Letter from Attorney Dennis Murphy
Dennis A. Murphy, Esq.
June 7, 2021
BY EMAIL (SabrinaChilcott@townofpembrokemass.org)
Pembroke Zoning Board of Appeals
100 Center St.
Pembroke, MA 02359
Re: Application of River Marsh Village, #48-18, 274 Water Street, Pembroke MA
Dear Members of the Board:
We represent the Water Street abutters to this proposed project, whose names and
addresses are at the end of this letter. Enclosed is the North River delineation plan (sheet 7 of 10)
dated August 30, 1978, which depicts the locations of the open water channel, natural river bank,
and the scenic river corridor for the North River (“North River Corridor”). This plan was
recorded in 1979 along with the Scenic and Recreational River Protective Order for the North
River (“North River Protective Order”), which is also enclosed. The full set of plans is available
at the North River Commission website: http://www.northrivercommission.net/Maps.php
When this Applicant sought an Order of Resource Area Delineation (“ORAD”) from the
Pembroke Conservation Commission in 2017, the Commission refused to issue the ORAD
because the Applicant did not delineate the location of the North River Corridor on the plan. The
North River is a perennial stream, which ordinarily would have a 200 foot Riverfront Area
associated with it. But because the North River required a 300 foot corridor, it made little sense
to delineate the 200 foot Bank setback where a 300 foot setback was required. The Superseding
Order of Resource Area Delineation (“SORAD”) issued by MassDEP on February 22, 2018
included neither the 200 foot Bank, nor the 300 foot North River Corridor. The SORAD has
since expired. As a result, this Board has no current plan depicting wetland resource areas on the
site, including the North River Corridor.
Under the North River Protective Order, the Corridor extends 300 feet from the natural
bank of the river. Instead of a fixed location, “Natural Bank” is defined in the Order in relation to
adjacent wetlands, in order to accommodate changes over time. Given the dynamic nature of the
river, marsh and estuary, the delineation of the North River Corridor must also change over time.
The location of the river depicted on the 1978 plans certainly differs from the location of the
river today, forty-three years later. Delineations, after all, are valid for only three years.
“Natural Bank” as defined in the North River Protective Order refers to the “landward edge” of
various types of wetlands. Those terms – “landward edge” – appear four times in the definition
of Natural Bank for a reason: to extend the protection of the North River 300 feet beyond the
river, marsh and associated wetlands. (3/22/79 North River Protective Order, s. 1(F) & (I)) The
plans submitted to the Board in support of the application appear to be based on the 1978 plans,
and do not take into account changes to the river, marsh or wetlands in the 43 years since then.
A new wetland delineation should show the present location of the Natural Bank and the
North River Corridor, consistent with Mr. Horsley’s letter submitted on May 15, 2021. Among
other reasons to require an updated plan showing the current location of the North River Corridor
is that the North River Protective Order – a state law that cannot be waived – regulates the
proximity of development to the Natural Bank. For example:
• Principal structures must “have a minimum setback from the natural bank of 100 feet”
3/22/79 North River Protective Order, s. 8(A)(1)(a)(ii);
• Driveways “shall have a minimum of 75 feet upland from the natural bank” Id., s.
• “No leaching facility shall be constructed within 100 feet of the natural bank of the river
or any other watercourses within the Corridor” Id., s. 9(C)(2)).
Moreover, the North River Protective Order prohibits:
• “Placement or construction of structures, subsurface sanitary facilities, roadways, and
driveways on any wetland (as define[d] in G.L. c. 131, s. 40)” Id., s. 7(K);
• “Discharge of any pollutants . . . into the Corridor” Id., s. 7(U); and
• Vegetative Cutting “within 300 feet of the natural banks of the river, no trees or other
vegetation shall be harvested, cut, culled, removed, thinned or otherwise disturbed” Id., s.
Without knowing the precise location of the Natural Bank, as defined in the Protective
Order, this Board has no way to assess whether the minimum setbacks have been met, or whether
the proposed project otherwise complies with the strictures of the North River Protective Order,
a state law.
Thank you for your continued diligence in addressing neighborhood concerns as you review this
application and consider the proposed project.
Very truly yours,
Dennis A. Murphy
Cc: Warren F. Baker, Esq.
Amy Kwesell, Esq.
Scott Chapman and Carol DeFranca, 226 Water St., Pembroke MA
Jane and Marty Cournan, 260 Water St., Pembroke MA
Carolyn and Chuck Crossley, 286 Water St., Pembroke MA
Chris and Traci Graham, 271 Water St., Pembroke MA
George and Tanis Howe, 285 Water St., Pembroke MA
John Kan and Christine Perkins Kan, 275 Water St., Pembroke MA
Robert Schimitz and Sharon Spadorcia, 268 Water St., Pembroke MA
John and Shannon Wilson, 248 Water St., Pembroke MA