improve the natural capacity of a resource area to protect the interests
identified in the Bylaw, provided any adverse effects on any such interests are
minimized by carefully considered conditions. However, no such project may be
permitted which would have an adverse impact on rare wildlife species.
In the case where a waiver is granted in the No-Disturbance Zone/No-Build Zone, the
Commission shall require mitigation measures to be implemented to offset
presumed/potential impacts to the wetland resource areas (see Section 6.0).
The reason(s) for the waiver request was noted and described as follows: "The applicant
constructed the existing dwelling on the lot as it is so that the currently proposed addition
could be added at a later date. Since the original date of construction, the wetlands have
expanded and the local regulations have changed. In addition, there is no location on the site
to provide mitigation."
The alternative analysis provided stated that the alternatives were few and unacceptable.
However, three written possible alternatives were provided. The alternatives included
reducing the size of the addition, moving the addition to the South side of the dwelling, and
moving the addition forward. For the first alternative, the applicant's representative states
that the applicant"needs to add an addition of this size to accommodate his existing family".
For the second and third alternative, the applicant's representative states that these
alternatives would still place the addition within the local wetland setbacks and that the
addition would not meet the zoning setback requirements.
Section 6.1 of the Bylaw Regulations reads: "The importance of avoiding and minimizing
wetland impacts is expressly
reco nized in the state regulations an
d this B law. The Act and
p gY
Bylaw mandate that the Commission consider the availability or reasonable alternatives to
the proposed activity, the extent to which adverse impacts are minimized, and the extent to
which mitigation measures, including replication or restoration, are provided and contribute
2
l
to the protection of the interests identified in the Act and this Bylaw.... projects that impact
vegetated wetland resource areas will require replication under this Bylaw."
During the July 27th meeting, the NACC questioned the applicant's waiver request and
alternative analysis provided. The NACC was not convinced that the addition could not be
reduced in size or that mitigation could not be provided. The NACC also felt the project as
submitted could not protect the interests of the resource areas under the WPA or the local
Bylaw. The NACC found that the information submitted by the applicant was not sufficient
to describe the site, the work or the effect of the work on the interests identified in the WPA
and the local Bylaw. Further, the NACC found that the performance standards to protect the
interests as defined in the WPA and the Bylaw were not being met. NACC member Joseph
Lynch stated that he understood the confines of the lot,but that the project did not conform
to the setbacks as proposed. NACC member Jack Mabon, agreed stating that the WPA and
Bylaw provisions require the applicant to "avoid, minimize, and mitigate" impacts to the
resource area and found that the project as proposed made no efforts to comply with this
provision.
Also during the July 27th meeting,several abutters were present and raised concerns about
drainage impacts in the area. Specifically, abutters stated that the water table was high and
were concerned that an addition of that size would further displace existing drainage flows.
In addition, the applicant submitted photographs taken of the wetland resource areas to
show that the wetlands were "dry", therefore not a viable wetland resource area. The NACC
accepted the photographs. The Conservation Administrator explained to the applicant that
although the wetlands may have appeared "dry" at the time the photographs were taken,
that they were still considered wetlands as defined by the WPA and the local Bylaw.
The applicant requested a continuance to the next regularly scheduled public meeting of
August 10, 2005, so that revised plans could be submitted to include mitigation for the
impacted buffer zones in accordance with the bylaw and to present further information to
protect the wetland resource area interests. It was at this time that the applicant encouraged
the Commission the visit the site. The Commission agreed to conduct individual site visits.
Mr. Mabon moved to continue the hearing to the meeting of August 10, 2005. Mr. Lynch
seconded. Sean McDonough opposed. The vote passed 5-1.
Prior to the public hearing of August 10, 2005, the applicant's representative requested a
continuance in writing to the meeting of August 24, 2005 to present revised plans as
previously requested by the NACC as the applicant needed additional time to submit the
requested information. At that meeting, Mr. Lynch moved to deny the continuation request
and close and issue a decision based on the fact that the applicant was given sufficient time to
present the requested information. Mr. McDonough seconded the motion stating that the
project was not approvable and could not protect the interests of the resource areas under
both the Act and the Bylaw. The NACC agreed and the vote was unanimous.
Following the August 10th meeting, the applicant's representative requested a
reconsideration of the vote at the next regularly scheduled meeting of August 24, 2005 (see
3
record document dated August 15, 2005). At this meeting,Scott Masse, NACC Chairman,
urged the Commission to reconsider its previous vote to close and issue a decision. Although
the applicant was not present at that hearing, a continuance was requested in writing and
should have been granted. Mr. Masse further urged the Commission to grant the
continuance to allow the applicant the opportunity to present any additional evidence prior
to closing.
As such, Mr. Lynch motioned to reconsider the previous vote to close and issue a decision
and moved to re-open the public hearing. Mr. Manzi seconded. The vote was unanimous.
With that, the public hearing was re-opened. It was further agreed to re-notify abutters and
re- advertise in the paper. The applicant requested a continuance to the next regularly
scheduled meeting of September 14, 2005. Mr. Manzi moved to continue to the meeting of
September 14, 2005. Ms. Feltovic seconded. The vote was unanimous.
At the meeting of September 14th, Mr. Osgood presented revised plans depicting an
infiltrator system and additional buffer zone plantings. Additional documents were also
provided to include a wetland impact analysis report from Leah Basbanes of Basbanes
Associates and a letter from Charles Foster, former Town Building Inspector. Mr. Osgood
stated in his letter dated September 7, 2005 that the proposed work combined with the
proposed plantings and drainage facilities would not pose any additional impact to the
wetland resource areas beyond what was currently taking place on the property and
considered the new design to be an improvement to the site.
At that meeting, Mr. McDonough wanted to clarify that the project was not previously closed
because of the absence of the applicant or Mr. Osgood,but that it was closed based on the
projects merits. Following,Mr. Manzi suggested the services of an outside consultant,
specifically, Patrick Seekamp of Seekamp Environmental to review the site and the
environmental impacts and moved to set up escrow in the amount of$500 for these services.
Mr. Lynch seconded with discussion. He stated that although this might be a good idea, he
was hesitant that a review could present any new information to the Commission if the
impacts, evidence, and the facts appeared clear. The other Commission members did not
support the motion, therefore the motion failed. Mr. McDonough noted that despite the
efforts made by the applicant to improve the site and to reduce the impacts to the resource
areas, he was still not satisfied with the mitigation efforts proposed by the applicant. He
further stated that he didn't necessarily agree that the mitigation as proposed would justify a
waiver from the provisions set forth in the WPA and the Bylaw. Mr. Masse requested that
Ms. Basbanes be present to present her impact analysis report to the Commission. To this
effect, the applicant requested a continuance to the next regularly scheduled meeting of
September 28, 2005. Mr. Lynch moved to continue the public hearing to the meeting of
September 28t". Mr. Napoli seconded. The vote was unanimous.
At the meeting of September 28, 2005, Mr.Osgood presented an overview the project. He
indicated that the proposed infiltrator system would capture any additional flows, which
would not result in any additional flows on the site. Leah Basbanes was also present to
present the impact analysis to the Commission (see document dated August 10, 2005).
4
Following Ms. Basbanes presentation, Mr. Manzi questioned how the impacts analysis was or
could be quantified considering the size of the addition and other related factors on the site.
Mr. Napoli suggested that the applicant provide soil test data and percolation rates for the
P gg PP P
site to better evaluate whether the proposed infiltration system would function as intended
and would provide adequate resource area protection from the additional flows and provide
sufficient recharge. Mr. Lynch agreed, indicating that the soil test data would show
estimated high ground water table and was needed. Mr. Lynch indicated that the reality
could be that additional runoffs could not be infiltrated causing impact to the resource area.
Mr. Manzi added that although the applicant had made an effort in providing mitigation and
alternative analyses, he did not feel that all options had been explored to the greatest extent
feasible (i.e. reducing the size of the addition, following the alignment of the existing home, a
more aggressive mitigation/planting plan, etc.). The applicant requested a continuance to
the meeting of October 26, 2005 to provide the Commission with the additional requested
information. Ms. Feltovic moved to continue to the meeting of October 26, 2005. Mr. Mabon
seconded. Mr. McDonough opposed. The motion passed and the hearing was continued.
At the meeting of October 26til, the NACC reviewed the requested documents presented by
the applicant, which included a drainage report and revised plans. Revised plans included
soil test pit data, additional plantings(a barrier along the entire length of the wetland
boundary) and a note which indicated that the existing shed (located directly adjacent to the
wetland resource area and installed without a valid Order of Conditions) would be relocated.
Mr. Osgood explained that the soils were tested in the area of the leaching system and that
the result of the data caused the system to rise slightly to maintain a 1-foot offset to the water
table. Mr. Osgood stated that he had no further information to provide the Commission. The
NACC subsequently voted to closed the public hearing.
Prior to rendering a decision at their meeting of November 16, the Commission members
reiterated their opinions of the projects. Mr. McDonough stated that he felt that the project
was not approvable from the beginning and that his argument for that finding had been
consistent throughout the public hearing process. Mr. Mabon indicated that he had also been
opposed to the project, as it was not approvable pursuant to the performance standards
pursuant to the WPA and the Bylaw. Mr. Lynch also agreed stating that the applicant failed
to present a compelling argument that the interests under the WPA and the Bylaw would be
sufficiently protected. He also argued that the only viable alternative for this project was the
No-Build alternative. Ms. Feltovic indicated that she agreed that the project was not
approvable for the reasons as stated by these Commission members. Mr. Masse withheld
from comment at that time since the majority had been opposed to the project and the
Commission moved forward with rendering a denied decision.
II. North Andover Wetland Bylaw & Regulations
(Chapter 178 - Code of North Andover)
The North Andover Wetlands Protection Bylaw is intended to utilize the "Home Rule"
authority of this municipality to protect additional resource areas, for additional values, with
additional standards and procedures stricter than those of the Massachusetts Wetlands
5
. r
Protection Act (MGL c.131 s.40) and Regulations (310 CMR 10.00). The additional areas
subject to protection under the Bylaw include the buffer zone, smaller ponds and isolated
wetlands, vernal pools, and certain freshwater wetlands that may not meet the definition of
Bordering Vegetated Wetlands under the Act. In addition, the Bylaw identifies three
additional public interests not recognized by the Massachusetts Wetlands Protection Act,
which include the prevention and control of erosion and sedimentation, the protection of
wildlife, and the protection of recreation. Any permit issued under the Bylaw must therefore
not adversely affect those additional public interests.
178.5 Hearings
Proof
c) The applicant shall have the burden of proving preponderance of credible evidence that
the activity proposed in the Notice of Intent will not cause adverse impacts to any of the
interests and values sought to be protected by this Bylaw. Failure to provide to the
Commission adequate evidence for it to determine that the proposed activity does not cause
adverse impacts shall be sufficient cause for the Commission to deny permission....
Orders and Decisions
The Commission may prohibit such activity altogether, in the event that it finds that the
interests and values of this Bylaw can not be preserved and protected by the imposition of
such conditions, safeguards or limitations.
Section 3.4- Buffer Zone
Buffer Zones are likely to be significant to the interests identified for the specific buffer zone
resource area, as identified in Section 178.1 of the Bylaw. Buffer Zones can be a vital link in
protecting interests of the Bylaw in the following ways:
❖ Temperature: Shade and cover provided by riparian vegetation can moderate water
temperatures in small streams ,
❖ Sediments and Other Contaminants: Buffer strips filter sediments and other
contaminants (e.g. pesticides,fertilizers, heavy metals,etc.) from surface flow. Buffer
strips also prevent erosion in riparian areas and preclude development that could lead
to increased contaminant loading.
❖ Nutrients (Nitrogen and Phosphorous): Buffer strips reduce inputs into streams by 1)
filtering sediment bound from surface flow, 2) removing nutrients from groundwater
via uptake in vegetation and by de-nitrification, and 3) precluding development,
which could increase nutrient loading.
•'• Maintenance of Stream Flow: Buffer strips can store water and help maintain stream
base flow (and water quality) during low flow periods.
6
Presumptions of Significance
Where a proposed activity involves the removing,filling, dredging or altering of Buffer Zone,
the Commission shall presume that protection of the Buffer Zone of a resource area identified
in Section 1.3 is significant to the interests specified in Section 178.1 of the ByLaw. This
presumption is rebuttable and may be overcome upon a clear showing that the Buffer Zone
does not play a role in the protection of said interests. In the event that the Commission
deems that the presumption has been overcome, the Commission shall make a written
determination to this effect, setting forth its grounds.
Performance Standards
The 100-foot Buffer Zones of Isolated Vegetated Wetlands, Bordering Vegetated Wetlands,
Bank, and Land Under Water all contain, at a minimum, a 25-foot No-Disturbance Zone and
a 50-foot No-Build Zone, which are described as follows1:
❖ 25-foot No-Disturbance Zone: No activity is permitted within 25-feet of the edge of
the wetland resource areas identified in Section 1.3. Activities include, but are not
limited to, grading, landscaping, vegetation clearing,filling,excavating, and road
construction. The Commission has consistently followed this standard because the
alteration of land immediately adjacent to a wetland is likely to result in the alteration
of the wetland itself. Alterations typically result from siltation, over grading,
deposition of construction debris, unregulated filling,vegetation clearing, and
extension of lawns or the depositing of yard waste.
•:• 50-foot No-Build Zone: Construction of any kind is prohibited within 50-feet of the
edge of the wetland resource areas identified in Section 1.3. Structures include, but are
not limited to, single-family dwellings, multi-family dwellings,commercial and/or
industrial buildings, porches, patios, decks, house additions,building additions, pools,
septic systems, and sheds. Driveways, roadways, retaining walls,and landscape
boulder walls may be allowed in the 50-foot No-Build Zone when no other feasible.
alternative exists.
III. Massachusetts Wetland Protection Act Regulations (310 CMR 10.00)
If the Commission finds that the information submitted by the applicant is not sufficient to
describe the site, the work or the effect of the work on the interests identified in MGL c.131
s.40, it may issue an Order of Conditions prohibiting the work. The Order shall specify the
information which is lacking and why it is necessary.
Ephemeral Pools have their own specific No-Disturbance and No-Build Zones which are
described in Section III(A)(4)(a-c) of these Regulations and are not included here.
7
r
IV. DECISION - Denial
As described in the Notice of Intent, the applicant was seeking an Order of Conditions
authorizing the construction of a 40' x 30' addition to an existing duplex dwelling and
expansion on an existing driveway with associated grading within 100-feet to a Bordering
Vegetated Wetland (BVW) under the MA Wetlands Protection Act (M.G.L. 131 §40) and the
North Andover Wetland Protection Bylaw&Regulations (c.178 of the Code of North
Andover). In accordance with 310 CMR 10.05 (6) (c), the applicant must submit information
sufficient to describe the site, the work, or the effect of the work on the interests identified in
the Wetlands Protection Act. Similarly, in accordance with section 178.5 (c) of the Bylaw and
section 8.2 of the bylaw regulations, the applicant shall have the burden of proving by a
preponderance of credible evidence that the activities proposed in the Notice of Intent will
not cause adverse impacts to any interests and values sought to be protected by the Bylaw.
Failure to provide to the Commission adequate evidence for it to determine that the
proposed activity will not cause adverse impacts shall be sufficient cause for a denial.
After careful review of the information presented by the applicant's representative at several
public hearings and many field site reviews by the Commission, the NACC closed the public
hearing at their regularly scheduled pubic meeting on October 26, 2005. On November 16,
2005, a motion to deny the project and accept the denial as drafted and amended was made
by Mr. McDonough and seconded by Mr. Mabon. Mr. Masse was opposed. A 4-1 vote was
rendered in favor of the denial. The proponent's request to construct an addition and expand
the driveway and associated activities, as depicted on the site plans entitled, "Site Plan",
dated July 15, 2005 revised through October 25, 2005 as filed under the MA Wetlands
Protection Act (M.G.L. 131 §40) and Regulations (310 CMR 10.00) and the North Andover
Wetland Protection Bylaw &Regulations (c.178 of the Code of North Andover) was
DENIED.The decision failed to contain the majority of the vote for an approval; therefore,
the decision is considered denied.
The project has been DENIED by the NACC based upon the following reasons:
1. The applicant failed to meet the performance standards pursuant to the Wetlands
Protection Act (M.G.L. 131 §40)and Regulations (310 CMR 10.00) and the North Andover
Wetland Protection Bylaw and Regulations (c.178 of the Code of North Andover, section
3.4). It is important to note that the following additional performance standards apply in
addition to the performance standards set forth in the WPA: the 25-foot No-Disturbance
Zone and the 50-foot No-Construction Zone.
2. The applicant failed to overcome the burden of proof(310 CMR 10.03) and (178.5 c.) and
demonstrate to the Commission that the proposed work would not have any adverse
effects upon the interests identified in the WPA and the Bylaw. The proposed work
within the buffer zone will not contribute to the protection of the interests identified in
both the WPA and the Bylaw based upon visual observations conducted by the majority
of the Commission of site conditions during various storm events and upon the evidence
and documentation provided by the applicant. The NACC observed on several occasions
8
during storm events that storm waters would sheet flow to the resource area and would
not sufficiently infiltrate.
3. The applicant failed to avoid, minimize, and mitigate potential/presumed wetland
resource area impacts to the greatest extent feasible in accordance with the performance
standards set forth in the WPA and the Bylaw (eg. - the applicant was unwilling to
reduce the size of the addition, the applicant could not ensure that the proposed
infiltration system could provide adequate infiltration and recharge).
4. The applicant failed to provide adequate mitigation pursuant to section 5.0 &6.0 of the
Bylaw Regulations. Further, the NACC questioned whether there would be any
proposed mitigation efforts for an impact of this significance that could adequately
protect the adjacent wetland resource areas, including the 25-foot No-Disturbance Zone,
the 50-foot No-Construction Zone, and the wetland itself.
5. The NACC disagree with statements made in the Impact Analysis Report prepared by
Basbanes Associates (dated August 10, 2005) in that Flood Control and Storm Damage
Prevention interests will be protected. The NACC disagrees that the proposed infiltration
system will function based upon estimated high ground water table, adjacent wetland
elevations, and visual observations of the drainage flows, which will have an adverse
effect on flood control and storm damage prevention. The NACC finds that the
infiltration data presented does not correlate with pre-construction site conditions.
6. The proposed project does not comply with the North Andover Wetlands Protection
Regulations Section 5.0- Waiver Provisions and Alternative Analysis Requirements.
7. The proposed project does not comply with the North Andover Wetlands Protection
Regulations Section 6.0- Replication Standards
8. The NACC disagrees with the applicant's assertions on the original Waiver Request Form
(Appendix 2). Specifically, the NACC disagrees that a waiver from the local regulated 25-
foot No-Disturbance and 50-foot No-Construction Zone setback should be granted based
upon changes in the regulations since original construction of the duplex dwelling and
upon the presumed intention of the applicant following construction. The NACC has
determined that the performance standards set forth in the current local Bylaw and
Regulations shall be upheld. If effect, the Bylaw does not allow extensions on existing
non-conforming lots if the proposed extension does not comply with the current
performance standards. In addition, the NACC agrees with the applicant's assertion that
there is no location on the site to provide mitigation to offset disturbances, therefore finds
the waiver to be unsuitable and not approvable under the Bylaw.
Consequently, no work is permissible at 16 Jetwood Street,North Andover as a result of
this Denial Order; unless and until superceded by the MA Department of Environmental
Protection or by a Court of the Commonwealth or a new Notice of Intent is filed and
subsequently approved by the North Andover Conservation Commission.
9
V. RECORD DOCUMENTS
Notice of Intent filed by: Dan Nicolosi (Applicant)
16 Jetwood Street
North Andover,MA 01845
Received Date July 15,2005.
Plans prepared by: New England Engineering Services, Inc.
60 Beechwood Drive
North Andover,MA 01845
Entitled, "Site Plan dated July 15,2005 revised through
October 25,2005. Stamped & Signed by Benjamin C.
Osgood,Jr.,P.E.
Other Record Documents: Copy of the rejected building permit applicantion dated
May 2,2003;
Alternative Analysis and Waiver request Letter prepared
by New England Engineering Services Inc. dated July 15,
2005;
Waiver Request Form dated July 15,2005;
Photographs taken by the applicant dated July 26,2005
(on back);
Request for continuance letter prepared by New England
Engineering Services Inc., dated August 9,2005;
Request to reconsider vote letter prepared by New
England Engineering Services Inc., dated August 15,2005;
Letter from New England Engineering Services Inc. dated
September 7,2005;
Letter from Charles Foster, Former Building Inspector
dated August 8, 2005;
Impact Analysis Report prepared by Basbanes Associates
dated August 10,2005;
Letter from Attorney Henry T. Doherty III dated
September 23,2005;
Letter from New England Engineering Services Inc. dated
October 26, 2005;
Drainage Report prepared by New England Engineering
Services, Inc. dated October 25,2005.
10
r
r
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 — Order of Conditions --
242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
lie, Ncr t� Anjovzr'" t,i e-fle,-,is Trge-C-4110t� 61-1
E. Issuance
This Order is valid for three years, unless otherwise specified as a special
condition pursuant to General Conditions#4,from the date of issuance. T Date of Issuance
Please indicate the number of members who will sign this form: ,
This Order must be signed by a majority of the Conservation Commission. 2.Number of signers
The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A
copy also must be mailed or hand delivered at the same time to the appropriate Department of
Environmental Protection Regional Office, if not filing electronically, and the property owner, if different
from applicant.
Signature
A' I
Notary Acknowledgement
Commonwealth of Massachusetts County of Essex North
�d �h 1 VC'#"tiA e_�' �OJ�
On this Day of Month Year
Before me, the undersigned Notary Public,
personally appeared Name of Document Signer
proved to me through satisfactory evidence of identification, which was/were
Massachusetts License
Description of evidence of identification
to be the person whose name is signed on the preceding or attached document, and acknowledged to
me that he/she signed it voluntarily for its stated purpose.
As member of North Andover Conservation Commission
Cityrrown
DONNA M.WEDGE ILi/'. f 6—A—Z
NOTARY PUBLIC gnature of Notary Public
1
COMMONWEALTH OF MASSACHUSETTS �
t�. Ny comm.Expires Aug.7,20M
Printed Name of Notary Public
Place notary seal and/or any stamp above
My Commission Upires(Date)
This Order is issued to the applicant as follows:
❑ by hand delivery on [ by certified mail, return receipt requested,on
17 IDS
Date Date
wpaform5.doc• rev.311/05
Page 7 of 9
- r
Massachusetts Department of Environmental Protection
�— Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 - Order of Conditions 242-1325
1 Massachusetts Wetlands Protection Act /M.G.L. c. 131, §40
I k Nc `v-, AJ
1novc-P
F. Appeals
The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject
to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of
their right to request the appropriate DEP Regional Office to issue a Superseding Order of Conditions.
The request must be made by certified mail or hand delivery to the Department, with the appropriate filing
fee and a completed Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR
10.03(7)within ten business days from the date of issuance of this Order. A copy of the request shall at
the same time be sent by certified mail or hand delivery to the Conservation Commission and to the
applicant, if he/she is not the appellant.Any appellants seeking to appeal the Department's Superseding
Order associated with this appeal will be required to demonstrate prior participation in the review of this project.
Previous participation in the permit proceeding means the submission of written information to the
Conservation Commission prior to the close of the public hearing, requesting a Superseding Order or
Determination, or providing written information to the Department prior to issuance of a Superseding Order
or Determination.
The request shall state clearly and concisely the objections to the Order which is being appealed and how
the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands
Protection Act, (M.G.L. c. 131, §40)and is inconsistent with the wetlands regulations (310 CMR 10.00).
To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts
Wetlands Protection Act or regulations, the Department has no appellate jurisdiction.
Section G, Recording Information is available on the following page.
wpaform5.doc• rev.311105 Page 8 of 9
r
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 — Order of Conditions 242-1325
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
S -Tf- ee- Nlt>V"sik we,+6s_,J S
G. Recording Information
This Order of Conditions must be 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
subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court
Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information
on Page 7 of this form shall be submitted to the Conservation Commission listed below.
North Andover
Conservation Commission
Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission.
---------------------------------------------------------------------------------------------------------------------------
To:
North Andover
Conservation Commission
Please be advised that the Order of Conditions for the Project at:
242-1325
Project Location DEP File Number
Has been recorded at the Registry of Deeds of:
County Book Page
for:
Property Owner
and has been noted in the chain of title of the affected property in:
Book Page
In accordance with the Order of Conditions issued on:
Date
If recorded land, the instrument number identifying this transaction is:
Instrument Number
If registered land, the document number identifying this transaction is:
Document Number
Signature of Applicant
wpaform5.doc• rev.3/1/05 Page 9 of 9