Letter from Attorney Dennis Murphy

Dennis A. Murphy, Esq.

dgusmurphy@gmail.com

781-588-7881

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.

8(B)(1); and

• “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.

8(C)(1).

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,

/s/

Dennis A. Murphy

Encl.

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