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Miscellaneous - 810-812 Salem Street (2)
9618ding 1340D Applicatioft filed or�� f licaring -21 due on: / 1 Decision due on: � ?—?. - ZBA 4 8 4 I `.I.1. -..IC .�.�.. Date . TOWN OF NORTH ANDOVER RECEIPT This certifies that .3. A., ...... . .............. has paid .07,.7�}�.. ,. .....���.��.. ...........G�.O..l)..�7.'..�?.� for )", d ..... 1.....P__....1.��.....�� .'�F• (E'g'.`5.....� sl ...��..1. . 7r t�P�vt .............................................. Received by ....7144-! ... Department ................... WHITE: Applicant CANARY: Department PINK: Treasurer ZBA 4 8 5 T A Date -1-1-7-J.& .... TOWN OF NORTH ANDOVER RECEIPT This certifies that .f t,9 11 .. P.a. e - has paid. . 1.13........ fork es.. V P.C.. A e'... Received by .... ............................................................ Department............. �--6A . ............................................................... WHITE: Applicant CANARY: Department PINK: Treasurer ZBA 486 Date . ...... TOWN OF NORTH ANDOVER RECEIPT This certifies that rm, haspaid .4.. .... ~�k ...... 1.6-35 ........................................... for ..... ...... ................................................................ Receivedby ...... 7A .... .................................................... Department........ 2,6-A ..................................................................... WHITE: Applicant CANARY: Department PINK Treasurer i Town of North Andover ZONING BO Town Q Albert P. Manzi III, .Esq. Cbairma�r �-: OF APPEALS i� � Ellen P. McIntyre, Vice-Cljairmar �` Richard J. Byers, Esq. C1,1, C4,,LID D. LaGrasse ".�Lr 07r� 7� 2�.. e�LDavid R. Webster o p'6 Ax-miate Members Thomas D. Ippolito Richard M. Vaillancourt'� ° •" 9 i Daniel S. Braese, Es O°1*.o•�r' y 5CMUS Legal Notice North Andover, Board of Appeals Notice is hereby given that the North Andover Zoning Board of Appeals will h hearing at the North Andover High School Lecture Hall, 430 Osgood Street old a public on Tuesday the 18th of December, 2007 at 7.30 PM to all North Andover, MA John Carroll, c% Howard P. Speicher, Davis Maim & D'Agostine P.S., One B Parties interested in the application of Boston, MA 02108, for premises at: 810 oston Place, Andover, MA requesting a dimensional Variance fromaSect on Ice, Paragraph 65, Parcel 15-1 Buildable Area) and Table 2 of the Zoning Bylaw for relief from the), North riverfront areas in order to construct a single flaw d g aph 7.1.1 (Contiguous setback requirements for Paragraph 7.1.1 and Table 2 of the Zoning Bylaw that Section 7.1.1 finding from Section 7, (Contiguous Buildable Area) does not include "RiVerfront Area,, as a "wetland resource area". Said premise affected is property with frontage on the North side of Salem Street zoning district. within the R-3 Plans are available for review at the office of the Board of Appeals office 16 Building 20, Suite 2-36, North Andover, MA 01845 Monday through Frida 00 Osgood Street, 8:30AM to 4:30PM. Friday during the hours of By order of the Board of Appeals Albert P. Manzi, III, Chairman Published in the Eagle -Tribune on December 3 & December 10, 2007. Legalnotice 2007-023. M65P15-1. 1600 OsgoodStreet, Building 20 -Suite 2_36 1011 1 Andover, Massachusetts 01845 Fax - 978-688-9542 Phone - 978-688.9541 Web - �t�n-w, tt�W110hiorthandover.com FOR ,7, Z� A.M. DATE TIME._P.M. M ❑FAX' PHONE ❑ MOBILE N .- AREA COOE NUMBER EXTENSION BALL MES SAGE CAMfr T©3 �? SEE SCI i°- VttANTB Tal, ' SEEYQU ": NE S. FORM 4003 NOTES___ x q 7c �� Post -it® Fax �,Nvotero�767, DatehFro �' Pamoo./Dent m in A_ Fax # Phone # / q c� ����� 01�3 Fax# ����8'? 1J�1 LEGAL NOTICE LEGAL NOTICE NORTH ANDOVER BOARD OF APPEALS Notice is hereby given that the North Andover Zoning Board of App will hold a public hearing at the North Andover High School Lecture Hall430 Osgood Street, North Andover, I of Decembon er, 2007 at 7:30 pm o al partes interested in the application of John Car- roll, c/o Howard P. Spe- icher, Davis Malm & D'Agostme P.S., One Boston Place, Boston, MA 02108, for premises at: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1), North Andover, lover, nal requesting Variance from Section 7, i Paragraph 7.1 -1 (Contigu- , ous Buildable Area). and Table 2 of the Zoning �'Bylaw for relief from the setback requirements for riverfront areas in order to construct a single family dwelling, or a Finding from Section 7, Paragraph 7.1.1 and Table 2 of the Zoning Bylaw that Section 7.1.1 (Contiguouild- s able Area) ous include "Riverfront Area" as a "wetland resource area". Said premise is property with frontage on the North side of Salem Street within the R-, 3 zoning district. . Plans are available for review at the offfice Of Board of Appeals 1600 Osgood Street, Building 20, Suite 2-36,; North Andover, MA 0.,1845 Monday through Friday during the hours of� 8:30AM to 4:30PM. By order of the Board of Appeals Albert P. Manzi, III, I Chairman Ef —12/3 12,10/07 /I Albert P. Manzi 111, Esq. Chairman Ellen P. McIntyre, l tee -Chairman Richard J. Byers, Esq. Clerk Joseph D. LaGrasse David R. Webster Associate Members Thomas D. Ippolito Richard M. Vaillancourt Daniel S. Braese, Esq. Town Of North ArndOVer Town Clerk Time Stamp ZONING BOARD OF APPEALS -; ^ " `�� C) 7 Any appeal shall be filed within Notice of Decision (20) days after the date of filing Year 2007 of this notice in the office of the Town Clerk, per Mass. Gen. L. ch. j fx� 1rrt� 7Il CIW Viei� a ,i LI' 0 i 40A, §17 Property at: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1) NAME: John Carroll, c/o Howard P. Speicher, HEARING(S): December 18, 2007 Davis Maim & D'Agostine P.S., One Boston Place, Boston, MA 02108 ADDRESS: 810, Lot 15-1, Salem Street PETITION: 2007-023 North Andover, MA 01845 TYPING DATE: December 27, 2007 The North Andover Board of Appeals held a public hearing at its regular meeting at the North Andover High School Lecture Hall, 430 Osgood Street, North Andover, MA on Tuesday the 18th of December, 2007 at 7:30 PM upon the application of John Carroll, c/o Howard P. Speicher, Davis Maim & D'Agostine P.S., One Boston Place, Boston, MA 02108, for premises at: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1), North Andover, MA requesting a dimensional Variance from Section 7, Paragraph 7. 1.1 (Contiguous Buildable Area) and Table 2 of the Zoning Bylaw for relief from the setback requirements for riverfront areas in order to construct a single family dwelling; or a Finding from Section 7, Paragraph 7.1.1 and Table 2 of the Zoning Bylaw that Section 7.1.1 (Contiguous Buildable Area) does not include "Riverfront Area" as a "wetland resource area". Said premise affected is property with frontage on the North side of Salem Street within the R-3 zoning district. Legal notices were sent to all names on the abutter's list and were published in the Eagle -Tribune, a newspaper of general circulation in the Town of North Andover, on December 3 & December 10, 2007. The following voting members were present: Joseph D. LaGrasse, Richard J. Byers, Albert P. Manzi, III, David R. Webster, and Richard M. Vaillancourt. The following non-voting members were present: Thomas D. Ippolito and Daniel S. Braese. Upon a motion by Richard J. Byers and 2" d by Joseph D. LaGrasse, the Board voted to uphold the Inspector of Buildings and Deny the Finding from Section 7, Paragraph 7. 1.1 and Table 2 of the Zoning Bylaw that Section 7. 1.1 (Contiguous Buildable Area) does not include "Riverfront Area" as a "wetland resource area"; and upon a motion by Richard J. Byers and 2"d by Joseph D. LaGrasse, the Board voted to GRANT a dimensional Variance from Section 7, Paragraph 7. 1.1 (Contiguous Buildable Area) and Table 2 of the Zoning Bylaw for relief of 18,750 sq. ft. from the setback requirements for riverfront areas in order to construct a single family dwelling per: Site: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1), North Andover, MA 10845 Site Plan Title: Plan of Land in North Andover, Massachusetts, prepared for, Helen J. St. Cyr, 7-1/2 Beverly Street, Methuen, Massachusetts, Date (& Revised Dates): November 24, 2006, Rev.: February 6, 2007 Registered Professional Land Surveyor: Stephen E. Stapinski, R.L.S. #29876, Merrimack Engineering Services, 66 Park Street, Andover, Massachusetts 0 18 10 Sheet/Drawing: Registry of Deeds, Northern District of Essex SS, Received and Recorded, On 2-9, 2007 Plan No. 15629 With the following condition: 1. The single-family dwelling and lot shall be developed according to the Conservation Commission Order of Conditions issued 7/2/07 under DEP File Number 242-1302. Page 1 of 2 1600 Osgood Street, Building 20 - Suite 2-36, North Andover, Massachusetts 01845 Phone - 978-688-9541 Fax - 978-688-9542 Web - www.townofnorthandover.com Albert P. Manzi 1II, Esq. Chairman Ellen P. McIntyre-, 1/7re-Chairman Richard J. Byers, Esq. Clerk Joseph D. LaGrasse David R. 'Webster Associate Member. Thomas D. Ippolito Richard Al. Vaillancourt Daniel S. Braese, Esq. r Town of North Andover ZONING BOARD OF APPEALS O't' 7 Jti:: -3 PI it Town Clerk Time Stamp Voting in favor: Joseph D. LaGrasse, Richard J. Byers, Albert P. Manzi, III, David R. Webster, and Richard M. Vaillancourt. The Board finds that Section 7.1.1 "Contiguous Buildable Area (CBA) As of April 28, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area..." does include Lot 15-1 Salem Street (Map 65, Parcel 15-1), since the parcel was created in 2007 and was registered at the Essex North Registry of Deeds in the above cited Plan of Land on 2-9-2007. The Board finds that the "Preliminary Site Plan, in, North Andover, Massachusetts, prepared for, John Carroll, 1501 Main Street — Unit # 15, Tewksbury, Massachusetts 01876, date: February 9, 2007, [by] Merrimack Engineering Services...", submitted as part of application 2007-023, shows that the proposed single-family dwelling will be located in the same area on Lot 15-1 as the razed barn. Therefore, owing to this circumstance relating to the pre-existing disturbed soil conditions of Lot 15-1, Map 65, Parcel 15-1, (previously known as 812 Salem Street Map 65, Parcel 15) especially affects this land but does not affect generally the Residential 3 zoning district in which it is located. The Board finds that a literal enforcement of the provisions of Paragraph 7.1.1 & Table 2 would involve substantial hardship, financial or otherwise, to the petitioner since the 200' setback from Mosquito Brook includes all of Lot 15-1. The Board finds that there was no written or spoken opposition. The Board finds that the proposed single-family dwelling will be built on uplands according to the Conservation Commission Order of Condition DEP File Number 242-1302. The Board finds that desirable relief may be granted pursuant to Section 10, Paragraph 10.4 without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the North Andover Bylaw. Note: 1. This decision shall not be in effect until a copy of this decision is recorded at the Essex County Registry of Deeds, Northern District at the applicant's expense. 2. The granting of the Variance and/or Special Permit as requested by the applicant does not necessarily ensure the granting of a building permit as the applicant must abide by all applicable local, state, and federal building codes and regulations, prior to the issuance of a building permit as required by the Inspector of Buildings. Furthermore, if the rights authorized by the Variance are not exercised within one (1) year of the date of the grant, it shall lapse, and may be re-established only after notice, and a new hearing. Furthermore, if a Special Permit granted under the provisions contained herein shall be deemed to have lapsed after a two (2) year period from the date on which the Special Permit was granted unless substantial use or construction has commenced, it shall lapse and may be re-established only after notice, and a new hearing. No h Andover Zoning oard A Appeals bert P. Manzi, 111, Esq., Chairman Richard J. Byers, Esq., Clerk Joseph D. LaGrasse David R. Webster Associate Member Richard M. Vaillancourt Decision 2007-023. M65P15-1. Page 2 of 2 1600 Osgood St., Bldg. 20, Suite 2-36, North Andover, Ma 0184 / 5 Ph. — 978-688-9541 / Fax — 978.688-9542 / Web — www.townofnoWiandover.com 7 Jti:: -3 PI it Town Clerk Time Stamp Voting in favor: Joseph D. LaGrasse, Richard J. Byers, Albert P. Manzi, III, David R. Webster, and Richard M. Vaillancourt. The Board finds that Section 7.1.1 "Contiguous Buildable Area (CBA) As of April 28, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area..." does include Lot 15-1 Salem Street (Map 65, Parcel 15-1), since the parcel was created in 2007 and was registered at the Essex North Registry of Deeds in the above cited Plan of Land on 2-9-2007. The Board finds that the "Preliminary Site Plan, in, North Andover, Massachusetts, prepared for, John Carroll, 1501 Main Street — Unit # 15, Tewksbury, Massachusetts 01876, date: February 9, 2007, [by] Merrimack Engineering Services...", submitted as part of application 2007-023, shows that the proposed single-family dwelling will be located in the same area on Lot 15-1 as the razed barn. Therefore, owing to this circumstance relating to the pre-existing disturbed soil conditions of Lot 15-1, Map 65, Parcel 15-1, (previously known as 812 Salem Street Map 65, Parcel 15) especially affects this land but does not affect generally the Residential 3 zoning district in which it is located. The Board finds that a literal enforcement of the provisions of Paragraph 7.1.1 & Table 2 would involve substantial hardship, financial or otherwise, to the petitioner since the 200' setback from Mosquito Brook includes all of Lot 15-1. The Board finds that there was no written or spoken opposition. The Board finds that the proposed single-family dwelling will be built on uplands according to the Conservation Commission Order of Condition DEP File Number 242-1302. The Board finds that desirable relief may be granted pursuant to Section 10, Paragraph 10.4 without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the North Andover Bylaw. Note: 1. This decision shall not be in effect until a copy of this decision is recorded at the Essex County Registry of Deeds, Northern District at the applicant's expense. 2. The granting of the Variance and/or Special Permit as requested by the applicant does not necessarily ensure the granting of a building permit as the applicant must abide by all applicable local, state, and federal building codes and regulations, prior to the issuance of a building permit as required by the Inspector of Buildings. Furthermore, if the rights authorized by the Variance are not exercised within one (1) year of the date of the grant, it shall lapse, and may be re-established only after notice, and a new hearing. Furthermore, if a Special Permit granted under the provisions contained herein shall be deemed to have lapsed after a two (2) year period from the date on which the Special Permit was granted unless substantial use or construction has commenced, it shall lapse and may be re-established only after notice, and a new hearing. No h Andover Zoning oard A Appeals bert P. Manzi, 111, Esq., Chairman Richard J. Byers, Esq., Clerk Joseph D. LaGrasse David R. Webster Associate Member Richard M. Vaillancourt Decision 2007-023. M65P15-1. Page 2 of 2 1600 Osgood St., Bldg. 20, Suite 2-36, North Andover, Ma 0184 / 5 Ph. — 978-688-9541 / Fax — 978.688-9542 / Web — www.townofnoWiandover.com Bk 11040 Ps 2 01565 01-23—'2008 ei 0? a 590 COVER, SHEET THIS IS THE FIRST .PAGE OF THIS DOCUMENT DO NOT REMOVE THIS DOCUMENT WAS RECEIVED THROUGH THE MAILING PROCESS DJAN 2 d CUUU BOARD OF APPEALS D JAN M cWd BOARD OF APPEALS � 007- D 1 Essex North Registry of Deeds Robert E Kelley, Register 354 Merrimack St. Suite 304 Lawrence, MA 01843 (978) 683-2745 www.lawrencedeeds.com Town of North Andover Town Clerk'Time Stamp ZONING BOARD OF APPEALS Albert P. fvlanzi III, Esq. Chairman ` Ellen P. -McIntyre, 1%7re-Cbairvian f 4 RTF o �,,to " Richard I. Beers, Esq. Clerk a�? e.� + joseph D. LaGrasse This is to certify that twenty (20) - David R. \k-ebster have elapsed from date of decisi A.uneiate Members without filling of n appeal, i Thomas D. Ippolito Dat ` Richard M. VAlancourt Joy A. Bradshaw fs9S°s Daniel S. Braese, Esq. Town t3lerk SSACHUS Any appeal shall -be filed within Notice of Decision (20) days after the date of filing Year 2007 of this notice in the office of the Town Clerk, per Mass. Gen. L. ch. :.No �� N -a Ll: a t l�trur,l , ATTEST;_ . A True Copy Town Clerk; 4VA, 31 i Property at: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1) NAME: John Carroll, c/o Howard P. Speicher, HEARING(S): December 18, 2007 Davis Maim & D'Agostine P.S., One Boston Place, Boston, MA 02108 ADDRESS: 810, Lot 15-1, Salem Street PETITION: 2007-023 North Andover, MA 01845 TYPING DATE: December 27, 2007 The North Andover Board of Appeals held a public hearing at its regular meeting at the North Andover High School Lecture Hall, 430 Osgood Street, North Andover, MA on Tuesday the 18th of December, 2007 at 7:30 PM upon the application of John Carroll, c/o Howard P. Speicher, Davis Maim & D'Agostine P.S., One Boston Place, Boston, MA 02108, for premises at: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1), North Andover, MA requesting a dimensional Variance from Section 7, Paragraph 7. 1.1 (Contiguous Buildable Area) and Table 2 of the Zoning Bylaw for relief from the setback requirements for riverfront areas in order to construct a single family dwelling; or a Finding from Section 7, Paragraph 7. 1.1 and Table 2 of the Zoning Bylaw that Section 7. 1.1 (Contiguous Buildable Area) does not include "Riverfront Area" as a "wetland resource area". Said premise affected is property with frontage on the North side of Salem Street within the R-3 zoning district. Legal notices were sent to all names on the abutter's list and were published in the Eagle -Tribune, a newspaper of general circulation in the Town of North Andover, on December 3 & December 10, 2007. The following voting members were present: Joseph D. LaGrasse, Richard J. Byers, Albert P. Manzi, 111, David R. Webster, and Richard M. Vaillancourt. The following non-voting members were present: Thomas D. Ippolito and Daniel S. Braese. Upon a motion by Richard J. Byers and 2"d by Joseph D. LaGrasse, the Board voted to uphold the Inspector of Buildings and Deny the Finding from Section 7, Paragraph 7. 1.1 and Table 2 of the Zoning Bylaw that Section 7. 1.1 (Contiguous Buildable Area) does not include "Riverfront Area" as a "wetland resource area"; and upon a motion by Richard J. Byers and 2nd by Joseph D. LaGrasse, the Board voted to GRANT a dimensional Variance from Section 7, Paragraph 7. 1.1 (Contiguous Buildable Area) and Table 2 of the Zoning Bylaw for relief of 18,750 sq. ft. from the setback requirements for riverfront areas in order to construct a single family dwelling per: Site: 810, Lot 15-1, Salem Street (Map 65, Parcel 15-1), North Andover, MA 10845 Site Plan Title: Plan of Land in North Andover, Massachusetts, prepared for, Helen J. St. Cyr, 7-1/2 Beverly Street, Methuen, Massachusetts, Date (&•Revised Dates): November 24, 2006, Rev.: February 6, 2007 Registered Professional Land Surveyor: Stephen E. Stapinski, R.L.S. #29876, Merrimack Engineering Services, 66 Park Street, Andover, Massachusetts 01$10 Sheet/Drawing: Registry of Deeds, Northern District of Essex SS, Received and Recorded, On 2-9, 2007 Plan No: 15629 With the following condition: 1. The single-family dwelling and lot shall be developed according to the Conservation Commission Order of Conditions issued 7/2/07 under DEP File Number 242-1302. Page] of 2 1600 Osgood Strect, Building 20 -Suite 2-36, North Andover, Massachusetts 01845 Phone - 978-658-9541 Fax - 978-688-9542 Web - w�Nw townotnorthanciover.com :1lbert P. Manzi III, Esq. Chairman Ellen P. Mclnt- re, Vice -Chairman Richard J. Byers, Esq. C1erk Joseph D. LaGrasse David R. Webster .A sntiate Members Thomas D. Ippolito Richard M. Vaillancourt Daniel S. Braese, Esq Town of North Andover ZONING BOARD OF APPEALS r �ao sae o t A �• Y {u1 is r. - Voting in favor: Joseph D. LaGrasse, Richard J. Byers, Albert P. Manzi, 111, David R. Webster, and R chard�I M.Tme Stamp Vaillancourt. The Board finds that Section 7. 1.1 "Contiguous Buildable Area (CBA) As of April 28, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area..." does include Lot 15-1 Salem Street (Map 65, Parcel 15-1), since the parcel was created in 2007 and was registered at the Essex North Registry of Deeds in the above cited Plan of Land on 2-9-2007. The Board finds that the "Preliminary Site Plan, in, North Andover, Massachusetts, prepared for, John Carroll, 1501 Main Street — Unit # 15, Tewksbury, Massachusetts 01876, date: February 9, 2007, [by] Merrimack Engineering Services...", submitted as part of application 2007-023, shows that the proposed single-family dwelling will be located in the same area on Lot 15-1 as the razed barn. Therefore, owing to this circumstance relating to the pre-existing disturbed soil conditions of Lot 15-1, Map 65, Parcel 15-1, (previously known as 812 Salem Street Map 65, Parcel 15) especially affects this land but does not affect generally the Residential 3 zoning district in which it is located. The Board finds that a literal enforcement of the provisions of Paragraph 7. 1.1 & Table 2 would involve substantial hardship, financial or otherwise, to the petitioner since the 200' setback from Mosquito Brook includes all of Lot 15-1. The Board finds that there was no written or spoken opposition. The Board finds that the proposed single-family dwelling will be built on uplands according to the Conservation Commission Order of Condition DEP File Number 242-1302. The Board finds that desirable relief may be granted pursuant to Section 10, Paragraph 10.4 without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the North Andover Bylaw. Note: 1. This decision shall not be in effect until a copy of this decision is recorded at the Essex County Registry of Deeds, Northern District at the applicant's expense. 2. The granting of the Variance and/or Special Permit as requested by the applicant does not necessarily ensure the granting of a building permit as the applicant must abide by all applicable local, state, and federal building codes and regulations, prior to the issuance of a building permit as required by the Inspector of Buildings. Furthermore, if the rights authorized by the Variance are not exercised within one (1) year of the date of the grant, it shall lapse, and may be re-established only after notice, and a new hearing. Furthermore, if a Special Permit granted under the provisions contained herein shall be deemed to have lapsed after a two (2) year period from the date on which the Special Permit was granted unless substantial use or construction has commenced, it shall lapse and may be re-established only after notice, and a new hearing. No h Andover ZoningBoard f Appeals bert P. Manzi, III, Esq., Chairman 'Richard J. Byers, Esq., Clerk Joseph D. LaGrasse David R. Webster Associate Member Richard M. Vaillancourt Decision 2007-023. M65P 15-1. Page 2 of 2 1600 Osgood St., Bldg. 20, Suite 2-36, North Andover, Ma 0184 / 5 Ph. — 978-688.9541 / Fax — 978.688-9542 / Web — www.townofnorthandover.com Printed:01E23-2008 ®T 9.59.11 Essex North Registry Robert F. Kelley Register Trans#: 9326 JOHN CARROLL OPer:CARMENT Book 11040 Page 2==Inst# 1565 ==== Ctl#: 12 Rec:1-23-2008 ® 9:59:04a NAND 810 LOT 15-1 SALEM ST DOC DESCRIPTION ---------_- --- TRANS AMT NOTICE --------- Surcharge CPA $20.00 50.00 recording fee 20.00 5.00 TECH FEE 50.00 5.00 Total fees: -- 75.00 Book 11040 Page 5==Inst# Ctl#: 13 Rec:1-23-2008 1566 ==-= ® NAND 812 LOT 15-2 SALEM ST 9:59:04a DOC DESCRIPTION. ---------- TRANS AMT NOTICE --------- Surcharge CPA $20.00 50.00 recording fee 5.00 TECH FEE 20.00 50.00 5.00 Total fees: --- 75.00 ** Total charges: 150.00 CHECK PM 1663 150.00 JAN. 2 a Mo D BOARD OF APPEALS ter n of -<� Town of North Andover Office of the Conservation Department Community Development and Services Division 27 Charles Street . North Andover, Massachusetts 01845 Alison McKay Conservation Administrator MEMORANDUM DATE: March 10, 2005 TO: Mark Rees, Town Manager CC: Board of Selectmen Heidi Griffin, Community Development Director NACC FROM: Alison McKay, Conservation Administrato(� Telephone (978) 688-9530 Fax (978) 688-9542 SUBJECT: North Andover Wetlands Protection Bylaw (Chapter 178 Code of North Andover and the Massachusetts Wetlands Protection Act (WPA) (M.G.L. Chapter 131, Section 40) This memorandum is being submitted as requested to outline the differences between the State Wetlands Protection Act ("the Act") and the local Wetlands Bylaw ("the Bylaw") Brief History of the WPA The MA WPA was adopted in 1972 and Massachusetts was the first state to adopt a statewide wetlands protection initiative. Since the adoption of this statute, the state regulatory authority, the Massachusetts Department of Environmental Protection (DEP) continues to amend and expand the regulations for better wetlands protection as this governing authority has recognized that the rapid pace of development continues to threaten wetland resources despite their efforts. In the Commonwealth, local conservation commissions accomplish 95% of wetlands protection. In a recent correspondence from the Commissioner of the DEP, Robert W. Golledge, Jr. entitled "A Commitment to Wetlands Protection", he states, "DEP is embracing innovative and carefully tailored approaches to environmental protection, and seeks to enhance its efforts by working together with its local partners". Further he states that "the responsibility for protection Of wetlands lies with us all, in individual actions and support of conservation commissions and the DEP is committed to allocating resources both to strengthen this partnership and to increase wetlands protection". BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Brief History of the North Andover Wetlands Protection Bylaw Even before the Act was adopted, some communities were protecting wetlands through zoning bylaws. The first North Andover Wetlands Protection Bylaw was voted on at the Town Meeting of May 4,1987 and was adopted by the Attorney General on ? (date a unknown). In as such, I have heard from many of my colleagues that The North Andover '' ry Wetlands Protection Bylaw has become a model Bylaw for many cities and towns throughout the Commonwealth. le Purpose & Regulatory Summary The purpose of the Act and the Bylaw is to protect wetlands resources and to ensure that beneficial functions and values of these resources are maintained because they serve as many public interests, which include the following: 8 Interests Protected under the WPA 1. Protection of public and private water supplies; 2. Protection of groundwater supply 3. Flood control; 4. Storm Damage Prevention; 5. Prevention of Pollution; 6. Protection of Fisheries; y 7. Protection Wildlife Habitat; 8. Land Containing Shellfish; *Additional Interests Protected under the Bylaw 9. Sedimentation & Erosion Control 10. Wildlife 11. Recreation These interests are protected by a "no net loss of wetlands" policy. Projects that affect wetlands are required to "avoid, minimize, and mitigate" impacts. Performance standards in the regulations define the threshold levels of environmental impacts that cannot be exceeded. The Wetlands Protection Act prohibits any "person"' from filling, excavation, or other alteration of the land surface, water levels, or vegetation in wetlands, floodplain, riverfront areas or other wetland resource areas, regardless of ownership, without a permit from the local Conservation Commission. The Act specifically regulates activities in or near wetland resource areas ' The term "person" shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof, administrative agency, public or quasi -public corporation or body, or any other legal entity or its legal representative, agents or assigns (Environmental Handbook for Massachusetts Conservation Commissioners, 1991, Chapter 13, Section 30). Chapter 17 OTHER LAWS ADMINISTERED LOCALLY Conservation Commissions become involved with other laws operating in their town or city for at least three reasons. The first is through directjurisdiction or conservation interest. Examples include earth removal projects, which often impact wetland resource areas, and "cluster" or "conservation" zoning projects, where the Commission is asked to help protect the common areas. The second is through interest in natural resources not usually protected through legal review by the Commission. For example, many Commissions care about trees; they need to know about the Public Shade TreeAct. The third reason is more complex, combining directjurisdiction under wetlands laws with concern for broader environmental impacts, and both in apolitical context. Chapter 40B housing projects, for example, put a lot of pressure on Commissions because most other local bodies are disabled by that law from making their wishes known. When these encounters occur, this chapter and the following (Other State and Federal Laws) will help Commissions understand what these not -so - familiar laws are all about, what their limitations are, and how they can be used to protect the environment. 17.1 Resource Protection 17.1.1 Conservation Aspects of Zoning Conservation Commissions should strive for zoning provisions that protect wetlands, floodplains, aquifers, and other natural resources of their communities. Water resources protection is discussed generally in Chapters 11 and 16. Chapters 12-14 cover the state Wetlands Protection Act, and Chapter 15 focuses on non -zoning wetlands bylaws/ordinances. HB § 18.10.2 discusses road classification and the state design standards for road reconstruction — areas closely related to resource protection, yet not covered by more familiar laws. 17.1.1.1 Tips on Environmental Zoning Provisions In addition to those protecting water resources, there are other specific zoning provisions of interest to Commissions because they can protect sensitive resources. For example, an "uplands" bylaw/ordinance such as that approved in Farrugia v. Board of Appeals of Marshfield, 14 Mass. App. Ct. 720 (1982), should be part of local zoning in every community except for the few that still protect wetlands through zoning (HB § 16.2.1). The aim of an uplands bylaw or ordinance is to use zoning power to prevent the creation of lots that have an inadequate amount of upland for construction by prohibiting the division of property into lots that are partly or entirely in wetlands, rather than waiting until the buyers of those lots come individually to the Conservation Commission. This local law requires a minimum amount of upland in every building lot. A version of such a bylaw/ordinance was approved by the Appeals Court in Zanghi v. Board ofAppeals of Bedford, 61 Mass. App. Ct. 82 (2004). The town had both floodplain and wetlands zoning overlay districts. A buildable lot, under the zoning, needed at least 26,000 square feet outside of these districts. The court found that the bylaw as applied did not deprive the landowner of all use of his lot and was not a "taking" under the Constitution. A somewhat different model, for communities lacking such districts, is found in HB §20.5.3. An increasing number of municipalities permit (and a few require) "clustering" of dwellings to save open space and protect wetlands and floodplains. A city or town may (but is not required to) adopt cluster zoning — often called "conservation zoning"— as an amendment to the local zoning code under the Zoning Act (GL. Ch. 40A §9). Cluster options allow the planning board (or other body designated to grant special permits under the zoning bylaw/ordinance) to issue a special permit. for residential projects with smaller lot areas and frontage than is otherwise required in that zoning district, provided the land saved is protected as permanent open space. Environmental Handbook for Massachusetts Conservation Commissioners 353 because the regulations were in place when he acquired the property. The Court also remanded the case to the state for a more detailed analysis of the Penn Central factors. The U.S. Supreme Court further confused the issue of regulatory takings in Tahoe -Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), where landowners challenged a moratorium on development that went on for many years. The Court ruled that the moratorium was "temporary" and did not constitute a taking even though no end was in sight. (The Massachusetts Supreme Judicial Court, by the way, did not agree, and ruled in 2004 that any building moratorium must have an end date (Zuckerman v. Town of Hadley, 442 Mass. 511).) In Zanghi v. Board of Appeals of Bedford, 61 Mass. App. Ct. 82 (2004), the court ruled that application of the town zoning, limiting development where wetlands or floodplains constitute more than 35 percent of the total area of a subdivision, was .not a taking although it prevented development of one lot out of 36 (see HB §§ 11.6.3 & 11.6.4). This decision constitutes a victory for "uplands bylaws or ordinances that have been passed by many communities (see sample in HB §20.5.3). Returning to the flooding issue, the Massachusetts courts recently found that a prohibition on residential development in the 100 -year floodplain within a coastal conservancy district did not constitute a taking of the plaintiff's land, even though she had acquired the property prior to establishment of the conservancy district. In Grenier v. Zoning Board of Appeals of Chatham, 62 Mass. App. Ct. 62 (2004), the Appeals Court first found that there was no "Lucas" taking because the lot had not lost all of its value and could be used for recreation or conservation purposes, or it could be sold to an abutter to enhance her/his land. The Court also examined whether the zoning advanced a legitimate state interest (it did) and whether its application to the plaintiff's property interfered with her reasonable investment -backed expectations (it did not). The Court determined that since the plaintiff had owned the property for about 10 years prior to establishment of the coastal conservancy district, she could have developed the property then, but did not do so. She could not now claim that the district interfered with any reasonable expectation to develop the property. On appeal of the Grenier decision, the state Supreme Judicial Court went even further. This important case is Gove v. Zoning Board of Appeals of Chatham, 444 Mass. 754 (2005). (Gove was the landowner; Grenier hoped to buy the lot. See HB § 11.6.4 for both cases.) The court seems to have returned to its pre -Lucas position that a large loss of value is not a taking where the property poses a threat to public health and safety. (The more general threats posed by destruction of wetlands have never excited the court as much as the visible and obvious threat of flood waters.) The court ruled that a residual value of $23,000 if the lot could not be developed was sufficient to take the case out of the Lucas "no economic value" category. It seemed to regard Grenier's offer of $193,000 as dubious and Ms. Gove's appraiser's estimate of value at $246,000 as "fallacious." The decision downplayed the importance of the Lopes decision and characterized the conservancy rules as "a type of limited protection against harmful private land use that routinely has withstood allegations of regulatory takings." 11.5.3 Advice for Conservation Commissions For most Conservation Commissions, the taking issue is more a matter of wild threats than of settled law. Following the proper procedures will generally suffice to protect the Commission. In exercising the public police power under the Wetlands Protection Act or a local bylaw/ordinance, the Commission must meet three standards: • Follow all the procedures set out in the Act and regulations, or in the bylaw/ordinance and its regulations, so that the landowner cannot argue that there was not "due process of law." • Be prepared to show how its decisions will mitigate dangers to public health (such as water pollution) or to safety (such as flooding), or to the general welfare (such as increasing the need for expensive public works). • Base its decisions on the values set out in the Act and regulations or the bylaw/ordinance. As an example of the last the Commission cannot require as a condition for a wetlands permit that the landowner permit public access to the land, because public access is not a goal of the law. This sensible approach was made the law of the land in the Nollan case cited earlier in this section. The U.S. Supreme Court held that a condition on a permit must directly relate to the values that the statute is intended to protect. In the Dolan case, also cited above, the Court further ruled that "exactions" (public benefits such as money payments or public access to private land) in permits must be roughly proportional to the impact of the project. This test would apply to an Order of Conditions or a bylaw/ordinance permit requiring a conservation restriction on some of the applicant's property. Commissions should note that the Department of Environmental Protection (DEP) will forbid 182 Environmental Handbook for Massachusetts Conservation Commissioners the court did not review the impact of the bylaw on the landowner's property taken as a whole: instead, it focused only on the wetlands portion. The tone of the opinion also shows that the court felt the town had given MacGibbon the run- around in two earlier cases decided in 1964 (347 Mass. 690) and 1970 (356 Mass. 635) concerning the same piece of land. By contrast, in the floodplain zoning cases discussed below, the court was able to either find a distinct hazard in filling in the floodplain, or some residual economic use of the land. Two wetlands zoning cases are instructive. In Farrugia v. Board of Appeals of Marshfield, 14 Mass. App. Ct. 720 (1982), the court reviewed an "uplands" bylaw of the sort which should be added to every local zoning code. The bylaw required that every building lot in either the coastal or inland wetland zoning districts contain a certain acreage of non -wetlands. Using percentages of the land (e.g., 50 percent of the lot) can be unfair to owners of large lots and yet fail to protect adequate building areas on small lots. In the use of square footages, it may be instructive to look at the requirements of Title 5 of the State Environmental Code for installing septic systems over "sensitive areas": one-quarter acre per bedroom. Although this requirement applies under Title 5 only to lots over aquifers or near private wells, it is not unreasonable to regard all groundwater within the municipality as "sensitive." A smaller protected area can be required where the lots are to be sewered. The court upheld the town's denial of a permit on the grounds that the applicant did not have the required acreage of upland. Further, although the zoning map incorrectly depicted the wetland in question, the Appeals Court upheld the bylaw by use of the textual definition of the wetland district and the procedure set out in the bylaw for finding the boundary when questions arose. In Fogelman v. Town of Chatham, 15 Mass. App. Ct. 585 (1983), the Appeals Court approved a setback imposed by a local zoning district, even though the zoning map was uncertain in its boundaries and several botanists disagreed on the proper definition of the wetland. In a case involving a church proposing to build on a wetland (Southern New England Conference) (HB § 11.6.2), the state Appeals Court rejected the notion that the exemption in the Zoning Act for religious institutions prevented wetlands regulation under a wetlands zoning bylaw. Most authorities agree that the state. counties/councils of government and the federal government are exempt from any local bylaw or ordinance when working on their own land See County Commissioners of Bristol County v. Conservation Commission of Dartmouth, 380 Mass. 7606 (1980) and the discussion in HB § 15.4.4. Most communities no longer use zoning to protect wetlands. In such cases, the separate uplands zoning bylaw or ordinance discussed above is essential. Otherwise the' lanning board cannot refuse to approve wetlands as building lots in a subdivision, and the building inspector may issue building permits for such lots. Non -zoning wetlands bylaws and ordinances are discussed at length in Chapter 15. A model uplands bylaw/ordinance is found in HB §20.5.3. 16.2.2 Zoning and Non -Zoning Approaches to Local Floodplain Protection 16.2.2.1 Why Use Zoning? The Massachusetts Wetlands Protection Act protects both floodplains and wetlands. The following floodplains are regulated by the Wetlands Protection Act regulations: Bordering Land Subject to Flooding (BLSF), Isolated Land Subject to Flooding (ILSF), and Land Subject to Coastal Storm Flowage (LSCSF). However, protection on the municipal level is often split. Although most communities use non -zoning wetlands bylaws and ordinances, about 80 percent of the state's municipalities control floodplains through zoning. These disparities can be confusing. The merits of local controls over wetlands are discussed in Chapter 15. There are two reasons why most floodplain bylaws/ordinances are in the zoning code. First, the Zoning Act (G.L. Ch. 40A) specifically encourages communities to prohibit or regulate use of land subject to flooding. Second, the National Flood Insurance Program (NFIP), in which most Massachusetts communities participate, specifically requires municipalities to adopt a bylaw or ordinance to regulate construction in floodplains as a condition of having flood insurance available for sale in that municipality. The NFIP is administered by the Federal Emergency Management Agency (FEMA). FEMA has historically looked to zoning, rather than general bylaws/ordinances or even state statutes to minimize damage to buildings to (see HB § 16.2.3). Construction of buildings in floodplains is also regulated by the Massachusetts State Building Code. As a result, development in floodplains is divided among the state Wetlands Protection Act, the State Building Code, and the local zoning code (administered primarily by the building inspector). 324 Environmental Handbook for Massachusetts Conservation Commissioners Baker v. Department of Environmental Protection, 39 Mass. App. Ct. 444 (1995). Upheld DEP Wetlands Protection Act filing fees as reasonable. ' DeSanctis v. Lynn Water & Sewer Commission, 432 Mass. 112 (1996). Landowner could not recover for water on damage his g property, where he was more than 50 percent liable for the damage due to his own admitted illegal filling and alteration of the wetlands on the property. Zora Enterprises, Inc. v. Commonwealth, 46 Mass. App. Ct. 1120 (1999). Three -and -a -half-year delay in appeals process was not "temporary taking" of property, since DEP time lines were a self-imposed standard (unpublished opinion (text at 98-P-195), supposedly was not precedent). Conservation Commission of Falmouth v. Pacheco, 49 Mass. App. Ct. 737 (2000). Landowner could not question Commission's jurisdiction over wetland where he failed to appeal that issue. 11.6.3 Zoning and Non -Zoning Wetlands Bylaw/Ordinance Cases Golden v Board of Selectmen of Falmouth, 358 Mass. 519 (1970). Upheld use of local zoning to protect wetlands. MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 (1976). Denial of all economic use of land under local wetlands zoning is a regulatory taking requiring just compensation of owner. Lovequist v. Conservation Commission of Town of Dennis, 379 Mass. 7 (1979). Local non -zoning wetlands bylaws and ordinances are permissible in addition to the state wetlands law. Farrugia v. Board.of Appeals of Marshfield, 14 Mass. App. Ct. 720 (1982). Approved use of local "uplands" bylaw requiring minimum non -wetlands area in each buildable lot. Fogelman v. Town of Chatham, 15 Mass. App. Ct. 585 (1983). Local wetlands zoning bylaw was upheld in spite of uncertain boundaries on a zoning map. DeGrace v. Conservation Commission of Harwich, 31 Mass. App. Ct. 132 (1991). To be enforceable, a local wetlands bylaw must be more stringent than the state law. T.D.J. Development Corp. v. Conservation Commission of North Andover, 36 Mass. App. Ct. 124 (1994). Upheld stiffer provisions of the local bylaw, including a 50 -foot setback imposed to protect water quality and wildlife habitat. Lopes v. City of Peabody, 417 Mass. 299 (1994). Denial of all economic use of land is a regulatory taking requiring just compensation to the landowner. Fafard v. Conservation Commission of Reading, 41 Mass. App. Ct. 565 (1996). A Commission may not require a wider buffer area than that set out in the town bylaw. Also permit decisions should not depend upon the past behavior of an applicant (unpublished decision, supposedly not precedent). FIC Homes of Blackstone, Inc. v. Conservation Commission of Blackstone, 41 Mass. App. Ct. 681 (1996). Upheld a 100 -foot setback in a bylaw causing loss of a building lot in a subdivision. Made some attempt to quantify financial loss to the landowner in calculations favorable to the town. Fafard v. Conservation Commission of Barnstable, 432 Mass. 194 (2000). Commission denial of a permit for a large pier on grounds of interference with recreation was upheld though the project had state Waterways (Chapter 91) approval. Also, municipalities cannot assert "public trust" protection unless expressly authorized by the Commonwealth. Dennis Housing Corp v. Zoning Board of Appeals of Dennis, 439 Mass. 71 (2003). Town's historic district committee is a local board whose requirements can be overridden by the zoning board of appeals as part of the GL. Ch. 40B comprehensive permit process. The court Environmental Handbook for Massachusetts Conservation Commissioners 185 reiterated that Chapter 40B does not override Conservation Commission administration ofthe state Wetlands Protection Act, but does override local wetlands bylaw requirements. Dubuque v. Conservation Commission of Barnstable, 58 Mass. App. Ct. 824 (2003). Review denied 440 Mass. 1106 (2003). The Conservation Commission's denial of a pier that did not meet bylaw requirements was upheld because it was not arbitrary or capricious, and was supported by substantial evidence. Fieldstone Meadows Development Corp. v. Conservation Commission of Andover, 62 Mass. App. Ct. 265 (2004). Denial based solely on an unwritten 25 -foot no -build policy and not on a bylaw or regulation is not valid. Friedman v. Conservation Commission of Edgartown, 62 Mass. App. Ct. 539 (2004). Plaintiffs cannot rely solely on their status as "abutters" to challenge a bylaw decision using the certiorari statute (CSL. Ch. 249 §4); they must show that they have suffered some injury different in nature or magnitude from that of the general public. Zanghi'w. Board of Appeals of Wd-f6;r6'61 Mass. App. Ct. (2004). Review denied 442 Mass. 1106 (2004). Town bylaw, excluding a certain percent of floodplains and wetlands in calculating minimum square footage for building lots is not a taking of private property. Rodgers v. Conservation Commission of Barnstable, 67 Mass. App. Ct. (2006), confirming Dubuque v. Conservation Commission of Barnstable, 58 Mass. App. Ct. 824 (2003), review denied 440 Mass. 1106 (2003). .Gaovanella v "Conservation.°Commission of Ashland, 447 Mass. 7,70(2Where a contiguous, lot contains a " useable house; demal'of a permit"`to build on a second lot in same ownership is not a taking. 11.6.4 Selected Floodplain Cases Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221 (1972). Leading case upholding local regulation of floodplains, in spite of significant loss in economic value of the land. S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477 (1980). Contribution of restricted floodplain area to required lot size gave floodplain area economic value. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). U.S. Supreme Court, reviewing coastal flooding case, ruled that depriving a landowner of all economic value of land constitutes a regulatory taking requiring compensation. _ Leonard v. Town of Brimfield, 423 Mass. 152 (1996). Town's refusal to allow development on a floodplain constituting ten of owner's sixteen acres was not a regulatory taking. Secured Investment Corp. v. Young, 5 LCR 224 (1997). Land court decision upholding denial of a special permit for subdivision in floodplain. Grenier v. Zoning Board of Appeals of Chatham, 62 Mass. App. 62 (2004). See Gove case below. Z`anghi :v B'oardof Appeals of Bedford;, 6`1 Mass. App. Ct. 82 (2004). Review denied 442 Mass. 1106 (2004). Floodplain/wetlands zoning ordinance requiring minimum lot size excluding a certain percent of wetlands and floodplains did not constitute a taking when plaintiff's undersized lot could be combined with others he owned. Gove v. Zoning Board of Appeals of Chatham, 444 Mass. 754 (2005), confirming Grenier v. Zoning Board of Appeals of Chatham, 62 Mass. App. 62 (2004). Coastal conservancy district prohibiting residential development did not constitute a taking in spite of loss of value; the plaintiff could use her property for recreational or conservation purposes, or could sell it to an abutter. 186 Environmental Handbook for Massachusetts Conservation Commissioners 13.1.3 Overlapping and Abutting Resource Areas Some land is composed of multiple resource areas. For example, a Barrier Beach may contain Dunes, Salt Marshes or Land Under Salt Ponds as well as Coastal Beaches. Resource areas may also be found within or overlap other resource areas. Bordering Land Subject to Flooding and Bordering Vegetated Wetlands (BVW) often occur in the Riverfront Area (see HB § 13.3.6.5). Near the coast inland resource areas such as Riverfront Areas may overlap Salt Marshes, Coastal Banks or other coastal resource areas. Vernal pools (HB § 14.3.6) may be found on Dunes. Where multiple resource areas occur it is important to check the regulations to determine which performance standards apply. Projects in Riverfront Areas must meet the performance standards for every other resource area that is present (3 10 CMR 10.58(4)(a# In portions of Land Under the Ocean that are beneath Anadromous/Catadromous Fish Runs, the regulations for the latter apply. The definition of "bordering" at 310 CMR 10.04 affords protection to a resource area touching another resource area that is touching a water body. For example, in coastal areas BVW frequently border Salt Marshes and are also found adjacent to Coastal Beaches, Banks, Dunes, or tidal flats. These BVW are subject to Commission jurisdiction. 13.1.4 Locating Boundaries As noted in HB § 13. 1.1 resource area boundaries establish the limit of the Conservation Commission's jurisdiction over a project site. Some resource areas, such as Isolated Land Subject to Flooding (ILSF), have a single boundary. Others have two. Bordering Vegetated Wetland (BVW), for example, has both an inner and an outer boundary. The way boundaries or edges are defined varies by resource area. For example: • The landward boundary of Salt Marsh is determined by a combination of the highest spring tide elevation of the year and predominant salt tolerant vegetation. • The lower boundary of an inland Bank is the Mean Annual Low Flow level. • The outer boundary of BVW is "the line within which 50 percent or more of the vegetation community consists of wetland indicator plants and saturated or inundated conditions exist." • The boundary of ILSF is determined either by engineering calculations or the perimeter of the largest observed or recorded volume of water in the area. • The edge of Bordering Land Subject to Flooding (BLSF) is the perimeter of the land surface that will be covered with water in a statistical 100 -year storm (mapped by FEMA for larger water bodies and waterways). Thus resource area boundaries may be variously determined by identification of vegetation or soil types, observation over time, calculation, or mapping. It is important for the Commission to become familiar with how each boundary is determined, learn how to interpret the information submitted by applicants, and when necessary, hire consultants to review the boundaries identified by the applicant. Resource area boundaries must be shown on project plans. The Commission may require that the boundaries be flagged in the field. If an applicant will not flag the boundary the Commission may find that insufficient information was provided to define the site and deny the project, provided the Order of Conditions specifies the information that is lacking and why it is necessary (3 10 CMR 10.05(6)(c)). 13.2 " Coastal Resource Areas 13.2.1 Introduction The Jones Act, passed by the Massachusetts Legislature in 1963, regulated activities in salt marshes. This was the first response to the huge losses of vegetated wetlands along the Atlantic coast. The Jones Act was ultimately incorporated into the comprehensive Wetlands Protection Act, and much stricter regulations adopted in 1978 and 1983. Coastal resource areas are the subject of Part II of the Wetlands Protection Act regulations (3 10 CMR 10.21-37). In addition, the Riverfront Area provisions at 310 CMR 10.58 apply to coastal rivers. Environmental Handbook for Massachusetts Conservation Commissioners 239 developed" portions of the community containing at least ten acres. This requires approval of the Executive Office of Environmental Affairs (EDEA) (see HB § 13.3.6.7). h' The outer boundary of the Riverfront Area is measured horizontally from the MAHW line and not along the surface of the ground (see Figure 13M). Where an intermittent stream becomes perennial the beginning of the Riverfront Area is a semi -circle drawn with a 200 -foot (or 25 -foot) radius around the point where the stream becomes perennial. Where a culvert (greater than 200 feet in length) begins and ends the Riverfront Area begins at a perpendicular line drawn at the headwalls at each end of the culvert. The Riverfront Area does not have a 100 -foot buffer zone. Overlap with Other Resource Areas. The Riverfront Area may contain all or parts of other resource areas. Riverfront Area may overlap with the 100 -year floodplain and therefore part of Bordering Land Subject to Flooding. It may contain Bordering Vegetated Wetlands such as forested swamps, marshes or wet meadows. Isolated Land Subject to Flooding, including vernal pools, may be present as well as coastal resource areas. See Figure 13N. Figure 13M. Width of Riverfront Area Riverfront Area 200 feet generally t100 feet for new agriculture 1 J Y _ 25 feet in 14 municipalities and other designated densely developed areas Mean Annual High Water line The Riverfront Area is measured horizontally outward from the Mean Annual High Water Line Prepared by Sally Zielinski. 13.3.6.6 Exempt or "Grandfathered" Work or Areas; "Limited" Projects The regulations at 310 CMR 10.58(6) exempt or "grandfather" certain activities in or portions of the Riverfront Area. The most common or important of these include: • Any excavation, structure, road, clearing, driveway, landscaping, utility line, rail line or airport owned by a political subdivision; any marine cargo terminal owned by a political subdivision; any bridge over two miles long; and any septic system or parking lot in existence on August 7, 1996. Maintenance of these is allowed without the filing of a Notice of Intent (NOI) for work within the Riverfront Area, but not when the work is within other resource areas or a buffer zone. Most new work requires an NOI. • Certain "minor" activities (HB § 12.4.2.6) as clarified in 310 CMR 10.02(2)(b)(1)(a-g) • On-site sewage disposal systems in existence on August 7, 1996 and the repair or upgrade of existing systems, if conducted in compliance with Title 5 • Projects with a submitted Draft Environmental Impact Report (EIR) on or before November 1, 1996 (or extended up to December 31, 1996 if the Department of Environmental Protection (DEP) deemed just cause) Environmental Handbook for Massachusetts Conservation Commissioners 267 • Construction, expansion, repair, restoration, alteration, replacement, operation and maintenance of public or private wastewater treatment plants and associated utility lines and facilities • Projects subject to protective orders issued under the Scenic Rivers Act • Activities subject to a Chapter 91 license or pre -1993 legislative authorization such as docks and marinas • Activities on land occupied by historic mill complexes. When projects or questions arise, the full list of exemptions and grandfathered activities should be reviewed in the regulations. Work generally exempt from the Wetlands Protection Act, such as ongoing agriculture, is also exempt in the Riverfront Area. "Limited" Projects. In spite of strong objections from environmental groups, the whole panoply of"limited" projects applies in Riverfront Areas, as in other resource areas. At the same time, the power of Commissions to refuse to allow "limited" projects in any resource area has been strengthened (see HB § 12.4.4). As with other "limited" projects, the Commission must consider factors such as the magnitude of the alteration, the significance of the project site to protected interests, the availability of reasonable alternatives, and the extent of minimization and mitigation, before allowing a project. A "limited" project for bicycle and other paths within the Riverfront Area but not within other resource areas is found in § 10.53(6) of the regulations, not in § 10.58. Figure 13N. Overlapping Resource Areas along a River M / 1 v°^6rr�.•• �r e VI f VP ,. y y • .r � Y r ^O BLSF �• 0 4./ � V � A,* r y r • ��/ vV. 200 . • t -e v r .ry BVW Y V feet • •.. "ev VwYe If rvv �a Bank `pec r � MAHW = Inner Riverfront Area Boundary °J r r .0- ,, / v v .► / v v • • . .. • • - �Aeel� On the northwest side of the river almost the entire Riverfront Area lies within other wetland resource areas — BVW and BLSF. On the southeast side less than half of the Riverfront Area overlaps other resource areas. Prepared by Sally Zielinski. 268 Environmental Handbook for Massachusetts Conservation Commissioners • The applicant must show that any work proposed in this area will not impair the capacity of the Riverfront Area to provide wildlife habitat functions, nor impair the capacity to provide vernal pool habitat identified by evidence from a competent source for areas not yet certified as vernal pools. • The proposed work cannot not impair groundwater or surface water quality; to achieve this it must incorporate erosion and sedimentation controls and other measures to attenuate non-point source pollution. Lot Size or Shape. Where there are pre-existing lots with extreme size or shape limitations, the regulations (§ 10.58(4)(d)(3 & 4)) specify when the Commission must allow construction of a residential or commercial use in the Riverfront Area: • When the size or shape of a lot in the Riverfront Area recorded before August 7, 1996 prevents construction from complying with § 10.58(4)(d)(1 or 2), the proponent is allowed to construct a single family house and associated driveway and septic system (if no sewer is available) (§ 10.58(4)(d)(3)) even if it is entirely within the RiverfrontArea. 310 CMR 10.58(4)(d)(3)(b) provides that performance standards be met to the practicable extent possible. In difficult siting situations, the maximum extent of yards around houses should be limited to the area necessary for construction. This lot must be developable under other state and local laws, and the project must incorporate erosion and sedimentation controls and other measures to minimize impact and attenuate non-point source pollution. A wildlife habitat evaluation study is not required unless the lot contains vernal pool habitat or specified habitat sites of rare species (§ 10.58(4)(d)(3)). • Similarly, when the size or shape of a lot in the Riverfront Area recorded before August 7, 1996 prevents construction from complying with § 10.58(4)(d)(1 or 2), the proponent is allowed to construct a commercial structure of minimum feasible dimension (§10.58(4)(d)(4)). The proponent must prove that the lot can be developed for such purposes and cannot be developed for any other purposes under municipal and state law. This means that if a lot is in a commercial zone and a residential use is allowed there, then the lesser impacting residential use is what the Commission must approve. This section does not require a Commission to approve a commercial proposal where other alternatives exist. These alternatives must be documented by the proponent and reviewed by the Commission before an Order of Conditions is issued. The applicant must also show that the work is not eligible under § 10.58(5) (redevelopment of previously developed Riverfront Area), and the performance standards of § 10.58(4)(d)(1 or 2) must be met to the maximum extent feasible. 276 Environmental Handbook for Massachusetts Conservation Commissioners Chapter 11 WETLANDS LAW, SCIENCE AND VALUES This chapter covers such diverse topics as the formation and processes of wetlands, the "taking" issue, and important court decisions. The aim is to provide the background for the detailed discussion of the Wetlands Protection Act, wetlands bylaws/ordinances and related water resource protection statutes provided in the following chapters. It is easy to lose the big picture when navigating those regulations! 11.1 About Wetlands 11.1.1 What Is a Wetland? A red maple swamp where the fragrance of sweet pepperbush fills the summer air. A grassy salt marsh with the calls of seabirds and the sound of distant waves breaking. The quiet and stark beauty of a quaking bog — with cotton grass waving in the breeze as nearby sundews and pitcher plants trap insects for food. They seem so different, yet in many ways they are the same. These swamps, marshes, and bogs are all kinds of "vegetated wetlands" — areas where the ground is wet often enough and long enough each year that they develop certain common characteristics. Vegetated wetlands and other "resource areas" are protected by the Wetlands Protection Act (GL. Ch. 131 §40), non—zoning wetlands bylaws/ordinances, and other federal, state, and local laws. This is because of the important roles they play in buffering storm damage and decreasing flooding, protecting water quality and water supplies, reducing pollution, maintaining fisheries, and protecting wildlife habitat. These functions and values are organized as the eight "interests" of the Act (HB § § 11.2, 12.2.1), which protects them by regulating construction and other potentially damaging activity in or near a resource area. Areas given protection by the state law generally include the banks of and land under water bodies; corridors along rivers and streams; areas flooded when water levels rise; and the vegetated wetlands along or connected to water bodies, including streams. In addition, certain coastal landforms like dunes, coastal banks, and barrier beaches are included. These are clustered into a set of resource areas, each of which is strictly defined in the regulations implementing the Wetlands Protection Act (3 10 CMR 10.00). These resource areas are the subject of Chapter 13 and listed in Figures 13A and 13B. Many of these wetland resource areas were formed by the action of water e.g., melting glaciers, ocean waves, river and stream flooding, and surface runoff from rain and snow. All are affected by water. Some, like barrier beaches and dunes, are dynamic systems that can change dramatically in a very short period of time. Some wetlands are low areas isolated from surface water where runoff collects. But, in general wetlands are semi—aquatic areas along bodies of water, where periodic flooding occurs. We can think of wetlands as occurring between the continuously flooded land where groundwater is at or above the surface (a water body) and upland that is occasionally or never flooded. Thus, wetlands are transitional areas between uplands and water bodies — lying between the completely terrestrial and completely aquatic environments. Wetlands therefore have characteristics of both uplands and water bodies. They are dependent on each, but are quite different from either. They are influenced by both e.g., by the flooding of the water body and activities and conditions in the upland. The upland adjacent to a wetland might be a field, a forest, or more commonly today, a developed area. The water body could be a lake, pond, river, stream, or the ocean. The wetland might be a forest or shrub swamp, fresh water or salt marsh, wet meadow, mud flat, or beach. Environmental Handbook for Massachusetts Conservation Commissioners 173 12.2.2 Protected Resource Areas The Wetlands Protection Act regulations give Conservation Commissions jurisdiction or authority over projects affecting certain "areas subject to protection." These are listed in 310 CMR 10.02(1). DEP has clustered the areas subject to protection into sets of "coastal" and "inland" "resource areas." These are listed respectively in Figures 13A and 13B and discussed individually and in depth in HB §§ 13.2 and 13.3. The regulations establish a 100 -foot "buffer zone" around all resource areas except Land Subject to Coastal Storm Flowage, Land Subject to Tidal Action, Land Under Water Bodies or Waterways, Land Subject to Flooding and Riverfront Areas. The buffer area is not in itself a resource area, but with the exception of minor projects (discussed below), Commissions may regulate work there that may affect a resource area. 12.2.3 Jurisdiction In general, for permitting purposes, work within resource areas is treated differently from activities in the buffer zone. Remember that work alone does not establish jurisdiction under the Act and, in any event, that jurisdiction does not establish that the work will be prohibited. In other words, whether a proposed project is subject to the Wetlands Protection Act depends on where the work is proposed to take place. what resource areas it would affect or has affected the type of project, and whether the activi1y is subject to review or is exempt Jurisdiction exists if the work is within a resource area or the buffer zone of a resource area. Jurisdiction does not exist if work is outside the buffer zone, with several exceptions, discussed below. For work in a resource area, a Notice of Intent (NOI) must be filed with the Conservation Commission. The exceptions and exemptions are covered in HB § 12.4. Jurisdiction in resource areas includes any activities that would remove, fill, dredge, or alter that area unless exempt. This includes removal of material resulting in temporary or permanent changes in elevation. "Alter" has a very broad definition in the regulations: "change the condition." Alterations include but are not limited to changes in: drainage; flushing; sedimentation; flow patterns; water table; vegetation; and the physical, biological or chemical condition of the water, such as salinity and water temperature. Consequently, almost all activities in a resource area require an NOI. The Commission's responsibility with respect to activities proposed within the buffer zone is to ensure that the proposed activities will not alter a resource area. Almost,all significant activities in the 100 -foot buffer zone to wetlands that border water bodies, and that border Banks, Coastal Beaches and Dunes will require review by the Commission. This work may require an NOI. The project proponent has the option of filing either an NOI or a Request for Determination of Applicability or an Abbreviated Notice of Resource Area Delineation. If the Commission determines that the work "will alter" a resource area, then an NOI is needed, and the Commission conditions the work to meet the performance standards and protect the interests of the Act. An applicant may ask. the Commission for advice and a formal ruling. Recent changes to the regulations exempt certain "minor" projects in the buffer zone and the Riverfront Area (see HB § 12.4.2.6). Other buffer zone work is now eligible for "simplified review" (HB § 12.9.2.2). Minor activities that are not exempted, and do not qualify for a "simplified review," may receive a Negative Determination of Applicability indicating that the activities are unlikely to alter a resource area (HB §12.7) and that work may proceed without filing an NOI. Finally, work outside resource areas and buffer zones usually can be regulated only if and when actual alteration of a resource area occurs (3 10 CMR 10.02(2)(c)). In other words, work outside of the buffer zone that results in an alteration of wetlands or floodplains from a distance of more -than 100 feet (e.g., through discharges of pollutants or siltation from erosion) requires a permit from the Commission,,but only after the work "has in fact altered" a resource area. This is often referred to as "after -the -fact" jurisdiction. The DEP administrative decision (Matter of Martinson, Docket No. 98-084, Final Decision, 6 DEPR 67 (1999)) confirmed Commission jurisdiction where such alteration (overflow from a gravel pit into wetlands) was demonstrated. A Commission should act quickly to take enforcement action or require permits for such activities. If the Commission requires the violator to obtain an after -the -fact permit under the Wetlands Protection Act and not a local bylaw/ordinance, be aware that the violator may request DEP to issue a Superseding OOC). It is important to note, however, that the Commission has jurisdiction over the quantity and of stormwater collected outside of the buffer zone if a discharge point falls within a resource area or buffer zone (see HB § 14.4.1). This drainage rule has had an enormous effect on enlarging jurisdiction over projects not in the resource area or buffer 194 Environmental Handbook for Massachusetts Conservation Commissioners Bordering Vegetated Wetland is a fresh water or inland resource area; Salt Marsh is the coastal equivalent. Rocky Intertidal Shores, Beaches (which include mud flats) and Banks are also transitional areas. Still other resource areas are mostly aquatic, or covered by water much of the time e.g., Land Under Water Bodies and Waterways, Land Under the Ocean, and Anadromous/Catadromous Fish Runs. Most resource areas are natural and undeveloped areas, but Designated Port Areas are typically industrialized and developed. What all resource areas share are characteristics making them important to one or more of the eight "interests" protected by the Wetlands Protection Act (e.g. storm damage prevention, prevention of pollution, protection of wildlife habitat) and described in § 10.01(2) of the regulations (see HB § 12.2.1). The Wetlands Protection Act regulations define boundaries or criteria for each resource area that set the limits of Commission jurisdiction. For example, Land Subject to Flooding ends at the 100 -year flood line. (Boundaries are discussed in HB § 13.1.4.) Some ponds, streams, and bogs are not regulated. For example, a bog is defined in the Wetlands Protection Act, but is not listed individually as a "bog" in the regulations. By their nature most bogs do not occur along bodies of water. They are protected under the regulations only if they qualify as Isolated Land Subject to Flooding (a basin depression that must hold a minimum amount of water); or if they surround a body of water greater than 10,000 square feet in area (a pond). In the latter case they are captured under "fresh water wetland" and qualify as Bordering Vegetated Wetlands. Figure 13A. Coastal Resource Areas • Land Under the Ocean • Designated Port Areas • Coastal Beaches • Coastal Dunes • Barrier Beaches • Coastal Banks • Rocky Intertidal Shores • Salt Marshes • Land Under Salt Ponds • Land Containing Shellfish • Anadromous/Catadromous Fish Runs • Land Subject to Tidal Action • Land Subject to Coastal Storm Flowage Figure 1313. Inland Resource Areas Land Under the Ocean • Banks • Land Under Water Bodies or Waterways • Land Subject to Flooding • Bordering Vegetated Wetlands • Riverfront Areas To clarify the limits of jurisdiction, it is always important to check definitions. Regulatory definitions are sometimes different from scientific or even commonsense definitions. Definitions are found in several places in the Act and the regulations. They may be listed in the Definitions section of Part I (10.04) or Part II (10.23), or in Parts II and III under the section for the resource area. Local bylaws/ordinances can protect isolated wetlands, small water bodies, and other areas (or public "interests") not covered by the Wetlands Protection Act (see Chapter 15). 13.1.2 Where Coastal and Inland Resource Areas Are Found "Coastal" resource areas are those associated with salt water. Most are found along the coast (e.g., Coastal Dunes, Coastal Banks, and Rocky Intertidal Shores). But some resource areas covered in Part II of the regulations extend miles inland along rivers and streams e.g., Salt Marshes and Anadromous/Catadromous Fish Runs. The latter can be found inland to the limit of the coastal zone (defined in 301 CMR 21.00). "Inland" resource areas, covered in Part III of the regulations, are generally but not always associated with fresh water. A notable exception is the Riverfront Area. All perennial rivers and streams, whether fresh, saline or brackish water, whether coastal or inland, are subject to 310 CMR 10.58, and potentially have Riverfront Area. This does not make the Riverfront Area a "coastal" resource area. For purposes of the Wetlands Protection Act regulations, Riverfront Areas associated with estuaries are considered to be "inland" resource areas that are near the coast. r� Rivers and streams have Banks, Land Under Water Bodies and Waterways, and usually Bordering Land Subject to Flooding — all the way to the coast. B VW, vernal pools and Isolated Land Subject to Flooding can occur very near the coast in areas not subject to saline influence. (See next section.) r 238 Environmental Handbook for Massachusetts Conservation Commissioners t. Chapter 13 THE WETLANDS PROTECTION ACT 11. Resource Areas: Definitions, Values and Performance Standards The previous chapter covered the state law and all its workings. This chapter focuses broadly on the resource areas protected by the law. This division follows the format of the DEP regulations in 310 CAR 10.00-10.99, where process is fully discussed before the resources and performance standards. 13.1 Types, Locations and Relationships of Resource Areas 13.1.1 What Is a Resource Area? The Massachusetts Wetlands Protection ^Act protects certain natural resources from damage. The popular name of this law. implies._protection.of "wetlands," but that term is really .4 placeholder for a broader' group of resources that includes rivers, sand dunes, land areas that rarely flood, and more. In fact, the official title of CzL. Chapter 131 §40 is "Protection! of Flood Plains, Seacoasts, and Other Wetlands. This may more clearly describe the law than the popular name, "Wetlands Protection Act." The first sentence of the statute describes the natural resources over which the Conservation Commission has jurisdiction: No person shall remove, fill, dredge or alter any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on any estuary, creek, river, stream, { pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding—without filing written notice of his intention. The Department of Environmental Protection. (DEP) interprets these "areas subject to protection" in § 10.02(1) of the Wetlands Protection Act regulations (3 10 CMR 10:00 et seq.) as: Any bank, beach, dune, flat, marsh, swamp, freshwater or coastal wetland which borders on (i.e., is immediately adjacent to or "touches") the ocean or any estuary, creek, river, stream, pond or lake • Land under water bodies • Land subject to tidal action • Land subject to coastal storm flowage • Land subject to flooding (including isolated wetlands) • Riverfront area. Based on the above, DEP names, describes, creates presumptions, and sets performance standards for eleven coastal and five inland resource areas in Parts II and III of the regulations, respectively. These coastal resource areas are listed in Figure 13A, and the inland resource areas in Figure 13B. Two "areas subject to protection" not treated in the regulations are land subject to tidal action and land subject to coastal storm flowage. These are addressed in HB § 13.2.13. Some of the defined resource areas, such as Coastal Dunes and Coastal Banks, have more upland characteristics than wetland. They are protected because they play important roles in storm damage prevention and flood control. Land Subject to Flooding and the Riverfront Area also may be partly to mostly upland. Other resource areas are wetlands in the "classic" sense — vegetated transitional areas between uplands and water bodies where the ground is flooded or saturated part of the time, and characteristic soils and plant communities form. 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Protec an Act Massa-! � ; chusetta 4enerat Lau4sl CONSERVATION DEPARTMENT Communitv Development Division C to the authority of the Wetlands Protection Act, Massachusetts General Laws, Chapter ion 40, as amended, and the North Andover Wetlands Protection Bylaw, the North Conservation Commission will hold a public hearing on: yESDAY, April 11, 2007 at 8:00pm in the Town Hall Meeting Room, 2 Floor located Main Street, North Andover, MA 01845. filing of a Notice of Intent by John Carroll (Applicant) land at 812 Salem Street (Map 65; Lot 15) le purpose of razing an existing house and barn in order to construct two single-family Chairman', NACC ET�7. are available at the Conservation Department, 1600 Osgood Street, Building 20, Suite 2-36 By: Scott Masse, Chairman N.A.C.C. APPLICATION INFORMATION: Run once in the Lawrence Eagle Tribune on (Tuesday, April 3, 2007). DELIVER THIS LEGAL NOTICE TO THE LAWRENCE EAGLE TRIBUNE at 100Turnpike Street, North Andover or FAX to 877-927-9400 BY: MARCH 30, 2007 BY NOON Applicant(s) must bring proof of publication of the Legal Ad to the meeting. Legal Ad Billing Information: Steve Stapinski Merrimack Engineering Services, Inc., 66 Park Street Andover, MA 01810 978-475-3555 1600 Osgood Street, Building 20, Suite 2-36, North Andover, Massachusetts 01845 Phone 978.688.9530 Fax 978.688.9542 Web: http://www.townofnorthandover.com/Pages/NAndoverN[A_Conservation/index e. City/Town N/A f. State g. Zip Code h. Phone Number i. Fax Number j. Email address 4. Representative (if any): Merrimack Engineering Services, Inc. a. Firm John Murphy b. Contact Person First Name c. Contact Person Last Name 66 Park Street d. Mailing Address Andover Ma. 01810 e. City/Town f. State g. Zip Code (978)475-3555 (978)475-1448 merreng@aol.com h. Phone Number i. Fax Number j. Email address 5. Total WPA Fee Paid (from NOI Wetland Fee Transmittal Form): $1,575.00 $775.00 $2,753.00 a. Total Fee Paid b. State Fee Paid c. City/Town Fee Paid 6. General Project Description: Demolition of two (2) existing buildings and a house. Construction of a house within the 100 Buffer zone and site work associated with a house within the 200 -foot Buffer Zone of a Riverfront Area (Mosquito Brook). wpaform3.doc • rev. 11/30/06 Page 1 of 9 —1 Massachusetts 'Department of Environmental Protection Providetl by DEP ' Bureau of Resource Protection - Wetlands pEP He Number ' WPA Form 3 — Notice of Intent Document Transact�ori Nurnbet Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 North Andover City/Town Important: When filling out . A. General Information forms on the computer, use 1. Project Location (Note: electronic filers will click on button for GIS locator): only the tab key to move your 812 Salem Street North Andover 01845 _ cursor - do not a. Street Address b. City/Town c. Zip Code use the return key. 42°-40'-48" 710-02"-1 7" Latitude and Longitude: g d. Latitude Map 65 Lot 15 e. Longitude f. Assessors Map/Plat Number g. Parcel /Lot Number 2. Applicant: John Carroll a. First Name b. Last Name c. Company Note: #1501 Main Street O Before d. Mailing Address completing this Tewksbury Ma. 01876 form consult local e. City/Town f. State g. Zip Code i�your Conservation 978-851-4851 978-858-0213 johncarrollre@verizon.net Commission h. Phone Number i. Fax Number j. Email address regarding any municipal bylaw 3. Property owner (if different from applicant): ❑ Check if more than one owner or ordinance. Helen St. Cyr a. First Name b. Last Name c. Company 812 Salem Street d. Mailing Address North Andover Ma. 01845 e. City/Town N/A f. State g. Zip Code h. Phone Number i. Fax Number j. Email address 4. Representative (if any): Merrimack Engineering Services, Inc. a. Firm John Murphy b. Contact Person First Name c. Contact Person Last Name 66 Park Street d. Mailing Address Andover Ma. 01810 e. City/Town f. State g. Zip Code (978)475-3555 (978)475-1448 merreng@aol.com h. Phone Number i. Fax Number j. Email address 5. Total WPA Fee Paid (from NOI Wetland Fee Transmittal Form): $1,575.00 $775.00 $2,753.00 a. Total Fee Paid b. State Fee Paid c. City/Town Fee Paid 6. General Project Description: Demolition of two (2) existing buildings and a house. Construction of a house within the 100 Buffer zone and site work associated with a house within the 200 -foot Buffer Zone of a Riverfront Area (Mosquito Brook). wpaform3.doc • rev. 11/30/06 Page 1 of 9 —1 jLr, RECEIVED MAR :j n 7007 NORTH ANDOVER CONSERVATION COMMISSION Notice of Intent #812 Salem Street North Andover, Massachusetts Prepared for John Carroll #1501 Main Street — Unit #15 Tewksbury, Ma. 01876 March 30, 2007 Prepared by MERRIMACK ENGINEERING SERVICES, Inc. 66 Park Street Andover, Massachusetts 01810 planners • engineers • surveyors FINDING TOWN OF NORTH ANDOVER 7nmimn BOARD OF APPEALS AA_•• 1 --TM 4 p`'1�• "IO - A} f TOO 2081 N!0V 16 AN 10: 23 Uff Procedure & Requirements - for an Application for a Finding Ten (10) copies of the foilowing information must be submitted thirty (a days prior to the first public hearing. Failure to submit the required information within the time periods prescribed may result in a dismissal by the Zoning Board of an application as incomplete. The information herein is an abstract of more specific requirements listed in the Zoning Board Rules and Regulations and is not meant to supersede them. The oetitionf vViq comp to Itemsthat are underlined STEP 1: ADMINISTRATOR PERMIT DENIAL: The petitioner applies for a Building Permit and receivers a Zoning Bylaw Denial form completed by the Building Commissioner. $11P 2• FINDING APPLICATION FORM' Petitioner completes an application forth to petition the Board of Appeals for a Finding. AN information as required in items 1 through and including 11 shall be completed. STEP 3• PI AN PREPARATION• Petitioner submits all of the required pian information as cued in section 10, page 4 of this form. STEP 4. OBTAIN LIST OF -PARTIES IN INTEREST: The petitioner requests the Assessors Office to Compile a certified list of Parties in Interest (abutters) - STEP 5. SU13MIT APPLICATION: Petitioner submits one (1) original and ten (10) Xerox copies of all the required information to the Town. Clerk's Office to be certified by the Town Clerk with the time and date of filing. The original will be left at the Town Ciedes Office, and the 10 Xerox Copies will be.. left with the Zoning Board of Appeals secretary. STEP 6: SCHEDULING OF HEARING AND PREPARATION OF LEGAL NOTICE: The Office of the Zoning Board of Appeals schedules the applicant for a hearing date and prepares the legal notice for mailing to the parties in interest (abutters) and for publication in the newspaper. The petitioner is and the notified that the legal notice has been prepared cost of the Party in Interest fee. STEP 7: DELIVERY OF LEGAL NOTICE TO NEWSPAPER The petitioner picks up the legal notice from the Office of the Zoning Board of Appeals and delivers the legal notice to the local newspaper publication. STEP 6: PUBLIC HEARING BEFORE THE ZONING 130ARD OF APPEALS: Ttm petitioner should appear in iiia W behalf, or be represented by an agent or attorney. in the absence of any appearance without due cause on behalf of the petitioner, the Board shall decide on the matter by using t: irrtormation it has otherwise received. STEPS: DECISION: After the hearing, a copy of the Board's decision will be sent to all Parties in Interest. Any appeal of the Board's decision may be made pursuant to Massachusetts General Law ch. 40A $.17, within twenty (20) days after the decision is filed with the Town Cleric. STEP 10 RECORDING THE DECISION AND PLANS. The petitioner is responsible for recording certification o the decision and any accompanying pians at the Essex County, North Registry of Deeds, 381 Common St., Lawrence MA, and shall complete the Certification of Recording form and forward it to the Zoning Board of Appeals and to the Building Department. IMPORTANT PHONE NUMBERS: 9784RO-9533 Office of Community Dev. 8 Services North Andover Town Hall 1600 Osgood St., Bldg. 20, Suite 2-36 120 Main Street North Andover, MA 01845 9784IM9501 Town Cleric's Office' 97&688-9542 fax for Community Development offices 978-688-9566 Assessors Office 978688-9545 Building Department 9784HW9541 Zoning Board of Appeals Office o D PAGE 1 of 4 PAGE 4of4 FINDING 9. WNTTEN DOCUMENTATION EW Plan shall be prepared, stamped and certified by a Registered Professional Land Surveyor. Applin for a Finding must be supported by a legibly written or typed memorandum setting forth in detail all Plus rate that pians by a Registered Professional 1 facts retied upon. All dimensional requirements shall be Engin, Registered Architect, and/or a Registered Landscape Architect may be required for Major Projects. i clearly identified and factually supported when requesting a Finding from the requirements of MGLA ch. 40A, and the North Andover Zoning Bylaws. All points. '10. C. 'Required Features On Plan: I ", are re p*W to be addressed with this q Sib Orientation shall include: application. 1. north point 2 zoning district(s) A. The particular use proposed for the land or 3. names of streets 14. wetlands (if applicable) structure. 13. Fact(s) relied upon to support a Finding that the 5. abutters of property, within 300' radius 8 locations of buildings on adjacent properties Proposed extension or alteration shall Trot be more within 50' from applicants proposed structure sut>standally detrimental than the existing non- 7_ deed eons, easements. ooMornhug use. U) Legend & Graphic Aids shall include: C. Address all appropriate details of the Building 1 proper features in solid lines & outlined in red Commissioner's denial. 2. Etsting features to be removed in dashed fines 3. Graphic Scales 4. Date of Plan 10. PLAN OF LAND 5. Title of Plan Each application to the Zoning Board of Appeals shall 8. Names addresses and phone numbers of the be accompanied by the following described plan(s). applicant, owner of record, and land surveyor. Pians must be submitted with this application to the 7. Locus. Town Cleric's Office and ZBA secretary at least thirty I . (30) days priato the public hearing before the Zoning 10. D. Minor ProjeCts _ Board of appeals. Minor projects, such as decks, sheds, and garages, shah require only the plan information as indicated with A sat of building elevation plans by a Registered an � (2). in some cases further information may Architect may be required when the application be requited involves new construction/conversion/ and/or a proposed change in use. 10. A. Major Projects Major projects are those which involve one of the following wimther existing or proposed: A five (5) or more parking spaces, EQ three (3) or more dwelling units, i[M 2,000 square feet of building area. Major Projects shall require, in addition to the 108.8 10 C. features, that the plans show detailed utilities, soils, and topographic information. '10. B. *Plan Specifications: n size of plan: Ten 110 ) paper copies of a plan not to exceed 11"W", preferred scale of 1"=40. ii) One (1) Mylar, with one block for Registry Use Only, and one block for five (5) ZBA signatures and date.. 11. APPLICATION FILING FEES 11. A Notification fees: Applicant shall provide a check or money order to: 'Town of North Andover - #022-1780-4841' for the cost of first class, certified, return .receipt (currently $4.84) x # of all parties in Interest identified in MGLA ch. 40A §11 on the abutter's list for the legal notice postage check. Also, the applicant shall supply first loss postage stamps (currently 39$) x the # of parties of interest on the abutlees list for the decision mailing. 11. B. Mailing labels: Applicant shall provide four (4) sets of mailing labels no larger than 1'x2-5/8' (3 copies for the Legal 'maiiing and one copy for the Decision IJ mailing). I 11. C. See 2005 Revised Fee Schedule. r'HV c � yr •r NORTH ANDOVER ZONING BOARD OF APPEALS application for a r I N D I N G Please complete all mm a 1 -1Q below 1. Petitioner: *Name, *Address and telephone number: John Carroll c/o Howard P. Speicher, Davis Malm & D'Agostine P.C. One Boston Place, Boston, MA 02108, 617-367-2500 *The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address, telephone number, and number of years under this ownership: Helen St. Cyr, 7 1/2 Beverly Street, Methuen, MA 01844; Ann Marie H. Johnston, under durable power of attorney; 978-994-3990 Years Owned Land: - 42 3. Location of Property: a. Street: 810-812 Salem Street Zoning District: b. Assessors: Map number: 65 Lot Number: c. Registry of Deeds: Book Number: 1046 Page Number: R3 15-1 89 4. Zoning Bylaw Section(s)* under which the petition for the Finding is made. Section 7.1.1 Contiguous Building Area; Table 2 'Refer to the Zoning Bylaw Denial and Plan Review Narrative form as supplied by the Building Commissioner. 5. Describe the Finding request: This appeal seeks a finding that the subject property complies with the Contiguous Building Area requirements of Section 7.1.1 and Table 2. Section 7.1.1 does not include "Riverfront Area" as a ':wetlarid resource area." See attached memorandum. The above description shall be used for the purpose of the legal notice and decision. A more detailed description is required pursuant to the Zoning Board Rules and Regulations as cited on page 4, section 9 of this application. Failure by the applicant to describe the request clearly may result in a decision that does not address the intent of the applicant. The decision will be limited to the request by the applicant and will not involve additional items not included above. 6 A. Difference from Zoning Bylaw requirements: Indicate the dimension(s) that will not meet current Zoning Bylaw Requirements. (Lines A and B are in case of a lot split) Lot Area Open Space Percentage Lot Frontage Parking Sq. Ft. Sq. Ft. ' Coverage Feet Spaces Front Side A Side B Rear A.N/A N/A N/A % N/A N/A N/A N/A N/A N/A 8. NORTH ANDOVER ZONING BOARD OF APPEALS application for a F I N DI N G 6 B. Existing Lot: Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 122,773 N/A N/A N/A N/A N/A N/A N/A N/A 6 C. Proposed Lot(s): ' Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B ; Rear 122,773 N/A N/A N/A N/A N/A N/A N/A { I i N/A 6 D. Required Lot: (As required by Zoning Bylaw & Table 2) i Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback! Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear --5.000* N/A A N/A N/A N/A. *Required CBA is 75% of required lot area, or 18,750 sq. ft. N/A N/A /A 7A. Existing Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq. feet Building" . of Units" 2610 1 and 2 4600 Barn 1 "Reference Uses from, the Zoning Bylaw & Table 1 7B: Proposed Building(s): Ground Floor Number of Height Square feet Floors "State number of units in building(s). Total Use of Sq. feet Building" Number f of Units" 1540 2.5 33 3080 Dwelling i 1 'Reference. Uses from the Zoning Bylaw 8 Table 1. "State number of units in building(s). f 8. Petitioner and Landowner signature(s): Every application for a Finding shall be made on.this form, which is the official form of the Zoning Board of Appeals. Every application shall be filed with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or the Zoning' Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal notification. Failure to comply with appli6ation:requirements, as cited herein and in the Zoning Board Rules and,Regulations may result in a dismissal by the Zoning Board of this application as incomplete. Type above name(s) here: John Carroll Zoning Bylaw Review Form Of Ho OTM iN o? ,.;;,_,•,, o Town Of North Andover t Building Department 1600 Osgood Street, Building 20, Suite 2-36 �. ,,.,,..z� North Andover, MA. 01845 1SSACH°S�t Phone 978-688-9545 Fax 978-688-9542 Street: 810-812 Salem Street Lot 15-1 " Ma /Lot: 65/15-1 Applicant: John Carroll Request: New single-family dwelling after razing existing dwelling. Date: 10-26-07 Please be advised that after review of your Application and Plans that your Application is DENIED for the following Zoning Bylaw reasons: Zonina District: R-3 nnn7reruarrtAm,tv2umn-7 1d34 °JMaling Item Notes 6ulUU81d x Item Notes A, Lot Area W891-1 F Frontage 1 Lot area Insufficient 1 Fronta a Insufficient 2 Lot Area Preexisting 2 Frontage Complies X 3 Lot Area Complies X 3 Preexisting frontage 4 Insufficient Information 4 insufficient Information B Use 5 No access over Frontage 1 Allowed X G Contiguous Building Area 2 Not Allowed 1 Insufficient Area X 3 Use Preexisting 2 Complies 4 Special Permit Required 3 Preexisting CBA 5 Insufficient Information 4 Insufficient Information C Setback H Building Height 1 All setbacks comply X 1 Height Exceeds Maximum 2 Front Insufficient 2 Com lies X 3 Left Side Insufficient 3 Preexisting Height 4 j Right Side Insufficient 4 Insufficient Information 5 Rear Insufficient I Building Coverage 6 Preexisting setbacks 1 Coverage exceeds maximum 7 Insufficient Information 2 Coverage Complies X D Watershed 3 Coverage Preexisting 1 Not in Watershed X 4 Insufficient Information 2 In Watershed J Sign 3 Lot prior to 10/24/94 1 Sign not allowed 4 Zone to be Determined 2 Sign Complies 5 Insufficient Information 3 Insufficient Information E Historic District K Parking 1 In District review required 1 More Parking Required 2 Not in district X 2 Parking Complies X 3 Insufficient information nnn7reruarrtAm,tv2umn-7 1d34 °JMaling x8410 uolsslwwo01eaho;slH 6ulUU81d x sVoM ollgnd;o WOMPe ea u011eAMu00 x sleeddV;o paeo8 6uluoZ X aollod W891-1 Gild :ol paa.lejau Plan Review Narrative The followilng narrative Is provided to further explain the reasons for denial for the building permit for the property indicated unthe reverse mide: gn G-1 A Variance from the North Andover Zoning Board of Appeals is required from: 117.1.1 Contiguous Buildable Area (CBA) As of April 28, 1986, the area of any new lot created, exclusive of area. in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, MAssachusetts General La wis, Chapter 13 1, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area." of the Zoning Bylaw for relief from the'200 foot riverfront zone of Mosquito. Brook in order to construct a single family TOWN OF NORTH ANDOVER ESSEX, SS. . ZONING BOARD OF APPEALS APPEAL OF JOHN CARROLL FOR FINDING AND IN THE ALTERNATIVE FOR A VARIANCE RE: 810-812 SALEM STREET, LOTS 15-1,15-2 APPELLANT'S MEMORANDUM IN SUPPORT OF APPEAL FOR FINDING AND IN THE ALTERNATIVE FOR A VARIANCE John Carroll, (the "appellant") who is the purchaser of the property at 810-812 Salem Street, pursuant to a purchase and sale agreement with the present owner, Helen St. Cyr, appeals from a decision of the building commissioner denying applications for building permits for two single family homes to be constructed on this subd v;-1Pa rfq-o-- tV. In the alternative, the appellant requests that the Board of Appeals grant the variances to authorize the proposed construction. The property at 810-812 Salem Street was formerly a single lot, improved by a single- family dwelling and by a barn. Earlier this year, the Planning Board endorsed a plan as "approval under the subdivision control law not required", dividing the property into two lots, each with sufficient frontage and area to constitute a separate building lot under the Zoning Bylaw. The two lots, known as Lots 15-1 and 15-2, are located in an R3 residential zoning district. Each has at least the minimum lot area of 25,000 square feet and the minimum frontage of 125 feet. THE LOTS MEET THE CONTIGUOUS BUILDING AREA REQUIREMENTS OF THE BYLAW Both lots are located within 200 feet of Mosquito Brook. Since the adoption of the Riverfront Act in 1996, land within 200 feet of Mosquito Brook and other rivers has been designated as "Riverfront Area" under the Riverfront Act, making it subject to the jurisdiction of the Conservation Commission. By his denial of building permit applications for each of the lots, the building commissioner has questioned whether the lots meet the "contiguous buildable area" ("CBA") requirements of Section 7.1.1 of the Zoning Bylaw, on the basis of their proximity to Mosquito Brook. If "riverfront area" as defined by the Riverfront Act is included in the definition of "wetland resource areas" in the CBA provision of the Bylaw, then both lots are almost without any contiguous building area as defined by the Bylaw, because they are both within 200 feet of Mosquito Brook. However, because the CBA requirements, making "wetland resource areas" subject to the CBA requirements, were adopted a decade before the enactment of the Riverfront Act, the description of "wetland resource areas" in the CBA provision does not include riverfront areas, and therefore the two lots meet the CBA requirements of the Bylaw. The CBA provision of the Zoning Bylaw provides as follows: As of April 28, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area. At the time the CBA provision was adopted in 1986, the incorporation by reference of "wetland resource areas" under the State Wetlands Protection Act (the "State Act") and the North Andover Wetland Protection Bylaw did not include the concept of a 200 -foot buffer from a river or stream. No such resource area existed in the State Act prior to the adoption of the Riverfront Protection Act in 1996, chapter 258 of the Acts of 1996. The riverfront area was 2 adopted as a resource area in the local Wetland Protection Bylaw in 1998. At no time subsequent to its adoption in 1986 has the CBA provision of the Zoning Bylaw been amended to include the new riverfront area as a resource area that must be excluded in calculating CBA. Consequently, the 200 -foot riverfront area cannot be a resource area that must be excluded from CBA. By referring to "wetland resource areas in accordance with" the State Act and the Wetland Protection Bylaw, the CBA provision of the Zoning Bylaw is referring to those wetland resource areas as they were defined at the time of the adoption of the CBA provision in 1986. As a basic matter of statutory interpretation, the CBA provision cannot be properly construed to include subsequently adopted amendments to either the State Act or the Wetland Protection Bylaw. To conclude otherwise would be to, in effect, amend the Zoning Bylaw without a vote of the Town Meeting. Furthermore, such a conclusion would have the effect of amending the Zoning Bylaw, not only without a vote to amend the Zoning Bylaw, but on the basis of an amendment to the Wetland Protection Bylaw that was passed on a majority vote, and not with the two-thirds vote required to amend the Zoning Bylaw. It is a basic rule of statutory construction that a statute incorporating by .reference a .specific provision of another law cannot be amended by reference simply because the statute to which the reference is made is amended. For instance, in a case in which an employee of a subcontractor of the MBTA tried to take advantage. of a subsequent amendment to the "prevailing wage" law that made the law applicable to an "authority" as well. as to cities and towns, the court held that the later. amendment of the statute did not apply to the plaintiff, because the plaintiff's cause of action arose prior to the adoption of the amendment, and so the statute in question did not impliedly include "authority" with respect to the plaintiff's claim. 3 Ruby v. Earth Tech, Inc., 62 Mass. App. Ct. 1106 (2004). Likewise, the reference to "wetland resource areas" in the CBA provision of the Zoning Bylaw was adopted at a time when the reference could not have included "riverfront" areas as wetland resource areas, because no such resource areas yet existed. The Town Meeting members voting on the adoption of the CBA provision cannot be inferred to have meant to include a resource area under the provision's coverage of which they could have had no knowledge. This conclusion is mandated by the basic principle of statutory construction of "adoption by reference of limited and particular provisions of another statute, in which case the reference does not include subsequent amendments." 2B Sutherland Statutes and Statutory Construction, §51:7 (6t' ed., updated October 201-)6). " 'W]here a statute adopts by specific reference the provisions of another statute, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified." Id. The CBA provision, as adopted in 1986, adopted by reference the specific provisions of the State Act and the Wetlands Protection Bylaw existing at the time defining wetland resource areas. Under the principles cited above, this reference cannot be deemed to include later amendments to either the State Act or to the Wetland Protection Bylaw without a specific amendment to the Zoning Bylaw allowing such incorporation by reference of these more stringent provisions. Based on the principles discussed in this letter, we urge the Board to conclude, as we believe the law requires, that the two ANR lots recently approved by the Planning Board at the property are not in violation of the CBA provisions of the Zoning Bylaw by reason of their proximity to Mosquito Brook. 4 ALTERNATIVELY, VARIANCES SHOULD BE GRANTED Alternatively, the applicant has requested the grant of variances for each of the two lots from the provisions of Section 7.1.1 of the Bylaw, which imposes the CBA requirements. If the CBA is applicable to the property, the property meets the requirements for the grant of a variance. Variances are to be granted where "owing to circumstances relating to soil conditions, shape, or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw." Iht present application meets these requirements for these two lots. Due solely to their proximity to Mosquito Brook, the two lots, although entirely upland, have been deemed to be within a "riverfront area" meant to prohibit construction in wetlands. This is a circumstance relating to the "soil, shape or topography" of the land, and is one that affects this land but does not affect generally other property in the same zoning district.. As a result of this peculiar circumstance, both of these lots are potentially rendered completely unbuildable, subjecting the owner to substantial financial hardship. The existing dwelling on the property is old and in need of replacement, and the barn is no longer viable. Relief may be granted without detriment to the public good and without nullifying or derogating from the intent of the Bylaw. The Conservation Commission has already issued an Order of Conditions authorizing the proposed construction, which is an indication that the proposed construction can be accomplished without damage to Mosquito Brook, the wetland 5 resource the protection of which is the obvious goal of the CBA provision in this location. For the reasons stated above, the applicant respectfully requests that the decision of the building commissioner denying the applicant's building permit applications for the two lots on the grounds that they violated the CBA provisions of the Bylaw be reversed, and that a finding be made that the proposed construction on the two lots does not violate the CBA provisions of the Bylaw. In the alternative, the applicant requests that the Board issue variances from the CBA provisions, so that the building commissioner may issue building permits for the proposed construction of a single family home on each of the two lots. Respectfully submitted, JOHN CARROLL, By his attorney, Howard P. *ei&er7BBO #474380 Davis, Mahn & D'Agostine, P.C. One Boston Place Boston, MA 02108 (617) 367-2500 Dated: November 14, 2007 6 459606v.1 "w f a o JAMM P. CiEARY [i16► JosEm A Cum, PC 345 M iN SI 7 B 9853 P 149 345 M� 5tM1' P.O. Box 730 1.1Avomiu, MA 01831.1303 I, Helen J. St. Cyr, being u>,o =Tkd, of Metlwen, Essex Cotmty, Mases For less than One Hundred and 001104 ($100.00) Dollars Consideration Paid Grant to Helen J. St. Cyr, Trustee of the St. Cyr Family Trust, under Declaration of Trust dated September 1, 2005, having an address of 7 1h Beverly Street, Methuen, Massachusetts 01844 WITH QUITCLAIM COVENANTS The land with the buildings thereon, situated on Salem Street, North Andover, and having a street address of 812 Salem Street, North Andover, Massachusetts 01845, bounded and described as follows: Begimiing at a stake and stones on the northerly coater near a stone bridge back of the barn now or formerly of Mr. Abijal Fuller; thence SOUTHWESTERLY by the road as the fence stands 26 poles to a stake and st T' at the southeasterly corner by the Salem Road; thence ia WESTERLY and NORTHERLY by said road as the fence now stands 39 poles to a stake and stow, t b(W r formerly of Phineas Foster land; thence EASTERLY by land naw or formerly of said Faster land as the fence stands 4 �olej& the first bound. ' Containing four acres and forty poles more or less. Being the same premises conveyed to me by deed of my late husband, Gerard C. St. Cyr and my dated October 13, 1955 and recorded with Essex North District Registry of Deeds, Book 1046, Page f8i" NO TITLE EXAMINATION REQUESTED. WITNESS my head and seal this 13" day of October, 2005. COMMONWEALTH OF MASSACHUSETTS Essex, ss. On this 13th day of October, 2005, before me, the undersigned Notary Public, personally appeared the above-named Helen J. St. Cyr proved to me by satisfactory evidence of identification, being (check whichever applies): [ ] driver's license or other state or federal governmental document bearing, a photographic image, [ ] oath or affirmation of a credible witness known to we who knows the above signatory, or Kmy own personal knowledge of the identity of the signatory, to be the person whose name is signed above, and acknowledged the foregoing to be signed by her, as her free act and deed, voluntarily for its stated purpose. JOSEF" A. CLEAW y Ic: Joseph A. CIeary cmm"MPUWC m � TTS y Commission Expires: November 12, 2005 " Mj cgm Eupk" Nov. t2, aces Qualified in the Commonwealth of Massachusetts Abutter to Abutter ( ) Building Dept. ( J Conservation ( ) Zoning ( ) REQUIREMENT: MGL 40A, Section 11 states in part "Parties in Interest as used in this chapter shall mean the petitioner, abutters, owners of land directly oppositeon any public or private way, and abutters to abutters within three hundred (300) feet of the property line of the petitioner as they appear on the most recent applicable tax list, not withstanding that the land of any such owner is located In another city or town, the planning board of the city or town, and the planning board of every abutting city or town." . Subiect Proverty: MAP PARCEL Name Address 65 15 Helen St. Cyr 812 Salem Street Abutters Properties Map Parcel Name Address 65 14 Woelk Egbert 50 Keyes Way 65 22 Frank Kirby 10 Summer Street 65 26 Michael Foss 771 Salem Street 65 27 Derek Larson 20 Abbott Street 65 42 Francis Kozdras 805 Salem Street 65 53 Joyce Cooper 844 Salem Street 65 55 Anna Tymvakiewiz 464 Appleton Street 65 59 Goran Bringert 817 Salem Street 65 60 David Eckman 835 Salem Street 65 63 Roger Mailhot 410 Blue Ridge Road 65 66 Charlotte Pellegrino 18 Summer Street 65 88 Clarke Harris 793 Salem Street 65 282 Larry Ayres 45 Keyes Way Date Page This certifies that the names appearing on the reFords of the Assessors Office as of `Ok Q 0 Certified b ....Date. ZL11,15 )A.i North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 North Andover, MA 01845 11/15/2007 1 of 1 Abutter to Abutter ( ) Building Dept. ( ) Conservation ( ) Zoning ( ) REQUIREMENT: MGL 40A, Section 11 states in part "Parties in Interest as used in this chapter shall mean the petitioner, abutters, owners of land directly oppositeon any public or private way, and abutters to abutters within three hundred (300) feet of the property line of the petitioner as they appear on the most recent applicable tax list, not withstanding that the land of any such owner is located in another city or town, the planning board of the city or town, and the planning board of every abutting city or town' Subiect Property: MAP PARCEL Name Address 65 15 Helen St. Cyr 812 Salem Street North Andover, MA 01845 Abutters Properties Map Parcel Name Address 65 14 Woelk Egbert 1-50 Keyes Way North Andover, MA 01845 65 22 Frank Kirby L;* Summer Street North Andover, MA 01845 65 26 Michael Foss I vy71 Salem Street North Andover, MA 01845 65 27 Derek Larson ✓ t/20 Abbott Street North Andover, MA 01845 65 42 Francis Kozdras 1,805 Salem Street North Andover, MA 01845 65 53 Joyce Cooper V844 Salem Street North Andover, MA 01845 65 55 Anna Tymvakie z X 64 Appleton Street North Andover, MA 01845 65 65 59 60 Goran BringeVo David Eckman ✓ k,817 Salem Street North Andover, MA 01845 North Andover, MA 01845 65 63 Roger Mailhot f 1,635 Salem Street tf - %—O 410 Blue Ridge Road North Andover, MA 01845 65 66 Charlotte Pellegrino / Summer Street North Andover, MA 01845 65 88 Clarke Harris J \393 Salem Street North Andover, MA 01845 65 282 Larry Ayres / 45 Keyes Way North Andover, MA 01845 This certifies that the names appearing on the refords of the Assessors Office as of Q 0U Certified b Datej f ,1jL-7 Date 11/15/2007 Page 1 of 1 v \0 W � IV F �0 a w � yS 1 e 2 v I a n � g I a o I i a~ C` 0 I \ A 4Ln Ui �UAC25 M ad coo � a \p G O 1\ \ / OC Az It III \\ �F �� p : '' .yJ �\ woo \.-, � °sO� •.a � .<� / G \ / TOTAL FRONTAGE -,.,90.18` \ �37,a4' ^�7=- 38`55 qz v_ a / ,60A0. :4q 53"E� 500'28'14"W S70VR g•W 95.82, = qL F QAC w S755p54v:' \ o= is. i8• l B L C U BIT, CONC. 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A mO21 m-4 >oo� c;Srxn I> 0 cp'^zi zN O �c�cff z •m 'ncz0cmz- rn mosxrnDx x m 31ocz�A. �pLyZr�,�z m ov�po v D oz"=zm Z2 M..ar^T . 4 10-0, a) -0n V;0 vzim5rn0D� cn q��N-o- z oz x s zz�4om v N nm0CmZ x 52 0� ax J o m Z' NoZm q 0MO� m rmn�>rn vOi-�P�o om x• v m 0 D rn A FA ZO D o� Z me 0 C -o r m v ;0 A A .� 'O m r a D C Z Z v 0 N m Z D0 i7 z O O r J sn Vm A w N O " t;+ XcGZZZm o '4 z0 =AcR A N+rr-n m cnp zr-i+ mrd* T vmr, mm m> m-> vppoq z>k; rr;no D '0 NN opN C-) A Pru Nov om0 y X z _v1 mz 2CCOn 2DO( AGZ m ox� opx ;d rn Zaoom 0c)rn vm Z C uz 6 5 4r! -!--a >O Np �i O (M/) C: rJ =i� r�SE,D z()m C) =OTz p �m OZ Z Z1 ObO�oo ZN m�vo a� o v•• Cc rn 5zo '51 �O m mW ~ ONrn N 5 C D z N A Z •V O D pp xR. 0 Dm ZO�y -1m o�zCm n(w- A c Oz Oy rANZ AwN z cO T zms m z 9 M AD glli Doz C J Q (iz mZA A ON ��O >�zoz v$on rzt- vO� Co N �zvz I D A ~ P zp�o a8 wZ vNOtz s !nN O �O ��� •f+piN m�ZN �> z m C Ii p ZN V W\Z f0 8 A n g m vo w� v z� 7zC J N ' o ay p O NA 0(n Aacz mrr z av z(Aj A AM N f*1 <r� �S o n o c � Of MORTI, 1N " ►O- � A K F g' C"WU TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS I nr VARIANjff f AM 10 2 3 NAME: ';,_` `1r ADDRESS OF APPEAL: a ' d ' '` . 3 `'' � , M ovm Clerk -;Time Stamp Procedure & Requirements for an Application for a Variance Ten (10) copies of the following information must be submitted thirty U days prior to the first public hearing. Failure to submit the required information within the time periods prescribed may result in a dismissal by the Zonina Board of an awlication as incornDlete. The information herein is an abstract of more specific requirements listed in the Zoning Board Rules and Regulations and is not meant to supersede them. The petitioner will complete items that are underlined STEP 1: ADMINISTRATOR PERMIT DENIAL: The petitioner applies for a Building Permit and receivers a Zoning Bylaw Denial form completed by the Building Commissioner. STEP 2: VARIANCE APPLICATION FORM: Petitioner completes an application form to petition the Board of Appeals for a Variance. All information as required in items 1 through and including 11 shall be completed. STEP 3: PLAN PREPARATION: Petitioner submits all of the required plan information as cited in page 4, section 10 of this form. STEP 4: OBTAIN UST OF PARTIES IN INTEREST: The petitioner requests the Assessor's Office to compile a certified list of Parties in Interest (abutters). STEP 6: SCHEDULING OF HEARING AND PREPARATION OF LEGAL NOTICE: The Office of the Zoning Board of Appeals schedules the applicant for a hearing date and prepares the legal notice for mailing to the parties in interest (abutters) and for publication in the newspaper. The petitioner is notified that the legal notice has been prepared and the cost of the Party in Interest fee. STEP 7: DELIVERY OF LEGAL NOTICE TO The petitioner picks up the legal notice from the Office of the Zoning Board of Appeals and delivers the legal notice to the local newspaper for publication. STEP 8: PUBLIC HEARING BEFORE THE ZONING BOARD OF APPEALS: The petitioner should appear in histher behalf, or be represented by an agent or attorney. In the absence of any appearance without due cause on behalf of the petition, the Board shall decide on the matter by using the information it has.received to date. STEP 9: DECISION: After the hearing, a copy of the Board's decision will be sent to all Parties in Interest. Any appeal of the Board's decision may be made pursuant to Massachusetts General Law ch. 40A § 17, within twenty (20) days after the decision is filed with the Town Cleric. STEP 10: RECORDING THE DECISION AND PLANS. STEPS: SUBMIT APPLICATION: The petitioner is responsible for recording certification of Petitioner submits one (1) original and ten (10) Xerox the decision, the Mylar, and any accompanying plans at copies of all the required information to the Town Clerk's the Essex County, North Registry of Deeds, 384 Office to be certified by the Town Clerk with the time Merrimack St. Suite #304, Lawrence MA, 01843 and and date of filing. The original will be left at the Town shall complete the Certification of Recording form and Cleric's Office, and the 10 Xerox copies will be left with forward it to the Zoning Board of Appeals and to the the Zoning Board of Appeals secretary. Building Department. IMPORTANT PHONE NUMBERS: 978-688-9533 Office of Community Dev. & Services 1600 Osgood St., Bldg. 20, Suite 2-36 North Andover, MA 01845 978-688-9542 fax for Community Development offices 978-688-9545 Building Department 978-688-9 1Zp Board of Appeals Office D NUv � �0001 _ren"�Rn QF—AQQEA�'S �_ North Andover Town Hall 120 Main Street 978-688-9501 Town Clerk's Office 978-688-9566 Assessor's Office PAGE 1 of 4 r PAGE 4OF4 9. WRITTEN DOCUMENTATION Application for a Variance must be supported by a legibly written or typed memorandum setting forth in detail all fads relied upon. When requesting a Variance from the requirements of MGLA ch. 40A, Sec. 10.4 and the North Andover Zoning By-laws, all dimensional requirements shall be dearly identified and factually supported. All points, A -F, are required to be addressed with this application. A. The particular use proposed for the land or structure. B. The circumstances relating to soil conditions, shape or topography of such land or structures especially affecting the property for which the Variance is sought which do not affect generally the zoning district in which the property is located. C. Facts which make up the substantial hardship, financial or otherwise, which results from literal enforcement of the applicable zoning restrictions with respect to the land or building for which the variance is sought. D. Facts relied upon to support a finding that relief sought will be desirable and without substantial detriment to the public good. E. Facts relied upon to support a finding that relief sought may be given without nullifying or substantially derogating from the intent or purpose of the Ordinance. F. Submit RDA from Conservation Commission when Continuous Buildable Area is applied for in ZBA application. 10. PLAN OF LAND Each application to the Zoning Board of Appeals shall be accompanied by the following described plan.' Plans must be submitted with this application to the Town Clerk's Office and ZBA secretary at least thirty (30) days .prior to the public hearing before the Zoning Board of appeals. A set of building elevation plans by a Registered Architect. may be required when the application involves new construction/conversion/ and/or a proposed change in use. 10. A. -Major Projects Major prvjeds are those, which involve one of the following whether existing or proposed: A five. (5),.or more parking spaces, 11) three (3) or more dwelling units, "2,000 square feet of building area. Major Projects shall require; that in addition to the 10B & 10C features, that the plans show detailed utilities, soils, and topographic information. VARIANCE *10. B. *Plan Specifications: 1) Size of plan: Ten (10 ) paper copies of a plan not to exceed 11 "x17°, preferred scale of 1 "=40' H) One (1) Mylar, with one block for Registry Use Only, and one block for five (5) ZBA signatures & date. Ell) Plan shall be prepared, stamped and certified by a Registered Professional Land Surveyor. Please note that plans by a Registered Professional Engineer, Registered Architect, and/or a Registered Landscape Architect may be required for Major Projects. *10 C. *Required Features On Pian: I) Site Orientation shall include: 1. north point 2. zoning district (s) 3. names of streets 4. wetlands (if applicable) 5. abutters of property, within 300' radius 6. locations of buildings on adjacent properties within 50' from applicants proposed structure 7. deed restrictions, easements. ED Legend & Graphic Aids shall include: 1. Proposed features in solid lines & outlined in red 2. Existing features to be removed in dashed lines 3. Graphic Scales 4. Date of. Plan 5. Title of Plan 6. Names addresses and phone numbers of the applicant, owner or record, and land surveyor. 7. Locus 10 D. Minor Projects Minor projects, such as decks, sheds, and garages, shall .require only the plan information as indicated with an. asterisk ("). In some cases further information may be required. 11. APPLICATION FILING FEES 11. A. Notification fees: Applicant shall provide a check or money order to: 'Town of -North Andover" for the cost of first class, certified, return receipt -($5.21 as of May 2007) x # of all parties in interest identified in MGLA car. 40A §11 on the abutter's list for the legal notice check. Also, the applicant shall supply first class postage stamps (currently 41 ¢) x the # of parties of interest on the abutter's list for the decision mailing. 11.13. Mailing labels: Applicant shall provide four (4) sets -of mailing labels no larger than 1 °xZwWW (3 copies for the Legal, and one copy for the Decision mailing). 11. C. Applicant shall provide a check or money order to: Town of North Andover" per 2005 Revised Fee Schedule. ► A Variance once granted by the ZBA will lapse in 1 (one) year if not exercised and a new petition must be submitted. 4' ° PAGE 2 OF. 4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a VARIAN C E Please complete all 'ttems 1 10'lelow:--:71 1. Petitioner: *Name, *Address and telephone number: John Carroll c/o Howard P. Speicher, Davis Malm & D'Agostine P.C. One Boston Place, Boston, MA 02108, 617-367-2500 *The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address, telephone number, and number of years under this ownership: Helen St. Cyr, 7 1/2 Beverly Street, Methuen, MA 01844 Anne Marie H. Johnston, under durable power of attorney; 978-994-3990 Years Owned Land: 42 3. Location of Property: a. Street: 810-812 Salem Street Zoning District: R3 b. Assessors: Map number: 65 Lot Number: 15-1 c. Registry of Deeds: Book Number: 10 4 6 Page Number: 89 4. Zoning Bylaw Section(s)* under which the petition for the Variance is made. Section 7.1.1; Table 2 _(Contiguous Building Area) *Refer to the Zoning, Bylaw Denial and Plan Review Narrative form as supplied by the Building Commissioner. 5. Describe the Variance request: In the alternative (see related application for Finding) this application seeks; a variance from the Contiguous Buildable Area (CBA) provisions of Section 7.1.1; and Table 2 of the Bylaws. See attached memorandum The above description shall be used for the purpose of the legal notice and decision. A more detailed description is required pursuant to the Zoning Board Rules and. Regulations as cited on page 4, section 9 of this application. Failure by the applicant to describe the request clearly may result In a decision that does "not address the intent of the applicant. The decision will be limited to the request by the applicant and will not involve additional items not included above. 6 A. Difference from Zoning Bylaw requirements: Indicate the dimension(s) that will not meet current Zoning Bylaw Requirements. (Lines A and B are in case of a lot split) Lot Area Open Space Percentage Lot Frontage Parking Sq. Ft. Sq. Ft. Coverage Feet Spaces.. Front Side A Side B Rear A.00BA N/A 1011111111111111 N/A % N/A N/A N/A N/A- N/A N/A Page 3 of 4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a VARIANC E 6 B. Existing Lot: Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback i Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 122,773 N/A N/A N/A N/A N/A N/A N/A N/A 6 C. Proposed Lot(s): Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 1221773 N/A N/A N/A N/A N/A N/A N/A N/A ► i 6 D. Required Lot: (As required by Zoning Bylaw & Table 2) fI 1 Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback i Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 25,000* N/A N/A N/A N/A N/A N/A N/A N/A *Required CBA is 750 of required lot area, or 18,750 sq. ft. { 7A. Existing Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq. feet Building' of Units" 2610 1 and 2 4600 Barn 'Reference Uses from the Zoning Bylaw & Table 1. "State number of units in building(s). j 7B. Proposed Building(s): Ground Floor Number of Height Total Use of Number I Square feet Floors. Sq. feet Building" of Units" 1540 2.5 33 3080 Dwelling l.t *Reference Uses from the Zoning Bylaw & Table 1. *"State number of units in' building(s). 8. Petitioner and Landowner signature(s): Every application for a Variance shall be made on this form, which is the official form of the Zoning Board of Appeals. Every, application shall be filed with the Town Clerk's Office.- It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy.of this application received by the Town Clerk or the Zoning Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal, notification. Failure to comply with application requirements, as cited herein and in the Zoning Board Rules and Regulations may result in a dismissal by the Zoning Board of this application as incomplete. Type above name(s) here: John Carroll { NORT1{ Zoning Bylaw Review Form °` -_ •'" V• 9+ +• '• Cp Town Of North Andover J°? ,r Building Department 1600 Osgood Street, Building 20, Suite 2-36 �• New single-family dwelling after razing existing dwelling. �SSACHUSEt North Andover, MA. 01845 Frontage Phone 978-688-9545 Fax 978-688-9542 Street: 810-812 Salem Street, Lot 15-1 Ma /Lot: 65115-1 Applicant: John Carroll Request: New single-family dwelling after razing existing dwelling. Date: 10-26-07 Please be advised that after review of your Application and Plans that your Application is DENIED for the following Zoning Bylaw reasons: Zonina District: R-3 Remedy for the above is checked below. Item # Special Permits Planning Board Item # Item Notes Setback Variance Item Notes A Lot Area Common Driveway Special Permit F Frontage Variance for Sign 1 Lot area Insufficient Independent Elderly Housing Special Permit 1 Fronta a Insufficient Earth Removal Special Permit ZBA 2 Lot Area Preexisting Planned Residential Special Permit 2 Frontage Complies X 3 Lot Area Complies X 3 Preexisting frontage 4 Insufficient Information 4 Insufficient Information B Use 5 No access over Frontage 1 Allowed X G Contiguous Building Area 2 Not Allowed 1 Insufficient Area X 3 Use Preexisting 2 Complies 4 Special Permit Required 3 Preexisting CBA 5 Insufficient Information 4 Insufficient Information C Setback H Building Height 1 All setbacks comply X 1 Height Exceeds Maximum 2 Front Insufficient 1 Complies X 3 Left Side Insufficient 3 Preexisting Height 4 Right Side Insufficient 4 Insufficient Information 5 Rear Insufficient I Building Coverage 6 Preexisting setbacks 1 Coverage exceeds maximum 7 Insufficient Information 2 Coverage Complies X D Watershed 3 Coverage Preexisting 1 Not in Watershed X 4 Insufficient Information 2 In Watershed j Sign 3 Lot prior to 10/24/94 1 Sign not allowed 4 Zone to be Determined 2 Sign Complies 5 Insufficient Information 3 Insufficient Information E Historic District K Parking 1 In District review required 1 More Parking Required 2 Not in district X 2 Parking Complies X 3 Insufficient Information Remedy for the above is checked below. Item # Special Permits Planning Board Item # Variance Site Plan Review Special Permit Setback Variance Access other than Frontage Special Permit Parking Variance Frontage Exception Lot Special Permit G-1 Contiguous Buildable Area Variance Common Driveway Special Permit Height Variance Congregate Housing Special Permit Variance for Sign Continuing Care Retirement Special Permit S ecial Permits Zoning Board Independent Elderly Housing Special Permit Special Permit Non -Conforming Use ZBA Large Estate Condo Special Permit Earth Removal Special Permit ZBA Planned Development District Special Permit Special Permit Use not Listed but Similar Planned Residential Special Permit Special Permit for Z Unit R-6 Density Special Permit Special Permit Pre-existing, Non - Conforming Watershed Special Permit Supply Additional Information The above review and attached explanation of such is based on the plans and information submitted. No definitive review and or advice shall be based on verbal explanations by the applicant nor shall such verbal explanations by the applicant serve -to -Provide definitive answers to the above reasons for DENIAL. Any Inaccuracies, misleading Information, or other subsequent changes to the Information submitted by the applicant shall be grounds for this review to be voided at the discretion of the Building Department. The attached document.tltied "Plan Review Narrative" shall be attached hereto and Incorporated herein by reference. The building department ivill retain all plans and documentation for the abqYq file. You must file a new Iding permit application form and begin the permitting proces . / -t A r/� Building Department Official Signature Application Receiued Appli6ation6enied Denial Sent: If Faxed Phone Number/Date: Uu� Plan Review Narrative The following narrative is provided to further explain the reasons for denial for the building permit for the property indicated on the reverse side: I�e{ �!., � „k°�a.,l.yaY:�"':�rrr 7.�.�+"1'x��,���Trr,i �S � ��,YcF�aF�,, 'ac, ,P �"'+ ('k• -S �}d � � �p .5h;_ 'i � F �4xX� X Zoning Board of Appeals G-1 A Variance from the North Andover. Zoning Board of Appeals is required from: 117.1.1 Contiguous Buildable Area (CBA) As of April 28, 1986, the area of any new lot created, exclusive of area. in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area." of the Zoning Bylaw for relief from the 200 foot riverfront zone of Mosquito Brook in order to construct a single family dwelling. x Planning Historical Commission Other BUILDING DEPT Referred To - Fire Health d Police X Zoning Board of Appeals x Conservation Department of Public Works x Planning Historical Commission Other BUILDING DEPT /-umngnyiawiueinai.4vuu TOWN OF NORTH ANDOVER ESSEX, SS. APPEAL OF JOHN CARROLL FOR FINDING AND IN THE ALTERNATIVE FOR A VARIANCE RE: 810-812 SALEM STREET, LOTS 15-1,15-2 ZONING BOARD OF APPEALS APPELLANT'S MEMORANDUM IN SUPPORT OYAPPEAL FOR FINDING AND IN THE ALTERNATIVE FOR A VARIANCE John Carroll, (the "appellant") who is the purchaser of the property at 810-812 Salem Street, pursuant to a purchase and sale agreement with the present owner, Helen St. Cyr, appeals from a decision of the building commissioner denying applications for building permits for two single to be constructed on this subdivided property. In the alternative, the appellant requests that the Board of Appeals grant the variances to authorize the proposed construction. The property at 810-812 Salem Street was formerly a single lot, improved by a single- family dwelling and by a barn. Earlier this year, the Planning Board endorsed a plan as "approval under the subdivision control law not required"; dividing the property into two lots, each with sufficient frontage and area to constitute a separate building lot under the Zoning Bylaw. The two lots, known as Lots 15-1 and 15-2, are located in an R3 residential zoning district. Each has at least the minimum lot area of 25,000 square feet and the minimum frontage of 125 feet. THE LOTS MEET THE CONTIGUOUS BUILDING AREA REQUIREMENTS OF THE BYLAW Both lots are located within 200 feet of Mosquito Brook. Since the adoption of the Riverfront Act in 1996, land within 200 feet of Mosquito Brook and other rivers has been designated as "Riverfront Area" under the Riverfront Act, making it subject to the jurisdiction of the Conservation Commission. By his denial of building permit applications for each of the lots, the building commissioner has questioned whether the lots meet the "contiguous buildable area" ("CBA") requirements of Section 7.1.1 of the Zoning Bylaw, on the basis of their proximity to Mosquito Brook. If "riverfront area" as defined by the Riverfront Act is included in the definition of "wetland resource areas" in the CBA provision of the Bylaw, then both lots are almost without any contiguous building area as defined by the Bylaw, because they are both within 200 feet of Mosquito Brook. However, because the CBA requirements, making "wetland resource areas" subject to the CBA requirements, were adopted a decade before the enactment of the Riverfront Act, the description of "wetland resource areas" in the CBA provision does not include riverfront areas, and therefore the two lots meet the CBA requirements of the Bylaw. The CBA provision of the Zoning Bylaw provides as follows: As of April 28, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area. At the time the CBA provision was adopted in 1986, the incorporation by reference of "wetland resource areas" under the State Wetlands Protection Act (the "State Act") and the North Andover Wetland Protection Bylaw did not include the concept of a 200 -foot buffer from a river or stream. No such resource area existed in the State Act prior to the adoption of the Riverfront Protection Act in 1996, chapter 258 of the Acts of 1996. The riverfront area was 2 adopted as a resource area in the local Wetland Protection Bylaw in 1998. At no time subsequent to its adoption in 1986 has the CBA provision of the Zoning Bylaw been amended to include the new riverfront area as a resource area that must be excluded in calculating CBA. Consequently, the 200 -foot riverfront area cannot be a resource area that must be excluded from CBA. By referring to "wetland resource areas in accordance with" the State Act and the Wetland Protection Bylaw, the CBA provision of the Zoning Bylaw is referring to those wetland resource areas as they were defined at the time of the adoption of the CBA provision in 1986. As a basic matter of statutory interpretation, the CBA provision cannot be properly construed to include subsequently adopted amendments to_ either the State Act, or the Wetland Protection Bylaw. To conclude otherwise would be to, in effect, amend the Zoning Bylaw without a vote of the Town Meeting. Furthermore, such a conclusion would have the effect of amending the Zoning Bylaw, not only without a vote to amend the Zoning Bylaw, but on the basis of an amendment to the Wetland Protection Bylaw that was passed on a majority vote, and not with the two-thirds vote required to amend the Zoning Bylaw. It is a basic rule of statutory construction that a statute incorporating by reference a specific provision of another law cannot be amended by reference simply because the statute to which the reference is made is amended. For instance, in a case in which an employee of a subcontractor of the MBTA tried to take advantage of a subsequent amendment to the "prevailing wage" law that made the law applicable to an "authority" as well as to cities and towns, the court held that the later amendment of the statute did not apply to the plaintiff, because the plaintiff's cause of action arose prior to the adoption of the amendment, and so the statute in question did not impliedly include "authority" with respect to the plaintiff's claim. 3 Ruby v. Earth Tech, Inc., 62 Mass. App. Ct. 1106 (2004). Likewise, the reference to "wetland resource areas" in the CBA provision of the Zoning Bylaw was adopted at a time when the reference could not have included "riverfront" areas as wetland resource areas, because no such resource areas yet existed. The Town Meeting members voting on the adoption of the CBA provision cannot be inferred to have meant to include a resource area under the provision's coverage of which they could have had no knowledge. This conclusion is mandated by the basic principle of statutory construction of "adoption by reference of limited and particular provisions of another statute, in which case the reference does not include subsequent amendments." 2B Sutherland Statutes and Statutory Construction, §51:7 (6th ed., updated October 2006). "[W]here a statute adopts by specific reference the provisions of another statute, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified." Id. The CBA provision, as adopted in 1986, adopted by reference the specific provisions of the State Act and the Wetlands Protection Bylaw existing at the time defining wetland resource areas. Under the principles cited above, this reference cannot be deemed to include later amendments to either the State Act or to the Wetland Protection Bylaw without a specific amendment to the Zoning Bylaw allowing such incorporation by reference of these more stringent provisions. Based on the principles discussed in this letter, we urge the Board to conclude, as we believe the law requires, that the two ANR lots recently approved by the Planning Board at the property are not in violation of the CBA provisions of the Zoning Bylaw by reason of their proximity to Mosquito Brook. 4 ALTERNATIVELY, VARIANCES SHOULD BE GRANTED Alternatively, the applicant has requested the grant of variances for each of the two lots from the provisions of Section 7.1.1 of the Bylaw, which imposes the CBA requirements. If the CBA is applicable to the property, the property meets the requirements for the grant of a variance. Variances are to be granted where "owing to circumstances relating to soil conditions, shape, or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw." The present application meets these requirements for these two lots. Due solely to their proximity to Mosquito Brook, the two lots, although entirely upland, have been deemed to be within a "riverfront area" meant to prohibit construction in wetlands. This is a circumstance relating to the "soil, shape or topography" of the land, and is one that affects this land but does not affect generally other property in the same zoning district.. As a result of this peculiar circumstance, both of these lots are potentially rendered completely unbuildable, subjecting the owner to substantial financial hardship. The existing dwelling on the property is old and in need of replacement, and the barn is no longer viable. Relief may be granted without detriment to the public good and without nullifying or derogating from the intent of the Bylaw. The Conservation Commission has already issued an Order of Conditions authorizing the proposed construction, which is an indication that the proposed construction can be accomplished without damage to Mosquito Brook, the wetland 5 resource the protection of which is the obvious goal of the CBA provision in this location. For the reasons stated above, the applicant respectfully requests that the decision of the building commissioner denying the applicant's building permit applications for the two lots on the grounds that they violated the CBA provisions of the Bylaw be reversed, and that a finding be made that the proposed construction on the two lots does not violate the CBA provisions of the Bylaw. In the alternative, the applicant requests that the Board issue variances from the CBA provisions, so that the building commissioner may issue building permits for the proposed construction of a single family home on each of the two lots. Dated- November 14, 2007 G 459606v.1 Respectfully submitted, JOHN CARROLL, By his attorney, Howard P. r7hBO #474380 Davis, Mahn & D'Agostine, P.C. One Boston Place Boston, MA 02108 (617) 367-2500 r eaYm& )OSEPH A (QP.AAY, PZ Ams Ar LAW 345 MAM SnW P.O. Box 730 HAVPXPJ, MA 01831.1303 1, Helen J. St. Cyr, being unmarried, of Methuen, Essex C uiq, Massachusetts For less than One Hundred and 001100 ($100.00) Dollars Cmndderetion Paid Grant to Helen J. St. Cyr, Trustee of the St. Cyr Family Trust, under Declaration of Trust dated September 1, 2005, laving an address of 7 1h Beverly Street, Methuen, Massachusetts 01844 WiTB QUITCLAIM COVENANTS The land with the buildings thereon, situated on Salem Street, North Andover, and having a street address of 812 Salem Street, North Andover, Massachusetts 01845, bounded and described as follows: Beginning at a stake and stones on the northerly corner near a stone bridge back of the barn now or formerly of Mr. Abijal Fuller; thence SOUTHWESTERLY by the road as the fence stands 26 poles to a stake and sto at the southeasterly corner by the Salem Road; thence WESTERLY and NORTHERLY by said road as the fence now stands 39 poles to a stake and sW bdd formerly of Phmeas Foster land; thence EASTERLY by land now or formerly of said Foster land as the lhnce stands Ctjole6lb the first bound. Containing four acres and forty poles more or less. Being the same premises conveyed to me by deed of my late husband, Gerard C. St. Cyr and My dated October 13, 1965 and recorded with Essex North District Registry of Deeds, Book 1046, Page 8 NO TITLE EXAMINATION REQUESTED. WITNESS my band and seat this 13* day of October, 2005. � f I COMMONWEALTH OF MASSACHUSETTS Essex, ss. On this 13* day of October, 2005, before me, the undersigned Notary Public, personally appeared the above-named Helen J. St Cyr proved to me by satisfactory evidence of identification, being (check whichever applies): [ ] driver's license or other state or federal governmental document bearing a photographic image, [ ] oath or affirmation of a credible witness known to me who knows the above signatory, or Kmy own personal knowledge of the identity of the signatory, to be the person whose name is signed above, and acknowledged the foregoing to be signed by her, as her free act and deed, voluntarily for its stated purpose. �earris�awsM+e JOSEPH A. CLEAJ=5 CO4tM110l�d MTH Di atitsso M/ em m. Expka NTe. y F . Ac; Joseph A. Cleary y Commission Expires: November 12, 2005 Qualified in the Commonwealth of Massachusetts Abutter to Abutter ( ) Building Dept. ( ) Conservation ( ) Zoning ( ) REQUIREMENT: MGL 40A, Section 11 states in part "Parties in Interest as used in this chapter shall mean the petitioner, This certifies that the names appearing on the reFords of the Assessors Office as of tv2tou Q 0 U Certified b : - Date".4�77 Date 11/15/2007 Page 1 of 1 abutters, owners of land directly oppositeon any public or private way, and abutters to abutters within three hundred (300) feet of the property line of the petitioner as they appear on the most recent applicable tax list, not withstanding that the land of any such owner is located in another city or town, the planning board of the city or town, and the planning board of every abutting city or town." Subject Prooertv: MAP PARCEL Name Address 65 15 Helen St. Cyr 812 Salem Street North Andover, MA 01845 Abutters Properties Map Parcel Name Address 65 14 Woelk Egbert 50 Keyes Way North Andover, MA 01845 65 22 Frank Kirby 10 Summer Street North Andover, MA 01845 65 26 Michael Foss 771 Salem Street North Andover, MA 01845 65 27 Derek Larson 20 Abbott Street North Andover, MA 01845 65 42 Francis Kozdras 805 Salem Street North Andover, MA 01845 65 53 Joyce Cooper 844 Salem Street North Andover, MA 01845 65 55 Anna TymvakieWz 464 Appleton Street North Andover, MA 01845 65 59 Goran Bringert 817 Salem Street North Andover, MA 01845 65 60 David Eckman 835 Salem Street North Andover, MA 01845 65 63 Roger Mailhot 410 Blue Ridge Road North Andover, MA 01845 65 66 Charlotte Pellegrino 18 Summer Street North Andover, MA 01845 65 88 Clarke Harris 793 Salem Street North Andover, MA 01845 65 282 Larry Ayres 45 Keyes Way North Andover, MA 01845 This certifies that the names appearing on the reFords of the Assessors Office as of tv2tou Q 0 U Certified b : - Date".4�77 Date 11/15/2007 Page 1 of 1 i oaO_o o >>z ;o oca;gym nW �2 Q� �' I �`'m�O ;nT n -i V -0i m= I �f acv Z vmi-yA; y f 10 0 �z A f f mw mc�m ZP m c Zig r4i > F Z ogo m� -9m� d m a n W Z p O p�o z A O? 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L T, D - f� Z z IT z' C: z In r;i V, • r V z D U n S V' 'z ? -'t n A'�+� (� !n z m r; 6 +C ti CC�,t' _ (D^ y Z o' f`CrC O TM O - C br f^.O h b OZOJ) LTi 1+1 f� q C4 vl fi Jr ^ Of rr + p C 0 F -< S xo rn Sn m z z C, ry. hJ �• IT f'1 w C! j xiv ILIMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1392 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. General Information Important: North Andover When filling From: 1. Conservation Commission out forms on the computer, 2. This issuance is for (check one): ® Order of Conditions ❑ Amended Order of Conditions use only the tab key to 3. To: Applicant: move your cursor - do not John Carroll use the return a. First Name b. Last Name c. Company key. 1501 Main Street, Unit-15 d. Mailing Address Tewksbury MA. 01876 e. City/Town f. State g. Zip Code 4. Property Owner (if different from applicant): Helen St. Cyr a. First Name b. Last Name c. Company 812 Salem Street d. Mailing Address North Andover MA. 01845 e. Citylrown f. State g. Zip Code s. Project Location: 812 Salem Street North Andover a. Street Address b. City/Town Map 65 Parcel 15 c. Assessors Map/Plat Number d. Parcel/Lot Number Latitude and Longitude, if known (note: 42-40'-48" 71-02"-17" 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) 1046 89 c. Book d. Pa e 3/30/07 / a /97 7. Dates: a. Date Notice of Intent Filed b. Date P blit earing Closed c. Dat of l suance 8. Final Approved Plans and Other Documents (attach additional plan or document references as needed): Site Development Plan, sties+ I z a a. Plan Title Merrimack Engineering Services, Inc. Vladimir L. Nemchenok, P. E., Stephen E. b. Prepared By Stapinski, P. L. S. JJL n e- l y, ;;I o07 1 = 20' d. Final Rev s on Date e. Scale . x s C0.11;-I-; 0IJO " I4,, MLI- ro DO f. Additional n or Document Title g. Date ( rc _4.5; 9. Total WPA Fee Paid: $3528.00 $775.00 $2,753.00 a. Total Fee Paid b. State Fee Paid c. Cityrrown Fee Paid wpaform5.doc • rev. 3/1/05 Page 1 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 B. Findings 1. Findings pursuant to the Massachusetts Wetlands Protection Act: DEP File Number: 242-1392 Following the review of the above -referenced Notice of Intent and based on the information provided in this application and presented at the public hearing, this Commission finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply: a. ® Public Water Supply b. ❑ Land Containing Shellfish c. ® Prevention of Pollution d. ® Private Water Supply e. ❑ Fisheries f. ® Protection of Wildlife Habitat g. ® Groundwater Supply h. ® Storm Damage Prevention i. ® Flood Control 2. This Commission hereby finds the project, as proposed, is: (check one of the following boxes) Approved subject to: ® the following conditions which are necessary in accordance with the performance standards set forth in the wetlands regulations. This Commission orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. Denied because: ❑ the proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect these interests, and a final Order of Conditions is issued. A description of the performance standards which the proposed work cannot meet is attached to this Order. ❑ the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the Act's interests, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMR 10.05(6)(c). Inland Resource Area Impacts: Check all that apply below. (For Approvals Only) ❑ Buffer Zone Impacts: Shortest distance between limit of project disturbance and wetland boundary (if available) linear feet Resource Area Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 3. ❑ Bank a. linear feet b. linear feet c. linear feet d. linear feet 4. ❑ Bordering Vegetated Wetland a. square feet b. square feet c. square feet d. square feet 5. ❑ Land Under a. square feet b. square feet c. square feet Waterbodies and d. square feet Waterways e. cu.yd dredged f. cu.yd dredged wpaform5.doc • rev. 3/1/05 Page 2 of 9 ILIMassachusetts 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: 242-1392 B. Findings (cont.) ❑ Barrier Beaches 12. Resource Area Proposed Permitted Proposed Coastal Dunes Alteration Alteration Replacement s. ❑ Bordering Land ❑ Rocky Intertidal Subject to Flooding a. square feet b. square feet c. square feet Cubic Feet Flood 17. ❑ Land Under Salt Storage e. cubic feet f. cubic feet g. cubic feet 7. ❑ Isolated Land Subject to Flooding a. square feet b, square feet Cubic Feet Flood Storage c. cubic feet d. cubic feet e. cubic feet 8. ❑ Rlverfront area a. total 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) s. ❑ Designated Port Areas Indicate size under Land Under the Ocean, below 10. ❑ Land Under the Ocean a. square feet b. square feet 11. ❑ Barrier Beaches 12. ❑ Coastal Beaches 13. ❑ Coastal Dunes 14. ❑ Coastal Banks 15. ❑ Rocky Intertidal Shores 16. ❑ Salt Marshes 17. ❑ Land Under Salt Ponds 18. ❑ Land Containing Shellfish 19. ❑ Fish Runs 20. ❑ Land Subject to Coastal Storm Flowage Permitted Replacement h. cubic feet f. cubic feet f. square feet c. cu.yd dredged d. cu.yd dredged Indicate size under Coastal Beaches and/or Coastal Dunes below a. square feet b. square feet c. c/y nourishmt. d. c/y nourishmt a. linear feet b. linear feet a. square feet b. square feet 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 vvpaform5.doc • rev. 3/1/05 Page 3 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1392 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 242-1392 wpaform5.doc- rev. 3/1/05 Page 4 of 9 L11Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1392 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: If you need more See attached space for additional conditions, select box to attach a text document wpaform5.doc • rev. 3/1/05 Page 5 of 9 If you need more space for additional conditions, select box to attach a text document 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: 242-1392 D. Findings Under Municipal Wetlands Bylaw or Ordinance 1. Is a municipal wetlands bylaw or ordinance applicable? ® Yes ❑ No 2. The North Andover hereby finds (check one that applies): Conservation Commission 3. ❑ that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw specifically: a. Municipal Ordinance or Bylaw b. Citation Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order of Conditions is issued. 4. ® that the following additional conditions are necessary to comply with a municipal ordinance or bylaw: North Andover Wetland Protection Bylaw Chapter 178 a. Municipal Ordinance or Bylaw b. Citation The Commission orders that all work shall be performed in accordance with the following conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, the conditions shall control. 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 -1392 Therefore, the North Andover Conservation Commission (hereafter the "NACC") hereby finds that the following conditions are necessary, in accordance with the Performance Standards set forth in the State Regulations, the local ByLaw and Regulations, to protect those interests noted above. The NACC orders that all work shall be performed in accordance with said conditions and with the Notice of Intent referenced below. To the extent that the following conditions modify or differ from the plans, specifications or other proposals submitted with 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 or modify this Order. 19. This Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of property rights. However, the NACC, agent of the NACC or the Department of Environmental Protection (DEP) reserves the right to enter and inspect the property at all reasonable times until a Certificate of Compliance is issued, to evaluate compliance with this Order of Conditions, the Act (310 CMR 10.00), the North Andover Wetland ByLaw and Regulations, and may require any information, measurements, photographs, observations, and/or materials, or may require the submittal of any data or information deemed necessary by the NACC for that evaluation. Further, work shall be halted on the site if the NACC, agent or DEP determines that any of the work is not in compliance with this Order of Conditions. Work shall not resume until the NACC is satisfied that. the work will comply and has so notified the applicant in writing. 20. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. 21. The work authorized hereunder shall be completed within three years from the date of this order. 22. This Order may be extended by the issuing authority for one or more periods of up to one year each upon application to the issuing authority at least thirty days (30) prior to the expiration date of the Order (Refer to Section 8.3)(p.37) of the North Andover Wetland Regulations). 23. The NACC reserves the right to amend this Order of Conditions after a legally advertised public hearing if plans or circumstances are changed or if new conditions or information so warrant. C:\Winword\OOC\242-1392\812SalemSt.doc 1 NACC 7/2/2007 DEP FILE # 242 -1392 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. 25. This Order is issued under File No. 242-1392. 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: Razing of an existing house and barn in order to construct two single-family homes with associated appurtenances, decks, driveways, roof drain drywells and grading activities within the buffer zone to a BVW and within Riverfront area of Mosquito Brook. The 100 -yr flood plain associated with the brook is also located on the site at elevation 141.5. No work is proposed within the floodplain. 29. The work shall conform to the following: Notice of Intent filed by: John Carroll (Applicant) 1501 Main Street Tewksbury, MA 01876. Dated March 30, 2007 (Appendix B includes the Alternatives Analysis required under the regulations for work within Riverfront Areas) Prepared by: Merrimack Engineering Services, Inc. (Representative) 66 Park Street Andover, MA 01810 Site Plans prepared by: Merrimack Engineering Services, Inc. 66 Park Street Andover, MA 01810 Entitled "Site Development Plan" consisting of sheets 1 & 2, dated March 2, 2007, last revised June 14, 2007 and "Existing Conditions Plan", dated April 26, 2007, last - revised May 10, 2007. Stamped & Signed by Stephen E. Stapinski, R.P.L.S. Other Record Documents: Wetland Delineation Review Letter from Seekamp Environmental Consulting, Inc. dated May 8,2007; C:\Winword\OOC\242-1392\812SalemSt.doc 2 NACC 7/2/2007 DEP FILE # 242 -1392 30. The following wetland resource areas are affected by the proposed work: Buffer Zone to Bordering Vegetated Wetland (BVW) and Riverfront Area. 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. 31. The NACC agrees with the applicant's delineation of the wetland resource areas on the site as shown on the plans dated referenced herein. 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 BVW and a 100 -foot (100') No -Disturbance Zone shall be established from Mosquito Brook except in those locations as shown on the approved plan referenced herein (specifically for the installation of the Post and Rail fence, a small portion of the driveway, for the minimal change in grade and for a 1x per year annual mowing of the BVW as further described herein on Lot #15-1). 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). The established No -Disturbance Zones shall be enforced in perpetuity in accordance with the provisions and performance standards set forth in section 3.3 and 3.4 of the North Andover Wetlands Protection Bylaw and section 10.58 the Riverfront Regulations of the Wetlands Protection Act. 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, any and all the above stated parties and the applicant 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 Commissions 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. C:\Winword\OOC\242-1392\812SalemSt.doc 3 NACC 7/2/2007 DEP FILE # 242 -1392 35. Issuance of these Conditions does not in any way imply or certify that the site or downstream areas will not be subject to flooding, storm damage or any other form of water damage. PRIOR TO CONSTRUCTION 36. No work shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department or Court have been completed. 37. This Order shall be recorded by the applicant at the Registry of Deeds immediately after the expiration of all appeal periods. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. The recording information shall be submitted to the North Andover Conservation Commission on the form at the end of this Order prior to commencement of the work. Any Order not recorded by the applicant before work commences may be recorded by the NACC at the applicant's expense. 38. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words "Massachusetts DEP, File Number 242-1392." 39. Prior to the construction of the single-family home on Lot #15-1, the applicant shall stake, by professional survey, the foundation corners of the home and associated deck and driveway for review and approval by the NACC or agent thereof. 40. Any changes in the submitted plans caused by the applicant, state or federal agency, 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. 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 be still 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 construction. No work shall begin on a project until written approval has been granted by the NACC. C:\Winword\OOC\242-1392\812SalemSt.doc 4 NACC 7/2/2007 DEP FILE # 242 -1392 41. 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. 42. Prior to any work commencing on site, the applicant shall submit to the NACC for approval, a detailed sequence of construction, including a dated timetable of construction, the construction of compensation and retention areas, installation of sedimentation/erosion control devices and revegetation. 43. Prior to any work commencing on the site, the applicant shall permanently mark the edge of the No -Disturbance Zone along the post and rail fence with nine (9) signs or markers spaced evenly every 40 feet incorporating the following text: "Protected Wetland Resource Area". This will designate their sensitivity and assure no further inadvertent encroachment into the wetland. These permanent markers are subject to review and approval by the NACC. The applicant shall instruct all agents to explain these markers to buyers/lessees/landscapers and all persons taking over the property from the applicant. 44. Wetland flagging shall be checked prior to start of construction and shall be re- established where missing. All wetland flagging shall remain visible and enumerated per the approved plan(s) throughout the life of the project and until a Certificate of Compliance is issued so that erosion control measures can be properly placed and wetland impacts can be monitored. The proposed limit of work shall be shall be clearly marked with stakes or flags and shall be confirmed by the NACC. Such markers shall be checked and replaced as necessary and shall be maintained until all construction is complete. Workers should be informed that no use of machinery, storage of machinery or materials, stockpiling of soil, or construction activity is to occur beyond this line at any time. All flags used for the above purposes shall be of a color different from other flagging used on the site. 45. A row of staked hay bales backed by trenched siltation fence shall be placed between all construction areas and wetlands. The erosion control barrier will be properly installed and placed as shown on the plans approved and referenced herein and shall be inspected and approved by the NACC prior to the start of construction and shall remain intact until all disturbed areas have been permanently stabilized to prevent erosion. All erosion prevention and sedimentation protection measures found necessary during construction shall be implemented at the direction of the NACC. The NACC reserves the right to impose additional conditions on portions of this project to mitigate any impacts which could result from site erosion, or any noticeable degradation of surface water quality discharging from the site. For example, installation of erosion control measures may be required in areas not shown on the plan(s) referenced in this Order of Conditions. Should such installation be required by the NACC, they shall be installed within 48 hours of the Commissions request. C:\Winword\OOC\242-1392\812SalemSt.doc 5 NACC 7/2/2007 DEP FILE # 242 -1392 46. The applicant shall have on hand at the start of any soil disturbance, removal or stockpiling, a minimum of 20 hay bales and sufficient stakes for staking these bales (or an equivalent amount of silt fence). Said bales shall be used only for the control of emergency erosion problems and shall not be used for the normal control of erosion. Additional emergency erosion controls shall be on site prior to the commencement of any work and shall 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 $8,000 shall be provided to the Town of North Andover, which shall be in all respects satisfactory to Town Counsel, Town Treasurer, and the NACC, and shall be posted with the North Andover Town Treasurer through the NACC before commencement of work. Said deposit of money shall be conditioned on the completion of all conditions hereof, shall be signed by a party or parties satisfactory to the NACC, and Town Counsel, and shall be released after completion of the project, provided that provisions, satisfactory to the NACC, have been made for performance of any conditions which are of continuing nature. The applicant may propose a monetary release schedule keyed to completion of specific portions of the project for the NACC's review and approval. This condition is issued under the authority of the local ByLaw. 48. The applicant shall be responsible for placing signs on each parcel designating the applicable lot number as depicted on the plans approved and referenced herein. 49. The applicant shall designate a Qualified Professional Wetland Scientist as an "Erosion Control Monitor" to oversee any emergency placement of controls and regular inspection or replacement of sedimentation control devices. The name and phone number of the erosion control monitor must be provided to the NACC in the event that this person has to be contacted, due to an emergency at the site, during any 24-hour period, including weekends. Credentials of said Erosion Control Monitor shall be submitted in writing for review and subsequent approval by the NACC or an agent thereof. This person shall be given the authority to stop construction for erosion control purposes. The erosion control monitor will be required to inspect all such devices and oversee cleaning and the proper disposal of waste products. Cleaning shall include removal of any entrapped silt. 50. ON EVERY MONDAY of each week, or otherwise arranged by the NACC, in which construction activities occur on site or for as long thereafter as ground remains unstable, the "Erosion Control Monitor" shall submit a written report to the NACC certifying that, to the best of his/her knowledge and belief based on a careful site inspection, all work is being performed in compliance with this Order of Conditions and that approved setbacks are being adhered to. The erosion control monitor must visually inspect all sedimentation/erosion control measures and assume responsibility for their maintenance on a weekly basis and that they are functioning as intended. In addition, all wetland resource areas must be visually inspected for siltation, turbidity, and/or other water quality impacts. C:\Winword\OOC\242-1392\812SalemSt.doc 6 NACC 7/2/2007 DEP FILE # 242 -1392 51. 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 herein) 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 prior to the closing of said land transaction. 52. 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, the 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 of the pre - construction meeting (e.g. 72 hours). STORMWATER MANAGEMENT CONDITIONS 53. 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 and as approved by the NACC in this Order of Conditions. 54. All proposed drainage structures shall be properly installed and functional. During construction, all drainage structures shall be properly maintained. 55. There shall be no increase in the post development discharges from the storm drainage system or any other changes in post development conditions that alter the post development watershed boundaries as currently depicted in the Notice of Intent and approved by this Order of Conditions, unless specifically approved in writing by the Commission. 56. Water quality down gradient of BVW's shall not differ significantly following completion of the project from the pre -development conditions. There shall be no sedimentation into wetlands or water bodies from discharge pipes or surface runoff leaving the site. C:\Winword\OOC\242-1392\812SalemSt.doc 7 NACC 7/2/2007 DEP FILE # 242 -1392 57. 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 58. IMPORTANT: Immediately upon completion of the dwelling foundations, and prior to further construction activities associated with the site, the applicant shall complete a plan prepared by a Registered Professional Land Surveyor of the Commonwealth (R.P.L.S.) which accurately depicts the foundation locations and it's proximity to wetland resource areas as approved under this Order of Conditions. Said plan shall be submitted to the Conservation Administrator for approval. 59. Accepted engineering and Best Management Practices (BMPs) for construction standards shall be followed in the conduct of all work. 60. Erosion control devices shall be inspected regularly; any entrapped silt shall be removed to an area outside of the buffer zone and wetland resource areas; silt fence and hay bales shall be replaced as necessary. The areas of construction shall remain in stable condition at the close of each construction day. All erosion controls shall be in place throughout the duration of any construction on site or unless authorized by the Conservation personnel. 61. Upon beginning work, the applicant shall submit written progress reports every week 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. 62. The Erosion Control Monitor shall be on site during and/or following a major storm event of 1 inch of rain or greater to ensure that soils remain stable, erosion controls are adequate and secure, and that all BMP's are adequately functioning. 63. Approved de -watering activities shall be supervised and witnessed by the designated erosion control monitor. This designee must be on-site at all times while dewatering is occurring. De -watering activities shall be monitored daily by the erosion control monitor to ensure that sediment laden water is appropriately settled prior to discharge toward the wetland resource areas. No discharge of water is allowed directly into an area subject to jurisdiction of the Wetlands Protection Act and/or the North Andover Wetland ByLaw. If emergency de -watering requirements arise, the applicant shall submit a contingency plan to the Commission for approval, which provides for the pumped water to be contained in a settling basin, to reduce turbidity prior to discharge into a resource area. C:\Winword\OOC\242-1392\812SalemSt.doc 8 NACC 7/2/2007 DEP FILE # 242 -1392 64. Any fill used in connectionmith this project shall be clean fill, containing no trash, refuse, rubbish or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts on any of the foregoing. 65. 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 1St of each year. Outside of the growing season, exposed soil finish grade surfaces shall be stabilized with a layer of mulch hay until climate conditions allow for seeding. No exposed area shall remain unfinished for more than thirty (30) days, unless approved by the NACC. 66. 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. 67. Equipment shall not be staged overnight within 100 -feet of a wetland resource area. 68. There shall be no stockpiling of soil or other materials within twenty-five (25) feet of any resource area. 69. Washings from concrete trucks, or surplus concrete, shall not be directed to, any drainage system, or wetland resource area. 70. 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. 71. 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 o pollutant during any phase of construction the NACC shall be notified by the applicant within one (1) business day. No construction vehicles are to be stored within 100 feet of wetland resource areas, and no vehicle refueling, equipment lubrication, or maintenance is to be done within 100 feet of a resource area. AFTER CONSTRUCTION 72. 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. C:\Winword\OOC\242-1392\812SalemSt.doc 9 NACC 7/2/2007 DEP FILE # 242 -1392 73. Fertilizers, pesticides, and herbicides utilized for landscaping and lawn care shall be slow release, low -nitrogen types (< 5%) and shall not be used within 100 feet of a resource area or within the Riverfront 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 and shall remain in perpetuity. 74. There shall be no dumping of leaves, grass clippings, brush, or other debris into the wetland or water body or within 25' of the wetland or water body. This condition shall survive the expiration of this Order and shall be included as a continuing condition in perpetuity. 75. The applicant has proposed a snow stockpiling area to the southeast of the proposed driveway to the front of Salem Street to ensure that snow will not be stockpiled to the rear of the driveway within the more sensitive locations of the resource areas (100' riverfront inner riparian zone). The NACC finds that this stockpiling location is not realistic for the site and/or for the proposed layout of the lot. In order to ensure that no snow will be stockpiled at the end of the driveway, the NACC hereby prohibits such snow stockpiling beyond the proposed driveway and within the limits of the 100' inner riparian zone of the Riverfront area as specified on the approved plans referenced herein. This condition shall remain in perpetuity of this Order. 76. Upon completion of work, the applicant shall permanently mark the edge of the "25' No - Disturbance Zone" with signs or markers spaced evenly every 40 feet incorporating the following text: "Protected Wetland Resource Area" (available at the Conservation Department). This will designate their sensitivity and assure no further inadvertent encroachment into the wetland. These permanent markers are subject to review and approval by the NACC. The applicant shall instruct all agents to explain these markers to buyers/lessees/landscapers and all persons taking over the property from the applicant. 77. 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 o will be considered complete once vegetative cover has been achieved. 78. 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. 79. Upon completion of the project the applicant shall submit the following to the Conservation Commission as part of a request for a Certificate of Compliance: a. WPA Form. 8A - "Request for a Certificate of Compliance." b. A letter from the applicant requesting a Certificate of Compliance. c. The name and address of the current landowner. d. Signed statements from the individual property owners shall be submitted with the request for a Certificate of Compliance indicating that they read and understood the recorded Order of Conditions prior to purchasing their property. C:\Winword\OOC\242-1392\812SalemSt.doc 10 NACC 7/2/2007 DEP FILE # 242 -1392 e. The name and address of the individual/ trust or corporation to whom the compliance is to be granted. f. The street address and assessor's map/ parcel number for the project. g. The DEP file number. h. A written statement from a Registered Professional Civil Engineer and a 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 Registered Professional Land Surveyor of the Commonwealth, for the public record. This plan will include: ➢ "As -Built" post -development elevations of all drainage & stormwater management structures constructed within 100 feet of any wetland resource area. NOTE: If portions of the stormwater systems exist partially within the Buffer Zone than the entire structure must be depicted to accurately verify compliance. ➢ "As -Built" post -development elevations and grades of all filled or altered wetland resource areas including the encompassing buffer zone, which is regulated as a resource area under the local Wetland Protection Bylaw. ➢ 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. ➢ A line showing the limit of work and the extent of existing erosion control devices. "Work" includes jiny disturbance of soils or vegetation. ➢ Location of all subsurface utilities entering the property. C:\Winword\OOC\242-1392\812SalernSt.doc 11 NACC 7/2/2007 DEP FILE # 242 -1392 80. The following special conditions shall survive the issuance of a Certificate of Compliance (COC) for this project: ➢ A 25' No -Disturbance Zone and a 50' No -Construction Zone shall be established from the edge of the adjacent Bordering Vegetated Wetland (BVW) resource area and a 100' No -Disturbance Zone shall be established from Mosquito Brook except in those locations approved under this filing. Future work within 100' of existing resource areas or within 200' of existing riverfront 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); ➢ 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 #57); ➢ Discharge or spillage of pollutants (Condition #71); ➢ Prohibition of underground fuels (Condition #72); ➢ Limitations on the use of fertilizers, herbicides, and pesticides (Condition #73). ➢ Prohibition of dumping of leaves, grass clippings, brush, or other debris (Condition #74) ➢ Prohibition and Limitations on snow stockpiling (Condition #75) C:\Winword\OOC\242-1392\812SalemSt.doc 12 NACC 7/2/2007 DEP FILE # 242 -1392 APPENDIX A - AFFIDAVIT I, on oath do hereby depose and state: (authorized agent applicant and/or current owner) (PLEASE CHECK AT LEAST ONE BLOCK) 1. I am the of ( position with applicant) (applicant name or company name) the applicant upon whom Order of Conditions have been placed upon by (DEP or NACC number) the North Andover Conservation Commission. &/or 0 rl 2. I am the of (position with owner) (owner name) the owner upon whose land Order of Conditions have been placed up by (DEP or NACC number) the North Andover Conservation Commission. . 3. I hereby affirm and acknowledge that I have received said Order of Conditions and have read the same and understand each (DEP File #) and every condition which has been set forth in said Order of Conditions. 4. I hereby affirm and acknowledge that on this day of 19_ I inspected said property together with any and all improvements which have been made to the same and hereby certify that each and every condition set forth in Order of Conditions are presently in compliance. (DEP File #) & 5. I hereby affirm and acknowledge that this document will be relied upon by the North Andover Conservation Commission as well as any potential buyers of said property which is subject to said Order of Conditions (DEP File #) Signed under the pains and penalties of perjury this day of 19 (Signature - authorized agent of applicant or owner) C:\Winword\OOC\242-1392\812SalemSt.doc 13 NACC 7/2/2007 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: 242-1392 This Order is valid for three years, unless otherwise specified as a special 7b107 condition pursuant to General Conditions #4, from the date of issuance. 1. Date df Is uance Please indicate the number of members who will sign this form: `5' 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 property different from applicant. Signatures: Notary Acknowledgement Commonwealth of Massachusetts County of Essex North �Ru e- 9007 On this Day Of Month 1 Year Before me, the undersigned Notary Public, SCOT_ �Se-- personally appeared Name of Document Signer proved to me through satisfactory evidence of identification, which was/were Massachusetts License Description of evidence of identification to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose. North Andover As member of � DONNA M. WEDGE tlTrP NOTARY PUBLIC COMMONWEALTH OF MASSACHUSETTS i�ly Comm. Expires Aub. -=^9 City/Town Place notary seal and/or any stamp above This Order is issued to the applicant as follows: ❑ by hand delivery on Date Conservation Commission Sig—nature of Notary Public COF _Dot-),-) .q iD A1,e-Z C- - Printed Name of Notary Public P 1'7 / a00 a My Commissiorl Expires (Date) j(by certified mail, return receipt requested, on 7A A 7 Date wpaform5.doc • rev. 311/05 Page 7 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 F. Appeals DEP File Number: 242-1392 The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate DEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order or Determination, or providing written information to the Department prior to issuance of a Superseding Order or Determination. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act, (M.G.L. c. 131, § 40) and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. Section G, Recording Information is available on the following page. wpaform5.doc • rev. 3/1/05 Page 8 of 9 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 5 - Order of Conditions 242-1392 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 G. Recording Information This Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on Page 7 of this form shall be submitted to the Conservation Commission listed below. North Andover Conservation commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. --------------------------------------------------------------------------------------------------------------------------- To: North Andover Conservation Commission Please be advised that the Order of Conditions for the Project at: Project Location Has been recorded at the Registry of Deeds of: County for: Property Owner 242-1392 DEP File Number Book and has been noted in the chain of title of the affected property in: Book In accordance with the Order of Conditions issued on: Date Page 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 Page wpaform5.doc • rev. 3/1/05 Page 9 of 9 OD N (Q CD Cn OTmx MKTWtoto D O m C w w w —0 o� Zpad) M 3tDmm C W O i3 2 = n�®m 0--i� r 3 20 I 3 = ZE .' m D Z ow -1 <L�WO H Z CM3 M cn MM c. r W >oDmT.Wmx-n03-1 Z �wto x -wxwe mo 3'i Z X33 �3oi D w w w 3c C =r O �° 3 71w0 °' m.m.v, �! m m N n� x N -i -i w cn CO v O M z z o -V0G) <m -ICDc9 C) F - ti o�3nm� o 0. m cn -"' 3D m 030 3D� va 3, c D� Dm y m-�c N �m m @w m m y m o o X m LZ o.>D io w10 oaw O aD Q•D m0OZ >IXO m7 0 OtAW DZ 3 3 ci �� A pDQQr CL CD w 0 CO to to to CD www w C o a o~o� oo <�D•n 03 M O. m m m O W .a Z ' ► p _.nWWWVI N-'�A Z p w O °m o x o j cnWcn(Dc v o 0 of m w V O ' cs cn m 00 D {/ wrn 3 �A;O dD o .. 7f o o m Z o f w C) o ry -i > co oD � -moi .� �y;: D s 10c1 ao- WOD< m 0 rn i, .,. 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S E - 400 FEET = 1 INCH SEE PLAT NO. 38 �� STREE MEASUREMENTS ARE SCALED ONL NOT FOR SURVEY P POSE. 0 11 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 310 CMR 10.00: WETLANDS PROTECTION Section Regulations for All Wetlands 10.01: Introduction and Purpose 10.02: Statement of Jurisdiction 10.03: General Provisions 10.04: Definitions 10.05: Procedures 10.06: Emergencies 10.07: Compliance with M.G.L. c. 61 through 62H 10.08: Enforcement Orders 10.09: Severability 10.10: Effective Date Additional Regulations for Coastal Wetlands 10.21: Introduction 10.22: Purpose 10.23: Additional Definitions for 310 CMR 10.21 through 10.37 10.24: General Provisions 10.25: Land Under the Ocean 10.26: Designated Port Areas 10.27: Coastal Beaches 10.28: Coastal Dunes 10.29: Barrier Beaches 10.30: Coastal Banks 10.31: Rocky Intertidal Shores 10.32: Salt Marshes 10.33: Land Under Salt Ponds 1034: Land Containing Shellfish 10.35: Banks of or Land Under the Ocean, Ponds, Streams, Rivers, Lakes or Creeks that Underlie Amdromous/Catadromous ('Fish Run') (10.36: Reserved: Variance provision is found at 310 CMR 10.05(10)) 10.37: Estimated Habitats of Rare Wildlife (for coastal wetlands) Additional Regulaitons for Inland Wetlands 10.51: Introduction 10.52: Purpose 10.53: General Provisions 10.54: Bank (Naturally Occurring Banks and Beaches) 10.55: Bordering Vegetated Wetlands (Wet Meadows, Marshes, Swamps and Bogs) 10.56: Land under Water Bodies and Waterways (Under any Creek, River, Stream, Pond or Lake) 10.57: Land Subject to Flooding (Bordering and Isolated Areas) 10.58: Riverfront Area 10.59: Estimated Habitats of Rare Wildlife (for inland wetlands) 10.60: Wildlife Habitat Evaluations Appendices: Prefaces to Previous Regulatory Revisions Protection of Wildlife Habitat; 1987 Rights of Way Management; 1987 1983 Regulatory Revisions Fees; 1989 Technical Changes; 1992 Maintenance and Improvement of Land in Agricultural Use; 1993 Preface to Wetlands Regulatory Revisions Effective January 1, 1994 t 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.58: continued The purpose of evaluating project alternatives is to locate activities so that impacts to the riverfront area are avoided to the extent practicable. Projects within the scope of alternatives must be evaluated to determine whether any are practicable. As much of a project as feasible shallbe sited outside the riverfront area. If siting ofa project entirely outside the riverfront area is not practicable, the alternatives shall be evaluated to locate the project as far as possible from the river. The issuing authority shall not require alternatives which result in greater or substantially equivalent adverse impacts. Ifan alternative would result in no identifiable difference in impact, the issuing authority shall eliminate the alternative. If there would be no less adverse effects on the interests identified in M.G.L. c. 131, § 40, the proposed project rather than a practicable alternative shall be allowed, but the criteria in 310 CMR 10.58(4)(d) for determining no significant adverse impact must still be net. Ifthere is a practicable and substantially equivalent economic alternative with less adverse effects, the proposed work shall be denied and the applicant may either withdraw the Notice of Intent or receive an Order of Conditions for the alternative, provided the applicant subrrutted sufficient information on the alternative in the Notice of Intent. (d) No Significant Adverse Impact. The work, including.proposed mitigation measures, must have no significant adverse impact on the riverfront area to protect the interests identified in M.G.L. c. 131, § 40. 1. Within 200 foot riverfront areas, the issuing authority may allow the alteration ofup to 5000 . square feet or 10% ofthe riverfront area within the lot, whichever is greater, on a lot recorded on or before October 6, 1997 or lots recorded after October 6, 1997 subject to the restrictions of 310 CMR 10.58(4)(c)2.b.vi., or up to 10% of the riverfront area within a lot recorded after. October 6, 1997, provided that: L a. At a minimum, a 100 foot wide area of undisturbed ve tation is provided. This area •� shall extend from mean annus high-water alo the river —les location would etter protect the interests r entified in M.G.L. c. 131 § 40. If there is not a 100 foot wide area of undisturbed vegetation within the riverfront area, existing vegetative cover shall be preserved or extended to the maximum extent feasible to approximate a 100 foot wide corridor of natural vegetation. Replication and compensatory storage required to meet other resource area performance standards are allowed within this area; structural stomnvater management measures may be allowed only when there is no practicable alternative. Temporary impacts where necessary for installation of linear site -related utilities are allowed, provided the area is restored to its natural conditions. Proposed work which does not meet the requirement of310 CMR 10.5 8(4)(d) La. may be allowed only ifan applicant demonstrates by a preponderance ofevidence from a competent source that an area of undisturbed vegetation with an overall average width of 100 feet will provide equivalent protection ofthe riverfront area, or that a partial rebuttal of the presumptions of significance is sufficient to justify a lesser area of undisturbed vegetation; b. Stormwater is managed according to standards established by the Department in its Stormwater Policy. c. Proposed work does not impair the capacity ofthe riverfront area to provide important wildlife habitat functions. Work shah not result in an impairment ofthe capacity to provide vernal pool habitat identified by evidence from a competent source, but not yet certified. For work within an undeveloped riverfront area which exceeds 5,000 square feet, the issuing authority may require a wildlife habitat evaluation study under 310 CMR 10.60. d. Proposed work shall not impair groundwater or surface water quality by incorporating erosion and sedimentation controls and other measures to attenuate nonpoint source pollution. The calculation of square footage of alteration shall exclude areas of replication or compensatory flood storage required to meet performance standards for other resource areas, or any area of restoration within the riverfront area. The calculation also shall exclude areas used for structural stormwater management measures, provided there is no practicable alternative to siting these structures within the riverfront area and provided a wildlife corridor is maintained (e.g. detention basins shall not be fenced). 2. Within 25 foot riverfront areas, any proposed work shall cause no significant adverse impact by: 2/11/05 310 CMR - 399 310 CMR DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.58: continued 2. Mean Annual High -Water Line of a river is the line that is apparent from visible markings or changes in the character of soils or vegetation due to the prolonged presence of water and that distinguishes between predominantly aquatic and predominantly terrestrial land. Field indicators of bankfbU conditions shall be used to determine the mean annual high-water lime. Bankfiill field indicators include but are not limited to: changes in slope, changes in vegetation, stain Imes, top ofpointbars, changes in bank materials, or bank undercuts. a. Inmost rivers, the first observable break in slope is coincident with bankfull conditions and the mean annual high-water line. b. In some river reaches, the mean annual high-water line is represented by bankU field indicators that occur above the first observable break in slope, or if no observable break in slope exists, by other bankfimll field indicators. These river reaches are characterized by at least two of the following features: low gradient, meanders, oxbows, histosols, a low - flow channel, or poorly-defined or nonexistent banks. c. In tidal rivers, the mean annual high-water line is coincident with the mean high water line determined under 310 CMR 10.23. 3. The Riverfront Area is the area of land between a river's mean annual high-water line measured horizontally outward from the river and a arallel line located 200 feet away, except t the parallel line is located: a. 25 feet away in Boston, Brockton, Cambridge, Chelsea, Everett, FaIlRiver, Lawrence, Lowell, Malden, New Bedford, Somerville, Springfield, Winthrop, and Worcester, b. 25 feet away in densely developed areas, as designated by the Secretary of the Executive Office of Environmental Affairs; and c. 100 feet away for new agricultural and aquacuhural activities. Measured horizontally means that the riverfront area extends at a right angle to the mean annual high-water line rather than along the surface of the land. Where a river runs through a culvert more than 200 feet in length, the riverfront area stops at a perpendicular line at the upstream end ofthe culvert and resumes at the downstream end. When a river contains islands, the riverfront area extends landward into the island from and parallel to the mean annual high-water line. (b) The physical characteristics of a Riverfront Area as described in 310 CMR 10.58(2)(a) are critical to the protection of the interests specified in 310 CMR 10.58(1). 1 (c) The boundary of the Riverfront Area is a line parallel to the man annual high -water -line, located at the outside edge of the —riverfront area. At the point where a stream becomes perennial, —�--� the riverfront area be ata ]me drawn as a semucirclea 200 foot (25 foot in densely eveloped areas;100 foot for new agriculture) radius around the point and connects to the parallel tine perpendicular to the man annual high-water line which forms the outer boundary. When a river flows into coastal waters or an embayment, the river shall end at the mouth of coastal river lime as delineated on the current mouth ofcoastal river map series maintained by the Department, subject to revisions after public notice and referred to as the Massachusetts Mouth of Coastal River Maps. If a mouth of coastal river line is not delineated on the current map series, the issuing authority shall determine the mouth of coastal river line in accordance with the Department's most current Mouth ofCoastal River Policy. A mouth of coastal river line shown on the Department's mouth of coastal river map series is not evidence that a stream is perennial; such a determination shall only be made pursuant to 310 CMR 10.58(2)(a)1. 2/11/05 (3) Presurrmtion Where a proposed activity involves work within the riverfront area, the issuing authority shall presume that the area is significant to protect the private or public water supply; to protect the groundwater, to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect fisheries. The presumption is rebuttable and may be overcome by a clear showing that the riverfront area does not play a role in the protection of one or more of these interests. In the event that the presumption is deemed to have been overcome as to the protection of all the interests, the issuing authority shall make a written determination to this effect, setting forth its grounds on Form 6. Where the applicant provides information that the riverfront area at the site ofthe activity does not play a role in the protection of an interest, the issuing authority may determine that the presumption for that interest has been rebutted and the presumption of significance is partially overcome. 310 CMR - 397 ffl Merrimack River , Shawsheen Rover 1A, v '—N Paz Si.. . . . . . A E� NX M. iA A,, , 3, . . . . . . . . . . . . . Op tp rt h3? u 50 MOT lwg�:Mw! 4 : 4 z 1 'I iN ".Y Rocky Brook I'l F. E.: Mosquito Brook iN V., < 4, N I Nxit w,M, 7, V, 4 4L X. OV "I U, -A, J_ At 4 4 7 - Or", jok NWN U A A Y a Alm It', S4 21", 71 NOP, P V . . . . . . . ... Scale 1:42,000 North Andover Wetlands Regulations 1 inch — 3,500 feet Riverfront Area Map 2,000 0 2,000 0 1 4,00Feet North Andover, Massachusetts EP—SIL—ON--- pm)e.m_,)ma/h andn .rn14fin.*IW.?(fnhLMXd (MI/al TRANSMISSION VERIFICATION REPORT TIME 12/1112007 13:07 NAME : HEALTH FAX 9786888476 TEL 9786888476 SER.# 000E4J120960 DATE,TIHE 12!11 13:05 FA' NO. /NAME 0197885402213 DURATIOH 00:01:22 PAGE(S) 0I1 RESULT OK MODE STANDARD ECM +llbed P. Tvlllwi III, rrq.. Chnlrrnan Edon. P. Malstyr4 F w'—Ch/r,`r Ranbord 7. Dyem Esq., Clerk Jmeph D.JaOnRRe Datiid R web9ter Town of North Andover 1:0NINO BOARD OF APP EXLS Public Hearings Tuesday - December 1.8, 2007 - 7-030 p.m.. North .A ndover fxgh School Lecture Hall. 430 Osgood Street North Andover" Massachusetts 01845 Assoc�ai�A�rtrnU�ra xlwmi D, 4T.oliw Ridmrd M. ' oillwourt DAnIel S. 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( � w w o W a ;0.;: 2� d w A >0 .:: m m o►:.;»w 0 O 0 0. V, y.: �w m0) d N rA ;:a► r m 3 Ch m a m wwna m n 04/1012007��- R 812-814 SALEM STREET 11"✓�€• �4 . Proiect I Fees ! Close '.• ®'' ,r. a ,a ^ . John Carroll More demolition of two exsitng building for the construction ` 1501 Street of two single family dwellings with the Buffer Zone to _Main ' a Bordering Vegetated Wetland and within Riverfront TEWKSBURY, MA 01876 of Mosquito Brook. Proiect I Fees ! Close SECTION 7 DIMENSIONAL REQUIREMENTS 7.1 Lot Area Minimum lot areas for such uses in each district shall be as set forth in Table 2, Summary of Dimensional Requirements, which is hereby made part of this Bylaw. 7.1.1 Contiguous Buildable Area (CBA) As of April 28, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area. 7.1.2 Lot Width For any lot created after May 1, 1995, the minimum width of the lot shall be a distance of one hundred (100) feet between the street frontage and the front building line The width shall be measured in a line parallel to the street. This requirement shall apply in all zones except Residence 4 (R4) and Village Residential (VR); for zone R4, said minimum width of the lot shall be a distance of (eighty) 80 feet and for zone VR, said minimum width of the lot shall be a distance of (eighty) 80 feet. 7.1.3 Restrictions 1. When a fifty (50) foot straight line is drawn to divide a lot in two, and the perimeter of the smaller piece is greater than two hundred (200) feet, then such smaller piece shall not be included in the calculations when determining: lot area contiguous buildable area (CBA), or street frontage as required by the Summary of Dimensional Requirements (Table 2) of this bylaw. This restriction applies only to lots created after May 1, 1995. 2. Any lot created after May 1, 1995 shall have a lot depth of thirty (30) feet or more for at least eighty (80)percent of the minimum length of its frontage as required by the Summary of Dimensional Requirements (Table 2) of this bylaw. The lot depth shall be measured as a line drawn perpendicular to the street. 3. No lot, upon which is then located any buildings or with respect to which a permit has been issued and is then outstanding for the erection of any building, shall be subdivided or reduced in area in any manner unless said lot shall thereafter fulfill the lot area, street frontage and yard space requirements of this Bylaw except as may be permitted otherwise by the provisions of a variance granted by the Board of Appeals. If land be subdivided, conveyed, devised or otherwise transferred in violation hereof, no building permit or other permit shall be issued with reference to any of the land so transferred or to the lot(s) retained until all of such land and lots meet the requirements of this Zoning Bylaw. Any land taken by eminent domain or conveyed for a public purpose for which the land could have been taken shall not be deemed to be transferred in violation of the provisions hereof. 7.2 Street Frontage Minimum street frontage shall be as set forth in Summary of Dimensional. Requirements (Table 2) and the lot line meeting these requirements shall constitute the "street frontage" for the lot. In no case shall actual street frontage at the street line be less than seventy five (75) feet; except as allowed by Section 7.2.2. Corner lots shall be required to have the required frontage only on one street. In determining the fulfillment of the minimum area and minimum street frontage of a lot required in any zoning district, there shall not be included any land within the limits of a street upon which such lot abuts, even if the fee to such street is in the owner of the lot; except that if a corner lot at its street corner is bounded in 75 PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XIX. AGRICULTURE AND CONSERVATION CHAPTER 131. INLAND FISHERIES AND GAME AND OTHER NATURAL RESOURCES Chapter 131: Section 40. Removal, fill, dredging or altering of land bordering waters Section 40. No person shall remove, fill, dredge or alter any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on any estuary, creek, river, stream, pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding, other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas, water, telephone, telegraph and other telecommunication services, without filing written notice of his intention to so remove, fill, dredge or alter, including such plans as may be necessary to describe such proposed activity and its effect on the environment and without receiving and complying with an order of conditions and provided all appeal periods have elapsed. Said notice shall be filed by delivery in hand to the conservation commission or its authorized representative or by certified mail, return receipt requested, to said commission, or, if none, to the board of selectmen in a town or the mayor of a city in which the proposed activity is to be located. Upon such filing, the receipt of such notice shall be acknowledged in writing on the face thereof and shall include the time and date so received. A person delivering said notice by hand shall be given a receipt in writing acknowledging the time and date of such filing. Copies of such notice shall be sent at the same time by certified mail to the department of environmental protection. To defray state and local administrative costs each person filing such a notice shall pay a filing fee, determined on a sliding scale basis by the commissioner of administration after consultation with the secretary of environmental affairs. Fifty percent of any filing fee in excess of twenty-five dollars shall be made payable to the department of environmental protection, in a manner to be determined by the commissioner of environmental protection, at the same time as the copies of the notice are sent to the department of environmental protection. The remainder of said fee shall be made payable to the city or town; provided, that said remainder shall be expended solely by the local conservation commission for the performance of its duties under this chapter and shall accompany the copy of the notice sent to the city or town. No such notice shall be sent before all permits, variances, and approvals required by local by-law with respect to the proposed activity, which are obtainable at the time of such notice, have been obtained, except that such notice may be sent, at the option of the applicant, after the filing of an application or applications for said permits, variances, and approvals; provided, that such notice shall include any information submitted in connection with such permits, variances, and approvals which is necessary to describe the effect of the proposed activity on the environment. Upon receipt of any notice hereunder the department of environmental protection, hereinafter called the department, shall designate a file number for such notice and shall send a notification of such number to the person giving notice to the conservation commission, selectmen or mayor to whom the notice was given. Said notification shall state the name of the owner of the land upon which the proposed work is to be done and the location of said land. Any person filing a notice of intention with a conservation commission shall at the same time give written notification thereof, by delivery in hand or certified mail, return receipt requested, to all abutters within one -hundred feet of the property line of the land where the activity is proposed, at the mailing addresses shown on the most recent applicable tax list of the assessors, including, but not limited to, owners of land directly opposite said proposed activity on any public or private street or way, and in another municipality or across a body of water. Said notification shall be at the applicant's expense, and shall state where copies of the notice of intention may be examined and obtained and where information regarding the date, time and place of the public hearing may be obtained. Proof of such notification, with a copy of the notice mailed or delivered, shall be filed with the conservation commission. Within twenty-one days of the receipt by a conservation commission of a written request made by any person and sent by certified mail, said commission shall make a written determination as to whether this section is applicable to any land or work thereon. When such person is other than the owner, notice of any such determination shall also be sent to the owner. The term "applicant" as used in this section shall mean the person giving notice of intention to remove, fill, dredge or alter. The term "person" as used in this section shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof, administrative agency, public or quasipublic corporation or body, or any other legal entity or its legal representative, agents or assigns. The term "bogs" as used in this section shall mean areas where standing or slowly running water is near or at the surface during a normal growing season and where a vegetational community has a significant portion of the ground or water surface covered with sphagnum moss (Sphagnum) and where the vegetational community is made up of a significant portion of one or more of, but not limited to nor necessarily including all, of the following plants or groups of plants: aster (Aster nemoralis), azaleas (Rhododendron canadense and R. viscosum), black spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high -bush blueberry (Vaccinium corymbosum), larch (Larix laricina), laurels (Kalmia angustifolia and K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraccae), sweet gale (Myrica gale), white cedar (Chamaecyparis thyoides). The term "coastal wetlands", as used in this section,, shall mean any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flowage. The term "freshwater wetlands", as used in this section, shall mean wet meadows, marshes, swamps, bogs, areas where groundwater, flowing or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months of the year; emergent and submergent plant communities in inland waters; that portion of any bank which touches any inland waters. The term "swamps", as used in this section, shall mean areas where ground water is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface, and where a significant part of the vegetational community is made up of, but not limited to nor necessarily include all of the following plants or groups of plants: alders (Alnus), ashes (Fraxinus), azaleas (Rhododendron canadense and R. viscosum), black alder (Ilex verticillata), black spruce (Picea mariana), button bush (Cephalanthus occidentalis), American or white elm (Ulmus americana), white Hellebore (Veratrum viride), hemlock (Tsuga canadensis), highbush blueberry (Vaccinium corymbosum), larch (Larix laricina), cowslip (Caltha palustris), poison sumac (Toxicodendron vernix), red maple (Acer rubrum), skunk cabbage (Symplocarpus foetidus), sphagnum mosses (Sphagnum), spicebush (Lindera benzoin), black gum tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), white cedar (Chamaecyparis thyoides), willow (Salicaceae). The term "wet meadows", as used in this section where ground water is at the surface for a significant part of the growing season and near the surface throughout the year and where a significant part of the vegetational community is composed of various grasses, sedges and rushes; made up of, but not limited to nor necessarily including all, of the following plants or groups of plants: blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium), dock (Rumex), false loosestrife (Ludwigia), hydrophilic grasses (Gramincae), loosestrife (Lythrum), marsh fern (Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis), smartweed (Polygonum). The term "marshes", as used in this section, shall mean areas where a vegetational community exists in standing or running water during the growing season and where a significant part of the vegetational community is composed of, but not limited to nor necessarily including all, of the following plants or groups of plants: arums (Araceae), bladder worts (Utricularia), bur reeds (Sparganiaceae), button bush (Cephalanthus occidentalis), cattails (Typha), duck weeds (Lemnaceae), eelgrass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae), hydrophilic grasses (Gramineae), leatherleaf (Chamaedaphne calyculata), pickerel weeds (Pontederiaceae), pipeworts (Eriocaulon), pond weeds (Potamogeton), rushes (Juncaceae), sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale) water milfoil (Halcragaceae), water lilies (Nymphaeaceae), water starworts (Callitrichaceae), water willow (Decodon verticillatus). The term "Densely developed areas", as used in this section shall mean, any area of ten acres or more that is being utilized, or includes existing vacant structures or vacant lots formerly utilized as of January first, nineteen hundred and forty-four or sooner for, intensive industrial, commercial, institutional, or residential activities or combinations of such activities, including, but not limited to the following: manufacturing, fabricating, wholesaling, warehousing, or other commercial or industrial activities; retail trade and service activities; medical and educational institutions; residential dwelling structures at a density of three or more per two acres; and mixed or combined patterns of the above. Designation of a densely developed area is subject to the secretary of the executive office of environmental affair's approval of a city or town's request for such designation. Land which is zoned for intensive use but is not being utilized for such use as of January first, nineteen hundred and ninety-seven or which has been subdivided no later than May first, nineteen hundred and ninety-six shall not be considered a densely developed area for the purposes of this chapter. The term "Mean annual high-water line", as used in this section, shall mean with respect to a river, the line that is apparent from visible markings or changes in the character of soils or vegetation due to the prolonged presence of water and which distinguishes between predominantly aquatic and predominantly terrestrial land. The mean high tide line shall serve as the mean annual high water line for tidal rivers. The term "River", as used in this section, shall mean a natural flowing body of water that empties to any ocean, lake, or other river and which flows throughout the year. The term "Riverfront area", as used in this section, shall mean that area of land situated between a river's mean annual high-water line and a parallel line located two hundred feet away, measured outward horizontally from the river's mean annual high-water line. This definition shall not create a buffer zone, so-called, beyond such riverfront area. Riverfront areas within municipalities with (i) a population of ninety thousand or more persons or (ii) a population density greater than nine thousand persons per square mile, as determined by the nineteen hundred and ninety federal census; (iii) that are within densely developed areas as defined herein; (iv) land in Waltham between the Charles river on the north, and the Crescent street and Pine street on the south, and the intersection of the Charles river and a line extended from the center line of Walnut street on the west, and the railroad right-of-way now or formerly of the Boston and Maine Railroad on the east; or (v) property located in the town of Milton shown on Milton assessors Map G, Block 56, Lot 13, located on Z Granite Avenue shall be defined as that area of land situated between a river's mean annual high-water line and a parallel line located twenty-five feet away, measured outward horizontally, from the river's mean annual high-water line. The riverfront area shall not include land now or formerly associated with historic mill complexes including, but not limited to, the mill complexes in the Cities of Holyoke, Taunton, Fitchburg, Haverhill, Methuen and Medford in existence prior to nineteen hundred and forty-six and situated landward of the waterside facade of a retaining wall, building, sluiceway, or other structure existing on the effective date of this act. The riverfront area shall not apply to any mosquito control work done under the provisions of clause (36) of section five of chapter forty, of chapter two hundred and fifty-two or of any special act or to forest harvesting conducted in accordance with a cutting plan approved by the department of environmental management, under the provisions of sections forty to forty-six, inclusive, of chapter one hundred and thirty-two; and shall not include any area beyond one hundred feet of river's mean annual high water mark: in which maintenance of drainage and flooding systems of cranberry bogs occurs; in which agricultural land use or aquacultural use occur; to construction, expansion, repair, maintenance or other work on piers, docks, wharves, boat houses, coastal engineering structures, landings, and all other structures and activities subject to licensing or permitting under chapter ninety-one and its regulations; provided that such structures and activities shall remain subject to statutory and regulatory requirements under chapter ninety-one and section forty of chapter one hundred and thirty-one or is the site of any project authorized by special act prior to January first, nineteen hundred and seventy-three. The term "Riverfront area boundary line", as used in this section, shall mean the line located at the outside edge of the riverfront area. The conservation commission, selectmen or mayor receiving notice under this section shall hold a public hearing on the proposed activity within twenty-one days of the receipt of said notice. Notice of the time and place of said hearing shall be given by the hearing authority at the expense of the applicant, not less than five days prior to such hearing, by publication in a newspaper of general circulation in the city or town where the activity is proposed and by mailing a notice to the applicant and to the board of health and the planning board of said city or town. The conservation commission and its agents, officers and employees and the commissioner of environmental protection and his agents and employees, may enter upon privately owned land for the purpose of performing their duties under this section. No conditions shall be imposed, nor shall any determination be rendered by a conservation commission, in reference to this section, unless the conservation commission meets with a quorum present. If after said hearing the conservation commission, selectmen or mayor, as the case may be, determine that the area on which the proposed work is to be done is significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries or to the protection of the riverfront area consistent with the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries, such conservation commission, board of selectmen or mayor shall by written order within twenty-one days of such hearing impose such conditions as will contribute to the protection of the interests described herein, and all work shall be done in accordance therewith. If the conservation commission, selectmen or mayor, as the case may be, make a determination that the proposed activity does not require the imposition of such conditions, the applicant shall be notified of such determination within twenty-one days after said hearing. Such order or notification shall be signed by the mayor or a majority of the conservation commission or board of selectmen, as the case may be, and a copy thereof shall be sent forthwith to the applicant and to the department. If a conservation commission has failed to hold a hearing within the twenty-one day period as required, or if a commission, after holding such a hearing has failed within twenty-one days therefrom to issue an order, or if a commission, upon a written request by any person to determine whether this section is applicable to any work, fails within twenty-one days to make said determination, or where an order does issue from said commission, the applicant, any person aggrieved by said commission's order or failure to act, or any owner of land abutting the land upon which the proposed work is to be done, or any ten residents of the city or town in which said land is located, may, by certified mail and within ten days from said commission's order or failure to act, request the department of environmental protection to determine whether the area on which the proposed work is to be done is significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries or to the protection of the riverfront area consistent with the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries. The commissioner of environmental protection or his designee also may request such a determination within said ten days. The party making any such request shall at the same time send a copy thereof by certified mail to the conservation commission, board of selectmen or mayor which conducted the hearing hereunder. If such party is other than the applicant, a copy of such request shall also be sent at the same time by certified mail to the applicant. Upon receipt of such request the department shall make the determination requested and shall by written order issued within seventy days of receipt of such request and signed by the commissioner or his designee, impose such conditions as will contribute to the protection of the interests described herein; provided, however, that said department shall notify the applicant within thirty days of the receipt of such request if his application or request is not in proper form or is lacking information or documentation necessary to make the determination. Such order shall supersede the prior order of the conservation commission, board of selectmen or mayor, and all work shall be done in accordance therewith, but in no event shall any work commence until ten days have elapsed following the issuance of said order. In the case of riverfront areas, no order issued by a conservation commission, board of selectmen, mayor, or the department shall permit any work unless the applicant, in addition to meeting the otherwise applicable requirements of this section, has proved by a preponderance of the evidence that (1) such work, including proposed mitigation measures, will have no significant adverse impact on the riverfront area for the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries, and (2) there is no practicable and substantially equivalent economic alternative to the proposed project with less adverse effects on such purposes. An alternative is practicable and substantially economically equivalent if it is available and capable of being done after taking into consideration: costs, and whether such costs are reasonable or prohibitive to the owner; existing technology; the proposed use; and logistics in light of overall project purposes. For activities associated with access for one dwelling unit, the area under consideration for practicable alternatives will be limited to the lot; provided, that said lot shall be on file with the registry of deeds as of the August first, nineteen hundred and ninety-six. For other activities including, but not limited to, the creation of a real estate subdivision, the area under consideration shall be the subdivided lots, any parcel out of which the lots were created, and any other parcels that are adjacent to such parcel or adjacent through other parcels formerly or presently owned by the same owner at any time on or after August first, nineteen hundred and ninety-six or any land which can reasonably be obtained; provided, that an ownership interest can reasonably be obtained after taking into consideration: cost, and whether such cost is reasonable or prohibitive to the owner; existing technology; the proposed use; and logistics in light of overall project purposes. At any time prior to a final order of determination by the department, any party requesting a determination may in writing withdraw the request, and such withdrawal shall be effective upon receipt by the department. Notwithstanding the withdrawal, the commissioner or his designee may continue the determination if he notifies all parties within ten days of receipt of the withdrawal. A copy of such order shall be sent to the applicant, to the conservation commission, board of selectmen or mayor which conducted the hearing hereunder. As used in this section the words "wildlife habitat' shall mean those areas subject to this section which, due to their plant community composition and structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or overwintering areas, or breeding areas for wildlife. No work proposed in any notice of intention shall be undertaken until the final order, determination or notification with respect to such work has been recorded in the registry of deeds, or if the land affected thereby be registered land, in the registry section of the land court for the district wherein the land lies. If the final order, determination or notification requires the recording of a plan which (1) shows the location of the work, (2) is prepared by a registered professional engineer or land surveyor and (3) is in recordable form, no work proposed in the notice of intention shall be undertaken until such plan has been recorded in the registry of deeds or, if the land affected thereby is registered land, in the registry section of the land court for the district wherein such land lies. Within twenty-one days of the receipt of a written request, by the applicant or the owner of the property, for a certificate of compliance, the issuer of the final order shall grant such request if the activity, or portions thereof, complies with such final order. The certificate of compliance shall state that the activity, or portions thereof, has been completed in accordance with such order. Any site where work is being done which is subject to this section shall display a sign of not less than two square feet or more than three square feet bearing the words, "Massachusetts Department of Environmental Protection File Number...." and the sign shall display the file number assigned to the project. If the department of environmental protection finds that any proposed work would violate the provisions of chapter ninety-one, it shall proceed immediately to enforce the provisions of said chapter. The provisions of this section shall not apply to any mosquito control work done under the provisions of clause (36) of section five of chapter forty, of chapter two hundred and fifty-two or of any special act; to maintenance of drainage and flooding systems of cranberry bogs, to work performed for normal maintenance or improvement of land in agricultural use or in aquacultural use; or to any project authorized by special act prior to January first, nineteen hundred and seventy-three. Within one hundred and twenty days of the effective date of this act, the department, upon the advice and consent of the Commissioner of the Department of Food and Agriculture, shall promulgate rules and regulations pursuant to this section which shall establish definitions for the term "normal maintenance or improvement of land in agricultural, or in aquacultural use", for each agricultural commodity, or where appropriate because of similarities in cultural practices, groups or commodities in the Commonwealth. The department shall create a farmland advisory board to be appointed by the commissioner consisting of five persons one a member of the cooperative extension service, one a member of the USDA soil conservation service, one a member of a municipal conservation commission who has demonstrated expertise in agricultural issues, and two commercial farmers with expertise in different agricultural commodities to assist the department in the drafting of rules and regulations pursuant to this paragraph. The notice of intention required in the first paragraph of this section shall not apply to emergency projects necessary for the protection of the health or safety of the commonwealth which are to be performed or which are ordered to be performed by an agency of the commonwealth or a political subdivision thereof. An emergency project shall mean any project certified to be an emergency by the conservation commission of the city or town in which the project would be undertaken, or if none, by the mayor of said city or the selectmen of said town. If the conservation commission, mayor, or selectmen, as the case may be, fail to act favorably within twenty-four hours of receipt of a request for certification of an emergency project, said project may be so certified by the commissioner or his designee. In no case shall any removal, filling, dredging, or alteration authorized by such certification extend beyond the time necessary to abate the emergency. Notwithstanding the provisions of section fourteen of chapter twenty-one A or any other provision of law to the contrary, the notice of intention required in the first paragraph of this section shall not apply to a maintenance dredging project for which a license has been previously issued within ten years by the division of waterways of the department of environmental protection. A person intending to fill or dredge under such previously issued license shall file a written notice by certified mail to the conservation commission or if none, to the board of selectmen in a town or mayor of a city in which the land upon which such dredging project is located. Such notice shall contain the name and address of the applicant. If the conservation commission, the board of selectmen or mayor fails to notify the applicant at the applicant's address within twenty days of the receipt of such notice of the specific objections to the commencement of such dredging fill or maintenance dredging contemplated under said license, the applicant may commence such work without any further notice to other agencies of the commonwealth. Notwithstanding failure to notify an applicant, as hereinbefore provided, the conservation commission, the board of selectmen or mayor may at any time designate an area at which spoilage from the dredging may be placed and may require the relocation of shellfish before such maintenance dredging takes place. If the conservation commission, the board of selectmen or mayor cites specific objections to the notice of intention, such conservation commission, board of selectmen or mayor may order a hearing as provided in this section and all other pertinent provisions of this section shall apply. Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this section or in violation of any order issued under this section shall forthwith comply with any such order or restore such real estate to its condition prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such person unless such action is commenced within three years following the recording of the deed or the date of the death by which such real estate was acquired by such person. Any court having equity jurisdiction may restrain a violation of this section and enter such orders as it deems necessary to remedy such violation, upon the petition of the attorney general, the commissioner, a city or town, an owner or occupant of property which may be affected by said removal, filling, dredging or altering, or ten residents of the commonwealth under the provisions of section seven A of chapter two hundred and fourteen. Rules and regulations shall be promulgated by the commissioner to effectuate the purposes of this section. However, failure by the commissioner to promulgate rules and regulations shall not act to suspend or invalidate the effect of this section. In addition to the other duties provided for in this section, a conservation commission and its agents, officers, and employees; the commissioner, his agents and employees; environmental officers, and any officer with police powers may issue enforcement orders directing compliance with this section and may undertake any other enforcement action authorized by law. Any person who violates the provisions of this section may be ordered to restore property to its original condition and take other actions deemed necessary to remedy such violations. No person shall remove, fill, dredge or alter any area subject to protection under this section without the required authorization, or cause, suffer or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with an enforcement order issued pursuant to this section. Each day such violation continues shall constitute a separate offense except that any person who fails to remove unauthorized fill or otherwise fails to restore illegally altered land to its original condition after giving written notification of said violation to the conservation commission and the department shall not be subject to additional penalties unless said person thereafter fails to comply with an enforcement order or order of conditions. Whoever violates any provision of this section, (a) shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than two years, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation. NORTH ANDOVER WETLANDS PROTECTION BYLAW (EFFECTIVE 10-20-98) 00 V4pRT� + O w do QL.KI 4 �. 14 coc0+4c.•tw.c « 040 '4 HU North Andover Conservation Department #27 Charles Street North Andover, MA 01845 (978) 688-9530 (fax) (978) 688-9542 Public Hearing(s): 2.11-98; 3-9-98; 44-98; 4-8-98; and 4-2988. Approved — May 11"',1998 Town Meeting (Warrant Article #39 -YES 133 N046) Approved — October 20t",1998 Massachusetts Office of the Attorney General 178.1 PURPOSE The purpose of this Bylaw is to preserve and protect the wetland resource areas (as specified in Section 178.2) of the Town of North Andover by regulation of, and control of, activities (as specified in Section 178.2) deemed by the North Andover Conservation Commission (the "Commission") to have significant or cumulatively detrimental effect upon the following interests and values, including: public or private water supply; groundwater; the prevention and control of flooding, erosion, sedimentation, storm damage, and/or pollution; protection of fisheries, wildlife, wildlife habitat and recreation. 178.2 JURISDICTION Except as permitted in writing by the Commission, or as provided in this Bylaw, no person shall engage in the following activities ("activities"): removal, filling, dredging, discharging into, building upon, or otherwise altering or degrading the wetland resource areas described in the following sentence. The Town's wetland resource areas consist of: 1) any isolated vegetated wetland, 2) any ephemeral pool, 3) any vegetated wetland bordering on any creek, river, stream, pond or lake, 4) any bank, beach, marsh, wet meadow, bog, or swamp, 5) any land under any creek, river, stream, pond or lake, 6) any 100 -foot buffer zone of wetland areas 1-5 listed above, 7) any land subject to storm flowage, or flooding by groundwater or surface water, 8) and the 200 -foot riverfront area. The following waterbodies and contiguous 200 -foot zones on either side of the waterbody in North Andover have been identified by the Commission as riverfront areas: Mosquito Brook, Rocky Brook, Boston Brook, Cochichewick Brook, Fish Brook, Cedar Brook, Merrimack River and Shawsheen River (See Figure 1-3 Appendix B: North Andover Riverfront Area Maps). The wetland resource areas listed in 1-8 above are protected in addition to the wetland resource areas protected under the Massachusetts Wetlands Protection Act M.G.L. Chapter 131, Section 40 ("the Act") and its accompanying regulations 310 CMR 10.00. The Commission shall not grant such permission without receiving written notice of the intention to conduct such activity, and without issuing written permission to do so all in compliance with the provisions of this Bylaw. Town of North Andover 2 Wetlands Protection Bylaw NORTH ANDOVER WETLANDS PROTECTION REGULATIONS (Effective 11-10-98) ri_ NORTN O C OC�+�•C Ml w.C■ 4��4TEO ►Pp`y�y 4SSac wuS�� (Revised 9-10-03) Final Revision Dates: March 1994, May 1994; March 1995; November 1998; September 10, 2003Public Hearing Dates: April lac, 1998; April 8'1,,1998, April 29th, 1998, May 13'h,1998; November 10u;1998, July 30, 2003, August 27, 2003 and September 10, 2003; Approved - North Andover Conservation Commission (5-0.0) (November 1001, 1998 and September 10, 2003). Table of Contents i Wetland Regulations NORTH ANDOVER WETLAND PROTECTION REGULATIONS 1.0 General Provisions 1.1 Authority These Regulations are promulgated under the authority of the Home Rule Amendment Article LXXXIX (89), of the amendments of the Constitution of Massachusetts, 1966 as amended from time to time, and in accordance with the North Andover Wetlands Bylaw and shall be effective upon fulfillment of all legal requirements. 1.2 Purpose The purpose of the North Andover Wetlands Protection Bylaw (hereafter referred to as the 'Bylaw") is clearly stated in Section 178.1 of the Bylaw. These Regulations are promulgated to ensure fairness, to create a uniformity of process and to clarify and define the provisions of the Bylaw, administered by the North Andover Conservation Commission, hereafter called the "Commission" or "NACC". Wetlands contribute to a number of public interests and are therefore protected by the Bylaw. The Bylaw identifies three additional public interests not recognized by the Massachusetts Wetlands Protection Act ("the Act" or "WPA"). These are: "the prevention and control of erosion and sedimentation, the protection of wildlife, and the protection of recreation". Any permit issued under the Bylaw and Regulations must therefore not adversely affect these additional public interests. 1.3 Jurisdiction The areas subject to protection under the Bylaw differ from those protected solely by the Act in that additional wetland resource areas are protected by the Bylaw, as well as the additional interests previously described. The additional areas subject to protection under the Bylaw include the Buffer Zone, Ephemeral Pools, Ephemeral Pool Habitat and Isolated Vegetated Wetlands that do not meet the definition of Bordering Vegetated Wetland under the Act. The Town's wetland resource areas consist of: ♦ any Isolated Vegetated Wetland; ♦ any Ephemeral Pool and Ephemeral Pool Habitat; ♦ any vegetated wetlands bordering on any creek, river, stream, pond or lake; NACC Wetland Protection Regulations (Amended 9/10/03) ♦ any bank, beach, marsh, wet meadow, bog, or swamp; ♦ any land under any creek, river, stream, pond or lake; ♦ any 100 -foot Buffer Zone of wetland areas 1-5 listed above; ♦ any land subject to storm flowage, or flooding by groundwater or surface water; ♦ and the 200 -foot Riverfront Area. The following waterbodies and contiguous 200 -foot zones on either side of the mean high water elevations of these waterbodies have been identified by the Commission as having Riverfront Areas: Mosquito Brook, Rocky Brook, Boston Brook, Cochichewick Brook, Fish Brook, Cedar Brook, Merrimack River and Shawsheen River as shown on Appendix B - North Andover Riverfront Area Map. Rivers or streams not referenced above or not otherwise depicted on Appendix B or other USGS map may still have a 200 -foot Riverfront Area associated with them per 310 CMR 10.58 (as amended December 20, 2002), which the Commission has adopted by reference into these Regulations (as amended September 10, 2003). Applicants shall evaluate said rivers or streams in accordance with 310 CMR 10.58(2) and this Bylaw and include such data in the submitted permit application. 1.4 Fee Schedule The following fee schedule has been determined by the Commission to be commensurate with the expense of providing review services to applicants (exclusive of design review fees by expert engineers and consultants) and shall be paid at the time an application or other request for Commission approval is filed. These fees are in addition to and commensurate with those required by the Wetlands Protection Act (WPA) (except where otherwise noted). This fee schedule may be amended as necessary by majority vote of the Commission at any public hearing. NOTE: Similar to 310 CMR 10.03(7)(c), when the work involves activities within the Riverfront Area as well as another resource area or the Buffer Zone, the fee shall be determined by adding an additional 50% of the fee calculated for activities in another resource area(s) or the buffer zone to another resource area for each of the proposed activities within the Riverfront Area. When the work involves activities within the Riverfront Area but no other resource area, the fee shall be determined by adding the fees for each of the proposed activities within the Riverfront Area. NACC Wetland Protection Regulations (Amended 9/10103) M.G.L. - Chapter 131, Section 40 Page 1 of 8 The General Maws of Massachusetts) Search the .Laws .e. Go To: Next Section Previous Section PART L ADMINISTRATION OF THE GOVERNMENT Chanter Table of Contents MGL Search Page General Court Home TITLE XIX. AGRICULTURE AND CONSERVATION Mass. ov CHAPTER 131. INLAND FISHERIES AND GAME AND OTHER NATURAL RESOURCES Chapter 131: Section 40. Removal, fill, dredging or altering of land bordering waters Section 40. No person shall remove, fill, dredge or alter any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on any estuary, creek, river, stream, pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding, other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas, water, telephone, telegraph and other telecommunication services, without filing written notice of his intention to so remove, fill, dredge or alter, including such plans as may be necessary to describe such proposed activity and its effect on the environment and without receiving and complying with an order of conditions and provided all appeal periods have elapsed. Said notice shall be filed by delivery in hand to the conservation commission or its authorized representative or by certified mail, return receipt requested, to said commission, or, if none, to the board of selectmen in a town or the mayor of a city in which the proposed activity is to be located. Upon such filing, the receipt of such notice shall be acknowledged in writing on the face thereof and shall include the time and date so received. A person delivering said notice by hand shall be given a receipt in writing acknowledging the time and date of such filing. Copies of such notice shall be sent at the same time by certified mail to the department of environmental protection. To defray state and local administrative costs each person filing such a notice shall pay a filing fee, determined on a sliding scale basis by the commissioner of administration after consultation with the secretary of environmental affairs. Fifty percent of any filing fee in excess of twenty-five dollars shall be made payable to the department of environmental protection, in a manner to be determined by the commissioner of environmental protection, at the same time as the copies of the notice are sent to the department of environmental protection. The remainder of said fee shall be made payable to the city or town; provided, that said remainder shall be expended solely by the local conservation commission for the performance of its duties under this chapter and shall accompany the copy of the notice sent to the city or town. No such notice shall be sent before all permits, variances, and approvals required by local by-law with respect to the proposed activity, which are obtainable at the time of such notice, have been obtained, except that such notice may be sent, at the option of the applicant, after the filing of an application or applications for said permits, variances, and approvals; provided, that such notice shall include any information submitted in connection with such permits, variances, and approvals which is necessary to describe the effect of the proposed activity on the environment. Upon receipt of any notice hereunder the department of environmental protection, hereinafter called the department, shall designate a file number for such notice and shall send a notification of such number to the person giving notice to the conservation commission, selectmen or mayor to whom the notice was given. Said notification shall state the name of the owner of the land upon which the proposed work is to be done and the location of said land. OAny person filing a notice of intention with a conservation commission shall at the same time give written notification thereof, by delivery in hand or certified mail, return receipt requested, to all abutters http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 2 of 8 ,\ within one -hundred feet of the property line of the land where the activity is proposed, at the mailing addresses shown on the most recent applicable tax list of the assessors, including, but not limited to, Oowners of land directly opposite said proposed activity on any public or private street or way, and in another municipality or across a body of water. Said notification shall be at the applicant's expense, and shall state where copies of the notice of intention may be examined and obtained and where information regarding the date, time and place of the public hearing may be obtained. Proof of such notification, with a copy of the notice mailed or delivered, shall be filed with the conservation commission. Within twenty-one days of the receipt by a conservation commission of a written request made by any person and sent by certified mail, said commission shall make a written determination as to whether this section is applicable to any land or work thereon. When such person is other than the owner, notice of any such determination shall also be sent to the owner. The term "applicant" as used in this section shall mean the person giving notice of intention to remove, fill, dredge or alter. The term "person" as used in this section shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof, administrative agency, public or quasipublic corporation or body, or any other legal entity or its legal representative, agents or assigns. The term "bogs" as used in this section shall mean areas where standing or slowly running water is near or at the surface during a normal growing season and where a vegetational community has a significant portion of the ground or water surface covered with sphagnum moss (Sphagnum) and where the vegetational community is made up of a significant portion of one or more of, but not limited to nor necessarily including all, of the following plants or groups of plants: aster (Aster nemoralis), azaleas (Rhododendron canadense and R. viscosum), black spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high -bush blueberry (Vaccinium corymbosum), larch (Larix laricina), laurels (Kalmia angustifolia and K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraccae), sweet gale (Myrica gale), white cedar (Chamaecyparis thyoides). The term "coastal wetlands", as used in this section, shall mean any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flowage. The term "freshwater wetlands", as used in this section, shall mean wet meadows, marshes, swamps, bogs, areas where groundwater, flowing or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months of the year; emergent and submergent plant communities in inland waters; that portion of any bank which touches any inland waters. The term "swamps", as used in this section, shall mean areas where ground water is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface, and where a significant part of the vegetational community is made up of, but not limited to nor necessarily include all of the following plants or groups of plants: alders (Alnus), ashes (Fraxinus), azaleas (Rhododendron canadense and R. viscosum), black alder (Ilex verticillata), black spruce (Picea mariana), button bush (Cephalanthus occidentalis), American or white elm (Ulmus americana), white Hellebore (Veratrum viride), hemlock (Tsuga canadensis), highbush blueberry (Vaccinium corymbosum), larch (Larix laricina), cowslip (Caltha palustris), poison sumac O(Toxicodendron vernix), red maple (Acer rubrum), skunk cabbage (Symplocarpus foetidus), sphagnum mosses (Sphagnum), spicebush (Lindera benzoin), black gum tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), white cedar (Chamaecyparis thyoides), willow (Salicaceae). http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 3 of 8 The term "wet meadows", as used in this section where ground water is at the surface for a significant part of the growing season and near the surface throughout the year and where a significant part of the Ovegetational community is composed of various grasses, sedges and rushes; made up of, but not limited to nor necessarily including all, of the following plants or groups of plants: blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium), dock (Rumex), false loosestrife (Ludwigia), hydrophilic grasses (Gramincae), loosestrife (Lythrum), marsh fern (Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis), smartweed (Polygonum). The term "marshes", as used in this section, shall mean areas where a vegetational community exists in standing or running water during the growing season and where a significant part of the vegetational community is composed of, but not limited to nor necessarily including all, of the following plants or groups of plants: arums (Araceae), bladder worts (Utricularia), bur reeds (Sparganiaceae), button bush (Cephalanthus occidentalis), cattails (Typha), duck weeds (Lemnaceae), eelgrass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae), hydrophilic grasses (Gramineae), leatherleaf (Chamaedaphne calyculata), pickerel weeds (Pontederiaceae), pipeworts (Eriocaulon), pond weeds (Potamogeton), rushes (Juncaceae), sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale) water milfoil (Halcragaceae), water lilies (Nymphaeaceae), water starworts (Callitrichaceae), water willow (Decodon verticillatus). The term "Densely developed areas", as used in this section shall mean, any area of ten acres or more that is being utilized, or includes existing vacant structures or vacant lots formerly utilized as of January first, nineteen hundred and forty-four or sooner for, intensive industrial, commercial, institutional, or residential activities or combinations of such activities, including, but not limited to the following: manufacturing, fabricating, wholesaling, warehousing, or other commercial or industrial activities; retail trade and service activities; medical and educational institutions; residential dwelling structures at a density of three or more per two acres; and mixed or combined patterns of the above. Designation of a densely developed area is subject to the secretary of the executive office of environmental affair's approval of a city or town's request for such designation. Land which is zoned for intensive use but is not being utilized for such use as of January first, nineteen hundred and ninety-seven or which has been subdivided no later than May first, nineteen hundred and ninety-six shall not be considered a densely developed area for the purposes of this chapter. The term "Mean annual high-water line", as used in this section, shall mean with respect to a river, the line that is apparent from visible markings or changes in the character of soils or vegetation due to the prolonged presence of water and which distinguishes between predominantly aquatic and predominantly terrestrial land. The mean high tide line shall serve as the mean annual high water line for tidal rivers. The term "River", as used in this section, shall mean a natural flowing body of water that empties to any ocean, lake, or other river and which flows throughout the year. The term "Riverfront area", as used in this section, shall mean that area of land situated between a river's mean annual high-water line and a parallel line located two hundred feet away, measured outward horizontally from the river's mean annual high-water line. This definition shall not create a buffer zone, so-called, beyond such riverfront area. Riverfront areas within municipalities with (i) a population of ninety thousand or more persons or (ii) a population density greater than nine thousand persons per square mile, as determined by the nineteen hundred and ninety federal census; (iii) that are within densely developed areas as defined herein; (iv) land in Waltham between the Charles river on the north, and the Crescent street and Pine street on the south, and the intersection of the Charles river and a line extended from the center line of Walnut street on the west, and the railroad right-of-way now or formerly of the Boston and Maine Railroad on the east; or (v) property located in the town of Milton shown on Milton assessors Map G, Block 56, Lot 13, located on 2 Granite Avenue shall be defined as that area of land http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 4 of 8 situated between a river's mean annual high-water line and a parallel line located twenty-five feet away, Omeasured outward horizontally, from the river's mean annual high-water line. The riverfront area shall not include land now or formerly associated with historic mill complexes including, but not limited to, the mill complexes in the Cities of Holyoke, Taunton, Fitchburg, Haverhill, Methuen and Medford in existence prior to nineteen hundred and forty-six and situated landward of the waterside facade of a retaining wall, building, sluiceway, or other structure existing on the effective date of this act. The riverfront area shall not apply to any mosquito control work done under the provisions of clause (36) of section five of chapter forty, of chapter two hundred and fifty-two or of any special act or to forest harvesting conducted in accordance with a cutting plan approved by the department of environmental management, under the provisions of sections forty to forty-six, inclusive, of chapter one hundred and thirty-two; and shall not include any area beyond one hundred feet of river's mean annual high water mark: in which maintenance of drainage and flooding systems of cranberry bogs occurs; in which agricultural land use or aquacultural use occur; to construction, expansion, repair, maintenance or other work on piers, docks, wharves, boat houses, coastal engineering structures, landings, and all other structures and activities subject to licensing or permitting under chapter ninety-one and its regulations; provided that such structures and activities shall remain subject to statutory and regulatory requirements under chapter ninety-one and section forty of chapter one hundred and thirty-one or is the site of any project authorized by special act prior to January first, nineteen hundred and seventy-three. The term "Riverfront area boundary line", as used in this section, shall mean the line located at the outside edge of the riverfront area. The conservation commission, selectmen or mayor receiving notice under this section shall hold a public hearing on the proposed activity within twenty-one days of the receipt of said notice. Notice of the time and place of said hearing shall be given by the hearing authority at the expense of the applicant, not less than five days prior to such hearing, by publication in a newspaper of general circulation in the city or town where the activity is proposed and by mailing a notice to the applicant and to the board of health and the planning board of said city or town. The conservation commission and its agents, officers and employees and the commissioner of environmental protection and his agents and employees,. may enter upon privately owned land for the purpose of performing their duties under this section. No conditions shall be imposed, nor shall any determination be rendered by a conservation commission, in reference to this section, unless the conservation commission meets with a quorum present. If after said hearing the conservation commission, selectmen or mayor, as the case may be, determine that the area on which the proposed work is to be done is significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries or to the protection of the riverfront area consistent with the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries, such conservation commission, board of selectmen or mayor shall by written order within twenty-one days of such hearing impose such conditions as will contribute to the protection of the interests described herein, and all work shall be done in accordance therewith. If the conservation commission, selectmen or mayor, as the case may be, make a determination that the proposed activity does not require the imposition of such conditions, the applicant shall be notified of such determination within twenty-one days after said hearing. Such order or notification shall be signed by the mayor or a majority of the conservation commission or board of selectmen, as the case may be, and a copy thereof shall be sent forthwith to the applicant and to the department. OIf a conservation commission has failed to hold a hearing within the twenty-one day period as required, or if a commission, after holding such a hearing has failed within twenty-one days therefrom to issue an http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 5 of 8 order, or if a commission, upon a written request by any person to determine whether this section is applicable to any work, fails within twenty-one days to make said determination, or where an order does Oissue from said commission, the applicant, any person aggrieved by said commission's order or failure to act, or any owner of land abutting the land upon which the proposed work is to be done, or any ten residents of the city or town in which said land is located, may, by certified mail and within ten days from said commission's order or failure to act, request the department of environmental protection to determine whether the area on which the proposed work is to be done is significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries or to the protection of the riverfront area consistent with the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries. The commissioner of environmental protection or his designee also may request such a determination within said ten days. The party making any such request shall at the same time send a copy thereof by certified mail to the conservation commission, board of selectmen or mayor which conducted the hearing hereunder. If such party is other than the applicant, a copy of such request shall also be sent at the same time by certified mail to the applicant. Upon receipt of such request the department shall make the determination requested and shall by written order issued within seventy days of receipt of such request and signed by the commissioner or his designee, impose such conditions as will contribute to the protection of the interests described herein; provided, however, that said department shall notify the applicant within thirty days of the receipt of such request if his application or request is not in proper form or is lacking information or documentation necessary to make the determination. Such order shall supersede the prior order of the conservation commission, board of selectmen or mayor, and all work shall be done in accordance therewith, but in no event shall any work commence until ten days have elapsed following the issuance of said order. In the case of riverfront areas, Ono order issued by a conservation commission, board of selectmen, mayor, or the department shall permit any work unless the applicant, in addition to meeting the otherwise applicable requirements of this section, has proved by a preponderance of the evidence that (1) such work, including proposed mitigation measures, will have no significant adverse impact on the riverfront area for the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries, and (2) there is no practicable and substantially equivalent economic alternative to the proposed project with less adverse effects on such purposes. An alternative is practicable and substantially economically equivalent if it is available and capable of being done after taking into consideration: costs, and whether such costs are reasonable or prohibitive to the owner; existing technology; the proposed use; and logistics in light of overall project purposes. For activities associated with access for one dwelling unit, the area under consideration for practicable alternatives will be limited to the lot; provided, that said lot shall be on file with the registry of deeds as of the August first, nineteen hundred and ninety-six. For other activities including, but not limited to, the creation of a real estate subdivision, the area under consideration shall be the subdivided lots, any parcel out of which the lots were created, and any other parcels that are adjacent to such parcel or adjacent through other parcels formerly or presently owned by the same owner at any time on or after August first, nineteen hundred and ninety-six or any land which can reasonably be obtained; provided, that an ownership interest can reasonably be obtained after taking into consideration: cost, and whether such cost is reasonable or prohibitive to the owner; existing technology; the proposed use; and logistics in light of overall project purposes. At any time prior to a final order of determination by the department, any party requesting a determination may in writing withdraw the request, and such withdrawal shall be effective upon receipt by the department. Notwithstanding the withdrawal, the commissioner or his designee may Ocontinue the determination if he notifies all parties within ten days of receipt of the withdrawal. A copy of such order shall be sent to the applicant, to the conservation commission, board of selectmen or mayor which conducted the hearing hereunder. As used in this section the words "wildlife habitat" shall mean http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 6 of 8 those areas subject to this section which, due to their plant community composition and structure, ohydrologic regime or other characteristics, provide important food, shelter, migratory or overwintering areas, or breeding areas for wildlife. No work proposed in any notice of intention shall be undertaken until the final order, determination or notification with respect to such work has been recorded in the registry of deeds, or if the land affected thereby be registered land, in the registry section of the land court for the district wherein the land lies. If the final order, determination or notification requires the recording of a plan which (1) shows the location of the work, (2) is prepared by a registered professional engineer or land surveyor and (3) is in recordable form, no work proposed in the notice of intention shall be undertaken until such plan has been recorded in the registry of deeds or, if the land affected thereby is registered land, in the registry section of the land court for the district wherein such land lies. Within twenty-one days of the receipt of a written request, by the applicant or the owner of the property, for a certificate of compliance, the issuer of the final order shall grant such request if the activity, or portions thereof, complies with such final order. The certificate of compliance shall state that the activity, or portions thereof, has been completed in accordance with such order. Any site where work is being done which is subject to this section shall display a sign of not less than two square feet or more than three square feet bearing the words, "Massachusetts Department of Environmental Protection File Number...." and the sign shall display the file number assigned to the prof ect. If the department of environmental protection finds that any proposed work would violate the provisions Oof chapter ninety-one, it shall proceed immediately to enforce the provisions of said chapter. The provisions of this section shall not apply to any mosquito control work done under the provisions of clause (36) of section five of chapter forty, of chapter two hundred and fifty-two or of any special act; to maintenance of drainage and flooding systems of cranberry bogs, to work performed for normal maintenance or improvement of land in agricultural use or in aquacultural use; or to any project authorized by special act prior to January first, nineteen hundred and seventy-three. Within one hundred and twenty days of the effective date of this act, the department, upon the advice and consent of the Commissioner of the Department of Food and Agriculture, shall promulgate rules and regulations pursuant to this section which shall establish definitions for the term "normal maintenance or improvement of land in agricultural, or in aquacultural use", for each agricultural commodity, or where appropriate because of similarities in cultural practices, groups or commodities in the Commonwealth. The department shall create a farmland advisory board to be appointed by the commissioner consisting of five persons one a member of the cooperative extension service, one a member of the USDA soil conservation service, one a member of a municipal conservation commission who has demonstrated expertise in agricultural issues, and two commercial farmers with expertise in different agricultural commodities to assist the department in the drafting of rules and regulations pursuant to this paragraph. The notice of intention required in the first paragraph of this section shall not apply to emergency projects necessary for the protection of the health or safety of the commonwealth which are to be performed or which are ordered to be performed by an agency of the commonwealth or a political subdivision thereof. An emergency project shall mean any project certified to be an emergency by the conservation commission of the city or town in which the project would be undertaken, or if none, by the mayor of said city or the selectmen of said town. If the conservation commission, mayor, or selectmen, as the case may be, fail to act favorably within twenty-four hours of receipt of a request for certification of an emergency project, said project may be so certified by the commissioner or his designee. In no case shall http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 7 of 8 any removal, filling, dredging, or alteration authorized by such certification extend beyond the time necessary to abate the emergency. ONotwithstanding the provisions of section fourteen of chapter twenty-one A or any other provision of law to the contrary, the notice of intention required in the first paragraph of this section shall not apply to a maintenance dredging project for which a license has been previously issued within ten years by the division of waterways of the department of environmental protection. A person intending to fill or dredge under such previously issued license shall file a written notice by certified mail to the conservation commission or if none, to the board of selectmen in a town or mayor of a city in which the land upon which such dredging project is located. Such notice shall contain the name and address of the applicant. If the conservation commission, the board of selectmen or mayor fails to notify the applicant at the applicant's address within twenty days of the receipt of such notice of the specific objections to the commencement of such dredging fill or maintenance dredging contemplated under said license, the applicant may commence such work without any further notice to other agencies of the commonwealth. Notwithstanding failure to notify an applicant, as hereinbefore provided, the conservation commission, the board of selectmen or mayor may at any time designate an area at which spoilage from the dredging may be placed and may require the relocation of shellfish before such maintenance dredging takes place. If the conservation commission, the board of selectmen or mayor cites specific objections to the notice of intention, such conservation commission, board of selectmen or mayor may order a hearing as provided in this section and all other pertinent provisions of this section shall apply. Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this section or in violation of any order issued under this section shall Oforthwith comply with any such order or restore such real estate to its condition prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such person unless such action is commenced within three years following the recording of the deed or the date of the death by which such real estate was acquired by such person. Any court having equity jurisdiction may restrain a violation of this section and enter such orders as it deems necessary to remedy such violation, upon the petition of the attorney general, the commissioner, a city or town, an owner or occupant of property which may be affected by said removal, filling, dredging or altering, or ten residents of the commonwealth under the provisions of section seven A of chapter two hundred and fourteen. Rules and regulations shall be promulgated by the commissioner to effectuate the purposes of this section. However, failure by the commissioner to promulgate rules and regulations shall not act to suspend or invalidate the effect of this section. In addition to the other duties provided for in this section, a conservation commission and its agents, officers, and employees; the commissioner, his agents and employees; environmental officers, and any officer with police powers may issue enforcement orders directing compliance with this section and may undertake any other enforcement action authorized by law. Any person who violates the provisions of this section may be ordered to restore property to its original condition and take other actions deemed necessary to remedy such violations. No person shall remove, fill, dredge or alter any area subject to protection under this section without the required authorization, or cause, suffer or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with an enforcement order issued pursuant to this section. Each day such violation continues shall constitute a separate offense except that any person who fails to remove unauthorized fill or otherwise fails to restore illegally altered land to its original condition after giving written notification of said violation to the conservation commission and the department shall not be subject to additional penalties unless said person thereafter fails to comply with an enforcement order or order of conditions. http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 M.G.L. - Chapter 131, Section 40 Page 8 of 8 Whoever violates any provision of this section, (a) shall be punished by a fine of not more than twenty- Ofive thousand dollars or by imprisonment for not more than two years, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation. 101 EO http://www.mass.gov/legis/laws/mgl/l 31-40.htm 10/26/2007 THomAs 7, URBELIS e-mail tiu@ul=law.com Gerald Brown Inspector of Buildings Town of North Andover 1600 Osgood Street North Andover, MA 01845 URBELIS & FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 Telephone 617-338-2200 Telecopier 617-338-0122 September 25, 2007 RECEIVED SEP 2'6 2007: NORTH ANDOVER CONSERVATION COMMISSION Re: 810-812 Salem Street Dear Mr. Brown: Andover Telephone 978-475-4552 By letter dated August 29, 2007 and received by my office September 5, 2007, you requested advice on a response to Attorney Howard Speicher's letter dated May 7, 2007, which is attached hereto. Attorney Speicher concludes that the North Andover Zoning Bylaw "cannot be properly construed to include subsequently adopted amendments to either the State Act or the Wetland Protection Bylaw." The sole case or statute which is relied upon in the correspondence is Ruby v. Earth Tech Inc. 62 Mass. Appt. Ct. 1106 (2004), a copy of which was supplied to me by. Atte:ney.Speicher on September 19, 2007 and which is also attached hereto. The. cited case is not dispositive The issue in the Ruby case was whether the Plaintiff, who worked on an MBTA project, was entitled to the payment of prevailing wages. The Court stated that: "The plaintiff relies initially on G.L. c. 149, §26, which requires that prevailing wages be paid to identified employees engaged in certain public works projects. At the time of the bidding on the projects in question (1994 and 1995), §26, as amended through St. 1967, C. 296, §2, applied to "the employment of mechanics w:iwp511work�i-aatdovelco resp%brow - s 12 salem street.doc C (a VD,) URBELIS & FIELDSTEEL, LLP September 25, 2007 Page 2 and apprentices, teamsters, chauffeurs and laborers in the construction of the public works by the commonwealth, or by a county, town or district, or by persons contracting or subcontracting for such works" (emphasis supplied). By its terms, §26 was inapplicable to the MBTA. The term "authority" is ordinarily "used in the title of a `body public and corporate.' " Wallerstein v. Board of Bar Examrs., 414 Mass. 1008, 1009 (1993). "By the terms of its enabling legislation, the MBTA is an entity financially independent from the Commonwealth with a separate corporate existence." Okongwu v. Stephens, 396 Mass. 724, 730 (1986). The MBTA is described as both a "body politic and. corporate" and as. a "political subdivision." G.L. c. 161A, §2, as amended by St. 1999, c. 127, §151. The Legislature is familiar with the term "authority," and its absence from the applicable version of G.L. c. 149, §26, is meaningful. Given the private attributes that distinguish authorities from ordinary government agencies, it is unlikely that the omission is inadvertent. That the omission was intentional at the time is further demonstrated by the subsequent amendment of §26, see St. 1998, c. 236, §5, to add the term "authority" to the entities to which the statute applies. See St. 1998, c. 236, §21, making §5 applicable to public works projects on which bids were submitted on or after February 3, 1999." In further support of its decision, the Court stated: "See also G.L. c. 1.61A, §25, which generally exempts the MBTA from laws governing rates or wages of public employees, leaving the subject to collective bargaining." Although the MBTA was not specifically referenced in the original legislation in that case, no such ambiguity exists here about whether the North Andover Wetland Protection Bylaw or the Ccninionwealth's Wetlands Act is referenced in the Zoning Bylaw, because the Bylaw and the Act are both specifically referenced in the Zoning Bylaw. Other than the foregoing case, Attorney Speicher's letter does not cite to any case law or statutory authority in support of the conclusion asserted in Attorney Speicher's letter. The Rubv_case cannot be cited as precedent. The Ruby case referenced in the letter was issued pursuant to Rule 1:28 of the Appeals Court and was not a "published opinion" of the Court. (That is why I requested Attorney URBELIS & FIELDSTEEL. LLP September 25, 2007 Page 3 Speicher to provide me with a copy.) Rule 1:28 enables the Appeals Court not to publish both civil and criminal decisions that present no substantial question of law or where it appears that no clear error of law has been committed which injuriously affects substantial rights of an appellant. With regard to the effect of such a case, in Chhoeun Ny V. Metropolitan Property and Casualty Co., 51 Mass. App. Ct. 471, 475, n. 7 (2001); the Appeals Court stated: "Opinions of this court in an unrelated case, released pursuant to Rule 1:28, may not be cited as precedent." (emphasis supplied) Thus, as a result of the Appeals Court's interpretation of its own Rules, the case cited in the Ietter may not be cited as precedent for the argument which was suggested in the letter. Accordingly, in my opinion, the letter dated May 7, 2007 does not cite any controlling statutory or case law authority for the letter's assertion that rhe ?onirjg Bylaw "cannot be properly construed to include subsequently adopted amendments to either the State Act or the Wetland Protection Bylaw." If other authorities are cited to you in support of the landowner's position we would be pleased to review them. As always, please call if you have any questions. TJU/kmp cc Mark Rees Curt Bellavance Very truly yours, T s Thomas J. Ur lis DAMS Mlil. M & DAG®STINE PC. A T T O R N E Y S AT L A W Howard P. Speicher May 7, 2007 direct 617.589-3829 direct far 617-305.3129 email hspeidler@davismalm.cnm ONE BOM -ON P1ACF, r BOSTCN ". MA • 02108 617.367.2500 . fax 617.5236215 w w w_ d 2 v i s m a 1 m, c 0 m C. Michael Malm VIA E-MAIL AND FIRST CLASS MAIL William F. Griffin, Jr. Gerald Brown, Inspector of Buildings John G. Serino North Andover Building Department Gary S. Marsko 1600 Osgood Street John T. Lynch North Andover, MA 01845 Carol R. Cohen Howard P. Speicher Paul L Feldman Re: $1.0-812 Salem Street North Andover Massachusetts Gary M. Feldman George A. Hewett Dear Building Inspector Brown: Laurence M. Johnson Kenneth J. Mickicwicz This office represents John Carroll, the owner of the property at 810-812 Salem Thomas S. Fitzpatrick Street in North Andover. Mr. Carroll has asked us to contact you to address a J. Gavin Cockfield concern relating to the application of the Zoning Bylaw to the property, which David Rapaport we understand may have been raised by some members of the town's Whitton E. Norris, III development staff. Andrew D. Myers Robert J. Galvin As you may' now, Mir. Carroll has obtained the endorsement of the Planning John D. Chambliss Board on an "approval not required" plan dividing the property into two Thomas separate lots. Each of the lots is improved by an existing building, and each of uis a Marione Sn the lots meets the lot frontage and lot area requirements for buildable lots in an Samuel B,, MMososkkowitz R3 zoning district. However, a question has been raised as to whether the lots,. :Charles H. De&noise . because of their proximity to Mosquito Brook, meet the "contiguous buildable Amy L. Fracassini Robert), Dicttrich area" requirements of Section 7.1.1 of the Zoning Bylaw. Avi M. Lev The CBA provision of the Zoning Bylaw provides as follows: Ann M. Sobolcwski Joshua S. Grossman As of Apn] 28, 1986, the area of any new lot created, exclusive Neal J. Bingham David M. Cogliano of area in a street or recorded way open to public use, at least Relxcca L Andrews seventy five (75) percent of the minimum lot area required for Laurie Alexander-Krom zoning shall be contiguous land other than land located within a Sophie C. Mighazzo line identified as wetland resource areas in accordance with the Christopher I. Marino Wetlands Protection Act, Massachusetts General Laws, Chapter Shannon M. Tomai• 131, Section 40 and the Town of North Andover Wetland Harold R. Davis, Protection Bylaw, Chapter 178 of the Code of North Andover. of Counsel The proposed structure must be constructed on said designated Julian J. D'Agostine contiguous land area, of Counsel "Pending ndmi.ion to 6c M—hv.=t Bnr direct 617.589-3829 direct far 617-305.3129 email hspeidler@davismalm.cnm ONE BOM -ON P1ACF, r BOSTCN ". MA • 02108 617.367.2500 . fax 617.5236215 w w w_ d 2 v i s m a 1 m, c 0 m Gerald Brown, Inspector of Buildings May 7, 2007 Page 2 DAGOSTINE PC. At the time the CBA provision was adopted in 1986, the incorporation by reference of "wetland resource areas" under the State Wetlands Protection Act (the "State Act") and the North Andover Wetland Protection Bylaw did not include the concept of a 200 -foot buffer from a river or stream. No such resource area existed in the State Act prior to the adoption of the P iverfront Protection Act in 1996, chapter 258 of the Acts of 1996. The riverfront area was adopted as a resource area in the local Wetland Protection Bylaw in 1998. At no time subsequent to its adoption in 1986 has the CBA provision of the Zoning Bylaw been amended to include the new riverfront area as a resource area that must be excluded in calculating CBA. Consequently, the 200 -foot riverfront area cannot be a resource area that must be, excluded from CBA. By referring to "wetland resource areas in accordance with" the State Act and the Wetland Protection Bylaw, the CBA provision of the Zoning Bylaw is referring to those wetland resource areas as they were defined at the time of the adoption of the CBA provision in 1986. As a basic matter of statutory interpretation, the CBA provision cannot be properly construed to include subsequently adopted amendments to either the State Act or the Wetland Protection Bylaw. To conclude otherwise would be to, in effect, amend the Zoning Bylaw without a vote of the Town Meeting. Furthermore, such a conclusion would have the effect of amending the Zoning Bylaw, not only without a vote to amend the Zoning Bylaw, but on the basis of an amendment to the Y.'etland Protection Bylaw that was passed on a majority vote, and not with the two-thirds vote required to amend the Zoning Bylaw, It is a basic rule of statutory construction that a statute incorporating by reference a specific provision of another law cannot be amended by reference simply because the statute to which the reference is made is amended. For instance, in a case in which an employee of a subcontractor of the MBTA tried to take advantage of a subsequent amendment to the "prevailing wage" law that made the law applicable to an "authority" as well as to cities and towns, the court held that the later amendment of the statute did not apply to the plaintiff, because the plaintiff's cause of action arose prior to the adoption of the amendment, and so the statute in question did not impliedly include "authority" with respect to the plaintiff's claim. Ruby v. Earth Tech, Inc,, 62 Mass. App. Ct. 1106 (2004). Likewise, the reference to "wetland resource areas" in the CBA provision of the Zoning Bylaw was adopted at a time when the reference could not have included "riverfront" areas as wetland resource areas, because no such resource areas yet existed. The Town Meeting members voting on the adoption of the CBA provision cannot be inferred to have meant to include a resource area under the provision's coverage of which they could have had no knowledge. This conclusion is mandated by the basic principle of statutory construction of"adoption by reference of limited and particular provisions of another statute, in which case the reference does not include subsequent amendments." 2B .Sutherland Statutes and Statutory Construction, §51:7 (6a' ed., updated October 2006). "[WJhere a statute adopts by specific reference the provisions of Gerald Brown, Inspector of Buildings May 7, 2007 Page 3 Davis MALm & DAIAGosTiN'E PC. another statute, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified." Id. The CBA provision, as adopted in 1986, adopted by reference the specific provisions of the State Act and the Wetlands Protection Bylaw existing at the time defining wetland resource areas. Under the principles cited above, this reference cannot be deemed to include later amendments to either the State Act or to the Wetland Protection Bylaw without a specific amendment to the Zoning Bylaw allowing such incorporation by reference of these more stringent provisions, Based on the principles discussed in this letter, we urge you to conclude, as we believe the law requires, that the two ANR Iots recently approved by the Planning Board at the property are not in violation of the CBA provisions of the Zoning Bylaw by reason of their proximity to Mosquito Brook. I would be pleased to discuss the issues raised in this letter at your convenience. Very truly yours, Howard P. e P cc: John Carroll Stephen E. Stapinski, R.L.S. 441622v.1 Westlaw, 816 N.E.2d i82 62 Mass.App.Ct, 1106, 816 N.E.2d 182, 2004 WL 2347577 (Mass..App.Ci.) (Cite as; 62 Mass.App.Ct, 1106, 816 N-E.2d 182) H Ruby v. Earth Tech, Inc. Mass.App.Ct.,2004. NOTICE: THIS 1S AN UNPUBLISHED OPINION. Appeals Court of Massachusetts. Donna RUBY, V. EARTH TECH, INC. No. 03-P-650, Oct. 19, 2004. MEMORANDUM IND ORDER PURSUANT TO RULE 128 *1 By an amended complaint in the Superior Court, the plaintiff sought to recover from her employer amounts allegedly due her pursuant to the Commonwealth's prevailing, wage law. See G.L. c. 149, §§ 26 and 27-271-1. 71"1' Or, cross motions for surnmary judgment, the motion judge denied the plaintiffs motion; allowed the defendant's motion; declared that the prevailing wage statutes were inapplicable to the plaintiff's employment; and otherwise dismissed the amended complaint. By means of a timely appeal, the plaintiff asserts that, contrary to the judge's ruling, she was entitled to receive the prevailing wage pursuant to applicable statutes. In the alternative, she argues that, even if she is not so entitled under the statutes, she should nevertheless be paid the prevailing wage because the contract governing the work required such payment. We conclude that neither the statutes nor the contract entitle the plaintiff to the prevailing wage, and accordingly affirm the judgment, f'a,c 2 of 5 Parc I process against other parties and claims under certain Federal statutes. The plaintiffs' Federal claims and applications for trustee process were waived. Following the dismissal of their complaint, notices of appeal were filed oil behalf' of all twelve of the plaintiffs. However, only Ms. Ruby has prosecuted the appeal 1. The material facts do not appear to be genuinely disputed. inI— the Massachusetts Bay Transportation Authority (MBIA) completed construction of a comrnuter rail maintenance facility located principally in Somerville. Because of certain environmental considerations, the MBTA also arranged for the building of a s:roundwaier treatment plant and a pretreatment facility, and inviied bids for the construction. Included in the specifications was a requirement that the contractors provide for the operation and maintenance of the facilities for a period of five years after their construction. In 1994, a joint venture entered into beiween Kiewit Construction Company and Kenny Consn-uction Company (Kiewit-Kenny) was awarded the contract to construct the pretreatment facility (contract No. MCN13). In 1995, Perini Environmental Services, Inc. (Perini) was awarded the contract to construct the groundwater treatment plant (contract No. C3CN12). According to the judge's rnemoraid tt 117, both Kiewit•Kenny and Perini subcontracted the operation and maintenance portions of the respective contracts to the defendant, Eartli Tech, inc. (but see section 3 below). The defendant employed the plaintiff as a wastewater treatment facility operator to provide services required in connection with the two projects. 2. Statutory clnim,s. The plaintiff' relies initially on FN1. The complaint was amended twice. G.L. c. 149, § 26, which requires that prevailing At one time, twelve plaintiffs sought wages be paid to identified employees engaged in 'similar relief, including, beside their certain public works projects. At the time of the claims against the defendant under the �biddittgg--tn--Flu—prop^'z tr, prevailing wage statutes, claims for trustee 1995), § 26, as arnertded through St.1967 c. 29 tC, 2007 Thomson/West. No Claim to Orig. Ll,S, Govt. Works. http://web2.westIaw.com/print/printstreat�,i.aspx?rs=WLW7.04&destination=atp&sv=Split&... 5/7/2007 816 N.E.2d 182 62 Mass.App.Ct. 1 106, 816 N.E.2d 182, 2004 WL 2347577 (Mass,App.Ct.) (Cite as: 62 Mass.App.Ct. 1106, 816 N.E.2d 182) 2, applied to "tile employment of mechanics and apprentices, teamsters, chauffeurs and laborers in the construction of public works the t o�mon.>ye[1.hh nr h, n rounr}�p�a n or dish ict or by persons contracting or subcontracting for such works" (emphasis supplied). By its terms, § 26 was ina plicable to the MBTA. The term "authority" is ordinar yy used ih`lhe 71 e of a `body politic and corporate." ' 14allerstein v. Board of Bar Exanv-s., 414 Mass, 1008, 1009 (1993). "By the terms of its enabling legislation, the MBTA is an entity Financially independent from ttte Commonweulth with a separate corporate existence." Okongivu v. Stephens, 396 Mass. 724, 730 (1986), The MBTA is described as both a "body politic and corporate" and as a "political subdivision." G.L, c. 161A, § 2, as amended by St.1999, c. 127, § 151. The Legislature is familiar with the term "authority," and its absence from the applicable version of G.L. c. 149, § 26, is meaningful. Given the private attributes that distinnuish authorities from ordinary government agencies, it is unlikely that the omission is inadvertent.r42 T}rat the omission was intentional at the time is further demonstrated by the subsequent amendment of § 26; see St -1998. f. 236...-- _§ 5, to add the term "authority" to the entities to Which t e statute applies. See St. 1998, c. 236, § 21, making § 5 applicable to public works projects on which bids were submitted on and after February 3, 1999. - --- - FN2. See also G.L. c. 161A, § 25, which generally exempts the MBTA from laws governing rates or wages of public employees, leaving the subject to collective bargaining. *2 While this by itself is dispositive with respect to § 26, we observe also that the section applies only to the "construction" of public works by the enumerated entities. The plaintiffs employment was as a wastewater operator, and included the repair, maintenance and operation of the wastewater system, the handling of oil waste material, and the performance of related tests, This is not " construction" as contemplated by § 26, even given the gloss on the term provided by G.L. c. 149, § 27D . Indeed, the plaintiff concedes that she had nothing Page 3 of 5 Page 2 to do with the construction of cither the groundwater treatment plant or the pretreatment facility, and that her employment related exclusively to operations and maintenance after construction had been completed and the units were operational. The plaintiff fares no better under cither § 27F or § 271-1 of G.L. c. 149. Section 27F applies prevailing wages to the operators of trucks, vehicles, or other equipment engaged in public works. however, § 27F, inserted by St. 1960, c. 795, limits its application to public works "by the commonwealth or by a county, city, town or district," thus, as in the case of § 26, excluding authorities from coverage. FN3 Likewise, § 27H, inserted by St.1987, c. 762, which requires that prevailing wages be paid to employees of contractors who clean or maintain certain public buildings or rented space, applies only to "public buildings or space rented by the commonwealth." FN3. We note that G.L. c. 149, § 27F, was not rewritten to include authorities even after the amendments to prevailing wage statutes adopted in 1998. We are not persuaded by the plaintiffs proposition that the prevailing wage statutes embrace a legislative policy that was intended to extend to this plaintiff in these circumstances. The cases ort which the plaintiff relies involve various delegations of authority by the Legislature to administrative agencies.t'44 We are not concerned here with delegation of authority, but rather with statutes that impose certain requirements on governn,entaf entities. For their meaning, we look principally to the language employed by the Legislature. See Blue Cress of 1'Vfass(rchnse11s, lrzc. 11. Commissioner uJ Ins„ 397 Mass. 674, 678 (1986). We decline the invitation to rewrite the statutes. M5 FN4. The plaintiffs separate reliance on Thorn Transit Sys. Intl., Ltd. v. Mns.rachusetts Bo Transp. ,4uthv.. 40 Mass.App,Cl. 650 (1996), is misplaced. That case, at 652, dealt with procurement 02007 Thomson/West. No Claim to Ori;;. U.S. Govt. Works. http://web2.Westlaw.cojiilprint/printstream.aspx?rs=WLW7.04&destination=atp&sv=Split&... 5/7/2007 816 N.E.2d 182 62 Mass.App.Ct. I i 06, 816 N.E.2d 182, 2004 WL 23;7577 (Mass.App.Ct.) (Cite as: 62 Mass.App.Ct. 1106, 816 N.E.2d 182) under G.L. c. 30, § 39M, and did not address prevailing wage requirements. FN5. In light of our interpretation of the statutes, it is unnecessary to address the defendant's contention that the plaintiff was barred from asserting claims under G.L. c. 149, §§ 27F and 27H, because she did riot bring such claims to the attention of the Attorney General first. See G.L. c. 149, § 27. 3. Contract clahns. The plaintiff argues alternatively that, even if the statutes do not obligate the defendant to pay. prevailing wages in connection with these .projects, the MBTA has independently chosen to require its contractors to pay prevailing wages to their employees, and thus the defendant is obligated to do so pursuant to the contract documents. It appears that the plaintiff did not present this contention to [lie motion judge, and we could dispose of it on the ground of waiver. Passing the question Whether the issue has been preserved, we conclude that there is no support in the contract documents for the plaintiffs proposition, and we briefly address the merits. The motion judge treated the two projects as governed by separate subcontracts between the defendant and Perini (the groundwater treatment plant) and the defendant and Kiewit-Kenny (the Pretreatment facility). While the record is not entir-ly clear on the subject, it appears that the defendam entered into a contract regarding the pretreatment facility directly with the MBTA, That contract contains no requirement that the defendant pay its employees prevailing wages. "3 Thus, the plaintiff bases her argument or, the subcontract entered into between the defendant and Perini regarding the groundwater treatment plant. As in the case of the contract between the MBTA and the defendant relative to the pretreatment facility, the subcontract contains no express reference to prevailing wages. It does, however, contain the normal incorporation by reference of the general contract entered into by Perini and the MBTA. The general contract "is subject to Federal wage and hour laws and State minimum wage rates, Page 4 OF Page 3 as well as all other applicable labor laws." See Notice to Bidders. Apparently construing this language as invoking prevailing wage laws (an interpretation which we consider by no means obvious), MBTA personnel requested and received from the Executive Office of Labor t t' a determination of prevailing wages applicable to construction of the groundwater treatment plant. The plaintiff argues that a requirement to pay such wages consequently became incorporated in the subcontract between Perini and the defendant- In addition, the plaintiff' contends that, because the defendant's employees were assigned interchangeably to the two projects, prevailing wages were required with respect to the Pretreatment plant project as well as with respect to the groundwater treatment plant project. FN6. These functions are now performed by the Division of Safety. The problem with this theory is that it again erroneously equates the plaintiff's employment with "the construction of public works" as used in G.L. c. 149, § 26. The defendant and its employees did not construct the groundwater treatment plant. That was the obligation of Perini pursuant to tire general contract, and the MBTA sought the establishment of prevailing wages exclusively with respect to the construction phase. Absent from the request is any reference to wages of employees engaged in operations or maintenance . ' V7 We thus see nothing in the JMB'rA's treatment of the subject that Suggests that it considered prevailing wage requirements to be applicable to the def'endant's services. FN7, The MBTA's request to the Executive Office of Labor describes the work as "new construction of groundwater treatment plant." It defines the scope of the work as "plant enclosure, treatment plant and eleven recovery wells along with associated foundations and utilities." Other documents on which the plaintiff relies are of no help to her case. Tl -..e "form for bid" relative to cQ 2007 Thomson/West. No Claim to Orig. U.S. Govt, Works. 1-ittp:h•'web2.westlaw.corn/print/prititstream.aspx?rs=W LW7.04&destination=atp&sv=Split&... 5/7/2007 816 N.E.2d 182 62 Mass, App. Ct. 1106, 816 N.E.2d 182, 2004 WL 2347577 (Mass.App.Ct,) (Cite as, 62 Mass.App.Ct. 1106, 816 N.E.2d 182) the groundwater treatment plant does not address the subject of employees' wages. The language set forth in the "notice to bidders," quoted above, alerts bidders to the awarding authority's expectation that they will comply with applicable labor laws. As we have discussed, the prevailing wage statutes are not applicable, and the provision was not designed to create new obligations. finally, the portion of the " addendum to bid" cited by the plaintiff identifies only the qualifications required by the operator in question, and dictates no wage that such an empioyee must receive. Judgment of nnerl. Mass.App.Ct.,2004. Ruby v. Earth "Tech, Inc. 62 Mass.App.Ct. 1106, 816 N.E.2d 182, 2004 WL 2347577 (Mass.App.Ct.) END OF DOCUMENT V 2007 Thomson/West. No Claim to Orig. U.S. Govt, Works, Page 5 of 5 Page 4 http://web2.westlaw.com/print/printstreani.aspx?rs=W LW 7.04&destination=atp&sv=Split&... 5/7/2007 J PLANNING DEPARTMENT Community Development Division January 17, 2007 Helen J. St. Cyr 7 %s Beverly Street Methuen, MA 01844 c% Gerald Johnston C-F:.IVED 2001 JAN 18 Ptd 2: 53 NIO.i1T H. A f1A55AC..0 " RE: Form A Application - Map 65, Lot 15 - Proposed Lots 15-1 & 15-2 Plan Titled "Plan of Land in North Andover, Massachusetts" dated November 24, 2006 and Revised January 4, 2007, Prepared by Merrimack Engineering Services, Prepared for Helen J. St. Cyr. Dear Ms. St. Cyr: We are in receipt of Form A Application filed November 30, 2006 for the property located at 812 Salem Street, Assessor's Map 65, Lot 15 with frontage on Salem Street and Blue Ridge Road to create Lots 15-1 and 15-2. Upon review, the Form A application has been DENIED because the plan did not comply with the Regulations Governing the Subdivision of Land dated November, 2000, last Amended December 2002 (North Andover Subdivision Rules & Regulations) for the following reason. ➢ Contiguous Buildable Area The lots do not meet the requirements of 3.2.11 of the Town of North Andover Rules & Regulations and Section 7. 1.1 Contiguous Buildable Area (CBA) of the North Andover Zoning Bylaw for determining the minimum CBA required for a lot within the Residential 3 Zoning District (25,000 s.f minimum lot size). The plan incorrectly shows each lot satisfying the 75% minimum CBA requirement with Lot 15-1 containing CBA in excess of 25,000 s.f. and Lot 15-2 containing 25,000 s.f, of CBA. Section 7. 1.1 states the following: "As of Apri128, 1986, the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventyfive (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area. " In accordance with the North Andover Wetlands Protection Bylaw, Section 178.2 Jurisdiction, a wetland resource area consists of. 1) any isolated vegetated wetland, 2) any ephemeral pool, 3) any vegetated wetland bordering on any creek, river, stream, pond or lake, 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 978.688.9535 Fax 978.688.9542 Web www.townofnorthandover.com ti -' 4) any bank, beach, marsh, wet meadow, bog, or swamp, 5) any land under any creek, river, stream, pond or lake, 6) any 100 -foot buffer zone of wetland resource area 1-5 listed above, 7) any land subject to storm flowage, or flooding by groundwater or surface water, 8) and the 200 -foot riiverfront area. The Plan correctly identifies Mosquito Brook and the 200' riverfront contiguous buffer. Mosquito Brook and the contiguous 200 -foot zones on either side have been identified by the Conservation Commission as riverfront areas. The 200' riverfront area is categorized a wetland resource area and as such, the 200' contiguous land area on either sides of the Mosquito Brook cannot be used in the calculation of CBA. If you have any questions, please feel free to contact me. Thank you. Since ely, mcoln Daley Town Planner cc: North Andover Planning Board Joyce Bradshaw, Town Clerk Curt Bellavance, Community Development Dirtor Alison -McKay, Conservation Administrator Geiald Brown, Inspector of Buildings 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 978.688.9535 Fax 978.688.9541 Web www.townofnorthandover.com