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HomeMy WebLinkAboutMiscellaneous - 18 Willow StreetJ a4a- P6 14 J N CONSERVATION DEPARTMENT Community Development Division November 6, 2014 RE: RELEASE OF ENFORCEMENT ORDER -18 Willow Street, North Andover, MA To Whom it May Concern: At the November 5, 2014 public meeting, the North Andover Conservation Commission (NACC) voted to release the Enforcement Order issued to Paul Mscisz for violations of the Massachusetts Wetlands Protection Act and the North Andover Wetlands Protection Bylaw at 18 Willow Street, North Andover, MA. The Enforcement Order was issued on May 14, 1993 and recorded on May 19, 1993 at the North District Essex Registry of Deeds (Bk 3732 Pg 193). A file review shows that the violation was remediated as part of an Order of Conditions issued under DEP File #242-676 (issued on October 20,1993). The project, as approved under DEP File #242-676, received a Certificate of Compliance (COC) on December 2, 1998. The Certificate was recorded on September 30, 1999 (Bk 5566 Pg 130). The recording of the COC resolved all violations cited in the enforcement order (Bk 3732 Pg 193). Copies of the applicable documents are attached. Please let me know if you require anything further. Respectfully, NORTH ANDOVER CON ERVATION DEPARTMENT ann Nv V J 'ferA. ughes onservation Administrator 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 978.688.9330 Fox 978.688.9542 Web www.towaotnorthandovei.com LINIT O) STATES POSTAL SERVICE o y G ) ii ryt Official Business PENALTY FOR PRIVATE'S USE TO AVOID PAYMENT - 3 ' OF POTAGE, $300 Print your name, address and ZIP Code here R.Doucette c/o Town Hall 120 Main Street North Andover, MA 01845 [fi!!!!!! ^' SENDER: m 32 •Complete items Land/or 2 for additional services. I also wish to receive the 0 • Complete items 3, and 4a & b. following services (for an extra V • Print your name and address on the reverse of this form so that we can fee): m return this card to you. m • Attach this form to the front of the mailpiece, or on the back if space 1. ❑ Addressee's Address to does not permit. d • Write "Return Receipt Requested" on the mailpiece below the article number. t 2. Restricted Delivery m �•• • The Return Receipt will show to whom the article was delivered and the date C delivered. Consult postmaster for fee. m -0 3. Article Addressed to: 4a. Article Number m P 406 914 687 Paul Mscisz 4b. Service Type cc 0 18 Willow Stret•` ❑ Registered ❑ Insured North Andover, •1,45 Certified ❑ COD E •y w 6. Signature (Agent) ` 0, 1 r w PS Form ❑ Express Mail ❑ Return Receipt for 5 Merchandise L 7. Date of Delivery w 0 a 8. Addressee's Address (Only if requested Y and fee is paid) m t H , December 1991 * U.S.G.P.O.:1992-307-530 DOMESTIC RETURN RECEIPT S OF r NOwTiy ,h KAREN H.P. NELSON r Director a Town of m NORTH ANDOVER BUILDING ��'=:::;a • .a CONSERVATION ss�°" g`s DIVISION OF PLANNING PLANNING & COMMUNITY DEVELOPMENT May 14, 1993 Mr. Paul E. Mscisz 18 Willow Street North Andover MA 01845 Dear Mr. Mscisz: 120 Main Street, 01845 (508)682-6483 Enclosed is another Enforcement Order for a violation of the State Wetlands Protection Act and the North Andover Wetlands Protection Bylaw on your property. You have been informed on several occasions that any filling, grading or other alteration of land in the rear of your property requires a permit from the Conservation Commission. You have ignored our past direction and we are now forced to take additional action. This Enforcement Order has been recorded at the Registry of Deeds and will act as a lien on your deed. This will create difficulties in selling or refinancing the property. This matter will be turned over to the Department of Environmental Protection's enforcement personnel as well. The Conservation Commission will discuss this matter at the Senior Center at 7:00pm on May 19th. I urge you to attend this meeting. Respectfully, T Richard P. Doucette, Conservation Administrator Town of North Andover MA 310 CMR 10.99 Form 9 :`' .. i:. 1 --777-71 _ Commonwealth +-+ _ of Massachusetts From To DEP File No. I None (Io oe provided by DEP) City told„ NorLll Andover, HA Aoolicanl Mscisz Enforcement Order Massachusetts Wetlands Protection Act, G.L. c. 131, §40 AND UNDER THE TOWN OF NORTH ANDOVER BYLAW, CHAPTER 3, SECTION 3.5 North Andover Conservation Commission Paul Mscisz Date of Issuance May 14 1993 Property lot/parcel number. address 18 Willow St., North Andover, MA Extent and type of activity: Issuing Authority The filling of land and stockpiling of soil immediately adjacent, and possibly -in, a bordering vegetated wetland. The North Andover Conservation Commission has determined that the activity described above is in violation of the Wetlands Protection Act. G.L. c. 131, §40, and the Regulations promulgated pur- suant thereto 310 CMR 10.00, because: ZxXSaid activity has been/is being conducted without a valid Order of Conditions. ❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to . dated File number 242- , Condition number(s) txXOther (specify) The landowner was informed on previous occasions that the area in question is a wetland and to stop work. Letters, Enforcement Orders and verbal direction from the Conservation Commission have not resulted in compliance. Now new filling and stockpiling has begun on the property. The North Andover Conservation Commisslon hereby orders the following: �gThe property owner, his agents, permittees and all others shall immediately cease and desist from further activity affecting the wetland portion of this property. aXWetland alterations resulting from said activity shall be corrected and the site returned to its original con- dition. fel Issued by North Andover Conservation Cornrnrssior, XikX Completed application forms and plans as required ov the Act and Regulations shall be Ided v: ith the North Andover Conservation Comrnissigllor before _ (date) and no further work shall be performed until a public nearing nas been held and an Order of Conditions has been issued to regulate said work. Application forms are available at. N11CC 017 f ice 120 PaJn St., ('Town Ila 11) XIX The property owner shall lake every reasonable sleo to prevent further violations of the act No. Andover,MA XX3X Other (specify) Tel. #682-6483 01845 This matter will be discussed at the May 19, 1993 Conservation Commission meeting. The Commission will discuss the potential for legal action at that time. You are hereby directed to attend that meeting at 7:00pm in the Senior Center adjacent to Town Hall. Failure to comply with this Order may constitute grounds for legal action. 10assachusetls General Laves Chan. ter 131. Section 40 provides: Whoever violates any provision of this section shall be punished by a fine of riot r1lote than twenty-five thousand dollars or by imprisonment for riot more than two years or both Each day or portion thereof of continuing violation shall constitute a separate ollense Questions regarding this Enforcement Order should be directed to u; cliard na„cette__ Issued by North Andover Conservat: Signatures, (Administrator) n Commission 9.25 (S10na1Ure of dE1,1nverr t, r'101, or certifiec mail nUmbor) RECE FCR: HAY 19 3 07 P '93 NORTH DISTRICT ESSEX REGISTI:Y OF' DEED LAWY,ENCE MA 01,940 WIN REGISTER OF DEEDS T 7v 310 CMR 10-99 Form 5 r 477 Commonwealth of Massachusetts Vaka � #18 Willow Street Order of Conditions DEPFUNo.242-676 (To a, orwop vy DEP) GH 1'owe North Andover Aooucant Paul T. Mscisz Massachusetts Wetlands Protection Act O.L. c. 131, §40 and under the Town of North Andover's Wetlands Bylaw, Chapter 178 From NORTH ANDOVER CONSERVATION COMMISSTO me To Paul T Sa (Name of Applicant) (Name of property ownerl 18 Willow Street L a Mn 01845 Address Adcress 1`oL'-" This Order is issued and delivered as follows: (date) ❑ by hand delivery to aeciicant or representative on ��9��i (date) (! by certified mail. return receipt reoueste: on This project is located at 418 Willow Street The property is recorded at trie Regtstryof Deeds North Essex ISCO 3120 Page 83 Certificate (it re_istered) The Notice of intent for this oroject was fileC On October 12 1993 (Cate! The public nearing was closed on October 20, 1993 (Cate) Findings NACC has reviewed the above -referenced Nonce of The Intent anc =tans anc nas Hera a cuciic.heanng on the c: Cj:.t. Based on the inform aeon avatiapfe to the NACC has oetermined that NACC at this time, the the area on wntch the proposed work is to be cone is significant to the following interests in acccroanct: with the Presumctions of Sionificarsce set forth in the re;ula:ions `.or each Area Subject to Protection Under the Act heck zs aperopnatel: Ch. 178 � Prevention of erosion and sedimentation Flood controi L� Land containing shellfish Pubiic water supciy (j Fisheries Private water supply `i Storm damage prevention . � Ground water supply Prevention of poituuon (� Proteon of wildlife hardO% Ch.17 ecreat on Ch. 178 ® Wildlife Slate Share > t 9 5� Total Miing Fee Submittedt c Citvi town Share W �7 50 (�� fee in excess c...c—a, c City(Town Portion c State Portion S Total Refund Due. _ (,/z total) ('/z total) "ACC 10/7/92 Page 3 Lots 24 25 26 311 32A Vest Wa Al Shaboo presented - Notice plans for the Lot 24: R.Doucette single family homes. setbacks stated filling of land to meet is no otllowe stated this t Septic system he No. Andover Wetland R.Doucette his lot was once under Regs' subdivision stated ownership information Ownership. not was aPProved. rmation is needed is on Vest `butters, since stated this Way, it is Is Daley stated that the wetland in fact on Brid es lot 24 Abutter Mr. Drawbridge may affect g Lane. Mr. Bernat g questioned runoff on his pros also the hydrological the impact on Ydrologic impacts, petty, h data ydrological anal s' the trees. Abutter is not included,is is incomplete Abutter stated R•Milliard to continue Motion and the Post development to 10/21, by p•Tariot and secondeament ot 25: Filling is by Hydrologic calculations no closer that 70. Motion by P.Tariot also incomplete. from the wetlands. and seconded by K.Foley to continue to Lot 26: Motion b and issue y R.Milliard 10/21• a decision within and seconded b 21 days. Y G•Reich to close Lot 31A: This system. This project requires and runoff is generally filling wetlands seconded b calculations y not allowed. Ownershipfor Septic Y R.Milliard to continue ed. Motion y .Tar° information rdre Lot 32A: to 10/21. b and 651. Work is no closer Motion by P.Tno c than 351. No -construction issue a decision within and seconded b 21 days. Y R.Milliard Zone is to close and NEW BUSINESS 18 Willow Street Motion by R,Millia rd scussion of violation Enforcement Order, and seconded by P.Tariot to issue an Motion btton Lane 242-207 Y R.Mansour and secondedartial Com fiance Compliance. Vote 5-1-0p,Z'ariotbagainst. R;Milliard a to issue Partial Lots 1 & 2 Holl Motion by Rid a �2�4�34Partial Comiancester andedP b ial Com fiance Vote 5-1-0 y R•Milliard to p•Tariot against, issue a I 4 ALAN L. GRENIER MICHAEL P. McCARRON JAMES M. NORRIS JOHN RICHARD HUCKSAM, JR. STEPHEN D. GUSCHOV GRENIER & MCCARRON ATTORNEYS AT LAW 100 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS, MA 01923 (508) 777-7000 TELECOPIER (508) 7776803 CERTIFIED MAIL RETURN RECEIPT REQUESTED and FIRST-CLASS MAIL ' Ms. Winifred Gallant 191 Andover By -Pass North Andover, Massachusetts 01845 Dear Ms. Gallant: OF COUNSEL JEFFREY A. SCHREIBER JAMES J. MEEHAN October 13, 1993 RE: Notice of Public Hearing Notice of Intent Paul T. Mscisz 18 Willow Street North Andover, Massachusetts On behalf of Paul T. Mscisz, I hereby give you notice of a public hearing of the Town of North Andover Conservation Commission regarding the above -captioned matter to be held on Wednesday, October 20, 1993 at 8:00 p.m. in the Senior Citizen Center located at the rear of Town Hall, 120 Main Street, North Andover. I have enclosed herewith and hereby incorporate by.reference herein the "Conservation Commission Public Hearing" notice regarding this matter. ery truly your iohn Richar Hu JRH:eaf Enclosure cc: Mr. Paul T. Mscisz cc: Town of North Andover Conservation Commission y OF �10R iN ,� i{99 AREN It.P. NELSON t '� TOWN Of 120 Main Street, 01845 Director - (508) 682-6483 BUILDING NORTH ANDOVER ;: ::::"s• �� CONSERVATION ss'°" 5`� DIVISION OF HEALTH PLANNING PLANNING & COMMUNITY DEVELOPMENT CONSERVATION COMMISSION PUBLIC HEARING Pursuant to the authority of the Wetlands Protection Act, Massachusetts General Laws Chapter 131, Section 40, as amended, and the Town of North Andover's Wetland Protection Bylaw, the North Andover Conservation Commission will hold a Public Hearing on Wednesday, October 20, 1993 at 8:00 P.M. in the Senior Citizen's Center located at the rear of Town Hall, 120 Main Street, North Andover, MA on the Notice of Intent of Paul T. Mscisz to alter land at 418 Willow ow Street for the purposes of restoration of altered resource area and installation of riding track and fence partially in the buffer zone. Plans are available at the Conservation Commission's Office, Town Hall, 120 Main Street, North Andover, MA on weekdays from 8:30 A.M. to 4:30 P.M. and by appointment. Run once North Andover Citizen cc: N.A.C.C. Applicant's Rep. D.E.P. By: George L. Reich, Chairman N.A.C.C. ON October 13, 1993 LEGAL NOTICE TOWN OF NORTH ANDOVER Pursuant to the authority of the Wetlands Protection Act, Massachusetts General laws Chapter 131, Section 40, as amended, and the Town of North Andover's Wetland Protection: Bylaw, the North Andover Conservation Commission will hold a Public Hearing on Wednesday, October 20, 1993 at 8:00 P.M. in the Senior Citizen's Center located at the rear of Town Hall, 120 Main Street, North Andover, MA on the Notice of Intent of Paul T. Msdaz to after land at #18 Willow Street for purposes of restoration of altered resource area and installation of riding track and fence partially in the buffer zone. Plans are available at the Conservation Commission's Office, Town Hall, 120 Main Street, North Andover, MA on weekdays, from 8:30 A.M. to 4:30 P.M. and by appointment By. George L Reids, Chairman N.A.C.C. NAC: 10/13/93 r ., AJE ,•a l �` , a 4.pr ` vet! � 1` `� :' f ' .r t r , ... — . October 29, 1993 Mr. Richard Doucette North Andover Conservation Commission 120 :lain Street North Andover, MA 01845 Re: Dear Mr. Doucette: Wetland Restoration 18 Willow Street North Andover, MA 01845 As required, the following status report has been prepared to notify the North Andover Conservation Commission (NACC) of the current status of the wetland restoration area located on 18 Willow Street in North Andover, Massachusetts. On October 25, 1993, Wetlands Preservation, Inc. (WPI) met at the site with the property owner and the site contractor, C&M Realty, Inc., 89 Dayton Street, Danvers, MA 01923, and reviewed the criteria for the restoration construction sequence as required in the restoration plan. WPI is also under contract to provide construction monitoring, wetland planting and subsequent status reports issued to the NACC. Construction of the wetland restoration area shall commence upon court approval. If you have any questions or require additional information on the above project, please feel free to contact us at your convenience. Very truly yours, 76W161 - W. Cygan ETLANDS i BII ■,RESERVATION INC. October 29, 1993 Mr. Richard Doucette North Andover Conservation Commission 120 :lain Street North Andover, MA 01845 Re: Dear Mr. Doucette: Wetland Restoration 18 Willow Street North Andover, MA 01845 As required, the following status report has been prepared to notify the North Andover Conservation Commission (NACC) of the current status of the wetland restoration area located on 18 Willow Street in North Andover, Massachusetts. On October 25, 1993, Wetlands Preservation, Inc. (WPI) met at the site with the property owner and the site contractor, C&M Realty, Inc., 89 Dayton Street, Danvers, MA 01923, and reviewed the criteria for the restoration construction sequence as required in the restoration plan. 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On October 21, ]9-9-3-, all wetland restoration efforts were completed as specified in the Order of Conditions and the Wetland Restoration Plan prepared by Wetlands Preservation, Inc. (WPI). Prior to any construction activities within the restoration area, the erosion control devices (buried silt fence and double staked hay bales) were established along the southeastern corner of the lot where surface drainage exits the site via a 12" RCP. The constructed erosion control was tied into an existing hay bale and silt fence barrier to the south and the stonewall to the east. The stonewall ru::s alung %ile eastern edge of the ie!i:uia: un area and wili prow de adequate protection against loss of material into the adjacent habitat. Restoration area construction and grading were performed by the site contractor, C&M Realty, Inc., with construction monitoring provided by WPI. The edge of the wetland restoration area boundaries were delineated by pin stake flagging. Upon completion of the wetland delineation within the area of disturbance, the site contractor initiated the required construction efforts to restore grades to approximate original elevations. To prevent excessive disturbance and soil compaction, excavation of the fill material was initiated along the eastern edge of the property, working back towards the adjacent upland. To properly restore and expose the original wetland soils, several test holes were dug as the fill material was skimmed off. In a couple of areas where past activities have removed stumpage, voids were created and required excavation and backfilling with organic topsoil to bring back to original grade. Several microtopographic 569 North Street 47 Newton Road 126 Wildcat Road Georgetown, MA 01833 Plaistow, NH 03865 Barrington, NH 03825 (508] 352-7903 (603) 382-3435 [603] 664-7645 depressions were also created to provide niches which will increase diversity of indigenous wetland vegetation. A narrow swale was also discovered and restored during excavation activities adjacent to the eastern stonewall. All fill material removed from the wetland restoration area including woody debris was trucked away from the area and deposited in an adjacent upland located outside of the resource buffer zone. To help prevent possible erosion and sedimentation into the restored wetland, dug in silt fence was constructed above the wetland edge. In restoring the 24,419 sq_, ft, wetland habitat area, the following wetland tree and shrub species have men se ,e.cted to be planted randomly h`r'ough­u-t,,the area on 15 foot e 75 green asO(Fraxinus pennsylvanic,�)(; �7-5 red' (Acer rubrum) , Northern arrow-wooer .(_1_burnum`cogni tum) , C40 high us-lueberxy 'Gacciniuin cory�nvosum) and Y sweet pepperuu h (Clechra alniioiia). Tze following herbaceous vege tat n`ias also be.eri-pl"anted throughout the area: 40____1 cinnamon fern (Osmunda cinnamomea), 40 sensitive feA (Onoclea sensibilis) and 40 royal fern (Osmunda regalis). To prevent--excessive activities from occurring within the restoration area, the following species have been chosen as a buffer planting: 22 green ash, 22 red maple.and--22 Northern arrow-wood, all of which were randomly planted along the w2tlandfuplanri a . To promote soil stabilization through the winter, half of the 50 lbs. of the 1:1 mix of switchgrass (Panicum virgatum) and redtop (Agrostis alba) has been sown on all exposed soil surfaces throughout the area. During the spring of 1994, the remainder of the seed shall be sown. In summary, the wetland restoration area has been constructed as required in the Wetland Restoration Plan and the Order of Conditions. All construction and planting efforts were performed in such a manner to provide optimum conditions for restoration of habitat functions and site hydrology. It is also anticipated that over time and in conjunction with the wetland species planted, the vegetative community will successionally colonize with indigenous species. The area is currently stable and seeded, and with the help of sediment control, onsite erosion should be minimal. If you have any questions or require additional information, please contact us immediately. Very truly yours, �cvv J ti-,) . P Douglas W. Cygan Associate Wetland Scientist DWC:bsg #1289 e ETLANDS ly—, f / { ,RESERVATION 6' =� NC. `1 Wetland Restoration Plan Lots 22 and 23 1 Willow Street North Andover, MA i October 6, 1993 Prepared for Paul Mscisz 18 Willow Street N. Andover, MA By Wetlands Preservation, Inc. 569 North Street Georgetown, MA 01833 1 569 North Street 47 Newton Road 126 Wildcat Road Georgetown, MA 01833 Plaistow, NH 03865 Barrington, NH 03825 1`5081352-7903 f6031382-3435 f6031664-7645 Wetand Restoration Plan 18 Willow Street N. Andover, MA On September 17, 1993 Wetlands Preservation, Inc. (WPI) was retained by Mr. Paul Mscisz to conduct an evaluation of his property at 18 Willow Street in North Andover, Massachusetts. The evaluation was to provide a conclusion as to whether wetland areas jurisdictional under the Massachusetts Wetland Protection Regulations (MWPR) and/or the North Andover Wetlands By-law had been altered on the subject parcel and, if wetlands had been altered, to provide a restoration program for the parcel. WPI determined that based on several facts that the area most likely included jurisdictional wetland area and has provided herein a restoration plan to remove loam added to the area by Mr. Mscisz, to revegetate the area, and to provide demarcation of the wetland boundary by planting of a row of shrubs and trees. Site Description The subject parcel is approximately 3.5 acres in area and is bordered on the north and east by a stone wall and to the south by a sewer easement. Willow Street forms the west ■ boundary of and access to the parcel. The parcel includes two lots, Lot 22 and 23, each with a house, and accessory buildings. The parcel also has a horse stall and corral area in the eastern half of lot 23. Between 1990 and the present the easterly half of the parcel has been cleared of all trees and shrubs and appears to have been filled with loam in certain locations. The land has been graded for the horse corral and for installation of a riding track. The bed of the riding track was, according to Mr. Mscisz, under construction and grading of the land was in process when the owner was issued an enforcement order to cease further action by the N. Andover Conservation Commission (NACC). The site features, as of October 1993, are provided on a Plan of Land in North Andover, MA developed by Richard M. MacNeill dated October 6, 1993. Included in the Plan of Land is what can best be j described as WPI's best approximation of the edge of the significant fill areas (loam generally greater than two inches in depth) and/or the edge of wetland vegetation. Since the vegetation on the site was altered, all recovering vegetation is herbaceous and in various stages of maturity. Soils in the areas were sampled at a large number of locations and it was determined that most of the open field f below the flag line has a range of two to twelve inches of loam fill, with occasional deeper areas where stumps were removed and the resulting holes filled with a mixture of original topsoil, subsoil and loam. The soil profile was also disturbed in places by the grading equipment and there is evidence that wood debris is buried at one or more locations along the eastern property boundary. The overall assessment of the historic wetlands on the site is hindered by the complete loss of the original vegetative cover except along the property boundaries. WPI has previously delineated the wetland boundary on the land to the south of the subject parcel and has reviewed as part of this effort, the adjacent land to the east and north. While there are small areas of upland just offsite along the eastern boundary, wetland generally exits along the rear half of the lot on the north and south sides. These areas include wet meadow, scrub/shrub and forested swamp wetland classes. The soils within the area which was cleared were generally poorly drained hydric soils, with somewhat dryer appearing but still hydric soils in the vicinity of the corral. Review of color infrared aerial photos, dated April 17, 1985 of the site indicate tall evergreen trees in the area of the corral and based on comparisons to adjacent areas it is very likely the evergreens were white pine. This was corroborated by Mr. Mscisz. A small area of upland is located on the adjacent parcel immediately to the east of the corral and has an overstory of hickory and oak. The remainder of the overstory vegetation in the adjacent areas is ash or red maple and individual species of deciduous trees are ■ indistinguishable on the aerial photos. An additional factor which makes delineation difficult is that the adjacent wetlands to the north and east of the subject parcel have been drained for many years by a series of shallow swales. These swales were likely constructed in the early agricultural activities, in the local area, to drain the land for farming. For this reason the adjacent wetland areas have a matrix of shallow swales with significant upland vegetation on the.higher areas between the swales. These swales are a foot or less in depth and a slight increase in topography readily supports a wetland/upland vegetation mix on the dryer soils. On the basis of the hydric soil conditions on the site; the location of jurisdictional wetland areas on adjacent parcels of land; and vegetation patterns on the 1985 aerial photography WPI concludes the site very likely included an area of jurisdictional wetland and that portions of that wetland area was likely subject to alteration by Mr. Mcsicz when he cut and grubbed trees, shrubs and other vegetation from the property. A portion of the back of the parcel included a moderate sized white pine stand and an area of somewhat better drained soils seems to coincide with the pine stand. Immediately off of the property to the north of the pine stand is a small patch of upland. From this information we conclude there was also somewhat dryer areas on the property and the presence of upland area in the vicinity of the corral was likely. site Restoration It is proposed that the flag line delineated in the field and as indicated on the Plan of Land be assumed to be a historic wetland boundary and that the area between the flag lines and the boundary of the Mscisz parcel to the north, east and south be restored by removal of the fill material and replanting of the area. Additionally it is proposed that a row of shrubs and trees be placed along the wetland boundary to demarcate it as well as provide a buffer to the wetland area. As indicated above the loam fill ranges from two to twelve inches in depth. The deeper fill areas are generally along the north and east stone walls of the parcel. The fill material will be removed and the original soil surface exposed. Any areas where wood debris is found or where stumps were removed will be cleaned out and backfilled with at least six inches of high organic soil. Generally the soil excavation will be a minimal regrading of the surface of the soil. The stone wall will provide good protection against loss of material into adjacent areas. The runoff from the property generally drains to the south east corner of the field and enters a twelve inch RCP. This area is proposed to be cut off by a haybale/silt screen barrier which will tie into the erosion control already along the sewer easement and into the stone wall. Any additional area where drainage may move off the site will also be cut off by a similar erosion control barrier. Adjacent wetland areas generally are vegetated with an overstory of red maple or green ash, a shrub stratum of highbush blueberry, northern arrowweed and sweet pepper bush, and an herbaceous layer of sensitive, royal and cinnamon fern, sedges and grasses. The planting proposed for the regraded areas would provide for development of a similar vegetative mix. The proposed planting arrangement for the boundary delineation is as follows: Green ash 5 to 6 foot saplings placed alternately 10 feet on center Red maple along �he Approximaternumber ofoposed tplants land oofdeach species: 22 Arrowwood 24 to 36" plants placed on 20 foot centers along the proposed wetland boundary. Approximate number of plants: 22 The proposed planting arrangement for the area revegetation is as follows: Green ash 3 to 5 foot saplings planted Red Maple alternately on 15 foot centers throughout restoration area. Approximate number of plants of each species: 75 Northern Arrowwood 18 to 24" plants planted alternately Highbush blueberry on 15 foot centers throughout the Sweet pepper bush restoration areas. Approximate number of plants of each species: 40 Cinnamon fern plants placed alternately 15 foot on Sensitive fern center throughout restoration area. Royal fern Approximate number of plants of each species: 40 Switch grass Seeded in a 1:1 ratio mix over entire Red top restoration area. Approximate pounds of seed mix required: 50 Proposed Construction Sequence 1. Install erosion control barriers at the south east corner of field and any other areas where drainage may leave the site. Construct a sediment sump immediately upstream of the erosion control barrier to collect sediment from runoff. 2. Remove all loam fill deeper than 2" deep from wetland including all wood debris and provide an organic surface soil of 6" over the area. Pull all fill away from stone wall and reestablish any swale along the wall if evidence is found of one. 3. Provide erosion control barriers above the proposed wetland boundary following completion of all restoration grading. 4. Plant trees, shrubs and herbacious plants and seed entire area. 5. Maintain erosion control in place until all soil surfaces in restoration area and in buffer zone are stable. Once soil is stable, grade sediment sump with an organic topsoil and seed with red top and switchgrass mix. 1 i 1 1 WI LLOW STREET ZONE X ALAN L. GRENIER MICHAEL P. McCARRON JAMES M. NORRIS JOHN RICHARD HUCKSAM, JR. STEPHEN D. GUSCHOV �y GRENIER (5Z MCCARRON ATTORNEYS AT LAW 100 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS, MA 01923 (508) 777-7000 TELECOPIER (508) 7776803 The Clerk Magistrate Lawrence District Court 380 Common Street Lawrence, Massachusetts 01840 Dear Clerk Magistrate: OF COUNSEL JEFFREY A.SCHREIBER JAMES J. MEEHAN October 4, 1993 RE: Paul T. Mscisz Town of North Andover - Notice of Violation of Wetland By -Law, No. 00003 This law firm represents Paul T. Mscisz regarding the above -captioned matter. On behalf of Mr. Mscisz, I hereby withdraw the appeal of Mr. Mscisz of the above -captioned Notice of Violation. Mr. Mscisz has this day paid to the Town`of North Andover Conservation Administrator the $200.00 fihe`imposed by such Notice of Violation. Because of our withdrawal of this appeal, I assume that it will not be necessary for the parties to appear at the hearing scheduled regarding this matter on Tuesday, October 5, 1993, at 10:20 a.m. Thank you for your help. JRH:mrd U Enclosure cc: Mr. Paul T. Mscisz cc: Kimberly A. Holliday, Esq. (By Fax and Regular Mail) cc: Mr. Richard Doucette 7 ry truly yours, fohn Richard Hucksam, Jr. PAUL T. MSCISZ 936 MARTHA J. MSCISZ 18 WILLOW oc-L 4 9 9 93 s NORTH ANDOVER, MA 01845 / 53-7119/2173 { e PAY TO THE ORDER bF r Q O DOLLARS FIRST ESSEX SAVINGS.BANK Lawrence, Massachusetts 01840 ��` ,� _ _ • 1: 2 L 13? L 19 11: 5 31"o 3 0 Lt IB IB I v 09 LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. DONALD G. PAIGE ELIZABETH A. LANE ATTORNEYS AT LAW JOYCE FRANK JOHN W. GIORGIO 101 ARCH STREET BARBARA J. SAINT ANDRE JOEL B. BARD BOSTON, MASSACHUSETTS 02110-1137 EVERETT J. MARDER BOSTON OFFICE JOSEPH N. JR. 16171 951-0007 WILLIAM EWIG WIG III H FAX 16171 951-2735 THERESA M. DOWDY NORTHAMPTON OFFICE PATRICK J. COSTELLO 14131 585-8632 WORCESTER OFFICE 15081 752-0203 September 27, 1993 CONFIDENTIAL -NOT A PUBLIC DOCUMENT Members of the Conservation Commission North Andover Town Hall 120 Main Street North Andover, MA 01845 KAREN V. KELLY DEBORAH A. ELIASON JEANNE S. MCKNIGHT JUDITH C. CUTLER ANNE -MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS DAVID J. DONESKI BRIAN W. RILEY KIMBERLY A. HOLLIDAY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHNG.GANNON Re: North Andover Conservation Commission v. Paul E. Mscisz Essex Superior Court, C.A. No. 93-2187D Dear Members of the Conservation Commission: I am pleased to inform you that we were successful in obtaining an Interlocutory Order Continuing the Restraining Order in full force and effect in the above matter until the next hearing date, October 7, 1993, at Essex Superior Court in Lawrence. Both parties were present at the hearing on September 23, 1993 on the Town's request for a preliminary injunction. The defendant requested time to complete an engineering analysis in order to identify the nature and extent of wetlands on the subject property as well as the areas which have been illegally filled, in order to determine areas requiring restoration. The engineer engaged by the defendant was recommended by the Conservation Administrator. Accordingly, the Court allowed a two week continuance of the hearing, and ordered the parties to return on October 7, 1993. At the hearing, the defendant also raised the defense of that his property is exempt from the wetlands protection regulations under 310 CMR 10.04, the agricultural exemption. We believe that the Commission has sufficient evidence to show that the exemption is inapplicable in this instance, and will do so at the hearing on Octcber 7. If appropriate, Conservation Administrator Richard Doucette will provide testimony at that hearing. PRINTED ON RECYCLED PAPER KOPELMAN AND PAIGE, P.C. CONFIDENTIAL -NOT A PUBLIC DOCUMENT Members of the Conservation Commission September 27, 1993 Page 2 In addition, the Court ordered that the Temporary Restraining Order entered by the Court on September 16, 1993, continue in full force and effect until the next hearing. As you will recall, the Order restrains the defendant Paul E. Mscisz, from any filling, grading, removal of vegetation, stockpiling or disposal of soil or other materials, or operation of any machinery (e.g., backhoe, truck, grader, saw) on the Site located at 18 Willow Street. A copy of that order is attached for your review. As requested by Mr. Doucette, enclosed are copies of the new wetlands regulations and literature regarding the exemption for the normal maintenance and improvement of land in agricultural use. Please continue to monitor the Site in the next two weeks to ensure that the engineering analysis does not result in any additional wetlands violations. If you have any questions in this regard, please do not hesitate to contact Joel Bard or me. KEC/cal Encs. cc: Board of Selectmen (w/o enc.) Town Manager (w/o enc.) COMMONWEALTH OF MASSACHUSETTS ESSEX, SS SUPERIOR COURT C.A. NO. 93-2187D TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, PLAINTIFF V. PAUL E. MSCISZ, DEFENDANT PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION Now comes the plaintiff, Town of North Andover Conservation Commission, and hereby moves this Court, pursuant to Mass. R. Civ. P. 65(a) for a preliminary injunction in its favor, pursuant to Prayer 3 of the Verified Complaint in the above matter ordering the defendant to: immediately cease work activity in and affecting wetlands; correct wetland alterations and restore the wetlands; file a Notice of Intent; and place hay bales on the site. As grounds therefor, the defendant relies on the facts contained in its Verified Complaint and on the attached Memorandum of Law. Wherefore, in view of the foregoing, it is respectfully requested that the within motion be allowed. PLAINTIFF, TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, 'N By its attorneys, v' �JLoel B. Bard (BB)6 #29140) ( . Kathleen E. Connolly (BBO #558706) Kopelman and Paige, P.C. \J Town Counsel 101 Arch Street Boston, MA 02110 -, `> (6101- 9_k1-0007 Dated: ESSEX, ss. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT CIVII. ACTION No. 93-2187 D TOWN OF NORTH ANDOVER CONSERVATION COMMISSION N............................ ._................. ............... -.......... .................................... ., Plaintiff s Ca PAUL E. MSCISZ ........................... -......................... .......................................................... Defendant(s ) INTERLOCUTORY ORDER CONTINUING RESTRAINING ORDER IN FORCE This cause came on to be heard upon the return of a notice to show cause with a temporary restraining order and was argued by counsel; and thereupon, upon consideration thereof, it is ordered and adjudged that said restraining order be and hereby is continued in force until Thursday, October 7, 1993 By the Cour Entered: September 23 , 19 93 FORM 24 NORMAL MAINTENANCE AND IMPROVEMENT OF LAND IN AGRICULTURAL USE 10.10: Effective Date (7) The amendments to these regulations concerning normal maintenance and improvement of land in agricultural use contained in 310 CMR 10.04 ("Agriculture"), 310 CMR 10.06(6)11 and 310 CMR 10.53(5) shall be effective on May 21, 1993, and shall not apply to any Notice of Intent filed prior to the effective date. PREFACE TO 1993 REGULATIONS REGARDING NORMAL MAINTENANCE AND IMPROVEMENT OF LAND IN AGRICULTURAL USE NOTE: The following is a preface to, but does not form a part of, the Wetlands Protection Act Regulations (310 CMR 10.00). Massachusetts is struggling to preserve both its dwindling agricultural base and its remaining wetlands. Both are threatened. While many agricultural practices are compatible with wetlands protection, some can result in temporary or permanent losses of key wetlands functions, such as flood control and pollution attenuation. The Wetlands Protection Act is intended to ensure that these functions are protected through regulatory review and permitting. At the same time, because wetlands are such an integral part of many farming operations, requirements for environmental review could significantly reduce their economic viability. The Legislature has recognized the value of preserving agriculture in Massachusetts by including in the Wetlands Protection Act exemptions for normal maintenance and improvement of land in agricultural use, including cropland and pastureland. These exemptions recognize that some farming practices will affect wetlands from time to time. In an effort to keep these competing interests in balance, the Legislative exemptions are limited to ongoing agricultural operations. That is, if tilling or harvesting is being conducted at the present time in or near wetlands, that work and any current work related to production of that agricultural commodity need not go through regulatory review. At the same time, the Legislature recognized that expanded or new agricultural activities, because they can result in new temporary or permanent impacts to wetlands, should be subject to review to ensure that they are conducted in the most environmentally sound manner possible. The distinction between ongoing work on or related to land in agricultural production, and agricultural expansion, has not been sufficiently clear to farmers or to conservation commissions. The Department of Environmental Protection (DEP) has attempted to clarify the exemptions through policy. In 1991, the Legislature determined that stronger measures to reduce this confusion were necessary and it enacted legislation directing DEP to develop new, clearer regulations. In response to that mandate, DEP has adopted the following regulations. They make it clear that normal maintenance and improvement of land in agricultural use is exempt from the Wetlands Protection Act and is not subject to regulations adopted pursuant to the Act - provideO *hat the activitiam fall within the new3v- adopted definitions. "'No Determinatio,, of Applicability is requiLeci 'for exempt activities; however, the Determination of Applicability. process is intended for use when there is doubt as to whether or not an activity is exempt. Nothing in 310 CMR 10.00 changes the need to independently evaluate whether permits are required under federal laws such as Sections 401 and 404 of the Clean Water Act. 310 CMR 10.00 represents the collective input of dozens of farmers, environmentalists, many state and federal agencies, advocacy groups, and other concerned citizens. Most notable in this process were the efforts of the Farmland Advisory Committee, established by the legislation as an ongoing advisory body, and the Joint Committee on Agriculture and the Environment. These groups worked diligently with DEP and the Department of Food & Agriculture (DFA) to develop regulations that are sensitive to the needs of farmers while preserving valuable wetlands. DEP believes that, while the appropriate regulatory balance has been achieved, the regulations cannot be specific enough to address all circumstances. Everyone involved in developing 310 CMR 10.00 believes that their successful implementation will depend largely on continuing efforts to provide education and outreach to conservation commissions and the agricultural community, as well as a good measure of common sense applied by all concerned. The regulations refer to a cooperative process in which certain projects can proceed only if the proponent has prepared a farm Conservation Plan approved by the United States Department of Agriculture, Soil Conservation Service (SCS). This process requires cooperation between the Department and SCS, and that cooperation is formalized by a written Memorandum of Understanding between the two agencies. Copies of the Memorandum of understand- ing can be obtained from the Department. In order to ensure that 310 CMR 10.00 achieves its goals, the Secretary of Environmental Affairs added conditions in her ENF Certificate (EDEA #9266) requiring DEP and the Department of Food and Agriculture (DFA) to convene an independent monitoring committee. DEP and DFA will chair a group of representatives of the agricultural and environmental communities to oversee the implementation of 310 CMR 10.00, to monitor the effects on both wetlands and agriculture in the Commonwealth, and to provide recommendations for possible further revisions at the end of a three year period. Z_ This committee will evaluate cumulative impacts of exempt activities. The Committee should develop a system for gathering information by which it can assess the cumulative impacts of activities such as those listed at 310 CMR 10.04 (Agriculture) (c) (1) (b, c, d, e, and g) . Such a system could include, for example, notice from farmers that certain activities have been conducted. (Delete existing 310 CMR 10.04 (Agriculture) in its entirety and replace it with the following:) 10.04: Definitions Agriculture. For the purposes of 310 CMR 10.04 the following words and phrases have the following meanings: (a) Land in agricultural use means land within resource areas or the Buffer Zone presently and primarily used in producing or raising one or more of the following agricultural commodities for commercial purposes: 1. animals, including but not limited to livestock, poultry, and bees; 2. fruits, vegetables, berries, nuts, and other foods for human consumption; 3. feed, seed, forage, tobacco, flowers, sod, nursery or greenhouse products, and ornamental plants or shrubs; and 4. forest products under a planned program to improve the quantity and quality of a continuous crop. Additionally, land in agricultural use means land within resource areas or the Buffer Zone presently and primarily used in a manner related to, and customarily and necessarily used in, producing or raising such commodities, including but not limited to: existing access roads and livestock crossings; windbreaks; hedgerows; field edges; bee yards; sand pits; fence lines; water management projects such as reservoirs, farm ponds, irrigation systems, field ditches, cross ditches, canals/channels, grass waterways, dikes, sub -surface drainage systems, watering facilities, water transport systems, and water storage systems; agricultural composting sites; agricultural storage and work areas; and land under favm structures. Land in agricultural use may lie inactive for up to five (5) tSDnsecutive years unless it is under a United States oeparzment of Agriculture (USDA) contract for a longer term pursuant to the Conservation Reserves Program (the Food Securities Act of 1985, as amended by the Food, Agriculture, Conservation and Trade Act of 1990; and 7 CFR 1410). The issuing authority may require appropriate documentation, such as a USDA Farm Plan or aerial photography, to demonstrate agricultural use. (b) Normal maintenance of land in agricultural use, which in all cases does not include placing substantial amounts of fill in Bordering Land Subject to Flooding or filling or dredging a Salt Marsh, means the following activities, without enlargement as to geographical extent, that are occurring on land in agricultural use, when directly related to. production or raising of the agricultural commodities referenced in 310 CMR 10.04(A_griculture)(a), when undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands, and when conducted in accordance with federal and state laws: 1. all crop management practices, not to include drainage in a Bordering Vegetated Wetland, customarily employed• to enhance existing growing conditions, including but not limited to: tillage, trellising, pruning, mulching, shading, and irrigating; and all customary harvesting practices such as- digging, picking, combining, threshing, windrowing, baling, curing, and drying; 2. the use of fertilizers, manures, compost materials, and other soil amendments; pesticides and herbicides; traps; and other such materials; 3. the repair or replacement of existing access roads and livestock crossings; 4. the maintenance of existing windbreaks and hedgerows; 5. the management of existing field edges, limited to within one hundred (100) feet from the land in production, including the following practices: a. mowing; b. burning; c. brush cutting; and d. removing trees. The management of any field edge that falls within a Bordering Vegetated Wetland is not intended to allow the conversion of Bordering Vegetated Wetland into cropland. Therefore, the field management practices described in 310 CMR 10.04(Agriculture)(b)(5)(a. through d., inclusive) may occur in a Bordering Vegetated Wetland provided that: i. the cutting or removal of trees and understory vegetation shall not occur within twenty-five ( 2 5 ) feet of the bank of a water body that is not managed within the land in production (field ditches, cross ditches, grass waterways, irrigation systems, and farm ponds are examples of managed water bodies) unless the trees or understory vegetation are removed to control alternative hosts but no more than fifty (50%) percent of the canopy may be removed, or except to maintain existing dikes; ii. slash, branches, and limbs resulting from the cutting and removal operations shall not be placed within twenty-five (25) feet of the bank of a water body that is not managed within the land in production; and iii. no tilling, filling, excavation, or other change in the existing topography shall occur within the field edge; 6. the maintenance and repair of existing fences and the management of temporary fence lines; 7. the cleaning, clearing, grading, repairing, dredging, or restoring of existing man-made or. natural water management systems such as reservoirs, farm ponds, irrigation systems, field ditches, cross ditches, canals/channels, grass waterways, dikes, sub -surface drainage systems, watering facilities, water transport systems, vents, and water storage systems, all in order to provide drainage, prevent erosion, provide more effective use of water, or provide for efficient use of equipment, and all for the purpose of maintaining favorable conditions for ongoing growing or raising of agricultural commodities; 8. the maintenance and repair of ongoing agricultural composting sites, storage areas, and work areas and the storage of fertilizers, pesticides, manures, compost materials, and other soil amendments, provided that such storage occurs only in the Buffer Zone or Bordering Land Subject to Flooding; 9. the repair and maintenance of existing farm structures; 10. the seeding of eroded or disturbed areas; 11. maintaining the flow of existing natural waterways; 12. the keeping of livestock and poultry and the management of beehives; 13. the cultivation of cranberries, including the following practices: a. the activities described in 310 CMR 10.04(Agriculture)(b)(1. through 11., inclusive); b. the application of sand to existing bogs and the excavation of sand from sand pits; C. the repair and reconstruction of water control structures including flumes, pumps, dikes, and piping above and below the ground; d. the regrading, including modification of drainage, and replanting of existing cranberry bogs; e. the repair and replacement of dikes; f. water harvesting activities; and g. flooding and flood release; 14. the cutting and removal of trees for the 5- purpose of selling said trees or any products derived therefrom, when carried out in the following manner: a. every reasonable effort shall be made to avoid or minimize access through Areas Subject to Protection Under the Act; b. where access through Areas Subject to Protection Under the Act is necessary, every reasonable effort shall be made to gain said access without constructing new accessways including, but not limited to, maintaining and improving (but not substantially enlarging) existing accessways, and operations shall be conducted when the soil is frozen, dry or otherwise stable; C. where access is determined impracticable without constructing new accessways, said accessways shall be designed, constructed and maintained in accordance with U.S. Forest Service logging road standards, and shall be removed and the site returned to previously existing conditions within one (1) year; d. all channel crossings shall be stabilized to prevent erosion, using standard U.S. Forest Service methods. When crossings involve fill or other closed or semi -closed structures which will obstruct flow, they shall be designed, constructed and maintained in accordance with U.S. Forest Service standards, shall allow the unobstructed passage of existing flows for at least the 10 -year storm, and shall be removed and the site returned to existing conditions within one (1) year of construction; e. all soils which are exposed during and after work shall be stabilized to prevent said soils from eroding into open water bodies, in accordance with standard U.S. Forest Service methods; f. all operations shall be conducted in accordance with a cutting plan approved by the Massachusetts Department of Environmental Management District Forester; and g. a written notice describing the proposed cutting and removal of trees shall be submitted to the conservation commission not less than ten (10) days prior to the commencement of operations; and 15. the selective cutting of trees by owners for their own use, when carried out in the following manner: a. no more than twenty ilve thousand (25,000) board feet or fifty (50) cords shall be harvested; W b. after the cutting, the crown area of the remaining trees shall be evenly distributed throughout the site and shall cover no less than fifty (50%) percent of the surface area of the site; C. the removal of the selectively cut trees shall occur only during those periods when the ground is sufficiently frozen, dry or otherwise stable to support the equipment used; d. the cutting, removal or other destruction of trees and understory vegetation shall not occur within twenty-five (25) feet of the bank of a water body; e. the placement of slash, branches and limbs resulting from the cutting and removal operations shall not occur within twenty-five (25) feet of the bank of a water body; and f. there shall occur no filling, excavation or other change in the existing topography. (c) Normal improvement of land in agricultural use, which in all cases does not include filling or dredging a Salt Marsh, includes but is not limited to: 1. the following activities when they occur on land in agricultural use or when they occur within the Buffer Zone or Bordering Land Subject to Flooding that is not land in agricultural use, when they are directly related to production or raising of the agricultural commodities referenced in 310 CMR 10. 04 (Agriculture) (a) , and when they are undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands and the activity is conducted in accordance with federal and state laws: a. the installation of permanent fencing, windbreaks, or hedgerows; b. the installation of dikes within a cranberry bog; C. the construction of farm structures, not including habitable dwellings, provided that the footprint of the farm structure does not exceed four thousand (4,000) square feet and no filling of Bordering Land Subject to Flooding occurs beyond the footprint of the building; d. the squaring -off. of fields and bogs, provided that the activity does not alter a Bordering Vegetated Wetland, there is no increase in the amount of land in production beyond the minimum increase necessarily resulting from making the boundary of any field or bog more regular, and no fill is placed within Bordering Land Subject to Flooding; e. the construction of by-pass canals/channels and tail water recovery systems; f. a change in commodity, provided that there is no filling of Bordering Vegetated Wetland, there is no loss of flood storage capacity, and drainage ditches or the subsurface drainage system are not increased or enlarged; g. the construction of a water management system such as a reservoir, farm pond, irrigation system, field ditch, cross ditch, canal/channel, grass waterway, dike, sub- surface drainage system, watering facility, water transport system, vent, or water storage system, or of a livestock access; and h. the construction of composting and storage areas. For the activities described in 310 CMR 10.04 (Agriculture) (c) (1) (d through h, inclusive) there shall be no net loss of flood storage capacity; and 2. the reconstruction of existing dikes, the reconstruction and expansion of existing ponds and reservoirs, and the construction of tailwater recovery ponds and by-pass canals/channels occurring partly or entirely within a Bordering Vegetated Wetland, when directly related to production or raising of the agricultural commodities referenced in 310 CMR 10.04(Agriculture)(a), in accordance with the following: a. Prior to performing the work, the person claiming the exemption shall submit to the conservation commission for its review at a public meeting that portion of a certified farm Conservation Plan (CP) which relates to the work to be conducted in a Bordering Vegetated Wetland. The CP must be prepared in cooperation with the U.S.D.A. Soil Conservation Service (SCS) and comply with the terms of the January 20, 1993, Memorandum of Understanding (MOU) between the Department and SCS concerning CPs; b. The conservation commission may, within twenty-one (21) days of receiving the CP, provide the person claiming the exemption with written notification containing specific comments detailing the manner in which the CP has not been prepared in compliance with the terms of the MOU; C. The person claiming the exemption shall provide SCS with a complete copy of the notification; d. All revisions to the CP that relate to 0 the delineation of Bordering Vegetated Wetlands shall be submitted to the conservation commission in accordance with 310 CMR 10.04 (Agriculture) (c) (2) ; e. All work shall be done in accordance with the CP; and f. The maximum amount of Bordering Vegetated Wetland which may be altered by the above activities is: 1. five thousand (5,000) s.f. for reconstruction of an existing dike; 2. ten thousand (10,000) s.f. for expansion of an existing pond or reservoir; 3. Len thousand (10,000) s.f. for construction of a tailwater recovery pond; and 4. five thousand (5,000) s.f. for construction of a by-pass canal/channel. (d) The provisions of 310 CMR 10.04(Agriculture) shall expire three (3) years from its effective date. 10.06: Emergencies (6) Agricultural Emergencies (a) Notwithstanding the provisions of 310 CMR 10.06 (1 through 4), any person may undertake work for the emergency agricultural activities described in 310 CMR 10.06(6)(g) when necessary to: 1. eliminate an imminent threat to land in agricultural use; 2. restore land in agricultural use that has been damaged due to a storm or other sudden, unforeseen event; or 3. provide an emergency agricultural water source when the existing agricultural water source suddenly and unforeseeably has been rendered unusable or unavailable. (b) Written notice of any work undertaken as an emergency activity under 310 CMR 10.06(6) must be received by the conservation commission and mailed to the Department within three (3) days after the work has commenced or within three (3) days after the end of the emergency event, whichever is sooner. Such notice shall state the name of the person performing the work, the name of the property owner (if different), the property and the location on the property where the work is to be performed, the exact nature of the emergency and of the work which is to be performed, and when the work was begun and when it is expected to be completed. The commission may, at its discretion, conduct a site visit to view the work being performed under such notice and to confirm that the information in the notice is correct. (c) When an emergency is caused by a storm, any work undertaken as an emergency activity under 310 CMR 10.06(6) must commence within thirty (30) days following the storm event which caused the agricultural emergency. (d) Any work undertaken as an emergency activity under 310 CMR 10.06(6) shall be completed within thirty (30) days from the commencement of such work unless written approval for a later completion date is given by the Commissioner. (e) No work under 310 CMR 10.06(6) shall be allowed within estimated habitat which is indicated on the most recent Estimated Habitat Maps of State -Listed Rare Wetlands Wildlife published by the Natural Heritage and Endangered Species Program of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement. (f) Work under 310 CMR 10.06(6) shall not fill or dredge a Salt Marsh. (g) Only the following emergency activities are allowed under. 310 CMR 10.06(6)(a): 1. The installation of stream bank stabilization measures, ;Q -dNi that,:_ a. such activity is carried out in accordance with Soil Conservation Service best management practices; b. no more than one hundred (100) linear feet of bank are altered per storm event, and no more than two hundred (200) linear feet of new rip rap or gabions are placed on the bank of a stream under this provision cumulatively; and c. after the two hundred (200) foot threshold has been reached the placement of additional rip rap or gabions following future storm events shall require the filing of a Notice of Intent. 2. The removal of storm debris, including trees, brush, branches, and cobbles, that were deposited in a stream channel during the storm event, provided that: a. after the material is removed it is not placed on a bank or in a Bordering 'Vegetated Wetland; b. Soil Conservation Service best management practices are followed; and C. removal of material from a stream is limited to one hundred (100) linear feet per storm event. 3. The development of an emergency agricultural water source where the existing agricultural water source suddenly has been rendered unusable because of contamination, sudden diversion, or 'other [t> unforeseen circumstances. Where an emergency agricultural water supply is required: a. the work shall be conducted so that impacts to Bordering Vegetated Wetland are minimized and all impacts, including excavation, access, and any other alterations to Bordering Vegetated Wetland, shall not exceed two thousand (2,000) square feet; b. the size of the water supply shall be limited to that necessary to provide the amount of water required to abate the emergency, but not to exceed two thousand (2,000) square feet; C. a Notice of Intent shall be filed if the agricultural water supply is to be used for more than sixty (60) days, in which case the agricultural water supply shall comply with existing performance standards under 310 CMR 10.53(3)(a, b, and g); and 'd. all work shall comply with the Water Management Act, M.G.L. c.21G. (h) The provisions of 310 CMR 10.06(6) shall expire three (3) years from its effective date. 10.53: General Provisions (5) Notwithstanding the provisions of 310 CMR 10.53(1), 10.54 through 10.57, and 10.60, the issuing authority shall issue an Order of Conditions permitting for the support of existing agricultural production the reconstruction of existing dikes, the construction of -hew ponds or reservoirs, the expansion of existing ponds or reservoirs, and the construction of tailwater recovery systems and by-pass canals/channels, provided that the following criteria are met: (a) The Notice of Intent shall include all relevant portions of the farm Conservation Plan (CP) covering the work which has been prepared for the property and the applicant in cooperation with the United States Soil Conservation Service (SCS) pursuant to the January 20, 1993, Memorandum of Understanding (MOU) between the Department and SCS concerning CPs. At a minimum, the Notice of Intent shall include a description of the project, the number of square feet of each type of resource area that will be altered, and the alternatives that were considered in order to avoid alterations of wetland resource areas. (b) There shall be a rebuttable presumption, which may be overcome upon a clear showing to the contrary, that: 1. work described in the CP avoids impacts to Ll wetland resource areas or minimizes impacts where they are unavoidable; and 2. construction specifications and mitigation measures contained in the CP minimize impacts where' impacts are unavoidable and adequately protect the interests of the Act. (c) If any presumption set forth in 310 CMR 10.53(5)(bl is overcome upon a clear showing to the contrary, the issuing authority shall impose such conditions on the work as are necessary to restore the presumption. (d) The project will not have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species, as identified by procedures established under 310 CMR 10.59. (e) The maximum amount of Bordering Vegetated Wetlaihd which may be altered by the above activities is: 1. twenty thousand (20,000) square feet for the construction or expansion of a pond or reservoir- -2. eservoir•-2 twenty chou-s7anzl (2-0,000) s-quarL feet 1"Urf me construction of a tailwater recovery system; 3. twenty thotusamd 12fl, SOD; -quare f-ee dor the ,construction of a by-pass canal/channel; and 4. ten thousand (10,000) square feet for the reconstruction of an existing dike. (f) There shall not be any filling or dredging of a Salt �Karsh . (g) The provisions of 310 CMR 10,-5-3(5. 5d11 txpi)7e three years from its, effective A=t -e. F G AND WETLANDS AN INTRODUCTION TO RULE CHANGES UNDER THE MASSACHUSETTS WETLANDS PROTI;.CTION ACT MAY 1993 SCS ROLE AND THE CONSERVATION PLANNING PROCESS SCS FIELD OFFICE TECHNICAL GUIDE AND CONSERVATION PRACTICE STANDARDS AND SPECIFICATIONS MASSACHUSETTS CONSERVATION DISTRICTS AND SCS FIELD OFFICE LISTINGS DEP and SCS M.O.U. SCOPE AND SCS ROLE r-ooe This MOU applies to the planning, design, construction, reconstruction, and/or expansion of the following water management projects undertaken for the support of existing agricultural production within a Bordering vegetated Wetland ("BVW") as defined at 310 CMR 10.55(2): a. existing dikes; b. new or existing ponds and reservoirs; C. :ailwater recovery systems; and d. by-pass canals/channels. The eroiects described in this Paraarapn will be referred to in this MOU as "covered croiects." The Service's lareements The Service agrees to: a. coordinate an analysis of each covered project and assure the following: i. the project is needed to support existing agricultural activities (the definition of "land in agricultural use" Found at 310 CIM 10.04(5) will govern this determination); ii. no reasonably available or feasible alternative site is available for the proposed activity that will avoid alterations to a BVW; iii. any resulting alterations of BVW will be the minimum amount required for the proposed work; and iv. anv li:aits for alterations of BVW, as established in the Wetlands Reaulations, are adhered to for any covered project :nat is intended to qualify under the Wetlands Regulations either as an "exempt activity" or as a "limited project"; b. work with farmers to plan resource management systems and design covered projects according to the Considerations for Water Quantity and Quality contained in its SCS Field Cffice Technical Guide Standards and Soecifications (as amended and ,sndatea :rom -,e :o time) . '"he aesian for anv .overed project will be incorporated into the farm Conservation Plan (CP) for that =ropert•;. The Service will incorporate into a CP only projects that meet the requirements of Paragraph 5(a)(i through iv, inclusive), above and of Paragraph 5(c)(i through iii, inclusive), below; .....sections taken from DEP/SCS M.O.U. doc. THE SCS ASSISTED CONSERVATION PLAN The Soil Conservation Service provides resource planning and implementation assistance to individuals, groups, and units of government. Plans are developed and implemented for the protection, conservation and enhancement of soil, water, air, plants, and animal resources (SWAPA). The planning process is dynamic and professional judgment is applied to determine the proper interaction between elements (shown on accompanying diagram). The process provides an orderly approach to conservation decision making. The process is used in all instances where assistance is provided to decision makers or clients, regardless of the expected outcome, scope, or source of funding to be used for implementation. The degree of detail used in the planning process will vary with the t,rpe, complexity, method of assistance, and the objectives and _imitations of client(s). The planning process consists of nine elements. Each is essential and generally carried out in sequence. Many of the elements can occur almost simultaneously in some situations. In most situations, the various elements will need to be revisited one or more times as more data are obtained and planning intensifies. This iterative process may occur at any time and can result in a change in the focus of the planning effort as new data are obtained or as the problems and objectives are more clearly defined. The Purposes of the Process The purposes of the planning and implementation process are to: 1. Provide an organized system that helps SCS planners work effectively with decision makers to identify and solve resource problems, needs, or opportunities, and thereby facilitate change leading to sustainability in the natural resource base and the wise use of natural resources. Z. Help clients recognize and understand natural resource conservation principles and problems and their causes, treatment needs, and effects of alternative treatments. 2. Develop and evaluate alternatives that lead to decisions to select, implement, and maintain conservation treatments and management on the planned land unit and enable the client to achieve his/her objectives, as well as social, legal, and program requirements. Y. Assess effectiveness of planning and evaluate results of treatment. 5. Establish a consistent method of providing assistance nationwide and improve effectiveness in training employees in the planning and implementation process. overview of the Planning Process The following is a brief description of the nine elements: Element 1 (Identify Problems) is the identification of the resou-�e �roniems and opportunities in the planning area. This includes identifying the conditions which are impairing or degrading one or more of the five resources (SWAPA). It also includes identifying the opportunities to enhance the use of the resources. The identified problems and opportunities guide the remainder of the planning process. Initially, the client may only identify one or two problems. As planning progresses and additional information is developed, other problems and opportunities may be identified. Element 2 (Determine objectives) is developing an understanding, with the client, of the desired conditions for the planning area as compared to the existing conditions. This includes the desired resource uses, resource problem reductions, and environmental crotection. As resources are inventoried and analyzed, and �iternatives are formulated, objectives may need to be reviewed and .:codified. Element 3 (Inventory Resources) is collection of resource information, based on the resource problems and objectives identified in elements 1 and 2, necessary to formulate and evaluate alternative treatment systems. Information concerning soil, water, air, plants, and animal resources as well as information about environmental and, cultural values, and economic and social conditions will be gathered as needed. Element 4 (Analyze Resource Data) is the study and evaluation of the resources data to clearly define the resource conditions, including any limitations to their use, needed to establish the --enc-marks for the remaining planning elements. The process orovides the information needed to formulate and evaluate alternatives. These analyses should clearly establish the cause and effect relationships between resources. These analyses should also provide information about existing and future conditions. Element 5 (Formulate Alternatives) is developing alternatives which will achieve the client(s) objectives by solving resource problems and taking advantage of opportunities to improve the resource base. All reasonable alternatives should be considered, including those which will prevent a problem from occurring as well as those which will address an existing problem. Measures, which mitigate potential adverse impacts should be included as appropriate. =lement 6 (Evaluate Alternatives) is the evaluation of the alternatives to determine their effect in addressing the objectives and problems. This element also includes an evaluation of the potential effects on social, economic and environmental concerns. Special attention must be placed on those environmental values protected by law or executive order. lement 7 (Make Decisions is determining which alternative to implement and includes preparing the necessary documentation of the decision. Also included is presenting effects and impacts of each the alternatives to the client so that the client is able to .rake the best selection from the alternatives to accomplish established objectives for the planning area. If needed, public review and comment are obtained before -a decision is reached. Documentation includes recording the decision in the case file, preparing the conservation plan or project plan and/or environmental documents (Environmental Assessment or Environmental ==pact Statement). . Element 8 (Implement Plan) is implementing the selected alternative. This includes providing technical assistance for management practices and obtaining needed permits, land rights, surveys, final designs, and inspections for structural practices. �n addition, it also includes the operation and maintenance needed co assure proper functioning. iemert (Evaluate Plan) is evaluatlna the effectiveness c_' the :-aienented plan to (1) he sure teat _t is functioning as pro3ectec ana achieving the client's objectives, (2) identify maintenance Needs, and (3) identify needs for modifications in the plan, practice and/or specification. A Diagram of The Planning Process Element 1 I Element 2 i Element 9 I I Element a Problem Determine inventory Anatvze centrtuauon Obiearves Resources Resources I I The nrst tour sreos are aesraneo to set the state for rormurarmg alternatives ano mama resource aecwons. eacn Aran IS unroue ana these elements snoufa oe andreo as a000ronare to me situation. l Element 5 Elemenr 6 I Element 7 7 Element 8 Formulate I Evaluate I I Client maKes imoiemernauon Altematrves Alternatives Decisions i These two sreos redo me arem rowsm maano + The aeasrons are mace ano me orannec •rrm oeasrons nasea on cenrrnee arcofems. DraCaoes are aeor,ec. Aodmonaf rnformanon esources. altemawes ana oqiearves. aneror chanes rn tecnnotooy may Dromat a j I rewsron aetore. ounno or arter,maremenranon l Element 9 is follow uo acumes to evaluate the results ott ;tie aooaeo can. It w orooss the 0000rtun tv to loam more aoout tuaevice oenormance. ana nelos wnn the SCS ooiectrve 10 imorove tecnnomay. THE FIELD OFFICE TECHNICAL GUIDE A Guide to Good Conservation The Field Office Technical Guide (FOTG) is one of the most important tools used by the Soil Conservation Service (SCS) field cffice statfs in carrying out the conservation programs of the agency. The FOTG is an intearal part of conservation planning. It is used with the SCS National Planning Manual, which contains policies and procedures for providing decisionmakers with technical assistance for all SCS programs. The guide represents the latest conservation treatment technology. It helps SCS decisionmakers identify resource problems, evaluate the effects of conservation treatments, compare alternatives, and select the best options to meet conservation needs and objectives. FOTG is a dynamic document that continually changes to -nccrvorate new technology and experience. -o update the guide, SCS relies heavily on input from universities and experiment stations, SCS plant materials centers, the U.S. Department of Agriculture's Agricultural Research Service and Extension Service, the U.S. Environmental Protection Agency, and other federal and state agencies. SCS works closely with these groups to apply new technology to SCS programs. The guide was developed mainly for SCS use. It is, however, a public document that is available to states; other federal agencies; and urban planners, developers, and consultants who are interested in applying effective conservation measures. At rirst glance, the FOTG appears to be the same in one field crfice as it is in another. Actually, the information inside applies specifically to the unique combination of resources in each Individual field office area. Section I of the guide contains general references to help SCS conservationists understand all the physical, legal, and other Factors affecting conservation in the area so that good decisions about the use of natural resources and conservation management systems can be made. The laws, ordinances, regulations, maps, costs, resources, erosion predictions, and climatic and cultural data included in this section deal with agronomy, biology, Forestry, soils, engineering, and economics. In Section II, soils specific to the field office area are described. Information about their limitations, suitability, and potential for rural and urban land uses --in respect to water management, construction materials, sanitary facilities, building site development, wildlife habitat, recreational development, windbreaks and environmental plantings, and woodland management and productivity --is also included. section III has guidelines for developing conservation management systems that combine sound, practical, effective conservation practices and management measures that fit local field conditions. This section describes the considerations that must be addressed to solve resource problems using the best available technology. section IV describes the standards and specifications for applying selected conservation practices, such as by-pass channels, dikes, grassed waterways, and ponds. section V contains information regarding the environmental, social, cultural, and economic effects of installing and maintaining conservation practices. The FOTG is the focus of SCS technical expertise in agronomy, biology, ecology, economics, engineering, forestry, geology, sociology, and soil science. It plays a key role in helping decisionmakers use the best technology available in applying conservation treatments that will ensure, For the benefit of future generations, the prudent management of soil, water, air, and _elated plant and animal resources. .eid Office Tecnnieai Guide Mon DEFINiTiON iter ;mooundment made by constructing_ a dam zi _:nr)ankment or by excavatine a: -.it or _.,ut. ,his ,tundard. ponds constructed by the first -etnou are referred to as embankment ponas. and -.ose �,)nstructed by the second method are -eterred to as excavated ponds. Ponds constructed both the excavation and the emoankment methods are classified as embankment ponds if the 4th of water impounded against the embankment a sptilwav elevation is 3 ft. or more. PURPOSE ,rovtde .pater for livestock. fish. %viidlife. __reason, tire control. crop and orchard sDravine. ::a diner reratea uses. and to maintain or tmorove .,iter quality. CONDITIONS WHERE PRACTICE APPLIES General- This standard establishes the minimum .__eptable quality for the design and construction ponds it: Failure of the dam will not result in loss of life: n damage to homes. commercial or industrial -)uiidings. main highways. or railroads. or in aterruption of the use or service of public al ities. _. The product of the storage times the effective ieieht of the dam is less than 3.000. Storage is ,he volume. in acre-feet, in the reservoir below .he eievation of the crest of the emergency Pond -3 73-1 spillway. The effective height of the dam is the difference in elevation. in feet. between the tmergencv spiilwav crest and the iowest point in the cross-section taken alone the . anterrine of he dam. If there is no emergercv sptilway. ,ze ,op of the dam is the upper limit. . The effective height of the dam is 35 ft. or iess. and the dam is hazara class tat. dee section National Engineering Manuai. or definition of dam classes. Ponds exceeding the above shall he designed and constructed according to the requirements or Technical Release (TR) 60. Site Conditions- Site conditions snali be such that .anorf from the design storm tsee Table t i .an ne <ateiv passed througn (I ; i naturai or ,onstruct.;r mergence_ sptilwav, a :,)mbination r .. principal spillway and an emergency sptilwav, r 3) a principal spillway. Drainage Area- The drainage area above the pond must be protected against erosion to the extent that expected sedimentation will not shorten the planned effective life of the structure. The drainage area shall be large enough so that surface runoff and ;roundwater flow will maintain an adequate suppiv of water in the pond. Runoff water from barnyards. :2z!dlots. ,enttc ranks, barn urains. r )tner-ources _ontaminatton snall be diverted so as not to low nto ponds to be used for urinking «iter sunpty. livestock water supply. ,ish aria wildlife. r recreation. The quality shall be suitable for the water's intended use. Reservoir Area- The topography and soils or the site shall permit storage of water at a depth and volume that ensure a dependable -uopiv. considering beneficial use. sedimentation, season or use. and evaporation and seepage losses. It surface runoff is the primary source of water for a pond. :he soils shall be impervious enough to prevent excessive seepage losses or shall be of a type that <ealing is practicable. Legal- The landowner or operator must be advised that it is his/her responsibility to secure easements and necessary permits to compiv with applicable federal. state and local laws and regulations. SCS - AIA SEPTEMBER 1992 _; , -1-Pond WOMM11131;_; • Water Ouanuty sects upon components of the water budget. _soeciaily erfects on voiumes and rates of -snort. Infiltration, evaporation. transpiration. _:eo percolation, ana grounawater recharge. -. '• anabiiity of effects caused by seasonal or .::uratic changes. :. Efects on the downstream rlows or aquifers .-at couid affect other water uses or users. "ntiai for muitipie use. .n the voiume or downstream flow to -.:nintt _naesirable environmentai. soctai or __„nomic errecu. Water Ouaiity Effects on erosion and the movement or sediment, pathogens. and soluble and sediment - attached substances that are carried by runoff. Effects on the visual cuaiity of onsite and jownstream water resources. Short-term and construction-reiated effects of ,,its practice on the quality or downstream �.jtercourses. _:feces r water levei _oniroi n the ­moerarures of downstream waters to prevent .muesirea eftects on aquatic ind %viidlife .ommunittes. . Effects on wetlands and water-reiated wildlife aoitats. Effects or water levels on soil nutrient processes "ucn as plant nitrogen use or denitrification. Effects or soil water level control on the salinity ,,t soils. soil water, or downstream water. il,•rentiai -or earth moving to uncover or : euistrinute toxic materials sucn as saline soils. SCS - t /A SEPTEMBER 1992 1. If damage to the embankment from burrowing animais is anticioated, consider piacing a barrier (wire. riprap, etc.) in or on the till during construction to prevent burrowing. 2. If beaver are prevalent in the area, consider If beaver are prevalent in the area, consider constructing principal spillways, if used. that are resistant to beaver piugging. DESIGN CRITERIA - GENERAL Site Investigations- Sufficient soli investigations shall be maae of the structure site ana borrow areas .o determine the suitability of the site ana materials 'or construction. _�trucrure stability na water holding ability, as applicable. Site investigations will be maae in accordance with the National Engineering Manual (NEM), Part 531. Drainage Area- Unless a dependable source of water drains to the pond, the drainage area should be at least 3 acres per acre-foot of water to be stored when the predominate soils in the drainage area are classified in hydrologic drologic soils groups C and D. or 4 acres per acre-foot of storage for hydrologic soil groups A and B. DESIGN CRITERIA FOR EMBANKMENT PONDS Structure Classification- Documentation of the Jassiricauon of dams is required. Documentation is to include but is not limited to location and description of the dam, configuration of the valley. description of existing development thousei. utilities, highways, railroads, farm or commercial buildings, and other pertinent improvements). potential for future development. and recommended classification. It is also to include results obtained from breach routings, if breach routings are used as part of the classification process. Refer • to Technical Release (TR) 66 for procedures to follow for breach routing. Strucrure ciassirication and :and use for runoti determination must take into consideration the anticipated changes in land use throughout the expected life of the structure. Foundation Cutoff- A cutoff of relatively impervious material shall be provided under the ER�A�A�`F�3:Pt3ND� General _-ristruction operations snail be carried out so :nat erosion and air and water poliution are -:nimized. State ana local laws .6ncernin2 - `liution aDatement viii be toilowea. l %vorK naii be conauctea in a sxiiltul ana DroteSSionai ,,annex. The compietea job shall present a nroressionat appearance. `,leasures and construction methods that enhance :ish and wildlife vaiues shall be incorporated as needed and practical. Fencing and cover to :untrol erosion and pollution shall be established as needed. Appropriate safety measures. such as warning signs. rescue facilities. :Ind tenting, hall be provided as needed. The pond shall he constructed to the lines. ales. and elevations as staked in me --id. and .s snown on the construction drawings. Site Preparation The foundation area shall be cleared of trees. :oLys. stumps, roots. brush. boulders. sod, and nabbish to a minimum depth of 6 inches below -he original Lyround surface. Trees, stumps. .febris and spoil removed in the ciearing and stripping operations shall be disposed of as ,iirected by the owner or his or her :presentative. Sufficient topsoil shall he stockpiled and spread on the completed spoil ',inks and spillways. �i Spoil shall be deposited not less than 10 feet `rom the edge of the excavation. or as shown on Pond -.i 78-19 :ne drawings. Spoil banks are to be ieveied urficientiv for proper seeaine and maintenance. Protection -xposed surfaces of the embankment not covereu "y the permanent pool. �'egetatea spiiiways. anu <uch other areas designated on the pians wiii he seeded or sodded. Fertilizing. seeding. :nu muichine will be applied in accordance with the Critical Area Planting Specifications (342). All .areas, including till. borrow ana disturbed areas. "%ail be revegetated as soon as possibie arter. :onstruction is comDleted. `,York completed luring seasons when a permanent seeding is not .�asible wiil be seeded to a temoorary stapilizins_ the primary purpose ur ine ponu is for water 'upply or tisk and wildlife. and the structure u located in permanent pasture or is otnerwise :accessible to iivestock, an area surrounding the _arth till and the pond. Including vc-_etauve spillway, shall be fenced to exclude iivestock. The fence shall be placed at least 40 teet trom .he sides of the pond at normal water level. The 'ante shall be located between the earth till and a .ank or trough at the outiet of the water suppiv pipe. Fencinz shall be installed in accordance With the requirements or Practice Standaru Fencing. SCS - 11A SEPTEMBER 1992 SOIL CONSERVATION SERVICE OFFICES IN MASSACHUSETTS State Headquarters 451 West Street Amherst, MA 01002-2927 Tel. 413 253-4375 Richard A Gallo, State Conservationist Barnstable, Field Office Flintrock Road P.O.Box 709 Barnstable, MA 02630 Tel: 508 362-9332 Donald W. Liptack, District Conservationist Serving Cape Cod, Dukes and Nantucket Conservation Districts Greenfield Field Office 55 Federal Street Hayburne, Building Room 270 Greenfield, MA 01301 Tel: 413 772-0384 Charles G. Truax, District Conservationist Serving Franklin Conservation District Holden Field Office The Medical Arts Center Building 52 Boyden Road Holden, MA 01520-2587 Tel:508 829-6628 Ronald E. Thompson, District Conservationist Serving NE, NW and S. Worcester Conservation Districts Northampton Field Office Potpourri Mall 243 King Street, Room 39 Northampton, MA 01060 Tel 413 586-5440 Diane M. Leone, District Conservationist Serving Hampden and Hampshire Conservation Districts Pittsfield Field Office 78 Center Street (Arterial) Pittsfield, MA 01201 Tel: 413 443-6867 Mark W. Grennan, District Conservationist Serving Berkshire Conservation District Taunton Field Office Colonial Trust Building 21 Spring Street Taunton, MA 02780 Tel: 508 824-6668 Leonard R. Reno, Jr., District Conservationist Serving Bristol,Norfolk, and Plymouth Conservation Districts Westford Field Office 319 Littleton Road Westford, MA 01886 Tel: 508 692-1904 Daniel J. Lenthall, District Conservationist Serving Essex, Middlesex and Suffolk Conservation Districts CONSERVATION DISTRICTS BERKSHIRE CONSERVATION DISTRICT 78 Center Street (Arterial), Pittsfield. MA 01201 413-443-1776 BRISTOL CONSERVATION DISTRICT 21 Spring Street, Taunton, MA 02780 508-822-4318 CAPE COD CONSERVATION DISTRICT P.O. Box 296, West Barnstable, MA 02668 508-362-6327 DUKES CONSERVATION DISTRICT Box 1010, Edgartown, MA 02539 508-693-7775 ESSEX CONSERVATION DISTRICT 5 Preston Street, Hathorne, MA 01937 508-777-0391 FRANKLIN, HAMPDEN, & HAMPSHIRE CONSERVATION DISTRICTS 243 King Street, Rm. 39 Northampton, MA 01060 413-584-1464 MIDDLESEX CONSERVATION DISTRICT 319 Littleton Road, Suite 205, Westford, MA 01886 508-692-9395 NANTUCKET CONSERVATION DISTRICT 10 South Beach, Nantucket, MA 02554 508-228-7230 NORFOLK CONSERVATION DISTRICT 460 Main Street, Walpole, MA 02081 508-668-0995 NE, NW and SO. WORCESTER CONSERVATION DISTRICTS 91 McCormick Road, Spencer, MA 01562 508-885-2595 PLYMOUTH COUNTY CONSERVATION DISTRICT 40-48 North Main Street Middleboro, MA 02346 508-947-7863 SUFFOLK CONSERVATION DISTRICT 95 Berkeley Street, Suite 632B, Boston, MA 02116 617-451-9141 L, s Farming & Wetlands Introduction 0 The Massachusetts wetlands law • The rule change process 0 The importance of agriculture Massachusetts Wetlands Protection Act Statute enacted 1972 Contains exemption for "work performed for normal maintenance or improvement of land in agricultural or aquacultural use." Reflects understanding: Value of agriculture to commonwealth Farming requires active relationship with soil and water resources Certain activities are necessary to support existing production Need to reduce regulatory burden for ongoing operations Rule Change Process 1991 legislation established farmland advisory committee (FAC) to advise and assist DEP in clarifying the exemption DEP, DFA, FAC, Agriculture and the Environment Committee, farm and environmental representatives proposed draft regulations Draft regulations to public hearing and comment period Regulations revised Environmental Notification Form (ENF) To Executive Office of Environmental Affairs (MEPA unit) ENF Certificate required additional revisions Final regulations promulgated Public Interests of Agriculture Productive function Economic function Cultural function Amenity function Biodiversity/habitat function Recreation function I I 4 Remember: Agriculture is a "primary industry" Farm is considered a whole, integrated system Some activities don't "look good" Agriculture is changing Agricultural policies &practices increasingly shaped by environmental considerations Regulations are not a "perfect" document Use a problem solving approach Balance use & protection, sustaining both the resource and the farm LEONARD KOPELMAN DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. SAINT ANDRE JOEL B. BARD EVERETT J. MARDER JOSEPH L. TEHAN, JR. WILLIAM HEWIG III THERESA M. DOWDY PATRICK J. COSTELLO KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW 101 ARCH STREET BOSTON. MASSACHUSETTS 02110-1137 BOSTON OFFICE 16171 051.0007 FAX 16171 651-2735 NORTHAMPTON OFFICE 14131 585-8632 WORCESTER OFFICE 15081 752-0203 September 27, 1993 Essex Process Servers, Inc. 2 Salem Green P.O. Box 3043 Salem, MA 01970 KAREN V. KELLY DEBORAH A. ELIASON JEANNE S. MCKNIGHT JUDITH C. CUTLER ANNE -MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS DAVID J. DONESKI BRIAN W. RILEY KIMBERLY A. HOLLIDAY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON Re: North Andover Conservation Commission v. Paul E. Mscisz Essex Superior Court, C.A. No. 93-2187D Dear Sir/Madam: Enclosed please find an original Interlocutory Order Continuing Restraining Order in force until hearing on October 7, 1993, as well as the Court's notations on Plaintiff's Motion for A Preliminary Injunction. Kindly serve these documents on the defendant Paul E. Mscisz at 18 Willow Street, North Andover. Please send a copy of your return of service, along with a bill for services, to me at this office. If you have any questions in this regard, please do not hesitate to contact me. Thank you for your assistance in this matter. Ve �t y thleen Co y r` KEC/cal Encs. cc: Conservation Commission (w/o encs.) PRINTED ON RECYCLED PAPER APPLICATION IT ADULT NUMBER Trial Court of Massachusetts FOR COMPLAINT ❑ JUVENILE 00003 No. Andover District Court Department\a ❑ ARREST HEARING ❑ SUMMONS ❑ WARRANT COURT DIVISION The within named complainant requests that a complaint issue against the within LaWIVICe DMU10 Coctrt named defendant charging said defendant with the offense(s) listed below. Str@et DATE OF APPLIC ION 9/27/93 DATE OF OFFENSE 1 8/30/93 PLACE OF OFFENSE' No. Andover La%wence Ma 01840 NAME OF COIOLAINANT Richard P. Doucette NO. OFFENSE G.L. Ch. and Sec ADDRESS AND 71P CODE OF COMPLAINANT Conservation Dept. t filling of wetlands w/o permit Town of No. Andover 2. NAME, ADDRESS AND ZIP CODE OF DEFENDANT UjStnCt COUrt, t_awrence Paul T. Mscisz 3. Report to: 82 Amesbury 1 18 Willow S t ree t No. Andover, Mass. 01845 4. COURT USE A hearing upon this complaint application DATE OF HEARING TIMEOFHEARING COURT USE ONLYI will be held at the above court address on 10/5/93 AT 10:20 A.M. *—ONLY. CASE PARTICULARS — BE SPECIFIC NAME OF VICTIM DESCRIPTION OF PROPERTY VALUE OR PROPERTY TYPE OF CONTROLLED NO. Owner of property, Goods stolen, what Over or under SUBSTANCE OR WEAPON person assaulted, etc. destroyed, etc. $250• Marijuana, gun, etc. 1 2 3 4 OTHER REMARKS: cc: John Richard Hucksam, Jr., 100 Hathorne Office Prk, 491 Maple St. ,Danvers, Mas. 01923 Kathleen E. Connolly, Esq., c/o Town of North Andover x _ SIGNATURE OF COMPLAINANT DEFENDANT IDENTIFICATION INFORMATION — Complete data below if known. DATEOFBIRTH PLACE OF BIRTH SOCIALSECURITYNUMBER SEX RACE HEIGHT WEIGHT I EYES HAIR OCCUPATION EMPLOYER/SCHOOL MOTHER'S NAME (MAIDEN) FATHER'S NAME DC•CR2 (3188) ALAN L. GRENIER MICHAEL, P. McCARRON JAMES M. NORRIS JOHN RICHARD HUCKSAM, JR. STEPHEN D. GUSCHOV GRENIER & MCCARRON ATTORNEYS AT LAW 100 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS, MA 01923 (508)777-7000 TELECOPIER 15081 777-6803 OF COUNSEL JEFFREY A. SCHREIBER JAMES J. MEEHAN September 22, 1993 The Clerk Magistrate Lawrence District Court 380 Common Street Lawrence, Massachusetts 01840 RE: Town of North Andover - Notice of Violation of Wetland By -Law, No. 00003 Dear Clerk Magistrate: This law firm represents Paul T. Mscisz regarding the above -captioned matter. On behalf of Mr. Mscisz, I hereby request a non -criminal hearing on this matter. I have enclosed a copy of such Notice of Violation. Thank you for your help. Please inform me of the date and time of such hearing when it has been scheduled. ry truly your, ohn Richard "Hucksam, Jr. JRH:eaf Enclosure cc: Mr. Paul T. Mscisz cc: Kathleen E. Connolly, Esq. cc: Mr. Richard Doucette s TOWN OF NORTH ANDOVER NOTICE OF VIOLATION OF WETLAND BYLAW 00003 1:1 X Unable to obtain signature of offender. Date Mailed IX Citation mailed to offender THE FINE FOR THIS NON -CRIMINAL OFFENSE IS $ YOU HAVE THE FOLLOWING ALTERNATIVES WITH REGARD TO DISPOSITION OF THIS MATTER. (1) You may elect to pay the above tine, either by appearing in person between 8:30 A.M. and 4:30 P.M., Monday through Friday, legal holidays excepted, before: The Conservation Office, Town Hall, 120 Main St., North Andover, MA 01845 OR by mailing a check, money order or postal note to the Conservation Office WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS NOTICE. This will operate as a final disposition of the matter, with no resulting criminal record. (2) If you desire to contest this matter in a non -criminal proceeding, you may do so by making a written request, and enclosing a copy of this citation WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS NOTICE TO: The Clerk -Magistrate, Lawrence District Court 380 Common St., Lawrence, MA 01840 ATTN: 21D non -criminal (3) If you fail to pay the above fine or to appear as specified, a criminal complaint may be issued against you. ❑ A. I HEREBY ELECT the first option above, confess to the offense charged, and enclose payment in the amount of $ XX I HEREBY REQUEST a non -criminal hearing on this matter. Signature *= ��✓�� WHITE: OFFENDER'S COPY YELLOW: CONSERVATION COPY PINK: POLICE COPY ^OLD: rnURT COPY ti 09/15/93 10:54 $ 2002 COMMONWEALTI4 OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT C.A. NO. TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, Plaintiff, V. VERIFIED COMPLAINT PAUL E. MSCISZ, Defendant. STATEMENT OF THE FACTS This is an action seeking injunctive relief and civil monetary penalties pursuant to the Wetlands Protection Act, G.L 131, §40 ("the Act"), and the Town of North Andover Wetlands Protection By-law, Chapter 178 ("the Sy -law"), for violations of said Act and By-law. Jurisdiction is conferred upon this Court by the Act and the Court's general equity jurisdiction. COMPLAINT Parties And Facts 1. Plaintiff Town of North Andover ("the Town") is a municipal corporation located in Essex County, Massachusetts, acting by and through the North Andover Conservation Commission ("the Commission"), having a usual place of business at North Andover Town Hall, 120 Main Street, North Andover, Massachusetts. The Cammission is charged with enforcing the Act and By-law. 2. Defendant Paul E. Mscisz ("Mscisz") is an individual residing and owning land located at 18 willow Street, North Andover, Massachusetts ("the Site"). 1 f 09/15/93 10:54 $ Cj003 3. in 1991, Mscisz cleared several thousand square feet of woodlands on the Site. The Commission subsequently met with Mscisz and informed him that a portion of that clearing occurred in a wetlands, in violation of the Act and By-law. Mscisz was informed that said clearing, and any future clearing or work activity, required the approval of the Commission. 4. In 1992, the Commission received a report that Mscisz was conducting new work in wetlands on the Site. On or about September 9, 1992, the Town's Conservation Administrator ("the Administrator") inspected the Site with Mscisz. The Administrator observed that Mscisz was removing vegetation, grading, and altering land adjacent to a wetlands in an apparent attempt to develop a walking track for horses and to improve drainage qn the Site. The Administrator informed Mscisz that such work activity would require approval from the Commission pursuant to the Act and By-law. S. On September 17, 1992, the Administrator discovered new illegal work on the Site, including filling and grading land within a wetlands. 6. On or about September 22, 1992, the Administrator notified Mscisz that his work activity was being conducted in a wetlands and would require permission from the Commission. The Administrator requested Mscisz to appear at the Commission's next meeting on October 7, 1992, to discuss the illegal work activity. (A true and accurate copy of the September 22, 1992 correspondence from the Administrator to MQcis2 is attached hereto to as Exhibit A.) 2 09/15/93 10:55 $ 7. Mscisz did not appear at the October 7, 1992 meeting of the Commission, nor did he respond to the Administrator's letter of September 22, 1992. 8. On or about October 8, 1992, the Commission issued an Enforcement Order to Mscisz pursuant to the Act and By-law ("r -he October 8, 1992. Order"). That Order informed Mscisz that he was required to obtain the approval of the Commission to perform construction, grading or filling in the wetland. That Order stated that no construction activity of any kind was allowed on the Site until approval was granted by the Commission. The Commission directed Mscisz to appear at its next meeting on October 21, 1992. (A true and accurate copy of the October 8, 1992 Order, with return receipt, is attached hereto as Exhibit B.) 9. Mscisz never appealed or complied with the terms of the October 8, 1992 Order. 10. On or about October 21, 1992, the commission required Mscisz to file a Notice of Intent pursuant to the Act and Sy -law for the work that was undertaken on the Site. (A true and accurate copy of the minutes of the October 21, 1992 meeting car the Commission are attached hereto as Exhibit C.) 11. On or about October 29, 1992, the Administrator provided Mscisz with instructions and forms to file a Notice of Intent with the Commission. The Administrator informed Macisz that all work was to stop until he received a permit from the Commission under the Act and. By --law. (A true and accurate copy of the October 29, 1992 correspondence from the Administrator to [a 004 A 09/15/93 10:56 %T Mscisz is attached hereto.as Exhibit D.) 12. Mscisz never responded to or complied with the October 29, 1492 correspondence and instructions from the Administrator. 13. On or about May 14, 1993, the Commission issued a second Enforcement Order to Mscisz pursuant to the Act and By-law (,the May 14, 1993 Order"). The Commission informed Mscisz that he was illegally filling land and stockpiling soil within and adjacent to a wetland in violation of the Act and By-law. Mscisz was ordered to immediately cease and desist from any further activity affecting wetlands and to immediately correct the violations and return the Site to its orl.ginal condition. The Commission informed Mscisz that he was required to submit completed application forms and plans to; and require approval from, the Commission for his work activity. The Commission directed Mscisz Lo attend its next meeting on. May 19, 1993 to discuss the requirements. (A true and accurate copy of the May 1.4, 1993 Order and cover letter thereto, with return receipt, are attached hereto as Exhibit E.) 14. Mscisz never complied with or appealed the May 14, 1993 Order issued by the Commission. 15. On or about May 24, 1993, the Commission conducted an inspection of the Site with Mscisz. The Commission informed Mscisz that the stockpiled soil was illegally located within a wetlands. 16. On or about June 2, 1993, the Administrator and a 2005 certified soil scientist conducted -}-aAite inspection wwitdhMsisz . , p �fNude&t:J 1 :"� within al�t� Mscisz was informed that 4 SEP 15 '93 10:03 KOPELMAN AND PAI 1/7 wetland4�in violation of the Act andsy-law. 17. On August 30, 1993, the Administrator inspected the Bite and observed that Mscisz was in the process of filling wetlands with the soil he had illegally stockpiled on the Site. .Mscisz had not restored the Site to its original condition, not had he stopped filling land and stockliling soil in and adjace4t to wetlands, as required by the Commission's May 14, 1993 Orciat. Furthermore, Mscisz had not filed a Notice of Intent with the Commission. j 18. On September 2, 1993, the Cbmmission issued a third Enforcement Order to Mscisz pursuant to the Act and By-law ("the I September 2;.1993 Order"). The Commission informed Mscisz t.hats I filling wetlands with the stockpiled,�oil constituted a violation. of the Act and By-law, and that Macisz was ordered to cease and desist from any additional wetlands filling. The Commission also i ordered Mscisz to remove -said fill from the wetlands. (A true and accurate copy of the Commission's September 2, 1993 Order Is attached hereto as Exhibit F.) i i 19. As of the date of this Complaint, Mscisz has not complied with the Commission's three enforcement Orders. Wetlands Protection. act,L.c. 131, 140 20. The Act, G.L. c. 131, 940., States that, "No person i shall remove, fill, dredge, or alter any...fresh water i wetland ... without filing written notice of hi§ intentions; [.wi,tlt i tha conservation commissionl ... and without receiving and comRlying with an order or conditioLgj,�[issued by the conservation commission)...." [emphasis added] . The dict also states that A 5 SEP 15 '93 10:04 KQPELMAN AND PAIGE P.2/7 conservation commission "may issue enforcement orders directing compliance with the [the Act] and may undertake any other enforcement authorized by law." 21. The Act further states that; "Any court having equity Jurisdiction may restrain a violation of this section and entie3t such orders as it deems necessary to remedy such violation...." 'The. Act also provides that, "Whoever violates any provision of this [Act], (a) shall be punished by a fine of not more than. twenty-five thousand dollars or, key imbrisonment for not more than two. years, or both such fine and imprisonment; or (b), shalljb% SUbject to a civil penalty not to exc ed twenty-five thousand !dollars for each violation-" [emp.hae�s added] North Andover's wetlandp Pi rotection By-law 1 22. The By-law states at chapter 178.2 that, "Except as permitted in writing from the Conservation Commission... no ptrdod: -shall engage in the—removal, filling, dredging, discharging) into, building upon, or otherwise altering or degrading—any 'freshwater wetland...or any land—subject to storm flowage, of flooding, or inundation by groundwater or surface water, and the floodplain. The Commission shall not grant such permission without receiving notice of the iznten�ion to conduct such activity, and without issuing writtenlpermission to do so...." i Wrrue and accurate copy of the By-law is attached hereto as -Exhibit F.) 23. Section 10 of the By-law states that, "In the event Of a violation of this Bylaw..., the Commission or its agents Ma isaue a stop order to the owner.... any person who shall violates ro SEP 15 '93 10:05 KOPELMAN AND PAIGE :P.3i7 i the provisions of a stop order shallibe deemed in violation,of� the By-law;..." The By-law also.proVides that, "Any person VhO vi6lates any provision of this By -1.a ... may be punished by a fine pursuant to Massachusetts General Laws, Chapter 40, section 21. 19. As of the date of this.Com�laint, Mscisz has not I complied with the October 8, 1992, M4y 14, 1993, or September 21 1993 Enforcement Orders. In fact, Ms'cisz recently resumed filling and altering wetlands, in b14tant violation of those Orders. He has not restored the illegal wetland alterations. Mscisz has not submitted a Notice of.,Tntent or received an Ord6r i of'Conditions to restore the illegally altered wetlands and perform future work activity on the gzte. Mscisz`s actions, i therefore, Constitute a flagrant violation of the Act and By*likw:, Those violations may be restrained bl this Court and his violations are subject to mandatory griminal or civil penalties as specified in the Act, G.L. c. 131, 540, and fines provided in i G.L. c. 40, X21 as specified in the $y -law. PRAYERS FOR HgL;IEF I WHEREFORE, the Commission requests this Honorable Court: 1. Issue a Temporary Restraining Order ordering the defendant Paul E. Mscisz to immediat6ly cease and desist any filling, grading, removal of vegetation, stockpiling or dispbeal of.soil or other materials, or operation of any machinery (e.g:., backhoe, truck, grader, saw) on the bite located at 18 Willo* Street, North Andover, i 7 SEP 15 '93 10:05 KOPELMAN AND PAIGE P.4i7 2. Issue a Short Order of Notice for a hearing on a preliminary injunction. 3. issue a preliminary injunction, ordering Paul E. Mbcisk to immediately comply with the Oc.tob�r 8, 1992, May 14, 1.99.3, *nd September 2, 1993 Orders issued by the commission pursuant tm thit .Act and By-law for the land located 4t 18 Willow Street, North Andover ("the Site") by: (a) Immediately ceasing and desisting from further work activity on the Site affecting wetlands and the 1.00 foot buffer zone thereto, including, but .'ot limited to, filling,' grading or removal of vegetation; (b) Immediately correcting wetland alterations and i returning the wetlands to their orig� nal.. condition, including, but not limited to, removal of stockpiled soil within the wetlands and 100 foot buffer; (c) Immediately filing with the Commission a complete i Notice of Intent in compliance with: the Act and By-law, which skull include, among other items: Wi a description of all wetland areas altered by Mscisz or his agent; (ii) a schedule For restoration of all such altered wetl4nd areas; (iii) an engineered plan designating all original (that is, pre-alt+ered� and current wetland boundaries on this Site Said Notice of Intent shall be submitted.to the Commission no later than thirty (:30) days after the date of the Courtil Order; (d) Immediately placing a.jcontinuous row of double - staked hay bales upgradient of and mound the perimeter of the i wetlands on the Site to prevent further siltation, sedimentation., 8 SEP 15 93 10:06 KOPELMAN AND PAIGE _ P.5/ and alteration of the said wetlands; 4. Issue a permanent injunction, ordering defendant.Ra►41 E. Mscisz to immediately comply with)the October 8, 1992, May 14'1 1993, and September 2, 1993 Enforcem�n.t Orders issued by the Commission pursuant to the Act and By-law for the land located at 18 willow Street, North Andover ("th Site") byc (a) Immediately ceasing and de�isting from further work I activity on the Site affecting wetka4ds and the 100 foot buffer zone thereto, including, but not lim ted to, filling, grading,or ,removal of vegetation; i (b) Immediately correcting wetland alterations and returning the wetlands to their orig. nal condition, including, but not limited to, removal of stockliled soil within the wetlands and 1.00 foot buffer; (c) Immediately filing with the Commission a complete t Notice of Intent in compliance with the Act and By- law, which shall include, among other items: (i!) a description of all wetland areas altered by Mscisz or his agent; (ii) a schedult four restoration of all such altered wetland areas; (iii) an engineered plan designating all original (that is, pre-alter*d) and current wetland boundaries on this Site. Said Notice of i intent shall be submitted to the Commission no later than thirty, (30) days after the date of the Court Order; (d) immediately placing a continuous row of double -stake -0 hay bales upgradient of and around the perimeter of the wetlands on the Site to prevent further siltatjion, sedimentation, and I alteration of the said wetlands; 9 SEP 15 '93 10:07 KOPELMAN AND PAIGE ! P.6i7 i 5. Impose a civil penalty, pursuant to the Act, in such amount as the Court shall regard as proper and just, for eadh.dajy of the continuing violation. i 6. Impose a civil penalty, pursuant to the By-law, in #udh, ,amount as the Court shall regard as proper and just, for each doy of! the continuing violation. l 7. Award the Commission its reasonable attorneys' fees 4nd costs. 8. Grant such other further r�lief as this Court may d6sm proper. Respectfully submitted, TOWN O� NORTH ANDOVER CONSER ATION COMMISSION By its attorneys, i I Joel B' Bard (BBO #029140) Kathle4n E. Connolly (BBO ##5587%) Kopelm4n and Paige, P.C. Town' Counsel 101 Arch Street Boston,! MA 02110 (617) 451-0007 Date: x5033 10 SEP,15 '93 10:07 KOPELMAN AND PAIGE P.7i7 VER1F;ghJJON -T certify that Y have read the Foregoing Verified Compla*t and that the facts contained therein are based upon my personal knowledge or upon information avail.a4le to me in my official capacity as Agent for the Town of Noith Andover Conservation Commission and are true and accurate t6 the best of my knowltdbej and belief. Signed under the pains and penalties of perjury this day of September, 1993. x5433 Richard P. Doucette, Conserv'ation Administrator, Town .of North Andover COMMONWEALTH OF MASSACHUSETTS ESSEX, SS TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, PLAINTIFF V. PAUL E. MSCISZ, DEFENDANT SUPERIOR COURT C.A. NO. 93-2187D PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF The plaintiff, Town of North Andover Conservation Commission, hereby submits the following Memorandum in support of its request for a preliminary injunction. I. STATEMENT OF FACTS The plaintiff brings the instant action in order to compel the defendant Paul E. Mscisz to comply immediately with the Wetlands Protection Act, G.L. c. 131, §40, the regulations promulgated thereunder at 310 CMR 10.00, et sea., the Town of North Andover Wetlands Protection By -Law, Chapter 178 ("the By - Law"), and the three Enforcement Orders issued by the Town of North Andover Conservation Commission ("the Commission"). The Commission seeks a ruling from the court ordering the defendant to cease all activities filling and altering wetlands and further ordering that the defendant conduct wetlands restoration work on his property at 18 Willow Street, North Andover. On or about September 9, 1992, Richard Doucette, Conservation Administrator of the Town of North Andover ("Conservation Administrator"), inspected the Site with specific reference to woodlands and wetlands which are located on the Site. (Verified Complaint, Paras. 4, 5) The Conservation 1 Administrator observed that the defendant had removed vegetation, graded, and altered land adjacent to wetlands in an apparent attempt to develop a walking track for horses and to improve drainage on the Site. (Verified Complaint, Para. 5) The illegal removal, grading and alteration of the wetlands areas was done without an Order of Conditions, as required by the Act and by the By -Law. (Verified Complaint, Para. 5) The illegal work was conducted in violation of G.L. c.131, §40, and of the By -Law. (Verified Complaint, Paras. 4 and 5) On September 17, 1992, the Conservation Administrator discovered new illegal work on the Site, including filling and grading land within wetlands. (Verified Complaint, Para. 6) The Commission issued three Enforcement Orders dated October 8, 1992, May 14, 1993, and September 2, 1993, citing the defendant for illegally removing vegetation, grading and altering the wetlands, without a valid Order of Conditions issued under the Act and By -Law. (Verified Complaint, Paras. 9, 14, and 19) The Commission required the defendant immediately to cease construction activity of any kind, to file a Notice of Intent for the work performed in the wetlands with the Commission, and to obtain the approval of the Commission to perform construction, grading, or filling in the wetlands. (Verified Complaint, Paras. 9, 11, 14, and 19) Furthermore, after receiving the first two Enforcement Orders, the defendant continued to fill wetlands on the Site with the soil that he had illegally stockpiled on the Site, and did not file a Notice of Intent. (Verified Complaint, Para. 18) In the third Enforcement Order, issued after the Conservation Administrator conducted a Site inspection with a 2 certified soil scientist, the Commission required the defendant to remove the illegal fill from the wetlands. (Verified Complaint, Para. 19) On September 16, 1993, this Court issued a temporary restraining order against the defendant, ordering him to desist and refrain from any filling, grading, removal of vegetation, stockpiling or disposal of soil or other materials, or operation of any machinery (e.g., backhoe, truck, grader, saw) on the Site. To date, the defendant has not complied with the Act, the By -Law, or the three Enforcement Orders issued by the Commission. Although the defendant has ceased filling, grading, removal of vegetation, stockpiling and disposal of soil or other materials, and operation of any machinery, as ordered by this Court on September 16, 1993, he has not filed a Notice of Intent to begin restoration activities as required in the Enforcement Orders. The defendant's continuing violations frustrate the legislative purpose of the Wetlands Protection Act and the By -Law, which is to protect wetlands, related water resources and adjoining land. Therefore, this Court may restrain the defendant's violations and order the defendant to restore the Site to its original condition prior to the violations. II. ARGUMENT A. THIS COURT SHOULD GRANT INJUNCTIVE RELIEF TO PLAINTIFF BECAUSE IT IS LIKELY TO SUCCEED ON THE MERITS AND BECAUSE THE PUBLIC INTEREST DICTATES THE GRANTING OF INJUNCTIVE RELIEF. This Court should grant injunctive relief to plaintiff, because it is likely to succeed on the merits of this case. The standard in Massachusetts for the grant of preliminary injunctive 3 relief is well defined. Massachusetts Courts have set forth the standard for actions between private parties. An applicant must show: (1) that there is a probability of success on the merits; (2) that plaintiff will suffer irreparable harm without injunctive relief pendite lite; and (3) that the harm plaintiff will suffer if denied injunctive relief outweighs the harm defendant will suffer if restrained. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617, 405 N.E. 106 (1980). See also, Commonwealth v. County of Suffolk, 383 Mass. 286, 288 (1981); Boston Athletic Assn. v. International Marathons, Inc., 392 Mass. 356, 362-363 (1984). However, in cases in which the plaintiff is a public entity seeking to enforce a state statute, the Supreme Judicial Court has indicated that the standard for obtaining injunctive relief is merely a showing that the granting of injunctive relief is consistent with the public interest. "When the government acts to enforce a statute or make effective a declared policy of [the Legislature], the standard of public interest and not the requirements of private litigation measures the propriety and need for injunctive relief"'. Commonwealth v. Massachusetts CRINC, et al., 392 Mass. 79, 89 (1984), citing United States v. D'Anolfo, 474 F.Supp. 220, 222 (D. Mass. 1979). The standard of requiring a demonstration of immediate irreparable harm is therefore not a prerequisite to the allowance of an injunction in a case in which the plaintiff is a public entity: "before issuing the preliminary injunction, a judge is required to determine that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Id. at 89. 4 Under the applicable standard for injunctive relief, plaintiff Town of North Andover Conservation Commission has a strong likelihood of succeeding on the merits of this case. Since the plaintiff.is a municipality seeking to enforce a state statute, injunctive relief is appropriate. The plaintiff, in enforcing the statute and the Town By -Laws need not show any specific harm to the plaintiff caused by the illegal wetlands alterations. The defendant, by his failure to obtain an Order of Conditions for activities conducted within wetlands at property owned by him at 18 Willow Street, North Andover, is in violation of G.L. c. 131, §40, which prohibits removing, filling, dredging, or altering any wetland or coastal area without a valid Order of Conditions issued by the conservation commission, and of 310 CMR 10.00 et sea., the regulations promulgated thereunder. The Act also provides that a conservation commission "may issue enforcement orders directing compliance with [the Act] and may undertake any other enforcement authorized by law." The defendant also is in violation of the Town of North Andover Wetlands Protection By -Law, which prohibits, "the removal, filling, dredging, discharging into, building upon, or otherwise altering or degrading... any fresh water wetland ... or any land ... subject to storm flowage, or flooding, or inundation by groundwater or surface water, and the floodplain," except as permitted in writing from the Conservation Commission. Chapter 178, Section 2. The By -Law provides that the Commission "shall not grant such permission without receiving notice of the intention to conduct such activity, and without issuing written 5 permission to do so...." The By -Law further provides that, in the event of a violation of the By-law, "the Commission or its agents may issue a stop order to the owner.... Any person who shall violate the provision of a stop order shall be deemed in violation of the By- law...." Chapter 178, Section 10. The By-law also provides that, "Any person who violates any provision of this By-law... may be punished by a fine pursuant to Massachusetts General Laws, Chapter 40, section 21." Moreover, General Laws c.131, §40 states that any court having equity jurisdiction "may restrain a violation of this section and enter such orders as it deems necessary to remedy such violation, upon the petition of ... a city or town...." The Act further provides that, "Whoever violates any provision of this section, (a) shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than two years, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation." [Emphasis added] In addition, the defendant is in violation of three Enforcement Orders issued by the Conservation Commission pursuant to its authority under G.L. c. 131, §40, and the By -Law. The Commission has ordered the defendant immediately to cease construction activity of any kind, to file a Notice of Intent for the work performed in the wetlands with the Commission, and to obtain the approval of the Commission to perform construction, grading, or filling in the wetlands, and to remove the illegally stockpiled fill from the wetlands. 3 The defendant has ignored the orders of the plaintiff in violation of the state statute and the Town By -Law. Therefore, this Court is within its authority in granting injunctive relief to the plaintiff in order to uphold the state Wetlands Protection Act, G.L. c. 131, §40, the Town of North Andover Wetlands Protection By -Law, Chapter 178, by ordering the defendant to file a Notice of Intent and to begin the wetlands restoration activities, subject to approval by the Commission, as outlined in the three Enforcement Orders. The importance to the Commonwealth of protecting its residents and preserving its valuable wetlands and floodplains is evidenced by the statutory and codified scheme enacted to protect them. See, e.g., G.L. c. 131, § 40, the Massachusetts Wetlands Protection Act, and the Town of North Andover By -Laws, By -Law XXII, described above. The Wetlands Protection Act states that a conservation commission may determine that a wetland area proposed for work may determine "that the area on which the proposed work is to be done is significant to the public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries." G.L. c. 131, §40. The defendant's continued violations frustrate the legislative purpose of the Act and By -Law to protect wetlands, related water resources, and adjoining land areas. The public interest, therefore, requires that injunctive relief be granted to the plaintiff in this case. 7 III. CONCLUSION In view of the foregoing, the plaintiff Town of North Andover Conservation Commission, clearly has satisfied the burden for injunctive relief. Accordingly, it is respectfully requested that this Court grant injunctive relief on Prayer 3 of the Verified Complaint, as further embodied in the attached Proposed Order. PLAINTIFF, TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, By its/at �o6l B. Bard (B #02914 ) /Kathleen E. C Holly (B O #558706) Kopelman and aige, P.0 Town Counsel 101 Arch Street Boston, MA 02110 (6G1�7) 951-0007 Dated • 2 8 1 W I L LOW STREET ZONE X 09102/93 10:01 F iczs OF: t3UILDING CONSERVATION HF,.AI_TH PLANNING 0 Town of _NORTH ANDOVER Sons/4 e DIVISION OF PLANKING & COMMUNITY D'EVELOPMEN'T E:., -\REN H.P. NELSON. DIRECTOR september 22. 1992 Mr. Paul E. MsCisz. 18 Willew Street North Andover MA 01845 Dear Mr. Mscisz: [a 002. 120 Main Street north Arldo Ver Massachusetts 01846 15081 682-6483 T appreciate your meeting with me on September 9th to show me the work on your property which is underway. This work f a walking track far horses. While includes the development o sion adjacent to your land an reviewing a proposed subdivi September 17th, it appears as though you are attempting to improve the work drainage s related to thefyour land. horse track. I assume that this drainage please be advised that this work is taking place !I' a wetland and you must therefore receive permission from the Conservation Commission. The Conservation Commission's next mesting is October 7, 1992• Please appear at 7:30pm to discuss this project with the Commission. Sincerely, _ I ' / „� " � •tel `-r�--11� ! '•%✓ .��177111 . Richard P. Doucette Conservation Administrator t r OFFICES OF: BUILDING CONSERVATION HEALTH PLANNING P NORTH ' Town of m NORTH ANDOVER °e�cM�eE` DIVISION OF PLANNING & COMMUNITY DEVELOPMENT KAREN H.P. NELSON, DIRECTOR September 22, 1992 Mr. Paul E. MsCisz. 18 Willow Street North Andover MA 01845 Dear Mr. MsCisz: I20 Main street North Andover Massachusetts 01845 (508) 682-6483 I appreciate your meeting with me on September 9th to show me the work on your property which is underway. This work includes the development of a walking track for horses. While reviewing a proposed subdivision adjacent to your land on September 17th, it appears as though you are attempting to improve the drainage in the rear of your land. I assume that this drainage work is related to the horse track. Please be advised that this work is taking place in a wetland and you must therefore receive permission from the Conservation Commission. The Conservation Commission's next meeting is October 7, 1992. Please appear at 7:30pm to discuss this project with the Commission. Sincerely, {- Richard P. Doucette Conservation Administrator 19 10 of ,-"3uE S-?Ql!4-'�+os'ixc:A&VICE" ..-'15.. Official Business ,:� PEN/ y USE T( Print your name, address and ZIP Code here R. Doucette c/o Toum. Hall 120 Main Street North Andover, MA 01845 acfvucn: • Complete items 1 and/or 2 for additional services. I also wish to receive the • Complete items 3, and 4a & b. following services (for an extra d • Print your name and address on the reverse of this form so that we can 0 return this card to you. fee): • Attach this form to the front of the mailpiece, or on the back if space 1. ❑ Addressee's Address N does not permit. • Write "Return Receipt Requested" on the mailpiece below the article number. 2 ❑ Restricted Delivery a • The Return Receipt will show to whom the article was delivered and the date delivered. Consult postmaster for fee. m 3. Article Addressed to: a Paul Mscisz E c 18 Willow Street W North Andover, MA ti W rr Z CC 5. Signature (Address R. �� 6. Signature (Agent) 0 01845 4a. Article Number c 4 4-7 014 787 4b. Service Type m ❑ Registered ❑ Insured 0f �M Certified ❑ COD 5 ❑ Express Mail ❑ Return Receipt for Merchandise 7. Date of Deliver' 1 5 = 0 :I- 8. 8. Addressee's Address (Only if requested X and fee is paid) R t H 2 FSS Form 3811, December 1991 * U.S.G.P.O.:1992-307-530 DOMESTIC RETURN RECEIPT DRAFT 10/22/92 PRESENT: OLD BUSINESS NACC MINUTES OCTOBER 21, 1992 George Reich Paul Tariot Alison Brewster Kevin Foley Richard Doucette Karen Nelson Coventry Estates I (#242-324) -Status of Compliance Review Pat Seekamp from Wetlands Preservation discussed the compliance review of this project. There are problems with some of the drainage structures and resulting siltation. Shawmut Bank: clean catch basins, Lot 16 swale. Use bond: Detention pond on lots 31 and 32. Drain on lots 14 and 15. MINUTES Motion by P.Tariot and seconded by K.Foley to adopt the minutes of 10/14/92. OLD BUSINESS (continued) /-,,#18 Willow Street - Violation R.Doucette gave an overview of the violation. NACC requires a permit to be filed for the work recently done and to be done as well as future work. #980 Great Pond Road - Restoration R.Doucette and Court Young gave an overview of the violation and the restoration effort. NEW BUSINESS Lot 6 Hidden Court (#242-560) - Compliance Scott Giles submitted a letter and an as -built plan to request a Compliance. Motion by P.Tariot and seconded by A.Brewster to issue a Partial Compliance. Lot 50 Blue Ridge Road (#242-570) - Compliance Scott Giles submitted a letter and an as -built plan to request a Compliance. Motion by A.Brewster and seconded by P.Tariot to issue a Compliance. Lots 23A and 28A South Bradford St (#242-621,623) - Modification Request for modification made by Scott Giles. Motion by P.Tariot and seconded by A.Brewster to issue the Modification. Vote 3-1, G.Reich opposed. OFFICES OF: APPEALS BUILDING CONSERVATION HEALTH PLANNING NORiN � r ~" Town of NORTH ANDOVER eB ��us6` DIVISION OF PLANNING & COMMUNITY DEVELOPMENT KAREN H.P. NELSON, DIRECTOR October 29, 1992 Paul E. Mscisz 18 Willow St. North Andover MA 01845 Dear Mr. Mscisz: 120 Main Street North Andover, Massachusetts 01845 (617) 685-4775 Attached are the instructions and forms for filing a 'Notice of Intent' with the Conservation Commission. As you know, the Commission voted at their October 21, 1992 meeting to require to you to file a Notice of Intent for the work you have completed in the rear of your property. All work is to stop until permits are obtained. This permit will pertain to all work you have completed and any work planned in the near future. This permit is required by local and state law since a large portion of the rear of your property is a wetland. You were notified over a year ago that this property was a wetland and that any additional work would require a permit. Additional work was then undertaken without a permit. The Conservation Commission has been very lenient in this matter and I hope you will respond by filing for the necessary permit. �! Sincerely, Richard P. Doucette Conservation Administrator ' OF MORTM IM KAREN H.P. NELSON fir' '° Director TOWN Of NORTH ANDOVER BUILDING CONSERVATION �8s-C.Us t DIVISION OF HEALTH PLANNING PLANNING & COMMUNITY DEVELOPMENT May 14, 1993 Mr. Tom Laudani Rogers Park Realty Trust 733 Turnpike Street Suite 311 North Andover MA 01845 Dear Tom: 120 Main Street, 01845 (508) 682-6483 It is my understanding that soil which has been excavated from the Meadow wood project and sold to an abutter is now being used for an illegal activity. This activity consists of the filling of land in the buffer zone and possibly in a bordering vegetated wetland. The violator is Paul Mscisz of 18 Willow Street. Since you are now informed of this issue, you should be advised that any further involvement, through the selling or transportation of fill to this individual, may expose you to legal action or other enforcement activity by the North Andover Conservation Commission. Sincerely, -:::�J. Richard P. Doucette, Conservation Administrator Town of North Andover MA °F Now icy ,ry ' KAREN H.P. NELSON ; ' °m Town of 120 Main Street, 01845 Director _ BUILDING NORTH ANDOVER (508) 682-6483 CONSERVATION esACNU5ES DIVISION OF HEALTH PLANNING PLANNING & COMMUNITY DEVELOPMENT May 18, 1993 Mike Turgeon DEP Wetlands Division Northeast Region 10 Commerce Way Woburn MA 01801 Dear Mike: I would like to discuss with you a wetland violation which is underway in North Andover. Please review the enclosed information and contact me at your earliest convenience. Sincerely, Richard P. Doucette Conservation Administrator Town of North Andover MA ,Z 09/02/93 10:09 $ Draft 7/13 CONSERVATION COMMISSION JULY 71 1993 MINUTES ATTENDANCE: J.Leeman, G.Reich, A.Manzi, R.Milliard, K.Foley, B.Mansour, P.Tariot, R.Doucette (Administrator) MINUTES Motion by Paul Tariot, seconded by KevinFol u an adopt he minutes of June 16, 1993 as amended. motionpassed OLD BUSINESS #10 i,ucker Farm RR.Doucettd. discussed mThe laced fill from his property across the street homeowner hasp on h the road shoulder, next to the wetland. A violation notice was issued and the soil has been seeded and mulched. 09_40 Great Pond Rd. (#242-656_Z R.Doucette and P.Tariot gave an. update on the status of the criminal complaint. Lot 10A Boxford St 242-537 G.Reich noticed a violation at #257 Boxford St. R.Doucette inspected the site from the road and spoke with the homeowner on the phone. The cutting of the lawn has extended into the no -cut zone. The Commission will take no further action. 2011 .� 28 Willow St. g.Doucette discussed this ongoing violation and input received from eek Town Counsel. P.Tariot motioned, and John Leeman seconded, an injunction against the landowner. Vote: 5-1-1. A.Manzi opposing, K.Poley abstaining. NEW BUSINESS Lot 2 Coventr Estates 24 -524) - Com Bance B.Barrett requested a Certificate of Compliance. A letter and As - Built were submitted from Scott Giles. P.Tarict motioned, R.Milliard seconded, to issue a certificate of Compliance. Motion passed unanimously. Lots 24A 25 26A Forest St. 242-580 581 582 - Com liances B.Barrett requested compliances. Phil Christiansen's letter certifying seced, to sondaissued the compliances. vote: 6-0-1,l compliance was discussed. G.Reich m K.Foley J.Leeman abstained. DRAFT 9/3/93 CONSERVATION COMMISSION SEPTEMBER 1, 1993 PRESENT: Paul Tariot Al Manzi Richard Milliard John Leeman Richard Doucette, Administrator OLD BUSINESS #940 Great Pond Road Atty. Carl Croce appeared to discuss the ongoing application for a criminal complaint. Atty. Croce provided an overview of the issues. Fifty shrubs have been planted. Twenty-five men are scheduled. Atty. Croce needs to know what other items he needs to address. The NACC needs a plan showing wetlands, Atty. Croce will provide such a plan. NACC will continue the court hearing for 30 days. Lot 7A Candlestick Road (#242-574) - Violation Phil Christiansen and J.Grifoni appeared. R.Doucette provided an overview of the issues continued from one month ago. Discussion of what was required under the subdivision OOC and the recent OOC (Condition #19). The applicant and Administrator will visit the site and then the NACC will visit the site. NEW BUSINESS Lot 14A Campion Hall (#242-335) - Partial Compliance Steve Franciosa requested a Partial Compliance from the subdivision OOC. Motion by P.Tariot and seconded by J.Leeman to grant a Partial Compliance. Vote unanimous. Lot 10 Tucker Farm Road (#242-242) - Partial Compliance Motion by P.Tariot and seconded by J.Leeman to grant the Partial Compliance. Vote unanimous. Lot 10 Tucker Farm Road (#242-382) - Compliance Motion by P.Tariot and seconded by J.Leeman to grant the Compliance. Vote unanimous. Lot 34 A-1 Carlton Farm (#242-354) - Compliance (Re -issue) Motion by P.Tariot and seconded by J.Leeman to issue the Compliance. Vote unanimous. #18 Willow Street - Update on violation R.Doucette provided an overview. The violation has recently escalated with the filing of a portion of a BVW. Motion by P.Tariot and seconded by J.Leeman to issue an Enforcement Order. Motion by P.Tariot and seconded by A.Manzi to issue a ticket. Vote 3-0-1, J.Leeman abstained. P.273 797 711 Receipt for Certified Mail No Insurance Coverage Provided u ED STATES Do not use for International Mail MO AL SEWN (See Reverse) Sent to Paul T. Mscisz Street and No. 18 Willow Street P.O., State and ZIP Code N.Andover, MA 01845 Postage .29 Certified Fee 1.00 Special Delivery Fee Restricted Delivery Fee Re n t ate et RShoo,win � om, Da a see's 'M L Postage $1.29 Da r _� LMiunr'00� u"gs . j _ 1.2 5/\\ \ / ? ca &2LU _ _ cm {}CA j cn ) §§§ E ca E �3/\ m-/ ]i ate% _ \\ \\/ \\� - C, _ E \/ &{Cm �§\f \� ) _ §k ��# \# iI§` §> % - (/}; {o § �§ I 2J�LUCLE cn ®k\e,�� ±- be CA j/ \f2K §) ƒ- - - _ �\k �, c -i _E c6 ~°x TOWN OF NORTH ANDOVER NOTICE OF VIOLATION OF WETLAND BYLAW C 1 V MWiXZ1 1 100 (A.M) (P.M.) ON Ao-;HCS W7 19 /2 AT THE FOREGOING CITATION *4 fX Unable to obtain signature of offender. Date Mailed [R Citation mailed to offender THE FINE FOR THIS NON -CRIMINAL OFFENSE IS $ YOU HAVE THE FOLLOWING ALTERNATIVES WITH REGARD TO DISPOSITION OF THIS MATTER. (1) You may elect to pay the above fine, either by appearing in person between 8:30 A.M. and 4:30 P.M., Monday through Friday, legal holidays excepted, before: The Conservation Office, Town Hall, 120 Main St., North Andover, MA 01845 OR by mailing a check, money order or postal note to the Conservation Office WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS NOTICE. This will operate as a final disposition of the matter, with no resulting criminal record. (2) If you desire to contest this matter in a non -criminal proceeding, you may do so by making a written request, and enclosing a copy of this citation WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS NOTICE TO: The Clerk -Magistrate, Lawrence District Court 380 Common St., Lawrence, MA 01840 ATTN: 21D non -criminal (3) If you fail to pay the above fine or to appear as specified, a criminal complaint may be issued against you. ❑ A. I HEREBY ELECT the first option above, confess to the offense charged, and enclose payment in the amount of $ ❑ B. I HEREBY REQUEST a non -criminal hearing on this matter. Signature WHITE: OFFENDER'S COPY YELLOW: CONSERVATION COPY PINK: POLICE COPY GOLD: COURT COPY r 310 CMR 10.99 Form 9 4X Commonwealth ` = of Massachusetts DLP File No. �_ None (to be provided by DEP) Ciry rown North AndOver, HA Aooi-cant Mscisz Enforcement Order Massachusetts Wetlands Protection Act, G.L. c. 131, §40 AND UNDER THE TOWN OF NOR"111 ANDOVER BYLAW,. CIIAPTER 3, SECTION 3.5 From North Andover Conservation Commission Issuing Authority To Paul T. Mscisz Date of Issuance September 2, 1993 Property lot/parcel number. address Extent and type of activity: 18 Willow St., North Andover MA The landowner is filling a portion of a bordering vegetated wetland. The land owner has been previously notified by the Commission that this fill has been illegally placed on the property and that the subject wetland has been illegally stripped of all vegetation. The North Andover Conservation Commission has determined that the activity described above is in violation of the Wetlands Protection Act. G.L. c. 131, §40, arid the Regulations promulgated pur- suant thereto 310 CMR 10.00, because: X)MX Said activity has been/is being conducted without a valid Order of Conditions. ❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to dated File number X42— , Condition number(s) ❑ Other (specify) The The land owner has failed to comply with previous Enforcement Orders issed by the Conservation Commission. North Andover Conservation Commission Hereby orders the following: The property owner, his agents. permittees arid all others shall immediately cease arid desist from further activity affecting the wetland portion of this property. XX'U Wetland alterations resulting from said activity shall be corrected arid the site returned to its original con- dition. Issued by North Andover Conservation Conrnnsswn. ti XUx Completed application forms and plans as required Ov the Act and Regulations shall be filed v:rtlr file North Andover Conservation Conunissigffor before 9/14/93 _ (date, and no further work shall be performed until a public nearing has been held and an Order of Conditions has been issued to regulate said work. Application forms are available at. NAC(: Off ice_ --- 120 __120 Mai n S t., ('Town Ila 1 1) X)JRg The property owner shall take every reasonable sten to prevent further violations of the act No. Anduve r, HA Tel. #682-6483 01845 Q Other (specify) Be advised that the Conservation Commission is presently seeking an injunction against you.. Also be advised that the Conservation Commission has issued you a ticket for a violation of the Town Wetlands Protection Bylaw. This violation carries a'fine of $200 per violation. Failure to comply with this Order may constitute grounds for legal action Massachusetts General Liiv.s Chan ter 131. Section 40 provides: Whoever violates any provision of this section shall be punished by a fine of not rnore, than twenty-five thousand dollars or by imprisonment for not more than tyro years or both Each day or portion thereof of continuing violation shall constitute a separate offense Questions regarding this Enforcement Order should be directed to Attorney Joel Bid._-of_Kapelman & PaigE Conservation Administrator Richard Doucette Issued by North Andover Conservation Commission Signature(s) (Administrator) IC 31131UIC° 0 d01Ver� t"r'f or certifiec rnail nurnber I KAREN H.P. NELSON o'' Town Of 120 Main Street, 01845 Director .. NORTH ANDOVER (508) 682 6483 BUILDING CONSERVATION e@'°"°'`t DIVISION OF TH PLANNING PLANNING & COMMUNITY DEVELOPMENT Memo TO : James Gordon FROM : Richard Doucette DATE : September 2, 1993 RE : Enforcement Activity at #18 Willow St. As you are aware, the Conservation Commission has been pursuing enforcement activity against Mr. Paul Mscisz at 18 Willow St. Our attorneys are seeking an injunction against him for various wetland violations and failure to comply with the Commission's Enforcement orders. Please be advised that, due to recent filling of a wetland wit': topsoil, the Conservation Commission voted last night to issue our first ticket to Mr. Mscisz. This violation carries a fine of $200. Conservation Commissioner Al Manzi and I attempted to serve Mr. Mscisz today but he was not home. The ticket was sent certified mail. CC : Karen Nelson North Andover Police Department COMMONWEALTH OF MASSACHUSETTS ESSEX, SS TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, PLAINTIFF V. PAUL E. MSCISZ, DEFENDANT SUPERIOR COURT C.A. NO. 93-2187D PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION Now comes the plaintiff, Town of North Andover Conservation Commission, and hereby moves this Court, pursuant to Mass. R. Civ. P. 65(a) for a preliminary injunction in its favor, pursuant to Prayer 3 of the Verified Complaint in the above matter ordering the defendant to: immediately cease work activity in and affecting wetlands; correct wetland alterations and restore the wetlands; file a Notice of Intent; and place hay bales on the site. As grounds therefor, the defendant relies on the facts contained in its Verified Complaint and on the attached Memorandum of Law. Wherefore, in view of the foregoing, it is respectfully requested that the within motion be allowed. PLAINTIFF, TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, By its attorneys, J el B: Bard (BBF #D29140) ; athleen E. Conn ly (BBO 58706) Kopelman and Paige, P.C. Town Counsel 101 Arch Street Boston, MA 02110 (61-0007 Dated: LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. DONALD G PAIGE ELIZABETH A LANE ATTORNEYS AT LAW JOYCE FRANK JOHN W. GIORGIO 101 ARCH STREET BARBARA J. SAINT ANDRE JOEL B. BARD BOSTON, MASSACHUSETTS 02110-1137 EVERETTJ MARDER BOSTON OFFICE JOSEPH L. TEHAN. JR. 16171 951.0007 WILLIAM HEWIG III FAX 16171 951.2735 THERESA M. DOWDY NORTHAMPTON OFFICE PATRICK J. COSTELLO 14131 585.8632 WORCESTER OFFICE 15081 752-0203 October 12, 1993 Essex Process Servers, Inc. 2 Salem Green P.O. Box 3043 Salem, MA 01970 KAREN V KELLY DEBORAH A ELIASON JEANNE S MCKNIGHT JUDITH C. CUTLER ANNE -MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS DAVID J. DONESKI BRIAN W. RILEY KIMBERLY A. HOLLIDAY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON Re: North Andover Conservation Commission v. Paul E. Mscisz Essex Superior Court, C.A. No. 93-2187D Dear Sir/Madam: Enclosed please find an original Interlocutory Order Continuing Restraining Order in force until hearing on November 9, 1993. Kindly serve this document on the defendant Paul E. Mscisz at 18 Willow Street, North Andover. Please send a copy of your return of service, along with a bill for services, to me at this office. If you have any questions in this regard, please do not hesitate to contact me. Thank you for your assistance in this matter. Ve �tru leen ronnolly KEC/cal Encs. cc: Conservation Commission (w/o encs.) PRINTED ON RECYCLED PAPER LEONARD KOPELMAN DONALD G PAIGE ELIZABETH A LANE JOYCE FRANK. JOHN W GIORGIO BARBARA J SAINT ANDRE JOEL B BARD EVERETTJ MARDER JOSEPH L. TEHAN. JR WILLIAM HEWIG III THERESA M DOWDY PATRICK J. COSTELLO KOPELMAN AND PAIGE. P.C. ATTORNEYS AT LAW 101 ARCH STREET BOSTON, MASSACHUSETTS 02110-1137 BOSTON OFFICE 16171 951-0007 FAX 16171 9512735 NORTHAMPTON OFFICE 14131 585-8632 WORCESTER OFFICE 15081 752 0203 October 28, 1993 Civil Clerk's Office Essex Superior Court Lawrence Division 34 Federal Street Salem, MA 01970 Attention: Mr. Ted Sullivan KAREN V KELLY DEBORAH A ELIASON JEANNE S MCKNIGHT JUDITH C CUTLER ANNE -MARIE M HYLAND RICHARD BOWEN CHERYL ANN BANKS DAVID J. DONESKI BRIAN W. RILEY KIMBERLY A. HOLLIDAY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON Re: North Andover Conservation Commission v. Paul E. Mscisz Essex Superior Court, C.A. No 93-2187D Dear Mr. Sullivan: As we discussed yesterday, this is to confirm that the parties in the above matter have agreed to lift the Temporary Restraining Order which the Town of North Andover Conservation Commission obtained against defendant Paul Mscisz from the Court on September 16, 1993, and which was continued in full force and effect until the hearing on preliminary injunction scheduled for November 9, 1993. The parties have reached a partial agreement regarding certain restoration activities, as described in an Order of Conditions issued by the Town to the defendant, to be conducted by the defendant on the subject property. Accordingly, you may remove the case from the motion list for November 9, 1993; however, the Town reserves its right to request a hearing on its motion for a preliminary injunction at a later date, in the event that the defendant does not fully comply with the Town's Order. Thank you for your assistance in this matter. KEC/cal cc: Conservation Commission John Richard Hucksam, Jr. PRINTED ON RECYCLED PAPER LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. DONALD G. PAIGE ELIZABETH A. LANE ATTORNEYS AT LAW JOYCE FRANK JOHN W. GIORGIO 101 ARCH STREET BARBARA J. SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137 JOEL B. BARD EVERETT J. MARDER BOSTON OFFICE JOSEPH L. TEHAN, JR. (617) 951-0007 WILLIAM HEWIG III FAX 16171 951-2735 THERESA M. DOWDY NORTHAMPTON OFFICE PATRICK J. COSTELLO (413) 585-8632 WORCESTER OFFICE (508) 752-0203 September 17, 1993 Members of the Conservation Commission North Andover Town Hall 120 Main Street North Andover, MA 01845 KAREN V. KELLY DEBORAH A. ELIASON JEANNE S. MCKNIGHT JUDITH C. CUTLER ANNE -MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS DAVID J. DONESKI BRIAN W. RILEY KIMBERLY A. HOLLIDAY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON Re: North Andover Conservation Commission v. Paul E. Mscisz Essex Superior Court, C.A. No. 93-2187D Dear Members of the Conservation Commission: I am pleased to inform you that we were successful in obtaining a temporary restraining order from Essex Superior Court in Lawrence on September 16, 1993, to restrain the defendant in the above matter, Paul E. Mscisz, from any filling grading, removal of vegetation, stockpiling or disposal of soil or other materials, or operation of any machinery (e.g., backhoe, truck, grader, saw) on the Site located at 18 Willow Street, North Andover. A copy of the Restraining Order is attached. In addition, we were successful in obtaining a short order of notice for a hearing on the Town's request for a Preliminary Injunction for September 23, 1993. The defendant's counsel informed me in discussions outside of Court that the defendant intends to comply with the Conservation Commission's Enforcement Orders until this matter is resolved. He also stated that the defendant intends to engage an engineer to identify and/or confirm the actual wetland areas on the property, and that the defendant will comply fully with the Commission's restoration orders for any identified wetlands areas in which illegal work was conducted. Please monitor the Site in the next week to ensure that the engineering analysis does not result in any additional wetlands violations. I will ask the defendant to provide the Commission PRINTED ON RECYCLED PAPER KoPELMAN AND PAIGE, P.C. Members of the Conservation Commission September 17, 1993 Page 2 with the results of his engineering analysis as soon as it is completed. Please note that the defendant's independent analysis of the Site does not replace our efforts to obtain injunctive relief from the Court. In the event that the defendant's engineering reports reach conclusions about the locations of wetlands areas contrary to the Commission's findings, I will address that issue before the Court at the hearing on September 23, 1993. If you have any questions in this regard, please do not hesitate to contact me or Joel Bard. KEC/cal Enc. cc: Board of Selectmen Town Manager COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No.93-2187 D TOWN OF NORTH ANDOVER ................... ON SER��AT ION COMMIS S ION Plaintiff s ....................................................................................... ( ) o. .................AUL E. MSCI..Z ...........................Defendants) SUMMONS AND RESTRAINING ORDER To the above-named Defendant: You are hereby summoned and required to serve upon Joel E. Bard, Esq . plaintiffs attorney, whose address is 101 Arch St:. , Boston, MA 02110 an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Lawrence either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY, YOU that application has been made in said action, as appears in the complaint, for a preliminary injunction and that a hearing upon such application will be held at the court house at said Lawrence Superior Ct. in the "D" session without jury of our said court on Thursday the 23rd day of September A. D. 19 93 , at Two o'clock XPM., at which you may appear and show cause why such application should not be granted. In the meantime, until such hearing, WE COMMAND YOU, said Pan_1 E. Mseisz and your agents, attorneys and counsellors, and each and every one of them, to desist and refrain from any filling, grading, removal of vegetation, stockpiling or disposal of soil or other materials, or operation of any machinery (e.g., backhoe, truck, grader, saw) on the Site located at 18 Willow Street, North Andover. gOBERT L STEADMAR Witness, , Esquire, at Salem, the 16th day of SFptE:mbe:rin the year of our Lord one thousand nine hundred and 4M - ninety�t�ee Issued at 2: �- Clerk. NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate summons is used for each defendant, each should be addressed to the particular defendant. OFFICE #27 PROOF OF SERVICE OF PROCESS I hereby certify and return that on , 19 , I served a copy of the within summons and restraining orders, together with a copy of the complaint in this action, upon the within named defendant, in the following manner ( See Mass. R. Civ. P. 4 (d) (1-5) : Dated: , 19............................................................... N.B. TO PROCESS SERVER:— PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. r] P4 z 0U �a TA , 19 i z 0 H H H � x oz q vWi o W U oo U ON 0U N w HW �> A wx x Q zH 0 E 0 H N 0 W N HU cn r] P4 z 0U �a TA , 19 i COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, Plaintiff, V. PAUL E. MSCISZ, Defendant. SUPERIOR COURT C.A. NO. PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER The plaintiff hereby moves this Court, pursuant to Mass. R. Civ. P. 65(a), for a temporary restraining order pursuant to Prayer 1 of the Verified Complaint filed herewith in the above captioned matter. In support of this motion, the plaintiff relies on the facts and exhibits set forth in the Verified Complaint filed herewith. Dated : , t /3 x5033 TOWN OF NORTH ANDOVER CONSERVATION COMMISSION By their attorneys JoAT B. Bard (BBO# 02 0 Vt leen E. Connolly (BBO# 558706) elman and Paige, P.C. Town Counsel 101 Arch Street Boston, MA 02110 (617) 951-0007 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT C.A. NO. TOWN OF NORTH ANDOVER CONSERVATION COMMISSION, Plaintiff, V. VERIFIED COMPLAINT PAUL E. MSCISZ, Defendant. INTRODUCTION 1. This is an action seeking injunctive relief and civil monetary penalties pursuant to the Wetlands Protection Act, G.L 131, §40 ("the Act"), and the Town of North Andover Wetlands Protection By-law, Chapter 178 ("the By-law"), for violations of said Act and By-law. Jurisdiction is conferred upon this Court by the Act and the Court's general equity jurisdiction. Parties And Facts 2. Plaintiff Town of North Andover ("the Town") is a municipal corporation located in Essex County, Massachusetts, acting by and through the North Andover Conservation Commission ("the Commission"), having a usual place of business at North Andover Town Hall, 120 Main Street, North Andover, Massachusetts. The Commission is charged with enforcing the Act and By-law. 3. Defendant Paul E. Mscisz ("Mscisz") is an individual residing and owning land located at 18 Willow Street, North Andover, Massachusetts ("the Site"). 4. In 1991, Mscisz cleared several thousand square feet of 1 woodlands on the Site. The Commission subsequently met with Mscisz and informed him that a portion of that clearing occurred in a wetlands, in violation of the Act and By-law. Mscisz was informed that said clearing, and any future clearing or work activity, required the approval of the Commission. S. In 1992, the Commission received a report that Mscisz was conducting new work in wetlands on the Site. On or about September 9, 1992, the Town's Conservation Administrator ("the Administrator") inspected the Site with Mscisz. The Administrator observed that Mscisz was removing vegetation, grading, and altering land adjacent to a wetlands in an apparent attempt to develop a walking track for horses and to improve drainage on the Site. The Administrator informed Mscisz that such work activity would require approval from the Commission pursuant to the Act and By-law. 6. On September 17, 1992, the Administrator discovered new illegal work on the Site, including filling and grading land within a wetlands. 7. On or about September 22, 1992, the Administrator notified Mscisz that his work activity was being conducted in a wetlands and would require permission from the Commission. The Administrator requested Mscisz to appear at the Commission's next meeting on October 7, 1992, to discuss the illegal work activity. (A true and accurate copy of the September 22, 1992 correspondence from the Administrator to Mscisz is attached hereto to as Exhibit A.) 8. Mscisz did not appear at the October 7, 1992 meeting of the Commission, nor did he respond to the Administrator's letter of September 22, 1992. 9. On or about October 8, 1992, the Commission issued an Enforcement Order to Mscisz pursuant to the Act and By-law ("the October 8, 1992 Order"). That Order informed Mscisz that he was required to obtain the approval of the Commission to perform construction, grading or filling in the wetland. That Order stated that no construction activity of any kind was allowed on the Site until approval was granted by the Commission. The Commission directed Mscisz to appear at its next meeting on October 21, 1992. (A true and accurate copy of the October 8, 1992 Order, with return receipt, is attached hereto as Exhibit B.) 10. Mscisz never appealed or complied with the terms of the October 8, 1992 Order. 11. On or about October 21, 1992, the Commission required Mscisz to file a Notice of Intent pursuant to the Act and By-law for the work that was undertaken on the Site. (A true and accurate copy of the minutes of the October 21, 1992 meeting of the Commission are attached hereto as Exhibit C.) 12. On or about October 29, 1992, the Administrator provided Mscisz with instructions and forms to file a Notice of Intent with the Commission. The Administrator informed Mscisz that all work was to stop until he received a permit from the Commission under the Act and By-law. (A true and accurate copy of the October 29, 1992 correspondence from the Administrator to Mscisz is attached hereto as Exhibit D.) 3 r _ � 13. Mscisz never responded to or complied with the October 29, 1992 correspondence and instructions from the Administrator. 14. On or about May 14, 1993, the Commission issued a second Enforcement Order to Mscisz pursuant to the Act and By-law ("the May 14, 1993 Order"). The Commission informed Mscisz that he was illegally filling land and stockpiling soil within and adjacent to a wetland in violation.of the Act and By-law. Mscisz was ordered to immediately cease and desist from any further activity affecting wetlands and to immediately correct the violations and return the Site to its original condition. The Commission informed Mscisz that he was required to submit completed application forms and plans to, and require approval from, the Commission for his work activity. The Commission directed Mscisz to attend its next meeting on May 19, 1993 to discuss the requirements. (A true and accurate copy of the May 14, 1993 Order and cover letter thereto, with return receipt, are attached hereto as Exhibit E.) 15. Mscisz never complied with or appealed the May 14, 1993 Order issued by the Commission. 16. On or about May 24, 1993, the Commission conducted an inspection of the Site with Mscisz. The Commission informed Mscisz that the stockpiled soil was illegally located within a wetlands. 17. On or about June 2, 1993, the Administrator and a certified soil scientist conducted a site inspection with Mscisz. Mscisz was informed that much of his past filling, grading and removal of vegetation had occurred within a wetlands, in 4 violation of the Act and By-law. 18. On August 30, 1993, the Administrator inspected the Site and observed that Mscisz was in the process of filling wetlands with the soil he had illegally stockpiled on the Site. Mscisz had not restored the Site to its original condition, nor had he stopped filling land and stockpiling soil in and adjacent to wetlands, as required by the Commission's May 14, 1993 Order. Furthermore, Mscisz had not filed a Notice of Intent with the Commission. 19. On September 2, 1993, the Commission issued a third Enforcement Order to Mscisz pursuant to the Ac-_ and By-law ("the September 2, 1993 Order"). The Commission informed Mscisz that filling wetlands with the stockpiled soil constituted a violation of the Act and By-law, and that Mscisz was ordered to cease and desist from any additional wetlands filling. The Commission also ordered Mscisz to remove said fill from the wetlands. (A true and accurate copy of the September 2, 1993 Order is attached hereto as Exhibit F.) 20. As of the date of this Complaint, Mscisz has not complied with the Commission's three Enforcement Orders. Wetlands Protection Act, G.L. c. 131, X40 21. The Act, G.L. c. 131, §40, states that, "No person shall remove, fill, dredge, or alter any... fresh water wetland... without filing written notice of his intentions [with the conservation commission]... and without receiving and complying with an order or conditions [issued by the conservation commission]...." [emphasis added]. The Act also states that a k, conservation commission "may issue enforcement orders directing compliance with the [the Act) and may undertake any other enforcement authorized by law." 22. The Act further states that, "Any court having equity jurisdiction may restrain a violation of this section and enter such orders as it deems necessary to remedy such violation...." The Act also provides that, "Whoever violates any provision of this [Act), (a) shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than two years, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation." [emphasis added) North Andover's Wetlands Protection By-law 23. The By-law states at chapter 178.2 that, "Except as permitted in writing from the Conservation Commission... no person shall engage in the ... removal, filling, dredging, discharging into, building upon, or otherwise altering or degrading... any freshwater wetland ... or any land... subject to storm flowage, or flooding, or inundation by groundwater or surface water, and the floodplain. The Commission shall not grant such permission without receiving notice of the intention to conduct such activity, and without issuing written permission to do so...." (A true and accurate copy of the By-law is attached hereto as Exhibit G.) 24. Section 10 of the By-law states that, "In the event of a violation of this By-law..., the Commission or its agents may issue a stop order to the owner.... Any person who shall violate M the provisions of a stop order shall be deemed in violation of the By-law;..." The By-law also provides that, "Any person who violates any provision of this By-law... may be punished by a fine pursuant to Massachusetts General Laws, Chapter 40, section 21." Violations Of The Act And By-law 25. As of the date of this Complaint, Mscisz has not complied with the October 8, 1992, May 14, 190.3, or September 2, 1993 Enforcement Orders. In fact, Mscisz recently resumed filling and altering wetlands, in blatant violation of those Orders. He has not restored the illegal wetland alterations. Mscisz has not submitted a Notice of Intent or received an Order of Conditions to restore the illegally altered wetlands and perform future work activity on the Site. Msciszls actions, therefore, constitute a flagrant violation of the Act and By-law. Those violations may be restrained by this Court and his violations are subject to mandatory criminal or civil penalties as specified in the Act, G.L. c. 131, §40, and fines provided in G.L. c. 40, §21 as specified in the By-law. PRAYERS FOR RELIEF WHEREFORE, the Commission requests this Honorable Court: 1. Issue a Temporary Restraining Order ordering the defendant Paul E. Mscisz to immediately cease and desist any filling, grading, removal of vegetation, stockpiling or disposal of soil or other materials, or operation of any machinery (e.g., backhoe, truck, grader, saw) on the Site located at 18 Willow Street, North Andover; 7 I 2. Issue a Short Order of Notice for a hearing on a preliminary injunction. 3. Issue a preliminary injunction, ordering Paul E. Mscisz to immediately comply with the October 8, 1992, May 14, 1993, and September 2, 1993 Orders issued by the Commission pursuant to the Act and By-law for the land located at 18 Willow Street, North Andover ("the Site") by: (a) Immediately ceasing and desisting from further work activity on the Site affecting wetlands and the 100 foot buffer zone thereto, including, but not limited to, filling, grading or removal of vegetation; (b) Immediately correcting wetland alterations and returning the wetlands to their original condition, including, but not limited to, removal of stockpiled soil within the wetlands and 100 foot buffer; (c) Immediately filing with the Commission a complete Notice of Intent in compliance with the Act and By-law, which shall include, among other items: (i) a description of all wetland areas altered by Mscisz or his agent; (ii) a schedule for restoration of all such altered wetland areas; (iii) an engineered plan designating all original (that is, pre -altered) and current wetland boundaries on this Site. Said Notice of Intent shall be submitted to the Commission no later than thirty (30) days after the date of the Court Order; (d) Immediately placing a continuous row of double - staked hay bales upgradient of and around the perimeter of the wetlands on the Site to prevent further siltation, sedimentation, 9 - � r and alteration of the said wetlands; 4. Issue a permanent injunction, ordering defendant Paul E. Mscisz to immediately comply with the October 8, 1992, May 14, 1993, and September 2, 1993 Enforcement Orders issued by the Commission pursuant to the Act and By-law for the land located at 18 Willow Street, North Andover ("the Site") by: (a) Immediately ceasing and desisting from further work activity on the Site affecting wetlands and the 100 foot buffer zone thereto, including, but not limited to, filling, grading or removal of vegetation; (b) Immediately correcting wetland alterations and returning the wetlands to their original condition, including, but not limited to, removal of stockpiled soil within the wetlands and 100 foot buffer; (c) Immediately filing with the Commission a complete Notice of Intent in compliance with the Act and By-law, which shall include, among other items: (i) a description of all wetland areas altered by Mscisz or his agent; (ii) a schedule for restoration of all such altered wetland areas; (iii) an engineered plan designating all original (that is, pre -altered) and current wetland boundaries on this Site. Said Notice of Intent shall be submitted to the Commission no later than thirty (30) days after the date of the Court Order; (d) Immediately placing a continuous row of double -staked hay bales upgradient of and around the perimeter of the wetlands on the Site to prevent further siltation, sedimentation, and alteration of the said wetlands; 5. Impose a civil penalty, pursuant to the Act, in such amount as the Court shall regard as proper and just, for each day of the continuing violation. 6. Impose a civil penalty, pursuant to the By-law, in such amount as the Court shall regard as proper and just, for each day of the continuing violation. 7. Award the Commission its reasonable attorneys' fees and costs. 8. Grant such other further relief as this Court may deem proper. Date: x5033 Respectfully submitted, TOWN OF NORTH ANDOVER CONSERVATION COMMISSION By its attorneys, Joel B. Bard (BBO #0291140) Kathleen E. Connolly (BBO #558706) Kopelman and Paige, P.C. Town Counsel 101 Arch Street Boston, MA 02110 (617) 951-0007 10 • Y , VERIFICATION I certify that I have read the foregoing Verified Complaint And that the facts contained therein are based upon my personal knowledge or upon information available to me in my official capacity as Agent for the Town of North Andover Conservation Commission and are true and accurate to the best of my knowledge and belief. Signed under the pains and penalties of perjury this (,-OA- day of September, 1993. x5033 Richard P. Doucette, Conservation Administrator, Town of North Andover 11 +F-t-CF_S OF f' Town of `NORTH ANDOVER BL •I.:nl��• �.�-�:.� � O1SF- R`. 1TIr, H 1r '�. LTr- DIVISK)" OF F'L 1NN t 1-i PLANNING & COMMUNITY DEVELOPMEN I h �R , F, P NELS' )% !_)IRE ,_T()t. SeT✓ �er.ber , 19�: Yr. Pau'_ E. MsCisz 1E willow Street Ncrth Andover YJ. 0184 Deal Mr. MsCisz: 12O N1am Street Norah .A,noo-e: IsnF EXHIBII A I appreciate you= meetinc watt: mF on ser:temLner 9t t�i show rE the wcr}, on your property wh_`ch s unnerwa, . T: wcrY n� _ude� t:,E dE . Eiopme�:t C c wa_}::,nz trs_i: fcr hors=_s . K.`. _ e rE,iewinc a proposeo suns:%ision ac -ac=_-.' L you la ,c c:. s .o c-�, y are attempt,nc t- Septer�Er 1 i th , i � appears a tr a _. �.,r• _ inr=ve the dra:inaae lr. the rear of yot:r plan^ . I ass na— that, to Is dra_naaE wcr}: 1s rElateO tc the horse tract:. Please be advisee t";at 41.--.h1s. wort: 15 ta}:1nc Face ii. a wetland and you must therefore receive perr..issior. fror. the Conservation Commission. The Conservat_on COT,—LmiSsion F s ne>:t neeting is October 7, 1992. Please apnear a7:30pr, to disc -_,ss tis project with the Coia-:ission. Sincere_y, Richard P. Doucette Conservation. Adr.inistrator .310 CMR 10.9' Form 9 Commcnwea!tr o' Massacnusettr Fro n f EXHIBIT B prr 1SI1 t 1� Enforcement Order r0assachusetts Wetlands Protection Act. G.L. C. 111, 54U A1v- UNDEF, THE TOWN OF t:Uf.; !'. Af;L`U\'f ?. f'' .::.: , C'fi'. . LP 3, SLt'! ? U' North Andover Cori ser•.a', ( ._IisF_c Ycu F. 1iEC-£C 1 C' � � UC LDr)E3 u�i� .. !SSUc"'C� Pry zedy lot :.c'Ce' rlJMlc- acc,!es`_ LXteni and CGns. a _io-n aC._ t 1 gTaEin.� el' lanC 1` _ ncrCErinf veQe E tec wetlaac. The North Andover Conservation in oat of the Yveflancs Prole A.s' G.� aoove is vl i icn ... � . _ ..- suant theretc 310 CMR 10.00. becaus_: ?j` -`-Laid aGL'!'It;� has been/is being conCUC'.SC •: ihCU a �'c :0 0'Cer 1— Said actrt'ih has beenris being cenouct=..'n issuez cat= Fife numoe, ?L—. Conc,tion numceris! Thi -s enforcement order is being issued after tnE C10iaLG' ZaiieG tC reS:^ tC' a ieLteT datEC Sept. 2-,, 1992. This i'iGlat�OP. continue a:LEr the i5ndG4::E' was prEviousiv notified that the land jr- question was a wet�and and therEfCTE :seeded the approval of the Conservation Commission. The North Andover Conservation �or.:,r:fssic't he!e�yor�e+s thef0ilo�•:Ing The prcc 't), r tpoc C '' he's c(1 'i e owner his agents. ce ��� � � ct a. � - Xk ?; act!vtty affecting the wetlanC Gordon ct t Wetland alterations resulting from sa c' ':. `. s`,a'� e CD C'Cte� t p Slle rptil•T„_'C` tC '-` _ _ lad Con" c_ gition. Issued by t NOI CIt AIIUUV C I k,0IIbCjVQLItIH COmpleIeO aDDItCaIton tot MS and plans a< IPOutt Pd t�' the k: ; S"C RC0.;.2"Onc Shal! L)(• hlec v: tl}t it)( North Andover Conservation Commisslt)+lc' betotf _ toatf ano no turihel worF, shall be performed unit, a publl: nea'tno tt3` bPP" nE'C ano 8n DOPt 0• (Onollipn has been issued tc regulate sato WCO, Ac. IlCczlton N?t}C 0f ofct I own lin .�•1DThe proDerl> Ov.'net Shal! IaKE evety reasDnab!E SSEC !: ntP\•E,ts fu( vt7l3IIDnS of itif 871 NV. Andv 'e 7e1. Ir(t8�-t;�ig3 K;z,, Dihe! (Spec" ) Kc co, Structior activity- of any kind including gradin, digzing, filling, equipment traffic or cutting of vegetation is allowed until the Cor.servatior, Comr:.ission appro,-- o suer. work o;. this property. The landowner will appea- before the Conservatio.. Commfssion at its meeting on WednesdaN October 21, 1452 at 7pm. This matter will be heart between 7pm and 8pr.. Failure to appear may result the filing of a crimina: complaint. Falture 10 COmDIp with this Order may COnslllule Dictunds 1D' le0a'. 2011 1:',2=5ZChUSF11� JPnnt �1 L�':• 5 �:11e: le! 1 3't . Section 40 Drovides VVhDP,.'e' violates an> provisic-i O' ih!F ccC!iD ct,?Ii C pUtT•c lad 2 IittF Di n^ r` r o r r� t^t �•i ,Cn^tP-, t^ n m^'� • an 1�':c vea'� t^' C `! 1ha�� Rve'ttY-tive 1hDUSan OD,iz O � ` t -f irj `Ili ;�. \'i.�i0il�'-1 S�f��i5i., ✓.= � CO�pu��ctc- �,+t[r.cr f ia'' Ea:.h oat or poniDn therea.f o co GUeSiiDrtsreoaroirt_ this Enlorcemeni Uoe- S't lt!C'DE C"P7-1e 1� tss:Je- b' Ncrth Andover Conserva, ior, Cori,. iF-si(-'r y Si�natUre(si (Administrator) Itc. t-n6oveT Conservatior. Co= - s -z_ -- Y Ir ,.c: {, I tC.1'i�'_r•C p' tc'ltllo� RlEiil flU'Ti:`�' I • �' —�.act-�w.•_-.�..�.r r:...;•,z�.�....n•.-�. - - -- -- - - - -� f SENDER; 1? • Complete items t andror 2 for additional ecnlcee. Complete items 3, and a & b, t } also w -s^ to rocelve the }oilpwing Serv:crs (for en extra • Print your name and.addr/ag on the reverse of this form a0 tlmat we cM return texe card to VOW. t> • AtLsch this fo•m to the front of the meopiate, or on the back does not Derr-& if apacet. _ tee): ] Addressee*s Addros3 • Write 'Return Receips RepwsLC' on tM meilpiece Oelorr tl+e artfc a number � • The Return Reeeept 2. ❑ Restr,tted Delivor n rvetl show to whom The ertkOr ie was dell and the dote C I Y °el'yeri6' 3. Consult ;tmastor for tee. Artiefe Addressed to: 40. Article Number m Paul hscisz 4-7 014 787 E 4b. Service Type 4 i8 Willow Street C Registered [ -u'rea (� *forth Andover. MA- 01845 Cenified ^ COD � tr � ! Express Mail = ^�%irn Receipt for e1 s al Mi—chandise • Xy?I} 7. Date of Dellvortot A >Ifs. Signature (ddress Adorossoe's Address Only if rcciuested l r� i snd 'ee Is paid) e 6 Smgneture iAgent) i l 2 PS For m1 1, December 199t o US.G.P.o. 1a�•C+a? _ . - - - 530 DOMESTIC RETURN RECEIPT DRAFT 10/22/92 PRESENT: OLD BUSINESS NACC MINUTES OCTOBER 21, 1992 George Reich Paul Tariot Alison Brewster KeviLn Foley Richard Doucette Karen Nelson EXHIBI1 C Coventzv Estates I (#242-324) - Status of Compliance Review Pat Seekamp from Wetlands Preservation discussed the compliance review of this project. There are problens. with some of the drainage structures and resulting siltat_on. Shawnut Bank: clean catch basins, Lot 16 swaie. Use bond: Detention pond on lots 31 and 32. Drain on lots 14 and 15. S Motion by P.Tariot anc seconded by K.Fole'. adopt the minutes of 10/14/92. OLD BUSINESS (continued) #18 willow Street - Violation R.Doucette gave an overview of the viciat_cn. NACC require_ a permit to be filed for the work. recently d ---,e and to be done as well as future work. 4980 Great Pond Road-- Restoration R.Doucette and Court Young gave an overview of the violation and the restoration effort. KEW BUszrrEss Lot 6 Hidden Court (,#242-560) -Compliance Scott Giles submitted a letter and an as -built plan to request a Compliance. Motion by P.Tariot and seconded by A.Brewster to issue a Partial Compliance. 1,ot 50 Blue Ridge_ Road 0242-5701 - Compliance Scott Giles submitted a letter and an as -built plan to request a Compliance. Motion by A.Brewster and seconded by P.Tariot to issue a Compliance. Lots 23A and 28A South Bradford St. (#242-62.162.3)_- Modification Request for modification made by Scott Giles. Motion by P.Tarict and seconded by A.Brewster to issue the Modification. Vote 3-1, G.Reich opposed. Post -it" brand fax transmittal memo 7o of piyea ► T9. From i DW. Phone 0 OFFICES OF Town of 120 Main Street APPE A%L� '• y f: NORTH ANDOVER North Andover Ma55i1C'hU4!'w- ()1 Ems- CONSER'. ATION DIVISION OF (01 1 G8 54 7 7 5; HEAL TH PLANNING & COMMUNITY DEVELOPMENT EXHIBIT n HP NELSON. DIRL.: TCS= October 29, 1992 Paul E. Mscisz lE Willow St. North Andover M� 01845 Dear Mr. Mscisz: Attached are the instructions and forms -'zr filing a 'Notice o` Intent' with the Ccnservation Commission. As you know, the Cor'a:ission voted at they. October 21, 1992 meeting to require to Vo": tc, f i lE a Notice of Intent for the wart: vc.: have come 1 etec in the rear of your property. All work is to stcr until permits are obtained This permit will pertain to all wor:,: you have completed and any work punnet in the near future. This permit is required by local and sta:E law since a large pertior, of the rear of your property is a wetland. You were notified over a yea: ago that this property- was a wetland and that any additional wort: would require a permit. Additional work was then undertaken without a permit. The Conserti-a'.ion Commission has been very lenient in this matter and I hope you will respond by filing for the necessary permit. Sincerely, Richard P. Doucette Conservation Administrator TolA of NORTH XNDOVER W KiO', (it PLANNING & CO!NINIUNITY DEVELOPMENT Mav 14, 1°G H� Paul E. msclsz willow Street Ncrth Andover Mk 0164-1 Dear M-. Msc_sz. 120 Main Street. 0IF4 (505) 65_' -Fab:'. EXHIBIT E Enclosed is another Enforcement Order fcr a vic_atior. of the Sate Wetlands Protection Act and the No—n A.dcver wetlandE P �_tec� icr. Bv _11 a,�%on yo -,;r property . You have been irnf ormed or: ce-:era1 occasions thai any f__:inc gradinc c- other a _eratlo-: Cl ir. the rea c` yo r property recuire-s a pe -r,.1 t f -or.. the �onsErvatio;. Co-nr,ls_ior., You have ignored cu. y pa=__ d_rectior: an we are no, forced to take additional action Tin,= Enforcer:ent Order has been recorded at the Req_:stry of Deeds and will act as a lien on your dee,-'-. This will create tifflcultles in selling or recinanclnc the property- Thls matte= be turned over to the Department of Environmental Protection' w - l , enforcement personnel as we-!--,. The Conservation Co=lsslon wilt discuss this matter at the Senicr Center at :OUp c May 19th, I urge you to attend this meetinc. Respectfully, Richard P. Doucette, Conservation Administrator Town of North Andover MA Form CO n -,T1 nv, C C __ �•t'� of t�1c_, aC 1 Set" EaHIBI1 E C?cF.,e r+o I hone i (lc cue D: ; Enforcement Order Massachusetts V'►etlands Protection Act, G.L. c. 1?1, §4U CliAi'.--.. 3, 5L:'ill)1, -'•- fin -4e ey Cc isE' •�'' 1C.. :, i'. .:? _. _... t; _, .. 'l; �+Ut!1C' � Z-A,IE-. a-.= '.1'J= -_, a --...'I' O: -anC anc stc::kr:l_1n` aC_.acEi:; anc pCSS«_ 1.. L.eL a -c• It,c r„iYi �ind Q•:'e?- COrlse:vati0?i �, C.`: ,:i1! cc1C:'t j1�C �1, fol(; I;t1� � tila� iii' ��t', It1 r�`, _.. �`-.c-{ G :E IS C! Vlpiatl O. the Pe- -WR ,oCWR 10.00, because ,;:.•:Sa, ac.i,ity has been;is being ccnCus'•ec',:ilhs'u; a :ai:d Order of L .r,: „ azl!1'(ty has beerms being ccnducte.. in v!C'a'!'Cn of a1 Orde• Of COnd!ilonS !SSl1`2�4 r5 da!er riie nus, be' ?U2— Condition nurncer(s) aZ-D-1%01trie� (sped'?) The landowner Was informed on pre,:iouE occasions that the area In question 1s a wetland and to stop work. Letters, Enforcement Orders and verbal direction from the Conservation ComL.ission have not resulted in compliance. Now new filling and stockpiling has begun on the properti:• Tne t;ortli Andover Conservation Conn::iss { on hereby orders the fO' C',:inQ j;,�+;'I ne GrOoerty owner, his aoents. oermrt!GeS 2nd a' others sit:ai im:rne'!;c!e!i' C -2r- c!,C d� - actlJity affecting the wetland portion of this property. ;u,Wetiand alterations resulting from said activity sha!1 be corrected and the site retu'(ted to its C!'a'!tc' con d(t(on. M I f (1!11'1 t'.��'•�� y North /%11dL)N,'r Lc :'.tiC'f4':1L lull issuer, D �if l.t?^1;)'c IE'G aJD1� a1;0n toms ano OID!`l`• Dc 1ep:+'E : t,, North Andover COnsCTVntJ011 �.':. fssfttrc'bele'E —icy a 1: n: IU'inE' V,orh seal. be performed (1r111'. d C' t1E�'I'i� 1,ar be(11 hel� a' ?`1, a': t:/I :t of f f ha-- bee-� Issued to repulate Salo WorWork }� nE p'C:'e�tj' ov.'ne" shat' take every rea SIC- 1C,r.0 .(;i. 1� X11^' v' t• '1[ N 111, 'r,:' l:o. t111rJc c ; }.:G?. (Dine, Isoec+lyl T'S.iE matter wil hE discussed at the Ma•: 19 I�C� Conser'vat10T'. ComrrisSlor. meetin€ T'r,E Co%i.lssior. w-'1_11 discuss the potentia; for leg -a! aztio-, at that timE. ce atE hare-dlrecteG to attene that ineetlnE a, !:0(lpr ir. the Serio. Center ad -,2' LC 1okT. hall. f: IE:,� cCrl�• t::2c5�"ItU' it: (�c tlr. �,' - .... '_ a. !'a••U'E t: C: Ti p'" v:11h tni_ Order ma! Con51!tUt� O'C•. ,..- - . L .. rc li } 4 R"O Ibe5 �'dnoe•'e' vro,ates an)' provision c f int[ C�' :�' S'1;,'' t'r t -'✓11, In i�'-'1.1'T-IC*`�' l�' .�. ri i'lic trlr ^.. t' :r' \.p �,r �• 1.� than rN4'enty-live thousand do"a's or b,' 'l ' Lan,, oat, o' portion therd-Cy' D' Cpt111nU+'+:. �•t:;;a;t��� S'�31 CC )5111'J tE 5`_i3'^�,r ofirft. . I. 1 �_ 01'E�tE� 1� R: ..r-.•� T1nl•rnttc —_ -- Guesliz)ns reoard+n_ tn:_ Enforcement Order SIIDUl: issuec by ?dortli Andover Conservation (;ummili Stpn2tU!E;51 � �' (Administrator) 01 (�•0(lait.iln ('1 00I,.'hIN Ill", c' ce�l�t!ac,n,,llnu,,,I,�11 EA. ' Complete Item, t udlor fpr aodhionel &&ruins. i 1 &ISO with to receive he • Complata ,ama 3, and y 6 b- , following • Print your nems mo a0dres& an the reverie of th(a form eo that *e can i Lervi�e� {ipr en er;rd I'MOr. this card to roti , • fee): ' Attach this f" 'p the f ont'of t dose not permji,n.7°l�'t" or on the Deck a space 1. L1 Addressoe'6 Address • Write '-Aatum Floes lot Repueet�d' on the mA11 Gece below VV amici* number ' The Rown Aeeeipt wpf *how to whprn the ar*If ;•a 2. 1 Restricted Delivery G detiver&d. -. ' � • : �. � ., . � . � and tis& date rY O 3. Article Addreusd to; Con,utt ostmastar fpr foe. 4�. Article Number Paulec'_si Y F 406 914 687 ' ; 4b. Service Type m 18 trvli�oW StZenT.,' E Re9itacred C Insur ac t North Andover, L1<45 Cerified a C00 a Express Mail r Return ?ecetpt for W. frlerchPndis 4r' 7. Oate of Delivery o Ar}dressep"e Addrec, IQnw if reauo3ted and fee Is Doid! C f3. 5ignat ;AQen=+4 I s PS Form Dace 1991 0 !U$.a(ZP.Q,; lgg7�j DOMESTIC RETURN RECEIPT " 310 CMR 10.99 Form 9 ,.: Commonwealth of Massachusetts EXHIBIT F DEP fire r+o. Non I _ (10 oe provided by DEP) err to,,, Nt)rth Ani,luver, tIA A001 -call Mscist Enforcement Order Massachusetts Wetlands Protection Act, G.L. c. 131, §4U AND UNDER THE TOWN OF NURTI1 ANDUVER BYLAW, CIIAY'LLlt 3, SL•'t:11UN 3.5 From North Andover Conservation Commission Issuing Authority To Paul T. Mscisz Date of Issuance September 2, 1993 Property lot/parcel number. address 18 Willow St., North Andover MA Extent and type of activity: The landowner is filling a portion of a bordering vegetated wetland. The land owner has been previously notified by the Commission that this fill has been illegally placed on the property and that the subject wetland has been illegally stripped of all vegetation. The North Andover_ Conservation Cummission Ims determined that Me activity described above Is In violation of the Wetlands Protection Act, G.L. c. 131. §40. atra the Regulations promulgated pur• suant thereto 310 CMR 10.00. because: XZX Said activity has beemis being conducted without a valid Order of Conditions. ❑ Said activity has been/is being conducted in violation of an Order of Conditions issued to dated File number 447 -. Condition nurnber(s) ❑ Other (specify) The land owner has failed to comply with previous Enforcement Orders issed by the Conservation Commission. The North Andover Conservation Con+ml5310" hereby orders the toltoying. XX& The property owner. his agents. permittees and all others shall inttnQG>ttbty Ccase -1r1d d!s'3t born further activity affecting the wetland portion of Ilus orcoerly. XXXV Wetland alterations resulting from said activity shall be corrected and the site returned to its oliginal Cort- dition. O1 . Issued by North Andgver Conaervation ConrmrSsrun XVIX Comoleteo aoolrcatton lorms and plans as required ti tl►p Hct arra Ftegusattons Shall be tiled v:tlh tnE North Andover Conservation Coatmissigllorbetore 9/14193 _toale) and no lurcher work Shall be pedormed until a public nearing rias been geld and ars Orap, of Conditions has been issued to regulate said work. Application torms are available at. NAC(: tit• t ice 120 Main St., ('rouir lln t l ) XAX The property owner shall take every reasortaule steo to ptevenl lurthet vralalrons of 1110 act No. Atlduver,MA Q Other (specify) Tei. #682-6483 01845 Be advised that the Conservation Commission is presently seeking an injunction against you.. Also be advised that the Conservation Commission has issued you a ticket for a violation of the Town Wetlands Protection Bylaw. This violation carries a fine of $200 per violation. Failure to comply with this Order may constitute grounds for Ieaal action Massacriusetts Gencr,rt Lavr5 C►i�t�. ter 131. Section e0 provides: Whoever violates any provision of this section shalt be uurushed by a tine. of nol r{trrre, than twenty-five thousand dollars or by imprisonment for riot more than two years or U411 Each day or portion mereol of continuing vtolaiton shall constitute a separate ollenc_.- Ouestions regarding this Enlorcement Order should be directed to atLnrnpy _OPI Urd__Df _Kapp lman & Pail Conservation Administrator Issued by North Andover Conservation Cummtission Richard Doucette � � Q Si9 natures) [„el�.oi."� �� - -• ---- (Administrator) or certdlec rtt,,,1 riwnc,*. t EXI-11BI1 G I WETLANDS PROTECTION BYLAW WETLANDS REGULATIONS North Andover, Massachusetts NORTIy LEO 3 OL SACHU i r EXI-11BI1 G I WETLANDS PROTECTION BYLAW WETLANDS REGULATIONS North Andover, Massachusetts NORTIy LEO 3 OL SACHU Y J p CHAPTER 178 - WETLANDS PROTECTION BYLAW 178.1 PURPOSE The purpose of this Bylaw is to preserve and protect the wetland resource areas (as specified in Section 2) and buffer zones of the Town of North Andover by regulation of, and control of, activities (more particularly described in Section 2 below) deemed by the Conservation Commission (the "Commission") to have significant or cumulatively detrimental effect upon the following interests and values, including but not limited to: public or private water supply; groundwater; the prevention and control of flooding, erosion, sedimentation, storm damage, and/or pollution; protection of fisheries, wildlife, wildlife habitat, and recreation. 178.2 JURISDICTION Except as permitted in writing by the Conservation Commission, or as provided in this Bylaw, no person shall engage in the following activities ("activities"): removal, filling, dredging, discharging into, building upon, or otherwise altering or degrading the wetland resource areas described in the following sentence, or the buffer zones thereof. The Town's wetland resource areas consist of: any freshwater wetland (as determined by vegetational community, soil composition or hydrologic regime), any bank, beach, marsh, wet meadow, bog, swamp, or lands bordering any creek, river, stream, pond or lake, or any land under said waters, or subject to storm flowage, or flooding, or inundation by groundwater or surface water, and the floodplain. The Commission shall not grant such permission without receiving written notice of the intention to conduct such activity, and without issuing written permission to do so all in compliance with the provisions of this Bylaw. 178.3 EXCEPTIONS This Bylaw shall not apply to the following activities: 1. Emergency projects as defined in the Commission's regulations; or 2. Maintenance, repair or replacement, without substantial change or enlargement, of existing and lawfully located structures or facilities used in the service of the public and used to provide electric, telephone, or other telecommunication public; or gas, water, services to the 4 3. Normal maintenance of land in agricultural use, as defined in the Commission's regulations; or 4. Maintenance and repair of existing public ways. i i f 178.4 APPLICATIONS TO WORK AND INFORMATION REQUIRED All applications to perform activities in the Town's resource areas shall be either in the form of a Request for Determination or a Notice of Intent, or both. Such applications shall contain data and plans as specified in the Commission's regulations, and shall be submitted in complete written form to the Commission as required by this Bylaw, regulation or otherwise. The date which serves to commence the Commission's deliberation period is the date of receipt of the application at its offices, during regular office hours. The applicable forms may be obtained from the Commission and must be signed by the owner and applicant, as well as the engineer where required. All plans and drawings must contain at least the following information to scale: all wetland resource areas, all existing lot lines (differentiated from proposed lot -lines); the location of the proposed work; all Town roads, ways, streets, etc.; existing physical and geographic characteristics of the site; existing buildings and structures; and all proposed changes, including changes to topography and grade. The Commission may require further information by Regulation, guideline, or as otherwise deemed necessary by the Commission. All applications shall be accompanied by a certified list of abutters by name and address. In order to comply with the provisions of this Bylaw, each application must be complete as filed, and must comply with the rules set forth herein and Commission regulations. No such application shall be accepted as complete before all permits, variances, and approvals required by the Bylaws of the Town with respect to the proposed activity, at the time of such Notice, have been applied for or obtained. Such Application shall also include any information submitted in connection with such permits, variances, and approvals which is necessary to describe the effect of the proposed activity on the resource -areas. 178.5 HEARINGS A) Combination with State Law Hearing: The said Commission, in its discretion, may hear any oral presentation under this Bylaw at the same -public hearing required to be held under the provisions of chapter 131, section 40, of the Massachusetts General Laws. Notice of the time and place of such hearing(s) shall be given as required below. B) Notice: Notice of the time and place of the hearing shall be given at the applicant's expense, not less -than seven (7) calendar days prior to the public hearing, by publication in a newspaper of general circulation in North Andover, and by mailing a copy of such notice to all land owners within 300 feet of the land on which the work is proposed. All publications and notices shall contain the name of the applicant, a description of the area where the activity is proposed by street address, if any, or other adequate identification of the location, of the area or premises which is the subject of the notice, the date, time and place of the public hearing, the subject matter of the hearing, and the nature of the action or relief requested, if any. All continuances beyond one (1) month require the same notice. C) roof: The applicant shall have the burden of proving by a preponderance of the credible evidence that the activity proposed in the Notice of Intent will not cause significant harm to any of the interests and values sought to be protected by this Bylaw. Failure to provide to the Commission adequate evidence for it to determine that the proposed activity does not cause such significant harm shall be sufficient cause for the Commission to deny permission or to grant such permission with such conditions as it deems reasonable, necessary or desirable to carry out the purposes of this Bylaw; or to postpone or continue the hearing to another date certain to enable the applicant and others to present additional evidence, upon such terms and conditions as seems to the Commission to be just. Due consideration shall be given to possible effects of the proposal on all interests and values to be protected under this Bylaw and to any demonstrated hardship on the petitioner by reason of a denial, as brought forth at the public hearing. D) Continuances: If the Commission determines that additional information is necessary, the hearing may be continued to a future date for as many hearings as it may deem necessary. Continuances on hearings on Requests for Determination may only be granted by the applicant. E) Investigations: The Commission, its agents, officers and employees, may enter upon privately owned land for the purpose of carrying out its duties under this Bylaw and may make or cause to be made such examination or survey as deemed necessary. 178.6 ORDERS AND DECISIONS A) All Decisions and Orders If the Commission shall determine that the proposed activity does not require the imposition of conditions to preserve and protect the interests of this Bylaw, the applicant shall be so notified in writing. IL If, after the hearing, the Commission shall determine that the proposed activity is significant to one or more interests and values of this Bylaw, the Commission may vote to issue written Orders of Conditions within 21 days of the close of the public hearing. The Commission may impose such conditions, safeguards and limitations on time and use upon such activity as it deems necessary to protect those interests. The Commission may prohibit such event that it finds that the interests can not be preserved and protected by conditions, safeguards or limitations. B) Security to Assure Performance: activity altogether, in the and values of this Bylaw the imposition of such The Commission may, as a part of its Order of Conditions, require, in addition to any security required by any other Town or State Board, Commission, agency or officer, that the performance and observance of the conditions, safeguards and limitations imposed under this Bylaw on the applicant and owner be secured by one, or both, of the methods described in the following clauses: 1. Deposit: By the deposit of money sufficient in the opinion of the Commission to secure performance of the conditions and observance of the safeguards of such Order of Conditions. Such security, if filed or deposited, shall be approved as to form and manner of execution by Town Counsel or the Town Treasurer. And/or 2. Land Restrictions(s): By a conservation restriction, easement, or other covenant running with the land, executed and properly recorded (or registered, in the case of registered land). C) Duration of Orders All Order of Conditions shall expire three (3) years after the date of issuance, unless renewed prior to their expiration. An Order of Conditions may be renewed for a period of up to one year upon the request of the applicant. No activity governed by an Order of Conditions shall be carried on unless and until all permits, approvals and variances required by the Bylaws of the Town shall have been obtained, such Order of Conditions or notification shall have been recorded or registered at the Essex North District Registry of Deeds or in the North Essex District of the Land Court Department and until all applicable appeal periods have expired. The Commission shall have the right to record or register its Order of Conditions with said Registry or Registry District. In the event that an Order of Conditions issued pursuant to this Bylaw is identical to a final Order of Conditions issued pursuant to the provisions of MGL Chapter 131, Section 40, only one such Order need be recorded or registered. D) Amendments The Commission shall have the power, on its own motion or upon the petition of any person interested, to amend any such Order of Conditions after notice to all persons interested and a public hearing. 178.7 CERTIFICATES OF COMPLIANCE The Commission shall, upon receiving a written request therefore and weather permitting, inspect the resource areas where the activity governed by an Order of Conditions was carried out and issue a Certificate of Compliance to the owner of the property in a form suitable for recording or registering, if it shall determine that all of the activity or activities, or portions thereof, limited thereby have been completed in accord with said Order. 178.8 RESPONSIBILITY FOR COMPLIANCE After the recording of a Notice of Violation or Order by the Commission, any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this Bylaw or in violation of any order issued under the Bylaw shall forthwith comply with any such Order or restore such land to its condition prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such person unless such action is commenced within three years following the recording of the deed or the date of the death by which such real estate was acquired by such person. 178.9 RULES AND REGULATIONS The Commission shall be empowered to establish Rules and Regulations to govern its affairs, including but not limited to fees, definitions, use of consultants, and such other information which it deems necessary to discharge its responsibilities. After due notice and public hearing, the Commission may promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a majority vote of the duly appointed members. Failure by the Commission to promulgate such rules and regulations; or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this Bylaw. F& 178.10 ENFORCEMENT. INVESTIGATIONS & VIOLATIONS In accord with the provisions of M.G.L. Chapter 40, Sections 21D and 31 as well as every other authority and power that may have been or may hereafter be conferred upon it, the Town may enforce the provisions of this Bylaw, restrain violations thereof and seek injunctions and judgments to secure compliance with its Orders of Conditions. Without limiting the generality of the foregoing: A) Any person who violates any provision of this Bylaw or of any condition or a permit issue pursuant to it may be punished by a fine pursuant to Massachusetts General Laws, Chapter 40, section 21. Each day or portion thereof during which a violation continues shall constitute a separate offense; if more than one, each condition violated shall constitute a separate offense. This Bylaw may be enforced pursuant to Massachusetts General Laws Chapter 40, section 21D, by a Town police officer, other persons having police powers, Conservation Commissioners or the Conservation Administrator. In accordance with Ch. 40 S. 21D, violators may, at the discretion of the enforcement authorities,'be charged a penalty. The penalties for violations of this Bylaw shall be assessed as follows: B) In the event of a violation of this Bylaw or of any order issued thereunder, the Commission or its agents may issue a stop order to the owner, the applicant or agent by certified mail, return.receipt requested, or by posting the same in a conspicuous location on said site. Any person who shall violate the provisions of a stop order shall be deemed in violation of the Bylaw; but the failure of the Commission to issue a stop order for any reason shall not prevent the Town from pursuing any other legal remedy at law or in equity to restrain violations of this Bylaw and to secure compliance with its orders. C) The Town shall be the beneficiary of all fines imposed on account of the violation of this Bylaw in order to defray the expense of enforcing the same. Violation Penalty Alteration of 1 - 1000 sq. ft. of wetland $ 50 Alteration of 1001 - 2000 sq. ft. of wetland $ 100 Alteration of 2001 - 3000 sq. ft. of wetland $ 200 Alteration of greater than 3000 sq. ft. of wetland $ 300 Depositing any refuse, debris, yard waste or construction material in a wetland or water body $ 300 Alteration of any stream or water body $ 300 Any violation of any section of this Bylaw that occurs in the Lake Cochichewick Watershed $ 300 B) In the event of a violation of this Bylaw or of any order issued thereunder, the Commission or its agents may issue a stop order to the owner, the applicant or agent by certified mail, return.receipt requested, or by posting the same in a conspicuous location on said site. Any person who shall violate the provisions of a stop order shall be deemed in violation of the Bylaw; but the failure of the Commission to issue a stop order for any reason shall not prevent the Town from pursuing any other legal remedy at law or in equity to restrain violations of this Bylaw and to secure compliance with its orders. C) The Town shall be the beneficiary of all fines imposed on account of the violation of this Bylaw in order to defray the expense of enforcing the same. D) Upon request of the Commission, the Board of Selectmen and Town Counsel shall take such legal action as may be necessary to enforce this Bylaw and permits issued pursuant to it. E) Upon recommendation of the Commission, the Board of Selectmen may employ Special Counsel to assist the Commission in carrying out the legal aspects, duties and requirements of this Bylaw. 178.11 CONSULTANT SERVICES ACCOUNT Upon receipt of a permit application, the Commission is authorized to require an applicant to pay a fee for the reasonable costs and expenses borne by the Commission for specific expert engineering and other consultant services deemed necessary by the Commission to come to a final decision on the application. This fee is called the consultant fee. The specific consultant services may include but are not limited to resource area survey and delineation, analysis of resource area values, including wildlife habitat evaluations, hydrogeologic and drainage analysis, and Environmental or land use law. The Commission may require the payment of the consultant fee at any point in its deliberations prior to a final decision. The applicant shall pay the fee to the town to be put into a consultant services account of the Commission which may be drawn upon the Commission for specific consultant services approved by the Commission at one of its public meetings. The exercise of discretion by the Commission in making its determination to require the payment of a fee shall be based upon its reasonable finding that additional information acquirable only through outside consultants would be necessary for making an objective decision. The Commission shall return any unused portion of the consultant fee to the applicant unless the Commission decides at a public meeting that other action is necessary. Any applicant aggrieved by the imposition of, or size of, the consultant fee, or any act related thereto, may appeal according to the provisions of the Massachusetts General Laws. The maximum consultant fee charges to reimburse the Commission for reasonable costs and expenses shall be according to the following schedule: Proiect Cost Maximum Fee UP TO $ 500,000 $ 2,500 $ 500,001 - $ 1,000,000 $ 5,000 $ 1,000,001 - $ 1,500,000 $ 7,500 $ 1,500,001 - $ 2,500,000 $ 10,000 The maximum fee required under this authority will be $10,000 per project. The specific consultation services will be limited to review of drainage analysis, storm water management, water quality, wetland delineation, wildlife habitat evaluation, and erosion control measures. These services will only be required when the applicant and the Commission cannot come to mutual agreement on a critical issue which requires technical knowledge or expertise not available to the Commission. The determining use of these funds will be reviewed and approved based on the specific need for outside consultation by the Director of the Division of Planning & Community Development. 178.12 CAPTIONS AND SEVERABILITY The captions used herein are for convenience only and are expressly intended to have no legal or binding significance. The invalidity of any section or provision of this Bylaw shall not invalidate any other section or provision thereof, nor shall it invalidate any Order of Conditions or decisions which have previously become final.