Loading...
HomeMy WebLinkAbout2024-08-13 Appeal Information & Order of Conditions Refiling WITHDRAWN I1 603 Salem Street Nantucket, MA 02554 42A 940 Wakefield, MA 01880 Tel: (S08)228-7909 Z4 Tel: (781)246-2800 Hayes Engineering, Inc Refer to file No. NOA-0087 Erie Lane, PE elane a hayeseng.com March 28, 2024 Town of North Andover Planning Board Ms. Jean Enright, Planner 120 Main Street North Andover, MA 01945 VIA Electronic Mail to .lean Enright <jenright a northandoverilia,.gov> RE: Site Plan and Special Permit Status 189 Willow Street("the Property") Map 25 Lot 167 North Andover, Massachusetts Dear Ms. Enright and Board Members: Hayes Engineering, Inc. ("HEI") represents Mr, Vincent Grasso ("the Applicant" and "the Owner") of the above referenced Property. Thank you for your consideration of our request for continuance at the Board's March 12 meeting. As requested, representatives for the Project will be in attendance at the April 2, 2024 public meeting. On behalf of the Applicant we are providing the following updates to the Board. 1. The pending Applications were filed with the Planning Board as a pre-rcgUisite for filing of a Notice of Intent for the Project, as required by the Town of North Andover Conservation Commission and 310 CMR 10.05(4), The Applicant recognizes that the threshold permitting lies with the Conservation Commission, but is unable to apply for a permit without a concurrent application with the Board, 2. The Applicant is in receipt of the Stormwater Peer Review by Horsley Whitten dated January 12, 2024, and are in the process of providing a response. Some issues identified including the extent of the flood zone 1 Bordering Land Subject to Flooding have a shared jurisdiction with the Department of Environment Protection (DEP), As a result, we are awaiting input from DEP on some matters, most Critically Item 3.a of the aforementioned letter requiring soil testing within the BMP area. The Applicant is more than happy to provide such information, however, is seeking permission to access and excavate at the property within jurisdictional buffer zones. This information will assist in responses to many of the comments raised by the Board's peer review consultant, Horsley Whitten Group. North Andover Planning Board Ms, Jean Enright RE: 189 Willow Street Status Update March 28, 2024 3. The Applicant has appealed the DEPs rejection of the request for Superseding Order of Conditions to the Office of Appeals and Dispute Resolution (OADR). The Applicant, through counsel has conferred with DEP counsel to discuss resolution and was unable to do so. The matter is currently being heard by OADR with the following schedule proposed to the Presiding Officer; Petitioner's deadline to file pre-filed testimony Friday, May 10,2024 Department's and Commission's deadline to file pre-filed testimony Friday, Jane 7, 2024 Petitioner's deadline to file pre-filed rebuttal testimony Friday, June 21,2024 Proposed Hearing Date(s) July 11, 2024 4. The Applicant has also filed appeals to the North Andover Conservation Commission's (NACC's)denial of the Order of Conditions with the DEP and the Massachusetts Superior Court. These actions are currently pending. The Applicant proposed the following schedule with the Board to coincide with the ongoing appeal processes: 1. Return for an update on Appeal Status with the Board on Tuesday June 4, 2024. 2. Provide responses to Horsely Whitten Group on or before June 13, 2024, for discussion at the July 16, 2024, Planning Board Meeting. The Applicant will renotify abutters at their expense prior to this meeting. Also the Applicant will provide updates on Appeal status. 3. Return to a regular schedule of bi-weekly meetings in accordance with the Board's published schedule. Thank you for your time and consideration of this matter. Should you have any questions or comments please feel free to contact me using the number in the letterhead, or via electronic mail at elanc cr hayeseng.cotn. Yours Very Truly, Hayes Engineering, Inc. Eric B. Lane, PE Cc: Stephanie Kiefer, Smolak and Vaughan Vincent Grasso Page 2 of 2 Sleet A. Kiefer, Esq. SMOLAK & VAUGHANj T: 978-682-522U I F: 978-3 27-52 19 tj l skiefei y?N January 4,2024 Via First Class Mail Department of Environmental Protection DEP LockBox P.O. Box 4062 Boston, MA 02211 RE: Notice of Claim for Adjudicatory Appeal/Adjudicatory Fee Transmittal Form MassDEP File No. 242-1881 Applicant/Petitioner: Vincent Grasso Dear Sir/Madam, Enclosed please find a completed Adjudicatory Hearing Fee Transmittal Form together with a check in the amount of$100.00 made payable to the Commonwealth of Massachusctts. A copy of the transmittal form and check are likewise submitted this day to the Office of Appeals and Dispute Resolution together with the Petitioner's Notice of Claim for an Adjudicatory Appeal. Thank you for your attention to this matter. Sincerely, Stephanie A. Kiefer,Esq. Encl. cc" MassDEP Northeast Regional Office, Wetlands Program Attn: Jill Provencal, Section Chief Attn: Rebekah Lacey, Esq., General Counsel 205B Lowell Street Wilmington, MA 01887 Email: Jill.Provencal,((iistatc.rna.us Rebekah.Lacey Gefttate.ma.0 North Andover Conservation Commission Attn: Amy Manner, Conservation Agent 120 Main Street North Andover, NIA 01845 Email: amaxner nepnorthandoverma.gov East Mill,21 High Street,Suite 3UI,North Andover,MA 01845 WWW.SMOI,AKVAUGHAN.COM TAB A {00280353;vI} SMOLAIC & VAUGHAN LLP North Andover Conservation Commission Attu: Amy Maxner, Conservation Agent 120 Main Street North Andover, MA 01845 Email: amaxner@northandoverrna.gov> 4 SMOLAK & VAUGHAN LLP The Department erred in dismissing the appeal as it disregarded the statutory mandate that the Commission was obligated to hold a public hearing within 21 days of receipt of the NOT. The Department's Dismissal of Appeal erroneously imposes an implied waiver of the statutory 21-day period on an Applicant where a Commission's published meeting dates would not otherwise occur within 21 days of the filing of a Notice.of Intent. The Department's Dismissal of Appeal not only is contrary to the mandate of Chapter 131, §40 and its regulations, but also is contrary to the holdings of Boston Clear Water Cornparry v. Town of Lynnfield, 100 Mass.App.Ct.657, 661 (2002) ("[T]he failure to conduct a timely hearing and the failure to issue a timely decision following a hearing result in the same consequence under the same provision of the act—in both instances, the act authorizes the applicant to request an order of conditions from the DEP") and Oyster Creek Preservation, Inc. v. Touvn of Harwich Conservation Conrm'n of Harwich, 449 Mass. 859, 866 (2007) ("[T]he timing provisions in the act are obligatory, and a local community is not free to expand or ignore them.") The Dismissal of Appeal disregards the mandate of the WPA as well as the controlling case law whereby absent an express waiver of the statutory deadlines, a Commission is bound to adhere to the deadlines of the WPA;where a Commission disregards such statutory deadlines, it loses jurisdiction over a project. The Applicant asserts that the Department's Dismissal of Appeal does not adhere to the mandates of the WPA, its Regulations and controlling caselaw. For the reasons set out in this Notice, Grasso requests an adjudicatory hearing and requests that the Department issue a Superseding Order of Conditions approving the work as described in the NOI and that the Department confirm that the Commission forfeited its jurisdiction by failing to conduct the hearing within 21 days of submittal of the NOT. Should you have any questions,please do not hesitate to contact me. For the Applicant, Vincent Grasso, By his attorney, /s/ Stephanie A. Kiefdr, Esq. (BBO#567341) Encl. cc: MassDEP Northeast Regional Office Wetlands Program Attn: Jill Provencal, Section Chief Attn: Rebekah Lacey, Esq., General Counsel 150 Presidential Way Woburn, MA 01801 Email: Jill.Provencal a,state.nla.us Rebekah.Laccy a,state.ma.us 3 SMOLAK & VAUGHAN LLP The procedural and factual background of this matter is as follows: oil November 7, 2023, the Applicant through his project engineer at Hayes Engineering filed a complete Notice of Intent ("NOI") package with the North Andover Conservation Commission ("Commission") under the Wetlands Protection Act and the North Andover Wetlands Protection Bylaw, which was received by the Commission on November 8, 2023, Through the NOT,the Applicant proposed tile construction of a 6,667 square foot commercial building for use as a business office, associate parking, landscaping, utilities and stormwater management appurtenances (the "Project"). The NOI materials included, inter cilia, WPA Form 3, a six-shect set of plans,filing fee, project narrative and stormwater management report and complied with the minimum filing requirements of General Instructions for the Notice of Intent(Form 3).Notably,the NOT package did not include a signed "Notice of Extension" form used by the Commission on a voluntary basis.2 The Commission was aware that the Notice of Extension waiver was not granted by the Applicant or its engineers, yet took no action to timely schedule a hearing within the mandatory 21-day period. Instead, the Commission sought to schedule the hearing during the Commission's meeting date of December 13, which date was 35 days after the submission of the NOT. In accordance with G.L. c.131, §40 and its regulations at 310 CMR 10.05(5)(a), the Commission was required to hold a public hearing within 21 days of receipt of the NOI. As the Commission received the NOT on November 8,2023, it was required under the WPA to open the public hearing on or before November 29, 2023, The Commission failed to open the public hearing on or before the mandatory timefrarne. In accordance with 310 CMR 10.05(7)(b)(4), the Applicant timely filed a Request for Superseding Order("SOC Request") with the Department on December 4, 2023. A copy of the SOC Request is attached at Tab C. On December 19, 2023, without conducting a site visit and/or seeking further information frorn Grasso, the Department issued a Dismissal of Appeal, on December 19, 2023, According to the Dismissal of Appeal, "it is MassDEP's opinion that you had prior knowledge of the date of the public hearing and that based on the NACC's schedule, the public hearing would not be held until 21 days of receipt of your NOT, indicating your consent to hold the public hearing at the agreed upon date of December 13, 2023." On the basis of this conclusory finding, the Department dismissed the appeal. 2 The Notice of Extension Form,a voluntary form employed by the Commission,if given by an Applicant would expressly waive the 21-day mandatory period for opening(lie public(rearing.The 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 [date] in order to conform the schedule of the Conservation Commission meeting,such that the Commission is allowed until[fill in the date)to hold a public hearing for the proposed work at(fill in location).Neither Grasso nor his engineer executed such form.Further,the Commission was aware that Grasso had not consented to the extension;as acknowledged by the Commission in a letter to the Department,the Commission had inquired of the Applicant's engineer as to submitted the executed waiver form on November 17,2023 and November 29,2023 and no such waiver was granted.Without securing such waiver,the Commission chose to disregard the statutory mandates of the WPA and to schedule the hearing for 35 days after the NOI was filed. 2 SMOL.AK & VAUGHAN Stephanie A. Kiefer, Esq. T: 978-682-5220 1 I': 978-327-5219 p, T T O R N L ; ; AT CAW skicrcr7sinolak lughac .com January 4,2024 Via Hanel Delive> v and Email Case Administrator Office of Appeals and Dispute Resolution Department of Environmental Protection 100 Cambridge Street, 9t" Fl Boston, MA 021114 CaseAdmin.OADR@state.ma.us RE: Notice of Claim for Adjudicatory Appeal MassDEP File No. 242-1881 Applicant/Petitioner: Vincent Grasso Dear Sir/Madam, By submission of this letter,Applicant/Petitioner Vincent Grasso ("Grasso") hereby submits this Notice of Claim for an Adjudicatory Appeal ("Notice of Claim") to the Office of Appeals and Dispute Resolution ("OADR') in accordance with the provisions of 310 CMR 1.01(6) and 310 CMR 10.05(7), appealing from the Dismissal of Appeal issued by the Northeast Regional Office of the Department of Environmental Protection (the"Department), dated December 19, 2023, dismissing the Request for a Superseding Order of Conditions relative to Grasso's proposed development of a commercial building and associated infrastructure at 189 Willow Street,North Andover as described in a Notice of Intent filed with the North Andover Conservation Commission dated November 7, 2023. This request is timely filed via hand-delivery and email, being within ten (10) business days from the date of the issuance of the Notice of Dismissal,1 The contact infortnation for the Applicant is Vincent Grasso, 30 Faulkner Road, North Andover, MA 01845, with a telephone number of 978-502-7506 and email address of vigr� asso@gmail.com. As counsel to the Applicant, my contact infortnation is contained in the letterhead above. A copy of this Notice of Claim is provided this day to the Department's Northeast Regional Office and the North Andover Conservation Commission, each via first class mail postage prepaid and electronic snail to the addresses listed below. Please also note that the filing fee in the amount of$100 has separately been sent together with the MassDEP Fee Transmittal Form to the DEP.Lockbox at Post Office Box 4062,Boston, MA. A copy of the Fee Transmittal Form and copy of the check are attached hereto as Tab A. A copy of the reviewable decision is attached hereto as Tab B. 'It is noted that December 25,2023 and January 1,2024 fall within this period and are legal holidays. East Mill,21 High Street,Suite 301,North Andover,MA 01845 WW W.SMOLAKVAUGHAN.00M Massachusetts Department of Environmental Protection 51 Adjudicatory Hearing Fee Transmittal Form li IMPORTANT1 This form is intended for fee transmittal only. The contents of a request for an adjudicatory appeal (Notice of Claim)are established at 310 CMR 1.01(6)and the substantive statutes and regulations governing the department's action. A. Person/Party Making Request 1. Name and address of person or party making request: Important:When Vincent Grasso filling out forms Name=If appropriate,name group representative on the computer, 3 use only the tab 0 Faulkner Road key to move your Street Address cursor-do not North Andover . MA 01845 use the return key. City State Zip Code 2. Project information: 189 Willow Street street Address North Andover MA 01845 City State Zip Code 242-1881 $100 DEP File or ID Number Amount of filing fee attached vjgrasso@gmall.com Email Address B. Applicant (if applicable) 1. Name and address of applicant: Vincent Grasso Name-If appropriate,name group representative 30 Faulkner Road Street Address North Andover MA 01845 City State Zip Cade vjgrasso@gmaii.com _Email Address C. Instructions 1. Send this form and check or money order of$100.00 payable to the Commonwealth of Massachusetts to the MassDEP Lockbox at: Department of Environmental Protection P,O. Box 4062 Boston, MA 02211. 2. Send a copy of this form and a copy of the check or money order with the Request for Adjud€cato y Appeal(Notice of Claim)to: MassDEP Office of Appeals and Dispute Resolution Case Administrator 100 Cambridge Street, Suite 900 Boston, MA 02114 adjherfrn.docx•rev.12122 Adjudicatory Hearing Fee Transmittal Form•Page 1 of 1 TAB B i {00280353;vI} Commonwealth of Massachusetts Executives Office of Enemy & Environmental Affairs Department of Environmental Protection Northeast Regional Office e 150 Presidential W iV Woburn, MA 01801 971R-1304-3200 Maura T.Healey Rebecca L.Tepper Governor secretary Kimberley Driscoll Gary Moran Lieutenant Governor Acting Commissioner December 19, 2023 Mr. Vincent Grasso RE; WETLANDS/NORTH ANDOVER 30 Faulkner Road DEP File#242-1881 North Andover,MA 01845 189 Willow Street DISMISSAL OF APPEAL Dear Mr. Grasso: The Northeast Regional Office of the Massachusetts Department of Environmental Protection Wetlands Program (MassDEP) is in receipt of the appeal, dated November 30, 2023,that your representative filed on your behalf for the site referenced above, The appeal was filed for failure of the North Andover Conservation Commission (NACC) to hold a public hearing within 21 days of receipt of the Notice of Intent(NOI). On December 12, 2023, MassDEP received a letter from the Town of North Andover's Town Counsel on behalf of the NACC contesting the appeal submitted to MassDEP. As you know, the NOI was fled on November 7, 2023. Included with the NOI was the Notification to Abutters notifying then that the public heating was to be held on Wednesday, December 13, 2023, MassDEP also notes that the Public Notice,published in the Eagle Tribune on December 6, 2023 also notes that the public hearing was to be held on December 13, 2023. Based on the aforementioned information above, it is MassDEP's opinion that you had prior knowledge of the date of the public hearing and that based on the NACC's schedule, the public hearing would not be held within 21 clays of receipt of your N01,indicating your consent to hold the public hearing at the agreed upon date of December. 13, 2023. Therefore, in accordance with the provisions of the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, § 40 (the Act) and Regulations, MassDEP hereby dismisses your appeal. YQu have the right to appeal this decision by requesting an Adjudicatory Hearing within ten (10) business days of the postmark date of this letter, in accordance with the procedures outlined under 316 CMR 1.01(6)(a). This information is available in alternate Format.Please contact Melim Esenyle at 617-626-1282. TTY#MassRelay Service 1-800-439.2370 MassDEP Website:vrvimmass.govldep Printed on Recycled Paper 189 Willow Sheet,North Andover Dismissal of Appeal 3 3 1 Should you have any questions regarding this natter, please contact me at(781) 366-9109 or by email at jcnna.pirrotta a na ass.gov. Sincerely, t E 3enna Pirrotta Environmental Analyst Wetlands Program - NERO cc: North Andover Conservation Commission, 120 Maid Street,North Andover, MA 01845; Attn. Airy Maxner Hayes Engineering, Inc, 603 Salem Street, Wakefield,MA 02554; Attn. Eric Lade i TAB C {00280353;vI l . I 603 Salem Street Nantucket, MA 02554 Wakefield, MA 01880 Tel; (508)228-7909 Tel: (781) 246-2800 Hayes Engineering, Inc Fax: (781)246-7596 Refer to File No. NOA-0087 i i November 30, 2023 3 Massachusetts Department of Environmental Protection Northeast Regional Office 250E Lowell Street Wilmington, MA 01887 VIA Certified Mail i i RE: Request for Superseding Order of Conditions DEP File No. 242-1881 189 Willow Street North Andover, Massachusetts 01845 To Whom it May Concern: Hayes Engineering, Inc. (HEI) represents Vincent Grasso, the Applicant, and respectfully requests a superseding order of conditions (SOC) be issued for the Notice of Intent (NO[) filed for the above referenced matter as the North Andover Conservation Commission has failed to hold a timely hearing on the matter as required by 310 CMR 10.05(5)(a). Accompanying this request please find attached the following: I 1. Request for Departmental Action Fee Transmittal Form 2. A copy of Check No. 1098 in the sum of$245.00 3. Copy of the certified mailing receipt indicating the Notice of Intent was received by the North Andover Conservation Commission on November 8, 2023 4. Copy of the Energy and Environmental Affairs Project Information indicating DEP receipt I on November 7, 2023 The Wetlands Protection Act and its regulations at 310 CMR 10.00 require a public hearing shall E be held by the conservation commission within 21 days of receipt of the minimum submittal E requirements for a Notice of Intent. As of the writing of this letter, 22 days from receipt, no hearing has been held by the North Andover Conservation Commission (NACC). The NACC has scheduled the matter for its December 13, 2023, hearing, being 35 days from receipt. As such, the Applicant is seeking a SOC from the Department, Consistent with the 2022 Massachusetts Appeals Court decision in Boston Clear Wafer Company, LLC v. Town of y' MassDEP NERO RE: Request for Departmental Action DEP File No. 242-1881 November 30, 2023 Lynnffeld, No. 21-P-166, 100 Mass. App. Cf. 657(Mar. 23, 2022)the Commission loses its "Home Rule"wetland bylaw control by failure to convene the public hearing by the deadline of 21-days from the filing of the Notice of Intent. Should you have any questions or comments please feel free to contact me using the number in the letterhead, or via electronic mail at elane@hayeseng.com. Yours Very Truly, Hayes Engineering, Irlp. i Eric B. Lane, PE Project Manager Enclosures Cc: North Andover Conservation Commission (via Certified Mail) Page 2 of 2 Massachusetts f u tts Department of Environmental Protection 4 Bureau of Resource Protection - Wetlands DEP File Number: Request for Departmental Action Fee 242-1881 Transmittal Form Provided by DEP _ Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. Request Information 1. Location of Project 189 Willow Street North Andover a.street Address b.CitylTown,Zip 1098 $245.00 c.Check number d.Fee amount Important: 2. person or art making request if appropriate, name the citizen rou 's representative): i When fillingparty 9 q ( 9 p out fortes on Vincent Grasso the computer, Name use only the 30 Faulkner Road tab key to Mailing Address move your North Andover MA 01845 cursor-do Cityrrown ._m_.._._. State Zip Code not use the 978,502.7506 _ vjgrasso@gmail.com return key, Phone Number Fax Number Email Address fah i 3. Applicant(as shown on Determination of Applicability (Form 2), Order of Resource Area Delineation (Form 4B), Order of Conditions (Form 5), Restoration Order of Conditions (Form 5A), or Notice of Non-Significance (Form 6)): Vincent Grasso Name 30 Faulkner Road Mailing Address North Andover MA 01845 CIty/Tawn _ State Zip Code 978.502.7506 vjgrasso@gmall.com __.. ..._. !9 @gmail.com Fa Phone Number x Number Emall Address 4. DBP File Number: 242-1881 B. Instructions 1. When the Departmental action request is for(check one): ® Superseding Order of Conditions— Fee: $120.00(single family house projects)or$246(all other projects) ❑ Superseding Determination of Applicability—Fee; $120 ❑ Superseding Order of Resource Area Delineation-- Fee: $120 Send this form and check or money order, payable to the Commonwealth of Massachusetts, to Department of Environmental Protection Box 4062 Boston, MA 02211 welfee.doc rev.512 3120 1 8 Request for Departmental ftclion Feo Ttansmillal Fom)• Pagel of 2 Massachusetts Department of Environmental Protection 4 Bureau of Resource Protection - Wetlands DEP File Number. Request for Departmental Action Fee 242 1as1 Transmittal Form tovided by DEP l Massachusetts Wetlands Protection Act M.G.L, c. 131, §40 1 B. Instructions (corn.) 2. On a separate sheet attached to this farm, state clearly and concisely the objections to the Determination or Order which is being appealed. To the extent that the Determination or Order is based on a municipal bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. 3. send a copy of this form and a copy of the check or money order with the Request for a Superseding Determination or Order by certified mail or hand delivery to the appropriate DEP Regional Office (see ht.tps:tiwww.mass.gov/service-details/massdel)-regional-offices-bv-comrnunit }. 4. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant I watfeo,doe• rev.512312018 (Request for Departmental Aulion Fea Transmitlal Form• Pago 2 of 2 USPS 'Tracking FA4 > Tracking Number: Remove X 70223330000141638544 Copy Add to Informed Delivery (https://informaddelivery.usps.com/) Latest Update Your item eras delivered to the front desk, reception area, or mail room at 11:53 am on November 8, 2023 in NORTH ANDOVER, MA 01845. Get More Out of USPS Tracking: -n USPS Tracking Plus® Delivered Delivered, Feont'Desk/Reception/Mail Room NORTH ANDOVER, MA 01846 November 8, 2023, 11:53 am See All Tracking History What Do USPS Tracking Statuses Mean? (https://faq.usps.com/s/article[Where-is-my-package) Text & Email Updates V USPS Tracking Plus® u Product Information U See Less Track Another Package Enter tracking or barcode numbers . q [ Ii[c} °(U`J}Cr 4l 1�� 1'1frG�7r�t{ { r ( 1ra, lcz it7 �i•�x� ��u��i tr�����.�r�".Y,f"�£3 t-+l �_i t>fsr i IIt i :wif!E1t1�tT.(tr Fn R c1,Mfiad Mail Few, E:Qra��ivlces2�Peasfcl:n:rrhnv,.�a�r.a. �.� ry � ©Return RCcelpi th•y(!caq`+ To y '9a rCrj5r J L,R31Jrn Aatalp[fe?acrraal,l ; a I r V' ❑CzrJfiedMAa llesWgadOcl>:esy rl t� 5 i 4 [].ie'ulr S!8nslwa Re.ruY g q QACuIf a'Ignaiura A_54rP:ias1 T7't I'OStage IT# l'ntn t'ostattu end fe2q ---r-------_--- I YU Sant Ta ---- — HO[V7A ANQQVGJ ................... s.�aK. sCFeBl�;r"fd apt:nra,or p OXNP: Crfy Sfafa ZA+J NoR�"i� �}•Npp pp '��jt MQ, �7f r p �,y� I(.ktr'(�tn r rl�ylI�7AE!I�l5?r �'jr r�' VVOFS iNU .... �.�, 0 Complete items 1,2,and 3. A. Signal ure " is Print your name and address on the reverse x ®Agent ❑Addressee so that we can return the card to you. . H Attach this card to the back of the mallplecer �• Rece4ved by(Prlrrted Name) C. Date of Delivery or on the front If space permits. i. Article Addressed to: b. Is delivery address different from Item 17 W Yes Noeg -40MVER Cntvstavgiot If YES,enter delivery address below. d No )ZO MA tK St•Reer MO Ambwakr MA 015LK 3. Sarvlae Type iJ Priarity Mail Expresse) ❑Adutl Signature C7 Registieyred Mail R 1€iili 139 f111 It i! [t I tf411 t7 Aduil signature Restrloted Delivery p Registered Me11 pesltlatad K Cartllied Mall( p Signature eani(rmation7 9a90 9402 8262 309�4 07-19 72 a cerillied Mail Restricted Detivery Q called on Delivery t7 signature conlifmailon 2. Article Number(Transfer from service lebeA 0 Oolleol on Delivery Resirtated Delivery Reslflaled Delivery 7022 3330 0001 f41 b 3 8544 wail Restricted Delivery N Q&o PS Form 3811,July 2020 PSN 7620-02.000.8063 Domestlo Return Recelpt ® Commonwealth of Massachusetts Executive Office of Energy & Environmental Affairs Department of Environmental Protection NoI,Vhaast R-egional Office q 180 Pm-,BI lendai Wily WobLII'n, MA 01801 978.694.3200 Mauna T.Ilealoy fZebacca L.Pepper Governor Secretary Kiniberioy Driscoll Gary Moran Lieutenant Governor Meting Commissionor December 19,2023 1 E Mr, Vincent Grasso RE: WETLANDS/NORTH ANDOV R 30 Faulkner Road DEP File##242-1881 North Andover, MA 01845 189 Willow Street DISMISSAL OF APPEAL Dear Mr. Grasso: The Northeast Regional Office of the Massachusetts Department of Environmental Protection Wetlands Program (MassDEP) is in receipt of the appeal, dated November 30, 2023, that your representative filed on your behalf for the site referenced above. The appeal was filed for failure of the North Andover Conservation Commission (NACC) to hold a public hearing within 21 days of receipt of the Notice of Intent(NOI). On December 12, 2023, MassDEP received a letter from the Town of North Andover's Town Counsel on behalf of the NACC contesting the appeal submitted to MassDEP. As you know, the NOI was filed on November 7, 2023. Included with the NOI was the Notification to Abutter's notifying then] that the public hearing was to be held on Wednesday, December 13, 2023. MassDEP also notes that the Public Notice, published in the Eagle Tribune on. December C, 2023 also notes that the public hearing was to be Held oil December 13, 2023. 1 Based on the aforementioned information above, it is MassDEP'S opinion that you had prior knowledge of the date of the public hearing and that based on the NACC's schedule, the public hearing would not be held within 21 days of receipt of your NOI, indicating your consent to hold the public hearing at the agreed upon date of December 13, 2023. Therefore, in accordance with (lie provisions of the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, § 40 (the Act) and Regulations, MassDEP hereby dismisses your appeal. You have the right to appeal this decision by requesting an Adjudicatory Hearing within ten (10) business days of the postmark(late of this letter, in accordance with the procedures outlined tinder 310 CMR 1.01(6)(a). This Informalioa is avallable In alternato forrnnl,Pleaso contact Molina Esenyle at 617.626.1202. TTYN MassReloy Servlco 1.800.430.2370 Nldassbcp webstto:VnVw.mass.tlovldop Printed on Rocyalod Papor 189 Willow Street,North Andover Dismissal of Appeal Should you have any questions regarding this matter, please contact me at (781) 366-9109 or by email atjenna.pirrotta@iiiass.gov. Sincerely, lu 1�i"Mi Jenna Pirrotta Environmental Analyst Wetlands Program - NERO cc: North Andover Conservation Commission, 120 Main Street, North Andover, MA 01845; Attn, Amy Maxner Hayes Engineering, Inc, 603 Salem Street, Wakefield, MA 02554; Aun, Eric Lane i 4 LlMassachusetts Department of Environmental Protection Provided by MossDEP: Bureau of Resource Protection --Wetlands 242^ $$1 - WPA Form 5 — Order of Conditions MassDEP File# Massachusetts Wetlands Protection Act M.G,L. c. 131, §40 e°EP Transaction# North Andover Clty/Town A. General Information "lease note; North Andover this form has i. From:been modified Conservation Commission with added 2. This Issuance is for Space to a.❑ Order of Conditions b.❑ Amended Order of Conditions accommodate (check one): the Registry ofRoeds 3. To: Applicant: Requirements Vincent Grasso Important; a.First!Name b. Last dame When filling out forms on c.Organization the 30 Faulkner Road use only comuterthe 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. rs a.First Name b.Last blame c.Organization rtarn d.Mailing Address e.City/Town f.State g.Zip Code r;. Project location: 189 Willow Street North Andover a.Street Address b.City/Town Map 25 Lot 167 c,Assessors MaplPiat Number d, Parcel/Lot Number Latitude and Longitude, if known: 42d66m184Ns 71d11m249s d.Latitude e.Longitude wpamrms.doo rev U1812020 Page 1 of 13 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection .. Wetlands 242-1881 WPA Form 5 - Order of Conditions MassDEP File# Massachusetts Wetlands Protection Act M.G.L. e. 131, §40 eDEP Transaction# North Andover Cityfrown A. General Information (cons.) B. 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 164 c.Book d.Page 7. Dates: November 8, 2023 December 13, 2023 December 21, 2023 a.Date Notice of Intent Filed b.date Public Hearing Closed c.Date of Issuance s, Final Approved Plans and Other Documents (attach additional plan or document references as needed): No Plans Approved- Denial a.Plan Title b.Prepared By c.Signed and Stamped by d.Final Revlslon Date e.Scale f.Additional Plan or Document Title g.Date B. Findings i. Findings pursuant to the Massachusetts Wetlands Protection Act: 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(the Act). Check all that apply: a. ® Public Water Supply b. ❑ Land Containing Shellfish c. ® Prevention of Pollution d. ® Private Water Supply o. ® Fisheries f, ® protection of Wildlife Habitat g. Groundwater Supply h. ® Storm Damage Prevention I. 0 Flood Control 2. This Commission hereby finds the project, as proposed, is:(check one of the following boxes) Approved subject to; a. ❑ 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, v parorm5.doo-rov W1012020 flags 2 of 13 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection -Wetlands 242-1881 NLI- WPA Form 5 Order of Conditions MasspEP File 0 Massachusetts Wetlands Protection Act M.G.L. c, 131, §40 eDEP Transaction 0 North Andover cityrrown B. Findings (cont.) Denied because: b. ❑ 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 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. c, ® 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). 3. ❑ Buffer Zone Impacts: Shortest distance between limit of project disturbance and the wetland resource area specified in 310 CMR 10,02(1)(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 Replacement 4. ❑ Bank a.linear feel b.linear feet c.linear feet d.linear feet 5, ❑ Bordering Vegetated Wetland a.square feet b.square feet c,square feet d,square feel 6. ❑ Land Under Waterbodles and a,square feet b.square feet c,square feet d,square feet Waterways e.Oy dredged f,cty dredged 7. ❑ Bordering Land Subject to Flooding a.square feet b.square feat c.square feel d.square feet Cubic Feat Flood Storage e,cubic feet f,cubic teat g.cubic feet h.cubic feet s. ❑ Isolated Land Subject to Flooding a.square feet b,square feet Cubic Feet Flood Storage c.cubic feet d,cubic feet a.cubic feet f,cubic feet s. ❑ Riverfront Area a,total sq,feel b.total sq.feel 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 v,paform5,doc•rov 6118/2020 Pago 3 of 13 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection - Wetlands 242-1881 WPA Form 5 - Order of Conditions MassDEP File 0 ILI Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction 0 North Andover City/Town 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 feel b.square feet c.cly dredged d.oly dredged 12. ❑ Barrier Beaches Indicate size under Coastal Beaches and/or Coastal Dunes below 13. ❑ Coastal Beaches cu yd a.square feel b.square feet c.nourishment d,nourishment 14. ❑ Coastal Dunes ou yd cu yd a.square feet b.square feet c.nourishment d.nourishment 16. ❑ Coastal Banks a.linear feel b,linear feel 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 feel c.cly dredged d.cly dredged 1g. ❑ Land Containing Shellfish a.square feet b,square feel C.square feet d.square feel 20. ❑ Fish Runs Indicate size tinder Coastal Banks, Inland Bank, land Under the Ocean, and/or inland Land Under Waterbodies and Waterways, above a,cly dredged b.cly dredged 21, ❑ 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 1.square feet J.square feet Nvpaform5,d0e rev 6/1012020 Page 4 of D 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection - Wetlands 242-1881 WPA Form 5 - Order of Conditions MassD6P File# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction ff North Andover cityrrown B. Findings (cont) 023.If the 23 ❑ Restoration/Enhancement : proJecl Is for the purpose or restoring or a,square feet of BVW enhancing a b.square feet of salt marsh wetland 24 El Stream Crossin s resource area g( ): 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 (BVM or The following conditions are only applicable to Approved projects, 8.1 To(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. site addlUonat 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 permlttee 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. wparorM5,doo-ray 6/1812020 rage 6 0113 4 Massachusetts Department of Environmental Protection Provided by MassDEP; Bureau of Resource Protection - Wetlands 242-188I VIIPA Form 5 - Order of Conditions MassDEP He# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction E North Andover cilyfrown G. 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. 9. 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 the 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. 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"j "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 MassDEP. 12. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A)to 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 to require the filing of a new Notice of Intent, 16. 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. 16. 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, wporwO.doo-rev 6M812020 PODO 6 of 13 4 LlMassachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection - Wetlands 242-1881 WPA Form 5 -- Order of Conditions MassDEP File# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction# North Andover cityrrown C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) 17. 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. 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 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. 19. The work associated with this Order(the"Project") (1) ❑ Is subject to the Massachusetts Stormwater Standards (2) ❑ Is NOT subject to the Massachusetts Stormwater Standards If the work is subject to the Stormwater Standards, then the project Is subject to the following conditions: a) All work, Including site preparation, land disturbance, construction and redevelopment, shall be Implemented in accordance with the construction period pollution prevention and erosion and sedimentation control plan and, If applicable, the Stormwater Pollution Prevention Plan required by the National Pollution Discharge Elimination System Construction General Permit as required by Stormwater Condition B. Construction period erosion, sedimentation and pollution control measures and best management practices (BMPs)shall remain In place until the site Is fully stabilized, b) No stormwater runoff may be discharged to the post-construction stormwater BMPs unless and until a Registered Professional Engineer provides a Certification that: L all construction period BMPs have been removed or will be removed by a date certain specified In the Certification. For any construction period BMPs intended to be converted to post construction operation for stormwater attenuation, recharge, and/or treatment, the conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that the BMP has been properly cleaned or prepared for post construction operation, Including removal of all construction period sediment trapped in Inlet and outlet control structures; //. as-bullt final construction BMP plans are Included, signed and stamped by a Registered Professional Englneer, certifying the site is fully stabilized; //L any Illicit discharges to the stormwater management system have been removed, as per the requirements of Stormwater Standard 10; wpaform5,doc•rov 611812020 Pago 7 of 13 4 Massachusetts Department of Environmental Protection Provided by MassDER Bureau of Resource Protection -Wetlands 242-1881 WPA Form 5 - Order of Conditions MassDEP File# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction# North Andover CItyrrown C. General Conditions Under Massachusetts Wetlands Protection Act (coat.) 1v, all post-construction stormwater BMPs are Installed in accordance with the plans (including all planting plans) approved by the issuing authority, and have been inspected to ensure that they are not damaged and that they are in proper working condition; v. any vegetation associated with post-construction 13MPs is suitably established to withstand erosion. c) 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 an Operation and Maintenance Compliance Statement ("O&M Statement)for the Stormwater BMPs identifying the party responsible for implementing the stormwater BMP Operation and Maintenance Plan ("O&M Plan")and certifying the following: 1.) the O&M Plan Is complete and will be implemented upon receipt of the Certificate of Compliance, and IL) the future responsible parties shall be notified in writing of their ongoing legal responsibility to operate and maintain the stormwater management BMPs and implement the Stormwater Pollution Prevention Plan. d) Post-construction pollution prevention and source control shall be implemented in accordance with the long-term pollution prevention plan section of the approved Stormwater Report and, If applicable, the Stormwater Pollution Prevention Plan required by the National Pollution Discharge Elimination System Multi-Sector General Permit. e) Unless and until another party accepts responsibility, the landowner, or owner of any drainage easement, assumes responsibility for maintaining each BMP. To overcome 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 of Conditions 18(f) through 18(k)with respect to that BMP. Any failure of the proposed responsible party to Implement the requirements of Conditions 18(f)through 18(k)with respect to that BMP shall be a violation of the Order of Conditions or Certificate of Compliance. In the case of stormwater BMPs that are serving more than one lot, the legally binding agreement shall also Identify the lots that will be serviced by the stormwater BMPs, 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 agreement. f) The responsible party shall operate and maintain all stormwater BMPs In accordance with the design plans, the O&M Plan, and the requirements of the Massachusetts Stormwater Handbook. wperorm5.doo•rev 5/1012020 Pago 8 or 13 4 a LlMassachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection Wetlands 242-1881 - WPA Form 5 -- Order of Conditions MassDEP File# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 e[3EPTransaclion# North Andover Cltyfrown G. General Conditions Under Massachusetts Wetlands Protection Act (cont.) g) 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 location); 2. Make the maintenance log available to MassDEP and the Conservation Commission ("Commission") upon request; and 3. Allow members and agents of the MassDEP and the Commission to 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 local laws and regulations. 1) 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 as 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)shall not be altered without the prior written approval of the Issuing authority. 1) Access for maintenance, repair, and/or replacement of BMPs shall not be withheld. Any fencing constructed around stormwater BMPs shall include access gates and shall be at least six inches above grade to allow for wildlife passage. Special Conditions (if you need more space for additional conditions, please attach a text document): 20. For Test Projects 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 Test Project threatens the public health, safety or the environment, the applicant shall implement the removal plan submitted with the Notice of Intent or modify the project as directed by the conservation commisslon or the Department, i wparorm5.doc rev 6110J2020 page 9 of 13 4 Massachusetts Department of Environmental Protection Provided by MassDEP: Bureau of Resource Protection Wetlands 242--1881 Ll WPA Form 5 -- Order of Conditions MassDEP File# Massachusetts Wetlands Protection Act M.G.L, c. 131, §40 ensP Transaction# North Andover City/Town 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 a. ® that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw, specifically: North Andover Wetlands Protection Bylaw and Regulations Ch. 190 1.Municipal Ordinance or Bylaw et,seq. 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. b. ❑ that the following additional conditions are necessary to comply with a municipal ordinance or bylaw, 1,Municipal Ordinance or Bylaw 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 a text document): North Andover Conservation Commission Findings & Denial Decision (see attached) wparormS,doo rov SHOWN Pogo 10 or 13 4 Ji I LAMassachusetts Department of Environmental Protection Provided by MassDPP: Bureau of Resource Protection - Wetlands42-1aa1 WPA Form v - order of Conditions MassDI;P Filef1 Massachusetts Wetlands Protection Act M,G.L, c. 131, §40 eDEP Transaction fl North Andover ci tyrrown E. Signatures This Order is valid for three years, unless otherwise specified as a special - p condition pursuant to General Conditions 1/4,from the date of issuance. 1.Date of Iss ance Please Indicate the number of members who will sign this form. This Order must be signed by a majority of the Conservation Commission. 2. umber 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 owner,If different from applicant. 7�v 4� e) IC�( e,<J Signaturerpr tedd Nam pp Signature JF� f?rt Inte Name. Signature Printed Name Signa ur ✓ Pit led N mEI Signal fe Pfi led m 0N ,1` Signature Printed Name Signalii a Printed Name Signature Printed Name ❑ by hand delivery on y certified mail return receipt ❑ Y p Date Date %YpsformV00 rev 0/3/2023 Page i i of 13 4 Massachusetts Department of Pnvironmental Protection Provided by MassDEP: Bureau of Resource Protection -Wetlands 242--1881 Ll WPA Form 5 - Orderof Conditions MassQEPFite# Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction# North Andover Cityrrown F. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town In which such land is located, are hereby notified of their right to request the appropriate MassDF,P 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 for Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7)within ten business days from the date of Issuance of this Order.A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, If he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation In the review of this project. Previous participation in the permit proceeding means the submission of written Information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order, or providing written Information to the Department prior to issuance of a Superseding Order. 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.t_, 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. Nvpa1omt5.doo-toy 611 W020 Page 12 of 13 4 AIMassachusetts Department of Environmental Protection Provided by MasSDEP: Bureau of Resource Protection -Wetlands 242--1881 WPA Form 5 -- Order of Conditions MassDi PFllell Massachusetts Wetlands Protection Act M.G.L, c. 131, §40 eDEP Transaction 0 North Andover CltylTown 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. corlservatlon commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. ------------------- ----------------------- ---------------- To: conservallon 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: i 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 wparormVoo-rev rVI M2020 Page 13 or 13 DIP TILL # 242-1881. DENIAL DECISION 189 Willow Street FINDINGS OF FACT 1. Procedural History: Hayes Engineering, on behalf of the applicant Vincent Grasso (the Applicant) filed a Notice of Intent(NOI) with the Nort11 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 stoxmwater xnanagenlent 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 (BLSF), 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 (310 CMR 10,00). 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 13, 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 deparhnent 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 13, 2023 meeting date, which is beyond the required 21-day time period for opening a hearing, the Conservation Page 118 DEP FILE#242-1881 DENIAL DECISION 189 Willow Street i Administrator contacted the project engineer by email on November 17th 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 Conunissior'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£unction 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. II, 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 "Horne 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 (310 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 i DIi1P 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 IVW to accomplish the proposed project. As mitigation for IVW 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 parking lot, are situated within the 25' NDZ to the natural BM The remainder of the proposed parking lot and the building are either within the IVW itself and its associated 25' NDZ and 50' NBZ, or within the 50' NBZ to the natural BVW. Chapter 1.90 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 vegetated wetland, (3) any vegetated Yvetland bordering on any creek, river, strearu, pond or lake, (6) any one-hi.irrdred foot buffer zone of wetland areas (1) through (5) listed above in this section, (7) and land subject to storni 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 Jurisdiction -listing the Town-s Yoettand resotirce areas, Which inchide IVW, BVW, 100 foot Buffer Zone, and land subject to storin flowage, or flooding... 2. Section 3.2 Isolated Vegetated Wetland Per forirmnee Standards; When the presuruption set forth in Section 1.0 of these Regulations is not overcoine, any proposed work in the Isolated Vegetated Wetland shall not destroy or otheni)ise impair any portion of said area. Et see... 3. Section 3.4 Buffer Zone Where a proposed activity involves the reinoving,filling, dredging or altering of Buffer Zone, the Conimission shall pr'estune that protection of the Buffer Zone of a resource area identified in Section 1.3 is significant to the interests specified in Section 178.1 of the Bylazct. This presitinption is rebuttable and rimy be overcoille upon a clear shMing that the Buffer Zone does not play a rote in the protection of said interests. In the event that the Corrrirrission deems that the presuniption has been overcoriie, the Comiiiission shall make a 701'itten deter)idnation to this effect, setting forth its grounds. Page 318 DEP TILE 4 242-1881 DENIAL DECISION 189 Willow Street Tile 104 foot Buffer Zones of Isolated Vegetated Wetlands, Bordering Vegetated Wetlands, Bank, and Land Under Water all contain, at a minimum, a 25 foot No Disturbance Zone and a 50 foot No-Build Zone...et sec,,, 4. Sectionn 5 Waiver,Provisions and Altel'llatives Analysis Regtiirentelnts U No-Disturbance Zones The Commission may grant a 70aiver fi om these regulations for alteration of a buffer zone resource area in sltuatiMIS 7011e1'e there are no feasible alternatives that provide felner impacts to the resource area values. The applicant is responsible for conducting this alternatives analysis to shorty that there are no feasible alternatives. The ColMMisSiarn rltay gl•alit a Waiver of the 25-Foot No- Disturbance Zone and/or 50 foot Ephemeral Pool No-Disturbalce Zone per forma nce standards and impose 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 any adverse effects upon any of the interests protected by the Bylaw. It shall be the responsibility of the applicant to provide tine Commissionn with any information that the Commission may request to enable the Commission to ascertain such adverse effects. The failure of the applicant to f,trnish any information that has been so requested shall result in the denial of a request for a 7vaiver pursuant to this subsection;and ♦ The project Will irllplrove the natural capacity of a resource area to protect the interests identified in the Bylazo, provided any adverse effects on any such interests are minimized by carefully considered conditions. However, 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-Disturbance Zone file Commission shall require mitigation measures to be implemented to offset presumed impacts to the zvetlalnd resource areas (see Section 6.4), 5,2 No-Build Zones The Commission may grant a waiver front these regulations for an alteration of a buffer zone resource area in situations when there are no feasible alternatives that provide for less impact to the resource area values, The applicant is responsible for conducting are alternatives analysis to show that there are no feasible alternatives, Tile Commission 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 substituted mitigative 4 L8 DLP TILL #242-1881 DENIAL DECISION 189 Willow Street requirements as it deems necessary, upon a clear and convincing shorting 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 any adverse effects upon.any of the interests protected by the Byla70. It shall be the responsibility of the applicant to provide the Comrarission With any information that the Commission may request to enable the Commission to ascertain such adverse effects. The failure of the applicant to fr.urrnish any infornaatiorn that has been so requested shall result ill the denial of a request for a waiver pursuant to this subsection; and ♦ The project will improve the natural capacity of a resource area to protect the interests identified in the Bylaw, provided any adverse effects on any such interests are minimized by carefnully considered conditions. However, no such project may be permitted which would have all adverse impact on rare Wildlife species, Inn the case where a waiver is granted in the No-Build Zone, the Conunission shall require mitigation measures to be implemented to offset potential impacts to the wyetland resource areas (see Section 6.0). 5. Section 5.3 Vegetated Wetland Alteration The Commission may grant a ruaiver from these regulations for alteration of a Vegetated Wetland in situations where there are no feasible alternatives that provide less impacts to the wetland resource values. The applicant is responsible for conducting all alternatives analysis to show that there are no feasible alternatives. The Commission may, pending the results of the alternatives analysis, allow the loss, alteration., or temporary sir face disturbance of up to a cumulative total no greater than five thousand (5,000) square feet of Bordering Vegetated Wetland and Isolated Vegetated Wetland combined Own said areas are replaced or restored in accordance with the State regulations 310 CMR 10.55(4)(b) and Section 6.0 of these Regulations. 6, Section 6.0 Replication Standards and Habitat Evaluations 6.1 Wetland Replication A study conducted by the University of Massachusetts found that the majority of zu?etland replication projects undertaken in the Commonwealth do not meet the minimum performance standards in the regulations. In nanny projects, proposed mitigation failed to meet performance standards because of inadequate hydrology, pool-vegetation replanting plains, or-replication areas built smaller than required in Pag.e_518 DEP PILE 4 242-1881 DENIAL DECISION 189 Willow Street the plans. Based on this colupelling evidence, the Conrntissim will not place substantial reliance on replications to achieve the goals of the Wetlands Protection Act and Bylazv. These goals ca)r best be achieved by avoiding arrd minimizing impacts to zvetlands, thereby reducing the need for replication projects of uncertain success. The importance of avoiding a)rd rniniutizing wetland tlltpacts is expressly recognized in the state regulations a)rd this Bylazv. The Act and Bylazo rttandate that the Contr)tission consider the availability or reasonable alternatives to the proposed activity, the extent to which adverse i111pacts are minimized, and the extet2t to zvldch mitigation iwastsres, including replication or restoration, are provided and contribute to the protection of the interests identified in the Act mid this Bylazv. The above IlOhOithstanding, projects that imtpact vegetated zvetlmrd resource areas 7vill require replication under this Bylay. Tile general conditions gover)ring replications area design tinder this Bylazv shall include brit not be litttited to the follortlirrg...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 Stormzvater Managetrtent and Flood Control Projects subject to the Bylazv shall fidly comply with the applicability, criteria, specifications, submittal requirelrlents and pe)formmrce standards of the Most recent version of the Massachusetts Stortttzvater Standards, 310 CMR 10.05(6)(1c) as well as those described he)ein.....The State standards have been amlended and expanded upon by the Co)rt)mssiolr in order to adequately protect the interests of the Act a)rd Bylazo. Projects subject to file Bylaztt shall also comtply zoith the requiremelrts and criteria outlined in Sections 7.0 through 10.0 of the North Andover Sf01'1)I70ater Mattagetuent a)rd Erosion Control Regulatiom pros iulgated tender Chapter 160 of the Tozvtr Bylazvs (StorrltzvaterMalraget))e)rt and Erosion Control Bylazo). All references in those regulations to the Planning Board shall instead apply to the Conservation Commussio)r. Et sec... Including but not limited to the following wetland performance standards and informational requirements from the Act and the Regulations 310 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 Aces and Bylaw's interests and a final Order of Conditions is issued approving the work. 1. The NACC finds that the NOI 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". The alternatives analysis presented by the applicant included only one alternative to constructing the proposed project, that which was presented in the NOI 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 NOI 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 #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 DEP's 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 finis the lack of this information to render the NOI 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 clue 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 storinwater 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 918 TOWN OF NORTH ANDOVER OFFICE OF TOWN COUNSEL Christine P.O'Connor cocoririor@rlorthandovererra,gov 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)289 Willow Street, North Andover MA 01845 Dear Ms. Provencal, I 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(NO]) 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 onllne 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.' r 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 flied on(fill In the data)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 April of 2023 for 189 Willow 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 (1VW), as well as waivers from the 25-Foot No Disturb Zone and 50-Foot No Build Zone to the surrounding Bordering Vegetated Wetland (BVW), At the June 28t" meeting of the Conservation Commission,the Initial feedback Indicated that this Project would likely not be approved.The matter was continued by Grasso multiple times, until the October 25t1'hearing at which time Grasso requested to withdraw the NO[without prejudice, and the Commission approved his request. Grasso's original application (DEP#242-1858) was stamped received April 27, 2023, and a 21- Day Hearing Waiver granted to May 24,2023 meeting. At the May 24, 2023 meeting a 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, 2023 meeting. At the June 28, 2023 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 to the October 25, 2023 meeting. At the October 25, 2023 meeting a request to withdraw without prejudice was received and granted.' On November 8,2023,just 10 business days later, Grasso resubmitted a new NOI for a Project proposal for 189 Willow Street.The new submittal was substantially similar to the original request, but for a slight reduction In the size of the commercial building by roughly a 1,000-sf, and a reduction of 1,000-sf In the scope of area to be 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 be a Public Hearing on his application on December 13, 2023 at 7,00 P.M. in the Board of Selectmen Meeting Room, Town Hall, 120 Main Street, North Andover, MA,The December 131h meeting was the next scheduled meeting of the Commission, Although the November 15ti' meeting followed Grasso's November 8111 submission, there was not enough time for either Grasso, nor the Town to z It Is 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 same 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 lie requested a 30- day extension;July 5 lie requested a continuance until August;on August 23, Grasso requested a continuance until October 314,on October arc#the Planning Board granted a continuance until November 7, on October 23,Grasso requested a request 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 29"1 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 30"',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(N01) an SOC must be Issued. DISCUSSION There is no question that the scheduled December 13t"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 Feld 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, §23B," 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- day period, Subsection (b) provides as follows: 111.)without the consent of the applicant to a date, announced at the hearing,within 21 days, of receipt of the Notice of Intent; 2.) with the consent of the applicant, to an agreed-upon date, which shall be announced at the hearing; , . ." See: 310 CMR 10.05 (5)(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 Is not Included In sub-part (2). Although, like the Act,the regulations don't expressly speak to a waiver, they do speak to the-speciflc conditions under which applications are allowably stretched beyond the 21-day period. In Garrity, the Supreme Judicial Court held that In neither the Act, nor its accompanying regulations is there any evidence of a legislative intent to"bar [a] waiver of any statutory time 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, at 779, headnote 1. Here, all of those conditions are met. In this matter, the applicant has waived the 21-day period. When Grasso noticed the abutters of his NOI,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: 310 CMR 10.05, In the Grasso's notice, he informs the town and abutters to his proposed project that the public hearing Is going to be on December 13, 2023 at 7:00 P.M. In addition,the filing Includes 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, and as with the Initial NOI application paid for that legal notification.The legal notification for 4 this new NO] was published in the Eagle Tribune on December 6, 2023, 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 a public hearing on his NOI, and notifying abutters of that date, has placed himself within the provisions of 310 CMR 10.05 (5)(b)(2) in that he and the Town were In agreement as to when 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-day regulation. Grasso's actions satisfy the requirements of a waiver as set forth in Garrity, Grasso's 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 13t1' 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, should it proceed before the Commission, may ultimately be seen as substantially similar to the first, unsuccessful NO1 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 would be heard at the regularly scheduled December 13t11 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 21-day period. 5 In his appeal to DEP, Grasso cites Boston Clear Water Company v. Town of Lynnfield for the proposition "the Commission loses Its 'Home Rule' wetland bylaw control by failure to convene the public hearing by the deadline of 21-days from the filing of the Notice of Intent." Boston Clear Water Company, LLC, v. Town of Lynnfield& another(slip opinion)January 26, 2022. 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 BCWC's assent." But the Town sees this case relevant on other grounds. In Its opposition to the SOC, the Town of Lynnfleld 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-business days) refiling of an application substantially similar to the original; his silence when, in good faith, the Commission twice contacted him about the Waiver; his notice to the abutters of a meeting date that he now seeks to avoid on the grounds that It Is beyond the 21-day period; and his Immediate request on the 22"d day to the DEP for an SOC --together give substance to the warnings articulated In the Boston Clear Water case, of the possibilities of bad faith, tactical filings. Grasso's request to the 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: Kelley& others v. Planning Board of Dennis, 6 Mass. App. Ct. 24 (1978). Respectfully submitted on behalf of the North Andover Conservation Commission, Christine O'Connor North Andover Town Counsel cc: North Andover Conservation Commission Amy Maxner,Administrator to the North Andover Conservation Commission Jean Enright,Administrator to the North Andover Planning Board Wetlands Program 6 1F3D Wilfo4v Street,North Andover X Q ' Shorr:earcii iLa�lG fog tEi9 VJil#orr Sl.. L€h11T Of ,i1�� I s�uor 'tl� Inpul :WwA M To print NFHL FIRMette or Fuli FIRM: fi 1)Click the pin tool,and click on the map to place the pin. 2]Choose to create a print-iSze FIRMe€te or full-size a` FIRM. s 3)Press*Execute"-The process may take up to 1DUFFS R minute. AU a .:slloy r � Sizes 1 FIRMETTE t File Format' ' ,.