The URL can be used to link to this page

Home My WebLink AboutCorrespondence - 250 CLARK STREET 11/15/1988 W MILLER ENGINEERING, INC. 100 SHEFFIELD ROAD • P.O,BOX4776 • MANCHESTER,NEW HAMPSHIRE 03108 • TELEPHONE(603)668-6016 GEOTECHNICAL/SOIL BORINGS/CONCRETE/STEEL/ROOFING/ASPHALT INSPECTION November 15 , 1988 Mr. Tim McCain MORTON BUILDINGS, INC . 76 Newburyport Turnpike Ipswich, MA 01938 Re : Morton Buildings , Inc . Job 129-0143 Pre-Engineered Building for Wayne Mansfield/Nat' l Aerial Advertising No. Andover, MA Project No. 80835.01 Dear Mr. McCain: As requested, I have reviewed the plans , specifications and struc- tural computations as prepared by Morton Buildings, Inc . relative to the above subject project. Based upon my review, it is my opinion that the plans , specifications and structural computations as prepared by Morton Buildings, Inc . conform to the requirements of the Commonwealth of Massachusetts State Building Code. This pole building has been designed and shall be erected in accordance with the applicable standards as stated in Section 726 .0 of the Code . Thank you for your attention to this matter. If you have any further questions or comments , please do not hesitate to contact our office . Very truly yours , " IN OF M MI ER ENGINEERING, INC . �'� ARTHUR q�ti W. �4 STRUCTURAL 666 No 30734 Arthur W. Rose, P.E. GISTER�1) Vice President, Engineering F£SSj�NAI AWR:paz WATERBURY,VERMONT•SHREWSBURY,MASSACHUSETTS•AUBURN,MAINE LeIlto EnvIron '. ant a l Cent; uItanta LEC Wildlife Biologists Wetland Scientists Complete Environmental Permiltin9 Process f. December 20, 1988 BY REGULAR MAIL Mr. Earl Townsend T&M Engineering 83 Pine Street Peabod*,J1, Massachusetts _ 19c,t RE *National Aerial Advert.i.sinq site Off Old Clark toad, North Andover Dear Mr. Townsend., In response to your request; LEC has conducted a site evaluation of the National Aerial Advertising site off €ld Clark Road in North Andover. The purpose Lit this GvalUation was to determine the existing protectable resource areas located onsite. The fol- lowing decription is a si-lytiffidXY of the observations made by LEC. The topography of the site was gently rolling with large flat areas. The existing vegetation fOU11d onsite was dominated by Upland sPeciesn TWO distinct cover type were discernedr old field and secondary mixed hardwoods. The old field contained a shrub layer of crab apple ( a 3as . ) bayberry ( ? 'c° nn yl.van A) , hig�i;)trsh blue erry (fir ' or k osgm) , red oak saplings ( 1Ler�tts sweet fern (Canl�pto� DiA and some speckled alder ( � � � w ) d The her- baceous layer contained brooDI sedge f. i..- p ooj p _i ,) hair cap moss ( 21 t i ht1nn a ) , and bush clover ( 'eq _ d , r� The secondary stand of mined hardwoods contained a complete canopy of red maple (Ac �!r t ►� r-�,7!) , red ual, ( -- mss? . ) and white oak ( uer°cus 1 a) . `the understory included a sparse shrub and herbaceous community Consisting of arrow-wood (yi _�bqr4gm dqn- ata 1n) r pint cherry (Prunq ��as `�va�1 �) , and loss ( 1.. u >Frartc�ull,�) buckthorn North Shore South Shore 83 Fine Street P.O. Box 324 Peabody, MA 01960 North t=almouth,k1A 02556 (61 7)535.7861 (617)540,9514 I t ® E n v I r 0 n i., e n I a I C ® n 8 u I t a n t CONCLUSION The dominant vegetation Observed on the Old Clark Road site was Primarily upland species® Several wetland indicator species were sparsely scattered through portions Of the site. Note, these indicator species were present in insufficient densities and no protectable resource areas were located. Hence LEC concludes that this site is not subject to the regulations Promulgated under Massachusetts General Law Chapter 131 Section 40, The Wet- land Protection Act. If you have any questions regarding these jnatte hesitate to contact me. rs Please do not Sincerely, LELITO ENVIRONMENTAL CONSULTANTS ace -P� "et Paul R. Lelito Principal Scientist ,ISM im o iq"r 1-i A N[ E R IF 114!�i D E F, �R 11 f % k ' a imiwmmmmmmmimniM1nipW.wmu9.r.V9�uumu NWUU W UU Imuu uu Wwwwwwww.wwwWWww.wwuwuuuuu uu uwww a uuuwVw uww ww!wWUw w C CENTRAL W u...u .. M.................n utlum N N..NtluN..............m rvrvry rv?ry x wm ry W n umuu .. .....O u u u iltl FIR HEA W W 124. MWn Street N(��)rth Andover, Mass. 01845 WILUAM V DOL A Chief of Department .. fl, (508) -3812 To: Planning Department From: Lt. Melnikas Re: National Aerial Advertising Inc. Date: April 11 , 1989 The Chief and I reviewed the proposed plans and have the follow- ing recommendations : 1 . 3601 access be provided around the building. This can be done by material other than pavement provided it can bear the weight of the fire vehicles and that it is maintained through- out the year. 2 . An additional hydrant be added beyond the building. 3 . The building be fully sprinklered and these plans be I .S .O. approved. 4 . A complete fire alarm system, including master box, be installed. The plans for this to be reviewed by the Fire Department. 5 . A secured key access box be installed prior to taking occu- pancy. Lt. Andrew Melnikas, Fire Prevention Officer ''SMOKE DE, 6 M.y,.f O R S SAVE IL..,l W E S v a THE MIDTOWN BUILDING A441n,1 �_�� V�.J 370 ESSEX STREET LAWRENCE. MASSACHUSETTS 0I840 TELEPHONE (50 B) 696.6129 TELEFAX (506)606.2659 BURTON A.SHAKER(ADMITTED MASS.6 CONN.BARS) GERALD M.LEWIS JOHN A.JAMES,JR.(ADMITTED MASS_N.H.AND R.A.BARS) BARRY N. STEINBERG (1925-1966) May -22 , 1989 Building Inspector Town of North Andover North Andover, MA 01845 In re: Nativnal Aerial Advertising, Inc . Our file 87130-B Dear Sir: Please be advised that I represent National. Aerial Advertising, I17r_ , relative to its application for a building permit on the Lawrence Municipal Airport . As you are probably aware, Wayne Mansfield, President of National Aerial Advertising, Inc . appeared before the North Andover Planning Board on May 11 , 1989 and submitted a plan dated December 20, 1988 , revised on April 18 , 1989 and prepared by T & M Engineering Associates , which is a site plan of land in North Andover prepared for National Aerial Advertising, Inc , located at the Lawrence Municipal Airport . The plan and building thereon had previously been approved by the Lawrence Airport Commission and, therefore, was not subject to the jurisdiction of the North Andover Planning Board as a condition precedent to obtaining a building permit. I am enclosing herewith a copy of a decision of the Massachusetts .Attorney General dated April 18 , 1967 and certain correspondence attached thereto which decision specifically holds that an airport commission acting within its authority is not subject to the zoning by-laws to the extent that they prevent it from discharging its public functions . A thorough reading of this decision, with the attached correspondence, will verify our position. In view of the foregoing, it would be appreciated if the building permit would issue since , according to the information that I have, the proposed building complies with all code requirements . Page 2 May 22 , 1989 Our file 87-180-B If it continues to be the position of the Building Inspector ' s office of the Town of North Andover that Planning Board approval is required, it would be appreciated if you would inform me of the same so that I might take the necessary steps to correct this misinterpretation of applicable law. Thank you for your cooperation. Cordially, Burton A. Shaker BAS;bib enc. cc : W. Mansfield Secretary, Planning Board, North Andover Members of the Town Council , North Andover DANIEL 1),iNOVAN ATTORNEY AT LAN GV11[ A 5 ELM STPEET .7ANVERP MA95ACHU9ETTG ToL -•r•.aoez January 6 , 1967 Mr . Rcoer L. Hallo , Building Inspector Town of Danvers Danvers , hascachusette Dear Sirs It is my understanding that an application has been mode for the building of a structure on promisee owned by the Beverly Airport Commission to be used as a hangar and club facilities including a snack bar, storage , mointenonco , and fueling of air- planes for purposes of operating a flying club and flying school on land zoned under the Danvers Zoning By-Law as Industrial II . Chapter 90, Section 51H, would apparently enable the Beverly Airport Commission to rent and lease much property for such ueo within its enabling statute so that the problem remolveo itself + paragraph to s question of zoning. Section IX, C, h 3 of the Danvers p g p Zoning By-Laws allows ac a oermissable use private landing erase , t to be .used solely for landing and taking off and storing of pri- >, vately owned sirplenes and helicopters . It would appear that this provision, of necessity, will have to be construed in its narrower sense , having in mind paragraph D of the same section of the zoning by-law" , which states as followst "No use shall be permitted which by reason of the emission of odor , fumes , dust, noise , smoke , vibra- tion, radiation , or any other cause would be injurious , noxious , offensive , hazardous or otherwise objectionable to the neighborhood '! - or the town; "and the provision of Section XII , paragraph 4 which ,.: states , "No uss of land or use of buildings or structures not spcci- fied in these Zoning By-laws shall be permitted. " Having in mind these provisions , in my opinion, proposed use as indicated above wound be too broad a use to qualify within the Danvers Zoning By-Law, under the aforesaid Section IX, C, para . 3 , 'C or as an accessory use under Section IX , C, para . 4. '. , .s This raises the question as to whether or not the Beverly Airport Commission is subject to the control of tht Danvers Zoning By-Low. Chapter. 40A, Section 10 oxempte building structure or lend use , used or to be used by -e public oorvice corporation, 'if -exanptod r.. by the Department of Public Utilities on permieeion. Howovor, mince the oxe►nption is confined in JtS operation to public service corpora tionsz , the initiative would be on the applicant to qualify within 1 v •�rp•-�0 • Av Mr. Roger L. Hello - 2 - January 6 , 1967 this exemption. Marinnl ,j y. Bpe;.d of Apocal of Boston , 275 14;-es. 169 {r P-Q. 170. The Massachusetts Supremo Court on the cane of Villoga on the Hill v. Maseachusette Turnpike Authority, 348 Maso. 107, hold in _ 1964 that the locni provisions of o zoning by-low %,+ero applicable to land of Messechusetto Turnpiko Authority on land not actually used for highway purpoeoa. A later case decided by the Massachusetts Supreme Court in 1965 , Russell v. Zoning Board of Appeals of Brookline, 349 Hans . 532 0 pg. 536 , held that no oct of congress nor of the gonsrel court had gronted an old age houning ' authority exemption from. local regulations thus leaving the authority subject to the town zoning by-low. It would, therefore , appear that application for the con- .� struetion of a building for the ueos as indicated in not within the permitted ueos of Industrial II Zone, and secondly, the applicant is subject to • end regulated by the Danvers Zoning By Law. It is -my opinion, therefore, that this permit should be denied by the Building Inspector unless it shall be determined by the Department of Public Utilities that it is within the exemption of Chapter 40 A. Very truly yours , Denial FJ Donovan , Special;, wn Counsel DJD: GMC �. CC: A. Kenneth Carey, Town Counsel (A. Kenneth Carey, Town Counsel, concuro' with above opinion) March 29, 1967 _r Mr. Crocker Snow Director of Aeronautics The Commonwealth of Massachusetts Aeronautics Commission Boston-Logan Airport Boston, Massachusetts 02128 Dear Mr. Snow, The Beverly Airport Commission desires to request through your office a legal opinion from the Attorney General relative to the following: Is the zoning and building code of a town, effective in that part of the town, owned by another municipality? Or, more specifically, is land located in Danvers, Mass. but owned and part of the Beverly Municipal Airport, subject to the control of the Danvers Zoning By-Laws? The reasons for the above request are as follows: O� I . The Beverly Airport Commission is in the process of investing their funds in roads and other facilities, on the west side of the Beverly Airport. This land is located in the town of Danvers. (see latest master plan) 2. The Omni Flying Club, a new tenant on the west side of the field, has specifically applied for a hangar building permit and has been turned down by the Danvers Building Inspector. (see attachment) 3. The lots on the west side of the field, as specified in our Fay, Spofford & Thorndike, Inc. Report of 1961 , are the most logical ones to open up for new business. The Beverly Airport Commission, during the past few years, has been proceeding on this premise. Very truly yours, BEVERLY AIRPORT COMMISSION Whitney B. Robinson Chairman - WBR/ac cc: Frank Sweeney e0.// ��G�'!!1/!?LG'7Z7�`L'l•Z�l,1U /c,i"�/C�ddGT��/LCldf�.d� r� ~ r 961JI 71 - ��a�r Yr n JJi�losL 02!26' April 3, 1967 Hon. Elliot; I.. ,.Richardson Attorney. Genoral.,, StAte ilouso 13oston, Massachusetts 02133 Dear. .Mr. `.Richardson ,1 '1 The Beverly Airport Commission"haa_aeke -u$ , to:-nettle an arguu:ent; which• ti as`. legal:.• ramiPicatiori that-ozily .you can resolve fo r us. rThe-facts. Are these.. '.. . . 1,' . ' '11•`f ' ',..: 1. .r:•. •.. j .. �• //� '. 1. A substantial part of t,ha/real �e\state of the Beverly Airport-,..is :in by Town -0f "Danvers. - r1='Z`. Acting under"'ttiv 'authority jof .pertinent provisions . •-d of I Chapter`90�� especiall Secti6ne. 3$(,e),, .and: • < i . r, `'S1J ' the Coaunie�ic+it°has agreed to lease a portion of ,the, airport. property``J ying within. the Town of Danvers to_; tk�e Omni Fly ng :Club as. a,hangar eite.-��:. '� Club has been advised by the_ 3, The Omni Flya nS, Cl � ;.{ Danve,ra 3_u3ldin Inspector, t-presu,nabiy on"the:'basis „ 'of. a/letter'• firom `the Town Coungelp ''a�co`py' 'of"•,which;,_. . •r is'"At`tacYicd"''`that' tha,proposed' buiiding violi�tes the!:towd"zoriind ordinance and may not, therefore, be constructed The question is whether local zoning ordinances or building codes govern the use of airport land owned and administered by another city or torm. 'Yery_'truly 'yours, Crocker Snow Director of Aeronautics CS/wFin Encs Copy of letter d. 1/6/67 from Daniel J. Donovan, Esq. t� Mr. Rotor L. Halle THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL \ a STATE HOUSE ® BOSTON 02133 April 18, 1967 ELLIOT L. RICHARDSON ATTORNEY GENERAL Mr . Crocker Snow : . Director of Aeronautics Massachusetts Aeronautics Commission - . Logan International Airport East Boston, Massachusetts 02128 Dear Mr . Snow: I By letter dated April 3, 1967 , you have requested my opinion as to whether the zoning by-law of the town of Danvers may be applied to bar the use of land in Danvers lawfully acquired by the Beverly Airport Commission for airport purposes for a hangar and ` ground school to be leased and operated by commercial tenants . It is conceded that such use is within the terms of the statute under which the Beverly Airport, Commission manages the property. (G. L. c. 90, § 51E-51N. ) The establishment of municipal airports is a public purpose . Burnham v. Mayor and Aldermen of Beverly, 309 Mass . 388, at 391 . The court in that case after exhaustive review held that provision for adequate means of transportation of the public at large -by air was as much a public purpose as provision for other methods of travel which have been held to be public purposes and that legislation providing for taking land for airport purposes by eminent domain was proper. Subsequent to that decision, sections 51E-51N were enacted : t-Ir .. • Crocker Snow, 1 . '(St. 1946, c. 613 . ) Section 51G now specifically provides that land for airport purposes may be acquired or taken by eminent domain "both within and without its territorial limits" by a municipality. (Emphasis supplied . ) It is inherent in the nature of airports, at least in the present state of the art of aeronautics, that ample open space be provided for runways, approaches and other appurtenances . The authority granted to acquire land and, if necessary, make takings by eminent domain "both within and without its territorial limits" clearly recognizes this fact, and the likelihood that such space may not be available within a single community. Whether it is desirable for the Legislature to go so far as to authorize one municipal subdivision of government to acquire or !�1 take land in the territory of another, and to use it in a manner contrary to local by-laws, is . a question of legislative policy. If the Legislature decides that the public interest in transport by air is more important than the desire of the residents of a particular community to be left alone, it can grant such authorization. (Since November 8, 1966 this is subject to the provisions of Article 89 of Amendments to the Constitution. ) In the instance before me, it is not contended that the Legislature could not do this, but only that the Legislature has left the Airport Commission subject to the zoning by-law of its neighboring community. - '� In my opinion this is not so. It is well settled that local zoning by-laws do not apply to the Commonwealth, or instrumentalities / /'1y Vy Vt..I1VL V1lVW, a J . 1 g of the Commonwealth, when acting in pursuance of a public function on land of the Commonwealth. Teasdale v. Newel]. & Snowling Construc- tion Co. , 192 Mass . 440. Medford v. Marinucci Bros . , 344 Mass . 50, the most recent case on this point, held that a highway contractor was not required to comply with local zoning by-laws in carrying out a construction contract for a state .highway; even though his. contract required him to comply with local by-laws . This principle is not confined to instances where the land is directly owned by: the'''.Commonwealth, but extends to instrumentalities of the state when engaged in their public' . . function unless the Legislature has indicated a different intention. r� In Village on the Hill v. Massachusetts Turnpike Authority, 348 Mass . 107, at page 118 the court stated thatrthe Massachusetts Turnpike Authority is, "sufficiently governmental in character so that the actual construction and operation of the Turnpike, its essential 'government function' , and action reasonably related to that function, should not be prevented by a zoning statute applicable to one • municipality or by a local zoning ordinance or by-law, " , although there was no specific exemption from local zoning by-laws as such in the act creating it. (St. 1952 , c. 354 . ) The court went on to hold that land not needed by the Turnpike Authority for turnpike purposes and sold.by it as excess , was subject to the Boston zoning statute. These facts are inapplicable here. It is to be noted that legislation setting up such sub- ordinate public instrumentalities frequently contains language requiring compliance with local zoning regulations . For example, local housing authorities are made subject to local zoning regulations by the express language of G . L. c. 121, § 26S . The omission of any such express provision from c . 90, here involved, is significant. Furthermore, there is an obvious difference in the two situations . Since local housing authorities operate only in the towns in which they are established, the town which sets up a housing authority has full power to change its zoning by-laws , if necessary, and there is no hardship or hamstringing of the proper carrying out of a public function in requiring compliance therewith . In the situation here presented, Beverly, which has the undoubted right to own and operate an airport, and is expressly authorized to take land "within and without its territorial limits" for the purpose, -could be defeated in this object, conceivably even in the portion of the airport within Beverly because of inadequate space, if the town *of Danvers could use its zoning powers to forbid such use . It is therefore my opinion that the Beverly Airport Commission, acting within its authority under §§ 51E to 51N of G. L. c. 90, is not subject to the Danvers zoning by-laws to the extent that they prevent it from discharging its public functions . Very truly yours , ELLIOT L. RICHARDSON ELR: CLJ Attorney General FORM L REFERRAL FORM Preliminary Plan Definitive Sibdivision Special Permit '4 Site Plan Review 7 - North Andover, Massachusetts 19 Director, Public Works Supt/Highway, Utilities & Operations Director of Engineering & Administration Supervisor of F031st5' & Grou Fire Chief Conservation Commission Inspector of Buildings Board of Health Police Chief Planning Board A Public Hearing has been scheduled for P.M. on 6, to discuss these plans. (Preliminary plans do not need public hearing.) May we have your comments and recommendations concerning these plans no later than I o V Thank you, Clark','Planning Office N°NiM Town W A� OFFICES OF; 3? :' :'I" 120 NI�Ihl slye °I BUILDING NORTH ANDOVER NOrlll AtxlOVC'r, CONSERVATION ,'ems 1\Ii1SS�10 WSCIIS 01845 HEALTH DIVISION OF (508) 682-6483 JACNUSt PLANNING PLANNING & COMMUNITY DEVELOPMENT KAREN H.P. NELSON, DIRECTOR 5/30/89 Mr. Joel Bard Kopelman & Paige 77 Franklin Street Boston MA, 02110 Re: National Aerial Advertising Inc. Dear Joel ; Enclosed you will find correspondence from the attorney for National Aerial Advertising Inc. I believe you may have been sent a copy of this directly, but I would like to just reiterate my feelings on this project. I do not feel the use that Nation Aerial Advertising is proposing is unharmonious with the uses allowed in the I-2 zone, nor do I feel that the location of the structure is inappropriate. I feel the problem with this application lies within the dimensional requirements under the I-2 zone. To be more specific, the minimum lot size is 80, 000 square feet, the applicant is proposing to place the building on a 46, 000 square foot lot. If this is allowed than the Town must be prepared to have a much higher density on the airport property than in other I-2 zones located throughout town. This then raises the concern of public safety, especially when you consider the air traffic that in present around the site and the past history of accidents. I would like to reference a letter written by Attorney General Elliot Richardson, to Crocker Snow, dated April 18 , 1967 . ( copy enclosed ) On page three of that letter, Mr. Richardson references the case of Teasdale V. Newell & Snowlina Construction Co. , 192 Mass . 440 . " local zoning by-laws do not apply to the Commonwealth, or instrumentalities of the Commonwealth when acting in pursuance of a public function. " I do not consider the leasing of land to a private company a viable public function. If this land is being leased for financial benefit, then I fail to see how enforcing the minimum lot size would infringe upon the use of this land. Again, on page three of that letter, Mr. Richardson sites the following case, Village on the Hill v. Massachusetts Turnpike Authority, 348 Mass. 107 . " At page 118 the court stated that the Massachusetts Turnpike Authority is sufficiently governmental in character so that the actual construction and operation of the Turnpike , its essential 'government function' , and action reasonably related to that function, should not be prevented by a local zoning statute" . I am neither preventing the proposed use by National Aerial Advertising Inc. , or the actual construction and operation of the Lawrence Municipal Airport. Therefore I feel the site should be brought to comply within the minimum lot size required under the I-2 zone that the airport is located in. I hope I have made my points clearly, and I await your interpretation of this matter. As always, if you have any questions or concerns please feel free to contact me. Sincerely, Christian C. Huntress Environmental Planner cc: B. Shaker W. Mansfield K. Nelson, Director DPCD. THE MIDTOWN BUILDING (�(�J�• 370 ESSEX STREET LAWRENCE, MASSACHUSETTS 01840 TELEPHONE (508)686.6129 TELEFAX (508)686-26 59 BURTON A. SHAKER(ADMITTED MASS.6 CONN.BARS) -� GERALD M.LEWIS HARRY N. STEINBERG (1925-1988) JOHN A.JAMES,JR.(ADMITTED MASS.,N.N.AND FLA.BARS) Joel Bard, Esq. June 5, 1989 Kopelman & Paige 77 Franklin Street Doston, NA 02110 In re : National Aerial Advertising, Inc. Our file 87-180-B Dear Sir: In response to the letter of May 30, 1989 from Christian C. I°iuntress to you relative to my letter on behalf of National Aerial Advertising, Inc. , I would like to make the following comment: The letter of April 18 , 1967 addressed to Crocker Snow as Director of the Massachusetts Aeronautics Commission made specific reference to a hanger and ground school to be leased and operated by a commercial tenant which is exactly the situation in the instant case, even though Mr. Huntress personally does not consider the leasing of land to a private company a viable public function. You will also note, attached to the Attorney General ' s letter of April 18 , 1967 , there was a letter addressed to the Attorney General of April 3 , 1967 which made specific reference to "the Omni Flying Club" which was also referred to the letter of March 29, 1967 addressed to the Massachusetts Aeronautical Commission. Mr. Huntress also makes reference in the second paragraph of his letter, to his "concern of public safety, "especially when you consider the air traffic that in present around the site and the past history of accidents . "—Although I can appreciate his concern, I think you will agree that responsibility for public safety and the public convenience relative to air traffic rests , in this case, with the Lawrence Airport Commission, the Massachusetts Aeronautical Commission and the FAA. Cordially, Burton A. Shaker BAS;bib cc: National. Aerial Advertising, Inc. North Andover Planning and Community Development 4 AERLAr ADVERTISIN Uni Mr. Chris Huntress Environment-al Planner Town of Nom Andover .120 Main St- No. Andover MA 01845 Dear Chris: I hereby request. an extension on t-he decision by t-he Planning to rd regarding our hanger oonst.ru t..ion project. on the Lawrence Municipal Airport. t.larou h Sept.ernber 1 , 1989. I reference our a p11c: t.ion dated April 5, 1989. yours, 7 Sincerely , Wa n Mansfield t</p W Post Office Box 303 North Andover, Massachusetts 01845 TEL: (508) 687-4550 FAX: (508) 975-5568 KoPELMAN AND PAIGE:, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MASSACHUSETTS 02110 DONALD G.PAIGE ELIZABETH A.LANE (617)451-0750 JOYCE FRANK FAX 451-1863 JOHN W.GIORGIO BARBARA J.SAINT ANDRE JOEL B. BARD RICHARD J.FALLON GEORGE M.MATTHEWS JAMES A.DYREK EVERETT J.MARDER JANE M.O'MALLEY KAREN V.KELLY COLLEEN B.WALKER SONDRA M.KORMAN July 28, 1989 ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS Planning Board North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: National e.i-J.4j S ' .. . % .' 11�11.........Jtx:kS" Dear Members of the Planning Board: You have requested an opinion with respect to a proposed use of land at the Lawrence Municipal Airport which is located in North Andover. A private company called National Aerial Advertising, Inc. wishes to construct a building on a 46, 000 square foot lot on which it plans to lease from the airport. Under the North Andover Zoning By-Law, the use is permitted, but the minimum lot size for this area is 80, 000 square feet. In addition, the proposed site has no street frontage, in contrast to the zoning requirement of 150 feet. You have asked if the applicant must comply with these zoning requirements. In my opinion, the Town may require National Aeriai to comply with these requirements. However, this is a close question of law which I do not b(.-.,liev(,) has been directly addressed by the courts of the Commonwealth. Generally, municipal airports are exempt from local zoning by-laws since the a.irports provid(:.-.1 a y..)ublic service and are considered stEit('.y is m.-Y opinion that this is ri(xt:. a total exemj-.A-.i(:.-in coslex'Ing il).'L COYIC(Siv<11)1(? VLE;es of airport propei°ty- '.1'he one re4:,'.!(--)rdeiA decision on this subject is an April 18 , 1967 opinion of the Attorney General stating that a local zoning by-law may not be applied to prevent land from being used for airport purposes where a hanger and a ground school was to be leased and operated by a commercial tenant. KOPELMAN AND PAIGE, P. C. Planning Board Page 2 July 28, 1989 National Aerial is relying on this opinion to argue that the Town of North Andover is likewise prevented from using its zoning by-law to regulate the National Aerial proposal . It is my opinion, however, that this Attorney General 's opinion and related cases discussed below leave unanswered the question raised by the National Aerial proposal concerning the extent to which zoning protection is enjoyed by a municipal airport for a non-essential commercial use on that airport's property. Typically, the Commonwealth and its instrumentalities "acting in pursuance of a public function" enjoy zoning protec- tion. Op. Atty. Gen. April 18, 1967, p. 198, citing Teasdale v. Newell and Snowling Construction Company, 192 Mass. 440 (1906) . This 1967 Attorney General 's opinion further stated that " . . . the Beverly Airport Commission. . . is not subject to the Danvers zoning by-laws to the extent that they prevent it from discharging its public functions. " (emphasis added) . Op. AG at 199 . Thus the zoning exemption seems only to include those activities which are necessary for its public functions. In Village on the Hill, Inc. v. Massachusetts Turnpike Authority, 348 Mass. 107 (1964) , the court analyzed whether Boston zoning requirements should apply to Turnpike Authority land which was to be sold to a private business to construct a manufacturing plant. The court noted that "the actual construction and operation of the turnpike, its essential 'government function' , and action reasonably related to that function, should not be prevented by a. . . local zoning ordinance or by-law. " Id. , at 118. The court then found that the Turnpike Authority's exemption from local zoning did not apply to land which had become "wholly excess to the authority's essential turnpike function. " Ibid. In the instant case, it does not appear that activities to be carried out by National Aerial will be tied to the "public functions" of the Lawrence Municipal Airport. The activities presumably to be conducted on this site will not be related to the airport's discharge of its public functions. For these reasons, it is my opinion that a decision by the Town to apply the zoning requirements would be upheld by a court. Although municipal airports are generally exempt from the application of local zoning by-laws, it is my opinion that the zoning by-laws will apply where the structure or use is not connected to the discharge of its public functions. KoPELMAN AND PAIGE, P. C. Planning Board Page 3 July 28, 1980 Da not hesitate to contact me if you have any questions in this regard. Very truly yours, .� 4 l � �','�j"i a F� �✓ ,y� P Joel B. Bard JBB/meg cc: Board of Selectmen August 10 , 1989 To: North Andover Planning Board Re : NATIONAL AERIAL ADVERTISING I have reviewed the latest modified plans of National Aerial Advertising regarding construction of a new facility here at the Lawrence Municipal Airport .D The new plan is considerably different from that of the construction plan initially v approved by the Lawrence Airport Commission. Apparently, a number of changes were made at the behest of the North Andover Planning Board. The Lawrence Airport Commission cannot allow construction under the modified plan and respectfully requests that a building permit be allowed for the original plan. The Lawrence Airport Commission has based its decision on the Attorney General ' s ruling of April 18 , 1967 , which reaffirms the authority of airport commissions throughout the Commonwealth. The Federal guidelines regarding safety that must be adhered to by all United States Airport facilities also weigh heavily in the Commission ' s policy decisions . If you wish to discuss this matter further, please feel free to contact me at 794-5880 at your earliest convenience . Sincerely, Richard j. D 'Agostino Airport Director i i ` it r SUTTON STREET NORTH ANDOVER;MASSACHUSETTS 01845 OFFICE OF THE EXECUTIVE DIRECTOR RICHARD J.D'AGOSTINO (617)683-7512: " August 10 , 1989 To: North Andover Planning Board Re : NATIONAL AERIAL ADVERTISIMG I have reviewed the latest modified plans of National Aerial Advertising regarding construction of a new facility here at the Lawrence I�iunicipal Airport . The new plan is considerably different from that of the construction plan initially approved by the Lawrence Airport Commission. Apparently, a number of changes were made at the behest of the North Andover Planning Board. The Lawrence Airport Commission cannot allow construction under the modified plan and respectfully requests that a building permit be allowed for the original plan. The Lawrence Airport Commission has based its decision on the Attorney General ' s ruling of April 18 , 1967 , which reaffirms the authority of airport commissions throughout the Commonwealth. The Federal guidelines regarding safety that must be adhered to by all United States Airport facilities also weigh heavily in the Commission' s policy decisions . If you wish to discuss this matter further , :please feel free to contact me at 794-5880 at your earliest convenience. Si erely, jk is and J. ' Altos,, o Airport Director I ADVERT SINGAn August 11, 1989 Christian Huntress Environmental Planner No. Andover MA 01845 Dear Chris : On behalf of Wayne Mansfield, I am requesting that you withdraw, without prejudice, our application dated April 5, 1989. Thank you for your attention to this matter. Sincerely I�Yhy m n Administra ive Coordinator Post Office Box 303 North Andover, Massachusetts 01845 TEL: (508) 687-4550 FAX: (508) 975-5568 e " :0...,G'"A'k\..+N::."."Y�Y ". 47� M'V�W4,Wd.G� �.".�h4 �"�:..i�. North Atidover BUILDING p�\ NORIII ANDOVER V fFd4.i .husd..* W s X 1845 C CONSERVATION (508)(382-6483 p a ry . Y pV a330W OF L"I' .ty °N& V y PI,ANNING &. COMMUNITY DEVELOPMENT'KAREN I I.P. NELSON, LARECTOR To= Planning Board From = Health Dept. Re= National Aerial Advertising Date= 9-7-89 National Areal Advertising has an approved Septic System plan. The design approval permit was issued on 9-5-89 _ Health Sanitarian mg/gc � � � � � r ^ � � � 8 A DV AERLAIC E RT IS IN GrA) � Orto�er 31 , �989 � [mristian Huntress | Town P�anner North Andover MA Dear C�rzs : 7nzs � etter will confirm t�at l will recor� ��e signeb olans for the Proposed bui lding of haticv�al Aerial at the Registry of Deeos as soon as t�e t�1rd signature na� been �btaine�. Thanx you for your suppco t �uring t s process. Post Office Box 303 North Andover, Massachusetts 01845 TEL: (508) 687-4550 FAX: (508) 975-5568 �incerely, � � � � � � �