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HomeMy WebLinkAboutMiscellaneous - 210 HOLT ROAD NORTH yr'T n Town of North Andover ° Office of the Planning Department M7 CU 15 F i,; 5 °> , Community Development and Services Division SS CHUS�t�y 1600 Osgood Street 9SA North Andover, Massachusetts 01845kr= NOTICE OF DECISION Any appeal shall be filed within (20) days after the date of filing this notice in the office of the Town Clerk. Date: October 3, 2007 Date of Hearings: August 12, 2007, September 4, 2007, and October 2, 2007 Date of Decision: October 2, 2007 Petition of: Thomson Brothers Industries (TBI), Inc., 210 Holt Road, North Andover,MA 01845 Premises Affected: 210 Holt Road, North Andover, MA within the Industrial-2 Zoning District, Assessors Map 34, Parcels L27, L38, L40 & Map 77, Parcel L14. Referring to the above petition for a Site Plan Review Special Permit from the requirements of the North Andover Zoning Bylaw, Sections 8.3, 10.3, and 10.31 and MGL C.40A, Sec. 9 So as to allow the construction of a 30,000 s.£ recycling and solid waste transfer station, extensive grading, lighting plan, landscape improvements, drainage easement, and other improvements within the Industrial 2 Zoning District. After a public hearing given on the above date, the Planning Board voted to APPROVE A SITE PLAN REVIEW SPECIAL PERMIT based upon the following conditions: North Andover�Plannin card Richard Nardella, Chairman John Simons, Vice Chairman Jennifer Kusek Tim Seibert, Alternate This is to certify that twenty(20)days have elapsed from date of decision,filed without filing ofan a peal Date iGOd Joyce A.Bradshaw Town Clerk TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 r n . The Planning Board herein approves the Site Plan Review Special Permit for the construction of a 30,000 s.£ recycling and solid waste transfer station, 76 total parking spaces, extensive ra , t `Y gP g P gplan, landscape improvements, drainage easement, and other improvements shown onn t lat� defined below. The project is located in the Industrial 2 Zoning District and is located on reel property shown on the North Andover Assessors Maps as Map 34, Parcels L27, L38, L40 & Mai 77�VarwI.L14 consisting of approximately 7.79 acres(339,332 s.£)of land with approximately 964 linekfo oftotgi frontage on Holt Road. The Site Plan Review Special Permit was requested TBI, Inc., 210 Holt Road, North Andover, MA. This application was filed with the Planning Board on July 5, 2007. The applicant submitted a complete application which was noticed and reviewed in accordance with Sections 8.3, 10.3, and 10.31 of the Town of North Andover Zoning Bylaw and MGL c.40A, sec. 9 During the review process, the Applicant and its professional consultants also submitted various revisions to the plans along with various supplemental memoranda and correspondence in response to requests by the Planning Board,the Board's peer review consultants,and by the various departments within the Town of North Andover that reviewed the project. All of these plans, reports and correspondence are contained in the Planning Board's files and are hereby incorporated by reference into the public record for this hearing. The Planning Board makes the following findings as required by the North Andover Zoning Bylaws Section 8.3 and 10.3: FINDINGS OF FACT: 1) On June 22, 2006,the North Andover Board of Health approved the Site Assignment Decision for the proposed 30,000 sq. ft. recycling and solid waste transfer station to be located on 5.8 acres of land and shown on lots labeled 2, 3,and 4 on the"Plans"as defined below. The requirements and conditions contained within said Decision are hereby incorporated by reference into this decision and public record. 2) The specific site is an appropriate location for the project as it is located in the Industrial 2 Zoning District and involves the construction of permitted uses within those zones. Specifically,the Zoning Bylaw allows in the Industrial 2 District the following use(North Andover Zoning Bylaw, Section 4.133(11)): Light manufacturing, including manufacturing,fabrication,processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive noxious,detrimental,or dangerous to surrounding areas of the Town by reason of dust, smoke, fumes, odor,noise, vibration, light or other adverse environmental effect. 3) The use as developed will not adversely affect the neighborhood as the project is surrounded by other industrial uses and zoned properties and will not impact any residential areas or neighborhoods. In addition, the project provides for natural a vegetative landscaped buffer along the frontage of the properties to further insulate the building. All plantings and screening depicted on the approved plans referenced herein shall remain in perpetuity over the life of the project. 4) There will be no nuisance or serious hazard to vehicles or pedestrians. The proposed parking lot design and access/egress drives provide for adequate internal and external traffic flow, safety,and sufficient pedestrian connections throughout the project and surrounding area. Traffic impact studies have been conducted for the project as part of the applicant's submittal to the Executive Office of Environmental Affairs(EOEA)and Site Assignment application to the North Andover Board of Health and Department of Environmental Protection Division of Solid Waste. The reviewing parties 2 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 concluded that the external traffic impacts will not significantly degrade the level of service at any nearby intersections. 5) In accordance with the terms and conditions of the Site Assignment Decision,the Applicant will fund up to the$200,000 towards the installation of a traffic light at the intersection of Holt Road and Route 125 to mitigate traffic congestion. 6) The proposed recycling and solid waste transfer station contains architectural elements and treatments that are commonly present and consistent with structures typically constructed within the Industrial 2 Zoning District. Finally,the Applicant incorporated visual buffering and additional plantings to help mitigate the impact on the neighboring properties and streetscape. 7) The site drainage system and storm water management design are designed in accordance with the Town Bylaw requirements and Best Management Practices, and has been reviewed by the outside consulting engineer, Vanasse,Hangen Brustlin, Inc. (VHB). 8) The landscaping approved as a part of this plan generally meets the requirements of Section 8.4 of the North Andover Zoning Bylaw, 9) The applicant has met the requirements of the Town for Site Plan Review as stated in Section 8.3 of the Zoning Bylaw. 10) Adequate and appropriate facilities will be provided for the proper operation of the proposed use. 11) The project will provide for municipal water, sewer and utilities on the property to adequately address the needs of the project. 12) This Site Plan Review Special Permit is conditional upon the submission and approval by the Planning Board of an appropriate Form A Application for Approval of an ANR Plan(Approval Not Required Plan)which combines the Map 34,Parcels L27, L38,L40&Map 77, Parcel L14,totaling approximately 7.79 acres, into one parcel. Finally the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.3 but requires conditions in order to be fully in compliance. The Planning Board hereby votes to both grant the requested waivers as described in the Applicant's application, and also unanimously votes to grant approval of the Applicant's proposed project as described in the "Plans"and other supporting information described in the public record, provided the following conditions are met: SPECIAL CONDITIONS: 1) Permit Definitions: a) The "Locus"refers to the 339,332 s.f. parcel of land with land fronting on Holt Road, as shown on Assessors Map 34, Parcels L27, L38, L40& Map 77,Parcel L14,also known as 210 Holt Road ,North Andover, Massachusetts. b) The"Plans"refer to the plans prepared by Brown and Caldwell,48 Leona Drive, Suite C, Middleborough,MA 02346, entitled "Site Plan Review 2007,Prepared for TBI, Inc.,North Andover, Massachusetts": 3 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 Sheet 1 of 10, Revised 9/25/07; Sheets 2, 3,4, 5 and 10 of 10, Revised 9/12/07; Sheet 6 of 10, Revised 9/14/07; and Sheet 7, 8 and 9 of 10, Revised 8/22/07. c) The"Project"or"210 Holt Road" refers to construction of a 30,000 s.f. recycling and solid waste transfer station. d) The"Applicant"refers to TBI, Inc. as the applicant for the Site Plan Review Special Permit. 2) Environmental Monitor: The developer shall designate an independent Environmental Monitor who shall be chosen in consultation with the Planning and Community Development Staff. The Environmental Monitor must be available upon four(4)hours notice to inspect the site with the Planning Board designated official. The Environmental Monitor will be required to inspect all such devices and oversee cleaning and the proper disposal of waste products if applicable. 3) Construction Monitor: The applicant shall designate an independent construction monitor who shall be chosen in consultation with the Planning Department. The construction monitor must be available upon four(4)hours notice to inspect the site with the Planning Board designated official. The construction monitor shall make weekly inspections of the project and file monthly reports to the Planning Board throughout the duration of the project. The monthly reports shall detail area of non- compliance, if any, and actions taken to resolve these issues. The designated monitor may not be applicant and/or developer. The weekly inspections and monthly reports provided to the Planning Department shall include the following: a) site clearing; b) erosion control; c) drainage and detention structures; d) on-site water and sewer utilities; e) parking spaces and related pavement; f) newly constructed roadways/access ways; g) curb cuts; h) retaining walls; i) site screening, landscaping and street trees; j) site restoration; and k) final site cleanup 4) PRIOR TO THE ENDORSEMENT OF THE PLANS BY THE PLANNING BOARD,THE APPLICANT MUST COMPLY WITH THE FOLLOWING CONDITIONS: a) The final plans must be reviewed and approved by the DPWand the Planning Department and be endorsed by the Planning Board. The final plans must be submitted for review within ninety(90) days of filing the decision with the Town Clerk. b) The final site drainage system must be designed in accordance with the Town Bylaw requirements and reviewed by the Division of Public Works. All storm water drainage control facilities utilized by the site shall be shown on the site plan. Storm water drainage calculations which support the design of the control facilities shown on the plan shall be submitted to the Department of Public Works for review and approval. Written confirmation of said review and approval by the Department of Public Works must be submitted to the Planning Department. 4 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 c) A bond in the amount of fifteen dollars($15,000)must be posted for the purpose of insuring that a final as-built plan showing the location of all on-site utilities, structures, newly constructed roadways/access ways,topography,and drainage facilities is submitted. The bond is also in place to insure that the site is constructed in accordance with the approved plan. The form of security must be acceptable to the Planning Board. d) The Applicant, within thirty(30)days after this Decision becomes final, shall submit to the Planning Board for its approval an appropriate Form A Application for Approval of an ANR Plan (Approval Not Required Plan)along with an ANR Plan which combines the Map 34, Parcels L27, L38, L40& Map 77, Parcel L14 totaling approximately 7.79 acres. No construction activities authorized by this Decision on the Additional Land shall be commenced until the Applicant has(a)recorded said approved ANR Plan and(b)caused the title to the Additional Land to be combined with the Original Land, by recording a Deed for said Additional Land conveying the title to said Additional Land to Holt Road, LLC. e) All site plan application and escrow fees must be paid in full and verified by the Town Planner. 5) PRIOR TO THE START OF CONSTRUCTION: a) A construction schedule shall be submitted to the Planning Staff for the purpose of tracking the construction and informing the public of anticipated activities on the site. b) All applicable erosion control measures must be in place and reviewed and approved by the Planning Department. c) It shall be the responsibility of the developer to assure that no erosion on the site shall occur which will cause deposition of soil or sediment upon adjacent properties or public ways,except as normally ancillary to off-site sewer or other off-site construction. Off-site erosion will be a basis for the Planning Board making a finding that the project is not in compliance with the plan; provided, however, that the Planning Board shall give the developer written notice of any such finding and ten days to cure said condition. d) A pre-construction meeting must be held with the developer, their construction employees, Planning Department, Building Department, and Conservation Department to discuss scheduling of inspections, the construction schedule, and the process/method of informing the public of the anticipated activities on the site. e) The developer shall provide the Planning Board with copies of permits, plans and decisions received from all other North Andover Land-Use Boards or departments. In addition to receipt of these plans, the applicant shall supply the Town Planner with a letter outlining any and all revisions resulting from said permits, plans and decisions received from other town boards, commissions and departments that differ from the approved plans referenced in Condition 24. 6) PRIOR TO THE ISSUANCE OF A BUILDING PERMIT: a) Three(3)copies of the signed, recorded plans must be delivered to the Planning Department. b) One certified copy of the recorded decision must be submitted to the Planning Department. 5 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 c) The applicant shall adhere to the following requirement of the North Andover Fire Department and the North Andover Building Department: 1. All structures must contain a commercial fire sprinkler system. The applicant is required to extend the sprinklers from the existing plant into the new addition. The plans and hydraulic calculations for each commercial system shall be submitted for review and approval by the North Andover Fire Department. Plans and hydraulic calculations for each commercial system must also be supplied to the Building Department. 7) DURING CONSTRUCTION: a) During construction,the site must be kept clean and swept regularly throughout the construction process. Dust mitigation, dewatering and roadway cleaning must be performed weekly,or more frequently as dictated by site and weather conditions and as directed by the Town Planner. Tarps shall be placed over any stockpiles to ensure that any dust is mitigated properly. b) The Board will strictly enforce the policy relative to the stockpiling of materials(dirt,wood, construction material, etc.)and must be shown on a plan and reviewed and approved by the Town Planner. Any approved piles must remain covered at all times to minimize potential dust and be required to install appropriate erosion control measures to mitigate potential impacts to Lake Cochichewick. Any stockpiles to remain for longer than one week must be covered. c) In an effort to reduce noise levels,the developer shall keep in optimum working order,through regular maintenance, any and all equipment that shall emanate sounds from the structures or site. d) The Town Planner will perform bi-weekly inspections of the site during construction to ensure that the developer is adhering to the conditions set forth in the decision. 8) PRIOR TO THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY: a) The applicant must submit a letter from the architect and engineer of the project stating that the building, landscaping,lighting and site layout substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board. Alternatively,the applicant and/or property owner may provide a bond,determined by the Planning Board,to cover the full amount of the landscaping materials and installation if weather conditions do not permit the completion of the landscaping prior to the use of the parking area. b) The Planning Staff shall approve all artificial lighting used to illuminate the site. All lighting shall have underground wiring and shall be so arranged that all direct rays from such lighting falls entirely within the site and shall be shielded or recessed so as not to shine upon abutting properties or streets. The Planning Staff shall review the site. Any changes to the approved lighting plan as may be reasonably required by the Planning Staff shall be made at the owner's expense.The applicant must submit a letter from the architect and engineer of the project stating that the building, signs, landscaping, lighting and site layout substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board.All site lighting shall provide security for the site and structures however it must not create any glare or project any light onto adjacent residential properties. c) The commercial fire sprinkler systems must be installed in accordance with referenced standard NFPA 13D and in accordance with 780 CMR, Chapter 9 of the Massachusetts State Building Code. Certification that the systems have been installed properly in accordance with the above 6 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 referenced regulations must be provided from both the North Andover Fire Department and the North Andover Building Department to the applicant. The applicant must then provide this certification to the North Andover Planning Department. d) Any and all signage plans for the site,which have been provided to the Planning Board during the site plan review process, were presented for the materials of the signage only. This includes any and all signage relative to the Site Assignment Decision incorporated as part of this decision. Any signage plans must conform to Section 6, Signage and Outdoor Lighting Regulations of the Town of North Andover Zoning Bylaw and must be approved by the Building Department. In no way is the applicant to construe that the Planning Board has reviewed and approved the signage plans for Zoning Compliance as that is the jurisdiction of the Building Department. All additional permits must be obtained by the applicant prior to construction. e) In accordance with the Site Assignment Decision,TBI shall develop a clear route map for all trucks(inbound and outbound)that will be distributed to drivers, faxed and emailed. The route will clearly direct drivers to I-495 and the Route 125 Connector access/egress point. Further,all trucks entering and exiting the facility shall follow the designated route except when performing collection in North Andover,or unless an exception applies pursuant to Board of Health trash truck regulations. 9) PRIOR TO THE FINAL RELEASE OF ALL SECURITY AND ESCROWED FUNDS a) The Planning Staff shall review the site. Any screening as may be reasonably required by the Planning Staff will be added at the Project Owner's expense. b) A final as-built plan showing final topography,the location of all on-site utilities, structures,curb cuts, parking spaces,roadway/access way construction,drainage structures, and facilities must be submitted to the Planning Department. The applicant must submit a letter from the architect and engineer of the project stating said items substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board. 10. The requirements and conditions contained within the Site Assignment Decision dated June 22, 2006 and issued by the North Andover Board of Health are contained in the Planning Board's files and are hereby incorporated by reference into this decision and public record. The applicant shall comply with all conditions and requirements said Decision. Any non-compliance with the requirements and conditions of said Decision shall violate this Site Plan Review Special Permit 11. In accordance with the Site Assignment Decision, TBI shall contribute up to $200,000 towards the installation and construction of a traffic light at the intersection of Holt Road and Route 125. Monies not already utilized for the engineering, installation,and/or construction of the traffic light will be placed into an escrow account with the Town by the applicant. Said amount shall only be utilized by the applicant or Town for the purpose of installing and constructing the signalized traffic light at a future date. 12. All site work and external construction activity shall be limited to between 7:00 a.m. and 7:00 p.m. Monday through Friday and between 8:00 a.m. and 5:00 p.m. on Saturday. 13. All existing plantings and screening depicted on the approved plans shall remain in perpetuity over the life of the project. 7 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 12. The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. 13. Gas, Telephone, Cable and Electric utilities shall be installed underground as specified by the respective utility companies. 14. No open burning shall be done except as is permitted during burning season under the Fire Department regulations. 15. No underground fuel storage shall be installed except as may be allowed by Town Regulations. 16. The provisions of this conditional approval shall apply to and be binding upon the applicant, its employees and all successors and assigns in interest or control. 18. All snow storage is to be removed as needed to provide sufficient access throughout the site and to ensure the proper safety of vehicles and pedestrians. Snow storage shall not result in the loss of parking spaces except during removal operations. The Town Planner shall direct the applicant to remove snow to an offsite location if it is determined that onsite snow storage is insufficient. 19. The Planning Board expects that the project will be built in accordance with the herein referenced plans and specifications and in full accordance with the design elements and features displayed and discussed during the Public Hearings. Any revisions shall be submitted to the Town Planner for review in accordance with Section 8.3.8 of the Zoning Bylaw. If the Town Planner in his/her sole discretion deems these revisions to be substantial as defined in Section 8.3.8,the applicant must submit revised plans to the Planning Board for approval. 20. This Special Permit approval shall be deemed to have lapsed after October 2,2009(two years from the date permit granted)unless substantial use or construction has commenced. Substantial use or construction will be determined by a majority vote of the Planning Board. 21.The following information shall be deemed part of the decision: Plan titled: Site Plan Review 2007 Prepared for TBI, Inc. North Andover, Massachusetts Prepared for: TBI, Inc. 210 Holt Road North Andover,MA Prepared by: Brown and Caldwell 48 Leona Drive, Suite C Middleborough,MA 02346 Scale: I"=40' and 1"=30' Date: July 2007,Various Revision Dates Sheets: 1 of 10,Revised 9/25/07; 2, 3, 4, 5 and 10 of 10, Revised 9/12/07; 6 of 10,Revised 9/14/07; and 7, 8 and 9 of 10, Revised 8/22/07 Report titled: Site Plan Review Application TBI,Inc. Recycling Facility and Solid Waste Transfer Station 8 TBI, Inc.,210 Holt Road Site Plan Review Special Permit October 2,20077(1!,40 North Andover, MA Prepared for: TBI,Inc. 2001 CBCT 15 F-t j 5- 210 Holt Road North Andover, MA Prepared by: Brown and Caldwell 48 Leona Drive, Suite C Middleborough, MA 02346 cc: Town Departments Applicant Engineer Abutters 9 3� b Town of North Andover ° Office of the Planning Department 2007 OCT 15 P 04 ..,. Community Development and Services Division 1600 Osgood Street North Andover,Massachusetts 01845 NOTICE OF DECISION Any appeal shall be filed within (20) days after the date of filing this notice in the office of the Town Clerk. Date: October 3,2007 Date of Hearings: August 12, 2007, September 4, 2007,and October 2, 2007 Date of Decision: October 2, 2007 Petition of: Thomson Brothers Industries (TBI), Inc., 210 Holt Road, North Andover,MA 01845 Premises Affected: 210 Holt Road, North Andover, MA within the Industrial-2 Zoning District, Assessors Map 34, Parcels L27, L38, L40 & Map 77, Parcel L14. Referring to the above petition for a Site Plan Review Special Permit from the requirements of the North Andover Zoning Bylaw, Sections 8.3, 10.3,and 10.31 and MGL C.40A, Sec. 9 So as to allow the construction of a 30,000 s.f. recycling and solid waste transfer station, extensive grading, lighting plan, landscape improvements, drainage easement, and other improvements within the Industrial 2 Zoning District. After a public hearing given on the above date,the Planning Board voted to APPROVE A SITE PLAN REVIEW SPECIAL PERMIT based upon the following conditions: North Andove�Planni �oard Richard Nardella, Chairman John Simons,Vice Chairman Jennifer Kusek Tim Seibert, Alternate TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 IV 0 The Planning Board herein approves the Site Plan Review Special Permit for the cons'"(tion`of a 3 ,Q00 s.f.recycling and solid waste transfer station, 76 total parking spaces,extensive gra h ' plan, landscape improvements, drainage easement, and other improvements shown onti9h,n t defined below. The project is located in the Industrial 2 Zoning District and is located on ro.;property shown on the North Andover Assessors Maps as Map 34,Parcels L27,L38,L40 &Mai 73 06 114 consisting of approximately 7.79 acres(339,332 s.f)of land with approximately ljapg oftatL ; frontage on Holt Road. The Site Plan Review Special Permit was requested TBI,Inc.,210 Holt Road, North Andover, MA. This application was filed with the Planning Board on July 5, 2007. The applicant submitted a complete application which was noticed and reviewed in accordance with Sections 8.3, 10.3, and 10.31 of the Town of North Andover Zoning Bylaw and MGL c.40A, sec. 9 During the review process, the Applicant and its professional consultants also submitted various revisions to the plans along with various supplemental memoranda and correspondence in response to requests by the Planning Board,the Board's peer review consultants,and by the various departments within the Town of North Andover that reviewed the project. All of these plans,reports and correspondence are contained in the Planning Board's files and are hereby incorporated by reference into the public record for this hearing. The Planning Board makes the following findings as required by the North Andover Zoning Bylaws Section 8.3 and 10.3: FINDINGS OF FACT: 1) On June 22,2006,the North Andover Board of Health approved the Site Assignment Decision for the proposed 30,000 sq. ft . recycling and solid waste transfer station to be located on 5.8 acres of land and shown on lots labeled 2, 3,and 4 on the"Plans"as defined below.The requirements and conditions contained within said Decision are hereby incorporated by reference into this decision and public record. 2) The specific site is an appropriate location for the project as it is located in the Industrial 2 Zoning District and involves the construction of permitted uses within those zones. Specifically,the Zoning Bylaw allows in the Industrial 2 District the following use(North Andover Zoning Bylaw, Section 4.133(11)): Light manufacturing, including manufacturing,fabrication,processing,finishing, assembly,packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive noxious, detrimental,or dangerous to surrounding areas of the Town by reason of dust, smoke,fumes,odor,noise,vibration, light or other adverse environmental effect. 3) The use as developed will not adversely affect the neighborhood as the project is surrounded by other industrial uses and zoned properties and will not impact any residential areas or neighborhoods. In addition,the project provides for natural a vegetative landscaped buffer along the frontage of the properties to further insulate the building. All plantings and screening depicted on the approved plans referenced herein shall remain in perpetuity over the life of the project. 4) There will be no nuisance or serious hazard to vehicles or pedestrians. The proposed parking lot design and access/egress drives provide for adequate internal and external traffic flow, safety, and sufficient pedestrian connections throughout the project and surrounding area. Traffic impact studies have been conducted for the project as part of the applicant's submittal to the Executive Office of Environmental Affairs(EDEA)and Site Assignment application to the North Andover Board of Health and Department of Environmental Protection Division of Solid Waste. The reviewing parties 2 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 concluded that the external traffic impacts will not significantly degrade the level of service at any nearby intersections. 5) In accordance with the terms and conditions of the Site Assignment Decision,the Applicant will fund up to the$200,000 towards the installation of a traffic light at the intersection of Holt Road and Route 125 to mitigate traffic congestion. 6) The proposed recycling and solid waste transfer station contains architectural elements and treatments that are commonly present and consistent with structures typically constructed within the Industrial 2 Zoning District. Finally, the Applicant incorporated visual buffering and additional plantings to help mitigate the impact on the neighboring properties and streetscape. 7) The site drainage system and storm water management design are designed in accordance with the Town Bylaw requirements and Best Management Practices,and has been reviewed by the outside consulting engineer,Vanasse,Hangen Brustlin,Inc. (VHB). 8) The landscaping approved as a part of this plan generally meets the requirements of Section 8.4 of the North Andover Zoning Bylaw, 9) The applicant has met the requirements of the Town for Site Plan Review as stated in Section 8.3 of the Zoning Bylaw. 10) Adequate and appropriate facilities will be provided for the proper operation of the proposed use. 11) The project will provide for municipal water,sewer and utilities on the property to adequately address the needs of the project. 12) This Site Plan Review Special Permit is conditional upon the submission and approval by the Planning Board of an appropriate Form A Application for Approval of an ANR Plan(Approval Not Required Plan)which combines the Map 34,Parcels L27,L38,L40 &Map 77,Parcel L14,totaling approximately 7.79 acres, into one parcel. Finally the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.3 but requires conditions in order to be fully in compliance. The Planning Board hereby votes to both grant the requested waivers as described in the Applicant's application, and also unanimously votes to grant approval of the Applicant's proposed project as described in the"Plans"and other supporting information described in the public record, provided the following conditions are met: SPECIAL CONDITIONS: 1) Permit Definitions: a) The"Locus"refers to the 339,332 s.f.parcel of land with land fronting on Holt Road, as shown on Assessors Map 34,Parcels L27,L38,L40&Map 77,Parcel L14,also known as210 Holt Road,North Andover,Massachusetts. b) The"Plans"refer to the plans prepared by Brown and Caldwell,48 Leona Drive, Suite C, Middleborough,MA 02346, entitled"Site Plan Review 2007,Prepared for TBI,Inc.,North Andover,Massachusetts": 3 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 Sheet 1 of 10,Revised 9/25/07; Sheets 2, 3, 4, 5 and 10 of 10,Revised 9/12/07; Sheet 6 of 10, Revised 9/14/07; and Sheet 7, 8 and 9 of 10,Revised 8/22/07. c) The "Project"or"210 Holt Road"refers to construction of a 30,000 s.£recycling and solid waste transfer station. d) The"Applicant"refers to TBI,Inc. as the applicant for the Site Plan Review Special Permit. 2) Environmental Monitor: The developer shall designate an independent Environmental Monitor who shall be chosen in consultation with the Planning and Community Development Staff. The Environmental Monitor must be available upon four(4)hours notice to inspect the site with the Planning Board designated official. The Environmental Monitor will be required to inspect all such devices and oversee cleaning and the proper disposal of waste products if applicable. 3) Construction Monitor: The applicant shall designate an independent construction monitor who shall be chosen in consultation with the Planning Department. The construction monitor must be available upon four(4)hours notice to inspect the site with the Planning Board designated official. The construction monitor shall make weekly inspections of the project and file monthly reports to the Planning Board throughout the duration of the project. The monthly reports shall detail area of non- compliance, if any, and actions taken to resolve these issues. The designated monitor may not be applicant and/or developer.The weekly inspections and monthly reports provided to the Planning Department shall include the following: a) site clearing; b) erosion control; c) drainage and detention structures; d) on-site water and sewer utilities; e) parking spaces and related pavement; f) newly constructed roadways/access ways; g) curb cuts; h) retaining walls; i) site screening, landscaping and street trees; j) site restoration; and k) final site cleanup 4) PRIOR TO THE ENDORSEMENT OF THE PLANS BY THE PLANNING BOARD,THE APPLICANT MUST COMPLY WITH THE FOLLOWING CONDITIONS: a) The final plans must be reviewed and approved by the DPWand the Planning Department and be endorsed by the Planning Board. The final plans must be submitted for review within ninety(90) days of filing the decision with the Town Clerk. b) The final site drainage system must be designed in accordance with the Town Bylaw requirements and reviewed by the Division of Public Works. All storm water drainage control facilities utilized by the site shall be shown on the site plan. Storm water drainage calculations which support the design of the control facilities shown on the plan shall be submitted to the Department of Public Works for review and approval. Written confirmation of said review and approval by the Department of Public Works must be submitted to the Planning Department. 4 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 c) A bond in the amount of fifteen dollars($15,000)must be posted for the purpose of insuring that a final as-built plan showing the location of all on-site utilities, structures,newly constructed roadways/access ways,topography, and drainage facilities is submitted. The bond is also in place to insure that the site is constructed in accordance with the approved plan. The form of security must be acceptable to the Planning Board. d) The Applicant,within thirty(30)days after this Decision becomes final, shall submit to the Planning Board for its approval an appropriate Form A Application for Approval of an ANR Plan (Approval Not Required Plan)along with an ANR Plan which combines the Map 34,Parcels L27, L38,L40&Map 77;Parcel L14 totaling approximately 7.79 acres. No construction activities authorized by this Decision on the Additional Land shall be commenced until the Applicant has(a)recorded said approved ANR Plan and(b)caused the title to the Additional Land to be combined with the Original Land,by recording a Deed for said Additional Land conveying the title to said Additional Land to Holt Road,LLC. e) All site plan application and escrow fees must be paid in full and verified by the Town Planner. 5) PRIOR TO THE START OF CONSTRUCTION: a) A construction schedule shall be submitted to the Planning Staff for the purpose of tracking the construction and informing the public of anticipated activities on the site. b) All applicable erosion control measures must be in place and reviewed and approved by the Planning Department. c) It shall be the responsibility of the developer to assure that no erosion on the site shall occur which will cause deposition of soil or sediment upon adjacent properties or public ways,except as normally ancillary to off--site sewer or other off-site construction. Off-site erosion will be a basis for the Planning Board making a finding that the project is not in compliance with the plan; provided, however, that the Planning Board shall give the developer written notice of any such finding and ten days to cure said condition. d) A pre-construction meeting must be held with the developer, their construction employees, Planning Department, Building Department, and Conservation Department to discuss scheduling of inspections, the construction schedule, and the process/method of informing the public of the anticipated activities on the site. e) The developer shall provide the Planning Board with copies of permits, plans and decisions received from all other North Andover Land-Use Boards or departments. In addition to receipt of these plans, the applicant shall supply the Town Planner with a letter outlining any and all revisions resulting from said permits, plans and decisions received from other town boards, commissions and departments that differ from the approved plans referenced in Condition 24. 6) PRIOR TO THE ISSUANCE OF A BUILDING PERMIT: a) Three(3)copies of the signed,recorded plans must be delivered to the Planning Department. b) One certified copy of the recorded decision must be submitted to the Planning Department. 5 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 c) The applicant shall adhere to the following requirement of the North Andover Fire Department and the North Andover Building Department: 1. All structures must contain a commercial fire sprinkler system. The applicant is required to extend the sprinklers from the existing plant into the new addition. The plans and hydraulic calculations for each commercial system shall be submitted for review and approval by the North Andover Fire Department. Plans and hydraulic calculations for each commercial system must also be supplied to the Building Department. 7) DURING CONSTRUCTION: a) During construction,the site must be kept clean and swept regularly throughout the construction process. Dust mitigation,dewatering and roadway cleaning must be performed weekly, or more frequently as dictated by site and weather conditions and as directed by the Town Planner. Tarps shall be placed over any stockpiles to ensure that any dust is mitigated properly. b) The Board will strictly enforce the policy relative to the stockpiling of materials(dirt,wood, construction material, etc.)and must be shown on a plan and reviewed and approved by the Town Planner. Any approved piles must remain covered at all times to minimize potential dust and be required to install appropriate erosion control measures to mitigate potential impacts to Lake Cochichewick. Any stockpiles to remain for longer than one week must be covered. c) In an effort to reduce noise levels,the developer shall keep in optimum working order,through regular maintenance,any and all equipment that shall emanate sounds from the structures or site. d) The Town Planner will perform bi-weekly inspections of the site during construction to ensure that the developer is adhering to the conditions set forth in the decision. 8) PRIOR TO THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY: a) The applicant must submit a letter from the architect and engineer of the project stating that the building, landscaping,lighting and site layout substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board. Alternatively,the applicant and/or property owner may provide a bond,determined by the Planning Board,to cover the full amount of the landscaping materials and installation if weather conditions do not permit the completion of the landscaping prior to the use of the parking area. b) The Planning Staff shall approve all artificial lighting used to illuminate the site. All lighting shall have underground wiring and shall be so arranged that all direct rays from such lighting falls entirely within the site and shall be shielded or recessed so as not to shine upon abutting properties or streets. The Planning Staff shall review the site. Any changes to the approved lighting plan as may be reasonably required by the Planning Staff shall be made at the owner's expense.The applicant must submit a letter from the architect and engineer of the project stating that the building,signs, landscaping, lighting and site layout substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board.All site lighting shall provide security for the site and structures however it must not create any glare or project any light onto adjacent residential properties. c) The commercial fire sprinkler systems must be installed in accordance with referenced standard NFPA 13D and in accordance with 780 CMR,Chapter 9 of the Massachusetts State Building Code. Certification that the systems have been installed properly in accordance with the above 6 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 referenced regulations must be provided from both the North Andover Fire Department and the North Andover Building Department to the applicant. The applicant must then provide this certification to the North Andover Planning Department. d) Any and all signage plans for the site,which have been provided to the Planning Board during the site plan review process,were presented for the materials of the signage only. This includes any and all signage relative to the Site Assignment Decision incorporated as part of this decision. Any signage plans must conform to Section 6, Signage and Outdoor Lighting Regulations of the Town of North Andover Zoning Bylaw and must be approved by Building Department. In no way is the applicant to construe that the Planning Board has reviewed and approved the signage plans for Zoning Compliance as that is the jurisdiction of the Building Department. All additional permits must be obtained by the applicant prior to construction. e) In accordance with the Site Assignment Decision,TBI shall develop a clear route map for all trucks (inbound and outbound)that will be distributed to drivers, faxed and emailed. The route will clearly direct drivers to I-495 and the Route 125 Connector access/egress point. Further,all trucks entering and exiting the facility shall follow the designated route except when performing collection in North Andover,or unless an exception applies pursuant to Board of Health trash truck regulations. 9) PRIOR TO THE FINAL RELEASE OF ALL SECURITY AND ESCROWED FUNDS a) The Planning Staff shall review the site. Any screening as may be reasonably required by the Planning Staff will be added at the Project Owner's expense. b) A final as-built plan showing final topography,the location of all on-site utilities, structures, curb cuts, parking spaces,roadway/access way construction, drainage structures, and facilities must be submitted to the Planning Department. The applicant must submit a letter from the architect and engineer of the project stating said items substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board. 10. The requirements and conditions contained within the Site Assignment Decision dated June 22,2006 and issued by the North Andover Board of Health are contained in the Planning Board's files and are hereby incorporated by reference into this decision and public record. The applicant shall comply with all conditions and requirements said Decision. Any non-compliance with the requirements and conditions of said Decision shall violate this Site Plan Review Special Permit 11. In accordance with the Site Assignment Decision,TBI shall contribute up to $200,000 towards the installation and construction of a traffic light at the intersection of Holt Road and Route 125. Monies not already utilized for the engineering, installation,and/or construction of the traffic light will be placed into an escrow account with the Town by the applicant. Said amount shall only be utilized by the applicant or Town for the purpose of installing and constructing the signalized traffic light at a future date. 12. All site work and external construction activity shall be limited to between 7:00 a.m. and 7:00 p.m. Monday through Friday and between 8:00 a.m. and 5:00 p.m. on Saturday. 13. All existing plantings and screening depicted on the approved plans shall remain in perpetuity over the life of the project. 7 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2,2007 12. The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. 13. Gas, Telephone, Cable and Electric utilities shall be installed underground as specified by the respective utility companies. 14. No open burning shall be done except as is permitted during burning season under the Fire Department regulations. 15. No underground fuel storage shall be installed except as may be allowed by Town Regulations. 16. The provisions of this conditional approval shall apply to and be binding upon the applicant, its employees and all successors and assigns in interest or control. 18. All snow storage is to be removed as needed to provide sufficient access throughout the site and to ensure the proper safety of vehicles and pedestrians. Snow storage shall not result in the loss of parking spaces except during removal operations. The Town Planner shall direct the applicant to remove snow to an offsite location if it is determined that onsite snow storage is insufficient. 19. The Planning Board expects that the project will be built in accordance with the herein referenced plans and specifications and in full accordance with the design elements and features displayed and discussed during the Public Hearings. Any revisions shall be submitted to the Town Planner for review in accordance with Section 8.3.8 of the Zoning Bylaw. If the Town Planner in his/her sole discretion deems these revisions to be substantial as defined in Section 8.3.8,the applicant must submit revised plans to the Planning Board for approval. 20. This Special Permit approval shall be deemed to have lapsed after October 2, 2009(two years from the date permit granted)unless substantial use or construction has commenced. Substantial use or construction will be determined by a majority vote of the Planning Board. 21.The following information shall be deemed part of the decision: Plan titled: Site Plan Review 2007 Prepared for TBI,hie. North Andover,Massachusetts Prepared for: TBI,Inc. 210 Holt Road North Andover,MA Prepared by: Brown and Caldwell 48 Leona Drive, Suite C Middleborough,MA 02346 Scale: 1"=40' and 1"=30' Date: July 2007,Various Revision Dates Sheets: l of 10,Revised 9/25/07; 2,3,4, 5 and 10 of 10,Revised 9/12/07; 6 of 10,Revised 9/14/07; and 7, 8 and 9 of 10,Revised 8/22/07 Report titled: Site Plan Review Application TBI,Inc. Recycling Facility and Solid Waste Transfer Station 8 TBI,Inc.,210 Holt Road Site Plan Review Special Permit October 2 2007 E 1,V"W North Andover,MA Prepared for: TBI,Inc. 2001 OCT 15 PIN 4 1 210 Holt Road North Andover,MA Prepared by: Brown and Caldwell h$ § h'; r 1 48 Leona Drive, Suite C MA 3 S' _- Middleborough,MA 02346 cc: Town Departments Applicant Engineer Abutters 9 i Massachusetts Department of Environmental Protection Bureau of Resource Protection -Wetlands DEP File Number: WPA Form 5 -Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. General Information Important: North Andover When filling From: 1.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 William Thomson TBI Inc. use the return a. First Name b.Last Name c.Company key. 210 Holt Raod d. Mailing Address Q North Andover MA 01845 e. City/Town f.State g.Zip Code r 4. Property Owner(if different from applicant): Holt Road, LLC a. First Name b. Last Name c.Company 210 Holt Road d. Mailing Address North Andover MA 01845 e. City/Town f.State g.Zip Code 5. Project Location: 210 Holt Road North Andover a. Street Address b.City/Town Map 34, 77 Lots 27, 38, 40,14 c.Assessors Map/Plat Number d.Parcel/Lot Number Latitude and Longitude, if known (note: 71deg-07'10" 42deg-43'25" electronic filers will click for GIS locator): e.Latitude f.Longitude s. 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) 9889, 10373 298, 301, 332 c. Book d.Pag 7/12/07 � 17 Jig 7 7. Dates: a.Date Notice of Intent Filed b.Date ublic eating Closed c.Dat of Iss6ance7 a. Final Approved Plans and Other Documents (attach additional plan or document references as needed): PLans to Accompany Notice of Intent a. Plan Title Brown and Caldwell Phillip N. Jagoda, P. E. b. Pr pared.By c.Signed and Stamped by 971lev�'ision7 1" =40' d. Final Dated i e.Scale � Q'�w� f.Additional Plan or Document Title g. Date 9. Total WPA Fee Paid: $1,250.00 $237.50 $1,012.50 a.Total Fee Paid b.Statefee Paid c.City/Town Fee Paid wpaform5.doc• rev.3/1/05 Page 1 of 9 LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Findings 1. 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 h. ®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 10.05(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. ❑ Bank a.linear feet b.linear feet c.linear feet d.linear feet 4. ❑ Bordering Vegetated Wetland a.square feet b.square feet c.square feet d.square feet 5. ❑ Land Under a.square feet b.square feet c.square feet d.square feet Waterbodies and Waterways e.cu.yd dredged f,cu.yd dredged wpaform5.doc• rev.311/05 Page 2 of 9 LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Findings (cont.) Resource Area Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 6. [1 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. ❑ RiVerfront 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) s. ❑ Designated Port Indicate size under Land Under the Ocean, below Areas 1o. ❑ 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.c/y nourishmt. d.c/y nourishmt. 13. ❑ Coastal Dunes a.square feet b.square feet c.Gy 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 242-1404 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, WA DEP"] "File Number 242-1404 " wpaform5.doc•rev.3/1/05 Page 4 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 — Order of Conditions 242-1404 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 ofthe 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 See attached space for additional conditions, select box to attach a text document vrpaform5.doc• rev.3/1/05 Page 5 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 D. Findings Under Municipal Wetlands Bylaw or Ordinance i. 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: 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: North Andover Wetland Protection Bylaw Chapter 178 _ 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 C. The special conditions relating to municipal ordinance or law are as follows: space for p 9 p y additional conditions, See attached select box to attach a text document wpaform5.doc• rev.311/05 Page 6 of 9 DEP FILE # 242 - 1404 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 below. To the extent that the following conditions modify or differ from the plans, specifications or other_proposals submitted with e Notice of Intent,the conditions shall control. GENERAL CONDITIONS 18. 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. 19. This Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of property rights. However, the NACC, agent of the NACC or the Department of Environmental Protection (DEP) reserves the right to enter and inspect the property at all reasonable times until a Certificate of Compliance is issued,to evaluate compliance with this Order of Conditions, the Act (310 CMR 10.00),the North Andover Wetland Bylaw and Regulations, and may require any information,measurements, photographs, observations, and/or materials,or may require the submittal of any data or information deemed necessary by the NACC for that evaluation. Further,work shall be halted on the site if the NACC, agent or DEP determines that any of the work is not in compliance with this Order of Conditions. Work shall not resume until the NACC is satisfied that the work will comply and has so notified the applicant in writing. 20. 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. 21.The work authorized hereunder shall be completed within three years from the date of this order. 22.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 thirty days (30) prior to the expiration date of the Order (Refer to Section 8.3 (p.37) of the North Andover Wetland Regulations). 23.The NACC reserves the right to amend this Order of Conditions after a legally advertised public hearing if plans or circumstances are changed or if new conditions or information so warrant. 24. Where the Department of Environmental Protection (DEP) 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. CAWinword\00C\210HoltRd.doc 1 NACC 10/17/2007 DEP FILE #242 - 1404 25. This Order of Conditions is issued under File No. 242-1404. 26. 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 These obligations shall be expressed in covenants in all deeds to succeeding owners of portions of thero er p p t3 .' 27. The term"Applicant" as used in this Order of Conditions shall refer to the owner, any successor in interest or successor in control of the property referenced in the Notice of Intent, supporting documents and this Order of Conditions. The NACC shall be notified in writing within 30 days of all transfers of title of any portion of property that takes place prior to the issuance of a Certificate of Compliance. 28. The proposed work includes: The construction of paved parking areas, stormwater management structures,and associated grading activities associated with a proposed transfer station and recycling facility within the buffer zone to an offsite Bordering Vegetated Wetland (BVV*T) resource area and within a small portion of Riverfront Area (less than 25 s.f.) to Creek Brook. The 30,000 s.f. Facility is located outside of the buffer zone and outside of the Riverfront Resource Area. 29. The work shall conform to the following (except as noted in the remainder of this document where revisions may be required): Notice of Intent filed by: TBI,Inc.(Applicant) C/o William Thomson 210 Holt Road North Andover,MA 01845 Dated July 11,2007,Revised August 24,2007(Attachment D) Holt Road,LLC (Owner) 210 Holt Road North Andover,MA 01845 Prepared by: Brown and Caldwell (Representative) 48 Leona Drive, Suite C Middleborough,MA 02346 Site Plans prepared by: Brown and Caldwell Entitled "Plans to Accompany Notice of Intent" dated July 2007,revised 8/24/07,with additional revisions through 9/17/07,consisting of sheets 1-7. Stamped & Signed by Phillip N.Jagoda,P.E. Sheet 1 - "Existing Conditions",last revised 8/24/07; Sheet 2- "Proposed Grading",last revised 9/17/07; Sheet 3- "Proposed Stormwater Management System", last revised 9/17/07; CAWinword\00C\210HoltRd.doc 2 NACC 10/17/2007 DEP FILE #242 - 1404 Sheet 4- "Detail Sheet I",last revised 8/24/07; Sheet 5 - "Detail Sheet II",last revised 8/24/07, Sheet 6- "Detail Sheet III",last revised 8/24/07; Sheet 7- "Detail Sheet IV",last revised 9/17/07. Other Record Documents: Drainage Calculations &Stormwater Analysis ("Drainage Basin Study - Stormwater Detention/Infiltration System Analysis") - Appendix A dated 7/6/07,revised calculation and supporting documents included in revised Notice of Intent application dated August 24,2007 Operation and Maintenance Plan (Section 6.0 of Notice of Intent)revised August 24,2007; Drainage Review Letter prepared by Eggleston Environmental dated.July 31,2007; Drainage Review Response Letter prepared by Brown and Caldwell dated August 27,2007; Drainage Review Letter prepared by Eggleston Environmental dated September 7,2007; Drainage Review Response Letter prepared by Brown and Caldwell dated September 17,2007; Drainage Review Letter prepared by Eggleston Environmental dated September 24,2007; Proposed Infiltration System Soil Test Pit Data Letter dated September 7,2007 and associated Data Form (no date) and Plan (dated 9/7/07). Other documents not submitted as part of this Notice of Intent filing shall be incorporated herein as record reference documents,which shall include,but may not be limited to,the following. "Application for Large Handling Facility- Authorization To Construct- BWP SW 05 - Recycling Facility and Solid Waste Transfer Station North Andover,Massachusetts",prepared by Brown and Caldwell dated August 2007,received by the Town of North Andover Health Department on August 7,2007. 30. The following wetland resource areas are affected by the proposed work:Buffer Zone to a Bordering Vegetated Wetland (BVW) and a small portion of Riverfront Area (RA). These resource areas are significant to the interests of the Act and Town ByLaw as noted above and therein. The applicant has not attempted to overcome the presumption of significance of these resource areas to the identified interests. C:\Winword\00C\210HohRd.doc 3 NACC 10/17/2007 DEP FILE #242 - 1404 31. The NACC agrees with the applicant's delineation of the wetland resource areas as previously approved under 242-1390 (ORAD). 32.The NACC finds that the intensive use of the upland areas and buffer zone proposed on this site will cause further alteration of the wetland resource areas. In order to prevent any alteration of wetland resource areas a twenty-five foot(25') No-Disturbance Zone and a fifty-foot (50')No-Construction Zone shall be established from the edge of the adjacent wetland resource area. The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local bylaw. No disturbance of existing grade, soils or vegetation is permitted in the No- Disturbance zone. (See Section 3.4 &Appendix F of the local Regulations). 33.This document shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors, and other personnel performing the permitting work are fully aware of the permits terms and conditions. Thereafter,the contractor will be held jointly liable for any violation of this Order resulting from failure to comply with its conditions. 34. The owners of the project and their successors in title, in the event they proceed to alter areas subject to the Commission's jurisdiction under the order, agree that the Order does not in itself impose upon the Town any responsibility to maintain the proposed drainage system and that said Town shall not be liable for any damage in the event of failure. By acceptance of this Order,the owners agree to indemnify and hold harmless to the Town and its residents for any damage attributable to alterations undertaken on this property pursuant to the Order. Maintenance of the drainage system, if accepted by the Town as part of a public way,becomes the responsibility of the Town. 35. Issuance of these Conditions does not in any way imply or certify that the site or downstream areas will not be subject to flooding, storm damage or any other form of water damage. PRIOR TO CONSTRUCTION 36. 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. 37. 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 C:\Winword\OOC\210HoltRd.doc 4 NACC 10/17/2007 DEP FILE #242 - 1404 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. Any Order not recorded by the applicant before work commences may be recorded by the NACC at the applicant's expense. 38. 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 DEP,File Number 242-1404." 39. Prior to the commencement of any work,the applicant shall submit to the Conservation Department a copy of the approved NPDES Storm Water Pollution Prevention Plan (SWPPP) for the file. . 40. Due to the potential for pollution and the nature of the facility,the applicant shall implement any and all BMP's required by any federal,state,and/or local agency in accordance with any and all records and documents referenced herein. Further, one monitoring well shall be installed downgradient to the'-site just beyond the location of the proposed concrete headwall within the location of the proposed rip-rap apron to the east of the project site prior to construction. Water quality testing for MA DEP VPH/EPH (volatile & extractable petroleum hydrocarbons)/VOC's (volatile organic hydrocarbons), in addition to any/all substances specifically required in any permits issued by a federal, state,or local agency. The aforementioned water quality testing shall be conducted by a certified analytical laboratory (duly licensed by the Commonwealth of Massachusetts) prior to any site development activities and shall also occur after 1 year in which the facility is in operation and once per year thereafter. The Water quality data and associated analysis/reports shall be submitted to the NACC immediately upon collection and analysis for review. Should the NACC find that water quality has been compromised,whereas exceeding initial pollutant levels/standards,the NACC reserves the right to take appropriate action for compliance to said water quality standards,at the applicant's expense. 41. Any changes in the submitted plans caused by the applicant, state or federal agency, such as the Massachusetts Department of Environmental Protection, another Board's decision or resulting from this Order of Conditions must be submitted to the NACC for approval prior to implementation. Said revisions shall be submitted as part of the record filing even if located outside of the buffer zone and therefore outside of the NACC's jurisdiction. 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 still be 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 C:\Winword\OOC\210HoltRd.doc S NACC 10/17/2007 DEP FILE # 242 - 1404 construction. No work shall begin on a project until written approval has been granted by the NACC. 42. It is the responsibility of the applicant, owner, and/or successor(s) to ensure that all conditions of this Order of Conditions are complied with. The project engineer and contractors are to be provided with a copy of this Order of Conditions and referenced documents before commencement of construction. 43. The applicant submitted a Construction Sequencing Plan as part of the approved Notice of Intent application and is referenced herein. However,prior to any work commencing on site,the applicant shall submit a revised construction sequencing plan to the NACC for review and approval to include additional items,if not already included, such as a dated timetable of construction,the construction of compensation and retention areas,installation of sedimentation/erosion control devices,roadway infrastructure,and the construction of the associated stormwater management structures. The construction sequence shall specify that the stormwater management structures will be constructed first,prior to any other site preparation. This timetable must continue to be updated throughout the project. 44. Wetland flagging shall be checked prior to start of construction and shall be re-established where missing. All wetland flagging shall remain visible and enumerated per the approved plan(s) throughout the life of the project and until a Certificate of Compliance is issued so that erosion control measures can be properly placed and wetland impacts can be monitored. The proposed limit of work shall be shall be clearly marked with stakes or flags and shall be confirmed by the NACC. Such markers shall be checked and replaced as necessary and shall be maintained until all construction is complete. Workers should be informed that no use of machinery, storage of machinery or materials, stockpiling of soil, or construction activity is to occur beyond this line at any time. All flags used for the above purposes shall be of a color different from other flagging used on the site. 45. A row of staked hay bales backed by trenched siltation fence shall be placed between all construction areas and wetlands. The erosion control barrier will be properly installed and placed as shown on the plans approved and referenced herein 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. The NACC reserves the right to impose additional conditions on portions of this project to mitigate any impacts which could result from site erosion, or any noticeable degradation of surface water quality discharging from the site. For example, installation of erosion control measures may be required in areas not shown on the plan(s) referenced in this Order of Conditions. Should such installation be required by the NACC, they shall be installed within 48 hours of the Commissions request. C:\Winword\00C\210HoltRd.doc 6 NACC 10/17/2007 DEP FILE#242 - 1404 46. The applicant shall have on hand at the start of any soil disturbance, removal or stockpiling, a minimum of 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. All additional emergency erosion controls shall be on site prior to the commencement of any work on site and will be verified by the Conservation Department during the pre- construction meeting. 47. A check payable to the Town of North Andover shall be provided in the amount of $3,000,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 through the NACC before commencement of work. Said 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 provisions, satisfactory to the NACC,have been made for performance of any conditions which are of continuing nature. The applicant may propose a monetary 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. 48. The applicant and/or the legal owner of that portion of land upon which these Orders of Conditions have been placed shall provide to the NACC prior to transferring, or assigning any portion of said land to another party,subject to said Orders of Conditions,the "Compliance Certification Form Affidavit" attached via"Appendix A" signed under the pains and penalties of perjury,stating that said applicant and/or owner has read these Orders of Conditions and is in compliance with each and every condition. This document shall apply to each of the conditions referenced herein and shall be provided to the Conservation Department at least five (5) business days after to the closing of said land transaction. 49. Once these above mentioned pre-construction requirements are complete,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,the engineer,wetland scientist and the applicant to ensure that all of the Conditions of this Order are understood. This Order shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors and other personnel performing the permitted work are fully aware of the permit's terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order of Conditions resulting from failure to comply with its conditions. 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. A reasonable period of time shall be provided as notice for each pre- construction meeting(e.g. 72 hours). C:\Winword\OOC\21OHoltRd.doc 7 NACC 10/17/2007 DEP FILE # 242 - 1404 STORMWATER MANAGEMENT CONDITIONS 50. All construction and post-construction stormwater Y management systems shall be conducted in accordance with the approved construction sequence, supporting documents and plans submitted with the Notice of Intent,the Department of Environmental Protection Stormwater Management Policy,and the approved Operation and Maintenance Plan attached herein. 51. Evidence of maintenance of the stormwater management system shall be provided to the NACC on an annual basis by a Registered Professional Civil Engineer. The first report shall be submitted to the NACC one year after the first stormwater structure goes on-line and annual reports must continue to be submitted until a Certificate of Compliance is issued. Compliance with the designed stormwater management system and associated stormwater management conditions shall be satisfied prior to the issuance of a Certificate of Compliance. 52. All drainage structures shall be properly installed and functional. During construction, all drainage structures shall be maintained,as outlined in the approved Operation and Maintenance Plan attached herein. 53. Construction of the stormwater structures shall be constructed and functioning as part of the initial project phase,immediately following clearing and rough grading of the site to serve as siltation control during construction. Runoff from the site shall be directed towards these basins. 54.Temporary and/or permanent basins being used for sedimentation and dewatering during construction shall be cleaned of sediment when levels exceed six (6) inches. The basins shall be cleaned of sediment prior to final grading and construction of permanent stormwater basins. 55.There shall be no increase in the post development discharges from the storm drainage system or any other changes in post development conditions that alter the post development watershed boundaries as currently depicted in the Notice of Intent and approved by this Order of Conditions, unless specifically approved in writing by the Commission. 56. Water quality down gradient of BVW's shall not differ significantly following completion of the project from the pre-development conditions. There shall be no sedimentation into wetlands or water bodies from discharge pipes or surface runoff leaving the site. 57. Prior to the issuance of the Certificate of Compliance,the applicant shall be responsible for cleaning all stormwater structures,in accordance with the approved Operation & Maintenance Procedures Plan attached herein and the associated stormwater management conditions referenced herein. C'\Winword\00C\210HoltRd.doc 8 NACC 10/17/2007 DEP FILE # 242 - 1404 58. The applicants, owners, and their successors and assignees, shall maintain all culverts, collections basins, traps, outlet structures, subsurface storage areas, and other elements of the drainage system, unless put into an easement to the Town of North Andover, in order to avoid blockages and siltation which might cause failure of the system and/or detrimental impacts to on-site or off-site resource areas,.and shall maintain the integrity of vegetative cover on the site. DURING CONSTRUCTION 59. Accepted engineering and Best Management Practices (BMPs)for construction standards shall be followed in the conduct of all work. 60. A crushed stone construction entrance shall be designated at all entrance/exit drives to minimize soil/material tracking in accordance with the approved standards and specifications. Construction entrances shall be maintained and reinforced as necessary. 61. Erosion control devices shall be inspected regularly; any entrapped silt shall be removed to an area outside of the buffer zone and wetland resource areas; silt fence and hay bales shall be replaced as necessary.The areas of construction shall remain in stable condition at the close of each construction day. All erosion controls shall be in place throughout the duration of any construction on site or unless authorized by the Conservation personnel. 62. Upon beginning work, the applicant shall submit written progress reports every 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. 63. The NACC finds that a fence is necessary to be installed around the entire project site in order to deter trash and other debris from entering the wetland resource area and associated buffer zones and as required by the Department of Environmental Protection pursuant to the site assignment and as referenced and shown^on the approved plans and documents referenced herein. 64. All catch basins shall contain oil/gasoline traps, and it shall be a continuing condition of this order, even after a Certificate of Compliance is issued,that the oil/gasoline traps in the catch basins be maintained. All catch basins shall be free of all accumulated silt and debris before Compliance is issued and the owner or his/her agent shall so specify in the request for Compliance. 65. The sewer lines on the site,where they cross wetland resource areas, shall be tested for water tightness in accordance with North Andover DPW standards. 66. Silt sacs/filter fabric or other siltation/sedimentation protection methods shall be installed at any catch basin/storm drain within 50 feet of the work. CAWinword100C\210HoltRd.doc 9 NACC 10/17/2007 DEP FILE # 242 - 1404 67.Approved de-watering activities anticipated shall be supervised and witnessed by a qualified environmental professional. This designee must be on-site at all times while dewatering is occurring_ De-watering activities shall be conducted as shown on the approved plans and shall be monitored daily by the erosion control monitor to ensure that sediment laden water is appropriately settled prior to discharge toward the wetland resource areas. No discharge of water is allowed directly into an area subject to jurisdiction of the Wetlands Protection Act and/or the North Andover Wetland Bylaw. If emergency de- watering requirements arise, the applicant shall submit a contingency plan to the Commission for approval,which provides for the pumped water to be contained in a settling basin,to reduce turbidity prior to discharge into a resource area. 68. Associated pavement and roadways shall be swept at least once per week or as directed by the Site Supervisor,Project Manager,or the Conservation staff for as long as the site remains exposed and unstabilized. 69. 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 on any of the foregoing. 70. All exposed soil finish grade surfaces shall be immediately landscaped and stabilized, or loamed, seeded and mulched,with a layer of mulch hay. All disturbed areas must be graded, loamed and seeded prior to November 18t of each year. Outside of the growing season, exposed soil finish grade surfaces shall be stabilized with a layer of mulch hay until climate conditions allow for seeding. During construction, any area of exposed soils that will be left idle for more than 30 days shall be stabilized with a layer of mulch hay or other means approved by the NACC. 71. No re-grading 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. 72.Equipment shall not be staged overnight within 100 feet of a wetland resource area. 73.There shall be no stockpiling of soil or other materials within twenty-five(25) feet of any resource area. 74.Washings from concrete trucks, or surplus concrete, shall not be directed to, any drainage system, or wetland resource area. 75. 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. However, no trash dumpsters will be allowed within 50' of areas subject to protection under the Act or local Bylaw. CAWinword\00C\210HoltRd.doc 10 NACC 10/17/2007 DEP FILE #242 - 1404 76. 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. AFTER CONSTRUCTION 77. 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. 78. Fertilizers utilized for landscaping and lawn care shall be slow release, low-nitrogen types (<5%), and shall not be used within 25 feet of a resource area. "Pesticides and herbicides shall not be used within 100 feet of a 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 Towns Wetland Protection Bylaw and shall remain in perpetuity. 79. The approved Operation &Maintenance Plan is fully binding upon the applicant and/or owners, successors,agents,associations,heirs and assigns and must be adhered to in perpetuity. 80. Prior to the issuance of a Certificate of Compliance,the applicant shall submit an Affidavit from the assignee (s) acknowledging the Operation &Maintenance responsibilities of the stormwater management systems in accordance with the approved Operation &Maintenance Plan and other perpetual conditions mandated in this Order. 81. No Certificate of Compliance will be granted until such time as-three consecutive groundwater quality samples return results equivalent to or below the baseline sample results obtained in accordance with condition #40 of this Order of Conditions. Further, prior to the issuance of a Certificate of Compliance,the same certified analytical laboratory (duly licensed by the Commonwealth of Massachusetts) shall sample the water quality at the installed well for final analysis. Final reporting and analysis shall be submitted to the NACC for review. 82. No road salt, sodium chloride, or other de-icing chemicals shall be used on paved surfaces within the buffer zone, and any arrangement for snow removal shall so stipulate due to the importance of the site and wetlands. Further,snow stockpiling is prohibited within 50 feet of any/all wetland resource areas on the site. C:\Winword\OOC\210HoltRd.doc 11 NACC 10/17/2007 DEP FILE # 242 - 1404 83.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. 84. Upon approved site stabilization by Conservation staff,the erosion controls shall be removed and properly disposed of and all exposed unvegetated areas shall be seeded. 85. Upon completion of the project the applicant shall submit the following to the Conservation Commission as part of a request for a Certificate of Compliance: a. WPA Form 8A - "Request for a Certificate of Compliance." b. A letter from the applicant requesting a Certificate of Compliance. c. The name and address of the current landowner. d. Signed statements from the individual property owners shall be submitted with the request for a Certificate of Compliance indicating that they read and understood the recorded Order of Conditions prior to purchasing their property. e. The name and address of the individual/trust or corporation to whom the compliance is to be granted. f. The street address and assessor's map/parcel number for the project. g. The DEP file number. h. A written statement from a Registered Professional Civil Engineer (and/or Registered Professional Land Surveyor) of the Commonwealth certifying that the work has been conducted as shown on the plan(s) and documents referenced above, and as conditioned by the Commission. i. An"As-Built" plan prepared and signed and stamped by a Registered Professional Civil Engineer (and/or Registered Professional Land Surveyor) of the Commonwealth,for the public record. This plan will include: ➢ "As-Built" post-development elevations of all drainage &stormwater management structures constructed within 100 feet of any wetland resource area. NOTE: if portions of the stormwater systems exist partially within the Buffer Zone than the entire structure must be depicted to accurately verify compliance. ➢ "As-Built" post-development elevations and grades of all filled or altered wetland resource areas including the encompassing buffer zone,which is regulated as a resource area under the local Wetland Protection Bylaw. )stances from structures to wetland resource areas. Structures include (but are not limited to) septic systems,additions,fences, sheds, stone walls, pools, retaining walls,subsurface utilities and decks. CAWinword\00C\210HoltRd.doc 12 NACC 10/17/2007 DEP FILE #242 - 1404 ➢ A line showing the limit of work and the extent of existing erosion control devices. "Work"includes anv disturbance of soils or vegetation. ➢ Location of all subsurface utilities entering the property. 86. The following special conditions shall survive the issuance of a Certificate of Compliance (COC) for this project: ➢ 25' No-Disturbance Zone and a 50' No-Construction Zone shall be established from the edge of adjacent wetland resource areas except in those locations approved under this filing. Future work within 100' of existing wetland resource areas will require a separate filing with the NACC. The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local'Bylaw (Condition#32); ➢ Discharge or spillage of pollutants (Condition#76); ➢ Maintenance of catch basins (Condition #64); ➢ Maintenance of all culverts,collections basins, traps, outlet structures, subsurface storage areas, and other elements of the drainage system,unless put into an easement to the Town of North Andover,in order to avoid blockages and siltation,which might cause failure of the system and/or detrimental impacts to on-site or off-site resource areas(Condition#58); ➢ Prohibition of underground fuels (Condition#77); ➢ Limitations on the use of fertilizers,herbicides,road salts, de-icing compounds and pesticides (Conditions #78 & #82). ➢ The attached"Stormwater Operations and Management Plan', including Best Management Practices. No additional filings will be required to conduct maintenance of the above referenced system and plan (Condition #79). C:\Winword\00C\210HoltRd.doc 13 NACC 10/17/2007 DEP FILE # 242 - 1404 APPENDIX A-AFFIDAVIT 1� on oath do hereby depose and state: (authorized agent of applicant and/ or owner) (PLEASE CHECK AT LEAST ONE BLOCK) 1) I am the of (position with applicant) (applicant's name) the applicant upon whom the Order of Conditions have been (DEP or NACC File#) placed upon by the North Andover Conservation Commission (NACC). and/ or 2) 1 am the of (position with owner) (owner) the owner upon whose land Order of Conditions have been (DEP or NACC File#) placed upon by the NACC. , ♦ I hereby affirm and acknowledge that I have received said Order of Conditions and have read the same and understand each and every condition,which has been set forth in said Order of Conditions. ♦ I hereby affirm and acknowledge that on this day of , 20___, I inspected said property together with any and all improvements,which have been made to the same and hereby certify that each and every condition set forth in the Order of Conditions are presently in compliance. ♦ I hereby affirm and acknowledge that this document will be relied upon by the NACC, as well as any potential buyers of said property, which is subject to the Order of Conditions. Signed under the pain and penalties of perjury'this day of 20 (Authorized agent of applicant or owner) C:\Winword\OOC\21MoltRd.doc 14 NACC 10/17/2007 Co CL Narrative&Supporting Information TBI,Inc. ' Revised August N,2007 6.0 Inspection And Maintenance _ 6.1 Routine Inspections The owner and operator of the facility is TBI,Inc.,located at 210 Holt Road,North Andover,MA. TBI will be responsible for the operation and maintenance of the facility,which in part includes the operation and maintenance of the stormwater controls. The drainage system (catchbasins,manholes,Stormceptor® structures, and StormTankTM system)will be inspected for sediment buildup,oil and damage. The results of each inspection are entered into an inspection log. Inspections are performed on a monthly basis or as necessary.The Stormcepto4 structures are measured for sediment.depth a minimum of every six months. f' The following inspection schedule shall be performed of the stormwater management system: • The subsurface infiltration system shall be inspected a minimum of semi-annually(twice yearly),utilizing the proposed inspection ports. • During the first year of operation, all stormwater structures should be inspected after each large rain event(greater than 1.5 inches),and also three days after a large rain event to verify proper function. 6.2 Maintenance Plan The facility will incorporate a routine maintenance program to assure proper operation. The program will include maintenance of the following. • During the first year of operation, catchbasins shall be cleaned quarterly(4 times/year),then annually thereafter if solids accumulation exceeds half the sump depth. T • Sediment will be removed from the Stormc§wrO structures once the depth reaches 8 inches. Maintenance of the Stormceptor®structures will be performed in accordance with the Owners Manual.. • Best Management Practices will be implemented to prevent the buildup of litter on storm water catchbasins and to prevent litter from entering the stormwater system. • The paved areas of the facility will be swept on a weekly basis to control dust and help to reduce sediment from entering into the storm water system. AW 7.0 Sedimentation & Erosion Control Plan 7.1 Introduction The greatest potential for sediments generation will occur during the.construction phase of the project. An extensive erosion and sedimentation program is proposed and should be-diligently implemented during construction of the project The erosion control•program will minimize erosion and sedimentation that could potentially impact abutting properties. During construction,water quality will be maintained by minimizing erosion of exposed soils and siltation. -v tated as soon as possible after work in barriers will be installed and exposed soil areas re p Erosion control bam � E an area is completed. The following table is an anticipated sequence of construction for the project 8 LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 E. Issuance This Order is valid for three years, unless otherwise specified as a special ,/d condition pursuant to General Conditions#4, from the date of issuance. 1.Date of Issu ce Please indicate the number of members who will sign this form: �J 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 prope wrier, if different from applicant. Signatures: �-- t� Notary Acknowledgement Commonwealth of Massachusetts County of Essex North 10 414 d� btr 012 00 On this Day of Month Year Before me, the undersigned Notary Public, cS�o" ' ,1•�s�� 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 City/Town DONNA K WEDGE NOTARYweuc COMMOMWMTHOFMASSAMETTS SSZ134= of Notary Public r� My Comm.Expires Aug.T,2009 �Jl w<� +CJ ` Printed Nam of No ary Public Place notary seal and/or any stamp above 001. 7 DOO 9 My Commi sio�res(Date) This Order is issued to the applicant as follows: Yby hand delivery on ❑ by certified mail, return receipt requested,on r Date Date wpaform5.doc• rev.3/1/05 Page 7 of 9 LAMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1404 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. 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 242-1404 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: 242-1404 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 1 Town of North Andover ` ° °�� Office of the Planning Department • Community Development and Services Divisiow n - ' Osgood Landing �9S RATED �S� 16M Osgood Street 2007 OCT -4 M 11. 37 S^CRUSE Building#20,Suite 2-36 Lincoln Daley North Andover,Massachusetts 01845 Town Planner ' P(978)688-9535 MASS, �J oUo t 'u F(978)688-9542 October 4, 2007 C/0 Michael O'Neill, of O'Neill Associates Civil Engineers and Land Surveyors 234 Park Street North Reading, MA 01864 Regarding: Holt Road, LLC 210 Holt Road North Andover, MA 01845 Dear Mr. O'Neill, As you are aware,the Planning Department received a Form A plan on September 12, 2007 proposing a lot line change for property located at 210 Holt Road,North Andover, MA, located within the I-2 zoning district. An extension was received on September 26, 2007 waiving the time constraints until October 4, 2007. The process will allow for the removal of the existing 3 lot lines i.e. Lot 1 thru 3 in order to combine the existing 3 lots into the existing lot 4 in order to form one lot containing 338,608 s.f. Reference Plan of Land in North Andover, Massachusetts, 210 Holt Road,prepared for Holt Road, LLC, 210 Holt Road,North Andover, MA by O'Neill Associates, Civil Engineers and Land Surveyors, 234 Park Street,North Reading, Massachusetts, 01864, and Jack D. Hagerman, Professional Land Surveyor, #28090, dated September 11, 2007 revised October 1, 2007. Your plan has been endorsed and approved. Sincerely, Lincoln Dal y, Town Tanner BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 6889530 HEALTH 688-9540 PLANNING 688-9535 r ' FORM A 2001 SEP 12 Pik 2-- 33 APPLICATION FOR APPROVAL NOT REQUIRED . DATE: —\Z 9k ASSA0,11 r'Uy. (Stamp two (2) forms with the Town Clerk. File one (1) form with the Town Clerk and one (1) form with the Planning Board.) To the Planning Board: The undersigned,believing that the accompanying plan of property in the Town of North Andover,Massachusetts, does not constitute a subdivision within the meaning of the Subdivision Control Law,herewith submits said plan for a determination and endorsement that the Planning Board approval under the Subdivision Control Law is not required. 1.Name of Applicant: J-+c _ i_j_ Address: .Z %,c-- i--kCL.i `2 C--,P%> 2.Location and Description of Property[include Assessor's Map andLot and ZoningDistrict(s)]: ?---( A-P ;fir Lr i 2--I � S t»1Cx `t �� l4 ."mat. 2 l;i—Z _ ►�a� 3�.� �s�t cv3ci. Y 3.Deed Reference: Book 3 � l Page a '� S or CeIt�fica&,<Title:_ ea n z,,; 4.Name of Surveyor: �7,-\C- Address: �,-- 4 t 1 ire \t alt.° Z t""{t14 C% l 6 d X Signature of O a t Address: `Z. i Please indicate the grounds(either A,B,C or D,not a combination)on which you believe your plan not to be a subdivision. A. Each lot on the plan meets one of the following criteria: 1. Has the frontage,lot area,and lot width required under the Zoning By-law on: d a) a public way,or b) away which the Town Clerk certifies is maintained&used as a public way,or c) a way shown on a plan approved and endorsed by the Planning Board under the Subdivision Control Law,recorded in Plan Book Plan ,or d) a way in existence before the adoption of the Subdivision Control Law by the Town and which the Board finds adequate for the way's proposed use,or e) a way shown on a plan of a subdivision recorded at the Registry of Deeds or the Land Court prior to the adoption of the Subdivision Control Law. B. Each Lot has been clearly marked on the plan to be either: a) joined to and made part of an adjacent lot,or b) labeled"Not A Building Lot". C. Each lot on the plan contains a building which existed prior to the adoption of the Subdivision Control Law. D. The plan shows an existing parcel with no new lot division(s) and has frontage on a way described above. Received: Town of North Andover Town Clerk(date stamp): Signature of Town Official receiving this application: it Notice to APPLICANT/TOWN CLERK of action of Planning Board on accompanying plan: Che North Andover Planning Board has determined that said plan does not require approval under the Subdivision Control Law,and the appropriate endorsement has been made upon the same. 2. The North Andover Planning Board has determined that said plan shows a subdivision,as defined by G.L.c.41,s. 81-L and must therefore be re-submitted to it for approval under the Subdivision Control Law. Very truly yours, North Andover Planning Board By:c- Date:���� :, , GENE Q q r FORMA 2007 SEP 12 PM 2* 32 APPLICATION FOR APPROVAL NOT REQUIRED DATE: H0 R T H ANfl')0`�` MASS ACHIJS ETT (Stamp two (2) forms with the Town Clerk. File one (1) form with the Town Clerk and one (1) form with the Planning Board.) To the Planning Board: The undersigned,believing that the accompanying plan of property in the Town of North Andover,Massachusetts, does not constitute a subdivision within the meaning of the Subdivision Control Law,herewith submits said plan for a determination and endorsement that the Planning Board approval under the Subdivision Control Law is not required. 1.Name of Applicant: c 1.i ZaQ, L Le Address: -ka t�4o2;%A 2.Location and Description of Property[include Assessor's Map andLot and ZoningDistrict(s)]: C2OcL 331 J La s 2`1 , 38 c A o tulA? -1'1/ L-3 k4 *T—"- DQS`C ZiAL 3.Deed Reference: Book 1 03-1 3 Page 332 9 0 or Ce�ficatlb<Title: 9p, g 9 3 0 4.Name of Surveyor: ZTNC- — 1—t 7,L-S, Address: zl/ 4a--- Nt`3 . 2rca, a c.�9� , k-t ® 1864 Signature of O Address: Z t o '" P-40 tz z" *--'p-ov �'�' Please indicate the grounds(either A,B,C or D,not a combination)on which you believe your plan not to be a subdivision. A. Each lot on the plan meets one of the following criteria: 1. a Has the frontage,lot area,and lot width required under the Zoning By-law on: V a) a public way,or b) a way which the Town Clerk certifies is maintained&used as a public way,or c) a way shown on a plan approved and endorsed by the Planning Board under the Subdivision Control Law,recorded in Plan Book Plan ,or d) a way in existence before the adoption of the Subdivision Control Law by the Town and which the Board finds adequate for the way's proposed use,or e) a way shown on a plan of a subdivision recorded at the Registry of Deeds or the Land Court prior to the adoption of the Subdivision Control Law. B. Each Lot has been clearly marked on the plan to be either: a) joined to and made part of an adjacent lot,or b) labeled"Not A Building Lot". C. Each lot on the plan contains a building which existed prior to the adoption of the Subdivision Control Law. D. The plan shows an existing parcel with no new lot division(s)and has frontage on a way described above. Received: Town of North Andover Town Clerk(date stamp): Signature of Town Official receiving this application: Page I of 1 Ippolito, Mary VED From: Jack Hagerman obagerman.onellIQverizon.net] 2007 SEP 20, Pli 5: 19 Sent: Wednesday, September 26,2007 3:10 PM To: Ippolito,Mary Subject: ANR plan for 210 Holt road KI 0 R T I A A .'po v Ei M A S 11 T Town of North Andover Panning Department 1600 Osgood Street North Andover, MA 01845 Dear Mr. Daley: On behalf of the applicant and owners we are hereby requesting an extension of action on the ANR Plan for 210 Holt Road until October 4,2007. Thank you, Michel O'Neill, PPE O'Neill Associates 234 Park Street North Reading, MA 01864 9/26/2007 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP A. General Information Important: North Andover When filling out From.- forms rom:forms on the onlycompthe tab key r, use 2 This Issuance is for(check one): to move your cursor-do nota. ® Order of Resource Area Delineation Only use the return Y key. VQ b. ❑ Order of Resource Area Delineation Subject to Simplified Review 1. ❑ Not Subject to Stormwater Policy I 2. ❑ Subject to Stormwater Policy c. ❑ Amended Order of Resource Area Delineation Note: Before 3. To: Applicant: completing this form consult William Thomson TBI Inc. your local a. First Name b.Last Name Conservation c. Company Commission 210 Holt Road regarding any d. Mailing Address municipal bylaw North Andover MA. 01845 or ordinance. e.City/Town f.State g.Zip Code 4. Property Owner(if different from applicant): Holt Road, LLC a. First Name b. Last Name c.Company 210 Holt Road T Mailing Address North Andover MA. 01845 e. City/Town f.State g.Zip Code 5. Project Location: 210 Holt Road North Andover a. Street Address b.City/Town Map 77, Map 34 Parcel 14, Parcels 27, 38&40 c.Assessors Map/Plat Number d.Parcel/Lot Number Latitude and Longitude(note: electronic filers 71-07'-10" 42-43'-25" will click for GIS locator): e.Latitude f.Longitude 6. Dates: 3/2/07 5/9/07 5/14/07 a. Date Notice of Intent filed b.Date Public Hearing Closed c.Date of issuance 7. Title and Date (or Revised Date if applicable)of Final Plans and Other Documents: Existing Conditions Plan to Accompany Abbreviated Notice of Resource February 2007, Area Delineation (ANRAD) Revised April 4, 2007 See attached c. Title d. Date wpaform4b.doc•rev.01/07 Page 1 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File"umber: WPA Form Q — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Pro Provided by DEP Protection Act M.G.L. c. 131, §40 B. Order of Delineation 1. The Conservation Commission has determined the following (check whichever is applicable): a. ® Accurate: The boundaries described on the referenced plan(s)above and in the Abbreviated Notice of Resource Area Delineation are accurately drawn for the following resource area(s): 1. ® Bordering Vegetated Wetlands (cg 2. Other Resource Area(s), specifically: , eeff�cti�� b. ❑ Modified: The boundaries described on the plan(s) referenced above, as modified by the Conservation Commission from the plans contained in the Abbreviated Notice of Resource Area Delineation, are accurately drawn from the following resource area(s): 1. ❑ Bordering Vegetated Wetlands 2. ❑ Other Resource Area(s), specifically: c. ❑ Inaccurate: The boundaries described on the referenced plan(s)and in the Abbreviated Notice of Resource Area Delineation were found to be inaccurate and cannot be confirmed for the following resource area(s): 1. ❑ Bordering Vegetated Wetlands 2. ❑ Other Resource Area(s), specifically: 3. The boundaries were determined to be inaccurate because: wpaformft.doc•rev.01107 Page 2 of 7 Order of Resource Area Delineation 210 Holt Road- Map 34- Lots 27,38, and 40 and Map 77 Lot 14 (Lots 1,2,3, and 4 as shown on the approved plan) DEP File # 242-1390 Facts &Findings: Jurisdictional wetland resource areas within the subject parcels include a very limited area of the 200- foot Riverfront area boundary associated with Creek Brook to the north east of Lot An off property Bordering Vegetated Wetland(BVW)was delineated and confirmed on the adjacent Lawrence Airport property and Holt Road Excavators property to the south/south east of Lot 1. This resource area was reviewed and approved with exception to wetland flags 159 through 161 upon written permission from the property owners,respectively. The associated 25' No-Disturbance Zone,50' No-Construction Zone,and 100'buffer zones were not depicted on the approved plans, therefore not approved under this filing. The NACC formally approved the aforementioned jurisdictional resource area boundaries at their meeting of May 9,2007. It is important to note that there were questions raised by both the Conservation Administrator and the North Andover Conservation Commission(NACC) during the public hearings as to whether a jurisdictional resource area had once existed to the rear of Lot 1. These questions were raised appropriately from evidence found on aerial photographs and from a memorandum written by the former Conservation Administrator,Julie Parrino,in April of 2003. As a result,the NACC retained Seekamp Environmental Consulting,Inc.to determine if the area in. question was or was at one time a jurisdictional resource area under either the Massachusetts Wetlands Protection Act or North Andover Wetlands Protection Bylaw. Upon investigative studies and a subsequent field review,Seekamp Environmental found that the area in question was not,nor did it previously qualify as,a jurisdictional wetland under either the state Act or the local bylaw. A full report documenting this analysis and subsequent findings in this regard was submitted by Seekamp Environmental and is referenced herein. Record Documents: ➢ Abbreviated Notice of Resource Area Delineation,dated March 1,2007; ➢ Plan entitled"Existing Conditions Plan to Accompany Abbreviated notice of Resource Area Delineation(ANRAD)". Brown and Caldwell,dated February 28,2007,last revised April 4,2007. Stamped and signed by Phillip N.Jagota,P.E.; ➢ Permission of Abutting Property Owner Affidavit from Michael Miller,Airport Manager, Lawrence City Airport,dated March 2007; ➢ Permission of Abutting Property Owner Affidavit from Joseph Cristaldi,President,Holt Road Excavators, LLC, dated March 2007; ➢ Letter from Patrick D.Seekamp,PWS/CWS,Seekamp Environmental Consulting,Inc.,Dated May 8,2007. Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form Q — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP C. Simplified Buffer Zone Review Work within the Buffer Zone pursuant to the Simplified Review(310 CMR 10.02) requires that you must comply with the following conditions. If your project does not meet these requirements, you are required to either file a Determination of Applicability or Notice of Intent or take other corrective measures as directed by the Conservation Commission. Simplified Review Conditions: Work conducted under Simplified Review requires the following: 1. No work of any kind shall occur within any wetland resource areas including Riverfront Area and Bordering Land Subject to Flooding. 2. The inner 0-to-50-foot wide area from the delineated wetland boundary that has a Buffer Zone shall not be disturbed by any work associated with this project, including placement of any stormwater management components. 3. No work shall occur in the Buffer Zone bordering an Outstanding Resource Water(e.g., certified vernal pool, public water supply reservoir or tributary), as defined in 314 CMR 4.00 or border coastal resource areas at 310 CMR 10.25-10.35. 4. No work shall occur in the Buffer Zone adjacent to wetland resources with estimated wildlife habitat(which is identified on the most recent Estimated Habitat Map of State-listed Rare Wetlands Wildlife). 5. Erosion and Sedimentation controls shall be installed and maintained at the 50-foot Buffer Zone line or limit of work(whichever is a greater distance from the resource area)to protect resource areas during construction. 6. If the project is subject to the Massachusetts Stormwater Policy, all work shall be conducted in conformance with an approved Stormwater Management Plan. 7. The Buffer Zone does not contain a slope greater than an average of 15% at its steepest gradient across the 100-foot Buffer Zone. 8. The amount of new impervious surface, in combination with existing impervious surfaces, shall not exceed 40% of the Buffer Zone between 50 and 100 feet. 9. No work is allowed, and no additional NO[ or RDA shall be filed, for any work within the 0-to-50- foot Buffer Zone during the three-year term of an Order associated with this application. 10. Prior to any work being undertaken pursuant to this Order, the wetland resource boundary shall be flagged; all boundary delineation flagging should be maintained for the term of the Order. 11. If stormwater management structures are proposed in the Buffer Zone, the stormwater management structures shall be maintained as required in the Stormwater Plan. Such maintenance constitutes an ongoing condition and is not subject to further permitting requirements. 12. If this ORAD involves work as part of a Simplified Review, the ORAD shall be recorded at the Registry of Deeds prior to the commencement of work per the requirements of Section F. 13. Prior to proceeding with any work under Simplified Review, applicants are required to provide written notice to the Commission one week prior to commencing any work. 14. If work authorized under Simplified Review is commenced, no work is allowed, and no additional NOI or RDA may be filed, for any work within the 0-to-50-foot buffer zone during the term of an ORAD associated with this application. If work authorized under Simplified Review is not commenced, then future NOIs or RDAs may be filed for work within the 0-to-50-footp ortion o t f h e buffer zone. --End of Conditions— wpaform4b.doc-rev,01107 Page 3 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP C. Simplified Buffer Zone Review (cont.) Stormwater Applicability I. ❑ The project is not subject to the Stormwater Policy. 2. ❑ The project is subject to the Stormwater Policy and the Stormwater Plan included for the project complies with all stormwater standards. Ineligibility Determinations Site Conditions: The applicant is not eligible for Simplified Buffer Zone review and must file a Request for Determination of Applicability or Notice of Intent prior to any work because: 3. ❑ Work is within the Buffer Zone of a Coastal Resource Area as defined at 310 CMR 10.25- 10.35. 4. ❑ The Buffer Zone contains existing slopes greater than an average of 15%. 5. ❑ Buffer Zone contains estimated rare wildlife habitat.' 6. ElThe site borders an Outstanding Resource Water.2 Stormwater 7. ❑ The project is subject to the Stormwater Policy and the applicant has not submitted sufficient information to demonstrate compliance with the Stormwater Management Policy. Prior to any work, the applicant must submit plans showing compliance with the standards in the Stormwater Policy, the location of the work, the amount of impervious surface, and the location of erosion controls, to the Commission for its concurrence. (See instructions to ANRAD Form 4A.)The following necessary stormwater information was not submitted by the applicant: a. s. ❑ The project is subject to the Stormwater Policy but the project does not comply with one or more of the stormwater standards(specify which standard(s) not met). a.Standard# b. Standard# 9. ❑ Impervious surface exceeds 40%of the area of the Buffer Zone between 50 and 100 feet from the resource area. 10. ❑ The applicant did not submit plans depicting adequate erosion and sedimentation controls located at the limit of work or at least 50 feet from any resource areas,whichever will be greater. 1 1. ❑ Work is proposed within 50 fleet of a resource area. Notice to Commission Any applicant proposing to proceed under Simplified Buffer Zone Review, as specified in 310 CMR 10.02, must provide written notice to the Commission one week prior to any work. ' Identified on the most recent Estimated Habitat Map of State-listed Rare Wetlands Wildlife of the Natural Heritage and Endangered Species Program. 2 Certified Vemal Pools,public water supplies, or inland ACECs as identified in 314 CMR 4.00. wpaform4b.doc•rev.01/07 Page 4 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP D. Findings This Order of Resource Area Delineation determines that the Stormwater Plan, if applicable, and the boundaries of those resource areas noted above, have been delineated and approved by the Commission and are binding as to all decisions rendered pursuant to the Massachusetts Wetlands Protection Act (M.G.L. c.131, §40)and its regulations (310 CMR 10.00). This Order does not, however, determine the boundaries of any resource area or Buffer Zone to any resource area not specifically noted above, regardless of whether such boundaries are contained on the plans attached to this Order or to the Abbreviated Notice of Resource Area Delineation. 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. If the Abbreviated Notice of Resource Area Delineation was filed as Simplified Review for a Buffer Zone project, the applicant has certified that any work associated with the proposed project meets all eligibility requirements for Simplified Review listed in Section C of this Order. Any work that does not comply with the Simplified Review requirements will require a Notice of Intent or Request for Determination of Applicability. The applicant is responsible for promptly requesting a Certificate of Compliance following completion of any work allowed pursuant to a Simplified Review or no later than three years from the date of the Order of Resource Area Delineation unless the Order is extended. Failure to comply with the conditions of this Order is grounds for the Conservation Commission or the Department to take enforcement action. This Order must be signed by a majority of the Conservation Commission. The Order must be sent 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 DEP Regional Office(see http://www.mass.gov/dep/abouttregion/findyour.htm). E. 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 Resource Area Delineation.When requested to issue a Superseding Order of Resource Area Delineation,the Department's review is limited to the objections to the resource area delineation(s)stated in the appeal request.The request must be made by certified mail or hand delivery to the Department,with the appropriate filing fee and a completed Request for 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 bylaw or ordinance,and not on the Massachusetts Wetlands Protection Act or regulations,the Department of Environmental Protection has no appellate jurisdiction. wpaform4b.doc-rev.01107 Page 5 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: 1 WPA Form 4B — Order of Resource Area Delineationvided by 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 ProDEP F. Signatures and Notary Acknowledgement Please indicate the mber of members who will sign thisform: ` /+1 Number of Signers Sign t r Consefvation Co mission Member Sign ure Conservation Commission Member ig ture o Co s a 11 on mmission Member Signature of Con rvation Commission Member S' nat a of Cons i ommission Member i �Oonservation Commission Member Signature of Conservation Commission Member This Order is valid for three years from the date of issuance. This Order is issued to the applicant and the property owner(if different) as follows: &�by hand delivery on ❑ by certified mail, return receipt requested on [11 lb7 Date Date Notary Acknowledgement Commonwealth of Massachusetts County of Essex North 9 �� HC -16197 Day On this of Month Year Before me, the undersigned Notary Public, $co-t+ F1 0, >Z 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 Cityrrown Conservation Commission GEi . *= :myri AMEM � naatture ofNotarylic.7,2009 ✓©l?/7.4 IV Printed Name of Notary Public Place notary seal and/or any stamp above �/-7/o?009 My commi ion xpires(Date) wpaform4b doc•rev.01/07 Page 6 of 7 LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP G. Recording Information If this Order is issued for purposes of Resource Area Delineation only, this Order should NOT be recorded. If this Order of Resource Area Delineation is issued as part of a Simplified Review, this Order 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 6 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: 242-1390 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 wpaform4b.doc•rev.01/07 Page 7 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands ' Request for Departmental Action Fee Transmittal Form Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. Request Information important: When filling out 1• Person or party making request(if appropriate, name the citizen group's representative): forms on the computer, use only the tab Name key to move your cursor- Mailing Address do not use the return key. City/Town State Zip Code tab Phone Number Fax Number(if applicable) Project Location tenon Mailing Address City/Town State Zip Code 2. Applicant(as shown on Notice of Intent(Form 3), Abbreviated Notice of Resource Area Delineation (Form 4A); or Request for Determination of Applicability(Form 1)): Name Mailing Address City/Town State Zip Code Phone Number Fax Number(if applicable) 3. DEP File Number: B. Instructions 1. When the Departmental action request is for(check one): ❑ Superseding Order of Conditions ❑ Superseding Determination of Applicability ❑ Superseding Order of Resource Area Delineation Send this form and check or money order for$100.00(single family house projects)or$200(all other projects), payable to the Commonwealth of Massachusetts to: Department of Environmental Protection Box 4062 Boston, MA 02211 wpaform4b.doc Page 1 of 2 h LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands Request for Departmental Action Fee Transmittal Form Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Instructions (Cont.) 2. On a separate sheet attached to this form, state clearly and concisely the objections to the Determination or Order which is being appealed. To the extent that the Determination or Order is based on a municipal bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. 3. Send a copy of this form and a copy of the check or money order with the Request for a Superseding Determination or Order by certified mail or hand delivery to the appropriate DEP Regional Office(see http://www.mgqL.gov/dep/abouVregion/fiod your.htm). 4. 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. wpaform4b.doc Page 2 of 2 Town of North Andover N°RTN Off-ice.:of the Zoning Board of Appeals Com un y-Development and Services Division 27 Charles Street NrtlAndover,Massachusetts 01845 'SS,�HUSEt D. Robert Nicetta Telephone(978)688-954 Building Commissioner Fax(978)688-954 Clerical Correction for: Any appeal shall be filed Notice of Decision within(20)days after the Year 2004 date of filing of this notice in the office of the Town Clerk. Property at: 210 Holt Road NAME: Checkmate Development LLC HEARING(S): April 13,June 0,July 8,September 9,October 14,November 18,&December 16,2003,March 29,& May 13,2004 ADDRESS: 210 Holt Road PETITION: 2003-014 North Andover,MA 01845 1 TYPING DATE: August 6,2004 The"typing date"of August 10,2004 for the Notice of Decision filed with the Town Clerk on August 5, 2004 should be corrected to read"August 5,2004". By order of the Zoning Board of AT peals, William I Sulli an,Chairman Decision 2003-9 14 Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 9 8-688-9535 Town of North Andover ,10R7y O`4t�ao ya�7•G Office of the Zoning Board of Appeals Community Development and Services Division • 27 Charles Street 4 17 North Andover,Massachusetts 01845 'SSACNus�` D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 Any appeal shall be filed Notice of Decision within(20)days after the Year 2004 date of filing of this notice in the office of the Town Clerk. Property at: 210 Holt Road NAME: Checkmate Development LLC HEARING(S): April 13,June 10,July 8,September 9,October 14,November 18,&December 16,2003,March 29,& May 13,2004 ADDRESS: 210 Holt Road PETITION: 2003-014 North Andover,MA 01845 TYPING DATE: August 10, 2004 The North Andover Board of Appeals held one public hearing in seven regular sessions and two special sessions opening on April 16,2003 with the reading of the legal notice,only,and closing on ay 13,2004 7:30 PM in the Senior Center, 120R Main Street,andthe North Andover Middle School,495 Vain Street, North Andover,Massachusetts. The Board held seven Under Advisement sessions starting or May 25, 2004 and continuing to this decision on Tuesday,August 3,2004 at 7:30 PM in the Senior Ce iter, 120R Main Street,North Andover,Massachusetts upon the application of Checkmate Developmeln t LLC,210 Holt Road,North Andover requesting a Special Permit from Section 8,Paragraph 8.8.1,and uch ancillary Paragraphs of Section 8,Paragraph 8.8 and Section 2,Paragraph 2.21.6,as may be applicable hereto. The said premises affected are properties with frontage on the South side of Holt Road within the'-2&Adult Use Zone zoning districts. The legal notices were published in the Eagle Tribune on March 31 &April 7, 2003. The following members were present: William J.Sullivan,Walter F. Soule Robert P.Ford, len P. McIntyre,and Joseph D.LaGrasse. Upon a motion by Robert P.Ford and 2nd by Ellen P.McIntyre,the Board voted to adopt as it findings the Findings of Fact just discussed by the Board and consisting of fifty(50)numbered paragraphs contained on fourteen(14)pages. Voting in favor of the findings: William J. Sullivan,Walter F.Soule,R bert P.Ford, Ellen P.McIntyre,and Joseph D.LaGrasse. The Findings of Fact are attached and incorporal ed herein. Upon a motion by Robert P.Ford and 2nd by Joseph D.LaGrasse,the Board voted to deny th Special Permit based upon the findings of the Board,and more particularly based upon: 1. Failure of the applicant to carry the burden of proof as to its lawful authority to pars a the instant application for a Special Permit for an adult use facility on land not its own; 2. Failure of the applicant to provide an adequate number of parking spaces for the pro osed use based upon its own and the Board's understanding of the applicable provisions of th Zoning Bylaw,even without the reduction of parking spaces for unresolved matters,such as parking in the rear yard,insufficient perimeter landscaping buffers,landscaped islands within the on parking area,and exclusions from the required minimum count for parking spaces restricted to handicap plate vehicles and employees of the proposed facility;and, 3. Failure of the applicant to submit to the Board plans that depict a consistent present-, ion of what is proposed,such as the location of the main entrance to the building and proximity of the parking spaces to the lot line,so that the Board may know upon which presentation the Bois to rely and which to evaluate as against the requirements of the Zoning Bylaw. Voting for denial: William J.Sullivan,Walter F. Soule,Robert P.Ford,Ellen P.McIntyre, d Joseph D. LaGrasse. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Pla ing 978-688-9535 Town of North Andover °f �10RT►M Office of the Zoning Board of Appeals Community Development and Services Division « « « � 27 Charles Street North Andover,Massachusetts 01.845 'ssAcMusE< D. Robert Nicetta _ Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 Upon a motion for reconsideration by Walter F.Soule and 2nd by Ellen P.McIntyre,the Board voted to deny the motion to reconsider. Voting for denial: William J.Sullivan,Walter F. Soule Robert P.Ford,Ellen P.McIntyre,and Joseph D.LaGrasse. Town of North Andover Board of Appeals, William J. S llivan,Chairman 2003-014. M77P14&M34 7. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 Town of North Andover Zoning Board of Appeals Special Permit Applica tRon of Checlunate Development,LLC for an Adult Ugi Facility Findines of Fact 1. That on March 13, 2003, Checkmate Development, LLC, (hereinafter sometimes referred to as the "Applicant") filed with the Town Clerk of the Town of North Andover an application for a special permit under Section 8.8 and ancillary paragraphs of Section 2.21.6 of the Zoning Bylaw of the Town of North Andover (sometimes hereinafter referred to as the "ZBL") as may be applicable thereto; 2. That this Board opened the public hearing on the subject application on April 16, 2003; 3. That Section 8.8 of the ZBL established an adult use overlay district, established that adult uses may be allowed by special permit in said adult use overlay district, established the Zoning Board of Appeals as the Special Permit Granting Authority, and established certain requirements to be met by an applicant seeking an adult use special permit; 4. That the requirements set forth in Section 8.8, Adult use Zone, of the ZBL, are in addition to, rather than in place of, the requirements of any underlying district over which the adult use overlay district is established; 5. That the proposed site for Applicant's Special Permit Application, namely North Andover Assessor's Map 77, Parcel 14 and Map 34, Parcel 27, are both located within the North Andover Industrial Two District and as such are subject to any and all limitations and requirements that pertain to said Industrial Two District; 6. That the Applicant has submitted to the Board numerous plans and reports, much of which has undergone one or more revisions throughout the public hearing process, and that the Applicant has assembled and submitted to the Board a composite binder containing essentially all the evidence upon which the Applicant relies in support of its application (hereinafter sometimes referred to as "composite binder"), the Applicant has submitted update material for the composite binder and the Applicant has stated satisfaction that said composite binder as of May 13, 2004, at the close of the public hearing, was complete and may be relied upon by the Board as being all the evidence from the Applicant, with the exception of a site Sly flan which was filed with the Board secretary on May 13, 2004, and which is included in the evidentiary exhibits considered by the Board; 7. That Assessor's Map 77, Parcel 14 is essentially a lot of land containing a building and is proposed by the Applicant to be used in part for parking of motor vehicles for staff, entertainers, and handicapped patrons, and Map 34, Parcel 27 is essentially an unimproved lot of land intended by the applicant to provide nearly all of the non-handicapped patron parking spaces for the intended use of the site; 8. That the Applicant's site survey plan indicates street frontage of two hundred fifty(250) feet for the building lot and two hundred sixty(260') feet for the parking lot, whereas Section 8.8 of the ZBL indicates two hundred forty-five (245' t) feet of street frontage for what would appear to be the building lot and two hundred fifty (250'+) feet of street frontage for what would appear to be the parking lot; Section 8.8 of the ZBL indicates that the boundaries of the Adult Use Zone are identified by map and parcel number on the 1995 Town Assessor's Map; that the Applicant has orally represented to the Board that there has been no change in boundary lines to the building lot and parking lot as presented to the Board since before 1995, although the Applicant represented to the Board that there were boundary line changes previously; that the Applicant must have been aware of the discrepancy between. the map and parcel boundary measurements on the assessor's map and what is represented on the Applicant's Site Survey Plan, and yet no explanation, let alone documentation, to explain the discrepancy was presented to the Board by the Applicant, despite the fact that the Board inquired of the Applicant regarding recorded deeds to the property and the Applicant,through its legal counsel promised to submit to the Board copies of the deeds to the property, but those deeds were never submitted; that, consequently, it is the sense of the Board that it is without sufficient evidence to conclude that there is a precise coincidence between the boundaries of what are presented as Lot 4 and Lot 3, the building and parking lots respectively on the Applicant's Site Survey Plan, on the one hand, and Map 34 Parcel 27 and Map 77 Parcel 14 on the 1995 Town Assessor's Map, on the other hand, so as to be able to conclude the actual size of the proposed site for purposes of determining compliance with building set-track requirements and amount of land available for the provision of parking spaces for motor vehicles; 2 9. That although some members of the Board have had difficulty u}= g the Applicant's compliance with separation distances set forth in Section 8.$.2_of—�-the, Z$L, nonetheless the Board is unable to find a failure to comply with Section 8.8.2 based upon a reasonable assessment of the evidence submitted to the Board; 10. That the Applicant, by its proposed floor plans (Drawing No. A•2 at Tab N of composite binder), has proposed a cabaret style adult use facility providing for multiple bars with seating and also restaurant-style seating throughout the remainder of the patron floor area, and therefore that the Board may and does conclude that the Applicant does not seek a special permit for any adult use other than a cabaret style use as may otherwise be permitted in the Adult Use Zone; 11. That the Applicant seeks a special permit for a cabaret-style adult use facility, and no other type adult use; that the limitation of Section 8.8.3 of the ZBL restricting other adult uses to a usable floor area not to exceed 3,500 square feet has been complied with by the Applicant; 12. That the Applicant has stated on its Proposed Site Plan(Drawing No. 2, Sheet No. 2 of 4, at Tab J of composite binder) that, for off-street parking purposes, the proper calculation of required parking spaces for the proposed project is based upon the formula for restaurant use which requires the larger of one parking space per two seats or fifteen spaces per 1,000 square feet of gross floor area(see §8.1,ZBL); 13. That the Applicant's floor plan (Drawing No. A2 at Tab N of composite binder) represents seating capacity of 428 seats, which calls for 214 parking spaces, based upon a calculation of one parking space per two seats; 14. That the Applicant represented in its Special Permit Application and also on Drawing No. 2, Sheet 2 of 4, Tab J of the Composite Binder,that the proposed gross floor area of the building, after renovations, will be 15,000 square feet, which calls for 225 parking spaces based upon a calculation of fifteen spaces per 1,000 square feet of gross floor area; 15. That the Applicant's proposed parking spaces,per its Proposed Site Plan(Drawing No. 2, Sheet No. 2 of 4, at Tab J of composite binder)total 219 spaces;that that number is less than 225 spaces required based upon calculation of 15 spaces per 1000 square feet of gross floor area; 3 0 16. That Section 8.8.4 of the ZBL requires that all parking be provided in the side br-i"0 n #._ yards only; that this requires the Board to make a finding as to what constitutes the front, side and rear yards of the proposed site; that Sections 2.72, 2.73 and 2.74 of the Zft-'define front J yard, rear yard and side yard, respectively; that the rear yard is defined as being "An open space extending across the entire width of a lot between the rear of the building thereon and the rear lot line of the lot on which such building stands.";that Section 2.43 of the ZBL defines the word lot as being "An area of land in single or consolidated ownership which contains definite boundaries and ascertainable by a recordable deed in the Essex County Registry of Deeds Office."; that the Zoning Board concludes that the ZBL is not sufficiently clear as to whether the Zoning Board should view the proposed site as being a single lot for zoning review purposes or as to separate lots, and the provisions of the ZBL applied accordingly; that if the Board were to find that the proposed site consists of two separate lots, then the Board would find no violation of the requirement that parking be in the front and side yards only;that, if the Board concludes that the proposed site should be viewed as a single lot, then the rear building line would be extended across the entire proposed site and at least sixty-five (65) parking spaces as shown on the Applicant's Proposed Site Plan, Drawing No. 2, Sheet 2 of 4, at Tab J of the Composite Binder, would have to be eliminated; that the sense of the Board is that the proposed site should be viewed as a single lot for zoning review purposes in light of what the Board considers to be the representation and treatment of the proposed site by the Applicant; that the application for a Special Permit identifies a single existing lot and a single proposed lot in Sections 6.a and 6.b, and that the Applicant's proposed Site Plan (Drawing No. 2, Sheet 2 of 4, at Tab J of the Composite Binder) does not delineate the boundary lines between Lot 4 and Lot 3 and Lot 3 and the lot abutting Lot 3 to the east whereon the Applicant proposes to locate a stormwater detention/sedimentation basin(per the proposed Site Plan, Drawing No. 2, Sheet 2 of 4, at Tab J of the Composite Binder); that the Applicant, through its legal counsel, at the public hearing on August 12, 2003, stated that the three parcels in question have been in common ownership for a long time and can be made one lot;that the Applicant,through its legal counsel, on September 9, 2003, stated again that the three lots in question can be made one lot;that the Applicant, through its legal counsel, at the public hearing on November 18, 2003, acknowledged that the Applicant's plan does not show lot lines for the different lots comprising the full proposed site; 4 17. That the issue of single or double lot treatment of the proposed site is Crsue of building set-back;that for the building lot,the Applicant represents that there is street fron-t,sge , of two hundred fifty(250) feet and a rear lot line of two hundred fifty-three and 60/100(253.60')- feet; that the Applicant has represented that the square footage of the footprint of the building is fifteen thousand (15,000.00) square feet; that the dimensions for the building given on the floor plan (Drawing A-2 at Tab N of the Composite Binder) show a dimension of one hundred fifty (150) feet across the front of the building parallel to Holt Road; that the Applicant represents on its proposed Site Plan(Drawing No. 2, Sheet 2 of 4 at Tab J of Composite Binder) that there are at least fifty-one (5 1) feet of side yard set back for the building;that with at least fifty-one (51') feet of side yard set back, there would be only forty-nine (49') feet (and perhaps less) on the parking lot side of the building lot, unless the Applicant is viewing the site as a single lot for zoning purposes; 18. That the proposed Site Plan (Drawing No. 2, Sheet 2 of 4, at Tab J of the Composite Binder) and the Zoning Plan (Drawing No. 4, Sheet 4 of 4, at Tab L of the Composite Binder) show the entrance to the building on the front of the building facing Holt Road,whereas the floor plan(Drawing No. A-2, at Tab N of the Composite Binder) shows the entrance to the building on the easterly side of the building facing the patron parking lot;that that plan also shows a canopy extending out from the easterly side of the building; that, if the proposed site is viewed as consisting of two separate lots, Lots 4 and 3, as shown on the Site Survey Plan, then such entrance would clearly be in violation of the side set back requirement in the Industrial Two District, which requires a fifty (50) foot set back; that the Applicant's plan shows only thirty-six (36') feet from the easterly side of the building to the stairs and landscaped area separating the building from the parking lot(although it cannot be said for certain from the plan that such line is in fact the property line); that even a rough scaling of the plan indicates less than fifty (50) feet from the end of the canopy to the nearest parking spaces in the patron parking lot, said row of parking appearing to be wholly within the so-called patron parking lot; that if two lots are in common ownership and both lots are needed to make the proposed site conforming under the ZBL setback requirements, the two lots may be viewed as a single lot for zoning purposes; that the current use of the proposed site is for a trucking operation, and the proposed use as an adult- use facility constitutes a change in use;that the addition of the canopy would constitute a change, 5 extension or enlargement of the exist' building; that such proposed use is-r uar ;te-co 1 g g p lm . �:_ r -comply with set back requirements in the ZBL, which would necessitate the viewing,of thetwo,deeded lots, which are in common ownership, as a single lot for zoning purposes; 19. That Section 8.8.4(b) of the ZBL requires that "All parking areas shall be illuminated, and all lighting shall be contained on the property";that the Board can find no failure to comply with this provision of the ZBL other than possibly some perimeter lighting overflow which presumably could be addressed through a condition on a grant of the Application for Special Permit; 20. That Section 8.8.4(c) of the ZBL requires that "Parking area shall be landscaped in conformance with the appropriate provisions of the zoning by-law"; that Section 8.8 creates an overlay district, and the underlying district is Industrial 2;that the Board must therefore apply the parking landscaping requirements of the I-2 District to the proposed site;that Section 8.4.4 of the ZBL provides that "In the interior part of an outdoor parking lot where two rows of parking spaces containing a total of ten or more parking spaces face each other, a landscaped open space not less than six (6) feet in width shall be provided. The landscaped strip may be provided either; (1) between the rows of parking spaces parallel to the aisle or, (2) in two or more strips parallel to the spaces and extending from the aisle serving one row of spaces to the aisle serving the other row of spaces...'";that the Applicant's proposed Site Plan(Drawing No. 2, Sheet 2 of 4, at Tab J of the Composite Binder) shows six (6) foot wide landscaped open spaces in two or more strips parallel to the spaces and extending from the aisle serving one row of spaces to the aisle serving the other row of spaces, but shows a landscaped area at the end of the rows as being approximately three (3') feet in width,as best as the Board can determine, but clearly not six(6") feet in width; that more parking spaces are provided on the other side of the landscaped strips at the end of the rows of parking in the center of the patron parking lot,and it is therefore the sense of the Board that such landscape strips should be six (6) feet in width;that if the end landscaped strips were widened to six (6) feet in width, there would be insufficient area for the parking spaces that are shown along the easterly and westerly sides of the proposed patron parking lot as depicted on the proposed Site Plan; 6 21. That Section 8.8.4 of the ZBL requires that "at a minimum, a rfi e � wide landscaped buffer shall be provided along the side and rear property ry lines of an adult use establishment consisting of evergreen shrubs or trees not less than five(5) feet in he ghi at-the e time of planting, or a solid fence not less than six (6) feet in height."; that the Applicant's Proposed Planting & Lighting Plan(Drawing No. 1, at Tab S of the Composite Binder) indicates a five (5') foot high fence not a six(6) foot high fence; that the Applicant shows three and one- half(3.5') foot caliber trees to be planted thirty(30) feet on center and outside the adult use zone per the Proposed Planting & Lighting Plan; that it is the sense of the Board that the landscape buffer should be within the adult use zone, although it is noted that that may not be a required reading of the bylaw;that there is no five(5') foot buffer all around the perimeter of the proposed site, other than driveway openings, per the Proposed Planting & Lighting Plan, in particular along the rear lot line of the patron parking area where it appears that at least one parking space is on the property line and other spaces are within five feet of the lot line as shown on the Proposed Planting & Lighting Plan; that if such five (5') foot buffer were to be provided along the full length of the rear of the proposed site,ten or eleven parking spaces would be lost, further reducing the already deficient number of spaces computed on the basis of one space per 1,000 square feet of gross floor area; 22. That the Applicant has represented to the Board during the public hearings that parking spaces on the Proposed Site Plan (Drawing No. 2, Sheet 2 of 4, at Tab J of the Composite Binder) and that are located on the building lot so-called and designated as handicapped spaces (totaling 13 such spaces according to the plan), are restricted to only handicapped plate vehicles; that the Applicant has similarly represented that the spaces marked for employees (totaling 25 such spaces according to the plan) are restricted to use by only employees; that it is only the parking spaces shown on Lot 3 (more or less) of the Site Survey Plan that would be open to patrons;that it is the sense of the Board that the restricted parking spaces should therefore not be included in the required total parking requirements as set forth in the ZBL; that a finding to this effect would significantly reduce (by 38 spaces) the number of parking spaces being offered by the Applicant (219 spaces according to the table on the Proposed Site Plan), which number of spaces is insufficient, even without reduction, to satisfy the bylaw requirement of two hundred twenty-five (225) spaces based upon a calculation of fifteen(15)spaces per one thousand(1,000) 7 square feet of gross floor area; that even viewing the required parking spaces based u-v'op the i:_.. formula of one parking space per two patron seats in the proposed facility,the Applicant can not be found to have complied with the then minimum parking space requir`emen`ts of two hundre fourteen (214) spaces if the restricted spaces are eliminated from the calculation, or the spaces along the rear lot line are eliminated due to the requirement of a five (5) foot wide landscaped buffer(loss of 10-11 spaces),,or if all parking in the rear yard of the proposed site is eliminated if the rear yard is considered to extend across the full width of the proposed site (82 spaces plus one bus space); 23. That Section 8.8.5 requires that "All building openings, entries and windows shall be screened in such a manner to prevent visual access to the interior of the establishment by the public"; that the Board finds no failure to comply with this requirement which cannot be remedied by a condition placed upon the grant of a special permit; 24. That Section 8.8.6 pertains to signs and other advertising on the exterior of the building and on the interior where the same may be seen from the outside; that, whereas the Applicant has not filed an application for a sign permit, the Board need take no action with regard to this issue; that, although there are one or more drawings of proposed signage submitted with the Special Permit Application,said application seeks relief only under adult use zone provisions of the ZBL, and not under the sign provisions; that, no notice of an application for a sign permit having been given to the public,the Board is without authority to act with regard to signage. 25. That, Section 8.8.7 provides that "The application for a special permit for an adult use establishment must include the following information: (a) name and address of the legal owner of the establishment, and of the legal owner of the property"; 26. That, on its Zoning Board of Appeals Application for Special Permit form, the Applicant identified the owner of the proposed site as being "LMT Realty Trust (978) 580-9083, 210 Holt Road,North Andover, MA 01845"; 8 ' h 27. That, together with its application, the Applicant submitted a letter- d" 15/2002 addressed to the Town of North Andover Board of Appeals and stating, "IJoyce Thomson, Trustee of LMT Realty Trust U/D/T December 19, 1984 do hereby authorize Checkmate Development LLC to apply for a Special Permit Pursuant to Section 8.8 Of The North Andover Zoning Bylaws As Amended May of 1999." and signed "Joyce Thompson, Trustee, LMT Realty Trust"; 28. That, by the aforementioned letter from Joyce Thomson, Trustee, the Applicant recognized the requirement that it demonstrate to the Board that it had permission of the owners of the proposed site to submit to the Zoning Board its Application for a Special Permit affecting that property; 29. That, during the public hearings, on one or more occasions, the Board inquired of Applicant's legal counsel, Marshall Newman, as to how the Board can conclude who was the rightful owner of the property constituting the site for the proposed adult use facility, and how the Board could conclude that the owner or owners of the property had given their full consent and authorization to the Applicant to bring the Application for an Adult use Special Permit affecting their property, asking Applicant's counsel where the deed to the property was and where the declaration of trust of LMT Realty Trust was, indicating a sense that the Applicant's mere assertion that LMT Realty Trust owned the property, and that Joyce Thomson, as a Trustee, gave her authority, was insufficient evidence of authority to bring the Application; 30. That Applicant's counsel, on one or more occasions at public hearing, stated that he would furnish to the Board a copy of the deeds to the property to establish ownership; 31. That the Applicant did not at any time submit to the Board, including in its composite binder, any deeds to any of the lots constituting the proposed site for the adult use facility for which a special permit is sought,nor any trust instrument; 32. That, in its composite binder submitted to the Board, the Applicant made the assertion that the legal owner of the proposed site is "Joyce R. Thomson, as she is trustee of L.M.T. Realty 9 Trust, under declaration of trust dated December 19, 1984 and recorded_Witfi l§s North Registry of Deeds in Book 1906 Page 84, having an address of 3 Carriage Lane, Reading, MA 01867... 33. That the aforesaid assertion is the only response given by the Applicant to the inquiry of the Board requesting documentary evidence of ownership of the property and authorization of the owner to the Applicant to file and pursue the instant application; 34. That the original information submitted on the Zoning Board of Appeals' Application for Special Permit form differed from the foregoing subsequent submission in the composite binder in that it named a realty trust as the owner of the property and having an address of 210 Holt Road, North Andover, whereas the subsequent submission identified the legal owner of the property as an individual(Joyce R. Thomson)as trustee of the realty trust, and having an address of 3 Carriage Lane, Reading, MA 01867, but neither submission identifying whether Joyce R Thomson was the sole trustee; 35. That the December 15, 2002, letter from Joyce Thomson identified her as a trustee, but not as the sole trustee; 36. That, in light of the notice upon which the Applicant was placed by the Board during the public hearings inquiring about the deed or deeds to the property and the realty trust instrument, together with the Applicant's failure to submit any deed or the trust instrument to the Board, and especially after Applicant's counsel promised to furnish to the Board copies of deeds to the property, the Applicant has failed to carry its burden of proof with regard to rightful and lawful ownership of the proposed adult use site and has failed to carry its burden of proof with regard to authorization from said legal owner to the Applicant to bring and pursue the instant Application for Special Permit; 37. That Section 8.8.7 (b) and (c) call for names and addresses of all persons having lawful equity or security interest in the establishment and the name and address of the manager of the establishment; that information in that regard has been furnished, but that no documentation was 10 furnished with regard to the ownership and security interest in the Applic &Ei� hich is a limited liability company; dr P : 38. That Section 8.8.6 pertains to signs and other advertising on the exterior of the building and on the interior where the same may be seen from the outside; that, whereas the Applicant has not filed an application for a sign permit, that the Board need take no action with regard to this issue; that, although there are one or more drawings of proposed signage submitted with the Special Permit Application, said application seeks relief only under adult use zone provisions of the ZBL, and not under the sign provisions; that no notice of an application for a sign permit having been given to the public,the Board is without authority to act with regard to signage. 39. That Section 8.8.7 provides that "The application for a special permit for an adult use establishment must include the following information: (a) name and address of the legal owner of the establishment, and of the legal owner of the property". 40. That Section 8.8.7 (b) and (c) call for names and addresses of all persons having lawful equity or security interest in the establishment and the name and address of the manager of the N a� establishment; that information in that regard has been furnished., however, as with the realty a trust discussed above,no documentation was furnished with regard to the ownership and security interest in the Applicant which is a limited liability company. 41. That Section 8.8.7(d)calls for disclosure of the number of employees; that it is the sense of the Board that the Applicant's submission of having thirty-five (35) employees is low for a proposed adult use facility having 428 seat cabaret-style capacity; that the applicant has indicated that there will be from five to eleven security personnel, leaving twenty-four to thirty employees to fill rolls of management,entertainers,bartenders,waiters, kitchen help, custodians, and the like per the Applicant's proposed use; that the Applicant has indicated to the Board during the public hearings that it intends to review the requirements for security and to modify its security plan accordingly, leaving the Board with an indefinite number of possible security personnel for whom parking must be provided which would cause the Applicant to miss the ZBL parking requirement even more than is shown in paragraph 22 above; 11 42. That Section 8.8.7 (e)requires that the Applicant submit proposed prd s lfaf'security within and without the establishment; that the Board's consultant has indicated its own ED satisfaction that the proposed security plan submitted by the Applicant is a saisfacor seeur program for an adult entertainment club; that the Chief of the North Andover Police Department has indicated to the Board his concerns about the level of staffing of security personnel given the proposed size of the establishment and also his concern regarding security and traffic at night along Holt Road which is in an isolated area of North Andover; that this raised question for the Board as to whether it can require the Applicant to address public security issues o6-site; that part and parcel of the issue of security is the issue of traffic control. that Holt Road intersects with State Highway 125 which is the only ingress and egress off Holt Road for the proposed facility; that question has arisen with regard to the installation of a traffic light at that intersection;that a traffic light has been proposed in connection with other property development in the area of the proposed site;that ultimate jurisdiction over the question of a traffic light at the intersection lies with the Commonwealth; 43. That Section 8.8.7 (0 calls for a showing of the proposed physical layout of the interior of the establishment;that plans submitted by the Applicant are not consistent in this regard, most especially with regard to the location of the main entrance to the building, as noted above in paragraph 18 (see Tabs J and N of composite binder); that the Board is therefore unable to determine which plan it is upon which the Applicant relies and upon which the Board is to act; 44. That Section 8.8.9 provides that "no adult use special permit shall be issued to any person convicted of violating the provisions of MGL Ch. 119, Sec. 63, or MGL Ch. 272, Sea 28";that, to satisfy this requirement, the Applicant has submitted CORI Checks; that, in its initial filing, the Applicant submitted CORI Checks for the holders of the ownership interest in the Applicant Limited Liability Company, namely William D. Thompson, Jeff Thompson, Brian Thompson, and Kevin Thompson, who are also represented as being the equitable owners of the real estate; that, in its final submission in the composite binder,the Applicant added a CORI check for Joyce R. Thompson, who has been represented as being a trustee of L.M.T. Realty Trust and, as such, an owner of the proposed site; that,whereas, whether Joyce Thompson is the sole trustee of the Realty Trust, and therefore the sole holder of legal title to the property, cannot be determined by 12 the Board based upon the evidence submitted to it, there is question as towh tho *r?e.should FuurL,. also be a CORI check on one or more other trustees of the realty trust, L'i-I r.'3 -71 P Lo 45. That Section 8.8.11 of the ZBL requires that special permits for adult uses be granted "only upon the determination by the Special Permit Granting Authority that the location and design of the facility are in harmony with its surroundings, and that adequate safeguards exist through licensing or other means to assure on a continuing basis that activities therein will not be patently contrary to prevailing standards of adults in the community and will not involve minors in any way"; that town meeting in 1996 determined that the Holt Road area of town was the appropriate area in which to locate an adult use overlay zoning district and that therefore that issue is not open to the Board;that, except for outdoor signage, the outside design of the facility is in harmony with its surroundings; that the Board is not granting any permit with regard to signage in the instant proceeding; that adult use facility rules and regulations have been passed by the Board of Selectmen governing conduct and activities within an adult-use facility, and state law regulates the protection of minors and also regulates the licensing, serving and consumption of alcohol; that the Applicant's security plan addresses steps to bar minors and to deal with intoxicated individuals and individuals carrying weapons; that the Board nonetheless has question regarding the adequacy of the security plan to assure proper regulation of activities within the proposed facility, but does note that it may condition the grant of a special permit for an adult-use facility on the facility's conformity to the requirements of applicable laws and regulations on a continuing basis, and upon failure to comply therewith, the Board may terminate the adult-use special permit; 46. That, pursuant to Section 10.31.1 of the ZBL, the Board must make certain specific findings in its judgment; that, first, the Board must find that the specific site is an appropriate location for the proposed use, structure or condition; that it is the sense of the Board that this issue has been foreclosed by the action of town meeting in 1996, in locating the adult-use zone in town; that the proposed site is within the adult-use zone; that,next,the Board must find that the use as developed will not adversely affect the neighborhood;that, similarly, it is the sense of the Board that this issue has been foreclosed by the action of town meeting in 1996; 13 4 47. That, pursuant to Section 10.31.1.(c)of the ZBL the Board must. here will be no nuisance or serious hazard to vehicles or pedestrians;that grave concern was raised by numerous members of th p regard `rte'-' ' ,�' e public with and to the nuisance and serious'hazar�'to`-motor�velucles and pedestrians that can arise from the operation of the proposed facility, especially if alcohol is served; that traffic control on Holt Road and at the intersection of Holt Road and State Highway 125 may pose a problem during high traffic volume periods;that the installation and operation of a traffic control signal at the intersection is within the jurisdiction of the Commonwealth, and the Board questions whether it has the authority to condition a special permit on a future decision and action of the Commonwealth; that the Applicant has asserted that there is no sufficient evidence to establish a statistical relationship between the operation of an adult-use facility and any particular level of nuisance or serious hazard to vehicles or pedestrians; 48. That, per Section 10.31.Ld of the ZBL, the Board must, before granting a special permit, find that adequate and appropriate facilities will be provided for the proper operation of the proposed use; that the Board is divided on the question as to whether the Board should have more information regarding the needs of the facility, for example, regarding water supply and sewage disposal, so as to be able to condition any grant of a special permit or whether the Board may rely upon the other appropriate boards and departments in town, as for example the Department of Public Works and the Board of Health, to properly regulate these matters and therefore condition a grant of the special permit on compliance with all local, state and federal regulations pertaining thereto; 49. That, per Section 10.31.Le of the ZBL, before granting a special permit, the Board must make a specific finding that the proposed use is in harmony with the general purpose and intent of the North Andover Zoning Bylaw; that that issue is foreclosed by virtue of the action of town meeting in 1996 in establishing the adult-use zone and locating it where it currently exists; that issues that arise under this provision have been adequately addressed under various sections of the zoning bylaw discussed above; 50. That the public hearing on this application was closed on May 13, 2004. 14 Town of North Andover f �1ORTil Office of the Zoning Board of Appeals 3�°��, �o "oL Community Development and Services Division ; s 27 Charles Street North Andover, Massachusetts 01845 SACHUSEt D. Robert Nicetta Telephone(978)698-9541 Buildin�7 Commissioner Fax(978)688-9542 G Date TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I wish to ithdraDmy Variance pedal er ompre ensive Permit (40B) Finding petition without prejudice from the North Andover Zoning Board of Appeals agenda for property located at: 1/0 /�&?t STREET: 410 91,C -&60 MAP: PARCEL: TOWN: NAME OF PETITIONER: G/9 Alt- Signed: JW 8,Aly etrtio er(or petitioner's representative) Withdraw O IM S l� 1131210 a t�+ MAY �, 3U 200U4 Board of.lppaa k 978-688-9541 Dudding 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 80ARO OF OPEALS Town of North Andover N°R7ti Office of the Zoning Board of Appeals o >' Community Development and Services Division • 27 Charles Street ` _=�-<• .r North Andover,Massachusetts 01845 'ss��MusEt D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 Any appeal shall be filed Notice of Decision within(20)days after the Year 2004 date of filing of this notice in the office of the Town Clerk. Property at: Holt Road(Map 34 Parcel 40) NAME: Checkmate Development,LLC HEARING(S): March 29&May 13,2004 ADDRESS:Holt Road(Map 34 Parcel 40) PETITION: 2004-009 North Andover,MA 01845 Typing Date: May 13,2004 The North Andover Board of Appeals held a public hearing at its regular meeting on Thursday,May 13,2004, at 7:30 PM in the Senior Center, 120R Main Street,North Andover,MA upon the application of Checkmate Development LLC,210 Holt Road,North Andover requesting a Special Permit pursuant to Section 4, Paragraph 4.1.1(3)in order to use the subject parcel(Map 34,Parcel 40)as accessory parking to an adult entertainment use on adjoining parcels(Map 34,Parcel 27&Map 77,Parcel 14).The said premise affected is property with frontage on the South side of Holt Road within the I-2 zoning district. The legal notices were published in the Eagle Tribune on March 12& 19,2004. The following members were present: William J. Sullivan,Walter F. Soule,Ellen P.McIntyre,Joseph D. LaGrasse,and Joe E. Smith. Upon a motion made by Walter F. Soule and 2°d by Joseph D.LaGrasse,the Board voted to GRANT the applicant's request that the petition be WITHDRAWN WITHOUT PREJUDICE. Voting in favor: William J. Sullivan, Walter F. Soule,Ellen P.McIntyre,Joseph D.LaGrasse,and Joe E.Smith. Town of North Andover Board of Appeals, William J. ullivan, airman Decision20 -009. M34P40. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 Town of North Andover of No;T" Office of the Zoning Board of Appeals Community Development and Services Division IL •� 27 Charles Street North Andover,Massachusetts 01845 133�cHus�s D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax (978)688-9542 Date '® c TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance S ecial Per Comprehensive Permit (40B)' Finding C-; C= for property located at: ` r ' STREET: Emoryry TOWN: Jve(' / TO MEETING DATE(S): / �o NAME OF PETITIONER: 6 e - 1!L1 ,4delz'0-1 V4 41 C-� Signed: AA etrtioner or petitioner's representative) WAIVER Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 6� E Town of forth Andover µORTM Office of the Zoning Board of Appeals °° Community Development and Services Division o •"a 27 Charles Street North Andover,Massachusetts 01845 Rss�c►+us�� D. Robert Nicetta Telephone (978)688-95, Building Commissioner Fax (978) 688-9� Date " N-03 TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Varian Special Permit- Comprehensive ermitComprehensive Permit (40B) Finding for property located at: STREET: "2-/� �`lz1c,T TOWN: il/�D✓� TO'MEETING DATE(S): &,c- eej4-p�c ` l a.00-3 NAME OF PETITIONER: Signed: Petitioner (or petitioner's representative) ev y„ WAIVER �r"c Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-954(E:itamting 978-688-9535 4- 71 � !w Town of North Andover RT#t O 4queo s N Office of the Zoning Board of Appeals Community Development and Services Division 27 Charles StreetTow North Andover,Massachusetts 01845 crars D. Robert Nicetta Building Commissioner Telephone(978)688-9541 Fax (978)688-9542 Date 7- 60Y TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance pedal Permit; ompre Zensive Permit(40B), Finding for property located at: STREET: l TOWN: /V. A✓mw TO MEETING DATE(S): NAME OF PETITIONER: C17.ec- W 0—,ef�rr` Signed: � �— Petitioner(or petitioner's representative) C_ -: co ✓ is 978-688-9541 Building 978-688-9545 conservation 978-688-9530 Health 978-688-9540 Planning 978-6$$-9535 JUL 8 Po M BOARD ds APPEALS Town of North Andover F �oeeTH ?QyEiPtEQ„4.�a Office of the Zoning Board of Appeals - Community Development and Services Division : - 27 Charles Street North Andover,Massachusetts 01845 ss e D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax (978)688-9542 Date TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover NIA 01845 r_. ID -• :. Please be advised that I have agreed to waive the time constraints for the Nor Andover Zoning Board of Appeals to make a decision regarding the granting of a w Varian S tial Permit Comprehensive Permit (40B) Finding for property located at: STREET: TOWN: A✓g erk TO MEETING DATE(S): NAME OF PETITIONER: Signed: Aw". AA Petitioner (or petitioner/s rep ntative) WAIVER Board ofAp s 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 JUN 1 0 2003 BOARD Or APPEALS Town of North Andover "°oT 6�,�0 Office of the Zoning Board of Appeals tie .�' Community Development and Services Division 27 Charles Street ' - °awn°♦ y:(`� q t North Andover, Massachusetts 01845 SS�cNus� Telephone 978 688-95, Building Commissioner Fax (978) 688-9E Date TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance r-S'n`ecia�Permit Comprehensive Permit (40B) Finding for property located at: STREET:2,,,/,o TOWN: ETING DATE(S): TO ME NAME OF PETITIONS R: rckrNv�% �Ifti z Signed: Petitioner (or petitioner's representative) WAIVER Board of Appeals 978-688-9542 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 planning 978-688-9535 NEWMAN & NEWMAN, P.G. Office of the Zoning Board of Appeals Town of North Andover February 20, 2004 Page Two On behalf of the Applicant, 1 request that this Application be considered in conjunction with Application No. 2003-0014 which is presently pending before the Board. Would you kindly file the within Application? Thank you for your courtesy and cooperation in this matter. Very truly yours, NEWMAN & NEWMAN, P.C. By: Marshall F. Newman MFN/jtd Enclosures NEWMAN & NEWMAN, P.C. ATTORNEYS AT LAW ONE MCKINLEY SQUARE BOSTON,MASSACHUSETTS 02109 (617)227-3361 FACSIMILE (617)723-1710 W W W.NEWMANLEGAL.COM MARSHALL F. NEWMAN KARP ABRAHAM NEWMAN JEFFREY T. HOWARD I. February 19, 2004 (1915 - 1995) RICHARD JOYCE SAMUEL NEWMAN COUNSEL HAND DELIVERED Thomas J. Urbelis, Esquire Urbelis & Fieldsteel LLP 155 Federal Street Boston, MA 02110 Re: Application for Special Permit 210 Holt Road North Andover, Massachusetts Dear Mr. Urbelis In connection with the above-referenced matter, I enclose herewith a Plan in four sheets prepared by Brown and Caldwell Engineering, originally dated November 7, 2002, and revised as of January 23, 2004. 1 call your attention Sheet Number 4 of 4. It shows (a) the Parcel known as Map 34, Parcel 40 ("Parcel 40") and (b) superimposed thereon, Lot 4 on a "Plan of Western Industrial Park," endorsed as of May 2, 1966 ("Lot 4"). As you may recall, the Applicant owns Parcel 40 and contemplates using it for parking in conjunction with its proposed adult entertainment facility. Parcel 40 is not within the adult entertainment overlay district. However, the demarcation line of the adult overlay district passes through Lot 4, which, within the meaning of §4.1 .1(3) of the By-law was a "lot of record on June 5, 1972 in one ownership." As you can see, the "greater part" of Lot 4 lies within the parcel designated as Map 34, Parcel 27, and thus within the adult entertainment district. Accordingly, under the By-Law, the provisions of the By-Law (by special permit) apply to the balance of Lot 4. Because Lot 4 extends only sixty feet beyond the boundary of the Adult Entertainment Zone, the one hundred foot limitation I" of the By-Law is not implicated. F E b 2 3 2004 Q BOARD OF APPEALS NEWMAN & NEWMAN, P.C. Thomas J. Urbelis, Esquire Urbelis & Fieldsteel LLP February 19, 2004 . Page Two I call your attention as well to Sheet Number 2 of 4 which illustrates that all proposed parking now lies within the boundary of Lot 4. Please note that I am in the process of filing an Application for Special Permit under §4.1 .1(3) of the By-Law and shall ask that it be considered in conjunction with the pending Application for adult.. entertainment facility. 1 am forwarding this to you because I told the Board of Appeal that I would do so. I will be happy to discuss this matter with you at your convenience. Very truly yours, NEWMAN & NEWMAN, P.C. By: Marshall F. Newman MFN/jtd Enclosures cc: Board of Appeal, North Andover Checkmate Development LLC Town of North Andover aF Vja oT 6 qti Office of the Zoning Hoard of Appeals o a Community Development and Services Division 27 Charles Street "+ •�-�---- 4 ' North Andover,Massachusetts 01845 C&U B. Robert Nicetta Telephone(978)688-95 Building Commissioner Fax (978)688-9F Date TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA.01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance Special Permit Comprehensive Permit (40B) Finding for property located at: STREET: , 2,1& hol,LF X/V TOWN: 410 n 4K)C2ilf J/ TO MEETING DATE(S): NAME OF PETITIONER:_(�i�e�ll�� i - `J ��T Signed: r ;, r Petitioner(or petitioners representative) WAIVER B of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 (j SEP 9 Z033 LJ BOA 11RD Ur APPEALS S NEWMAN & NEWMAN, P.C. Office of the Zoning Board of Appeals Town of North Andover February 20, 2004 Page Two On behalf of the Applicant, 1 request that this Application be considered in conjunction with Application No. 2003-0014 which is presently pending before the Board. Would you kindly file the within Application? Thank you for your courtesy and cooperation in this matter. Very truly yours, NEWMAN & NEWMAN, P.C. By: IMAI�I;rz Marshall F. Newman MFN/jtd Enclosures NEWMAN & NEWMAN, P.C. ATTORNEYS AT LAW ONE MCKINLEY SQUARE BOSTON, MASSACHUSETTS 02109 (617)227-3361 FACSIMILE (617)723-1710 W W W.NEWMANLEGAL.COM MARSHALL F. NEWMAN ABRAHAM NEWMAN HOWARD I. ROSEN February 19, 2004 (1915 - 1995) JEFFREY T. KARP RICHARD JOYCE SAMUEL NEWMAN COUNSEL HAND DELIVERED Thomas J. Urbelis, Esquire Urbelis & Fieldsteel LLP 155 Federal Street Boston, MA 02110 Re: Application for Special Permit 210 Holt Road North Andover, Massachusetts Dear Mr. Urbelis: In connection with the above-referenced matter, I enclose herewith a Plan in four sheets prepared by Brown and Caldwell Engineering, originally dated November 7, 2002, and revised as of January 23, 2004. I call your attention Sheet Number 4 of 4. It shows (a) the Parcel known as Map 34, Parcel 40 ("Parcel 40") and (b) superimposed thereon, Lot 4 on a "Plan of Western Industrial Park," endorsed as of May 2, 1966 ("Lot 4"). As you may recall, the Applicant owns Parcel 40 and contemplates using it for parking in conjunction with its proposed adult entertainment facility. Parcel 40 is not within the adult entertainment overlay district. However, the demarcation line of the adult overlay district passes through Lot 4, which, within the meaning of §4.1 .1(3) of the By-law was a "lot of record on June 5, 1972 in one ownership." As you can see, the "greater part" of Lot 4 lies within the parcel designated as Map 34, Parcel 27, and thus within the adult entertainment district. Accordingly, under the By-Law, the provisions of the By-Law (by special permit) apply to the balance of Lot 4. Because Lot 4 extends only sixty b Y Y feet beyond the boundary of the Adult Entertainment Zone, the one hundred foot limitation of the By-Law is not implicated. 3 2004 BOARD OF APPEALS NEWMAN & NEWMAN, P.C. Thomas J. Urbelis, Esquire Urbelis & Fieldsteel LLP February 19, 2004 Page Two I call your attention as well to Sheet Number 2 of 4 which illustrates that all proposed parking now lies within the boundary of Lot 4. Please note that I am in the process of filing an Application for Special Permit under §4.1 .1(3) of the By-Law and shall ask that it be considered in conjunction with the pending Application for adult. entertainment facility. I am forwarding this to you because I told the Board of Appeal that I would do so. I will be happy to discuss this matter with you at your convenience. Very truly yours, NEWMAN & NEWMAN, P.C. By: Oak Marshall F. Newman MFN/jtd Enclosures cc: Board of Appeal, North Andover Checkmate Development LLC Abutter to Abutter( ) Building Dept ( ) Conservation ( ) Zoning ( ) Town of North Andover Abutters Listing REQUIREMEN MGL 40A,Section 11 states in park"Parties in Interest as used in this chapter shall mean the petitioner, abutters,owners of land directly oppositeon any public or private way,and abutters to abutters within three hundred(300)feet of the property line of the petitioner as they appear on the most recent applicable tax list,not withstanding 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.' Subiect Property: MAP PARCEL Name Address 34 27 J R&W P Thomson,Trustees 210 Holt Road North Andover,MA 01845 34 40 Joyce Thomson,Trustee 210 Holt Road North Andover, MA 01845 77 14 J R&W P Thomson,Trustees 210 Holt Road North Andover, MA 01845 Abutters Properties Map Parcel Name Address 77 1 City of Lawrence Airport Commission 492 Sutton Street North Andover, MA 01845 77 3 Positive Start Realty, Inc 8 Clinton Street Woburn, MA 01801 77 12 Norman Lee 314 Clark Street North Andover, MA 01845 77 13 D Zanni Et Al,Trustee 25 Myrtle Street Melrose, MA 02176 77 16 City of Lawrence Airport Commission 492 Sutton Street North Andover,MA 01845 77 17 Leon Belinsky,Trustee 24 Great Hill Drive Topsfield, MA 01983 34 18 Commonwealth of Massachusetts 100 Cambridge Street Boston, MA 02202 34 23 Holt Road Excavators, Inc 120 Holt Road North Andover, MA 01845 34 24 City of Lawrence Airport Commission 492 Sutton Street North Andover, MA 01845 34 38 Joseph&Domenick Zanni 22 Lakeview Avenue Reading, MA 01867 Certified by . Ds!kle•' ' °`�° Date 2WI04 Page 1 of 1 Board of Ass or North Andover Flan Review Narrative The following narrative is provided to further explain the reasons for DENIAL for the APPLICATION for the property indicated on the reverse side: Itenj p c 1! p Gr Refe a P/oor PIA v '�`� lJ`H v✓ger^ ®� �d n t�cti /Qfit C t,,,5 CCS aN ,vo b-e 01,d7�rr`a 4;w X 6.A ve.a!f —_'—'— /—, / —CrA)B a w r OPt Sr AvC. — RGGa� 4 _f o T4 w,5-s ®1c L F1AWea6dt p,En ,pt-4 v q 4"A/r?. n o� OL la ® �r c U�0lip ' .vCne o e 1 �cYS �r 8 G4AN `C 3 Cr7) iv.490r iqr-jP I n W I A-, A 14C*1 a c-, Lo f Referred To. Fire Police Health Conservation Zonin Board Plannin Department of Public Works Other Historical Commission Buildin De artmenY <, Zoning Bylaw Review Form ` Town Of North Andover Building Department 27 Charles St. North Andover, MA. 01845 Phone 978-688-9545 Fax 978-688-9542 Street: o? /D /* t Ma /Lot: '7''7 /47( Ap IlCdnt: -:T-¢ {2( -7)o m So v r, Cha `aR a Ir• 1. 1. C Request: Qpec is/ P"el-Ift"4 41141Cr — 9,9 +Sec -Q/• Date: ,3- /cZ- 0 3 Please be.advised that after review of your Application and Plans that your Application is DENIED for the following Zoning Bylaw reasons: Zoning Z ,- A A U o N L et- Item Notes Item Notes A Lot Area F Frontage 1 Lot area Insufficient 1 Frontage Insufficient 2 Lot Area Preexisting e g 2 Frontage Complies 41 a 5 3 Lot Area Complies Lye S 3 Preexisting frontage 4 insufficient information 4 Insufficient Information B use 5 No access over Frontage 1 Allowed H e s 04 G Contiguous Building Area 2 Not Allowed 1 Insufficient Area 3 Use Preexisting 2 'Complies e 4 Special Permit Required Li eS * 3 Preexisting CBA 4C s 5 Insufficient Information 4 Insufficient Information C Setback H Building Height 1 All setbacks comply Lie 5 1 Height Exceeds Maximum 2 Front Insufficient 2 Complies Ke g 3 Left Side Insufficient 3 Preexisting Height a S .4 Right Side Insufficient 4 Insufficient Information 5 Rear Insufficient l Building Coverage 6 Preexisting setback(s) r-( e 5 1 Coverage exceeds maximum 7 Insufficient Information 2 Coverage Complies y S D I Watershed 3 Coverage Preexisting a 1 Not in Watershed t 5 4 Insufficient Information 2 In Watershed J Sign A 3 Lot prior to 10/24/94 1 Sign not allowed 4 Zone to be Determined. 2 Sign Complies 5 Insufficient Information 3 Insufficient Information C Historic District K Parking 1 in District review required 1 More Parking Re uired 2 Not in district It a 5 2 Parking Complies 3 Insufficient Information 1 3 Insufficient Information Lie 5 4 Pre-existing Parkin Remedy for the above is checked below. Item# Special Permits Planning Board Item# variance Site Plan Review Special Permit Setback Variance Access other than Fronto e Special Permit Parking Variance Frontage Exception Lot Special Permit Lot Area Variance Common Driveway Special Permit Hei ht Variance Congregate Housing Special Permit Variance for Sign Continuing Care Retirement Special Permit Sciecial Permits Zoning Board Independent ElderlK Housing Special Permit Special Permit Non-Conforming Use ZBA Large Estate Condo Special Permit Earth Removal Special Permit ZBA Planned Development District Special Permit Special Permit Use not Listed but Similar Planned Residential Special Permit Special Permit for Sign R-6 Density Special Permit Special permit for preexisting Watershed Special Permit nonconforming The above review and attached explanation of such is based on the plans and information submitted. No definitive review and or advice shall be based on verbal explanations by the applicant nor shall such verbal explanations by the applicant serve to provide definitive answers to the above reasons for Any inaccuracies,misleading information,or other subsequent changes to the information submitted by the applicant shall be grounds for this review to be voided at the discretion of the Building Department.The attached document titled"Plan Review Narrative"shall be attached hereto and incorporated herein by reference. The building department will retain all plans and documentation for the above file.You must file a new permit application form and begin the permitting process. t J-10-03 d-/a-o3 Building Department Official Signatycis Application Received Application Denied MEMORANDUM IN SUPPORT OF APPLICATION FOR SPECIAL PERMIT OF CHECKMATE DEVELOPMENT, LLC A part of the subject parcel was a "Lot of record on June 5, 1972 in one ownership" which is divided by a zoning district boundary. The Petitioner seeks the application of "all zoning regulations set forth in the By-Law, which apply to the greater part of the area so divided and to an additional sixty linear feet in depth into the lesser part of area of such Lot so divided. In other words, a part of the subject lot (Map 34, Lot 40) was Lot 4 as shown on a Plan of Western Industrial Park which is dated April 1 , 1966. A copy of that Plan is annexed hereto as Exhibit "A". Approximately two-thirds of said Lot 4 lies in the adjoining parcel (Map 34, Lot 27), which is in an adult entertainment overlay district. Because the "greater part" of Lot 4 is in the adult entertainment overlay district, the Petitioner seeks a Special Permit authorizing the application of the adult entertainment zoning regulations to the balance of Lot 4. (The particular use proposed for the subject parcel is as accessory parking to the principal adult entertainment use on the adjoining parcel.) Under Section 4.1 .1(3) of the Zoning By-Law, this incursion is permitted up to a maximum of one hundred feet from the Lot line. In this case, the distance from the Lot line of the adjoining parcel (Map 34, Lot 27) is no more than sixty feet. pC� C� � Qd � FEB 2 3 2004 D BOARD OF APPEALS There will be no nuisance or serious hazard to vehicles or pedestrians. Indeed, specific security, parking and traffic plans have been submitted by the Petitioner in conjunction with No. 2003-014, and have been subjected to substantial review by the Board of Appeal, its consultants, various Town departments and the public, and said plans have been revised in response thereto. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. Again, the facilities have been extensively addressed in connection with No. 2003-013. The use is in harmony with the purpose and intent of the Zoning By- Law. 77/71-5- plan does nod r-e9,;re PLAN OF " WESTERN IN.DUSTl2JAL P R X" fhe nin Boo�rc� of the Toyvn o� //J Nor- .4rido✓c _ NO.Q Tla 4 NDOVE.Q, A4A5S_ IWA DE FOR - NDaEN QEAL.TY, INC Sr"AL E : /"_/00' Noi-•fh Ando�e�p/annin Boa�-el ✓er- .Sanif�l� Disposes/ Sic N O L T Q QA Dro ROuYE I25`' 11�•'w -p -795 !"•• •. 569=/G'--/C'E /062497 F.GS.B y a 270.00' ;.... R..650.00 150.00' j5n TO T.4 L. .4.2EA ,� "co 'lt� ro 71. 7 67 2.OSAcres# 5o3Gbt 50,0401, 50 NE.t193QD3.GOLB000' r40 o :`�• S B3°28'/D�w NBo'27 72, e��� 5G�8, .nc. Glenn ie, In Ci fry of Lawrence r' "r Z FG.S.B. ILt,L L, —05 a a'f. Lao.T�o elL Rae.B,/o s9 p�� c//n fon F GoodwI' Ile . Laro/Surve of z 54-74, r a tge25 Wo7-' •"i' � �dVC'/'�l!�� �c93'S. •"+err-•'t.°'°` ' U FEB32004 BOARD Of APPEALS TOWN OF NORTH ANDOVER SPECIAL PERMIT =ry`tKORr+s. ° OF co, 7ti ZONING BOARD OF APPEALS a ` NAME ADDRESS OF APPEAL Procedure & Requirements for an Application for a Special Permit Ten(10)copies of the following information must be STEP 6: SCHEDULING OF HEARING AND i submitted thirty(30)days prior to the first public hearing. PREPARATION OF LEGAL NOTICE: Failure to submit the required information within the The Office of the Zoning Board of Appeals schedules time periods prescribed may result in a dismissal by the the applicant for a hearing date and prepares the legal' Zoning Board of an application as incomplete. notice for mailing to the parties in interest(abutters)and The information herein is an abstract of more specific for publication in the newspaper. The petitioner is requirements listed in the Zoning Board Rules and noted that the legal notice has been prepared and the Regulations and is not meant to supersede them.The cost of the Party in Interest fee_ petitioner will complete items that are underlined. STEP 7: DELIVERY OF LEGAL NOTICE TO STEP 1:ADMINISTRATOR PERMIT DENIAL: NEWSPAPER The petitioner applies for a Building Permit and The petitioner picks up the legal notice from the Office receivers a Permit Denial form completed by the Codes of the Zoning Board of Appeals and delivers the legal Administrator. notice to the focal newspaper for publication. STEP 2: SPECIAL PERMIT APPLICATION FORM: STEP8: PUBLIC HEARING BEFORE THE ZONING Petitioner completes an application form to petition the BOARD OF APPEALS: Board of Appeals for a Special Permit. All information The petitioner should appear in his/her behalf, or be as required in items 1 through and including 11 shall be represented by an agent or attorney. in the absence of i completed any appearance without due cause on behalf of the petitioner,the Board shall decide on the matter by using STEP 3: PLAN PREPARATION: the information it has otherwise receive. Petitioner submits all of the required plan information as cited in Section 10 page 4 of this form. STEP 9: DECISION: After the hearing; a copy of the Board's decision will be STEP 4: LIST OF PARTIES IN INTEREST: sent to all parties in interest. Any appeal of the Board's The petitioner requests from the Assessors Office a decision may be made pursuant to Massachusetts certified list of Parties in Interest(abutters). General Law ch. 40A sec. 17,within twenty (20)days after the decision is filed with the Town Clerk. STEP 5: SUBMIT APPLICATION: Petitioner submits one(1)original and 10 Xerox copies STEP 10: RECORD04G CERTIFICATE OF DECISION of all the required information to the Tawe Clerk's Office Pte. to be certified by the Town Clerk with the time and date The petitioner is responsible for recording certification of of filing. The original will be left at the Town Clerk's the decision and any accompanying plans at the Essex Office, and the 10 Xerox copies will be left with the County North Registry of Deeds, 381 Common St., Zoning Board of Appeals secretary. Lawrence MA,and shall complete the Certification of Recording form and forward it to the Zoning Board of Appeals and the Building Department_ [ IMPORTANT PHONE NUMBERS: _ ,- 978-688-9533 Office of Community Dev&Services + 27 Charles Street North Andover, MA 01845 978-688-9501 Town Clerk'sffiqe i 7 t= . 978-688-9566 Assessor's Odice-�"`_,L 978-688-9542 fax for Community Development offices Q 978-688-9545 Building Department D 978-688-9541 Zoning Board of Appeals Office FFB �. 3 2004 PAGE 1 Qf 4 BOARD OF APPEAL$ PAGE 2 OF 4 Date &Time Stamp Application for a SPECIAL PERMIT s z- IFMINE*, - as - ^- North ANDOVER ZONING BOARD OF APPEALS 1. Petitioner: Name, address and telephone number: CHECKMATE DEVELOPMENT, LLC, c/o Merrimac Cartage, 210 Holt Road, North Andover, MA 01845 Attn: Jeffrey Thomson, Manager (978) 580-9083 "The petitioner shalt be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address and Telephone number and number of ears under this ownership: :P I� Joyce Thomson, as she is Trustee of LMT Realty Trust, under Declaration of Trust dated 12/19/84 and recorded with Essex North Registry of Deeds in Book 1906, Page 84, 210 Holt Road, North Andover, MA 01845 Years Owned Land: 20 (978) 580-9083 3. Location of Property: (Three Parcels involved) a. Street: 210 Holt Road Zoning District Industrial II ** b. Assessors: Map number 34 * Lot Number: 40 c. Registry of Deeds: Book Number 1906 Page Number. 94 4. By-Law Sections under which the petition for the Special Permit is made. Section 4.1.1(3) "Refer to the Permit Denial and Zoning By-Law Plan Review as supplied by the Building Commissioner. 5. Describe the Special Permit request= Applicant seeks to use subject parcel as accessory parking to an adult entertainment use on adjoining parcels (Map 34, Parcel 27 and Map 77, Parcel 14) . "The above description shall be used for the purpose of the legal notice and decision. A more derailed description is required pursuant to the Zoning Board Rules and Regulations as cited on page 4 of#ft applicabon. * in conjunction with Map 34, Parcel 27 and Map 77, Parcel 14 ** Map 34, Parcel 27 and Map 77, Parcel 14 are located within an adult entertainment overlay district. Page 3 of 4 Application for NORTH ANDOVER ZONING BOARD OP APPEALS _�.,. 6.a Existing Lot: Lot Area Open Space Percent Lot Frontage Parking ' Minimum Lot set Back Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side 8 Rear % 1.92 1.92 0 94, 240 acres acres b. Proposed Lot(S): Lot Area Open Space Percent Lot Frontage Parking * Minimum Lot set Back Sq. Ft. Sq. Ft_ Coverage Feet Spaces Front Side A Side B Rear No Change y6 c. Required Lot: (As required by zoning By-Law) Lot Area Open Space Percent Lot Frontage Parking * Minimum Lot set Basic" Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear N/A ' 7. a. Existing Buildings: Ground Floor Number of Total Use of Number } Square feet Floors Sq.feet Building` of bits ' N/A *Reference Use Code numbers and Uses from the Zonirul 6y-L a�►r 5 of�Unft in B. Proposed Buildings: Ground Floor Number of Total. Use of r Square feetNumber Floors Sq.feet Building• of Units f _N/A k I 'Reference Use Code numbers and Uses from the zoning Ordwoanm S'lat&mwdw.0 wAs in 8. Petitioner and Landowmr signature(s).- Every application for a Special Permit shall be made onVft form whidt is the official foam of the ZDning Board of Appeals. Every application shad be flied with the Town Clerics Office It shalt be the responsibility of the petitioner to furnish all supporting documentation this,application. The wed COPY of#ins�received by the Town Clerk or the Zoning Board of Appeals absolve the applicant from flus The r shall be responsible for all expenses f petitioner _ Failure to comply with application requirements, as cited herein and in the Zo ' ninq Regulations may result in a dismissal by the Zoning Board of this application as incomplete. t CHEC D ELOPMENT, LLC Signature '>�y:. ' y Type above name (q-her Jeffrey Thomson, Manager PAGE 4 OF 4 SPECIAL PERMIT 9. WRITTEN DOCUMENTATION Application for a Special Permit must be supported by a *10. B.*Plm Specifications: legibly written or typed memorandum setting forth in I) Size of plan: Ten(10) paper copies of a plan not detail all facts relied upon. When requesting a Special to exceed 11"x17", preferred scale of 1"=40' Permit from the requirements of MGLA ch. 40A, and the ID One(1)Mylar. North Andover Zoning By-laws, all dimensional III) Plan prepared by a Registered Professional requirements shall be clearly identified and factually Engineer and/or Land Surveyor, with a block for supported. Each point, 1-6 individually,is required five(5)ZBA signatures and date indicated on the li to be addressed with this application. Mylar. *10 C. *Features To Be Included On Plan: 1.The particular use proposed for the land or structure. I) Site Orientation shall include: 2. The specific site is an appropriate location for such 1. north point use, structure or condition. 2. zoning district(s) 3.There will be no nuisance or serious hazard to & names of sheets vehicles or pedestrians. 4. wetlands(if applicable) 4.Adequate and appropriate facilities will be provided 5. abutters of property, within 300' radius for the proper operation of the proposed use. 6. low of buildings on adjacent properties 5.The use is in harmony with the purpose and intent of t within 50'from applicants proposed structure Zoning Bylaw. 7. deed restrictions, easements. S. Specific reference and response to the criteria I1)Legend&Graphic Aids: required by the particular Special Permit for which 1. Proposed features in solid lines&outlined in red this application is made(i.e. the Earth Removal 2. Existing features to be removed in dashed lines Special Permit has unique criteria and submittal 3. Graphic Scales requirements.). 4. Date of Plan 5. Title of Plan 10. PLAN OF LAND 6. Names addresses and phone numbers of the Each application to the Zoning Board of Appeals shall applicant, owner or record, and designer or be accompanied by the following described plan. Plans surveyor. must be submitted with this application to the Town Clerk's Office and ZBA secretary at least thirty(30)days 10 D. Minor Projects prior to the public hearing before the Zoning Board of Minor projecitz,such as decks,sheds,and garages, appeals. shall require orgy the plan information as indicated with an. asterisks(*). In some cases further information may A set of building elevation plans may be required be required ! when the application involves new construction/conversion/and/or a proposed change 11. APPLICATION FILING FEES in use, A. Notification fees: Applicant shall provide a check or money order to: "Town of North Andover 10 A. Major Projects #022-17644841e co 'for the of first class, cerlrfied, Major projects are those which involve one of the return receipt($4.42 as of November 2003)x#of all following whether existing or proposed: parties in irk identified in MGLA ch. 40A§11 on the abutter's list for the legal notice check. Also,the I}five or more parking spaces, applicant shall supply first class postage stamps II)three(3)or more dwelling units, (currently 37¢)x the#of parties of interest on the III)2000 square feet of building area. abutter's list for the decision mailing. Major Projects shalt require that in addition to the above B. Mauling labels:Applkwd shall provide four(4) features, plans must show detailed utilities, soils, and sets of mailing labels no larger than 1x2-5<g3"(3 copies topographic information. for the Legal mailing and one copy for the Decision mailing). C. Administrative fee of$50.00 per application. ►►►► A Special Permit once granted by the ZBA will lapse in 2(two)years if not exercised and a new petition must be submitted. 4-4 I I I Town of North Andover µORTit Of4t�an r°1,k Office of the Zoning Board of Appeals Community Development and Services Division #"s • i 27 Charles Street North Andover,Massachusetts 01845 'ss�c►+us�t D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax (978)688-9542 Date p TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance Cecial Permit Comprehensive Permit(40B)' Finding for property located at: STREET: (�' Mn 3 3 00�f TOWN: 10YJA o d o ve r TO MEETING DATE(S): -� _— i NAME OF PETITIONER: CA PLU ✓A4)cL Signed: ®' g Petitioner(or petitioner's representative) WAIVER Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 NEWMAN & NEWMAN, P.C. ATTORNEYS AT LAW ONE MCKINLEY SQUARE BOSTON, MASSACHUSETTS 02109 (617)227-3361 FACSIMILE (617)723-1710 WWW.NEWMANLEGAL.COM MARSHALL F. NEWMAN ABRAHAM NEWMAN HOWARD I. ROSEN February 20, 2004 (1915 - 1995) JEFFREY T. KARP RICHARD JOYCE SAMUEL NEWMAN COUNSEL HAND DELIVERED Office of the Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Application of Checkmate Development, LLC For Special Permit Map 34, Parcel 40 Dear Sir or Madam: In connection with the above, I enclose herewith the following: 1 . Application for Special Permit; 2. Parties of Interest/Abutters Listing; 3. Memorandum in Support of Application for Special Permit together with Exhibit; 4. Ten Paper Copies of a Plan in Four Sheets prepared by Brown and Caldwell dated November 7, 2002, revised as of January 23, 2004, said Sheets being as follows: a. Existing Conditions Plans; b. Proposed Site Plan; C. Detail Sheet; and d. Zoning Plan. The mylar will be provided in advance of the public hearing. E s 3 2004 BOARD OF APPEALS NEWMAN & NEWMAN, P.C. ATTORNEYS AT LAW ONE MCKINLEY SQUARE BOSTON,MASSACHUSETTS 02109 (617)227-3361 FACSIMILE (617)723-1710 W W W.NEWMANLEGAL.COM MARSHALL F. NEWMAN HOWARD I. KARP ABRAHAM NEWMAN JEFFREY T. ARP February 26, 2004 (1915 - 1995) RICHARD JOYCE SAMUEL NEWMAN COUNSEL _ VIA FEDERAL EXPRESS Office of the Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Application of Checkmate Development, LLC for Special Permit Map 34, Parcel 40 Dear Sir or Madam: Pursuant to my telephone conversation with the Secretary of the Board, I enclose herewith ten (10) copies of the Application for Special Permit and ten (10) copies of the Memorandum in Support of Application for Special Permit, together with Exhibits. I have previously filed ten (10) paper copies of the Plan in Four Sheets, which is to be considered with the Application for Special Permit. It is my understanding that my client, Jeff Thomson, has personally signed the original Application for Special Permit and has given you the filing fee. It is my further understanding that he will obtain a certified List of Abutters from the Board of Assessors and will bring it to you. If there is anything further which you require from me, kindly contact me immediately. Very truly yours, NEWMAN &.NEWMAN, P.C. 7,,204 ) By; Marshall F. Newman OARD OF APPEALS MFN/jtd Enclosures cc: Mr. Jeff Thomson Town of North AndoverpORTq Qf 1t LED F`�~Q Office of the Zoning Board of Appeals tir Community Development and Services Division 27 Charles Street North Andover,Massachusetts 01845 '�s+c►+us�` D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax (978)688-9542 Date TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance cia1 Pe Comprehensive Permit (40B) Finding for property located at: STREET: �0 i fl� ADA) qj- l TOWN: Aadk IAF m d fy-e—�- TO MEETING DATE(S): Y�l-� ) �7) 0 )— NAME OF PETITI0 R: LkiplklmN c Signed: Petitioner(or petitioner's representative) . WAIVER Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 EXHIBIT TOWN OF NORTH ANDOVER BOARD OF HEALTH Re: Site Assignment Hearing DEP File No.W058076 In the Matter of THOMSON BROTHERS INDUSTRIES,INC. ) RECYCLING CENTER&TRANSFER ) STATION ) 210 Holt Road ) North Andover,MA 01845 ) 1 MOTION OF THOMSON BROTHERS INDUSTRIES,INC.TO REOPEN HEARING FOR LIlVHTED PURPOSES Thomson Brothers Industries,Inc.CTBT')hereby moves to reopen the hearing for purposes of submitting certain additional proposed site assignment conditions and to afford the Parties an opportunity to examine and comment on the same. TBI anticipates that the Hearing need only be reopened for one night in order to address the additional conditions. The additional conditions,above and beyond those set forth in TBI's proposed site assignment decision previously filed with the Board are as follows: Provided that TBI is open and operating: 1. TBI will increase the frequency of curbside recycling pickup from every other week to weekly and will do so free of charge as previously offered; 2. TBI will increase the number of units with curbside recycling by including in the weekly pickup residential multi-family housing units that are not currently being picked up in the Town's curbside recycling program;in other words TBI will provide weekly curbside recycling to all North Andover residents; 3. Free of charge,TBI will pick up furniture items that meet the criteria for drop off; 4. Free of charge,TBI will pick up curbside and transport to the Town's existing composting facility properly set out residential(excluding commercial)leaf and yard waste on an agreed upon schedule 4 to 6 times per year; 5. TBI will pay for the diesel retrofit with dual oxidation catalysts of the Town's existing diesel school bus fleet(18 vehicles)or if the school bus retrofit proves logistically infeasible,it will retrofit with dual oxidation catalysts the same number of older diesel trucks(which do not have electronic engine controls)using the facility; 6. TBI will pay the reasonable costs of installing and operating a video surveillance system at the intersection of Holt Road and Route 125 to be used by the Town to monitor left and right turns by trucks exiting Holt Road and enforcing truck route restrictions; 7. Average daily tonnage of the facility will be reduced to 500 tons per day; 8. In lieu of proposed Condition 20 as set forth in Article V of TBI's Proposed Site Assignment Decision: TBI shall not apply for a building permit until it has obtained Highway Department approval of a traffic light at the Holt Road/Rt. 125 intersection. TBI shall not commence operation of the facility until the light is operating. TBI shall pay up to$200,000 towards installation of a traffic light at the Holt Road/Rt. 125 intersection. TBI requests the Board of Health to reopen the Site Assignment Hearing for the purpose of affording the Parties and the Board to accept and address these conditions. Respectfully Submitted, THOMSON BROTHERS INDUSTRIES,INC. By its attorneys, Thomas A.Mackie(BBO#311625) Gail E.Magenau(BBO#652644) Moehrke,Mackie&Shea,P.C. 137 Newbury Street Boston,Massachusetts 02116 (617)266-5700 Date: March 21,2006 2 Gomm EXHIBIT COMMONWEALTH OF MASSACHUSETTS CITY OF NORTH ANDOVER BOARD OF HEALTH In re: ) TBI,Inc. ) SITE ASSIGNMENT HEARING 210 Holt Road ) DEP File No. W058076 North Andover-,MA 01845 ) MEMORANDUM AND ORDER ON TBI'S MOTION TO REOPEN HEARING FOR LIMITED PURPOSES On March 21,2006,the applicant TBI,Inc. filed a Motion to Reopen Hearing for Limited Purposes. That motion is granted for the reasons and on the conditions set forth below. Procedural Baftround On January 4,2006,TBI submitted its rebuttal evidence and I closed the hearing in this matter except for surrebuttal. On January 13,certain Intervenors submitted written surrebuttal evidence. See Memorandum and Order on TBI's Motion to Exclude or Strike Certain Surrebuttal Testimony and Exhibits(January 31,2006). By Friday,February 3,the parties filed post-hearing briefs with the Board. On March 13, the Board deliberated in an open meeting. It did not reach a decision. TBI's motion proposes eight additional conditions for the Board of Health to include in a site assignment decision: four increases in recycling and yard waste pick-up,retrofit of 18 diesel buses or trucks with dual oxidation catalysts,installation and operation of a video camera at the Route 125/Holt Road intersection to monitor and enforce truck routes,reduction in the facility's average daily tonnage from 650 tons/day to 500,and certain commitments regarding a traffic signal at the Route 125/Holt Road intersection. The Intervenor citizen groups and Positive Start Realty filed oppositions to TBI's motion. Several individual Intervenors also submitted letters in opposition. Analysis L Authority to Reopen Hearing DEP's Site Assignment Regulations require a Hearing Officer to"define issues,receive and consider relevant and reliable evidence and exclude irrelevant evidence,ensure an orderly presentation of the evidence and issues,and aid the board in reaching a decision based on the evidence presented at the hearing..:'. 310 CMR 16.20(10)(d). More specifically,he or she shall open and close the hearing,assist witnesses to make a full statement of the facts"in order to rF bring all information necessary to determine whether a site is suitable or not",and establish a date following the hearing"until whichtime written evidence will be received,considered and made part of the record",among other duties. 16.20(11)(c)1,4 and 9. For procedural issues not governed by the Regulations,"the Hearing Officer may rely on 801 CMR 1.00:Standard Adjudicatory Rules of Practice and Procedure." 16.20(11)(c). The Site Assignment Regulations do not address motions. The Standard Adjudicatory Rules authorize a party to: request the Presiding Officer to issue any order or take any action not inconsistent with law or 801 CMR 1.00. Motions may be made in writing at any time after the commencement of an Adjudicatory Proceeding or orally during a hearing. 801 CMR 1.01(7)(a)1. They also provide as follows regarding a motion to reopen: At any time after the close of a hearing and prior to a decision being rendered,a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. 801 CMR 1.01(7)(k). They state that"No evidence shall be admitted after the close of the record unless the Presiding Officer reopens the record." 801 CMR 1.01(10)(k)a Positive Start argues that(1)the Site Assignment Regulations do not authorize me to reopen the hearing,unlike other agencies'regulations,and(2)ifreopenin�is authorized under the Standard Adjudicatory Rules,TBI has not met the standard for it here. Positive Start is correct that the Site Assignment Regulations do not explicitly authorize me to reopen the hearing. It argues that the omission of that authority reflects an intentional ' The threshold issue is whether TBI's motion should be decided by me or the Board. No party has addressed that issue. TBI filed its motion with the Board,sending me a copy of its cover letter. The Intervenors filed their opposition with both the Board and me,but some of them argued that it should not be shown to the Board members. The individual Intervenors submitted their letters directly to the Board members. As quoted above,the Standard Adjudicatory Rules authorize the Presiding Officer to decide any written motion filed after the commencement of the adjudicatory proceeding and refer to the reopening of the record by the Presiding Officer. 801 CMR 1.01(7)(a)l; 1.01(10)(k). Accordingly,I am deciding TBI's motion. 2 Positive Start also argues that I lack the authority to entertain or rule on TBI's motion. I do not read that argument as distinct from its other ones. Positive Start also argues in a footnote that TBI lacks standing to file its motion because William and Joyce Thomson,Trustees of LMT Realty Trust,conveyed the site to Holt Road LLC in October 2005 and there is no evidence that TBI has an operating agreement with the LLC. I addressed related issues in my Memorandum and Order denying Positive Start's Motion to Dismiss on July 27,2005,and will not revisit them based on this passing . argument. I also note that this argument would apply to TBI's entire application,not merely its Motion to Reopen. -2 decision by DEP. It contrasts that omission with the references to reopening hearings in the regulations of the Housing Appeals Committee(760 CMR 30.13),the Division of Medical Assistance130 CMR 610.081 the,Architectural Access Board 521 CMR 4.4 and DEP itself tseif (3 10 CMR 1.01(14)(e)). Positive Start's argument would unduly restrict my authority. As described above,the Site Assignment Regulations authorize me to close the hearing and set a post-hearing date for the submission of written evidence,and do not explicitly authorize me to reopen the hearing or extend that date. However,they also do not explicitly authorize me to reconsider any evidentiary or other decision I may make in the hearing,which seems clear that I could do. Sensible administrative law dictates that,if the hearing officer can take an action,he or she can reconsider or modify that action in appropriate circumstances. Where I closed the hearing,I can reopen it. I do not believe that the contrast between the Site Assignment Regulations and other agencies'regulations(or even DEP's own other regulations)requires a different result. Massachusetts agencies do not appear to have any consistent stance on the reopening of hearings.3 Approximately a dozen agencies explicitly allow it;the rest apparently do not,though I do not know their policies or practices in that regard. Some allow reopening for new evidence, some for"further"evidence,and some for good cause or on the agency's own motion. See n.3, above. I cannot conclude that DEP intended,in its Site Assignment Regulations,to withhold from the Hearing Officer the authority to reopen a hearing if appropriate. 3 Some of the agencies that explicitly allow hearings to be reopened are as follows: • Division of Medical Assistance,MassHealth,Fair Hearing Rules:the"need to consider further testimony,evidence,materials or legal rules",130 CMR 610.081; • Department of Telecommunications and Energy:"upon motion and showing of good cause"or upon the Department's own motion,220 CMR 1.11(8); • Department of Environmental Protection:"for the purpose of receiving new evidence...not reasonably available for presentation at the hearing",310 CMR 1.01(14)(e); • Labor Relations Commission:to"receive fiuther evidence or otherwise dispose of the matter prior to the issuance of a final decision",456 CMR 13.14; • Architectural Access.Board:"to receive additional evidence which was not reasonably available at the time of the hearing",521 CMR 4.4; • Housing Appeals Committee:"for the purpose of receiving new evidence,oral argument, memoranda,briefs,or motions",760 CMR 30.13(3);and • Office of the Secretary of the Commonwealth,Supervisor of Records and Corporations Divisions: "for the purpose of receiving new evidence...granted only for good cause shown"or on the agency's own motion,950 CMR 31.09(3)and 101.10(3). 3 II. The Standards for Reopening Hearings As noted above,the Standard Adjudicatory Rules authorize me to reopen the hearing in order to receive"new evidence",which they define as"newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it." 801 CMR 1.01(7)(k). I agree with Positive Start that TBI's proposed additional conditions do not qualify as new evidence,and TBI has not argued that they do. It could have offered those conditions at any time during the hearing. Accordingly,the Standard Adjudicatory Rules do not authorize me to reopen this hearing for newly discovered evidence. See Buchanan v. Contributory Retirement Apueal Board,62 Massa App. Ct. 1105,2004 WL 2297977 (2004) (unpublished),cited by Positive Start. In that case,the court noted that a hearing officer has "broad authority to receive,rule on,and exclude or limit evidence". It upheld the magistrate's denial of a motion for reconsideration,after the hearing was closed and the magistrate had issued a decision, to introduce a transcript of a previous hearing. The proper course would have been a motion to reopen under 801 CMR 1.01(7)(k)and,in any event,the transcript was not"new evidence". 2004 WL 2297977 at*4. The more difficult question is whether TBI's proposed conditions constitute the type of evidence contemplated by regulations on reopening a hearing. If TBI were offering an additional study or other support for its arguments in the hearing,I would decline to reopen the hearing unless the support constituted"new evidence". However,TBI's proposed.conditions-to reduce the daily tonnage of the facility,increase recycling efforts,and reduce the diesel emissions and traffic impacts of the facility-are modifications of its application or mitigation measures. I do not believe that 801 CMR 1.01(7)(k)provides the only basis for reopening a hearing or that it was intended to preclude an applicant from reducing its project or increasing its mitigation measures during or after the hearing. The Rules broadly authorize me to"take any action not inconsistent with law or 801 CMR 1.00",and I do not believe that reopening this hearing would fail that test. See Box Pond Association v. Energy Facilities Siting Board,435 Mass. 408,420 (2001) (agencies have broad discretion in deciding whether to reopen hearings;review is for an abuse of discretion). My fundamental responsibility in this hearing is to compile as complete a record as possible for the Board consistent with the parties'rights. I do not believe it serves the interests of Chapter 111, Sections 150A and 150AY2 to prevent the Board from considering a revised proposal. For example,it makes little sense for the Board to decide on site assignment for a 650 tons/day facility where TBI now proposes to build one of 500 tons/day. Cf. Waste Solutions, Inc.v.Board of Health of the Town of Marshfield Civil Action No.99-5634(Suffolk Superior Court)(denying the applicant's motion for judgment on the pleadings and remanding the case to the board(Memorandum of Decision and Order,August 23,2001); 14 months later, supplementing that order with instructions to the board to take further evidence on two issues at the applicant's request(Order,October 18,2002)).4 Moreover,if the Board denied the application for the larger facility,nothing would prohibit TBI from reapplying for the smaller one, a result that no one in this hearing would want. 4 Simultaneous with this decision,I am emailing a PDF version of these decisions to the parties. 4 TBI's additional proposed conditions squarely address criteria under the Site Assignment Regulations,which no one has disputed. I conclude that the standards to reopen this hearing have been met. III. Whether this Hearing should he Reopened. . The objecting Intervenors also argue that reopening this hearing would be unfair. In their view,TBI should not be permitted to increase its chances of victory by reducing the facility and offering concessions at this stage. The neighbors' argument has substantial merit. I am not moved by the notion that TBI's proposed conditions may be prejudicial to the Intervenors;all evidence is intended to help the proffering party win its case. If this hearing had been short,the Intervenors'argument would carry substantially less weight. However,the hearing has lasted for 17 days over seven months. The parties and the Board have invested tremendous time,money and effort into understanding and addressing TBI's proposed facility and its impacts. In fact,they have spent considerable time on the aspects of the facility that TBI now proposes to.modify:the tonnage,recycling programs, diesel emissions,and buck route enforcement. It is troublesome for TBI to render much of that effort meaningless by making last-minute concessions to avoid a potential denial. More generally,.permitting TBI to have its cake and eat it too—let the Board approve 650 tons/day if the deliberations go well and reduce the facility to 500 tons/day if they do not—has the potential to erode public confidence in the fairness of the site assignment process. However, I Ikhour settlement offers are common(during trial,while the jury is deliberating,on appeal and even later),even though they may render previous effort meaningless and let one party play its cards cagily. Moreover,TBI's motion is not cost-free. -It would limit TBI's upside to 500 tons/day and incur other commitments. In view of the great public interest in fully informed and appropriate site assignment decisions(whether approvals or denials),I conclude that the appropriate way to avoid procedural unfairness to the Intervenors,unfortunately after 17 hearing days,is more process rather than less. I hereby reopen this hearing for one night(to be scheduled)to address TBI's additional proposed conditions on the following conditions: • TBI may present the additional conditions with 20 minutes of explanatory testimony. • The Intervenors may cross-examine TBI's witnesses and/or put on their own witnesses(and offer documents)for a total of three hours. • TBI may cross-examine,the Intervenors'witnesses for a total of 20 minutes. • I will not allow extensive re-direct examination,though I will not preclude it altogether at this point. 5 • TBI will pay the hourly fees of any counsel and expert witness representing or testifying for the Intervenors at the additional hearing pursuant to their previous arrangement(e.g.,pro bono engagements are not to be converted to paying ones for this occasion). • The parties may file supplemental briefs addressing only the evidence and testimony admitted at that hearing on a schedule to be set. Order TBI's Motion is granted subject to the above conditions. So ordered. Arthur P.Kreiger Hearing Officer Dated: March 31,2006 NAndover%ealth\pbrder—motion to reopen.doe 6 EXHIBIT TOWN OF NORTH ANDOVER Office of COMMUNITY DEVELOPMENT AND SERVICES . m HEALTH DEPARTMENT 400 OSGOOD STREET NORTH ANDOVER,MASSACHUSETTS 01845 978.688.9540—Phone Susan Y.Sawyer,REHS/RS 978.688.8476—FAX Public Health Director E-MAIL:healthdeptna townofnorthandover.com WEBSITE:hq://www.townofnorthandover.cotn The Board of Health will reopen a hearing for the limited purposes specified in a decision of the Hearing Officer dated Friday, March 31, 2006, regarding the application of TBI, Inc. (Thomson Brothers, Inc.) fora site assignment for a Recycling Center & Transfer Station at 210 Holt Road. Date: Wednesday, May 3, 2006 Time: 7:00 p.m. Where: Town Hall, 2nd Floor Meeting Room 120 Main Street NORTH ANDOVER, MA 01845 Per Order of Me Ooard of9Teafth: ?homasA. Trowbd f e, (D.o.S., 911.0. THOMASA. TROWBRIDGE,D.D.S.,M.D. CHAIRMAN, NOR THANDOVER BOARD OF HEALTH Commonwealth of Massachusetts � Count" Y of Essex The Superior Court , �RECEIVEQ TONN CLEWS OFFIC CIVIL Dif ffif gC v,2P"0767 sitive Start Realty Inc, Kathryn F Moyes, Plaintiff(s) TO OF vs. NORTH A 00 Ic Town of North Andover Board of Health TBI Inc MASS ACzI SE 1' Defendant(s) SUMMONS AND ORDER OF NOTICE To the above-named.- You bove-named:You are hereby summoned and required to serve upon Carl D Goodman, Esquire, plaintiffs attorney, whose address is Goodman Law Offices 152 Lynnway, suite 1E, Lynn, MA 01902, , an answer to the complaint/cross claim/counterclaim which is herewith served upon you. This must be done within 20 days after service of this summons upon you,-exclusive of the day of service. If you fail to do so, Judgment by default will be taken against you for the relief demanded in the complaint/ cross claim/counterclaim. You are also required to file your answer to the complaint/ cross claim/counterclaim in the office of the Clerk of this Court at Lawrence either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out Of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action, as appears in the complaint, for a preliminary injunction and that a hearing upon such application will be held at the court house at said Essex County Superior Court, in Lawrence on 05/02/2006, at 02:00 PM in CtRm 1 (Lawrence), at which time you may appear and show cause why such application should not be granted. Witness, Barbara J. Rouse, Esquire, Chief Justice of the Superior Court, at Lawrence, Massachusetts this 27th day of April, 2006. (AFFIX RETURN OF SERVICE ON BACK OF SUMMONS) Clerk Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court at(617)788-8130 CML.ACTION COVER SHEET Trial Court of Massachusetts Docket Number SIIPERI,�OFi<)COU:T: 9PARTTENT r QO �V PLAINTIFF(S) tomoscrty& Sj7WT (,'� 6�ry N DEFENDANT(S) Aoordof Ace/7Y. aeTiv.,p,/'& Of4eveA he IKQyr,S ATTORNEY, FIRM NAME;.ADDRESS AND TELEPWONE ATTORNEY.(if tutown) C c. . 5 Y dI?QZ: -S'¢3�20 Ica. Board of Bar 4�rers�ers number. On4in�code.and#racc tlesagnatat� Place an x in'.''ne box T� 1. F01 dnginai` omplaint 4. 1=p4 District Court Appeal c,231,s.$7&104(After trial) (X) F02.Reoyal to Sup.Ctc:231. s.104 'b:f05 Reacpyated after rescript;relief from joi)gment/ (Before.trial) ( drter(Mass.R: iv.P.60) X) [ J3. F03.Retransfer to-Sup.Ct. C.231,s.102C(X) [ ) S. E10 SuawpAry Process.A)?peat.: ( ) TYPES 0F* ACTION AND TRAM�I,t"NATiON(Sea'Fevetse side) CODE NO. TYPE OF ACTION(specify) ,�`RACP; IS THIS A J�IaC (�• aY .x{ � Yes The fo(Iowing is a full, it"' "'d and detailed statemen#of the facts on which p.1 relies to-de#ennme money-damages.-.'For this'for m..disregard- 66ble-or-,jf6bte dariiage-daims; indicate single d'a'**ges only. TO�iT`CIAIA�LS r. (Attach additional sheets as necessary A: Documented medical eRpertses to.date: I. Total hospital expenses. .: . . _- ♦ '.Z... a•.L•w..• 2: Total Doctor expenses. • 3. Total chiropractic expenses ' w V 4. Tptal physical therapy expenses . . . . . . . . . . . . . . . $....................... 5: Total other expenses-(describe) . . . . . .. . • . . . : . . , . ...... . . Subtotal $........... B. Documented lost-wages and-compensation to date,: 0.-" Documented property damages.to_date .:. D Reasonably anticipated future medical and hospita#eXerises .� " . , �'. .Reasonably anticipated lost.wages . . . . ;., . $ .........� F. Other documented items:of damages (describe) G. Brief descri}stion of ptaintift's injury, inctuding,nature and•extent of injury jdescnbe) TOTAL. .'r.....:..:... � �'•#�4CT CL A (Attach addltlonat sheets as necessary) Provide*a detailed..description of;clorn( ;' . . TQTA $. .,� .. r..: PLEASE.IDENTIFY.-BY CASE NUMBER, NAME AND COUNTY,ANY RELATED ACTION BENDING IN THE SUPERIOR COURT DEPARTMENT "I hereby certify th�iipUte I have complied with the requi er ertts_ °le , f tide Supreme Jutllci" Court Uniform Rules on Resolution (SJC Rule 1:113.re ' in hat 1 provide my clients with inforrnatiort about court-connected.dispute resolution servi us with them the advantages and disadvantages of the various.methods." Signature of Attorney of Record DATE:01:;O� A:O.S.C. 2003 t C, COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# Z co! POSITIVE START REALTY, INC. and KATHRYN F. MOYES \ PLAINTIFFS -v- THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER `; and TBI, Inc. DEFENDANTS J MOTION FOR APPOINTMENT OF SPECIAL PROCESS SERVER The plaintiffs move that Constable Paul Minsky, of Swampscott, Massachusetts, a disinterested person, or his designee, be appointed as a Special Process Server for the service of all process in this action. Positive Start Realty,Inc. and Kathryn F. Moyes The Plaintiffs By their attorneys, i Dated: April 26, 2006 CARL D. GOODMAN 152 Lynnway, Suite 1 E Lynn, MA 01902-3462 Tel: (781) 593-2016 Fax: (781) 592-1129 BBO No. 201720 Leu.office of Carl Il.Go'b— T 152 Lynn LyMAA /'1 nn, 01902 lei-s9=-201, q CLERIC DEP COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# Ice ro 00?67 POSITIVE START REALTY, INC. and KATHRYN F. MOYES PLAINTIFFS -v- THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER and TBI, Inc. DEFENDANTS MOTION FOR SHORT ORDER OF NOTICE ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION The plaintiff moves that the Court order that an order of notice be issued for a hearing on plaintiffs Motion for preliminary injunction. Positive Start Realty,Inc. and Kathryn F.Moyes The Plaintiffs By their attorneys Dated: April 26,2006 CARL D. OODMAN 152 Lynnway, Suite 1E Lynn,MA 01902-3462 Tel: (781)593-2016 Fax: (781) 592-1129 BBO No.201720 Lew Office of Cad D.Goodin 152 Lymway Ly n,MA 01902 781-593-2010 Commonwealth of Massachusetts County of Essex The Superior Court CIVILDOCKET# ESCV2006-00767-C RE: Positive Start Realty Inc et al v Town of North Andover Board of Health et al TO-Carl D Goodman, Esquire Goodman Law Offices 152 Lynnway, suite 1 E Lynn, MA 01902 TRACKING ORDER - F TRACK You are hereby notified that this case is on the fast (F) track as per Superior Court Standing Order 1-88. The order requires that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and return filed with the Court 07/26/2006 Response to the complaint filed (also see MRCP 12) 09/24/2006 All motions under MRCP 12, 19, and 20 filed 09/24/2006 All motions under MRCP 15 filed 09/24/2006 All discovery requests and depositions completed 02/21/2007 All motions under MRCP 56 served and heard 03/23/2007 Final pre-trial conference held and firm trial date set 04/22/2007 Case disposed 06/21/2007 The final pre-trial deadline is not the scheduled date of the conference. You will be notified of that date at a later time. Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session C sitting in CtRm 1 (Lawrence) at Essex Superior Court. Dated: 04/27/2006 Thomas H. Driscoll Jr. Clerk of the Courts BY: Kevin Jones Assistant Clerk Location: CtRm 1 (Lawrence) Telephone: (978) 687-7463 cvdtracf 2.wpd 619191 inidocOl sullkell COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# -o o ro- Da7�0 7 POSITIVE START REALTY, INC. and KATHRYN F. MOYES PLAINTIFFS -v- VERIFIED COMPLAINT IN EQUITY THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER and TBI, INC. DEFENDANTS PARTIES 1. The plaintiff,Positive Start Realty, Inc.,("Positive,Start")is a corporation duly organized under the laws of the Commonwealth of Massachusetts having its principal office at 8 Clinton Street,Woburn, Middlesex County,Massachusetts. 2. The plaintiff, Kathryn F. Moyes(herein"Moyes'),is an individual who resides in Lawrence, Essex County,Massachusetts 3. The defendant,Board of Health of the Town of North Andover,(the`North Andover Board of Health"or the`Board of Health") is a municipal department of the Town of North Andover, ,Massachusetts having its principal office at 400 Osgood Street,North Andover,Massachusetts. 4. The defendant,TBI,Inc. (herein"TBPj,is not a corporation organized under the laws of the Commonwealth of Massachusetts nor qualified as a foreign corporation in Massachusetts. On information and belief, TBI,Inc. is a pseudonym or alias for Thomson Brothers Industries, Inc.,a corporation organized under the laws of the Commonwealth of Massachusetts having its principal Law Office of office at 210 Holt Road,North Andover,Essex County,Massachusetts. _ Cad D.Goodman 152 Lynaway Lynn,MA 01902 781-593-2016 Z 5. The defendant,TBI, Inc.,is the Applicant named in a certain Site Assignment Application filed under the provisions of G.L. Chapter 111 Section 150A and now pending before the North Andover Board of Health. 6. The plaintiff, Positive Start,is an Intervenor in a Site Assignment Hearing pending before the Board of Health under the caption: Site Assignment Hearing-DEP File No. W058076 and are aggrieved persons within the meaning of G.L. Chapter 111, §150A. The plaintiff,Moyes, is a member of and representative of a 10-Citizens Group that is an Intervenor in said matter. GENERAL ALLEGATIONS 7. Pursuant to a Notice of Public Hearing,a copy of which is attached hereto and marked Exhibit"A,"the Board of Health commenced public hearings(the"Hearings')on the Application for Site Assignment of TBI,Inc. for a proposed recycling center and transfer station at 210 Holt Road in North Andover that would accept construction and demolition waste and commercial solid waste, not including food. 8. The Hearings were conducted over seven months and including seventeen(17)hearings pursuant to G.L. Chapter 111 §150A and the Public Hearing Rules set forth at 310 CMR 16.20 et seq. 9. The Hearings were conducted by Arthur P. Kreiger,Esquire, as a hearing officer designated by the Board of Health pursuant to the provisions of 310 CMR 16.20(3). 10. On or about November 18,2005,TBI filed a Motion for Leave to Submit Rebuttal Testimony and Data and on November 19,2005 the Hearing Officer orally ruled and on November 21,2005 issued a Memorandum and Order relative to the motion. A copy of the Memorandum and Order on TBI's Motion for Leave to Submit Rebuttal Testimony and Data is attached hereto as Exhibit`a', 11. TBI thereafter submitted rebuttal testimony and Intervenors filed surrebuttal testimony and the hearings were closed on January 13,2006. 12. On or before February 3,2006 TBI and several Intervenors filed post-hearing briefs with the Board of Health. 13. Pursuant to a duly called meeting,the Board of Health met in open public session March 13, 2006 and commenced its deliberations relative to the Application for Site Assignment. During the Law Office of Cad D.Goodman 152 Lynaway Lyme,MA 01902. 781-593-2016 2 public deliberation session, two members of the Board of Health indicated that they did not believe that the applicant had satisfied all of the criteria set forth in the regulations. The Board of Health did not complete its deliberations and scheduled a subsequent meeting for further deliberations for March 20, 2006. 14. By email message sent on March 17, 2006,the attorney for the Board of Health notified the parties that"The deliberative session schedule for Monday March 20 has been postponed. This message will be updated next week." A copy of the email notification is attached hereto and marked Exhibit"C." No public explanation for the postponement has been given. 15. On or about March 21, 2006,TBI filed a Motion of Thomson Brothers Industries,Inc. To Reopen Hearing for Limited Purposes(herein the"Motion to Reopen"). The Motion to Reopen was not supported by affidavit and did not allege that the moving party sought to introduce newly discovered evidence which by due diligence could not have been discovered at the time of the hearing. A copy of the motion is attached hereto and marked Exhibit"W', 16. Intervenors filed oppositions to the Motion to Reopen and on March 31,2006,the Hearing Officer issued his Memorandum and Order on TBI's Motion To Reopen Hearing For Limited Purposes(herein the"Ruling"),a copy of which is attached hereto and marked Exhibit"E." 17. The Ruling was beyond the authority of the Hearing Officer and was otherwise contrary to law. 18. Thereafter,Thomson Brothers Industries,Inc.filed a Motion to Modify the March 31,2006 Ruling and Intervenors filed oppositions thereto and the Intervenor,Positive Start Realty,Inc., moved for reconsideration by the Hearing Officer of the March 31,20kl�lboth motions were denied. 19. By email sent on April 5,2006,the parties were notified that the Board of Health had scheduled a meeting for May 3,2006 at 7:00 p.m.to"reopen a hearing for the limited purposes specified in a decision of the Hearing Officer dated Friday,March 31,2006,regarding the application of TBI, Inc(Thomson Brothers, Inc.)for a site assignment for a Recycling Center& Transfer Station at 210 Holt Road." A copy of notice is attached hereto and marked Exhibit'T." COUNT I—PRELIMINARY AND PERMANENT INJUNCTION Law Office of 20. The plaintiffs' re-allege the allegations of%I-19 as if fully set forth herein. Cad D.Goode m 152 Lymw" Lym,MA DIM 781-593-2016 3 21. The Public Hearing Rules do not include any authority for reopening hearings,but provide at 3 10 CMR 16.20(11)(c): "Where procedural issues arise regarding the conduct of the hearing which are not governed by 310 CMR 16.20 the Hearing Officer may rely on 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure,to resolve such issues" 22. Reopening the hearing will violate 801 CMR 1.01(7)(k)that provides: Motion to Reopen. At any time after the close of a hearing and prior to a decision being rendered,a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. A motion to reopen shall describe the new evidence which the Party wishes to introduce. 23. If the hearing is reopened,the process will be irreparably tainted and the parties will be irreparably prejudiced as Board of Health will receive and consider evidence that it may not lawfully receive. 24. In the event that the hearings are re-opened,the plaintiffs will suffer immediate, grave and irreparable harm as the process could not be reversed as the Board of Health is not subject to curative instructions. 25. The plaintiffs have an inadequate remedy at law. 26. G.L. Chapter 111, §150A provides in pertinent part: The superior court shall have jurisdiction in equity to enforce the provisions of this section upon petition of the department or any aggrieved person. WHEREFORE,the plaintiffs pray that this Honorable Court: 1. Enter a Preliminary Injunction and Permanent Injunction ordering the North Andover Board of Health to cease and desist from reopening the public hearings in the matter of the Site Assignment Application of TBI,Inc. and directing the North Andover Board of Health to proceed with its deliberations and to render a decision based upon the closed record in accordance with G.L. Chapter 111, §151 A,the Public Hearing Rules appearing Iat 310 CMR 16.20,and the Site Criteria set forth at 310 CMR 16.40 et seq. 2. Such other and further relief as the Court deems just. Law Office of Cad D.Goodman 152 Lymway Lyme,MA 01902 781-593-2016 - 4 Respectfully submitted, Positive Start Realty, Inc. and Kathryn F. Moyes The Plaintiffs By their attorneys: Dated: April 26,2006 CARL D. GOO MAN 152 Lynnway, Suite 1 E Lynn,MA 01902 Tel: (781)593-2016 Fax: (781)592-1129 BBO No.201720 MATTHEW C. DONAHUE Eno,Boulay,Martin&Donahue,LLP 21 George Street Lowell,MA 01852 Tel: (978)452-8902 BBO No.548280 VERIFICATION I, KATHRYN F.MOYES,hereby attest that I have read and understand the within verified complaint and that the allegations contained herein are true and accurate to the best of my personal knowledge and belief. As to matters set forth on information and belief,I believe the same to be true. Signed under the pains and penalties of perjury this day of April 2006. II KATHRVN F. MOYES Law Ofee of Cad D'Goodman 152 Ly-way Lyme,MA 01902 78.1-593-2016 5 EXHIBIT * 4� NOTICE OF PUBLIC FEARING TOWN OF NORTH ANDOVER BOARD OF HEAL' The Board of Health will hold a public hearing onMonday,June 13,2005 at 7 p.m.at the Nortb Andover Middle School Auditorium 495 Main Street,North Andover, MA,01845. The purpose of the hearing is to hear testimony regarding an application for a site assignment for a proposed Recycling Center and Transfer Station, The proposed Transfer Station is a Recycling Facility and Solid Waste Transfer Station located on approximately 5.8 acres at 210 Holt Road,North Andover,MA,01845. The proposed Transfer Station will have a maxin inner daily capacity of 650 tons per day of solid waste and will operate 6 days per week.The applicant for the proposed Transfer Station is TBI,Inc.,c/o William Thomson,210 Holt Road,North Andover,MA 01845. DEP has issued a Report in which it determined that the above-described place is suitable for the proposed facility. Copies of the Department's Report On Suitability and the site. suitability criteria(3 10 CMR 16.00)and application are available for examination and copying for a fee of,20 per page. The Site Assignment Regulations impose certain requirements that must be followed in order to participate in the public hearing process. Those requirements are listed in the regulations prepared by the DEP 310 CMR 16.20. The link can be found at www.#ownofnorthandover.com for this site. The application and Report may be inspected at the Board of Health's offices at 400 Osgood Street,North Andover,MA,01845,Monday Friday,between the hours of 9 a.m.—11 a.m.and 2 p.m.—4 p.m. Written comments on the application must be submitted to the Board of Health by Monday,Jose 1k3,2005. Written comments may be submitted to the Board of Health,clo Susan Sawyer,North Andover Board of Health, 400 Osgood Street,North Andover,MA,01845. Additional information may be obtained from the North Andover Board of Health at (978)688-9540. EXHIBIT COMMONWEALTH OF MASSACHUSETTS CITY OF NORTH ANDOVER BOARD OF HEALTH In re: ) TBI,Inc. ) SITE ASSIGNMENT HEARING 210 Holt Road ) DEP File No.W058076 North Andover,MA 01845 ) MEMORANDUM AND ORDER ON TBFS MOTION FOR LEAVE TO SUBMIT REBUTTAL TESTIMONY AND DATA On November 18,2005,the applicant TBI,Inc. filed a Motion for Leave to Submit Rebuttal Testimony and Data regarding(1)analysis of residential recycling traffic at the Holt Road/Route 125 intersection, (2)depth to groundwater and(3)on-site traffic circulation. Specifically,TBI has submitted pre-filed rebuttal testimony and:exhibits by William Scully regarding traffic at that intersection, testimony and exhibits by Barry vanLaarhoven'regarding groundwater elevation, and testimony and a revised conceptual site plan("Conceptual Drop-Off Layout")by Alan Kirschner regarding groundwater elevation and on-site traffic.l Procedural Background On November 14,Paul Costello testified for an intervenor on groundwater elevation,and Christa Lucas,retained by the Board,testified on traffic issues. At the end of that hearing,TBI stated that it would have new groundwater elevation data to submit on rebuttal. I ordered TBI to disclose those data and any report regarding them to the other parties promptly,and it did so with the other proposed rebuttal testimony and exhibits described above. Mr.Kirschner's revised site plan responds to Ms.Lucas'testimony about on-site traffic circulation. On November 19,Camp,Dresser&McKee("CDM")representatives,retained by the Board, testified that they recommend(a)queuing space for five incoming trucks between Holt Road and the scale and a reserve area for five more trucks out of the traffic flow and(b)enclosed,heated wheel- washing facilities for outgoing trucks,perhaps in a separate building.2 At the end of the hearing on November 19,I heard argument on TBI's motion. Several intervenors(or groups)opposed it. I issued an oral ruling on both TBI's Motion and its anticipated response to the issues that CDM had just raised,reserving whether TBI may further revise its site plan in a way that incorporates its two-acre parcel in its solid waste activities. TBI also has filed pre-filed rebuttal testimony by Dale Raczyndd regarding air quality. That testimony does not raise the issues addressed in its motion. Z CDM inadvertently had not filed pre-filed direct testimony on the truck queuing and reserve am points,as required in my Pre-Hearing Ender. The Oral Ruling On November 19,I ruled in substance as follows,among other points: 1. TBI may present Mr. Scully's rebuttal testimony and exhibits,which is straightforward rebuttal. 2. TBI may present Mr.vanLaarhoven's evidence regarding groundwater elevation That evidence is more a supplementation of TBI's case in chief than true rebuttal,but I will accept it in view of(1)its direct relevance to the site assignment criterion regarding groundwater elevation, 310 CMR 16.40(3)(d)7.,(2)thesite assignment regulation counseling appropriate flexibility in this hearing, 310 CMR 16.20(1),and(3)Wood Waste of Boston,Inc.v.Board of Health of Everett,52 Mass.App. Ct. 330(2001),cited by TBI in its Motion. 3. TBI may present its revised site plan and Mr.Kirchner's testimony in response to Mr. Costello's and Ms. Lucas'testimony. Revising the site plan in response to their testimony is different than rebutting it,and the fact that TBI is entitled to present rebuttal evidence does not necessarily mean that it is entitled to revise its site plan. All parties acknowledged that a site assignment hearing is not an iterative process like a zoning hearing;and the intervenors are rightly concerned about the possibility that one site plan revision may require others and be prejudicial to them. Nevertheless, I will accept TBI's evidence for the reasons described above. I also note that the site plan revisions address only the on-site traffic circulation issues;Mr.Kirschner states in his rebuttal testimony that the groundwater elevation can be handled without affecting other aspects of the facility design. 4. TBI may present rebuttal to CDM's testimony regarding truck queuingtreserve area and wheel-washing. TBI also may further revise its site plan to show those facilities(and any other associated revisions) for the reasons described above. Any such testimony and exhibits must be filed and served at least seven days before the next hearing date pursuant to the Pre-Hearing Order. 5. TBI should seek from DEP either an amended Determination of Site Suitability based on its revised site plan or an opinion that no such amended Determination is necessary. I do not require TBI to consult DEP only because of uncertainty whether I have that authority,but,if it does not take that step,TBI risks an appeal by intervenors on the ground that DEP approval was required. If TBI consults DEP,it must disclose its communications with DEP to the other parties,though I do not address whether the intervenors have any rights in that process. TBI must file and serve DEP's response to its consultation within one day of receiving it. 6. in order to give TBI time to consult DEP,the next hearing is scheduled for Wednesday,January 4,2006 at 7:00. At that hearing,TBI must present all its rebuttal evidence. 7. As proposed by TBI to expedite the hearing,the other parties may present surrebuttal evidence in writing,and all parties waive their rights to cross-examination on that evidence. All surrebuttal must be filed and served by 5:00 on Friday,January 13. The Board's witnesses will be permitted to comment on TBI's site plan revisions,either at the January 4 hearing or by written 2 comments also to be filed and served by 5:00 on January 13. Unless circumstances change,this site assignment hearing will close at that time. The Reserved Issue: The Two-Acre Parcel . I will not preemptively preclude TBI from submitting,under Paragraph 3,a further revised site plan that encompasses the two-acre parcel for this facility. I decline to do so at this point because TBI applied for site assignment for the entire 5.8 acre parcel,even though it limited this facility to the 3.8 acre parcel,using the two-acre parcel for a maintenance and office facility for its solid waste transportation business(Exhibit 15,p. 1). However,where the two- acre parcel has been the subject of virtually no testimony over the six months of this hearing,and is separated from the 3.8 acre parcel by a retaining wall(except for a set of steps and a ramp),I will take a dim view of any attempt to locate substantial activity there at this late date. Such revisions probably would generate new rounds of cross-examination and surrebuttal regarding on-site traffic circulation,as well as potentially reopening other issues,and might well unreasonably prolong the hearing and unduly prejudice the other parties. TBI's Motion is GRANTED subject to the qualifications described above. So ordered. Arthur P.Kreiger Hearing Officer Dated: November 21,2005 NAndova%e9th\p\mkr-mflon ft v&uftddw 3 Monday night Page 1 of 1 EXH I BIT Carl D. Goodman From: Kenneth Kimmell[kkimmell@bck.comj Sent: Friday, March 17, 2006 2:58 PM To: ssawyer@townofnorthandover.com;tat.boh@comcast.net;jonathan@foresite1.com; cbarczak@comcast.net;AKreiger AndersonKreiger.co;tam@lawmms.com; kfod@hotmail.com; mdonahue@ebmdattomeys.com;cart@attomeygoodman.com;mleon@nutter.com; gem@lawmms.com;JConnolly@EnviroStratSys.com Subject: Monday night The deliberative session schedule for Monday March 20 has been postponed. This message will be updated next week. Kenneth L. Kimmell BERNSTEIN, CUSHNER 8 KIMMELL, P.C. 585 Boylston Street, Suite 400 Boston, MA 02116 617.236.4090(Phone) 617.236.4339(Fax) kkimmell@bck.com (E-mail) www.bck.com (http) This e-mail transmission contains confidential and privileged information from the law firm of Bernstein, Cushner & Kimmell, P.C. and is intended only for the use of the addressee(s) named above. Any other use is strictly prohibited. III 4/26/2006 EXHIBIT TOWN OF NORTH ANDOVER BOARD OF HEALTH Re: Site Assignment Hearing DEP File No.W058076 In the Matter of ) THOMSON BROTHERS INDUSTRIES,INC. ) RECYCLING CENTER&TRANSFER ) STATION ) 210 Holt Road ) North Andover,MA 01845 ) MOTION OF THOMSON BROTHERS INDUSTRIES,INC.TO REOPEN HEARING FOR LIMITED PURPOSES Thomson Brothers Industries,Inc.("TBP)hereby moves to reopen the hearing for purposes of submitting certain additional proposed site assignment conditions and to afford the Parties an opportunity to examine and comment on the same. TBI anticipates that the Hearing need only be reopened for one night in order to address the additional conditions. The additional conditions,above and beyond those set forth in TBI'sproposed site assignment decision previously filed with the Board are as follows: Provided that TBI is open and operating: 1. TBI will increase the frequency of curbside recycling pickup from every other week to weekly and will do so free of charge as previously offered; 2. TBI will increase the number of units with curbside recycling by including in the weekly pickup residential multi-family housing units that are not currently being picked up in the Town's curbside recycling program;in other words TBI will provide weekly curbside recycling to all North Andover residents; 3. Free of charge,TBI will pick up furniture items that meet the criteria for drop off; 4. Free of charge,TBI will pick up curbside and transport to the Town's existing composting facility properly set out residential(excluding commercial)leaf and yard waste on an agreed upon schedule 4 to 6 times per year, 5. TBI will pay for the diesel retrofit with dual oxidation catalysts of the Town's existing diesel school bus fleet(18 vehicles)or if the school bus retrofit proves logistically infeasible,it will retrofit with dual oxidation catalysts the same number of older diesel trucks(which do not have electronic engine controls)using the facility; 6. TBI will pay the reasonable costs of installing and operating a video surveillance system at the intersection of Holt Road and Route 125 to be used by the Town to monitor left and right turns by trucks exiting Holt Road and enforcing truck route restrictions; 7. Average daily tonnage of the facility will be reduced to 500 tons per day, 8. In lieu of proposed Condition 20 as set forth in Article V of TBI's Proposed Site Assignment Decision: TBI shall not apply for a building permit until it has obtained Highway Department approval of a traffic light at the Holt RoadlRt. 125 intersection. TBI shall not commence operation of the facility until the light is operating.TBI shall pay up to$200,000 towards installation of a traffic light at the Holt Road/Rt. 125 intersection. TBI requests the Board of Health to reopen the Site Assignment Hearing for the purpose of affording the Parties and the Board to accept and address these conditions. Respectfully Submitted, THOMSON BROTHERS INDUSTRIES,INC. By its attorneys, Thomas A.Mackie(BBO#311625) Gail E.Magenau(BBO#652644) Moehrke,Mackie&Shea,P.C. 137 Newbury Street Boston,Massachsisetts 02116 (617)266-5700 Date: March 21,2006 2 EXHIBIT E COMMONWEALTH OF MASSACHUSETTS CITY OF NORTH ANDOVER BOARD OF HEALTH In re: } TBI,Inc. ) SITE ASSIGNMENT HEARING 210 Holt Road ) DEP File No.W058076 North Andover,MA 01845 ) MEMORANDUM AND ORDER ON TBI'S MOTION TO REOPEN HEARING FOR LIMITED PURPOSES On March 21,2006,the applicant-TBI,Inc. filed a Motion to Reopen Hearing for Limited Purposes. That motion is granted for the reasons and on the conditions set forth below.. Procedural Background On January 4,2006,TBI submitted its rebuttal evidence and I closed the hearing in this matter except for surrebuttal. On January 13,certain Intervenors submitted written surrebuttal evidence. See Memorandum and Order on TBI's Motion to Exclude or Strike Certain Surrebuttal Testimony and Exhibits(January 31,2006). By Friday,February 3,the parties filed post-hearing briefs with the Board. On March 13, the Board deliberated in an open meeting. It did not reach a decision. TBI's motion proposes eight additional conditions for the Board of Health to include in a site assignment decision: four increases in recycling and yard waste pick-up,retrofit of 18 diesel buses or trucks with dual oxidation catalysts,installation and operation of a video camera at the Route 125/Holt Road intersection to monitor and enforce truck routes,reduction in the facility's - average daily tonnage from 650 tons/day to 500,and certain commitments regarding a traffic signal at the Route 125/Holt Road intersection. The Intervenor citizen groups and Positive Start Realty filed oppositions to TBI's motion. Several individual Intervenors also submitted letters in opposition. Analysis L Authority to Reopen Hearings DEP's Site Assignment Regulations require a Hearing Officer to"define issues,receive and consider relevant and reliable evidence and exclude irrelevant evidence,ensure an orderly presentation of the evidence and issues,and aid the board in reaching a decision based on the evidence presented at the hearing..:'. 310 CMR 16.20(10)(d). More specifically,he or she shall open and close the hearing,assist witnesses to make a full statement of the facts"in order to bring all information necessary to determine whether a site is suitable or not%and establish a date following the hearing"until which time written evidence will be received,considered and made part of the record",among other duties. 16.20(11)(c)l,4 and 9. For procedural issues not governed by the Regulations,"the Hearing Officer may rely on 801 CMR 1.00:Standard Adjudicatory Rules of Practice and Procedure." 16.20(11)(c). The Site Assignment Regulations do not address motions. The Standard Adjudicatory Rules authorize a party to: request the Presiding Officer to issue any order or take any action not inconsistent with law or 801 CMR 1.00. Motions may be made in writing at any time after the commencement of an Adjudicatory Proceeding or orally during a hearing. 801 CMR 1.01(7)(a)1. They also provide as follows regarding a motion to reopen: At any time after the close of a hearing and prior to a decision being rendered,a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. 801 CMR 1.01(7)(k). They state that"No evidence shall be admitted after the close of the record unless the Presiding Officer reopens the record." 801 CMR 1.01(10)(k).1 Positive Start argues that(1)the Site Assignment Regulations do not authorize me to reopen the hearing,unlike other agencies'regulations,and(2)ifreopenin�is authorized under the Standard Adjudicatory Rules,TBI has not met the standard for it here. Positive Start is correct that the Site Assignment Regulations do not explicitly authorize me to reopen the hearing. It argues that the omission of that authority reflects an intentional The threshold issue is whether TBI's motion should be decided by me or the Board. No party has addressed that issue. TBI filed its motion with the Board,sending me a copy of its cover letter. The Intervenors filed their opposition with both the Board and me,but some of them argued that it should not be shown to the Board members. The individual Intervenors submitted their letters directly to the Board members. As quoted above,the Standard Adjudicatory Rules authorize the Presiding Officer to decide any written motion filed after the commencement of the adjudicatory proceeding and refer to the reopening of the record by the Presiding Officer. 801 CMR 1.01(7xa)l;1.01(10)(k). Accordingly,I am deciding TBI's motion. Z Positive Start also argues that I lack the authority to entertain or rule on TBI's motion. I do not read that argument as distinct from its other ones. Positive Start also argues in a footnote that TBI lacks standing to file its motion because William and Joyce Thomson,Trustees of LMT Realty Trust,conveyed the site to Holt Road LLC in October 2005 and there is no evidence that TBI has an operating agreement with the LLC. I addressed related issues in my Memorandum and Order denying Positive Start's Motion to Dismiss on July 27,2005,and will not revisit them based on this passing . argument. I also note that this argument would apply to TBI's entire application,not merely its Motion to Reopen. -2 decision by DEP. It contrasts that omission with the references to reopening hearings in the regulations of the Housing Appeals Committee(760 CMR 30.13),the Division of Medical Assistance(130 CMR 610.08 1),the Architectural Access Board(521 CMR 4.4),and DEP itself (3 10 CMR 1.01(14)(e)). Positive Start's argument would unduly restrict my authority. As described above,the Site Assignment Regulations authorize me to close the hearing and set a post-hearing date for the submission of written evidence,and do not explicitly authorize me to reopen the hearing or extend that date. However,they also do not explicitly authorize me to reconsider any evidentiary l or other decision I may make in the hearing,which seems clear that I could do. Sensible administrative law dictates that,if the hearing officer can take an action,he or she can reconsider or modify that action in appropriate circumstances. Where I closed the hearing,I can reopen it. I do not believe that the contrast between the Site Assignment Regulations and other agencies'regulations(or even DEP's own other regulations)requires a different result. Massachusetts agencies do not appear to have any consistent stance on the reopening of hearings.3 Approximately a dozen agencies explicitly allow it;the rest apparently do not,though I do not know their policies or practices in that regard. Some allow reopening for new evidence, some for"further"evidence,and some for good cause or on the agency's own motion. See n.3, above. I cannot conclude that DEP intended,in its Site Assignment Regulations,to withhold from the Hearing Officer the authority to reopen a hearing if appropriate. 3 Some of the agencies that explicitly allow hearings to be reopened are as follows: • Division of Medical Assistance,MassHealth,Fair Hearing Rules:the"need to consider fiuther testimony,evidence,materials or legal rules!,130 CMR 610.081; • Department of Telecommunications and Energy:"upon motion and showing of good cause"or upon the Department's own motion,220 CMR 1.11(8); • Department of Environmental Protection:"for the purpose of receiving new evidence...not reasonably available for presentation at the hearing',310 CMR 1.01(14)(e); • Labor Relations Commission:to"receive fiuther evidence or otherwise dispose of the matter prior to the issuance of a final decision",456 CMR 13.14; • Architectural Access Board:"to receive additional evidence which was not reasonably available at the time of the hearing",521 CMR 4.4; • Housing Appeals Committee:"for the purpose of receiving new evidence,oral argument, memoranda,briefs,or motions",760 CMR 30.13(3);and • Office of the Secretary of the Commonwealth,Supervisor of Records and Corporations Divisions: "for the purpose of receiving new evidence...granted only for good cause shown"or on the agency's own motion,950 CMR 31.09(3)and 101.10(3). 3 IL The Standards for Reopening Hearings. As noted above,the Standard Adjudicatory Rules authorize me to reopen the hearing in order to receive"new evidence",which they define as"newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it." 801 CMR 1.01(7)(k). I agree with Positive Start that TBI's proposed additional conditions do not qualify as new evidence,and TBI has not argued that they do. It could have offered those conditions at any time during the hearing. Accordingly,the Standard Adjudicatory Rules do not authorize me to reopen this hearing for newly discovered evidence. See Buchanan v. Contributory Retirement Appeal Board.62 Mass.App. Ct. 1105,2004 WL 2297977(2004) (unpublished),cited by Positive Start. In that case,the court noted that a hearing officer has `broad authority to receive,rule on,and exclude or limit evidence". It upheld the magistrate's denial of a motion for reconsideration,after the hearing was closed and the magistrate had issued a decision,to introduce a transcript of a previous hearing. The proper course would have been a motion to reopen under 801 CMR 1.01(7)(k)and,in any event,the transcript was not`hew evidence". 2004 WL 2297977 at*4. The more difficult question is whether TBI's proposed conditions constitute the type of evidence contemplated by regulations on reopening a hearing. If TBI were offering an additional study or other support for its arguments in the hearing,I would decline to reopen the hearing unless the support constituted"new evidence". However,TBI's proposed.conditions-to reduce the daily tonnage of the facility,increase recycling efforts,and reduce the diesel emissions and traffic impacts of the facility—are modifications of its application or mitigation measures. I do not believe that 801 1 CMR 1.01(7)(k)provides the only basis for reopening a hearing or that it was intended to preclude an applicant from reducing its project or increasing its mitigation measures during or after the hearing. The Rules broadly authorize me to"take any action not inconsistent with law or 801 CMR 1.00 ,and I do not believe that reopening this hearing would fail that test. See Box Pond Association v.Energy Facilities Siting Board,435 Mass.408,420 (2001) (agencies have broad discretion in deciding whether to reopen hearings;review is for an abuse of discretion). My fundamental responsibility in this hearing is to compile as complete a record as possible for the Board consistent with the parties'rights. I do not believe it serves the interests of Chapter 111, Sections 150A and 150A%s to prevent the Board from considering a revised proposal. For example, it makes little sense for the Board to decide on site assignment for a 650 tons/day facility where TBI now proposes to build one of 500 tons/day. Cf, Waste Solutions, Inc. v. Board of Health of the Town of Marshfield Civil Action No. 99-5634(Suffolk Superior Court) (denying the applicant's motion for judgment on the pleadings and remanding the case to the board(Memorandum of Decision and Order,August 23,2001); 14 months later, supplementing that order with instructions to the board to take fiuther evidence on two issues at the applicant's request(Order,October 18,2002)).4 Moreover,if the Board denied the application for the larger facility,nothing would prohibit TBI from reapplying for the smaller one, a result that no one in this hearing would want. 4 Simultaneous with this decision,I am emailing a PDF version of these decisions to the parties. 4 TBI's additional proposed conditions squarely address criteria under the Site Assignment Regulations,which no one has disputed. I conclude that the standards to reopen this hearing have been met. III. Whether this Hearing should he Reopened The objecting Intervenors also argue that reopening this hearing would be unfair. In their view,TBI should not be permitted to increase its chances of victory by reducing the facility and offering concessions at this stage. The neighbors'argument has substantial merit. I am not moved by the notion that TBI's proposed conditions may be prejudicial to the Intervenors;all evidence is intended to help the proffering party win its case. If this hearing had been short,the Intervenors' argument would carry substantially less weight. However,the hearing has lasted for 17 days over seven months. The parties and the Board have invested tremendous time,money and effort into understanding and addressing TBI's proposed facility and its impacts. In fact,they have spent considerable time on the aspects of the facility that TBI now proposes to.modify:the tonnage,recycling programs, diesel emissions,and truck route enforcement. It is troublesome for TBI to render much of that effort meaningless by making last-minute concessions to avoid a potential denial. More generally,_permitting TBI to have its cake and eat it too—let the Board approve 650 tons/day if the deliberations go well and reduce the facility to 500 tons/day if they do not—has the potential to erode public confidence in the fairness of the site assignment process. However, 11 khour settlement offers are common(during trial,while the jury is deliberating,on appeal and even later),even though they may render previous effort meaningless and let one party play its cards cagily. Moreover,TBI's motion is not cost-free. -It.would limit TBI's upside to 500 tons/day and incur other commitments. In view of the great public interest in fully informed and appropriate site assignment decisions(whether approvals or denials),I conclude that the appropriate way to avoid procedural unfairness to the Intervenors,unfortunately after 17 hearing days,is more process rather than less. I hereby reopen this hearing for one night(to be scheduled)to address TBI's additional proposed conditions on the following conditions. • TBI may present the additional conditions with 20 minutes of explanatory testimony. • The Intervenors may cross-examine TBI's witnesses and/or put on their own witnesses(and offer documents)for a total of three hours. • TBI may cross-examine the Intervenors'witnesses for a total of 20 minutes. • I will not allow extensive re-direct examination,though I will not preclude it altogether at this point. 5 • TBI will pay the hourly fees of any counsel and expert witness representing or testifying for the Intervenors at the additional hearing pursuant to their previous arrangement(e.g.,pro Bono engagements are not to be converted to paying ones for this occasion). • The parties may file supplemental briefs addressing only the evidence and testimony admitted at that hearing on a schedule to be set. Order TBI's Motion is granted subject to the above conditions. So ordered. Arthur P.Kreiger Hearing Officer Dated: March 31,2006 NAndova%a t *kwdw—motion to raVw.doc . 6 EXHIBIT TOWN OF NORTH AND Office of COMMUNITY DEVELOPMENT AND SERVICES �� HEALTH DEPARTMENT 400 OSGOOD STREET NORTH ANDOVER,MASSACHUSETTS 01845 978.688.9540—Phone Susan Y.Sawyer,REHS/RS 978.688.8476—FAX Public Health Director E-MAIL:healthdept a townofnorthandover.com WEBSITE:httD://www.townofiiordmdover.com com The Board of Health will reopen a hearing for the limited purposes specified in a decision of the Hearing Officer dated Friday, March 31, 2006, regarding the application of TBI, Inc. (Thomson Brothers, Inc.) for a site assignment for a Recycling Center & Transfer Station at 210 Holt Road. Date: Wednesday, May 3, 2006 Time: 7:00 p.m. Where: Town Hall, 2nd Floor Meeting Room 120 Main Street NORTH ANDOVER, MA. 01845 Ter order of the Board of Ifealth: TiiomasA. 2rrow&Qe, O.D.S., qW.D. THOMASA. TROWBRIDGE,D.D.S, M.D. CHAIRMAN,NOR THANDOVER BOARD OF HEALTH EXHIBIT COMMONWEALTH OF MASSACHUSETTS CITY OF NORTH ANDOVER BOARD OF HEALTH I ) In re: ) TBI, Inc. ) SITE ASSIGNMENT HEARING 210 Holt Road ) DEP File No.W058076 North Andover,MA 01845 ) MEMORANDUM AND ORDER ON TBI'S MOTION FOR LEAVE TO SUBMIT REBUTTAL TESTIMONY AND DATA On November 18,2005,the applicant TBI,Inc. filed a Motion for Leave to Submit Rebuttal Testimony and Data regarding(1)analysis of residential recycling traffic at the Holt Road/Route 125 intersection,(2)depth to groundwater and(3)on-site traffic circulation. Specifically,TBI has submitted pre-filed rebuttal testimony and exhibits by William Scully regarding traffic at that intersection,testimony and exhibits by Barry vanLaarhoven'regarding groundwater elevation,and testimony and a revised conceptual site plan("Conceptual Drop-Off Layout")by Alan Kirschner regarding groundwater elevation and on-site traffic.' Procedural Background On November 14,Paul Costello testified for an intervenor on groundwater elevation,and Christa Lucas,retained by the Board,testified on traffic issues. At the end of that hearing,TBI stated that it would have new groundwater elevation data to submit on rebuttal. I ordered TBI to disclose those data and any report regarding them to the other parties promptly,and it did so with the other proposed rebuttal testimony and exhibits described above. Mr.Kirschner's revised site plan responds to Ms.Lucas' testimony about on-site traffic circulation. On November 19, Camp,Dresser&McKee("CDM")representatives,retained by the Board, testified that they recommend(a)queuing space for five incoming trucks between Holt Road and the scale and a reserve area for five more trucks out of the traffic flow and(b)enclosed,heated wheel- washing facilities for outgoing trucks,perhaps in a separate building.2 At the end of the hearing on November 19,I heard argument on TBI's motion. Several intervenors(or groups)opposed it. I issued an oral ruling on both TBI's Motion and its anticipated response to the issues that CDM had just raised,reserving whether TBI may further revise its site plan in a way that incorporates its two-acre parcel in its solid waste activities. i TBI also has filed pre-filed rebuttal testimony by Dale Raczynski regarding air quality. That testimony does not raise the issues addressed in its motion. 2 CDM inadvertently had not filed pre-filed direct testimony on the truck queuing and reserve area points,as required in my Pre-Hearing Order. The Oral Ruling On November 19,I ruled in substance as follows, among other points: 1. TBI may present Mr. Scully's rebuttal testimony and exhibits,which is straightforward rebuttal. 2. TBI may present Mr.vanLaarhoven's evidence regarding groundwater elevation. That evidence is more a supplementation of TBI's case.in chief than true rebuttal,but I will accept it in view of(1)its direct relevance to the site assignment criterion regarding groundwater elevation, 310 CMR 16.40(3)(d)7., (2)the"site assignment regulation counseling appropriate flexibility in this hearing, 310 CMR 16.20(1), and(3)Wood Waste of Boston Inc.v.Board of Health of Everett,52 Mass. App. Ct. 330(2001), cited by TBI in its Motion. 3. TBI may present its revised site plan and Mr.Kirchner's testimony in response to Mr. Costello's and Ms. Lucas'testimony. Revising the site plan in response to their testimony is different than rebutting it,and the fact that TBI is entitled to present rebuttal evidence does not necessarily mean that it is entitled to revise its site plan. All parties acknowledged that a site assignment hearing is not an iterative process like a zoning hearing;and the intervenors are rightly concerned about the possibility that one site plan revision may require others and be prejudicial to them. Nevertheless,I will accept TBI's evidence for the reasons described above. I also note that the site plan revisions address only the on-site traffic circulation issues;Mr.Kirschner states in his rebuttal testimony that the groundwater elevation can be handled without affecting other aspects of the facility design. 4. TBI may present rebuttal to CDM's testimony regarding truck queuingtreserve area and wheel-washing. TBI also may further revise its site plan to show those facilities(and any other associated revisions)for the reasons described above. Any such testimony and exhibits must be filed and served at least seven days before the next hearing date pursuant to the Pre-Hearing Order. 5. TBI should seek from DEP either an amended Determination of Site Suitability based on its revised site plan or an opinion that no such amended Determination is necessary. I do not require TBI to consult DEP only because of uncertainty whether I have that authority,but,if it does not take that step,TBI risks an appeal by intervenors on the ground that DEP approval was required. If TBI consults DEP,it must disclose its communications with DEP to the other parties,though I do not address whether the intervenors have any rights in that process. TBI must file and serve DEP's response to its consultation within one day of receiving it. 6. In order to give TBI time to consult DEP,the next hearing is scheduled for Wednesday,January 4,2006 at 7:00. At that hearing,TBI must present all its rebuttal evidence. 7. As proposed by TBI to expedite the hearing,the other parties may present surrebuttal evidence in writing,and all parties waive their rights to cross-examination on that evidence. All surrebuttal must be filed and served by 5:00 on Friday,January 13. The Board's witnesses will be permitted to comment on TBI's site plan revisions,either at the January 4 hearing or by written 2 comments also to be filed and served by 5:00 on January 13. Unless circumstances change,this site assignment hearing will close at that time. The Reserved Issue: The Two-Acre Parcel I will not preemptively preclude TBI from submitting,under Paragraph 3,a further revised site plan that encompasses the two-acre parcel for this facility. I decline to do so at this point because TBI applied for site assignment for the entire 5.8 acre parcel,even though it limited this facility to the 3.8 acre parcel,using the two-acre parcel for a maintenance and office facility for its solid waste transportation business(Exhibit 15,p. 1). However,where the two- acre parcel has been the subject of virtually no testimony over the six months of this hearing,and is separated from the 3.8 acre parcel by a retaining wall(except for a set of steps and a ramp),I will take a dim view of any attempt to locate substantial activity there at this late date. Such revisions probably would generate new rounds of cross-examination and surrebuttal regarding on-site traffic circulation,as well as potentially reopening other issues,and might well unreasonably prolong the hearing and unduly prejudice the other parties. TBI's Motion is GRANTED subject to the qualifications described above. So ordered. Arthur P.Kreiger Hearing Officer Dated: November 21,2005 NAndova%edthVp order-motion for rebWAdoc 3 Commonwealth of Massachusetts County of Essex The Superior Court CIVIL DOCKET# ESCV2006-00767-C RE: Positive Start Realty Inc et al v Town of North Andover Board of Health et al TO:Carl D Goodman, Esquire Goodman Law Offices 152 Lynnway, suite 1 E Lynn, MA 01902 TRACKING ORDER - F TRACK You are hereby notified that this case is on the fast (F) track as per Superior Court Standing Order 1-88. The order requires that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and return filed with the Court 07/26/2006 Response to the complaint filed (also see MRCP 12) 09/24/2006 All motions under MRCP 12, 19, and 20 filed 09/24/2006 All motions under MRCP 15 filed 09/24/2006 All discovery requests and depositions completed 02/21/2007 All motions under MRCP 56 served and heard 03/23/2007 Final pre-trial conference held and firm trial date set 04/22/2007 Case disposed 06/21/2007 The final pre-trial deadline is not the scheduled date of the conference. You will be notified of that date at a later time. Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session C sitting in CtRm 1 (Lawrence) at Essex Superior Court. Dated: 04/27/2006 Thomas H. Driscoll Jr. Clerk of the Courts BY: Kevin Jones Assistant Clerk Location: CtRm 1 (Lawrence) Telephone: (978) 687-7463 cvdtracf_2.wpd 619191 inidocOl sullkell COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# ,Z o o D 7(v 7 POSITIVE START REALTY,INC. and KATHRYN F. MOYES PLAINTIFFS -v- VERIFIED COMPLAINT IN EQUITY THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER and TBI, INC. DEFENDANTS PARTIES 1. The plaintiff, Positive Start Realty, Inc.,("Positive Start")is a corporation duly organized under the laws of the Commonwealth of Massachusetts having its principal office at 8 Clinton Street,Woburn,Middlesex County,Massachusetts. 2. The plaintiff,Kathryn F.Moyes(herein"Moyes'),is an individual who resides in Lawrence, Essex County, Massachusetts 3. The defendant,Board of Health of the Town of North Andover, (the"North Andover Board of Health"or the"Board of Health") is a municipal department of the Town of North Andover, ,Massachusetts having its principal office at 400 Osgood Street,North Andover,Massachusetts. 4. The defendant,TBI, Inc. (herein"TBP'),is not a corporation organized under the laws of the Commonwealth of Massachusetts nor qualified as a foreign corporation in Massachusetts. On information and belief,TBI,Inc.is a pseudonym or alias for Thomson Brothers Industries,Inc.,a corporation organized under the laws of the Commonwealth of Massachusetts having its principal Law off�of office at 210 Holt Road,North Andover,Essex County,Massachusetts. Carl D.Goodman 152 Lymway Lynn,MA 011902 . 781-593-2016 1 5. The defendant,TBI,Inc.,is the Applicant named in a certain Site Assignment Application filed under the provisions of G.L. Chapter 111 Section 150A and now pending before the North Andover Board of Health. 6. The plaintiff, Positive Start,is an Intervenor in a Site Assignment Hearing pending before the Board of Health under the caption: Site Assignment Hearing-DEP File No.W058076 and are aggrieved persons within the meaning of G.L. Chapter 111, §150A. The plaintiff, Moyes, is a member of and representative of a 10-Citizens Group that is an Intervenor in said matter. GENERAL ALLEGATIONS 7. Pursuant to a Notice of Public Hearing, a copy of which is attached hereto and marked Exhibit"A,"the Board of Health commenced public hearings(the"Hearings")on the Application for Site Assignment of TBI,Inc. for a proposed recycling center and transfer station at 210 Holt Road in North Andover that would accept construction and demolition waste and commercial sold waste, not including food. 8. The Hearings were conducted over seven months and including seventeen(17)hearings pursuant to G.L. Chapter 111 §150A and the Public Hearing Rules set forth at 310 CMR 16.20 et seq. 9. The Hearings were conducted by Arthur P.Kreiger,Esquire,as a hearing officer designated by the Board of Health pursuant to the provisions of 310 CMR 16.20(3). 10. On or about November 18,2005,TBI filed a Motion for Leave to Submit Rebuttal Testimony and Data and on November 19,2005 the Hearing Officer orally ruled and on November 21, 2005 issued a Memorandum and Order relative to the motion. A copy of the Memorandum and Order on TBI's Motion for Leave to Submit Rebuttal Testimony and Data is attached hereto as Exhibit`B." 11. TBI thereafter submitted rebuttal testimony and Intervenors filed surrebuttal testimony and the hearings were closed on January 13,2006. 12. On or before February 3,2006 TBI and several Intervenors filed post-hearing briefs with the Board of Health. 13. Pursuant to a duly called meeting,the Board of Health met in open public session March 13, 2006 and commenced its deliberations relative to the Application for Site Assignment. During the Law Office of Carl D.Goodman 152 Lynnway Lyme,MA 01902._ 781-593-2016 I 2 public deliberation session, two members of the Board of Health indicated that they did not believe that the applicant had satisfied all of the criteria set forth in the regulations. The Board of Health did not complete its deliberations and scheduled a subsequent meeting for further deliberations for March 20,2006. 14. By email message sent on March 17, 2006,the attorney for the Board of Health notified the parties that"The deliberative session schedule for Monday March 20 has been postponed. This message will be updated next week." A copy of the email notification is attached hereto and marked Exhibit"C." No public explanation for the postponement has been given. 15. On or about March 21, 2006,TBI filed a Motion of Thomson Brothers Industries, Inc. To Reopen Hearing for Limited Purposes(herein the"Motion to Reopen"). The Motion to Reopen was not supported by affidavit and did not allege that the moving party sought to introduce newly discovered evidence which by due diligence could not have been discovered at the time of the hearing. A copy of the motion is attached hereto and marked Exhibit"D:'. 16. Intervenors filed oppositions to the Motion to Reopen and on March 31,2006,the Hearing Officer issued his Memorandum and Order on TBI's Motion To Reopen Hearing For Limited Purposes(herein the"Ruling7% a copy of which is attached hereto and marked Exhibit"E" 17. The Ruling was beyond the authority of the Hearing Officer and was otherwise contrary to law. 18. Thereafter,Thomson Brothers Industries,Inc.filed a Motion to Modify the March 31,2006 Ruling and Intervenors filed oppositions thereto and the Intervenor, Positive Start Realty, Inc., moved for reconsideration by the Hearing Officer of the March 31,20r both motions were denied. 19. By email sent on April 5,2006,the parties were notified that the Board of Health had scheduled a meeting for May 3,2006 at 7:00 p.m.to"reopen a hearing for the limited purposes specified in a decision of the Hearing Officer dated Friday,March 31,2006,regarding the application of TBI, Inc(Thomson Brothers,Inc.)for a site assignment for a Recycling Center& Transfer Station at 210 Holt Road." A copy of notice is attached hereto and marked Exhibit'T." COUNT I—PRELIMINARY AND PERMANENT INJUNCTION 20. The plaintiffs' re-allege the allegations of¶M1-19 as if fully set forth herein. Law Office of _ Carl D.Goodman 152 Lyanway Lynn,MA 01902 781-593-2016 3 21. The Public Hearing Rules do not include any authority for reopening hearings,but provide at 310 CMR 16.20(11)(c): "Where procedural issues arise regarding the conduct of the hearing which are not governed by 310 CMR 16.20 the Hearing Officer may rely on 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure,to resolve such issues." 22. Reopening the hearing will violate 801 CMR 1.01(7)(k)that provides: Motion to Reopen.At any time after the close of a hearing and prior to a decision being rendered,a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. A motion to reopen shall describe the new evidence which the Party wishes to introduce. 23. If the hearing is reopened,the process will be irreparably tainted and the parties will be irreparably prejudiced as Board of Health will receive and consider evidence that it may not lawfully receive. 24. In the event that the hearings are re-opened,the plaintiffs will suffer immediate,grave and irreparable harm as the process could not be reversed as the Board of Health is not subject to curative instructions. 25. The plaintiffs have an inadequate remedy at law. 26. G.L. Chapter 111, §150A provides in pertinent part: The superior court shall have jurisdiction in equity to enforce the provisions of this section upon petition of the department or any aggrieved person. WHEREFORE,the plaintiffs pray that this Honorable Court: 1. Enter a Preliminary Injunction and Permanent Injunction ordering the North Andover Board of Health to cease and desist from reopening the public hearings in the matter of the Site Assignment Application of TBI,Inc. and directing the North Andover Board of Health to proceed with its deliberations and to render a decision based upon the closed record in accordance with G.L. Chapter 111, §151 A,the Public Hearing Rules appearing at 310 CMR 16.20,and the Site Criteria set forth at 310 CMR 16.40 et seq. I 2. Such other and further relief as the Court deems just. Law Office of Cad D.Goodman 152 Lymway Lynn,MA 01902 781-593-2016 4 Respectfully submitted, Positive Start Realty,Inc. and Kathryn F. Moyes The Plaintiffs By their attorneys: Dated: April 26, 2006 CARL D. GOO MAN 152 Lynnway, Suite IE Lynn,MA 01902 Tel: (781) 593-2016 Fax: (781) 592-1129 BBO No. 201720 MATTHEW C. DONAHUE Eno,Boulay,Martin&Donahue,LLP 21 George Street Lowell,MA 01852 Tel: (978)452-8902 BBO No. 548280 VERIFICATION 1, KATHRYN F.MOYES,hereby attest that I have read and understand the within verified complaint and that the allegations contained herein are true and accurate to the best of my personal knowledge and belief. As to matters set forth on information and belief,I believe the same to be true. Signed under the pains and penalties of perjury this_-day of April 2006. KATHRVR F. MOYES Law Office of Carl O.Goodman 152 Lynnway Lynn,MA 01902 781-593-2016 5 AIA Commonwealth of Massachusetts L County of Essex The Superior Court RECEIVED , o . T0111N' :�, :: Fly.,. CIVIL D CV2 076 sitive Start Realty Inc, Kathryn F Moyes, Plaintiff(s) T 0 1,1 NORTH ANWi""'i't Town of North Andover Board of Health, TBI Inc MAS301°l - Defendant(s) SUMMONS AND ORDER OF NOTICE To the above-named: You are hereby summoned and required to serve upon Carl D Goodman, Esquire, plaintiffs attorney, whose address is Goodman Law Offices 152 Lynnway, suite 1E, Lynn, MA 01902, , an answer to the complaint/cross claim/counterclaim which is herewith served upon you. This must be done within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, Judgment by default will be taken against you for the relief demanded in the complaint/ cross claim/counterclaim. You are also required to file your answer to the complaint/ cross claim/counterclaim in the office of the Clerk of this Court at Lawrence either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action, as appears in the complaint, for a preliminary injunction and that a hearing upon such application will be held at the court house at said Essex County Superior Court, in Lawrence on 05/02/2006, at 02:00 PM in CtRm 1 (Lawrence), at which time you may appear and show cause why such application should not be granted. Witness, Barbara J. Rouse, Esquire, Chief Justice of the Superior Court, at Lawrence, Massachusetts this 27th day of April, 2006. Clerk (AFFIX RETURN OF SERVICE ON BACK OF SUMMONS) Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court at (617)788-8130 Trial Court of Massachusetts Docket Number CIVIL.ACTION COVER SHEET SUPERIOR COD:t©(APARTMENT' _ QO PLAINTIFF(S) '?oSCT't,t/& SrArt ` Re*c*ytri,,, DEFENDANTS) ►rd ei�Ke�t9Y a`?�«o//U. 14�e � F I�QyrS `� R '�c ATTORNEY, FIRM NAME;ADDRESS ANDTELEPHONE" ATTORNEY (if known) 0424 ,D 6001gtl t52 GyKK S�.fir �y�� A-o hoz- .. 1Qf-sgio� Board of Ba erseers number.- tJrain code and#rack designate Pal an x m onebox:only 1. F01 Original Gompl4int, 4.F04 District CourtAppeal c:231,s.97 8104(After trial) (X) 2. F02 Rerfioval to Sup:Cty c:231,.s:104 4, 5:`F05 Reactivated after rescri t,relief from jifrt menti (Before teal) F P 1 9 O girder as R:Gv.P.60} X) : [ J 3. F03 Retransfer to sup.Ct. C.231,s.IUC(X) ( j 6, f°10 Summary Process App at O TYPE OF AbTION AND TkX0K Di -W_'NATION see reverse side) ( CODE NO TYPE OF ACTION.(specify) 1`RA-CK , 1S THIS A Jgft+.Y Yes )No Tlie following is a full, itemized and:detailed statement of the facts on which;platntiff relies to de#€mine money damages F.or this form, disregard dcftltle'oirrebte damage baims;-in Catesinle dirriages only. TORT`CLAIMS {Attaeh additional sheets as necessary) A:: Documented medical expenses to.date: 1: Total hospital expenses. . . . . . • . . . . . : $ ... r 2. Total Doctor expenses. . _ . . . . . . . .. . .. $ ............ I Total chiropractic expenses . . . . . . . . . . . 4. Tptal physical therapy expenses . . . . . . . . . . . . ... .. . . . . . . . . $. ... .. 5. Total other.expenses(describe) . . ... . . . . ... . . . . , . . . . . . . $. : . .. .. Subtotal $ . B. Documented lost wages and compensation to date' .t. . . . . . . . . $............... C_. Documented-property d=medical s.to..date s .. D. Reasonably anticipated -and hospita#eXf►ei1ses . . :. . . . . E. Reasonably anticipated lost wages : $ ..... ...:. F. Other documented items of damages (describe) G. Brief description of plaintiffs injury, 'including,ria#ure and extent of iniurydescribe) :TOT-.A-L..+COf+ITfACTC'S,WIS (Attach adtlitional sheefS as�necessary� Provide'a detailed description of c140( ):' _• t s ..w .r..r.... PLEASE IDENTIFY.-BY CASE NUMBER, NAME AND COUNTY,ANY RELATED ACTION PENDING 1N THE SUPERIOR COURT DEPARTMENT/ hereby certify tha l have complied withfthe�requiretnertts': Ile&W tie Supreme Judicial Court Uniform Rules on Dispute Resolution (SJ1 Rule 1:18) re n hat l provide my clients with information about court-connected:dispute resolution servic : u with them the advantages and disadvantages of the various methods." Signature of Attorney of Record DA1 E: �d A:O.S.C. 2003 i v � CV, COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# 2 co( _ o0 7(07 POSITIVE START REALTY, INC. and KATHRYN F. MOYES l PLAINTIFFS \ -v- THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER and TBI, Inc. ~ DEFENDANTS ^� e `- MOTION FOR APPOINTMENT OF SPECIAL PROCESS SERVER The plaintiffs move that Constable Paul Minsky, of Swampscott, Massachusetts, a disinterested person, or his designee,be appointed as a Special Process Server for the service of all process in this action. Positive Start Realty, Inc. and Kathryn F. Moyes The Plaintiffs By their attorneys, i Dated: April 26, 2006 CARL D. GOODMAN 152 Lynnway, Suite 1E Lynn, MA 01902-3462 Tel: (781) 593-2016 Fax: (781) 592-1129 BBO No. 201720 Lao-Office of Carl U.y—va);u, E A T 152 Ly MA f'� �. � i.Dn 0- 01902 81-591-2016 DEP q CLERK COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# 2,0Q(c 13076 POSITIVE START REALTY,INC. and KATHRYN F. MOYES PLAINTIFFS -v- THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER and TBI, Inc. DEFENDANTS MOTION FOR SHORT ORDER OF NOTICE ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION The plaintiff moves that the Court order that an order of notice be issued for a hearing on plaintiffs Motion for preliminary injunction. Positive Start Realty, Inc. and Kathryn F. Moyes The Plaintiffs By their attorneys Dated: April 26,2006 CARL D. OODMAN 152 Lynnway, Suite 1 E Lynn,MA 01902-3462 Tel: (781)593-2016 Fax: (781) 592-1129 BBO No. 201720 Law Office of Carl D.Goodman - 152 Lynnway Lym MA G1902 781-593-2010 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action# 204*... d 0 707 POSITIVE START REALTY, INC. and KATHRYN F. MOYES PLAINTIFFS -v- THE BOARD OF HEALTH OF THE TOWN OF NORTH ANDOVER and TBI, INC. DEFENDANTS PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION INTRODUCTION The Plaintiffs have filed their verified complaint seeking a preliminary injunction to prevent the North Andover Board of Health from reopening closed public hearings on TBI's site assignment application after the Board had commenced deliberations. A hearing officer appointed by the Board of Health ruled in favor of a motion by Thomson Brothers Industries,Inca to Reopen Hearings for Limited Purpose. The ruling is contrary to applicable law. I. FACTS 1. Plaintiffs are Intervenors in a proceeding conducted by the North Andover Board of Health on the Application of TBI,Inc. for Site Assignment for a proposed 650 ton per day recycling center Law Office of Carl D.Goodman 152 Lymway Lynn,MA 01902 781-593-2016 1 I and transfer station at 210 Holt Road in North Andover that would accept construction and demolition waste and commercial sold waste,not including food. 2. The defendant,TBI, Inc.,is not a corporation organized under the laws of the Commonwealth of Massachusetts nor qualified as a foreign corporation in Massachusetts. 3. Thomson Brothers Industries, Inc., is a corporation organized under the laws of the Commonwealth of Massachusetts having its principal office at 210 Holt Road,North Andover, Massachusetts. 4. From June 2005 and into January 2006,the North Andover Board of Health held seventeen hearings on the application which hearings were conducted by a hearing officer appointed by the Board of Health pursuant to 310 CMR 16.20(3). 5. The hearings were closed on January 13,2006,briefs were filed by February 3,2006 and the Board of Health commenced its public deliberations on March 13, 2006 during which meeting two members of the Board of Health stated that they did not believe that the applicant had met all of the required criteria for approval of the application for site approval. 6. The Board of Health did not complete its deliberations and scheduled its next session for March 20, 2006. The March 20,2006 meeting was postponed indefinitely without explanation. 7. On March 21,2006,Thomson Brothers Industries,Inc.filed a Motion to Reopen the Hearing for Limited Purposes, 8. Intervenors opposed the Motion to Reopen,but the Hearing Officer on March 31, 2006 issued his Memorandum and Order on TBI's Motion To Reopen Hearing For Limited Purposes that allowed the motion. 9. The Board of Health has scheduled a meeting for May 3,2006 at 7:00 p.m.to"reopen a hearing for the limited purposes specified in a decision of the Hearing Officer dated Friday,March 31,2006,regarding the application of TBI,Inc(Thomson Brothers, Inc.)for a site assignment for a Recycling Center&Transfer Station at 210 Holt Road." 10. The purposes for which Thomson Brothers Industries,Inc. seek to reopen the hearing do not include the introduction of newly discovered evidence that could not reasonably have been available during the hearings. Rather,Thomson Brothers Industries,Inc. seeks to offer conditions and modifications to its application in an effort to respond to public comments by members of the Board of Health made during its deliberative session. Law Office of Carl D.Goodman 152 Lynnway Lynn,MA 61902 791-593-2016 2 . l 11. The Hearing Officer specifically found that allowing the motion would be prejudicial and unfair and that the regulations do not authorize reopening on the basis of the subject motion. II. ARGUMENT A. Standard for Preliminary In In entering a preliminary injunction,a court must determine that the moving party will suffer immediate and irreparable harm in the absence of such relief,and has a likelihood of prevailing on the merits. See Packaging Industries Group,Inc.v. Chem, 380 Mass. 609,616 (1980). Additionally,the court must balance the need for injunctive relief against the harm such relief will cause to the Defendants. Id;Commonwealth v. County ofSuffolk, 383 Mass. 286,288(1981). At this early stage of the proceedings,the Plaintiffs are not expected to have proven their case on the merits. Rather they must only"show that,without the requested relief,they may suffer a loss of rights that cannot be vindicated should they prevail after a full hearing on the merits." Packaging Industries, supra. at 616(emphasis added). The cardinal purpose of injunctive relief is to "minimize the `harm that final relief cannot redress,'by creating or preserving,insofar as possible, a state of affairs such that after the full trial, a meaningful decision may be rendered for either party." Id. at 616 (quoting Lechsdorf,"The Standard for Preliminary Injunctions,"Harvard L. Rev. 525, 541 (1978)). As the Court in Packaging Industries, stated: "If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm,the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer,but rather the risk of such harm in light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue. Id. at 617." B. Plaintiffs Are Likely to Succeed on the Merits of Their Claims 1. THE HEARING OFFICER LACKED AUTHORITY TO REOPEN THE HEARING. The Hearing Officer's authority is governed by 310 CMR 16.20. The hearing before the Law Office of North Andover Board of Health in the Site Assignment Application of TBI, Inc. is conducted Carl D.Goodman 152 Lynaway Lynn,MA 01902 781-593-2016 3 pursuant to the Public Hearing Rules as set forth in 310 CMR 16.20(2). The Hearing Officer is the individual designated by the board of health to conduct the public hearing. 310 CMR 16.20(3). The Hearing Officer shall define issues,receive and consider relevant and reliable evidence and exclude irrelevant evidence,ensure an orderly presentation of the evidence and issues, and aid the board in reaching a decision based on the evidence presented at the hearing and in accordance with the standards set forth in M.G.L. c. 111, § 150A. 310 CMR 16.20(10)(d). Pursuant to 310 CMR 16.20(11)(c),the Hearing Officer's duties shall include: 1. opening and closing the hearing; [Emphasis Added] 2. establishing the order of the proceedings; 3. ensuring that only reliable and relevant testimony is introduced; 4. assisting all those giving testimony to make a full and free statement of the facts in order to bring all information necessary to determine whether a site is suitable or not suitable; 5. ensuring that all Parties have an opportunity to present their claims orally or in writing and to present witnesses and evidence relevant to the suitability or non-suitability of the site; 6. ensuring that participants have an opportunity to present evidence,whether orally or in writing, relevant to the suitability or non-suitability of a site; 7. introducing into the record any regulations,statutes,memoranda or other materials he believes relevant to the issues at the proceeding; 8. receiving,ruling on,limiting or excluding evidence pursuant to 310 CMR 16.20(10)(f);and 9. establishing a date and time following the close of hearing until which time written evidence will be received, considered and made part of the record.[Emphasis Added] The Hearing Officer is not granted any specific authority to reopen the hearing. Nothing in the Public Hearing Rules authorizes the Hearing Officer or the Board of Health to reopen the public hearing for any reason. A comparison of other regulatory provisions indicates that the omission of a provision in 310 CMR16:20 for reopening hearing was not occasioned by accident. See, Commonwealth v. Montalvo,50 Mass.App.Ct. 85, 88,735 N.E.2d 391 (2000). A regulation is to be judged by the same standard as a statute,ordinance,or bylaw. Scofield v. Berman&Sons, 393 Mass. 95, 100,469 N.E.2d 805 (1984). The Hearing Officer himself stated in his Ruling that the Site Assignment Regulations do Law ot>iw�of not explicitly authorize him to reopen the hearing. See,Complaint Exhibit E,p.2,last paragraph. Carl D.Goodman 152 Lynnway Lyna,-MA 01902 781-593-2016 4 Numerous regulations promulgated by Massachusetts boards and agencies specifically grant authority for reopening hearings while others do not. See, for example,the Regulations of Housing Appeals Committee set forth at 760 CMR 30.13 allowing reopening for the purpose of receiving new evidence, etc.;the Regulations of the Division of Medical Assistance set forth at 130 CMR 610.081 allowing reopening and requiring compliance with a rigid procedure;the Regulations of the Architectural Access Board set forth at 521 CMR 4.4 allowing receiving additional evidence that was not reasonably available at the time of the hearing; and specifically the Regulations of the Department of Environmental Protection set forth at 310 CMR 1.01(14)(e) allowing for reopening for purpose of receiving new evidence upon a showing that"the evidence to be introduced was not reasonably available for presentation at the hearing." And, although it is clear that D.E.P. did not intend to grant authority to reopen public hearings under 310 CMR 16.20, the omission of such a provision is affirmatively resolved by applying the last paragraph of 310 CMR 16.20(11)(c)that provides: Where procedural issues arise regarding the conduct of the hearing which are not governed by 310 CMR 16.20 the Hearing Officer may rely on 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure,to resolve such issues. 801 CMR 1.01(7)(k)provides: Motion to Reopen.At any time after the close of a hearing and prior to a decision being rendered, a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. A motion to reopen shall describe the new evidence,which the Party wishes to introduce. [Emphasis Added) There is no new evidence before the Hearing Officer. TBI does not seek to introduce new evidence. It does not seek to introduce newly discovered evidence. It does not seek to introduce newly discovered evidence which by due diligence could not have been discovered at the time of the hearing. TBI does not even allege, let alone substantiate,any claim that the information that it seeks to offer into the record is new or was unavailable. In fact,the Hearing Officer specifically found that TBI's proposal additional conditions do not qualify as new evidence,and TBI never argued that they did. Further the Hearing Officer stated that TBI could have offered the"new"conditions at any time during the hearing. See Cpmplaint Exhibit E,p.4¶ 1. TBI seeks to reopen the hearing"for the purposes of submitting certain Law Office of Carl D.Goodman 152 Lynnway Lynn,MA 01902 781-593-2016 5 additional proposed site assignment conditions and to afford the Parties an opportunity to examine and comment on the same." As such,the proffered"evidence"may not be admitted. See, Buchanan v. Contributory Retirement Appeal Board,62 Mass.App.Ct. 1105, 815 N.E.2d 1104 (2004). 2. THE PARTY SEEKING TO REOPEN THE HEARING LACKS STANDING During the course of these hearings,the Plaintiff, Positive Start,moved for dismissal as TBI, Inc. does not exist. The Hearing Officer denied the motion. The Motion to Reopen that is the subject of the ruling,sub judice, was filed by Thomson Brothers Industries,Inc. The moving party is not a party to the proceedings, and accordingly the issue of standing remains open. In accordance with 310 CMR 16.02, an"applicant"for a site assignment is defined as,"the person named in the application as the owner of a property interest in the site or the operator of the proposed facility where the owner has entered into an agreement with an operator at the time the application is filed." This same definition is also used at 310 CMR 16.20,which sets forth the rules governing public hearings on site assignment applications. See 310 CMR 16.20(3). The word "person"in turn, is defined as"any individual,partnership,association,firm,company,corporation, department, agency group . . " See 310 CMR 16.02; see also 16.20(3)(person means"a private person, firm or corporation. . ."). In sum,only a"person"that meets the requirements of an "applicant"as defined by the regulations may file for a site assignment and proceed with a public hearing. TBI, Inc. does not exist,and therefore,is not a"person"as defined by 310 CMR 16.02. As an initial matter,the purported applicant TBI,Inc. does not exist as a Massachusetts corporation. As a result,TBI is not a"person"as defined by the regulations,and it has no standing to bring the present application,or proceed with a public hearing. See 310 CMR 16.02; 16.20(3). It is fundamental that a non-existent corporation may not transact business in the Commonwealth nor may a corporation assume a fictitious name that includes the word"incorporated"or"inc." While a dissolved corporation may continue for certain,definite, specific and limited purposes in the nature of an administration of its estate,a non-existent corporation can hardly be a party to a suit or to an action. See e.g.,Partan v.Niemi,288 Mass. 111, 113 (1934);Boston Tow Boat Co.v. Medford National Bank,228 Mass.484(1917). Finally,no ex post facto maneuver would alter the Law Office of Carl D.Goodman 152 Lynoway - Lynn,MA 01902 781-593-2016 6 fact that the pending application is ultra vires, as a non-existent corporation necessarily has no powers to act in any manner whatsoever. With respect to the Motion of Thomson Brothers Industries,Inc.to Reopen,the regulations are clear that only a"party"has the right to present evidence at the public hearing,conduct cross- examination, and state objections. See e.g., 310 CMR 16.20(10)(e). The term"party'is defined as "the applicant, any abutting board(s)of health and any abutter(s), group of ten citizens or other intervenor duly registered pursuant to 310 CMR 16.20(9)(b)." See 310 CMR 16.20(3). Thus, because Thomson Brothers Industries,Inc. isnot an"applicant,"it cannot be a"party"to the public hearing, and cannot present evidence. Even if the motion was substantively sufficient,it would fail because the moving party is not a party to the proceedings. SUMMARY—LIKELIHOOD OF SUCCESS These hearings before the Board of Health are governed by G.L. Chapter 111, §150A, 310 CMR 16.20 and 310 CMR 16.40. Its authority is granted and limited by those same regulations. The Hearing Officer is appointed by the Board of Health,and as such his authority is subject to the same authority and limitations. The regulations do not grant the Board of Health the right to reopen hearings after the close of evidence and commencement of deliberations. The Hearing Officer acknowledged that the regulations do not provide the authority to reopen hearings and that he does not have such authority under the regulations. The Hearing Officer set dates for submission of evidence and final briefs. Those dates have long since passed and deliberations by the Board of Health have commenced. In hearings that spanned from last summer into January,any or all of the conditions that TBI now seeks to insert in the record could have been offered. The Hearing Officer found that any additional evidence TBI is attempting to introduce is not new and was available during the original hearing. Further the Hearing Officer acknowledged that even TBI does not argue that proposed additional evidence is new. The reopening of this hearing would be unfair and prejudicial to the parties and the Board. The Hearing Officer acknowledges the unfairness and prejudice in the Memorandum And Order On TBI's Motion To Reopen Hearing For Limited Purposes. See,Complaint Exhibit E,p.5 113-4 in which the Hearing Officer ruled: Law Office of - Carl D.Goodman 152 Lynnway - Lyno,MA 01902 781-593-2016 7 TBI should not be permitted to increase its chances of victory by reducing the facility and offering concessions at this stage. If this hearing had been short,the Intervenors' argument would carry substantially less weight. However,the hearing has lasted for lasted for 17 days over seven months. Both the parties and the Board have invested tremendous time,money and effort into understanding and addressing TBI's proposed facility and its impacts. In fact, they have spent considerable time on the aspects of the facility that TBI now proposes to modify: the tonnage,recycling programs,diesel emissions,and truck route enforcement. It is troublesome for TBI to render much of that effort meaningless by making last-minute concessions to avoid a potential denial. More generally,permitting TBI to have its cake and eat it too—let the Board approve 650 tons/day if the deliberations go well and reduce the facility to 500 tons/day if they do not— has the potential to erode public confidence in the fairness of the site assignment process. In an attempt to circumvent the concept of a fair hearing,TBI is attempting to improperly influence the pending deliberations. Accordingly,there is a likelihood that Plaintiffs will succeed on the merits and the Court should grant Plaintiffs' Application for Preliminary Injunction. C. Plaintiffs Will Suffer Immediate and Irreparable Harm If a Restraining Order Is Not Granted It is well recognized that injunctive relief,designed to preserve the status quo and protect the remedies, is an appropriate form of relief. See e.g.,Teradyne,Inc.v.Mostek'Corp.,797 F.2d 43, 52(1986) (quoting Deckert v. Independence Shares Corp., 311 U.S. 282,61 S.Ct. 229, 85 L.Ed. 189 (1940)). If the Board of Health reopens the hearings and takes additional evidence,evidence that the Hearing Officer has found not to be either newly discovered nor unavailable during the seventeen sessions of the hearing(that included a case in chief,response by the Intervenors,rebuttal by the applicant, and surrebuttal by the Intervenors)the Board of Health as the jury that will decide whether or not to approve the Ste Assignment application will necessarily be prejudiced by the additional evidence. At what point does a hearing close and a decision-making board render a decision? Employing the strained logic of the Hearing Officer,if the hearing officer believes that additional evidence of any character might be useful,then the Board of Health's deliberations can be interrupted to allow introduction of that evidence. Allowing one party to attempt to influence the Board of Health after the Board of Health commenced its public deliberations undermines the concept of fair hearings. Should an Intervenor Law Office of Carl D.Goodman 152 Lynnway . Lyme,MA 01902 - 781-593-2016 8 in the proceeding be entitled to reopen the hearing if the new evidence appears to be swaying the Board of Health when it deliberates after receiving TBI's additional evidence? The hearings are conducted pursuant to regulations that are designed to promote fair hearings. The regulations do not allow for reopening hearings in these circumstances. But if there is any authority to reopen the hearings, then it is derived from 801 CMR 1.01(7)(k)that requires newly discovered evidence that was not available during the hearings. The Hearing Officer has exceeded his authority by exercising discretion where none is granted and where the exercise of that discretion contradicts specific regulations. The rule of law and the public's confidence is a fair hearing process is prejudiced by the Hearing Officer's Ruling. The Hearing Officer acknowledged, as set forth above,that reopening the hearings at this stage"has the potential to erode public confidence in the fairness of the site assignment process." The several hearings spanning several months will have been irreparably tainted if the hearings are reopened without any legal basis,especially after the Board of Health commenced its public deliberations. Consequently,this Court should grant Plaintiffs' Application for Preliminary Injunction. D. The Gravity of Harm to Plaintiffs Outweighs the Harm to the Defendant TBI had seventeen hearings in which to offer evidence. It sought and was granted the opportunity to submit rebuttal evidence. It has received a fair hearing. What TBI now seeks is a seat in the jury deliberations room from which it can address weaknesses in TBI's case that jurors have identified. If TBI is not allowed to introduce additional evidence,it will not suffer any legal harm. It will merely have its application decided based upon the closed record in accordance with the regulations. E. The Public Interest Will Be Served By Entering a Preliminary Injunction It is in the public interest to ensure that administrative hearings are conducted fairly and that the regulations and laws governing those hearings are enforced. Parties should not be encouraged to seek unfair advantage. The integrity of the rule of law,public confidence in fair hearings,and transparency in government deliberations necessarily serve the public interest. Plaintiffs therefore contend that granting their request for a preliminary injunction is in the public interest. Law Office of Cart D.Goodman 152 Lynaway -. Lynn,MA 01902 781-593-2016 9 III. CONCLUSION This Court is granted specific authority to enforce the provisions of G.L. Chapter 111, §151 A. The Hearing Officer's ruling is plainly wrong and in excess of his authority. Allowing the hearings to be reopened will taint the entire process and there is no authority for the hearings to be reopened under these circumstances. For the reasons set forth above,Plaintiffs request that this Honorable Court grant their Application for a Preliminary Injunction. Respectfully submitted, Positive Start Realty,Inc. and Kathryn F.Moyes The Plaintiffs By their attorneys, Dated: April 26, 2006 C D. GOODMAN 152 Lynnway, Suite IE Lynn,MA 01902-3462 Tel: (781)593-2016 Fax:(781) 592-1129 BBO No. 201720 MATTHEW C.DONAHUE Eno,Boulay,Martin&Donahue,LLP 21 George Street Lowell,MA 01852 Tel: (978)452.8902 BBO No. 548280 Law Office of Carl D.Goodman 152 Lynnway Lynn,MA 01902 781-593-2016 10 OWNERS' TITLE REFERENCES: NOTES: LEGEND APPROVAL UNDER THE SUBDIVISION CONTROL LAW NOT REQUIRED. —"--"-----------------_--- -�-- TOWN OF NORTH ANDOVER PLANNING BOARD �F,A E.C.S B. `� LOT 1 1. THE PURPOSE OF THIS PLAN IS TO COMBINE LOTS 1 THRU 4 PROPERTY LINE j FND. INCLUSIVE INTO ONE CONTIGUOUS LOT CONTAINING 338,608 S.F. a s ( I ►� w Owner. Holt, LLC, N/F NOW OR FORMERLY � U o 0 Z Deed Ref.: Book.,,10313,.,Pa9e, 3��2 2. N.0 WETLANDS OR STREAMS EXIST ON LOTS 1 THRU 4 INCLUSIVE. OSGOOD S BEET 25 Q) Plan Ref.. Plan, No., 95,72 ..... .. ....... ONTROL SURVEY EXTENDED TO OSGOOD STREET TO LOCATE E.C.S.B. ESSEX COUNTY J 3• C (FND.) STONE BOUND (FOUND) LOT 2 BOUNDS SET FOR THE 1992 TOWN ALTERATION OF HOLT ROAD AS LAID OUT BY THE MASSACHUSETTS HIGHWAY DEPARTMENT MEASURED 0 Owner: HoltRoad LLC ON BEHALF OF THE TOWN OF NORTH ANDOVER. NORTH t_n „ . © Deed Ref.: Book 9889, Page.,298 r RECORD ANDOVER �-OCV S O Plan Ref.: Plan No.,,,9572, ....... .... 1, LOT 3 9 �Ev� / � �;' LAWRENCE Holt Road LLC ___- ` Iy6URPORTL Owner. .... .. Deed Ref.: Book 9889 Pa e JO'' AlRPO Plan Ref.: .Plan.,No..,,9,572 9. ... ... . DATE: " / .hh LOT 4 THE PLANNING BOARD'S ENDORSEMENT OF THIS PLAN AS NOT REQUIRING \ \y� cl co APPROVAL UNDER THE SUBDIVISION CONTROL LAW IS NOT A DETERMINATION SEe 'O h' Owner.• Holt Road..LLC..... ............ .... AS TO CONFORMANCE WITH THE TOWN OF NORTH ANDOVER ZONING BYLAWS O ^� ,p . ��ed .: Book�o 89, Page. 30 N/F AND REGULATIONS. i� ti 9572 ,., COMMONWEALTH OF MASSACHUSETTS 4' �q LOCUS MAP 00 '1*4 7 - SCALE: 1"=1000' f J� L.221.9�--'� � ­601-88' R. L=19. 18 S 89'16'10" E 1030.07'R=10 6 --- - Q C Public-50.00' Wide HOL T L� , 1964 COUNTY LAYOUT ROAD -L�2�.7_9-- MAO NAIL O O 6,50 6' Cr; n rh F>rice rote f7=660. `�\-- (FND) �, - -_ ---- 4- - --S 1897610"-E-- o 1062.43' - --- .00' 260.00' RE-8AR 6 L')7"' � t:;�,ct c��re care L�105.95�(m) � � -IN �R=25. 19' 80.44' RE--BAR 250 I TOTAL DIST. 964. 14' 1 (FND) L=105.86 (r) L=31.01' (FND) I I I I 1 I •Q N N of of 1 I I CD v ( rp I v I ,49.2' I I w No. 210 2 Story % I �I Office Space OF��ce - -- — --- - --- - --- - JI �1 X1.0. - - ° I I FORMER LOT 2 Z! FORMER L 0 T 1 N/F / FORMER L 0 T 4 / FORMER LOT T 3 � :,I --- 4j 1 I \ J0St.PH T: C/iI a TAL.DI PLAN NO. 9572 / Z PLAN NO. 9572 PLAN N0. 9572 I PLAN N0. 9572 W MAP 77 LOT 14 i �j �'I MAP 34 LOT 40 0� MAP 34 LOT 38 MAP 34 L0T 23 Ill11� MAP 34 L D T 27 h II' /,Cv h� __j N/FN 15,010 S.F. CONC. BLOCK B.'DG. FRANCES D. SULLIVAN N M OFFICES AND VEHICLE MAINTENANCE IRREVOCABLE TRUST o, TOTAL I ARLr_- A = 8, 60S S. F. I s MAP 77 LOT 13 Z 49.7' !// / / / ///%%/�%%/� / �I w 7. 773 A . or � I I �� I N 8874 30 W '' � 7 O ��c. lock Ret GVai ��� , " Q ca .,i�, 193 67' O N 85'28'10" W _ 150, I _ I_ S�, ,-, �✓► _ - - - ' I � w W16 RE—BAR 95.97 0(FND) 80;2 1I� 0 600.00 253. 0 o UNE OF BORDERING 7266 o RE-BAR - GETA TED WETLANDS 10 -oo83,28 h �RE-BAR 13372 MAY 9, 2007 o�I / / / (FND) ---- N/F - POST 77 VE START REALTY, INC. N/F � _ CITY OF LAWRENCE _ —o/ ASSESSOR'S MAP 77, L 0 T 14 & MAP 34, L 0 TS 27, 38 & 40 MAP 77 LOT 3 AIRPORT COMMISSION MAP 34 L 0 T 24 _ PLAN OF LAND N RESERVED FOR REGISTRY USE NORTH ANDOWE'R , MASSACHUSETTS HEREBY CERTIFY THAT THE PROPERTY SHOWN ON THIS PLAN ZONING DISTRICT LIES WITHIN A MINIMUM FLOOD HAZARD AREA DESIGNATED AS 210 HOLT ROAD ZONE "X", SHOWN ON FLOOD INSURANCE RATE MAPS PREPARED INDUSTRIAL 2 (1-2)* FOR THE TOWN OF NORTH ANDOVER, MASSACHUSETTS„ COMMUNITY DIMENSIONAL REQUIREMENTS SCALE: 1 "=40' SEPTEMBER 11 , 2007 PANEL NO. 250098 0005 C, REVISED JUNE 2, 1993. LOT AREA 80,000 SF 40' 0' 40' 80' ALSO HEREBY CERTIFY THAT THIS PLAN CONFORMS WITH LOT FRONTAGE 150' THE RULES AND REGULATIONS OF 'THE REGISTERS OF FRONT SETBACK 50' O ' NL'ILL ASSOCIATES DEEDS OF THE COMMONWEALTH OF MASSACHUSETTS. t OFSIDE SETBACK 50, ® Civil Engineers and Land Surveyors PREPARED FOR JACK REAR SETBACK 50 HAGME. MAN BLDG. HEIGHT 35' 234 Park Street HOLT ROAD LLC 28090�� LOT COVERAGE 35% North Reading, Massachusetts 01864 210 HOLT ROAD SS *AN ADULT USE ZONE IS SUPERIMPOSED ON LOTS 3 AND 4 Telephone 978-664-8141 NORTH ANDOVER, MA SwN DATE SIGNATURE i Nl N/F \ COMMONWEALTH OF MASSACHUSETTS (n — .� — a—� D_ D.0- - - -'4 — — c- �'`— ---W —�N.. 8 CLD/WATER,MAIN 12" RCP DRAIN o EXISTING CATCH BASIN ---,,. - ... (TYPICAL) o --W- �` 'HOLT EDGE OF PAVEMEN� p '�- _ -- --- - -- - - -- - - - - - T __ - - `� r ROAD EXISTING GUARD RAIL r� ��- - -- - ----- - - - - - - _. -- -- - -% - - - - -- - - - -- - - - - - - - - - - - - - - - - - -- -- - - - - (TYPICAL) -. - - —_ — ` r —_ -- -_ —_ - - - - - - -- - - — —� ..— - - - - - - - -- - — - A, • ,e., LA PROXIMATE L©CATI 0 EXISTING WAITER&GAS _ I � 750 0 ' 1 " DIA. PIPE r - -- -- r- - -- - - -- -- - - - - D D U OLE - T r GA D � -� TILL ��. UNDERGROUND" �,.- -• -- w D -- 0 TM A TELEPHONE LINE ` ( L) - _ `•, MAIN _. PI � o x m EXISTING DMH ` 1. -- -- -' • EXISTING CB 900.98 (BURIED)` , R' APPROXIMATE LOCATION - - A RIM= . ' \ 12" INV., 97.25 OF EXISTING LEACHING. A - r f I < FIELD , 1 4� ^- SITE BENCHMARK � - ' - Q ELEVr= 108,42 (N.�:V.D.j i HEPTI EXISTING % STAIR Y tLOTS AND 4 TANK - !'` EXISTING CB JOSEPH V _.__ A . -_ , ' AREA: �:7 RIM=,109.0 ,� �,� � 9 ACRES H ZANNI „ _ I — / 8 INV.— 10 :1 I ( � M1, {*(r i x 1 n 1 EXISTING CB 1 RIM= 105.54 ' EXISTING BUILDING I i 12" INV., 102,59 L — 1 X5,000 S.F. I 1 e 1 �� �`K li � � �, ` EXISTING �' � I GRAVELED SURFACE CONCRETE BLOCK RETAINING WALL a I j s wR - - N ` 1 W \ w . A. Q� z Z - b EXISTING W 4 •,� , • • • • - " a I I z ...,� n „ e . •r � v • i n <� e A <n Ii CONCRETE BLOCK C � a - a �-`�--7`0 a -Q '-- G , .- ,'Q r �� ; RETAINING WALL U N/F F r r r .c — A A FRANC-IS D. SULLIVAN ' � � EXISTING BOLLARD IRREVOCABLE TRUST r e EXIStiNG B°bl�. , (TYPICAL) ra . ' ' .1 ` .� I MAP 34 1DkAIN PIPE.— I (ASSESSORS RCEL 7) ,Y EXISTING - (A-SSESSORS- IAP (ASSESSORS MAP 34 i I . Al 7 RIM= 106.37 / PA���EL�O n '.x . .. . p2" INV.= 103.1 _ _ _ _ kk , '1 / ,-' „.. I ' _�• J ' _ t '' / /' Q' / A u / M +.F A. �' r A \t ;,r / A •, ,, .... 1 / / . j t i ' � F A. P � A V•' . A T !4 x A . . <' A, 4 \A R EDGEOF� MT y z N 697o -985-2 8'-10"--W - — --- — _ _____609 Wit•-""�. ,__ _.... _.___� .,\ — —'"'�,';,�, A y0 68.7 S .83'2 _. 7 0 \ 3� sae /1 gp NIS _ POSITIVE START _ PROPERTY REALTY TRUST - LINE LEGEND _ NOTES: ...... EXISTING CONTOUR . .. 1. PROPERTY LINE INFORMATION WAS TAKEN FROM A PLAN ENTITLED"REVISED0 PLAN OF DATED JULY WESTERN118 AND RECORDED AS P AN NUMB R0BERT C 9572 AT THEE SSE' RLS PARK" PREPARED BY , EXISTING BOLLARDS , N/F ' COUNTY REGISTRY OF DEED, AND IS NOT THE RESULT'OF A PROPERTY LINE ' - - ® EXISTING CATCH BASIN �,'-'�,� _ , - SURVEY BY BROWN AND CALDWELL. CITY OF LAWRENCE EXISTING UTILITY POLE 2. UTILITY INFORM ' ATION ON HOLT ROAD TAKEN FROM PLAN ENTITLED"HOLT EXISTING FENCE � . ROAD RECONSTRUCTION" SHEET 6 OF 6� DATED MARCH 1985 BY MERRIMAC ENGINEERING SERVICES. - EXISTING CONCRETE BLOCK WALL EXISTING GUARDRAIL 3. TOPOGRAPHIC INFORMATION WAS TAKEN FROM A PLAN ENTITLED INFRASTRUCTURE; DATED AUGUST 19 MENTAL& ,1 .1 CONCEPTUAL TRANSFER STATION BY RUST ENVIRON G EXISTING UNDERGROUND GAS MAIN 95 4. SITE BENCHMARK= TOP OF FIRST FLOOR AT NORTH EAST ENTRANCE TO T EXISTING UNDERGROUND TELEPHONE LINE EXISTING BUILDING, ELEV.= 108.42 (N.G.V•D.) 1929 DATUM, D D 5. EXISTING UTILITIES SHOWN S PLAN EXISTING DRAINAGE LINE N THIS ARE APPROXIMATE AND SHALL BE , CONSTRUCTION, EXISTING WATER MAIN VERIFIED IN THE FIELD PRIOR TO ANY C LI 6. DASHED LINES REPRESENT ASSESSORSFEB 2 3 2004 E EXISTING UNDERGROUND ELECTRIC SERVICE MAP AND LOT DELINEATION. ! -_ f .,% I .. oHW— EXISTING OVERHEAD ELECTRICAL SERVICE I E30AftD 01=APPEALS LI NCHE AT /FULL S 2 I S ZE S ,_... _. R 0 W N F' 'I REVISIONS PROJECT NUMBER •l , A 1\ � (IF NOT 2"—SCALE ACCORDINGLY) � REV. DESCRIPTION BY DATE APP. ������ ®��'�� PLAN 23556.002 SCALE: V=30' - 1, REVISED TO ADDRESS THE TOWN OF NOR VER PLANNING BOARD COMMENT LETTER DATED 9/9/03, R.J.F. 9/29/03 W.C,G. C A L D f . E T DRAWING NUMBER L/ L DATE 1 1 /7/02 1, REVISED TO ADDRESS THE 1.OWN OF NORTH ANDOVER ZONING BOARD OF APPEALS COMMENTS. R.J.F. 1/23/04 w.C,G. 210 HOLT ROAD FILE Site Plan 48 Leona Drive, Suite C DRAWN R.J.F. ..7 Ald NORTH ANDOVER, MASSACHUSETTS 1 Middleborough, Massachusetts 02346 Tel. (508) 923-0879 s' Tax. (508) 923-0894 DESIGNED W.C.G. PREPARED FOR: SHEET NUMBER CHECKED W.C.G. CHECKMATE DEVELOPMENT, LLC. 1 OF 4 COMMONWEALTH OF MASSACHUSETTS DMH-5 RIM= 84,62 EXISTING PIPE T 12" INV.(IN)= 80.62 O BE DISCONNECTED FROM DMH-3 EXISTING GUARDRAIL 18" INV,( TO BE REMOVED 24" INV,(OUT)= 7 799,,52 DMH-3 PROPOSED INVERT INFO RIM= 93.80 (PROPOSED) EXISTING CATCHBASIN 12" INV.(IN)= 88.00 (EXISTING) ELEV.= 73.05, 18" INV,(OUT)= 87.50 (SEE DETAIL C/3) EXISTING CATCH BASIN _ UNDERGROUND ' (TYPICAL) _ - 8.. CLDI WATER MAIN TELEPHONE LINE CB-5 1 EDGE OF PAVEMENT DMH-2 CB-3 GAS PROPOSED 12" DIA. RIM= 86.20 RIM= 100.60 (PROPOSED) EXISTING GUARD RAIL 12 INV.= 82.2Q (TYPICAL) HOLT RIM= 91,20 MAIN ROAD STAND PIPE 12" INV.(IN)= 97.35 (EXISTING) 12" INV.= 87.20 CREST PIPE= 78,00 UTILITY POLE _ 12" INV,(IN}= 97.36(P ROPOSED) 12" INV.= 73,50 (TYPICAL) 12" INV.(OUT)= 97.25 (EXISTING) S 49'16'1 EIr CB-2EXISTING PIPES TO BE 750.00'' - FEN ED . � PROPOS APPROXIMATE LOCATION RIM= 103.20 . , w '�� REPLACED BY 12" RCP ' ' CE PARKING SPACE OF EXISTING WATER & GAS 12 INV.= 99.20 =- -' RIP -RAP - DIMENSIONS (TYP.) I a" __ GQ .' D D D D p 8B /%� oo- -RAP I 3' HIGH RIP-RAP THROUGHOUT SITE _ (SEE DE L Gla} r.l ... - 4 r - �� $ = 5 O 8+ CHECK DAM ' 15 . O `� S, RCp O � CREST ELEV 76 10 �? - R A EMPLO w PARKING 13.0' _. PARKING OSE NNI _ p 39 O 1g,p I %..i I x P H ZA HANDICAP ,. V. 5'�-"-, (SEE DETAIL G/3) _, I. - - - 0 ` O Occ OCC c \ G G N 0 78 4 tom, �a. -(�, �a. (� • �, � _�. Cha. �. � � � _. .�.__�__ _ ----- - _-•-• ,�_�_�___ •,_ .1 �� � , ,- ._ x EXISTING CONCRETE - 6' ID BLOCK RETAINING WALL LU DMH-4 TSIDEWALK' LANDSCAPING o RIM= 88,70 CB-6 LU ERG N Y I x " .• ' -- CONCRE - PROPOSED ISLAND (TYP.) ui 12" INV.(IN)= 83,75 RIM 7.20 " I O SPILLW Y + ; Os N 18"1NV. IN = 83.35 LANDSCAPING' AREA STAIRWAY ( ) 1 Q INV. X3.20 12 RCP I x S=0.043 I LFm, 18" INV.(OUT)= 83,25 1 44 0 12" INV, I "' Uj FACILITY H . 25.0' ='79151 NCE W , ; ' � 10'WIDE WHEELCHAIR ACC _ ENTRANCE � I .. , ESS �.. ,�,� `-C' r� `,� � �- I m i I ,_ (SEE DETAIL H/3) _, EMERGENCY L ,� ....7.a' C] CREST ELEV.=80,0 ll SPILLWAY r/^ EXISTING,, I- Q DMH-1- 25.01 D p x ""'',fir CB-A TO �' �1 - _ o EXISTING _ 12 INV.(IN)= 102.69 ( ISTING) ,ri IM= 8.30 RI -`87.40 I . REMAIN STING BUILDING RIM- 106.5 (PROPOS D) CB-4 ". CB-7 F.F. ELEV.=108.42 - �I ' 12" INV.(IN)= 102,69 (P OPOSED) N 12" 1 V,= 84.30 18" IN 82.90 I 18" INV. r 12" INV.(OUT)= 102.59 XISTING) `80.5 I z w ' , 18" RCP I Q o 34,6 m S= 0,028 I I x Ln N M PROPOSE® j I 4t N I I I N, GREASE TRAIP ha _ x 10, rq Z PROPOSED STORMWATER =:� \ DETENTION/SEDT NTATION 4. a • Cl"' BASIN SEE DETAIL E/ , g x 3 N/F EXISTING 8" QIA. - U .. ,„ ,. s ",. p ., - .. • . . , • • . PROPOSED , . D. SULLIVAN DRAIN PIPE T'O� EXISTING BOLLARD- L'MCHING)=1E b C%4- FRANCIS x FRANCIS , . � . . r m REMAIN a __.w (TYPICAL) INV.=" x ' IRREVOCABLE TRUST PROPOSED SAP c©D w BERM (TYP.) (SEE DETAIL-F/3) _ _ PROPOSED 44 PRE-TREATMENT G c� x PROPOSED &TREATMENTT NKS 116' x 16' TRASHo� _ CONTAINER A,I EA _ _ _ DETAIL 113 �., ! T � , , � 12" HIGH n(SEE T ) 4 l ti 4 -RIP ERM , • a h 4 Q j! o r ELEV. 87, r• PROPOSED ' , , 0 EFFLUENT PUMP, EDGE OF PAVEMENT ' PROPOSED P D E TYp CA ECO 100 BRM ( ,) ' (SEE DETAIL F/3) 6' HIGH D , FENCE/SCREEtNING CB-1 RIM= 106.50 `O . �� .N 85 8:10"' W - 12"INV.= 103.36 - - / _ - CB 8 x PROPOSED �. RIM= 87.65 _ .._._ INV 83.65 12" DIA, HDPE CULVERT ry, 121�gp' - _ = ...283.60,- - - _ ------ .. _-. . INV. (IN}-96,g - / � T) 94 3,A - S 83 28'10"`N S=0.0 / 6 2 t 268 72 EXISTING CB AND 12" DIA.-- __.___ 0 LEGEND DRAIN'TO DM'H-1 TO -___ ._ _ _ PROPOSED DRAI NAU{,E SWALE BE REMOVED - TO BE LINED WITH EROSION MAT ` EXISTING CONTOUR N/F EXISTING BOLLARDS - EXISTING CATCH BASIN POSITIVE START EXISTING UTILITY POLE REALTY TRUST, ZONING DISTRICT INDUSTRIAL 2 x x x x x x EXISTING FENCE REQUIRED PROVIDED EXISTING STONEWALL OFF-STREET MARKING REQUIREMENTS MINIMUM SPACES REQUIRED MIN. LOT AREA 80,000 S.F. 252,173 S.F. EXISTING ,o - GUARDRAIL { USE 1 PER 2 SEATS OR 15 PER 1,000 GFA N/F MIN. FRONT S0 FT 98 FT TING UNDERGROUND GAS MAIN RESTAURANT, SIT DOWN RESTAURANT, (WHICHEVER IS GREATER APPLIES) `~ Exfs CITY OF LAWRENCE MIN. REAR EXISTINGDRIVE THROUGH SETBACK ' SETBACK 50 FT 1 35 FT TELEPHONE LINE - - EXISTING UNDERGROUND ELECTRIC LINE CALCULATIONS MIN. IDE 1 FT SETBACK 50 FT 5 EATS/2 = 214 SPACES EXISTING DRAINAGE LINE 428 S % LOT 35% 5.9% - EXISTING WATER MAIN COVERAGE FLOC TO EXISTING OVERHEAD ELECTRICAL SERVICE 0.50:1 0.06:1 AREA RATIO � N� - D D PROPOSED DRAINAGE LINE 1. THE CONCEPTUAL SUBSURFACE SEWAGE DISPOSAL SYSTEM AS SHO WN ON THIS PLAN IS BASED ON PARKING 214 265 '' PA 100 PROPOSED CONTOUR ENVIRONMENTAL CODE TITLE 5 AND THE:RULES AND REGULATIONS OF THE NORTH ANDOVER 15.00 GROSS FLOOR _ � , *15,000 S.F. � � _ PRELIMINARY DATA. A DETAILED DESIGN.WILL BE PREPARED IN ACCORDANCE WITH 310 CMR BOARD OF E REMOVED. 15 PROPOSED PARKING SPOTS DISPOSAL YSTEM MUST,E APPROVED BYI HE NORTH ANDOVER BOARD OF HEALTH PRIOR TO WAGE AREAHEALTH AS A SEPARATE PLAN TO BE * EXISTING 2,000 S.F. MEZZANINE TOB M 81x0 PROPOSED SPOT GRADE H. A SUBSURFACE SERE U F A DIN PERMIT. ISSUANCE 6 BUILDING ERM x-x=x x-x x PROPOSED FENCE I _ HDPE HIGH DENSITY POLYETHYLENE PIPE ' A __ ...._ 2 THERE RE NO EXISTING 12" DBH,TREES LOCATED WITHIN THE LIMITS OF PROPOSED ACTIVITY, ' LINE IS 2 INCHES REVISIONS PROPOSED '� PLAN PROJECT NUMBEF AT FULL SIZE I DESCRIPTION BY DATE APP. � 23556.002 B R �J W N A N D (IF NOT 2"-SCALE ACCORDINGLY) Q� REV. , SCALE:'1"=30' 1. ' REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER PLANNING BOARD COMMENT LETTER DATED 9/9/03. R.J.F. 9/29/03 W.C.G. DRAWING NUMBEF A L DATE 11/1 -17/02 a 2. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER PLANNING BOARD COMMENT LETTER DATED 11/6/03, R;J.F, 11/.14/03 W.C.G. 210 HOLT ROAD L D W E L FILE Parking2 11 -14-03 � 3. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS COMMENTS. ' R:J.F, 1v2vo3 W.C.G. NORTH ANDOVER, MASSACHUSETTS R 2 4. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS COMMENTS. kJ.F, 1/93/04 W.C,G. 48 Leona Drive, Suite C DRAWN R.J.F. e�. � P���, 77 PREPARED FOR: SHEET NUMBER Middleborough, Massachusetts 02346 DESIGNED W.C.G. 508 92 - ax. ( CHECKMATE DEVELOPMENT, LLC ( ) 30879 F508) 923-0894 CHECKED W.C.G. 2 OF 4 Tel. 8-1.5" DIA. HOLES I TYR MORTAR IN ALL OPEN END 1 MAX. VERTICAL JOINTS .—�--- -� 12" DIA. HDPE PIPE .. (CORRUGATED � k • 12" DIA. STANDPIPE XRIP-RA )�, SMOOTH INTERIOR) WITH 8-1,5" DIA. HOLES EVERY 6 VERTICAL INCHES FROM THE INVERT 5' 8' �A n� I - CREST Q?� �ti ELEV=78.00 J IN =73 50 THIGH STONE F, , - � t — CHECK DAM EXISTING CREST ELEV,= 76,560 CATCH BASIN STANDARD C.I. MANHOLE FRAME&COVER .` RIP-RAP SET IN 1" MORTAR BED COVER WT 210# PLAN FRAME WT 265#COVERS SHALL HAVE 6 EO NON-WOVEN THE WORD 'DRAIN CAST IN 3 LETTER FILTER AB • ��'� FILTER FABRIC ON TOP SURFACE 5 (f M-1) HANDICAPPED PARKING STALLS YP. R .... NNN's LEVELING COURSES AS REQUIRED00 TO A MAX 8" N.T.S. +- 26" DIA. '� f OUTLET PIPE FROM ADJUSTMENT BLOCK PROPOSED CATCHBASINS MORTAR IN ALL HORIZONTAL JOINTS 12" DIA, CORRUGATED (SMOOTH INT ERIOIR) Q• . • HDPE PIPE TO EXISTING CATCH BASIN 9' LU STANDARD C.I. MANHOLE STEPS 12"OC �r - "•" CONCRETE ' ANCHOR 4'-0" _ v NOTES: 0 5" MIN, ALL INVERTS MADE WITH BRICK 1. RISER TO BE SECURELY FASTENED TO CONCRETE PAD. AND MORTAR 2, RISER TO HAVE AT LEAST 1.5 FULL CORRUGATIONS WITHIN THE CONCRETE PAD. CONCRETE, TWO COURSES BRICK&MORTAR OR PRECAST CONCRETE BOTTOM PLATES 3, STONE TO BE FREE OF FOREIGN SUBSTANCES, INCLUDING SOIL, SHALE, AND ANY ORGANIC MATERIALS. • ,'�rr�r\`� PARKING STALLS (TYP.) o WASHED GRAVEL BORROW 4r, RIP-RAP STONE TO HAVE MINIMUM SPECIFIC GRAVITY OF 2.5. :• N.T.S. AS DIRECTED 5, STONE SHALL BE HARD AND ANGULAR WITH NEITHER THE WIDTH NOR THICKNESS LESS THAN ONE ITS LENGTH. SECTION A-A STORMWATER DETENTION/SEDIMENTATION BASIN E/3 G/3 AA �� STAND PIPE C/3 N.T.S. TYPICAL DRAIN MANHOLE NJ3 N.T.S. N.T.S. MORTAR IN ALL VERTICAL JOINTS SIDEWALK D/2 + 2' D/2 + 2' FLARED END OUTLET A A RCP PIPE 10 – SIDEWALK D D 1 $„ log 2�_p�� `+ --- LEVEL ;OP 3�0"(MSN•) VAR/FS 4 1/2" I TOP COURSE i 1/2" PLAN A -�--J BINDER 1 1/2 SLOPE OF SHOULDER ■�- 750 �? STANDARD G.I. CATCH BASIN HANDICAP CURB RAM P GRATE FRAME &GRATE, 3 FLANGE; BASE V-0" �/ FRAME WT. 295#, GRATE WT. 210#, SECTION A-A PLAN VIEW N.T.S. SUB -BASE BRICKS MAY BE USED FOR GRADE RIP-RAP (TYPICAL) 24"t1" ADJUSTMENTS. FRAME TO BE SET 6' HIGH STOCKADE 0 Z ' 8' MIN. SQ. OPNG. IN FULL BED OF MORTAR. FENCE (OR EQUAL) LU 5' MIN. NW co a. O 5" MIN 48"t1" DIAMETER 12 WIDE DOUBLE-g00F MORTAR ALL JOINTS GATE WITH LATCH U) Z y PROVIDE "V"OPENINGS It Q o w > OUTSIDE DIA. OF PIPE RCP PIPE > u„ � ' . +2"CLEARANCEto �_ ----- — O ZO ____--- —T _ 4 o ' END OF PIPE OR W 12 NOTE: RIP-RAP SHALL BE WELL GRADED FROM A MINIMUM SIZE _ Z 12" DIA. TEE OF 6"TO A MAXIMUM SIZE OF18"WITH AT LEAST 50% NN GREATER THAN 12". RIP-RAP IS TO BE INSTALLED TO THE 5" TOE OF THE SLOPE. MIN. SIDE ELEVATION I I SECTION A-A TRASH CONTAINER CONCRETE CATCH BASIN TYPE "A" CAPE COD BERM �/3 1/3 TYPICAL RIP-RAP p/3 TRASH CONTAINER AREA WITH OIL & GAS TRAP B/3N.T.S. N.T.S.'NTS � N•T.s. ' PROJECT NUMI N.T.S. REVISIONS DETAIL SHEET LINE IS 2 INCHES BY DATE APP. 23556.0 AT FULL SIZE, REV• " DESCRIPTION N (IF NOT 2"-SCALE ACCORDINGLY) 1. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER PLANNING BOARD COMMENT LETTER DATED 9/9/03. R.J.F. 9/29/03 W.C.G. DRAWING NUM 0W AND TED 210 HOLT ROAD SCALE: AS NO 2. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS COMMENTS. R.J.F. 1123104 W.C.G. DATE 1 17202 p� NORTH ANDOVER, MASSACHUSETTS 3 L FILE DETAILS F PREPARED FOR: SHEET NUME 48 Leona Drive, Suite C DRAWN R.J.F. AL 02346 W.C.G. CHECKMATE DEVELOPMENT, LLC. . 30F4 Middleborough, Massachusetts DESIGNED Tel. (508) 923-0879 - Fax. (508) 923-0894 CHECKED W.C.G. ` ern HOLT ROAD ._ 150.00 180.00 : 00 i r : ( • I i � , : , , f r j ! r , : jr I ! { I t .------ - --- -- r � I � r co �'I I ASS - 34 I i _ I ASSESSORS MAP PARCEL - 40 ! I N M (` 06 PLAN OF WESTERN I t ` LOT 4 ARK { M M ENDORSED 4 ASSESSORS i MAP - 77 77 • I � PARCEL - 14 : i 117 : I �t ES ! S P 3 t 4! ASIS � 5 MA -- __ PARCEL. 27 ! , I , SL Milli ( i : i I U : I : �Y , f (t f ; I I : _y r r I i I ,I Iil : I I a I � I i I I i r r r , I ' 9 -- 1. 150.00 3 1�4 50 _ 80.00 ADULT ENTERTAINMENT ; OVERLAY DISTRICT y� : FZ Y- _ ...... ,4r LEGEND ADULT ENTERTAINMENT OVERLAY DISTRICT kV LOT-4, PLAN OF "WESTERN INDUSTRIAL PARK r ENDORSED 2 MAY 1964, I TOWN OF NORTH ANDOVER ASSESSORS MAP AND PARCELS J NOTES: r , 1. LOT 4 WAS TAKEN FROM A PLAN ENTITLED, "PLAN OF 'WESTERN INDUSTRIAL PARK' IN NORTH ANDOVER, r. MASS." DATED APRIL 1, 1966 AND ENDORSED 2 MAY 1966. {` 2. THE LIMITS OF THE ADULT ENTERTAINMENT OVERLAY DISTRICT WERE TAKEN FROM THE TOWN OF NORTH ANDOVER ASSESSORS MAP. r; - 1 LINE IS 2 INCHES B R 0 W N AT FULL SIZE REVISIONS A lr D (IF NOT 2"-SCALE ACCORDINGLY) REV. SRI PROJECT NUMBER SCALE;'1"=30' E C PTION BY DATE APP. ZONING PLAN 1. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER PLANNING BOARD COMMENT LETTER DATED 9/9/03. 23556.002 R,J.F, 9/29/03 W.C.G. C A L D W E L L DATE 12/. 1 1 —2 2. REVISED TO ADDRESS THE.TOWN OF NORTH ANDOVER PLANNING BOARD COMMENT LETTER DATED 11/6/03. DRAWING NUMBER R,J.F, 11/14/03 W.C.G. 21 O HOLT T ROAD FILE Parking2 1 1 -21 -03 � 3. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS COMMENTS. R.J.F. 11/21/03 W.C.G. rl L f 48 Leona Mass Suite C DRAWN R.J.F. 4. REVISED TO ADDRESS THE TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS COMM, NTS• NORTH ANDOVER, MASSACHUSETTS 4 Middleborough, Massachusetts 02346 R,J,F. 1/23/04 W.C.G. Tel. (508) 923-0879 • Fax. (508) 923-0894 DESIGNED W.C.G. E �'�.; CHECKED W.C.G. PREPARED FOR: SHEET NUMBER CHECKMATE DF-VELOPMENT, LLC 40174