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Home My WebLink AboutMiscellaneous - 0 NORTH MAIN STREET 4/30/2018 (2)t 4 Massachusetts Department of Environmental Protection Important: When filling out forms on the computer, use only the tab key to move your cursor - do not use the return key. _Q azx Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1357 Massachusettsuu Wetlancls Pr tecftion Acct M.G.L. c. 131, §40 r No�'i�n J.�„da✓e r A �Q.'[6dvtdS r`O A -0e) By ka Ci ^v+e' i N c --J, 0� tJeri'�► �/'�nJe l .fr A. General Information From: North Andover 1. Conservation Commission 2. This issuance is for (check one): 3. To: Applicant: a. First Name 21 Main Street d. Mailing Address North Andover e. city/Town ® Order of Conditions ❑ Amended Order of Conditions b. Last Name 4. Property Owner (if different from applicant): a. First Name 40 Court Street d. Mailing Address North Andover e. Uty/Town 5. Project Location: O North Main Street b. Last Name Downer Borthers Lanscaping c. Company MA. f. State Landers Nominee Trust c. Company MA. f. State North Andover 01845 g. Zip Code 01845 g. Zip Code a. Street Address b. City/Town Map 28 Parcel 22 c. Assessors Map/Plat Number d. Parcel/Lot Number Latitude and Longitude, if known (note: electronic filers will click for GIS locator): e. Latitude f. Longitude 6. Property recorded at the Registry of Deeds for (attach additional information if more than one parcel): Essex North a. County b. Certificate (if registered land) 7618 51 c. Book 4ublHe 5/12/06 �d 7. Dates: a. Date Notice of Intent Filed b. Dat ring Closed c. Date of ssuance 8. Final Approved Plans and Other Documents (attach additional plan or document references as needed): Site Plan a. Pian i me New England EngJneering Services, Inc b. Prepargd By 9/.2I ;6 d. Final Revision Date T. Haaitional Plan or Document Title g. Total WPA Fee Paid: $ 1575.00 a. Total Fee Paid Benjamin C. Osgood, P. E. c. Signed and Stamped by 1"=40' e. Scale g. Date $ 775.00 $ 800.00 b. State Fee Paid c. City/Town Fee Paid wpaform5.doc • rev. 3/1/05 Page 1 of 9 e r 0 1 p � G- ` Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlan s Protection Act M.G.L. c. 1.31, §40 f aw N04, A,dovWAAS ?r-4rr_4;0n SVIAV Cl,. er 173 B. Findings 1. Findings pursuant to the Massachusetts Wetlands Protection Act: DEP File Number: 242-1357 of Ne f t *Jo ve.- 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: j 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 he 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. 3/1/05 Page 2 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 — Order of Conditions 242-1357 20. ❑ Land Subject to Coastal Storm Flowage a. square feet b. square feet wpaform5.doc • rev. 3/1/05 Page 3 of 9 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 s � A V%AVV Iywe*AnAs iTrti�t ,`o'n &I� C6,p4r•- rnn CJ e- •f N, ,4Mdo-c-,- B. Findings (cont.) Resource Area Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 5. ❑ 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) 9. ❑ Designated Port Areas Indicate size under Land Under the Ocean, below 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. Uy 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 20. ❑ Land Subject to Coastal Storm Flowage a. square feet b. square feet wpaform5.doc • rev. 3/1/05 Page 3 of 9 L11 'D /1- A Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection W&+"rTiV4eCk"TY1W CA C. General Condition Under (only applicable to approved projects) DEP File Number: 242-1357 M.G.L. c. 131, §40 v NvA Aml ve-r r n9 oo1` pf- N a iA 4.jjo,,r assachusetts Wetlands Protection Act 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 242-1357 wpaform5.doc • rev. 3/1/05 Page 4 of 9 'Der) .l LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 s W GJl"s ?ro4c.4; oC go4r ht cod t- t DEP File Number: 242-1357 C. General Conditions Under Mas achusetts Wetlands Protection Act 10. Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before DEP. 11. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A) to the Conservation Commission. 12. The work shall conform to the plans and special conditions referenced in this order. 13. Any change to the plans identified in Condition #12 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent. 14. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. 15. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person performing work conditioned by this Order. 16. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Conservation Commission. 17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. 18. All work associated with this Order is required to comply with the Massachusetts Stormwater Policy Standards. Special Conditions: If you need more space for additional conditions, select box to attach a text document ED wp8form5.&C • rev. 3/1/05 Page 5 of 9 -Dw r Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 11, §40's kes-A �- (�c.+) �� fro to I cln fear t-79. co,IL of DEP File Number: 242-1357 D. Findings Under Municipal Wetlands ylaw or Ordinance 1. Is a municipal wetlands bylaw or ordinance applicable? ® Yes ❑ No 2. The North Andover hereby finds (check one that applies): Conservation Commission 3. ❑ that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw specifically: 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 See attached conditions, select box to attach a text document wpaforM5.doc • rev. 3/1/05 Page 6 of 9 TeA C� Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands SEP File Number: WPA Form 5 - Order of Conditions 242-1357 Mass chusetts Wetlands Protectir Act M.G.L. 131, §40 -1 rl 14 Vim- 0&-H g fro , 6 h ftitJ �� OF oc z Dr N An Jovt,— E. Issuance This Order is valid for three years, unless otherwise specified as a special if hih6 condition pursuant to General Conditions #4, from the date of issuance. 1. Date of Issuaice Please indicate the number of members who will sign this form: This Order must be signed by a majority of the Conservation Commission. 2. Number of Signers The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same tim to the appropdatePppartment of Environmental Protection Regio I Office, if not filing electrcUcally, a d ref rorp owner, if different from applicant. n Signatures: Notary Acknowledgement Commonwealth of Massachusetts County of On this Day �i 4 of Before me, the undersigned Notary Public, personally appeared Essex North Good Month Year S N'1�1.5 &Z - 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 A. DONNA M. WEDGE NOTAW PUBLIC commoi &ATH Of MMUCHUSEM MY Camm. E*= Aug. T. 2009 City/Town Place notary seal and/or any stamp above This Order is issued to the applicant as follows: ❑ by hand delivery on Date Conservation Commission opwa- X. 1""'Iee4e Signature of Notary Public Printed Name f Not ry Public .-l,%q My Commission r/xpires (Date) L/ by certified mail, return receipt requested, on I,& I Lo (o Date wpaform5.doc • rev. 3/1/05 Page 7 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 F. Appeals DEP File Number: 242-1357 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 Ll'Massachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions 242-1357 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: Project Location Has been recorded at the Registry of Deeds of: County for: Property Owner 242-1357 DEP File Number Book Page 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 DEP FILE # 242-1357 FINDINGS OF FACT I. OVERVIEW 0 North Main Street Downer Brothers Landscaping (the "Applicant") filed a Notice of Intent (NOI) with the North Andover Conservation Commission (NACC) on May 12, 2006 requesting an Order of Conditions approving the construction of a commercial building and associated site work to include grading, stormwater management, paving, and appurtenances within the 100 -foot Buffer Zone to a Bordering Vegetated (BVW)/Bank, the 200' Riverfront Area and Bordering Land Subject to Flooding (BLSF) associated with the Merrimack River. These resources are subject to protection under the Massachusetts Wetland Protection Act (MGL c.131 s.40) (the "Act") and the North Andover Wetland Protection ByLaw (c.178 of the Code of North Andover) (the "Bylaw"). A legal notice was published accordingly in the Lazvrence Eagle Tribune and a public hearing was scheduled for May 24, 2006 (21 days from the date of filing). On May 24, 2006, the NACC opened the public hearing. Subsequent public hearings were held or were continued on numerous occasions at the request of the applicant. A chronological account of the public meetings held and the continuances granted are documented below: • At the May 26, 2006 public meeting, the NACC granted the applicant's continuance request to the meeting of June 14, 2006 after testimony was heard. • At the June 14, 2006 public meeting, the NACC granted the applicant's continuance request to the meeting of July 12, 2006. No new testimony was heard. • At the July 12, 2006 public meeting, the NACC granted the applicant's continuance request to the meeting of August 23, 2006. No new testimony was heard. • At the August 23, 2006 public meeting, the NACC granted the applicant's continuance request to the meeting of September 13, 2006. No new testimony was heard. The NACC had requested the applicant or the applicant's representative, New England Engineering Services, Inc (NEES), to be present at the September 1301 meeting even if a continuance was again requested. • At the September 13, 2006 public meeting, neither the applicant nor a representative was present despite the fact that the Administrator, Alison McKay, and the Administrative Assistant, Donna Wedge, spoke directly to NEES in this regard and were told that someone would be present, although a continuance would be requested. The Commission had some discussion as to how they wished to proceed, whether to grant the applicant's continuance request or whether to close the public hearing and issue a decision. After viewing the meeting on local cable access television, the applicant appeared at the meeting. The applicant stated that he was told that his representative would be present and was not sure why they were not. The Commission reiterated their great concern of repeated continuances and lack of information submitted. They had offered the applicant the option to withdraw without prejudice and to refile when the application was more complete.. The applicant had requested a continuance to the meeting of September 27, 2006. The Commission unanimously granted this continuance. No new testimony was heard. C:\Swap/00C/242-1357,0 N. Main- Denial I NACC 11/30/2006 DEP FILE # 242-1357 0 North Main Street • At the September 27, 2006 public meeting, NEES provided new information and new testimony was heard (discussed hereafter). After hearing testimony and participating in discussion, the Commission unanimously voted to continue the public meeting to the meeting of October 11, 2006. At the October 11, 2006 public meeting, NEES was present to discuss the project since the last meeting and update the Commission. Ms. McKay indicated that she met with NEES to discuss the outstanding administrative issues/concerns (discussed hereafter). NESS provided no new information since the September 27, 2006 public meeting. The Commission unanimously voted to continue the public hearing to the meeting of November 15, 2006. At the November 15, 2006 public meeting, neither the applicant nor NEES were present, however NEES had submitted a continuance request letter to the meeting of January 24, 2007. The letter explained that the reason for the lengthy continuance was to allow for a request for a variance from the Zoning Board of Appeals to continue the existing industrial use on the undersized lot. After some discussion, a motion was made to grant this continuance. The motion was seconded. No other motion was made, therefore the motion failed. A motion was made to close and issue a decision. The motion was seconded. The vote was unanimous. • At the November 29, 2006 public meeting, the Commission rendered a DENIAL based upon the following facts and findings: The project is proposed on a previously developed 43,561 s.f. commercially zoned lot created prior to August 1, 1996. As stated previously, the lot is located entirely within the 200' Riverfront area and the 100 -year floodplain (FEMA FIRM elevation 33 feet) to the. Merrimack River. Coincidently, the project was filed the Friday prior to the May 14, 2006 flood event. The entire site was observed to be under water with waters rising to almost, if not, the exact location of the determined 100 -year flood elevation (later confirmed and stated by the project's Engineer during a public meeting). Work was also proposed within associated BVW/Bank buffer zone resource areas. Existing site conditions included a combination of grass, gravel, concrete, pavement and slab area (no foundation), on top of which the previous commercial building was situated (which had since collapsed and was no longer standing). The site was currently used as a landscaping/storage/junk yard area and had been used as such over the years (as such, the NACC had mandated the issuance of an Enforcement Order subsequent to the issuance of this decision). Proposed work on the site would consist of cleaning up the site (i.e. - removal of debris from the previously demolished building, removal of stockpiled landscaping materials, removal of other materials/scrap vehicles, etc.) and the redevelopment of the site with the construction of a new 38' x 52' (1,976 s.f.) commercial building and associated site work The project site is located entirely within the 200 -foot riverfront area. The site as it exists today is disturbed and currently used as a landscaper's yard. Stormwater currently flows unabated from the site overland towards and in to the Merrimack River. Proposed work would improve existing site conditions and therefore the applicant asserts that the proposed project would be allowed under the Redevelop provision of the Riverfront regulations (310 CMR 10.58 (5) & (6)). An alternative 'analysis statement for work within the Riverfront resource area was also included in the NOI application and states that "construction is not feasible outside of the protection area. The site has been used as a contractor's storage yard and previously contained a building with a larger footprint than what was proposed." I CASwap/000242-1357,0 N. Main- Denial 2 NACC 11/30/2006 DEP FILE # 242-1357 0 North Main Street Further, the applicant asserts in the NOI application that the proposed project would not adversely affect the riverfront area and would improve the ability of the buffer zone to protect the interests of the Riverfront Protection Act. The NOI application additionally provides and asserts that the project would not adversely impact additional protected interests including the protection of public and private water supply, the protection of groundwater, flood control, the prevention of pollution, the protection of wildlife habitat, the protection of fisheries, and the protection of land containing shellfish. I The NOI application had provided flood plain calculations and a drainage analysis of the site. Because the site was located entirely within the 100 -year flood elevation and would Irequire approximately 1,846 cubic feet of flood plain filling, the applicant had proposed and provided 1,863 cubic feet of compensatory flood storage on the site in accordance with the flood standards of 1:1 compensatory flood storage pursuant to 310 CMR 10.57 (4) (a) 1. The applicant also proposed flood proofing the building so as to construct it on pilings. The NACC had neither refuted nor confirmed whether such compensatory flood storage provided and the means and methods to which it was provided met all performance standards pursuant to 310 CMR 10.57 (4). The Commission had raised and had continually raised a concern as to whether the lot was even buildable under the local zoning bylaw. This concern was raised at the initial public meeting of May 24, 2006 at each subsequent public hearing held (three (3) of which were not continued within six (6) months). An abutter's attorney, Dom Scalise, also raised this question at the initial public meeting of May 24, 2006 asserting that it was his recollection that the previous Inspector of Buildings/ Zoning Enforcement Officer, Robert Nicetta, had indicated verbally that the lot was not buildable, although he had nothing in writing to confirm this opinion. Mr. Scalise asked if zoning variances would be required. After hearing all initial testimony, Scott Masse, NACC Chairman, highly recommended that the applicant seek an opinion from the local Inspector of Buildings, Gerald Brown, for a determination of whether or not the lot was buildable under the zoning bylaw and regulations and what zoning variances, if any, would be required. An account of the meeting held on September 13, 2006 is described as part of the chronological account of the public meetings stated formerly. At the meeting of September 27, 2006, Ben Osgood, Jr. of NEES presented a redesign of the project including, but not limited to, the relocation of the building outside of the Greater Lawrence Sanitary District (GLSD) easement, which had been raised at the May 24thpublic meeting. At this meeting, Ms. McKay recommended that the Commission vote to set up escrow for a third party consultant review of the drainage analysis. A motion to set up escrow for a third party drainage review in the amount of $5000 was made by Sean McDonough and seconded by Deborah Feltovic. Mr. Osgood refuted that the escrow amount was too high. He offered no response and associated justification to another amount. The Commission discussed holding off on setting up escrow to determine a more reasonable amount. The Commission withdrew the motion. A motion to continue to the meeting of October 11, 2006 was made by Ms. Feltovic and seconded by Jack Mabon. The vote was unanimous. At the October 11thmeeting, Andy Lambert of NEES and attorney Scalise. Ms. McKay stated that a meeting was held with herself and NEES on October 6th to discuss the project and iron out some of the administrative concerns she had had. Mr. Scalise was also present at the October 6thmeeting. Ms. McKay stated that the concern as to whether the lot was actually buildable or not and what, if any, zoning variances would be required was still outstanding. NEES indicated at the October 6th meeting that they had not yet spoken to the Inspector of Buildings. Ms. McKay reiterated at that meeting that this should be looked into as previously requested by the Commission. At the October C:\5wap/000242-1357,0 N. Main- Denial 3 NACC 11/30/2006 DEP FILE # 242-1357 0 North Main Street 11th meeting, the NACC had received a letter written by Mr. Osgood, Jr. (dated October 11, 2006) in regards to the Commissions initial request of if the lot met zoning requirements. This letter stated the following: "This office has researched the existence of the lot and has determined that it was created between 1948 and 1960. The IS zoning district was developed in the late 1950's. If the lot was created prior to the creation of the zoning bylaw than a variance for the use of the lot is not needed, however if the lot was created after the adoption of the zoning bylaw a variance to use the lot will be required. This office will need more time to research the title for the property and determine the exact date of creation of the lot to determine if a variance is required. More time will be needed to accomplish this research." The letter also requested the Commissions authorization for posting an escrow for a review of the submittal by their outside consultant as well as a continuance of the public hearing for one month. Commission member Joseph Lynch recommended waiting on setting up an escrow account for outside review until a determination was made on the lot and whether it was buildable or not. Mr. McDonough agreed stating that the projects should have been filed with the zoning board first before it was filed with the Commission and felt that the NACC could deny the project on that basis. A motion to continue to the meeting of November 15, 2006 was made by Mr. Mabon. Ms. Feltovic seconded. The vote was unanimous. At the November 15, 2006 meeting, neither the applicant nor a representative was present. A continuance letter was submitted dated November 14, 2006 requesting a continuance to the meeting of January 14, 2007. The letter states that the lengthy continuance is being requested to allow NEES "to request a variance from the Board of appeals to continue the existing industrial use on an undersized lot." Chairman Masse stated that he wash inclined to grant the continuance, as the applicant had known for six (6) months that this was a concern. Ms. Feltovic motioned to grant the continuance to the meeting of January 24, 2007. Mr. Mabon seconded. No other motion was made. The motion failed. Mr. Mabon motioned to close and issue a decision within 21 days. Ms. Feltovic seconded. Unanimous. At the November 15, 2006 public hearing, the NACC voted to close the public hearing and issue a decision within 21 days (VOTE 4-0-0). A special meeting was held by the NACC on November 29, 2006 in order to render this decision within the 21 -day time requirement set forth by the Act and Bylaw. II. Decision - DENIAL After careful review of the information presented by the applicant at public hearings, at a special meeting of November 29, 2006, the NACC unanimously voted to DENY the applicant's request to construct a commercial building and associated site work to include grading, stormwater management, paving, and appurtenances within the 100 -foot Buffer Zone to a Bordering Vegetated (BVW)/Bank, the 200' Riverfront Area and Bordering Land Subject to Flooding (BLSF) associated with the Merrimack River as shown on the site plans entitled "Site Plan" consisting of sheets 1-4, dated August 22, 2006, revised September 21, 2006. The project has been DENIED by the NACC based upon the following reasons: CASwap/00C/242-1357,0 N. Main- Denial 4 NACC 11/30/2006 DEP FILE # 242-1357 0 North Main Street North Andover Wetlands Protection Bylaw (chapter 178 code of North Andover) -178.5 C "The applicant shall have the burden of proving by preponderance of credible evidence that the activity proposed in the Notice of Intent will not cause adverse impacts to any of the interests and values sought to be protected by this Bylaw. Failure to provide to the Commission adequate evidence for it to determine that the proposed activity does not cause adverse impacts shall be significant cause for the Commission to deny permission or to grant such permission...." North Andover Wetlands Protection Bylaw (chapter 178 code of North Andover) - 178.4 - Applications to Perform Work and Information Required "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 Commission regulations. No such application shall be accepted as complete before all permits, variances, and approvals required by the Bylaws of the Town with respect to the proposed activity, at the time of such Notice, have been applied for or obtained. Such application shall also include any information submitted in connection with such permits, variances, and approvals that is necessary to describe the effect of the proposed activity on the resource areas". North Andover Wetlands Protection Regulations - Section 4.3.1 "Submission of incomplete or inadequate information or a failure to meet the burden of proof may result in extensive delays and continuances in the review and approval procedure. Failure to supply adequate and credible documentation describing the impact of the project on resource areas may result in issuance of a decision prohibiting the work". NACC Waiver Standard: "The project, or its natural and consequential effects, will not have any adverse effects upon any of the interests protected by the Bylaw. It shall be the responsibility of the applicant to provide the Commission with any information that the Commission may request to enable the Commission to ascertain such adverse effects. The failure of the applicant to furnish any information that has been so requested shall result in the denial of a request for a waiver pursuant to this subsection". The Applicant did not satisfy the Commission's repeated requests to submit all information pertaining to the property during a reasonable time period. The Commission found that the repeated continuances requested by the applicant were unnecessary when concerns were raised on numerous occasions starting from the initial public hearing. The information submitted by the applicant was not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act and the North Andover Wetlands Protection Bylaw. While the NACC had a comprehensive understanding of the proposed project as _presented, compliance with performance standards for each protected interest pursuant to the Bylaw and WPA and associated regulations could not be thoroughly evaluated/determined without additional information. In this way, the applicant failed to overcome the burden of proof (310 CMR 10.03 (1)) and (178.5 c.) and demonstrate to the Commission that the proposed work would not have any adverse effects upon the interests identified in the WPA and the Bylaw. C:\Swap/OOC/242-1357,0 N. Main- Denial 5 NACC 11/30/2006 DEP FILE # 242-1357 0 North Main Street Therefore, no work shall be performed on this project. The applicant has failed to demonstrate compliance with the North Andover Wetland Protection ByLaw and the Massachusetts Wetlands Protection Act pursuant to these provisions. III. Record Documents: Notice of Intent filed by: Downer Brothers Landscaping (Applicant) 21 Main Street North Andover, MA 01845 Received DATE May 12, 2006. Plans prepared by: New England Engineering Services, Inc. 1600 Osgood Street Building 20, Suite 2-64 North Andover, MA 01845 Entitled "Site Plan", consisting of sheets 1 through 4. DATED: August 22, 2006, revised 9/21/06. Signed & Stamped by Benjamin C. Osgood, Jr., P.E. Other Record Documents: Drainage Report Prepared by New England Engineering Services, Inc. Dated May 10, 2006; Operation and Maintenance Plan (included in NOI) Dated May 10, 2006; Division of Fisheries & Wildlife Natural Heritage & Endangered Species Program (NHESP) letter dated June 13, 2006; Continuance letters prepared by New England Engineering dated June 14, 2006, June 27, 2006, July 11, 2006, August 21, 2006, September 13, 2006, October 11, 2006, & November 14, 2006. �,:\awapivvUit4[-is.)7,u N. Main- Denial 6 NACC 11/30/2006