The URL can be used to link to this page

Home My WebLink AboutMiscellaneous - 210 HOLT ROAD 4/30/2018 (3)ILIMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 8B — Certificate of Compliance Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Certificate 4. A site inspection was made in the presence of the applicant, or the applicant's agent, on: 7/25/12 Date wpafrm8b.doe - rev. 12/23/09 WPA Form 813, Certificate of Compliance - Page 1 of 3 DEP File Number: 242-1404 Provided by DEP A. Project Information Important: When filling out 1 . This Certificate of Compliance is issued to: forms on the computer, use Thomson Brothers Industries, Inc. only the tab key Name to move your 210 Holt Road cursor - do not use the return Mailing Address ------- key. North Andover MA 01845 ar--h CityfTown State Zip Code tA 2. This Certificate of Compliance is issued for work regulated by a final Order of Conditions issued to: TBI, Inc. Name October 17, 2007 242-1404 Dated DEP File Number 3. The project site is located at: 210 Holt Road North Andover Street Address CityfTown Map 37,77 Lots 27,38,40,14 Assessors Map/Plat Number Parcel/Lot Number the final Order of Condition was recorded at the Registry of Deeds for: Holt Road LLC Property Owner (if different) Essex North 9889,10373 298,301, County Book 332 Certificate 4. A site inspection was made in the presence of the applicant, or the applicant's agent, on: 7/25/12 Date wpafrm8b.doe - rev. 12/23/09 WPA Form 813, Certificate of Compliance - Page 1 of 3 ILIMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 8B — Certificate of Compliance 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP B. Certification Check all that apply: Complete Certification: It is hereby certified that the work regulated by the above -referenced Order of Conditions has been satisfactorily completed. El Partial Certification: It is hereby certified that only the following portions of work regulated by the above -referenced Order of Conditions have been satisfactorily completed. The project areas or work subject to this partial certification that have been completed and are released from this Order are: El Invalid Order of Conditions: It is hereby certified that the work regulated by the above -referenced Order of Conditions never commenced. The Order of Conditions has lapsed and is therefore no longer valid. No future work subject to regulation under the Wetlands Protection Act may commence without filing a new Notice of Intent and receiving a new Order of Conditions. Ongoing Conditions: The following conditions of the Order shall continue: (Include any conditions contained in the Final Order, such as maintenance or monitoring, that should continue for a longer period). Condition Numbers: 86,40 C. Authorization Issued by: North Andover Conservation Commission 4edia Dat4 of 16suance This Certificate must be signed by a majority of the Conservation Commission and a copy sent to the applicant and appropriate DEP Regional Office (See wpafrm8b.doc - rev. 12/23/09 VVPA Form 8B, Certificate of Compliance - Page 2 of 3 4 1 Massachusetts Department of Environmental Protection Bureau of Resource Protection ' - Wetlands DEP File Number: WPA Form 8B — Certificate of Compliance 242-1404 L, i Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP D. Recording Confirmation The applicant is responsible for ensuring that this Certificate of Compliance is recorded in the Registry of Deeds or the Land Court for the district in which the land is located. Detach on dotted line and submit to the Conservation Commission. t-6: ---------------------------------------------------------------------------------------------------- North Andover Conservation Commission Please be advised that the Certificate of Compliance for the project at: 210 Holt Road Project Location Has been recorded at the Registry of Deeds of: for: Essex North County TBI, Inc. Property Owner 242-1404 DEP File Number and has been noted in the chain of title of the affected property on: Date Book Page If recorded land, the instrument number which identifies this transaction is: If registered land, the document number which identifies this transaction is: wpafrm8b.doc - rev. 12/23/09 Document Number Signature of Applicant WPA Form 813, Certificate of Compliance - Page 3 of 3 LMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form Q — Order of Resource Area Delineation 242-1190 LI Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP A. General Information Important: When filling out forms on the computer, use only the tab key to move your cursor - do not use the return key. AMONG OEM& Note: Before completing this form consult your local Conservation Commission regarding any municipal bylaw or ordinance. wpaform4b.doc - rev. 01107 From: North Andover TC—onser—vation Commission 2. This Issuance is for (check one): a. Order of Resource Area Delineation Only b. Order of Resource Area Delineation Subject to Simplified Review I. El Not Subject to Stormwater Policy 2. El Subject to Stormwater Policy c. 0 Amended Order of Resource Area Delineation 3. To: Applicant: William a First �Name 210 Holt Road TM�ailingAddress North Andover e. City/Town Thomson -4a— b. Last me 4. Property Owner (if different from applicant): 5 M a. First Name Last—Name 210 Holt Road d. Mailing Address North Andover e. City/Town Project Location: 2 10 Holt Road a. SheetAddress .Map 77, Map 34 c. Assessors Map/Rat Number Latitude and Longitude (note: electronic filers will click for GIS locator): 1.) TBI Inc. C. Company MA. 01845 f. State 9. Zip Code .Holt Road, LLC C. Company IVIA. 01845 f. State g. Zip Cod—e North Andover b, Cityrrown Parcel 14, Parcels 27, 38 & 40 d. Parcel/Lot Number 71-07'-10" 42-43'-25" itude f I ^n if A Dates: luf 5/9/07 a. Date Notice 'of Intent filed -� Date Public Hearing Closed & u v 5/14/07 C. Date of Issuance 7. Title and Date (or Revised Date if applicable) of Final Plans and Other Documents: Existing Conditions Plan to Accompany Abbreviated Notice of Resource February 2007, Area Delineation (ANRAD) See attached Revised April 4, 2007 c. Title d. Date Page 1 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA ForM Q — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 -P�rovided -by DEP B. b�rder I. The Conservation Commission has determined the following (check whichever is applicable): a. 0 Accurate: The boundaries described on the referenced plan (s) above and in the Abbreviated Notice of Resource Area Deli neation are accurately drawn for the following resource area(s): I - Z Bordering Vegetated Wetlands (,,Fr ff fop C,43) 2. Z Other Resource Area(s), specifically: cc '- � e, j b. 11 Modified: The boundaries described on the plan(s) referenced above, as modified by the Conservation Commission from the plans contained in the Abbreviated Notice of Resource Area Delineation, are accurately drawn from the following resource area(s): 1. 11 Bordering Vegetated Wetlands 2. D Other Resource Area(s), specifically: c. El Inaccurate: The boundaries described on the referenced plan(s) and in the Abbreviated Notice of Resource Area Delineation were found to be inaccurate and cannot be confirmed for the following resource area(s): I. El Bordering Vegetated Wetlands 2. El Other Resource Area(s), specifically: I The boundaries were determined to be inaccurate because: wpaformft.doc - rev. 01/07 Page 2 of 7 Order of Resource Area Delineation 210 Holt Road - Map 34 - Lots 27,38, and 40 and Map 77 Lot 14 (Lots 1, 2, 3, and 4 as shown on the approved plan) DEP File # 242-1390 Facts & Findings: Jurisdictional wetland resource areas within the subject parcels include a very limited area of the 200 - foot Riverfront area boundary associated with Creek Brook to the north east of Lot An off property Bordering Vegetated Wetland (BVW) was delineated and confirmed on the adjacent Lawrence Airport property and Holt Road Excavators property to the south/south east of Lot 1. This resource area was reviewed and approved with exception to wetland flags 159 through 161 upon written permission from the property owners, respectively. The associated 25' No -Disturbance Zone, 50' NO -Construction Zone, and 100' buffer zones were not depicted on the approved plans, therefore not approved under this filing. The NACC formally approved the aforementioned jurisdictional resource area boundaries at their meeting of May 9, 2007. It is important to note that there were questions raised by both the Conservation Administrator and the North Andover Conservation Commission (NACC) during the public hearings as to whether a jurisdictional resource area had once existed to the rear of Lot 1. These questions were raised appropriately from evidence found on aerial photographs and from a memorandum written by the former Conservation Administrator, Julie Parrino, in April of 2003. As a result, the NACC retained Seekamp Environmental Consulting, Inc. to determine if the area in question was or was at one time a jurisdictional resource area under either the Massachusetts Wetlands Protection Act or North Andover Wetlands Protection Bylaw. Upon investigative studies and a subsequent field review, Seekamp Environmental found that the area in question was not, nor did it previously qualify as, a jurisdictional wetland under either the state Act or the local bylaw. A full report documenting this analysis and subsequent findings in this regard was submitted by Seekamp Environmental and is referenced herein. Record Documents: > Abbreviated Notice of Resource Area Delineation, dated March 1, 2007; > Plan entitled "Existing Conditions Plan to Accompany Abbreviated notice of Resource Area Delineation (ANRAD)". Brown and Caldwell, dated February 28, 2007, last revised April 4, 2007. Stamped and signed by Phillip N. fagota, P.E.; > Pern-dssion of Abutting Property Owner Affidavit from Michael Miller, Airport Manager, Lawrence City Airport, dated March 2007; > Permission of Abutting Property Owner Affidavit from Joseph Cristaldi, President, Holt Road Excavators, LLC, dated March 2007; > Letter from Patrick D. Seeka'mp, PWS/CWS, Seekamp Environmental Consulting, Inc., Dated May 8,2007. Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA ForM Q — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 �rovided -by DEP C. bliTiplified Buffer Zone Review Work within the Buffer Zone Pursuant to the Simplified Review (310 CMR 10.02) requires that you must comply with the following conditions. If your Project does not meet these requirements, you are required to either file a Determination of Applicability or Notice of Intent or take other corrective measures as directed by the Conservation Commission. Simplified Review Conditions: Work conducted under Simplified Review requires the following: 1. No work of any kind shall occur within any wetland resource areas including Riverfront Area and Bordering Land Subject to Flooding. 2. The inner 040 -50 -foot wide area from the delineated wetland boundary that has a Buffer Zone shall not be disturbed by any work associated with this project, including placement of any stormwater management components. 3. No work shall occur in the Buffer Zone bordering an Outstanding Resource Water (e.g., certified vernal pool, public water supply reservoir or tributary), as defined in 314 CIVIR 4.00 or border coastal resource areas at 310 CIVIR 10.25-10.35. 4. No work shall occur in the Buffer Zone adjacent to wetland resources with estimated wildlife habitat (which is identified on the most recent Estimated Habitat Map of State -listed Rare Wetlands Wildlife). 5. Erosion and Sedimentation controls shall be installed and maintained at the 50 -foot Buffer Zone line or limit of work (whichever is a greater distance from the resource area) to protect resource areas during construction. 6- If the project is subject to the Massachusetts Stormwater Policy, all work shall be conducted in conformance with an approved Stormwater Management Plan. 7. The Buffer Zone does not contain a slope greater than an average of 15% at its steepest gradient across the 1 00 -foot Buffer Zone. 8. The amount of new impervious surface, in combination with existing impervious surfaces, shall not exceed 40% of the Buffer Zone between 50 and 100 feet. 9. No work is allowed, and no additional NOI or RDA shall be filed, for any work within the 0 -to -50 - foot Buffer Zone during the three-year term of an Order associated with this application. 10. Prior to any work being undertaken pursuant to this Order, the wetland resource boundary shall be flagged; all boundary delineation flagging should be maintained for the term of the Order. 11. If stormwater management structures are proposed in the Buffer Zone, the stormwater management structures shall be maintained as required in the Stormwater Plan. Such maintenance constitutes an ongoing condition and is not sub ect to further permi ing requirements. j tt 12. If this ORAD involves work as part of a Simplified Review, the ORAD shall be recorded at the Registry of Deeds prior to the commencement of work per the requirements of Section F. 13. Prior to proceeding with any work under Simplified Review, applicants are required to provide written notice to the Commission one week prior to commencing any work. 14. If work authorized under Simplified Review is commenced, no work is allowed, and no additional NOI or RDA may be filed, for any work within the 040 -50 -foot buffer zone during the term of an ORAD associated with this application. If work authorized under Simplified Review is not commenced, then future NOIs or RDAs may be filed for work within the 0 -to -50 -foot portion of the buffer zone. --End of Conditions— WPafOrM4b.doc - rev, 01/07 Page 3 of 7 Massachusetts Department of Environmental Protection Bureau of Resource - Protection - Wetlands DEP File Number: WPA ForM Q - Order of Resource Area Delineation 242-1390 Massa chusetts; Wetlands Protection Act M.G.L. c. 131, §40 J�rovided �by DEP S�iMp`lified �Buff�erZ6`ne Rievie�w(cont.) Stormwater Applicability 1 - D The Project is not subject to the Stormwater Policy. 2. 0 The project is subject to the Stormwater Policy and the StOrmwater Plan included for the Project complies with all stormwater standards. Ineligibility Determinations Site Conditions: The applicant is not eligible for Simplified Buffer Zone review and must file a Request for Determination of Applicability or Notice of Intent prior to any work because: 3. 0 Work is within the Buffer Zone of a Coastal Resource Area as defined at 310 CMR 10.25- 10.35. 4. 0 The Buffer Zone contains existing slopes greater than an average of 15%. 5. ED Buffer Zone contains estimated rare wildlife habitat., 2 6. 0 The site borders an Outstanding Resource Water. StOrMwater 7. [1 The Project is subject to the StOrmwater Policy and the applicant has not submitted sufficient information to demonstrate compliance with the StOrmwater Management Policy. Prior to any work, the applicant must submit plans showing compliance with the standards in the Stormwater Policy, the location of the work, the amount of impervious surface, and the location of erosion controls, to the Commission for its concurrence. (See instructions to ANRAD Form 4A.) The following necessary storm applicant: water information was not submitted by the a. The Project is subject to the Stormwater Policy but the Project does not Comply with one or more of the stormwater standards (specify which standard(s) not met). a. Standard # P. -Standard # 9. 13 Impervious surface exceeds 40% of the area Of the Buffer Zone between 50 and 100 feet from the resource area. 10. El The applicant did not submit plans depicting adequate erosion and sedimentation controls located at the limit Of work or at least 50 feet from any resource areas, whichever will be greater. Work is proposed within 50 feet of a resource area. Notice to Commission Any applicant proposing to proceed under Simplified Buffer Zone Review, as specified in 310 CMR 10-02, must Provide written notice to the Commission one week prior to any work. 1 Idendried on the most recent Estimated Habitat Map Of State -listed Rare Wetlands Wildlife of the Natural Heritage and Endangered �Pecies Program. 2 Certified Vernal Pools, public water supplies, orinland ACECs as identified in 314 CMR 4.00. wpafOrm4b.doc - rev, 01/07 Page 4 of 7 wPaform4b.doc - rev. 01/07 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 J�rovided -by DEP D. Findings This Order of Resource Area Delineation determines that the Stormwater Plan, if applicable, and the boundaries of those resource areas noted above, have been delineated and approved by the Commission and are binding as to all decisions rendered pursuant to the Massachusetts Wetlands Protection Act (M.G.L. c.131, § 40) and its regulations (310 CMR 10.00). This Order does not, however, determine the boundaries of any resource area or Buffer Zone to any resource area not specifically noted above, regardless of whether such boundaries are contained on the plans attached to this Order or to the Abbreviated Notice of Resource Area Delineation. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate Compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. If the Abbreviated Notice of Resource Area Delineation was filed as Simplified Review for a Buffer Zone project, the applicant has certified that any work associated with the proposed project meets all eligibility requirements for Simplified Review listed in Section C of this Order. Any work that does not comply with the Simplified Review requirements will require a Notice of Intent or Request for Determination of Applicability. The applicant is responsible for Promptly requesting a Certificate Of Compliance following completion of any work allowed pursuant to a Simplified Review or no later than three year m the date of the Order of Resource Area Delineation unless the Order is extended. s fro Failure to comply with the conditions of this Order is grounds for the Conservation Commission or the Department to take enforcement action. This Order must be signed by a majority of the Conservation Commission. The Order must be sent by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate DEP Regional Office (see 2ggLeg� �y�) - E. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate DEP Regional Office to issue a Superseding Order of Resource Area Delineation. When requested to issue a Superseding Order of Resource Area Delineation, the Department's review is limited to the objections to the resource area delineation(s) stated in the appeal request. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request for Departmental Action Fee Transmittal Form, as provided in 310 CIVIR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order or Determination, or providing written information to the Department prior to issuance of a Superseding Order or Determination. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act, (M.G.L. c. 131, § 40) and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal bylaw or ordinance, and not on the Massachusetts Wetlands Protection Act or regulations, the Department of Environmental Protection has no appellate jurisdiction. Page 5 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA ForM 4B - Order of Resource Area Delineation 242-111 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by S�ignaliures �and �NotairyAc�InOw�le��gemi`nt Please indicate the mber of members who will sign this form: .-fl - Number of Signers Sign t C 2 Sign —Ct Cons ation Co mission Member Sign ure Conservation Commiss—ion Me�mber -C� ig ture Co s a mmission Member i n e �of Si nature of Con rvation Commission Member - 0 s t Si nat e of Cons Ommission Member I ure 0 onservation Commission Mem�ber Signature of Conservation Commission Member This Order is valid for three years from the date of issuance. This Order is issued to the applicant and the property owner (if different) as follows: dby hand delivery on by certified mail, return receipt requested on te UdEe Notary Acknowledgement Commonwealth of Massachusetts County of Essex North On this Day I fh of Before me, the undersigned Notary Public, Monnth�- Year personally appeared H .0 5� 57 P-- NdIrle or Document signer proved to me through satisfactory evidence of i I dentification, which was/were Massachusetts License Descrip to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose. As member of North Andover Cityi I own Conservation Commission DdFjWWEDGE .CHUS2 NUIMPAUC commoWMINOFINUMCHLISIMS My =7CWM Expka AW. 7, 2M] Place notary seal and/or any stamp above wpaform4b.doc - rev. 01/07 kion-ature?o� =tary iih 4C6��Je j��6 2.224 Printed h n - - - . ublic my commiAionf-xP'res (Date) Page 6 of 7 LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA ForM Q — order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP G. Recording If this order is issued for Purposes of Resource Area Delineation only, this Order should NOT be recorded. If this Order of Resource Area Delineation is issued as part of a Simplified Review, this Order must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case Of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on Page 6 of this form shall be submitted to the Conservation Commission listed below. North Andover Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. To: North Andover Conservation commission Please be advised that the Order of Conditions for the Project at: Proiect 242-1390 UEP �FiIeNumber Has been recorded at the Registry of Deeds of: County for: Book Page and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Nurr�b—er If registered land, the document number identifying this transaction is: Docurneat-Number Signat - ure of Applicant wPaformft.doc - rev. 01/07 Page 7 of 7 wpaform4b.doc Ylp —Code QtYffown -§t'ate -iip �code 2. Applicant (as shown on Notice of Intent (Form 3), Abbreviated Notice of Resource Area Delineation (Form 4A); or Request for Determination of Applicability (Form 1)): Name Mailing Ad --dress Zilt—Y �own �� -P-hone �Number 3. DEP File Number: B. Instructions 1 - When the Departmental action request is for (check one): El Superseding Order of Conditions El Superseding Determination of Applicability El Superseding Order of Resource Area Delineation State Fax Numbw (if -applicable) Ylp -Code Send this form and check or money order for $1 00.00 (single family house projects) or $200 (all other projects), payable to the Commonwealth of Massachusetts to: Department of Environmental Protection Box 4062 Boston, MA 02211 Page 1 of 2 Department of Environmental Protection Bureau of Resource Protection L7Massachusetts - Wetlands Request for Departmental Action Fee Transmittal Form Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. Reque—st I—nf-0r—M—at10—n-------------_ important: Whenfillingout forms on the I. Person or Party making request (if appropriate, name the citizen group's representative): computer, use only the tab key to move Your cursor - do not use the return key. Tia—ie---� VQ -�ax &A Number �(ifapplicable) Project Location wpaform4b.doc Ylp —Code QtYffown -§t'ate -iip �code 2. Applicant (as shown on Notice of Intent (Form 3), Abbreviated Notice of Resource Area Delineation (Form 4A); or Request for Determination of Applicability (Form 1)): Name Mailing Ad --dress Zilt—Y �own �� -P-hone �Number 3. DEP File Number: B. Instructions 1 - When the Departmental action request is for (check one): El Superseding Order of Conditions El Superseding Determination of Applicability El Superseding Order of Resource Area Delineation State Fax Numbw (if -applicable) Ylp -Code Send this form and check or money order for $1 00.00 (single family house projects) or $200 (all other projects), payable to the Commonwealth of Massachusetts to: Department of Environmental Protection Box 4062 Boston, MA 02211 Page 1 of 2 wWorm4b.doc Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands Request for Departmental Action Fee Transmittal Form Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Instructions (cont.) 2. On a separate sheet attached to this form, state clearly and concisely the objections to the Determination or Order which is being appealed. To the extent that the Determination or Order is based on a municipal bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. 3. Send a copy of this form and a cOpy of the check or money order with the Request for a Superse . ding Determination or Order by certified mail or hand delivery to the appropriate DEP Regional Office (see hftr)://www-m;;c _Q 4. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Page 2 of 2 LlMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form Q — Order of Resource Area Delineation 242-1190 Massachusetts Wetlands Protection Act M.G.L. c, 131, §40 Provided by DEP Important: When filling out forms on the computer, use only the tab key to move your cursor - do not use the return key. Note: Before completing this form consult your local Conservation Commission regarding any municipal bylaw or ordinance. A. General Information From: North Andover 1 . Conservation Commission 2. This Issuance is for (check one): a. 0 Order of Resource Area Deli I neation Only b. n Order of Resource Area Delineation Subject to Simplified Review I. [I Not Subject to Stormwater Policy 2. 0 Subject to Stormwater Policy c. El Amended Order of Resource Area Delineation 3. To: Applicant William a. First Name 210 Holt Road d. Mailing Address North Andover Thomson b Last Name e. City/Town 4. Property Owner (if different from applicant): a. First Name b Last Name 210 Holt Road d. Mailing Address North Andover City/Town 5. Project Location: 210 Holt Road a. Street Address Map 77, Map 34 c. Assessors Map/Plat Nu-mber Latitude and Longitude (note: electronic filers will click for GIS locator): 6 Dates: 3/2/07 5/9/07 TBI Inc c. Company MA. f. State Holt Road, LLC c. Company MA. f. State North Andover 01845 g. Zip Code 01845 g. Zip Code b. Cityrrown Parcel 14, Parcels 27, 38 & 40 d. Parcel/Lot Number 71-07'-10" 42-43'-25" e. Latitude f. Longitude 5/14/07 a. Date Notice of Intent filed b. Date Public Hearing -Closed c. Date of -Issuance 7. Title and Date (or Revised Date if applicable) of Final Plans and Other Documents: Existing Conditions Plan to Accompany Abbreviated Notice of Resource February 2007, Area Delineatio - (ANRAD) Revised April 4, 2007 see attached c. i itie d. Date 10 MAY 141007 BOARD OF APPEALS Page 1 of 7 Massachusetts Department of Environmental Protection Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1190 B. Order of Deline-ation 1. The Conservation Commission has determined the following (check whichever is applicable): a. 0 Accurate: The boundaries described on the referenced plan(s) above and in the Abbreviated Notice of Resource Area Delineation are accurately drawn for the following resource area(s): I - 0 Bordering Vegetated Wetlands ("v 2. 21 Other Resource Area(s), specifically: '5 b. D Modified: The boundaries described on the plan(s) referenced above, as modified by the Conservation Commission from the plans contained in the Abbreviated Notice of Resource Area Delineation, are accurately drawn from the following resource area(s): 1. Ej Bordering Vegetated Wetlands 2. El Other Resource Area(s), specifically: c. 0 inaccurate: The boundaries described on the referenced plan(s) and in the Abbreviated Notice of Resource Area Delineation were found to be inaccurate and cannot be confirmed for the following resource area(s): 1 - El Bordering Vegetated Wetlands 2. El Other Resource Area(s), specifically: 3. The boundaries were determined to be inaccurate because: wpaform4b.doc - rev. 01/07 Page 2 of 7 Order of Resource Area Delineation 210 Holt Road - Map 34 - Lots 27,38, and 40 and Map 77 Lot 14 (Lots 1, 2, 3, and 4 as shown on the approved plan) DEP File # 242-1390 Facts & Findings: jurisdictional wetland resource areas within the subject parcels include a very limited area of the 200 - foot Riverfront area boundary associated with Creek Brook to the north east of Lot An off property Bordering Vegetated Wetland (BVW) was delineated and confirmed on the adjacent Lawrence Airport property and Holt Road Excavators property to the south/ south east of Lot 1. This resource area was reviewed and approved with exception to wetland flags 159 through 161 upon written permission from the property owners, respectively. The associated 25' No -Disturbance Zone, 50' No -Construction Zone, and 100' buffer zones were not depicted on the approved plans, therefore not approved under this filing. The NACC formally approved the aforementioned jurisdictional resource area boundaries at their meeting of May 9, 2007. It is important to note that there were questions raised by both the Conservation Administrator and the North Andover Conservation Commission (NACC) during the public hearings as to whether a jurisdictional resource area had once existed to the rear of Lot 1. These questions were raised appropriately from evidence found on aerial photographs and from a memorandum written by the former Conservation Administrator, Julie Parrino, in April of 2003. As a result, the NACC retained Seekamp Environmental Consulting, Inc. to determine if the area in question was or was at one time a jurisdictional resource area under either the Massachusetts Wetlands Protection Act or North Andover Wetlands Protection Bylaw. Upon investigative studies and a subsequent field review, Seekamp Environmental found that the area in question was not, nor did it previously qualify as, a jurisdictional wetland under either the state Act or the local bylaw. A full report documenting this analysis and subsequent findings in this regard was submitted by Seekamp Environmental and is referenced herein. Record Documents: Abbreviated Notice of Resource Area Delineation, dated March 1, 2007; Plan entitled "Existing Conditions Plan to Accompany Abbreviated notice of Resource Area Delineation (ANRAD)". Brown and Caldwell, dated February 28, 2007, last revised April 4, 2007. Stamped and signed by Phillip N. Jagota, P.E.; Permission of Abutting Property Owner Affidavit from Michael Miller, Airport Manager, Lawrence City Airport, dated March 2007; Permission of Abutting Property Owner Affidavit from Joseph Cristaldi, President, Holt Road Excavators, LLC, dated March 2007; Letter from Patrick D. Seekamp, PWS/CWS, Seekamp Environmental Consulting, Inc., Dated May 8,2007. Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP C. Simplified Buffer Zone Review Work within the Buffer Zone pursuant to the Simplified Review (310 CIVIR 10.02) requires that you must comply with the following conditions. If your project does not meet these requirements, you are required to either file a Determination of Applicability or Notice of Intent or take other corrective measures as directed by the Conservation Commission. Simplified Review Conditions: Work conducted under Simplified Review requires the following: No work of any kind shall occur within any wetland resource areas including Riverfront Area and Bordering Land Subject to Flooding. 2. The inner 0 -to -50 -foot wide area from the delineated wetland boundary that has a Buffer Zone shall not be disturbed by any work associated with this project, including placement of any stormwater management components. 3. No work shall occur in the Buffer Zone bordering an Outstanding Resource Water (e.g., certified vernal pool, public water supply reservoir or tributary), as defined in 314 CIVIR 4.00 or border coastal resource areas at 310 CIVIR 10.25-10.35. 4. No work shall occur in the Buffer Zone adjacent to wetland resources with estimated wildlife habitat (which is identified on the most recent Estimated Habitat Map of State -listed Rare Wetlands Wildlife). 5. Erosion and Sedimentation controls shall be installed and maintained at the .50 -foot Buffer Zone line or limit of work (whichever is a greater distance from the resource area) to protect resource areas during construction. 6. If the project is subject to the Massachusetts Stormwater Policy, all work shall be conducted in conformance with an approved Stormwater Management Plan. 7. The Buffer Zone does not contain a slope greater than an average of 15% at its steepest gradient across the 1 00 -foot Buffer Zone. 8. The amount of new impervious surface, in combination with existing impervious surfaces, shall not exceed 40% of the Buffer Zone between 50 and 100 feet. 9. No work is allowed, and no additional NOI or RDA shall be filed, for any work within the 0 -to -50 - foot Buffer Zone during the three-year term of an Order associated with this application. 10. Prior to any work being undertaken pursuant to this Order the wetland resource bounda sha I be flagged; all boundary delineation flagging should be m , ry I aintained for the term of the Order. 11. If stormwater management structures are proposed in the Buffer Zone, the stormwater management structures shall be maintained as required in the Stormwater Plan. Such maintenance constitutes an ongoing condition and is not subject to further permitting requirements. 12. If this ORAD involves work as part of a Simplified Review, the ORAD shall be recorded at the Registry of Deeds prior to the commencement of work per the requirements of Section F. 13.. Prior to proceeding with any work under Simplified Review, applicants are required to provide . Written notice to the Commission one week prior to commencing any work. 14. If work authorized under Simplified Review is commenced, no work is allowed, and no additional NOI or RDA may be filed, for any work within the 0 -to -50 -foot buffer zone during the term of an ORAD associated with this application. If work authorized under Simplified Review is not commenced, then future NOls or RDAs may be filed for work within the 0 -to -50 -foot portion of thi —buffer zone. --End of Conditions— wPafOrm4b.doc - rev. 01/07 Page 3 of 7 ILIMassachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands WPA Form 4B — Order of Resource Area Delineation 242-1390 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP C. Simplified Buffer Zone Review (cont.) Stormwater Applicability El The project is not subject to the Stormwater Policy. 2. [1 The project is subject to the Stormwater Policy and the Stormwater Plan included for the project complies with all stormwater standards. Ineligibility Determinations Site Conditions: The applicant is not eligible for Simplified Buffer Zone review and must file a Request for Determination of Applicability or Notice of Intent prior to any work because: 3. El Work is within the Buffer Zone of a Coastal Resource Area as defined at 310 CMR 10.25- 10.35. 4. El The Buffer Zone contains existing slopes greater than an average of 15%. 5. El Buffer Zone contains estimated rare wildlife habitat.' 2 6. R The site borders an Outstanding Resource Water. Stormwater 7. [] The project is subject to the Stormwater Policy and the applicant has not submitted sufficient information to demonstrate compliance with the Stormwater Management Policy. Prior to any work, the applicant must submit plans showing compliance with the standards in the Stormwater Policy, the location of the work, the amount of impervious surface, and the location of erosion controls, to the Commission for its concurrence. (See instructions to ANRAD Form 4A.) The following necessary stormwater information was not submitted by the applicant: a. 8. F-1 The project is subject to the Stormwater Policy but the project does not comply with one or more of the stormwater standards (specify which standard(s) not met). a. Standard # b. Standard # 9. El Impervious surface exceeds 40% of the area of the Buffer Zone between 50 and 100 feet from the resource area. 10. The applicant did not submit plans depicting adequate erosion and sedimentation controls located at the limit of work or at least 50 feet from any resource areas, whichever will be greater. 11. Work is proposed within 50 feet of a resource area. Notice to Commission Any applicant proposing to proceed under Simplified Buffer Zone Review, as specified in 310 CMR 10.02, must provide written notice to the Commission one week prior to any work. 1 Identified on the most recent Estimated Habitat Map of State -listed Rare Wetlands Wildlife of the Natural Hentage and Endangered �pecies Program. 2 Certified Vernal Pools, public water supplies, orinland ACECs as identified in 314 CMR 4.00. wpaform4b.doc - rev. 01/07 Page 4 of 7 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1190 — Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP D. Findings This Order of Resource Area Delineation determines that the Stormwater Plan, if applicable, and the boundaries of those resource areas noted above, have been delineated and approved by the Commission and are binding as to all decisions rendered pursuant to the Massachusetts Wetlands Protection Act (M.G.L. c.131, § 40) and its regulations (310 CIVIR 10.00). This Order does not, however, determine the boundaries of any resource area or Buffer Zone to any resource area not specifically noted above, regardless of whether such boundaries are contained on the plans attached to this Order or to the Abbreviated Notice of Resource Area Delineation. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. If the Abbreviated Notice of Resource Area Delineation was filed as Simplified Review for a Buffer Zone project, the applicant has certified that any work associated with the proposed project meets all eligibility requirements for Simplified Review listed in Section C of this Order. Any work that does not comply with the Simplified Review requirements will require a Notice of Intent or Request for Determination of Applicability. The applicant is responsible for promptly'requesting a Certificate of Compliance following completion of any work allowed pursuant to a Simplified Review or no later than three years from the date of the Order of Resource Area Delineation unless the Order is extended. Failure to comply with the conditions of this Order is grounds for the Conservation Commission or the Department to take enforcement action. This Order must be signed by a majority of the Conservation Commission. The Order must be sent by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate DEP Regional Office (see http://www.mass.gov/dep/about/region/findvour.htm). E. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate DEP Regional Office to issue a Superseding Order of Resource Area Delineation. When requested to issue a Superseding Order of Resource Area Delineation, the Department's review is limited to the objections to the resource area delineation(s) stated in the appeal request. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request for Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order or Determination, or providing written information to the Department prior to issuance of a Superseding Order or Determination. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act, (M.G.L. c. 131, § 40) and is inconsistent with the wetlands regulations (310 CIVIR 10.00). To the extent that the Order is based on a municipal bylaw or ordinance, and not on the Massachusetts Wetlands Protection Act or regulations, the Department of Environmental Protection has no appellate jurisdiction. wpaform4b. doc - rev. 01107 Page 5 of 7 LI Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4B — Order of Resource Area Delineation 242-1190 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided byb—EP F. Signatures and Notary Acknowledgement Please indicate t>�mber of members who will sign this form: rorn, ,/'l. Number of Signers CL W' -I Sign t r Cons ation Co 'Ission Member Sign ure Conservation Commission Member . AL/' rt"' P —Y '.. , ,, Member ission Member Signature of Conservation —Commission Member Signature of Con rvation Commission Member re of -Conservation Comm ission —Member This Order is valid for three years from the date of issuance. This Order is issued to the applicant and the property owner (if different) as follows- &�by hand delivery on Date Notary Acknowledgement Commonwealth of Massachusetts County of On this Day of Before me, the undersigned Notary Public, personally appeared 0 by certified mail, return receipt requested on Date Essex North HO -V - - �IOD2 Month/ Year Name of Document Signer proved to me through satisfactory evidence of identification, which was/were Massachusetts License b—es—cri—ption of �evidenceof identification to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose. As member of North Andover Cityf'rown D I 6FAVWME CoumoWVjk*6FW3UCHUSETTS My Comn Exom Aug. 7, 20M PI ace notary seal and/or any stamp above Conservation Commission 4�nat)ure =Nota��tc�� Printed Name of Notary Public �-- 17 / QPeO �? My Commis(siontxpires (Date) wpaform4b.doc - rev. 01/07 Page 6 of 7 ILI,Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP WPA Form 4B — Order of Resource Area Delineation 242-1390 U. Recording Information If this Order is issued for purposes of Resource Area Delineation only, this Order should NOT be recorded. If this Order of Resource Area Delineation is issued as part of a Simplified Review, this Order must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on Page 6 of this form shall be submitted to the Conservation Commission listed below. North Andover Conse vation Commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. --------------------------------------------------------------------------------------------------------------------------- To: North Andover Conservation Commission Please be advised that the Order of Conditions for the Project at: 242-1390 Project Location DEP File Number Has been recorded at the Registry of Deeds of: County Book Page fo r: Property Owner and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Number If registered land, the document number identifying this transaction is: Document Number Signature of Applicant wpaform4b.doc - rev. 01/07 Page 7 of 7 Important: When filling out forms on the computer, use only the tab key to move your cursor - do not use the return key. Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands Request for Departmental Action Fee Transmittal Form Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. Request Inf-ormation 1 . Person or party making request (if appropriate, name the citizen group's representative): Mailing Address City/Town Phone Number Project Location Mailing Address State -2hp Code Fax Number (if applicable) L,iiy/ i own -9-tate ihp Code 2. Applicant (as shown on Notice of Intent (Form 3), Abbreviated Notice of Resource Area Delineation (Form 4A); or Request for Determination of Applicability (Form 1)): --mbp -UUJ0Zb City/Town Phone Number 3. DEP File Number: B. Instructions 1. When the Departmental action request is for (check one): 0 Superseding Order of Conditions El Superseding Determination of Applicability El Superseding Order of Resource Area Delineation State Zip Cod-e Fax Number (if applicable) Send this form and check or money order for $100.00 (single family house projects) or $200 (all other projects), payable to the Commonwealth of Massachusetts to: Department of Environmental Protection Box 4062 Boston, MA 02211 wpaform4b.doc Page 1 of 2 IL71r Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands Request for Departmental Action Fee Transmittal Form Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Instructions (cont.) 2. On a separate sheet attached to this form, state clearly and concisely the objections to the Determination or Order which is being appealed. To the extent that the Determination or Order is based on a municipal bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. 3. Send a copy of this form and a copy of the check or money order with the Request for a Superseding Determination or Order by certified mail or hand delivery to the appropriate DEP Regional Office (see http://www.mass,gov/dep/about/region/findvour.htm). 4. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. wPaform4b.doc Page 2 of 2 Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 146 Main Street North Andover, Massachusetts 0 1845 WILLL4,M J. SCOTT Director August 18, 1998 Merrimac Truck & Equipment 210 Holt Road North Andover, MA 01845 RE: Rain Events To Whom It May Concern: On August 12, 1998, this department conducted a site inspection at the Holt Road Landfill property during a rain event. While on site, it was observed that a channel had formed on the above referenced property causing material to wash down Holt Road entering a catch basin into a culvert that discharges into Creek Brook. This problem occurs during extreme rain storms and warrants some attention and mitigation. Please contact this department to schedule an on site inspection to prevent this from happening in the near future. The Conservation Department may be reached at (978)688-9530. Thanking you in advance for your anticipated cooperation. S' ely" Richelle Martin Conservation Associate Cc: Eric Fahle-DEP DEP-Nero NACC members File BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVAT10N 688-9530 HEALTH 688-9540 PLANNING 688-9535 t J LI(Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Important: When filling out forms on the computer, use only the tab key to move your cursor � do not use the return key. A. General Information From: North Andover 1. Conservation Commission 2. This issuance is for (check one): Order of Conditions 3. To: Applicant: William a. First Name 210 Holt Raod d. Mailing Address North Andover Thomson TBI Inc. b. Last Name c. Company e. City/Town 4. Property Owner (if different from applicant): a. First Name 210 Holt Road b. Last Name MA f. State DEP File Number: 242-1404 F-1 Amended Order of Conditions Holt Road, LLC c. Company 01845 g. Zip Code Cl. Mailing Address North Andover MA 01845 e. Cityrrown f. State g. Zip Code 5. Project Location: 210 Holt Road North Andover a. Street Address b. Cityrrown Map 34, 77 Lots 27, 38, 40,14 c. Assessors Map/Plat Number d. Parcel/Lot Number Latitude and Longitude, if known (note: 71 deg -07'1 0" 42deg-43'25" electronic filers will click for GIS locator): e. Latitude f. Longitude 6. Property recorded at the, Registry of Deeds for (attach additional information if more than one parcel): Essex North a. County b. Certificate (if registered land) 9889,10373 298,301,332 c. Book d. ag 7. Dates: 7/12/07 , Q_(. n? JC7 a. Date Notice of Intent Filed b. Date Flublic Ylearihg Closed lssAance7 8. Final Approved Plans and Other Documents (attach additional plan or document references as needed): PLans to Accompany Notice of Intent a. Plan Title Brown and Caldwell Phillip N. Jagoda, P. E. b. Pr pared, By c. Signed and Stamped by V/7 07 1.1 = 40' d. Final Vev�ision Date e. Scale f. Additional Plan or Document Title g. Date. 9. Total WPA F . ee Paid- $1,250.00 $237.50 a. Total FeePaid b. State Fee Paid c. City/Town Fee Paid wpaform5.doc - rev. 3/1105 Page 1 of 9 I r LI(Massachusetts Department of Environmental Protection Bureau of Resource Protection, Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Findings 1. Findings pursuant to the Massachusetts Wetlands Protection Act: DEP File Number: 242-1404 Following the review of the above -referenced Notice of Intent and based on the information provided in this application and presented at the public hearing, this Commission finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply: a. Z Public Water Supply b. [] Land Containing Shellfish c. Prevention of Pollution d. Private Water Supply e. n Fisheries Protection of Wildlife Habitat g. Groundwater Supply h. N Storm Damage Prevention i. Flood Control 2. This Commission hereby finds the project, as proposed, is: (check one of the following boxes) Approved subject to: Z the following conditions which are necessary in accordance with the performance standards set forth in the wetlands regulations. This Commission orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. Denied because: El the proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect these interests, and a final Order of Conditions is issued. A description of the performance standards which the proposed work cannot meet is attached to this Order. El the information submitted by the applicant is not sufficient to describe the site, the work, orthe effect of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the Act's interests, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMRA 0.05(6)(c). Inland Resource Area Impacts: Check all that apply below. (For Approvals Only) El Buffer Zone Impacts: Shortest distance between limit of project disturbance and wetland boundary (if available) I inear feet Resource Area Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 3. F-1 Bank a. linear�e_et b. linear feet c. linear feet— d. linear feet 4. Bordering Vegetated Wetland a. square feet b. square feet c. square feet d. square feet 5. Land Under a. square feet b. square feet c. square feet Waterbodies and d. square feet I Waterways e. cu.yd �_redged f. cu.yd dredged wpaform5.doc - rev. 311/05 . Page 2 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 DEP File Number: 242-1404 B. Findings (cont.) 0 Barrier Beaches 12. Resource Area Proposed Permitted Proposed Coastal Dunes Alteration Alteration Replacement 6. [-] Bordering Land Rocky Intertidal Subject to Flooding a. square feet b. square feet c. square feet Cubic Feet Flood i F-1 Land Under Salt Storage e. cubic feet f. cubic feet g. cubic feet 7. 0 Isolated Land Subject to Flooding a. square feet b. square feet Cubic Feet Flood Storage c. cubic feet d. cubic feet e. cubic feet 8. El Riverfront area - a. tot 31 sq. feet b. total sq. feet Sq ft within 100 ft c. square feet d. square feet e. square feet Sq ft between 100-200 ft e. square feet f. square feet e. square feet Coastal Resource Area Impacts: Check all that apply below. (For Approvals Only) 9. El Designated Port I Areas Indicate size under La nd Under the Ocean, below 1 o. EJ Land Under the Ocean a. square feet b. square feet 11. 0 Barrier Beaches 12. El Coastal Beaches 13. F-1 Coastal Dunes 14. F-1 Coastal Banks 15. Rocky Intertidal Shores 16. Salt Marshes 17. F-1 Land Under Salt Ponds 18. F� Land Containing Shellfish 19. El Fish Runs Permitted Replacement d. square feet h. cubic feet f. cubic feet f. square feet Indicate size under Coastal Beaches and/or Coastal Dunes below a. square feet b. square feet c. c/y nourishrnt. d. c/y nourishrnt. a. square feet b. square feet c. c/y nourishrnt. d. c/y nourishrnt a. linear feet b. linear feet a. square feet b. square feet a. square feet b. square feet a. square feet b. square feet c. cu.yd dredged d. cu.yd dredged Indicate size under Coastal Banks, inland Bank, Land Under the Ocean, and/or inland Land Under Waterbodies and Waterways, above a. cu.yd dredged b. cu.yd dredged 20. F-1 Land Subject to. Coastal Storm Flowage a. square feet b. square feet wpafo�m5.doc - rev. 3/1/05 Page 3 of 9 L11Massachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 C. General Conditions Under Massachusetts Wetlands Protection Act (only applicable to approved projects) 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: a. the work is a maintenance dredging project as provided for in the Act; or b. the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance. If this Order is intended to be valid for more than three years, the extension date and the special circumstances warranting the extended time period are set forth as a special condition in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing. 7. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. 8. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of the registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is done. The recording information shall be submitted to this Conservation Commission on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior to the commencement of work. 9. A sign shall be displayed at the site not less then two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection" [or, WA DEP"] "File Number 242-1404 wpeform5.doc - rev. 311/05. Page 4 of 9 If you need more space for additional conditions, select box to attach a text document F� Massachusetts Department of Environmental Protection DEP File Number: Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions 242-1404 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 C. General Conditions Under Massachusetts Wetlands Protection Act 10. Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before DEP. 11. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A) to the Conservation Commission. 12. The work shall conform to the plans and special conditions referenced in this order. 13. Any change to the plans identified in � Condition #12 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent. 14. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. 15. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to'any contractor or other person performing work conditioned by this Order. 16. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Conservation Commission. 17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. 18. All work associated with this Order is required to comply with the Massachusetts Stormwater Policy Standards. Special Conditions: . See attached wpaform5.doc - rev, 3/1/05 Page 5 of 9 Ll'Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 If you need more space for additional conditions, select box to attach a text document E DEP File Number: 242-1404 D. Findings Under Municipal Wetlands Bylaw or Ordinance 1. Is a municipal wetlands bylaw or ordinance applicable? Z Yes El No 2. The North Andover hereby finds (check one that applies): Conservation Commission 3. El that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw specifically: a. Municipal Ordinance or Bylaw b. Citation Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order of Conditions is issued. 4. Z that the following additional conditions are necessaryto comply with a municipal ordinance or bylaw: North Andover Wetland Protection Bylaw Chapter 178 a. Municipal Ordinance or Bylaw b. Citation The Commission orders that all work shall be performed in accordance with the following conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, the conditions shall control. c. The special conditions relating to municipal ordinance or bylaw are as follows: See attached wpaform5.doc - rev, 3/1/05 Page 6 of 9 DEP FILE,# 242 - 1404 Therefore, the North Andover Conservation Commission (hereafter the "NACC") hereby finds that the following conditions are necessary, in accordance with the Performance Standards set forth in the State Regulations, the local Bylaw and Regulations, to protect those interests noted above. The NACC orders that all work shall be performed in accordance with said conditions and with the Notice of Intent referenced below. To the extent that the following conditions modffy or differ from the plans, specifications or other Rroposals submitted with the Notice of Intent, the conditions shall control. GENERAL CONDITIONS 18. Failure to comply with all conditions stated herein, and with all related statutes and other �regulatory measures, shall be deemed cause to revoke ormodify this Order. 19. This Order does not -grant any property rights or any exclusive privileges; it does not authorize any mjury to private property or invasion of property rights. However, the NACC, agent of the NACC or the Department of Environmental Protection (DEP) reserves the right to enter and inspect the property at all reasonable times until a Certificate of Compliance is issued, to evaluate compliance with this Order of Conditions, the Act (310 CMR 10.00), the North Andover Wetland Bylaw and Regulations, and may require any, information, measurements, photographs, observations, and/or materials, or may require the submittal of any data or information deemed necessary by the NACC for that evaluation. Further, work shall be halted on the site if the NACC, agent or DEP determines that any of the work is not in compliance with this Order of Conditions. Work shall not resume until the NACC is satisfied that.the work will comply and has so notified the applicant in writing. 20. This Order does not relieve. the permittee or any other person of the necessity of complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. 21. The work authorized hereunder shall be completed within three years from the date of this order. 22. This Order may be extended by the issuing authority for one or more periods of up to one year each upon application to the issuing a*uthority at least thirty days (30) prior to the expiration date of the Order (Refer to Section 8.3 (p.37) of the North Andover Wetland Regulations). 23. The NACC reserves the right to amend this Order of Conditions after alegally advertised public hearing if plans or circumstances are changed or if new conditions or information so warrant. 24. Where the Department of Environmental Protection (DEP) is requested to make a determination and to. issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. C:\Winword\OOC\21 ffloltRd.doc NACC 10/17/2007 DEP FILE # 242 - 1404 25. This Order of Conditions is issued under File No. 242-1404. 26. The conditions of this decision shall apply to, and be binding upon, the applicant, owner, its employees and all successors and assigns in interest or control. These obligations shall be expressed in covenants in all deeds to succeeding owners of portions of the property. 27. The term "Applicant" as used in this Order of Conditions shall refer to the owner, any successor in interest or successor in control of the property referenced in the Notice of Intent, supporting documents and this Order of Conditions. The NACC shall be notified in writing within 30 days of all transfers of title of any portion of property that takes place prior to the issuance of a Certificate of Compliance. 28. The proposed work includes: The construction of paved parking areas, stormwater management structures, and associated grading activities associated with a proposed transfer station and recycling facility within the buffer zone to an offsite Bordering Vegetated Wetland (BVW) resource area and within a small portion of Riverfront Area (less than 25 s.f.).to Creek Brook. The 30,000 s.f. Facility is located outside of the buffer zone and outside of the Riverfront Resource Area. 29. The work shall conform to the following (except as noted in the remainder of this document where revisions may be required): Notice of Intent filed by: Prepared by: Site Plans prepared by: TBI, Inc. (Applicant) C/o William Thomson 210 Holt Road North Andover, MA 01845 Dated July 11, 2007, Revised August 24, 2007 (Attachment D) Holt Road, LLC (Owner) 210 Holt Road North An dover, MA 01845 Brown and Caldwell (Representative) 48 Leona Drive, Suite C Middleborough, MA 02346, Brown and Caldwell Entitled "'Plans to Accompany Notice of Intent" dated July 2007, revised 8/24/07, with additional revisions through 9/17/07, consisting of sheets 1-7. Stamped & Signed by Phillip N. Jagoda, P.E. Sheet 1 - "Existing Conditions", last revised 8/24/07; Sheet 2 - "'Proposed Grading", last revised 9/17/07, Sheet 3 - "Proposed Stormwater Management System" last revised 9/17/07; CAWinword\00C\21 ffloltRd.doc NACC 10/17/2007 DEP FILE # 242 - 1404 Sheet 4 - "Detail Sheet I", last revised 8/24/07; Sheet 5 - "Detail Sheet II", last revised 8/24/07; Sheet 6 - "Detail Sheet III", last revised 8/24/07; Sheet 7 - "Detail Sheet IV", last revised 9/17/07. Other Record Documents: Drainage Calculations & Stormwater Analysis ("'Drainage Basin Study - Stormwater. DetentionAnfiltration System Analysis") - Appendix A dated 7/6/07, revised calculation and supporting documents included in revised Notice of Intent application dated August 24,2007 Operation and Maintenance Plan (Section 6.0 of Notice of Intent) revised August 24,2007, Drainage Review Letter prepared by Eggleston Environmental dated July 31, 2007, Drainage Review Response Letter prepared by Brown and Caldwell dated August 27,2007, . . Drainage Review Letter prepared by Eggleston Environmental dated September 7,2007; Drainage Review Response Letter prepared by Brown and Caldwell dated September 17,2007; Drainage Review Letter prepared by Eggleston Environmental dated September 24,2007, Proposed Infiltration System Soil Test Pit Data Letter dated September 7,2007 and associated Data Form (no date) and Plan (dated 9/7/07). Other documents not submitted as part of this Notice of Intent filing shall be incorporated herein as record reference documents, which shall include, but may not be limited to, the follo wing: "Application for Large Handling Facility - Authorization To Construct - BWP SW 05 - Recycling Facility and Solid Waste Transfer Station North Andover, Massachusetts", prepared by Brown and Caldwell dated August 2007, received by the Town of North Andover Health Department on August 7,2007. 30. The following wetland resource areas are affected by the proposed work: Buffer Zone to a Bordering Vegetated Wetland (BVW) and a small portion of Riverfront Area (RA). These resource areas are significant to the interests of the Act and Town ByLaw as noted. above and therein. The applicant has not attempted to overcome the presumption of significance of these resource areas to the identified interests. CAWinword\00C\210HoltRd.doc 3 NACC 10/17/2007 DEP FILE # 242 - 1404 31. The NACC agrees with the applicant's delineation of the wetland resource areas as previously approved under 242-1390 (ORAD). 32. The NACC finds that the intensive use of the upland areas and buffer zone proposed on this site will cause further alteration of the wetland resource areas. In order to prevent any alteration of wetland resource areas a twenty-five foot (25') No -Disturbance Zone and a fifty -foot (50') No -Construction Zone shall be established from the edge of the adjacent wetland resource area. The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local bylaw. No disturbance of existing grade, soils or vegetation is permitted in the No - Disturbance zone. (See Section 3.4 & Appendix F of the local Regulations). 33. This document shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors, and other personnel performing the permitting work are fully aware of the permits terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order resulting from failure to comply with its conditions. 34. The owners of the project and their successors in title, in the event they proceed to alter - areas subject to the Commission's jurisdiction under the order, agree that the Order does not in itself impose. upon the Town any responsibility to maintain the proposed drainage system and that said Town shall not be liable for any damage in the event of failure. By acceptance of this Order, the owners agree to indemnify and hold harmless to the Town and its residents for any damage attributable to alterations undertaken on this property pursuant to the Order. Maintenance of the drainage system, if accepted by the Town,as part of a public way, becomes the responsibility of the Town. 35. Issuance of these Conditions does not in any way imply or certify that the site or downstream areas will not be subject to flooding, storm damage or any other form of water damage. IPRIOR TO CONSTRUCTION 36. No work shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department or Court have been completed. 37. This Order shall be recorded by the applicant at the Registry of Deeds immediately after the expiration of all appeal periods. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the La nd Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of C:\Winword\OOC\21 OHoItRd.doc 4 NACC 10/17/2007 DEP FILE # 242 - 1404 registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon wl-dch the proposed work is to be done. The recording information shall be submitted to the North Andover Conservation Commission on the form at the end of this Order prior to commencement of the work. Any Order not recorded by the applicant before work commences may be recorded by the NACC at the applicant's expense. 38.. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words "Massachusetts DEP, File Number 242-1404. " 39. Prior to the commencement of any work, the applicant shall submit to the Conservation Department a copy of the approved NPDES Storm Water Pollution Prevention Plan (SVVTPP`) for the file. 40. Due to the potential for pollution and the nature of the facility, the applicant shall implement any and all BMPs required by any federal, state, and/or local agency in accordance with any and all records and documents referenced herein. Further, one monitoring well shall.be installed downgradient to the'site just beyond the location of the proposed concrete headwall within the location of the proposed rip -rap apron to the east of the project site prior to construction. Water quality testing for MA DEP VPH/EPH (volatile & extractable petroleum hydrocarbons)/VOC's (volatile organic hydrocarbons), in addition to any/all substances specifically required in any permits issued by a federal, state, or local agency. The aforementioned water quality testing shall be conducted by a certified analytical laboratory (duly licensed by the Commonwealth of Massachusetts) prior to any site development activities and shall also occur after I year in which the facility is in operation and once per year thereafter. The Water quality data and associated analysis/reports, shall be submitted to the NACC immediately upon collection and analysis for review. Should the NACC -find that water quality has been compromised, whereas exceeding initial pollutant levels/standards, the NACC reserves the right to take appropriate action for compliance to said water quality standards, at the applicant's expense. 417 Any changes in the submitted plans caused by the applicant, state or federal agency, such as the Massachusetts Depa rtment of Environmental Protection, another Board's decision or resulting from this Order of Conditions must be submitted to the NACC for approval prior to implementation. Said revisions shall be submitted as part of the record filing even if located outside of the buffer zone and therefore outside of the NACC's jurisdiction. If the NACC finds said changes to be significant, the NACC will call for another public hearing (at the expense of the applicant). Within 21 days of the close of said public hearing the NACC will issue an amended or new Order of Conditions. Any errors found in the plans or information submitted by the applicant. shall be considered as changes. The proposed project may still be under review by other local or state boards or agencies. This may result in changes to the project plans or wetland impacts. If any such changes occur a revised plan and an explanation of the revisions shall be. submitted to the NACC for review and approval prior to the start of C:\Winword\OOC\21 ffloltRd.doc 5 NACC 10/17/2007 DEP FILE # 242 - 1404 construction. No work shall begin on a project until written approval has been granted by the NACC. 42. It is the responsibility of the applicant, owner, and/or successor(s) to ensure that all conditions of this Order of Conditions are complied with. The project engineer and contractors are to be provided with a copy of this Order of Conditions and referenced documents before commencement of construction. 43. The. applicant submitted a Construction Sequencing Plan as part of the approved Notice of Intent application and is referenced herein. However, prior to any work commencing on site, the applicant shall submit a revised construction sequencing plan to the NACC for review and approval to include additional items, if not already included, such as a dated timetable of construction, the construction of compensation and retention areas, installation of sedimentation/erosion control devices, roadway infrastructure, and the construction of the associated stormwater management structures. The construction sequence shall specify that the stormwater management structures will be constructed first, prior to any other site preparation. This timetable must continue to be updated throughout the project. 44. Wetland flagging shall be checked prior to start of construction and shall be re-established where missing. All wetland flagging shall remain visible and enumerated per the approved plan(s) throughout the life of the project and until a Certificate of Compliance is issued so.that erosion control measures can be properly placed and wetland impacts can be monitored. The proposed limit of work shall be shall be clearly marked with stakes or flags and shall be confirmed by the NACC. Such markers shall be checked and replaced as necessary and shall be maintained until all construction is complete. Workers should be informed that no use of machinery, storage of machinery or materials, stockpiling of soil, or construction activity is to occur beyond this line at any time. All flags used for the above purposes shall be of a color different from other flagging used on the site. 45. A row of staked hay bales backed by trenched siltation fence shall be placed between all construction areas and wetlands. 'fhe erosion control barrier will be properly installed and placed as shown on the plans approved and referenced herein and shall be inspected and approved by the NACC prior to the. start of construction and shall remain intact until all disturbed areas have been permanently stabilized.to, prevent erosion. All erosion prevention and sedimentation protection measures found necessary during construction shall be implemented at the direction of the NACC. The NACC reserves the right to impose additional conditions on portions of fl -ds project to mitigate any impacts which could result from site erosion, or any noticeable degradation of surface water quality discharging from the site. For example, mistallation. of erosion control measures may be required in areas not shown on the plan(s) referenced in this Order of Conditions. Should such installation be required by the NACC, they shall be installed within 48 hours of the Commission's request. C:\Winword\OOC\21 MoItRd.doc 6 NACC 10/17/2007 DEP FILE # 242 - 1404 46. The applicant shall have on hand at the start of any soil disturbance, removal or stockpiling, a minimum of 30 hay bales and sufficient stakes for staking these bales (or an equivalent amount of silt fence). Said bales shall be used o . nly for the control of emergency erosion problems and shall not be used for the normal control of erosion. All. additional emergency erosion controls shall be on site prior to the commencement of any work on site and will be verified by the Conservation Department during the pre - construction meeting. 47. A check payable to the Town of North Andover shall be provided in the amount of $3,000, which shall be in all respects satisfactory to Town Counsel, Town Treasurer/ and the NACC, and shall -be posted with the North Andover Town Treasurer through the NACC before commencement of work. Said deposit of money shall be conditioned on the completion of all conditions hereof, shall be signed by a party or parties satisfactory to the NACC, and Town Counsel, and shall be released after completion of the project, provided that provisions, satisfactory to the NACC, have been made for performance of any conditions which are of continuing nature. The applicant may propose a monetary release schedule, keyed to completion of specific portions of the project for the NACCs review and approval. This condition is issued under the authority of the local Bylaw. 48. The applicant and/or the legal owner of that portion of land upon which these Orders of Conditions have been placed shall provide to the NACC prior to transferring, or assigning any portion of said land to another party, subject to said Orders of Conditions, the "Compliance Certification Form Affidavit" attached via "Appendix A" signed under the pains and penalties of perjury, stating that said applicant and/or owner has read these Orders of Conditions and is in compliance with each and every condition. This document shall apply to each of the conditions referenced herein and shall be provided to the Conservation Department at least five (5) business days after to the closing of said land transaction. 49. Once these above mentioned pre -construction requirements are complete, the applicant shall contact the Conservation Office prior to site preparation or. construction and shall arrange an on-site conference with an NACC representative; the contractor, the engineer, wetland scientist and the applicant to ensure that all of the Conditions of this Order are understood. This Order shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors and other personnel performing the permitted work are fully aware of the permit's terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order of Conditions resulting from failure to comply with its conditions. The applicant or contractor shall notify the NACC in writing of the identity of the on-site construction supervisor hired to coordinate construction and to ensure compliance with this Order. A reasonable period of time shall be provided as notice for each pre - construction meeting (e.g. 72 hours). C:\Winword\OOC\21 OHoItRd.doc 7 NACC 10/17/2007 DEP FILE # 242 - 1404 11STORMWATER MANAGEMENT CONDITIONS 50. All construction and post -construction stormwater management systems shall be conducted in accordance with the approved construction sequence, supporting documents and plans submitted with the Notice of Intent,.the Department of Environmental Protection Stormwater Management Policy, and the approved Operation and Maintenance Plan attached herein. 51. Evidence of maintenance of the stormwater management system shall be provided to the NACC on an annual basis by a Registered Professional Civil Engineer. The first report shall be submitted to the NACC one year after the first stormwater structure goes on-line and annual reports must continue to be submitted until a Certificate of Compliance is issued. C ompliance with the designed stormwater management system and associated stormwater management conditions shall be satisfied prior to the issuance of a Certificate of Compliance. 52. All drainage structures shall be properly installed and functional. During construction, all drainage structure . s shall be maintained, as outlined in the approved Operation and Maintenance Plan attached herein. 53. Construction of the stormwater structures shall be constructed and functioning as part of the initial project phase, immediately following clearing and rough grading of the site to serve as siltation control during construction. Runoff from the site shall be directed towards these basins. 54. Temporary and/or permanent basins being used for sedimentation and dewatering during construction shall be cleaned of sediment when levels exceed six (6) inches. The basins shall be cleaned of sediment prior to final grading and construction of permanent stormwater basins. 55. There shall be no increase in the post development discharges from the storm drainage system or any other changes in post development conditions that alter the post development watershed boundaries as currently depicted in the Notice of Intent and approved by this Or der of Conditions, unless specifically approved in writing by the Commission. 56. Water quality down gradient of BVW's shall not differ significantly following completion of the project from the pre -development conditions. There shall be no sedimentation into wetlands or water bodies from discharge pipes or surface runoff leaving the site. 57. Prior to the issuance of the Certificate of Compliance, the applicant shall be responsible for cleaning all stormwater structures, in accordance with the approved Operation & Maintenance Procedures Plan attached herein and the associated stormwater management conditions referenced herein. C'\Winword\00C\210HoltRd.doc 8 NACC 10/17/2007 DEP FILE # 242 - 1404 1� . 58. The applicants, owners, and their successors and assignees, shall maintain all culverts, collections basins, traps, outlet structures, subsurface storage areas, and other elements of the drainage system, unless put into an easement to the Town of North Andover, in order to avoid blockages and siltation which might cause failure of the system and/or detrimental impacts to on-site or off-site resource areas.. and shall maintain the integrity of vegetative cover on the site. DURING CONSTRUCTION 59. Accepted engineering and Best Management Practices (BMPs) for construction standards shall be followed in the conduct of all work., 60. A crushed stone construction entrance shall be designated at all entrance/exit drives to minimize soil/material tracking in accordance with the approved standards and specifications. Construction entrances shall be maintained and reinforced as necessary. 61. Erosion control devices shall be inspected regularly; any entrapped silt shall be removed to an area outside of the buffer zone and wetland resource areas; silt fence and hay bales shall be replaced as necessary. The areas of construction shall remain in stable condition at the close of each construction day. All erosion controls shall be in place throughout the duration of an y construction on site or unless authorized by the Conservation personnel. 62. Upon beginning work, the applicant shall submit written progress reports every month detailing what work has been done in or near resource areas, and what work is anticipated to be done over the next period. This will update the construction sequence. 63. The NACC finds that a fence is necessary to be installed around the entire project site in order to deter trash and other debris from entering the wetland resource area and associated buffer zones and as required by the Department of Environmental Protection pursuant to the site ' assignment and as referenced and shown -on the approved plans and documents referenced herein. 64. All catch basins shall contain oil/ gasoline traps, and it shall be a continuing condition of this order, even after a Certificate of Compliance is issued, that the oil/ gasoline traps in the catch basins be maintained. All catch basins shall be free of all accumulated silt and debris before Compliance is issued and the owner or his/her agent shall so specify in the request for Compliance. 65. The sewer lines on the site, where they cross wetland resource areas, shall be tested for water tightness, in accordance with North Andover DPW standards. 66. Silt sacs/filter fabric or other siltatiorVsedimentation protection methods shall be installed at any catch basin/storm drain within 50 feet of the work. C:\Winword\00C\210HoltRd.doc 9 NACC 10/ 17/2007 DEP FILE # 242 - 1404 67.Approved de -watering activities anticipated shall be supervised and witnessed by a qualified environmental professional. This desiMee must be on-siteat all times while dewatering is occurripZ. De -watering activities shall be conducted as shown on the approved plans and shall be monitored daily.by the erosion control monitor to ensure that sediment laden water is appropriately settled prior to discharge toward the wetland resource areas. No discharge of water is allowed directly into an area subject to jurisdiction of the Wetlands Protection Act and/or the North Andover Wetland Bylaw. If emergency de- watering requirements arise, the applicant..shall subm it a contingency plan to the Commission for approval, which provides for the pumped water to be contained in a settling basin, to reduce. turbidity prior to discharge into a resource area. 68. Associated pavement and roadways shall be swept at least once per week or as directed by the. Site Supervisor, Project Manager, or the Conservation staff for as long as the site remains exposed and unstabilized. 69. Any fiff 'used in connection with fl -ds project shall be clean fill, containing no trash, refuse, rubbish or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts on any of the foregoing. 70. All exposed soil finish grade surfaces shall be immediately landscaped and stabilized, or loamed, seeded and mulched, with a layer of mulch hay. All disturbed areas must be graded, loamed and seeded prior to November ls' of each year. Outside of the growing season, exposed soil finish grade surfaces sh all be stabilized with a layer of mulch hay until climate conditions allow for seeding. During construction, any area of exposed soils that win be left idle for more than 30 days shall be stabilized with a layer of mulch hay or other means approved by -the NACC. 71. No re -grading in the buffer zone shall have a slope steeper than 2:1 (horizontal: vertical). Slopes of steeper grade shall be rip -rapped to provide permanent stabilization. 72. Equipment shall not be staged overnight within 100 feet of a wetland resource area. 73. There shall be no stockpiling of soil or other materials within twenty-five (25) feet of any resource area. 74.. Washings from concrete trucks, or surplus concrete, shall not be directed to, any drainage system, or wetland resource area. 75. All waste generated by, or associated with, the construction activity shall be contained within the construction area, and away from any wetland resource area. There shall be no burying of spent construction materials or disposal of waste on the site by any other means. The applicant shall maintain dumpsters (or other suitable means) at the site for the storage and removal of such spent construction materials off-site. However, no trash dumpsters will be allowed within 50' of areas subject to protection under the Act or local Bylaw. CAWinword\00C\210HohRd.doc 10 NACC 10/17/2007 DEP FILE # 242 - 1404 76. During and after work on this project, there shall be no discharge or spillage of fuel, or other pollutants into any wetland resource area. If there is a spill or discharge of any pollutant during any phase of construction the NACC shall be notified by the applicant within one (1) business day. No construction vehicles are to be stored within 100 feet of wetland resource areas, and no vehicle' refueling, equipment lubrication, or maintenance is to be done within 100 feet of a resource area. AFTER CONSTRUCT -ION 77. No underground storage of fuel oils shall be allowed on any lot within one hundred (100) feet of any wetland resource area. This condition shall survive this Order of Conditions and shall run with the title of the property. This condition is issued under the authority of the Town's Wetland protection Bylaw. 78. Fertilizers utilized for landscaping and lawn care shall be slow release, I ow -nitrogen types (< 5%), and shall not.be used within 25 feet of a resource area. Pesticides and herbicides shall not be used within 100 feet of a wetland resource area. This condition.shall survive tl-ds Order of Conditions and shall run with the title of the property. This -condition is issued under the authority of the Town's We.tland Protection Bylaw and shall remain in perpetuity. 79. The approved Operation & Maintenance Plan is fully binding upon the applicant I and/or owners, successors,� agents, associations, heirs and assigns and must be adhered to in perpetuity. 80. Prior to the issuance of a Certificate of Compliance, the applicant shall submit an Affidavit from the assignee (s) acknowledging the Operation & Maintenance responsibilities of the stormwater management systems in accordance with the approved Operation & Maintenance Plan and other, perpetual conditions mandated in this Order. 81. No Certificateof Compliance will be granted until such time as three consecutive groundwater quality samples return results equivalent to or below the baseline sample results obtained in accordance with condition #40 of this Order of Conditions. Further, prior to the issuance of a Certificate of Compliance, the same certified analytical laboratory (duly licensed by the Commonwealth of Massachusetts) shall sample the water quality at the installed well for final analysis. Final reporting and analysis shall be submitted to the NACC for review. 82. No road salt, sodium chloride, or other de-icing chemicals shall be used on paved surfaces within the buffer zone, and any arrangement for snow removal shall so stipulate due to the importance of the site and wetlands. Further, snow stockpiling is prohibited within 50 feet of any/all wetland resource areas on the site. C:\Winword\OOC\21 OHoItRd.doc I I NACC 10/17/2007 DEP FILE # 242 - 1404 83. Upon completion of construction and grading, all disturbed areas located outside resource areas shall be stabilized permanently against erosion. This shall be done either by loaming and seeding according to SCS standards. If the latter course is chosen, stabilization will be considered complete once vegetative cover has been achieved. 84. Upon approved site stabilization by Conservation staff, the erosion controls shall be removed and properly disposed of and all exposed unvegetated areas shall be seeded. 85. Upon completion of the project the applicant shall submit the following to the Conservation Commission as. part of a request for a Certificate of Compliance: a. WPA Form 8A - "Request for a Certificate of Compliance." b. A letter from the applicant reques I ting a Certificate of Compliance. c. The name and address of the current landowner. d. Signed statements from the individual property owners shall be submitted with the request for a Certificate of Compliance indicating that they read and understood the recorded Order of Conditions prior to purchasing their property. e. The name and address of theindividual/ trust or corporation to whom the compliance is to be granted. f. The street address and assessor's map/ parcel number for the project. g. The DEP file number. h. A written statement from a Registered Professional Civil Engineer (and/or Registered Professional Land Surveyor) of the Commonwealth certifying that the work has been conducted as shown on the plan(s) and documents referenced above, and as conditioned by the Commission.. i. An "As -Built" plan prepared and signed and stamped by a Registered Professional Civil Engineer (and/or Registered Professional Land Surveyor) of the Commonwealth, for the public record. This plan will include: > "'As -Built" post -development elevations of all drainage & stormwater management structures constructed within 100 feet of any wetland resource area. NOTE: If portions of the stormwa.ter systems exist partially within the Buffer Zone than the entire structure must be depicted to accurately verify compliance. "As -Built" post -development elevations and grades of an fined or altered wetland resource areas including the encompassing buffer zone, which is regulated as a resource area under the local Wetland Protection Bylaw. Distances from structures to wetland resource areas. Structures include (but are not limited to) septic systems, additions, fences, sheds, stone walls, pools, retaining walls, subsurface utilities and decks. C:\Winword\OOC\21 OHoItRd.doc 12 NACC 10/17/2007 DEP FILE # 242 - 1404 A line showing the limit of work and the extent of existing erosion control devices. "Work" includes anv disturbance of soils or vegetation. > Location of all subsurface utilities entering the property. 86. The following special conditions shall survive the issuance of a Certificate of Compliance (COC) for tl-ds project: > 25' No -Disturbance Zone and a 50' No -Construction Zone shall be established from the edge of adjacent wetland resource areas except in those locations approved under this filing. Future work within 100' of existing wetland resource areas will require a separate filing with the NACC. The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local Bylaw (Condition #32); > Discharge or spillage of pollutants (Condition #76); > Maintenance of catch basins (Condition #64); > Maintenance of all culverts, collections basins, traps, outlet structures, .subsurface storage areas, and other elements of the drainage system, unless put into an easement to the Town of North Andover, in order to avoid blockages and siltation, which might cause failure of the system and/or detrimental impacts to on-site or off-site resource areas (Condition #58); > Prohibition of underground fuels.(Condition #77); > Limitations on the use of fertilizers, herbicides, road salts, de-icing compounds and pesticides (Conditions #78 & #82). > The attached "Stormwater Operations and Management Plan", including Best Management Practices. No additional filings will be required to conduct maintenance of the above referenced system and plan (Condition #79). C:\Winword\00C\210HoltRd.doc * 13 NACC 10/17/2007 DEP FILE # 242 - 1404 I, 1) APPENDIX A — AFFIDAVIT on oath do hereby depose and state: (authorized agent of applicant and / or owner) (PLEASE CHECK AT LEAST ONE BLOCK) I am the of (position with applicant) (applicant's name) the applicant upon whom the Order of Conditions have been (DEP or NACC File #) placed upon by the North Andover Conservation Commission (NACC). 2) IM the (position with owner) and / or of (owner) the owner upon whose land, Order of Conditions have been (DEP or NACC File #) placed upon by the NACC. • I hereby affirm and acknowledge that I have received said Order of Conditions and have read the same and understand each and every condition, which has been set forth in said Order of Conditions. • I hereby affirm and acknowledge that on this day of ' 20----, 1 inspected said property together with any and all improvements, which have been made to the same and hereby certify that each and every condition set forth in the Order of Conditions are presently in compliance. I hereby affirm and acknowledge that this document will be relied upon by the NACC, as well as any potential buyers of said property, which is subject to the Order of Conditions. Signed under the pain and penalties of perjury this — day of (Authorized agent of applicant or owner) CAWinwoTd\00C\21 ffloltRd.doc 14 NACC 10/17/2007 co CL Narrative & Supporting Information -TBI.,,Inc. Revised August 24, 2007 6.0: Inspection And Maintenance 6.1 Routine Inspections The owner and operator of the facility is TBI, Inc., located at 210 Holt Road, North Andover, MA. TBI will be re I sponsible for the operation and maintenance of the facility, which in part includes the operation and maintenance of the stormwater controls. The drainage system (catchbasins, manholes, Stormcepto?@ structures, and StorinTankTm system) will be inspected for sediment buildup, oil and damage. The results of each inspection are entered into an inspection log. Inspections are performed on a monthly basis or as necessary. The St ce ix orm p4 structures are me'asured for sediment. depth a minimum of every s' months., The followin edule shall be performed of the stormwater management system: g inspection sch 0 The subsurface infiltration �system shall be inspected a minimum of semi-annually (twice yearly), utilizing the proposed inspection ports. a During the first year of operation, all stormwater structures should be inspected . after each large rain event (greater than 1.5 inches), and also three days after a large r ami. event to verify proper fianction. 6.2 Maintenance Plan The facility will incorporate a routine maintenance program to assure proper operation. The program Will include maintenance of the following - 4.6 0 During the first year of operation, catchbasins shall be cleaned quarterly (4 times/year), then annually thereafter if solids accumulation exceeds half the sump depth. - * Sediment will be removed from the Stormceptorg structures once the depth reaches 8 'inches. Maintenance of the Stormce ptor@ structures will be performed in accordance with the Owners Manual. e Best Management Practices will be implemented to prevent the buildup of litter on storm water catchbasins and to prevent litter from entering the stormwater system. The paved areas of the facility will be swept on a weekly basis to control dust and help to reduce sediment from entering into the storm water system. 7.0 Sedimentation & Erosion Control Plan 7.1 Introduction The greatest p I otential for sediments generation will occur during the. construction phase of the project. An extensive erosion and sedimentation program is proposed and should be,'diligentlY implemented during 6 construction of the project The erosion control -program will minimize erosion and sedimentation that could potentially impact abutting proper4es. During construction, water quality will be maintained by minimizing erosion of exposed soils and siltation. Erosion control barriers will be 'installed and exposed soil areas re -vegetated as soon as possible after work in an area is corripleted. The following table is an anticipated sequence of construction for the project 'k 8 LA�Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 — Order of Conditions � Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 E. Issuance DEP File Number: 242-1404 This Order is valid for three years, unless otherwise specified as a special — /0 /,r7 k -7 condition pursuant to General Conditions #4, from the date of issuance. 1. Date of Issu0ce Please indicate the number of members who will sign this form: 15 - This Order must be signed.by a majority of the Conservation Commission. 2. Number of Signers The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate Department of Environmental Protection Regional Office, if not filing electronically, and the wrier, if different from aDDlicant. I Sig Notary Acknowledgement Commonwealth of Massachusetts County of On this . - 10444 — of Day Before me, the undersigned Not ary Public, personally appeared Essex North 0 c4b 6,-,- 012 00 Month Year Name of Document Signer proved to me through satisfactory evidence of identification, which was/were Massachusetts License Description of evidence of identification to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose. A k �; 4 North Andover a 111C111 IV U City[Town D00iAKWEDGE worrARY FuBuc COMMONWEALTH OFMAS7SACHUSETTS Ug. 009 I'd My Comm. Expires Aug. 7, 2009 Place notary seal and/or any stamp above This Order is issued to the applicant as follows: Yby hand delivery on I 0h,71,97 Date I I Conse ation Commission &'� -4z St nature of Notary Public -.404 1 zVe Printed Nam f N ary Public — P-20770009 My Commitsion Kxpires (Dat6) D by certified mail, return receipt requested, on Date wpaform5.doc - rev. 3/1/05 Page 7 of 9 ILI'Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 F. Appeals DEP File Number: 242-1404 The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate DEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order or Determination, or providing written information to the Department prior to issuance of a Superseding Order or Determination. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act, (M.G.L. c. 131, § 40) and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. Section G, Recording Information is available on the following page. wpaform5.doc - rev. 3/1/05. Page 8 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 G. Recording Information DEP File Number: 242-1404 This Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on Page 7 of this form shall be submitted to the Conservation Commission listed below. North Andover Conservation Commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. --------------------------------------------------------------------------------------------------------------------------- To: -North Andover Conservation Commission Please be advised that the Order of Conditions for the Project at: 242-1404 Project Location DEP File Number Has been recorded at the Registry of Deeds of: County Book Page for: Property Owner and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Number If registered land, the document number identifying this transaction is: Document Number Signature of Applicant wpaform5.doc - rev. 311/05 Page 9 of 9 Checkmate Development, LLC Documents submitted Page I of 6 Checkmate Development, LLC — 210 Holt Road — 1-2 & AUZ Special Permit 2003-014. M77PI4 & M34P27 (M34P40=2004-009) Meeting From Contents Item's Date Pre -Meeting to 4-16-03 NA Building Department Zoning Bylaw Review Form 3-12-04 Checkmate Development, LLC Checkmate Development, LLC — 210 Holt Road - Application Town Clerk date stamp 3-13-03 NA ZBA Legal Notice TC date 3-24 ZBA memorandum To: J. Thomson, representative at 4-16 waive to 5-15-03 3-25-03 Checkmate Development, LLC Withdraw Site Plan SP from Planning Board TC date 3-25 Marshall F. Newman, Esq. Letter — Explanation of waive to 5-15-03 3-26-03 Sandra Starr, NA Health Dir. Response to 2003-014 Application 3-31-03 Wm. V. Dolan, NA Fire Chief 4-2-03 Julie Parrino, NA Conservation Administrator 4-7-03 Richard M. Stanley, NAPD Chief 4-9-03 Tim Willett, NA DPW Mark Rees, Town Manager ZBA form Waive time to 5-15-03 TC date 4-27 To 5-15-03 NAPD Website Upcoming Events May 2003 Marshall F. Newman, Esq. Letter - Waive time to June 10, 2003 5-15-03 ZBA form Waive time to 6-10-03 TC date 5-19 To 6-10-03 NA Public Notices Website — Checkmate Meeting cont. 5-29-03 For Sisters Three Entrepreneurs Crimecast Introduction, 3 p. map, chart 06/05/03 11 Security Premise Presentation , 18 unnumbered pages n.d. Checkmate Development, LLC Concept drawing of proposed exterior n.d. Proposed sign for Rockets Gentlemen's Club 2/11/03 Against Attendance list 6-10-04 Rick Catino 5 page letter, dated 6-7-03 5 page compilation of web site articles 6-8-03 8 page web site compilation with 1/2page color photo 2-6-03 U. S. Geological Survey Lawrence, MA -NH 42071 -Fl -TM -025 —7.5xl5 min. 1987 ZBA form Waive time to 7-8-03 6-10-03 To 7-8-03 Maryjane Meadows Letter — against 2003-014 6-23-03 Rose M. DeFusco 6-28-03 Mary Armitage 6-23-03 Judy Lee 6-24-03 Raymond & Dove Sullivan 6-16-03 Paula C. Estee 6-24-03 Karin Valliere-Moschetto 6-30-03 Patricia F. Daley 6-28-03 A very concerned tax payer 6-28-03 Barbara A. Stack 6-30-03 Checkmate Development, LLC Documents submitted Page 2 of 6 Meetin Date From Contents Item's Date Frank Carnovale & Pamela Reed Letter Against 2003-014 7-1-03 Jim Winslow Fax 11 7-2-03 Alaine M. Portnoy Letter 7-1-03 Mary T. & Fred L. Boucher 111 7-1-03 Nancy Rossiter 7-1-03 Pauline & Duncan Rogers 7-3-03 Joseph A. & Kimberly L. Reardon 7-6-03 Nancy & David Kazmer 7-2-03 The Dow family 7-3-03 7-8-03 — For Brown and Caldwell Aerial Photo MassGIS July 1996, updated Sept. 2002 7-8-03 Spaulding Lighting Add for Cambridge Medallion series light standard n.d. Against I I pages of opponent's signatures at 7-8-03 7-8-03 12 pages of internet articles n.d. Xerox of E -T Monday front page 7-7-03 Jeanne M. Colachico Xerox of letter to Mark Rees, Town Manager 12-8-02 Xerox of letter from Checkmate to ZBA, "...no permit as of 9:50AM" handwritten note 3-13-03 Xerox of Map 77 Parcel 14 n.d. Xerox of Zoning Bylaw pp 129-131 & Table 2 n.d. Checkmate Development, LLC Waive time to 8-12-03 7-8-03 To 8-12-03 Karin Valliere-Moschetto Letter — Against 2003-014, rec'd 7-14-04 7-27-03 Checkmate Development LLC Letter from Jeff Thomson re: deliveries. Rec'd 8-6-03 7-30-03 Brown and Caldwell Proposed planting & Lighting Plan, rec'd 8-6-03 8-12-03 Letter - Against 2003-014, rec'd 8-7-03 8-5-03 Richard J. Santagati, President of Merrimack College Letter — Against 2003-014 8-11-03 8-12-03 — For: Sisters Three Entrepreneurs Response to Comments from Police Department letter dated April 9, 2003 and Fire Department letter dated April 3, 2003, 25 pages. 8-12-03 MS Transportation Systems, Inc Traffic Analysis — Response to Public Comments — Draft 8-12-03 11 - Response to Police Chief Comments 8-12-03 Against Petition, 6pp, 62 signatures 8-12-03 K. Kline Letter — Against 2003-014 8-12-03 Checkmate Development LLC Waive time to 9-9-03 8-12-03 To 9-9-03 Blue folder Paperwork for change of meeting location to NAMS Mary Armitage Letter — Against 2003 -014 8-17-03 Lawrence W. Becker, Headmaster Brooks School 8-18-03 WJS, NA ZBA Letter to Board of Selectmen requesting NAMS rent fee 8-25-03 MS Transportation Systems, Inc. Traffic Analysis - Response to Police Chief Comments 8-18-03 Vanasse Hangen Brustlin (VHB) to D. Robert Nicetta Review Traffic and Access Study 9-8-03 VHB Engineering Review of SP and Site Plan 9-9-03 9-9-03 For: Sisters Three Entrepreneurs Response to Comments from Police Department letter dated April 9, 2003 and Fire Department letter dated April 3, 2003, 25 pages. 9-9-03 Against: Signatures of meeting attendees against 2003-014 9-9-03 Lynne Arvikar Letter — Against 2003-014 9-9-03 Dennis Card Map of 3 parcels Highlighted area is outside Adult Zone 9-9-03 11 11 Ca 4'x3' map of AUZ 9-9-03 Joan Kulash Testimony against Rocket Entertainment 9-9-03 Fax to 9556 Adult Use Zone — Why do we need? 9-9-03 Checkmate Development, LLC Documents submitted Page 3 of 6 Meeting Date From Contents Item's Date Xerox of Town Meeting report 5-7-96 defining 6 AUZ lots, and Xerox of map 34 parcel 40 9-9-03 Checkmate Development LLC Waive time to 10- 14-03 9-9-03 To 10-14-03 Joan Kulash Letter to Walter Soule with 11 -5-97 Board of Health decision, 21 pp. 9-15-03 Checkmate Development LLC Letter to Michael McGuire — seating capacity & licenses 9-25-03 Rich Catino Faxed comments on Eagle -Tribune articles 10-5-03 Atty. Marshall F. Newman Letter listing items of Brown and Caldwell's response to the 9-8 & 9-9-03 VHB reports 10-6-03 Brown & Caldwell 1. a.! Four-page textual response; b. Excerpt from Stormwater Report dated January, 2003 (Pag ); [I & ii] c. Design Drawings consisting of three sheets entitled, respectively (i) "Existing Conditions", (ii) "Proposed Site Plan, and (iii) "Detail Sheet', all of which are revised as of September 29, 2003. d. Revised Stormwater Analysis and Drainage Area Plan 9revised); and e. ADS Pipe Data. 2. Memorandum from MS Transportation System, Inc. ("MS") dated August 18, 2003 concerning the Response to Public Comments to the Traffic Analysis; 3. Memorandum from MS dated August 15, 2003 entitled "Sight Distance"' 4. Memorandum from MS dated 5. Memorandum from MS dated October 1, 2003 entitled "Response to Initial VHB Commenf'; 6. Statement from Sisters Three Entrepreneurs Security Consultants dated September 12, 2003; 7. Plan entitled "Proposed Photometric Plan" dated September 17, 2003 prepared by Nelson Hammer & Associates; 8. Plan entitled "Revised Plan of Western Industrial Park prepared for Noreen Realty, Inc." dated July 11, 1984, prepared y Robert G. Goodwin, R.L.S.; and 9. Sign Plan prepared by Mack Sign Advertising, dated February 11, 2003, revised as of September 15, 2003. 10-14-03 For Sisters Three Entrepreneurs Cover letter 10-14-03 Spiral bound Security Requirements Analyses & Assessment Study Final Report 10-14-03 Against [Rick Catinol Internet reprint of E -T 10-5-03 article, 3 p. 10-14-03 Checkmate Development LLC Waive time to 11-18-03 10-14-03 To 11-18-03 Town of North Andover Notice ZBA back to 120R Main Street, printed 12-2-03 NA Board of Selectmen Agreement between B of S & Thomson Brothers Industries, Inc. (TBI) 10-20-03 ZBA assistant R. Ercolini photocopy request — "how to" to Atty. Urbelis 10-30-03 Print screen of 210 Holt Road folder contents 10-27-03 Atty. Thomas J. Urbelis Re: November 17, 2003 Special Town Meeting, 11 p. 11-7-03 William J. Sullivan, Chair ZBA Cover letter for VHI3 2d engineering review 11-6-03 VHB Response to Brown and Caldwell's 10-6-03 response, 4p. 10-20-03 VHB Response to MS Traffic analyses 8-15, 8-18, 8-18, &10- 2-03 10-17-03 Checkmate Development, LLC Documents submitted Page 4 of 6 Meeting Date From Contents Item's Date William J. Sullivan, Chair ZBA Cover letter re: hand -delivered to Board residences 11-17-03 Paul D. Wilson memorandum 11-13-03 Discussion: The ZBA appears to have... , pp 2-4. 10-10-03 "Bob Ercolini" - Yahoo! Mail re: proposed draft, 3p. 11-14-03 Security Response Technologies Spiral bound response to Sisters Three, 15 p. 11-15-03 11-18-03 For Brown and Caldwell Proposed Site Plan, drawing number 2, revised 11/14/03 Sisters Three Entrepreneurs Cover letter for Security Need Analysis Study [revised as of November 18, 2003] 11-18-03 61 Spiral bound 25 page report Security Need Analysis Rev. 11-18-03 Xerox of Storm Management Standards, p. 1-5 & 35 pgs. 11-11-03 MS Transportation Systems, Inc. Traffic response to 2d VHB Comments,, & attached multi -page analysis 11-18-03 Against Xerox of E -T BIZ north p. 13 11-14-03 Joe Henderson Fax to Bob Ercolini re Title 5 Flow Design, 5 pages 11-18-03 Robert Ercolini AUZ requirements in addition to requirements of other districts, 7p. 11-18-03 Checkmate Development LLC Waive time to December 9, 2003 11-18-03 To 12-16-03 Atty. Marshall F. Newman Letter to VHB hand -delivered, listing 4 items submitted at 11-18-03, & Hammer Design letter 11-21-03 Brown and Caldwell 1. Proposed Site Plan, rev. 11-14-03 Sisters Three Entrepreneurs 2. Revised Security Plan 11-18-03 MS Transportation Systems, Inc. 3. Memo dated November 18, 2003 11-18-03 4. Storm Water Infiltration Management Standards Nelson Hammer, RLA Letter - Response to ZBA Comments 11-19-03 Brown and Caldwell Prop' osed Planting & Lighting Plan, drawing number 1 . 8-12-03 ZBA assistant Faxed request for signed "waive" from 12-9 to 12-16-03 11-26-03 ZBA assistant e-mail to Joyce Bradshaw to post meeting change from 12-9-03 to 12-16-03 11-26-03 e-mail to Sgt. Boettcher 11-26-03 NA ZBA E -T legal notice - Special Checkmate meeting 12-16-03 12-1-03 11 Time -stamped 12-16-03 agenda & bulletin board notice 12-1-03 Atty. Marshall F. Newman Letter to VHB, cc: to WJS (w/o enclosure) 12-3-03 At 12-16-03 Atty. Thomas J. Urbelis Meeting presentation visuals re: Accessory Use Plan of "Western Industrial Park" for Noren Realty, Inc. 4-1-66 41 Revised Plan of "Western Industrial Park" for Noren 7-11-84 Against [Elizabeth Barker] Letter to ZBA re: Ted Bundy n.d. Checkmate Development LLC Waive time to 3-23-04 12-16-03 To 3-29-03 NA ZBA Time -stamped 3-29-04 agenda & bulletin board notice 12-22-03 VHB 3d Engineering Review, 5p. 1-16-04 Security Response Technologies Letter to VHB re: S3E's responses to SRT 12-9-03 Brown and Caldwell Sheets 1-4: Existing Conditions, Proposed Site, Detail Sheet, & Zoning Plan Rev. 1-23-04 Atty. Marshall F. Newman Letter in response to VHB's "Summary of Outstanding Issues as of January 16, 2004" & items A -G 3-1-04 A. Brown and Caldwell — 4 sheet rev. 1-23-04; B. Document entitled "Conceptual Subsurface Sewer Disposal System Designs"; C. Memorandum of MS Transportation Systems, Inc. dated December 5, 2003; D. Stormwater Report dated January 2003; E. Stormwater Analysis and Drainage Area Plans revised as of September 24, 2003; F. Application for Special Permit [2004-009]; and Checkmate Development, LLC Documents submitted Page 5 of 6 Meeting Date From Contents Item's Date G. Memorandum in Support of Application for Special Permit [2004-009]. VHB Letter — "It appears that all of VHB's comments..." 3-22-03 Mary Armitage Cover letter of Xerox of August 17, 2003 letter 3-24-04 Marshall F. Newman Letter — "I enclose herewith a loose leaf Binder... 3-26-04_ Checkmate Development LLC 3" loose leaf Binder [Black Binder] At 3-29-04 11 Waive time to May 13, 2004 3-29-04 James Connolly Video tape copy of Town Meeting May 1996 re: Article 22 Adult Use Zone 3-29-04 To 5-13-04 Walter F. Soule, ZBA Vice Chair Letter to Julie Parrino re: May 1996 Town Meeting 4-20-04 Atty. Marshall F. Newman Letter — Instrument Survey stakes in at 210 Holt 5-5-04 At 5-13-04 Jack E. Hagerman P.L.S. #28090 Plan of Land in NA, MA Showing Lot 3 & Lot 4... 5-10-04 11 Traverse Closure [calculations for 210 Holt Road] Brown and Caldwell Existing Conditions Plan, Drawing 1, revised [Tab 1] 4-28-04 Proposed Site Plan, Drawing 1, revised [Tab J] 4-28-04 Zoning Plan, Drawing 4, revised [Tab L] 4-28-04 Herbert E. Salisbury, R. A. #1681 Proposed Renovations to 210 Holt Road [Tab N] 1-30-03 Brown and Caldwell Proposed Planting & Lighting Plan, 1, revised [Tab S] 5-13-04 Against Beth Barker Letter re: Facts from is sex safe brochure Brochure C1998 Under Advise to 8-11-04 Atty. Thomas J. Urbelis Fax re: Eagle -Tribune 5-14-04 page 5 "not a public 5-19-04 ZBA Agenda/Bulletin board Special Open Meeting 5-25-04 TC 5-19-04 D. Robert Nicetta, Bldg Com/ZEO Letter to Atty. Urbelis re 5-14-04 E -T 5-20-04 ZBA Legal notice in E -T for Open meeting 5-22-04 NA PD Website Special Open Meeting 5-25-04 5-24-04 ZBA Compilation of minutes 4-16-03 to 5-13-04 Ca 5-25-04 ZBA List of documents submitted 7-8-03 to 5-13-04 5-27-04 ZBA Agenda/Bulletin board Special Open Meeting 6-2-04 TC 5-27-04 Atty. Marshall F. Newman Cover letter updating "Table of Contents" & 3 points 5-28-04 William J. Sullivan, Chair Letter to Mark Rees re: E -T 5-14-04 & attachments 6-2-04 ZBA Agenda/Bulletin board Special Open Meeting 6-15-04 TC 6-11-04 ZBA Agenda/Bulletin board Special Open Meeting 6-22-04 TC 6-18-04 ZBA Agenda/Bulletin board Special Open Meeting 7-20&27 TC 6-23-04 ZBA Faxed response to Grace Rubenstein re: authorization 6-28-04 ZBA Agenda/Bulletin board Special Open Meeting 7-20, 7-27, & 8-3-04 TC 7-13-04 ZBA Decision for 2003-014 TC 8-5-04 ZBA Typing correction to 2003-014 decision TC 8-6-04 Marshall F. Newman, Esq. Appeal to Land Court, Case #301515 8-27-04 Marshall F. Newman, Esq. Affidavit of Marshall F. Newman Rec'd 10-27- 04 Atty. Thomas J. Urbelis Response to Affidavit of Marshall F. Newman 11-1-04 Cover letter for Order to allow Motion to Dismiss & Judgment of Dismissal [of Miscellaneous Case #301515 11-5-04 Atty. Thomas J. Urbelis Cover letter for Notice of Appeal of Judgment of Dismissal 301515 11-15-04 2005 Atty. Thomas J. Urbelis Cover letter Appeals Court brief 2005-P-0028 4-20-05 Atty. Thomas J. Urbelis Cover letter defendant �NAZBAS] brief 2005-P-0028 4-29-05 Atty. Thomas J. Urbelis Cover letter Mass. Appeals Court affirms Land Court 12-15-05 Appeal to SJC? Defense? 2006 Atty. Thomas J. Urbelis Cover letter SJC denial of further Appellate Review 3-2-06 Checkmate Development, LUC Documents submitted Page 6 of 6 12009 � I Atty. Thomas J. Urbelis I Cover letter for Stipulation of Dismissal I TC 2-5-09 URBELis & FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 Telephone 617-338-2200 THomAS J. URBELIS Telecopier 617-338-0122 e-mail tju@uf-law.com February 4, 2009 Zoning Board of Appeals Town of North Andover 1600 Osgood Street North Andover, MA 0 18 45 .4j?EQE1VE'D. 2009 FEB - 5 Ali H: 04 Andover . T �qne 978-475-4552 r f 4 0. R T I j 0 V;L" 11 A S IS A C 111 U c'3 "r T 3 BOARD OF APPEALS RE ROCKET ENTERTAINMENT v. NORTH ANDOVER ZoNiNr Dear Members: . Enclosed please find a copy of a letter dated February 3, 2009 from Attorney Gai . I Magenau Hire to the Land Court Cler� along with the referenced Stipulation of Dismissal. d to the adult use facility which had been proposed to be located on Holt This case relate Road. Very truly Yours, Thomas J . 4?rbe TJU/kinp Enclosure cc: Board of Selectmen (W/enc) Mark Rees (W/enc) Joyce Bradshaw (w/enc) SAWPS A�oMn-andoveNcorresp\zbo * rocket.doc MACKIE SHEA O'BRIEN02 COUNSELOR5 AT LAW 137 Newbury Street, Boston, MA 02116 - p AW 6172665237 www.lawmso.com OFFFIC." T tlASS! February 3, 2009 1, V'," CERTIFIED MAIL - Office of the Clerk Land Court Department of the Trial Court 226 Causeway Street Boston, Massachusetts 02114 Re: Rocket Entertaininent v. North Andover Zoning Board of Appeals Land Court Misc. No. 26,9389 (unassigned) Dear Sir or Madam: I enclose for filing in the above -captioned matter a S.tipulation of Dismissal with prejudice and without costs, signed by Plaintiff Rocket -Entertainment; Attorney Thomas J. Urbelis, counsel for Defendant North Andover Zoning Board of Appeals; and myself on behalf of Rocket Enteitainnient. The Plaintiffs -were previously represented in this matter by Attorney Marshall Newman. The Plaintiffs no longer have a relationship with Mr. Newman, therefore, the'y have not requested that he formally withdraw from the case. Rather, they have engaged me to enter an appearance for the purpose of dismissing the case. To that end, I also enclose a Notice of Appearance. If the Stipulation is acceptable, pjease date stamp the enclosed copy and return it to me in the self-addressed stamped envelope. Please call me with any questions. Very truly yours, Gail E. Magenau Hire Enclosures cc: Thomas J. Urbelis, Esquire Jeff Thomson RECEIVED T 0 lil.';- I IR% K" S 0 P F; 2099 FEB -5 AM 11: 04 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT JIQRi'f)-IM�00'/��R ESSEX, ss. M A S S, A C,11� U 5 EF IF T 3 LAND COURT MISC. NO. 269389 STIPULATION OF DISMISSAL Pursuant to. Mass. R. Civ. P. 41 (a)(1)(ii), the parties in the above -captioned matter, through iheir respective counsel, hereby stipulate that all claims in this action are dismissed, with. preju�4ice and without costs to any Party. C MENT INC. ROCKET ENTERTAINMENT, INC. By its attorney ey son, President Gail E. Magenau. Hire (BBO # 652644) Mackie Shea O'Brien, P.C. th 137 Newbury St�eet, 6 Floor Boston, Massachusetts 02116 (617) 266-5700 ZONING BOARD OF APPEALS By its' attorney Thomas J. Urbelis (BBO # Urbelis & Fieldsteel, LL . P 155 Federal Street Boston, MA 02110 (617) 338-2200 Date: )8� 3 2009 ROCKET ENTERTAINMENT, INC. Plaintiff V. NORTH ANDOVER ZONING BOARD OF APPEALS Defendant M A S S, A C,11� U 5 EF IF T 3 LAND COURT MISC. NO. 269389 STIPULATION OF DISMISSAL Pursuant to. Mass. R. Civ. P. 41 (a)(1)(ii), the parties in the above -captioned matter, through iheir respective counsel, hereby stipulate that all claims in this action are dismissed, with. preju�4ice and without costs to any Party. C MENT INC. ROCKET ENTERTAINMENT, INC. By its attorney ey son, President Gail E. Magenau. Hire (BBO # 652644) Mackie Shea O'Brien, P.C. th 137 Newbury St�eet, 6 Floor Boston, Massachusetts 02116 (617) 266-5700 ZONING BOARD OF APPEALS By its' attorney Thomas J. Urbelis (BBO # Urbelis & Fieldsteel, LL . P 155 Federal Street Boston, MA 02110 (617) 338-2200 Date: )8� 3 2009 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT ESSEX, ss. ROCKET ENTERTAINMENT, INC. Plaintiff V. NORTH ANDOVER ZONING 130ARD OF APPEALS Defendant R` 2009 M -5 AN 11: 05 LAND COURT MISC. NO. 26938S STJP11LATION..01-DISMISSAL NORTH MODOVi'l- MA SS AC111 0 S E -TI -S Pursuant to Mass. R. Civ. P. 41(a)(1)(ii), the parties in the above -captioned matter, .: through their respective counsel, hereby stipulate that all claims. in this action are dismissed; with prejudice and without costs to any party. ROCKET ENTERTAINMENT, INC. 1. 1 .. .1; 1 � � w Mftey P. Thomson, President . ZONING BOARD OF APPEALS By its attorney Thoma-s"J. UfWls� (B8074� 5 0 65 6 0. Urbelis & Fieldsteel, LLP 155 Federal Street Boston, MA 02110 (617) 338-2200 ROCKET ENTERTAINMENT, INC, By its attorney Gail E. Magenau Hire (BBO 652644) Mackie Shea O'Brien, P.C. 137 Newbury Street, 6 th Floor Boston, Massachusetts 02116 (617) 266-5700 Date: �� , 2009 C ENED FEB at, COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT m -0M ESSEX, ss. LANDIMURT MISC. NO. 269389 ROCKET ENTERTAINMENT, INC. Plaintiff V.. NORTH ANDOVER ZONING BOARD OF APPEALS Defendant NOTICE OF APPEARANCE TO: CLERK AND ALL PARTIES OF RECORD Kindly enter the appearance of Gail E. Magenau Hire as counsel for Plaintiff Rocket Entertaim-nent; Inc. in the above -captioned matter. GaA E. Magenau Hire (BBO #652644), Mackie Shea O'Brien, P.C. 137 Newbury Street, 6 th Floor Boston, Massachusetts 021116 (617) 266-5700 Date: 2009 URBELIS & FIELDSTEEL, LLP' 155 FEDERAL STREET BOSTON, MASSACHUSE771 S 0211071727 THOMAS J. URBELIS Telephone 617-338-2200 e-mail rju@ufb.com Telecopier 617 -338 -OM October 21, 2003 Andover . Telephone 978-475-4552 Board of Selectmen North Andover Town Offices 400 Osgood Street North Andover, MA 0 1845 RE EMINENT DomAiN TAFjNGs Dear Members df the Board:. Last night a private article relating to an eminent domain taldng of 210 Holt Road was place into the warrant for the Noveraber 17, 2003 Town Meeting. Enclosed is a copy of my November 22, 2002 letter to you which di�scusses a case invol . ving an en-Linent domain taking which was'done in bad faith. Very truly yours, A 4 eVfb e s Thomas J. elis Enclosure TJTJ/Iah cc: Mark Rees (w/enc.) Joyce Bradshaw (w/enc.) Heidi Gniffin (w/enc.) Charles Salisbury (w�erqc.) �x TH(wAs 1. URBEus e-mail qu@ufb.com Board of Selectmen North Andover Town Offices 120 Main Street North Andover, MA 01845 URBELis & FiELDsTEEL, LLP 155 FEDERAL STREET BoSTON, MASSACHUSETTS 02110-1727 Telephone 617-338-2200 Telecopier 617-338-0122 November 22, 2002 RE: EmNENT DomAiN TAKiNGS I Dear Members of the Board: Andover - Telephone 978-475-45 At your meeting on the 1 8'h., there was a comment from a resident about a potential town meeting vote for a taking of real propertyby eminent domain. I wanted to bring to your attention the 1993 Supreme Judicial Court case.of Pheasant Ridge Association Limited Partnershin v. Town of Burlin_ "o 399 Mass. 771. In that case, unsuccessful applicants for a comprehensive permit for construction of housing units under G.L.. c. 40B, § 2 1, the so-called Anti -Snob Zoning Act, filed. suit against Burlington -and its board of selectmen, which had purported to take a certain parcel of land by eminent domain "for the purpose of parks, recreation and the construction of moderate income housing" at the same time the parcel was the subject of the plaintiffs' application for the comprehensive permit. The Court held that a municipalland taking, proper on its face, may be invalid because it was undertaken in bad faith and that, on the record in this case, which required the inference that the town, acting through its town meeting, was concerned only with blocking the plaintffs' development, there were sufficient undisputed facts to warrant judgment f6T the plaintiffs on the issue of the town's bad faith and, thus, the purported taidng was unlawful and void. The Court stated: ELIS & RELDSTEEL, LLP Board of Selectmen November 22, 2002 Page 2 Bad faith *in the use of the power of emin ent domain is not limited to action taken solely to benefit private interests. It includes the use of the power of eminent domain solely for a reason that is not proper, although the stated public purpose or purposes for the taking are plainly valid ones. For example, when a county took land for a training area for its police and fire ' loyees on which - CMP a city planned to construct a sewage treatment plant and, on the facts, the reason for the county's action was to prevent construction of the sewage treatment plant, the power of eminent domain was used in bad faith and the taking was invalid. Carroll Counjy v. Brem , 256 Ga. 281, 282 (1986). See Earth Management, Inc. v. Heard Cognty, 248 Ga. 442 (1981) (taking invalid when county commissioner took land for park in order to prevent construction of hazardous waste disposal facility). It is not easy to prove that particular municipal action was taken in bad faith. This is particularly true where the significant event is an affirinative vote (here at least a two-d-tirds vote) of the persons voting at a town meeting on a motion to take a particular parcel of land. Challenges to town meeting action based on a claim that unlawful, improper, or erroneous reasons were advanced at town meeting or elsewhere in support of the challenged action have been unsuccessful, (citations omitted). We should not easily attribute improper motives to a town, and to its citizens voting at town meeting, if there were valid reasons that would have supported the town's action. In determining the state of mind of a person or group of persons� we consider not only what they havesaid but we also draw inferences concerning their intentions from what they have done and what they have not done. Although the problem of proof of a municipal corporation's bad faith is more difficult than the problem of such proof 'with respect to a business corporation, the relevant principles are the. same. Recognition in our cases that a bad faith land taking would be unlawfdI inevitably as . si irn e --s that- it would be possible to prove the bad faith of a town. TJRB-ELIS & FIELDSTEEL, LLP Board of Selectmen November 22, 2002 Page 3 There are certain motives or reasons that would be unlawful if they were the dominant reasons for the town's taking. - Clearly, taking land solely to block* G.L. c. 40B, § 2 1, low or moderate income housing would be improper. To have taken the site involved in this case to prevent the impact.of the proposed development on the water, sewer, traffic and other pro . blems of the lown would not have been action in good faith. , Ilie town was not barring other residential development on these grounds. There was another larger development for which a comprehensive permit was sought under G.L. c. 40B at about the same time, and the town did not try to take that property. Problems with what is now called the "infrastrticture" of the town might have warranted the denial of the comprehensive permit as reasonable and consistent with local needs (G.L. c. 40B, § § 21 J, 23), but the taldng (an indirect and unfairly selective attack on the problem) could not be justified on those grounds. The only valid justification, in the circumstances, for the taking would be that the town tuly intended that the land should be. used for the purposes for which it was taken. The record is clear that in re . cent years the town had studied its needs for parks and recreation and that neither the Center Street site nor any parcel in the general vicinity of that site had been considered for acquisition for park or recreational uses. There is no indication in the record that before the plaintiffs' proposal was announced any town board was seeking toprovide low and moderate income housing on or near the site. The matter of taking the subject site came forward only when the plaintiffs' proposal became known. Although not controlling, the absence of gny 12rior town interest in the- site or its neighborhood is instructive on the matter of good faith. (emphasis supplied) The manner in which thetown dealt with the attempted acquisition of the subject parcel was not in accord with its -usual practices. The town agencies, such as the housing authority, recreation commission, conservation commission and planIn g board, that were responsible for town activities in the areas for which the land was to be taken, were not consulted, as they normally would have been, either as to the merits or feasibility of the proposed use or the URBELIS & FIELDSTEEL, LLP Board of Selectmen November 22, 2002 Page 4 cost of any such use. The purposes for which the site was to be taken were not known to the town's finance committee, in Burlington called the ways and means committee, or to the town's capital budget committee, prior to the September 23 town meeting. Those purposes for which the taking was to be proposed were developed by the selectmen and town counsel within minutes before the commen emei3 of the town mecting. The record requires the inference that the town, acting through its town meeting, was concerned only with blocking the plaintiffs' development. We see no dispute as to any material facts barring an award of summary judgment on this point. The public purposes for which the site purportedly was to be taken were not purposes for which the town intended in good faith to take and use the property. They were selected as a device in the erroneous belief that, as generally lawful public purposes, tbey would make the taking proper. The presentation by the chairman of the board of selectmen of the motion under the Se'ptember 23 warrant article shows beyond question that the town meeting was being asked to consider the motion, not on the merits of the a ' cquisition of the site for uses stated in the motion, but to bar the plaintiffs' development. The town is not bound by the statements of the chairman of the board of selectmen, nor are those statements admissions that may be used gain t the town. The town is bound, however, when, after hearing the chairman's uncontested remarks and without any consideration by any town agency or the town meeting itself of the merits or the relative merits of the acquisition of the site for the purposes stated, the town meeting voted to take the property. Although the trial court decided that the Town and the Board of Selectmen were liable for violating GI. chapter 12, .'Section I II (Massachusetts Civil Rights Act), the Supreme Judicial Court - decided that "[a]lthough the purported taking of the plaintiffs' property was unlawful because done in bad faith, the taking did not itself interf�re or attempt to interfere with the plamitiffs' rights by coercion." Since such coercion is a requirement for liability under the Massachusetts statute, the Court decided there were material disputed facts with regard to URBELIS & FmLDSTEEL, LLP Board of Selectmen November 22, 2002 Page 5 coercion, so the issue was returned to the trial court. The trial court judge had deferred consideration of the plaintiffs' claim against the Town and the Selectmen based on a violation of the federal Civil Rights Act, 42 U.S.C.; Section 1983 (whichhas no. similar coercion requirements) so that issue was not before the Supreme Judicial Court. Please call if you have any questions. Very truly yours, Thomas J. &�rbeh�! TJTJ/Iah cc: Mark Rees Joyce Bradshaw Charles Salisbury