HomeMy WebLinkAboutMiscellaneous - 18 Willow StreetJ
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CONSERVATION DEPARTMENT
Community Development Division
November 6, 2014
RE: RELEASE OF ENFORCEMENT ORDER -18 Willow Street, North Andover,
MA
To Whom it May Concern:
At the November 5, 2014 public meeting, the North Andover Conservation Commission
(NACC) voted to release the Enforcement Order issued to Paul Mscisz for violations of
the Massachusetts Wetlands Protection Act and the North Andover Wetlands
Protection Bylaw at 18 Willow Street, North Andover, MA. The Enforcement Order was
issued on May 14, 1993 and recorded on May 19, 1993 at the North District Essex
Registry of Deeds (Bk 3732 Pg 193).
A file review shows that the violation was remediated as part of an Order of Conditions
issued under DEP File #242-676 (issued on October 20,1993). The project, as approved
under DEP File #242-676, received a Certificate of Compliance (COC) on December 2,
1998. The Certificate was recorded on September 30, 1999 (Bk 5566 Pg 130). The
recording of the COC resolved all violations cited in the enforcement order (Bk 3732 Pg
193). Copies of the applicable documents are attached. Please let me know if you
require anything further.
Respectfully,
NORTH ANDOVER CON ERVATION DEPARTMENT
ann
Nv V
J 'ferA. ughes
onservation Administrator
1600 Osgood Street, North Andover, Massachusetts 01845
Phone 978.688.9330 Fox 978.688.9542 Web www.towaotnorthandovei.com
LINIT O) STATES POSTAL SERVICE
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Official Business
PENALTY FOR PRIVATE'S
USE TO AVOID PAYMENT -
3 '
OF POTAGE, $300
Print your name, address and ZIP Code here
R.Doucette c/o Town Hall
120 Main Street
North Andover, MA 01845
[fi!!!!!!
^' SENDER:
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32 •Complete items Land/or 2 for additional services. I also wish to receive the
0 • Complete items 3, and 4a & b. following services (for an extra V
• Print your name and address on the reverse of this form so that we can fee):
m return this card to you.
m • Attach this form to the front of the mailpiece, or on the back if space 1. ❑ Addressee's Address to
does not permit.
d • Write "Return Receipt Requested" on the mailpiece below the article number.
t 2. Restricted Delivery m
�•• • The Return Receipt will show to whom the article was delivered and the date
C delivered. Consult postmaster for fee. m
-0 3. Article Addressed to: 4a. Article Number
m P 406 914 687
Paul Mscisz 4b. Service Type
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0 18 Willow Stret•` ❑ Registered ❑ Insured
North Andover, •1,45 Certified ❑ COD E
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❑ Express Mail ❑ Return Receipt for 5
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7. Date of Delivery w
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, December 1991 * U.S.G.P.O.:1992-307-530 DOMESTIC RETURN RECEIPT
S OF
r NOwTiy ,h
KAREN H.P. NELSON r
Director a Town of
m
NORTH ANDOVER
BUILDING ��'=:::;a • .a
CONSERVATION ss�°" g`s DIVISION OF
PLANNING PLANNING & COMMUNITY DEVELOPMENT
May 14, 1993
Mr. Paul E. Mscisz
18 Willow Street
North Andover MA 01845
Dear Mr. Mscisz:
120 Main Street, 01845
(508)682-6483
Enclosed is another Enforcement Order for a violation of the
State Wetlands Protection Act and the North Andover Wetlands
Protection Bylaw on your property. You have been informed on
several occasions that any filling, grading or other alteration of
land in the rear of your property requires a permit from the
Conservation Commission. You have ignored our past direction and
we are now forced to take additional action.
This Enforcement Order has been recorded at the Registry of
Deeds and will act as a lien on your deed. This will create
difficulties in selling or refinancing the property. This matter
will be turned over to the Department of Environmental Protection's
enforcement personnel as well. The Conservation Commission will
discuss this matter at the Senior Center at 7:00pm on May 19th. I
urge you to attend this meeting.
Respectfully,
T
Richard P. Doucette,
Conservation Administrator
Town of North Andover MA
310 CMR 10.99
Form 9
:`'
.. i:. 1
--777-71 _
Commonwealth
+-+ _ of Massachusetts
From
To
DEP File No. I None
(Io oe provided by DEP)
City told„ NorLll Andover, HA
Aoolicanl
Mscisz
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, §40
AND UNDER THE TOWN OF NORTH ANDOVER BYLAW, CHAPTER 3, SECTION 3.5
North Andover Conservation Commission
Paul Mscisz
Date of Issuance May 14 1993
Property lot/parcel number. address 18 Willow St., North Andover, MA
Extent and type of activity:
Issuing Authority
The filling of land and stockpiling of soil immediately adjacent, and possibly -in,
a bordering vegetated wetland.
The North Andover Conservation Commission has determined that the activity described
above is in violation of the Wetlands Protection Act. G.L. c. 131, §40, and the Regulations promulgated pur-
suant thereto 310 CMR 10.00, because:
ZxXSaid activity has been/is being conducted without a valid Order of Conditions.
❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to
. dated
File number 242- , Condition number(s)
txXOther (specify)
The landowner was informed on previous occasions that the area in question is
a wetland and to stop work. Letters, Enforcement Orders and verbal direction
from the Conservation Commission have not resulted in compliance.
Now new filling and stockpiling has begun on the property.
The
North Andover Conservation Commisslon
hereby orders the following:
�gThe property owner, his agents, permittees and all others shall immediately cease and desist from further
activity affecting the wetland portion of this property.
aXWetland alterations resulting from said activity shall be corrected and the site returned to its original con-
dition.
fel
Issued by North Andover Conservation Cornrnrssior,
XikX Completed application forms and plans as required ov the Act and Regulations shall be Ided v: ith the
North Andover Conservation Comrnissigllor before _ (date)
and no further work shall be performed until a public nearing nas been held and an Order of Conditions
has been issued to regulate said work. Application forms are available at. N11CC 017 f ice
120 PaJn St., ('Town Ila 11)
XIX The property owner shall lake every reasonable sleo to prevent further violations of the act No. Andover,MA
XX3X Other (specify) Tel. #682-6483 01845
This matter will be discussed at the May 19, 1993 Conservation Commission meeting.
The Commission will discuss the potential for legal action at that time. You are
hereby directed to attend that meeting at 7:00pm in the Senior Center adjacent to
Town Hall.
Failure to comply with this Order may constitute grounds for legal action. 10assachusetls General Laves Chan.
ter 131. Section 40 provides:
Whoever violates any provision of this section shall be punished by a fine of riot r1lote
than twenty-five thousand dollars or by imprisonment for riot more than two years or both
Each day or portion thereof of continuing violation shall constitute a separate ollense
Questions regarding this Enforcement Order should be directed to u; cliard na„cette__
Issued by North Andover Conservat:
Signatures,
(Administrator)
n Commission
9.25
(S10na1Ure of dE1,1nverr t, r'101,
or certifiec mail nUmbor)
RECE
FCR:
HAY 19 3 07 P '93
NORTH DISTRICT ESSEX REGISTI:Y OF' DEED
LAWY,ENCE MA 01,940
WIN
REGISTER OF DEEDS
T 7v
310 CMR 10-99
Form 5
r
477
Commonwealth
of Massachusetts
Vaka �
#18 Willow Street
Order of Conditions
DEPFUNo.242-676
(To a, orwop vy DEP)
GH 1'owe North Andover
Aooucant
Paul T. Mscisz
Massachusetts Wetlands Protection Act
O.L. c. 131, §40
and under the Town of North Andover's Wetlands Bylaw, Chapter 178
From NORTH ANDOVER CONSERVATION COMMISSTO
me
To Paul T Sa
(Name of Applicant) (Name of property ownerl
18 Willow Street
L a Mn 01845 Address
Adcress 1`oL'-"
This Order is issued and delivered as follows:
(date)
❑ by hand delivery to aeciicant or representative on
��9��i (date)
(! by certified mail. return receipt reoueste: on
This project is located at
418 Willow Street
The property is recorded at trie Regtstryof Deeds North Essex
ISCO 3120 Page 83
Certificate (it re_istered)
The Notice of intent for this oroject was fileC On
October 12 1993 (Cate!
The public nearing was closed on
October 20, 1993 (Cate)
Findings
NACC has reviewed the above -referenced Nonce of
The
Intent anc =tans anc nas Hera a cuciic.heanng on the c: Cj:.t. Based on the inform aeon avatiapfe to the
NACC has oetermined that
NACC at this time, the
the area on wntch the proposed work is to be cone is significant to the following interests in acccroanct: with
the Presumctions of Sionificarsce set forth in the re;ula:ions `.or each Area Subject to Protection Under the
Act heck zs aperopnatel: Ch. 178 � Prevention of erosion and sedimentation
Flood controi L� Land containing shellfish
Pubiic water supciy (j Fisheries
Private water supply `i Storm damage prevention
. �
Ground water supply Prevention of poituuon (� Proteon of wildlife hardO%
Ch.17 ecreat on
Ch. 178 ® Wildlife Slate Share > t 9 5�
Total Miing Fee Submittedt c
Citvi town Share W �7 50
(�� fee in excess c...c—a,
c City(Town Portion c State Portion S
Total Refund Due. _ (,/z total) ('/z total)
"ACC 10/7/92
Page 3
Lots 24 25 26 311 32A Vest Wa
Al Shaboo presented - Notice
plans for the
Lot 24: R.Doucette single family homes.
setbacks stated filling of land to meet
is no otllowe stated this t Septic system
he No. Andover Wetland
R.Doucette his lot was once under Regs'
subdivision stated ownership information Ownership.
not was aPProved. rmation is needed
is on Vest `butters, since
stated this Way, it is Is
Daley stated that the
wetland in fact on Brid es lot 24
Abutter Mr. Drawbridge
may affect g Lane.
Mr. Bernat g questioned runoff on his pros also
the hydrological
the impact on Ydrologic impacts, petty,
h
data ydrological anal s' the trees. Abutter
is not included,is is incomplete Abutter stated
R•Milliard to continue Motion and the Post development
to 10/21, by p•Tariot and secondeament
ot 25: Filling is by
Hydrologic calculations no closer that 70.
Motion by P.Tariot also incomplete. from the wetlands.
and seconded by K.Foley to continue to
Lot 26: Motion b
and issue y R.Milliard 10/21•
a decision within and seconded b
21 days. Y G•Reich to close
Lot 31A: This
system. This project requires
and runoff is generally filling wetlands
seconded b calculations y not allowed. Ownershipfor Septic
Y R.Milliard to continue ed. Motion y .Tar° information
rdre
Lot 32A: to 10/21. b and
651. Work is no closer
Motion by P.Tno c than 351. No -construction
issue a decision within and seconded b
21 days. Y R.Milliard Zone is
to close and
NEW BUSINESS
18 Willow Street
Motion by R,Millia rd scussion of violation
Enforcement Order, and seconded
by P.Tariot to issue an
Motion btton Lane 242-207
Y R.Mansour and secondedartial Com fiance
Compliance. Vote 5-1-0p,Z'ariotbagainst. R;Milliard a
to issue Partial
Lots 1 & 2 Holl
Motion by Rid a �2�4�34Partial Comiancester andedP b ial Com
fiance
Vote 5-1-0 y R•Milliard to
p•Tariot against, issue a
I
4
ALAN L. GRENIER
MICHAEL P. McCARRON
JAMES M. NORRIS
JOHN RICHARD HUCKSAM, JR.
STEPHEN D. GUSCHOV
GRENIER & MCCARRON
ATTORNEYS AT LAW
100 HATHORNE OFFICE PARK
491 MAPLE STREET
DANVERS, MA 01923
(508) 777-7000
TELECOPIER (508) 7776803
CERTIFIED MAIL
RETURN RECEIPT REQUESTED and
FIRST-CLASS MAIL '
Ms. Winifred Gallant
191 Andover By -Pass
North Andover, Massachusetts 01845
Dear Ms. Gallant:
OF COUNSEL
JEFFREY A. SCHREIBER
JAMES J. MEEHAN
October 13, 1993
RE: Notice of Public Hearing
Notice of Intent
Paul T. Mscisz
18 Willow Street
North Andover, Massachusetts
On behalf of Paul T. Mscisz, I hereby give you notice of a public
hearing of the Town of North Andover Conservation Commission
regarding the above -captioned matter to be held on Wednesday,
October 20, 1993 at 8:00 p.m. in the Senior Citizen Center
located at the rear of Town Hall, 120 Main Street, North Andover.
I have enclosed herewith and hereby incorporate by.reference
herein the "Conservation Commission Public Hearing" notice
regarding this matter.
ery truly your
iohn Richar Hu
JRH:eaf
Enclosure
cc: Mr. Paul T. Mscisz
cc: Town of North Andover Conservation Commission
y
OF �10R iN ,�
i{99
AREN It.P. NELSON t '� TOWN Of 120 Main Street, 01845
Director - (508) 682-6483
BUILDING NORTH ANDOVER
;: ::::"s• ��
CONSERVATION ss'°" 5`� DIVISION OF
HEALTH
PLANNING PLANNING & COMMUNITY DEVELOPMENT
CONSERVATION COMMISSION
PUBLIC HEARING
Pursuant to the authority of the Wetlands Protection Act,
Massachusetts General Laws Chapter 131, Section 40, as amended,
and the Town of North Andover's Wetland Protection Bylaw, the
North Andover Conservation Commission will hold a Public Hearing
on Wednesday, October 20, 1993 at 8:00 P.M. in the Senior
Citizen's Center located at the rear of Town Hall, 120 Main
Street, North Andover, MA on the Notice of Intent of
Paul T. Mscisz to alter land at 418 Willow ow Street
for the purposes of restoration of altered
resource area and installation of riding track and fence partially in the
buffer zone.
Plans are available at the Conservation Commission's Office,
Town Hall, 120 Main Street, North Andover, MA on weekdays from
8:30 A.M. to 4:30 P.M. and by appointment.
Run once North Andover Citizen
cc: N.A.C.C.
Applicant's Rep.
D.E.P.
By: George L. Reich, Chairman
N.A.C.C.
ON October 13, 1993
LEGAL NOTICE
TOWN OF NORTH ANDOVER
Pursuant to the authority of the Wetlands
Protection Act, Massachusetts General laws Chapter
131, Section 40, as amended, and the Town of North
Andover's Wetland Protection: Bylaw, the North
Andover Conservation Commission will hold a Public
Hearing on Wednesday, October 20, 1993 at 8:00
P.M. in the Senior Citizen's Center located at the rear
of Town Hall, 120 Main Street, North Andover, MA on
the Notice of Intent of Paul T. Msdaz to after land at
#18 Willow Street for purposes of restoration of
altered resource area and installation of riding track
and fence partially in the buffer zone.
Plans are available at the Conservation
Commission's Office, Town Hall, 120 Main Street,
North Andover, MA on weekdays, from 8:30 A.M. to
4:30 P.M. and by appointment
By. George L Reids, Chairman
N.A.C.C.
NAC: 10/13/93
r
., AJE ,•a l �` , a 4.pr ` vet! � 1` `� :' f ' .r t r , ... — .
October 29, 1993
Mr. Richard Doucette
North Andover Conservation Commission
120 :lain Street
North Andover, MA 01845
Re:
Dear Mr. Doucette:
Wetland Restoration
18 Willow Street
North Andover, MA 01845
As required, the following status report has been prepared to notify
the North Andover Conservation Commission (NACC) of the current
status of the wetland restoration area located on 18 Willow Street in
North Andover, Massachusetts.
On October 25, 1993, Wetlands Preservation, Inc. (WPI) met at the
site with the property owner and the site contractor, C&M Realty,
Inc., 89 Dayton Street, Danvers, MA 01923, and reviewed the criteria
for the restoration construction sequence as required in the
restoration plan. WPI is also under contract to provide construction
monitoring, wetland planting and subsequent status reports issued to
the NACC. Construction of the wetland restoration area shall
commence upon court approval.
If you have any questions or require additional information on the
above project, please feel free to contact us at your convenience.
Very truly yours,
76W161 -
W. Cygan
ETLANDS
i
BII
■,RESERVATION
INC.
October 29, 1993
Mr. Richard Doucette
North Andover Conservation Commission
120 :lain Street
North Andover, MA 01845
Re:
Dear Mr. Doucette:
Wetland Restoration
18 Willow Street
North Andover, MA 01845
As required, the following status report has been prepared to notify
the North Andover Conservation Commission (NACC) of the current
status of the wetland restoration area located on 18 Willow Street in
North Andover, Massachusetts.
On October 25, 1993, Wetlands Preservation, Inc. (WPI) met at the
site with the property owner and the site contractor, C&M Realty,
Inc., 89 Dayton Street, Danvers, MA 01923, and reviewed the criteria
for the restoration construction sequence as required in the
restoration plan. WPI is also under contract to provide construction
monitoring, wetland planting and subsequent status reports issued to
the NACC. Construction of the wetland restoration area shall
commence upon court approval.
If you have any questions or require additional information on the
above project, please feel free to contact us at your convenience.
Very truly yours,
76W161 -
W. Cygan
Associate Wetland Scientist
DWC:bsg
cc: Paul Mscisz
#1289
371 - 31 t
pfl-v / Msc�`
569 North Street 47 Newton Road 126 Wildcat Road
Georgetown, MA 01833 Plaistow, NH 03865 Barrington, NH 03825
(508) 352-7903 (603) 382-3435 (603) 664-7645
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E T L A N D S
e ,RESERVATION
(Novemb7err9, 1993
Mr. Richard Doucette
North Andover Conservation Commission
120 Main Street
North Andover, MA 01845
Re: Wetland Restoration
18 Willow Street
North Andover, MA
Dear Mr. Doucette:
The following report details the current status of the wetland restoration area
located on 18 Willow Street in North Andover, Massachusetts. On October 21,
]9-9-3-, all wetland restoration efforts were completed as specified in the Order
of Conditions and the Wetland Restoration Plan prepared by Wetlands
Preservation, Inc. (WPI).
Prior to any construction activities within the restoration area, the erosion
control devices (buried silt fence and double staked hay bales) were established
along the southeastern corner of the lot where surface drainage exits the site
via a 12" RCP. The constructed erosion control was tied into an existing hay
bale and silt fence barrier to the south and the stonewall to the east. The
stonewall ru::s alung %ile eastern edge of the ie!i:uia: un area and wili prow de
adequate protection against loss of material into the adjacent habitat.
Restoration area construction and grading were performed by the site contractor,
C&M Realty, Inc., with construction monitoring provided by WPI. The edge of the
wetland restoration area boundaries were delineated by pin stake flagging. Upon
completion of the wetland delineation within the area of disturbance, the site
contractor initiated the required construction efforts to restore grades to
approximate original elevations. To prevent excessive disturbance and soil
compaction, excavation of the fill material was initiated along the eastern edge
of the property, working back towards the adjacent upland. To properly restore
and expose the original wetland soils, several test holes were dug as the fill
material was skimmed off. In a couple of areas where past activities have
removed stumpage, voids were created and required excavation and backfilling
with organic topsoil to bring back to original grade. Several microtopographic
569 North Street 47 Newton Road 126 Wildcat Road
Georgetown, MA 01833 Plaistow, NH 03865 Barrington, NH 03825
(508] 352-7903 (603) 382-3435 [603] 664-7645
depressions were also created to provide niches which will increase diversity of
indigenous wetland vegetation. A narrow swale was also discovered and restored
during excavation activities adjacent to the eastern stonewall.
All fill material removed from the wetland restoration area including woody
debris was trucked away from the area and deposited in an adjacent upland
located outside of the resource buffer zone. To help prevent possible erosion
and sedimentation into the restored wetland, dug in silt fence was constructed
above the wetland edge.
In restoring the 24,419 sq_, ft, wetland habitat area, the following wetland tree
and shrub species have men se ,e.cted to be planted randomly h`r'oughu-t,,the area
on 15 foot e 75 green asO(Fraxinus pennsylvanic,�)(; �7-5 red'
(Acer
rubrum) , Northern arrow-wooer .(_1_burnum`cogni tum) , C40 high us-lueberxy
'Gacciniuin cory�nvosum) and Y sweet pepperuu h (Clechra alniioiia). Tze
following herbaceous vege tat n`ias also be.eri-pl"anted throughout the area: 40____1
cinnamon fern (Osmunda cinnamomea), 40 sensitive feA (Onoclea sensibilis) and
40 royal fern (Osmunda regalis). To prevent--excessive activities from occurring
within the restoration area, the following species have been chosen as a buffer
planting: 22 green ash, 22 red maple.and--22 Northern arrow-wood, all of which
were randomly planted along the w2tlandfuplanri a . To promote soil
stabilization through the winter, half of the 50 lbs. of the 1:1 mix of
switchgrass (Panicum virgatum) and redtop (Agrostis alba) has been sown on all
exposed soil surfaces throughout the area. During the spring of 1994, the
remainder of the seed shall be sown.
In summary, the wetland restoration area has been constructed as required in the
Wetland Restoration Plan and the Order of Conditions. All construction and
planting efforts were performed in such a manner to provide optimum conditions
for restoration of habitat functions and site hydrology. It is also anticipated
that over time and in conjunction with the wetland species planted, the
vegetative community will successionally colonize with indigenous species. The
area is currently stable and seeded, and with the help of sediment control,
onsite erosion should be minimal.
If you have any questions or require additional information, please contact us
immediately.
Very truly yours,
�cvv J ti-,) .
P
Douglas W. Cygan
Associate Wetland Scientist
DWC:bsg
#1289
e
ETLANDS
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{ ,RESERVATION
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Wetland Restoration Plan
Lots 22 and 23
1 Willow Street
North Andover, MA
i
October 6, 1993
Prepared for
Paul Mscisz
18 Willow Street
N. Andover, MA
By
Wetlands Preservation, Inc.
569 North Street
Georgetown, MA 01833
1
569 North Street 47 Newton Road 126 Wildcat Road
Georgetown, MA 01833 Plaistow, NH 03865 Barrington, NH 03825
1`5081352-7903 f6031382-3435 f6031664-7645
Wetand Restoration Plan
18 Willow Street
N. Andover, MA
On September 17, 1993 Wetlands Preservation, Inc. (WPI)
was retained by Mr. Paul Mscisz to conduct an evaluation of
his property at 18 Willow Street in North Andover,
Massachusetts. The evaluation was to provide a conclusion
as to whether wetland areas jurisdictional under the
Massachusetts Wetland Protection Regulations (MWPR) and/or
the North Andover Wetlands By-law had been altered on the
subject parcel and, if wetlands had been altered, to provide
a restoration program for the parcel.
WPI determined that based on several facts that the area
most likely included jurisdictional wetland area and has
provided herein a restoration plan to remove loam added to
the area by Mr. Mscisz, to revegetate the area, and to
provide demarcation of the wetland boundary by planting of a
row of shrubs and trees.
Site Description
The subject parcel is approximately 3.5 acres in area
and is bordered on the north and east by a stone wall and to
the south by a sewer easement. Willow Street forms the west
■
boundary of and access to the parcel. The parcel includes
two lots, Lot 22 and 23, each with a house, and accessory
buildings. The parcel also has a horse stall and corral area
in the eastern half of lot 23.
Between 1990 and the present the easterly half of the
parcel has been cleared of all trees and shrubs and appears
to have been filled with loam in certain locations. The land
has been graded for the horse corral and for installation of
a riding track. The bed of the riding track was, according
to Mr. Mscisz, under construction and grading of the land was
in process when the owner was issued an enforcement order to
cease further action by the N. Andover Conservation
Commission (NACC). The site features, as of October 1993,
are provided on a Plan of Land in North Andover, MA developed
by Richard M. MacNeill dated October 6, 1993.
Included in the Plan of Land is what can best be j
described as WPI's best approximation of the edge of the
significant fill areas (loam generally greater than two
inches in depth) and/or the edge of wetland vegetation.
Since the vegetation on the site was altered, all recovering
vegetation is herbaceous and in various stages of maturity.
Soils in the areas were sampled at a large number of
locations and it was determined that most of the open field
f
below the flag line has a range of two to twelve inches of
loam fill, with occasional deeper areas where stumps were
removed and the resulting holes filled with a mixture of
original topsoil, subsoil and loam. The soil profile was
also disturbed in places by the grading equipment and there
is evidence that wood debris is buried at one or more
locations along the eastern property boundary.
The overall assessment of the historic wetlands on the
site is hindered by the complete loss of the original
vegetative cover except along the property boundaries. WPI
has previously delineated the wetland boundary on the land to
the south of the subject parcel and has reviewed as part of
this effort, the adjacent land to the east and north. While
there are small areas of upland just offsite along the
eastern boundary, wetland generally exits along the rear half
of the lot on the north and south sides. These areas include
wet meadow, scrub/shrub and forested swamp wetland classes.
The soils within the area which was cleared were generally
poorly drained hydric soils, with somewhat dryer appearing
but still hydric soils in the vicinity of the corral.
Review of color infrared aerial photos, dated April 17,
1985 of the site indicate tall evergreen trees in the area of
the corral and based on comparisons to adjacent areas it is
very likely the evergreens were white pine. This was
corroborated by Mr. Mscisz. A small area of upland is located
on the adjacent parcel immediately to the east of the corral
and has an overstory of hickory and oak. The remainder of
the overstory vegetation in the adjacent areas is ash or red
maple and individual species of deciduous trees are
■
indistinguishable on the aerial photos.
An additional factor which makes delineation difficult
is that the adjacent wetlands to the north and east of the
subject parcel have been drained for many years by a series
of shallow swales. These swales were likely constructed in
the early agricultural activities, in the local area, to
drain the land for farming. For this reason the adjacent
wetland areas have a matrix of shallow swales with
significant upland vegetation on the.higher areas between the
swales. These swales are a foot or less in depth and a
slight increase in topography readily supports a
wetland/upland vegetation mix on the dryer soils.
On the basis of the hydric soil conditions on the site;
the location of jurisdictional wetland areas on adjacent
parcels of land; and vegetation patterns on the 1985 aerial
photography WPI concludes the site very likely included an
area of jurisdictional wetland and that portions of that
wetland area was likely subject to alteration by Mr. Mcsicz
when he cut and grubbed trees, shrubs and other vegetation
from the property. A portion of the back of the parcel
included a moderate sized white pine stand and an area of
somewhat better drained soils seems to coincide with the pine
stand. Immediately off of the property to the north of the
pine stand is a small patch of upland. From this information
we conclude there was also somewhat dryer areas on the
property and the presence of upland area in the vicinity of
the corral was likely.
site Restoration
It is proposed that the flag line delineated in the
field and as indicated on the Plan of Land be assumed to be a
historic wetland boundary and that the area between the flag
lines and the boundary of the Mscisz parcel to the north,
east and south be restored by removal of the fill material
and replanting of the area. Additionally it is proposed that
a row of shrubs and trees be placed along the wetland
boundary to demarcate it as well as provide a buffer to the
wetland area.
As indicated above the loam fill ranges from two to
twelve inches in depth. The deeper fill areas are generally
along the north and east stone walls of the parcel. The fill
material will be removed and the original soil surface
exposed. Any areas where wood debris is found or where
stumps were removed will be cleaned out and backfilled with
at least six inches of high organic soil.
Generally the soil excavation will be a minimal
regrading of the surface of the soil. The stone wall will
provide good protection against loss of material into
adjacent areas. The runoff from the property generally
drains to the south east corner of the field and enters a
twelve inch RCP. This area is proposed to be cut off by a
haybale/silt screen barrier which will tie into the erosion
control already along the sewer easement and into the stone
wall. Any additional area where drainage may move off the
site will also be cut off by a similar erosion control
barrier.
Adjacent wetland areas generally are vegetated with an
overstory of red maple or green ash, a shrub stratum of
highbush blueberry, northern arrowweed and sweet pepper bush,
and an herbaceous layer of sensitive, royal and cinnamon
fern, sedges and grasses. The planting proposed for the
regraded areas would provide for development of a similar
vegetative mix.
The proposed planting arrangement for the boundary
delineation is as follows:
Green ash 5 to 6 foot saplings placed
alternately 10 feet on center
Red maple along �he Approximaternumber ofoposed tplants land oofdeach
species: 22
Arrowwood 24 to 36" plants placed on 20 foot
centers along the proposed wetland
boundary. Approximate number of
plants: 22
The proposed planting arrangement for the area revegetation
is as follows:
Green ash 3 to 5 foot saplings planted
Red Maple alternately on 15 foot centers
throughout restoration area.
Approximate number of plants of each
species: 75
Northern Arrowwood 18 to 24" plants planted alternately
Highbush blueberry on 15 foot centers throughout the
Sweet pepper bush restoration areas. Approximate
number of plants of each species: 40
Cinnamon fern plants placed alternately 15 foot on
Sensitive fern center throughout restoration area.
Royal fern Approximate number of plants of each
species: 40
Switch grass Seeded in a 1:1 ratio mix over entire
Red top restoration area. Approximate pounds
of seed mix required: 50
Proposed Construction Sequence
1. Install erosion control barriers at the south east
corner of field and any other areas where drainage
may leave the site. Construct a sediment sump
immediately upstream of the erosion control barrier
to collect sediment from runoff.
2. Remove all loam fill deeper than 2" deep from
wetland including all wood debris and provide an
organic surface soil of 6" over the area. Pull all
fill away from stone wall and reestablish any swale
along the wall if evidence is found of one.
3. Provide erosion control barriers above the proposed
wetland boundary following completion of all
restoration grading.
4. Plant trees, shrubs and herbacious plants and seed
entire area.
5. Maintain erosion control in place until all soil
surfaces in restoration area and in buffer zone are
stable. Once soil is stable, grade sediment sump
with an organic topsoil and seed with red top and
switchgrass mix.
1
i
1
1
WI LLOW
STREET
ZONE X
ALAN L. GRENIER
MICHAEL P. McCARRON
JAMES M. NORRIS
JOHN RICHARD HUCKSAM, JR.
STEPHEN D. GUSCHOV
�y
GRENIER (5Z MCCARRON
ATTORNEYS AT LAW
100 HATHORNE OFFICE PARK
491 MAPLE STREET
DANVERS, MA 01923
(508) 777-7000
TELECOPIER (508) 7776803
The Clerk Magistrate
Lawrence District Court
380 Common Street
Lawrence, Massachusetts 01840
Dear Clerk Magistrate:
OF COUNSEL
JEFFREY A.SCHREIBER
JAMES J. MEEHAN
October 4, 1993
RE: Paul T. Mscisz
Town of North Andover - Notice
of Violation of Wetland By -Law,
No. 00003
This law firm represents Paul T. Mscisz regarding the
above -captioned matter. On behalf of Mr. Mscisz, I hereby
withdraw the appeal of Mr. Mscisz of the above -captioned Notice
of Violation.
Mr. Mscisz has this day paid to the Town`of North Andover
Conservation Administrator the $200.00 fihe`imposed by such
Notice of Violation.
Because of our withdrawal of this appeal, I assume that it will
not be necessary for the parties to appear at the hearing
scheduled regarding this matter on Tuesday, October 5, 1993, at
10:20 a.m.
Thank you for your help.
JRH:mrd U
Enclosure
cc: Mr. Paul T. Mscisz
cc: Kimberly A. Holliday, Esq.
(By Fax and Regular Mail)
cc: Mr. Richard Doucette
7 ry truly yours,
fohn Richard Hucksam, Jr.
PAUL T. MSCISZ 936
MARTHA J. MSCISZ
18 WILLOW oc-L 4 9 9 93
s NORTH ANDOVER, MA 01845 / 53-7119/2173
{ e
PAY TO THE
ORDER bF r Q O
DOLLARS
FIRST ESSEX SAVINGS.BANK
Lawrence, Massachusetts 01840
��` ,� _ _ •
1: 2 L 13? L 19 11: 5 31"o 3 0 Lt IB IB I v 09
LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C.
DONALD G. PAIGE
ELIZABETH A. LANE
ATTORNEYS AT LAW
JOYCE FRANK
JOHN W. GIORGIO
101 ARCH STREET
BARBARA J. SAINT ANDRE
JOEL B. BARD
BOSTON, MASSACHUSETTS 02110-1137
EVERETT J. MARDER
BOSTON OFFICE
JOSEPH N. JR.
16171 951-0007
WILLIAM EWIG WIG III
H
FAX 16171 951-2735
THERESA M. DOWDY
NORTHAMPTON OFFICE
PATRICK J. COSTELLO
14131 585-8632
WORCESTER OFFICE
15081 752-0203
September 27, 1993
CONFIDENTIAL -NOT A PUBLIC DOCUMENT
Members of the Conservation Commission
North Andover Town Hall
120 Main Street
North Andover, MA 01845
KAREN V. KELLY
DEBORAH A. ELIASON
JEANNE S. MCKNIGHT
JUDITH C. CUTLER
ANNE -MARIE M. HYLAND
RICHARD BOWEN
CHERYL ANN BANKS
DAVID J. DONESKI
BRIAN W. RILEY
KIMBERLY A. HOLLIDAY
MARY L. GIORGIO
KATHLEEN E. CONNOLLY
JOHNG.GANNON
Re: North Andover Conservation Commission v. Paul E. Mscisz
Essex Superior Court, C.A. No. 93-2187D
Dear Members of the Conservation Commission:
I am pleased to inform you that we were successful in
obtaining an Interlocutory Order Continuing the Restraining Order
in full force and effect in the above matter until the next
hearing date, October 7, 1993, at Essex Superior Court in
Lawrence.
Both parties were present at the hearing on September 23,
1993 on the Town's request for a preliminary injunction. The
defendant requested time to complete an engineering analysis in
order to identify the nature and extent of wetlands on the
subject property as well as the areas which have been illegally
filled, in order to determine areas requiring restoration. The
engineer engaged by the defendant was recommended by the
Conservation Administrator. Accordingly, the Court allowed a two
week continuance of the hearing, and ordered the parties to
return on October 7, 1993.
At the hearing, the defendant also raised the defense of
that his property is exempt from the wetlands protection
regulations under 310 CMR 10.04, the agricultural exemption. We
believe that the Commission has sufficient evidence to show that
the exemption is inapplicable in this instance, and will do so at
the hearing on Octcber 7. If appropriate, Conservation
Administrator Richard Doucette will provide testimony at that
hearing.
PRINTED ON RECYCLED PAPER
KOPELMAN AND PAIGE, P.C.
CONFIDENTIAL -NOT A PUBLIC DOCUMENT
Members of the Conservation Commission
September 27, 1993
Page 2
In addition, the Court ordered that the Temporary
Restraining Order entered by the Court on September 16, 1993,
continue in full force and effect until the next hearing. As you
will recall, the Order restrains the defendant Paul E. Mscisz,
from any filling, grading, removal of vegetation, stockpiling or
disposal of soil or other materials, or operation of any
machinery (e.g., backhoe, truck, grader, saw) on the Site located
at 18 Willow Street. A copy of that order is attached for your
review.
As requested by Mr. Doucette, enclosed are copies of the new
wetlands regulations and literature regarding the exemption for
the normal maintenance and improvement of land in agricultural
use. Please continue to monitor the Site in the next two weeks
to ensure that the engineering analysis does not result in any
additional wetlands violations.
If you have any questions in this regard, please do not
hesitate to contact Joel Bard or me.
KEC/cal
Encs.
cc: Board of Selectmen (w/o enc.)
Town Manager (w/o enc.)
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT
C.A. NO. 93-2187D
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
PLAINTIFF
V.
PAUL E. MSCISZ,
DEFENDANT
PLAINTIFF'S MOTION FOR
A PRELIMINARY INJUNCTION
Now comes the plaintiff, Town of North Andover Conservation
Commission, and hereby moves this Court, pursuant to Mass. R.
Civ. P. 65(a) for a preliminary injunction in its favor, pursuant
to Prayer 3 of the Verified Complaint in the above matter
ordering the defendant to: immediately cease work activity in
and affecting wetlands; correct wetland alterations and restore
the wetlands; file a Notice of Intent; and place hay bales on the
site.
As grounds therefor, the defendant relies on the facts
contained in its Verified Complaint and on the attached
Memorandum of Law.
Wherefore, in view of the foregoing, it is respectfully
requested that the within motion be allowed.
PLAINTIFF,
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
'N By its attorneys,
v'
�JLoel B. Bard (BB)6 #29140) ( .
Kathleen E. Connolly (BBO #558706)
Kopelman and Paige, P.C. \J
Town Counsel
101 Arch Street
Boston, MA 02110
-,
`> (6101- 9_k1-0007
Dated:
ESSEX, ss.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVII. ACTION
No. 93-2187 D
TOWN OF NORTH ANDOVER CONSERVATION COMMISSION
N............................ ._................. ............... -.......... .................................... ., Plaintiff s
Ca
PAUL E. MSCISZ
........................... -......................... .......................................................... Defendant(s )
INTERLOCUTORY ORDER CONTINUING
RESTRAINING ORDER IN FORCE
This cause came on to be heard upon the return of a notice to show cause with a
temporary restraining order and was argued by counsel; and thereupon, upon consideration
thereof, it is ordered and adjudged that said restraining order be and hereby is continued in
force until Thursday, October 7, 1993
By the Cour
Entered: September 23 , 19 93
FORM 24
NORMAL MAINTENANCE AND IMPROVEMENT OF LAND IN AGRICULTURAL USE
10.10: Effective Date
(7) The amendments to these regulations concerning normal
maintenance and improvement of land in agricultural use
contained in 310 CMR 10.04 ("Agriculture"), 310 CMR 10.06(6)11
and 310 CMR 10.53(5) shall be effective on May 21, 1993, and
shall not apply to any Notice of Intent filed prior to the
effective date.
PREFACE TO 1993 REGULATIONS REGARDING
NORMAL MAINTENANCE AND IMPROVEMENT OF LAND IN AGRICULTURAL USE
NOTE: The following is a preface to, but does not form a part of,
the Wetlands Protection Act Regulations (310 CMR 10.00).
Massachusetts is struggling to preserve both its dwindling
agricultural base and its remaining wetlands. Both are threatened.
While many agricultural practices are compatible with wetlands
protection, some can result in temporary or permanent losses of key
wetlands functions, such as flood control and pollution
attenuation. The Wetlands Protection Act is intended to ensure
that these functions are protected through regulatory review and
permitting.
At the same time, because wetlands are such an integral part
of many farming operations, requirements for environmental review
could significantly reduce their economic viability. The
Legislature has recognized the value of preserving agriculture in
Massachusetts by including in the Wetlands Protection Act
exemptions for normal maintenance and improvement of land in
agricultural use, including cropland and pastureland. These
exemptions recognize that some farming practices will affect
wetlands from time to time.
In an effort to keep these competing interests in balance, the
Legislative exemptions are limited to ongoing agricultural
operations. That is, if tilling or harvesting is being conducted
at the present time in or near wetlands, that work and any current
work related to production of that agricultural commodity need not
go through regulatory review. At the same time, the Legislature
recognized that expanded or new agricultural activities, because
they can result in new temporary or permanent impacts to wetlands,
should be subject to review to ensure that they are conducted in
the most environmentally sound manner possible.
The distinction between ongoing work on or related to land in
agricultural production, and agricultural expansion, has not been
sufficiently clear to farmers or to conservation commissions. The
Department of Environmental Protection (DEP) has attempted to
clarify the exemptions through policy. In 1991, the Legislature
determined that stronger measures to reduce this confusion were
necessary and it enacted legislation directing DEP to develop new,
clearer regulations.
In response to that mandate, DEP has adopted the following
regulations. They make it clear that normal maintenance and
improvement of land in agricultural use is exempt from the Wetlands
Protection Act and is not subject to regulations adopted pursuant
to the Act - provideO *hat the activitiam fall within the new3v-
adopted definitions. "'No Determinatio,, of Applicability is requiLeci
'for exempt activities; however, the Determination of Applicability.
process is intended for use when there is doubt as to whether or
not an activity is exempt. Nothing in 310 CMR 10.00 changes the
need to independently evaluate whether permits are required under
federal laws such as Sections 401 and 404 of the Clean Water Act.
310 CMR 10.00 represents the collective input of dozens of
farmers, environmentalists, many state and federal agencies,
advocacy groups, and other concerned citizens. Most notable in
this process were the efforts of the Farmland Advisory Committee,
established by the legislation as an ongoing advisory body, and the
Joint Committee on Agriculture and the Environment. These groups
worked diligently with DEP and the Department of Food & Agriculture
(DFA) to develop regulations that are sensitive to the needs of
farmers while preserving valuable wetlands.
DEP believes that, while the appropriate regulatory balance
has been achieved, the regulations cannot be specific enough to
address all circumstances. Everyone involved in developing 310 CMR
10.00 believes that their successful implementation will depend
largely on continuing efforts to provide education and outreach to
conservation commissions and the agricultural community, as well as
a good measure of common sense applied by all concerned.
The regulations refer to a cooperative process in which
certain projects can proceed only if the proponent has prepared a
farm Conservation Plan approved by the United States Department of
Agriculture, Soil Conservation Service (SCS). This process
requires cooperation between the Department and SCS, and that
cooperation is formalized by a written Memorandum of Understanding
between the two agencies. Copies of the Memorandum of understand-
ing can be obtained from the Department.
In order to ensure that 310 CMR 10.00 achieves its goals, the
Secretary of Environmental Affairs added conditions in her ENF
Certificate (EDEA #9266) requiring DEP and the Department of Food
and Agriculture (DFA) to convene an independent monitoring
committee. DEP and DFA will chair a group of representatives of
the agricultural and environmental communities to oversee the
implementation of 310 CMR 10.00, to monitor the effects on both
wetlands and agriculture in the Commonwealth, and to provide
recommendations for possible further revisions at the end of a
three year period.
Z_
This committee will evaluate cumulative impacts of exempt
activities. The Committee should develop a system for gathering
information by which it can assess the cumulative impacts of
activities such as those listed at 310 CMR 10.04 (Agriculture) (c) (1)
(b, c, d, e, and g) . Such a system could include, for example,
notice from farmers that certain activities have been conducted.
(Delete existing 310 CMR 10.04 (Agriculture) in its entirety and
replace it with the following:)
10.04: Definitions
Agriculture.
For the purposes of 310 CMR 10.04 the following words and
phrases have the following meanings:
(a) Land in agricultural use means land within resource
areas or the Buffer Zone presently and primarily used in
producing or raising one or more of the following
agricultural commodities for commercial purposes:
1. animals, including but not limited to
livestock, poultry, and bees;
2. fruits, vegetables, berries, nuts, and other
foods for human consumption;
3. feed, seed, forage, tobacco, flowers, sod,
nursery or greenhouse products, and ornamental
plants or shrubs; and
4. forest products under a planned program to
improve the quantity and quality of a continuous
crop.
Additionally, land in agricultural use means land
within resource areas or the Buffer Zone presently and
primarily used in a manner related to, and customarily
and necessarily used in, producing or raising such
commodities, including but not limited to: existing
access roads and livestock crossings; windbreaks;
hedgerows; field edges; bee yards; sand pits; fence
lines; water management projects such as reservoirs, farm
ponds, irrigation systems, field ditches, cross ditches,
canals/channels, grass waterways, dikes, sub -surface
drainage systems, watering facilities, water transport
systems, and water storage systems; agricultural
composting sites; agricultural storage and work areas;
and land under favm structures.
Land in agricultural use may lie inactive for up to
five (5) tSDnsecutive years unless it is under a United
States oeparzment of Agriculture (USDA) contract for a
longer term pursuant to the Conservation Reserves Program
(the Food Securities Act of 1985, as amended by the Food,
Agriculture, Conservation and Trade Act of 1990; and 7
CFR 1410). The issuing authority may require appropriate
documentation, such as a USDA Farm Plan or aerial
photography, to demonstrate agricultural use.
(b) Normal maintenance of land in agricultural use, which
in all cases does not include placing substantial amounts
of fill in Bordering Land Subject to Flooding or filling
or dredging a Salt Marsh, means the following activities,
without enlargement as to geographical extent, that are
occurring on land in agricultural use, when directly
related to. production or raising of the agricultural
commodities referenced in 310 CMR 10.04(A_griculture)(a),
when undertaken in such a manner as to prevent erosion
and siltation of adjacent water bodies and wetlands, and
when conducted in accordance with federal and state laws:
1. all crop management practices, not to include
drainage in a Bordering Vegetated Wetland,
customarily employed• to enhance existing growing
conditions, including but not limited to: tillage,
trellising, pruning, mulching, shading, and
irrigating; and all customary harvesting practices
such as- digging, picking, combining, threshing,
windrowing, baling, curing, and drying;
2. the use of fertilizers, manures, compost
materials, and other soil amendments; pesticides
and herbicides; traps; and other such materials;
3. the repair or replacement of existing access
roads and livestock crossings;
4. the maintenance of existing windbreaks and
hedgerows;
5. the management of existing field edges, limited
to within one hundred (100) feet from the land in
production, including the following practices:
a. mowing;
b. burning;
c. brush cutting; and
d. removing trees.
The management of any field edge that falls
within a Bordering Vegetated Wetland is not
intended to allow the conversion of Bordering
Vegetated Wetland into cropland. Therefore, the
field management practices described in 310 CMR
10.04(Agriculture)(b)(5)(a. through d., inclusive)
may occur in a Bordering Vegetated Wetland provided
that:
i. the cutting or removal of trees and
understory vegetation shall not occur within
twenty-five ( 2 5 ) feet of the bank of a water
body that is not managed within the land in
production (field ditches, cross ditches,
grass waterways, irrigation systems, and farm
ponds are examples of managed water bodies)
unless the trees or understory vegetation are
removed to control alternative hosts but no
more than fifty (50%) percent of the canopy
may be removed, or except to maintain existing
dikes;
ii. slash, branches, and limbs resulting from
the cutting and removal operations shall not
be placed within twenty-five (25) feet of the
bank of a water body that is not managed
within the land in production; and
iii. no tilling, filling, excavation, or other
change in the existing topography shall occur
within the field edge;
6. the maintenance and repair of existing fences
and the management of temporary fence lines;
7. the cleaning, clearing, grading, repairing,
dredging, or restoring of existing man-made or.
natural water management systems such as
reservoirs, farm ponds, irrigation systems, field
ditches, cross ditches, canals/channels, grass
waterways, dikes, sub -surface drainage systems,
watering facilities, water transport systems,
vents, and water storage systems, all in order to
provide drainage, prevent erosion, provide more
effective use of water, or provide for efficient
use of equipment, and all for the purpose of
maintaining favorable conditions for ongoing
growing or raising of agricultural commodities;
8. the maintenance and repair of ongoing
agricultural composting sites, storage areas, and
work areas and the storage of fertilizers,
pesticides, manures, compost materials, and other
soil amendments, provided that such storage occurs
only in the Buffer Zone or Bordering Land Subject
to Flooding;
9. the repair and maintenance of existing farm
structures;
10. the seeding of eroded or disturbed areas;
11. maintaining the flow of existing natural
waterways;
12. the keeping of livestock and poultry and the
management of beehives;
13. the cultivation of cranberries, including the
following practices:
a. the activities described in 310 CMR
10.04(Agriculture)(b)(1. through 11.,
inclusive);
b. the application of sand to existing bogs
and the excavation of sand from sand pits;
C. the repair and reconstruction of water
control structures including flumes, pumps,
dikes, and piping above and below the ground;
d. the regrading, including modification of
drainage, and replanting of existing cranberry
bogs;
e. the repair and replacement of dikes;
f. water harvesting activities; and
g. flooding and flood release;
14. the cutting and removal of trees for the
5-
purpose of selling said trees or any products
derived therefrom, when carried out in the
following manner:
a. every reasonable effort shall be made to
avoid or minimize access through Areas Subject
to Protection Under the Act;
b. where access through Areas Subject to
Protection Under the Act is necessary, every
reasonable effort shall be made to gain said
access without constructing new accessways
including, but not limited to, maintaining and
improving (but not substantially enlarging)
existing accessways, and operations shall be
conducted when the soil is frozen, dry or
otherwise stable;
C. where access is determined impracticable
without constructing new accessways, said
accessways shall be designed, constructed and
maintained in accordance with U.S. Forest
Service logging road standards, and shall be
removed and the site returned to previously
existing conditions within one (1) year;
d. all channel crossings shall be stabilized
to prevent erosion, using standard U.S. Forest
Service methods. When crossings involve fill
or other closed or semi -closed structures
which will obstruct flow, they shall be
designed, constructed and maintained in
accordance with U.S. Forest Service standards,
shall allow the unobstructed passage of
existing flows for at least the 10 -year storm,
and shall be removed and the site returned to
existing conditions within one (1) year of
construction;
e. all soils which are exposed during and
after work shall be stabilized to prevent said
soils from eroding into open water bodies, in
accordance with standard U.S. Forest Service
methods;
f. all operations shall be conducted in
accordance with a cutting plan approved by the
Massachusetts Department of Environmental
Management District Forester; and
g. a written notice describing the proposed
cutting and removal of trees shall be
submitted to the conservation commission not
less than ten (10) days prior to the
commencement of operations; and
15. the selective cutting of trees by owners for
their own use, when carried out in the following
manner:
a. no more than twenty ilve thousand (25,000)
board feet or fifty (50) cords shall be
harvested;
W
b. after the cutting, the crown area of the
remaining trees shall be evenly distributed
throughout the site and shall cover no less
than fifty (50%) percent of the surface area
of the site;
C. the removal of the selectively cut trees
shall occur only during those periods when the
ground is sufficiently frozen, dry or
otherwise stable to support the equipment
used;
d. the cutting, removal or other destruction
of trees and understory vegetation shall not
occur within twenty-five (25) feet of the bank
of a water body;
e. the placement of slash, branches and limbs
resulting from the cutting and removal
operations shall not occur within twenty-five
(25) feet of the bank of a water body; and
f. there shall occur no filling, excavation
or other change in the existing topography.
(c) Normal improvement of land in agricultural use, which
in all cases does not include filling or dredging a Salt
Marsh, includes but is not limited to:
1. the following activities when they occur on
land in agricultural use or when they occur within
the Buffer Zone or Bordering Land Subject to
Flooding that is not land in agricultural use, when
they are directly related to production or raising
of the agricultural commodities referenced in 310
CMR 10. 04 (Agriculture) (a) , and when they are
undertaken in such a manner as to prevent erosion
and siltation of adjacent water bodies and wetlands
and the activity is conducted in accordance with
federal and state laws:
a. the installation of permanent fencing,
windbreaks, or hedgerows;
b. the installation of dikes within a
cranberry bog;
C. the construction of farm structures, not
including habitable dwellings, provided that
the footprint of the farm structure does not
exceed four thousand (4,000) square feet and
no filling of Bordering Land Subject to
Flooding occurs beyond the footprint of the
building;
d. the squaring -off. of fields and bogs,
provided that the activity does not alter a
Bordering Vegetated Wetland, there is no
increase in the amount of land in production
beyond the minimum increase necessarily
resulting from making the boundary of any
field or bog more regular, and no fill is
placed within Bordering Land Subject to
Flooding;
e. the construction of by-pass
canals/channels and tail water recovery
systems;
f. a change in commodity, provided that there
is no filling of Bordering Vegetated Wetland,
there is no loss of flood storage capacity,
and drainage ditches or the subsurface
drainage system are not increased or enlarged;
g. the construction of a water management
system such as a reservoir, farm pond,
irrigation system, field ditch, cross ditch,
canal/channel, grass waterway, dike, sub-
surface drainage system, watering facility,
water transport system, vent, or water storage
system, or of a livestock access; and
h. the construction of composting and storage
areas.
For the activities described in 310 CMR
10.04 (Agriculture) (c) (1) (d through h, inclusive)
there shall be no net loss of flood storage
capacity; and
2. the reconstruction of existing dikes, the
reconstruction and expansion of existing ponds and
reservoirs, and the construction of tailwater
recovery ponds and by-pass canals/channels
occurring partly or entirely within a Bordering
Vegetated Wetland, when directly related to
production or raising of the agricultural
commodities referenced in 310 CMR
10.04(Agriculture)(a), in accordance with the
following:
a. Prior to performing the work, the person
claiming the exemption shall submit to the
conservation commission for its review at a
public meeting that portion of a certified
farm Conservation Plan (CP) which relates to
the work to be conducted in a Bordering
Vegetated Wetland. The CP must be prepared in
cooperation with the U.S.D.A. Soil
Conservation Service (SCS) and comply with the
terms of the January 20, 1993, Memorandum of
Understanding (MOU) between the Department and
SCS concerning CPs;
b. The conservation commission may, within
twenty-one (21) days of receiving the CP,
provide the person claiming the exemption with
written notification containing specific
comments detailing the manner in which the CP
has not been prepared in compliance with the
terms of the MOU;
C. The person claiming the exemption shall
provide SCS with a complete copy of the
notification;
d. All revisions to the CP that relate to
0
the delineation of Bordering Vegetated
Wetlands shall be submitted to the
conservation commission in accordance with 310
CMR 10.04 (Agriculture) (c) (2) ;
e. All work shall be done in accordance with
the CP; and
f. The maximum amount of Bordering Vegetated
Wetland which may be altered by the above
activities is:
1. five thousand (5,000) s.f. for
reconstruction of an existing dike;
2. ten thousand (10,000) s.f. for
expansion of an existing pond or
reservoir;
3. Len thousand (10,000) s.f. for
construction of a tailwater recovery
pond; and
4. five thousand (5,000) s.f. for
construction of a by-pass canal/channel.
(d) The provisions of 310 CMR 10.04(Agriculture) shall
expire three (3) years from its effective date.
10.06: Emergencies
(6) Agricultural Emergencies
(a) Notwithstanding the provisions of 310 CMR 10.06 (1
through 4), any person may undertake work for the
emergency agricultural activities described in 310 CMR
10.06(6)(g) when necessary to:
1. eliminate an imminent threat to land in
agricultural use;
2. restore land in agricultural use that has been
damaged due to a storm or other sudden, unforeseen
event; or
3. provide an emergency agricultural water source
when the existing agricultural water source
suddenly and unforeseeably has been rendered
unusable or unavailable.
(b) Written notice of any work undertaken as an
emergency activity under 310 CMR 10.06(6) must be
received by the conservation commission and mailed to the
Department within three (3) days after the work has
commenced or within three (3) days after the end of the
emergency event, whichever is sooner. Such notice shall
state the name of the person performing the work, the
name of the property owner (if different), the property
and the location on the property where the work is to be
performed, the exact nature of the emergency and of the
work which is to be performed, and when the work was
begun and when it is expected to be completed. The
commission may, at its discretion, conduct a site visit
to view the work being performed under such notice and to
confirm that the information in the notice is correct.
(c) When an emergency is caused by a storm, any work
undertaken as an emergency activity under 310 CMR
10.06(6) must commence within thirty (30) days following
the storm event which caused the agricultural emergency.
(d) Any work undertaken as an emergency activity under
310 CMR 10.06(6) shall be completed within thirty (30)
days from the commencement of such work unless written
approval for a later completion date is given by the
Commissioner.
(e) No work under 310 CMR 10.06(6) shall be allowed
within estimated habitat which is indicated on the most
recent Estimated Habitat Maps of State -Listed Rare
Wetlands Wildlife published by the Natural Heritage and
Endangered Species Program of the Massachusetts
Department of Fisheries, Wildlife, and Environmental Law
Enforcement.
(f) Work under 310 CMR 10.06(6) shall not fill or dredge
a Salt Marsh.
(g) Only the following emergency activities are allowed
under. 310 CMR 10.06(6)(a):
1. The installation of stream bank stabilization
measures, ;Q -dNi that,:_
a. such activity is carried out in accordance
with Soil Conservation Service best management
practices;
b. no more than one hundred (100) linear feet
of bank are altered per storm event, and no
more than two hundred (200) linear feet of new
rip rap or gabions are placed on the bank of a
stream under this provision cumulatively; and
c. after the two hundred (200) foot threshold
has been reached the placement of additional
rip rap or gabions following future storm
events shall require the filing of a Notice of
Intent.
2. The removal of storm debris, including trees,
brush, branches, and cobbles, that were deposited
in a stream channel during the storm event,
provided that:
a. after the material is removed it is not
placed on a bank or in a Bordering 'Vegetated
Wetland;
b. Soil Conservation Service best management
practices are followed; and
C. removal of material from a stream is
limited to one hundred (100) linear feet per
storm event.
3. The development of an emergency agricultural
water source where the existing agricultural water
source suddenly has been rendered unusable because
of contamination, sudden diversion, or 'other
[t>
unforeseen circumstances. Where an emergency
agricultural water supply is required:
a. the work shall be conducted so that
impacts to Bordering Vegetated Wetland are
minimized and all impacts, including
excavation, access, and any other alterations
to Bordering Vegetated Wetland, shall not
exceed two thousand (2,000) square feet;
b. the size of the water supply shall be
limited to that necessary to provide the
amount of water required to abate the
emergency, but not to exceed two thousand
(2,000) square feet;
C. a Notice of Intent shall be filed if the
agricultural water supply is to be used for
more than sixty (60) days, in which case the
agricultural water supply shall comply with
existing performance standards under 310 CMR
10.53(3)(a, b, and g); and
'd. all work shall comply with the Water
Management Act, M.G.L. c.21G.
(h) The provisions of 310 CMR 10.06(6) shall expire
three (3) years from its effective date.
10.53: General Provisions
(5) Notwithstanding the provisions of 310 CMR 10.53(1), 10.54
through 10.57, and 10.60, the issuing authority shall issue an
Order of Conditions permitting for the support of existing
agricultural production the reconstruction of existing dikes,
the construction of -hew ponds or reservoirs, the expansion of
existing ponds or reservoirs, and the construction of
tailwater recovery systems and by-pass canals/channels,
provided that the following criteria are met:
(a) The Notice of Intent shall include all relevant
portions of the farm Conservation Plan (CP)
covering the work which has been prepared for the
property and the applicant in cooperation with the
United States Soil Conservation Service (SCS)
pursuant to the January 20, 1993, Memorandum of
Understanding (MOU) between the Department and SCS
concerning CPs. At a minimum, the Notice of Intent
shall include a description of the project, the
number of square feet of each type of resource area
that will be altered, and the alternatives that
were considered in order to avoid alterations of
wetland resource areas.
(b) There shall be a rebuttable presumption, which may be
overcome upon a clear showing to the contrary, that:
1. work described in the CP avoids impacts to
Ll
wetland resource areas or minimizes impacts where
they are unavoidable; and
2. construction specifications and mitigation
measures contained in the CP minimize impacts where'
impacts are unavoidable and adequately protect the
interests of the Act.
(c) If any presumption set forth in 310 CMR 10.53(5)(bl
is overcome upon a clear showing to the contrary, the
issuing authority shall impose such conditions on the
work as are necessary to restore the presumption.
(d) The project will not have any adverse effect on
specified habitat sites of rare vertebrate or
invertebrate species, as identified by procedures
established under 310 CMR 10.59.
(e) The maximum amount of Bordering Vegetated Wetlaihd
which may be altered by the above activities is:
1. twenty thousand (20,000) square feet for the
construction or expansion of a pond or reservoir-
-2.
eservoir•-2 twenty chou-s7anzl (2-0,000) s-quarL feet 1"Urf me
construction of a tailwater recovery system;
3. twenty thotusamd 12fl, SOD; -quare f-ee dor the
,construction of a by-pass canal/channel; and
4. ten thousand (10,000) square feet for the
reconstruction of an existing dike.
(f) There shall not be any filling or dredging of a Salt
�Karsh .
(g) The provisions of 310 CMR 10,-5-3(5. 5d11 txpi)7e three
years from its, effective A=t -e.
F G AND WETLANDS
AN INTRODUCTION TO RULE CHANGES
UNDER THE
MASSACHUSETTS WETLANDS
PROTI;.CTION ACT
MAY 1993
SCS ROLE AND THE CONSERVATION PLANNING PROCESS
SCS FIELD OFFICE TECHNICAL GUIDE AND CONSERVATION
PRACTICE STANDARDS AND SPECIFICATIONS
MASSACHUSETTS CONSERVATION DISTRICTS AND SCS FIELD
OFFICE LISTINGS
DEP and SCS M.O.U.
SCOPE AND SCS ROLE
r-ooe
This MOU applies to the planning, design, construction,
reconstruction, and/or expansion of the following water management
projects undertaken for the support of existing agricultural
production within a Bordering vegetated Wetland ("BVW") as defined
at 310 CMR 10.55(2):
a. existing dikes;
b. new or existing ponds and reservoirs;
C. :ailwater recovery systems; and
d. by-pass canals/channels.
The eroiects described in this Paraarapn will be referred to
in this MOU as "covered croiects."
The Service's lareements
The Service agrees to:
a. coordinate an analysis of each covered project and assure
the following:
i. the project is needed to support existing
agricultural activities (the definition of "land in
agricultural use" Found at 310 CIM 10.04(5) will govern
this determination);
ii. no reasonably available or feasible alternative site
is available for the proposed activity that will avoid
alterations to a BVW;
iii. any resulting alterations of BVW will be the
minimum amount required for the proposed work; and
iv. anv li:aits for alterations of BVW, as established in
the Wetlands Reaulations, are adhered to for any covered
project :nat is intended to qualify under the Wetlands
Regulations either as an "exempt activity" or as a
"limited project";
b. work with farmers to plan resource management systems and
design covered projects according to the Considerations for
Water Quantity and Quality contained in its SCS Field Cffice
Technical Guide Standards and Soecifications (as amended and
,sndatea :rom -,e :o time) . '"he aesian for anv .overed
project will be incorporated into the farm Conservation Plan
(CP) for that =ropert•;. The Service will incorporate into a
CP only projects that meet the requirements of Paragraph
5(a)(i through iv, inclusive), above and of Paragraph 5(c)(i
through iii, inclusive), below;
.....sections taken from DEP/SCS M.O.U. doc.
THE SCS ASSISTED CONSERVATION PLAN
The Soil Conservation Service provides resource planning and
implementation assistance to individuals, groups, and units of
government. Plans are developed and implemented for the
protection, conservation and enhancement of soil, water, air,
plants, and animal resources (SWAPA).
The planning process is dynamic and professional judgment is
applied to determine the proper interaction between elements (shown
on accompanying diagram).
The process provides an orderly approach to conservation decision
making. The process is used in all instances where assistance is
provided to decision makers or clients, regardless of the expected
outcome, scope, or source of funding to be used for implementation.
The degree of detail used in the planning process will vary with
the t,rpe, complexity, method of assistance, and the objectives and
_imitations of client(s).
The planning process consists of nine elements. Each is essential
and generally carried out in sequence. Many of the elements can
occur almost simultaneously in some situations. In most
situations, the various elements will need to be revisited one or
more times as more data are obtained and planning intensifies.
This iterative process may occur at any time and can result in a
change in the focus of the planning effort as new data are obtained
or as the problems and objectives are more clearly defined.
The Purposes of the Process
The purposes of the planning and implementation process are to:
1. Provide an organized system that helps SCS planners work
effectively with decision makers to identify and solve
resource problems, needs, or opportunities, and thereby
facilitate change leading to sustainability in the natural
resource base and the wise use of natural resources.
Z. Help clients recognize and understand natural resource
conservation principles and problems and their causes,
treatment needs, and effects of alternative treatments.
2. Develop and evaluate alternatives that lead to decisions to
select, implement, and maintain conservation treatments and
management on the planned land unit and enable the client to
achieve his/her objectives, as well as social, legal, and
program requirements.
Y. Assess effectiveness of planning and evaluate results of
treatment.
5. Establish a consistent method of providing assistance
nationwide and improve effectiveness in training employees
in the planning and implementation process.
overview of the Planning Process
The following is a brief description of the nine elements:
Element 1 (Identify Problems) is the identification of the resou-�e
�roniems and opportunities in the planning area. This includes
identifying the conditions which are impairing or degrading one or
more of the five resources (SWAPA). It also includes identifying
the opportunities to enhance the use of the resources. The
identified problems and opportunities guide the remainder of the
planning process. Initially, the client may only identify one or
two problems. As planning progresses and additional information is
developed, other problems and opportunities may be identified.
Element 2 (Determine objectives) is developing an understanding,
with the client, of the desired conditions for the planning area as
compared to the existing conditions. This includes the desired
resource uses, resource problem reductions, and environmental
crotection. As resources are inventoried and analyzed, and
�iternatives are formulated, objectives may need to be reviewed and
.:codified.
Element 3 (Inventory Resources) is collection of resource
information, based on the resource problems and objectives
identified in elements 1 and 2, necessary to formulate and evaluate
alternative treatment systems. Information concerning soil, water,
air, plants, and animal resources as well as information about
environmental and, cultural values, and economic and social
conditions will be gathered as needed.
Element 4 (Analyze Resource Data) is the study and evaluation of
the resources data to clearly define the resource conditions,
including any limitations to their use, needed to establish the
--enc-marks for the remaining planning elements. The process
orovides the information needed to formulate and evaluate
alternatives. These analyses should clearly establish the cause
and effect relationships between resources. These analyses should
also provide information about existing and future conditions.
Element 5 (Formulate Alternatives) is developing alternatives which
will achieve the client(s) objectives by solving resource problems
and taking advantage of opportunities to improve the resource base.
All reasonable alternatives should be considered, including those
which will prevent a problem from occurring as well as those which
will address an existing problem. Measures, which mitigate
potential adverse impacts should be included as appropriate.
=lement 6 (Evaluate Alternatives) is the evaluation of the
alternatives to determine their effect in addressing the objectives
and problems. This element also includes an evaluation of the
potential effects on social, economic and environmental concerns.
Special attention must be placed on those environmental values
protected by law or executive order.
lement 7 (Make Decisions is determining which alternative to
implement and includes preparing the necessary documentation of the
decision. Also included is presenting effects and impacts of each
the alternatives to the client so that the client is able to
.rake the best selection from the alternatives to accomplish
established objectives for the planning area. If needed, public
review and comment are obtained before -a decision is reached.
Documentation includes recording the decision in the case file,
preparing the conservation plan or project plan and/or
environmental documents (Environmental Assessment or Environmental
==pact Statement). .
Element 8 (Implement Plan) is implementing the selected
alternative. This includes providing technical assistance for
management practices and obtaining needed permits, land rights,
surveys, final designs, and inspections for structural practices.
�n addition, it also includes the operation and maintenance needed
co assure proper functioning.
iemert (Evaluate Plan) is evaluatlna the effectiveness c_' the
:-aienented plan to (1) he sure teat _t is functioning as pro3ectec
ana achieving the client's objectives, (2) identify maintenance
Needs, and (3) identify needs for modifications in the plan,
practice and/or specification.
A Diagram
of
The Planning Process
Element 1 I Element 2 i
Element 9 I I Element a
Problem Determine
inventory Anatvze
centrtuauon Obiearves
Resources Resources
I I
The nrst tour sreos are aesraneo to set the
state for rormurarmg alternatives ano
mama resource aecwons. eacn Aran IS unroue ana these elements snoufa oe
andreo as a000ronare to me situation.
l
Element 5 Elemenr 6 I Element 7 7 Element 8
Formulate I Evaluate I I Client maKes imoiemernauon
Altematrves Alternatives Decisions
i
These two sreos redo me arem rowsm maano + The aeasrons are mace ano me orannec
•rrm oeasrons nasea on cenrrnee arcofems. DraCaoes are aeor,ec. Aodmonaf rnformanon
esources. altemawes ana oqiearves. aneror chanes rn tecnnotooy may Dromat a
j I rewsron aetore. ounno or arter,maremenranon l
Element 9 is follow uo acumes to evaluate the results ott
;tie aooaeo can. It w
orooss the 0000rtun tv to loam
more aoout tuaevice oenormance. ana nelos wnn the
SCS ooiectrve 10 imorove tecnnomay.
THE FIELD OFFICE TECHNICAL GUIDE
A Guide to Good Conservation
The Field Office Technical Guide (FOTG) is one of the most
important tools used by the Soil Conservation Service (SCS) field
cffice statfs in carrying out the conservation programs of the
agency.
The FOTG is an intearal part of conservation planning. It is used
with the SCS National Planning Manual, which contains policies and
procedures for providing decisionmakers with technical assistance
for all SCS programs.
The guide represents the latest conservation treatment technology.
It helps SCS decisionmakers identify resource problems, evaluate
the effects of conservation treatments, compare alternatives, and
select the best options to meet conservation needs and objectives.
FOTG is a dynamic document that continually changes to
-nccrvorate new technology and experience.
-o update the guide, SCS relies heavily on input from universities
and experiment stations, SCS plant materials centers, the U.S.
Department of Agriculture's Agricultural Research Service and
Extension Service, the U.S. Environmental Protection Agency, and
other federal and state agencies. SCS works closely with these
groups to apply new technology to SCS programs.
The guide was developed mainly for SCS use. It is, however, a
public document that is available to states; other federal
agencies; and urban planners, developers, and consultants who are
interested in applying effective conservation measures.
At rirst glance, the FOTG appears to be the same in one field
crfice as it is in another. Actually, the information inside
applies specifically to the unique combination of resources in each
Individual field office area.
Section I of the guide contains general references to help SCS
conservationists understand all the physical, legal, and other
Factors affecting conservation in the area so that good decisions
about the use of natural resources and conservation management
systems can be made. The laws, ordinances, regulations, maps,
costs, resources, erosion predictions, and climatic and cultural
data included in this section deal with agronomy, biology,
Forestry, soils, engineering, and economics.
In Section II, soils specific to the field office area are
described. Information about their limitations, suitability, and
potential for rural and urban land uses --in respect to water
management, construction materials, sanitary facilities, building
site development, wildlife habitat, recreational development,
windbreaks and environmental plantings, and woodland management and
productivity --is also included.
section III has guidelines for developing conservation management
systems that combine sound, practical, effective conservation
practices and management measures that fit local field conditions.
This section describes the considerations that must be addressed to
solve resource problems using the best available technology.
section IV describes the standards and specifications for applying
selected conservation practices, such as by-pass channels, dikes,
grassed waterways, and ponds.
section V contains information regarding the environmental, social,
cultural, and economic effects of installing and maintaining
conservation practices.
The FOTG is the focus of SCS technical expertise in agronomy,
biology, ecology, economics, engineering, forestry, geology,
sociology, and soil science. It plays a key role in helping
decisionmakers use the best technology available in applying
conservation treatments that will ensure, For the benefit of future
generations, the prudent management of soil, water, air, and
_elated plant and animal resources.
.eid Office Tecnnieai Guide
Mon
DEFINiTiON
iter ;mooundment made by constructing_ a dam
zi _:nr)ankment or by excavatine a: -.it or
_.,ut.
,his ,tundard. ponds constructed by the first
-etnou are referred to as embankment ponas. and
-.ose �,)nstructed by the second method are
-eterred to as excavated ponds. Ponds constructed
both the excavation and the emoankment
methods are classified as embankment ponds if the
4th of water impounded against the embankment
a sptilwav elevation is 3 ft. or more.
PURPOSE
,rovtde .pater for livestock. fish. %viidlife.
__reason, tire control. crop and orchard sDravine.
::a diner reratea uses. and to maintain or tmorove
.,iter quality.
CONDITIONS WHERE PRACTICE APPLIES
General- This standard establishes the minimum
.__eptable quality for the design and construction
ponds it:
Failure of the dam will not result in loss of life:
n damage to homes. commercial or industrial
-)uiidings. main highways. or railroads. or in
aterruption of the use or service of public
al ities.
_. The product of the storage times the effective
ieieht of the dam is less than 3.000. Storage is
,he volume. in acre-feet, in the reservoir below
.he eievation of the crest of the emergency
Pond -3 73-1
spillway. The effective height of the dam is the
difference in elevation. in feet. between the
tmergencv spiilwav crest and the iowest point
in the cross-section taken alone the . anterrine of
he dam. If there is no emergercv sptilway. ,ze
,op of the dam is the upper limit.
. The effective height of the dam is 35 ft. or iess.
and the dam is hazara class tat. dee section
National Engineering Manuai. or
definition of dam classes.
Ponds exceeding the above shall he designed
and constructed according to the requirements or
Technical Release (TR) 60.
Site Conditions- Site conditions snali be such that
.anorf from the design storm tsee Table t i .an ne
<ateiv passed througn (I ; i naturai or ,onstruct.;r
mergence_ sptilwav, a :,)mbination r ..
principal spillway and an emergency sptilwav, r
3) a principal spillway.
Drainage Area- The drainage area above the pond
must be protected against erosion to the extent that
expected sedimentation will not shorten the planned
effective life of the structure. The drainage area
shall be large enough so that surface runoff and
;roundwater flow will maintain an adequate suppiv
of water in the pond.
Runoff water from barnyards. :2z!dlots. ,enttc
ranks, barn urains. r )tner-ources
_ontaminatton snall be diverted so as not to low
nto ponds to be used for urinking «iter sunpty.
livestock water supply. ,ish aria wildlife. r
recreation. The quality shall be suitable for the
water's intended use.
Reservoir Area- The topography and soils or the
site shall permit storage of water at a depth and
volume that ensure a dependable -uopiv.
considering beneficial use. sedimentation, season or
use. and evaporation and seepage losses. It surface
runoff is the primary source of water for a pond.
:he soils shall be impervious enough to prevent
excessive seepage losses or shall be of a type that
<ealing is practicable.
Legal- The landowner or operator must be advised
that it is his/her responsibility to secure easements
and necessary permits to compiv with applicable
federal. state and local laws and regulations.
SCS - AIA
SEPTEMBER 1992
_; , -1-Pond
WOMM11131;_; •
Water Ouanuty
sects upon components of the water budget.
_soeciaily erfects on voiumes and rates of
-snort. Infiltration, evaporation. transpiration.
_:eo percolation, ana grounawater recharge.
-. '• anabiiity of effects caused by seasonal or
.::uratic changes.
:. Efects on the downstream rlows or aquifers
.-at couid affect other water uses or users.
"ntiai for muitipie use.
.n the voiume or downstream flow to
-.:nintt _naesirable environmentai. soctai or
__„nomic errecu.
Water Ouaiity
Effects on erosion and the movement or
sediment, pathogens. and soluble and sediment -
attached substances that are carried by runoff.
Effects on the visual cuaiity of onsite and
jownstream water resources.
Short-term and construction-reiated effects of
,,its practice on the quality or downstream
�.jtercourses.
_:feces r water levei _oniroi n the
moerarures of downstream waters to prevent
.muesirea eftects on aquatic ind %viidlife
.ommunittes.
. Effects on wetlands and water-reiated wildlife
aoitats.
Effects or water levels on soil nutrient processes
"ucn as plant nitrogen use or denitrification.
Effects or soil water level control on the salinity
,,t soils. soil water, or downstream water.
il,•rentiai -or earth moving to uncover or
: euistrinute toxic materials sucn as saline soils.
SCS - t /A
SEPTEMBER 1992
1. If damage to the embankment from burrowing
animais is anticioated, consider piacing a barrier
(wire. riprap, etc.) in or on the till during
construction to prevent burrowing.
2. If beaver are prevalent in the area, consider
If beaver are prevalent in the area, consider
constructing principal spillways, if used. that
are resistant to beaver piugging.
DESIGN CRITERIA - GENERAL
Site Investigations- Sufficient soli investigations
shall be maae of the structure site ana borrow areas
.o determine the suitability of the site ana materials
'or construction. _�trucrure stability na water
holding ability, as applicable. Site investigations
will be maae in accordance with the National
Engineering Manual (NEM), Part 531.
Drainage Area- Unless a dependable source of
water drains to the pond, the drainage area should
be at least 3 acres per acre-foot of water to be
stored when the predominate soils in the drainage
area are classified in hydrologic drologic soils groups C and
D. or 4 acres per acre-foot of storage for
hydrologic soil groups A and B.
DESIGN CRITERIA
FOR EMBANKMENT PONDS
Structure Classification- Documentation of the
Jassiricauon of dams is required. Documentation
is to include but is not limited to location and
description of the dam, configuration of the valley.
description of existing development thousei.
utilities, highways, railroads, farm or commercial
buildings, and other pertinent improvements).
potential for future development. and recommended
classification. It is also to include results obtained
from breach routings, if breach routings are used
as part of the classification process. Refer • to
Technical Release (TR) 66 for procedures to follow
for breach routing. Strucrure ciassirication and
:and use for runoti determination must take into
consideration the anticipated changes in land use
throughout the expected life of the structure.
Foundation Cutoff- A cutoff of relatively
impervious material shall be provided under the
ER�A�A�`F�3:Pt3ND�
General
_-ristruction operations snail be carried out so
:nat erosion and air and water poliution are
-:nimized. State ana local laws .6ncernin2
- `liution aDatement viii be toilowea. l %vorK
naii be conauctea in a sxiiltul ana DroteSSionai
,,annex. The compietea job shall present a
nroressionat appearance.
`,leasures and construction methods that enhance
:ish and wildlife vaiues shall be incorporated as
needed and practical. Fencing and cover to
:untrol erosion and pollution shall be established
as needed. Appropriate safety measures. such as
warning signs. rescue facilities. :Ind tenting,
hall be provided as needed.
The pond shall he constructed to the lines.
ales. and elevations as staked in me --id. and
.s snown on the construction drawings.
Site Preparation
The foundation area shall be cleared of trees.
:oLys. stumps, roots. brush. boulders. sod, and
nabbish to a minimum depth of 6 inches below
-he original Lyround surface. Trees, stumps.
.febris and spoil removed in the ciearing and
stripping operations shall be disposed of as
,iirected by the owner or his or her
:presentative. Sufficient topsoil shall he
stockpiled and spread on the completed spoil
',inks and spillways.
�i
Spoil shall be deposited not less than 10 feet
`rom the edge of the excavation. or as shown on
Pond -.i 78-19
:ne drawings. Spoil banks are to be ieveied
urficientiv for proper seeaine and maintenance.
Protection
-xposed surfaces of the embankment not covereu
"y the permanent pool. �'egetatea spiiiways. anu
<uch other areas designated on the pians wiii he
seeded or sodded. Fertilizing. seeding. :nu
muichine will be applied in accordance with the
Critical Area Planting Specifications (342). All
.areas, including till. borrow ana disturbed areas.
"%ail be revegetated as soon as possibie arter.
:onstruction is comDleted. `,York completed
luring seasons when a permanent seeding is not
.�asible wiil be seeded to a temoorary stapilizins_
the primary purpose ur ine ponu is for water
'upply or tisk and wildlife. and the structure u
located in permanent pasture or is otnerwise
:accessible to iivestock, an area surrounding the
_arth till and the pond. Including vc-_etauve
spillway, shall be fenced to exclude iivestock.
The fence shall be placed at least 40 teet trom
.he sides of the pond at normal water level. The
'ante shall be located between the earth till and a
.ank or trough at the outiet of the water suppiv
pipe. Fencinz shall be installed in accordance
With the requirements or Practice Standaru
Fencing.
SCS - 11A
SEPTEMBER 1992
SOIL CONSERVATION SERVICE OFFICES IN MASSACHUSETTS
State Headquarters
451 West Street
Amherst, MA 01002-2927
Tel. 413 253-4375
Richard A Gallo, State Conservationist
Barnstable, Field Office
Flintrock Road
P.O.Box 709
Barnstable, MA 02630
Tel: 508 362-9332
Donald W. Liptack, District Conservationist
Serving Cape Cod, Dukes and Nantucket Conservation
Districts
Greenfield Field Office
55 Federal Street
Hayburne, Building
Room 270
Greenfield, MA 01301
Tel: 413 772-0384
Charles G. Truax, District Conservationist
Serving Franklin Conservation District
Holden Field Office
The Medical Arts Center Building
52 Boyden Road
Holden, MA 01520-2587
Tel:508 829-6628
Ronald E. Thompson, District Conservationist
Serving NE, NW and S. Worcester Conservation Districts
Northampton Field Office
Potpourri Mall
243 King Street, Room 39
Northampton, MA 01060
Tel 413 586-5440
Diane M. Leone, District Conservationist
Serving Hampden and Hampshire Conservation Districts
Pittsfield Field Office
78 Center Street (Arterial)
Pittsfield, MA 01201
Tel: 413 443-6867
Mark W. Grennan, District Conservationist
Serving Berkshire Conservation District
Taunton Field Office
Colonial Trust Building
21 Spring Street
Taunton, MA 02780
Tel: 508 824-6668
Leonard R. Reno, Jr., District Conservationist
Serving Bristol,Norfolk, and Plymouth Conservation
Districts
Westford Field Office
319 Littleton Road
Westford, MA 01886
Tel: 508 692-1904
Daniel J. Lenthall, District Conservationist
Serving Essex, Middlesex and Suffolk Conservation
Districts
CONSERVATION DISTRICTS
BERKSHIRE CONSERVATION DISTRICT
78 Center Street (Arterial), Pittsfield. MA 01201
413-443-1776
BRISTOL CONSERVATION DISTRICT
21 Spring Street, Taunton, MA 02780
508-822-4318
CAPE COD CONSERVATION DISTRICT
P.O. Box 296, West Barnstable, MA 02668
508-362-6327
DUKES CONSERVATION DISTRICT
Box 1010, Edgartown, MA 02539
508-693-7775
ESSEX CONSERVATION DISTRICT
5 Preston Street, Hathorne, MA 01937
508-777-0391
FRANKLIN, HAMPDEN, & HAMPSHIRE CONSERVATION DISTRICTS
243 King Street, Rm. 39
Northampton, MA 01060
413-584-1464
MIDDLESEX CONSERVATION DISTRICT
319 Littleton Road, Suite 205, Westford, MA 01886
508-692-9395
NANTUCKET CONSERVATION DISTRICT
10 South Beach, Nantucket, MA 02554
508-228-7230
NORFOLK CONSERVATION DISTRICT
460 Main Street, Walpole, MA 02081
508-668-0995
NE, NW and SO. WORCESTER CONSERVATION DISTRICTS
91 McCormick Road, Spencer, MA 01562
508-885-2595
PLYMOUTH COUNTY CONSERVATION DISTRICT
40-48 North Main Street
Middleboro, MA 02346
508-947-7863
SUFFOLK CONSERVATION DISTRICT
95 Berkeley Street, Suite 632B, Boston, MA 02116
617-451-9141
L, s
Farming & Wetlands
Introduction
0 The Massachusetts wetlands law
• The rule change process
0 The importance of agriculture
Massachusetts
Wetlands Protection
Act
Statute enacted 1972
Contains exemption for "work performed for
normal maintenance or improvement of land in
agricultural or aquacultural use."
Reflects understanding:
Value of agriculture to commonwealth
Farming requires active relationship
with soil and water resources
Certain activities are necessary to
support existing production
Need to reduce regulatory burden for
ongoing operations
Rule Change Process
1991 legislation established farmland advisory
committee (FAC) to advise and assist DEP in
clarifying the exemption
DEP, DFA, FAC, Agriculture and the Environment
Committee, farm and environmental
representatives proposed draft regulations
Draft regulations to public hearing and
comment period
Regulations revised
Environmental Notification Form (ENF) To
Executive Office of Environmental Affairs
(MEPA unit)
ENF Certificate required additional
revisions
Final regulations promulgated
Public Interests
of Agriculture
Productive function
Economic function
Cultural function
Amenity function
Biodiversity/habitat function
Recreation function
I I 4
Remember:
Agriculture is a "primary industry"
Farm is considered a whole, integrated system
Some activities don't "look good"
Agriculture is changing
Agricultural policies &practices
increasingly shaped by environmental
considerations
Regulations are not a "perfect" document
Use a problem solving approach
Balance use & protection, sustaining both the
resource and the farm
LEONARD KOPELMAN
DONALD G. PAIGE
ELIZABETH A. LANE
JOYCE FRANK
JOHN W. GIORGIO
BARBARA J. SAINT ANDRE
JOEL B. BARD
EVERETT J. MARDER
JOSEPH L. TEHAN, JR.
WILLIAM HEWIG III
THERESA M. DOWDY
PATRICK J. COSTELLO
KOPELMAN AND PAIGE, P.C.
ATTORNEYS AT LAW
101 ARCH STREET
BOSTON. MASSACHUSETTS 02110-1137
BOSTON OFFICE
16171 051.0007
FAX 16171 651-2735
NORTHAMPTON OFFICE
14131 585-8632
WORCESTER OFFICE
15081 752-0203
September 27, 1993
Essex Process Servers, Inc.
2 Salem Green
P.O. Box 3043
Salem, MA 01970
KAREN V. KELLY
DEBORAH A. ELIASON
JEANNE S. MCKNIGHT
JUDITH C. CUTLER
ANNE -MARIE M. HYLAND
RICHARD BOWEN
CHERYL ANN BANKS
DAVID J. DONESKI
BRIAN W. RILEY
KIMBERLY A. HOLLIDAY
MARY L. GIORGIO
KATHLEEN E. CONNOLLY
JOHN G. GANNON
Re: North Andover Conservation Commission v. Paul E. Mscisz
Essex Superior Court, C.A. No. 93-2187D
Dear Sir/Madam:
Enclosed please find an original Interlocutory Order
Continuing Restraining Order in force until hearing on October 7,
1993, as well as the Court's notations on Plaintiff's Motion for
A Preliminary Injunction. Kindly serve these documents on the
defendant Paul E. Mscisz at 18 Willow Street, North Andover.
Please send a copy of your return of service, along with a bill
for services, to me at this office.
If you have any questions in this regard, please do not
hesitate to contact me. Thank you for your assistance in this
matter.
Ve �t y
thleen Co y
r`
KEC/cal
Encs.
cc: Conservation Commission (w/o encs.)
PRINTED ON RECYCLED PAPER
APPLICATION IT ADULT
NUMBER
Trial Court of Massachusetts
FOR COMPLAINT ❑ JUVENILE
00003 No. Andover
District Court Department\a
❑ ARREST HEARING ❑ SUMMONS ❑ WARRANT
COURT DIVISION
The within named complainant requests that a complaint issue against the within
LaWIVICe DMU10 Coctrt
named defendant charging said defendant with the offense(s) listed below.
Str@et
DATE OF APPLIC ION
9/27/93
DATE OF OFFENSE
1 8/30/93
PLACE OF OFFENSE'
No. Andover
La%wence Ma 01840
NAME OF COIOLAINANT
Richard P. Doucette
NO.
OFFENSE
G.L. Ch. and Sec
ADDRESS AND 71P CODE OF COMPLAINANT
Conservation Dept.
t
filling of wetlands w/o permit
Town of No. Andover
2.
NAME, ADDRESS AND ZIP CODE OF DEFENDANT
UjStnCt COUrt, t_awrence
Paul T. Mscisz
3.
Report to: 82 Amesbury
1
18 Willow S t ree t
No. Andover, Mass. 01845
4.
COURT USE
A hearing upon this complaint application DATE OF HEARING TIMEOFHEARING
COURT USE
ONLYI
will be held at the above court address on 10/5/93 AT 10:20 A.M.
*—ONLY.
CASE PARTICULARS — BE SPECIFIC
NAME OF VICTIM
DESCRIPTION OF PROPERTY
VALUE OR PROPERTY
TYPE OF CONTROLLED
NO.
Owner of property,
Goods stolen, what
Over or under
SUBSTANCE OR WEAPON
person assaulted, etc.
destroyed, etc.
$250•
Marijuana, gun, etc.
1
2
3
4
OTHER REMARKS:
cc: John Richard Hucksam, Jr., 100 Hathorne Office Prk, 491 Maple St. ,Danvers, Mas. 01923
Kathleen E. Connolly, Esq., c/o Town of North Andover
x _
SIGNATURE OF COMPLAINANT
DEFENDANT IDENTIFICATION INFORMATION — Complete data below if known.
DATEOFBIRTH
PLACE OF BIRTH
SOCIALSECURITYNUMBER
SEX
RACE
HEIGHT
WEIGHT
I EYES
HAIR
OCCUPATION
EMPLOYER/SCHOOL
MOTHER'S NAME (MAIDEN)
FATHER'S NAME
DC•CR2 (3188)
ALAN L. GRENIER
MICHAEL, P. McCARRON
JAMES M. NORRIS
JOHN RICHARD HUCKSAM, JR.
STEPHEN D. GUSCHOV
GRENIER & MCCARRON
ATTORNEYS AT LAW
100 HATHORNE OFFICE PARK
491 MAPLE STREET
DANVERS, MA 01923
(508)777-7000
TELECOPIER 15081 777-6803
OF COUNSEL
JEFFREY A. SCHREIBER
JAMES J. MEEHAN
September 22, 1993
The Clerk Magistrate
Lawrence District Court
380 Common Street
Lawrence, Massachusetts 01840
RE: Town of North Andover - Notice of
Violation of Wetland By -Law, No. 00003
Dear Clerk Magistrate:
This law firm represents Paul T. Mscisz regarding the
above -captioned matter.
On behalf of Mr. Mscisz, I hereby request a non -criminal hearing
on this matter.
I have enclosed a copy of such Notice of Violation.
Thank you for your help. Please inform me of the date and time
of such hearing when it has been scheduled.
ry truly your,
ohn Richard "Hucksam, Jr.
JRH:eaf
Enclosure
cc: Mr. Paul T. Mscisz
cc: Kathleen E. Connolly, Esq.
cc: Mr. Richard Doucette
s
TOWN OF NORTH ANDOVER
NOTICE OF VIOLATION OF WETLAND BYLAW
00003
1:1
X Unable to obtain signature of offender. Date Mailed
IX Citation mailed to offender
THE FINE FOR THIS NON -CRIMINAL OFFENSE IS $
YOU HAVE THE FOLLOWING ALTERNATIVES WITH REGARD TO
DISPOSITION OF THIS MATTER.
(1) You may elect to pay the above tine, either by appearing in person
between 8:30 A.M. and 4:30 P.M., Monday through Friday, legal holidays
excepted, before: The Conservation Office, Town Hall, 120 Main St., North
Andover, MA 01845 OR by mailing a check, money order or postal note to
the Conservation Office WITHIN TWENTY-ONE (21) DAYS OF THE DATE
OF THIS NOTICE. This will operate as a final disposition of the matter, with
no resulting criminal record.
(2) If you desire to contest this matter in a non -criminal proceeding, you
may do so by making a written request, and enclosing a copy of this citation
WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS NOTICE TO:
The Clerk -Magistrate, Lawrence District Court
380 Common St., Lawrence, MA 01840
ATTN: 21D non -criminal
(3) If you fail to pay the above fine or to appear as specified, a criminal
complaint may be issued against you.
❑ A. I HEREBY ELECT the first option above, confess to the offense
charged, and enclose payment in the amount of $
XX I HEREBY REQUEST a non -criminal hearing on this matter.
Signature *= ��✓��
WHITE: OFFENDER'S COPY YELLOW: CONSERVATION COPY
PINK: POLICE COPY ^OLD: rnURT COPY
ti
09/15/93 10:54 $ 2002
COMMONWEALTI4 OF MASSACHUSETTS
ESSEX, SS.
SUPERIOR COURT
C.A. NO.
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
Plaintiff,
V.
VERIFIED COMPLAINT
PAUL E. MSCISZ,
Defendant.
STATEMENT OF THE FACTS
This is an action seeking injunctive relief and civil
monetary penalties pursuant to the Wetlands Protection Act, G.L
131, §40 ("the Act"), and the Town of North Andover Wetlands
Protection By-law, Chapter 178 ("the Sy -law"), for violations of
said Act and By-law. Jurisdiction is conferred upon this Court
by the Act and the Court's general equity jurisdiction.
COMPLAINT
Parties And Facts
1. Plaintiff Town of North Andover ("the Town") is a
municipal corporation located in Essex County, Massachusetts,
acting by and through the North Andover Conservation Commission
("the Commission"), having a usual place of business at North
Andover Town Hall, 120 Main Street, North Andover, Massachusetts.
The Cammission is charged with enforcing the Act and By-law.
2. Defendant Paul E. Mscisz ("Mscisz") is an individual
residing and owning land located at 18 willow Street, North
Andover, Massachusetts ("the Site").
1
f
09/15/93 10:54 $ Cj003
3. in 1991, Mscisz cleared several thousand square feet of
woodlands on the Site. The Commission subsequently met with
Mscisz and informed him that a portion of that clearing occurred
in a wetlands, in violation of the Act and By-law. Mscisz was
informed that said clearing, and any future clearing or work
activity, required the approval of the Commission.
4. In 1992, the Commission received a report that Mscisz
was conducting new work in wetlands on the Site. On or about
September 9, 1992, the Town's Conservation Administrator ("the
Administrator") inspected the Site with Mscisz. The
Administrator observed that Mscisz was removing vegetation,
grading, and altering land adjacent to a wetlands in an apparent
attempt to develop a walking track for horses and to improve
drainage qn the Site. The Administrator informed Mscisz that
such work activity would require approval from the Commission
pursuant to the Act and By-law.
S. On September 17, 1992, the Administrator discovered new
illegal work on the Site, including filling and grading land
within a wetlands.
6. On or about September 22, 1992, the Administrator
notified Mscisz that his work activity was being conducted in a
wetlands and would require permission from the Commission. The
Administrator requested Mscisz to appear at the Commission's next
meeting on October 7, 1992, to discuss the illegal work activity.
(A true and accurate copy of the September 22, 1992
correspondence from the Administrator to MQcis2 is attached
hereto to as Exhibit A.)
2
09/15/93 10:55 $
7. Mscisz did not appear at the October 7, 1992 meeting of
the Commission, nor did he respond to the Administrator's letter
of September 22, 1992.
8. On or about October 8, 1992, the Commission issued an
Enforcement Order to Mscisz pursuant to the Act and By-law ("r -he
October 8, 1992. Order"). That Order informed Mscisz that he was
required to obtain the approval of the Commission to perform
construction, grading or filling in the wetland. That Order
stated that no construction activity of any kind was allowed on
the Site until approval was granted by the Commission. The
Commission directed Mscisz to appear at its next meeting on
October 21, 1992. (A true and accurate copy of the October 8,
1992 Order, with return receipt, is attached hereto as Exhibit
B.)
9. Mscisz never appealed or complied with the terms of the
October 8, 1992 Order.
10. On or about October 21, 1992, the commission required
Mscisz to file a Notice of Intent pursuant to the Act and Sy -law
for the work that was undertaken on the Site. (A true and
accurate copy of the minutes of the October 21, 1992 meeting car
the Commission are attached hereto as Exhibit C.)
11. On or about October 29, 1992, the Administrator
provided Mscisz with instructions and forms to file a Notice of
Intent with the Commission. The Administrator informed Macisz
that all work was to stop until he received a permit from the
Commission under the Act and. By --law. (A true and accurate copy
of the October 29, 1992 correspondence from the Administrator to
[a 004
A
09/15/93 10:56 %T
Mscisz is attached hereto.as Exhibit D.)
12. Mscisz never responded to or complied with the October
29, 1492 correspondence and instructions from the Administrator.
13. On or about May 14, 1993, the Commission issued a
second Enforcement Order to Mscisz pursuant to the Act and By-law
(,the May 14, 1993 Order"). The Commission informed Mscisz that
he was illegally filling land and stockpiling soil within and
adjacent to a wetland in violation of the Act and By-law. Mscisz
was ordered to immediately cease and desist from any further
activity affecting wetlands and to immediately correct the
violations and return the Site to its orl.ginal condition. The
Commission informed Mscisz that he was required to submit
completed application forms and plans to; and require approval
from, the Commission for his work activity. The Commission
directed Mscisz Lo attend its next meeting on. May 19, 1993 to
discuss the requirements. (A true and accurate copy of the May
1.4, 1993 Order and cover letter thereto, with return receipt, are
attached hereto as Exhibit E.)
14. Mscisz never complied with or appealed the May 14, 1993
Order issued by the Commission.
15. On or about May 24, 1993, the Commission conducted an
inspection of the Site with Mscisz. The Commission informed
Mscisz that the stockpiled soil was illegally located within a
wetlands.
16. On or about June 2, 1993, the Administrator and a
2005
certified soil scientist conducted -}-aAite inspection wwitdhMsisz . , p
�fNude&t:J 1 :"� within al�t�
Mscisz was informed that
4
SEP 15 '93 10:03 KOPELMAN AND PAI
1/7
wetland4�in violation of the Act andsy-law.
17. On August 30, 1993, the Administrator inspected the
Bite and observed that Mscisz was in the process of filling
wetlands with the soil he had illegally stockpiled on the Site.
.Mscisz had not restored the Site to its original condition, not
had he stopped filling land and stockliling soil in and adjace4t
to wetlands, as required by the Commission's May 14, 1993 Orciat.
Furthermore, Mscisz had not filed a Notice of Intent with the
Commission.
j
18. On September 2, 1993, the Cbmmission issued a third
Enforcement Order to Mscisz pursuant to the Act and By-law ("the
I
September 2;.1993 Order"). The Commission informed Mscisz t.hats
I
filling wetlands with the stockpiled,�oil constituted a violation.
of the Act and By-law, and that Macisz was ordered to cease and
desist from any additional wetlands filling. The Commission also
i
ordered Mscisz to remove -said fill from the wetlands. (A true
and accurate copy of the Commission's September 2, 1993 Order Is
attached hereto as Exhibit F.)
i
i
19. As of the date of this Complaint, Mscisz has not
complied with the Commission's three enforcement Orders.
Wetlands Protection. act,L.c. 131, 140
20. The Act, G.L. c. 131, 940., States that, "No person
i
shall remove, fill, dredge, or alter any...fresh water
i
wetland ... without filing written notice of hi§ intentions; [.wi,tlt
i
tha conservation commissionl ... and without receiving and
comRlying with an order or conditioLgj,�[issued by the conservation
commission)...." [emphasis added] . The dict also states that A
5
SEP 15 '93 10:04 KQPELMAN AND PAIGE
P.2/7
conservation commission "may issue enforcement orders directing
compliance with the [the Act] and may undertake any other
enforcement authorized by law."
21. The Act further states that; "Any court having equity
Jurisdiction may restrain a violation of this section and entie3t
such orders as it deems necessary to remedy such violation...."
'The. Act also provides that, "Whoever violates any provision of
this [Act], (a) shall be punished by a fine of not more than.
twenty-five thousand dollars or, key imbrisonment for not more than
two. years, or both such fine and imprisonment; or (b), shalljb%
SUbject to a civil penalty not to exc ed twenty-five thousand
!dollars for each violation-" [emp.hae�s added]
North Andover's wetlandp Pi rotection By-law
1
22. The By-law states at chapter 178.2 that, "Except as
permitted in writing from the Conservation Commission... no ptrdod:
-shall engage in the—removal, filling, dredging, discharging)
into, building upon, or otherwise altering or degrading—any
'freshwater wetland...or any land—subject to storm flowage, of
flooding, or inundation by groundwater or surface water, and the
floodplain. The Commission shall not grant such permission
without receiving notice of the iznten�ion to conduct such
activity, and without issuing writtenlpermission to do so...."
i
Wrrue and accurate copy of the By-law is attached hereto as
-Exhibit F.)
23. Section 10 of the By-law states that, "In the event Of
a violation of this Bylaw..., the Commission or its agents Ma
isaue a stop order to the owner.... any person who shall violates
ro
SEP 15 '93 10:05 KOPELMAN AND PAIGE :P.3i7
i
the provisions of a stop order shallibe deemed in violation,of�
the By-law;..." The By-law also.proVides that, "Any person VhO
vi6lates any provision of this By -1.a ... may be punished by a
fine pursuant to Massachusetts General Laws, Chapter 40, section
21.
19. As of the date of this.Com�laint, Mscisz has not
I
complied with the October 8, 1992, M4y 14, 1993, or September 21
1993 Enforcement Orders. In fact, Ms'cisz recently resumed
filling and altering wetlands, in b14tant violation of those
Orders. He has not restored the illegal wetland alterations.
Mscisz has not submitted a Notice of.,Tntent or received an Ord6r
i
of'Conditions to restore the illegally altered wetlands and
perform future work activity on the gzte. Mscisz`s actions,
i
therefore, Constitute a flagrant violation of the Act and By*likw:,
Those violations may be restrained bl this Court and his
violations are subject to mandatory griminal or civil penalties
as specified in the Act, G.L. c. 131, 540, and fines provided in
i
G.L. c. 40, X21 as specified in the $y -law.
PRAYERS FOR HgL;IEF
I
WHEREFORE, the Commission requests this Honorable Court:
1. Issue a Temporary Restraining Order ordering the
defendant Paul E. Mscisz to immediat6ly cease and desist any
filling, grading, removal of vegetation, stockpiling or dispbeal
of.soil or other materials, or operation of any machinery (e.g:.,
backhoe, truck, grader, saw) on the bite located at 18 Willo*
Street, North Andover,
i
7
SEP 15 '93 10:05 KOPELMAN AND PAIGE P.4i7
2. Issue a Short Order of Notice for a hearing on a
preliminary injunction.
3. issue a preliminary injunction, ordering Paul E. Mbcisk
to immediately comply with the Oc.tob�r 8, 1992, May 14, 1.99.3, *nd
September 2, 1993 Orders issued by the commission pursuant tm thit
.Act and By-law for the land located 4t 18 Willow Street, North
Andover ("the Site") by:
(a) Immediately ceasing and desisting from further
work activity on the Site affecting wetlands and the 1.00 foot
buffer zone thereto, including, but .'ot limited to, filling,'
grading or removal of vegetation;
(b) Immediately correcting wetland alterations and
i
returning the wetlands to their orig� nal.. condition, including,
but not limited to, removal of stockpiled soil within the
wetlands and 100 foot buffer;
(c) Immediately filing with the Commission a complete
i
Notice of Intent in compliance with: the Act and By-law, which
skull include, among other items: Wi a description of all
wetland areas altered by Mscisz or his agent; (ii) a schedule For
restoration of all such altered wetl4nd areas; (iii) an
engineered plan designating all original (that is, pre-alt+ered�
and current wetland boundaries on this Site Said Notice of
Intent shall be submitted.to the Commission no later than thirty
(:30) days after the date of the Courtil Order;
(d) Immediately placing a.jcontinuous row of double -
staked hay bales upgradient of and mound the perimeter of the
i
wetlands on the Site to prevent further siltation, sedimentation.,
8
SEP 15 93 10:06 KOPELMAN AND PAIGE _ P.5/
and alteration of the said wetlands;
4. Issue a permanent injunction, ordering defendant.Ra►41
E. Mscisz to immediately comply with)the October 8, 1992, May 14'1
1993, and September 2, 1993 Enforcem�n.t Orders issued by the
Commission pursuant to the Act and By-law for the land located at
18 willow Street, North Andover ("th Site") byc
(a) Immediately ceasing and de�isting from further work
I
activity on the Site affecting wetka4ds and the 100 foot buffer
zone thereto, including, but not lim ted to, filling, grading,or
,removal of vegetation;
i
(b) Immediately correcting wetland alterations and
returning the wetlands to their orig. nal condition, including,
but not limited to, removal of stockliled soil within the
wetlands and 1.00 foot buffer;
(c) Immediately filing with the Commission a complete
t
Notice of Intent in compliance with the Act and By-
law, which
shall include, among other items: (i!) a description of all
wetland areas altered by Mscisz or his agent; (ii) a schedult four
restoration of all such altered wetland areas; (iii) an
engineered plan designating all original (that is, pre-alter*d)
and current wetland boundaries on this Site. Said Notice of
i
intent shall be submitted to the Commission no later than thirty,
(30) days after the date of the Court Order;
(d) immediately placing a continuous row of double -stake -0
hay bales upgradient of and around the perimeter of the wetlands
on the Site to prevent further siltatjion, sedimentation, and
I
alteration of the said wetlands;
9
SEP 15 '93 10:07 KOPELMAN AND PAIGE ! P.6i7
i
5. Impose a civil penalty, pursuant to the Act, in such
amount as the Court shall regard as proper and just, for eadh.dajy
of the continuing violation.
i
6. Impose a civil penalty, pursuant to the By-law, in #udh,
,amount as the Court shall regard as proper and just, for each doy
of! the continuing violation. l
7. Award the Commission its reasonable attorneys' fees 4nd
costs.
8. Grant such other further r�lief as this Court may d6sm
proper.
Respectfully submitted,
TOWN O� NORTH ANDOVER
CONSER ATION COMMISSION
By its attorneys,
i
I
Joel B' Bard (BBO #029140)
Kathle4n E. Connolly (BBO ##5587%)
Kopelm4n and Paige, P.C.
Town' Counsel
101 Arch Street
Boston,! MA 02110
(617) 451-0007
Date:
x5033
10
SEP,15 '93 10:07 KOPELMAN AND PAIGE P.7i7
VER1F;ghJJON
-T certify that Y have read the Foregoing Verified Compla*t
and that the facts contained therein are based upon my personal
knowledge or upon information avail.a4le to me in my official
capacity as Agent for the Town of Noith Andover Conservation
Commission and are true and accurate t6 the best of my knowltdbej
and belief.
Signed under the pains and penalties of perjury this
day of September, 1993.
x5433
Richard P. Doucette,
Conserv'ation Administrator,
Town .of North Andover
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
PLAINTIFF
V.
PAUL E. MSCISZ,
DEFENDANT
SUPERIOR COURT
C.A. NO. 93-2187D
PLAINTIFF'S MEMORANDUM IN
SUPPORT OF ITS MOTION FOR
INJUNCTIVE RELIEF
The plaintiff, Town of North Andover Conservation
Commission, hereby submits the following Memorandum in support of
its request for a preliminary injunction.
I. STATEMENT OF FACTS
The plaintiff brings the instant action in order to compel
the defendant Paul E. Mscisz to comply immediately with the
Wetlands Protection Act, G.L. c. 131, §40, the regulations
promulgated thereunder at 310 CMR 10.00, et sea., the Town of
North Andover Wetlands Protection By -Law, Chapter 178 ("the By -
Law"), and the three Enforcement Orders issued by the Town of
North Andover Conservation Commission ("the Commission"). The
Commission seeks a ruling from the court ordering the defendant
to cease all activities filling and altering wetlands and further
ordering that the defendant conduct wetlands restoration work on
his property at 18 Willow Street, North Andover.
On or about September 9, 1992, Richard Doucette,
Conservation Administrator of the Town of North Andover
("Conservation Administrator"), inspected the Site with specific
reference to woodlands and wetlands which are located on the
Site. (Verified Complaint, Paras. 4, 5) The Conservation
1
Administrator observed that the defendant had removed vegetation,
graded, and altered land adjacent to wetlands in an apparent
attempt to develop a walking track for horses and to improve
drainage on the Site. (Verified Complaint, Para. 5) The illegal
removal, grading and alteration of the wetlands areas was done
without an Order of Conditions, as required by the Act and by the
By -Law. (Verified Complaint, Para. 5) The illegal work was
conducted in violation of G.L. c.131, §40, and of the By -Law.
(Verified Complaint, Paras. 4 and 5)
On September 17, 1992, the Conservation Administrator
discovered new illegal work on the Site, including filling and
grading land within wetlands. (Verified Complaint, Para. 6)
The Commission issued three Enforcement Orders dated October
8, 1992, May 14, 1993, and September 2, 1993, citing the
defendant for illegally removing vegetation, grading and altering
the wetlands, without a valid Order of Conditions issued under
the Act and By -Law. (Verified Complaint, Paras. 9, 14, and 19)
The Commission required the defendant immediately to cease
construction activity of any kind, to file a Notice of Intent for
the work performed in the wetlands with the Commission, and to
obtain the approval of the Commission to perform construction,
grading, or filling in the wetlands. (Verified Complaint, Paras.
9, 11, 14, and 19) Furthermore, after receiving the first two
Enforcement Orders, the defendant continued to fill wetlands on
the Site with the soil that he had illegally stockpiled on the
Site, and did not file a Notice of Intent. (Verified Complaint,
Para. 18) In the third Enforcement Order, issued after the
Conservation Administrator conducted a Site inspection with a
2
certified soil scientist, the Commission required the defendant
to remove the illegal fill from the wetlands. (Verified
Complaint, Para. 19)
On September 16, 1993, this Court issued a temporary
restraining order against the defendant, ordering him to desist
and refrain from any filling, grading, removal of vegetation,
stockpiling or disposal of soil or other materials, or operation
of any machinery (e.g., backhoe, truck, grader, saw) on the Site.
To date, the defendant has not complied with the Act, the
By -Law, or the three Enforcement Orders issued by the Commission.
Although the defendant has ceased filling, grading, removal of
vegetation, stockpiling and disposal of soil or other materials,
and operation of any machinery, as ordered by this Court on
September 16, 1993, he has not filed a Notice of Intent to begin
restoration activities as required in the Enforcement Orders.
The defendant's continuing violations frustrate the legislative
purpose of the Wetlands Protection Act and the By -Law, which is
to protect wetlands, related water resources and adjoining land.
Therefore, this Court may restrain the defendant's violations and
order the defendant to restore the Site to its original condition
prior to the violations.
II. ARGUMENT
A. THIS COURT SHOULD GRANT INJUNCTIVE RELIEF TO PLAINTIFF
BECAUSE IT IS LIKELY TO SUCCEED ON THE MERITS AND
BECAUSE THE PUBLIC INTEREST DICTATES THE GRANTING OF
INJUNCTIVE RELIEF.
This Court should grant injunctive relief to plaintiff,
because it is likely to succeed on the merits of this case. The
standard in Massachusetts for the grant of preliminary injunctive
3
relief is well defined. Massachusetts Courts have set forth the
standard for actions between private parties. An applicant must
show: (1) that there is a probability of success on the merits;
(2) that plaintiff will suffer irreparable harm without
injunctive relief pendite lite; and (3) that the harm plaintiff
will suffer if denied injunctive relief outweighs the harm
defendant will suffer if restrained. Packaging Industries Group,
Inc. v. Cheney, 380 Mass. 609, 617, 405 N.E. 106 (1980). See
also, Commonwealth v. County of Suffolk, 383 Mass. 286, 288
(1981); Boston Athletic Assn. v. International Marathons, Inc.,
392 Mass. 356, 362-363 (1984). However, in cases in which the
plaintiff is a public entity seeking to enforce a state statute,
the Supreme Judicial Court has indicated that the standard for
obtaining injunctive relief is merely a showing that the granting
of injunctive relief is consistent with the public interest.
"When the government acts to enforce a statute or make effective
a declared policy of [the Legislature], the standard of public
interest and not the requirements of private litigation measures
the propriety and need for injunctive relief"'. Commonwealth v.
Massachusetts CRINC, et al., 392 Mass. 79, 89 (1984), citing
United States v. D'Anolfo, 474 F.Supp. 220, 222 (D. Mass. 1979).
The standard of requiring a demonstration of immediate
irreparable harm is therefore not a prerequisite to the allowance
of an injunction in a case in which the plaintiff is a public
entity: "before issuing the preliminary injunction, a judge is
required to determine that the requested order promotes the
public interest, or, alternatively, that the equitable relief
will not adversely affect the public." Id. at 89.
4
Under the applicable standard for injunctive relief,
plaintiff Town of North Andover Conservation Commission has a
strong likelihood of succeeding on the merits of this case.
Since the plaintiff.is a municipality seeking to enforce a state
statute, injunctive relief is appropriate. The plaintiff, in
enforcing the statute and the Town By -Laws need not show any
specific harm to the plaintiff caused by the illegal wetlands
alterations.
The defendant, by his failure to obtain an Order of
Conditions for activities conducted within wetlands at property
owned by him at 18 Willow Street, North Andover, is in violation
of G.L. c. 131, §40, which prohibits removing, filling, dredging,
or altering any wetland or coastal area without a valid Order of
Conditions issued by the conservation commission, and of 310 CMR
10.00 et sea., the regulations promulgated thereunder. The Act
also provides that a conservation commission "may issue
enforcement orders directing compliance with [the Act] and may
undertake any other enforcement authorized by law."
The defendant also is in violation of the Town of North
Andover Wetlands Protection By -Law, which prohibits, "the
removal, filling, dredging, discharging into, building upon, or
otherwise altering or degrading... any fresh water wetland ... or
any land ... subject to storm flowage, or flooding, or inundation
by groundwater or surface water, and the floodplain," except as
permitted in writing from the Conservation Commission. Chapter
178, Section 2. The By -Law provides that the Commission "shall
not grant such permission without receiving notice of the
intention to conduct such activity, and without issuing written
5
permission to do so...."
The By -Law further provides that, in the event of a
violation of the By-law, "the Commission or its agents may issue
a stop order to the owner.... Any person who shall violate the
provision of a stop order shall be deemed in violation of the By-
law...." Chapter 178, Section 10. The By-law also provides
that, "Any person who violates any provision of this By-law...
may be punished by a fine pursuant to Massachusetts General Laws,
Chapter 40, section 21."
Moreover, General Laws c.131, §40 states that any court
having equity jurisdiction "may restrain a violation of this
section and enter such orders as it deems necessary to remedy
such violation, upon the petition of ... a city or town...." The
Act further provides that, "Whoever violates any provision of
this section, (a) shall be punished by a fine of not more than
twenty-five thousand dollars or by imprisonment for not more than
two years, or both such fine and imprisonment; or (b), shall be
subject to a civil penalty not to exceed twenty-five thousand
dollars for each violation." [Emphasis added]
In addition, the defendant is in violation of three
Enforcement Orders issued by the Conservation Commission pursuant
to its authority under G.L. c. 131, §40, and the By -Law. The
Commission has ordered the defendant immediately to cease
construction activity of any kind, to file a Notice of Intent for
the work performed in the wetlands with the Commission, and to
obtain the approval of the Commission to perform construction,
grading, or filling in the wetlands, and to remove the illegally
stockpiled fill from the wetlands.
3
The defendant has ignored the orders of the plaintiff in
violation of the state statute and the Town By -Law. Therefore,
this Court is within its authority in granting injunctive relief
to the plaintiff in order to uphold the state Wetlands Protection
Act, G.L. c. 131, §40, the Town of North Andover Wetlands
Protection By -Law, Chapter 178, by ordering the defendant to file
a Notice of Intent and to begin the wetlands restoration
activities, subject to approval by the Commission, as outlined in
the three Enforcement Orders.
The importance to the Commonwealth of protecting its
residents and preserving its valuable wetlands and floodplains is
evidenced by the statutory and codified scheme enacted to protect
them. See, e.g., G.L. c. 131, § 40, the Massachusetts Wetlands
Protection Act, and the Town of North Andover By -Laws, By -Law
XXII, described above. The Wetlands Protection Act states that a
conservation commission may determine that a wetland area
proposed for work may determine "that the area on which the
proposed work is to be done is significant to the public or
private water supply, to the groundwater supply, to flood
control, to storm damage prevention, to prevention of pollution,
to protection of land containing shellfish, to the protection of
wildlife habitat or to the protection of fisheries." G.L. c.
131, §40. The defendant's continued violations frustrate the
legislative purpose of the Act and By -Law to protect wetlands,
related water resources, and adjoining land areas.
The public interest, therefore, requires that injunctive
relief be granted to the plaintiff in this case.
7
III. CONCLUSION
In view of the foregoing, the plaintiff Town of North
Andover Conservation Commission, clearly has satisfied the burden
for injunctive relief. Accordingly, it is respectfully requested
that this Court grant injunctive relief on Prayer 3 of the
Verified Complaint, as further embodied in the attached Proposed
Order.
PLAINTIFF,
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
By its/at
�o6l B. Bard (B #02914 )
/Kathleen E. C Holly (B O #558706)
Kopelman and aige, P.0
Town Counsel
101 Arch Street
Boston, MA 02110
(6G1�7) 951-0007
Dated • 2
8
1
W I L LOW
STREET
ZONE X
09102/93 10:01
F iczs OF:
t3UILDING
CONSERVATION
HF,.AI_TH
PLANNING
0
Town of
_NORTH ANDOVER
Sons/4 e DIVISION OF
PLANKING & COMMUNITY D'EVELOPMEN'T
E:., -\REN H.P. NELSON. DIRECTOR
september 22. 1992
Mr. Paul E. MsCisz.
18 Willew Street
North Andover MA 01845
Dear Mr. Mscisz:
[a 002.
120 Main Street
north Arldo Ver
Massachusetts 01846
15081 682-6483
T appreciate your meeting with me on September 9th to show
me the work on your property which is underway. This work
f a walking track far horses. While
includes the development o
sion adjacent to your land an
reviewing a proposed subdivi
September 17th, it appears as though you are attempting to
improve the work drainage s related to thefyour land. horse track. I assume that
this drainage
please be advised that this work is taking place !I' a
wetland and you must therefore receive permission from the
Conservation Commission. The Conservation Commission's next
mesting is October 7, 1992• Please appear at 7:30pm to discuss
this project with the Commission.
Sincerely, _
I ' / „� " � •tel `-r�--11�
! '•%✓ .��177111 .
Richard P. Doucette
Conservation Administrator
t
r OFFICES OF:
BUILDING
CONSERVATION
HEALTH
PLANNING
P NORTH
'
Town of
m
NORTH ANDOVER
°e�cM�eE`
DIVISION OF
PLANNING & COMMUNITY DEVELOPMENT
KAREN H.P. NELSON, DIRECTOR
September 22, 1992
Mr. Paul E. MsCisz.
18 Willow Street
North Andover MA 01845
Dear Mr. MsCisz:
I20 Main street
North Andover
Massachusetts 01845
(508) 682-6483
I appreciate your meeting with me on September 9th to show
me the work on your property which is underway. This work
includes the development of a walking track for horses. While
reviewing a proposed subdivision adjacent to your land on
September 17th, it appears as though you are attempting to
improve the drainage in the rear of your land. I assume that
this drainage work is related to the horse track.
Please be advised that this work is taking place in a
wetland and you must therefore receive permission from the
Conservation Commission. The Conservation Commission's next
meeting is October 7, 1992. Please appear at 7:30pm to discuss
this project with the Commission.
Sincerely, {-
Richard P. Doucette
Conservation Administrator
19
10
of
,-"3uE S-?Ql!4-'�+os'ixc:A&VICE" ..-'15..
Official Business ,:� PEN/
y USE T(
Print your name, address and ZIP Code here
R. Doucette c/o Toum. Hall
120 Main Street
North Andover, MA 01845
acfvucn:
• Complete items 1 and/or 2 for additional services. I also wish to receive the
• Complete items 3, and 4a & b. following services (for an extra d
• Print your name and address on the reverse of this form so that we can 0
return this card to you. fee):
• Attach this form to the front of the mailpiece, or on the back if space 1. ❑ Addressee's Address N
does not permit.
• Write "Return Receipt Requested" on the mailpiece below the article number. 2 ❑ Restricted Delivery a
• The Return Receipt will show to whom the article was delivered and the date
delivered. Consult postmaster for fee. m
3. Article Addressed to:
a Paul Mscisz
E
c 18 Willow Street
W North Andover, MA
ti
W
rr
Z
CC 5. Signature (Address
R.
�� 6. Signature (Agent)
0
01845
4a. Article Number
c
4 4-7 014 787
4b. Service Type m
❑ Registered ❑ Insured
0f
�M Certified ❑ COD 5
❑ Express Mail ❑ Return Receipt for
Merchandise
7. Date of Deliver' 1 5 =
0
:I-
8.
8. Addressee's Address (Only if requested X
and fee is paid)
R
t
H
2 FSS Form 3811, December 1991 * U.S.G.P.O.:1992-307-530 DOMESTIC RETURN RECEIPT
DRAFT 10/22/92
PRESENT:
OLD BUSINESS
NACC MINUTES
OCTOBER 21, 1992
George Reich Paul Tariot
Alison Brewster Kevin Foley
Richard Doucette Karen Nelson
Coventry Estates I (#242-324) -Status of Compliance Review
Pat Seekamp from Wetlands Preservation discussed the compliance
review of this project. There are problems with some of the
drainage structures and resulting siltation. Shawmut Bank:
clean catch basins, Lot 16 swale. Use bond: Detention pond on
lots 31 and 32.
Drain on lots 14 and 15.
MINUTES
Motion by P.Tariot and seconded by K.Foley to adopt the minutes
of 10/14/92.
OLD BUSINESS (continued)
/-,,#18 Willow Street - Violation
R.Doucette gave an overview of the violation. NACC requires a
permit to be filed for the work recently done and to be done as
well as future work.
#980 Great Pond Road - Restoration
R.Doucette and Court Young gave an overview of the violation and
the restoration effort.
NEW BUSINESS
Lot 6 Hidden Court (#242-560) - Compliance
Scott Giles submitted a letter and an as -built plan to request a
Compliance. Motion by P.Tariot and seconded by A.Brewster to
issue a Partial Compliance.
Lot 50 Blue Ridge Road (#242-570) - Compliance
Scott Giles submitted a letter and an as -built plan to request a
Compliance. Motion by A.Brewster and seconded by P.Tariot to
issue a Compliance.
Lots 23A and 28A South Bradford St (#242-621,623) - Modification
Request for modification made by Scott Giles. Motion by P.Tariot
and seconded by A.Brewster to issue the Modification. Vote 3-1,
G.Reich opposed.
OFFICES OF:
APPEALS
BUILDING
CONSERVATION
HEALTH
PLANNING
NORiN �
r ~" Town of
NORTH ANDOVER
eB ��us6` DIVISION OF
PLANNING & COMMUNITY DEVELOPMENT
KAREN H.P. NELSON, DIRECTOR
October 29, 1992
Paul E. Mscisz
18 Willow St.
North Andover MA 01845
Dear Mr. Mscisz:
120 Main Street
North Andover,
Massachusetts 01845
(617) 685-4775
Attached are the instructions and forms for filing a 'Notice
of Intent' with the Conservation Commission. As you know, the
Commission voted at their October 21, 1992 meeting to require to
you to file a Notice of Intent for the work you have completed in
the rear of your property. All work is to stop until permits are
obtained. This permit will pertain to all work you have completed
and any work planned in the near future.
This permit is required by local and state law since a large
portion of the rear of your property is a wetland. You were
notified over a year ago that this property was a wetland and that
any additional work would require a permit. Additional work was
then undertaken without a permit. The Conservation Commission has
been very lenient in this matter and I hope you will respond by
filing for the necessary permit. �!
Sincerely,
Richard P. Doucette
Conservation Administrator
' OF MORTM IM
KAREN H.P. NELSON fir' '°
Director TOWN Of
NORTH ANDOVER
BUILDING
CONSERVATION �8s-C.Us t DIVISION OF
HEALTH
PLANNING PLANNING & COMMUNITY DEVELOPMENT
May 14, 1993
Mr. Tom Laudani
Rogers Park Realty Trust
733 Turnpike Street
Suite 311
North Andover MA 01845
Dear Tom:
120 Main Street, 01845
(508) 682-6483
It is my understanding that soil which has been excavated from
the Meadow wood project and sold to an abutter is now being used
for an illegal activity. This activity consists of the filling of
land in the buffer zone and possibly in a bordering vegetated
wetland. The violator is Paul Mscisz of 18 Willow Street.
Since you are now informed of this issue, you should be
advised that any further involvement, through the selling or
transportation of fill to this individual, may expose you to legal
action or other enforcement activity by the North Andover
Conservation Commission.
Sincerely,
-:::�J.
Richard P. Doucette,
Conservation Administrator
Town of North Andover MA
°F Now icy ,ry '
KAREN H.P. NELSON ; ' °m Town of 120 Main Street, 01845
Director _
BUILDING
NORTH ANDOVER (508) 682-6483
CONSERVATION esACNU5ES DIVISION OF
HEALTH
PLANNING PLANNING & COMMUNITY DEVELOPMENT
May 18, 1993
Mike Turgeon
DEP Wetlands Division
Northeast Region
10 Commerce Way
Woburn MA 01801
Dear Mike:
I would like to discuss with you a wetland violation which is
underway in North Andover. Please review the enclosed information
and contact me at your earliest convenience.
Sincerely,
Richard P. Doucette
Conservation Administrator
Town of North Andover MA
,Z
09/02/93 10:09 $
Draft 7/13
CONSERVATION COMMISSION
JULY 71 1993 MINUTES
ATTENDANCE: J.Leeman, G.Reich, A.Manzi, R.Milliard, K.Foley,
B.Mansour, P.Tariot, R.Doucette (Administrator)
MINUTES
Motion by Paul Tariot, seconded by KevinFol u an adopt he minutes
of June 16, 1993 as amended. motionpassed
OLD BUSINESS
#10 i,ucker Farm RR.Doucettd.
discussed mThe
laced fill from his property across the street homeowner
hasp
on
h
the road shoulder, next to the wetland. A violation notice was
issued and the soil has been seeded and mulched.
09_40 Great Pond Rd. (#242-656_Z
R.Doucette and P.Tariot gave an. update on the status of the
criminal complaint.
Lot 10A Boxford St 242-537
G.Reich noticed a violation at #257 Boxford St. R.Doucette
inspected the site from the road and spoke with the homeowner on
the phone. The cutting of the lawn has extended into the no -cut
zone. The Commission will take no further action.
2011
.� 28 Willow St.
g.Doucette discussed this ongoing violation and input received from
eek
Town Counsel. P.Tariot motioned, and John Leeman seconded,
an injunction against the landowner. Vote: 5-1-1. A.Manzi
opposing, K.Poley abstaining.
NEW BUSINESS
Lot 2 Coventr Estates 24 -524) - Com Bance
B.Barrett requested a Certificate of Compliance. A letter and As -
Built were submitted from Scott Giles. P.Tarict motioned,
R.Milliard seconded, to issue a certificate of Compliance. Motion
passed unanimously.
Lots 24A 25 26A Forest St. 242-580 581 582 - Com liances
B.Barrett requested compliances. Phil Christiansen's letter
certifying
seced, to
sondaissued the compliances. vote: 6-0-1,l compliance was discussed. G.Reich m
K.Foley J.Leeman
abstained.
DRAFT 9/3/93
CONSERVATION COMMISSION
SEPTEMBER 1, 1993
PRESENT: Paul Tariot Al Manzi
Richard Milliard John Leeman
Richard Doucette, Administrator
OLD BUSINESS
#940 Great Pond Road
Atty. Carl Croce appeared to discuss the ongoing application for
a criminal complaint. Atty. Croce provided an overview of the
issues. Fifty shrubs have been planted. Twenty-five men are
scheduled. Atty. Croce needs to know what other items he needs
to address. The NACC needs a plan showing wetlands, Atty. Croce
will provide such a plan. NACC will continue the court hearing
for 30 days.
Lot 7A Candlestick Road (#242-574) - Violation
Phil Christiansen and J.Grifoni appeared. R.Doucette provided an
overview of the issues continued from one month ago. Discussion
of what was required under the subdivision OOC and the recent OOC
(Condition #19). The applicant and Administrator will visit the
site and then the NACC will visit the site.
NEW BUSINESS
Lot 14A Campion Hall (#242-335) - Partial Compliance
Steve Franciosa requested a Partial Compliance from the
subdivision OOC. Motion by P.Tariot and seconded by J.Leeman to
grant a Partial Compliance. Vote unanimous.
Lot 10 Tucker Farm Road (#242-242) - Partial Compliance
Motion by P.Tariot and seconded by J.Leeman to grant the Partial
Compliance. Vote unanimous.
Lot 10 Tucker Farm Road (#242-382) - Compliance
Motion by P.Tariot and seconded by J.Leeman to grant the
Compliance. Vote unanimous.
Lot 34 A-1 Carlton Farm (#242-354) - Compliance (Re -issue)
Motion by P.Tariot and seconded by J.Leeman to issue the
Compliance. Vote unanimous.
#18 Willow Street - Update on violation
R.Doucette provided an overview. The violation has recently
escalated with the filing of a portion of a BVW. Motion by
P.Tariot and seconded by J.Leeman to issue an Enforcement Order.
Motion by P.Tariot and seconded by A.Manzi to issue a ticket.
Vote 3-0-1, J.Leeman abstained.
P.273 797 711
Receipt for
Certified Mail
No Insurance Coverage Provided
u ED STATES Do not use for International Mail
MO AL SEWN
(See Reverse)
Sent to
Paul T. Mscisz
Street and No.
18 Willow
Street
P.O., State and ZIP Code
N.Andover,
MA 01845
Postage
.29
Certified Fee
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TOWN OF NORTH ANDOVER
NOTICE OF VIOLATION OF WETLAND BYLAW
C 1 V
MWiXZ1
1 100 (A.M) (P.M.) ON Ao-;HCS W7 19 /2
AT
THE FOREGOING CITATION
*4
fX Unable to obtain signature of offender. Date Mailed
[R Citation mailed to offender
THE FINE FOR THIS NON -CRIMINAL OFFENSE IS $
YOU HAVE THE FOLLOWING ALTERNATIVES WITH REGARD TO
DISPOSITION OF THIS MATTER.
(1) You may elect to pay the above fine, either by appearing in person
between 8:30 A.M. and 4:30 P.M., Monday through Friday, legal holidays
excepted, before: The Conservation Office, Town Hall, 120 Main St., North
Andover, MA 01845 OR by mailing a check, money order or postal note to
the Conservation Office WITHIN TWENTY-ONE (21) DAYS OF THE DATE
OF THIS NOTICE. This will operate as a final disposition of the matter, with
no resulting criminal record.
(2) If you desire to contest this matter in a non -criminal proceeding, you
may do so by making a written request, and enclosing a copy of this citation
WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS NOTICE TO:
The Clerk -Magistrate, Lawrence District Court
380 Common St., Lawrence, MA 01840
ATTN: 21D non -criminal
(3) If you fail to pay the above fine or to appear as specified, a criminal
complaint may be issued against you.
❑ A. I HEREBY ELECT the first option above, confess to the offense
charged, and enclose payment in the amount of $
❑ B. I HEREBY REQUEST a non -criminal hearing on this matter.
Signature
WHITE: OFFENDER'S COPY YELLOW: CONSERVATION COPY
PINK: POLICE COPY GOLD: COURT COPY
r 310 CMR 10.99
Form 9
4X
Commonwealth
` = of Massachusetts
DLP File No. �_ None
(to be provided by DEP)
Ciry rown North AndOver, HA
Aooi-cant
Mscisz
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, §40
AND UNDER THE TOWN OF NOR"111 ANDOVER BYLAW,. CIIAPTER 3, SECTION 3.5
From North Andover Conservation Commission Issuing Authority
To Paul T. Mscisz
Date of Issuance September 2, 1993
Property lot/parcel number. address
Extent and type of activity:
18 Willow St., North Andover MA
The landowner is filling a portion of a bordering vegetated wetland. The land
owner has been previously notified by the Commission that this fill has been
illegally placed on the property and that the subject wetland has been illegally
stripped of all vegetation.
The North Andover Conservation Commission has determined that the activity described
above is in violation of the Wetlands Protection Act. G.L. c. 131, §40, arid the Regulations promulgated pur-
suant thereto 310 CMR 10.00, because:
X)MX Said activity has been/is being conducted without a valid Order of Conditions.
❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to
dated
File number X42— , Condition number(s)
❑ Other (specify)
The
The land owner has failed to comply with previous Enforcement Orders issed by
the Conservation Commission.
North Andover Conservation Commission Hereby orders the following:
The property owner, his agents. permittees arid all others shall immediately cease arid desist from further
activity affecting the wetland portion of this property.
XX'U Wetland alterations resulting from said activity shall be corrected arid the site returned to its original con-
dition.
Issued by North Andover Conservation Conrnnsswn.
ti
XUx Completed application forms and plans as required Ov the Act and Regulations shall be filed v:rtlr file
North Andover Conservation Conunissigffor before 9/14/93 _ (date,
and no further work shall be performed until a public nearing has been held and an Order of Conditions
has been issued to regulate said work. Application forms are available at. NAC(: Off ice_ ---
120
__120 Mai n S t., ('Town Ila 1 1)
X)JRg The property owner shall take every reasonable sten to prevent further violations of the act No. Anduve r, HA
Tel. #682-6483 01845
Q Other (specify)
Be advised that the Conservation Commission is presently seeking an injunction against
you.. Also be advised that the Conservation Commission has issued you a ticket for a
violation of the Town Wetlands Protection Bylaw. This violation carries a'fine of $200
per violation.
Failure to comply with this Order may constitute grounds for legal action Massachusetts General Liiv.s Chan
ter 131. Section 40 provides:
Whoever violates any provision of this section shall be punished by a fine of not rnore,
than twenty-five thousand dollars or by imprisonment for not more than tyro years or both
Each day or portion thereof of continuing violation shall constitute a separate offense
Questions regarding this Enforcement Order should be directed to Attorney Joel Bid._-of_Kapelman & PaigE
Conservation Administrator
Richard Doucette
Issued by
North Andover Conservation Commission
Signature(s)
(Administrator)
IC 31131UIC° 0 d01Ver� t"r'f
or certifiec rnail nurnber I
KAREN H.P. NELSON o'' Town Of 120 Main Street, 01845
Director
..
NORTH ANDOVER (508) 682 6483
BUILDING
CONSERVATION e@'°"°'`t DIVISION OF
TH
PLANNING PLANNING & COMMUNITY DEVELOPMENT
Memo
TO : James Gordon
FROM : Richard Doucette
DATE : September 2, 1993
RE : Enforcement Activity at #18 Willow St.
As you are aware, the Conservation Commission has been pursuing
enforcement activity against Mr. Paul Mscisz at 18 Willow St. Our
attorneys are seeking an injunction against him for various wetland
violations and failure to comply with the Commission's Enforcement
orders.
Please be advised that, due to recent filling of a wetland wit':
topsoil, the Conservation Commission voted last night to issue our
first ticket to Mr. Mscisz. This violation carries a fine of $200.
Conservation Commissioner Al Manzi and I attempted to serve Mr.
Mscisz today but he was not home. The ticket was sent certified
mail.
CC : Karen Nelson
North Andover Police Department
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
PLAINTIFF
V.
PAUL E. MSCISZ,
DEFENDANT
SUPERIOR COURT
C.A. NO. 93-2187D
PLAINTIFF'S MOTION FOR
A PRELIMINARY INJUNCTION
Now comes the plaintiff, Town of North Andover Conservation
Commission, and hereby moves this Court, pursuant to Mass. R.
Civ. P. 65(a) for a preliminary injunction in its favor, pursuant
to Prayer 3 of the Verified Complaint in the above matter
ordering the defendant to: immediately cease work activity in
and affecting wetlands; correct wetland alterations and restore
the wetlands; file a Notice of Intent; and place hay bales on the
site.
As grounds therefor, the defendant relies on the facts
contained in its Verified Complaint and on the attached
Memorandum of Law.
Wherefore, in view of the foregoing, it is respectfully
requested that the within motion be allowed.
PLAINTIFF,
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
By its attorneys,
J el B: Bard (BBF #D29140) ;
athleen E. Conn ly (BBO 58706)
Kopelman and Paige, P.C.
Town Counsel
101 Arch Street
Boston, MA 02110
(61-0007
Dated:
LEONARD KOPELMAN
KOPELMAN AND PAIGE, P.C.
DONALD G PAIGE
ELIZABETH A LANE
ATTORNEYS AT LAW
JOYCE FRANK
JOHN W. GIORGIO
101 ARCH STREET
BARBARA J. SAINT ANDRE
JOEL B. BARD
BOSTON, MASSACHUSETTS 02110-1137
EVERETTJ MARDER
BOSTON OFFICE
JOSEPH L. TEHAN. JR.
16171 951.0007
WILLIAM HEWIG III
FAX 16171 951.2735
THERESA M. DOWDY
NORTHAMPTON OFFICE
PATRICK J. COSTELLO
14131 585.8632
WORCESTER OFFICE
15081 752-0203
October 12, 1993
Essex Process Servers, Inc.
2 Salem Green
P.O. Box 3043
Salem, MA 01970
KAREN V KELLY
DEBORAH A ELIASON
JEANNE S MCKNIGHT
JUDITH C. CUTLER
ANNE -MARIE M. HYLAND
RICHARD BOWEN
CHERYL ANN BANKS
DAVID J. DONESKI
BRIAN W. RILEY
KIMBERLY A. HOLLIDAY
MARY L. GIORGIO
KATHLEEN E. CONNOLLY
JOHN G. GANNON
Re: North Andover Conservation Commission v. Paul E. Mscisz
Essex Superior Court, C.A. No. 93-2187D
Dear Sir/Madam:
Enclosed please find an original Interlocutory Order
Continuing Restraining Order in force until hearing on November
9, 1993. Kindly serve this document on the defendant Paul E.
Mscisz at 18 Willow Street, North Andover. Please send a copy of
your return of service, along with a bill for services, to me at
this office.
If you have any questions in this regard, please do not
hesitate to contact me. Thank you for your assistance in this
matter.
Ve �tru
leen ronnolly
KEC/cal
Encs.
cc: Conservation Commission (w/o encs.)
PRINTED ON RECYCLED PAPER
LEONARD KOPELMAN
DONALD G PAIGE
ELIZABETH A LANE
JOYCE FRANK.
JOHN W GIORGIO
BARBARA J SAINT ANDRE
JOEL B BARD
EVERETTJ MARDER
JOSEPH L. TEHAN. JR
WILLIAM HEWIG III
THERESA M DOWDY
PATRICK J. COSTELLO
KOPELMAN AND PAIGE. P.C.
ATTORNEYS AT LAW
101 ARCH STREET
BOSTON, MASSACHUSETTS 02110-1137
BOSTON OFFICE
16171 951-0007
FAX 16171 9512735
NORTHAMPTON OFFICE
14131 585-8632
WORCESTER OFFICE
15081 752 0203
October 28, 1993
Civil Clerk's Office
Essex Superior Court
Lawrence Division
34 Federal Street
Salem, MA 01970
Attention: Mr. Ted Sullivan
KAREN V KELLY
DEBORAH A ELIASON
JEANNE S MCKNIGHT
JUDITH C CUTLER
ANNE -MARIE M HYLAND
RICHARD BOWEN
CHERYL ANN BANKS
DAVID J. DONESKI
BRIAN W. RILEY
KIMBERLY A. HOLLIDAY
MARY L. GIORGIO
KATHLEEN E. CONNOLLY
JOHN G. GANNON
Re: North Andover Conservation Commission v. Paul E. Mscisz
Essex Superior Court, C.A. No 93-2187D
Dear Mr. Sullivan:
As we discussed yesterday, this is to confirm that the
parties in the above matter have agreed to lift the Temporary
Restraining Order which the Town of North Andover Conservation
Commission obtained against defendant Paul Mscisz from the Court
on September 16, 1993, and which was continued in full force and
effect until the hearing on preliminary injunction scheduled for
November 9, 1993. The parties have reached a partial agreement
regarding certain restoration activities, as described in an
Order of Conditions issued by the Town to the defendant, to be
conducted by the defendant on the subject property.
Accordingly, you may remove the case from the motion list
for November 9, 1993; however, the Town reserves its right to
request a hearing on its motion for a preliminary injunction at a
later date, in the event that the defendant does not fully comply
with the Town's Order.
Thank you for your assistance in this matter.
KEC/cal
cc: Conservation Commission
John Richard Hucksam, Jr.
PRINTED ON RECYCLED PAPER
LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C.
DONALD G. PAIGE
ELIZABETH A. LANE
ATTORNEYS AT LAW
JOYCE FRANK
JOHN W. GIORGIO
101 ARCH STREET
BARBARA J. SAINT ANDRE
BOSTON, MASSACHUSETTS 02110-1137
JOEL B. BARD
EVERETT J. MARDER
BOSTON OFFICE
JOSEPH L. TEHAN, JR.
(617) 951-0007
WILLIAM HEWIG III
FAX 16171 951-2735
THERESA M. DOWDY
NORTHAMPTON OFFICE
PATRICK J. COSTELLO
(413) 585-8632
WORCESTER OFFICE
(508) 752-0203
September 17, 1993
Members of the Conservation Commission
North Andover Town Hall
120 Main Street
North Andover, MA 01845
KAREN V. KELLY
DEBORAH A. ELIASON
JEANNE S. MCKNIGHT
JUDITH C. CUTLER
ANNE -MARIE M. HYLAND
RICHARD BOWEN
CHERYL ANN BANKS
DAVID J. DONESKI
BRIAN W. RILEY
KIMBERLY A. HOLLIDAY
MARY L. GIORGIO
KATHLEEN E. CONNOLLY
JOHN G. GANNON
Re: North Andover Conservation Commission v. Paul E. Mscisz
Essex Superior Court, C.A. No. 93-2187D
Dear Members of the Conservation Commission:
I am pleased to inform you that we were successful in
obtaining a temporary restraining order from Essex Superior Court
in Lawrence on September 16, 1993, to restrain the defendant in
the above matter, Paul E. Mscisz, from any filling grading,
removal of vegetation, stockpiling or disposal of soil or other
materials, or operation of any machinery (e.g., backhoe, truck,
grader, saw) on the Site located at 18 Willow Street, North
Andover. A copy of the Restraining Order is attached.
In addition, we were successful in obtaining a short order
of notice for a hearing on the Town's request for a Preliminary
Injunction for September 23, 1993. The defendant's counsel
informed me in discussions outside of Court that the defendant
intends to comply with the Conservation Commission's Enforcement
Orders until this matter is resolved. He also stated that the
defendant intends to engage an engineer to identify and/or
confirm the actual wetland areas on the property, and that the
defendant will comply fully with the Commission's restoration
orders for any identified wetlands areas in which illegal work
was conducted.
Please monitor the Site in the next week to ensure that the
engineering analysis does not result in any additional wetlands
violations. I will ask the defendant to provide the Commission
PRINTED ON RECYCLED PAPER
KoPELMAN AND PAIGE, P.C.
Members of the Conservation Commission
September 17, 1993
Page 2
with the results of his engineering analysis as soon as it is
completed. Please note that the defendant's independent analysis
of the Site does not replace our efforts to obtain injunctive
relief from the Court. In the event that the defendant's
engineering reports reach conclusions about the locations of
wetlands areas contrary to the Commission's findings, I will
address that issue before the Court at the hearing on September
23, 1993.
If you have any questions in this regard, please do not
hesitate to contact me or Joel Bard.
KEC/cal
Enc.
cc: Board of Selectmen
Town Manager
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
No.93-2187 D
TOWN OF NORTH ANDOVER
................... ON SER��AT ION COMMIS S ION Plaintiff s
....................................................................................... ( )
o.
.................AUL E. MSCI..Z ...........................Defendants)
SUMMONS AND RESTRAINING ORDER
To the above-named Defendant:
You are hereby summoned and required to serve upon Joel E. Bard, Esq .
plaintiffs attorney, whose address is 101 Arch St:. , Boston, MA 02110
an answer to the complaint which is herewith served upon you, within 20 days after service of this summons
upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you
for the relief demanded in the complaint. You are also required to file your answer to the complaint in the
office of the Clerk of this court at Lawrence either before service upon plaintiff's attorney
or within a reasonable time thereafter.
Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which
you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of
the plaintiffs claim or you will thereafter be barred from making such claim in any other action.
WE ALSO NOTIFY, YOU that application has been made in said action, as appears in the complaint,
for a preliminary injunction and that a hearing upon such application will be held at the court house at said
Lawrence Superior Ct. in the "D" session without jury of our said court on Thursday
the 23rd day of September A. D. 19 93 , at Two o'clock XPM.,
at which you may appear and show cause why such application should not be granted.
In the meantime, until such hearing, WE COMMAND YOU, said Pan_1 E. Mseisz
and your agents, attorneys and counsellors, and each and every one of them, to desist and refrain from
any filling, grading, removal of vegetation, stockpiling or disposal of
soil or other materials, or operation of any machinery (e.g., backhoe, truck,
grader, saw) on the Site located at 18 Willow Street, North Andover.
gOBERT L STEADMAR
Witness, , Esquire, at Salem, the
16th day of SFptE:mbe:rin the year of our Lord
one thousand nine hundred and 4M - ninety�t�ee
Issued at 2:
�- Clerk.
NOTES:
1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure.
2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate
summons is used for each defendant, each should be addressed to the particular defendant.
OFFICE #27
PROOF OF SERVICE OF PROCESS
I hereby certify and return that on , 19 , I served a copy of the
within summons and restraining orders, together with a copy of the complaint in this action, upon the within
named defendant, in the following manner ( See Mass. R. Civ. P. 4 (d) (1-5) :
Dated: , 19...............................................................
N.B. TO PROCESS SERVER:—
PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN
THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT.
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS.
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
Plaintiff,
V.
PAUL E. MSCISZ,
Defendant.
SUPERIOR COURT
C.A. NO.
PLAINTIFF'S MOTION FOR
TEMPORARY RESTRAINING
ORDER
The plaintiff hereby moves this Court, pursuant to Mass. R.
Civ. P. 65(a), for a temporary restraining order pursuant to
Prayer 1 of the Verified Complaint filed herewith in the above
captioned matter. In support of this motion, the plaintiff
relies on the facts and exhibits set forth in the Verified
Complaint filed herewith.
Dated : , t /3
x5033
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION
By their attorneys
JoAT B. Bard (BBO# 02 0
Vt leen E. Connolly (BBO# 558706)
elman and Paige, P.C.
Town Counsel
101 Arch Street
Boston, MA 02110
(617) 951-0007
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS.
SUPERIOR COURT
C.A. NO.
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION,
Plaintiff,
V.
VERIFIED COMPLAINT
PAUL E. MSCISZ,
Defendant.
INTRODUCTION
1. This is an action seeking injunctive relief and civil
monetary penalties pursuant to the Wetlands Protection Act, G.L
131, §40 ("the Act"), and the Town of North Andover Wetlands
Protection By-law, Chapter 178 ("the By-law"), for violations of
said Act and By-law. Jurisdiction is conferred upon this Court
by the Act and the Court's general equity jurisdiction.
Parties And Facts
2. Plaintiff Town of North Andover ("the Town") is a
municipal corporation located in Essex County, Massachusetts,
acting by and through the North Andover Conservation Commission
("the Commission"), having a usual place of business at North
Andover Town Hall, 120 Main Street, North Andover, Massachusetts.
The Commission is charged with enforcing the Act and By-law.
3. Defendant Paul E. Mscisz ("Mscisz") is an individual
residing and owning land located at 18 Willow Street, North
Andover, Massachusetts ("the Site").
4. In 1991, Mscisz cleared several thousand square feet of
1
woodlands on the Site. The Commission subsequently met with
Mscisz and informed him that a portion of that clearing occurred
in a wetlands, in violation of the Act and By-law. Mscisz was
informed that said clearing, and any future clearing or work
activity, required the approval of the Commission.
S. In 1992, the Commission received a report that Mscisz
was conducting new work in wetlands on the Site. On or about
September 9, 1992, the Town's Conservation Administrator ("the
Administrator") inspected the Site with Mscisz. The
Administrator observed that Mscisz was removing vegetation,
grading, and altering land adjacent to a wetlands in an apparent
attempt to develop a walking track for horses and to improve
drainage on the Site. The Administrator informed Mscisz that
such work activity would require approval from the Commission
pursuant to the Act and By-law.
6. On September 17, 1992, the Administrator discovered new
illegal work on the Site, including filling and grading land
within a wetlands.
7. On or about September 22, 1992, the Administrator
notified Mscisz that his work activity was being conducted in a
wetlands and would require permission from the Commission. The
Administrator requested Mscisz to appear at the Commission's next
meeting on October 7, 1992, to discuss the illegal work activity.
(A true and accurate copy of the September 22, 1992
correspondence from the Administrator to Mscisz is attached
hereto to as Exhibit A.)
8. Mscisz did not appear at the October 7, 1992 meeting of
the Commission, nor did he respond to the Administrator's letter
of September 22, 1992.
9. On or about October 8, 1992, the Commission issued an
Enforcement Order to Mscisz pursuant to the Act and By-law ("the
October 8, 1992 Order"). That Order informed Mscisz that he was
required to obtain the approval of the Commission to perform
construction, grading or filling in the wetland. That Order
stated that no construction activity of any kind was allowed on
the Site until approval was granted by the Commission. The
Commission directed Mscisz to appear at its next meeting on
October 21, 1992. (A true and accurate copy of the October 8,
1992 Order, with return receipt, is attached hereto as Exhibit
B.)
10. Mscisz never appealed or complied with the terms of the
October 8, 1992 Order.
11. On or about October 21, 1992, the Commission required
Mscisz to file a Notice of Intent pursuant to the Act and By-law
for the work that was undertaken on the Site. (A true and
accurate copy of the minutes of the October 21, 1992 meeting of
the Commission are attached hereto as Exhibit C.)
12. On or about October 29, 1992, the Administrator
provided Mscisz with instructions and forms to file a Notice of
Intent with the Commission. The Administrator informed Mscisz
that all work was to stop until he received a permit from the
Commission under the Act and By-law. (A true and accurate copy
of the October 29, 1992 correspondence from the Administrator to
Mscisz is attached hereto as Exhibit D.)
3
r _ �
13. Mscisz never responded to or complied with the October
29, 1992 correspondence and instructions from the Administrator.
14. On or about May 14, 1993, the Commission issued a
second Enforcement Order to Mscisz pursuant to the Act and By-law
("the May 14, 1993 Order"). The Commission informed Mscisz that
he was illegally filling land and stockpiling soil within and
adjacent to a wetland in violation.of the Act and By-law. Mscisz
was ordered to immediately cease and desist from any further
activity affecting wetlands and to immediately correct the
violations and return the Site to its original condition. The
Commission informed Mscisz that he was required to submit
completed application forms and plans to, and require approval
from, the Commission for his work activity. The Commission
directed Mscisz to attend its next meeting on May 19, 1993 to
discuss the requirements. (A true and accurate copy of the May
14, 1993 Order and cover letter thereto, with return receipt, are
attached hereto as Exhibit E.)
15. Mscisz never complied with or appealed the May 14, 1993
Order issued by the Commission.
16. On or about May 24, 1993, the Commission conducted an
inspection of the Site with Mscisz. The Commission informed
Mscisz that the stockpiled soil was illegally located within a
wetlands.
17. On or about June 2, 1993, the Administrator and a
certified soil scientist conducted a site inspection with Mscisz.
Mscisz was informed that much of his past filling, grading
and removal of vegetation had occurred within a wetlands, in
4
violation of the Act and By-law.
18. On August 30, 1993, the Administrator inspected the
Site and observed that Mscisz was in the process of filling
wetlands with the soil he had illegally stockpiled on the Site.
Mscisz had not restored the Site to its original condition, nor
had he stopped filling land and stockpiling soil in and adjacent
to wetlands, as required by the Commission's May 14, 1993 Order.
Furthermore, Mscisz had not filed a Notice of Intent with the
Commission.
19. On September 2, 1993, the Commission issued a third
Enforcement Order to Mscisz pursuant to the Ac-_ and By-law ("the
September 2, 1993 Order"). The Commission informed Mscisz that
filling wetlands with the stockpiled soil constituted a violation
of the Act and By-law, and that Mscisz was ordered to cease and
desist from any additional wetlands filling. The Commission also
ordered Mscisz to remove said fill from the wetlands. (A true
and accurate copy of the September 2, 1993 Order is attached
hereto as Exhibit F.)
20. As of the date of this Complaint, Mscisz has not
complied with the Commission's three Enforcement Orders.
Wetlands Protection Act, G.L. c. 131, X40
21. The Act, G.L. c. 131, §40, states that, "No person
shall remove, fill, dredge, or alter any... fresh water
wetland... without filing written notice of his intentions [with
the conservation commission]... and without receiving and
complying with an order or conditions [issued by the conservation
commission]...." [emphasis added]. The Act also states that a
k,
conservation commission "may issue enforcement orders directing
compliance with the [the Act) and may undertake any other
enforcement authorized by law."
22. The Act further states that, "Any court having equity
jurisdiction may restrain a violation of this section and enter
such orders as it deems necessary to remedy such violation...."
The Act also provides that, "Whoever violates any provision of
this [Act), (a) shall be punished by a fine of not more than
twenty-five thousand dollars or by imprisonment for not more than
two years, or both such fine and imprisonment; or (b), shall be
subject to a civil penalty not to exceed twenty-five thousand
dollars for each violation." [emphasis added)
North Andover's Wetlands Protection By-law
23. The By-law states at chapter 178.2 that, "Except as
permitted in writing from the Conservation Commission... no person
shall engage in the ... removal, filling, dredging, discharging
into, building upon, or otherwise altering or degrading... any
freshwater wetland ... or any land... subject to storm flowage, or
flooding, or inundation by groundwater or surface water, and the
floodplain. The Commission shall not grant such permission
without receiving notice of the intention to conduct such
activity, and without issuing written permission to do so...."
(A true and accurate copy of the By-law is attached hereto as
Exhibit G.)
24. Section 10 of the By-law states that, "In the event of
a violation of this By-law..., the Commission or its agents may
issue a stop order to the owner.... Any person who shall violate
M
the provisions of a stop order shall be deemed in violation of
the By-law;..." The By-law also provides that, "Any person who
violates any provision of this By-law... may be punished by a
fine pursuant to Massachusetts General Laws, Chapter 40, section
21."
Violations Of The Act And By-law
25. As of the date of this Complaint, Mscisz has not
complied with the October 8, 1992, May 14, 190.3, or September 2,
1993 Enforcement Orders. In fact, Mscisz recently resumed
filling and altering wetlands, in blatant violation of those
Orders. He has not restored the illegal wetland alterations.
Mscisz has not submitted a Notice of Intent or received an Order
of Conditions to restore the illegally altered wetlands and
perform future work activity on the Site. Msciszls actions,
therefore, constitute a flagrant violation of the Act and By-law.
Those violations may be restrained by this Court and his
violations are subject to mandatory criminal or civil penalties
as specified in the Act, G.L. c. 131, §40, and fines provided in
G.L. c. 40, §21 as specified in the By-law.
PRAYERS FOR RELIEF
WHEREFORE, the Commission requests this Honorable Court:
1. Issue a Temporary Restraining Order ordering the
defendant Paul E. Mscisz to immediately cease and desist any
filling, grading, removal of vegetation, stockpiling or disposal
of soil or other materials, or operation of any machinery (e.g.,
backhoe, truck, grader, saw) on the Site located at 18 Willow
Street, North Andover;
7
I
2. Issue a Short Order of Notice for a hearing on a
preliminary injunction.
3. Issue a preliminary injunction, ordering Paul E. Mscisz
to immediately comply with the October 8, 1992, May 14, 1993, and
September 2, 1993 Orders issued by the Commission pursuant to the
Act and By-law for the land located at 18 Willow Street, North
Andover ("the Site") by:
(a) Immediately ceasing and desisting from further
work activity on the Site affecting wetlands and the 100 foot
buffer zone thereto, including, but not limited to, filling,
grading or removal of vegetation;
(b) Immediately correcting wetland alterations and
returning the wetlands to their original condition, including,
but not limited to, removal of stockpiled soil within the
wetlands and 100 foot buffer;
(c) Immediately filing with the Commission a complete
Notice of Intent in compliance with the Act and By-law, which
shall include, among other items: (i) a description of all
wetland areas altered by Mscisz or his agent; (ii) a schedule for
restoration of all such altered wetland areas; (iii) an
engineered plan designating all original (that is, pre -altered)
and current wetland boundaries on this Site. Said Notice of
Intent shall be submitted to the Commission no later than thirty
(30) days after the date of the Court Order;
(d) Immediately placing a continuous row of double -
staked hay bales upgradient of and around the perimeter of the
wetlands on the Site to prevent further siltation, sedimentation,
9
- � r
and alteration of the said wetlands;
4. Issue a permanent injunction, ordering defendant Paul
E. Mscisz to immediately comply with the October 8, 1992, May 14,
1993, and September 2, 1993 Enforcement Orders issued by the
Commission pursuant to the Act and By-law for the land located at
18 Willow Street, North Andover ("the Site") by:
(a) Immediately ceasing and desisting from further work
activity on the Site affecting wetlands and the 100 foot buffer
zone thereto, including, but not limited to, filling, grading or
removal of vegetation;
(b) Immediately correcting wetland alterations and
returning the wetlands to their original condition, including,
but not limited to, removal of stockpiled soil within the
wetlands and 100 foot buffer;
(c) Immediately filing with the Commission a complete
Notice of Intent in compliance with the Act and By-law, which
shall include, among other items: (i) a description of all
wetland areas altered by Mscisz or his agent; (ii) a schedule for
restoration of all such altered wetland areas; (iii) an
engineered plan designating all original (that is, pre -altered)
and current wetland boundaries on this Site. Said Notice of
Intent shall be submitted to the Commission no later than thirty
(30) days after the date of the Court Order;
(d) Immediately placing a continuous row of double -staked
hay bales upgradient of and around the perimeter of the wetlands
on the Site to prevent further siltation, sedimentation, and
alteration of the said wetlands;
5. Impose a civil penalty, pursuant to the Act, in such
amount as the Court shall regard as proper and just, for each day
of the continuing violation.
6. Impose a civil penalty, pursuant to the By-law, in such
amount as the Court shall regard as proper and just, for each day
of the continuing violation.
7. Award the Commission its reasonable attorneys' fees and
costs.
8. Grant such other further relief as this Court may deem
proper.
Date:
x5033
Respectfully submitted,
TOWN OF NORTH ANDOVER
CONSERVATION COMMISSION
By its attorneys,
Joel B. Bard (BBO #0291140)
Kathleen E. Connolly (BBO #558706)
Kopelman and Paige, P.C.
Town Counsel
101 Arch Street
Boston, MA 02110
(617) 951-0007
10
• Y ,
VERIFICATION
I certify that I have read the foregoing Verified Complaint
And that the facts contained therein are based upon my personal
knowledge or upon information available to me in my official
capacity as Agent for the Town of North Andover Conservation
Commission and are true and accurate to the best of my knowledge
and belief.
Signed under the pains and penalties of perjury this (,-OA-
day of September, 1993.
x5033
Richard P. Doucette,
Conservation Administrator,
Town of North Andover
11
+F-t-CF_S OF f' Town of
`NORTH ANDOVER
BL •I.:nl��• �.�-�:.�
� O1SF- R`. 1TIr,
H 1r '�. LTr-
DIVISK)" OF
F'L 1NN t 1-i
PLANNING & COMMUNITY DEVELOPMEN I
h �R , F, P NELS' )% !_)IRE ,_T()t.
SeT✓ �er.ber , 19�:
Yr. Pau'_ E. MsCisz
1E willow Street
Ncrth Andover YJ. 0184
Deal Mr. MsCisz:
12O N1am Street
Norah .A,noo-e:
IsnF
EXHIBII A
I appreciate you= meetinc watt: mF on ser:temLner 9t t�i show
rE the wcr}, on your property wh_`ch s unnerwa, . T: wcrY
n� _ude� t:,E dE . Eiopme�:t C c wa_}::,nz trs_i: fcr hors=_s . K.`. _ e
rE,iewinc a proposeo suns:%ision ac -ac=_-.' L you la ,c c:.
s .o c-�, y are attempt,nc t-
Septer�Er 1 i th , i � appears a tr a _. �.,r• _
inr=ve the dra:inaae lr. the rear of yot:r plan^ . I ass na— that,
to Is dra_naaE wcr}: 1s rElateO tc the horse tract:.
Please be advisee t";at 41.--.h1s. wort: 15 ta}:1nc Face ii. a
wetland and you must therefore receive perr..issior. fror. the
Conservation Commission. The Conservat_on COT,—LmiSsion F s ne>:t
neeting is October 7, 1992. Please apnear a7:30pr, to disc -_,ss
tis project with the Coia-:ission.
Sincere_y,
Richard P. Doucette
Conservation. Adr.inistrator
.310 CMR 10.9'
Form 9
Commcnwea!tr
o' Massacnusettr
Fro n
f EXHIBIT B
prr
1SI1 t
1�
Enforcement Order
r0assachusetts Wetlands Protection Act. G.L. C. 111, 54U
A1v- UNDEF, THE TOWN OF t:Uf.; !'. Af;L`U\'f ?. f'' .::.: , C'fi'. . LP 3, SLt'! ? U'
North Andover Cori ser•.a', ( ._IisF_c
Ycu F. 1iEC-£C
1 C'
�
� UC LDr)E3
u�i� .. !SSUc"'C�
Pry zedy lot :.c'Ce' rlJMlc- acc,!es`_
LXteni and
CGns. a _io-n aC._ t 1 gTaEin.� el' lanC 1` _ ncrCErinf
veQe E tec wetlaac.
The North Andover Conservation
in oat of the Yveflancs Prole A.s' G.�
aoove is vl i icn ... � . _ ..-
suant theretc 310 CMR 10.00. becaus_:
?j` -`-Laid aGL'!'It;� has been/is being conCUC'.SC •: ihCU a �'c :0 0'Cer
1— Said actrt'ih has beenris being cenouct=..'n issuez
cat=
Fife numoe, ?L—. Conc,tion numceris!
Thi -s enforcement order is being issued after tnE C10iaLG' ZaiieG tC reS:^ tC' a
ieLteT datEC Sept. 2-,, 1992. This i'iGlat�OP.
continue
a:LEr the i5ndG4::E' was
prEviousiv notified that the land jr- question was a wet�and and therEfCTE :seeded
the approval of the Conservation Commission.
The North Andover Conservation �or.:,r:fssic't he!e�yor�e+s thef0ilo�•:Ing
The prcc 't), r tpoc C '' he's c(1 'i
e owner his agents. ce ��� � � ct a. � -
Xk ?;
act!vtty affecting the wetlanC Gordon ct
t
Wetland alterations resulting from sa c' ':. `. s`,a'� e CD C'Cte� t p Slle rptil•T„_'C` tC '-` _ _ lad Con"
c_
gition.
Issued by t NOI CIt AIIUUV C I k,0IIbCjVQLItIH
COmpleIeO aDDItCaIton tot MS and plans a< IPOutt Pd t�' the k: ; S"C RC0.;.2"Onc Shal! L)(• hlec v: tl}t it)(
North Andover Conservation Commisslt)+lc' betotf _ toatf
ano no turihel worF, shall be performed unit, a publl: nea'tno tt3` bPP" nE'C ano 8n DOPt 0• (Onollipn
has been issued tc regulate sato WCO, Ac. IlCczlton N?t}C 0f ofct I own lin
.�•1DThe proDerl> Ov.'net Shal! IaKE evety reasDnab!E SSEC !: ntP\•E,ts fu( vt7l3IIDnS of itif 871 NV. Andv 'e
7e1. Ir(t8�-t;�ig3
K;z,, Dihe! (Spec" )
Kc co, Structior activity- of any kind including gradin, digzing, filling, equipment
traffic or cutting of vegetation is allowed until the Cor.servatior, Comr:.ission appro,--
o suer. work o;. this property. The landowner will appea- before the Conservatio..
Commfssion at its meeting on WednesdaN October 21, 1452 at 7pm. This matter will be
heart between 7pm and 8pr.. Failure to appear may result the filing of a crimina:
complaint.
Falture 10 COmDIp with this Order may COnslllule Dictunds 1D' le0a'. 2011 1:',2=5ZChUSF11� JPnnt �1 L�':• 5 �:11e:
le! 1 3't . Section 40 Drovides
VVhDP,.'e' violates an> provisic-i O' ih!F ccC!iD ct,?Ii C pUtT•c lad 2 IittF Di n^ r` r
o r r� t^t �•i ,Cn^tP-, t^ n m^'� • an 1�':c vea'� t^' C `!
1ha�� Rve'ttY-tive 1hDUSan OD,iz O � `
t -f irj `Ili ;�. \'i.�i0il�'-1 S�f��i5i., ✓.= � CO�pu��ctc- �,+t[r.cr
f ia''
Ea:.h oat or poniDn therea.f o co
GUeSiiDrtsreoaroirt_ this Enlorcemeni Uoe- S't lt!C'DE C"P7-1e 1�
tss:Je- b'
Ncrth Andover Conserva, ior, Cori,. iF-si(-'r
y
Si�natUre(si
(Administrator)
Itc. t-n6oveT Conservatior. Co= - s -z_ --
Y Ir ,.c: {, I
tC.1'i�'_r•C
p' tc'ltllo� RlEiil flU'Ti:`�' I
•
�' —�.act-�w.•_-.�..�.r r:...;•,z�.�....n•.-�. - - -- -- - - - -�
f
SENDER;
1? • Complete items t andror 2 for additional ecnlcee.
Complete items 3, and a & b,
t
} also w -s^ to rocelve the
}oilpwing Serv:crs (for en extra
• Print your name and.addr/ag on the reverse of this form a0 tlmat we cM
return texe card to VOW.
t> • AtLsch this fo•m to the front of the meopiate, or on the back
does not Derr-&
if apacet.
_ tee):
] Addressee*s
Addros3
• Write 'Return Receips RepwsLC' on tM meilpiece Oelorr tl+e artfc a number
� • The Return Reeeept
2. ❑ Restr,tted Delivor
n
rvetl show to whom The ertkOr ie was dell and the dote
C
I Y
°el'yeri6'
3.
Consult ;tmastor for tee.
Artiefe Addressed to:
40. Article Number
m
Paul hscisz
4-7 014 787
E
4b. Service Type
4
i8 Willow Street
C Registered [ -u'rea
(�
*forth Andover. MA- 01845
Cenified ^ COD
�
tr
�
! Express Mail = ^�%irn Receipt for
e1
s
al
Mi—chandise
•
Xy?I}
7. Date of Dellvortot
A
>Ifs. Signature (ddress
Adorossoe's Address Only if rcciuested
l r�
i snd 'ee Is paid)
e
6 Smgneture iAgent)
i
l
2 PS For
m1 1, December 199t o US.G.P.o. 1a�•C+a?
_ . - - -
530 DOMESTIC RETURN RECEIPT
DRAFT 10/22/92
PRESENT:
OLD BUSINESS
NACC MINUTES
OCTOBER 21, 1992
George Reich Paul Tariot
Alison Brewster KeviLn Foley
Richard Doucette Karen Nelson
EXHIBI1 C
Coventzv Estates I (#242-324) - Status of Compliance Review
Pat Seekamp from Wetlands Preservation discussed the compliance
review of this project. There are problens. with some of the
drainage structures and resulting siltat_on. Shawnut Bank:
clean catch basins, Lot 16 swaie. Use bond: Detention pond on
lots 31 and 32.
Drain on lots 14 and 15.
S
Motion by P.Tariot anc seconded by K.Fole'. adopt the minutes
of 10/14/92.
OLD BUSINESS (continued)
#18 willow Street - Violation
R.Doucette gave an overview of the viciat_cn. NACC require_ a
permit to be filed for the work. recently d ---,e and to be done as
well as future work.
4980 Great Pond Road-- Restoration
R.Doucette and Court Young gave an overview of the violation and
the restoration effort.
KEW BUszrrEss
Lot 6 Hidden Court (,#242-560) -Compliance
Scott Giles submitted a letter and an as -built plan to request a
Compliance. Motion by P.Tariot and seconded by A.Brewster to
issue a Partial Compliance.
1,ot 50 Blue Ridge_ Road 0242-5701 - Compliance
Scott Giles submitted a letter and an as -built plan to request a
Compliance. Motion by A.Brewster and seconded by P.Tariot to
issue a Compliance.
Lots 23A and 28A South Bradford St. (#242-62.162.3)_- Modification
Request for modification made by Scott Giles. Motion by P.Tarict
and seconded by A.Brewster to issue the Modification. Vote 3-1,
G.Reich opposed.
Post -it" brand fax transmittal memo 7o of piyea ►
T9. From i
DW. Phone 0
OFFICES OF
Town of
120 Main Street
APPE A%L�
'•
y f:
NORTH ANDOVER
North Andover
Ma55i1C'hU4!'w- ()1 Ems-
CONSER'. ATION
DIVISION OF
(01 1 G8 54 7 7 5;
HEAL TH
PLANNING
& COMMUNITY DEVELOPMENT
EXHIBIT n
HP NELSON. DIRL.: TCS=
October 29, 1992
Paul E. Mscisz
lE Willow St.
North Andover M� 01845
Dear Mr. Mscisz:
Attached are the instructions and forms -'zr filing a 'Notice
o` Intent' with the Ccnservation Commission. As you know, the
Cor'a:ission voted at they. October 21, 1992 meeting to require to
Vo": tc, f i lE a Notice of Intent for the wart: vc.: have come 1 etec in
the rear of your property. All work is to stcr until permits are
obtained This permit will pertain to all wor:,: you have completed
and any work punnet in the near future.
This permit is required by local and sta:E law since a large
pertior, of the rear of your property is a wetland. You were
notified over a yea: ago that this property- was a wetland and that
any additional wort: would require a permit. Additional work was
then undertaken without a permit. The Conserti-a'.ion Commission has
been very lenient in this matter and I hope you will respond by
filing for the necessary permit.
Sincerely,
Richard P. Doucette
Conservation Administrator
TolA of
NORTH XNDOVER
W KiO', (it
PLANNING & CO!NINIUNITY DEVELOPMENT
Mav 14, 1°G
H� Paul E. msclsz
willow Street
Ncrth Andover Mk 0164-1
Dear M-. Msc_sz.
120 Main Street. 0IF4
(505) 65_' -Fab:'.
EXHIBIT E
Enclosed is another Enforcement Order fcr
a vic_atior. of
the
Sate Wetlands Protection
Act and the No—n
A.dcver wetlandE
P �_tec� icr. Bv _11 a,�%on yo -,;r
property . You have
been irnf ormed
or:
ce-:era1 occasions thai any
f__:inc gradinc c- other a _eratlo-:
Cl
ir. the rea c` yo r
property recuire-s
a pe -r,.1 t f -or..
the
�onsErvatio;. Co-nr,ls_ior.,
You have ignored cu.
y
pa=__ d_rectior:
an
we are no, forced to take
additional action
Tin,= Enforcer:ent Order has been recorded at the Req_:stry of
Deeds and will act as a lien on your dee,-'-. This will create
tifflcultles in selling or recinanclnc the property- Thls matte=
be turned over to the Department of Environmental Protection'
w - l ,
enforcement personnel as we-!--,. The Conservation Co=lsslon wilt
discuss this matter at the Senicr Center at :OUp c May 19th,
I
urge you to attend this meetinc.
Respectfully,
Richard P. Doucette,
Conservation Administrator
Town of North Andover MA
Form
CO n -,T1 nv, C C
__ �•t'� of t�1c_, aC 1 Set"
EaHIBI1 E
C?cF.,e r+o I hone i
(lc cue D: ;
Enforcement Order
Massachusetts V'►etlands Protection Act, G.L. c. 1?1, §4U
CliAi'.--.. 3, 5L:'ill)1, -'•-
fin -4e ey Cc isE' •�'' 1C.. :, i'. .:? _. _... t; _, .. 'l; �+Ut!1C' �
Z-A,IE-. a-.= '.1'J= -_, a --...'I'
O: -anC anc stc::kr:l_1n` aC_.acEi:; anc pCSS«_ 1..
L.eL a -c•
It,c r„iYi �ind Q•:'e?- COrlse:vati0?i �, C.`: ,:i1! cc1C:'t j1�C �1, fol(; I;t1� � tila� iii' ��t', It1 r�`, _.. �`-.c-{
G :E IS C! Vlpiatl O. the Pe-
-WR
,oCWR 10.00, because
,;:.•:Sa, ac.i,ity has been;is being ccnCus'•ec',:ilhs'u; a :ai:d Order of
L .r,: „ azl!1'(ty has beerms being ccnducte.. in v!C'a'!'Cn of a1 Orde• Of COnd!ilonS !SSl1`2�4 r5
da!er
riie nus, be' ?U2— Condition nurncer(s)
aZ-D-1%01trie� (sped'?)
The landowner Was informed on pre,:iouE occasions that the area In question 1s
a wetland and to stop work. Letters, Enforcement Orders and verbal direction
from the Conservation ComL.ission have not resulted in compliance.
Now new filling and stockpiling has begun on the properti:•
Tne t;ortli Andover Conservation Conn::iss { on hereby orders the fO' C',:inQ
j;,�+;'I ne GrOoerty owner, his aoents. oermrt!GeS 2nd a' others sit:ai im:rne'!;c!e!i' C -2r- c!,C d� -
actlJity affecting the wetland portion of this property.
;u,Wetiand alterations resulting from said activity sha!1 be corrected and the site retu'(ted to its C!'a'!tc' con
d(t(on.
M
I f
(1!11'1 t'.��'•��
y North /%11dL)N,'r Lc :'.tiC'f4':1L lull
issuer, D
�if l.t?^1;)'c IE'G aJD1� a1;0n toms ano OID!`l`• Dc 1ep:+'E : t,,
North Andover COnsCTVntJ011 �.':. fssfttrc'bele'E —icy
a 1: n: IU'inE' V,orh seal. be performed (1r111'. d C' t1E�'I'i� 1,ar be(11 hel� a'
?`1,
a': t:/I :t of f f
ha-- bee-� Issued to repulate Salo WorWork
}� nE p'C:'e�tj' ov.'ne" shat' take every rea
SIC- 1C,r.0 .(;i. 1� X11^' v' t• '1[ N 111, 'r,:' l:o. t111rJc c ;
}.:G?. (Dine, Isoec+lyl
T'S.iE matter wil
hE discussed at the Ma•: 19 I�C� Conser'vat10T'. ComrrisSlor. meetin€
T'r,E Co%i.lssior. w-'1_11 discuss the potentia; for leg -a! aztio-, at that timE. ce atE
hare-dlrecteG to attene that ineetlnE a, !:0(lpr ir. the Serio. Center ad -,2' LC
1okT. hall.
f: IE:,� cCrl�• t::2c5�"ItU' it: (�c tlr. �,' - .... '_ a.
!'a••U'E t: C: Ti p'" v:11h tni_ Order ma! Con51!tUt� O'C•. ,..- - .
L .. rc li } 4 R"O Ibe5
�'dnoe•'e' vro,ates an)' provision c
f int[ C�' :�' S'1;,'' t'r t -'✓11,
In i�'-'1.1'T-IC*`�' l�' .�. ri i'lic trlr ^.. t' :r' \.p �,r �• 1.�
than rN4'enty-live thousand do"a's or b,'
'l '
Lan,, oat, o' portion therd-Cy' D' Cpt111nU+'+:. �•t:;;a;t��� S'�31 CC )5111'J tE 5`_i3'^�,r ofirft. .
I.
1 �_ 01'E�tE� 1� R: ..r-.•� T1nl•rnttc —_ --
Guesliz)ns reoard+n_ tn:_ Enforcement Order SIIDUl:
issuec by
?dortli Andover Conservation (;ummili
Stpn2tU!E;51 � �'
(Administrator)
01
(�•0(lait.iln ('1 00I,.'hIN Ill",
c' ce�l�t!ac,n,,llnu,,,I,�11
EA.
' Complete Item, t udlor fpr aodhionel &&ruins. i 1 &ISO with to receive he
• Complata ,ama 3, and y 6 b- , following
• Print your nems mo a0dres& an the reverie of th(a form eo that *e can i Lervi�e� {ipr en er;rd
I'MOr. this card to roti , • fee):
' Attach this f" 'p the f ont'of t
dose not permji,n.7°l�'t" or on the Deck a space 1. L1 Addressoe'6 Address
• Write '-Aatum Floes lot Repueet�d' on the mA11 Gece below VV amici* number
' The Rown Aeeeipt wpf *how to whprn the ar*If ;•a 2. 1 Restricted Delivery
G detiver&d. -. ' � • : �. � ., . � . � and tis& date rY
O 3. Article Addreusd to; Con,utt ostmastar fpr foe.
4�. Article Number
Paulec'_si Y F 406 914 687
' ; 4b. Service Type m
18 trvli�oW StZenT.,' E Re9itacred C Insur
ac
t North Andover, L1<45 Cerified a C00
a
Express Mail r Return ?ecetpt for
W.
frlerchPndis
4r' 7. Oate of Delivery o
Ar}dressep"e Addrec, IQnw if reauo3ted
and fee Is Doid! C
f3. 5ignat ;AQen=+4 I
s PS Form Dace 1991 0 !U$.a(ZP.Q,; lgg7�j DOMESTIC RETURN RECEIPT
" 310 CMR 10.99
Form 9
,.: Commonwealth
of Massachusetts
EXHIBIT F
DEP fire r+o. Non I _
(10 oe provided by DEP)
err to,,, Nt)rth Ani,luver, tIA
A001 -call Mscist
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, §4U
AND UNDER THE TOWN OF NURTI1 ANDUVER BYLAW, CIIAY'LLlt 3, SL•'t:11UN 3.5
From North Andover Conservation Commission Issuing Authority
To Paul T. Mscisz
Date of Issuance September 2, 1993
Property lot/parcel number. address 18 Willow St., North Andover MA
Extent and type of activity:
The landowner is filling a portion of a bordering vegetated wetland. The land
owner has been previously notified by the Commission that this fill has been
illegally placed on the property and that the subject wetland has been illegally
stripped of all vegetation.
The North Andover_ Conservation Cummission Ims determined that Me activity described
above Is In violation of the Wetlands Protection Act, G.L. c. 131. §40. atra the Regulations promulgated pur•
suant thereto 310 CMR 10.00. because:
XZX Said activity has beemis being conducted without a valid Order of Conditions.
❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to
dated
File number 447 -. Condition nurnber(s)
❑ Other (specify)
The land owner has failed to comply with previous Enforcement Orders issed by
the Conservation Commission.
The North Andover Conservation Con+ml5310" hereby orders the toltoying.
XX& The property owner. his agents. permittees and all others shall inttnQG>ttbty Ccase -1r1d d!s'3t born further
activity affecting the wetland portion of Ilus orcoerly.
XXXV Wetland alterations resulting from said activity shall be corrected and the site returned to its oliginal Cort-
dition.
O1 .
Issued by North Andgver Conaervation ConrmrSsrun
XVIX Comoleteo aoolrcatton lorms and plans as required ti tl►p Hct arra Ftegusattons Shall be tiled v:tlh tnE
North Andover Conservation Coatmissigllorbetore 9/14193 _toale)
and no lurcher work Shall be pedormed until a public nearing rias been geld and ars Orap, of Conditions
has been issued to regulate said work. Application torms are available at. NAC(: tit• t ice
120 Main St., ('rouir lln t l )
XAX The property owner shall take every reasortaule steo to ptevenl lurthet vralalrons of 1110 act No. Atlduver,MA
Q Other (specify) Tei. #682-6483 01845
Be advised that the Conservation Commission is presently seeking an injunction against
you.. Also be advised that the Conservation Commission has issued you a ticket for a
violation of the Town Wetlands Protection Bylaw. This violation carries a fine of $200
per violation.
Failure to comply with this Order may constitute grounds for Ieaal action Massacriusetts Gencr,rt Lavr5 C►i�t�.
ter 131. Section e0 provides:
Whoever violates any provision of this section shalt be uurushed by a tine. of nol r{trrre,
than twenty-five thousand dollars or by imprisonment for riot more than two years or U411
Each day or portion mereol of continuing vtolaiton shall constitute a separate ollenc_.-
Ouestions regarding this Enlorcement Order should be directed to atLnrnpy _OPI Urd__Df _Kapp lman & Pail
Conservation Administrator
Issued by
North Andover Conservation Cummtission Richard Doucette
� � Q
Si9 natures) [„el�.oi."� �� - -• ----
(Administrator)
or certdlec rtt,,,1 riwnc,*. t
EXI-11BI1 G
I WETLANDS PROTECTION BYLAW
WETLANDS REGULATIONS
North Andover, Massachusetts
NORTIy
LEO
3 OL
SACHU
i
r
EXI-11BI1 G
I WETLANDS PROTECTION BYLAW
WETLANDS REGULATIONS
North Andover, Massachusetts
NORTIy
LEO
3 OL
SACHU
Y J p
CHAPTER 178 - WETLANDS PROTECTION BYLAW
178.1 PURPOSE
The purpose of this Bylaw is to preserve and protect the
wetland resource areas (as specified in Section 2) and
buffer zones of the Town of North Andover by regulation of,
and control of, activities (more particularly described in
Section 2 below) deemed by the Conservation Commission (the
"Commission") to have significant or cumulatively detrimental
effect upon the following interests and values, including but not
limited to: public or private water supply; groundwater; the
prevention and control of flooding, erosion, sedimentation, storm
damage, and/or pollution; protection of fisheries, wildlife,
wildlife habitat, and recreation.
178.2 JURISDICTION
Except as permitted in writing by the Conservation
Commission, or as provided in this Bylaw, no person shall engage
in the following activities ("activities"): removal, filling,
dredging, discharging into, building upon, or otherwise altering
or degrading the wetland resource areas described in the
following sentence, or the buffer zones thereof. The Town's
wetland resource areas consist of: any freshwater wetland (as
determined by vegetational community, soil composition or
hydrologic regime), any bank, beach, marsh, wet meadow, bog,
swamp, or lands bordering any creek, river, stream, pond or lake,
or any land under said waters, or subject to storm flowage, or
flooding, or inundation by groundwater or surface water, and the
floodplain. The Commission shall not grant such permission
without receiving written notice of the intention to conduct such
activity, and without issuing written permission to do so all in
compliance with the provisions of this Bylaw.
178.3 EXCEPTIONS
This Bylaw shall not apply to the following activities:
1. Emergency projects as defined in the Commission's
regulations; or
2. Maintenance, repair or replacement, without substantial
change or enlargement, of existing and lawfully located
structures or facilities used in the service of the
public and used to provide electric,
telephone, or other telecommunication
public; or
gas, water,
services to the
4
3. Normal maintenance of land in agricultural use, as
defined in the Commission's regulations; or
4. Maintenance and repair of existing public ways.
i i f
178.4 APPLICATIONS TO WORK AND INFORMATION REQUIRED
All applications to perform activities in the Town's
resource areas shall be either in the form of a Request for
Determination or a Notice of Intent, or both. Such applications
shall contain data and plans as specified in the Commission's
regulations, and shall be submitted in complete written form to
the Commission as required by this Bylaw, regulation or
otherwise. The date which serves to commence the Commission's
deliberation period is the date of receipt of the application at
its offices, during regular office hours. The applicable forms
may be obtained from the Commission and must be signed by the
owner and applicant, as well as the engineer where required. All
plans and drawings must contain at least the following
information to scale: all wetland resource areas, all existing
lot lines (differentiated from proposed lot -lines); the location
of the proposed work; all Town roads, ways, streets, etc.;
existing physical and geographic characteristics of the site;
existing buildings and structures; and all proposed changes,
including changes to topography and grade. The Commission may
require further information by Regulation, guideline, or as
otherwise deemed necessary by the Commission. All applications
shall be accompanied by a certified list of abutters by name and
address.
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 which is necessary to describe
the effect of the proposed activity on the resource -areas.
178.5 HEARINGS
A) Combination with State Law Hearing:
The said Commission, in its discretion, may hear any oral
presentation under this Bylaw at the same -public hearing required
to be held under the provisions of chapter 131, section 40, of
the Massachusetts General Laws. Notice of the time and place of
such hearing(s) shall be given as required below.
B) Notice:
Notice of the time and place of the hearing shall be given
at the applicant's expense, not less -than seven (7) calendar days
prior to the public hearing, by publication in a newspaper of
general circulation in North Andover, and by mailing a copy of
such notice to all land owners within 300 feet of the land on
which the work is proposed. All publications and notices shall
contain the name of the applicant, a description of the area
where the activity is proposed by street address, if any, or
other adequate identification of the location, of the area or
premises which is the subject of the notice, the date, time and
place of the public hearing, the subject matter of the hearing,
and the nature of the action or relief requested, if any. All
continuances beyond one (1) month require the same notice.
C) roof:
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 this 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 and others 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 protected under this
Bylaw and to any demonstrated hardship on the petitioner by
reason of a denial, as brought forth at the public hearing.
D) Continuances:
If the Commission determines that additional information is
necessary, the hearing may be continued to a future date for as
many hearings as it may deem necessary. Continuances on hearings
on Requests for Determination may only be granted by the
applicant.
E) Investigations:
The Commission, its agents, officers and employees, may
enter upon privately owned land for the purpose of carrying out
its duties under this Bylaw and may make or cause to be made such
examination or survey as deemed necessary.
178.6 ORDERS AND DECISIONS
A) All Decisions and Orders
If the Commission shall determine that the proposed activity
does not require the imposition of conditions to preserve and
protect the interests of this Bylaw, the applicant shall be so
notified in writing.
IL
If, after the hearing, the Commission shall determine that
the proposed activity is significant to one or more interests and
values of this Bylaw, the Commission may vote to issue written
Orders of Conditions within 21 days of the close of the public
hearing. The Commission may impose such conditions, safeguards
and limitations on time and use upon such activity as it deems
necessary to protect those interests.
The Commission may prohibit such
event that it finds that the interests
can not be preserved and protected by
conditions, safeguards or limitations.
B) Security to Assure Performance:
activity altogether, in the
and values of this Bylaw
the imposition of such
The Commission may, as a part of its Order of Conditions,
require, in addition to any security required by any other Town
or State Board, Commission, agency or officer, that the
performance and observance of the conditions, safeguards and
limitations imposed under this Bylaw on the applicant and owner
be secured by one, or both, of the methods described in the
following clauses:
1. Deposit:
By the deposit of money sufficient in the opinion of the
Commission to secure performance of the conditions and
observance of the safeguards of such Order of Conditions.
Such security, if filed or deposited, shall be approved
as to form and manner of execution by Town Counsel or the
Town Treasurer. And/or
2. Land Restrictions(s):
By a conservation restriction, easement, or other
covenant running with the land, executed and properly
recorded (or registered, in the case of registered land).
C) Duration of Orders
All Order of Conditions shall expire three (3) years after
the date of issuance, unless renewed prior to their expiration.
An Order of Conditions may be renewed for a period of up to one
year upon the request of the applicant. No activity governed by
an Order of Conditions shall be carried on unless and until all
permits, approvals and variances required by the Bylaws of the
Town shall have been obtained, such Order of Conditions or
notification shall have been recorded or registered at the Essex
North District Registry of Deeds or in the North Essex District
of the Land Court Department and until all applicable appeal
periods have expired. The Commission shall have the right to
record or register its Order of Conditions with said Registry or
Registry District. In the event that an Order of Conditions
issued pursuant to this Bylaw is identical to a final Order of
Conditions issued pursuant to the provisions of MGL Chapter 131,
Section 40, only one such Order need be recorded or registered.
D) Amendments
The Commission shall have the power, on its own motion or
upon the petition of any person interested, to amend any such
Order of Conditions after notice to all persons interested and a
public hearing.
178.7 CERTIFICATES OF COMPLIANCE
The Commission shall, upon receiving a written request
therefore and weather permitting, inspect the resource areas
where the activity governed by an Order of Conditions was carried
out and issue a Certificate of Compliance to the owner of the
property in a form suitable for recording or registering, if it
shall determine that all of the activity or activities, or
portions thereof, limited thereby have been completed in accord
with said Order.
178.8 RESPONSIBILITY FOR COMPLIANCE
After the recording of a Notice of Violation or Order by the
Commission, any person who purchases, inherits or otherwise
acquires real estate upon which work has been done in violation
of the provisions of this Bylaw or in violation of any order
issued under the Bylaw shall forthwith comply with any such Order
or restore such land to its condition prior to any such
violation; provided, however, that no action, civil or criminal,
shall be brought against such person unless such action is
commenced within three years following the recording of the deed
or the date of the death by which such real estate was acquired
by such person.
178.9 RULES AND REGULATIONS
The Commission shall be empowered to establish Rules and
Regulations to govern its affairs, including but not limited to
fees, definitions, use of consultants, and such other information
which it deems necessary to discharge its responsibilities.
After due notice and public hearing, the Commission may
promulgate such rules and regulations to effectuate the purposes
of this Bylaw, by a majority vote of the duly appointed members.
Failure by the Commission to promulgate such rules and
regulations; or a legal declaration of their invalidity by a
court of law shall not act to suspend or invalidate the effect of
this Bylaw.
F&
178.10 ENFORCEMENT. INVESTIGATIONS & VIOLATIONS
In accord with the provisions of M.G.L. Chapter 40, Sections
21D and 31 as well as every other authority and power that may
have been or may hereafter be conferred upon it, the Town may
enforce the provisions of this Bylaw, restrain violations thereof
and seek injunctions and judgments to secure compliance with its
Orders of Conditions. Without limiting the generality of the
foregoing:
A) Any person who violates any provision of this Bylaw or of
any condition or a permit issue pursuant to it may be punished by
a fine pursuant to Massachusetts General Laws, Chapter 40,
section 21. Each day or portion thereof during which a violation
continues shall constitute a separate offense; if more than one,
each condition violated shall constitute a separate offense.
This Bylaw may be enforced pursuant to Massachusetts General Laws
Chapter 40, section 21D, by a Town police officer, other persons
having police powers, Conservation Commissioners or the
Conservation Administrator.
In accordance with Ch. 40 S. 21D, violators may, at the
discretion of the enforcement authorities,'be charged a penalty.
The penalties for violations of this Bylaw shall be assessed as
follows:
B) In the event of a violation of this Bylaw or of any order
issued thereunder, the Commission or its agents may issue a stop
order to the owner, the applicant or agent by certified mail,
return.receipt requested, or by posting the same in a conspicuous
location on said site. Any person who shall violate the
provisions of a stop order shall be deemed in violation of the
Bylaw; but the failure of the Commission to issue a stop order
for any reason shall not prevent the Town from pursuing any other
legal remedy at law or in equity to restrain violations of this
Bylaw and to secure compliance with its orders.
C) The Town shall be the beneficiary of all fines imposed on
account of the violation of this Bylaw in order to defray the
expense of enforcing the same.
Violation Penalty
Alteration
of 1 - 1000 sq. ft. of wetland
$
50
Alteration
of 1001 - 2000 sq. ft. of wetland
$
100
Alteration
of 2001 - 3000 sq. ft. of wetland
$
200
Alteration
of greater than 3000 sq. ft. of wetland
$
300
Depositing
any refuse, debris, yard waste or
construction material in a wetland or water body
$
300
Alteration
of any stream or water body
$
300
Any violation of any section of this Bylaw that
occurs in the Lake Cochichewick Watershed
$
300
B) In the event of a violation of this Bylaw or of any order
issued thereunder, the Commission or its agents may issue a stop
order to the owner, the applicant or agent by certified mail,
return.receipt requested, or by posting the same in a conspicuous
location on said site. Any person who shall violate the
provisions of a stop order shall be deemed in violation of the
Bylaw; but the failure of the Commission to issue a stop order
for any reason shall not prevent the Town from pursuing any other
legal remedy at law or in equity to restrain violations of this
Bylaw and to secure compliance with its orders.
C) The Town shall be the beneficiary of all fines imposed on
account of the violation of this Bylaw in order to defray the
expense of enforcing the same.
D) Upon request of the Commission, the Board of Selectmen and
Town Counsel shall take such legal action as may be necessary to
enforce this Bylaw and permits issued pursuant to it.
E) Upon recommendation of the Commission, the Board of
Selectmen may employ Special Counsel to assist the Commission in
carrying out the legal aspects, duties and requirements of this
Bylaw.
178.11 CONSULTANT SERVICES ACCOUNT
Upon receipt of a permit application, the Commission is
authorized to require an applicant to pay a fee for the
reasonable costs and expenses borne by the Commission for
specific expert engineering and other consultant services deemed
necessary by the Commission to come to a final decision on the
application. This fee is called the consultant fee. The
specific consultant services may include but are not limited to
resource area survey and delineation, analysis of resource area
values, including wildlife habitat evaluations, hydrogeologic and
drainage analysis, and Environmental or land use law.
The Commission may require the payment of the consultant fee
at any point in its deliberations prior to a final decision. The
applicant shall pay the fee to the town to be put into a
consultant services account of the Commission which may be drawn
upon the Commission for specific consultant services approved by
the Commission at one of its public meetings.
The exercise of discretion by the Commission in making its
determination to require the payment of a fee shall be based upon
its reasonable finding that additional information acquirable
only through outside consultants would be necessary for making an
objective decision.
The Commission shall return any unused portion of the
consultant fee to the applicant unless the Commission decides at
a public meeting that other action is necessary. Any applicant
aggrieved by the imposition of, or size of, the consultant fee,
or any act related thereto, may appeal according to the
provisions of the Massachusetts General Laws.
The maximum consultant fee charges to reimburse the
Commission for reasonable costs and expenses shall be according
to the following schedule:
Proiect Cost
Maximum Fee
UP
TO
$
500,000
$
2,500
$
500,001 -
$ 1,000,000 $
5,000
$
1,000,001 -
$ 1,500,000 $
7,500
$
1,500,001 -
$ 2,500,000 $
10,000
The maximum fee required under this authority will be $10,000 per
project. The specific consultation services will be limited to
review of drainage analysis, storm water management, water
quality, wetland delineation, wildlife habitat evaluation, and
erosion control measures. These services will only be required
when the applicant and the Commission cannot come to mutual
agreement on a critical issue which requires technical knowledge
or expertise not available to the Commission. The determining
use of these funds will be reviewed and approved based on the
specific need for outside consultation by the Director of the
Division of Planning & Community Development.
178.12 CAPTIONS AND SEVERABILITY
The captions used herein are for convenience only and are
expressly intended to have no legal or binding significance. The
invalidity of any section or provision of this Bylaw shall not
invalidate any other section or provision thereof, nor shall it
invalidate any Order of Conditions or decisions which have
previously become final.