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Home My WebLink About242-1881, 189 Willow Street OOC DENIAL - Denial - 189 WILLOW STREET 12/21/2023 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection - Wetlands 242 1881 WPA Form 5 — Order of Conditions MassDEP File# L Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 -eD-E P-Tra ns-ac"-tio""n#- North Andover City/Town A. General Information Please note:Plea this form has 1, Fron.. North Andover ...... been modified Conservation Commission with added 2. This issuance is for space to a.El Order of Conditions b.F1 Amended Order of Conditions accommodate (check one): the Registry of Deeds 3. To: Applicant: Requirements Vincent Grasso a. First Name b.Last Name Important: When filling ——--------------------------------------- out forms on c.Organization the 30 Faulkner Road computer, ............I................ use only the d.Mailing Address tab key to North Andover MA 01845 move your e.City/Town f.State g.Zip Code cursor-do not use the 4. Property Owner(if different from applicant): return key. VQ a. First Name b.Last Name ...................... c.Organization rsnm ...........................———-------............... Mailing Address eAcity/Town, I.State g.Zip Code 5. Project Location: 189 Willow Street North Andover a.Street Address------- b.City/Town _Map.25 Lot 167 .............. c.Assessors Map/Plat Number d. ParcellLot Number Latitude and Longitude, if known: 42d66m184Ns 71 d I I m249s Latitude e. Longitude vipaform5.doc-rev 5/18/2020 Page 1 of 13 � � 4 Massachusetts Department mf Environmental Protection Provided by M0000sp: Bureau of Resource Protection - Wetlands 242-1881 �� Order � Conditions .,....~~ . .�. Ll �n" w� Form � �� "�� n w~��N��ons � � Massachusetts Wetlands Protection Act M.G.L. c. 131, 840 North Andover A. General Information (cont.) O. Property recorded at the Registry of Deeds for(attach additional information if more than | one parcel): � Northern Essex a.County b.Certificate Number(if registered land) 17600 154 c.Book d. Page 7. Deham: Novemher8 2023 Decgnnber13 2023 Deoember21 2023 a.Date Notice of Intent Filed b. Date Public Hearing Closed "c._bate'6f"i s s u aif c 8� Final Approved Plans and Other Documents (attach additional plan or document references / as needed): / N_ Plans ' . � a.Plan Title Prepared By c.Signed and Stamped by d.Final Revision Date e.Scale �*uumuno �mnm Document Title n. oate B. Findings 1. Findings pursuant hothe Massachusetts Wetlands Protection Act: � Following the review nfthe above-referenced Notice o{Intent and based on the information � provided in this app|k:eUnn 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(the Ant). Check all that apply: o. �� Public h �� Land � �� Prevention of � �~ ^ � � Pollution d, �� Private e �� Fisheries [ �� Protection of �~ � .~ VVi|d|iha Habitat � U. M Groundwater Supply h. E Storm Damage Prevention i (A Flood Control 2. This Commission hereby finds the project, aspnopoeod. io: (oheckoneofthafu|lowingboxee) Approved subject to: | w. n 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. "*^formo.00c^rev 5118/2020 Page u"/m � � 4 Massachusetts Department of Environmental Protection Provided byMassDEP: 34�-188l ��WFeGU0f Resource P[OteC�OD - \�/8t|GDdS �� .�~ ..~�~^. File_ ��m w� Form � �- "�n �� ,o `��U�U�� Massachusetts Wetlands Protection Act K8.G.L. c. 131' 840 North Andover B. Findings (CODt.) Denied because: b. El the proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not goforward on|eeo and until a new Notice of Intent is submitted which provides measures which are adequate to protect the interests of the Act, 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. � � v. E 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 unless and until revised Notice�-" | 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 |mlacking and why itis necessary im attached to this Order as per 310 CKOR 10'05(6)<o). 3. El Buffer Zone Impacts: Shortest distance between limit nfproject � disturbance and the wetland resource area specified in 310 CMR 10.02(l)(a) a.linear feet Inland Resource Area Impacts: Check all that apply below. (For Approvals Only) Resource Area Proposed Permitted Proposed Permitted � Alteration Alteration Replacement Rap|moenuont | 4. F] Bank �_��-- b.linear feet�� \c.n6�rfe-e--t-- Ime"a Ffeet"-- 5, Bordering Vegetated Wetland a.mquam�et b.square feet o.square feet d.square feet 8, Land Under Wotgrbodiemand a.square feet b.square feet c.square feet d.square feet � Waterways 7. Fl Bordering Land � Subject hoFlooding o.square feet b.square feet o.square feet d.square feet . Cubic Feet Flood Storage e.cubic feet_ f.cubic feet _ g.cubic feet h.cubic fe4_ 8. 171 Isolated Land Subject toFlooding u.square feet feet Cubic Feet Flood Storage c.cubic feet �� u.Cubic feet� e.cubic feet— f.cubic feet - 9� FI RiverfrontAnao a.total sq.feet b.total sq.feet Sqft within 10O0 c.square feet d.square feet e.square feet f.square feet Sqft between 10U' 200k Q.uquae/eet h.square feet i.square feet �� ],square feet 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection - Wetlands 242-1881 WPA Form 5 — Order of Conditions MassDEP File#f Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 emP-Transaction# Forth Andover cityrrown B. Findings (cant.) Coastal Resource Area Impacts. Check all that apply below. (For Approvals Only) Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 10. ❑ Designated Port Indicate size under Land Under the Ocean, below Areas 11. ❑ Land Under the Ocean a.square feet b square feet --._- __ _ ._ — c.c/y dredged d.c/y dredged 12. ❑ Barrier Beaches Indicate size under Coastal Beaches and/or Coastal Dunes below 13. ❑ Coastal Beaches cu yd - cu yd a.square feet b.square feet c.nourishment d.nourishment 14. ❑ Coastal Dunes cu yd cu yd a.square feet b.square feet c,nourishment d.nourishment 15. ❑ Coastal Banks a.linear feet_.-..-. b.linear feet 16. ❑ Rocky Intertidal Shores a.square feet b.square feet 17. ❑ Salt Marshes .........._._..._ _ a.square feet b.square feet c.square feet d.square feet 18. ❑ Land Under Salt Ponds a.square feet b square feet c.c/y dredged d.c/y dredged 19. ❑ Land Containing Shellfish a.square feet b:-Squaree feet c.square feet d.square feet 20. ❑ Fish Runs Indicate size under Coastal Banks, Inland Bank, Land Under the Ocean, and/or inland Land Under Waterbodies and Waterways, above a.c/y dredged b.c/y dredged 21. [J Land Subject to Coastal Storm a.square feet b.square feet Flowage 22. ❑ Riverfront Area a.total sq.feet b.total sq.feet Sq ft within 100 ft c.square feet d square feet e.square feet f.square feet Sq ft between 100- 200 ft g.square feet h.square feet i.square feet j.square feet wpaform5.doc•rev 5/18/2020 Page 4 of 13 4 Massachusetts Department of Environmental Protection provided by MassDEP: f Bureau of Resource Protection - Wetlands 24as 1 WFA Form — Order of Conditions MasstsDE 7EPFiie# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 'eDEP Transaction# North Andover Cityfrown B. Findings (cons.) •ff23.If the 23. ❑ Restoration/Enhancement*: project is for the purpose of restoring or enhancing a a square feet of BWV b.square feet of salt marsh wetland resource area 24. ❑ Stream Crossing(s): in addition to the square _....... __._._ _..._...... ___._ _ ..........._— footage that a.number of new stream crossings b.number of replacement stream crossings has been C. General Conditions Under Massachusetts Wetlands Protection Act entered in Section B.5.c (BWV)or The following conditions are only applicable to Approved projects. 8.17.c(Salt Marsh)above, 1. Failure to comply with all conditions stated herein, and with all related statutes and other please enter regulatory measures, shall be deemed cause to revoke or modify this Order. the additional g Y Y amount here. 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. c. If the work is for a Test Project, this Order of Conditions shall be valid for no more than one year. 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. An Order of Conditions for a.Test Project may be extended for one additional year only upon written application by the applicant, subject to the provisions of 310 CMR 10.05(11)(f). 6. If this Order constitutes an Amended Order of Conditions, this Amended Order of Conditions does not extend the issuance date of the original Final Order of Conditions and the Order will expire on unless extended in writing by the Department. 7. 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. wpaform5.doc•rev 5/1 8120 2 0 Page 5 of 13 4 � Massachusetts Departmentof Environmental Protection Provided hyMumxDEp: 242-l8Ql Bureau of Resource Protection - Wetlands �� ^� � Conditions ~..~~~^^ . .~~ m�u �� Form ~� -- Order ��n ��UuU��K�� Massachusetts Wetlands Protection Act K8.G.L. c. 131. §4O North Andover C. General Conditions Under Massachusetts Wetlands Protection Act 8. 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. Q. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Lend Court for the district in which the land is |ocated, 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 i which the proposed work is done. The recording information shall be submitted to the ! Conservation Commission on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior hz the commencement nfwork. 10. 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, "MassDEP"I � "File Number " 11. 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 yWasnDEP. 12. Upon completion of the work described herein, the applicant shall submit a Request for | Certificate of Compliance (VVPA Form 8A) bm the Conservation Commission. 13. The work shall conform to the plans and special conditions referenced in this order. � 14. Any change to the plans identified in Condition #13 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough tu require the filing nfa new Notice ufIntent. 15. 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 t0this | 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. 18. 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 bv this Order. / 4 Massachusetts Department of Environmental Protection Provided uYMuooEp � Bureau Of Resource Protection - Wetlands 242-1881 K�� ^� � Conditions '~~~`~~ ' '~- � ��, �� Form � �� ~�n �� " `��Uu�� Massachusetts Wetlands Protection Act &1.G.L. c. 131. G40 North Andover C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) 17. Prior tothe start nf work, and if the project invo|vmavvorkadiaoentk> aBonjeringVegetadad 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. � 18. 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 o wetland or water body. During onnnbu:Uon, the applicant or hie/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 ehoU also imnmad|eba|y 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. 19, The work associated with this Order(the "Project") (1) F1 |a subject ho the Massachusetts 5tormwaherStandards � (2) ��l /o NOT subject to the Massachusetts GbormvvaterStandards � � If the work is subject hm the Stonnvvabmr Standards,then the project iesub|wmtbothm following conditions: a) All work, including site pnepargdon, land disturbance, construction and redevelopment, � shall be implemented in accordance with the construction period pollution prevention and � erosion and sedimentation control plan ond if the. . � Prevention Plan required by the National Pollution Discharge Elimination System Construction General Permit es required hyOhzrmvwabar Condition 8. Construction period � | erosion, sedimentation and pollution control measures and best management practices � (8MPa) eheU oannuin in place until the site ia fully stabilized. N No stormwater runoff may be discharged to the post-construction stormwater BMPs � unless and until o Registered Professional Engineer provides a Certification that: i. all construction period BMPs have been removed or will be removed by a date certain � � specified in the Certification. For any construction period ByWPm intended tuhoconverted � to post construction operation for stormwater attenuation, recharge, andfor treatment, the � conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that the BK4P has been properly cleaned or prepared for post construction opanation, including removal of all construction period sediment trapped ininlet and outlet control structures; ii. as-built final construction BN1Pplans are included, signed and stamped byaRegistered Professional EnQineer, certifying the site io fully stabilized; iii. any illicit discharges to the stormwater management system have been removed, as per the requirements ofGtornnwaterStandard 10; wpaformo.*n'rev wm202o Page rmm � 4 � / � Massachusetts Department mf Environmental Protection Provided uymamuEp � 342 l881 � �\U[eGU of Resource [»[Ot8C[iOD - yyet}GOd8 - � �� K� �� ^� � Conditions �vv°vE,rnn# � Ll ��u �� Form "� —~ ��nx�� , ��»��mK�� Massachusetts Wetlands Protection Act M.G.L. C. 131. §40 North Andover C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) /x all post-construction «tormvvaterBN1Poare iDnte||od in accordance with the plans (including a|| planting plans) approved by issuing authority, and have been inspected �o � . ' � ensure that they are not damaged and that they are in proper working condition; x any vegetation associated with post-construction Bk8Paim suitably established to � withstand erosion. o\ The landowner is responsible for BMP maintenance until the issuing authority is notified � that another party has legally assumed responsibility for BMP maintenance, Prior to requesting a Certificate of Compliance, or Partial Certificate of Compliance, the responsible party(defined in General Condition 18(e)) shall execute and submit to the issuing authority � on Operation and Maintenance Compliance Statement("[)&k8 Statement) for` ' � Stormwater BMPs identifying the party responsible for implementing the stormwater BMP � Operation and Maintenance Plan ("[)&KA P|an'') and certifying the following: � i) the {)&KA Plan is complete and will be implemented upon receipt ofthe Certificate of � Compliance, and U] the future responsible parties ahmU be notified in writing nf their ongoing legal responsibility to operate and maintain the stormwater management BMPs and implement the StormwaharPollution Prevention Plan. | � d) Post-construction pollution prevention and source control aheU be implemented in � accordance with the long-term pollution prevention plan section of the approved Shormvvoba/ Report and, if applicable, the Shormvvoter Pollution Prevention Plan required by the National Pn||uUnn Discharge Elimination System K8u|U'SeutorGenera| Permit. n\ Unless and until another party accepts responsibility, the /andovvner, or owner ofany drainage easement, assumes responsibility B&1P. TnVV�[��0� thiS � ' | presumption, the landowner of the property Must submit to the issuing authority a legally ' binding agreement of record, acceptable to the issuing authority' evidencing that another entity has accepted responsibility for maintaining the BMP, and that the proposed � responsible party shall be treated as a permittee for purposes of implementing the requirements ofConditions 18(A(hrouyh 18(k)w|th respect tothat BK8P. Any failure nfthe � proposed naa9oonib|e party k)implement the requirements of Conditions 18/M through � | 18(k)with respect to that BMP shall be a violation of the Order of Conditions or Certificate / of Compliance. |n the case ofmtormvvahyrBK8Pa that are serving more than one lot, the legally binding agreement shall also identify the lots that will be serviced by the ohormwxah*r BMPa. A plan and easement deed that grants the responsible party access to perform the � required operation and maintenance must be submitted along with the legally binding i � agreement, f) The, � with the design p|oms, Uln {)&MPlan. anddherequh*mantsofUle Massachusetts � ShormvwaharHondbonk. 4 Massachusetts Department mfEnv7nunmmentm| proteudon Provided uyMaeoEp BUpBBU Of Re8OUFCe P[OteC[iOO - Wetlands 242-1881 | �� .�~ ..~~~~^' . .~_ mmn o� Form � — ,�n �� " `��u�� Massachusetts Wetlands Protection Act K8.G.L. c. 131' Q40 eDEP Transaction North Andover C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) Q> The responsible party shall: 1. Maintain an operation and maintenance log for the last three (3)consecutive calendar years of inspections, repairs, maintenance and/or replacement of the stormwater management system or any part thereof, and disposal (for disposal the log shall indicate the type of material and the disposal |omation\; 2. Make the maintenance log available toMoaoDEP and the Conservation Commission ("Commiem|on^) upon request; and 3, Allow members and agents of the K8ammDEP and the Commission hn enter and � inspect the site to evaluate and ensure that the responsible party is in compliance � with the requirements for each BMP established in the O&M Plan approved by the � issuing authority, � h) All sediment or other contaminants removed from stormwater BMPs shall be disposed of in accordance with all applicable federal, state, and |ono| }ovVm and regulations. � � ]) Illicit discharges to the stormwater management system as defined in 310 CMR 10.04 are prohibited. j) The stormwater management system approved in the Order of Conditions shall not be changed without the prior written approval of the issuing authority. k) Areas designated on qualifying pervious areas for the purpose of the Low Impact Site Design Credit(as defined in the MassDEP Stormwater Handbook, Volume 3, Chapter 1, Low Impact Development Site Design Credits) mhnU not be altered without the prior written approval nf the issuing authority. |\ Access for maintenance, repair, and/or replacement of BMPs shall not be withheld. Any fencing constructed around mtornlwmtar BK8Pa shall include access gates and shall be at least six inches above grade k>allow for wildlife passage. � Special Conditions (if you need more space for additional conditions, please attach a text | document): � � | 20. For Test subject to 310 CMR 10.05(11). the applicant shall also implement the monitoring plan and the restoration plan submitted with the Notice of Intent. If the conservation commission or Department determines that the Teat Project threatens the � public health, safety or the environment, the applicant ohoU implement the removal plan submitted with the Notice of Intent or modify the project omdireobadbytUeoonaennsinn commission or the Department. � 4 Massachusetts Department of Environmental Protection Provided byMam^oep: BUneGU of Resource PFO[BCtiOO - \8/etlGDdS 842-1881 oxaaoospn|e� �� ^� ��~�~ Ll �mu v� Form � �� n �� " ~��UuU��ns Massachusetts Wetlands Protection Act K8.G.L. c. 131, §40 North Andover D. Findings Under Municipal Wetlands Bylaw or Ordinance 1. |sa municipal wetlands bylaw or ordinance applicable? E Yes Fl No z The NodhAnduver hereby finds (check one that app|ios): d6ns—ervation Commission a. 0 that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw, specifically: North Andover Wetlands ProtectionB | dR | U [|h. 1Q0 , monm/po/ummanomoruy/a� e(n� � ��.____ Therefore, work on this project nnoynu4gofonwarUun|gaaandunU| oreviaedNotioeof Intent is submitted which provides measures which are adequate to meet these standards, and a final Order of Conditions lsissued. b, E] that the following additional conditions are necessary to comply with a municipal ordinance orbylaw: lAMunioipa|OrdinmnueurBy|mm 2.Citation �� 3. 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. The special conditions relating to municipal ordinance or bylaw are as follows (if you need more space for additional conditions, attach o text docunmenU: North A d Conservation Commission Findings & Denial Decision (see attached) ! | ! � ~nmvrmzmoc'rev,xommn Page mof 13 4 / Massachusetts Department of Environmental Protection Provided uvwmmnoeP: � 1881 � ��U[88UOf ��S80U[CeP[Ot8C�On - yVetlGDds 242- � ��y�� K� �� x� � Conditions ~'~``~E' File wmn �� Form ~x ~� ��u�� n ��~�� | Massachusetts Wetlands Protection Act K4.{3.L. C. 131. G4O North Andover E, Signatures This Order is valid for three years, unless otherwise specified uouspecial condition pursuant 0o General Conditions#4, from the date ofissuance. 1 Date of|;v"unom Please indicate the number cf members who will sign this form. This Order must bo signed bya majority of the CunmenmUonCommission. 2.�umbmr��8Nnaxa 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 owner, if different from applicant. d6ted Name ire 15 Signature Printed Name Printed Name ignaiie......... Printed Name ignature Printed Name El by hand delivery on by certified mail, return receipt Date � � 4 � Massachusetts Department uf Environmental Protection Provided t*M»« oep: � %�2 l8Al Bureau of Resource Protection - \8/etl@Dds - V��J� 0� �� Order � Conditions '`'~``~~ File mmm m� Form � �� n ~��U�U�� Massachusetts Wetlands Protection Act M.G.L. C. 131, &40 North Andover F. Appeals The applicant, the owner, any person aggrieved by this Order, any owner ofland abutting the land subject to this Order' or any ten residents of the city or town in which muoh land is |ocated, are hereby notified of their right to request the appropriate K3ssnOEP Regional {}fOoa to issue e 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 for Departmental Action Fee Transmittal Forno, as provided in 310CK8R 10.03(7)vvith|n ben business days from the date of issuance of this Order. A copy uf the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if helshe is | | not the appellant. | Any appellants seeking to appeal the 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 haa/ing, requesting a Superseding Onier, or providing written information to the Department prior to issuance of Superseding Order. � � The request shall state clearly and concisely the obieo(ioosto the(}n1erwhich iabeing � appealed and how the Order does not contribute to'the protection nf the interests identified in � the Massachusetts Wetlands Protection Act(K4.G.L. c. 131. §40). and ia inconsistent with the wetlands regulations (31OCKAR1O.0O). To the extent that the Order ie based onamunicipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. � � � "pam"n5^" 'rev 5wmzma Page`zmm 4 LlMassachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection - Wetlands 242 ml8 1 ____ WPA Form ® Order of Conditions MassDEPFile# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 'eDEP Transaction tf North Andover city/Town G. Recording Information Prior to commencement of work, 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 this page shall be submitted to the Conservation Commission listed below. Conservation Commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. -------------------------------------------------------------------------------------------------------------- To: Conservation Commission Please be advised that the Order of Conditions for the Project at: Project Location MassDEP File Number Has been recorded at the Registry of Deeds of: .--- .. __. .......... ......__ County Book Page for: -— --.Property Owner and has been noted in the chain of title of the affected property in: _....... ........... Book Page In accordance with the Order of Conditions issued on: Date ......... ..._............. ._.If recorded land, the instrument number identifying this transaction is: __...... ------ _._-- _. Instrument Number^ ^^ If registered land, the document number identifying this transaction is: ....... ..... ............ document Number Signature of Applicant wpaform5.doc•rev 5118/2020 Page 13 of 13 DEP FILE # 242-1881 DENIAL DECISION 189 Willow Street FINDINGS OF FACT I. Procedural History: Hayes Engineering, on behalf of the applicant Vincent Grasso (the Applicant) filed a. Notice of Intent (NOI) with the North Andover Conservation Commission. (NACC) on November 8, 2023 via mail (not by hand delivery) requesting an Order of Conditions approving the construction of a 6,667-sf. business office building, associated parking, utilities, and stormwater management appurtenances. The project is located wholly within the 100-foot buffer zone to an on-site Bordering Vegetated Wetland (BVW) and Isolated Vegetated Wetland (IVW),with portions located within the 25-Foot No Disturbance Zone (25' NDZ) and 50-Foot No Build Zone (50' NBZ). Additionally, the project proposed to fill Bordering Land Subject to Flooding (Bl_,.SF), as well as approximately 3,664 square feet of the IVW. In order to mitigate for the loss of the IVW, the applicant proposed to create new BVW within the 25' NDZ directly connecting to the existing BVW. The BVW and BLSF are protected wetland resources under the Massachusetts Wetland Protection Act (MGL c.131. s.40) (the "Act") and accompanying Regulations (31.0 CMR 1.0.00). The BVW, BLSF,IVW and associated 100-Foot Buffer Zones are protected wetland resources under the North.Andover Wetland Protection Bylaw (c.190 of the Code of North Andover) (the ""Bylaw") and accompanying Regulations. This NOI included a copy of the abutter notification form that stated the hearing would be held on December -1.3, 2023 at 7.00 P.M. in the Board of Selectmen Meeting Room, Town Hall, 120 Main Street, North Andover, MA. In addition, the filing included a November 7, 2023 Affidavit of Service, signed by Amanda Ogren-Moda from Hayes Engineering that she gave (or intended to give) notification to abutters on November 21, 2022 (SIC:). Further, pursuant to November 30, 2023 email correspondence with the Eagle Tribune newspaper, its advertising department provided a proof of the required legal advertisement and noted that"The paying parties are on account with us and have received a full confirmation". Hayes Engineering has an account on file with the Eagle Tribune. The legal notification for this NOI was published in the Eagle Tribune on December 6, 2023, indicating that the newspaper received payment otherwise it would have not run. As of November 8, 2023, the filing deadline for the November 15, 2023 regular meeting had passed. 'The December 13, 2023 meeting was the next regularly scheduled meeting of the Commission for which proper notification could be made for: said meeting date. Because the NOI application contained an abutter notification form stating that the hearing would be opened at the December 1.3, 2023 meeting date, which is beyond the required 21-day time period for opening a hearing, the Conservation Page 118 DEP FILE # 242-1881 DENTAL DECISION 189 Willow Street Administrator contacted the project engineer by email on November 1.7th and 29th requesting that Hayes Engineering sign the 21-day extension for opening the public hearing. Hayes Engineering didn't respond to either request. On November 30th, the Conservation Administrator provided, by email, several technical comments on the application and plan set to Hayes Engineering, and noting that the wetland replication documentation requirements were missing. There was no response from Hayes Engineering. The Commission's position on the 21-day requirement is set forth in the attached December 8, 2023 Memo from Town Counsel. Under the auspices of the Bylaw and Act, on December 13, 2023 the NACC opened the public hearing and after reading the legal notice, asked if anyone representing the project was present. Receiving no answer and upon the reading of December 13, 2023 email correspondence from Eric B. Lane of Hayes Engineering stating that the project team would not be attending, the NACC proceeded on with the hearing. Members of the NACC voiced their concerns and questions regarding the project and adequacy of the Notice of Intent application. The NACC then took public comments and questions from a direct abutter and a member of the public that lives in the vicinity of the project site. Questions that were raised were related to the interests of the Act and Bylaw with regard to flooding, stormwater management, wetland impacts, floodplain filling and wetland function and value. The direct abutter had concerns about what impact the project would have on their property. Upon the conclusion of comments/questions/concerns from the public and the NACC, for which no response from the applicant was received, and in the absence of a request for or consent to a continuance from the applicant, the NACC unanimously voted (6 in favor, 0 opposed) to close the hearing and issue a decision in 21-days. The NACC then scheduled a subsequent meeting for December 20, 2023 to deliberate and render a decision on this application. 11. Review of North Andover Wetland Bylaw &Regulations (Bylaw) (Chapter 190 - Code of North Andover) &Massachusetts Wetlands Protection Act (Act) & Regulations (MGL Chapter 131 Section 40, 310 CMR 10.00) The Bylaw and accompanying Regulations are intended to utilize the "Home Rule" authority of this municipality to protect additional wetland resource areas, additional values/interests, with additional standards and procedures stricter than those of the Act and Regulations (31.0 CMR 10.00). The additional areas subject to protection under the Bylaw include, among others, the 100-foot buffer zone and isolated vegetated wetland that are not protected the under the Act. As described in the Act and the Bylaw, wetlands contribute to the protection of a Page 218 DEP FILE # 242-1881 DENIAL DECISION 189 Willow Street number of public interests, which include: public and private water supply, ground water supply, flood control, storm damage prevention, prevention of pollution, protection of land containing shellfish, protection of fisheries, protection of wildlife habitat, The Bylaw protects the following additional interests: prevention and control of erosion and sedimentation, the protection of wildlife, and protection of recreation. The applicant requested a waiver from the 25' NDZ, the 50' NBZ and requested approval for filling 3,664 square feet of lVW to accomplish the proposed project. As mitigation for lVW filling, the applicant proposed to create approximately 4,438 square feet of BVW. The proposed construction of the replicated (created) BVW, as well as the proposed surface stormwater basin and portion of the pal-king lot, are situated within the 25` NDZ to the natural BVW. The remainder of the proposed parking, lot and the building are either within the lVW itself and its associated 25' NDZ and 50' NBZ, or within the 50' NBZ to the natural BVW. Chapter 190 Section 2. A. of the Bylaw sets forth the protected wetland resources of the Town, and the project site contains the following wetland resources: (1) any isolated vegetateduietland, (3) any vegetated wetland bordering on.any creek, river, stream, pond or lake, (6) any one-hundred foot buffer zone of wetland areas (1) through (5) listed above in this section, (7) and land snbJect to storm flowage, or flooding by groundwater or surface water. The following wetland performance standards and informational requirements from the NACC Bylaw Regulations apply to the proposed project: 1. Section 1.3 Ji.trisdiction - listing the Towil"s wetland resource areas, v)hich include IM BVW, 100-foot Buffer Zone, and land subject to storm flowage, or flooding... 2. Section 3.2 Isolated Vegetated Wetland Performance Standards: When the prestoliption set forth. in Section 1.0 of these Regi,dations is not overcome, tiny proposedwoi* in the Isolated Vegetated Wetland shall not destroy or otherwise inipair any portion of said area. Et sec... 3. Section 3,4 Buffer Zone Mere a proposed activity involves the removing,filling, dredging or altering of Buffer Zone, the Commission shall presume that protection of the Buffer Zone of a resource,area identified ill Section 13 is significant to the interests specified in Section 178.1 of the Bylaw, This prestunption is rebuttable and tnay be overcome upon a clear showing that the Buffer Zone (toes not play a role in the protection of said interests. In the event that the Connnission deems that the prestiniption has been overcome, the Commission. shall inal(e a written determination. to this effect, setting forth its grotuids. Page 318 DEP FILE #242-1881 DENIAL DECISION 189 Willow Street The 100-foot Buffer Zones of Isolated Vegetated Wetlands, Bordering Vegetated Wetlands, Bank, and Hand Under Water all contain, at a mininuon, a 25-foot No Disturbance Zone and a 50-foot No-Bttild Zone...et sec... 4. Sectioii5 Waiver Provisions and Altei-iiatiz�esA)ialysisReqllil't'llielits 5.1 No-Disturbance Zones The Conunission. may grant a waiver from these regulations far alteration of a buffer zone resource area in situations where there are no feasible alternatives that provide fewer impacts to the resource area values. The applicant is responsible for conducting this alternatives analysis to show that there are no feasible alternatives. 7'he Commission may grant a waiver of the 25-Foot No- Disturbance Zone andlor 50-foot Ephemeral Pool No-Disturbance Zone peiforniance standards and itnpose such additional or substituted mitigative requirements as it deems necessary, upon a clear and convincing showing by the applicant that: * There are no practicable conditions or alternatives that would allow the project to proceed in compliance with, the regulations; and + The project, or its natural and consequential effects, will not have ally adverse effects upon any of the interests protected by the Bylaw. It shall be the responsibility of the applicant to provide the Conunission with any information that the Commission may request to enable the Commission to ascertain such adverse effects. The failure of the applicant toftirn.ish any information that has been so requested shall result in the denial of a request for a waiver pursuant to this subsection; and + The project will itnprove the natural capacity of a resource area to protect the interests identified in the Bylaw, provided any adverse effects on any such interests are inininfized by carefully considered conditions. Houiever, no such project may be permitted which would have all adverse impact on rare Wildlife species. In the case where, a Waiver is granted in the No-Disturbance Zone the Cominission shall require mitigation tiieasures to be in pleinented to offset presumed impacts to the wetland resource areas (see Section 6.0). 5.2 No-Build Zones The Conunission may grant a waiver fromthese regulations for an alteration of a buffer zone resource area in situations Where there are no feasible alternatives that provide for less impact to the resource area values. The applicant is responsible for conducting an alternatives analysis to S110711 that there are no feasible alternatives. The Connnission may grant a Waiver of the 50-foot No-Build Zone and 75-foot Ephemeral Pool No-Build Zone performance standards and impose such additional or substitu.ted mitigative Page 418 DEP FILE #242-1881 DENIAL DECISION 189 Willow Street requirements as it deems necessary, upon a clear and convincing shou)ing by the applicant that: + There are no practicable conditions or alternatives drat would allow the project to proceed in compliance u4th the regulations; and 4 The project., or its natural and consequential effects, will not have any adverse effects upon any of the interests protected by the Bylaw. It shall be the responsibility of the applicant to provide the Conlinission with any information that the Corninission mayl request to enable the Commission to ascertain such adverse effects. The failure of the applicant to furnish any iriforniation that has been so requested shall result in the denial of a request for a zoiliver pursuant to this subsection; and + The project will improve the natural capacity of a resource area to protect the interests identified ill the Bylino, provided any adverse effects on any such interests are minintized by carefully considered conditions. flowever, no such project may be permitted which would have all adverse impact oil rare wildlife species. In the case where a waiver is granted in the No-Build Zone, the Coninfission shall require mitigation measures to be iniplemented to offset potential hlipacts to the wetland resource areas (see Section 6.0), 5. Section 5.3 Vegetated Wetland Alteration The Coninfission may grant a waiver from these regulations for alteration of it Vegetated Wetland in situations u?here there are no feasible alternatives that provide less impacts to the wetland resource values. The applicant is responsible for condticting all alternatives analysis to show that there are no feasible alternatives. The Connifission may, pending the results of the alternatives analysis, allow) the loss, alteration, or temporary suijace disturbance of tip to a cuniulative total no greater than five thousand (5,000) square feet of Bordering Vegetated Welland and Isolated Vegetated Wetland combined when said areas tire replaced or restored in accordance with the State regulations 31.0 CMR 10.55(4)(17) and Section 6.0 of these Regulations. 6. Section 6.0 Replication Standards and Habitat Evaluations 63 Wetland Replication A study conducted by the University of Massachusetts found that the majority of -u)etland replication projects undertaken in the Coninionuvalth do not meet the mininnim peifornitince standards in. the regulations, In many projects, proposed mitigation..failed to meet peiforinance standards because of inadequate hydrology, poor vegetation replanting plans, or replication areas built smaller than. required in Page 518 DEP FILE #242-1881 DENIAL DECISION 189 Willow Street the plans. Based oii this compelling evidence, the C'miniissionwill not place substantial reliance oii replicatioti to achieve the goals of the Wetlands Protection.Act and Bylaw. These goals can best be achieved by avoiding and iiihibuizing iiiipacts to wetlands, thereby reducing the need for replicatiort projects of uncertain success. The hitportailce of avoiding and tiiiiihifizirig zvetlaiid impacts is expressly recogrtized hi the state regulatioiis and this Bylaw. The Act and Bylaw niaildate that the Coiiiiiiission consider the availability or reasonable alternatives to the proposed activity, the extents to which adverse impacts are ridnh)fized, arid the extent to which rifitigatioti measures, including replication or restoration, are provided and coidribitte to the protection of the interests identified hi the Act aiid this Bylav). The above notwithstanding, projects that impact vegetated wetland resource areas will retliti.re replication under this Bylazv. The general coilditioiis governing replication area design under this Bylav)shall hiclude but riot be Iiiiiited to the followhig...et sec... what follows from here is an extensive list of checklists, plans, details, calculations, narrative and other necessary information required in order for the NACC to completely review and evaluate a wetland replication proposal. 7. Section 7 Stom17vater Maiiageiitetff awl Flood Control Projects subject to the Bylaw shall frilly comply with the applicability, criteria, specifications, submittal requiretiimts arid performance standards of the most recent version of the Massachusetts Slorinwater Standards, 310 CMR 10,05(6)(1c) as Well as those described hereiii.....The State staildards have beery aimiuled awl expanded upon. by the Cot)n)tissio)i in order to adeqttately protect the interests of the Act arid Bylaw. Projects sttbj(-,,ct to the Bylaw shall also cotitply with the requiret)'ients aild criteria outlined in Sections 7.0 throtigh 10.0 of the North Andover Stortinvater Maiiageii'ieilt and Erosioii. Control Regulations proi)ndgattul tender Chapter 160 of the Tozoii Bylaws (Storiinvater Maiiage)iieiit and Erosion Control Bylaw). All references hi those regulations to the Plaiiiiing Board shall instead apply to the Comervation Coriuttissioii. Et sec... Including but not limited to the following wetland Performance standards and informational requirements from the Act and the Regulations 31.0 CMR 10.00 apply to the proposed project: 8. 310 CMR 10.01 -jurisdiction and Purpose 9. 310 CMR 10.02 Statement of jurisdiction 10. 310 CMR 10.02 General Provisions 11. 310 CMR 10.55 Bordering Vegetated Wetlands 12. 310 CMR 10.57 Land Subject to Flooding (Bordering and Isolated Areas) III. Discussion and Decision Page 618 DEP FILE #242-1881 DENIAL DECISION 189 Willow Street After due discussion and consideration at is December 20, 2023 meeting, and based on the following findings, the NACC determined, and so voted unanimously, that the information submitted by the applicant is not sufficient to describe the site, the work or the effect of the work on the interests protected by the Act and the Bylaw. Therefor 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 and Bylaw's interests and a final Order of Conditions is issued approving the work, 1. The NACC finds that the NOT application is insufficient and lacking the following required information: a. Bylaw Waiver Request Alternatives Analysis does not provide any discussion on alternatives to site design, but simply states that "there are no practical or feasible alternative to siting the work within the NBZ and NDZ". 'I I he alternatives analysis presented by the applicant included only one alternative to constructing the proposed project, that which was presented in the NOT filing, The Commission did not find the alternatives analysis to be clear and convincing, but was, in fact, void of value engineering or modification of the project to attempt to comply with the Regulations. The Commission finds that the overarching tenets of the Wetland Protection Act, Bylaw and Regulations is to first avoid jurisdiction, if jurisdiction cannot be avoided the project is then value engineered/modified to reduce impacts to the greatest extent practicable that would accomplish the project with the least amount of impact. Finally, once impact is reduced/project is modified to the greatest extent practicable, mitigation is then designed to improve the natural capacity of the wetland resource areas. The NACC hardly considers the analysis to be a thoughtful or thorough and therefore finds that the applicant did not carry the burden of proof of demonstrating that the granting of a waiver is consistent with the intent and purpose of the Bylaw and Regulations; b. The Bylaw Waiver Request states that"the IVW is of little value and does not meet the presumption of significance under Section 3.2 of the Regulations". This statement is not supported by any substantive evidence in the filing. Further, page 25 of the NOT narrative states "The IVW resource area on this site has been previously disturbed, has minimal top-soil and has little value for the prevention and control of erosion and sedimentation. The area is overgrown with invasive and opportunistic species and provides little wildlife habitat value. The site is private property and not available for recreational use." This statement does not address the remaining interests of the Act and Bylaw - those being public and Page 718 DEP FILE 4 242-1881 DENIAL DECISION 189 Willow Street private water supply., ground water supply,flood control, storm damage prevention, prevention of pollution, protection of land containing shellfish, protection of fisheries and wildlife. The NACC is of the opinion that the IVW does indeed provide protection for many interests, and therefore its near total destruction would be contrary to the overarching tenets of avoiding, minimizing and mitigating impacts to the wetland resources as laid out in the Bylaw or Act. c. The proposed disturbance within the 25' NDZ includes BVW creation, parking area and stormwater management BMP construction. The applicant does not explain the existing state of conditions of the 25' NDZ or the effects of the work on this resource area. d. Pursuant to the Bylaw Regulations Section 6 Wetland Replication Standards,310 CMR 10.55 (4) (a)&(b) as well as the DEPs Replication Guidelines dated March 2002, the application is completely devoid of all informational requirements with regard to the proposed BVW creation, which essentially constitutes replication of wetland resource area. The NACC finds the lack of this information to render the N01 incomplete, leaving the NACC utterly unable to evaluate the adequacy of the proposed BVW creation. e. Without the applicant's communication or participation in the public hearing process and in the absence of a request or consent to a continuance, the NACC was denied the opportunity to thoroughly evaluate the adequacy of the proposed stormwater management design, pursuant to Regulations Section 7 and 310 CMR 10.05(6)(k). A third-party peer review would have been required, or at least coordinated with the Planning Board in its review of the application under its Site Plan review and Special Permit process. After due discussion, the findings enumerated above, consideration and careful review of the information presented by the applicant, and in consideration of the NACC's and members of the public's outstanding questions and need for additional information, the NACC hereby DENIES the applicant's request to construction of a 6,667-sf. business office building, associated parking, utilities, and stormwater management appurtenances as shown on the plan set Special Permit Site Plan #189 Willow Street" 6 sheets, prepared by Hayes Engineering, signed and stamped by Eric B. Lane, scales as shown, revision dated November 7, 2023. Page 818 TOWN OF NORTH ANDOVER OFFICE OF TOWN COUNSEL �r`��"� Christine P.O'Connor cor.orinor@ nortiia id(.)verrrroa,g wsv December 8, 2023 Jill Provencal,Section Chief Massachusetts Department of Environmental Protection Northeast Regional Office 150 Presidential Way Woburn, MA 01801 RE: Request for Superseding Order of Conditions(DEP File No. 242-1881) 189 Willow Street, North Andover MA 01845 Dear Ms. Provencal, write in response to the December 4, 2023, appeal requesting that a superseding order of conditions (SOC) be issued by the Department of Environmental Protection ("DEP") for 189 Willow Street, DEP#242-1881. Hayes Engineering, on behalf of the applicant Vincent Grasso ("Grasso"), argues that the North Andover Conservation Commission ("Commission") "has failed to hold a timely hearing" on a Notice of Intent (NOI) and that pursuant to 310 CMR 10.05(5)(a) an SOC must be issued. BACKGROUND North Andover's Conservation Commission ("Commission") sets and publishes a regular and recurring meeting schedule, by which the Commission meets the second and fourth Wednesday of the month, except in November and December, when because of the two major holidays, the Commission meets once in each of those months. The Commission's yearly schedule is posted on the Commission's dedicated online page within the larger North Andover government website. Applicants have available to them a checklist of materials to be submitted and a voluntary"Notice of Extension"form for applicants who seek more time in presenting their project.' 1 The Notice of Extension form states: "I hereby grant the North Andover Conservation Commission an extension beyond the 21-day period for opening the public hearing on the Notice of Intent filed on(fill in the date)in order to conform to the schedule of the Conservation commission meetings,such that the Commission is allowed until (fill in the date)to hold a public hearing for the proposed work at(fill in the location)."The form is then signed and dated. | � � � Grasso first submitted an NO[ in Aoh| of2U33for 189 VVilkovv Street.The Project proposed construction of a 7,776-sf business office building with associated parking, utilities, and stormwater management appurtenances. This original submittal proposed filling 4,705-sf of the interior Isolated Vegetated Wetland (|VVV), as well as waivers from the 25-Foot No Disturb Zone and 58-FootNoBuild Zone to the surrounding Bordering Vegetated Wetland (8VVV). At the June 28m meeting of the Conservation Commission, the initial feedback indicated that this Project vv0U|d likely not be approved.The matter was continued by Grasso multiple times, until the 0ctoberZ5m hearing 8t which time Grasso requested to withdraw the NO| without prejudice, and the Commission approved his request. Gnssso's original application /DEP#242-1D58\ was stamped received April Z7, 2023, and a21' DayHearingVVaivergraDtedtnMay24, Z833rneeting. AttheMey24, 2O23nneebnga continuance request was received and granted to the June 14, 2023 meeting. This was in part due to the wetland consultant's schedule prohibiting the town from scheduling a site inspection of the wetland line. At the June 14, 2023 meeting a continuance request was received and � granted to the June 28, 2O23 meeting. Ai the June 38, 2O23 meeting a discussion was held and the hearing was continued to the July 26, 2023 meeting. At the July 26, 2023 meeting a continuance request was received and granted to the August 23, 2023 meeting, At the August | 23, 2023 meeting a continuance request was received and granted to the September 27, 2023 meeting. At the September 27, 2023 meeting a continuance request was received and granted i to the October 25, 2U23 meeting. At the October 25, 2O23 meeting a request to withdraw without prejudice was received and granted.2 Ou November O'2O23,just10 business days later, Grasso resubmitted a new N0| for oProject proposal for 189 Willow Street. The new submittal was substantially similar tothe original request, but for a slight reduction in the size of the commercial building by roughly a 1,000-sf; � and a reduction 0f1,OOO'sfinthe scope 0[area tobe filled.The location of the proposed | building had also been slightly modified so that it was now just outside of the 25' NDZ. � � in filing with the Commission, Grasso notified abutters that there would bea Public Hearing 0n his application on December 13, 2023 at 7:00 P.M. in the Board of Selectmen Meeting Room, Town Hall, lZO Main Street, North Andover, MA.The December 1]m meeting was the next scheduled meeting of the Commission.Although the November 15`1 meeting followed Grasso's | November m submission,there was not enough time for either Grasso, nor the Town tn ^|tis also worth noting that during this same period,Grasso made a series of filings and requests for continuances � � with the town's Planning Board for this sarne project:on March 23, 2023 an application was filed and the Public Hearing was held on April 25,2023.Grasso then requested the following continuances:June 6 he requested a 30- dayextension;|uly 5 fie requested a continuance until August;on August 23,Grasso requested a continuance until October Td;on October 3rd the Planning Board granted a continuance until November 7, on October 23,Grasso requested arequest to withdraw without prejudice,on November 7 the Planning Board voted to grant the withdrawal request without prejudice. 2 comply with the notice requirements of 310 CMR 10.05 (4). For example, legal notice must be published "not less than 5 business day prior to the hearing date." On November 17111 and 29th the Conservation Administrator requested that Hayes Engineering, Grasso's representative, sign the 21-day extension for the public hearing. Hayes Engineering didn't respond to either request. On November 30th, the Conservation Administrator provided several technical comments on the application and plan set, and notified Hayes Engineering that the wetland replication requirements were missing. There was no response. On December 4, 2023, Hayes Engineering served the North Andover Conservation Commission ("Commission") with a copy of their appeal letter that stated "as of the writing of this letter, 22 days from receipt, no hearing has been held by the North Andover Conservation Commission (NACC). Hayes Engineering further asserts that "the NACC has scheduled the matter for its December 13, 2023 hearing," (35 days from receipt). Hayes Engineering, on behalf of Grasso, argues that the Commission having failed to hold a timely hearing on a Notice of Intent (NOI) an SOC must be issued. DISCUSSION There is no question that the scheduled December 1311 date for a public hearing on this application is beyond the 21-day period prescribed by 310 CMR 10.05 (5). Equally clear, however, is that Grasso, through Hayes Engineering, noticed and thereby consented to a hearing date outside the 21-day period pursuant to 310 CMR 10.05 (5)(b)(2). The central purpose of the Act is to "preserve and protect coastal and other wetlands bordering rivers and other bodies of water." Garrity v. Conservation Com'n of Hingham, 462 Mass. 779, at 785 (2012). The legislature granted local jurisdiction over applications under the Act in order to bring "local knowledge to bear on local conditions and reducing the administrative burden on the department [DEP]." Garrity, at 785. The Wetlands Protection Act ("Act"),through its regulations, provides that "a public hearing shall be held by the conservation commission within 21 days of receipt of the minimum submittal requirements . . . . and shall be advertised in accordance with MGL c.131, §40 and the requirements of the open meeting law, MGL c.39, §238." Although the Act doesn't contain an express waiver provision of the 21-day hearing requirement, the courts have concluded is permissible; "[c]onstruing the act to permit an applicant to waive the twenty-one day decision deadline with respect to a local conservation commission's review of a proposed project does not interfere with the act's purposes, but may be seen to advance them by providing the commission with sufficient time to conduct a careful, locally informed evaluation of the project and, where appropriate, to proscribe suitable protective conditions for it." Garrity, at 789. 3 / The regulation does provide guidance for the continuance of the public hearing beyond the 21- dayperioJ. Subsection (b) providmoasfmUowo: "1.\ Vvithouttheconsentnfthe applicant toa date, announced at the hearing, within 21 days, of receipt of the Notice of Intent; 2.} with the consent of the applicant,tVan agreed-upon date, which shall beannounced at the hearing; . . ." See: 310 CIVIR 10.05 (S)(b)(1-2). In a case where the applicant hasn't agreed to a date beyond the 21-days,the public hearing may still be continued to a later date without the consent of the applicant, so long as it is announced at the hearing within 21-days of receipt of the Notice of Intent. Where there is consent from the applicant to an "agreed-upon date," the only requirement is that it be announced at the hearing. The clause referencing 21-days |snot included |n sub-part (2). Although, like the Act, the regulations don't expressly speak Loa waiver, they do speak to the specific conditions under which applications are allowably stretched beyond the 21-dayperiod. |DGa[rit� the Supreme Judicial Court held that |n neither the Act, nor its accompanying regulations io there any evidence ofa legislative intent to "bar [alvvaiv�rof �nys��tutoryUnn� | ` ' � limitation." On the contrary, the Court held that it was "reasonable" to conclude a waiver is � permitted in certain circumstances. Those circumstances are:that the waiver be voluntary; its � � duration defined and reasonable in length; and notice of the waiver's duration a matter of � public record. Garrity, at779, headnote1. Here, all of those conditions are met. (n this matter, the applicant has waived the 21-day period. When Grasso noticed the abutters of his N01, without any communication with the Commission, he informed them that the date of the public hearing would be December 13, 2023. Section 10.05 provides that "concurrent with the filing of the Notice of Intent, the applicant shall provide notification of the hearing date to all Abutters, . , The notification shall state where within the municipality copies of the Notice of Intent may be examined or obtained and where information on the date, time, and location of the public hearing may be obtained. The applicant shall present either the certified mail receipts or certificate of mailing receipts for all Abutters at the beginning of the public hearing. The presentation of the receipts for all abutters required to be notified as identified on the tax list shall constitute compliance with Abutters' notification requirements." See: 310CK4R 10.05. In the Grasso's notice, he informs the town and abutters to his proposed projectthatthe public hearing is going tV6eon December 15, 203Sat7:UOP.M. � � | |n addition, the filing includes a November 7, 2O23 Affidavit of Service, signed hvAnlanda Ogren-Moda from Hayes Engineering that she gave (or intended to give) notification to abutters � on November 21, 2022 (SIC) Further, pursuant to November 30, 2023 email correspondence with the Eagle Tribune newspaper, its advertising department provided a proof of the required legal advertisement and noted that "The paying parties are on account with us and have receivedafo|| ooDfirnoadon". HayesEngineeringhaxenaccounionfi|evviththeEog|eTribune, and as with the initial NOI application paid for that legal notification. The legal notification for 4 � � this new NO| was published inthe Eagle Tribune on December 6, 2O2], indicating that the � newspaper received payment otherwise it would have not run. Both the Town and the Abutters were within their rights to rely on the veracity of Grasso's notice and Ms. Moda's signed Affidavit: "The Town of North Andover Conservation Commission will hold a public hearing on Wednesday, December 13, 2023." The notice further provided detailed information about where to review their notice of intent, and the days and hours it would be available for inspection by members of the public. | It is the Town's position that Grasso, in selecting the first regularly scheduled date available for 8 public hearing on his NO|, and notifying abutters of that date, has placed himself within the provisions of31OCMR1O.OS /5Vb\(2) inthat he and the Town were in agreement astowhen this matter would be heard. Having selected the date and so notifying the Town,the abutters, and members of the public, he cannot now be heard to claim the date is noncompliant with the 21'dayregulation. ! Grasso's actions sati�the �quir�menb �o ��rass��hin ��o's | ' Garrity, | notification of the public hearing date to abutters was done without any consultation with or objection to the Town. Instead, he willingly consented to the next available (and prescheduled) hearing date of the Commission when providing notice to abutters.The scheduled hearing on December 13t" presents both a definite date and one that is reasonable in length. That is � particularly the case when the prior application (DEP#242-1858) was submitted in April and Grasso continued it until October when it was ultimately withdrawn. Finally, the requirement that the waiver is a matter of public record and is available to all those interested is again satisfied in this case. The facts of this application also raise concerns that extend beyond an alleged procedural � � misstep. This new application, ShOU|d it proceed before the Commission, may U|1in0atek/be seen as substantially similar tO the first, unsuccessful NO| application. It now seems apparent � from the recent filings to the DEP from Hayes Engineering that while representing to the Town | and the Abutters that this matter m/Ou|d be heard at the regularly scheduled December 13111 meeting of the Commission, they had no intention of ever bringing this matter before the � Commission, and no intention of allowing Abutters and members of the public the opportunity to be heard. Not only would it have been immediately apparent to Grasso and members of Hayes Engineering that the date they choose was beyond 21-days, but they also ignored the � good faith attempts by the Town to confirm the applicant's waiver of the 21-days by twice � sending them a Town generated waiver form—the same form they used without objection with their last application. At no time upon receiving the "Notice of Extension" which Grasso previously signed, and then requested additional continuances seven times, neither Grasso, nor Hayes Engineering ever raised an objection or attempted to clarify their unarticulated and now alleged objection to having the meeting beyond the 2l'duyperiod. 5 � � � � / |O his appeal toDEP, Grasso cites Boston Clear Water Company KTown of Lynnfield for the proposition "the Connnn)s:iow loses its Home Rule' wetland bylaw control bv failure toconvene the public hearing by the deadline of 21-days from the filing of the Notice of Intent." Boston Clear Water Company, 11Cx Town nfLynnfie/d8> another(slip opinion)January 26, 2O22. The facts of Boston Clear Water are substantively different from this matter in that it deals with an applicant that did not assent to a new hearing date: "the hearing was continued without BCVVC's83seDt." But the Town sees this case relevant on other grounds, In its opposition to the SOC,the Town Of Lynnfield argued that a Commission has "more control over when it issues a decision than it does in ensuring that a quorum is present for a timely hearing, that a minor delay of a hearing is unlikely to prejudice an applicant, and that divesting the commission of jurisdiction in these � circumstances will promote bad faith and tactical filings by applicants." Here, Grasso either knew or should have known that the date he gave to abutters for the public hearing was beyond the 21-day period, Consideration in this matter of Grasso's much continued first application —seven times over the course of seven (7) months; his request to � withdraw without prejudice; his soon-after (10-businesn days) ref||ing of an application substantially similar to the original; his silence when, in good faith, the Commission 1vvioe contacted him about the Waiver; his notice to the abutters of a meeting date that he now seeks to avoid un the grounds that itis beyond the 21-dayperiod; and his immediate request onthe 22^u day to the DEP for anSOC —together give substance to the warnings articulated inthe Boston Clear Water case, of the possibilities of bad faith, tactical filings. Grasso's request tothe DEP should not only be denied on substantive grounds, but also because the facts presented in this case sought runs contrary to the principals of equity, transparency, and fairness. In such instances courts retain the ultimate discretion over these prescribed timelines. See: Ke&cV/D others V. Planning Board nf Dennis, 6 Mass, App. Ct. 24 /l978\. Respectfully submitted on behalf of the North Andover Conservation Commission, Christine O'Connor North Andover Town Counsel � cc: North Andover Conservation Commission � Amy K4axner,Administrator to the North Andover Conservation Commission Jean Enright,Administrator to the North Andover Planning Board Wetlands Program 6