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HomeMy WebLinkAboutACORN REALTY TRUST Massachusetts Department of Environmental Protection DEP File Number Bureau of Resource Protection- Wetlands 242-939/NACC # WPA Form 5 - Order of ConditionsDEPfor DEPuseon y and North Andover Wetland Massachusetts Wetlands Protection Act M.G.L. C. 131, §40 Protection Bylaw. Applicant Information From: The Notice of Intent for this project was filed on: NORTH ANDOVER October 9, 1998 Conservation commission Date For: The public hearing was closed on: 242-939/NACC #10 November 18, 1998 PYged File Number Date To: Acorn Realty Trust Title and Date of final Plans and Other Documents: Applicant Name Enti tl pd "sit-,- na:17,o1 np=aUtP1 n — Lat 14" 733 Turnpike Street, Suite 158 MailirgAddrnss Prepared by NE England .ngi nPeri ng North Andover, MA 01845 City/fown DATED 2-18498 State ZrpCode The project site is located at Lot 14 Chestnut Street City/Town Lot 14 AssessorsM#Platl Parce/Aot,f and the property is recorded at the Registry of Deeds for: Essex 4794 334 County Book Page Certificate(f mgvered laird) Findings Furthermore,this Commission hereby finds that the project,as Findings pursuant to the Massachusetts Wetlands proposed,is: Protection Act: & NAWe tland ByLaw (check one of the following boxes) Following the review of the above-referenced Notice of Intern Approved subject to: and based on the information provided in this application and presented at the public hearing,this commission finds that the ❑ the following conditions which are necessary,in accordance area in which work is proposed is significant to the following with the performance standards set forth in the wetlands interests of the Wetlands Protection Act(check all that apply): regulations,to protect those interests checked above. This NAWe t land ByLaw• Commission orders that all the work shall be performed in Public Water Supply accordance with the Notice of Intent referenced above,the Private Water Supply following General Conditions,and any other special Groundwater Supply conditions attached to this Order.To the extent that the Flood Control following conditions modify or differ from the plans, ❑Land Containing Shellfish specifications,or other proposals submitted with the Notice I Fisheries of Intent,these conditions shall control. 11 Storm Damage Prevention Preverition of Pollution C Protection of Wildlife Habitat x Massachusetts Depaftment of Environmental Protection Bureau of Resource Protection— Wetlands 24 2-93 9/NACC #10 WPA Form 5 - Order of Conditions and North Andover Wetland Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Protection Bylaw. Findings (cont.) debris,including but not limited to lumber,bricks,plaster, Denied because: wire,lath,paper,cardboard,pipe,tires,ashes,refrigerators, motor vehicles,or parts of any of the foregoing. the proposed work cannot be conditioned to meet the performance standards set forth in the wetlands regulations 7. This Order does not become final until all administrative to protect those interests checked above. Therefore,work appeal periods from this Order have elapsed,or if such an on this project may not go forward unless and until a new appeal has been taken,until all proceedings before the Notice of Intent is submitted which provides measures Department have been completed. which are adequate to protect these interests,and a final Order of Conditions is issued. 8. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the information submitted by the applicant is not sufficient the Land Court for the district in which the land is located, to describe the site,the work,or the effect of the work on within the chain of title of the affected property. In the case the interests identified in the Wetlands Protection Act. of recorded[aril,the Final Order shall also be noted in the Therefore,work on this project may riot go forward unless Registry's Grantor Index under the name of the owner of the and until a revised Notice of Intent is submitted which land upon which the proposed work is to be done. In the provides sufficient information and includes measures case of registered land,the Final Order shall also be noted which are adequate to protect the Act's irterests,and a final on the Land Court Certificate of Title of the owner of the Order of Conditions is issued. A description of the specific land upon which the proposed work is done. The recording information which is lacking and why it is necessary is information shall be submitted to this Conservation attached to this Order as per 310 CMR 10.05(b)(c). Commission on the form at the end of this Omer,which form must be stamped by the Registry of Deeds,prior to the General Conditions commencement of the work. 1. Failure to comply with all conditions stated herein,and with 9. A sign shall be displayed at the site riot less than two square all related statutes and other regulatory measures,shall be feet or more than three square feet in size bearing the deemed cause to revoke or modify this Order. words, "Massachusetts Department of Environmental Protection" 2. The Order does not grana any property rights or any [or,VA DEP"]"File Number exclusive privileges;it does not authorize any injury to 242-939/NACC #10 private property or invasion of private rights. Project File Numbs 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, 10.Where the Departmert of Environmental Protection is bylaws,or regulations. requested to issue a Superseding Order,the Conservation Commission shall be a party to all agency proceedings and 4. The work authorized hereunder shall be completed within hearings before the Department. three years from the date of this Order unless either of the following apply: 11.Upon completion of the work described herein,the applicant (a)the work is a maintenance dredging project as provided shall submit a Request for Certificate of Compliance(WPA for in the Act;or Form 8A)to the Conservation Commission. (b)the time for completion has been extended to a specified date more than three years,but less than five 12.The work shall conform to the following attached plans and years,from the date of issuance. If this Order is intended special conditions: to be valid for more than three years,the extention date and the special circumstances warranting the extended Final Approved Plans(attach additional plan references as time period are set forth as a special condition in this needed) Order. NOT APPLICABLE 5. This Order may be extended by the issuing authority for rale one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to nares the expiration date of the Order. 6. Any fill used in connection with this project shall be clean signed and Stamped by fill. Any fill shall contain no trash,refuse,rubbish,or On file with Massachusetts Department of Enviroementa/Protection 242-93 9/NACC #10 Bureau of Resource Protection- Wetlands WPA Form 5 Order of Conditions and North Andover Wetland Massachusetts Wetlands Protection Act M.G.L, c. 131, §40 Protection Bylaw. Findings (cont.) Findings as to municipal law,bylaw,or ordinance 13.Any changes to the plans identified in Condition#12 above Furthermore,the shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant NORTH ANDOVER enough to require the filing of a new Notice of Intent. Consemoncomrasion hereby finds(check one that applies): 14.The Agent or members of the Conservation Commission and Department of Environmental Protection shall have the that the proposed work cannot be conditioned to meet the right to enter and.inspect the area subject to this Order at standards set forth in a municipal law,ordinance,or bylaw, reasonable hours to evaluate compliance with the condi specifically tions stated in this Order,and may require the submittal of any data deemed necessary by the Conservation Commis- C.178 of the Lode of North Andover sion or Department for that evaluation. Naim andmWon ofmniapal law,nytaw,and mnw 15.This Order of Conditions shall apply to any successor in Therefore,work on this project may not go forward unless interest or successor in control of the property subject to and until a revised Notice of Indent is submitted which provides measures which are adequate to meet these this Order and to any contractor or other person perform- standards,and a final Order of Conditions is issued. ing work conditioned by this Order. 0 that the following additional conditions are necessary to 16.Prior to the start of work,and if the project involves work adjacent to a Bordering Vegetated Wetland,the boundary of comply with a municipal law,bylaw,or ordinance,sped- the wetland in the vicinity of the proposed work area shall tally be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall serve as the limit of Nam andaca wofmunoolaw,bye,orardfrenca work(unless another limit of work line has been noted in the plans of record)and be maintained until a Certificate of Compliance has been issued by the Conservation Commis- The Commission orders that all the work shall be performed sion. in accordance with the said additional conditions and with the Notice of Intent referenced above. To the extend that the 17. All sedimentation barriers shall be maintained in good following conditions modify or differ from the plans, repair until all disturbed areas have been fully stabilized specifications,or other proposals submitted with the Notice with vegetation or other means. At no time shall sediments of Intent,the conditions shall control. be deposited in a wetland or water body. During construc- tion,the applicant or his/her designee shall inspect the Additional conditions relating to municipal law,bylaw,or erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall ordinance: immediately control arty 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. Special Conditions(Use additional paper if necessary) n......-..a c Massachusetts Department of Environn►enta/Protection 242-93 9/NAC C ii 10 Bureau of Resource Protection- Wetlands WPA Form 5 Order of Conditions and North Andover Wetland Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Protection Bylaw. Findings (cont.) This Order is valid for three years,unless otherwise specified On this as a special condition pursuant to General Conditions#4, 2nd from the date of issuance. December 2, 1998 day of December Date With 1998 This Order must be signed by a majority of the conservation ear commission.The Order must be mailed by certified mail v (return receipt requested)or hand delivered to the applicant. before me personally appeared A copy also must be mailed or hand delivered at the same time to the appropriate regional office of th Department of Scott Masse Environmental Protection. to me known to be the person described in and who executed Signatures: the foregoing instrument and acknowledged that he/she executed the same as his/her free act and deed. Way Rdic -�, December 11, 2003 Mycomdsstonepes � This Order is issued to the applicant as follows: D by hand delivery on by mail,rKWWfffM9W on Date Appeals The applicant,the owner,any person aggrieved by this Order, The request shall state clearly and concisely the objections to any owner of land abutting the land subject to this Order,or the Order which is being appealed and how the Order does not any ten residents of the city or town in which such land is contribute to the protection of the interests identified in the located,are hereby notified of their tight to request the Massachusetts Wetlands Protection Act(M.G.L.c.131,§40 appropriate Department of Environmental Protection Regional and is inconsistent with the wetlands regulations(310 CMR Office to issue a Superseding Order of Conditions.The request 10.00).To the extent that the Order is based on a municipal must be made by certified mail or hand delivery to the bylaw,and not on the Massachusetts Wetlands Protection Act Department,with the appropriate filing fee and a completed or regulations,the Department of Environmental Protection has Appendix E:Request for Departmental Action Fee Transmittal no appellate jurisdiction. 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. n....n A i G Massachusetts Department of Environmental Protection Bureau of Resource Protection— Wetlands 242-939/NACC #10 WPA Form 5 - Order of Conditions and North Andover Wetland Massachusetts Wetlands Protection A M. .L. C. 737 40 eAct M.G. , � Protection Bylaw. 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 shall be submitted to the NORTH ANDOVER Conseimion Commission on the form below,which must be stamped by the Registry of Deeds. Detach on dotted line and submit to the Conservation Commission.___ To: NORTH ANDOVER Conservation Commission Please be advised that the Order of Conditions for the project at Lot 14 Chestnut Street 242-939/NACC #10 Ftojea Location DEP File Number has been recorded at the Registry of Deeds of County and has been noted in the chain of title of the affected property in Book in accordance with the Order of Conditions issued on Date If recorded land,the instrument number which identifies this transaction is Instrument Number If registered land,the document number which identifies this transaction is Document Number Signature dApplicari rl.....,r..f r Il.... 1 hlllfl DEP FILE #242-939/NACC#10 FINDINGS OF FACT I. Overview: The applicant filed two (2) Notice of Intent's with the North Andover Conservation Commission (NACC) on October 9`M, 1998 under the separate guise of the Massachusetts Wetland Protection Act and the North Andover Wetland Protection Bylaw. Per the request of the NACC, the applicant agreed to have both public hearings opened and discussed simultaneously. The initial public hearing was held within the 21 day time requirement (October 211, 1998) and was posted appropriately in the North Andover Citizen. This agenda item was then continued with the consent of the applicant to the November 181h, 1998 public hearing where, at that time, the NACC closed the public hearing (VOTE 5-0-0) and this decision was rendered (December 2"d, 1998 VOTE 5-0-0) and issued within the 21 day time requirement (December 3'd, 1998). The bordering vegetated wetland delineation (310 CMR 10.55 & Section 178.2 of the North Andover Wetland Protection ByLaw) depicted on the plan of record was previously approved in the field by the Conservation Administrator and accepted by the NACC via a Positive Determination of Applicability on January 23`d, 1998. II. North Andover Wetland ByLaw & Regulations (REV May 1993): (Chapter. 178 Code of North Andover) This ByLaw is intended to utilize the "Home Rule" authority of this municipality to protect additional resource areas, for additional values, with additional standards and procedures stricter than those of the Massachusetts Wetlands Protection Act (MGL c.131 s.40) and Regulations (310 CMR 10.00). The additional areas subject to protection under the ByLaw include the buffer zone, smaller ponds, vernal pools, and certain freshwater wetlands that may not meet the definition of Bordering Vegetated Wetlands under the Act. a. Section 178.4: "In order to comply with the provisions of this ByLaw, each application must be complete as filed, and must comply with the rules set forth herein and the Commission's Regulations." b. Section 178.9 (Section W(c)(2)) — "Incomplete Application": "If the Commission determines that an application is incomplete or improper, it shall notify the applicant within 21 days of the dated of receipt. The Commission may, at it's discretion: CAWinword\00C\DENIAL.doc 1 NACC 12/3/98 DEP FILE#242-939/NACC#10 1. Return the entire application, in which case all required time periods for processing the application shall become invalid. 2. Require that additional information or materials be submitted within a specified period of time." c. Section 178.9 (Section V(b)) — "Site Plans": "1n order to demonstrate full compliance with this North Andover Wetland Protection ByLaw and these Regulations, the applicant shall have the burden of proof to completely described the site, the work, and it's effect on wetlands and the interests they protect. The applicant is obligated to demonstrate that the work subject to regulation under this ByLaw and Regulations can be performed in a manner that meets all applicable performance standards and does not result in an impact to wetland resource areas." "Submission of incomplete or inadequate information or a failure to meet the burden of proof may result in extensive delays and continuations in the review approval procedure. Failure to supply adequate and credible documentation describing the impact of the project on resource areas may result in the issuance of a decision prohibiting the work." 111. Massachusetts Wetland Protection Act Regulations (310 CMR 10.00): If the Commission finds that the information submitted by the applicant is not sufficient to describe the site, the work or the effect of the work on the interests identified in MGL c.131 s.40, it may issue an Order of Conditions prohibiting the work. The Order shall specify the information which is lacking and why it is necessary. IV. Decision - DENIAL As described in the Notice of Intent, the applicant was seeking an Order of Conditions authorizing construction of a single family dwelling with associated grading within the Buffer Zone of a Bordering Vegetated Wetland (BVW) and within the limits of BVW, Bank, Bordering Land Subject to Flooding (BLSF), and Land Under Water (LUW). Section XI (p.18) of the North Andover Wetland Regulations references and describes the 25' No-Disturbance and 50' No-Construction Zones. No activity is allowed in the No-Disturbance Zone and building construction of any kind is prohibited in the No-Construction Zone. This includes but is not limited to dwelling construction, porches, decks, additions, and/or sheds. Driveways and fences may be allowed in the No-Construction Zone when no other feasible alternatives exist. The imposition of these additional zones is established since, in the considerable body of experience of the Commission, alteration of land C:\Winward\00C\1)ENIAL.doc 2 NACC 12/3/98 DEP FILE #242-9391NACC#10 immediately adjacent to a wetland invariably results in the alteration of the wetland itself. Such wetland alterations have been observed during construction such as siltation, over-grading or deposition of construction debris. Such alterations have been observed after construction from improper land use such as unregulated filling, cutting of vegetation, extension of lawns or the deposition of yard waste. Such alterations have been observed resulting in increased runoff, siltation and temperature or nutrient loading resulting from the change in land use immediately adjacent to the wetland. These subsequent alterations cannot be regulated without the imposition of the restricted zones detailed above. Since the Commission cannot allow unregulated alteration of wetlands, these restricted zones will likely be imposed on all projects. Such findings have compelled the Commission to engage in research into the literature and regulations concerning the function and necessity of such zones. The applicant proposed to alter 839 square feet of BVW, 32 linear feet of bank, and an amount of buffer zone resource area not pre-determined or pre-calculated by the applicant. The applicant failed to overcome a strong presumption of adverse impact on the adjacent wetlands and their functions and values. The applicant did not demonstrate to the Commission that the resource areas in question are not significant to the protection of any of the interests identified in MGL c.131 s.40 and/or the North Andover Wetland Protection ByLaw & Regulations; nor did the applicant demonstrate that proposed work within the resource areas in question would contribute to the protection of the interests identified in MGL .cl31 s.40 and/or the North Andover Wetland Protection ByLaw & Regulations by complying with the general performance standards established under 310 CMR 10.00 and/or c.178 of the Code of North Andover; nor did the applicant demonstrate the proposed work within the Buffer Zone would contribute to the protection of the interests identified in MGL c.131 s.40 and/or the North Andover Wetland Protection ByLaw & Regulations. After careful review of the information presented by the applicant at the public hearing and an "in-field" site review by the Conservation Administrator, the NACC DENIES the applicant's request to construct a single family dwelling with associated grading in the location shown on the plan of record entitled "Site Development Plan — Lot #14 Chestnut Street" prepared by New England Engineering Services, Inc., dated 2-18-98 for the reasons set forth above, in the attached "Appendix A" and as follows: 1. Section 178.9 North Andover Wetland Protection Regulations: The applicant filed a Notice of Intent with the NACC that was incomplete and lacking in supporting data. Rather than return the entire application to the applicant (in accordance with Section 178.9) the Commission requested that additional information and materials be submitted to them for review prior to or at the November 18tH, 1998 public hearing (also in accordance with Section 178.9) and as outlined in written correspondence dated October CAWinwordN000DENIALAw 3 NACC 12/3/98 DEP FILE #242-939/NACC#10 23rd, 1998 from the Conservation Administrator to the applicant. The applicant failed to submit any additional data prior to the November 18'h, 1998 public hearing and, as such, the Commission closed the public hearing. 2. The NACC disagrees with the applicant's assertion within the Notice of Intent (Appendix 2 —Waiver Request Form) that by virtue of the lot existing "prior to the publication of the (Buffer Zone) policy" it is somehow exempt from the performance standards required under Section XI of the local Regulations. Supporting data to this effect was not submitted by the applicant to the Commission for review either through the Notice of Intent application or during the public hearing process. 3. The NACC disagrees with the applicant's assertion within the Notice of Intent (Appendix to Notice of Intent — Project Description, Impacts & Mitigation) that the above referenced policy "lists four important functions of the Buffer Zone with the most important being the ability of the Buffer Zone to help provide pollution attenuation." The Buffer Zone is recognized as a wetland resource area under Section 178.1 of the North Andover Wetland Protection ByLaw and is presumed significant to all of the following interests and values, including but not limited to: • Public or private groundwater supply; • Groundwater protection; • The prevention and control of flooding, erosion, and sedimentation; • Storm damage prevention and pollution attenuation; • Protection of fisheries, wildlife, wildlife habitat and recreation. 4. The NACC disagrees with the applicant's assertion that the "crossing is allowed by the Massachusetts Wetland Protection Act and the local Wetland Protection ByLaw as a 'Limited Project' (310 CMR 10.53(3)(e)." The Limited Project provisions of 310 CMR 10.53(3)(e) are designed to provide the issuing authority with the discretion to allow certain work to proceed although the work may not meet the performance standards set forth in 310 CMR 10.54 through 10.57. These provisions merely provide the discretion to permit these types of projects and the authority to impose conditions deemed necessary to adequately protect the interests of the Act and/or local Bylaw. The issuing authority is not required to give approval to all projects filed under this provision. The applicant failed to demonstrate that no reasonable alternative means of access from a public way to uplands of the same owner is available. In making this determination regarding alternate means of access, the issuing authority may require the applicant to evaluate the reasonableness of any previously or currently available alternatives including the requirement that the applicant utilize upland access over an adjacent parcel of land owned by the applicant, or which the applicant had beneficial of through a realty trust (for example), to avoid (or minimize) the alteration of wetland resource areas. The issuing authority may also consider whether adjacent property, which would have provided dry access CAWinword\OOC\DENIAL.doc 4 NACC 12/3/98 DEP FILE#242-939/NACC#10 to the uplands, has been sold off or built on, particularly where the applicant has had notice. No supporting documentation was submitted for the Commission's review with the Notice of Intent application. 5. The NACC disagrees with the applicant's assertion that the "state Act does not prohibit the use of the Buffer Zone for development..." (Appendix to Notice of Intent — Project Description, Impacts, and Mitigation. Section 10.02(2) of the Act states that "any activity proposed or undertaken within 100 feet of an area specified in 310 CMR 10.02(1)(a) which, in the judgement of the issuing authority, will alter an Area Subject to Protection Under the Act ... requires the filing of a Notice of Intent". To continue, "...a Request for Determination of Applicability must be filed for all activities within the Buffer Zone." The applicant failed to quantify the percentage (or amount) of Buffer Zone scheduled for alteration and, as such, it is the opinion of the Commission that the ability of the identified resource areas to provide those functions deemed significant under the Act and/or local Bylaw will be adversely impacted by proposed work within the 100' Buffer Zone as defined under the Act. No work shall be performed on this project. The applicant has failed to demonstrate compliance with the Massachusetts Wetland Protection Act and the North Andover Wetland Protection ByLaw. The applicant has failed to overcome the burden of proof (310 CMR 10.03(1)) and demonstrate to the Commission that proposed work will not negatively impact the interests identified in MGL c-131 s.40 and the North Andover Wetland Protection ByLaw. The applicant may propose alternative projects of improvements to the plan in a new Notice of Intent. V. Record Documents: Notice of Intent filed by: Accorn Realty Trust DATED 10-9-98 Plans prepared by: New England Engineering Services, Inc. entitled "Site Development Plan — Lot 14 Chestnut" DATED 2-18-98 Appendix A — Correspondence: DATED 10-23-98 from the Conservation Administrator to the applicant's representative, Mr. Benjamin Osgood, Jr. CAWmword\OOC\DENIAL.doc 5 NACC 12/3/98 DEP FILE#242-939/NACC#10 APPENDIX A C:\Wmword\OOC\DENIAL.doc 6 NACC 12/3198 Town of North Andover -E NORTH OFFICE OF ��o °•b�°L COMMUNITY DEVELOPMENT AND SERVICES -,� 27 Charles Street *• North Andover, Massachusetts 01845 y�SsncHusEt< WILLIAM J. SCOTT Director (978)688-9531 Fax(978)688-9542 October 23, 1998 Mr. Ben Osgood,Jr. New England Engineering Services, Inc. 33 Walker Road,Suite 23 North Andover, MA 01845 RE: Notice of Intent-Lot#14 Chestnut Street(DEP #242-939/NACC#10). Dear Mr. Osgood: This Department is in receipt of the above mentioned Notice of Intent application's which we understand have been filed separately under the guise of the North Andover Wetland Protection ByLaw (c.178 of the Code of North Andover) and the Massachusetts Wetland Protection Act(MGL c.131 s.40). As you are aware, an initial public hearing was held on Wednesday, October 21St, 1998. The North Andover Conservation Commission (NACC), in ifs discretion, heard an oral presentation from yourself under the ByLaw at the same public hearing required to be held under the provision of c.131, s.40, of the Massachusetts General Laws'. As you are also aware,with any Notice of Intent the applicant shall have the burden of proving by a preponderance of the credible evidence that the activity proposed in the Notice of Intent will not cause significant harm to any of the interests and values sought to be protected by the Wetland Protection ByLaw. Failure to provide to the Commission adequate evidence for it to determine that the proposed activity does not cause such significant harm shall be sufficient cause for the Commission to deny permission or to grant such permission with such conditions as it deems reasonable,necessary or desirable to carry out the purposes of this ByLaw; or to postpone or continue the hearing to another date certain to enable the applicant to present additional evidence, upon such terms and conditions as seems to the Commission to be just Due consideration shall be given to possible effects of the proposal on all interests and values to be 1 Section 178.5(a)of the North Andover Wetland Protection ByLaw. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 protected under this ByLaw and to any demonstrated hardship on the petitioner by reason of a denial, as brought forth at the public hearing. A 2nd public hearing has been scheduled for November 181h, 1998. The purpose of the North Andover Wetland Protection ByLaw is to preserve and protect the wetland resource areas (which include buffer zones) of the Town of North Andover by regulation of, and control of, activities deemed by the Commission to have significant or cumulatively detrimental effect upon the following interests and values, including but not limited to: 1. Public or private water supply; 2. Groundwater protection; 3. The Prevention and control of flooding, erosion, and sedimentation; 4. Storm damage prevention and/or pollution attenuation; 5. Protection of Fisheries, wildlife,wildlife habitat, and recreation. In accordance with Section IV(c) of the local regulations the North Andover Conservation Commission has determined that your application is incomplete and, as such, has required the following additional information: Bank (310 CMR 10.54&C-1782 of the Code of North Andover) 1. Please calculate the % of"bank" altered by the proposed driveway crossing (310 CMR 10.54(4)(5) and describe how the current proposal will not effect the presumed statutory interests. 2. Please provide a detailed cross-section (to scale) of the proposed stream crossing (pre-and post construction). . Bordering Land Subject to Flooding_(310 CMR 10.57&C.1782 of the Code of North Andover 1. The boundary of Bordering Land Subject to Flooding(BLSF)is the estimated maximum lateral extent of flood water which will theoretically result from the statistical 100-year frequency storm. Said boundary shall be that determined by reference to the most recently available flood profile data prepared under the National Flood Insurance Program (NFIP). Where NFIP data is unavailable, the boundary of BLSF shall be the maximum lateral extent of flood water which has been observed or recorded. In the event of a conflict, the issuing authority may require the applicant to determine the boundary of BLSF by engineering calculations. As a conflict currently exists 2 Section 178.5(c)of the North Andover Wetland Protection ByLaw. between the Town of North Andover and the previously determined Woodlea Village Subdivision floodplain(DEP #242-792), and as the FEMA-FIRM map study terminates prematurely (refer to panel #250098-0006 c) please determine the boundary of BLSF and the ten (10) year floodplain associated with the on-site intermittent stream in accordance with c.178.2 and section 310 CMR 10.57(2) of the Act. Bordering Vegetated Wetland (310 CMR 10.55&c.178.2 of the Code of North Andover 1. Approximately 1,049 square feet of Bordering Vegetated Wetland (BVW)is scheduled for alteration. Please describe how the current proposal will not effect the presumed statutory interests. 2. A wetland replication area is proposed east of the existing wetland resource area yet a detailed mitigation plan has yet to be submitted with the application. Please submit said plan prepared by a qualified wetland biologist incorporating the following information: a. Cross-sections; b. Topography with 1' contour intervals; c. Soil borings indicating soil texture, permeability and depth to seasonal high groundwater; d. A detailed planting scheme and construction sequence. Buffer Zone (310 CMR 10.02 and c.178.2 of the Code of North Andover; The current submittal is incomplete,woefully inadequate and, in the professional opinion of this Department and the NACC,fails to overcome the presumptions of significance associated with the 25' No-Disturbance Zone and/or 50' No- Construction Zone regulated within this resource area., 1. This Department and the NACC disagree with your assertion that the presumed values associated with the Buffer Zone resource area are limited to four(4) presumed functions or values. In addition, we further disagree that pollution attenuation is"the most important one." The Buffer Zone is regulated as a resource area in North Andover and is presumed significant to all of the following interests and values3, including but not limited to: a. Public or private water supply; b. Groundwater protection; c. The Prevention and control of flooding, erosion, and sedimentation; d. Storm damage prevention and/or pollution attenuation; 3 Section 178.1 of the North Andover Wetland Protection ByLaw. h e. Protection of Fisheries,wildlife,wildlife habitat, and recreation. 2. Please calculate the"% of Buffer Zone" and total square footage proposed for alteration and describe in detail how the current proposal will not effect the presumed statutory interests mentioned above and as protected under Section X14of the local wetland regulations. 3. A significant portion of the Buffer Zone resource area is scheduled for alteration. In order for this Department to accurately assess proposed impacts, please submit a detailed "Wildlife Habitat Evaluation" in accordance with section VI of the North Andover Wetland Regulations and 310 CMR 10.60. Limited Project Wetland Crossing (310 CMR 10.53(e). 1. The current design does not adequately address impacts associated with the intermittent stream channel,bank, BVW, Buffer Zone and/or land under water. Please submit detailed drainage calculations prepared by a Registered Professional Civil Engineer justifying the proposed design, pre-development and post-development runoff rates, floodplain limits and other requirements as described under the Act and section VI of the local wetland regulations. 2. Please provide a revised cross section and detail of the proposed culvert, span,sewer force main,footing design and there juxtaposition to on-site wetland resource areas. 3. Please depict a foundation drain on the proposed dwelling. 4. Please submit a detailed de-watering plan and construction sequence for work associated with the stream crossing. To reiterate, a second public hearing has been scheduled for November 18th, 1998. At that time, and upon receipt of these above mentioned minimum submittal requirements, I will recommend to the Commission that they establish an escrow account in accordance with Section 178.11 of the North Andover Wetland Protection ByLaw and forward the materials to a yet to be determined third party consultant 4 Section XI mandates a 25'No-Disturbance Zone and 50'No-Construction Zone from the edge of A applicable wetland resource areas. Thanking you in advan Since ly, Michael D. owar Conservation Administrator cc: NACC file E Massachusetts Department of Environmental Protection Bureau of Resource Protection- Wetlands I a WPA Appendix E .Request for Departmental Action Fee Transmittal Form and North Andover Wetland Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Protection Bylaw. Please type or print clearly all Request Information information requested on this form, 1. Person or parry making request(if appropriate,name the 2. Applicant(as shown on Notice of Intent,Abbreviated Notice citizenrou 's representative): of Resource Area Delineation,or Request for Determination 9 P P e9 of Applicability): Name Name Mailing Address MailingA CitylTown c?rylrown State Zip Code State Zip Code Phone Number Phone Number Fax Number(if applicable) Fax Number(f aplkab/e) Project Location: DEP File Number: StreetAddress Cityllom Instructions 1. When the departmental action request is for(check one): 2. On a separate sheet attached to this form,state clearly and concisely the objections to the Determination or Order ❑ Superseding Order of Conditions which is being appealed:To the extent that the Determina- Superseding Determination of Applicability tion or Order is based on a municipal bylaw,and not on the ❑ Superseding Order of Resource Area Delineation Massachusetts Wetlands Protection Act or regulations,the Department of Environmental Protection has no appellate Send this form and a check or money order for$50.00, jurisdiction. payable to the Commofinealth of Alassachusetts to: 3. Send a copy of this form and a copy of the check or money Dept.of Environmental Protection order with the Request for a Superseding Determination or Box 4062 Order by certified mail or hand delivery to the appropriate Boston,MA 02211 DEP regional office as listed in Appendix A. 4. A copy,of the request shall at the same time be sent by certified mail or hand delivery to the conservation commis- sion and to the applicant,if helshe is not the appellant. NOTE: If you wish to appeal this decision under the North Andover Wetland Protection ByLaw a complaint must be filed with Superior Court, Gln , _V a • n_.. �nrnn 310 CMR 10.99 Form 2 DEP File No. 4 (To be provided by DEP) - North Andover __V_ Commonwealth Cary Towr, ` -+ of Massachusetts Acorn Realty Trust Appi�cant 3' Lot 14 Chestnut Street Date Reouest Filed 1/23/98 POSITIVE Determination of Applicability North- Andover Wetland Bylaw & Regulations Ch -178, ' Code of North Andover From NORTH ANDOVER CONSERVATION COMMISSION Issuing Authority Benjamin Osgood, Jr. To Acorn Realty Trust Same (Name of person making request) (Name of property owner) Address 33- Walker Rd, No. Andover, MA_ Address This determination is issued and delivered as follows: ❑ by hand delivery to person making request on (date) El 1998' by certified.mail,return receipt requested on February 5, (date) Pursuant to the authority of Chap.er. 178 the North Andover Consgtaatson Commission has considered your request for a Determination of Applicability and its support?ng documerrtatiot", and has made the following determination(check whichever is applicable): Location: Street Address Chestnut Street Lot Number: Lot 14 1. The area described below,which includes all/part of the area described in your request, is an Area Subject to Protection Under theb,laTherefore, any removing,filling, dredging or altering of that area requires the filing of a Notice of Intent. Plan of record named "Wetland Boundary Determination Plan" dated January 17, 1997 prepared by New England Engineering Services, Inc. Wetland Flags B-4 to B-1 connecting to A-1 to A-10. Z- The work described below, which includes all;part of the work described in your request, is within an Area Subject to Protection Under thebylaWd will remove, fill, dredge or alter that area.There- fore. said work requires the filing of a Notice of Intent. - I Effective 11/10/89 2.1 I 3, C The work described below, which includes all,part of the work described to your request, is within the Buffer Zone as defined in the reoulatlons, and will alter an Area Subject to Protection Under thebylaPheretore,said work requires the filing of a Notice of Intent This Determination is negative: 1. ❑ The area described in your request Is not an Area Subject to Protection Under the bylaw 2. ❑ The work described in your request is within an Area Subject to Protection Under the Act, but will not remove,fill, dredge, or alter that area.Therefore,said work does not require the filing of a Notice of Intent. 3. D The work described in your request is within the Buffer Zone, as defined in the regulations. but.will not alter an Area Subject to Protection Under thebylaTvherefore, said work does not require the filing of a Notice of Intent. 4. ❑ The area described in your request is Subject to Protection Under thebyl-a[ft since the work described therein meets the requirements for the following exemption,as specified in the byliNd the regulations, no Notice of Intent is required: Issued by A -1YOR4 ANDOVER Conservation Commission Signature(s) /v/ This Determination must be signed by a majority of the Conservation Commission. On this 4th day of February 1998 before me personally appeared Joseph W. Lynch, Jr. , to me known to be the person described in, and who executed. the foregoing instrument, and acknowledged that he.,She executed the same as his/her free,act and deed: Notary Public My corrimissidii4xpires This Determination does not relieve the applicant from complying with all other apolicaple feceral.state or local statutes.ordinances, by-laws or regulations.This Determination shaft be valid for three years form the nate of issuance The applicant,the owner.any person aggrieved by this Determination,any owner of land abutting the land upon which the or000sed work is to be done,or any ten resioents of the city or town in which such land is located,are hereby notified of their richt to reauest the Department of Environmental Protection to issue a Superseding Determination of Applicability,providing the reauest is maae by certified mad or hand delivery to the Department,with the appropriate fifmo fee and Fee Transmittal Form as provided in 310 CMR 10.03(71 within ten nays from the date of essuance of this Determination.A copy of the request shalt at the same time be sent by certified mad or hano Delivery to the Conservation Commission and the applicant. 2.2A . j 310 CMR 10.99 Form 2 OF-?File No. (To be provided by DEP) r^ Commonwealth City,Town North Andover. of Massachusetts Aoolcant Acorn Realty Trust Date Reauest Red 1/23/98 Lot 14 Chestnut Street POSITIVE Determination of Applicability Massachusetts Wetlands Protection Act, G.L. c. 131 , §40 From NORTH ANDOVER CONSERVATION COMMISSION Issuing Authority Benjamin Osgood, Jr. To Acorn Realty Trust Same (Name of person making request) _ (Name of property owner) 33 Walker Road No. Andover, MA Address ddress This determination is issued and delivered as follows: ❑ by hand delivery to person making request on (date) 1 by certified mail, return receipt requested on February 5, 1998 (date) Pursuant to the authority of G.L c. 131 , §40, the North Andover Conservation Commission has considered your request for a Determination of Applicability and its supporting documentation, and has made the following determination (check whichever is applicable): Chestnut Street Location: Street Address Lot 14 Lot Number: 1. The area described below, which includes all/part of the area described in your request, is an Area Subject to Protection Under the Act. Therefore, any removing, filling, dredging or altering of that area requires the filing of a Notice of Intent. Plan of record named "Wetland Boundary Determination Plan" dated January 17, 19971 prepared by New England Engineering Services, Inc. Wetland Flags B-4 to B-1 connecting to A-1 to A-10. Z. 7 The wcrk described below, which includes all"part of the work described in your reauest. is within an Area Subject to Protection Under the Act and will remove,fill, dredge or alter that area. There- fore, said work recuires the filing of a Notice of Intent. Effective 11/10/89 2.1 i ` 3. `^ The work described below, which includes all:part of the work described In your request, is within the Butter Zone as defined in the regulations, and will alter an Area Subject to Protection Under the Act fheretore, said work requires the filing of a Notice of Intent This Determination is negative: 1. ❑ The area described in your request is not an Area Subject to Protection Under the Act` 2, p The work described in your request is within an Area Subject to Protection Under the Act, but will not remove. fill, dredge, or alter that area.Therefore, said work does not require the filing of a Notice of Intent. 3. ❑ The work described in your request is within the Butter Zone, as defined in the regulations. but.will not alter an Area Subject to Protection Under the,:Act Tfqheretore. said work does not require the filing of a Notice of Intent. 4. ❑ The area described in your request is Subject to Protection Under the Act;�Jjjt since the work described therein meets the requirements for the following exemption.as specified in the Actand the regulations, no Notice of Intent is required, Issued by /);0#; ANDOVER Conservation Commission Signature(s� /l/• r This Determination must be signed by a majority of the Conservation Commission. On this 4th day of February 1998 before me personally appeared Joseph W. Lynch, Jr. , to me known to be the person described in, and who executed, the foregoing instrument, and.acknowledged that he!she executed the same as his/her free,act and deed. Notary Public My corrimissidn expires This Determination does not relieve the applicant from Comolying with all other abphcable federal.state or local statutes.ordinances. Dy-laws or regulations.This Determination snail be valre for three years form the date of issuance The applicant,the owner.any person aggrieved by this Determination, any owner of land abusing the land upon which the proposed work i to be done,or any ten resioents of the city or town in wriicn such land is Iocatec,are nereby ngtillec of their nett to request the Deoarvnent of Environmental Protection to issue a Supersedino Determination of Apphcaoility,providing the request is mage ov certdred mad or nand delivery to the Department,with the appropriate filing lee and Fee Transminal Form as provided in 310 VAR 10.03(7)within ten days from Me pate of issuance of this Determination.A copy of the request shall at the same time be sent by certified mail or nano oeiivery to the Conservation Commission and the apphcant. 2-2A 310 CMR 10.99 �� � Form 5 DEP Fits No. 1_242—Ul__ r..,.. (10 bw bvWafM by UEr't North Andover Commonwealth city,Town of Massachusetts 1y�, ADDtIUM Order of Conditions Massachusetts Wetlands Protection Act G.L. c. 131 , §40 and under the Town of North Andover's Bylaw Chapter 3.5 From NORTH ANDOVER CONSERVATION COMNISSIGd To Rosewood Realty Trust Same (Name of Applicant) (Name of property owner) 733 Turnpike St, Suite 137 Address No. Andover, MA 01845 Address This Order is issued and delivered as follows: O by hand delivery to applicant or representative on (date) by certified mail, return receipt requested on / / 9� Z/�s l9V (date) This project is located at Lot #108 Chestnut Street @ Wesley Street Deeds, The property is recorded at the Registry of NnrrhPrn Lggnm _ Book 4429 Page 216 Certificate (if registered) The Notice of Intent for this project was filed on October 4. 1996 (date) ' The public hearing was closed on November 20, 1996 (date) Findings The North Andover Conservation Commission has reviewed the above•relerpriced Notice of Intent and plans and has held a public hearing on the project. Based on lite information availaole to lite NACC at this time, the rI 'C' _ has deterrroned that the area on which the proposed work is to be done is significant to file 10110%ving interests in accoroance with the Presumptions of Significance slelA* igthe regulations guiori ns for each Area Subject to Protectiv, Under the ecrAct (check as appropriate): Ch.178: ' Prevention of Erosion & Sedimentation Ch.178� Wildlife 1 Pubiic water supply Flood con, of ❑ Lind containing shellfish Private water supply Storm damage prevention ❑ Fisheries Ground water supply Prevention of pollution 1P Protection of wildlife habitat Total Filing Fee Submitted 50 00 State Sham $112.50- _ City/Town Share $137.50 (V, tee in nxcess of S.25) Total Refund Due S CityrTown Portion S State Portion S ('/z total) ('iz total) Fflective 11/10!,E9 t -- --- -__- DEP FILE # 242 - 832 DENIAL (DEP #242-832) FINDINGS OF FACT: Overview: The applicant filed a Notice of Intent with the North Andover Conservation Commission (NACC) on October 4, 1996; an initial public hearing was held within the 21 day time requirement (October 16, 1996)and was posted appropriately in the North Andover Citizen. The Conservation Administrator required additional time to review the applicant's proposed wetland delineation and, as a result, the public hearing was continued to the November 6, 1996 meeting. A written request by the applicant to extend the public hearing until the November 20, 1996 meeting was granted by the NACC for the same above referenced reasons. On November 20, 1996 the NACC received a 2nd written request at 7:00 p.m. to extend the public meeting a 3`d time until the December 4, 1996 meeting. This request was denied by a majority vote of the NACC and the public hearing was officially closed. Wetland Delineation Methodology: The Wetlands Protection Act(310 CMR 10.55) Attached herein and made a part hereof(as record copies) are two (2)pieces of correspondence dated October 9, 1996 and October 28 1996 each of which are addressed to Mr. Steven Stapinski of Merrimack Engineering from the Conservation Administrator. At the Administrator's request, the NACC agreed that sole reliance on wetland indicator plants would yield an accurate delineation. The Conservation Administrator inspected.the proposed BVW delineation on three(3) different occasions and met with the applicant's Biologist on the 91h of October 1996. Information on hydrology was submitted by the applicant's Biologist and evaluated for accuracy by the Conservation Administrator;this supporting data was incorporated into the overall delineation. The state regulations presume that the delineation of BVW's based on vegetation alone is accurate under any one of the following circumstances: 1. All dominant species in the vegetative community have an indicator category of OBL, FACW+, FACW or FACW-and the slope is distinct or abrupt between the upland plant community and the wetland plant community. 2. The area where the work will occur is clearly limited to the buffer zone. 3. The issuing authority(i.e.NACC)determines that sole reliance on wetland indicator plants will yield an accurate delineation. (NOTE: it is understood that if information on indicators of hydrology is submitted, it must be evaluated by the issuing authority.) CAWinword\00C\242-832.doc 1 NACC 12/8/96 DEP FILE # 242 - 832 North Andover Wetland ByLaw& Regulations (C. 178 Code of North Andover) Areas subject to protection under the ByLaw differ from those protected under the Act in that additional areas are protected by this ByLaw. The additional areas subject to protection under the ByLaw include the buffer zone, smaller ponds, vernal pools and certain freshwater wetlands that may not meet the definition of BVW's under the Act. As described in the Notice of Intent, the applicant was seeking an Order of Conditions authorizing construction of a single family dwelling with associated grading and utility installation within the Buffer Zone of a BVW. Section XI(p.18) of the North Andover Wetland Regulations references and describes the 25' No-Disturbance and 50' No- Construction Zones. No activity is allowed in the No-Disturbance Zone and building construction of any kind is prohibited in the No-Construction Zone. This includes but is not limited to dwelling construction, porches, decks, additions, and/or sheds. Driveways and fences may be allowed in the No-Construction Zone. The imposition of these additional zones is established since, in the considerable body of experience of the Commission, alteration of land immediately adjacent to a wetland invariably results in the alteration of the wetland itself. Such wetland alterations have been observed during construction such as siltation, over-grading or depositing construction debris. Such alterations have been observed after construction from improper land use such as unregulated filling, cutting of vegetation, extension of lawns or the depositing of yard waste. Such alterations have been observed resulting in increased runoff, siltation and temperature or nutrient loading resulting from the change in land use immediately adjacent to the wetland. These subsequent alterations cannot be regulated without the imposition of the restricted zones detailed above. Since the Commission cannot allow unregulated alteration of wetlands, these restricted zones will likely be imposed on all projects. Such findings have compelled the Commission to engage in research into the literature and regulations concerning the function and necessity of such zones. The applicant proposed buffer zone alteration within one foot(1) of the adjacent BVW at Flag#206R and dwelling construction within 32.64' at wetland flag#210R. The applicant failed to overcome a strong presumption of adverse impact on the adjacent wetlands and their functions and values. Therefore, after careful review of the information presented by the applicant at the public hearing and an"in-field" site review,the NACC DENIES the applicants request to construct a dwelling with associated grading and utility installation in the location shown on the plan of record entitled"Site Development Plan of Land" prepared by Merrimack Engineering, Inc.,.dated REV 11/20/96. The applicant may propose alternative projects of improvements to the plan in a new Notice of Intent. CAWinword\00C\242-832.doc 2 NACC 12/8/96 DEP FILE #242 - 832 Record Documents: Notice of Intent filed by: Rosewood Realty Trust DATED 20/4/96 Plans prepared by: Merrimack Engineering, Inc. entitled "Site Development Plan of Land" DATED REV 11/20/96 Correspondence: DATED 10/9/96 from the Conservation Administrator to the applicant's representative,Mr. Steven Stapinski of Merrimack Engineering, Inc. DATED 10/28/96 from the Conservation Administrator to the applicant's representative, Mr. Steven Stapinski of Merrimack Engineering, Inc. CAWinword1000\242-832.doc 3 NACC 12/8/96 Town of North Andover NORTH OFFICE OF 3?O'`t to COMMUNITY DEVELOPMENT .AND SERVICES .,. ° . ... 146 Main Street North Andover, Massachusetts 01845 WILLIAM J. SCOTT SSACHU Director October 9, 1996 Mr. Steven Stapinski Merrimack.Engineering Services, Inc. 66 Park Street Andover, MA 01810 RE: NOTICE OF INTENT - Chestnut Street @ Wesley Street. Dear Steve: In response to the above referenced permit application, this Department conducted an inspection of Lot #108 on October 8, 1996 in order to verify the proposed delineation of on-site wetland resource areas. The delineation as shown on the plan entitled "Site Development Plan of Land" dated 10/1196 does not accurately depict existing conditions and as a result the delineation is denied at this time. Furthermore, my notes from the Woodlea Village Subdivision file indicate that this particular section of the wetland resource area was not to be approved under that filing. I offer the following comments; 1. Identified on-site wetland vegetation included • green ash (FACW) • cinnamon fern (FACW) sensitive fern (FACW) • northern arrow-wood (FACW-). • blueberry (FACW-) • swamp azalea (FAC) • red maple (FAC NOTE: listed in the Act) • black cherry (FACU) 2. Where a predominance of wetland vegetation is FACW-or wetter and there is an abrupt slope between upland and wetland plant communities a delineation on vegetation alone is presumed accurate. As a result wetland flags 204 through 211 have been re-located in the field and re-labeled with , an "R" designation. 3. A dEiailed delineation incorporating "BVW Field Data Forms" may facilitate this review. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 ii Plea8e submit a revised plan and supporting documentation to this office prior to the 10/16/96 public hearing. As always, if you have any questions or concerns please'do not hesitate to contact me. Thanking you in advance. Sincerely, Michael Q Howard, Conservation Administrator encl. cc: NACC DEP-NERD file : 213 71 S '. 716 25 SAo a `. 11 L. o, ?OSION CONTROL " 6 _ AND HA )"BALES) n cov> ZONE � � � �•>,,� ._.. +� . v t `^ ,44 - `�? Tg vw��sc.s REA wa-ro ue-�k t 1.. HES NU- — � Y CROP f by WA f } Town of North Andover &ORTN OFFICE OF 3?04,• • •'��occ COMMUNITY DEVELOPMENT AND SERVICES F . 146 Main Street • s ' r North Andover,Massachusetts 01845 A WILLIAM J.SCOTT ss�c►+use Director October 28, 1996 Mr. Steven Stapinski Merrimack Engineering Services, Inc. 66 Park Street Andover, MA 01810 RE: NOTICE OF INTENT -Chestnut Street @ Wesley Street. Dear Steve: In response to the above referenced permit application, this Department conducted an inspection of Lot #108 on October 8th 9th, and 2e for the purposes of verifying the proposed delineation of on-site wetland resource areas; Steve D'Urso accompanied me on October 9, 1996. The delineation as shown on the plan entitled "Site Development Plan of Land" dated 10/1/96 does not accurately depict existing conditions. I offer the following comments: 1. Identified on-site wetland vegetation included ... • green ash (FACW) • cinnamon fern (FACW) • royal fern (OBL) • sensitive fern (FACW) • northern arrow-wood (FACW-) • blueberry (FACW-) • swamp azalea (OBL) • red maple (FAC NOTE: listed in the Act) • black cherry (FACU) 2. Two (2) soil borings were performed on-site. The first boring was in the vicinity of flag#205 and the second near#210. Soil Boring A A HORIZON 0-8" FSL 10YR 2/2 No Redox Features B HORIZON 8- 18" FSL 7.5YR 4/6 <5% Redox Features BOARD OF APPEALS 688-9541 BUMDING 689-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Lot 108 Chestnut St/Wesley St f C', C4 17 JiCana('Jra!5) 77-11: (Orcar must`Je signed by a majority at the Cdnser;atian CommisstCn. On to.is 4th day of December j 96 de'c'o me qra.craliy aGNeared Joseph W. Lynch, Jr. . to me'<ncwn to ae the ;,et°sen described in and who executed the tare;cing insviument and acicnawtedged that he.she executed ih- -ar-,e as tris/het free act and deed. No Puctic arty commission ex;.ires The aacticant.trio owner.any Pisan agcneved ty this Qraer,any owner citland aoutting trio lana oath whit.',the creecsea wcrx is to as acne.cr any ten resicents at;rte city or town in wnicts succi land is located.are neraay netiliad at;heir rgrt to reeuest the Otcartment of anvirdnmantaf Protection to issue a Sucerseding arder. :revidirg tris reeuest is mace ay Caratied-''tail or nano nano to the Oscanment. with trio acorconate filing!as ane tee Transmittal Farm as creviced in 110 CJAt4 st7.t2=x(11."^thin ten Bays from the tate at issuanc3 at trtrs Oeten'ninarion.A cc�-,y ct the re,uest shall at the same came oe sent:y certified mad or Kana ashvsrf to the Conservation Commission ono the acclicant. If you wish ca appeal this decision under the Town By1a'a, a complaint must be filed in Superior Caurc. A RECEIPT FROM THE REGISTRY OF DEEDS iNST BE SUBMITTED Tri THIS OFFICE SHOWING THAT THIS ORDER OF CONDITIONS HAS BEEN RECORDED AT THE NORTH ESSEX REGISTRY OF LEEDS. North Andover Con *^rrt m m,r prior to commencement Mt of oris. Oetach an tatted line and sutsmit to the Main Streac...�°.-o. over`t` ..OLS„54 ................................................. ................._._..........................................�....... . .. -a North Andover Conservation Commission tss�:�4 ui^c^iv Please ce advisee;hat the arcer of Conditions ter the crMac" Deeds Essex Norch District Inc �•ie wumcer 24?-832` ,as teen recarced at the� 'r at rias peen natea n the c-ain at tine at the attectea zrccer'y in ac='cants-Jim cenerai Czscatcrr 3 do tg It reccrcac Lana. :rte :rs�r ten:numcer wrnc iCen:rieS is "scsaccM�s S:erec ,ana. the lccum?rt numCer wNaa�Cent:hZS ;^p �� �-dn S 310 C'MR 10.99 ' Fdrm 5 •, DEP Fib No. 1?4 2_832 l (lo tm aw n by UEVI _ Commonwealth cory.Town North Andover ? �' _ '•+t DEP FILE # 242 - 832 DENIAL (DEP #242-832) FINDINGS OF FACT: Overview: The applicant filed a Notice of Intent with the North Andover Conservation Commission (NACC) on October 4, 1996; an initial public hearing was held within the 21 day time requirement (October 16, 1996) and was posted appropriately in the North Andover Citizen. The Conservation Administrator required additional time to review the applicant's proposed wetland delineation and, as a result, the public hearing was continued to the November 6, 1996 meeting. A written request by the applicant to extend the public hearing until the November 20, 1996 meeting was granted by the NACC for the same above referenced reasons. On November 20, 1996 the NACC received a 2"d written request at 7:00 p.m. to extend the public meeting a Std time until the December 4, 1996 meeting. This request was denied by a majority vote of the NACC and the public hearing was officially closed. Wetland Delineation Methodology: The Wetlands Protection Act(310 CMR 10.55) Attached herein and made a part hereof(as record copies) are two (2)pieces of correspondence dated October 9, 1996 and October 28 1996 each of which are addressed to Mr. Steven Stapinski of Merrimack Engineering from the Conservation Administrator. At the Administrator's request, the NACC agreed that sole reliance on wetland indicator plants would yield an accurate delineation. The Conservation Administrator inspected the proposed BVW delineation on three(3) different occasions and met with the applicant's Biologist on the 0 of October 1996. Information on hydrology was submitted by the applicant's Biologist and evaluated for accuracy by the Conservation Administrator;this supporting data was incorporated into the overall delineation. The state regulations presume that the delineation of BVW's based on vegetation alone is accurate under ani one of the following circumstances: 1. All dominant species in the vegetative community have an indicator category of OBL, FACW+, FACW or FACW-and the slope is distinct or abrupt between the upland plant community and the wetland plant community. 2. The area where the work will occur is clearly limited to the buffer zone. 3. The issuing authority(i.e. NACC) determines that sole reliance on wetland indicator plants will yield an accurate delineation. (NOTE: it is understood that if information on indicators of hydrology is submitted, it must be evaluated by the issuing authority.) CAWinword\00C\242-832.doc 1 NACC 12/8/96 DEP FILE #242 - 832 North Andover Wetland ByLaw& Regulations (C. 178 Code of North Andover) Areas subject to protection under the ByLaw differ from those protected under the Act in that at additional areas arerotected b p y this Bylaw. The additional areas subject to protection under the ByLaw include the buffer zone, smaller ponds, vernal pools and certain freshwater wetlands that may not meet the definition ofBVW's under the Act. As described in the Notice of Intent, the applicant was seeking an Order of Conditions authorizing construction of a single family dwelling with associated grading and utility installation within the Buffer Zone of a BVW. Section XI(p.18)of the North Andover Wetland Regulations references and describes the 25' No-Disturbance and 50' No- Construction Zones. No activity is allowed in the No-Disturbance Zone and building construction of any kind is prohibited in the No-Construction Zone. This includes but is not limited to dwelling construction, porches, decks, additions, and/or sheds. Driveways and fences may be allowed in the No-Construction Zone. The imposition of these additional zones is established since, in the considerable body of experience of the Commission, alteration of land immediately adjacent to a wetland invariably results in the alteration of the wetland itself. Such wetland alterations have been observed during construction such as siltation, over-grading or depositing construction debris. Such alterations have been observed after construction from improper land use such as unregulated filling, cutting of vegetation, extension of lawns or the depositing of yard waste. Such alterations have been observed resulting in increased runoff, siltation and temperature or nutrient loading resulting from the change in land use immediately adjacent to the wetland. These subsequent alterations cannot be regulated without the imposition of the restricted zones detailed above. Since the Commission cannot allow unregulated alteration of wetlands, these restricted zones will likely be imposed on all projects. Such findings have compelled the Commission to engage in research into the literature and regulations concerning;the function and necessity of such zones. The applicant proposed buffer zone alteration within one foot (1') of the adjacent BVW at Flag#206R and dwelling construction within 32.64' at wetland flag#210R. The applicant failed to overcome a strong presumption of adverse impact on the adjacent wetlands and their functions and values. Therefore, after careful review of the information presented by the applicant at the public hearing and an"in-field" site review, the NACC DENIES the applicants request to construct a dwelling with associated grading and utility installation in the location shown on the plan of record entitled"Site Development Plan of Land" prepared by Merrimack Engineering, Inc., dated REV 11/20/96. The applicant may propose alternative projects of improvements to the plan in a new Notice of Intent. I, CAWinword\00C\242-832.doc 2 NACC 12/8/96 DEP FILE # 242 - 832 Record Documents: Notice of Intent filed by: Rosewood Realty Trust DATED 10/4/96 Plans prepared by: Merrimack Engineering, Inc. entitled "Site Development Plan of Land" DATED REV 11/20/96 Correspondence: DATED 10/9/96 from the Conservation Administrator to the applicant's representative, Mr. Steven Stapinski of Merrimack Engineering, Inc. DATED 10/28/96 from the Conservation Administrator to the applicant's representative, Mr. Steven Stapinski of Merrimack Engineering,Inc. C:\Winword\OOC\242-832.doc 3 NACC 12/8/96 c . Town of North Andover F NORTH , OFFICE OF 3=0`t, COMMUNITY DEVELOPMENT AND SERVICES p 146 Main Street North Andover, Massachusetts O 1845 WILLIAM J. SCOTT SSACHUS Director October 9, 1996 Mr. Steven Stapinski Merrimack„Engineering Services , Inc. 66 Park Street Andover, MA 01810 RE: NOTICE OF INTENT - Chestnut Street @ Wesley Street. Dear Steve: In response to the above referenced permit application, this Department conducted an inspection of Lot #108 on October 8, 1996 in order to verify the proposed delineation of on-site wetland resource areas. The delineation as shown on the plan entitled "Site Development Plan of Land” dated 10/1/96 does not accurately depict existing conditions and as a result the delineation is denied at this time. Furthermore, my notes from the WVoodlea Village Subdivision file indicate that this particular section of the wetland resource area was not to be approved under that filing. I offer the following comments; 1. Identified on-site wetland vegetation included ... • green ash (FACW) • cinnamon fern (FACW) sensitive fern (FACW) • northern arrow-wood (FACW-). • blueberry (FACW-) • swamp azalea (FAC)' • red maple (FAC NOTE: listed in the Act) • black cherry (FACU) 2. Where a predominance of wetland vegetation is FACW-or wetter and there is an abrupt slope between upland and wetland plant communities a delineation on vegetation alone is presumed accurate. As a result wetland. flags 204 through 211 have been re-located in field and re-labeled with,,. an "R designation. 3. A detailed delineation incorporating "8VW Field Data Forms" may facilitate this review. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSER VAnON 688-9330 HEALTH 688-95411 PLANNING 688-9535 Please submit a revised plan and supporting documentation to this office prior to the 10/16/96 public hearing. As always, if you have any questions or concerns please do not hesitate to contact me. Thanking you in advance. Sincerely, Michael D. Howard, Conservation Administrator' encl. cc: NACC DEP-HERO file 01> -77, 20 r , 2 © cON TFO 6 _ _ A1VD HA YBALE-S) r �--- CQ ca i NO ZONE- -77 {{ 1ill L 0 X44 A U4 ='2aFi 53 I -._- ,� REA ,.,, / # t 25. .98' J _CSI ES.TN1} y y S 16 11 49 C -- t z PROP WA T- t F Town of North Andover NORTIy OFFICE OF 3?O6 ttao 1�.pOc COMMUNITY DEVELOPMENT AND SERVICES . 146 Main Street • i " North Andover,Massachusetts 01845 WILLIAM J.SCOTT SSAc►+uSE Director October 28, 1996 Mr. Steven Stapinski Merrimack Engineering Services, Inc. 66 Park Street Andover, MA 01810 RE: NOTICE OF INTENT - Chestnut Street c@ Wesley Street. Dear Steve: In response to the above referenced permit application, this Department conducted an inspection of Lot #108 on October Stn 9th and 28"'for the purposes of verifying the proposed delineation of on-site wetland resource areas; Steve D'Urso accompanied me on October 9, 1996. The delineation as shown on the plan entitled "Site Development Plan of Land" dated 10/1/96 does not accurately depict existing conditions. I offer the following comments: 1. Identified on-site wetland vegetation included ... • green ash (FACW) • cinnamon fern (FACW) • royal fern (OBL) • sensitive fern (FACW) • northern arrow-wood (FACW-) • blueberry (FACW-) • swamp azalea (OBL) • red maple (FAC NOTE: listed in the Act) • black cherry (FACU) 2. Two (2) soil borings were performed on-site. The first boring was in the vicinity of flag #205 and the second near#210. Soil Borina A A HORIZON 0-8" FSL 10YR 2/2 No Redox Features B HORIZON 8 18" FSL 7.5YR 4/6 <5% Redox Features BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Soil Boring B A HORIZON 0-9" FSL 10YR 2/2 <5% Redox Features B HORIZION 9- 18" FSL 7.5YR 4/6<5% Redox Features 3. Where a predominance of wetland vegetation is FACW- or wetter and there is an abrupt slope between upland and wetland plant communities a delineation on vegetation alone is presumed accurate. As a result wetland flags 205, 206, 207, 210 and 211 have been re-located in the field and re- labeled with an "R" designation. Please submit a revised plan to this office prior to the 11/6/96 public hearing. As always, if you have any questions or concerns please do not hesitate to contact me. Thanking you in advance. Sincerely, /0100A d, Michael D. Howa , Conservation Administrator encl. cc: NACC DEP-NERD file Lot 108 Chestnut St/Wesley St Issued 3'f IC r_ �i C ! _ [cnser/aGCn :SS:Cn i Signature(s) �17'&"AA XA T; Order must be signed by a majority of the Conservation Corrmtssicn. On tn.is 4th day of December IC 96 befcra me perscnallye red Joseph W. Lynch, Jr. to me '<ncwn td be the aGN-� ; erscr described in and whe executed the faregicing instrument and acknowledged that he;she =xecuted the rare as his/her fres act and deed. Notary Public Niy commissian exYir_s ilia aacticaltt.the owner, any'y rsan aggrieved 5t'this Qraer,any owner at land abuftinq.the lana u;?cn which the araacsec work is to tse acne.cr any ten restcents at the city or town in wnictt such cane is iecated.are rteraay nCc"' d et:netr rght to reauest the 7eaarrment of Snvirarsmental Protection to issue a Sucerseding Order, araviding the request is rttacs cy carntied mail or nand aaiivery to the Oeaarment. ced in ata CMR ia.=-,I.''rithin ten cat's from the cafe at issuance at this with the aparconate tiling!ea dna Fes Transmtctal Fdrrtt as crevi t]etermtnanen.A ccpy of the request snali at the same itme oe sent try certified mail cc hand aeltverf to the Ccnservauan Commission anc the acclicant. If you Wish to appeal this decision under the Town. Bylaw, a complaint must be Piled in Superior Courc. 'I A RECEIPT FROM THE REGISTRY OF DEEDS NST BE SUBMITTED TO THIS OFFICE SHOWING THAT THIS ORDER OF CONDITIONS HAS SEEN RECORDED AT THE NORTH ESSEX REGISTRY OF DEEDS. Oetacn on Batted line and submit to the Nortfl ARdOver Con er�1 � mrn artar to cammerterment at•.ark. 1treat `ro. a4over. . ..`- OI845 ................_....__...............................................:...� din .........---..�_.. ........................... ......... North Andover Conservation Commission I s Please ae acv:sea:nal the Crcer at Conettions tar the crciect a 242-832 Deeds Essex North District enc e Vumcer 'las ween recarced at me Q�ls.:r of nas peen notea in the ::na:n at tine et the attec:ea crceery n acccrcance wlin General Ccnc:ncr,3 an t4 tf reccrcec lane. me numeer wntci icertches"is =a accrn s wn:c't It req:S:ereC'anC. ;ne CCCum?nI numaer �Cent:LeS ;'�9 �+ns-soon �s