HomeMy WebLinkAbout05/08/2020 - Request for Advisory Opinion - - 1450 Osgood Street uP '
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Executive Office of Energy and Environmen tal(Affairs
100 Cambridge Street, Suite 900
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Charles D.Baker
GOVERNOR
Karyn E.Polito
LIEUTENANT GOVERNOR Tel:(617)626-1000
Kathleen Theoharides Fax:(617)626-1081
SECRETARY http://www.mass.gov/eea
May 8, 2020
By E-mail
David Hewett
Epsilon Associates, Inc.
3 Mill & Main Place, Suite 250
Maynard, Massachusetts 01754
Re: Request for Advisory Opinion
1600 Osgood Street, North Andover, MA
Dear Mr. Hewett:
I write in response to your letter of March 13, 2020, requesting an advisory opinion on
behalf of 1600 Osgood Street, LLC/Osgood Landing, LLC, c/o Ozzy Properties, Inc., in
relation to the above project. Your request necessitated consultation with the Massachusetts
Department of Environmental Protection (MassDEP), Department of Energy Resources (DOER),
and the Natural Heritage and Endangered Species Program (NHESP), which provided responses
on April 3 and 21, and May 4, 2020, respectively. You also provided supplemental information
to this office on March 31, April 22, and May 7, 2020.
Your letter seeks a determination that a proposed redevelopment project at 1600 Osgood
Street in North Andover is not subject to review under the Massachusetts Environmental Policy
Act (MEPA) and its implementing regulations. Specifically, you assert that the project does not
meet or exceed any of the MEPA review thresholds listed in 301 CMR 11.03.
Project Description
According to your letter, the project site currently consists of four industrially-zoned
parcels totaling approximately 168 acres (7.3 million sf)between Osgood Street(Route 125) to
the east and an MBTA railroad right-of-way (ROW) and the Merrimack River to the west. The
site extends north to nearly the border with Haverhill and to Holt Road to the south. The project
D. Hewett Advisory Opinion May 8, 2020
site has four entrance drives onto Osgood Street (Route 125), which is under the jurisdiction of
Massachusetts Department of Transportation (MassDOT).
Your letter indicates that most of the property is currently developed with a large office
and manufacturing complex surrounded by paved areas used for parking and other uses. The
total impervious area of the site (including buildings and paved areas) is estimated to be 86 acres
(3.7 million sf, or about 5 1% of the total project site),' and there are 6,485 parking spaces. The
remaining portions of the site are identified as 39 acres of"landscaped, graded and interstitial"
(but still pervious) spaces and 42 acres of"undisturbed" areas. The undisturbed areas consist
mainly of wetlands, including Bordering Vegetated Wetland(BVW) and its buffer zone,
Riverfront Area, and Bordering Land Subject to Flooding (BLSF); you indicate that wetlands
delineations were confirmed by a vote of the North Andover Conservation Commission on
January 8, 2019.
As described in your letter, the project would involve demolition of 1.5 million sf of
industrial buildings2 and other related activities to create a new building layout for a"specialized
fulfillment center." Parking will be reduced to 3,500 spaces for the office building, warehouse
and trailer use combined. The project will raise the site between 5- and 10-feet (ft) which will
require approximately 30,000 cubic yards (cy) of fill material (including both fill for the site and
topsoil for landscaping) to be brought to the site. You estimate that the project would affect a
total of about 110 acres through the following activities:
• Removal of pavement and associated infrastructure where the proposed building layout
necessitates;
• Regrading of portions of the site (without any blasting); and
• Building demolition and construction staging
Your letter did not provide calculations showing the exact square footage and types of
land covers that would be impacted by the project. However, based on supplemental information
provided by you, I understand that the project will primarily impact impervious areas associated
with the building footprint and other related spaces (such as parking) (about 86 acres total), as
well as other"landscaped, graded or interstitial" areas between and among buildings (about 16
acres). In addition, two small undeveloped areas of the site totaling 1 acre (previously estimated
to be 6 acres) will be disturbed to expand the building footprint and relocate a ground-mounted
solar array from another location.
1 Your letter references 81 acres of impervious area, but the attached Figure 5A and supplemental
information provided on April 22, 2020 estimate impervious area to be 86 acres.
2 This square footage (1.5 million sf, or 34.4 acres)is inconsistent with Figure 5A and supplemental
information,which calculate the building footprint under existing conditions as approximating 22 acres.
Nevertheless, I understand your letter as indicating that the overall building footprint will remain
unchanged, as the project intends to modify the building layout to accommodate a new use.
D. Hewett Advisory Opinion May 8, 2020
Overall, the project will reduce impervious cover, and increase pervious areas through
landscaping and stormwater management features. A summary of land cover changes associated
with the project is as follows:
Land Cover Type Existing (acres) Proposed (acres) Change (acres)
Total impervious area 86 72 -14
Building footprint (included in 22 22 N.A.
impervious area)
Landscaped, graded and 39 54 +15
interstitial areas (pervious)
Undeveloped areas 42 41 -1
Total 167 167 N.A.
The site is served by the municipal (North Andover)water department, and sewerage by
the Greater Lawrence Sanitary District (GLSD) with treatment provided at GLSD's wastewater
treatment plant located approximately one mile south of the project site. Your letter indicates that
water supply and sewer capacity are not anticipated to be affected by the project.
Determination
Your letter asserts that MEPA review is not required for this project because, while an
Agency Action is required, no MEPA review thresholds are met or exceeded.
As you know, MEPA review is required for any work,project, or activity that is directly
undertaken by an Agency, or if undertaken by a Person, that seeks the provision of Financial
Assistance or requires the issuance of a Permit from an Agency, provided that relevant review
thresholds are met or exceeded. See M.G.L. c. 30, §§ 61-62; 301 CMR 11.01(2)(a). The requisite
"Agency Action" for projects undertaken by a Person could include a Permit, Financial
Assistance or a Land Transfer, as these terms are defined in 301 CMR 11.02.
Agency Action
You acknowledge that an Agency Action is required for the project in the form of a
MassDOT Vehicular Access Permit; however, as discussed below, you argue that the MEPA
review thresholds for traffic impacts are not implicated. Because these thresholds mirror those in
MassDOT Access Permit regulations, it appears from MassDOT's January 31, 2020 letter that an
Access Permit will be required for anticipated traffic improvements in and around the site
driveway, but not for increased traffic impacts. See 720 CMR 13.02 (definition of"Vehicular
Access Permit," subsection (b)).
Your letter indicates that other potential Agency Actions are not applicable to this
proj ect, including Financial Assistance, Land Transfer, MassDEP Superseding Order of
Conditions, MassDEP 401 Water Quality Certification, and MassDOT's consent to use former
D. Hewett Advisory Opinion May 8, 2020
railroad ROWs under M.G.L. c. 40, § 54A.3 I find it unnecessary to issue any opinion on these
alternative grounds for MEPA jurisdiction, as the failure to trigger any MEPA review thresholds
would preclude MEPA review in any event (absent a Fail-Safe Review under 301 CMR 11.04).
MEPA Review Thresholds
Your letter argues that this project will not meet or exceed any relevant MEPA
thresholds, as discussed below.4
➢ Land Alteration
The review thresholds for land alteration at 301 CMR 11.03(1) are as follows:
(a) Environmental Impact Report (EIR)
1. Direct alteration of 50 or more acres of land
2. Creation of ten or more acres of impervious area
(b) Environmental Notification Form (ENF)
1. Direct alteration of 25 or more acres of land
2. Creation of five or more acres of impervious area
Your letter asserts that the term "direct alteration," which is not defined in the MEPA
regulations, should be construed as excluding areas that are "already built upon or paved." I do
not find a basis in the MEPA statute or regulations to support this blanket rule, which potentially
could extend to any areas that were previously "developed" in some way. For instance, your
letter indicates that the project site currently contains up to 39 acres of pervious areas around the
perimeter of the site (including landscaped recreational fields and open space) that were
previously developed or altered; work conducted in these areas could benefit from a review of
environmental impacts and alternatives. The MEPA Office has also reviewed projects affecting
previously developed sites such as former sand and gravel mines, where the existing altered land
cover serves as rare species habitat or provides other environmental benefits. Even with purely
paved surfaces, severe grading changes and other related activities could have stormwater
management or off-site flooding implications that would need to be mitigated. These and other
relevant factors should be considered on a case-by-case basis to determine whether, and to what
extent, a particular project will alter the existing character of the land.
In this case, the supplemental information provided by you has shown that this project
would not(or would minimally) impact the pervious areas around the perimeter of the project
site, and, instead, would alter only about 16 acres of"landscaped, graded or interstitial" areas
between and among existing buildings, in addition to impervious areas that will be demolished
and reconfigured but still maintained in an impervious state (and also reduced in size). An
3 While site plans show an MBTA railroad to the west of the site,you have also confirmed that no work
will occur within the 30-foot"zone of influence" of the MBTA right of way such that a separate permit
would be required for such work. See https://www.mbtareally.com/licenses/.
4 In addition to the thresholds discussed below, it does not appear that this project is located within
Estimated Habitat of Rare Wildlife or Priority Habitat as indicated in the Massachusetts Natural Heritage
Atlas (14th Edition), or an Area of Critical Environmental Concern(ACEC). Thus, the thresholds at 301
CMR 11.03(2) and(11) do not apply.
D. Hewett Advisory Opinion May 8, 2020
additional 1 acre of undeveloped land will be altered to accommodate new site uses. You have
confirmed that this project will comply with all applicable stormwater management standards,
and has obtained an Order of Conditions from the North Andover Conservation Commission.
Based on these facts, I find that this project will result in less than 25 acres of direct land
alteration. This finding shall apply o to the facts and circumstances of this project, and shall
not serve as precedent for future projects.
➢ Wetlands
The relevant review thresholds at 3 01 CMR 11.03(3) related to wetlands are as follows:
(a) EIR
1. Provided that a Permit is required:
b. alteration of ten or more acres of any other wetlands.
(b) ENF
1. Provided that a Permit is required:
f. alteration of 1/2 or more acres of any other wetlands.
Your letter indicates that the project will impact approximately 3 60,894 sf of Riverfront
Area and approximately 348,000 sf(77, 584 cubic feet(cf)) of BLSF (which are overlapping
designations). Compensatory flood storage will be provided in two on-site locations, resulting in
an overall net increase of 54,417 cf of flood storage. While these areas collectively may exceed
the 1/2-acre ENF or 10-acre EIR threshold, you have indicated that the project has obtained an
Order of Conditions that was not appealed. Thus, no State Permit related to wetlands will be
needed in the form of a Superseding Order of Conditions from MassDEP.
While I agree that the wetlands thresholds are not implicated for this project, I note that
the relatedness of these review threshold to required Permits should be examined on a case-by-
case basis. The MEPA regulations at 301 CMR 11.03 provide for MEPA review when, inter alia,
a review threshold is met or exceeded, and the subject matter of the threshold is "conceptually or
physically related to the subject matter of one or more required Permits (provided that the review
thresholds for Land and Areas of Critical Environmental Concern shall be considered to be
related to the subject matter of any required Permit)." For instance, if the traffic improvements
for which a MassDOT permit is needed would separately impact wetland resources, the above
thresholds may be sufficient to require MEPA review. Supplemental information provided by
you indicates that the traffic improvements anticipated for this project include upgrades to the
traffic signals at two of the existing site drives, creation of a left-turn lane on the northbound
approach to the southerly site drive, and the addition of shoulders. You have confirmed that these
improvements will not impact any delineated wetland resource areas, and site plans show that the
MassDOT roadway (Route 125) does not abut the delineated areas.
➢ Water and wastewater
The relevant review thresholds at 301 CMR 11.03(4)-(5) related to water and wastewater
are as follows:
D. Hewett Advisory Opinion May 8, 2020
(4)(b) ENF (water)
2. New withdrawal or Expansion in withdrawal of 500,000 or more gpd from a water
supply system above the lesser of current system-wide authorized withdrawal volume
or three-years' average system-wide actual withdrawal volume.
(5)(b) ENF (wastewater)
4. New discharge or Expansion in discharge:
a. to a sewer system of 100,000 or more gpd of sewage, industrial waste water or
untreated stormwater;
Your letter states that the project will rely on existing municipal infrastructure, and will
discharge approximately 100,000 gallons per day(gpd) of sewage. Given that the existing
development has a sewer demand of 61,000 gpd, the Expansion of discharge attributable to the
project appears to be about 39,000 gpd. Although your letter does not specify corresponding
volumes for water supply, based on the typical conversion factor of 1.1, the increase in water
demand attributable to the project appears to be about 42,900 gpd. These volumes do not
implicate the ENF thresholds indicated above.
➢ Traffic
The relevant review thresholds for traffic at 301 CMR 11.03(6) are as follows:
(a) EIR
6. Generation of 3,000 or more New adt on roadways providing access to a single
Location
(b) ENF
13. Generation of 2,000 or more New adt on roadways providing access to a single
Location
14. Generation of 1,000 or more New adt on roadways providing access to a single
location and construction of 150 or more New parking spaces at a single location
Your letter indicates that the Proponent has worked with MassDOT to develop a site-
specific methodology for estimating the increase in average daily vehicle trips (adt). Your letter
attaches correspondence from MassDOT, which confirms that no ITE Land Use Codes could be
identified for the land uses associated with this project. The Proponent, in consultation with
MassDOT, conducted an alternative analysis, which concluded that the net New adt for this
project would equal 1,868 adt. This level does not exceed the 2,000 adt trips triggering the need
for MEPA review. Since parking spaces will be reduced, the thresholds applicable to New
parking spaces do not apply.
➢ Historical and Archaeological Resources
The relevant review thresholds at 301 CMR 11.03(10) are as follows:
(b) ENF. Unless the Project is subject to a Determination of No Adverse Effect by the
Massachusetts Historical Commission(MHC) or is consistent with a Memorandum of
Agreement with the MHC that has been the subject of public notice and comment:
1. demolition of all or any exterior part of any Historic Structure listed in or located in
any Historic District listed in the State Register of Historic Places or the Inventory of
D. Hewett Advisory Opinion May 8, 2020
Historic and Archaeological Assets of the Commonwealth; or
2. destruction of all or any part of any Archaeological Site listed in the State Register
of Historic Places
Your letter indicates that a portion of the project site near Osgood Street falls within a
pre-contact archaeological site (#19-ES-156) as shown on MassGIS. The Proponent has
requested permission from MHC to conduct a full archaeological survey, and is awaiting a
response. While the project expects to obtain a Determination of No Adverse Effect or enter into
an MOU with the MHC, it is unclear at this point whether this exemption would apply. The
Proponent is directed to consult with the MEPA Office if further consultation with MHC
indicates the need for MEPA review prior to the taking of Agency Actions.
➢ Climate Change
The MEPA statute directs all State Agencies to consider reasonably foreseeable climate
change impacts, including additional greenhouse gas emissions, and effects, such as predicted
sea level rise, when issuing permits, licenses and other administrative approvals and decisions.
M.G.L. c. 30, § 61. In turn, the MEPA Greenhouse Gas (GHG) Policy and Protocol requires
EIR-level projects to quantify carbon dioxide (CO2) emissions and identify measures to avoid,
minimize or mitigate such emissions.
Given the size of this project (total impacts to 110 acres of a 168-acre site), this project
most certainly would require EIR review, if the land alteration or wetlands thresholds were
applicable under the analysis above. Comments from DOER suggest key considerations for
warehouses/large footprint buildings of this size to assess to minimize energy use and CO2
emissions, including efficient building envelopes, solar-ready rooftops, and electrification of
space and water heating. I appreciate your confirmation that the Proponent will continue to
maintain an existing 6-MW solar installation on the site, and sell electricity generated by this net
metering facility to the municipality at a discounted rate. I encourage the Proponent to lead by
example by exceeding minimum building code requirements through aggressive energy
efficiency and electrification measures.
Based on the foregoing, and in consultation with State Agencies, I hereby find that
MEPA review is not required for this project. While an Agency Action is required, no MEPA
review thresholds will be met or exceeded.
Very truly yours,
Is/Tori T. Kim
Tori T. Kim
Assistant Secretary
cc: Rachel Freed, MassDEP
Gary Moran, MassDEP
Paul Ormond, DOER
Jesse Leddick, NHESP