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Home My WebLink AboutLegal Document - 1003 OSGOOD STREET 3/22/2011 i `SECEIVED COMMONWEALTH OF MASSACHUS T R C' F RIr'S OFFICE ESSEX, SS 20V � �r°� 2 Doc et o. TOO`IN fl;' GREAT POND CROSSING, LLC and MASSGGh ;1JIS— WILLARD D. PERKINS, Plaintiffs, V. NORTH ANDOVER PLANNING BOARD; JOHN SIMONS, RICHARD ROWEN,TIMOTHY SEIBERT, COURTNEY LaVOLPICELO,AND MICHAEL F 0 L COLANTONI, as they are members of the North Andover IN THE SUPERIOR COURT Planning Board; and OSGOOD PROPERTIES LLC, FOR THE COUNTY OF ESSEX Defendants MAR 2 2 2011 --�—� COMPLAINT CLERK INTRODUCTION This is an appeal,pursuant to G. L. c. 40A, § 17, from the Decision of the North Andover Planning Board filed in the Office of the Town Clerk of the Town of North Andover on March 2, 2011, approving a Site Plan Special Permit in favor of Osgood Properties LLC, related to the property at 1003 Osgood Street. PARTIES 1. Plaintiff Great Pond Crossing, LLC ("Great Pond") is a Massachusetts limited liability company with a principal address at 28 Andover Street,Andover, Massachusetts 01810. Great Pond owns the Great Pond Crossing commercial complex at 1025 Osgood Street, and is an abutter to the subject property. 2. Plaintiff Willard D. Perkins ("Perkins") is an individual with a business address at 28 AndovenStreet,Andover, Massachusetts 01810,.and a co-owner of Great fond, which is an abutter to the subject property. 3. Defendant,North Andover Planning Board(the `Board"), is the duly-appointed special permit granting authority for the Town of North Andover pursuant to G.L. c. 40A, § 9 and the North Andover Zoning Bylaw. 4. Defendant John Simons ("Simons")resides at 25 Ironwood Road,North Andover. He is the Chairman of the Board and is named as a defendant in his official capacity only. 5. Defendant Richard Rowen ("Rowen")resides at 102 Bear Hill Road,North Andover. He is a member of the Board and is named as a defendant in his official capacity only. 6. Defendant Timothy Seibert("Seibert")resides at 65 Elm Street,North Andover. He is a member of the Board and is named as a defendant in his official capacity only. 7. Defendant Courtney LaVolpicelo ("LaVolpicelo") resides at 20 Ferncroft Circle, North Andover. She is a member of the Board and is named as a defendant in her official capacity only. 8. Defendant Michael Colantoni("Colantoni")resides at 50 Christian Way,North Andover. He is a member of the Board and is named as a defendant in his official capacity only. 9. Defendant Osgood Properties LLC,the applicant("Osgood Properties"), is a Massachusetts limited liability company with a principal place of business at 865 Turnpike Street,North Andov r, MA 01845. JURISDICTION 10. This C ourt has jurisdiction over this zoning appeal pursuant to G. L. c.40A, § 17. FACTS 11. On Ju e 18, 2010, applicant Osgood Properties filed a petition with the Board for a site plan special pei mit, The application included a request for a site plan special permit to 2 construct a retail, office and restaurant complex in a B-2 zoning district. 12. The zoning relief was required in connection with the construction of a building containing more than 2,000 square feet of gross floor area and/or the requirement of five or more parking spaces. 13. Public hearings were held on July 20, October 5, and November 16,2010, and February 15 and March 1, 2011. At the March 1, 2011 hearing,the Board voted to approve previously prepared draft special permits.A certified 'copy of the decision is attached as Exhibit A. The decision was filed with the Town Clerk on March 2,2011. 14. During the course of the Board's review of the application,the project scope and plans changed substantially. The original application sought the construction of 110 parking spaces and the creation of an additional curb cut for egress to the site,in addition to the shared driveway with the property at 1025 Osgood Street. 15. The Board approved a site plan special permit for 19,300 square feet of retail, office, and restaurant space, which would require 108 off-street parking spaces pursuant to the Zoning Bylaw. The Board granted the applicant's request to create only 70 spaces, a 35% reduction,based in large part on the finding that, "There is an opportunity to share parking spaces with the adjacent development at 1035 Osgood St." 16. The Board's approval of the reduced parking was also based on the applicant's reduction in the impervious surface footprint of the project,primarily by reducing parking spaces, and location of the parking further from Lake Cochicewick (and closer to the Great Pond Crossing property). The Board's approval of the reduced parking came despite the well- documented parking problems at other multi-tenanted commercial sites in North Andover. 17. The Board also permitted the applicant to eliminate the planned curb cut and 3 provide access to the site solely via the shared driveway. 18. The elimination of direct access to the applicant's property will result in all of the increased traffic volume created by the project being directed through the shared driveway with Great Pond Crossing without the Board seeking or obtaining Great Pond's consent or input. 19. The Board instead found that the applicant's"proposal was designed to complement the adjacent development at 1025 Osgood St., Great Pond Crossing." 20. The Board voted to approve the project without a single meaningful condition protective of the plaintiffs' interests or the protections.afforded by the zoning bylaw. For example, although the decision requires the designation of a construction monitor and the filing of plans and proposals,there is no requirement that construction vehicle traffic,hours of operation, and the construction itself be conducted so as not to minimize disturbance to the ongoing business operations at Great Pond Crossing, despite the shared driveway and, apparently,parking. 21. The parking changes approved by the Board will necessarily impact the plaintiffs, who will be burdened with parking by customers of the neighboring development. Rather than requiring the applicant to rnaintain signage or•other barriers to prevent cross-over parking by employees, customers, or delivery vehicles,the Roard relied an the availability pf parking at Great Pond Crossing to absorb the inevitable overflow that will be created by the shortage of parking on the site. 22. The Board did not require the applicant to file any form of written consent by Great Pond Crossing, LLC to the burden the applicant seeks to place on its neighbor. The Board also did not solicit the input of the tenants and other condominium owners that run their business at the site in regards to the reduced parking requirement. 4 23. The approved site plan does not protect the rights of the Great Pond Crossing, LLC but instead seeks to be a complement to the neighboring development without recognizing that the properties are not under common ownership. 24. The parking and access changes approved by the Board represent a significant alteration from the original application, which will significantly impact the plaintiffs in this case by overburdening their property for the benefit of the applicant. 25. The plaintiffs in this action are the owner of the abutting Great Pond Crossing property at 1025 Osgood Street, and one of the co-owners of Great Pond. 26. The plaintiffs are persons aggrieved by the Board's decision and the decision will specifically impact their use and enjoyment of the property at 1025 Osgood Street and the value of that property as the relief granted by the Board will directly burden the plaintiffs with overflow parking, increased traffic at the site access driveway, and no protection from the ill effects of the construction process. 27. The Board exceeded its authority pursuant to G.L. 40A and the zoning bylaw. WHEREFORE, the plaintiffs respectfully request that this court enter judgment annulling the decision of the Board and entering such other relief as justice and equity may require. 5 Dated: March 2011 RESPECTFULLY SUBMITTED, GREAT POND CROSSING,LLC By: �j/JJ/— WILLARD D. PERkINS,MANAGER GREAT POND CROSSING,LLC 28 Andover Street Andover,MA 01810 (978) 475-5400 WILLARD D. PERKINS 28 Andover Street Andover, MA 01810 (978) 475-5400 6