Developer seeks order of conditions for 102B Lane to resolve MassDEP litigation; commission orders more review

At the Lowell Conservation Commission’s March 12 meeting, Scott Goddard of Goddard Consulting presented revised plans for a notice of intent at 102B Lane that would allow limited filling of wetlands on the site while creating replicated wetland area and a long‑term buffer. Goddard said the proposal is intended as a settlement with the Massachusetts Department of Environmental Protection (MassDEP) and would, if the commission issues an order of conditions, end the adjudicatory litigation with the agency.

The plan calls for two proposed fill areas described by Goddard as about 680 square feet on one edge and 476 square feet on another edge — figures he characterized as “1,200 and change” total and below 1,500 square feet. Goddard said one filled area would qualify as a “finger‑like projection” under DEP regulations (he cited the 476 square‑foot area as under the 500‑square‑foot threshold), and that the application includes wetland replication at a ratio greater than 1:1 to create net wetland benefit.

The proposal also includes design changes and additional plan sheets responding to comments from MassDEP and multiple city departments, Goddard said. He told the commission the replicated area is proposed on an existing historic fill pile and that the design avoids the site’s core depressional wetland with standing water.

Commissioners raised practical and jurisdictional concerns during the discussion. Several members said they saw a pond or ponded water on the site during recent site visits and questioned whether the resource area should be treated as bordering vegetated wetlands (BVW). Commissioners asked about dewatering for basements, how excavated water would be handled, the potential for construction‑period impacts along the proposed driveway that runs adjacent to the resource area, seasonal timing for work, snow‑storage impacts, and the extent of tree removal across the 100‑foot buffer zone. One commissioner said the project appears to “completely change” the 100‑foot buffer within the property.

Commissioners also discussed the legal and procedural implications of issuing an order of conditions while litigation with MassDEP remains pending. Goddard repeatedly characterized the matter as a settlement conversation in which the applicant would “capitulate” to MassDEP’s asserted wetland boundary and classification in exchange for a permitting pathway. Commission members requested written legal guidance before any decision and discussed hiring a third‑party wetland peer reviewer to evaluate the wetland boundary and the replication design if the commission intends to move toward an order of conditions.

After discussion the commission voted to continue the public hearing to the March 26 meeting to give members time to review the newly submitted materials and to obtain legal advice. Commissioners directed staff to obtain a legal opinion on proceeding while the DEP adjudicatory matter remains open and to prepare options regarding an independent wetland peer review for the commission to consider at the next meeting.

The commission did not make a substantive vote on the merits of the notice of intent at the March 12 meeting. The hearing remains open and continued to March 26 for further review.