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HomeMy WebLinkAboutMiscellaneous - Exception (112)-I- TOM -- �)E f Cur �c`6 1C1� BIW., 4� Environmental tection Agency -Denny Dart pro Senior Enforcement Coordin Office of Environment al Ste ator EPA_ wardship 1 Co New England Suite grpOs Sheet (SEA) Telephone: (617)918_1850 • 3ost°n, ]bx`q 02114-2023 Eax: E -Mail: (617) 918-0850 dart.denny@ePa.xov Michael J. Farrow 1I� Chief Executive Officer Eleven Bayfield Drive Forty -Seven Depot Street Seventy -Nine A Bradley Drive North Andover, MA 01845 Merrimack, NH 03054 Westbrook, ME 04092 Tel: (978) 685-9685 Tel: (603) 429-0411 Tel: (207) 854-2251 Fax: (978) 686-1515 Fax: (603)429-0430 Fax: (207) 854-2384 Preventing Mold Growth in Massachusetts Schools - Understanding Dew Point Page 1 of 2 ass. ' wnass ov home •online servtoes -state agendas SEARCH MASS.GOV Biitea+t +of Eavironwkeftlial BEHA I tcaith AR; stncnt Bureau of Environmental Health Assessment • Community Assessment Program • Environmental Epidemiology Program a Environmental Health Education Program " Emergency Response/ Indoor Air Quality Program • Environmental Toxicology Program o Environmental Public Health Center on Cape Cod o Childhood Lead Poisoning Prevention Program • BEHA Protocol • Environmental Hazards Resource Manual Related Sites ° Agengy For T9Xic Substances And Disease Registry • Division of Community Sanitation • Leukemia Society of America • U.S. Environmental Protection Agency Contact Information Bureau of Environmental Health Assessment 250 Washington Street, 7th Floor Boston, MA 02108 Suzanne K. Condon, Assistant Commissioner Tel. (617) 624-5757 Preventing Mold Growth in Massachusetts Schools Understanding Dew Point In general, two water phases - liquid and vapor - can create conditions conducive to Tung: of vulnerable materials. Leaks through the building envelope (e.g., roof, exterior wall torr foundation) or plumbing problems are obvious water sources. If the indoor environment f managed, high relative humidity combined with hot weather can also cause damage. Urn conditions, condensation can accumulate and moisten materials, especially porous, carbo items (e.g., gypsum wallboard, carpeting, doth, paper, cardboard). The key to managing condensation within a building is understanding dew point. When v passes over a cooler surface, condensation can form. Condensation is the collection of r surface at or below the dew point. The dew point is the temperature that air must reach f to occur. If a building materiallcomponent has a temperature below the dew point, sonde accumulate on that material. Over time, condensation can collect and form water droplet For example, at a temperature of 76°F and relative humidity of 30%, the dew point tempe which condensation can collect on a surface is approximately 42°F. At temperatures lest water vapor can condense and form droplets on a surface. During humid weather, when temperature is 85°F and relative humidity is 90%, the dew point is approximately 820F. T surfaces with a temperature below 830F are prone to condensation formation. According to American Society of Heating, Refrigerating and Air -Conditioning Engineers 1 relative humidity exceeds 70%, mold growth may occur due to wetting of building materia 1989). It is recommended that porous material be dried with fans and heating within 24 h becoming wet (US EPA, 2001, ACGIH,1989). If porous materials are not dried within thi, mold growth may occur. Water damaged porous materials cannot be adequately deanec mold growth. To prevent condensation formation, the following points are recommended: Acfion Step: Monitor weather through extended weathercasts to determine if hot, humid more than 2 days is predicted. Many web -based weather services will provide a dew poi' Action Step. Monitor temperature of condensation prone building components with a las thermometer. If the temperature of the building component is below the dew point during weather, steps should be taken to decrease humidity levels. http://www.mass.gov/dph/beh&raq/mold/dewpoint.htm 1/4/2005 APARTMENT/COMMON AREA PREVENTATINVE MAINTENANCE PROGRAM Purpose: The apartment and common area preventative maintenance program will ensure all apartments and common areas are inspected annually for safety and proper maintenance serviceability. Policy: All apartments and common areas of all property buildings will be inspected on a yearly basis. Buildings include, but are not limited to; apartment buildings, clubhouse, fitness center, pool cabanas, site amenities and storage buildings. The program will commence on the January 1" each year and be completed prior to the end of the calendar year. The Community Managers will notify the residents, via letter, of the upcoming inspection. Included in this letter will be an area for the resident to leave specific maintenance requests for their apartment. Community and Service Managers are to assign a primary and alternate technician to perform the property inspections. The alternate technician will perform the inspection in the event the primary technician cannot. The technician assigned will complete the Apartment/Common Area Preventative Check Last at time of inspection and retain a copy on the property in a binder for review by the CM, DOTS and RVP. Process: 1. Letter is sent to the resident in advance notifying them of the upcoming inspection. 2. Service requests are generated daily for the scheduled PM's to be completed, average 4-6 per day. Service requests will be entered as "Inspection" in the Category field and "Preventative Maintenance" in the Reason field of the service request. 3. Any repairs that can be made during the inspection will be completed and annotated on the service request. Repairs requiring scheduling will be entered as a service request and scheduled with the resident as required. 4. As technician completes the inspection they will leave notice for the resident of items completed. 5. Technician/Service Manager will close out completed requests daily. 6. CM's and SM's will review completed inspection checklist forms periodically. 7. During the inspection the technician will be especially diligent in the following areas: a. Checking for leaks, moisture and conditions that can lead to mold growth. In the event mold is found it must be entered into the Risk Management Mold Tracking Database found on the company's website. b. Material condition of fixtures. It does no good to replace an o -ring in a faucet if the fixture is in poor shape. The resident will appreciate the fact they received a new fixture. c. Hazardous or unsafe situations in the apartment/common areas. All safety related issues must be remedied quickly so minimize risk to residents and employees. This includes smoke and heat detectors that may have been disconnected by the resident. d. Aerators and water saving devices. Ensure aerators are 1.5 gal/min and showerheads are 2.5 gal/min. Budgetary prudence must be applied to this program. Example, if there is a leaking faucet replace the o -ring or seat vice the stem. In the event the property needs to communicate with the resident, ensure it is in writing and maintained in the residents file. Sample Notification Letter to Resident Dear Resident, In an effort to always improve your quality of living here at Royal Crest Estates North Andover, we will be performing our annual Preventative Maintenance in your apartment home on . As you may remember from last year our program involves inspecting and repairing such items as faucets, smoke detectors, window locks and general apartment material condition. The procedure itself should only take about an hour in most cases and will be accomplished by our service technicians. It is not necessary for you to be home. I would like to take this opportunity for you to point out any items you would like repaired in your home. Please call 978-686-7311 and any maintenance concerns you wish to have addressed will be managed through our Service Department. Some items may require scheduling and you will be contacted for times to complete these. We appreciate your cooperation in this program and, as always, if you ever have any maintenance concerns, please do not hesitate to call the office. Sincerely, Community Manager Dear Residents, The following additional items completed by the service technician: The following requests require a service technician to return: Sincerely, Preventative Maintenance Technician Property: Bldg: APARTMENT PREVENTATIVE MAINTENANCE CHECKLIST BY APARTMENT Inspected By: Date Performed Apt: ITEM LOCATION INSPECTION RESULTS Peephole LR Entry Lock/Bar Locks Operational Kt = Entry Door Gate Spring MB Slider Locks Slider Operation/Track Balcony/Railings Condition Intercom T-Stat Operation Kitchen Sink Kitchen Faucets/1.5 aerator Water Temp: Disposal Range Hood Vent Fan Refrigerator Door and Level Stove and Stove Cord Countertops Tighten and inspect cab hardware Range Queen (mfg/install date) Bath Sink and Vanity/1.5 aerator Water Temp: Bath Tub/Drain 2.5 shower head Water Temp: Bath/Kitchen GFl operation Bath Fans — Clean/Check Toil et/Flappers/Bo Its Grab and towel bar secure Windows - Fogged, operation and locks Blind pull cords/not looped Smoke detector Heat Detector HVAC — Filter cleaned/replaced (date) Water heater Washer/Dryer Carpet (condition & color) Hardwood/Linoleum floor Bedroom/Closet doors Check every point of water entry for moisture that could lead to mold growth Overall Apartment Rating 1-10 (1 lowest— 10 highest) Comments: Location Codes Result Codes T = Tub Ok = Okay B 1 = Master Bedroom R = Replaced B2 = second Bedroom A = Adjusted HB = Hall Bath DR = Dining Room LR = Living Room Kt = Kitchen MB = Master Bath Property: Building#: BUILDING/COMMON AREA PREVENTATIVE MAINTENANCE CHECKLIST Inspected By: Date Inspected: Exterior Location Functioning Repairs Required Properly Door weather strip Front Entry Stair/Railings Front Entry Exterior Lights Front EntEy Security Door Lock Front Entry Door Closure Rear Entry Stairs/Railings Rear Entry Exterior Lights Rear Entry Security Door Lock Rear Entry Door Closure Foyer and Hallways Location Functioning Repairs Required Properly Foyer/SecurityFoyer/Security door locks Foyer/SecurityFoyer/Security door closure Mailboxes and Tags Outgoing mail box Intercom Panel and Buttons Newspaper bins/racks Display racks and wall frames Wall mirrors Foyer carpet Foyer lighting Stairway railings Stairway lighting Stairway treads Wallpaper condition Smoke detectors Heat Detectors Annunciator panels Pull stations/pull signs Fire extinguishers/cabinet/glass Exit signs Emergency lights/batteries Fire door closures Push pull plates Ceiling tiles Apartment door(s) condition Apartment door(s) numbers Apartment door(s) knocker peephole Hallway carpet condition Paint and trim Attic access Hallway lighting Personal items stored Laundry Room Location Functioning Repairs Required Properly Machines — visual Exhaust Fans Lights Vanity — Folding Tables Trash Rooms Location Functioning Repairs Required Properly Condition of barrels Exhaust Fans Lights Odor control Electrical Room Location Functioning Properly Repairs Required General condition Timers Lights Fire stopping required Boiler Rooms Location Functioning Repairs Required Properly General Condition Water heater condition Lights Boiler condition inspection Certificate Miscellaneous Location Functioning add as required) Properly Repairs Required •3 sh V l -. ,,,�. 4 i " ., f, , -�.?—� ., � . - -� 1 �� - � ,� '� 4 �! e .' � �, � r,�S: e7 - r • '.R.' y. t' ��t hf'. �f �y r }71 LAI' a fes!` r 1 - a SON.", r . i 414 r `'wj �Ab loco Ile 4. 44 F!7W orb ke- It 4 March 23, 2004 Town of North Andover Office of the Health Department 66 Meadowood Road North Andover, MA 0_1845-5927 s T0',,V,,: OF NORTH ANUL, / BOIA?RD OF HEALTH Susan Y. Sawyer, Director MAR 2 2004 27 Charles .Street ; -n North Andover, MA 01845 Subject: Air Pollution and Noise Nuisance Complaint against Material Installations, Inc. Dear Ms. Sawyer: I am in receipt of a letter dated March 1, 2004 from Inspector Brian LaGrasse of your staff. The letter states "It has been determined in collaboration with the Massachusetts DEP that the presence of subject trucking activities does not pose a health risk due to noise levels and is not considered a noise nuisance under Massachusetts General laws (MGL) Chapter 111 sec 122 or 310 Code of Massachusetts Regulations (CMR) 7.10." The letter also indicates decibel readings "at various times throughout the day and night in the area of concern and in various locations in the vicinity of the subject area." I have had contact with Inspector LaGrasse on several occasions to include providing a copy of the Air Pollution Control Regulations, the DEP policy (90-001) on investigating and enforcing the regulations, the North Andover Dumpster Regulations, a log of shipping activity and corroborating video footage. The DEP policy states: "The Department has established a Noise Level Policy for implementing this regulation. The policy specifies that the ambient sound level, measured at the property line of the facility or at the nearest inhabited buildings, shall not be increased by more than 10 decibels weighted for the "A" scale [dB(A)] due to the sound from the facility during its operating hours." Under the section "Noise Measurement Procedure" the policy states: "In responding to complaints measurements should be taken near the area where the people are located who are complaining of the noise. For instance, for a person complaining that noise from a facility annoys them while they are trying to sleep, the measurements would be taken at the bedroom window or near the house. " Based on this policy, it appears that "Route 125" and "Bake -n -Joy Foods" do not apply because they are in fact located at a distance farther than the Material Installations shipping area. My complaint letter dated September 10, 2003 stated: "The source of the nuisance is shipping related activity. This includes the operation of trucks, trucks idling over 5 minutes (overnight as well as during shipping dock operations), loading tractor trailers/ commercial containers (e.g., trash compactor), operating machinery and loud voices of workers." The letter also included research on the health effects of noise as well as possible solutions. A follow-up letter to Inspector LaGrasse dated November 10, 2003 stated: "Regarding your planned noise level measurements, it is requested that they begin no later than 6 in the morning. This is due to truck and compactor activity that regularly begin between 6 and 7 a. m. " The readings cited in Inspector LaGrasse's letter do not reference measurements for the time period between 6 and 7 in the morning. The readings taken on December 24, 2003 indicate an "ambient range" of "47.6dB - 55.4dB." The corresponding readings exceed the 47.6dB ambient level by at least 10 decibels. The readings taken on January 14, 2004 indicate an "ambient range" of "49dB - 56dB." The corresponding readings also exceed the 49dB ambient level by at least 10 decibels. Ed Kunce, Northeast Regional Director of the DEP has informed me that readings of 85dB represent "very high" noise levels. According to the Federal Highway Administration, a study of noise equivalency factors for trucks relative to Passenger vehicles determined that a truck traveling at a speed of 20 mph has an equivalency factor equal to 84 passenger vehicles. The Material Installations shipping activity causes noise, vibrations, fumes and exhaust. This interferes with the quiet enjoyment and use of my property to include sleep. Material Installations has not taken any steps to effectively coniine the noise/nuisance effects to their property. Regarding nuisance activity, the Code of Massachusetts Regulations (CMR) defines air pollution as "the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and proper or the conduct of business." There is case law on this issue. In Davis v. Sawyer, (133 Mass. 289, 290, 43 Am.Rep. 519), the Supreme Court of Massachusetts stated "'Noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance." Additionally, In Shea v. National Ice Cream Co., Inc., (280 Mass. 206, 211) the court said, "'the defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to sleep at night in their own homes." Research from the federal Environmental Protection Agency (EPA) entitled "Information on Levels of Environmental Noise Requisite to Protect Public Health and Welfare with an Adequate Margin of Safety" provides technical direction on this issue. This document identifies noise levels required to protect public health and welfare against hearing loss, annoyance and activity interference. Levels of 55 decibels outdoors and 45 decibels indoors are identified as preventing activity interference and annoyance. These levels of noise are considered those which will permit spoken conversation and other activities such as sleeping, working and recreation, which are part of the daily human condition. This report also identifies a noise level of 32db to protect against sleep interference. According to the EPA, this frequently requested document is posted at: htt /www.nonoise.org/library/levels74/levels74.htm. The EPA reports that sleep is a restorative process during which organs of the body renew their supply of energy and nutritive elements. Since noise can disrupt the sleep process, it may lead to health disorders. Research is accumulating that suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. The Commonwealth of Massachusetts treats noise as an emission of sound and regulates it as a source of air pollution. The Massachusetts General Laws (ch. 214, § 7A) define "damage to the environment" to include "air pollution." Article 97 of the Massachusetts Constitution guarantees the people's right to "clean air and water." The compactor used by Material Installations is frequently used between 6 and 7 in the morning. This produces loud noise that disrupts the quite use of my property to include sleep. The compactor appears to be a dock feed type style and is located outside their building. As you are aware, section 3.2 of the North Andover Dumpster Regulations state: "The Board of Health may attach any condition to the license of a removal contractor that it deems would serve the interest of the safety, health, welfare or quality of life of the citizens of the town." The North Andover Dumpster Regulations state: Section 4.1: "... each dumpster must be located at a distance from the lot line so as not to interfere with the safety convenience or health of abutter or residents." Section 4.2: "... may be required that dumpster site be enclosed or screened ..." Section 4.3: "... responsibility of the owner ... to maintain the dumpster area free of .. all other nuisances." Section 4.7: " Dumpsters are not to be filled after 9:00 P.M. or before 7.00 A.M." As you are aware, Dumpster permits can only be issued "in conformity with statutes and ordinances relating thereto" and are subject to being "suspended or revoked." My December 2, [2]003 letter to Inspector LaGrasse stated "As for identifying appropriate measures to end the noise nuisance, my [September 10th] letter lists possible solutions to include a noise barrier wall. Regarding the refuse compactor, I have been informed that special vertical compactors are available to fit inside a structure." Material Installations borders North Andover's Meadowood neighborhood. The character of the Meadowood neighborhood is distinctly residential consisting of single family homes most of which have young children. In addition, there are no access roads connecting the two districts. Please provide an explanation detailing the basis for the Board's opinion, specifically that "the presence of subject trucking activities does not pose a health risk due to noise levels and is not considered a noise nuisance ..." As previously noted, Inspector LaGrasse's sound measurements indicate that the ambient level is exceeded by at least 10 decibels. This appears to violate 310 CMR 7.10(1). In addition, there is case law regarding sleep disruption as a nuisance as well as research as a health hazard. It is encouraging that your department has finally started to take action to abate the multiple vehicle idling violations by Material Installations. This is no doubt related to your recent appointment as Director as well as the assistance of the federal EPA. This is in sharp contrast to your predecessor. Beginning with my first contact with the town (June 2003) and subsequent correspondences with the health department, I have always provided proof of the violations, research regarding the associated health effects, and the applicable legal basis for enforcement action. Simply put, this should not be a difficult matter to investigate and require compliance. It is requested that a literal enforcement of the Air Pollution Control Regulations and Dumpster Regulations be undertaken. It is also requested that any opinions by the board/DEP reference the basis for the corresponding opinion (e.g., legal statutes, expert research, lay opinion). Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and attention to this important health issue. Sincerely, 4: Konstantinos "Dino" Balos cc: Assistant Town Manager Board of Selectmen North Andover Meadowood Road Residents Town of North Andover Office of the Planning Department Community Development and Services Division 27 Charles Street North Andover, Massachusetts 01845 http://www.townofnorthandover corn Town Planner: iparrino@townofnorthandovercom Julie Parrino March 3, 2004 Konstantinos Balos 66 Meadowood Road North Andover, MA 01845 RE: Material Installation Dear Mr. Balos: KORA a � too } �9SS.,CH F (978) 60.9535 F (978) 689-9542 This letter is a follow-up to my letter dated February 19, 2004. The Planning Board is in receipt Of comments from Town Counsel regarding your concerns with Material Installation. Town Counsel referred to Section 10.1 of the North Andover Zoning Bylaw which provides that the bylaw "shall be enforced by the Building Inspector". As you are aware, the Building Inspector opined that Material Installation, Inc. was in compliance with the Zoning Bylaw and Planning Board Special Permit of August 31, 1987. Recently, the Zoning Board of Appeals upheld the Building Commissioner's decision dated August 25, 2003. With regards to the Planning Board modifying the Special Permit, Town Counsel referred tD his previous opinion that he could not find a definitive ruling, which authorizes such a modification. This opinion was referenced in a letter submitted to you by Heidi Griffin, dated January 22, 2004. Upon phone discussions with several of the Planning Board members, they have- agreed that in light of the Zoning Board of Appeals decision, no further involvement from the. Planning Board is warranted. Sincerely, 6x G __ JulieAlarrino, Town Planner cc: Planning Board Heidi Griffin, Community Development Director Thomas Urbelis, Town Counsel Mark Rees, Town Manager Raymond Santilli, Assistant Town Manager William Sullivan, ZBA Chairman BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 �PG�M�IhG 60A00 Q W'N N 0 R "1' 7r N n O D T R (i iSSACItUSZ:TTS . SEP 3 Ajjl T 1� HORih 1 Any appeal shall s :°,.;°:.•.,� be filed o� Within (20) days after the A • _ • : -�T*'�__ • . date of filing of this N • = • otice in the Office of the Town Clerk. NOTICE OF DECISION Date. Saptembj:x .2, . X9.8? ....... . Date of Hearing August .31,..1987 Petition of ,Channel Building ................................ ......... Premises affected ,.11. Bayfield .Drive ,� Industrial -1 .. 1 (I-1) zoningr Distrct Referring to the above petition for a special permit from the requirements of the . , North .. . .Andover. Zoning. Bylaw:Section 8 ' Para..3....: , so as to permit . , to , expand_ the .assembly. , . and live storage . . , areas inan existing. buildinc .b�. 18 :200, square, feet.... _ , _ . _ . _ , _ • • • ' After a public hearin Conditionally g given on the above date, the Planning Board voted to Apjprove......the , ..Site. Plan Review .. ............... ................................... -based upon the following conditions: Signed Erich, W., ,Nitzsche , ClAciiVT( John Simons Clerk ..t.. ........... GeorgePerna ....... • , _ • , . Paul Hedstrom ........... John J. Burke ......... T5ln'nmr tr� 1n'I jj ....... . OFFI(�ES OF: APPEALS"North Town of 120 MaitiSireet A11(lover, NOR,H ANDOVER T, BUILDING WSSNCIMSCIIS 1845 CONSERVATION DMISION Ql; (61 7) 685.4775 HEALTH PLANNING PLANNING & C0MMtjNYFY1 ME VELOPMENT KARE-4 H.P. NELSON, DIRECTOR September 2, 1987 Mr. Daniel Long, Town Clerk Town Office Building 120 Main Street North Andover, MA 01845 Re: Material Installation 11 Bayfield Drive North Andover, MA Site Plan Review through Special Permit Dear Mr. Long: The North Andover Planning Board held a public.hearing upon the application of Channel Building Company, 23 Main Street, Andover, MA. on Monday evening, August 3, 1981 in the Town Office Meeting Room. The hearing was advertised in the North Andover Citizen on July 16 and July 23, 1987. The following members were present and voting: Erich W. Nitzsche, Chairman;.John L. Simons, Clerk; George Perna and Paul Hedstrom. John J. Burke was absent. The petitioner seeks a Special Permit under Section 8, paragraph 3; Site Plan Review. The purpose of the Site Plan Special Permit is to review the proposal to expand the assembly and live storage areas of the existing facility by approximately 18,200 square feet of land on the North side of Bayfield Drive known as 11 Bayfiled Drive in an Industrial -1 (I-1) Zoning District. . John Simons read the legal notice to open the public hearing. Letters were received and read from the Fire Department, Board of Health and two (2) letters from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans. MOTION: John Simons to continue the public hearing until the August 17, 1987 meeting. SECOND: George Perna VOTE: Unanimous On August 17, 1987 the public hearing was continued. John Simons read a letter sent to Mr. & Mrs. Redman from Material Installation with regards to lighting and traffic issues. Jim Bourgeois of Channel Building presented the Planning Board with revised plans. Page 2. MOTION: By John Simons to close the publir�oaring. SECOND: George Perna cOEP 3 v t�`.3 {t. VOTE: Unanimous On August 31, 1987 the Planning Board held a regular meeting and voted to approve the Special Permit application by Channel Building to construct an 18,300 square foot addition to the existing building located on Bayfield Drive at the intersection of Willow Street. Three issues of concern were discussed at the Public Hearing that should be addressed in this Conditional Approval are as follows: 1. The unfinished Cul -de -Sac at the end of Bayfield Drive does not allow for adequate fire protection and access - egress for the existing building. It was discussed that the Cul -de -Sac was not finished by the developer of North Andover Business Park prior to this date because of a pending application to the Commonwealth of Massachusetts to create an entry onto Route 125. The Planning Board is in receipt of a letter from the Division of Public Works dated November 14, 1986 denying the request for emergency access onto Route 125 and is concerned that no work has taken place on Bayfield Drive thru 1987. 2. Concern by abuttors to the North of Material Installation property of truck noise and lights during the night. Proponents for the project stated that the newest dwellings are 200 feet and 400 feet respectively from the building, but admit that into the winter months, a lack of foliage in the intervening woods may be cause for concern and have suggested that truck traffic be directed onto the locus by way of the Willow Street entrances thereby minimizing headlights being directed to the North by the present access from Bayfield Drive. 3. There was a concern by the Planning Board of the increased rate of runoff being produced within the North Andover Business Park by the inclusion of additional impervious pavement and building additions. The applicants Engineer, Mr. Tom Neve,'has submitted drainage calculations stating the peak runoff has been decreased from the locus due to the fact that percentage of impervious area on the lot has been reduced from the overall Master plan of the Park and that the lot size has been reduced. Notwithstanding these factors, the Planning Board recognizes that if this lot size has been reduced, another lot.in the Park must have been increased, and that Mr. Neve nor the Planning Board has an accurate accounting of the present impervious area versus the original Master Plan impervious area of the Business Park overall. Therefore, the Planning Board renders this Conditional Approval for the construction of the proposed building additions for Mai-t:riA1 Tnai-cella+-inric_ Page 3: �.I 1. Bayfield Drive will be construeteis� t;Accordance with the Subdivision Plans of North_ndbVer Business Park and be brought to at least bind8'' pavement to the satisfaction of the North Andover Fire Department and to. the Division of Public Works prior to construction of the building addition. 2. The lawn area to the East of the proposed building between the building and Willow Street shall be designed as a Detention/Retention Pond to further mitigate runoff flows and to account for loss ground water infiltration due to the impervoius area. This will necessitate redirecting runoff flows into the Ponding area, preferably from the parking lot prior to discharge off site, with proper pipe sizing to detain storm water flows to the maximum possible. 3. Truck traffic flow will be required to access -egress the property from the Willow Street curb cut only and automobile egress the site from the curb cut on Bayfield Drive. This will be a condition for continued occupancy and will.be implemented by the use of one-way signs and exit only signs and others as deemed necessary both installed at the two curb cuts as well as at the truck docks and pointed indications on the pavement throughout the parking and access -egress areas. 4. Upon completion of the building addition and prior to building occupancy, the applicant shall file an As -Built Plan of the total site showing at least, but -not limited to the following, pavement grades, rims and inverts, drainage size, access - egress signs, lighting landscaping and all utilities. Said plan to be prepared and certified by a Professional Land Surveyor and submitted for approval by the Planning Board. 5. The landscape plan as submitted does not show the existing row of planted arborvitae to the rear of the existing building and the Planning Board is of the opinion that the proposed planting of arborvitae will be of the same nature, and therefore will not mature to a full effective screening for many years and therefore will require that in addition to the landscaping plan as submitted being conformed to in its entirety, a six (6) foot closed stockade fence be erected along the property line from a point starting fifty (50) feet from Route 125 and extending Easterly to the Easterly line of the proposed building addition. 6. In accordance with the Fire Department report of July 31, 1987, the following shall be provided: 1. The addition must be equipped with an automatic fire suppression system (sprinklers) and the fire detection and alarms form the original building must be extended into the addition. Both of these systems must have plans submitted to the Fire Chief for approval prior .to construction. - Page 4: 2. The Fire Chief has requested that information regarding the material to be stored and the amount of storage for products in this expansion be submitted to himself or the Fire Presention Officer. 7. The North Andover Conservation Comission's Order of Conditions under File No. 242-193, shall become a part of this approval and be strictly adhered. 8 - In addition to the aforementioned Conditions, the Planning Board approves only that work as shown on the submitted plans namely: 1. Sheet L1-1 dated 9/5/86 and revised 8/13/87 2. Sheet L2-1 dated 9/5/86 and revised 8/13/87 3. Sheet L4-1 dated 9/5/86 and revised 8/13/87 4. Unnumbered Sheet dated 8/13/86 and revised 9/9/86 and entitled "Scheme 3" 9. Any proposed changes and/or. future building expansion will be the subject of a new Public Hearing under a new Special Permit Application and further that any changes from these approved plans and that may be shown on the As -Built Plan submitted for approval prior to occupancy will negate this Special Permit and will require a new filing of application. Sincerely, PLANNING BOARD .Erich W. Nitzsc , Chairman /je o cc: Director of Public Works Highway Surveyor _- Board of Public Works=' Tree Warden Conservation Commission �D Building Inspector Board of Health c� Assessor Police Chief Fire Chief Applicant Engineer File Interested Parties Town of North Andover NORT►, C f fice.of the Zoning Board of Appeals o? ` or>xty Development and Services Division .� i t l I't lH D 0 V F i ; 27 Charles Street �l �``•� North Andover, Massachusetts 01845 °•ono 'Ss�c►+us�t Z11'01 IED I, a P 12: 31 Telephone 978 688-9541 D. Robert Nicetta( ) Building Commissioner L Fax (978) 688-9542 Any appeal shall be filed Notice of Decision within (20) days after the Year 2004 date of filing of this notice in the office of the Town Cletk. Property at: for property at: 11 Bayfield Drive NAME: Konstantinos & Rowena Balos, 66 Meadowood Road, North Andover, MA HEARING(S): 11-18,2003,1-13 & 2-10-04 ADDRESS: for property at: 11 Bayfield Drive PETITION: 200-037 North Andover, MA 01845 TYPING DATE: 2/12/04 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday, the 10`b of February 2004 at 7:30 PM in the Senior Center, 120R Main Street, North Andover upon the application of Konstantinos & Rowena Balos, 66 Meadowood Road requesting a Finding from Section 4, Paragraph 4.132 and Section 10, Paragraph 10.4 of the Zoning By-law to reverse the Building Commission's opinion that Materials Installations, Inc. 11 Bayfield Drive, North Andover, MA are in compliance with the Zoning By-law and the Planning Board Special Permit of August 31, 1987. The said premise affected is property_ with frontage on the North side of Bayfield Drive within the I-1 zoning district. The legal notice was published in the Eagle Tribune on November 3 & 10, 2003. The following members were present: Walter F. Soule, Ellen P. McIntyre, Joseph D. LaGrasse, and Richard D. Byers. Upon a motion by Joseph D. LaGrasse and 2nd by Richard J. Byers, the Board voted to uphold the Building Commissioner / Zoning Enforcement Officer's letter of August 25, 2003 and DENY the Finding of the party aggrieved for the following reasons: 1. The Planning Board Special Permit of August 31, 1987, time stamped by the North Andover Town Clerk on September 03, 1987 does not place a definite hourly time of operation for Materials Installations, Inc., 11 Bayfield Road in the Conditional Approval of the Site Plan Review. 2. The Planning Board decision of 1987 does not place any restriction on the type of business Materials Installations, Inc. conducts at the Industrial -1 site. In fact the August 31 ' decision gave the business permission "to expand the assembly and live storage areas in an existing building by 18,200 square feet". 3. In 1987 and presently the North Andover Zoning By-law does not address hours of operation. 4. In 1987 and presently the North Andover Zoning By-law does not address "noise levels" in any zoning district. 5. The Building Commissioner / Zoning Enforcement Officer's site visit found that Materials Installations had, conformed to Paragraph 5 of the Conditional Approval. 6. The Zoning Board has no authority to modify a Planning Board decision. 7. The Zoning Board has no authority to order the Building Commissioner/Zoning Enforcement Officer to act outside North Andover By-laws. Voting favor of the denial: Walter F. Soule, Ellen P. McIntyre, Joseph D. LaGrasse, and Richard D. Byers. Town of North Andover Board of Appeals, Walter F. Soule, Acting Chairman Decision 2003-037. M25P'73. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 5 t sjw pasoq a)gol969n 6wsn 'aasorn jawnsuoD lsod /oS }o wnwiww o 41!m'iadod pad AD9j /oor uo paluud I ZOOZ VIEW 100-ZO-d-106- Vda# purl$ug maN Vd3,1 w�t1 1:illil -Qjnoy ,amodGsJoy alojq iad swo16 ui possa,dxe) A6jaua 10 pun jad pagiwe uo!4nllod Jo Lunowo aye uo pasoq a,o sasnq puo sl:)n,4 J04 SPAopuotS uoissiwa s,yd3 , ---------------- --------------------- splopuo4s SPJopuoas a,nnj ',00 LOOZi a,n�nl z'o LOOZ m•a' VOOZ z VooZ ------------------ -------- ----- #AM�n ) 8661 -,113 866[ �- V66L Z L66L 'C 9 D V86L V66L `- 1661 V86L suoasslwa „Suo!ss!wa ua4}oWj94oln�i4ugd sapixp u96OJ4!N sasnq puq slz)nul nnaN uof spar)pug4S Vd3 sed leinjeu possaidwoo a�q slanj Aaueala alowoad O -sulei2oid 2uilpi-i}ue juawalduli pue aleaaa p 'sapigan lasalp JOJ sweJ2oid 2ugsal uoissiwa luawaldull p •sloaluoo uoi}nllod glim saloiilan lasaip 2UIISIX91!JOJIOd p :o} 2ulvOm ale SWIS puOu3 MON aq} pue yd3'aouanl}ui ue aneq oI GWII aIeI sapigan Jauea10 woj j suogonpaa uoissiula asneoa8 . •aan}nj aqj ui spiepue4s asagj uaq}3uaj;s of �wpom si pue `}uawdmba wiel pue uogorulsuoo se gons'saui2ua losaip peoA-uou 'mau jol spiepue}s uoissiwa panssi seq yd3 -slapoW s,AepoI uegl aaueap juamd S,6 of do aq ppm sauq uoilonpoad aq;}}o2uilloa sasnq pue spru}mou'LppZui legl ueaw llim)Tolougoal loaluoo uoilnllod paouenpe grim uoi}euigwoo u1 lanj lasaip in}Ins mol-eilln sigl •an jlns ssal juaojad L6 uieluoo llp lanj lasaip 'gppZ ul `sasnq pue srnal lasaip f}np-fneaq nnau WOAD uoi}nllod lasaip jo suoilonpaa 2uiainbaa s1 yd3 'sau15ua Iasaip aaue810 aouenpe o} sdals lue}iodwi gui�ej aae sajejS puel5u3 MON aql pue yd3 -aamod jo aaanos leoiwouooa pue algeanp a aae saui5ua lasaia . LSNIOd 1N3WNH3A13J SI 1dHPn �� �mD r TOWN OF NORTH ANDOVER F xaRTk q Office of COMMUNITY DEVELOPMENT AND SERVICES o= b` t Eo �° m HEALTH DEPARTMENT } 27 CHARLES STREET EPt`y'G5 NORTH ANDOVER, MASSACHUSETTS 01845 pSs 9Q�gATEC'A11 US�K 978.688.9540 - Phone 978.688.9542 - FAX Susan Y. Sawyer, REHS/RS Public Health Director "MA Ta � �f From: Fax: Pages: Phone: Date: Re � cc: ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle. Please call 978-688-9540 for assistance with any questions. Thank you. xc: Address File Chrono File HP Fax K1220xi Log for NORTH ANDOVER 9786889542 Mar 15 2004 1:05pm Last Transaction Date Time Type Identification Duration Pages Result Mar 15 1:03pm Fax Sent 816172364339 1:25 5 OK .02/05/2004,13:47 FAX 617 542 2241 HINTZ LEVIN Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 Benjamin B. Tymann Direct dial 617 210 6853 bty.n2nn@minta.s9r—n February 5, 2004 BY FACSIMILE AND FIRST. CLASS MAIL Chairman Alberto Angles, Jr. North Andover Planning Board Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Material Installation, Inc. 's Special Permit ofAugust 31, 1987 Dear Chairman Angles: Q002/005 6175426000 617 542 2241 fax RECEIVED FEB a 5 2004 Community Development and Services As you may know, a hearing Sivas held before the North Andover Zoning Board of Appeals on January 13, 2004 relative to Konstantinos Balos' appeal of the decision of Commissioner Nicetta that my client, Material Installations, Inc., is in full compliance with the Planning Board Special Permit of August 31, 1987 governing operations at Material Installation's headquarters at 11 Bayfield Drive (the "Special Permit"). During that ZBA hearing, Acting Chairman Soule stated that, per the request of Mr. Balos, the Planning Board would be asking Town Counsel Urbelis to render an opinion on the question of whether the Special Permit can be revised unilaterally by the Planning Board despite Material Installation's full compliance with each of the Permii's terms and conditions. I do not know whether your Board yet has asked for, let alone received, Attorney Urbelis's opinion on this legal question. Nonetheless, I write to explain the reasons why the law clearly does not permit a planning board to revisit, or consider substantive revisions to, a special permit granted sixteen and a half years ago by a predecessor planning board. As you know, a special permit is a property right granted to a landowner. See G.L. c. 40A, § 9. Of course, a permit granting authority that issues a special permit may make the property right it is conveying to the special permit holder subject to conditions, including "limitations on time." Id. Once a permit granting authority decides to issue a special permit with whatever conditions it has included, then files its decision with the town clerk, that "final action," G.L. c. 40A, § 17, is subject to an appeal period of only 20 days. Id. Any such challenge to the special permit -- whether by an aggrieved private party or "any municipal officer or board," id. -- must occur within that twenty -day period. `n[is] remedy shall be exclusive," the statute says. Id. (emphasis added). Boston Washington Reston New York New Haven Los Angeles London .02/Q5/2004.13:47 FAX 617 542 2241 MINTZ LEVIN 10003/005 MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P:C. Chairman Angles February 5, 2004 Page 2 Here, the Planning Board granted Material Installations the Special Permit, unlimited in time, in 1987. No one appealed that Special Permit. Mr. Balos cannot now attack the Special Permit, years after the fact, by asking your board to revise it. The decisions of Massachusetts courts that have treated the issue of the finality of a special permit are as unambiguous as the statutory language that those decisions interpret. In Iodice v. City of Newton, for example, the Supreme Judicial Court held that "by its plain language, .Section 17 establishes that a person aggrieved by a decision of a special permit granting authority must seek review of that decision, if at all, within twenty days of the filing of the decision in question." 397 Mass. 329,333 (1986) (emphasis added); see also, e.g., Eldercare Services., Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480,482 (1984); Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420 (1963) (both cases holding that the exclusive remedy for undoing board of appeals' decisions is the statutory 20 -day appeal). The Supreme Judicial Court has been just as unequivocal in reiterating the Legislature's rationale for strictly limiting the ability to attack property rights enshrined in a special permit: the holder of a special permit, like Material Installations, "should be able to rely on the decisions of... special permit granting authorities which have not been challenged within a limitedperiod." Iodice, 397 Mass. at 334 (emphasis added). Massachusetts courts take this legal principle so seriously as to treat compliance with Section 17's twenty -day appeal provision as "a condition of maintaining" a challenge to a special permit and a requirement that is "`policed in the strongest way."' Bonfatti v. Zoning Bd. of Appeals of Holliston. 48 Mass. App. Ct. 46, 50 (1999),uq oting Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 3117 312 (1986). In fact, as recently.as 2001, the Appeals Court upheld a trial court's decision that invalidated a legal challenge to the issuance of a special permit by an abutter because that abutter was 15 minutes late in filing a copy of her appeal with the Town Clerk as required under [the twenty -day appeal provision. Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 556-67 (2001) ("Harsh as it may seem," there was no "wiggle room" under the statute to allow this slightly late filing). If one who wishes to undo a special permit cannot do so because she started her challenge 15 minutes after the moment the permit holder could rely on it as final, surely either Mr. Balos or the Planning Board would be barred from doing so sixteen and half years after that deadline. In a Superior Court case where, like here, a neighbor came forward to request revision or reversal of a property right that was granted to a land owner nearly a decade earlier, the Court, in rejecting that challenge, applied these same principles safeguarding a property owner's ability to rely on the property rights already conveyed to him by government authorities. Allison v. Barberry Homes, Inc., 12 Mass. L. Rptr. 138 (Mass. Super. Ct. Aug. 1, 2000) (Sosman, J.). In that case, however, the property right that the Court protected from that extremely tardy legal challenge was a license, a far less enduring property right than a special permit. The holding of 702/05/2004,13:47 FAX 617 542 2241 4INTZ LEVIN IA 004/005 MINfZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Chairman Angles February 5, 2004 Page 3 then -Judge (now Supreme Judicial Court Justice) Sosman in the Allison case is particularly apt to the situation the Planning Board faces with Mr. Balos who — in addition to claiming that Material Installations is a nuisance to him even though he bought his home well after my client received its special permit and began its warehousing and assembly operationst/ -- apparently hopes that this Board will add new conditions or otherwise revise Material Installations' Special Permit based solely on the notion that, in 1987, a predecessor Planning Board could have added different conditions or otherwise reached a different result. Rejecting this same theory in Allison; then -Judge Sosman stated: Th[e) limitation [that a license should be used in compliance with its terms] does not mean that disgruntled neighbors may, under a nuisance theory, reopen the underlying [] proceedings that led to the issuance of the license to see whether, with hindsight, the license terms could have been crafted differently. ...Challenges to the wisdom or propriety of a [license -granting authority]'s decision must be brought before the [authority] and addressed in any judicial review of the [authority]'s decision. The law of nuisance is not a mechanism for disturbing a [] decision that has long since become final. 12 Mass. L. Rptr. 138. As this letter demonstrates, the law is clear that Material Installation's property rights under the Special Permit cannot be unilaterally revised or reversed sixteen and a half years after those rights were granted. Were that ever to occur, such action would constitute a taking, for which Material Installations would be entitled to compensation. When the 1987 Planning Board issued the Special Permit to Material Installations it did not, as it could have, limit the Permit's duration; rather, it conveyed to Material Installations an indefinite property right. That property right then became final at the moment that. the "exclusive remedy" for anyone wishing to challenge the Permit expired. Material Installations, which has been an outstanding corporate citizen and taxpayer in North Andover since 1987, relies on the Special Permit as vital to its business and, as Commissioner Nicetta correctly determined, is in full compliance with it. Therefore, I respectfully urge the Planning Board not to pursue the futile course suggested by Mr. Balos. " "[C]oming to a nuisance... is a significant factor" weighing against a prospective plaintiff s nuisance claim, particularly where the plaintiff knew or should have known of the type of commercial use taking place on an adjoining property at the time he moved to the neighborhood. Escobar v. Continental Baking Co. 33 Mass. App. Ct. 104, 110 (1992)_ +02/05/2004 13:48 FAX 617 542 2241 MINTZ LEVIN [7J 005/005 Mum, LEviN, CORN, FERRIs, GLovsKY AND POPEO, P.C. Chairman Angles February 5, 2004 Page 4 If I can answer any questions or provide any additional information of this matter, please do not hesitate to contact me. Thank you for your attention to this matter. cc: Planning Board members Zoning Board of Appeals members D. Robert Nicetta, Building Commissioner Thomas J. Urbelis, Esq., Town Counsel Mark Rees, Town Manager Mr. Konstantinos Balos Mr. Michael Farrow LIT 1440733vl Town of North Andover Office of the Planning Department Community Development and Services Division 27 Charles Street North Andover, Massachusetts 01845 Planning Director. ?woods@townofnorthandover.com P (978) 688-9535 h!tp://www.townofnorthandover.com /www.townofnorthandover.com F (978) 688-9542 J. Justin Woods - - ; Technical Review Committee Report TO: Mark Rees, Town Manager A P P 15- 2003 FROM: J. Justin Woods, Planning Director/TRC Chair Ccs n�ur', re;e',cpment CC: Raymond Santilli, Assistant Town Manager/Acting Director of Community Development Heidi Griffin, Community Development & Services Director Joyce Bradshaw, Town Clerk RE: Balos Request for Information DATE: April 15, 2003 Attached please find copies of the following three decisions: 1) Site Plan Approval for 11 Bayfield Drive dated September 2, 1987; 2) Preliminary Subdivision Approvals dated February 28, 1983; AND 3) Definitive Subdivision Approval dated April 2, 1984. I have reviewed all three decisions, which do not contain any conditions regarding hours of operation or decibel level for noise. I also provided copies to the Town Clerk who will pull the applicable minutes from her archives. I have corresponding files with each of these decisions, which I have set aside for easy access. The Planning Assistant and I have both met with Mr. Balos and permitted him to review these files. Mr. Balos can feel free to come in to view these files again and/or to copy them. We can provide him with a table on which to work and unlimited access to the copier. He will be charged $0.20 per copy. Re a tfull 4 G stin Woods BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 r•O ',W *N ;O 7- No R 't It A N D O v T•. R M,61SSACItUSz:'PTS SEP 8 IIB h 1 °87 ,f ; �tio Any appeal shall be filed . 00 ' �` °A within (20) days after the _ date of filing of this Notice in the Office of the Town _ Clerk. . NOTICE OF DECISION Date. Saptembex .2, .19.87 ........ Date of Hearing .August .31,.1.9$7 Petition of,Channel Building. . ... . . ........................ Premises affected Bayfield _Drive .- Industrial -1 (I-1) Zoning District . .. . . . . .................................. Referring to the above petition for a special permit from the requirements of the , ,North.Andover. Zoning. Bylaw, Section 8Para. 3 ...... ........................................... so as to permit , ,expand, the .assembly, and , live .storage , areas , in an .. .. ... .... .. . .. .. .. . . . ...... existing, building by. 18 :200, scZuare, feet ... . ........................................ After a public hearing given on the above date. the Planning Board voted Conditionally to ,A��rove .. , , , ,the Site. Plan Review...... . • ... ............................ based upon the following conditions Signed Erich, tn1., ,Nitzschc , LIjgj.V n ip John Simons George Perna Paul Hedstrom .......................... a. John J_:: .Burke .... ,..... , , •�lnnni�icr 11 nnrH of 'W. TN 7 I �2' "o< TOW11 of 120 MiIin Street 9 APPEALS ,',:: R.�'H ANDOVER NONorth Andover, M;1SSi1ChtJS(-:i1S 0 184 i CONSERVATION sA�CHUB e4 I{!DIVISK)N 6P', ((i17) 685-47 75 HEALTH PLANNING PLANNING & CO 3 MtjNI'FYfMEVELOPMENT KAftAPH.P. NELSON, DIRECTOR September 2, 1987 Mr. Daniel Long, Town Clerk Town Office Building 120 Main Street North. Andover, MA 01845 Re: Material Installation 11 Bayfield Drive North Andover, MA Site Plan Review through Special Permi- Dear Mr. Long: The North Andover Planning Board held a public hearing upon the application of Channel Building Company, 23 Main Street, Andover, MA. on Monday evening, August 3, 1987 in the Town Office Meeting Room. The hearing was advertised in the North Andover Citizen on July 16 and July 23, 1987. The following members were present and voting: Erich W. Nitzsche, Chairman;.John L. Simons, Clerk; George Perna and Paul •Hedstrom. John J. Burke was absent. The petitioner seeks a Special Permit under Section 8, paragraph 3; Site Plan Review. The purpose of the Site Plan Special Permit is to review the proposal to expand the assembly and live storage areas of the existing facility by approximately 18,200 square feet.of land on the North side of Bayfield Drive known as 11 Bayfiled Drive in an Industrial -1 (I-1) Zoning District. John Simons read the legal notice to open the public hearing. Letters were received and read from the Fire Department, Board of Health and two (2) letters from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans. MOTION: John Simons to continue the public hearing until the August 17, 1987 meeting. SECOND: George Perna VOTE: Unanimous On August 17, 1987 the public hearing was continued. John Simons read a letter sent to Mr. & Mrs. Redman from Material Installation with regards to lighting and traffic issues. Jim Bourgeois of Channel Building presented the Planning Board with revised plans. V Page 2: MOTION: By John Simons SECOND: George Perna VOTE: Unanimous to close the Publc acing. SEP 3 u �►� �4, On August 31, 1987 the Planning Board held a regular meeting and voted to approve the Special Permit application by Channel Building to construct an 18,300 square foot addition to the existing building located on Bayfield Drive at the intersection of Willow Street. Three issues of concern were discussed at the Public Hearing that should be addressed in this Conditional Approval are as follows: 1. The unfinished Cul -de -Sac at the end of Bayfield Drive does not allow for adequate fire protection and access' - egress for the existing building. It was discussed that the Cul -de -Sac was not finished by the developer of North Andover Business Park prior to this date because of a pending application to the Commonwealth of Massachusetts to create an entry onto Route 125. The Planning Board is in receipt of a letter from the Division of Public Works dated November 14, 1986 denying the request for emergency access onto Route 125 and is concerned that no work has taken -place on Bayfield Drive thru 1987. 2. Concern by abuttors to the North of Material Installation property of truck noise and lights during the night. Proponents for the project stated that the newest dwellings are 200 feet and 400 feet respectively from the building, but admit that into the winter months, a lack of foliage in the intervening woods may be cause for concern and have suggested that truck traffic be directed onto the locus by way of the Willow Street entrances thereby minimizing. headlights being directed to the North by the present access from Bayfield Drive. 3. There was a concern by the Planning Board of the increased rate of runoff being produced within the North Andover Business Park by the inclusion of additional impervious pavement and building additions. The applicants Engineer, Mr. Tom Neve, has submitted drainage calculations stating the peak runoff has been decreased from the locus due to the fact that percentage of impervious area on the lot has been reduced from the overall Master plan of the Park and that the lot size has been reduced. Notwithstanding these factors, the Planning Board recognizes that if this lot size has been reduced, another lot. in the Park must have been increased, and that Mr. Neve nor the Planning Board has an accurate accounting of the present impervious area versus the original Master Plan impervious area of the Business Park overall. y Therefore,. the Planning -Board renders' this Conditional Approval ­i for the constriction of the _proposed building _additions -.for" Malarial Tnci-AI1;;finne: i Page 3: .YZ 1. Bayfield Drive will be construgtpgfyg$ccordance with the Subdivision Plans of North" �1ndbVdr Business Park and be brought to at least bindbY pavement to the satisfaction of the North Andover Fire Department and to the Division of Public Works prior to construction of the building addition. 2. The lawn area to the East of the proposed building between the building and Willow Street shall be designed as a Detention/Retention'Pond to further mitigate runoff flows and to account for loss ground water infiltration due to the impervoius area. This will necessitate redirecting runoff flows into the Ponding area, preferably from the parking lot prior to discharge off site, with proper pipe sizing to detain storm water flows to the maximum possible. 3. Truck traffic flow will be required to access -egress the property from the Willow Street curb cut only and automobile egress the site from the curb cut on Bayfield Drive. This will be a condition for continued occupancy and will.be implemented by the use of one-way signs and exit only signs and others as deemed necessary both installed at the two curb cuts as well as at the truck docks and pointed indications on the pavement throughout the parking and access -egress areas. 4. Upon completion of the building addition and prior to building occupancy, the applicant shall file an As -Built Plan of the total site showing at least, but -not limited to the following, pavement grades, rims and inverts, drainage size, access - egress signs, lighting landscaping and all utilities. Said plan to be prepared and certified by a Professional Land Surveyor and submitted for approval by the Planning Board. 5. The landscape plan as submitted does not show the existing row of planted arborvitae to the rear of the existing building and the Planning Board is of the opinion that the proposed planting of arborvitae will be of the same nature, and therefore will not mature to a full effective screening for many years and therefore will require that in addition to the landscaping plan as submitted being conformed to in its entirety, a six (6) foot closed stockade fence be erected along the property line from a point starting fifty (50) feet from Route 125 and extending Easterly to the Easterly line of the proposed building addition. 6. In accordance with the Fire Department report of July 31, 1987, the following shall be provided: 1. The addition must be equipped with an automatic fire suppression system (sprinklers) and the fire detection and alarms form the original building must be extended into the addition. Both of these systems must have plans submitted to the Fire Chief for approval prior to construction. Page 4: /je cc: 2. The Fire Chief has requested that information regarding the material to be stored and the amount of storage for products in this expansion be submitted to himself or the Fire.Presention Officer. 7. The North Andover Conservation Comission's Order of Conditions under File No. 242-193, shall become a part of this approval and be strictly adhered. 8 - In addition to the aforementioned Conditions, the Planning Board approves only that work as shown on the submitted plans namely: 1. Sheet L1-1 dated 9/5/86 and revised 8/13/87 2. Sheet L2-1 dated 9/5/86 and revised 8/13/87 3. Sheet L4-1 dated 9/5/86 and revised 8/13/87 4. Unnumbered Sheet dated 8/13/86 and revised 9/9/86 and entitled "Scheme 3" 9. Any proposed changes and/or future building expansion will be the subject of -a new Public Hearing under a new Special Permit Application and further that any changes from these approved plans and that may be shown on the As -Built Plan submitted for approval prior to occupancy will negate this Special Permit and will require a new filing of application. Director of Public Works Highway Surveyor Board of Public Works Tree Warden Conservation Commission Building Inspector Board of Health Assessor Police Chief Fire Chief Applicant Engineer File Interested Parties Sincerely, PLANNING BOARD Erich W. Nitzsclib, Chairman m -o tD ` r �� NORTH ANDOVER BUSINESS PARK PLANNING WAR1. In accordance with the Preliminary Subdivision Approval, the p ans do not show a closed water main system down Route 125 to Hill- side Road as required by the Dept. of Public Works with the Preliminary approval. f 2. All other aspects of Dept. of Public Works report in accordance with Preliminary approval. = Y , rPCt';,.c:d. 3. Drainage calculations have not been submitted based upon the Order of Conditions from North Andover Conservation Commission. 4. Drainage calculations have not been submitted for all drain pipes. • S. Project proposes filling, raising the 100 yr. flood elevation from elevation 236 to elevation 237. This additional flood height will cause flooding on land of Margolis through the proposed twin 18" drains at Station 35+50. Project should mitigate this flooding. 6. Require municipal fire alarm system as requested by Fire Department. 7. The plans do not indicate an access-egress onto Route 125 in accordance with�the"'Fire Department request and in accordance with the Preliminary approval./100 8. No documentation has been submitted as to ownership of the existing Willow Street in its entirety .either private or public, in accordance with the preliminary approval, nor is any information provided documenting by metes and bounds the outside limit of Willow Street. 1 . Urai nagc st ibrri-i t. Led are da t.cd March and avo indicate 31.-98 Acres of imprevious surface with plans which ° only show approximately 3 Acres of roadway. Proposed site plans of lots documenting the impervious area should be submitted`so that they can be verified with the Asbuilt Plans. 10. Require that As -Built Plans of the entire subdivision be submitted includingg all lot develop ment.,so_;:that the Pl ning 11. Watershed borering lines have not been shown on Definitive Plans : so it must be assumed that the detention basin is allowed also to flow on land of Symosek and create additional flooding. Developer is required to mitigate the -additional flooding on abutting properties to zero. In accordance with Section III, B,l,e) of the Planning Board Rules and Regulations. 12. This subdivision ignores the Prelimianry approval decision in that the drainage under Willow Street is being utilized as a drainage constriction. The H.S. has requested that the drain under Willow Street be enlarged and that all drainage constrictions be outside the roadway. The existing 15 inch drain was considered to be temporary by the H.S. 13. The typical roadway area section isnot in compliance with the rules and regulations, specifically Section V,c. 14. There shall be no weephole in drainage structures as noted a on detail sheet. 15. Plans do not reflect requirements of the Dept. of Public Works in their report of May 8, 1984. 16. Plans do not reflect requirements of the H.S.. in his report of Mc1y_1 15, _ 1984. 17 P1.ns,.'do not reflect requirements of .the Fire Dept. in its report of;;Aprl 26, 1984. a•, k 7. TWO eI,Pp�ans.dp not reflect the requirements of the Conservation Commission NORTH ANDOVER BUSINESS PARK Order,of Conditions dated October 14, 1983 under File No 24 1q3. l�lns do not reflect a buffer zone on Lots 6 and 7 abutting a Board.can verify the extent of imprevious areas. This is important so that the Planning Board can verify if development is in keeping with the drainage calculations dated March, 1983. o- J114Cc4� 11. Watershed borering lines have not been shown on Definitive Plans : so it must be assumed that the detention basin is allowed also to flow on land of Symosek and create additional flooding. Developer is required to mitigate the -additional flooding on abutting properties to zero. In accordance with Section III, B,l,e) of the Planning Board Rules and Regulations. 12. This subdivision ignores the Prelimianry approval decision in that the drainage under Willow Street is being utilized as a drainage constriction. The H.S. has requested that the drain under Willow Street be enlarged and that all drainage constrictions be outside the roadway. The existing 15 inch drain was considered to be temporary by the H.S. 13. The typical roadway area section isnot in compliance with the rules and regulations, specifically Section V,c. 14. There shall be no weephole in drainage structures as noted a on detail sheet. 15. Plans do not reflect requirements of the Dept. of Public Works in their report of May 8, 1984. 16. Plans do not reflect requirements of the H.S.. in his report of Mc1y_1 15, _ 1984. 17 P1.ns,.'do not reflect requirements of .the Fire Dept. in its report of;;Aprl 26, 1984. a•, k eI,Pp�ans.dp not reflect the requirements of the Conservation Commission id, n;the i r Order,of Conditions dated October 14, 1983 under File No 24 1q3. l�lns do not reflect a buffer zone on Lots 6 and 7 abutting a es`izonae as required in the Preliminary Approval. S� :1 p• - 2,(S.' Plans do not show solid line on proposed street and lot lines. E _' 21 No Easements havebeen dimensiore.in proper form._ for conveyance. t w22. P1arIS ciot, not show erosion and sedimentcontrol methods, in accordance f ;with Settlor III, B,1 k: of -the Rules and Regulations. x by H.W. Moore Associates, Inc.`-," dated On the North and East,b Willow St., on being land bounded as follows: ,� the South by:land of Commodore 'Corporation,' and on the West by the ,R Andover'-18-y­--Pass4125 �r +'.rig �h? z .. _ _ .r.;• E 5' ` u, „.', x hereby submits said plan as'a DEFINITIVE plan in accordance. with the Rules andk; Regulations of the North Andover Plarming Board and makes application to they "FS Board for approval oi' 'saz.d plans t }. Ft t: rpt , Y<S`Y',,pF./a f 3+ _ 'S r ova 2.n y S. fc3 S y:} ' C€xat�`atT 'N'T' `s;a i1Y'' '}•$:,.. ii`: l ;S A.'�`A r '€j -s. 4 .r.•,k' VV_-, ? t.M,`a4-_4W, ri', Page d8_; Titl RefnEssex needs 866'k .. 1 5> Certsf'icate of Title No. ftegistrat3.a Book * page,; or x�t -tsY a R1�+X-n d' _50 Other: S-€�s�J".z r�. 3 3$$�ip. �� i "#`-•.� k t Said plan has( has not( ) evolved ,from a preliminary plan submitted to =, the Board of Feb. 28 19 83 andapp roved (with modifications) (mac) disc roved on ;; ::. 19{ E� �'` 31 r PP ( :hrx a A x l MR., .�a�' T.s�...§'"`,e',t,y _:; �,_�-._j 'LA —v -- w tiy',tht Board77 77 andIn Rales;and Regulation with the Town of Nor 1. ' Zi0 3.n5�81I. utili' Boarclt �uJ J6 vsav !: yk + Y V Ca va t. therance;ihereof hereby agrees t© abide by the,$oa �h undersigned hereby 'further'°;covenants and agr nclover. uvoa�":anvraval"of'3said<DEFINITIVE .elan bv..t a pare pplicable�`t0 the' ins allatiori of utiZitiss r .th�.n "*tie #limits�of� a a3 aT1d;18treet:� tc�F't t'o.• ° rx, 3`���s 2. To, complete and co�istxuct the streets or ways and other is provements shown thereon in accordance with Sections Iv and V Of the . Rules _and 'Regulations��_. of the Plaxm.ig Boaird` and tie . approved. DEFINITIVE' plan, prof es and cross sections of the same. Said plant profiles* cross sections and construction specifications are specifically, by reference, incorporated herein.and made a part of this application. This application and the covenants and agree- ments'herei.n shall, be binding upon all heirs* executors -administrators, successorsli grantees of the whole or part of said land, and assigns of the?,,, - - undersigned; and x 3. To'complete the aforesaid installations and construction' within two (2)-t,.. gears from the date hereof. 114 Associates Realty Trust Received by Tot, -n Clerk: Date: Signture of Applicant _ ,; Time:, . Two Elm Sic care Signature: Andover, .Mass. 01810 _ Address �TOidN CLERK and Certi APf r V y § That th'e''t th'e''record `owners of the a Rcovenant - .u�ni rig ` W:L the land" ` or struction of says and the installation � � #$fi f 4f'f Nat:ce to APPI � <� on Definitive conform to the governing rules and regi Y y 3 5 i 3 T gA �TOidN CLERK and Certi SSM �k3t Y P k t' cation^of Action z ----7- - "' _t.v .vas. caa - - - - . � FtI3kM �. �"'it�'r- r _ s _ • 3; a �.ccea.�;t;;:l,g�-+.t-s?-i r� {�+s,5�+.» �e.,;s� +r�� s,,.�-� rn��+�s:..---asa 3 APf r V y § That th'e''t th'e''record `owners of the a Rcovenant - .u�ni rig ` W:L the land" ` or struction of says and the installation div�sionp all as provided by G.L. c}. 1� #$fi f 4f'f 2. That all such constructioh'and ## conform to the governing rules and regi Y y 3 5 i 3 T gA SSM �k3t Y P k t' cation^of Action z ----7- - "' _t.v .vas. caa - - - - . � FtI3kM �. �"'it�'r- r _ s _ • 3; a �.ccea.�;t;;:l,g�-+.t-s?-i r� {�+s,5�+.» �e.,;s� +r�� s,,.�-� rn��+�s:..---asa 3 DECISION - APPROVAL NORTH AunnAMD BUSTNESS PARK DEFINITIVE PLAN OF LAND July 17, 1984 JUL I D 115o AN IN Any appeal shall be fil-E Within (20) days after t date pf filing of this Noti in the Office of the To, Clerk. ' 1. A 12 inch. ductile iron cement lined water pipe, seal coated inside/tar coated outside shall be installed 15 feet from the property line with 5 feet of cover below the finish grade: a. for a distance of 2240 feet on Willow Street Extension; b. for 1550 feet on.Road A; 2. Eddy breakflange hydrants to North Andover specifications shall be installed at stations 10+2.0, 25+10, 30+30, 34+501 39+40, 44+0 and 46+50; with 12 inch Mueller or equal gate valves (open left) at stations 29+50, 29+60, and 29+70 with a 12 inch stub tie into Willow Street; and 38+90, 39+0 and 39+10 at Road A. 3. A 10 inch unglazed .full strength vetrified clay sewer shall be installed along.the centerline of Willow Street for 2277 feet and 478 feet on Road A. 4. 5. M Precast manholes shall conform to ASTM designation C4-78 and shall' meet the following requirements: a. The wall thickness shall be not less than 5 inches, sections shall have, tongue and. groove joints with an approved round or fin gasket. b.- Pipe connections 'shall be of the rubber boot type with stainless steel band type or approved equal. c.- Manhole frames and covers shall be cast iron lettered -SEWER and shall be.6 inches hi-gh.- (All sewer construction shall be subject to low pres-sure air testing prior to acceptance by the town). All water construction .must -pas-s-leakage and pressure tests -perfo-med-:- in accordance -with Section .13 of `AWWA -standard C60'0° an& shrali be k chlorinated in accordance with AWWA standard C601 Standard Procedure for Disinfecting Water Mains. Adequate public liability and property damage -insurance, as well as a-streetopening bond in an amount satisfactory to the to the Highway Surveyor will be required for --any off-site roadway work. An adequate fire alarm system shall be sites for proper fire -protection, to be 7. The applicant. shall continue to pursue. acquire the necessary State permits 'to public safety vehicles) -and. --permanent traffic volume generated) access/egress installed on all developed approved by the Fire Chief. the necessary channels to gain both - emergency (for (to accomodate -additional of Road A to Route 125. 8. The two proposed cul-de-sacs shall be increased from 100 feet to 130 feet. - Any appeal shall i be -f i t ;7 within (20) days after DECISION - APPROVAL date of filing of this Noi NORTH ANDOVER BUSINESS PARK, r-. in the Office of the Tc PAGE 2 Clerk. QUI_ 18 I! AM N 9. Two -catch basins shall be installed at Road A and Route 125. 10. Checkerboard type grates s•ha-11 be used on.all drainage catchbasins. 11. All construction shall comply with the Conservation Commisssion's Order of Conditions dated October 143, 1983, DEQE File NO. 242-193. 12. The Willow Street Extension/Flagship Drive roadway intersection shall be improved to the required width in accordance with Section •IV.A.2.b. Design Standards to permit safe traffic flow in and out.of the Business Park. Plans.shall be. reviewed and approved by the Highway Surveyor and Planning Board prior to any Park construction or until adequate securtiy is posted for its completion. 13. The applicant is required to mitigate any additional flooding on abutting properties to zero, in accordance with Section III.B.I.e. of the Planning Board's Rules & Regulations Governing the Subdivision of Land. 14. Street drainage not shown on definitive plan will not be add -ed. during construction unless required by the Highway Surveyor and will be detailed on the "AS BUILT" plans. 15. Additional drainage calculations shall be submitted and reviewed by the -Planning- Board_ for : all drainage' pipes -=prior-- to signing -:'the. ....._ definitive plans. 16'.` Information regarding the -metes and- bounds .-of ` theoutside construction limit of Willow Street Extension shall be submitted for proper acceptence -by the town 17..' As- built plans..-shalli be submitted to' the Planning Board -for- rev ewF- and approval in accordance with Section III.B.J.4. Conveyance of Improvements.- In addition; prior to final release -of-security, the applicant shall forward to the Planning Board copies of those plans required by the Conservation Commission detailing the extent of impervious areas associated with site development to ensure ..that development does not exceed that described in .the drainage calculations dated March 1983. 18. Road cross-sections will be clearly illustrated on the final definitive plan for signature/ s specified in Section V,c. 19. There shall be no weephole.in_drainage structures -as noted -on detail sheet.* 20. As. required in the Preliminary Plan Approval Condition #7, the applicant shall provide the proper buffer zone of 100 feet on lots 6 and 7 abutting residential districts in accordance with Table II of the North Andover Zoning .Bylaw. . MY appeal shalt be f within (20) days after ;a; t ,' �� date of filing of this N DECISION ` APPROVAL in the Office of, th NORTH ANDOVER BUSINESS PARKjUL IR I1 �8� e PAGE 3 - Clerk. JO 21.- Final definitive plan shall show solid lines on proposed street and lot lines. 22. All easements shall be fully dimensioned on plana_; for proper conveyance. The owner shall retain title to the fee of each,stree`t path or_,easement in or appurtenant to ,the subdivision until conveyed to' the town and shall maintain and rep`air,, the. -roads and,. drainage facilitiesJn'a manner satisfactory`to the" Board during that''pe`riod NOTE Notation that fee is to be retained shall be placed on the definitive plan •, p i x'23. A,`sedimentaton and erosion control plan '.specifying methods ,shall be submitted. .and ;approved in accordance with Section III, B,1 k prior v to construction K. �.; 2 24 Copies of ,.site regrading plans (showing Iot regrading, cuts and ' { fills_) as, requa red by Conservation.* Commission Order ofCodzon� { 242 '193 w1L: be submitted to th,e Plann"ing Board along with Sate Plans; s ` as -..r. -e. qu,i-r,e,d by Section: 8 of the North Andover Zoning Bylaw 3iiak* 25 The applicant shall plan and coordinate the installation of -Ml underground utilities prior to ;jbinderrcoatapplication Fa]' release of ``�bonti money applicable �to bYnde shall nobe until thee-appl`icant's e'ngineere of :record "has ;.ce_rX e tha�� alh a" ,- utilities are installed: and upon inspectin by the HghwaySurvyo�- £gyp r 26. Where =drain "inverts _are 'set below 'the_.existYng} grade. and "close:to-, fromadverse affects of surface.wl erosion control and rip rap on definitive plans fpr endorsements r .. . .. .. ._ _ .a,,_ ._ _ _ ,...p.:" 4._-e .4 ._.:8•'• T-. Y _ 77 ,r• :.tA' i -`K 3Ws1, "` '�'YS itysFTri 27 ` The termination- of the drainage easement on` Lot 7 shall; be.t shown onK. the Final Plan. -�zT rt�-, 1 10 28. All drain easements shall be. delineated on the topographic and ,-u drainage plans to insure . the PlanningBoard and Highway ur oyorthatl .the drainage Js'-indeed'.within�the easements +2 yar�' 6 yd MT R 4- `29`.` If�..in the -op Fire Chief,: =the+�>instalYed�water line does . -not- meet adequate,- flow ,tests Ian«�gal1-6r per' minutes as 'equ red =z�i Section 26G in.y the£or.th. Andover F;lre `Code`,�devZripe/owner; .shall,after_ notice to the Planning Board, submit revised plans .'to -the North Andover,: Fire_ Chief..,-- - and' the North -_:Andover. Board of Pub!jjc; t Works ..for, approval, which. •plans~ sh11 then be submitted to the. =Planning Board. for appraval .f Plans fof pipe spaces `and tcalculatons for._ the.; sprinkler.- systems 'shall be' _submitted' to _.;the .. Pire Gli;ef ; for F._. review. ;f� Any appeal shall be I � �f. z ., within'(20) days after r r _ date of filing of this M F tiff' �-.'ER in the. Office of the l DECIS NORTHANDOVER ION PBUS NESS PARK JUL 16 I I �0 AM ROVAL`gq ' ,. Clerk. ` PAGE4 30. The applicant/owner/developer shall be aware of the fact; that approval of this subdivision under the ,,,Planning 'Board Is Rules;¢A$ Regulations will not relieve said parties. of the respona1D111tytb ` other property owners upon whose land is -affected by indirect, or ..' direct development storm water discharge.:':',._M tt' "Notation is to be placed on ;the definitive plans o be recordecL;"M�F`���Y r � - 41RN IN Ycp. .tea- r3 a P_ c'�,v.�t•.- 13 Town of North Andover Office of the Planning Department Community Development and Services Division 27 Charles Street North Andover, Massachusetts 01845 bqp://www.townofnord-tandover.com Planning Director. jwoodsQtownofnorthandover.com P (978) 688-9535 J. Justin Woods F (978) 688-9542 INFORMATION REQUEST TOWN PLANNER Please use this form if the Town Planner is unavailable to provide immediate assistance. The Planner can provide information on new development in Town, Planning Board actions and meetings, and Planning Board application procedures. Please fill out the attached form in its entirety to ensure an accurate and prompt response. All requests for information will be handled as soon as possible. CONTACT INFORMAiTIONtj Date: G0✓}�j� �. Name: 2ND ��.o /otl� t aff-�/Gum Phone number: 51 7Z5 -G3' 3- l l � ` /JAL 7 � Fax number: Address: R -J , N oc-C\ N Al" P \) F� N` -p, f'e INQUIRY 0,(- G IwOA r,.)l Property in question: (Please include as much information as possible, e.g.: address; tax map and parcel number, subdivision or site plan name.) Inquiry:P:zA�. 2 t�5'c► -1- Lo ;� S Thank you for your interest and inquiry. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 TOWN OF NORTH ANDOVER 4 Hor+rH q Office of COMMUNITY DEVELOPMENT AND SERVICES O HEALTH DEPARTMENT p 27 CHARLES STREET NORTH ANDOVER, MASSACHUSETTS 01845 "SS CHUS`y 978.688.9540 - Phone 978.688.9542 - FAX Susan Y. Sawyer, REHS/RS Public Health Director TO: f From: Fax: Pages: Phone: Date: Re- e5551� ❑ Urgent 0 For Review ❑ Please Comment 0 Please Reply ❑ Please Recycle. Please call 978-688-9540 for assistance with any questions. Thank you. xc: Address File Chrono File HP Fax K1220xi Last Transaction Date Time Mar 15 1:03pm Twe Identification Fax Sent 816172364339 Log for NORTH ANDOVER 9786889542 Mar 15 2004 1:05pm Duration Pales Result 1:25 5 OK .02/05/2004 13:47 FAX 617 542 2241 MINTZ LEVIN Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 Benjamin B. Tymann Direct dial 6172106853 btymann®2ein±a.cor—n February 5, 2004 BY FACSIMILE AND FIRST CLASS MAIL Chairman Alberto Angles, Jr. North Andover Planning Board Town of North Andover 27 Charles Street North Andover, MA 01845 Be: Material Installation, Inc. 's Special Permit ofAugust 31, 1987 Dear Chairman Angles: IA 002/005 617 542 6000 617 542 224I fax RECEIVED F E B o 5 2004 Community Development and Services - As you may know, a hearing Was held before the North Andover Zoning Board of Appeals on January 13, 2004 relative to Konstantinos Balos' appeal of the decision of Commissioner Nicetta that my client, Material Installations, Inc., is in full compliance with the Planning Board Special Permit of August 31, 1987 goveming operations at Material Installation's headquarters at I 1 Bayfield Drive (the "Special Permit"). During that ZBA hearing, Acting Chairman Soule stated that, per the request of Mr. Balos, the Planning Board would be asking Town Counsel Urbelis to render an opinion on the question of whether the Special Permit can be revised unilaterally by the Planning Board despite Material Installation's full compliance with each of the Permit's terms and conditions. I do not know whether your Board yet has asked for, let alone received, Attorney Urbelis's opinion on this legal question. Nonetheless, I write to explain the reasons why the law clearly does not permit a planning board to revisit, or consider substantive revisions to, a special permit granted sixteen and a half years ago by a predecessor planning board. As you know, a special permit is a property right granted to a landowner. See G.L. c. 40A, § 9. Of course, a permit granting authority that issues a special permit may make the property right it is conveying to the special permit holder subject to conditions, including "limitations on time.". Id. Once a permit granting authority decides to issue a special permit with whatever conditions it has included, then files its decision with the town clerk, that "final action," G.L. c. 40A, § 17, is subject to an appeal period of only 20 days. Id. Any such challenge to the special permit -- whether by an aggrieved private party or "any municipal officer or board," id. -- must occur within that twenty -day period. "Th[is] remedy shall be exclusive," the statute says. Id. (emphasis added). Boston Washington Reston New York New Haven Los Angeles London 02/05/2004 13:47 FAX 617 542 2241 MINTZ LEVIN [x003/005 MWIZ, LEvw, COHN, FERRls, GLOVSKY AND POPEO, P.C. Chairman Angles. February 5, 2004 Page 2 Here, the Planning Board granted Material Installations the Special Permit, unlimited in time, in 1987. No one appealed that Special Permit. Mr. Balos cannot now attack the Special Permit, years after the fact, by asking your board to revise it. The decisions of Massachusetts courts that have treated the issue of the finality of a special permit are as unambiguous as the statutory language that those decisions interpret. In Iodice v. City of Newton, for example, the Supreme Judicial Court held that "by its plain language,. Section 17 establishes that a person aggrieved by a decision of a special permit granting authority must seek review of that decision, if at all, within twenty days of the filing of the decision in question." 397 Mass. 329,333 (1986) (emphasis added); see also. e.Q.. EIdercare Services., Inc. v, Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480,482 (1984); Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420 (1963) (both cases holding that the exclusive remedy for undoing board of appeals' decisions is the statutory 20 -day appeal). The Supreme Judicial Court has been just as unequivocal in reiterating the Legislature's rationale for strictly limiting the ability to attack property rights enshrined in a special permit: the holder of a special permit, like Material Installations, "should be able to rely on the decisions of... special permit granting authorities which have not been challenged within a limited period." Iodice, 397 Mass. at 334 (emphasis added). Massachusetts courts take this legal principle so seriously as to treat compliance with Section 17's twenty -day appeal provision as "a condition of maintaining" a challenge to a special permit and a requirement that is "`policed in the strongest way."' Bonfatti v. Zoning Bd. of Appeals of Holliston, 48 Mass. App. Ct. 46, 50 (1999),uq oting Cappuccio v. Zoning Bd. of Appeals of Spencer 398 Mass. 304, 3117. 312 (1986). In fact, as recently as 2001, the Appeals Court upheld a trial court's decision that invalidated a legal challenge to the issuance of a special permit by an abutter because that abutter was 15 minutes late in filing a copy of her appeal with the Town Clerk as required under [the twenty -day appeal provision. Bingham v. City Council of Fitchbure. 52 Mass. App. Ct. 566, 556-67 (2001) ("Harsh as it may seem," there was no "wiggle room" under the statute to allow this slightly late filing). If one who wishes to undo a special permit cannot do so because she started her challenge 15 minutes after the moment the permit holder could rely on it as final, surely either Mr. Balos or the Planning Board would be barred from doing so sixteen and half years after that deadline. In a Superior Court case where, like here, a neighbor came forward to request revision or reversal of a property right that was granted to a land owner nearly a decade earlier, the Court, in rejecting that challenge, applied these same principles safeguarding a property owner's ability to rely on the property rights already conveyed to him by government authorities. Allison v. Barberry Homes, Inc., 12 Mass. L. Rptr. 138 (Mass. Super. Ct. Aug. 1, 2000) (Sosman, J.). In that case, however, the property right that the Court protected from that extremely tardy legal challenge was a license, a far less enduring property right than a special permit. The holding of -02/05/2004 13:47 FAX 617 542 2241 MINTZ LEVIN 10004/005 Mrm, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Chairman Angles February 5, 2004 Page 3 then -Judge (now Supreme judicial Court Justice) Sosman in the Allison case is particularly apt to the situation the Planning Board faces with Mr. Balos who — in addition to claiming that Material Installations is a nuisance to him even though he bought his home well after my client received its special permit and began its warehousing and assembly operationst/ -- apparently hopes that this Board will add new conditions or otherwise revise Material Installations' Special Permit based solely on the notion that, in 1987, a predecessor Planning Board could have added different conditions or otherwise reached a different result. Rejecting this same theory in Allison, then -Judge Sosman stated: Th[e] limitation [that a license should be used in compliance with its terms] does not mean that disgruntled neighbors may, under a nuisance theory, reopen the underlying proceedings that led to the issuance of the license to see whether, with hindsight, the license terms could have been crafted differently. ...Challenges to the wisdom or propriety of a [license -granting authority]'s decision must be brought before the [authority] and addressed in any judicial review of the [authority]'s decision. The law of nuisance is not a mechanism for disturbing a [] decision that has long since become final. 12 Mass. L. Rptr. 138. As this letter demonstrates, the law is clear that Material Installation's property rights under the Special Permit cannot be unilaterally revised or reversed sixteen and a half years after those rights were granted. Were that ever to occur, such action would constitute a taking, for which Material Installations would be entitled to compensation. When the 1987 PIanning Board issued the Special Permit to Material Installations it did not, as it could have, limit the Permit's duration; rather, it conveyed to Material Installations an indefinite property right. That property right then became final at the moment that -the "exclusive remedy" for anyone wishing to challenge the Permit expired. Material Installations, which has been an outstanding corporate citizen and taxpayer in North Andover since 1987, relies on the Special Permit as vital to its business and, as Commissioner Nicetta correctly determined, is in full compliance with it. Therefore, I respectfully urge the Planning Board not to pursue the futile course suggested by Mr. Balos. " "[Cloming to a nuisance... is a significant factor" weighing against a prospective plaintiff s nuisance claim, particularly where the plaintiff knew or should have known of the type of commercial use taking place on an adjoining property at the time he moved to the neighborhood. Escobar v. Continental Baking Co.. 33 Mass. App. Ct. 104, 110 (1992)_ +02/05/2004 13:48 FAX 617 542 2241 MINTZ LEVIN 0005/005 MDuz, LEVIN, COHN, FFRR]s, GLovsKY AND POPEO, P.C. Chairman Angles February 5, 2004 Page 4 If I can answer any questions or provide any additional information of this matter, please do not hesitate to contact me. Thank you for your attention to this matter. cc: Planning Board members Zoning Board of Appeals members D. Robert Nicetta, Building Commissioner Thomas J. Urbelis, Esq., Town Counsel Mark Rees, Town Manager Mr. Konstantinos Balos Mr. Michael Farrow LIT 1440733v] Town of North Andover Office of the Health Department Community Development and Services Division 27 Charles Street North Andover, Massachusetts 01845 Susan Sawyer Public Health Director March 1, 2004 Konstantinos and Rowena Balos 66 Meadowview Road North Andover, MA 01845 Telephone (978) 688-9540 Fax (978) 688-9542 RE: Air Pollution and Noise Nuisance Complaint against Materials Installations Inc. Dear Mr. and Mrs. Balos: The Health Department has reviewed your complaint and met with and discussed the situation with various parties, including the Massachusetts Department of Environmental Protection (DEP), United States Environmental Protection Agency (EPA) and other Town Departments. Staff from the Health Department have performed several site inspections and recorded decibel readings at various times throughout the day and night in the area of concern and in various locations in the vicinity of the subject area. It has been determined in collaboration with the Massachusetts DEP that the presence of subject trucking activities does not pose a health risk due to noise levels and is not considered a noise nuisance under Massachusetts General Laws (MGL) Chapter 111 § 122 or 310 Code of Massachusetts Regulations (CMR) 7.10. Materials Installations, Inc. is, however, in violation of 310 CMR 7.11 U (1)(b) and have bee sent an Order letter (copy attached) to abate the nuisance. The Health Department has recorded decibel readings as follows: December 24, 2003 -Materials Installations Inc. 11:00 A.M. 47.6dB - 55.4dB Ambient Range 72.3dB Car driving by (slow, wet pavement, puddles) 68dB Garage door opening 79db Car driving by (fast, wet pavement, puddles) 63dB Workers inside the building 62.3dB Workers voices outside 85.4dB Diesel Truck pulled into loading dock BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEAL TH 688-9540 PLANNING 688.9535 December 24, 2003 - 66 Meadowview Road rear yard 12:30 P.M. 55dB Car driving by loading docks at Mat. Ins., Inc. 47dB - 50dB Ambient 53dB Wind gust, leaves blowing 54dB Voices of workers 61dB Car driving by loading docks December 24, 2003 - Route 125 2:45 P.M. 68.9dB ±1 Average ambient traffic - constant, varied vehicles 74.2dB 18 -Wheel, diesel truck January 14, 2004 -Materials Installations Inc. 9:00 A.M. 84.1dB Diesel Truck leaving loading dock 49dB - 56dB Ambient Range 72dB Car driving by slowly 78.7db Car driving by fast January 14, 2004 - Bake -n -Joy Foods, Bayfield Drive 11:00 A.M. 63.2dB Ambient (constant exhaust fan/ ventilation) 81.4dB Delivery truck leaving loading area February 24, 2004 -Materials Installations Inc. 10:00 P.M. 47.3dB - 52.5dB Ambient background, wind, sparse traffic February 25, 2005 - Materials Installations, Inc. 7:00 A.M. 56.2dB Birds chirping 52.5dB Ambient background traffic 51.1dB Lapse in background traffic Please contact my office at the number referenced above if you have any comments, questions or concerns. Z�eZ� Brian J. LaGrasse Health Inspector Cc: Board of Health Susan Sawyer, Health Director Materials Installations, Inc. US EPA, Denny Dent DEP, Tom Natario Kenneth Kimmell, Esq. File Town of North Andover Office of the Health Department Community Development and Services Division 27 Charles Street North Andover, Massachusetts 01845 Susan Sawyer Patblic Plealth director Telephone (978) 688-9540 Fax (978) 688-9542 NORTH ANDOVER BOARD OF HEALTH ORDER LETTER Issued under the provisions of the Massachusetts General Laws (MGL), Chapter 90, Section 16A, 310 Code of Massachusetts Regulations (CMR) 7.11 U (1)(b) and MGL Chapter 111, Sections 122-124. Date: February 24, 2004 Materials Installations Inc. Attn: Michael Farrow 11 Bayfield Drive North Andover, MA 01845 Mr. Farrow: A resident complaint was submitted to the North Andover Board of Health regarding your property at the above referenced address with specific concern to excessive motor vehicle idling and the creation of a public nuisance. North Andover Health Department personnel in response to the complaint have met and discussed the situation with the Massachusetts Department of Environmental Protection (DEP), United States Environmental Protection Agency (EPA), personnel from Materials Installation Inc., and the complainant. Health Department staff have inspected your site on various occasions, inspected the complainant's site and taken decibel readings at various times throughout the day and reviewed video documentation from the complainant. The inspections and video documentation revealed violations of MGL Chapter 90, Section 16A and 310 CMR 7.11 U (1)(b) regarding excessive vehicle idling at the above -referenced property. MGL Chapter 90 Section 16A states: 3 6i B )ARD OF APPr A.? ,. NIN;-9 41 RI ilL1)^IL _- .A ` ,\ 1S :R",'Al1C-)N' 68 S: �)�_ ) . ?c...� . i t. .;i \�'��;,.;;� be.,"��^_ "No person shall cause, suffer, allow or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped fora foreseeable period of time in excess of five minutes... Whoever violates any provision of this section shall be punished by a fine of not more than one hundred dollars for the first offense, nor more than five hundred dollars for each succeeding offense." MGL Chapter 90 Section 16A and 310 CMR 7.11 U (1)(b) list specific exemptions for vehicles being serviced, vehicles engaged in delivery where engine assisted power is necessary and for vehicles engaged in operation in which engine power is necessary for an associate power need other than movement. The Health Department has determined that the operations with reference to Materials Installations Inc. do not require any engine assisted power or an associate power need while the vehicles are in the loading area and any vehicle idling over five (5) minutes is a violation of MGL Chapter 90 Section 16A and 310 CMR 7.11 U (1)(b). The Health Department has also determined that excessive vehicle idling over five (5) minutes constitutes a public health and noise nuisance that must be ceased within 24 hours of receipt of this Order Letter. In accordance with MGL Chapter 111, Section 123, the Board of Health may also levy a fine of not more than one thousand (1,000) dollars every day during which such an order is violated and the nuisance is not abated. The Health Department has also looked into a concern that was previously discussed which addresses the need for a longer period of vehicle warm up in the winter and cold months. The Health Department has contacted the EPA and reviewed research published in April of 2002 by the EPA on this subject. According to the EPA and engine manufacturers recommendations, five (5) minutes is ample time to warm up a diesel engine for normal use and driving. EPA staff specifically stated that there is no reason to warm up a vehicle for more than five minutes, including the winter months and cold weather. If there is a problem with specific vehicles, several devices are available, such as electrical block heaters to avoid starting difficulties and reduce idling time needed for warm-up during colder months. You are hereby ORDERED to correct the violations stated above within twenty- four (24) hours from receipt of this Order Letter. Failure to comply within the specified time period will result in further action by the North Andover Board of Health. You have the right to request a hearing before the Board of Health if you feel this order should be modified or withdrawn. A request for said hearing must be submitted in writing to the Health Department within seven (7) days from the receipt of this order. At said hearing you will be given an opportunity to be heard and to present witnesses and documentary evidence as to why this order should be modified or withdrawn. All affected parties will be informed of the date, time and place of the hearing and of their right to inspect and copy all records concerning the matter to be heard. You may be represented by an attorney. You have the right to inspect and obtain copies of all relevant records concerning the matter to be heard. 2 Lk Certified Mail # � rj �-�t� � �' "� �'� ��� 0eNN \),>,A Us If you have any questions, comments or concerns, please feel free to call me at (978) 688- 9540 between the hours of 8:30-4:30, Monday through Friday. Sincerely, Brian J. LaG-rasse Health Inspector CC: Board of Health Susan Saywer, Public Health Director Ken Kimmel, Esq. Dino Balos, 66 Meadowview Road, North Andover, MA 01845 File DEP, Tom Natario 3 a-� �kc Town of North Andover Office, of the Zoning Board of Appeals Comlpulty Development and Services Division ; 27 Charles Street North Andover, Massachusetts 01845 I LIJ I. P IL' D. Robert Nicetta Telephone (978) 688-9541 Building Commissioner Fax (978) 688-9542 Any appeal shall be filed Notice of Decision within (20) days after the Year 2004 date of filing of this notice in the office of the Town Clerk. Property at: for property at: 11 Bayfield Drive NAME: Konstantinos & Rowena Balos, 66 Meadowood Road, North Andover, MA HEARING(S): 11-18,2003,1-13 & 2-10-04 ADDRESS: for property at: 11 Bayfield Drive PETITION: 200-037 North Andover, MA 01845 TYPING DATE: 2/12/04 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday, the 10"' of February 2004 at 7:30 PM in the Senior Center, 120R Main Street, North Andover upon the application of Konstantinos & Rowena Balos, 66 Meadowood Road requesting a Finding from Section 4, Paragraph 4.132 and Section 10, Paragraph 10.4 of the Zoning By-law to reverse the Building Commission's opinion that Materials Installations, Inc. 11 Bayfield Drive, North Andover, MA are in compliance with the Zoning By-law and the Planning Board Special Permit of August 31, 1987. The said premise affected is property with frontage on the North side of Bayfield Drive within the I-1 zoning district. The legal notice was published in the Eagle Tribune on November 3 & 10, 2003. The following members were present: Walter F. Soule, Ellen P. McIntyre, Joseph D. LaGrasse, and Richard D. Byers. Upon a motion by Joseph D. LaGrasse and 2nd by Richard J. Byers, the Board voted to uphold the Building Commissioner / Zoning Enforcement Officer's letter of August 25, 2003 and DENY the Finding of the party aggrieved for the following reasons: 1. The Planning Board Special Permit of August 31, 1987, time stamped by the North Andover Town Clerk on September 03, 1987 does not place a definite hourly time of operation for Materials Installations, Inc., 11 Bayfield Road in the Conditional Approval of the Site Plan Review. 2. The Planning Board decision of 1987 does not place any restriction on the type of business Materials Installations, Inc. conducts at the Industrial -1 site. In fact the August 31' decision gave the business permission "to expand the assembly and live storage areas in an existing building by 18,200 square feet". 3. In 1987 and presently the North Andover Zoning By-law does not address hours of operation. 4. In 1987 and presently the North Andover Zoning By-law does not address "noise levels" in any zoning district. 5. The Building Commissioner / Zoning Enforcement Officer's site visit found that Materials Installations had conformed to Paragraph 5 of the Conditional Approval. 6. The Zoning Board has no authority to modify a Planning Board decision. 7. The Zoning Board has no authority to order the Building Commissioner/Zoning Enforcement Officer to act outside North Andover By-laws. Voting favor of the denial: Walter F. Soule, Ellen P. McIntyre, Joseph D. LaGrasse, and Richard D. Byers. Post -it® Fax Note 7671 Date 3I oLk paoges� To e.) From Co./Dept. Co. Phone # i p ` Phone �C6� S(,t O Fax # 23b Fax # Town of North Andover Board of Appeals, Walter F. Soule, Acting Chairman Decision 2003-037. M25P73. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 September 10, 2003 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover . Board of Public Health Sandy Starr, Director: 27 Charles Street North Andover, MA 01845..._.._.___ . Subject: Citizen Complaint for Investigation - Air Pollution£/Nuisance Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. To Whom It May Concern: This letter serves as a formal complaint against Material Installations, Inc., regarding an ongoing nuisance due to shipping -related noise. Details My family and I use 66 Meadowood Road as our primary residence. This consists of my wife and two (2) children, ages 1 and 4 years old. According to Commonwealth and Merrimack Valley Planning Commission records, Material Installations is a warehousing and wholesaling business. Material Installations borders the backside of my house. Material Installations causes noise that is a nuisance and unreasonably interferes with the comfort of my family and myself. This has made the backside of my house unsuitable for quiet enjoyment. The source of the nuisance is shipping related activity. This includes the operation of trucks, trucks idling over 5 minutes (overnight as well as during shipping dock operations), loading tractor trailers/ commercial containers (e.g., trash compactor), operating machinery and loud voices of workers. The truck noise includes the engine, the drive -train, exhaust, tire/road contact, and braking. The trucks also cause vibration and infrasound (low frequency noise). Typically, the noise has a rapid start rate. This is a result of the abruptness of an approaching truck, the starting of the engine, as well as truck movement and stopping (which cause increased accelerations). The noise occurs during the morning, afternoon and evening hours. Moreover, the noise and vibration is so noticeable that residents are alerted to incoming traffic prior to trucks entering the shipping area. For example, this morning multiple truck idling activity took place during the following times: 05:53-06:14; 06:18-07:07; 06:19-07:04; 06:20-0651; and 07:25-07:51. I have attached a spreadsheet detailing the extensive amount of nighttime and early morning activity associated with Material Installations. Noise - Health Effects Research supports that noise is a health hazard, not just a nuisance. According to the Environmental Protection Agency, research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effect particularly those related to the cardiovascular system. I have attached a handout provided to Meadowood Road residents. This includes research regarding the health effects of noise as well as possible solutions. Air Pollution Control Regulations In the Commonwealth, noise is treated as an emission of sound, and is regulated as a source of air pollution. The Code of Massachusetts Regulations (CMR) defines air pollution as "the presence in the ambient air space of one or more air contaminants or combinations thereof in such. concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business." CMR Section 7.10 states the following with regard to noise: "(1) No person owning, leasing, or controlling a source of sound shall willfully, negligently, or through failure to provide necessary equipment, service, or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise." CMR Section 7:11 states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of. the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes." According to the Massachusetts Department of Environmental Protection (DEP), the aforementioned regulations are enforceable by the Board of Health under 310 CMR 7.52. DEP representative Ed Pawlowski can be contacted at 978-661-7630. History of Noise - Material Installations Town Records indicate the following: a) North Andover Police records detailing noise complaints about Material Installations from at least early. 1998. b) A Site Plan Review dated August 3, 1987 recognizes concerns with regard to trucks, noise and activity at night. The plan indicates the use of "evergreens and fencing to be looked into for possible noise barriers." c) Conditional approval of the Special Permit by the Planning Board (August 31, 1987). Regarding noise concerns, proponents "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." d) Paragraph 5 of the conditional approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line.' Noise experts have informed me that this landscape along with the fence is an unacceptal noise barrier in that it only provides psychological relief and does not physically lessen noise levels. Research from the Washington State Department of Transportation (WSDOT), Environmental and Special Services Section, indicates that it would take at least 100 feet dense vegetation to provide the same acoustical benefit as a noise wall. Furthermore, the Federal Highway Administration (FHWA), Office of Environment and Planning Noise and Air Quality Branch does not consider the planting of vegetation as a noise abatement measure. Specifically, "the planting of trees and shrubs provides only psuchological benefits and may be provided for visual privacu or aesthetic treatment, not noise abatement" Conclusion As a homeowner, I am entitled the right to enjoy the full use of my property without unreasonable interference. Despite several attempts to resolve this issue, Material Installations continues to operate a nuisance. There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass. 138), the Massachusetts Supreme Court state that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation th the business must be carried on without negligence, but to the further qualification that ii must be conducted without unnecessaru disturbance of the rights of others." In order to protect the health of North Andover Meadowood Road citizens, it is respectfully requested that the Board of Health: 1) enforce the Commonwealth of Massachusetts Air Pollution Control Regulations; 2) survey and provide an opinion with regard to the effectiveness on the use of evergreens and fencing for noise barriers; and 3) identify appropriate measures to end the noise nuisance. I am available to attend any meetings and/or provide further information to include video corroboration of the activity log. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and attention to this important matter. Sin Kon antinos "Dino" Balos Attachments cc: Town Manager/Assistant Town Manager Board of Selectmen North Andover Meadowood Road Residents Attorney Matthew C. Donahue Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping. PI DATE: TIME.: ACTIVITY (militaryliour4: Feb 02, 2003 0030-0600 Truck Idling Feb 03, 2003 No to Log of Feb 23, 2003 Actitiy Feb 24, 2003 2345 Truck Idling Feb 26, 2003 0400 Truck Idling Mar 01, 2003 0010 Truck Idling Mar 02, 2003 No to Log of Mar 22, 2003 Actitiy Mar 22, 2003 midnight Truck Idling Mar 25, 2003 0545 Truck' Idling Mar 26, 2003 0515 Truck Idling Mar 28, 2003 2140 Truck Idling Apr 02, 2003 2125 Truck Idling Apr 04, 2003 0550-0830 Truck Idling Apr 04, 2003 2035 Truck Idling Apr 07, 2003 0600-0745 Truck Idling Apr 08, 2003 0730 Truck Idling Apr 14, 2003 0600-0745 Truck Idling Apr 15, 2003 0615-0722 Truck Idling Apr 17, 2003 0600-0745 Truck Idling Apr 18, 2003 0615-0745 Truck Idling Apr 19, 2003 0650-0730 Truck Idling Apr 22, 2003 0630-0720 Operating Waste Disposal Unit Apr 23, 2003 0605-0630 Operting Heavy Machinery Apr 23, 2003 0645-0730 Truck Idling Apr 25, 2003 0630-0745 Truck Idling Apr 26, 2003 0645 Truck Idling Apr 28, 2003 0605-0650 Truck Idling Apr 29, 2003 0615-0730 Truck Idling Apr 30, 2003 2225 Truck Fueling May 01, 2003 0620-0715 Truck Idling May 02, 2003 0625-0725 Truck Idling May 03, 2003 0615-0645 Truck Idling May 05, 2003 0445-0505 Truck Idling May 06, 2003 0630-0715 Operating Waste Disposal Unit May 08, 2003 0440-0505 Truck Idling May 08, 2003 2145-2210 Truck Idling May 10, 2003 1220-1235 Truck Fueling May 12, 2003 0550-0622 Truck Idling May 12, 2003 2300-2310 Truck Idling May 14, 2003 2115-2130 Truck Fueling May 15, 2003 0600-0630 Dumpster Operation May 16, 2003 0530-0615 Truck Idling May 17, 2003 0230-0245 Truck Idling Supplemental Attachme- Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping, p2 May 17, 2003 0500-0510 Truck Idling May 24, 2003 0250-0315 Truck Fueling May 24, 2003 0800-0840 Truck Idling May 29, 2003 0630-0710 Truck Idling May 30, 2003 0620-0655 Truck Idling May 31, 2003 0235-0245 Truck Fueling May 31, 2003 0555-0720 Truck Operations Jun 02, 2003 2220-2230 Truck Fueling Jun 04, 2003 0630 Truck Idling Jun 04, 2003 2200 Truck Idling Jun 05, 2003 0600 Truck Idling Jun 06, 2003 0550 Truck Idling Jun 09, 2003 2250 Truck Fueling Jun 10, 2003 0555-0615 Truck Idling Jun 11, 2003 0800-0830 Truck Idling Jun 11, 2003 2245-2255 Truck Fueling Jun 12, 2003 0555-0655 Truck Idling Jun 13, 2003 0545-0600 Truck Idling Jun 13, 2003 0620-0635 Truck Idling Jun 13, 2003 0650-0720 Truck Idling Jun 14, 2003 0300 Truck Activity Jun 14, 2003 0700 Truck Activity Jun 16, 2003 0550-0615 Truck Idling Jun 16, 2003 0650-0700 Truck Idling Jun 18, 2003 0600-0610 Truck Idling Jun 18, 2003 0640-0655 Operation of Machinery Jun 18, 2003 2105-2115 Truck Idling Jun 18, 2003 2230-2345 Truck Idling Jun 19, 2003 0605-0610 Truck Idling Jun 20, 2003 0550 Loading Activity Jun 20, 2003 0555-0605 Truck Idling Jun 20, 2003 0630-0650 Truck Idling Jun 20, 2003 0730-0755 Truck Idling Jun 20, 2003 2135-2140 Truck Idling Jun 20, 2003 2150 Truck Activity Jun 21, 2003 0720 Truck Activity Jun 22, 2003 0615-0630 Loading Activity Jun 22, 2003 0650 Truck Activity Jun 23, 2003 0557-0607 Truck Idling Jun 23, 2003 0615 Truck Activity Jun 23, 2003 0630 Truck Activity Jun 23, 2003 2000-2010 Truck Idling Jun 23, 2003 2230 Truck Activity Jun 24, 2003 0620 Truck Activity Jun 24, 2003 0700-0820 Operation of Machinery Jun 24, 2003 I 2215 Truck Activity Jun 25, 2003 0712-0723 Truck Idling Jun 26, 2003 0700 Truck Activity Jun 26, 2003 0720-0845 Truck Idling Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping i p3 Jun 27, 2003 0715 Truck Activity Jul 01, 2003 0710 Truck Activity Jul 02, 2003 0720 Truck Activity Jul 08, 2003 2155 Truck Activity Jul 09, 2003 230-2240 Truck Idling Jul 10, 2003 0705-0750 Truck Idling Jul 11, 2003 2300 Truck Activity Jul 12, 2003 0615-0700 Truck Idling Jul 13, 2003 0610 Truck Activity Jul 13, 2003 0628 Truck Activity Jul 13, 2003 0630-0638 Van Idling Jul 14, 2003 0600 Truck Activity Jul 14, 2003 0604-0622 Truck Activity Jul 14, 2003 0700-0707 Truck Idling Jul 14, 2003 2135-2200 Truck Idling Jul 15, 2003 0600-0635 Truck Idling Jul 16, 2003 0550-0600 Truck Idling Jul 17, 2003 0600 Truck Activity Jul 17, 2003 0650-0700 Truck Idling Jul 18, 2003 0630 Truck Activity Jul 19, 2003 0225-0235 Truck Fueling Ju120, 2003 0700 Truck Activity Jul 21, 2003 0703 Truck Activity Jul 22, 2003 0700 Truck Activity Jul 23., 2003 0640-0725 Truck Idling Ju124, 2003 0710-0737 Loading Activity Jul 25, 2003 0700 Truck Activity Jul 25, 2003 2335 Truck Activity Ju128, 2003 0610-0615 Truck Activity Jul 30, 2003 0610 Truck Activity Jul 30, 2003 0636 Truck Activity Jul 30, 2003 2145 Truck Activity Jul 31, 2003 0603 Truck Activity Jul 31, 2003 0614 Truck Activity Jul 3.1, 2003 0633 Loading Activity Jul 31, 2003 0638 Truck Activity Aug 01, 2003 0646 Loading Activity Aug 02, 2003 0645 Truck Activity Aug 04, 2003 0645 Loading Activity Aug 04, 2003 0705-0726 Truck Idling Aug 05, 2003 0615 Loading Activity Aug 05, 2003 0640 Truck Activity Aug 05, 2003 0646-0703 Truck Idling Aug 06, 2003 0610-0630 Truck Idling Aug 06, 2003 0642-0647 Truck Idling Aug 06, 2003 0655-0710 Loading Activity Aug 07, 2003 0600 Truck Activity Aug 07, 2003 0603 Truck Activity Aug 07, 2003 0617-0652 Loading Activity Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping p4 Aug 07, 2003 0652 Truck Activity Aug 07, 2003 0721-0731 Truck Idling Aug 08, 2003 0548 Truck Activity Aug 08, 2003 0550 Loading Activity Aug 08, 2003 0605 Truck Activity Aug 08, 2003 0616 Truck Activity Aug 08, 2003 0623 Truck Activity Aug 08, 2003 0714-0720 Truck Activity Aug 09, 2003 No Log to of Aug 11, 2003 ctivity Maintained Aug 12, 2003 0615 Truck Activity Aug 12, 2003 0634 Truck Activity Aug 12, 2003 0639-0659 Truck Idling Aug 12, 2003 0641 Truck Activity (Separate) Aug 12, 2003 0705-0720 Operation of Machinery Aug 13, 2003 0552 Truck Activity Aug 13, 2003 0620 Loading Activity Aug 13, 2003 0638 Loud Music Aug 13, 2003 2100 Truck Fueling Aug 14, 2003 0839-0859 Truck Idling Aug 15, 2003 0620 Loading Activity Aug 18, 2003. 0615 Loading Activity Aug 18, 2003 0640-0720 Truck Idling Aug 18, 2003 0654-0714 Truck Idling (Separate) Aug 18, 2003 2249-2254 Truck Fueling Aug 20, 2003 0629 Truck Activity Aug 20, 2003 0702-0709 Truck Idling Aug 21, 2003 0605-0640 Loading Activity Aug 21, 2003 0700-0717 Truck Idling Aug 22, 2003 0607 Loading Activity Aug 22, 2003 0622-0656 Truck Idling Aug 22, 2003 0643-0650 Truck Idling (Separate) Aug 22, 2003 0645-0655 Truck Idling (Separate) Aug 22, 2003 2110-2113 Truck Activity Aug 23, 2003 0722-0735 Truck Idling Aug 25, 2003 0615 Loading Activity Aug 25, 2003 0621-0624 Truck Idling Aug 25, 2003 0635-0637 Truck Idling Aug 26, 2003 0624-0626 Truck Idling Aug 27, 2003 0558-0605 Truck Idling Aug 27, 2003 0613 Truck Activity Aug 27, 2003 0617-0619 Truck Activity Aug 27, 2003 0625-0627 Truck Idling Aug 27, 2003 0632 Loading Activity Aug 28, 2003 0510 Truck Activity Aug 28, 2003 0611 Loading Activity Aug 28, 2003 0620-0657 Truck Idling Aug 29, 2003 0609 Truck Activity Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping P.� Aug 29, 2003 0610-0612 Truck Idling Aug 29, 2003 0638-0640 Truck Idling Aug 29, 2003 0648 Truck Activity Sep 02, 2003 0130-0137 Truck Idling Sep 02, 2003 0550 Truck Activity Sep 02, 2003 0605 Truck Activity Sep 02, 2003 0607-0613 Truck Idling Sep 02, 2003 0615-0638 Loading Activity Sep 03, 2003 0616 Truck Activity Sep 03, 2003 0653-0702 Truck Idling Sep 03, 2003 2131-2138 Truck Fueling Sep 04, 2003 0617 Truck Activity Sep 04, 2003 0640 Truck Activity Sep 05, 2003 0610 Loading Activity Sep 05, 2003 0618 Truck Activity Sep 05, 2003 2010-2017 Truck Fueling Sep 05, 2003 2037 Truck Activity Sep 08, 2003 0155 Truck Activity Sep 08, 2003 0633-0647. Loading.Activity Sep 08, 2003 0712-0723 Truck Idling Sep 08, 2003 1934 Truck Activity Sep 09, 2003 0649 Truck Activity Sep 10, 2003 0553-0614 Truck Idling Sep 10, 2003 0618-0707 Truck Idling Sep 10, 2003 0619-0704 Truck Idling (Separate) Sep 10, 2003 0620-0651 Truck Idling (Separate) Sep 10, 2003 0725-0751 1 Truck Idling (Separate) Supplemental Attachme NOISE NUISANCE — MATERIAL INSTALLATIONS, INC. TABLE OF CONTENTS FACTS (pages 1-2) • NOISE SOURCE - MATERIAL INSTALLATIONS, INC. • NOISE - TRUCKING ACTIVITY • HOW DOES NOISE ANNOY? • IS NOISE A PROBLEM? NOISE EFFECTS — GENERAL (pages 3-4) • IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? • WHY IS NOISE CONSIDERED A HEALTH PROBLEM? NOISE AND THE BODY'S REACTIONS (page 4) • ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? NOISE AND THE UNBORN (page 5) • CAN NOISE AFFECT THE FETUS? PERFORMANCE INTERFERENCE (page 5) • IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? • ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? EFFECTS OF NOISE (page 6) • HOW DOES NOISE INTERFERE WITH SLEEP? • IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? CRITERIA FOR SLEEP DISTURBANCE (page 6) • CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? MENTAL, PSYCHOLOGICAL EFFECTS (page 7) • IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? WHAT LAWS APPLY TO THE NOISE PROBLEM? (pages 7-8) • HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? WHAT CAN I DO? (page 8) POSSIBLE SOLUTIONS (pages 8-10) • CHANGE BUSINESS OPERATIONS • ACOUSTICAL ENGINEERING- SOUND PROOF WINDOWS • SOUND BARRIER WALL • OTHER SUGGESTIONS CONCLUSION (page 11) • GOOD NEIGHBOR POLICY • CLOSING NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 1 of 11 FACTS: • The Town of North Andover classifies the properties on Meadowood Road as `Residential -6.' Source: Town of North Andover records. • 11 Bayfield Drive d/b/a Material Installations is classified as `Industrial -1.' Source: Town of North Andover records. • A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes concerns with regard to truck noise and the use of "evergreens and fencing to be looked into for possible noise barriers." Source: Town of North Andover records. • The Conditional Approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line." Source: Town of North Andover records. • The Articles of Organization [for Material Installations, Inc] states the following with regard to its business: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." Source: Commonwealth of Massachusetts records. The Merrimack Valley Planning Commission (MVPC) indicates that the primary business of Material Installations is "Office Furniture and Equipment Installation (Whol)." Source: MVPC. NOISE SOURCE — MATERIAL INSTALLATIONS, INC. a) Shipping dock operations (to include truck activity) beginning earlier than claims made by Material Installations that they begin at 7:00 a.m.; b) Mechanical operation of trucks and related machinery (e.g., waste disposal); c) Trucks idling over 5 minutes (overnight as well as during shipping dock operations); d) Nighttime activities (e.g., truck operations - truck fueling, truck idling, etc.); and e) Loud voices of workers. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 2 of 11 NOISE - TRUCKING ACTIVITY Motor vehicles cause various types of noise, includes engine acceleration, tire/road contact, braking, and horns. Heavy vehicles (i.e., trucks) can cause vibration and infrasound (low frequency noise). Source: Indicators of the Environmental Impacts of Transportation, Office of Policy and Planning, USEPA (Washington DC; www.itre.ncsu.edu/cte), 1999. A study of noise equivalency factors for trucks relative to Passenger vehicles determined that a truck traveling at a speed of 20 mph has an equivalency factor equal to 84 passenger vehicles. Source: FHWA -Office of Policy, "Comprehensive Truck Size and Weight." A study of outdoor noise levels indicated that a "Diesel Truck at 50 feet" is classified in the "Very Loud" category. Source: California -Nevada Super Speed Train Commission - March 2002 HOW DOES NOISE ANNOY? • Noise by definition is unwanted sound. It is an intrusion on one's sense of privacy. • Noise can bean emotional strain and a source of great frustration when the noise is beyond a person's control. Noise may interfere with a broad range of human activities, the overall effect of which is to cause annoyance. Such activities include: 1. Speech communication in conversation and teaching 2. Telephone communication 3. Listening to television and radio broadcasts 4. Listening to music 5. Concentration during mental activities 6. Relaxation 7. Sleep Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 56 IS NOISE A PROBLEM? In the words of former U.S. Surgeon General William H. Stewart, "Calling noise a nuisance is like calling smog an inconvenience. Noise must be considered a hazard to the health of people everywhere. " NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 3 of 11 But the presence of noise in our natural, rural, and urban environments is not just a nuisance -it's a health hazard. For example: • Noise is a biological stressor that has negative effects on the entire physiological system, contributing to elevated blood pressure, and changes in blood chemistry. • Noise causes sleep disturbances, which cause a host of problems, including reduced job performance, mood changes, and increased risk of automobile accidents. • Noise negatively affects one's ability to learn and concentrate. Studies have shown decreased reading ability and scholastic performance of school children exposed to noise. • Studies of adults show poorer performance of complex tasks in noisy environments. • Noise renders us less tolerant of frustration and numb to the needs of other people, further reducing our quality of life and the civility of society. Source: The Quiet Noise, Noise Pollution Clearinghouse, Summer 2001. NOISE EFFECTS - GENERAL Research solidly supports that noise is a health hazard, not just a nuisance. In passing the Noise Control Act of 1972, Congress found that "inadequately controlled noise presents a danger to the health and welfare of the Nation's population, particularly in urban areas." IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? It is possible that repeated or constant exposure to noise can contribute to a deterioration in health. Research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 33. WHY IS NOISE CONSIDERED A HEALTH PROBLEM? • Noise is generally viewed as being one of a number of general biological stressors. • Noise may contribute to the development and aggravation of stress related conditions such as high blood pressure, coronary disease, ulcers, colitis, and migraine headaches. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 4 of 11 • Growing evidence suggests a link between noise and cardiovascular problems. • There is also evidence suggesting that noise may be related to birth defects and low birth -weight babies. • There are also some indications that noise exposure can increase susceptibility to viral infection and toxic substances. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 31. NOISE AND THE EODrS REACTIONS ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • At least two studies exist which suggest that exposure to high noise levels in schools and neighborhoods are associated with elevations in blood pressure. • The blood pressure levels of children living in high noise environments were found to be significantly higher than those of children attending schools or residing in quieter areas. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 34. WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? Stress can be manifested in any number of ways, including headaches, irritability, insomnia, digestive disorders, and psychological. disorders. Noise has been related to the following: • General morbidity (illness) • Neuropsychological disturbances • headaches • fatigue • insomnia • irritability • neuroticism • Cardiovascular system disturbances • hypertension • hypotension • cardiac disease • Digestive disorders • ulcers • colitis • Endocrine and biochemical disorders Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 35. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 5 of 11 NOISE AND THE UNBORN CAN NOISE AFFECT THE FETUS? Studies have shown maternal stress causes constriction of the uterine blood vessels which supply nutrients and oxygen to the developing baby. • Stress may then threaten fetal development if it occurs early in pregnancy. The most important period is about 14 to 60 days after conception. During this time, important developments in the central nervous system and vital organs are taking place. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 37. PERFORMANCE INTERFERENCE IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? Yes, industrial noise may have the most pronounced effects on performance including exhaustion, absentmindedness, mental strain, absenteeism, tenseness, and irritability. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 47. ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? • There have been field studies which demonstrate that high noise levels have been correlated with poor performance on reading tests and auditory discrimination problems. These effects were found to have little to do with socio-economic class or IQ. The significance of these effects is particularly important for younger children who through lack of verbal experience need lower noise levels in which to perform in order to develop the basic skills which contribute to cognitive and language development. Sleep disturbance is one of the major causes of annoyance due to noise. If it becomes a chronic problem, sleep disturbance may potentially lead to health disorders. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106.. Page 47. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 6 of 11 EFFECTS OF NOISE HOW DOES NOISE INTERFERE WITH SLEEP? • Noise, of course, can make it difficult to fall asleep. • Noise levels can create momentary disturbances of natural sleep patterns by causing shifts from deep to lighter stages. • Noise may even cause awakening which the person may or may not be able to recall. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • He/she can be completely unaware of being affected but can have a disruption of total sleep quality nevertheless. • Subjects often forget and underestimate the number of times that they awaken during sleep. • Loud noises can continue to awaken or arouse the sleeper, but they may become so familiar with the sounds that they return to sleep very rapidly. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? A person whose sleep has been disturbed severely may feel lethargic and nervous during his waking hours and may be unable to perform at his usual level of efficiency. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. CRITERIA FOR SLEEP DISTUPWANCE CAN SLEEP DISTURBANCE CAUSE LONGTERM PROBLEMS? • Sleep is thought to be a restorative process during which organs of the body renew their supply of energy and nutritive elements. • Since noise can disrupt the sleep process, it may take its toll on health. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 7 of 11 MENTAL, PSYCHOLOGICAL EFFECTS., WHAT KIND OF MENTAL OR PSYCHOLOGICAL EFFECTS CAN OCCUR WITH EXCESSIVE NOISE EXPOSURE? • Excessive noise exposure can bring about a wide variety of psychological responses or symptoms in the individual. A person may respond with anger, or experience symptoms such as anxiety, irritability, and/or general emotional stress. • Distraction and poor judgment may result from mental fatigue. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? Studies have shown that residential areas exposed to high noise levels may have a higher incidence of mental illness among their residents. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 53. WHAT LAWS APPLY TO THE NOISE PROBLEM? Zonin : Through zoning local government regulates what uses may be made of a parcel of land. The intent is to protect adjoining property owners from incompatible uses and to increase the likelihood that a community grows in a way that enhances overall quality of life. • Section 4.132 of the North Andover Zoning By-laws states the following: 11. Light manufacturing, including manufacturing, fabrication,. processing, finishing, assembly, packing, or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. 13. Warehousing and wholesaling shall be permitted only as a secondary use. 15. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious or offensive to the neighborhood. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 8 of 11 Section 7:11 of the Code of Massachusetts Regulations (CMR) states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of fzve minutes." There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass. 138), the Massachusetts Supreme Court stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessaru disturbance of the riahts of others." HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? Yes. In Weltshe v. Graf (323 Mass. 498), plaintiff landowners and the defendant trucking company were located at the boundaries of a district zoned for business and a district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin defendant -trucking company from operating its business as a nuisance due to truck terminal noises. The Massachusetts Judicial Supreme Court ordered that a decree be entered in favor of the landowners enjoining the trucking company from shipping -related activity. The court also affirmed that a "zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance. " WHAT CAN I DO? As you are aware, I have filed a complaint with the town (see me for a copy) . I suggest the following: • Contact the town and inform them of the noise problem. o The town manager's phone number is 978-688-9510. o The Board of Selectmen phone number is 978-688-9510. • Contact the police (during the noise disturbance) at 978-683-3168. POSSIBLE SOLUTIONS As you are aware, an official complaint has been filed with the town regarding Material Installations and the problem of noise nuisance. If you would like a copy please see me. The below suggestions only relate to solving the problem and do not address the fact that Material Installation has continued their operations unchanged. This is despite knowing that their operations are a nuisance to their neighbors. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 9 of 11 CHANGE BUSINESS OPERATIONS The Noise Pollution Clearinghouse recommends the following with regard to Commercial and Industrial operation within 1, 000 feet of residential property: 1. Limit noisy operations such as outdoor loading, unloading, use of power tools, to 9 AM to 5 PM, Monday to Saturday. 2. Ensure that any noise spilling over onto neighbor's property is less than typical conversational levels. 3. Turn off trucks and auxiliary equipment if vehicle is stationary for more than 2 minutes. 4. Schedule trash pickup between 9 AM and 5 PM. ACOUSTICAL ENGINEERING — SOUND PROOF WINDOWS Sound Abatement Windows: These windows are specifically designed to reduce unwanted noise affecting residential communities (i.e., aircraft, trains and automobiles). • These windows are used at airports throughout the country to include Boston's Logan Airport. SOUND BARRIER WALL Q. How effective are noise walls? A. This depends on the distance between the listener and the wall. For residences located directly behind the wall, the perceived noise level will be cut in half. This benefit decreases as a listener moves farther away from the wall and is negligible at distances greater than 500 feet. Q. How is the height of the barrier determined? A. Noise walls are designed to provide a minimum of .five decibels of reduction in average background traffic noise for the majority of first row of residences located directly behind the wall, with a 7 decibel reduction at at least one location. The reasonableness criteria places a practical limitation on the height of any noise barrier. Q. Why not plant trees instead of putting up a wall? A. Trees provide a visual shield and some psychological benefit, but are not nearly as effective at reducing noise levels as a solid barrier. It would take at least 100 feet of dense vegetation to provide the same acoustical benefit as a noise wall. Source: Washington State, Department of Transportation, Environmental and Special Services. A. The Federal Highway Administration (FHWA) does not consider the planting of vegetation to be a noise abatement measure. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 10 of 11 A. The planting of trees and shrubs provides only psychological benefits and visual privacy, or aesthetic treatment, not noise abatement. Source: Federal Highway Administration, Office of Environment and Planning Noise and Air Quality Branch "HIGHWAY TRAFFIC NOISE ANALYSIS AND ABATEMENT POLICY AND GUIDANCE." How Do People React to Noise Barriers? Residents adjacent to barriers say that conversations in households are easier, sleeping conditions are better, the environment is more relaxing, windows are opened more often, and yards are used more in the summer. Source: Federal Highway Administration, Highway Traffic Noise Barriers. Are Residents' Views Considered? • Landscaping in the vicinity of noise barriers should be integrated with the landscaping theme. Wherever possible, consideration should be given toward accommodating existing vegetation in the design process. • A balance should be struck between wall decorations and landscaping. Decisions made in consultation with neighborhood groups & elected officials. • The general approach is to aesthetically design the noise wall in a manner that it blends into the surrounding environment and is as un -intrusive as possible. Source: Federal Highway Administration, Noise Barrier Aesthetics , NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 11 of 11 Sound Wall - Summary While noise barriers do not eliminate all noise, they do reduce it substantially and improve the quality of life for people who live adjacent to areas of noise. OTHER SUGGESTIONS A combination of the above mentioned suggestions providing a long-term solution to noise nuisance. CONCLUSION GOOD NEIGHBOR POLICY The Purpose of the Good Neighbor Policy is to protect the comfort, quiet, repose, health, peace, and quality of life of people. At a minimum, everyone should reasonably expect: 1. To be protected from adverse impacts on their quality of life due to noise; 1. Not to have their sleep disturbed by noise; 2. Not to hear someone else's noise in their home. Source: Noise Pollution Clearinghouse. CLOSING • As outlined in this guide, there are many concerns related to noise. • This includes health effects and quality of life issues. Ignoring the problem, condones the problem. In conclusion, ask yourself if you find it acceptable to mow your lawn early in the morning or in the middle of the night. Chances are that you don't out of common courtesy for your neighbors. Why should someone else be held to a lesser standard? "The community is only as strong as the will of its individual members." THIS ISR A PROBLEM. LET'S DO SOMETHING ABOUT IT! APRIL 2002 WHAT YOU SHOULD KNOW ABOUT SAVE MONEY AND REDUCE POLLUTION TRUCK ENGINE IDLING WHAT ARE SOME OF THE PROBLEMS Use auxiliary power ASSOCIATED WITH IDLING7 units instead of the IDLING WASTES FUEL AND MONEY engine to provide • A typical truck burns approximately one gallon of diesel fuel for each hour it idles. electric power. • If this truck idles for 6 hours per day and operates 300 days a year, it would consume 1,800 gallons of fuel per year, simply idling. wi� EPA • At a price of $1.25 per gallon of diesel, this idling comes with a price tag of $2,250 per truck. New England For more information: IDLING CAUSES EXCESSIVE ENGINE WEAR • Running an engine at low speed (idling) causes twice the Visit www.epa.gov/ne/ wear on internal parts compared to driving at regular eco/diesel/, or call the speeds. According to the American Trucking Association, EPA Air Quality Hotline at such wear can increase maintenance costs by almost $2,000 per year and shorten the life of the engine. 1-800-821-1237 UNNECESSARY IDLING CAUSES POLLUTION • Idling vehicles can emit significant amounts of pollution including: carbon dioxide, which contributes to global climate change; nitrogen oxides and volatile organic compounds, both of which contribute to the formation of ozone smog; poisonous carbon monoxide; and particulate matter. IDLING POSES HEALTH RISKS TO DRIVERS • While sitting in an idling vehicle, drivers are exposed to the vehicle's pollution more so than when the vehicle is in motion since there is no air flow to vent the emissions. continued :) 0 printed on 100% recycled paper, with a minimum of 50% post consumer waste, using vegetable based inks Diesel engines play an important role in the transport WHAT CAN of goods and services nationwide. They are a durable and YOU D O ? economical source of power. However, there is growing Turn off your engine concern about the health effects associated with exposure to diesel exhaust. Diesel exhaust affects everyone, but when your vehicle is people with existing heart or lung disease, asthma, or not in motion. other respiratory problems are most sensitive to the small particles in diesel exhaust. Fortunately, new emission standards and new technology are helping to ensure that the Use electric engine cleaner diesel engines of the future will dramatically heaters to minimize reduce these health risks. If you drive a truck, there are several warm -uptime. things that you can do now to save money and reduce pollution. WHAT ARE SOME OF THE PROBLEMS Use auxiliary power ASSOCIATED WITH IDLING7 units instead of the IDLING WASTES FUEL AND MONEY engine to provide • A typical truck burns approximately one gallon of diesel fuel for each hour it idles. electric power. • If this truck idles for 6 hours per day and operates 300 days a year, it would consume 1,800 gallons of fuel per year, simply idling. wi� EPA • At a price of $1.25 per gallon of diesel, this idling comes with a price tag of $2,250 per truck. New England For more information: IDLING CAUSES EXCESSIVE ENGINE WEAR • Running an engine at low speed (idling) causes twice the Visit www.epa.gov/ne/ wear on internal parts compared to driving at regular eco/diesel/, or call the speeds. According to the American Trucking Association, EPA Air Quality Hotline at such wear can increase maintenance costs by almost $2,000 per year and shorten the life of the engine. 1-800-821-1237 UNNECESSARY IDLING CAUSES POLLUTION • Idling vehicles can emit significant amounts of pollution including: carbon dioxide, which contributes to global climate change; nitrogen oxides and volatile organic compounds, both of which contribute to the formation of ozone smog; poisonous carbon monoxide; and particulate matter. IDLING POSES HEALTH RISKS TO DRIVERS • While sitting in an idling vehicle, drivers are exposed to the vehicle's pollution more so than when the vehicle is in motion since there is no air flow to vent the emissions. continued :) 0 printed on 100% recycled paper, with a minimum of 50% post consumer waste, using vegetable based inks M.G.L - Chapter 90, Section 16A Page 1 of 1 GENERAL LAWS OF MASSACHUSETTS .:911 TITLE XIV. PUBLIC WAYS AND WORKS CHAPTER 90. MOTOR VEHICLES AND AIRCRAFT MOTOR VEHICLES Chapter 90: Section 16A Stopped motor vehicles; operation of engine; time limit; penalty Section 16A. No person shall cause, suffer, allow or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes. This section shall not apply to (a) vehicles being serviced, provided that operation of the engine is essential to the proper repair thereof, or (b) vehicles engaged in the delivery or acceptance of goods, wares, or merchandise for which engine assisted power is necessary and substitute alternate means cannot be made available, or (c) vehicles engaged in an operation for which the engine power is necessary for an associate power need other than movement and substitute alternate power means cannot be made available provided that such operation does not cause or contribute to a condition of air pollution. Whoever violates any provision of this section shall be punished by a fine of not more than one hundred dollars for the first offense, nor more than five hundred dollars for each succeeding offense. Return to: ** Next Section ** Previous Section ** Chapter Table of Contents ** Legislative Home Page httn://www.state.ma.us/leizis/laws/mizl/90-16A.htm 2/25/04 Chapter 111: Section 122. Regulations relative to nuisances; examinations. Section 122. The board of health shall examine into all nuisances, sources of filth and causes of sickness within its town, or on board of vessels within the harbor of such town, which may, in its opinion, be injurious to the public health, shall destroy, remove or prevent the same as the case may require, and shall make regulations for the public health and safety relative thereto and to articles capable of containing or conveying infection or contagion or of creating sickness brought into or conveyed from the town or into or from any vessel. Whoever violates any such regulation shall forfeit not more than one thousand dollars. Chapter 111: Section 123. Abatement by owner. Section 123. Said board shall order the owner or occupant of any private premises, at his own expense, to remove any nuisance, source of filth or cause of sickness found thereon within twenty-four hours, or within such other time as it considers reasonable, after notice; and an owner or occupant shall forfeit not more than one thousand dollars for every day during which he knowingly violates such order. Chapter 111: Section 124. Service of order for abatement. Section 124. Such order shall be in writing, and may be served personally on the owner, occupant or his authorized agent by any person authorized to serve civil process; or a copy of the order may be left at the last and usual place of abode of the owner, occupant or agent, if he is known and within or without the commonwealth; or a copy of the order may be sent to the owner, occupant or agent by registered mail, return receipt requested, if he is known and within the commonwealth. If the order is directed against the owner and if the residence and whereabouts of the owner or his agent are unknown or without the commonwealth, the board may direct the order to be served by posting a copy thereof in a conspicuous place on the premises and by advertising it for at least three out of five consecutive days in one or more newspapers of general circulation within the municipality wherein the building affected is situated. Chapter 111: Section 125. Removal of nuisance by board. Section 125. If the owner or occupant fails to comply with such order, the board may cause the nuisance, source of filth or cause of sickness to be removed, and all expenses incurred thereby shall constitute a debt due the city or town upon the completion of the removal and the rendering of an account therefor to the owner, his authorized agent, or the occupant, and shall be recoverable from such owner or occupant in an action of contract. The provisions of the second paragraph of section three A of chapter one hundred and thirty-nine, relative to liens for such debt and the collection of the claims for such debt, shall apply to any debt referred to in this section, except that the board of health shall act hereunder in place of the mayor or board of selectmen. M as s a c h u s e t t s D e p a r t m e n t of ENVIRONMENTAL P R O T E C T I O N f a c t s h e e t Responding to Local Noise, Odor and Dust Complaints Across Massachusetts, environmental and public health officials are seeing an increase in the number of noise, odor and dust complaints they are called upon to handle. The local board of health or public health department is usually the first line of defense against these and other nuisance conditions. Municipal officials can respond to nuisance complaints in an informed, effective and timely way. In some cases, the Department of Environmental Protection (DEP) can assist and support local officials in their response, or take the lead in responding. This fact sheet was developed to guide municipal officials as they follow up on nuisance complaints and to help them determine when it might be appropriate to request DEP assistance. Local Response Most noise, odor and dust complaints can be handled on the local level. Boards of health have broad authority under state law (M.G.L. Chapter 111, Sections 31C and 122) to investigate and control nuisance conditions. They and other local government agencies are empowered by DEP (310 CMR 7.52) to take enforcement action against violators of DEP's noise, odor and dust regulations (310 CMR 7.09-7.10). When investigating nuisance complaints, municipal officials should determine whether: • Nuisance conditions unreasonably interfere with the enjoyment of residential property and/or the operation of a business; and/or • The source of the nuisance, if a business, has the necessary licenses, permits and approvals to be operating and conforms to local zoning requirements; and/or • Offending activities constitute a violation of local nuisance by-laws or ordinances that may be more stringent than state regulations or statutes. In many cases, those responsible for nuisance conditions are unaware of the problems they are causing and, in the interest of being good neighbors, will willingly take the necessary steps to solve them. In these instances, local officials need only notify the offending parties. Other cases may require local officials to exercise their skills of diplomacy and mediation in helping the parties to a dispute reach an accommodation. For still others, local enforcement action can be an effective solution. When these efforts are unsuccessful, coordinating local actions with DEP follow-up may be necessary. Local officials should keep a log of all complaints they receive and clearly document their investigations and findings. Responding to Local Noise, Odor and Dust Complaints 9 Page 1 How DEP Can Help DEP can assist and support local officials in investigating noise, odor and dust complaints and taking appropriate enforcement actions by: • Providing policies, guidance and other forms of technical assistance; • Answering questions and offering regulatory expertise on request; and • Lending sound level meters and other equipment to boards of health or other local agencies on request. For details, contact the service center in the DEP regional office nearest you. Telephone numbers are provided below. Criteria for Direct DEP Involvement DEP may respond directly to local noise, odor and dust conditions at the request of local officials if: Massachusetts Department of . The identity of the complainant(s) is supplied to the agency"; and Environmental Protection One Winter Street • Nuisance conditions pose a potential imminent hazard to public health or the Boston, MA 02108-4746 environment, are causing significant impacts across municipal or state boundaries, or are symptomatic of a serious environmental compliance problem; or Commonwealth of Massachusetts • There have been numerous complaints about the facility that is the source of the Mitt Romney, Governor nuisance, there is a history of violations by the same party, or a state facility is causing the problem; or Executive Office of Environmental Affairs • Local officials have pursued and exhausted all other avenues without successfully Ellen Roy Herzfelder, Secretary resolving the matter; or • The complaint is about a pure tone noise from a source that cannot readily be Department of identified. Environmental Protection Edward P. Kunce, 'Complainant names and addresses must be known to DEP, but under the Fair Information and Acting Commissioner Practices Act (M. G.L. Chapter 644), the agency is required to keep all such information confidential while any investigation or enforcement action is ongoing.. Produced by the For Additional Information Bureau of Waste Prevention, February 2003. To learn more about responding to noise, odor and dust complaints or to request state Printed on recycled paper. assistance or support, please contact the service center in the nearest DEP regional office. This information is available in alternate format by calling our . Central Region, Worcester: (508) 792-7683 ADA Coordinator at . Northeast Region, Wilmington: (978) 661-7677 (617) 574-6872. • Southeast Region, Lakeville: (508) 946-2714 • Western Region, Springfield: (413) 755-2214 ,y\ Responding to Local Noise, Odor and Dust Complaints • Page 2 April 15, 1997 1» Dear « 2» Each year the Department of Environmental Protection receives a significant number of citizen complaints about excessive idling of trucks, buses and automobiles. In following up on these complaints, the Department is aware that some localities may not realize the authority they have under MGL Chapter 90, Section 16A to prohibit such idling. By means of this letter and the attached information sheet, the Department is contacting each local Police Department to inform you of your authority under Chapter 90, Section 16A. Your decision to enforce this statute can provide local officials with an effective tool for addressing this common public nuisance. In addition, your enforcement of this statute supports the Department's objective of protecting public health and the environment through reduced vehicle emissions. Historically, the Department's response to such complaints has been to refer citizens to their local Police Department or Board of Health for action. This arrangement, while informal, has been successful for three reasons: 1. local enforcement officials have the authority under Chapter 90, section 16A to enforce the state statute prohibiting excessive idling, including the collection of penalties; 2. local enforcement officials can provide a more timely response to a citizen's complaint against a specific violation; and local enforcement with specific penalties is a more effective response to a pattern of excessive idling than the Department's time consuming process of documenting a "pattern of noncompliance" necessary for successful enforcement in an adjudicatory process. This letter is neither a delegation of authority by the Department nor a mandate to local Police Departments to enforce Chapter 90, Section 16A. We believe the decision to enforce this statute is a matter of local discretion. Please contact Sue Ann Richardson at (617) 556-1110 with any questions or if the Department can provide you with any additional information on this important public health and environmental issue. Sincerely, Barbara A. Kwetz, Director Division of Air Quality Control Enclosure. cc: Chief Municipal Official 14:57 FAX 617 565 7528 310 CMR: DEPARTMENT Or ENVIRONMENTAL QUALITY ENGINEERING 7.11: U Transportation Media (be referred to 310 CMR 7.06 (1) Motor Vehicles. (a) All motor vehicles registered_ in the Commonwealth shall comply with pertinent regulations of the Registry of Motor Vehicles relative to exhaust and sound emissions. (b) No person shall cause, suffer, allow, or permit the unneces- sary operation of the engine of a motor vehicle while said vehicle is �npp for a foreseeable period of time in excess of five minutes. is regumuons not app to: 1. vehicles being serviced, provided that operation of the engine is essential to the proper repair thereof, or 2. vehicles engaged in the delivery or acceptance of goods, wares, or merchandise for which engine assisted power is neces- sary and substitute alternate means cannot be made available; or 3. vehicles engaged In an operation for which the engine power is necessary for an associated power need other than movement and substitute alternate power means cannot be made available provided that such operation does not cause or contribute to a condition of air pollution. (c) 310 CMR 7.11(1)(b) is subject to the enforcement provisions specified in 310 CMR 7.52. (2) DieseTrains. ^•+ten •.r nnerating a diesel powered locomotive nJ�r nit said locomotive to be operated 7 contribute to a condition of air i' � .r, allow, or permit the unneces- locomotive for a continuous period �N r c� 5 ` fu 0 . This regulation shall not apply d provided that idling is essential motive and that such idling does :ion of air pollution. 11(2)(b) are subject to the en - 10 CMR 7.52. operating an airport shall cause, coups, testing, or other operation such a manner as to cause or con- n, outside of the property lines of the Department are unreasonable (A /(_"' Y ( Ain,"&S jinn /1TCTJ*fnm n.. l.e..:.... ....�►..-7 the District shall cause, suffer, :el, tube blowing or soot removal a condition of air pollution. This lerrimack Valley Air Pollution Con- trol District, Metropolitan Boston Air Pollution Control District, and the Southeastern Massachusetts Air Pollution Control District. 7.12 U Inspection Certificate Record Keeping and Reporting (1) General Avolications (a) Any person owning, operating, or controlling a facility de- scribed in 310 CMR 7.12(3) through (7) shall register on a form supplied by the Department such information as the Department may specify including: 1. the nature and amounts of emissions from the facility, 2. information which may be needed to determine the nature and amounts of emissions from the facility, and 3. any other information pertaining to the facility which the Department requires. (b) Information required by 310 CMR 7.12(1)(a) shall be submitted annually for any major stationary source (major facility) and once � �83 Vol. 12 - 188.5 ) la 007 11/10/03 14:57 FAX 617 565 7528 310 CMR: DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING 7.11: U Transportation Media (be referred to 310 CMR 7.06 (1) Motor Vehicles. (a3 All motor vehicles registered. in the Commonwealth shall comply with pertinent regulations of the Registry of Motor Vehicles relative to exhaust and sound emissions. (b) No person shall cause, suffer, allow, or permit the unneces- sary operation of the engine of a motor vehicle while said vehicle is °U for a foreseeable period of time in excess of five minutes. n is re on shall not appy to: 1. vehicles being serviced, provided that operation of the engine is essential to the proper repair thereof, or 2. vehicles engaged in the delivery or acceptance of goods, wares, or merchandise for which engine assisted power is neces- sary and substitute alternate means cannot be made available; or 3. vehicles engaged in an operation for which the engine power Is necessary for an associated power need other than movement and substitute alternate power mens cannot be made available provided that such operation does not cause or contribute to a condition of air pollution. (c) 310 CMR 7.11(1)(b) is subject to the enforcement provisions specified in 310 CMR 7.52. (2) Diesel Trains. .(a o person owning or operating a diesel powered locomotive shall cause, suffer, allow, or permit said locomotive to be operated in a manner such as to cause or contribute to a condition of air pollution. (b) No person shall cause, suffer, allow, or permit the unneces- sary foreseeable idling of a diesel locomotive for a continuous period of time longer than thirty minutes. This regulation shall not apply to diesel locomotives being serviced provided that idling is essential to the proper repair of said locomotive and that such idling does not cause or contribute to a condition of air pollution. (c) 310 CMR 7.11(2)(a) and 7.11(2)(b) are subject to the en- forcement provisions specified in 310 CMR 7.52. (3) Aircraft. No person owning or operating an airport shall cause, suffer, allow, or permit routine warmups, testing, or other operation of aircraft while on the ground, in such a manner as to cause or con- tribute to a condition of air pollution, outside of the property lines of the airport, that in the opinion of the Department are unreasonable and feasibly preventable. (4) Marine Vessels. No person owning, operating, or having control of a seagoing vessel while it is in the District shall cause, suffer, allow, or permit, aboard said vessel, tube blowing or soot removal activities that cause or contribute to a condition of air pollution. This Regulation shall apply only in the Merrimack Valley Air Pollution Con- trol District, Metropolitan Boston Air Pollution Control District, and the Southeastern Massachusetts Air Pollution Control District. 7.12 U Inspection Certificate, Record Keeping and Reporting (1) General AuDlications (a) Any person owning, operating, or controlling a facility de- scribed in 310 CMR 7.12(3) through (7) shall register on a form supplied by the Department such information as the Department may specify including: 1. the nature and amounts of emissions from the facility, 2. information which may be needed to determine the nature and amounts of emissions from the facility, and 3. any other information pertaining to the facility which the Department requires. (b) Information required by 310 CMR 7.12(1)(a) shall be submitted annually for any major stationary source (major facility) and once 9/30/83 Vol. 12 - 188.5 0 007 11/10/03 14:56 FAX 617 565 7528 310 CMR: DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING 7.09: continued [A 006 (5) No persons responsible for any construction or demolition of a structure that contains friable asbestos material shall fail to comply with 310 CMR 7.09(2) and 310 CMR 7.02. (National Emission Standards for Hazardous Pollutants) (6) No person shall cnnsa, suffer, allow. or permit the operation of mechanized street sweeping equipment that is not equipped with a suitable dust collection or dust suppression system which is maintained in good operating condition and is operated continuously while the street sweeping equipment is in use to r prevent conditions of air pollution. (7) 310 CMR 7.09(1) through 7.09(4) and 7.09(6) are subject to the enforcement provisions specified in 310 CMR 7.52. 7.10• U Noise (1) No penton owning. leasing, or controlling a source of sound shall willfully, negligently. or through failure to provide necessary equipment, service, or maintenance or to take necessary precautions cause, suffer, allow, or permit S unnecessary emissions from said source of sound that may cause noise. (2) 310 CMR 7.10(1) shall pertain to, but shall not be limited to, prolonged unattended sounding of burgular alarms, construction and demolition equipment which characteristically emit sound but which may be fitted and accommodated with equipment such as enclosures to suppress sound or may be operated in a manner so as to suppress sound, suppressable and preventable industrial and commercial sources of sound, and other man-made sounds that cause noise. (3) 310 CMR 7.10(1) shall not apply to sounds emitted during and associated with: (a) parades, public gatherings, or sporting events, for which permits have been issued provided that said parades, public gatherings, or sporting events in one city or town do not cause noise in another city or town; (b) emergency police, fire, and ambulance vehicles; t (c) police, fire. and civil and national defense activities; (d) domestic equipment such as lawn mowers and power saws between the hours of 7 A.M. and 9 P.M. (4) 310 CMR 7.10(1) is subject to the enforcement provisions specified in 310 CMR 7.52. 9130!86 Vol. 12 - 188.4.5 INFORMATION SHEET MGL Chapter 90, Section 16A Local enforcement authority prohibiting the excessive idling of motor vehicles BACKGROUND Excessive idling of motor vehicles, especially diesel powered vehicles, is a significant source of local citizen complaints, risk to public health and local air pollution. Under MGL Chapter 90, Section 16A, "No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes." This statute provides local officials the means to respond to local citizens' complaints and effectively discourage unlawful idling. FINANCIAL PENALTIES Chapter 90 provides local enforcement officials the right to issue tickets with financial penalties of up to $100 for a first offense and up to $500 for each succeeding offense. EXEMPTIONS The following activities are exempt from Chapter 90, Section 16A: A. Vehicles being serviced or repaired, provided that operation of the engine is essential to such service or repair. B. Vehicles delivering or accepting of goods, wares, or merchandise when engine assisted power is necessary, and substitute, alternative means are not available (e.g., hydraulic tailgate lift, crane etc). C. Vehicles engaged in an operation for which the engine power is necessary for an associated power need other than vehicle movement and substitute alternative power is not available (e.g., refrigeration, cherry picker etc). D. Idling of buses when passengers, in addition to the driver, are onboard or during the boarding period prior to departure. TEXT OF CHAPTER 90, SECTION 16A. Unnecessary Operation of Stopped Motor Vehicle Prohibited: Exceptions: Penalty. No person shall cause, suffer, allow or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped far a foreseeable period of time in excess of five minutes. This section shall not apply to (a) vehicles being serviced, provided that operation of the engine is essential to the proper repair thereof, or (b) vehicles engaged in the delivery or acceptance of goods, wares, or merchandise for which engine assisted power is necessary and substitute alternate means cannot be made available, or (c) vehicles engaged in an operation for which engine power is necessary for an associate power need other than movement and substitute alternate power means cannot be made available provided that such operation does not cause or contribute to a condition of air pollution. Whoever violates any provision of this section shall be punished by a fine of not more than one hundred dollars for the first offense, nor more than five hundred dollars for each succeeding offense. C:\WINDOWS\TEMP\IDLING Information Sheet 1997 updated 2001.doc QUESTIONS AND ANSWERS How does the Department of Environmental Protection (DEP) respond to idling complaints? Citizens contacting DEP concerning excessive idling are referred to their local police or Board of Public Health. This referral is based on three issues: 1. local enforcement officials have the authority under Chapter 90 section 16A to enforce the state statute prohibiting excessive idling, including the collection of penalties; 2. local enforcement officials can provide a more timely response to a citizen's complaint against a specific violation; 3. local enforcement with immediate specific penalties for a pattern of unnecessary idling can change behavior more effectively than the Department's more lengthy process of documenting a "pattern of noncompliance" necessary for successful enforcement in an ad judicatory process. Is DEP delegating enforcement of Chapter 90, Section 16A to local municipalities? No. The DEP retains its authority to enforce against excessive idling under 310 CMR 7.11(1)(b). The DEP is notifying local enforcement officials of their authority to enforce the state law prohibiting unnecessary idling. Local officials have discretion to use such authority. Who collects the financial penalties from the tickets issued relative to Chapter 90. Section 16A? The local municipality collects the penalties from the tickets issued relative to Chapter 90.Section 16A Does DEP need to be notified of tickets issued by local authorities under Chapter 90 Section 16A? No. Can buses idle for seasonal heating and cooling reasons? On what basis would an exemption like this be allowed? The law prohibits "unnecessary" idling. Depending upon the outside temperature, vehicles may need to idle to run heating or cooling equipment. For example, buses may need to idle for a period of time before loading passengers to ensure passengers' comfort on hot or cold days. Are there other examples of necessary idling? Yes. Other examples include performing federally -mandated safety checks, picking up or dropping off passengers, or using engine power to run auxiliary equipment when other power is not available, such as refrigeration units and lifts. C:\WINDOWS\TEMP\IDLING Information Sheet 1997 updated 2001.doc TOWN OF NORTH ANDOVER of rasr►r Office of COMMUNITY DEVELOPMENT AND SERVICES HEALTH DEPARTMENT 27 CHARLES STREET +► o* ,r' �7Ssteno rR,�gS NORTH ANDOVER, MASSACHUSETTS 01845 SACHUSE Heidi Griffin 978.688.9540 — Phone Acting Health Director 978.688.9542 — FAX Bernstein, Cushner and Kimmel Attn: Attorney Ken Kimmel 585 Boylston Street Boston, MA 02116 Dear Attorney Kimmel: As we previously discussed, I have enclosed information regarding the follow-up complaint of air pollution/nuisance regarding Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA which was brought before us by Mr. Dino Balos of 66 Meadowood Road, North Andover, MA 01845. Please call me at 978.688.9531, or e-mail me with your feedback. My e-mail address is: hgriffin@townofnorthandover.com. Thank you for your assistance in this matter. Sincerely, r� Heidi Griffin Community Development Director /pfd xc: Ray Santilli, Assistant Town Manager January 26, 2004 Town of North Andover Community Development Office Heidi Griffin, Director 27 Charles Street North Andover, MA 01845 ,f� �(� - I .v l 66 Meadowood Road North Andover, MA 01845-5927 Subject: Follow-up to Complaint for Investigation - Air Pollution/ Nuisance Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. Dear Ms. Griffin: This letter is addressed to you because the Community Development Office has direct oversight of the Health Department. On September 10, 2003, I sent a letter to the Health Department regarding an air pollution/ nuisance complaint against Material Installations, Inc. As you are aware, this matter was assigned to Inspector Brian LaGrasse for investigation. To date, there has been no relief to the nuisance or enforcement of the Air Pollution Control Regulations. As indicated in my September 10th letter, the shipping area activity at Material Installations is a nuisance and unreasonably interferes with the comfort of my family and myself. This has made the backside of my house unsuitable for quiet enjoyment. The source of the nuisance is shipping related activity. This includes the operation of trucks and engine idling over the Massachusetts statutory limit of 5 minutes. The trucks are diesel -fuel operated and do not have auxiliary equipment. I have provided the health department with research supporting that noise is a health hazard. Moreover, there are serious health risks associated with exposure to diesel exhaust (see attachment). The Commonwealth of Massachusetts treats noise as an emission of sound, and is regulated as a source of air pollution. The Massachusetts General Laws (ch. 214, § 7A) define "damage to the environment" to include "air pollution." The Code of Massachusetts Regulations (CMR) defines air pollution as "the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information,op tentially injurious to human or animal life, to vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business." CMR Section 7.10 states the following with regard to noise: "(1) No person owning, leasing, or controlling a source of sound shall willfully, negligently, or through failure to provide necessary equipment, service, or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise." CMR Section 7:11 states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five -minutes." The above idling regulation is part of the state's efforts to meet federal air quality standards. As highlighted in my previous correspondence, Material Installations exceeds the statewide five-minute idling limit on a routine basis. I have attached an updated log of truck activity. Moreover, as indicated in my previous correspondence with the health department, I have corroborating video footage of this log. In addition to the noise impairment on the neighborhood, there is concern about the health effects associated with exposure to diesel exhaust. According to the EPA, unnecessary idling causes pollution. This includes the emission of significant amounts of pollution including carbon dioxide, nitrogen oxides and volatile organic compounds, both of which contribute to the formation of ozone smog; poisonous carbon monoxide; and particulate. The diesel exhaust contains significant levels of small particles known as fine particulate matter and poses a significant health risk. Additionally, most engine manufacturers recommend that newer engines run for roughly 3-5 minutes before driving (see attachment). I have had contact with Inspector LaGrasse on several occasions. This includes providing a point of contact at the Department of Environmental Protection (DEP), a copy of the Air Pollution Control Regulations, the DEP policy on investigating and enforcing the regulations, a log of shipping activity and corroborating video footage. As you are aware, I have been very patient in seeking a resolution to this matter. As mentioned during our January 8th (2004) meeting, I originally sent a letter to Town Manager Mark Rees regarding this matter on June 12, 2003. To date, the health department has not taken action to effectively end the nuisance/health hazard to include the enforcement of the Air Pollution Control Regulations. This is a serious health matter. Article 97 of the Massachusetts Constitution guarantees the people's right to "clean air and water." Please take all necessary steps to enforce the Air Pollution Control Regulations to include the involvement of the DEP and/or EPA. I am available to attend any meetings and/or provide further information to include video corroboration of the activity log. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and prompt attention to this important health issue Sincere, _ Konstantinos "Dino" Balos Attachments cc: Assistant Town Manager Board of Selectmen North Andover Meadowood Road Residents Attorney Matthew C. Donahue Activity Log - Material Installations Shipping Area Jan 04, 2004 2155 Truck Activity Jan 05, 2004 0445 Truck Activity Jan 05, 2004 0551 Truck Activity Jan 05, 2004 0610 Truck Activity Jan 05, 2004 0629-0642 Truck Idling Jan 05, 2004 j 0629-0652 Separate Truck Idling Jan 05, 2004 0647-0702 Truck Idling Jan 06, 2004 0600-0635 Loading Activity Jan 06, 2004 0638 Truck Activity Jan 06, 2004 0641 Truck Activity Jan 06, 2004 0710-0718 Truck Idling Jan 06, 2004 0712-0804 Truck Idling Jan 07, 2004 0453 Truck Activity Jan 07, 2004 0646 Truck Activity Jan 07, 2004 0710-0722 Truck Idling Jan 07, 2004 0710-0726 Separate Truck Idling Jan 08, 2004 0652-0708 Truck Idling Jan 08, 2004 0652-0713 Separate Truck Idling Jan 09, 2004 0644-0702 2 Trucks Idling Jan 09, 2004 0644-0706 Separate Truck Idling Jan 09, 2004 0708-0718 Truck Idling Jan 09, 2004 0719-0742 Truck Idling Jan 09, 2004 1940-1948 Truck Fueling Jan 10, 2004 0705-0719 Truck Idling Jan 12, 2004 0618 Truck Activity Jan 13, 2004 0625 Truck Activity Jan 14, 2004 0626-0636 Truck Idling Jan 14, 2004 0628-0638 Truck Idling Jan 14, 2004 0641-0742 Truck Idling Jan 14, 2004 0743-0818 Truck Idling Jan 15, 2004 0703-0723 Truck Idling Jan 16, 2004 0606-0637 _ Truck Idling Jan 16, 2004 0607-0636 Truck Idling Jan 16, 2004 0637-0701 Truck Idling Jan 16, 2004 0654-0722 Truck Idling Jan 17, 2004 0648-0705 Truck Idling Jan 19, 2004 0645-0736 Truck Idling Jan 20, 2004 0702-0709 Truck Idling Jan 20, 2004 0702-0716 Truck Idling Jan 21, 2004 0627-0636 Truck Idling Jan 21, 2004 0653-0717 Truck Idling Jan 21, 2004 I 0700-0708 Truck Idling Jan 22, 2004 0559 Truck Activity Jan 22, 2004 0600 Truck Activity Jan 22, 2004 0618 Truck Activity Jan 22, 2004 0631-0654 Truck Idling Jan 22, 2004 i 0633 Truck Activity Jan 22, 2004 0710 Truck Activity Jan 22, 2004 j 0731-0808 Truck Idling Jan 23, 2004 j 0600-0607 Truck Idling Jan 23, 2004 Jan 23, 2004 0615 0628-0638 Truck Activity Truck Idling Activity Log - Material Installations Shipping Area Jan 23, 2004 2345 Truck Activity Jan 24, 2004 0550 Truck Activity Jan 24, 2004 0850-0912 Truck Idling Jan 24, 2004 0917-0935 Truck Idling Jan 26, 2004 0532 Truck Activity Jan 26, 2004 0554-0611 Truck idling Jan 26, 2004 0556-0608 Truck Idling Jan 26, 2004 0557-0614 Truck Idling Jan 26, 2004 0713-0726 _ Truck Idling )articulate F ne'' ,at mcd. �11liJl aust also contains itrogen oxides:and ttt carr :: ....................... : Aa 5fl ". available. • Vehicles,equipped with .devices :that r minimize idling and warm-up time automatically. Vehicles .that runon cleaner fuels like compressM natural gas. ARRIL11zob2 Use auxiliary power units instead of the engine to provide electric power. :.EPA New England For more information: Visit www.epa.gov/ne/ eco/diesel/, or call the EPA Air Quality Hotline at 1-800-821-1237 WHAT ARE SOME OF THE PROBLEMS ASSOCIATED WITH IDLING? IDLING WASTES FUEL AND MONEY • A typical truck burns approximately one gallon of diesel fuel for each hour it idles. • If this truck idles for 6 hours per day and operates 300 days a year, it would consume 1,800 gallons of fuel per year, simply idling. • At a price of $1.25 per gallon of diesel, this idling comes with a price tag of $2,250 per truck. IDLING CAUSES EXCESSIVE ENGINE WEAR • Running an engine at low speed (idling) causes twice the wear on internal parts compared to driving at regular speeds. According to the American Trucking Association, such wear can increase maintenance costs by almost $2,000 per year and shorten the life of the engine. UNNECESSARY IDLING CAUSES POLLUTION • Idling vehicles can emit significant amounts of pollution including: carbon dioxide, which contributes to global climate change; nitrogen oxides and volatile organic compounds, both of which contribute to the formation of ozone smog; poisonous carbon monoxide; and particulate matter. IDLING POSES HEALTH RISKS TO DRIVERS • While sitting in an idling vehicle, drivers are exposed to the vehicle's pollution more so than when the vehicle is in motion since there is no air flow to vent the emissions. continued 4 Diesel engines play an important role in the transport WHAT CAN of goods and services nationwide. They are a durable and YOU D O ? economical source of power. However, there is growing Turn off your engine concern about the health effects associated with exposure when your vehicle is to diesel exhaust. Diesel exhaust affects everyone, but people with existing heart or lung disease, asthma, or not in motion. other respiratory problems are most sensitive to the small particles in diesel exhaust. Fortunately, new emission standards and new technology are helping to ensure that the Use electric engine cleaner diesel engines of the future will dramatically heaters to minimize reduce these health risks. If you drive a truck, there are several warm -uptime. things that you can do now to save money and reduce pollution. Use auxiliary power units instead of the engine to provide electric power. :.EPA New England For more information: Visit www.epa.gov/ne/ eco/diesel/, or call the EPA Air Quality Hotline at 1-800-821-1237 WHAT ARE SOME OF THE PROBLEMS ASSOCIATED WITH IDLING? IDLING WASTES FUEL AND MONEY • A typical truck burns approximately one gallon of diesel fuel for each hour it idles. • If this truck idles for 6 hours per day and operates 300 days a year, it would consume 1,800 gallons of fuel per year, simply idling. • At a price of $1.25 per gallon of diesel, this idling comes with a price tag of $2,250 per truck. IDLING CAUSES EXCESSIVE ENGINE WEAR • Running an engine at low speed (idling) causes twice the wear on internal parts compared to driving at regular speeds. According to the American Trucking Association, such wear can increase maintenance costs by almost $2,000 per year and shorten the life of the engine. UNNECESSARY IDLING CAUSES POLLUTION • Idling vehicles can emit significant amounts of pollution including: carbon dioxide, which contributes to global climate change; nitrogen oxides and volatile organic compounds, both of which contribute to the formation of ozone smog; poisonous carbon monoxide; and particulate matter. IDLING POSES HEALTH RISKS TO DRIVERS • While sitting in an idling vehicle, drivers are exposed to the vehicle's pollution more so than when the vehicle is in motion since there is no air flow to vent the emissions. continued 4 SAVE MONEY AND REDUCE UNNECESSARY IDLING—STEPS YOU CAN TAKE: • Turn off your engine when your vehicle is not in motion. (Follow manufacturers recommendations for cool -down — usually 3-5 minutes after full load operation.) • Follow manufacturers recommendations for minimum warm-up time — usually 3 to 5 minutes depending on the vehicle. • Use electric engine heaters (such as block heaters) to minimize idling time during warm-up, especially in cold weather. • Install a small generator or auxiliary power unit specifically designed for a truck that provides heat, air conditioning, and/or electrical power while the vehicle is not in motion. These devices are a better, more efficient alternative to idling as they use substantially less fuel and emit less pollution. Depending on the amount of time spent idling each year, the payback on these devices can be one to two years. • When buying new equipment, purchase engines already equipped with devices that minimize idling and warm-up time automatically. • Follow anti -idling laws and guidelines in your state. Currently, three New England states have anti -idling laws: Connecticut, Massachusetts, and New Hampshire. FACTS ABOUT DIESEL ENGINES AND IDLING Although there are some legitimate reasons why trucks and buses idle (e.g., to bring the engine to proper operating temperature), there are also some misconceptions. INITIAL STARTING / WARM-UP TIME Most engine manufacturers recommend that newer engines run for roughly 3-5 minutes before driving. In colder climates, block heaters are a good alternative to excessive idling. They plug into electrical outlets and help warm the engine to avoid starting difficulties and reduce idling time during engine warm-up. RESTARTING Although engine manufacturers recommend that you let your engine idle for a few minutes after you stop, most newer diesel engines will stay warm for several hours after they have been running, retaining more than enough heat to keep the engine warm and avoid starting difficulties. Older vehicles may have more difficulty restarting, but don't assume new engines should be operated like older ones. Check the manufacturer's recommendations. FUEL GELLING Gelling of diesel fuel used to be a problem years ago, but refiners have worked to resolve that issue by creating winter blends that better withstand colder temperatures. ENGINE WEAR AND TEAR Letting an engine idle actually does more damage to the engine than starting and stopping. Running an engine at low speed (idling) causes twice the wear on internal parts compared to driving at regular speeds, which can increase maintenance costs and shorten the life of the engine. Generally, fuel consumption during engine start-up is equivalent to about 30 seconds of engine idling. Most engine manufacturers recommend that newer engines run for roughly 3-5 minutes before and after driving. Today's winter blends of diesel fuel ire much less likely to gel in cold weather. Letting an engine idle actually does more damage to the engine than starting and stopping. EPA New England 1 Congress Street Suite 1100 Boston, MA 02114-2023 www.epa.gov/ne/eco/diesel/ EPA Air Quality Hotline: 1-800-821-1237 M a s s a c h u s e t t s D e p a r t m e n t Of E N V IR O N M E N T A L P R O T E C T 1 O N Massachusetts Department of Environmental Protection One Winter Street Boston, MA 02108-4746 Commonwealth of Massachusetts Mitt Romney, Governor Executive Office of Environmental Affairs Ellen Roy Herzfelder, Secretary Department of Environmental Protection Edward P. Kunce, Acting Commissioner Produced by the Bureau of Waste Prevention February 2003. Printed on recycled paper. This information is available in alternate format by calling our ADA Coordinator at (617)574-6872. Noise Background Noise is a type of air pollution that results from sounds that cause a nuisance, are or could injure public health, or unreasonably interfere with the comfortable enjoyment of life, property, or the conduct of business. Types of sounds that may cause noise include: • "Loud" c ntinuous sounds from Industrial or commercial activity, demolition, or y amplified music; • Sounds in narrow frequency ranges such as "squealing" fans or other rotary equipment; and • Intermittent or "impact" sounds such as those from pile drivers, jackhammers, slamming truck tailgates, public address systems, etc. Policy A noise source will be considered to be violating the Department's noise regulation (310 CMR 7.10) if the source: 1. Increases the broadband sound level by more than 10 d (A) above ambient, or 2. Produce a "pure tone" condition — when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more. These criteria are measured both at the property line and at the nearest inhabited residence. "Ambient" is defined as the background A -weighted sound level that is exceeded 90% of the time, measured during equipment operating hours. "Ambient" may also be established by other means with consent of the Department. For more information: For complaints about specific noise sources, call the Board of Health for the municipality in which the noise source is located. To learn more about responding to noise, odor and dust complaints or to request state assistance or support, please contact the service center in the nearest DEP regional office. • Central Region, Worcester: (508) 792-7683 • Northeast Region, Wilmington: (978) 661-7677 • Southeast Region, Lakeville: (508) 946-2714 • Western Region, Springfield: (413) 755-2214 This Policy was originally adopted by the MA Department of Public Health in the early 1970's. It was reaffirmed by DEP's Division of Air Quality Control on February 1, 1990, and has remained in effect. noise sheet • Page 1 of 2 M a s s a c h u s e t t s D e p a r t m e n t Of-. E N V IR O N M E N T A L P R O T E C T I O N a c t s h e e t Responding to Local Noise, Odor and Dust Complaints Across Massachusetts, environmental and public health officials are seeing an increase in the number of noise, odor and dust complaints they are called upon to handle. The local board of health or public health department is usually the first line of defense against these and other nuisance conditions. Municipal officials can respond to nuisance complaints in an informed, effective and timely way. In some cases, the Department of Environmental Protection (DEP) can assist and support local officials in their response, or take the lead in responding. This fact sheet was developed to guide municipal officials as they follow up on nuisance complaints and to help them determine when it might be appropriate to request DEP assistance. Local Response Most noise, odor and dust complaints can be handled on the local level. Boards of health have broad authority under state law (M.G.L. Chapter 111, Sections 31 C and 122) to investigate and control nuisance conditions. They and other local government agencies are empowered by DEP (310 CMR 7.52) to take enforcement action against violators of DEP's noise, odor and dust regulations (310 CMR 7.09-7.10). When investigating nuisance complaints, municipal officials should determine whether: • Nuisance conditions unreasonably interfere with the enjoyment of residential property and/or the operation of a business; and/or • The source of the nuisance, if a business, has the necessary licenses, permits and approvals to be operating and conforms to local zoning requirements; and/or • Offending activities constitute a violation of local nuisance by-laws or ordinances that may be more stringent than state regulations or statutes. In many cases, those responsible for nuisance conditions are unaware of the problems they are causing and, in the interest of being good neighbors, will willingly take the necessary steps to solve them. In these instances, local officials need only notify the offending parties. Other cases may require local officials to exercise their skills of diplomacy and mediation in helping the parties to a dispute reach an accommodation. For still others, local enforcement action can be an effective solution. When these efforts are unsuccessful, coordinating local actions with DEP follow-up may be necessary. Local officials should keep a log of all complaints they receive and clearly document their investigations and findings. Responding to Local Noise, Odor and Dust Complaints 9 Page 1 Responding to Local Noise, Odor and Dust Complaints • Page 2 How DEP Can Help DEP can assist and support local officials in investigating noise, odor and dust complaints and taking appropriate enforcement actions by: • Providing policies, guidance and other forms of technical assistance; • Answering questions and offering regulatory expertise on request; and • Lending sound level meters and other equipment to boards of health or other local agencies on request. For details, contact the service center in the DEP regional office nearest you. Telephone numbers are provided below. Criteria for Direct DEP Involvement DEP may respond directly to local noise, odor and dust conditions at the request of local officials if: Massachusetts Department of The identityof the complainant(s)Is su lied to the enc and • pp agency Environmental Protection One Winter Street • Nuisance conditions pose a potential imminent hazard to public health or the Boston, MA 02108-4746 environment, are causing significant impacts across municipal or state boundaries, or are symptomatic of a serious environmental compliance problem; or Commonwealth of Massachusetts • There have been numerous complaints about the facility that is the source of the Mitt Romney, Governor nuisance, there is a history of violations by the same party, or a state facility is causing the problem; or Executive Office of Environmental Affairs • Local officials have pursued and exhausted all other avenues without successfully Ellen Roy Herzfelder, Secretary resolving the matter; or Department of • The complaint is about a pure tone noise from a source that cannot readily be Environmental Protection identified. Edward P. Kunce, =Complainant names and addresses must be known to DEP, but under the Fair Information and Acting Commissioner Practices Act (M.G.L. Chapter 644), the agency is required to keep all such information confidential while any investigation or enforcement action is ongoing. Produced by the Bureau of Waste Prevention, For Additional Information February 2003. Printed on recycled paper. To learn more about responding to noise, odor and dust complaints or to request state assistance or support, please contact the service center in the nearest DEP regional This information is available in office. alternate format by calling our • Central Region, Worcester: (508) 792-7683 ADA Coordinator at • Northeast Region, Wilmington: (978) 661-7677 (617) 574 6872. Southeast Region, Lakeville: (508) 946-2714 r • Western Region, Springfield: (413) 755-2214 Responding to Local Noise, Odor and Dust Complaints • Page 2 Dk�—o 0 1- - �)-�)Gt l 2 7�� (In C AFP r Tom N,,,\tcAr i�- ( sLA Us <71-00 I6N\ V A- c e p 1 v IL ,� �+`�•-``�'� \fS oq S 01/08/04 THU 11:34 FAX 978 794 1236 G.A.T.S.F. K Dino BOW Lem; *K Tw.* lmpect& Brign LeGrawe Prow K, DMo Balos - Fine 9784U -NO a PMOW Phneae 97848SM410 OmMm V&2W4. lions Niiisanoe — Mgterlal ItatalladonS CC., Ray Sanblli,,Asst. T&AonManager RI For Revkw 0 PkComnWM la pkmw Ropy . Pdvm6god and Cwdkkmthd a ConsMOVAN Brian, Per our Jan 7.200+4 meefingr, see attachment. Thanksl IA 001 01/08/04 THU 11:35 FAX 978 794 1236 G.A.T.S.F. DEP Bureau of Waste Prevention Noise Policy - DAQC Policy 904001..............page 1 DEP Bureau of Waste Prevention Noise Policy February. 1,.11990. DAQE Polkyg.Ml Table 'ofContents : Wbat Constitates Noise As A Condition of Air Pollution : How Is A Violation Of The Noise Policy Determined : What IsDone HA Violation is Determined Section I: What Constitutes a Noise as a condition of Air Pollution The Massachusetts Department of Environmental Protection (DEP) adopted a Noise Control Regulation,. 310 -CMR 7. 10, under the authority of M.G.L. Chapter 111, Section 142B and 142D. The Noise Control Regulation is used to limit the sound impact of new stationary sources and to respond to complaints of certain excessive sound. The Department's Noise Control Regulation can be enforced by local officials under the authority of10 CMR7.52 which s4acs: Relevant DeGulations When. used in 310 CMR 7.00 or in communications,..notices or orders relative thereto, the following words and phrases shall have the meanings ascribed to them below: • Air Contaminant -meaa4 any substance or man-made physical phenomgnon in the ambient air space and includes, but is not limited to, dust, flyash, gas, fume, mist, odor; smoke.; vapor, pollen, microorganism; radioactive material, radiation, heat, sound, any combination thereof, or any decay or reaction productthefeof. • Air Contamination Source means any place at or from which any air contaminant is emitted to the ambient air space. • Air Pollution means the presence in the ambient 'air space of one or more ar contaminants or combinations thereof in such concentrations and of such duration as to: 1, cause a nuisance; 2. be mlurious, or be on the basis of current information, peter .Nally Jq�tqus to human or animal life, to vegetation, or to property; or 3. unmesonalily interfere with the comfortable enjoyment of life and _property or the conduct of business. • Ambie-6T —Ser pace means the unconfined space occupied by the atmosphere above the geographical area of the District which includes tate air outside a facility -or strucwr+e. • Noise means sound of sufficient intensity and/or duration as to cause or contribute to a condition of air pollution. la 002 01/08/04 THU 11:36 FAX 978 794 1236 G.A.T.S.F. DEP Bureau of Waste Prevention Noise Policy - DAQC Policy 90-001 .............. page 2 7.52 U Enforcement Provisions "Any police department, fire department, board of health officials, or building inspector or his designee acting within his jurisdictional area is hereby authorized by the Department to enforce, as provided in M.G.L. c. 111, S 142B, any regulation in which specific reference to 310 CMR,7.52*is cited." Noise is defined in the Regulations as "...sound of sufficient intensity and/or duration as to cause or contribute to a condition of air pollution." The Noise R%uladon states: 3-10 CMR 7.10. - U Noise L No person owning; leasing, or controlling a source of sound shall willfully, negligently, or through failure to provide necessary equipment, service, or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise. .2. 310 CMR 7.10(1) shall pertain to; but shall not -be limited to, prolopged unattended sounding of burglar alarms, construction and demolition equipment which characteristically emit sound but which may fitted and accommodated with equipment such as enclosures to suppress sound or may be operated in a manner so as to suppress sound; suppressible and preventable industrial and commercial sources of sound, and other man- made sounds that cause noise. . 3. 310 CMR 7.10(1) shall not apply to sounds emitted during and associated with: a. parades, public gatherings, or sporting events, for which permits have been issued provided that said parades, public gatherings, orsporting events in one city or town do not cause noise in another city or town; b. emergency police, fire, and ambulance vehicles; c. police, fire, and civil and national defense activ#ies; d. domestic equipment such as lawn mowers and power saws between the hours. of 7:00 kM. and _9:00 P.M. 4. (4) 310 CMR 7.10(1) is subject to the enforcement provisions specified in 310 CMR 7.52. The Department has establishedd-a Noise Level Policy for implehnenting this 1egulation. The policy specifies that the ambient sound levelmeasuredat the nmuerty line of the cilitg -or at -the nearest inhabited buildings, shall notbe increased by more than 10 decibels weighted for the "A" scale [dB(A) due the sound fioni the fkcility during its operating hours. Ambleat Ground Level - the sound from all sources other than the particular sound of interest (background sound level). The ambient sound mea 1 areV! (A - Weighted Noise Level) is taken wbere the n eun cannot be heard„ or with the sound source shut-off: The ambient sound level is rarely found to be constant over time, and is usually quite variable (considered to be the level that is http://www.staW.miLuddep/oneW/noLqpoLhtnir 0 003 01/08/04 THU 11:36 FAX 978 794 1236 G.A.T.S.F. DEP Bureau of Waste Prevention Noise Policy - DAQC Policy 90-001 .............. page 3 exceeded 90% of the time that the noise measurements are taken). dB(A) is a unit of sound measurement where the actual sound measurement (in decibels) is altered (or -weighted) to reflecx: human sound sensitivity: For instgnce, for those frequencies of sound which humans hear very well, the actual reading is enhanced, or increased, in the weighting process. The 'weighted" read therefore emphasizes the frequenciesbest heard by humans, and likewise de- emphasizes those sound frequencies which are less well hfard. The guideline further states that the facility shall not produce a puretone condition at the property line (or at the nearest inhabited bu ildipp). Puretone The sound pressure level, at any given octave band center frequency, that exceeds the levels of the -two adjacent octave bands by three (3) or more decibels. In by terms examples include a "squeaky" motor, screaching fan, etc. Community Sound -Level Criteria A facility will be considered to be in compliance with the 310 CMR 7.10(1) regulation if noise from the facility does not. 1. Increase the broad band noise level in excess of 10 dB QA) ambient, or, - 2. Produce a pure tone condition. to the List of Contents. Section If How is a Violation of the Noise Policy Determined Noise measurements are taken in the area impacted by the noise, with and without the contribution Som the facility, to determine if noise from the facility is exceeding the level permitted in the Department's Noise Policy. Local officials will just be checking for broadband oweedances, that is the -10 dB (A) criteria, and NOT checking for a purmne condition since the Regional offices ofthe Department does norhave an octave Band Analyzer to loan. if a puretone condition is suspected, it is sugested that the operator of the source of sound should be required to hire 'a private sound consultant to make the appropriate readings. Local officials can contact the Department of Environmental'Protection's Central Regional Office to make arrangements to borrow a noise level motor and receive training. on how to utilize it. Noise Measurement Procedure 1. In responding to complaints measu eres -should be taken near the arca +here the�eo �le are l�ocated who are complaining of the noise. For mstanc for a person complammg t -W noise from a a�oys while they are to sl —the measurements would be taken at the bedroom window o ear theboos When taking measurements avoid =ar large reflectin% possible. The preferred height of the microphone http://www.state.ma.us/dep/energy/noispol.htm 0 004 01/08/04 THU 11:37 FAX 978 794 1236 G.A.T.S.F. DEP Bureau of Waste Prevention Noise Policy - DAQC Policy 90-001 .............. page 4 above the ground for outdoor measurements is 5 feet other heights may be used if they prove to be more practical. For example, in taking measurements near an open window, the microphone shall be centered on the open window and at a horizontal distance of approximately Q 5 meters from the window (outside). 2: The slow meter response should normally be used 3. For facility emitting steady noise, the average noise level should be recofdedL 4. For a facility emitting intermittent noise, the noise during the "on" time should Is recorded. 5: The sound -level meter should be calibrated before and after the noise measurements are taken. 6. To perform sound'pressure level measurements on a windy day, a suitably designed windscreen shall be utilized to minimize the influence of the wind on the. output -of the microphone. 7. High humidity or temperature will change the sensitivity or damage many types ofmicrophones. The microphone manufacture?a instructions shall be carefully followed to avoid such effects. 8: The sound -level -meter shall be -held in front of the observer.- The observer shall be oriented with respect to the principal sound source so that the sound energy arriveg at the microphone from the observer's side unless -some Other orientation is specified by the instrument manufacturer. The microphone shall -be held -atthe angle relative to the -noise source specified by. the instrument manufacturer. 9: The Mowing information on the acoustic environment and instrumentation should be recorded: Acoustic Environment I. Location of sound source(s). 2. Dimensioned sketch and photographs of the test am showing buildings, trees, structures, and other reflecting objects. 3. Physical -and topographical description of the:ground surface. 4. The person taking measurements should avoid taking them during.periods with high relative humidity or wind speeds. If it is necessary to take measurements during these periods, the rwind ecordspeed, wind direction and relative humidity shall be Instrumemation 1. The equipment used for the measurements, including name, type, serial number, and manufacturer. 2. The time response of the measuring system; that is, "slow,", or "fast", response. 10. The ambient noise level -is the A -weighted noise level that is exceeded 90"/, (L90) of the time measured during the period in question. tient measurements should -be, taken_d rimi: a representative time cenod that the facilig► lly erates. If the facility operates 24 hours per day, ambient measurements should= a taken at nightifihis is the period that people are complaining about. If it is not possible to take ambient measurements with the facility shutdown (i.e., a facility that must operate 24 hours per day, 7 httpJ/www.statc-ma.us/deP/energy/noispol.htm 1005 01/08/04 THU 11:38 FAX 978 794 1236 G.A.T.S.F. 0 006 DEP Bureau of Waste Prevention Noise Policy - DAQC Policy 90-001 .............. page S days per week), ambient measurements should -be td= in a similar area, far enough f om the facility to that the facility does not significantly influence the measurements. The ambient noise level may be determined by one Qf the following methods: I . Observation ofthe meter for a period-oftime to determine the baseline noise level in the area. Do not be try to determine an absolute minimum noise level.li itis not clear, fivm observing the needle of the sound level meter what is the L90 level, then use the alternative method -described below. 2. Instantaneous sound level observed on the meter every ten seconds should'be recorded For -instance, after recording a minimum of 100 measurements, the L90 level will be the level for which only 10 percent ofthemeasurenm is -are lower. to -the List of Contents. Section III: Whit is Done if a Violation Is Determined If violation is con&med, then the offcnding sour= is inspected to investigate the Problem, if the problem cannot be resolved immediately, a violation will be issued which requests that the iolation be -correcte& by a given date. After the owner/operator of the sound source has provided notice of the completion of sound mitigation measures sufficient to achieve compliance with the noise regulation, a reinspection is made of the site, and confirmation or not of compliance is determined. [Contact: Updated: May 21, 1999 http://www.state.Maus/deP/eneW/noivol.htm DECIBEL CHECK 1 Proposed Methuen noise limit, IIp.m. to 7 a.m...................................................50 d8 Normal conversation at 3-5 ft .......................60-70 dB / Proposed Methuen noise limit, 7 am. to II p m...70 dB City traffic inside car............................................85 dB Train whistle at 500 ft ..........................................90 dB Regular sustained exposure may cause permanent damage....................................90-95 dB Power mower....................................................107 dB / Pain begins ...........................................................125 dB Pneumatic riveter at 4 ft ....................................125 dB Jet engine at 100 ft .............................................140 dB / Matt Consoli's car stereo.....................................153 dB Loudest sound that can occur ...........................194 dB Source: hearnet.com p.m. and 7 a.m., and 70 decibels at any other hour. Police would issue $50 tickets on a first offense, $100 for the second, and $300 for the third and subsequent violations in a 12 -month period. Please see METHUEN, Page 10 1 / r D 12 15 '''003 12: OS F3_`> 617 54 1 _2141 'SII\TZ "LES 1N Nlintz, Levin, Cohn, Ferris, GloN skv and Popeo, P.C. Onc Financ al C­—nt r Bosrc�n. 1�'Iassaclwsetts 02111 �cr ja rn G Tyma.;sn lire c-! diel 61 i 210 6°S_i tiiym--- nni 12-1S,,200-3 12:09 FAX 617 542 2241 MINTZ LEVIN Lj003 lvfim-z. LEv'Lu-. Col-nN, FEP-F,�l", GL.OVSK aTTD POPEo. P.C. Nfr. Michael J. Farrow D::ce, iter l 5 ()03 Pane ? I hope these cases wilt be useful in the health agent's and town manager s asses-sment of Mr. Balos's complaints. Pleasc let me know if I can provide additional explanation ofthesc cases or other information on this topic in general. cc; Paul D. Wilson, Esq. (w/attachments) LIT 14346?7vl allll IF,, _1003 12: 09 FAX 617 5421 2241 MINT'Z LES IN S96 iv.E.:d :;94 (Cite as: 33 N1as--.App.Ct. 104. 596 N.1~.2d 394) 144 ADye2)S Cour i 01 Mas Sacliuseft , Bristol. Jose L. ESCOBAR et al. FN1 FN I. Dn dinda N,1. Escobar. N" CONT M NTAL. B ARLENG COMPANY No. 93 -P -7'54- )N rcueu 'May 21 , 1992- i:ccid--d July 29. 1992. Landowner—: bro'.ght rinisance aeon again..=..t oti: - of adjacent bakcr;t d sLiibution facility. Tlic Superior Cella, histol County; John Nf. Zifaras, J., entered j.Ud''!Dtni in favi)r Of Ind appeal -js taken. The Appc;ils Court, Dreben, J., held that (1) under circumstcrn, es where iijunction is too severe s ter:dy in 1.1wsan;,e action, dal -rages maybe a 'ai -,d, bur (=) noise cauf,4,d by nighttime dclivcrics at bake _y disd;butiori fact: ity did not euliile enjoining, landcmmcrs to damz>` ,zs. k_ versed. 1:'est H.2adno?es Nu. isaI)cc --,"41. %77k` I A4csr Citc_d Ca Under circlimstiri,:es L'he,e injumcl.oil iS too Scvcrc a remedy in nuisan;;e action: damages may be awarded. M Nuisance 0'7--'�53 2791•: S3 10osl Citt;,l Faces VYhettler ruiSarG; exists is factually based: fending e,f nuisasicr., ho•, tvcr, cmbraccs not cnly fact al d_Te;trunsiTions bt l is also ruling as to v:liat facts arc. SU-Mcicat in lao, to consntuie nui,saiwe under 13l Nuisance (>"�42 ?%Q' i`1 c, ..1 Cit _ _ Ca No zCali .ed bl ]ll!�i1:n.Tic deilti�.'i ieS at 'J?iieri' bcriion F"cliry did root entitle adjoining l..l:"SUS';nz�rs 1C+ Ci;'cCi_'67 ;� in nuisance act;011,-'?fere ufj04 Pa i lando'.vners were ay.'aic 01 faciEir and neighborhood's co-i=m,-rclal J1 TLmc tllej' Purchased properry. value of Proper• lead appreciated, and laiido%vncrs v._�c able to maintain construction business from 141 Nuisance �4 j9k42 Allost Cited Cascs While corning to a nunsinec, in itself does not bar relief, it is a significant factor u) deterrnmilie >>'llat is fair aFiLd reasonable in a r:uisancc action_ **39-5;104 Brian A. Davis. Poston, for defendant. Fred M. Thomas, New• Ledford_ for plainud,fs, submitted a brief. $cforc DREBEN, GILL.BPj\4 and POF_LkDA, J1. DR BEN, Jusdcc. lie plaintiffs purchased i- ll free-de.l1. `: house on Purchase Slicer iia Nc,,v Bcdford adjacent to land un which the defendruli. operaT.es a bakery distribution C--n1C.r. Bakery dciive ieL art: -m--de 131 i, ticl:; ai)d tractor n-ailers, and, in order To insure the freshness of the product, some deliveries occur between the hours of midi lghT 2 --ad 7-00 _A.M. Cumcnding that the noise from f1e Clucks, is a nuiszinct, the pl2.intiffs brtyUght this action to enjoin Laic nighttime. {early morning) deliveries to t'le site. A .fudge of the Superior COltrt denied injunctivc relief, findin5 that the utility of the aefendaut's conduct far oui cighs The harm to t11c. plaintiffs. lnstead, *105 he awarded $361,000 in damages, not for the d:ir?nution iz value of the plaintiffs property, as. none wa shovm, but for the "nuisance -which has : 1ltcicd tic sleep." The. eviard was to compensate. them "for all paST, prt�Sent and future damages they :rc likely to undergo." (il In tus appeal by tfic dcfcneant, we must consider '.:nether, Under C1TC;1MSJ_':1C:�S V-`1'_crC an ia- jL'nC11CQ 11; too scl'erct a rcuiedy, darn gcs ma} 1-.e awarded, arid, if so, whether: itiev may be rccovcrcd by dic plaintiffs L^_ LLisl cast. - lO be decided is �.vhether it i;. rcasor2blc to require that L COSI--tee ham to The plalrinTfs--o the dCfcnGciii�s socially dc!s ra 1c! activity be borne by tl.c e h.ol'i lhz.L, uC 31%�'uIucc' tyle ree.UV2r' Oi &W uLej to ilil5 CJJc lb riot app, Opria Te, lu ccn,ziiding that i. is jLd2c't� Lha, Corr. (v W_ -ST 2003 No C'1.aun To 0--i'-1. U.S. Go<i. 'Wcrks 12•' 15 _'003 12:1.0 FAX 617 542 2241 IIINTZ LES IN 596 N.E.2d 394 (Cite as. 33 nlast..App.Ct. 104, 5961N,E,2d 394) its ac[r:i[iCs de not contirute a nuisance, the defenc.ant re_cig li�cs i_'lat "Ctjhc lav; of nuisanc: atfords no rigid ride to be applied Li all instances- It is e1::stic, it uildet-talces to require. only that which is fair and rcason�:i'ilr• under all the circumstrncea. ,s. >_ 216Tvfass.4S,.4�u. 104 N. E. 371 (1 '14)- i5'hat the dcfcndant fails to acJ-i-.oaf1cd4c is Lh:.t, ruder thee curent law of nuisance, the cieria) of an injunction is not ah-vays a prcccdcnt for 1 -he de.Tlial of damages. Evetl where the udhry of the dc-fcnda.DV.,, conduct oulwcighs rhe g ra': in! of thee, harm.. a coup may conclude, in soinc circ.iLrnstanccs, th=t cost of carrying on that sctivit}- shC,rlld be borne by the dete'ndant; therefore, the �c itis } is a nu ! arrcc, just f, in, [oil action fol' &Lma2e,," Prossw L: Keeton, Tops § 88A, at 631 (5r.li ed. lyo4j. i;ec also id. § 89, at 641. As stated in cornment d. Rr.statcrnrnt (Second) of Torts ti22 "11 �? "lr rna`r be reasonable to continue an irrportar,t activity if pay--mcnt is rna6c for the hai n it Is causing but urveasonable to initiate or contin:ae it Without: pav_r.-." SCC also id. 826 COn1IIlent I. Gihl�;: i. Shov:t: Ana :. 23 Mich- 447, '456 (1S71); slo,44 F' -2d 621, 624 (D.10ass.19301; DGr,?iier'y. iiit'cil7 i..,_' Centc)?! Cu.. 26 N.1 .2d 219. 226. 3109 N.Y.S.2d 31::_, 257 N.F.2d 870 (.1970). °106 While, theta' hr;.s been no explicit adoption of this concert by Nlassachusets de .isioas. the foclts in ou)cases ou tht: balance of equities al -id what is rcasonabie under t_hc circumstanccs, as well as thr. fle;:ibility of rehE i' afforded, leads us 'to conclude that ,,he ` u rcmc _Itl!liCial Court A•,•'ould concur in this approdCh. For c.:arrple, in Par«o'e; v. Fe;reir�. 345 Ma:::.. 3,09. 15 122 T T. 142 (1963j, Justice. Cutter, v:Titin . fnr the, c.otlrt, dctcrr*m_incd that, whilc. ;he p,laii;n 1+'e:: -e enhfled to ha 'e the ollei sive operation (a p-:4-c"cry) tcrn; riatcd; an injunction L; ould he dela,'ed to allow for a reasonable adjtl-stmt:)it of tia•_ defendant's affairs- During the pci iod of delay, additional payncrits `Vere. to he 1 -made to the F•lainrOffs fOr the harm causcd. We scin little di;: ezer.ce -fit prin.ciple in alloying a defendant. to conlizu is oporations for a longer or more perp'=n:II1 timo li'llt V✓lth 8 fnlli LTent obligaiioll rP Pay a plaintiff for Idle loss. �., - f21 ,96 Bcfur: rccouzitilig the,r:1_..ts found by the judg , vWe T= int ettt that we do riot consider ourseh'cs bouD6 by his conclusion that it was unreasonable for tite dtff=ric',:.nt to r.ct as it did v,,ithout aayina fcr the ha-ljn tl':3t :x:15 in(licted ort L1, plain ilfi �. �7r 11ei.1:Ci 3 nw sa_ncc c?.1sts is factually based. 17').'T f=6 N.E. /X0 _ ii-1d—n_ Of al rlulaaalc. errinra;es riot 0n1" fact,Lal CeterrrL'r1at10n5 but is also E- ooF, Pace 2 11 a rutl^ as to v.'hai is is are sUi lcieni .trt to cor:sti ute a nuisance L*d.r tic cicu r,ticcr, disclosed." f:csper v. ii'.Poci dors, Ir.0„_?J1 !,,lass. 24 25. 1.91) N.F. 149 (122.5J- it "is sufficiently mixed question of ,av:: rid fact to pc=it an 2ppc11atc court to resolvc. Lhc issues at least urherc Fas here] the action below t3 ied to the cow Vebnse Houle. Au 1;1 r. 71 Han;Fshire ins 402 Mass. 27. ,1 n. 4. 520 N.E.2d 493 (19Sc), quoting with approval thc. opinion of thr Appeals Cour: in The carne case, 21 MijF,.t't.-.ApL207. 215. 507 N.E.2d 7S7 (1957), which in turn quoted from Cook A en. Inc., 573 F.2d 685, 697 (1st Cir. 191M the Ir! h�,"•,fr�ose, fi.-ldi.rir ("1i11-iCrCi!i LLni'n0V✓a1=iLll1'' ) ;vas made by a. master; in C%J!' the finding ("reasonable. diligence") Liras made by a judge. Sec also Shepard v Finance_42�� s, or,Rununa, Inc:.. 366 Mass, 182. 189. 316 N.E.2d 597 (19741. *107 We turn to the facts as found by the judgc and occasionally quote iron his findu;_as. COnlinCntal F:'.ikins Compm illv`s facilily and the plaintiffs' adjacent il;rce-aecl_cr house arc. Lodi iocated on Purchase Street, a major nofth- .out.h traffic route. in New Bedford:. "T1lc neighborhood surrounding the plaintiffs' preperty has been co=i acrcial, biL5y and fail}° noisy for decades." Also abutting, the plaintiffs' buiiding arcc a pailaang lot and a urge commercial l undry that causes noise and e-ni-ts odors. Trains run on railroad hacks next to. and Vaiallcl N,vid>, Purchase Street. Within mo blocks of the plaintiffs' building, arc a Major si-s:-lane hi^_h:•'ay (Route 195), a major cyst -est traffic roltc (CoggesI1a1J Strect), and an all n1 11 i. Sunoco taconite station. The defendants binding has bz.en used in connection Ntd1h the baking mdust_y since 1915. Acquired by Clic defendant in 1926, the building was operated until 1965 as both a bukz,y and a distribution facilit},. From 1965 on. the properrr v.'as used as a site for distribution of bakej:,r products, and. i:rltil 1?SU, it also housed a th-ift store -where the dcfciidarit conducted retail stefi les. Aer the ierrrllllaTi On of 115 L':�i.1nE i2t, :C.la'_Up CSat1USL, LRC dcicndant's actu'itics gCEC:.ated less niehmn;e noistf than before. The defendant's use of the building 'las alv:ay: entailed iii-hcti_ne activities. Theght,imr schc;dulr of dclivcrles ber-veen 1.2:00 i-riie-night and 7:00 A.M. has been in (flTi ct SLlcr at leas- 196_. Alio iO,C'G P.M. ---1d before 11:30 A.M.. &L-,-en'es to the Nc-w Bc-ford facili-y only take place oilcc a night, The pumpoJe of ir1C,,�C dCh': ?2CS Is to iicshi�css. :':hc S:.LG1: T'1Cs: 1I7'_r,0 rant �In-1 i; ln the b:=i:e' 'f Co1)r. (0 Test 2003 NO Clahr, to Orie. U.S. GOvL Works l 2 15 ":003 12:10 FAX 617 5-1'.2 2241 MINTZ LE\ IN 596 NT.F_.-'d 394 (cite a;: 33 it'1:1ss.App.ct. 104, 596 N-E.2d 394) bus _D :ss," Products havinc „t 'ti,holesale value of sevcn nrillion 6011ars and a rt:':all ulur of mea Ily nine milhorl do'lLrs are dishibuted anrivally from the New Bedford fncilily, where the defendant employs th...irt}'- ei"Zht p2 -sons. Eccausc frcshness is important in crdcr to be competitive, an injunction prohibiting ni�ahnirne dcliti=ernes would ncccssiUte relocation of the defendant's vant. it would cost the defendant aporo'•.irnatel-" S i .7 million to build a nes'- disnibuncir: site. '108 T11c pla 1d1s kncw thrre was a bakery business ncll do: r when They bought their pmperr(Y for a35,90G- in I977. FFN21 The 1977 price reflected the property's to ;,.tion and the defendant's business activities. F\T1 Jose Escobar testified that at Lhe time of Trial t l;e;�r properr;, was worth S) 55;QO O- He also kestificd that -lice conducts a _idiae business there %x "ih three trucks. Applying a bila; cin— test of harm io die plai.ot%rfs acid hardship to '_lc: defendant, the judge found that injunctive Ieliet irappPopriate because, as we indicated calker, "tine utility of the defendant's conduct far outweighs the harm done to the plaintiffs. See 't^397Resta.terncnt (Sceond) of'foris S Y26._LE� fo=nd; ho,;,evtr, that the sleep of the piainuYfs w':is affected and Thar the plaintiffs had Buff red d:�„aCe ll -a-- to the utueasoaable interfere.n.ce th tbeir use artil enjoyiiiem Liof their property. .s cornpcnsation, Lho iudge a.- dcd ]herrn x36.000 to C0Vfi' all past., pre::ent, and f3twJe damages. FN;. Thtc "black latter” of � 826 pro�'idas.- "Au i:ltcntior-al invzsion rf another's interest in Lha use and enjoyment of land is unrcasort.blc if ,al ihr, of the har-r outT•:cidhs ChC ut7'I J of the actor'; co!"duct, of (b? rule ha n cau:scd by the corduct is ,eriou�. anki tie fin;,nciai bt . de.n of ccnipcn .;ttin for this and sirnilar harm to OIItCt;; V'.iu.l.d Ilol Irtz'ke the Contin-u3tlon 0 i the. conduct not lcasible." Ur_cer Tire Restatement`s formulation, The "sirr4iar barrr, to oThcrs," e.' to Lh:e piaintiiLt' tenants and to otlTer nearby rc;rdeLi;, rnusi. be iJkCil L7t0 3CCOLUIL 1ccllOn:}6, co=icnt f. Since the judge 0 006 PaLc did not cori iucr the h-,: rn to (triers, aiid ^-e, in any event, hold that ilio plaintiffs alenot endthd to recover., • . do not reach the question Whether or In Whainizinirer jU, r, evidence should be considc:Lcd whcrc the action is not brouwht b�,, a class. Whilc our cases have not discussed Lhe factors v,'hlch deterrriine whether the plaintiff or the deiLndant should bear tine loss to tiic plaintiff from conduct which is sufficiently in the social interest th-J it should not be enjoined. we t:nink the same (or similar) considerations which havc tiaditioi-L-hy informed OUT nuisance. dctclr,_ination should also be applicable in deciding v }Tether the less severe remedy of damages *109 should be awarded. This is consistent with, what Prosser and Keeton suggest as some of rhe rcicvant factors: "(1) the asnownt of tine berm resulting frorn tht interference., "(2) the relative capacity Of Lhe plaintiff and the defendant to bear die lo�,s b, %way of sii11f7rtg 1112 10;is to the consuming public at laryc as a cost of doing bu_;irtess or by other mean", c,ucb as Some type of ir1SUr3nCC 1- "(3) the nature of the plaintiffs u5c of his property; "(a) the tialUrc of the de%.ndarit'S USC Of his propc;ri; (5) the n;Ttu*c of lhr. locality-, "(6) priority In time as to the respecfave activities Of the plaintiff and the defendant in tlle. arca." Prosser & Keeton. Torts 5 89, ai 630. 'We also fiend iusu'UCtive the authors' examples: "Tho,ze who build IesideDces iii L aJral area, aGd beyond the Iimits of a c.it:y and zoning regulations and the protection thus afforded. do so lot rruny reasons, but Lhcy =-,,' justly and fairly be required to accept certain hazards of so doirrt. ivloreovcr, if an industrial enter iueI fast zn-ived in an area and plaintiff at a modest price pu-chased a tract for residential use, the f. cz frlai L'S'j-qc aDG, t;n101irieni for UCr1 3 pllrOcC 1 c'1 C'=t-i-i `c_! ' ai.2Cted 1s LOt gcni.� ally sp2al in`, a S filCiint d-'Ifllcation for reiief." fbic�. Appiytne thele Or <M:ilot-OLIS LU L1C hLldings of the judge, r,z conclude tilai tliis is not a case where it is reasonabit to impose upor. the COTT :;, %Vest 2003 NO Claim to Ori;. U.S. GoNt. Works 12 15- 200.3 12: 11 FAX 617 542 22=11 h1INTZ LES Il\ J96 N.E. d 394 {Circ as: 33 Nlasr.App.C(. 104. 596 N -E -2d 394) deleadanr ibccost of the, noisc encounfered by the plaintiffs. Wiflc: the plaintiffs b.a,'e 5ufeTed sonic physic it discom of L:., they liavc obtaiaed considerable bcn-lits by conning to the area. They purchused the pioperty at a price that rcflccied its location and the Jefendanr's adjacent business; the proparry has incre—,sed considerably in value, scc note 2, supra, and h ., as Jose Lscobar Testified, .pecial vtiue To bin, as 1-1,: can store his materials and (rucks on 'uc. pioper y ;md can rnaintain his eonsutiction bu iuess from t1W site. When they purchased the prUpC.Il}'; "11� the 1J1a l�itl 1. Qe1'e at�'aIe Of U.AC' Uai:e I}' business and the i the arca wzE, in large measure, commercial. LFN:� FN4. Tbi,,, zoning b;j-1a-,v leas not part of the record and they judge mHdc no fundings as to 2onirig. See t;'Orshe tip. Graf 323 Mass. 498, jiEl. 82 N.E.- /95 (1948). In dete1rnjn:.ilg wheilier a nuisance exist:, the .-nmmctcr of the locality is a ciicurn5lance of c eaT 1lriy01Vi1rCc,° iiQ.�i72r v. t1_l. ;'j�io(.-,' C'. Joi15Inc. 291 at 2T i 9G f ;.E_ 149_ Moreover, while colmn.. to a nuiarrc- in ?iself do:5 not bar relief, it, too, i5 a significant fac.toi in dete.ni>ining `**398 what n� fair and rcason-able. "No one can move into a quarf.er Siven over to foutndrics and boiler shops and demand t'ne quiet of a fa,'rn." Stevens RoekFort Granite Co.. 2.16 M ss. at 4`8. 104 N.E. 371. iliac is here no suggestion. that the neighborhood is cltan.Fing or becoming less indusixial, sec ici. at 4S9, 104 N.E. 3a Pemloicl i' Fe)-!rO,a 34') 1�4iss. at 310. le' N.�..2d 141, er th-,t by NNithhokhng damages the court is arcventing changes in Chic locale thcrebv "ar:o tjiato fire cl:fe11 .. a good dtal of the value of the adjccning land." Cf. Richmona Bros., lac. v. 359 Mass. 265. 26S. 268 N.E.2d 680 (1971`1, qurrinv from a predecessor draft to ReStazeine]lt (Secnludl of Toils. S 8401), coiut'Tieai, b, _Althouo-h th-c }uc �,e rack• no findings concerning dr. - relative capacity _f the plaintiffs and the defendant to reduce,, LEE, ei:Cct;; of ill-- noise, Escobar in tcsti y1.ng 3c%Siqu'l2.dSed that hem did ilot use al] ai-T COTldltloll.ey in the surnrar:r anti also indicated Lhat lic did not thin: fhe defendant's o., -Tr to build a wall and a cover over its trucl:iug --- Gliv,Lie 3 ucu:d be h:lpl ul. lli SunL N' . Cor :lU& Lhit lhcrc .:.as error in the `,,., Y of carnia e; The jue=rent fe- the plaintiffs i_ rc.vcr_cd and iuu�in;int is to enter for the defendant. Su ordered. 696 N11 -2d 394, Nlass.App.Ci. l()4 ENT OF DOCUT'1.FNT Copr. chi Wst 200 No Claim to Orig. U.S- Govt. Works 0007 2003 1.21:12 FAl 617 S42 2241 199 c, iVL 11841(A,I (Cite as: 1995 N),iL 1183104 (Mass.Super.)) C Onlly t:RC NVc_tla',m cii8tloi1 is currently available. Super or, Court of lvfassachusetts. Raymond A- BROUSSEALI ct al., V. Y'j,EABITANTS OF THE TO"A IST OF SOU-MBFUDGE. No, 950085013. Feb. G, 1998. MINTZ LEVIN 01005 Page, 1 1998, beginning `vit,h my vie;vllig of 'tile property at issue.. Based on that vic PG. and ilic tcstir"Ony "Incl t*.hibits offered at trial: 1 nh"Kc :I -c: folloVvin�c' fitrd':nes of fact and conclusions of law. P[NDYNC,S OF l .a CT, CONCLUSIOATS OF LA'W, AND GJtDER FOR jUDGIvIENT G,A-NlTS. "1 In 1953, the plaintiffs, Ra;rrlond A. Brousscau and Al&tda. M. Drous8e3a (til.• "Biousseaus"), punch sed r. lot I': th a sin.g).e-faLlily home at 153 Hi,,] -_?and StrC& in •Solttt-lbridcc--L.ot 8S. The lot was located at the base of a natural drainage ket-de aLjoia:iDg a \vetlands ilrea. After purchasing the property, they elc:,ired the area behind tlie House aiid seeder it to creat: a Lawn ihsr reached nearly io the bw1king of the nearby brook, }sown aptly a Nuisance Bk-ook. For many years, the lawn eras reIi6vtly aiycel'Iainl`' dry cnOugh to be uscd'Dy his clliidren. Then, tfl.er cleveiopmenis were built on ne.arbv Pinedale tl id Oak Streets, at elevations above lhci_ home, the. +irai rage. onto his land appeared to increase, ane his 1a vn become lveL and spongy in ail but the kinest of seasons and flooded dut'irre heavy rains. A5 ;i resUlt. L}e BrousSeauS; file suit against the Towo of Southbridge (the "Tovoi") clairrinc Mat the Town created a Nuisance by failing to prevent the floe ofsurfatce N ­ to onto tricir propertv._ � Fly' 1. S i face Water is, deflaed a8 "Waters iT )m nt Ln, nKInmg snow, sprtlt+LS, or seepage, of floods taut lir- or flow on ulc su :ace ref th, eal*li and nallralk sire d over Lbe .rrokmc, Cut do not form a part of a naalral ';; ercollrse or Ia;,e." �Esi:i�C.'.iS Len•.^, li trier Scwer Ccnmiisslon, 421 Pvfrtss. i 1.-'. 1 1 S n. 6 (199ci1. All 7:-,arics waiti" l tlleir n -,nit to a jut; Ishl, and the tv.o day t:'ial ccwiitnenced beforeme on January 21, FINDLN'GS OF FACT Whrn Ibc. BrousSciuS purchased Lot SS in 1952, ii u<s located, as itf is today, at the end of Hiebland Street, at the base of a natural kctic. While Highland Street -as developed in 1953, lirtle else around it. ivas. The area east and southeast of the property, which sloped dowel into Lot 5S and the arca irnmediatcly around it, W8s cnt'1Giy Lmdc'veloped an open; naturally tivooded area. The area south. and southwest of Lot 88, including LOT 89. a 2 1/2 acre, for at the very end of Highland Street, vas largely wetlands, unapproved for developmeni. 1n 1982. rhe Brousscaus purchased Lot 89 %vh-!cil, along v.�ith the wetlands area to ir.s south and southv,,cs1, renvdns tuldcvclopcd today. Lots 1-8 and 89 are at rouzgWy the los' elevation pout of a natural drainage area. Surface v�,ate.r hat rally fa1Ls from the hills at higher : ic;_-t7on:: to its c -St an+i south, and finds its d_sT n2tion SL} or rear these l vo lois, either in the wetlands or in Nuisance. Brook. The. �.ater that enters Nuisa.ace Brook iE tlrLs. -»atersLtd flows t -rough Lots S9 and on Lhe easterly side. of Lot SS into a pond mo lots north of Lot SS, where ir. eventually feeds into a rescrvo- funhcr north. To the eastof this narural drau1.acrarca, adjacent to it, lies a separate natural draitage area, which is where defacec waters naturally flow flom the lti_viier elevations to the uvts'c and southv,'cst- Aithouol these two natural. dl3inage areas are adjacent 13 esch other, they arc quite ,;epamtee and di51lricr in terms of the origin of their surface water, aad arc not hydraulically connected. Flooding ir1 one area 1]35 little -freer U11 elle OIl1Ci, although It limy slightly 2ffcci. the walcr tat�lc, .^k Nuisance Brook divcrsic)L %;,'3s crcatc6 to rile southeast of Lot SS, ki the wetlands urea, which dli'e:1; SOIDC. of L11C 5111-aC: '+�'�t�.i" 1l:Om the rii:T'.]r-1 drainage ilrea U Otind Lot SS io ttic O`lllc', rianiial d.aWaCc. arca. some t ane atter 1195_ GLf vc-1OrC 191 111 Pr l'-:iic de elopers baJJ,' hoc_in^ d,-,%clopmcnts to the east .Ind south of Lor iii, Th- Finedaie Scrcct dc•:clopmeni, located e3sr of Lot "'IS. -.!ES L ili on the ileo slopes of a hill -whose base was close to the _d2c Oi Lor 9S. The Water tl rat dxf Aned Lou? Lhc Iwo shies of the hill narurally collected in a Lniin ar the. bottom Cope. <<l We,_ 2100. No C 3- t. Oris?. LLS. Govt. \l or:s 12 ' 15 21003 12: 12 FAX 617 542 2241 1~IINTZ. LES IN Ci_ 0(j9 1993 WL 11'0410 t (Cite as; 1998 NVIL 1184104 (1 �'Iass.Super.)) of the hill, and a `rainagt pipe emptied the wester into a "paper street' (actually pari of a ntighbor's drivev,,ay) that naturally flowed down the slope of rllc srreet onto i_ot SS and eventually into 'N-0isance Bioolc- Tl,c Oak 'ctrcct devtlopment, south of Lot SS, had two catch b2;ains that collected the water falling do•,vn the hill optce Oak Street, and these catch basins were connected tr: a drainage pipe slut emptied this r'atcr into Lot 89. By 1981, Lot 1`S was becoming v;cUtr, and The PrGusscarrS Irlili'.0 dent and or. the To'vvn of Southhrid+ e to :tddress the problem The Tori -1-rend to1Lredce; Nuisance I3r.00l:._ which had been filling ith sand and sill'. In rctutm, the Brousseaus .rgrced To execute what ,vas called a Perpetual Flo'., -'age EasemLiut, wliich released t'hc Tov-n from ty dant .Aaj:;t:is rest_itin^ horn its dredging of Nuisance Drool;. The uledging helped the surface water problem ,_ ndy temporarily, Nuisance Brook over time retilied with sane and silt. The BTOUSSeatt; have articulated three scparatr cutirplaints to t't,t.: Tolun concerning surface water drainin` erste their: prnp�ri�', which the;' blanc for the ucrcascc wtrnes and flooditlg of Lot 59. First. they contend hat true. alrfacc „atcr coming dovm the steep slopes or Pinedai; Sheer Onto The Brousseaiu property ;.ro,'es with etezt velociry, and eojlsequently L,ir:g5 v,rith it considI. al=lc sf1P.c1 and silt, which is f lino up Nuisance Brook. J n addition, the velocity of the water when it reacher the Brousseau property from Pin' -J. -le STreet has produced erosion ort their properj', adding to tht sill problem on Nuisance Brook, S.cond, 0-,ey claim that a great volurne of Surfacec nater tom Oak: Strcct flows onto Lot 89. th,IC eby raising H)e water level on their prope-'iy. Third, the $rou_: caul complain that water flowing, (Io«<r_ 1-L,2hlaftd :ityeet is t1oNvillg. Lrito the furthest wete.rly c.orr:er of Lot 89; raising the water ie.vel in t c %Vctlands 331 t'_t1C S:.paratt. drainage arca to the sout;: west oT Lot £,�'•. Tl,e Towii has ro de good faith efl-ot a to respond to Lhi7sc complaints. In 1995. it again dredged Nuisance. BTooic and 31:o installed a large concrete sz-dirnc �:itz lion clamber al ih:. base ofPirrcdalc &TCC , n-izr tire- paper sT3cer, to catch and hold ary sand from true road :: a i Coiji; is brought by Chc, surface waters. Th-,- conc-c�c ba:;in is pc edicall. checked and is co leering 111c safid ie acc.orciancc with its it has yet to ha'1c. e::ceedcd its czpacity_ With, respect to 1•1i^h =d Sn'ecr, The Twx-n has ayrccd to build a r s,.ti'ala arc= clian:rir!.l IO elir;;inatc �Orr�2 of the overflow ficin S re:r aLC Clrc:.t. it role the !\ulsclrcc Stool: diversion. 11;tgc 2 The Trousse-aus contend illzt th sc cffoiLs, hrjv.cvcr %vcll intended, arc inudccluutc ;trd seek injuncti e relief to abate the alleged nuisance from the drainaat Of SLIrfaGc Watcr from Piacdatc, Oak, and Hilhlt�nd StreetS Onto Their property. FN21 %AFlrile they seek a ceneral order directing the To% l to abate LES nuisance. they idcaltify four specific srcps that ih Town should take to eli=,'We OT ::t least diminish the wetness and floodin_ problcr s rrsulring from the flow of sw-face -,nater onto their property, and ask mat the Court order the Tov; to tine, tach of these STtps: FNT2. The plaiu.tiff do not see;: Tnouey darnaus. 13 1. The construction of a drainage trench and v:tir ncaT the p;:per Strcct off Pint.dalc Sfrr.ei to slow the velocity of the surface c arcr corniirg onto he Brous seau propetT;, halt tate erosion that has caused Nuisance Brook to be refilled with silt, and catch the sand and silt that was not caught by tric sedimentation basin. 2, The collcct]oP_ or the 5tLrLcc. ',vatcr fToT'_I the v'vo caich basins at the bzsC of Oak SL`eei and the const -action of a discharge Linc hat 'a;ll d Vert ;iris surface waitr into the \t,tisance Brook diversion. in die ad)aceri.t ` ai tershe.d. 3. The construction of a new catch basin at the intersection of Pinedale and Oak Streat, Thai will catch some of the surface water that currently falls from the norib doi�z Pintd,:le St.recr into thc paptr street and divert it into the discli--ge line that v%: 11 eventually empty into Th:: _uisance Srook diversion. 4. The conslruciion of a trench in the dike arca on Lot 105, offHiglilaod Seer, in the separate natural drainage art -a, that will be dccp cnou-,lt to hold the overflow of surface wa:a:r cora from I-liahlanu 5`ucct. The Brousseaus are ottly pa- rely correct ir, esti ibniint the 1n:reasrd `.:vt(pess and flood. n, Or'_ Lot SS to enc drainage problems-esultin: T;om the deVeloprneaT of PL edile tend Oar: St_.ct_. As their c,7 -c -n Leonard Jalbcrt conceded, t)7,c5d cdC1'c10pILcP_tu d1G LOI appreciably cll:,n'-c the a3rount of waier that ultimately ended up in Lor 05. \}Fater tiovus dovvnhiL, v'Ii-th.er abo•:c or bztlov- gi ound. and ;v:cLr:l cvcatually end up in the ba,: o' : t ktrt.lt cvti: if no development had Occ L.UTCd. fi;c do VClopnicnts. especially the paved street's, chanced the vclociry of tliz 5urf.:cc, water corrins inro Lot SS. not its overall volume. Therefore, tiler_ is no . ideac_ tha: rh:, amount of surface rater ilo-ing into Lot U is any Copr. f- Wcst?tiO3, No C1.aini To Oriz, U.S. Govt. works i'='152003 12:13 FAX 617 542 2241 MINTZ LEVIN CJo10 199S V,7L 118410.4 (Cite as: 1995 A'`'IL 11841Q4 (Mass -Super)) �Ic3i�I nGv: Lb'A u7 1953 Wuzrl ihC Broubscaus -vurchascd. the prnperim; it i. ;imply geiing tllcrc faster. The ve.locii`; of the surface -+ater Is riot without consequence_ s n,:c it i,_rinl-s ,\-iLb it the sand from the paved stseefs nd increases the erosion that aggravaies the i:.timz- problem on Nuisance Brook. T',e scdimrnlaliCt'r basin btu_lt by the To`r�� in 1995 appears to hav,: successfully captured The Sand coning. dow-ii Pincdalc St=cct, but it has not sj,Dlllernily illfctirfd tit erosion rhalr leads 10 the silting of Nuisan-, Brook. Consequently, t11e velocity of the surface vat r corrline down Pinedale Street has son,; twhai addc,I Co the Nvc%1c.5s a71d flooding, Problems of Lot 8g by hastening the clogging of Nuisance Brook fuotn the silt.. which in tun slighily raises the water table in thcimmediate area. To be sure. Nuisance 111:001: lvould nattaatlly fill ,, ith silt eventually ;egarejess of the erosioii, but the erosion si joticantly spccds up that process. Tne developr'ne;(. on. Oak Street. canrloz be said to brie aEliLrra:atcd 'hg, probic.a-L sine. the w:.ter from, Oak Srreet i[ows rite orally atld vnth ordinary velocity ir.t0 this dra z,;g,_ arca. Tl_c "f_ -X" suggested by the. rpt[gSca,_= Y.OLL _� change t!1C natural C.o,1Se OT Llll5 surface water Iq divening it To the Ajuc-enl, h)'drauliul?v set>;trate wat:.rshcd of the h?uisance Brook diversion. Coosequent.ly, it would undo nanuc., not thc cilc.cts of d.C.vcicpmcnt_ ,4 The surface grater coming, fiom Highlaud Street naturally flows irl.o dic adjacent tivatershed, wluch is hydr,iulic<illy uncoancctcd to the watcrshcd in which Lot 58 is located. As a result. the Highland Street trench su�sesied fly titer dcicudants would also not siErificsatly ::ffcc`the an:ow;t of vvzte, on Lot M I\foj,eove,, t rue was anoiher chzngc. in the arca that ailccicd thc. 'rcta'css and flooding on Lot 88 tc a greater degree Th'ia -hese tlot[SiDg, uCVCl0PMent$- Ili 9f' -ben the E-oussezus first moved in, there %-a s a pond on NuiMncc Brook tvo houses dovrn floor them on Highland Street, but the pond was small and vvas not dammed. Shor,_Iy zfier they moved in, their , nci'hCo_ b_tilt a srizli dam to lis-[. the flow orf ,x%arcr on nuisance Bro,:k as it mo,)ed 'fTorn the Brousscau prupert� do -n _s t the poi --U3 into thedi.stanr resc-`sots. In 199 tic present ov+'rter of alis properry b Lilt a nc,,v. fnK jet da -m Iaisckl the a:et level on I'Brook on the Brousseau property, As Mr. Brousseau conc.eded Ln his tesiir-oay, ;`Its : ig`er da u raoadc the :;eb;ess al;d flooding, probiern-; On Lot SL "considerably wofsc" and substantially adocd to Lhc slit problem ill Paye Nuisance Brock. Ln shod, the only shortcornim� of the Tu vn's dr2iD:igc. system that si n ficanti.; a`f:cts the wetness and floodL-tg on Lot 88 is rhe failure to slo`�,j t'tl: surface %vatcr corning down Pliicdale Street, because its present velocity has produced erosion wEch has accelerated the sildno of the Nuisance Brook and raised the •water Icvcl inthe. ininlediate arca. I he proposed projcer on Dal' S recr vrould ]i1tr.11' rcducc the :vemess and flooding flu Lot FF., butt it would do so by diverging a Iaig.c quanutti' of surface water:, that naturally flows into the Lot 58 %.vatcrshed into the adjacent. hydraulically-cpaiatc watershed. Tile proposed I-lighland Suet proje_t would not appreciably affect The waicrshed cont-aining Lot z,8. CONCLUSIONS Or Le VV "Ir[ Massachusetts,Liabi Y for .. pri.vate tluisance caused by the flo- of surface '.raters from -- landowner's landowners propert,, to &,at of am adjoiair_G lando,s•ncT depends on wheiller rile land0lvnec is rrtal ilii a reason,:iblc usc of his land-" DcSanciis v. L.,l?,t iirtrer & slnl .?- Cr;nt ni .,ion, +23 Mass, at 1 16. '�s da. ci ibed by the Supreme Judicial Cotu : Under the iz- s, ;able u5c doctrine. ' ca=:h possessor is legally privilefe.d to make a rcasorlaole use of his lurid, even though rile flogv of=urfacc water= is altcrcd thereby alid causes sorye harm to others, but incurs liability whcn his han-nfal interference with the floxv of surfaceu'a:t::i� is unrcasonabl_c " .4rmstrong a Francis Cor7., 2f,, N,I. d?0, 3' 1 Reasonableness is a question of fact ... based on consideration o? all the rete ant cucul"ristarlces incluciine t.h- 8m0uLT. of hi=.rrr1 caused, ncc fore=ccability of the Kann which rr.sttlts_ the purpose or 7uotive v iih which the possessor acted, and all other rclr•unt trrttttc- ... The ju'ors also roust cousidcr wi[cthcl t , u ility Of the possessor's use of }lis laud our..=re} hs rhe Cravii ✓ of the harni which results from 1Ls alteration of the flow of su face ,vatcrs- ;','bile the 5upreirit Judicial Court 1,,S dcCl[ircu th1H thereasonable use, docuulc appLlies to public 1 nCO—ncrs, id., it is nor all clear [ll=t the dCI'UII(lOn of reasonableness is .h= '<aL %vt-:n the p:ibLc laiidov,-jet is [ne Ale -c6 pCrpctTator of the n-LlsanCC. On one hand, thc~ Supierne Judicia} Court in DeJu?.c:`.' declared that z, public 1sndC„uncr niay not be liable for nuisance ever, -hen ii. coulr- Ucd lte-ligera d:veIslon of .;ori _c \L3tCL because the public: landowner may still have mane a reasonAit Copr, to `fest ?iri? Ng, Claim to Orin. U.S. GoNi, Works 12%15•'00.1 12:11 FAX 617 5d2 2211 MINT'Z LE.�'IN �oii 1995 WL 1l&41U•li (Cite as: 1998 XVIL 1184104 (INlass,Super.)) use of its land dc,q)Jte this ncgligcncc. Id. at 116-117. However, fou_-tecrr. yCars Cartier. the Supreme Judicial Cots! dcftncd a tuu .<,Lnce by a public !a_ndo«-ncr in the broadest pos_'i?lc torn-: talc. Lh1n Lh-ll' 'fore, in the absence of ecli.Litablc consideratiG:is not apparel -it in the record before. us, if ti,c. additlN]1 drainage onio Triangles land jrtributabie to rhe construction and maintenance of the road caws:'- identifiable and more Than de lnin,in>is darnege. an injunction against its c0nd11LI;i1iOn v,ould be appropriate, leaving the DI'1rti to rr,kc. other drainavc a_rrang•cmc-ats or to talc an easerne r t. rr;ungie.. Ce,aer, Inn % De,ourlmehl. of Public Tt''nrr_s 386 1y13ss . US S64 (1952) - As a c.cro1141y o;--tbis holdu)ja, the. Court ruled that a comparison of the cast of an i.njimctivc remedy with the dam.ae to T}la plainiiff need not be made in. a a.. nuisance, action n;3irisf :: public. u.,.rcndant alleging the. dischaTge of surface water onto private land, "because, the defitudant, havine the povicr to take a. drainage easement by eminent domain, can limit its cost to the dacaage: inctu-red by the adjoining larldov.'l ped' due t;• the. encroacliment," ICS'. In short While The. Supreme Judicial Court in DeSonctiy held that a diverinn c,' u -face neater that las sig-wfic.ant CLOIIGh to be found negllUnt by a jury did not r�eCeSbaItly consti*:Ute an ulveaSOnable use of public land (and therefore rnzy warrant no remedial relief) th-,CGllit. nil .' f:,:ltl4ic.' C21ite'1" held treat the dr'alila€e of surface ,:,gator Froin pabl c to private hand const-Lutcs a nuisance requirin ; remedial relief if it is merely idcniiihiblr.:md inorc than do n:iaiimis- \exile these st,adards appe.+lr quite. different, perhaps incompatible; tits Supreme. Judicial. Coutt in De:S +legis, fan' fi-cin ovemlirlg T'ria.ngle C01.ter. cited it in support of it; conclssion that the reasonable use doctrine applies u) public landov,'nlcrs. This case requia'es iris Couri to sort out these diffe.reni legal For the reasons given beio%v, lhiti Court V'ili be vuiucd by the more recent lcg,al formulation concerning nuisance articulated in DcSa,;c'tls, bran ir,;+, C�iL7g ti'ili bc. mfornieu by the. coi,sidrratinns announced in Triangle Court. While a public landovrncr, like a private one, is legally pri•rileged to rrrl;', a reasonable use of its land t•vcn thou i sash use May ali.er Lhc flow of surface -waters aid cause sortie hzrm to others, 1:e5wrecta', 423 Mass, at 116, a public :andowner rna}' reasonably use its lsd to c.aii:l lcf{•I haj- i than a prlvcte lands r-eI. larQel} bec"-use iT has so si-n- lc a rcTTif:dy to C 011:r.Cr arc 101 SUCt_ hc2Tri thrOUC-h t11e Ml -.Dr f Or a.0 ;ascrl. tit. T' -nen, _ � > -:ir ll•Za`C cat 8(4. Pagt a *6 Ir, this case., the only idc-r,bfiablc Flatten l0 111c Brcusseaus' property that may piaperly be artribulcd to thee colis,Tuction and rnaintenaiice of TouTi roads results from thee increased vclocity of the Sart?roc water d ainir_ LT -to Lot SS Lrorn Pinedale Street. The increase in the speed of this surface water has increased erosion on that Lot, thus filling I�'tiisrnce Proof: with silt, and carried witll it onto Lot a8 somnc sand and. to a lesser do ce. silt troth Pinedale SLTC L. The flow of Surface water itself dcv;-n Pinedale Street onto Lot ss cannot be ata ibutrd to To\:,r-- roads because the expert testimony proffered by both sides agreed that the eon`;irnction of the Ioadways on Lbc developments to the east and southeast did not chzngc the total amount of surface water drain ng, onio Lot88. lndeeo, since Lot H siL:. al. the base- of zi narural kel:ile, those. surface -.waters llr,ve drained Lrlo it from -die higher elevations to its cast and south zi probably since the g1_ciers left. The land in its preseat condition- This natural drainage of surface Water cannot be construed to coilst:itult a nuis.:nce singe "it wRS not attributable to the construction and maintenance of The rose!" or any other Tov--n responsibility. See TriaiieL Ce -%tree 386 Mass. at. 8 Q. The Tov n has aLtad}' tal.ti`1 rc.a:aonciblc steps to allC.ViatC the LID011tll OI Sa11d and, SL<lt Coll -i' -Ug ff0��`n Pi:nedalc Street by buiidin^, a largeconcrete sedime.tltation cba.mbcr .it the b'asc of Pincdaic SCrcct a.uu properly maintaining it i-0 2i"45t17"e' at lt. QOcv nOi, reach its capacit;, Howevei, thi correction does not address the problem of erosion, w'hicl) remains and accelerates the filling of Nuisance Brook with silt. In deciding whether this rernainin problem constitutes a nuisance, i look to all tliz rcicNrant cireurnstailces, including whether the utility of the Tovrn's use of its land is outY,,righed by the gzavitY Of the Laln)i. resulting torn that. use. DeSunctis -423 Mass. at 116. 1 conclude that; while the erosion from the high el.oci7' of surface water corning do,,,v Pinedale. Street is only a srnall pal? of the wetness and 11eodLng problem on Lot S8, it is noncthcicss a slgruficant sottrcc, Of that probiern. I futrber f lid fhzt. the Probl_,11 can. be subsliniially limini�hcd at relatively low cost through the buildin.- of the drai;aage trench aad weir near the paper street off Pinedale. Street suggested by the plaintiffs expert and by periodically decd L` -: NTuisance L'iook Lo rcmovc Lilo silt resulting from tie residual ctosion. These rerredies will not mike Loi 88 div, but ihr.y shouldc1_in inatc of greatly reduce il--ie dcG- cc. to v hien rhe TOWIi tins aggrav :lee ih- inevitable-,verness. ani 11oodL-1^ prong,"-rr- If ttnc. To-,wrl Cnooscs not to rer-nedY its role In This probl=m. then li rrtu_t take a draina!_e or_ Lot 8 �3d C'GFr. Cl �N`CSI - - �r0 Clsir IG Q i . L.C. CI0 t., `iT'Glii$ 1'_' 15/ 2003 12 : 15 FA'X 61 . 5 12 23-11 AIII\TZ LEV IN ? 012 ly9r WL, 118410,4 (Cite as: 1998 'W_I: 1184104 (i1'Iass.Su.per.)} compeasate the i;, -to) SSeans for the reduction in the `air market value of Lot SS resulting from the conscqucnces of ih_ veloci y of the surface water coirnng down Pinc%daje' S'u`CC'u. f NI_" I FN i. I do not specifically order these remedial step; for ta'o reasons. First, since they n:ed to be approved by the Conscrvttion Con--nission under G.L.c. 131. 6 40 ai;d 310 CINIR b 10.01 et seq., this CotL*t do-cs not ihavc tlhc authority to order such sips and obviate the required Conserv. tion Corr.,-nisSion rcvictiv. Second, there mty be other steps, equall_r elTectivc and less costly, that may accoinhplrsh this puzpose, and t.hC Court does not wish to issue an order that tivould p)-eclude better allcrnatil es. 1,�'o further remedy i tivat-ranted. The surface water drairdzig onto Lo' 89 from Oak Strcc.( drains thert naturally, and the) e is no evidence that any additional sLufacc. V:a:cr c tCZs the Brousscaus' piopertmJ as a t'_sult of this road'vay or fh_t the velocii-y of rile "'iter :s ariv "-stt . Tyle: B-.Cw�scaus' proposal v:ould ta1:c ware: that has rA%vays drained into the naharl drainage Arca mr ompassing Lots 88 and $9_ and iiansfer it into wi adi,,,1rdrii1 bjt separate draino2e arca. Tlhc. Broussthaus arcs not en itled to a remedy for a problem that tho Town did not cause and that pre- dated their pu;ebesc of clic property. See Escobar v. Bokf lig Co. 33 NUiss.A-pp,. 104. 109 (199.1•) court rni}' consider priority in time in coming to area, especially whcrc price paid for property retlectec e-istence of problems chat form the claire for nuisao,'t';. lneccd, granting them this relief would provide windfall to them at. the expense of t:�ie ('own: it woi. id me,a that the Tcw i v/ould be spending public a coney to remove surface -aier that ,r -as Ilov,ing. na utrally onto that land ::hen the Brousseaus purchased it, and diverting it into a scpaiate. draiEage .iren. thus increasing the fair market :dine of th- Bi�,�usseaus' land. pwrwially at the c mcnsc of adjacent property owt ors. FI`'4 P44. Siini121'ty, it should be rnicic clear that this Court docs not order $,c Town to build LI -,c construcvor of a trench in the dilke urea on Lot 1 iiD, cfT Hi^hland Street, to ccpe ,:it1h the ;urface water corullg off Highland Street, Shue 1-iighland Sect was developed -when t1hc: Brousseaus rnoved into Lot 88 and punch: sett Lot S9, ffds con: bion was Pre -stn( Page 5 at Lhc time, of thc. purchase and there is no evidence that It has ,IQLlftczntly deteriorated since that tint e_ I'v1o* ,over. this stLiacc water, according- io the pi<dntiffs own e;<pert, is fiowing into the separate natural drainage •arca, ,vhich is hydraulically unconnected to the drainage area in wbic}h Lot 8{4 and most of Lot 89 is located. Therefore, there is no reason to believe that the surface -waters flo-,N'ing off Highland Street are sienificaridy affecting the wetness and floodin^ of Lot fib. I zpplaud the Town for jam ein2 to address ibis issue, but it must be made clear that it does so voluntarily and not b• order of this COttrt. ORDER *7 For the reasons sralcd above, it is hereby ORDERED that judgment enter in favor of the. plaintiffs on the limited ground that rhe defendant Town has created a nui, snce by ;.ausing an increase hi the velocity of Sttrface water coming down Pinedale. Street into the plavntufs' property at Loi SS. The "1'o:cam is perman,ntly cnjoiscd promptly to *nLk:f reasonable efforts to abate t41_ coLi(litlons resulilll'_' from the increase in the velocity of this surface u ater, specifically the accel_eraied filling of Nuisance Brook '•'vith silt and sand, or tale a drainage easement by eu)i.nent domain and cotripen_ate, the plaintiffs for the reduction in fair market value of their propeny resulfing from this nuisance. Although (his Court is not specifying what such reasonable effori.s mustbc, it finds that the following course of action would be reasonable under present circurn:unces: '_. The coritinucd ma—Inicnance of the large c.on;.rete sedinten?aeon chambe- at !hc base of Pint:ez)c Slrec.c, near Clic paper street, to ensure. that it retain; its capaci • (o catch ane hold :may sand d anti silt fronn the roadway that is. brought by the surface Raters; 2. The construction of a drainage trench and weir near the paper sirceC off Pincdalc Street to slow the velocity oI the surLa.ce waicr corn]n onto Lot H, substantially diminish the erosion that has caused Nuisance Brook to be rc. ElicQ w-.th silt, and etch the sand and silt that was nor. caught by the sedlrneoLation ba -lin; 'and .i. The -ocriodic dred�nnE, of Nuisance. Brook to rcmovcc salted alto silt caused, by tLe veloci�ty of lhle curface a' Ie= comiLo Lo ,k -D PiZ.1dalc Street that rcrmmLns despite the above k_o remel-iial sicps. The plaintiffs'. request for further r_Ti_dial rcli: f is DENTED. Ccpr. CQ West 2003 No Ciai)n to Orig. U.S. Govt. Works 12 15.,,-"003 12:15 FAX 617 542 2241 MINTZ LEVIN o13 1998 z.•FL. 11S41(14 PaSe 6 (Cite as: 191)5 W.f. 112+104 (Mo ss. Super,)) EN'S OF DOCU; ,HENT Co -or. Q West 2003 No Claim o Oriz. U.S. Goy . Works 12/02/03 11:15 FAX 617 565 7528 K. Dino Babs To: Inspector Brian LaGrasse From: K Dino Balos Fax: 978-688-9540` Pages: Phone: 978-688-9541D Date: 12/2/2003 Re: Nuisance — Material Installations CC: Ray Santilli, Asst. Town Manager 0 For Review 0 Please Comment 0 Please Reply Privileged and Conlldentlal • Comments: Brian, See attachment. U �c �f f e �' M Thanks! 0001/004 12/02/03 11:15 FAX 617 565 7528 ,December 2, 3004 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Board of Public Health Brian LaGrasse, Inspector North Andover, MA 01845 Fax: 978-688-9542 Subject: Follow-up Citizen Complaint for Investigation - Air Pollution/ Nuisance Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. Dear Inspector LaGrasse: IA002/004 Attached is an updated log of activity through December let. As detailed, Material Installations continues to idle its trucks in excess of five minutes violating the Air Pollution Control Regulations. As indicated in our previous conversation and correspondence, I have video footage to include date/time stamp corroborating the log. As you are aware, the Board of Health and its staff are responsible for the enforcement of state and local laws and regulations to protect the health of all citizens. Please enforce all applicable Air Pollution Control and North Andover Dumpster Regulations as well as any other relevant statutes/regulations. As for identifying appropriate measures to end the noise nuisance, my [September 10th] letter lists possible solutions to include a noise barrier wall. Regarding the refuse compactor, I have been informed that special vertical compactors are available to fit inside a structure. Please provide a written progress report as well as any copies of correspondence or contact with Material Installations. I am available to attend any meetings and/or provide further information. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and work on this important matter. nc Kon an nos, "Dino" Balos Attachments cc: Assistant Town Manager Board of Selectmen Attorney Matthew C. Donahue 12/02/03 11:16 FAX 617 565 7528 Activity Log - Material Installations Shipping Area Nov 03, 2003 0610 Loaamg rwuvny Nov 04, 2003 Nov 05, 2003 0420-0432 0654-0705 Truck Idling Truck Idlin Nov 05, 2003 Nov 05, 2003 0725-0806 2114-2124 Truck Idlin Truck Fueling Nov 06.20031 0553 Loading AcOvit Nov 06, 2003 0606-0611 Truck Idlin Nov 06, 2003 0608 Separate Truck Activi Nov 06, 2003 0611 Separate Truck Activity Nov 06, 2003 2130 Truck Activity Nov 07, 2003 0600 Loading Activity Nov 07, 2003 0608-0613 Tuck Idlin Nov 07, 2003 0514 Loading Activ' Nov 07, 2003 0616 Separate Truck Activity Nov 07, 2003 0618 Separate Truck Activity Nov 07, 2003 Nov 08, 2003 0646 0640-0701 Separate Truck Activity Truck Idlin Nov 10, 2003 0653-0745 Truck Idling Nov 10, 2003 2300 Truck Activity Nov 10, 2003 2323 Separate Truck Activity Nov 10, 2003 2327-2338 Truck Idling Nov 11, 2003 0650-0703 Truck Idling Nov 11, 2003 0650-0708 Separate Truck Idling Nov 11, 2003 0650-0714 Separate Truck Idling Nov 11, 2003 0650-0715 Separate Truck Idling Nov 11, 2003 0650-0715 Separate Truck Idling Nov 11, 2003 0936-0951 Truck Idlin Nov 11, 2003 1044-1126 Truck Idling Nov 12, 2003 0633-0649 Truck idling Nov 12, 2003 0635-0643 Separate Truck Idling Nov 12, 2003 0650 Truck Activity Nov 13, 2003 0638 Truck Activity Nov 13, 2003 2240 Truck Activity Nov 14, 2003 0451 Truck Fueling Nov 14, 2003 0556 Truck Acftvity Nov 14, 2003 0558 Separate Truck Activi Nov 14, 2003 0635 Separate Truck Activi Nov 14, 2003 0636-0712 Truck Idling Nov 14, 2003 0646-0655 Separate Truck Idling Nov 14, 2003 2250 Truck Activi Nov 15, 2003 0604 Truck Activity Nov 15, 2003 0606 Separate Truck Activity Nov 15, 2003 0611 Separate Truck Activity Nov 15, 2003 0650-0658 Truck Idling Nov 15, 2003 0703-0717 2 Trucks Idling Nov 17, 2003 0625 Truck Activit Nov 17, 2003 0628 Loading Activity Nov 17, 2003 0630 Truck Activity Nov 17, 2003 0640 O enation of Compactor Nov 17, 2003 0648-0709 Truck Idling Nov 17, 2003 0649-0706 Separate Truck Idling Nov 17, 2003 1 0649-0702 1 Separate Truck Idlin IA 003/004 12/02/03 11:16 FAX 617 565 7528 Activity Log - Material Installations Shipping Area Nov 17, 2003 0745-0754 Truck Idling Nov 18, 2003 0616 Truck Activity Nov 18, 2003 Nov 18, 2003 Nov 18, 2003 Nov 1B, 2003 Nov 18, 20031 0617 0618 0526 0630 0631 Separate Truck Activi Separate Truck Activity Se rate Truck Activity Separate Truck Activity Se arate Truck Activity Nov 19, 2003 2055-2110 Truck Fueling Nov 20, 2003 0558 Truck Activi Nov 20, 2003 0559 Truck ActMty Nov 20, 2003 0608 Truck Activi Nov 20, 2003 0609 Truck Activitv Nov 20, 2003 0621 Truck Activity Nov 20, 2003 0628 Truck Acbvitv Nov 20, 2003 0633 Truck Activity Nov 21, 2003 0625 Truck Activity Nov 21, 2003 0626 Truck ActMty Nov 21, 2003 0714-0751 Truck Idlin Nov 22, 2003 0643-0657 Truck Idlin Nov 24,20q3 0506 Truck Activ' Nov 24, 2003 0545 Truck Activitv Nov 24, 2003 0559-0610 Truck Idlin Nov 24, 2003 0625 Truck Activity Nov 25, 2003 03la-0331 Truck Idling Nov 25, 2003 Nov 25, 2003 0613 0614 Truck Activi Truck Activity Nov 25, 2003 0646-0707 Truck Idling Nov 25, 2003 0709-0715 Truck Idlino Nov 25, 2003 0720-0731 Truck Idling Nov 26, 2003 0653-0721 Truck Idlin Nov 26, 2003 0716-0721 Truck Idlin Nov 26, 2003 Nov 28, 2003 0717-0744 0615 Separate Truck ldlin Truck Acti IA004/004 11/10/03 14:54 FAX 617 565 7528 K. Dino Balos To: Inspector Brian L.aGrasse From: K. Dino Baloos ' Fax: 978 -MB -9540 Pages: 7 Phoma 978-6884542 Date; 11/10/2003 Re: Nuisance — Material Installations CC: 0 For Review 0 Please Conrnent 0 Please Reply Privileged and Confidential e Comments: Brian, See attachment. Thanks! Q001 11/10/03 14:55 FAX 617 565 7528 November 10, 2003 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Board of Public Health Brian LaGrasse, Inspector 27 Charles Street North Andover, MA 01845 Fax: 978-688-9542 Subject: Follow-up Citizen Complaint for Investigation - Air Pollution/ Nuisance Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, M.A. Dear Inspector LaGrasse: 10002 This letter serves as a follow-up to our November 7+h telephone conversation. The following addresses the "obstacles" you described: Regarding the claim that the Material Installations building was built (1987) before my home (1993): The claim of prior occupation does not provide justification for air pollution (e.g., noise). One way to see the weakness in this argument is that it is not used in reverse. Communities do not give neighbors the right to prohibit the introduction of new noise in their neighborhood because the prior use was quiet. At some point there were no trucks, no airports, no jets, and no motorized boats on lakes yet there have always been people seeking quiet. This claim allows an unfair opportunity to condemn an affected area to endure a continuous nuisance simply because the source of the nuisance was there first. I am entitled the right to enjoy the full use of my property without unreasonable interference. Regarding being "grand -fathered," the Code of Massachusetts Regulations makes no reference to exceptions based on prior occupation. In addition, the enactment of sections 7.10 and 7.11 precedes 1987 (see attachment). Air pollution (i.e., noise nuisance) also involves sovereignty (who owns the air?). Material Installations does not own the air over and around their residential neighbors. Material Installations has taken no steps to confine the noise to their property. Accordingly, Material Installations has no private property right to broadcast noise outside their property. The deed to my property does not contain an easement for industrial noise. In Pendolev v. Ferreira, (345 Mass. 309,at 315), the Supreme Judicial Court of Massachusetts concluded that "the nuisance .. . . cannot be confined to a small area ..." and granted a permanent injunction in favor of residents, prohibiting the operation of a business responsible for causing the nuisance. Moreover, air, as common property, does not entail universal entitlement. For example, roadways are common property, but no one has the right to drive left of the divider or park their car in the middle of the street. After all, why have air pollution control regulations at all? 11/10/03 14:55 FAX 617 565 7528 0003 As mentioned in my September 10th letter, the source of the nuisance is shipping related activity. This includes extended truck idling activity (more than 5 minutes) and the use of an industrial refuse compactor. Both sources of noise routinely interrupt the sleep of my family and I. The compactor appears to be a dock feed type style and is located outside the building. As you are aware, section 3.2 of the North Andover Dumpster Regulations states: "The Board of Health may attach any condition to the license of a removal contractor that it deems would serve the interest of the safety, healthwelfare or quality of life of the citizens of the town." In addition the following North Andover Dumpster Regulations apply to the property owner: Section 4.1: "... each dumpster must be located at a distance from the lot line so as not to interfere with the safety convenience or health of abutter or residents." Section 4.2: "... may be required that dumpster site be enclosed or screened ..." Section 4.3: "... responsibility of the owner ... to maintain the dumpster area free of . .. all other nuisances." Section 4.7: " Dumpsters are not to be filled after 9:00 P.M. or before 7:00 A.M." ** Note: Before Material Installations was issued a permit, concerns by residential Abutters with regard to "activity at night," "trucks, " 'noise" and "lights" were clearly documented. During the Site Plan Review (August 3 & 17, 1987) the use of "evergreens and fencing to be looked into for possible noise barriers" as well as "the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer" were inputted. Purthermore, during the Planing Board's conditional approval of the Special Permit (August 31, 1987), proponents, in response to noise concern, "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." As a result, the conditional approval (September 2, 1987) includes a landscape plan with a "row of planted arborvitae to the rear of the building" as well as "a six (6) foot closed stockade fence be erected along the property line." As referenced in my September lot letter, expert research indicates that the aforementioned noise buffers are ineffective. Additionally, North Andover Police records indicate noise complaints against Material Installations from at least early 1998. Commonwealth and town records indicate that Material Installations is a warehousing and wholesale business. Zoning by-laws, paragraph 13 of section 4.132 (Industrial 1 District) states that "warehousing and wholesaling shall be permitted only as a secondaru use." Furthermore, zoning by-laws, paragraph 15 (section 4.132) states "parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious noxious or o ftsive to the neiahborhoW." In addition, paragraph 11 of section 4.132 states "Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing, or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to 11/10/03 14:56 FAX 617 565 7528 0 004 surrounding are or the town by reason of dust, smoke, fumes, odor, noise vibration light or other adverse environmental effect." Regarding your planned noise level measurements, it is requested that they begin no later than 6 in the morning. This is due to truck and compactor activity that regularly begin between 6 and 7 a.m. Town officials have informed me that representatives from Material Installations claim their shipping operations begin at 7 a.m. As referenced, in my September 10th letter, I have video footage indicating shipping activity routinely beginning before [the company's claim of[ 7 a.m. This includes truck idling activity on Saturday, November 8, 2003 from 6:40 until 7:01 in the morning as well as Monday, November 10, 2003 from 06:53 until 07:45 A.M. My September 10th letter also references research indicating that noise is a health hazard. This involves hearing loss, stress, high blood pressure, sleep loss, lost productivity, and a reduction in the quality of life and opportunity for personal and collective tranquility. Most of us learned on the schoolyard years ago: "that my right to swing my fist ends at your nose." Or, in the parallel case of noise, "that my right to create noise ends at your ear." The town has a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Davis v. Sawyer, (133 Mass. 289, 290, 43 Am.Rep. 519), the Supreme Court of Massachusetts said "'Noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinazL comfort of life, and impair the reasonable enioyment of his habitation is a nuisance." In Shea v. National Ice Cream Co. Inc., (280 Mass. 206, 211) the court said, "'the defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to sleep at night in their own homes." In Weltshe v. Graf, (323 Mass. 498), the plaintiffs (residential district) were disturbed in their sleep at night by unreasonable noises from a freight terminal (business district) operated by the defendants, and an injunction was granted by the Supreme Judicial Court of Massachusetts restraining work. As mentioned in my [September 10th] letter, my home is located in the Meadowood section of town that is zoned as "residential." The character of Meadowood is distinctly residential with no access roadways connecting the two zoned areas (Residential -6 and Industrial -1). The Commonwealth treats noise as an emission of sound and regulates it as a source of air pollution. Please enforce sections 7.10 and 7.11 of the Code of Massachusetts Regulations. As for identifying appropriate measures to end the noise nuisance, my [September 10th) letter lists possible solutions to include a noise barrier wall. It is requested that the Board of Health not only identifies an effective solution, but also coordinates its successful implementation with Material Installations. I am available to attend any meetings and/or provide further information. 11/10/03 14:56 FAX 617 565 7528 Q005 Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and work on this important matter. Sincerely, Ko antinos 'Dino' Balos Attachments cc: Assistant Town Manager Board of Selectmen Attorney Matthew C. Donahue September 10, 2003 Town of North Andover Board of Public Health Sandy Starr, Director 27 Charles Street North Andover, MA 01845 66 Meadowood Road North Andover, MA 01845-5927 EIC!, �_ OF HE" Subject: Citizen Complaint for Investigation - Air Pollution/Nduisance Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. To Whom It May Concern: This letter serves as a formal complaint against Material Installations, Inc., regarding an ongoing nuisance due to shipping -related noise. Details My family and I use 66 Meadowood Road as our primary residence. This consists of my wife and two (2) children, ages 1 and 4 years old. According to Commonwealth and Merrimack Valley Planning Commission records, Material Installations is a warehousing and wholesaling business. Material Installations borders the backside of my house. Material Installations causes noise that is a nuisance and unreasonably interferes with the comfort of my family and myself. This has made the backside of my house unsuitable for quiet enjoyment. The source of the nuisance is shipping related activity. This includes the operation of trucks, trucks idling over 5 minutes (overnight as well as during shipping dock operations), loading tractor trailers/ commercial containers (e.g., trash compactor), operating machinery and loud voices of workers. The truck noise includes the engine, the drive -train, exhaust, tire/road contact, and braking. The trucks also cause vibration and infrasound (low frequency noise). Typically, the noise has a rapid start rate. This is a result of the abruptness of an approaching truck, the starting of the engine, as well as truck movement and stopping (which cause increased accelerations) . The noise occurs during the morning, afternoon and evening hours. Moreover, the noise and vibration is so noticeable that residents are alerted to incoming traffic prior to trucks entering the shipping area. For example, this morning multiple truck idling activity took place during the following times: 05:53-06:14; 06:18-07:07; 06:19-07:04; 06:20-0651; and 07:25-07:51. I have attached a spreadsheet detailing the extensive amount of nighttime and early morning activity associated with Material Installations. Noise - Health Effects Research supports that noise is a health hazard, not just a nuisance. According to the Environmental Protection Agency, research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. I have attached a handout provided to Meadowood Road residents. This includes research regarding the health effects of noise as well as possible solutions. Air Pollution Control Regulations In the Commonwealth, noise is treated as an emission of sound, and is regulated as a source of air pollution. The Code of Massachusetts Regulations (CMR) defines air pollution as "the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business." CMR Section 7.10 states the following with regard to noise: "(1) No person owning, leasing, or controlling a source of sound shall willfully, negligently, or through failure to provide necessary equipment, service, or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise." CMR Section 7:11 states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes. " According to the Massachusetts Department of Environmental Protection (DEP), the aforementioned regulations are enforceable by the Board of Health under 310 CMR 7.52. DEP representative Ed Pawlowski can be contacted at History of Noise - Material Installations _1 Town Records indicate the following: a) North Andover Police records detailing noise complaints about Material Installations from at least early 1998. b) A Site Plan Review dated August 3, 1987 recognizes concerns with regard to trucks, noise and activity at night. The plan indicates the use of "evergreens and fencing to be looked into for possible noise barriers." c) Conditional approval of the Special Permit by the Planning Board (August 31, 1987). Regarding noise concerns, proponents "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." d) Paragraph 5 of the conditional approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line." Noise experts have informed me that this landscape along with the fence is an unacceptable noise barrier in that it only provides psychological relief and does not physically lessen noise levels. Research from the Washington State Department of Transportation (WSDOT), Environmental and Special Services Section, indicates that it would take at least 100 feet of dense vegetation to provide the same acoustical benefit as a noise wall. Furthermore, the Federal Highway Administration (FHWA), Office of Environment and Planning Noise and Air Quality Branch does not consider the planting of vegetation as a noise abatement measure. Specifically, "the planting of trees and shrubs provides only psychological benefits and may be provided for visual, privacy, or aesthetic treatment, not noise abatement." Conclusion As a homeowner, I am entitled the right to enjoy the full use of my property without unreasonable interference. Despite several attempts to resolve this issue, Material Installations continues to operate as a nuisance. There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass. 138), the Massachusetts Supreme Court stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others." In order to protect the health of North Andover Meadowood Road citizens, it is respectfully requested that the Board of Health: 1) enforce the Commonwealth of Massachusetts Air Pollution Control Regulations; 2) survey and provide an opinion with regard to the effectiveness on the use of evergreens and fencing for noise barriers; and 3) identify appropriate measures to end the noise nuisance. I am available to attend any meetings and/or provide further information to include video corroboration of the activity log. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and attention to this important matter. Sin Kon antinos "Dino' Balos Attachments cc: Town Manager/Assistant Town Manager Board of Selectmen North Andover Meadowood Road Residents Attorney Matthew C. Donahue Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping Area p1of5 DATE TIME ACTIVITY (military hours) Feb 02, 2003 0030-0600 Truck Idling Feb 03, 2003 No to Log of Feb 23, 2003 Actitiy Feb 24, 2003 2345 Truck Idling Feb 26, 2003 0400 Truck Idling Mar 01, 2003 0010 Truck Idling Mar 02, 2003 No to Log of Mar 22, 2003 Actitiy Mar 22, 2003 midnight Truck Idling Mar 25, 2003 0545 Truck Idling Mar 26, 2003 0515 Truck Idling Mar 28, 2003 2140 Truck Idling Apr 02, 2003 2125 Truck Idling Apr 04, 2003 0550-0830 Truck Idling Apr 04, 2003 2035 Truck Idling Apr 07, 2003 0600-0745 Truck Idling Apr 08, 2003 0730 Truck Idling Apr 14, 2003 0600-0745 Truck Idling Apr 15, 2003 0615-0722 Truck Idling Apr 17, 2003 0600-0745 Truck Idling Apr 18, 2003 0615-0745 Truck Idling Apr 19, 2003 0650-0730 Truck Idling Apr 22, 2003 0630-0720 Operating Waste Disposal Unit Apr 23, 2003 0605-0630 Operting Heavy Machinery Apr 23, 2003 0645-0730 Truck Idling Apr 25, 2003 0630-0745 Truck Idling Apr 26, 2003 0645 Truck Idling Apr 28, 2003 0605-0650 Truck Idling Apr 29, 2003 0615-0730 Truck Idling Apr 30, 2003 2225 Truck Fueling May 01, 2003 0620-0715 Truck Idling May 02, 2003 0625-0725 Truck Idling May 03, 2003 0615-0645 Truck Idling May 05, 2003 0445-0505 Truck Idling May 06, 2003 0630-0715 Operating Waste Disposal Unit May 08, 2003 0440-0505 Truck Idling May 08, 2003 2145-2210 Truck Idling May 10, 2003 1220-1235 Truck Fueling May 12, 2003 0550-0622 Truck Idling May 12, 2003 2300-2310 Truck Idling May 14, 2003 2115-2130 Truck Fueling May 15, 2003 0600-0630 Dumpster Operation May 16, 2003 0530-0615 Truck Idling May 17, 2003 0230-0245 Truck Idling Supplemental Attachment Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping Area p2of5 May 17, 2003 0500-0510 Truck Idling May 24, 2003 0250-0315 Truck Fueling May 24, 2003 0800-0840 Truck Idling May 29, 2003 0630-0710 Truck Idling May 30, 2003 0620-0655 Truck Idling May 31, 2003 0235-0245 Truck Fueling May 31, 2003 0555-0720 Truck Operations Jun 02, 2003 2220-2230 Truck Fueling Jun 04, 2003 0630 Truck Idling Jun 04, 2003 2200 Truck Idling Jun 05, 2003 0600 Truck Idling Jun 06, 2003 0550 Truck Idling Jun 09, 2003 2250 Truck Fueling Jun 10, 2003 0555-0615 Truck Idling Jun 11, 2003 0800-0830 Truck Idling Jun 11, 2003 2245-2255 Truck Fueling Jun 12, 2003 0555-0655 Truck Idling Jun 13, 2003 0545-0600 Truck Idling Jun 13, 2003 0620-0635 Truck Idling Jun 13, 2003 0650-0720 Truck Idling Jun 14, 2003 0300 Truck Activity Jun 14, 2003 0700 Truck Activity Jun 16, 2003 0550-0615 Truck Idling Jun 16, 2003 0650-0700 Truck Idling Jun 18, 2003 0600-0610 Truck Idling Jun 18, 2003 0640-0655 Operation of Machinery Jun 18, 2003 2105-2115 Truck Idling Jun 18, 2003 2230-2345 Truck Idling Jun 19, 2003 0605-0610 Truck Idling Jun 20, 2003 0550 Loading Activity Jun 20, 2003 0555-0605 Truck Idling Jun 20, 2003 0630-0650 Truck Idling Jun 20, 2003 0730-0755 Truck Idling Jun 20, 2003 2135-2140 Truck Idling Jun 20, 2003 2150 Truck Activity Jun 21, 2003 0720 Truck Activity Jun 22, 2003 0615-0630 Loading Activity Jun 22, 2003 0650 Truck Activity Jun 23, 2003 0557-0607 Truck Idling Jun 23, 2003 0615 Truck Activity Jun 23, 2003 0630 Truck Activity Jun 23, 2003 2000-2010 Truck Idling Jun 23, 2003 2230 Truck Activity Jun 24, 2003 0620 Truck Activity Jun 24, 2003 0700-0820 Operation of Machinery Jun 24, 2003 2215 Truck Activity Jun 25, 2003 0712-0723 Truck Idling Jun 26, 2003 0700 Truck Activity Jun 26, 2003 0720-0845 Truck Idling Supplemental Attachment Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping Area p3of5 Jun 27, 2003 0715 Truck Activity Jul 01, 2003 0710 Truck Activity Jul 02, 2003 0720 Truck Activity Jul 08, 2003 2155 Truck Activity Jul 09, 2003 230-2240 Truck Idling Jul 10, 2003 0705-0750 Truck Idling Jul 11, 2003 2300 Truck Activity Jul 12, 2003 0615-0700 Truck Idling Jul 13, 2003 0610 Truck Activity Jul 13, 2003 0628 Truck Activity Jul 13, 2003 0630-0638 Van Idling Jul 14, 2003 0600 Truck Activity Jul 14, 2003 0604-0622 Truck Activity Jul 14, 2003 0700-0707 Truck Idling Jul 14, 2003 2135-2200 Truck Idling Jul 15, 2003 0600-0635 Truck Idling Jul 16, 2003 0550-0600 Truck Idling Jul 17, 2003 0600 Truck Activity Jul 17, 2003 0650-0700 Truck Idling Jul 18, 2003 0630 Truck Activity Jul 19, 2003 0225-0235 Truck Fueling Jul 20, 2003 0700 Truck Activity Jul 21, 2003 0703 Truck Activity Ju122, 2003 0700 Truck Activity Ju123, 2003 0640-0725 Truck Idling Jul 24, 2003 0710-0737 Loading Activity Jul 25, 2003 0700 Truck Activity Jul 25, 2003 2335 Truck Activity Ju128, 2003 0610-0615 Truck Activity Jul 30, 2003 0610 Truck Activity Jul 30, 2003 0636 Truck Activity Jul 30, 2003 2145 Truck Activity Jul 31, 2003 0603 Truck Activity Jul 31, 2003 0614 Truck Activity Jul 31, 2003 0633 Loading Activity Jul 31, 2003 0638 Truck Activity Aug 01, 2003 0646 Loading Activity Aug 02, 2003 0645 Truck Activity Aug 04, 2003 0645 Loading Activity Aug 04, 2003 0705-0726 Truck Idling Aug 05, 2003 0615 Loading Activity Aug 05, 2003 0640 Truck Activity Aug 05, 2003 0646-0703 Truck Idling Aug 06, 2003 0610-0630 Truck Idling Aug 06, 2003 0642-0647 Truck Idling Aug 06, 2003 0655-0710 Loading Activity Aug 07, 2003 0600 Truck Activity Aug 07, 2003 0603 Truck Activity Aug 07, 2003 0617-0652 Loading Activity Supplemental Attachment Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping Area p4of5 Aug 07, 2003 0652 Truck Activity Aug 07, 2003 0721-0731 Truck Idling Aug 08, 2003 0548 Truck Activity Aug 08, 2003 0550 Loading Activity Aug 08, 2003 0605 Truck Activity Aug 08, 2003 0616 Truck Activity Aug 08, 2003 0623 Truck Activity Aug 08, 2003 0714-0720 Truck Activity Aug 09, 2003 No Log to of Aug 11, 2003 ctivity Maintained Aug 12, 2003 0615 Truck Activity Aug 12, 2003 0634 Truck Activity Aug 12, 2003 0639-0659 Truck Idling Aug 12, 2003 0641 Truck Activity (Separate) Aug 12, 2003 0705-0720 Operation of Machinery Aug 13, 2003 0552 Truck Activity Aug 13, 2003 0620 Loading Activity Aug 13, 2003 0638 Loud Music Aug 13, 2003 2100 Truck Fueling Aug 14, 2003 0839-0859 Truck Idling Aug 15, 2003 0620 Loading Activity Aug 18, 2003 0615 Loading Activity Aug 18, 2003 0640-0720 Truck Idling Aug 18, 2003 0654-0714 Truck Idling (Separate) Aug 18, 2003 2249-2254 Truck Fueling Aug 20, 2003 0629 Truck Activity Aug 20, 2003 0702-0709 Truck Idling Aug 21, 2003 0605-0640 Loading Activity Aug 21, 2003 0700-0717 Truck Idling Aug 22, 2003 0607 Loading Activity Aug 22, 2003 0622-0656 Truck Idling Aug 22, 2003 0643-0650 Truck Idling (Separate) Aug 22, 2003 0645-0655 Truck Idling (Separate) Aug 22, 2003 2110-2113 Truck Activity Aug 23, 2003 0722-0735 Truck Idling Aug 25, 2003 0615 Loading Activity Aug 25, 2003 0621-0624 Truck Idling Aug 25, 2003 0635-0637 Truck Idling Aug 26, 2003 0624-0626 Truck Idling Aug 27, 2003 0558-0605 Truck Idling Aug 27, 2003 0613 Truck Activity Aug 27, 2003 0617-0619 Truck Activity Aug 27, 2003 0625-0627 Truck Idling Aug 27, 2003 0632 Loading Activity Aug 28, 2003 0510 Truck Activity Aug 28, 2003 0611 Loading Activity Aug 28, 2003 0620-0657 Truck Idling Aug 29, 2003 0609 Truck Activity Supplemental Attachment Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping Area p5of5 Aug 29, 2003 0610-0612 Truck Idling Aug 29, 2003 0638-0640 Truck Idling Aug 29, 2003 0648 Truck Activity Sep 02, 2003 0130-0137 Truck Idling Sep 02, 2003 0550 Truck Activity Sep 02, 2003 0605 Truck Activity Sep 02, 2003 0607-0613 Truck Idling Sep 02, 2003 0615-0638 Loading Activity Sep 03, 2003 0616 Truck Activity Sep 03, 2003 0653-0702 Truck Idling Sep 03, 2003 2131-2138 Truck Fueling Sep 04, 2003 0617 Truck Activity Sep 04, 2003 0640 Truck Activity Sep 05, 2003 0610 Loading Activity Sep 05, 2003 0618 Truck Activity Sep 05, 2003 2010-2017 Truck Fueling Sep 05, 2003 2037 Truck Activity Sep 08, 2003 0155 Truck Activity Sep 08, 2003 0633-0647 Loading Activity Sep 08, 2003 0712-0723 Truck Idling Sep 08, 2003 1934 Truck Activity Sep 09, 2003 0649 Truck Activity Sep 10, 2003 0553-0614 Truck Idling Sep 10, 2003 0618-0707 Truck Idling Sep 10, 2003 0619-0704 Truck Idling (Separate) Sep 10, 2003 0620-0651 Truck Idling (Separate) Sep 10, 2003 1 0725-0751 Truck Idling (Separate) Supplemental Attachment NOISE NUISANCE — MATERIAL INSTALLATIONS, INC. TABLE OF CONTENTS FACTS (pages 1-2) • NOISE SOURCE - MATERIAL INSTALLATIONS, INC. • NOISE - TRUCKING ACTIVITY • HOW DOES NOISE ANNOY? • IS NOISE A PROBLEM? NOISE EFFECTS - GENERAL (pages 3-4) • IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? • WHY IS NOISE CONSIDERED A HEALTH PROBLEM? NOISE AND THE BODY'S REACTIONS (page 4) • ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? NOISE AND THE UNBORN (page 5) • CAN NOISE AFFECT THE FETUS? PERFORMANCE INTERFERENCE (page 5) • IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? • ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? EFFECTS OF NOISE (page 6) • HOW DOES NOISE INTERFERE WITH SLEEP? • IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? CRITERIA FOR SLEEP DISTURBANCE (page 6) • CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? MENTAL, PSYCHOLOGICAL EFFECTS (page 7) • IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? WHAT LAWS APPLY TO THE NOISE PROBLEM? (pages 7-8) • HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? WHAT CAN I DO? (page 8) POSSIBLE SOLUTIONS (pages 8-10) • CHANGE BUSINESS OPERATIONS • ACOUSTICAL ENGINEERING - SOUND PROOF WINDOWS • SOUND BARRIER WALL • OTHER SUGGESTIONS CONCLUSION (page 11) • GOOD NEIGHBOR POLICY • CLOSING NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 1 of 11 FACTS: • The Town of North Andover classifies the properties on Meadowood Road as `Residential -6. Source: Town of North Andover records. • 11 Bayfield Drive d/b/a Material Installations is classified as `Industrial -1.' Source: Town of North Andover records. • A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes concerns with regard to truck noise and the use of "evergreens and fencing to be looked into for possible noise barriers." Source: Town of North Andover records. • The Conditional Approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line." Source: Town of North Andover records. The Articles of Organization [for Material Installations, Inc] states the following with regard to its business: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." Source: Commonwealth of Massachusetts records. The Merrimack Valley Planning Commission (MVPC) indicates that the primary business of Material Installations is "Office Furniture and Equipment Installation (Whol)." Source: MVPC. NOISE SOURCE — MATERIAL INSTALLATIONS, INC. a) Shipping dock operations (to include truck activity) beginning earlier than claims made by Material Installations that they begin at 7:00 a.m.; b) Mechanical operation of trucks and related machinery (e.g., waste disposal); c) Trucks idling over 5 minutes (overnight as well as during shipping dock operations); d) Nighttime activities (e.g., truck operations - truck fueling, truck idling, etc.); and e) Loud voices of workers. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 2 of 11 NOISE — TRUCKING ACTIVITY • Motor vehicles cause various types of noise, includes engine acceleration, tire / road contact, braking, and horns. Heavy vehicles (i.e., trucks) can cause vibration and infrasound (low frequency noise). Source: Indicators of the Environmental Impacts of Transportation, Office of Policy and Planning, USEPA (Washington DC; www.itre.ncsu.edu/cte), 1999. • A study of noise equivalency factors for trucks relative to Passenger vehicles determined that a truck traveling at a speed of 20 mph has an equivalency factor equal to 84 passenger vehicles. Source: FHWA -Office of Policy, "Comprehensive Truck Size and Weight." A study of outdoor noise levels indicated that a "Diesel Truck at 50 feet" is classified in the "Very Loud" category. Source: California -Nevada Super Speed Train Commission — March 2002 HOW DOES NOISE ANNOY? • Noise by definition is unwanted sound. It is an intrusion on one's sense of privacy. Noise can be an emotional strain and a source of great frustration when the noise is beyond a person's control. Noise may interfere with a broad range of human activities, the overall effect of which is to cause annoyance. Such activities include: 1. Speech communication in conversation and teaching 2. Telephone communication 3. Listening to television and radio broadcasts 4. Listening to music 5. Concentration during mental activities 6. Relaxation 7. Sleep Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 56 IS NOISE A PROBLEM? In the words of former U.S. Surgeon General William H. Stewart, "Calling noise a nuisance is like calling smog an inconvenience. Noise must be considered a hazard to the health of people everywhere. " NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 3 of 11 But the presence of noise in our natural, rural, and urban environments is not just a nuisance -it's a health hazard. For example: • Noise is a biological stressor that has negative effects on the entire physiological system, contributing to elevated blood pressure, and changes in blood chemistry. • Noise causes sleep disturbances, which cause a host of problems, including reduced job performance, mood changes, and increased risk of automobile accidents. • Noise negatively affects one's ability to learn and concentrate. Studies have shown decreased reading ability and scholastic performance of school children exposed to noise. • Studies of adults show poorer performance of complex tasks in noisy environments. • Noise renders us less tolerant of frustration and numb to the needs of other people, further reducing our quality of life and the civility of society. Source: The Quiet Noise, Noise Pollution Clearinghouse, Summer 2001. NOISE EFFECTS - GENERAL Research solidly supports that noise is a health hazard, not just a nuisance. In passing the Noise Control Act of 1972, Congress found that "inadequately controlled noise presents a danger to the health and welfare of the Nation's population, particularly in urban areas." IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? It is possible that repeated or constant exposure to noise can contribute to a deterioration in health. Research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 33. WHY IS NOISE CONSIDERED A HEALTH PROBLEM? Noise is generally viewed as being one of a number of general biological stressors. Noise may contribute to the development and aggravation of stress related conditions such as high blood pressure, coronary disease, ulcers, colitis, and migraine headaches. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 4 of 11 • Growing evidence suggests a link between noise and cardiovascular problems. • There is also evidence suggesting that noise may be related to birth defects and low birth -weight babies. • There are also some indications that noise exposure can increase susceptibility to viral infection and toxic substances. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 31. NOISE AND THE BODY'S REACTIONS ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • At least two studies exist which suggest that exposure to high noise levels in schools and neighborhoods are associated with elevations in blood pressure. • The blood pressure levels of children living in high noise environments were found to be significantly higher than those of children attending schools or residing in quieter areas. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 34. WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? Stress can be manifested in any number of ways, including headaches, irritability, insomnia, digestive disorders, and psychological disorders. Noise has been related to the following: • General morbidity (illness) • Neuropsychological disturbances • headaches • fatigue • insomnia • irritability • neuroticism Cardiovascular system disturbances • hypertension • hypotension • cardiac disease Digestive disorders • ulcers • colitis • Endocrine and biochemical disorders Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 35. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 5 of 11 NOISE AND THE UNBORN CAN NOISE AFFECT THE FETUS? Studies have shown maternal stress causes constriction of the uterine blood vessels which supply nutrients and oxygen to the developing baby. • Stress may then threaten fetal development if it occurs early in pregnancy. The most important period is about 14 to 60 days after conception. During this time, important developments in the central nervous system and vital organs are taking place. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 37. PERFORMANCE INTERFERENCE IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? Yes, industrial noise may have the most pronounced effects on performance including exhaustion, absentmindedness, mental strain, absenteeism, tenseness, and irritability. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 47. ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? • There have been field studies which demonstrate that high noise levels have been correlated with poor performance on reading tests and auditory discrimination problems. • These effects were found to have little to do with socio-economic class or IQ. The significance of these effects is particularly important for younger children who through lack of verbal experience need lower noise levels in which to perform in order to develop the basic skills which contribute to cognitive and language development. • Sleep disturbance is one of the major causes of annoyance due to noise. If it becomes a chronic problem, sleep disturbance may potentially lead to health disorders. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106.. Page 47. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 6 of 11 EFFECTS OF NOISE HOW DOES NOISE INTERFERE WITH SLEEP? • Noise, of course, can make it difficult to fall asleep. • Noise levels can create momentary disturbances of natural sleep patterns by causing shifts from deep to lighter stages. • Noise may even cause awakening which the person may or may not be able to recall. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • He/she can be completely unaware of being affected but can have a disruption of total sleep quality nevertheless. • Subjects often forget and underestimate the number of times that they awaken during sleep. • Loud noises can continue to awaken or arouse the sleeper, but they may become so familiar with the sounds that they return to sleep very rapidly. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? A person whose sleep has been disturbed severely may feel lethargic and nervous during his waking hours and may be unable to perform at his usual level of efficiency. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. CRITERIA FOR SLEEP DISTURBANCE CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? • Sleep is thought to be a restorative process during which organs of the body renew their supply of energy and nutritive elements. • Since noise can disrupt the sleep process, it may take its toll on health. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 7 of 11 MENTAL, PSYCHOLOGICAL EFFECTS WHAT KIND OF MENTAL OR PSYCHOLOGICAL EFFECTS CAN OCCUR WITH EXCESSIVE NOISE EXPOSURE? • Excessive noise exposure can bring about a wide variety of psychological responses or symptoms in the individual. A person may respond with anger, or experience symptoms such as anxiety, irritability, and/or general emotional stress. • Distraction and poor judgment may result from mental fatigue. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? Studies have shown that residential areas exposed to high noise levels may have a higher incidence of mental illness among their residents. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 53. WHAT LAWS APPLY TO THE NOISE PROBLEM? Zonin : Through zoning local government regulates what uses may be made of a parcel of land. The intent is to protect adjoining property owners from incompatible uses and to increase the likelihood that a community grows in a way that enhances overall quality of life. • Section 4.132 of the North Andover Zoning By-laws states the following: 11. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing, or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. 13. Warehousing and wholesaling shall be permitted only as a secondary use. 15. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious or offensive to the neighborhood. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 8 of 11 • Section 7:11 of the Code of Massachusetts Regulations (CMR) states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes." There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass. 138), the Massachusetts Supreme Court stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessarU disturbance of the rights of others." vE THERE BEEN ANY COURT CASES SIMILAR TO THIS? Yes. In Weltshe v. Graf (323 Mass. 498), plaintiff landowners and the defendant trucking company were located at the boundaries of a district zoned for business and a district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin defendant -trucking company from operating its business as a nuisance due to truck terminal noises. The Massachusetts Judicial Supreme Court ordered that a decree be entered in favor of the landowners enjoining the trucking company from shipping -related activity. The court also affirmed that a "zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." WHAT CAN I DO? As you are aware, I have filed a complaint with the town (see me for a copy). I suggest the following: • Contact the town and inform them of the noise problem. o The town manager's phone number is 978-688-9510. o The Board of Selectmen phone number is 978-688-9510. Contact the police (during the noise disturbance) at 978-683-3168. POSSIBLE SOLUTIONS As you are aware, an official complaint has been filed with the town regarding Material Installations and the problem of noise nuisance. If you would like a copy please see me. The below suggestions only relate to solving the problem and do not address the fact that Material Installation has continued their operations unchanged. This is despite knowing that their operations are a nuisance to their neighbors. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 9 of 11 CHANGE BUSINESS OPERATIONS The Noise Pollution Clearinghouse recommends the following with regard to Commercial and Industrial operation within 1, 000 feet of residential property: 1. Limit noisy operations such as outdoor loading, unloading, use of power tools, to 9 AM to 5 PM, Monday to Saturday. 2. Ensure that any noise spilling over onto neighbor's property is less than typical conversational levels. 3. Turn off trucks and auxiliary equipment if vehicle is stationary for more than 2 minutes. 4. Schedule trash pickup between 9 AM and 5 PM. ACOUSTICAL ENGINEERING — SOUND PROOF WINDOWS Sound Abatement Windows: These windows are specifically designed to reduce unwanted noise affecting residential communities (i.e., aircraft, trains and automobiles). • These windows are used at airports throughout the country to include Boston's Logan Airport. SOUND BARRIER WALL Q. How effective are noise walls? A. This depends on the distance between the listener and the wall. For residences located directly behind the wall, the perceived noise level will be cut in half. This benefit decreases as a listener moves farther away from the wall and is negligible at distances greater than 500 feet. Q. How is the height of the barrier determined? A. Noise walls are designed to provide a minimum of five decibels of reduction in average background traffic noise for the majority of first row of residences located directly behind the wall, with a 7 decibel reduction at at least one location. The reasonableness criteria places a practical limitation on the height of any noise barrier. Q. Why not plant trees instead of putting up a wall? A. Trees provide a visual shield and some psychological benefit, but are not nearly as effective at reducing noise levels as a solid barrier. It would take at least 100 feet of dense vegetation to provide the same acoustical benefit as a noise wall. Source: Washington State, Department of Transportation, Environmental and Special Services. A. The Federal Highway Administration (FHWA) does not consider the planting of vegetation to be a noise abatement measure. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 10 of 11 A. The planting of trees and shrubs provides only psychological benefits and visual, privacy, or aesthetic treatment, not noise abatement. Source: Federal Highway Administration, Office of Environment and Planning Noise and Air Quality Branch "HIGHWAY TRAFFIC NOISE ANALYSIS AND ABATEMENT POLICY AND GUIDANCE." How Do People React to Noise Barriers? Residents adjacent to barriers say that conversations in households are easier, sleeping conditions are better, the environment is more relaxing, windows are opened more often, and yards are used more in the summer. Source: Federal Highway Administration, Highway Traffic Noise Barriers. Are Residents' Views Considered? Landscaping in the vicinity of noise barriers should be integrated with the landscaping theme. Wherever possible, consideration should be given toward accommodating existing vegetation in the design process. A balance should be struck between wall decorations and landscaping. Decisions made in consultation with neighborhood groups 8v elected officials. • The general approach is to aesthetically design the noise wall in a manner that it blends into the surrounding environment and is as un -intrusive as possible. Source: Federal Highway Administration, Noise Barrier Aesthetics NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 11 of 11 Sound Wall - Summary While noise barriers do not eliminate all noise, they do reduce it substantially and improve the quality of life for people who live adjacent to areas of noise. OTHER SUGGESTIONS A combination of the above mentioned suggestions providing a long-term solution to noise nuisance. CONCLUSION GOOD NEIGHBOR POLICY The Purpose of the Good Neighbor Policy is to protect the comfort, quiet, repose, health, peace, and quality of life of people. At a minimum, everyone should reasonably expect: 1. To be protected from adverse impacts on their quality of life due to noise; 1. Not to have their sleep disturbed by noise; 2. Not to hear someone else's noise in their home. Source: Noise Pollution Clearinghouse. CLOSING • As outlined in this guide, there are many concerns related to noise. • This includes health effects and quality of life issues. • Ignoring the problem, condones the problem. In conclusion, ask yourself if you find it acceptable to mow your lawn early in the morning or in the middle of the night. Chances are that you don't out of common courtesy for your neighbors. Why should someone else be held to a lesser standard? "The community is only as strong as the will of its individual members." THIS IS A PROBLEM. LET'S DO SOMETHING ABOUT IT! September 10, 2003 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Board of Public Health Sandy Starr Director c - 27 Charles Street North Andover, MA 01845 `a �-------- -' Subject: Citizen Complaint for Investigation - Air Pollution`/Nuisance � . Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. To Whom It May Concern: This letter serves as a formal complaint against Material Installations, Inc., regarding an ongoing nuisance due to shipping -related noise. Details My family and I use 66 Meadowood Road as our primary residence. This consists of my wife and two (2) children, ages 1 and 4 years old. According to Commonwealth and Merrimack Valley Planning Commission records, Material Installations is a warehousing and wholesaling business. Material Installations borders the backside of my house. Material Installations causes noise that is a nuisance and unreasonably interferes with the comfort of my family and myself. This has made the backside of my house unsuitable -for quiet enjoyment. The source of the nuisance is shipping related activity. This includes the operation of trucks, trucks idling over 5 minutes (overnight as well as during shipping dock operations), loading tractor trailers/ commercial containers (e.g., trash compactor), operating machinery and loud voices of workers. The truck noise includes the engine, the drive -train, exhaust, tire/road contact, and braking. The trucks also cause vibration and infrasound (low frequency noise). Typically, the noise has a rapid start rate. This is a result of the abruptness of an approaching truck, the starting of the engine, as well as truck movement and stopping (which cause increased accelerations) . The noise occurs during the morning, afternoon and evening hours. Moreover, the noise and vibration is so noticeable that residents are alerted to incoming traffic prior to trucks entering the shipping area. For example, this morning multiple truck idling activity took place during the following times: 05:53-06:14; 06:18-07:07; 06:19-07:04; 06:20-0651; and 07:25-07:51. I have attached a spreadsheet detailing the extensive amount of nighttime and early morning activity associated with Material Installations. Noise - Health Effects Research supports that noise is a health hazard, not just a nuisance. According to the Environmental Protection Agency, research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effect: particularly those related to the cardiovascular system. I have attached a handout provided to Meadowood Road residents. This includes research regarding the health effects of noise as well as possible solutions. Air Pollution Control Rexulations In the Commonwealth, noise is treated as an emission of sound, and is regulated as a source of air pollution. The Code of Massachusetts Regulations (CMR) defines air pollution as "the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business." CMR Section 7.10 states the following with regard to noise: "(1) No person owning, leasing, or controlling a source of sound shall willfully, negligently, or through failure to provide necessary equipment, service, or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise." CMR Section 7:11 states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes." According to the Massachusetts Department of Environmental Protection (DEP), the aforementioned regulations are enforceable by the Board of Health under 310 CMR 7.52. DEP representative Ed Pawlowski can be contacted at 978-661-7630. History of Noise - Material Installations Town Records indicate the following: a) North Andover Police records detailing noise complaints about Material Installations from at least early 1998. b) A Site Plan Review dated August 3, 1987 recognizes concerns with regard to trucks, noise and activity at night. The plan indicates the use of "evergreens and fencing to be looked into for possible noise barriers." c) Conditional approval of the Special Permit by the Planning Board (August 31, 1987). Regarding noise concerns, proponents "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." d) Paragraph 5 of the conditional approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line.' Noise experts have informed me that this landscape along with the fence is an unacceptal noise barrier in that it only provides psychological relief and does not physically lessen noise levels. Research from the Washington State Department of Transportation (WSDOT), Environmental and Special Services Section, indicates that it would take at least 100 feet dense vegetation to provide the same acoustical benefit as a noise wall. Furthermore, the Federal Highway Administration (FHWA), Office of Environment and Planning Noise and Air Quality Branch does not consider the planting of vegetation as a noise abatement measure. Specifically, "the planting of trees and shrubs provides only psychological benefits and may be provided for visual privacy or aesthetic treatment, not noise abatement" Conclusion As a homeowner, I am entitled the right to enjoy the full use of my property without unreasonable interference. Despite several attempts to resolve this issue, Material Installations continues to operate a nuisance. There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass. 138), the Massachusetts Supreme Court stat( that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation th the business must be carried on without negligence, but to the further qualification that ii must be conducted without unnecessaru disturbance of the rights of others." In order to protect the health of North Andover Meadowood Road citizens, it is respectfully requested that the Board of Health: 1) enforce the Commonwealth of Massachusetts Air Pollution Control Regulations; 2) survey and provide an opinion with regard to the effectiveness on the use of evergreens and fencing for noise barriers; and 3) identify appropriate measures to end the noise nuisance. I am available to attend any meetings and/or provide further information to include video corroboration of the activity log. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank -you for your time and attention to this important matter. Sin Kon antinos "Dino" Balos Attachments cc: Town Manager/Assistant Town Manager Board of Selectmen North Andover Meadowood Road Residents Attorney Matthew C. Donahue Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping p] DATE T11VIE' ACTIVITY (military:hoursJ Feb 02, 2003 0030-0600 Truck Idling Feb 03, 2003 No to Log of Feb 23, 2003 Actitiy Feb 24, 2003 2345 Truck Idling Feb 26, 2003 0400 Truck Idling Mar 01, 2003 0010 Truck Idling Mar 02, 2003 No to Log of Mar 22, 2003 Actitiy Mar 22, 2003 midnight Truck Idling Mar 25, 2003 0545 Truck Idling Mar 26, 2003 0515 Truck Idling Mar 28, 2003 2140 Truck Idling Apr 02, 2003 2125 Truck Idling Apr 04, 2003 0550-0830 Truck Idling Apr 04, 2003 2035 Truck Idling Apr 07, 2003 0600-0745 Truck Idling Apr 08, 2003 0730 Truck Idling Apr 14, 2003 0600-0745 Truck Idling Apr 15, 2003 0615-0722 Truck Idling Apr 17, 2003 0600-0745 Truck Idling Apr 18, 2003 0615-0745 Truck Idling Apr 19, 2003 0650-0730 Truck Idling Apr 22, 2003 0630-0720 Operating Waste Disposal Unit Apr 23, 2003 0605-0630 Operting Heavy Machinery Apr 23, 2003 0645-0730 Truck Idling Apr 25, 2003 0630-0745 Truck Idling Apr 26, 2003 0645 Truck Idling Apr 28, 2003 0605-0650 Truck Idling Apr 29, 2003 0615-0730 Truck Idling Apr 30, 2003 2225 Truck Fueling May 01, 2003 0620-0715 Truck Idling May 02, 2003 0625-0725 Truck Idling May 03, 2003 0615-0645 Truck Idling May 05, 2003 0445-0505 Truck Idling May 06., 2003 0630-0715 Operating Waste Disposal Unit May 08, 2003 0440-0505 Truck Idling May 08, 2003 2145-2210 Truck Idling May 10, 2003 1220-1235 Truck Fueling May 12, 2003 0550-0622 Truck Idling May 12, 2003 2300-2310 Truck Idling .May 14, 2003 2115-2130 Truck Fueling May 15, 2003 0600-0630 Dumpster Operation May 16, 2003 0530-0615 Truck Idling May 17, 2003 0230-0245 Truck Idling Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping I p2 May 17, 2003 0500-0510 Truck Idling May 24, 2003 0250-0315 Truck Fueling May 24, 2003 0800-0840 Truck Idling May 29, 2003 0630-0710 Truck Idling May 30, 2003 0620-0655 Truck Idling May 31, 2003 0235-0245 Truck Fueling May 31, 2003 0555-0720 Truck Operations Jun 02, 2003 2220-2230 Truck Fueling Jun 04, 2003 0630 Truck Idling Jun 04, 2003 2200 Truck Idling Jun 05, 2003 0600 Truck Idling Jun 06, 2003 0550 Truck Idling Jun 09, 2003 2250 Truck Fueling Jun 10, 2003 0555-0615 Truck Idling Jun 11, 2003 0800-0830 Truck Idling Jun 11, 2003 2245-2255 Truck Fueling Jun 12, 2003 0555-0655 Truck Idling Jun 13, 2003 0545-0600 Truck Idling Jun 13, 2003 0620-0635 Truck Idling Jun 13, 2003 0650-0720 Truck Idling Jun 14, 2003 0300 Truck Activity Jun 14, 2003 0700 Truck Activity Jun 16, 2003 0550-0615 Truck Idling Jun 16, 2003 0650-0700 Truck Idling Jun 18, 2003 0600-0610 Truck Idling Jun 18, 2003 0640-0655 Operation of Machinery Jun 18, 2003 2105-2115 Truck Idling Jun 18, 2003 2230-2345 Truck Idling Jun 19, 2003 0605-0610 Truck Idling Jun 20, 2003 0550 Loading Activity Jun .20, 2003 0555-0605 Truck Idling Jun 20, 2003 0630-0650 Truck Idling Jun 20, 2003 0730-0755 Truck Idling Jun 20, 2003 2135-2140 Truck Idling Jun 20, 2003 2150 Truck Activity Jun 21, 2003 0720 Truck Activity Jun 22, 2003 0615-0630 Loading Activity Jun 22, 2003 0650 Truck Activity Jun 23, 2003 0557-0607 Truck Idling Jun 23, 2003 0615 Truck Activity Jun 23, 2003 0630 Truck Activity Jun 23, 2003 2000-2010 Truck Idling Jun 23, 2003 2230 Truck Activity Jun 24, 2003 0620 Truck Activity Jun 24, 2003 0700-0820 Operation of Machinery Jun 24, 2003 2215 Truck Activity Jun 25, 2003 0712-0723 Truck Idling Jun 26, 2003 0700 Truck Activity Jun 26, 2003 0720-0845 Truck Idling Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping i p3 Jun 27, 2003 0715 Truck Activity Jul 01, 2003 0710 Truck Activity Jul 02, 2003 0720 Truck Activity Jul 08, 2003 2155 Truck Activity Jul 09, 2003 230-2240 Truck Idling Jul 10, 2003 0705-0750 Truck Idling Jul 11, 2003 2300 Truck Activity Jul 12, 2003 0615-0700 Truck Idling Jul 13, 2003 0610 Truck Activity Jul 13, 2003 0628 Truck Activity Jul 13, 2003 0630-0638 Van Idling Jul 14, 2003 0600 Truck Activity Jul 14, 2003 0604-0622 Truck Activity Jul 14, 2003 0700-0707 Truck Idling Jul 14, 2003 2135-2200 Truck Idling Jul 15, 2003 0600-0635 Truck Idling Jul 16, 2003 0550-0600 Truck Idling Jul 17, 2003 0600 Truck Activity Jul 17, 2003 0650-0700 Truck Idling Jul 18, 2003 0630 Truck Activity Jul 19, 2003 0225-0235 Truck Fueling Ju120, 2003 0700 Truck Activity Jul 21, 2003 0703 Truck Activity Jul 22, 2003 0700 Truck Activity Ju123, 2003 0640-0725 Truck Idling Jul 24, 2003 0710-0737 Loading Activity Ju125, 2003 0700 Truck Activity Jul 25, 2003 2335 Truck Activity Ju128, 2003 0610-0615 Truck Activity Jul 30, 2003 0610 Truck Activity Jul 30, 2003 0636 Truck Activity Jul 30, 2003 2145 Truck Activity Jul 31, 2003 0603 Truck Activity Jul 31, 2003 0614 Truck Activity Jul 31, 2003 0633 Loading Activity Jul 31, 2003 0638 Truck Activity Aug 01, 2003 0646 Loading Activity Aug 02, 2003 0645 Truck Activity Aug 04, 2003 0645 Loading Activity Aug 04, 2003 0705-0726 Truck Idling Aug 05, 2003 0615 Loading Activity Aug 05, 2003 0640 Truck Activity Aug 05, 2003 0646-0703 Truck Idling Aug 06, 2003 0610-0630 Truck Idling Aug 06, 2003 0642-0647 I Truck Idling Aug 06, 2003 0655-0710 Loading Activity Aug 07, 2003 0600 Truck Activity Aug 07, 2003 0603 Truck Activity Aug 07, 2003 0617-0652 Loading Activity Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping. p4 Aug 07, 2003 0652 Truck Activity Aug 07, 2003 0721-0731 Truck Idling Aug 08, 2003 0548 Truck Activity Aug 08, 2003 0550 Loading Activity Aug 08, 2003 0605 Truck Activity Aug 08, 2003 0616 Truck Activity Aug 08, 2003 0623 Truck Activity Aug 08, 2003 0714-0720 Truck Activity Aug 09, 2003 No Log to of Aug 11, 2003 ctivity Maintained Aug 12, 2003 0615 Truck Activity Aug 12, 2003 0634 Truck Activity Aug 12, 2003 0639-0659 Truck Idling Aug 12, 2003 0641 Truck Activity (Separate) Aug 12, 2003 0705-0720 Operation of Machinery Aug 13, 2003 0552 Truck Activity Aug 13, 2003 0620 Loading Activity Aug 13, 2003 0638 Loud Music Aug 13, 2003 2100 Truck Fueling Aug 14, 2003 0839-0859 Truck Idling Aug 15, 2003 0620 Loading Activity Aug 18, 2003. 0615 Loading Activity Aug 18, 2003 0640-0720 Truck Idling Aug 18, 2003 0654-0714 Truck Idling (Separate) Aug 18, 2003 2249-2254. Truck Fueling Aug 20, 2003 0629 Truck Activity Aug 20, 2003 0702-0709 Truck Idling Aug 21, 2003 0605-0640 Loading Activity Aug 21, 2003 0700-0717 Truck Idling Aug 22, 2003 0607 Loading Activity Aug 22, 2003 0622-0656 Truck Idling Aug 22, 2003 0643-0650 Truck Idling (Separate) Aug 22, 2003 0645-0655 Truck Idling (Separate) Aug 22, 2003 2110-2113 Truck Activity Aug 23, 2003 0722-0735 Truck Idling Aug 25, 2003 0615 Loading Activity Aug 25, 2003 0621-0624 Truck Idling Aug 25, 2003 0635-0637 Truck Idling Aug 26, 2003 0624-0626 Truck Idling Aug 27, 2003 0558-0605 Truck Idling Aug 27, 2003 0613 Truck Activity Aug 27, 2003 0617-0619 Truck Activity Aug 27, 2003 0625-0627 Truck Idling Aug 27, 2003 0632 Loading Activity Aug 28, 2003 0510 Truck Activity Aug 28, 2003 0611 Loading Activity Aug 28, 2003 0620-0657 Truck Idling Aug 29, 2003 0609 Truck Activity Supplemental Attachme Subject: Citizen Complaint for Investigation Re: Material Installations, Inc. Activity Log - Material Installations Shipping P-� Aug 29, 2003 0610-0612 Truck Idling Aug 29, 2003 0638-0640 Truck Idling Aug 29, 2003 0648 Truck Activity Sep 02, 2003 0130-0137 Truck Idling Sep 02, 2003 0550 Truck Activity Sep 02, 2003 0605 Truck Activity Sep 02, 2003 0607-0613 Truck Idling Sep 02, 2003 0615-0638 Loading Activity Sep 03, 2003 0616 Truck Activity Sep 03, 2003 0653-0702 Truck Idling Sep 03, 2003 2131-2138 Truck Fueling Sep 04, 2003 0617 Truck Activity Sep 04, 2003 0640 Truck Activity Sep 05, 2003 0610 Loading Activity Sep 05, 2003 0618 Truck Activity Sep 05, 2003 2010-2017 Truck Fueling Sep 05, 2003 2037 Truck Activity Sep 08, 2003 0155 Truck Activity Sep 08, 2003 0633-0647 Loading Activity Sep 08, 2003 0712-0723 Truck Idling Sep 08, 2003 1934 Truck Activity Sep 09, 2003 0649 Truck Activity Sep 10, 2003 0553-0614 Truck Idling Sep 10, 2003 0618-0707 Truck Idling Sep 10, 2003 0619-0704 Truck Idling (Separate) Sep 10, 2003 0620-0651 Truck Idling (Separate) Sep 10, 2003 0725-0751 Truck Idling (Separate). Supplemental Attachme NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. TABLE OF CONTENTS FACTS (pages 1-2) • NOISE SOURCE - MATERIAL INSTALLATIONS, INC. • NOISE - TRUCKING ACTIVITY • HOW DOES NOISE ANNOY? • IS NOISE A PROBLEM? NOISE EFFECTS - GENERAL (pages 3-4) • IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? • WHY IS NOISE CONSIDERED A HEALTH PROBLEM? NOISE AND THE BODY'S REACTIONS (page 4) • ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? NOISE AND THE UNBORN (page 5) • CAN NOISE AFFECT THE FETUS? PERFORMANCE INTERFERENCE (page 5) • IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? • ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? EFFECTS OF NOISE (page 6) • HOW DOES NOISE INTERFERE WITH SLEEP? • IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? CRITERIA FOR SLEEP DISTURBANCE (page 6) • CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? MENTAL, PSYCHOLOGICAL EFFECTS (page 7) • IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? WHAT LAWS APPLY TO THE NOISE PROBLEM? (pages 7-8) • HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? WHAT CAN I DO? (page 8) POSSIBLE SOLUTIONS (pages 8-10) • CHANGE BUSINESS OPERATIONS • ACOUSTICAL ENGINEERING - SOUND PROOF WINDOWS • SOUND BARRIER WALL • OTHER SUGGESTIONS CONCLUSION (page 11) • GOOD NEIGHBOR POLICY • CLOSING NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 1 of 11 FACTS:. • The Town of North Andover classifies the properties on Meadowood Road as `Residential -6.' Source: Town of North Andover records. • 11 Bayfield Drive d/b/a Material Installations is classified as `Industrial -1 _' Source: Town of North Andover records. • A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes concerns with regard to truck noise and the use of "evergreens and fencing to be looked into for possible noise barriers." Source: Town of North Andover records. • The Conditional Approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line." Source: Town of North Andover records. • The Articles of Organization [for Material Installations, Inc] states the following with regard to its business: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." Source: Commonwealth of Massachusetts records. • The Merrimack Valley Planning Commission (MVPC) indicates that the primary business of Material Installations is "Office Furniture and Equipment Installation (Whol)." Source: MVPC. NOISE SOURCE — MATERIAL INSTALLATIONS, INC. a) Shipping dock operations (to include truck activity) beginning earlier than claims made by Material Installations that they begin at 7:00 a.m.; b) Mechanical operation of trucks and related machinery (e.g., waste disposal); c) Trucks idling over 5 minutes (overnight as well as during shipping dock operations); d) Nighttime activities (e.g., truck operations - truck fueling, truck idling, etc.); and e) Loud voices of workers. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 2 of 11 NOISE — TRUCKING ACTIVITY Motor vehicles cause various types of noise, includes engine acceleration, tire/road contact, braking, and horns. Heavy vehicles (i.e., trucks) can cause vibration and infrasound (low frequency noise). Source: Indicators of the Environmental Impacts of Transportation, Office of Policy and Planning, USEPA (Washington DC; www.itre.ncsu.edu/cte), 1999. • A study of noise equivalency factors for trucks relative to Passenger vehicles determined that a truck traveling at a speed of 20 mph has an equivalency factor equal to 84 passenger vehicles. Source: FHWA -Office of Policy, "Comprehensive Truck Size and Weight." A study of outdoor noise levels indicated that a "Diesel Truck at 50 feet" is classified in the "Very Loud" category. Source: California -Nevada Super Speed Train Commission — March 2002 HOW DOES NOISE ANNOY? • Noise by definition is unwanted sound. It is an intrusion on one's sense of privacy. • Noise can bean emotional strain and a source of great frustration when the noise is beyond a person's control. Noise may interfere with a broad range of human activities, the overall effect of which is to cause annoyance. Such activities include: 1. Speech communication in conversation and teaching 2. Telephone communication 3. Listening to television and radio broadcasts 4. Listening to music 5. Concentration during mental activities 6. Relaxation 7. Sleep Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 56 IS NOISE A PROBLEM? In the words of former U.S. Surgeon General William H. Stewart, "Calling noise a nuisance is like calling smog an inconvenience. Noise must be considered a hazard to the health of people everywhere. " NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 3 of 11 But the presence of noise in our natural, rural, and urban environments is not just a nuisance -it's a health hazard. For example: • Noise is a biological stressor that has negative effects on the entire physiological system, contributing to elevated blood pressure, and changes in blood chemistry. • Noise causes sleep disturbances, which cause a host of problems, including reduced job performance, mood changes, and increased risk of automobile accidents. • Noise negatively affects one's ability to learn and concentrate. Studies have shown decreased reading ability and scholastic performance of school children exposed to noise. • Studies of adults show poorer performance of complex tasks in noisy environments. • Noise renders us less tolerant of frustration and numb to the needs of other people, further reducing our quality of life and the civility of society. Source: The Quiet Noise, Noise Pollution Clearinghouse, Summer 2001. NOISE EFFECTS - GENERAL Research solidly supports that noise is a health hazard, not just a nuisance. In passing the Noise Control Act of 1972, Congress found that "inadequately controlled noise presents a danger to the health and welfare of the Nation's population, particularly in urban areas." . IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? It is possible that repeated or constant exposure to noise can contribute to a deterioration in health. Research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 33. WHY IS NOISE CONSIDERED A HEALTH PROBLEM? • Noise is generally viewed as being one of a number of general biological stressors. • Noise may contribute to the development and aggravation of stress related conditions such as high blood pressure, coronary disease, ulcers, colitis, and migraine headaches. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 4 of 11 • Growing evidence suggests a link between noise and cardiovascular problems. There is also evidence suggesting that noise may be related to birth defects and low birth -weight babies. There are also some indications that noise exposure can increase susceptibility to viral infection and toxic substances. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 31. NOISE AND THE RODrS REACTIONS ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • At least two studies exist which suggest that exposure to high noise levels in schools and neighborhoods are associated with elevations in blood pressure. • The blood pressure levels of children living in high noise environments were found to be significantly higher than those of children attending schools or residing in quieter areas. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 34. WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? Stress can be manifested in any number of ways, including headaches, irritability, insomnia, digestive disorders, and psychological. disorders. Noise has been related to the following: • General morbidity (illness) • Neuropsychological disturbances • headaches • fatigue • insomnia • irritability • neuroticism • Cardiovascular system disturbances • hypertension • hypotension • cardiac disease • Digestive disorders • ulcers • colitis • Endocrine and biochemical disorders Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 35. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 5 of 11 NOISE AND THE UNBORN CAN NOISE AFFECT THE FETUS? • Studies have shown maternal stress causes constriction of the uterine blood vessels which supply nutrients and oxygen to the developing baby. • Stress may then threaten fetal development if it occurs early in pregnancy. The most important period is about 14 to 60 days after conception. During this time, important developments in the central nervous system and vital organs are taking place. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 37. PERFORMANCE INTERFERENCE IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? Yes, industrial noise may have the most pronounced effects on performance including exhaustion, absentmindedness, mental strain, absenteeism, tenseness, and irritability. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 47. ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? • There have been field studies which demonstrate that high noise levels have been correlated with poor performance on reading tests and auditory discrimination problems. • These effects were found to have little to do with socio-economic class or IQ. The significance of these effects is particularly important for younger children who through lack of verbal experience need lower noise levels in which to perform in order to develop the basic skills which contribute to cognitive and language development. Sleep disturbance is one of the major causes of annoyance due to noise. If it becomes a chronic problem, sleep disturbance may potentially lead to health disorders. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106.. Page 47. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 6 of 11 EFFECTS OF NOISE HOW DOES NOISE INTERFERE WITH SLEEP? • Noise, of course, can make it difficult to fall asleep. Noise levels can create momentary disturbances of natural sleep patterns by causing shifts from deep to lighter stages. • Noise may even cause awakening which the person may or may not be able to recall. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • He/she can be completely unaware of being affected but can have a disruption of total sleep quality nevertheless. • Subjects often forget and underestimate the number of times that they awaken during sleep. • Loud noises can continue to awaken or arouse the sleeper, but they may become so familiar with the sounds that they return to sleep very rapidly. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? A person whose sleep has been disturbed severely may feel lethargic and nervous during his waking hours and may be unable to perform at his usual' level of efficiency. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. CRITERIA FOR SLEEP DISTUPi3ANCE CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? • Sleep is thought to be a restorative process during which organs of the body renew their supply of energy and nutritive elements. • Since noise can disrupt the sleep process, it may take its toll on health. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 7 of 11 MENTAL, PSYCHOLOGICAL EFFECTS WHAT KIND OF MENTAL OR PSYCHOLOGICAL EFFECTS CAN OCCUR WITH EXCESSIVE NOISE RXPOSURR? • Excessive noise exposure can bring about a wide variety of psychological responses or symptoms in the individual. A person may respond with anger, or experience symptoms such as anxiety, irritability, and/or general emotional stress. • Distraction and poor judgment may result from mental fatigue. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? Studies have shown that residential areas exposed to high noise levels may have a higher incidence of mental illness among their residents. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 53. WHAT LAWS APPLY TO THE NOISE PROBLEM? Zoning: Through zoning local government regulates what uses may be made of a parcel of land. The intent is to protect adjoining property owners from incompatible uses and to increase the likelihood that a community grows in a way that enhances overall quality of life. • Section 4.132 of the North Andover Zoning By-laws states the following: 11. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing, or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. 13. Warehousing and wholesaling shall be permitted only as a secondary use. 15. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be iniurious noxious or offensive to the neighborhood. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 8 of 11 Section 7:11 of the Code of Massachusetts Regulations (CMR) states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes." • There is a duty to' protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass... 138), the Massachusetts Supreme Court stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the ri hcLts of others." HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? Yes. In Weltshe v. Graf (323 Mass. 498), plaintiff landowners and the defendant trucking company were located at the boundaries of a district zoned for business and a district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin defendant -trucking company from operating its business as a nuisance due to truck terminal noises. The Massachusetts Judicial Supreme Court ordered that a decree be entered in favor of the landowners enioining the trucking company from shipping -related activity. The court also affirmed that a "zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." WHAT CAN I DO? As you are aware, I have filed a complaint with the town (see me for a copy). I suggest the following: • Contact the town and inform them of the noise problem. o The town manager's phone number is 978-688-9510. o The Board of Selectmen phone number is 978-688-9510. • Contact the police (during the noise disturbance) at 978-683-3168 POSSIBLE SOLUTIONS As you are aware, an official complaint has been filed with the town regarding Material Installations and the problem of noise nuisance. If you would like .a copy please see me. The below suggestions only relate to solving the problem and do not address the fact that Material Installation has continued their operations unchanged. This is despite knowing that their operations are a nuisance to their neighbors. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 9 of 11 CHANGE BUSINESS OPERATIONS The Noise Pollution Clearinghouse recommends the following with regard to Commercial and Industrial operation within 1, 000 feet of residential property: 1. Limit noisy operations such as outdoor loading, unloading, use of power tools, to 9 AM to 5 PM, Monday to Saturday. 2. Ensure that any noise spilling over onto neighbor's property is less than typical conversational levels. 3. Turn off trucks and auxiliary equipment if vehicle is stationary for more than 2 minutes. 4. Schedule trash pickup between 9 AM and 5 PM. ACOUSTICAL ENGINEERING — SOUND PROOF WINDOWS Sound Abatement Windows: These windows are specifically designed to reduce unwanted noise affecting residential communities (i.e., aircraft, trains and automobiles). • These windows are used at airports throughout the country to include Boston's Logan Airport. SOUND BARRIER WALL Q. How effective are noise walls? A. This depends on the distance between the listener and the wall. For residences located directly behind the wall, the perceived noise level will be cut in half. This benefit decreases as a listener moves farther away from the wall and is negligible at distances greater than 500 feet. Q. How is the height of the barrier determined? A. Noise walls are designed to provide a minimum of five decibels of reduction in average background traffic noise for the majority of first row of residences located directly behind the wall, with a 7 decibel reduction at at least one location. The reasonableness criteria places a practical limitation on the height of any noise barrier. Q. Why not plant trees instead of putting up a wall? A. Trees provide a visual shield and some psychological benefit, but are not nearly as effective at reducing noise levels as a solid barrier. It would take at least 100 feet of dense vegetation to provide the same acoustical benefit as a noise wall. Source: Washington State, Department of Transportation, Environmental and Special Services. A. The Federal Highway Administration (FHWA) does not consider the planting of vegetation to be a noise abatement measure. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 10 of 11 A. The planting of trees and shrubs provides only psychological benefits and visual privacy, or aesthetic treatment, not noise abatement. Source: Federal Highway Administration, Office of Environment and Planning Noise and Air Quality Branch "HIGHWAY TRAFFIC NOISE ANALYSIS AND ABATEMENT POLICY AND GUIDANCE." How Do People React to Noise Barriers? Residents adjacent to barriers say that conversations in households are easier, sleeper conditions are better, the environment is more relaxing, windows are opened more often, and yards are used more in the summer. Source: Federal Highway Administration, Highway Traffic Noise Barriers. Are Residents' Views Considered? • Landscaping in the vicinity of noise barriers should be integrated with the landscaping theme. Wherever possible, consideration should be given toward accommodating existing vegetation in the design process. • A balance should be struck between wall decorations and landscaping. Decisions made in consultation with neighborhood groups & elected officials. • The general approach is to aesthetically design the noise wall in a manner that it blends into the surrounding environment and is as un -intrusive as possible. Source: Federal Highway Administration, Noise Barrier Aesthetics NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 11 of 11 Sound Wall - Summary While noise barriers do not eliminate all noise, they do reduce it substantially and improve the quality of life for people who live adjacent to areas of noise. OTHER SUGGESTIONS A combination of the above mentioned suggestions providing a long-term solution to noise nuisance. CONCLUSION GOOD NEIGHBOR POLICY The Purpose of the Good Neighbor Policy is to protect the comfort, quiet, repose, health, peace, and quality of life of people. At a minimum, everyone should reasonably expect: 1. To be protected from adverse impacts on their quality of life due to noise; 1. Not to have their sleep disturbed by noise; 2. Not to hear someone else's noise in their home. Source: Noise Pollution Clearinghouse. CLOSING • As outlined in this guide, there are many concerns related to noise. • This includes health effects and quality of life issues. 9 Ignoring the problem, condones the problem. In conclusion, ask yourself if you find it acceptable to mow your lawn early in the morning or in the middle of the night. Chances are that you don't out of common courtesy for your neighbors. Why should someone else be held to a lesser standard? "The community is only as strong as the will of its individual members." THIS IS A PROBLEM. LET'S DO SOMETHING ABOUT IT!