HomeMy WebLinkAboutComplaints - 11 BAYFIELD DRIVE 3/25/2004 41,"117!5-1
March 23, 2004 NiAR 3
66 Meadowood Road M')PTI) 11',Ir-,:,-A,„---,
North Andover, MA 0
OF NORTH A'NJu .
Town of North Andover BOARE,OF HPAID-H
Office of the Health Department
Susan Y. Sawyer, Director
27 Charles Street
North Andover, MA 01845
Subject: Air Pollution and Noise Nuisance Complaint against Material
Installations, Inc.
Dear Ms. Sawyer:
I am in receipt of a letter dated March 1, 2004 from Inspector Brian LaGrasse of
your staff. The letter states "It has been determined in collaboration with the
Massachusetts DEP that the presence of subject trucking activities does not pose a
health risk due to noise levels and is not considered a noise nuisance under
Massachusetts General laws (MGL) Chapter 111 sec 122 or 310 Code of
Massachusetts Regulations (CMR) 7.10.” The letter also indicates decibel readings
"at various times throughout the day and night in the area of concern and in
various locations in the vicinity of the subject area."
I have had contact with Inspector LaGrasse on several occasions to include
providing a copy of the Air Pollution Control Regulations, the DEP policy (90-001)
on investigating and enforcing the regulations, the North Andover Dumpster
Regulations, a log of shipping activity and corroborating video footage.
The DEP policy states: "The Department has established a Noise Level Policy for
implementing this regulation. The policy specifies that the ambient sound level,
measured at the property line of the facility or at the nearest inhabited buildings,
shall not be increased by more than 10 decibels weighted for the "A" scale [dB(A)j
due to the sound from the facility during its operating hours." Under the section
"Noise Measurement Procedure" the policy states: "In responding to complaints
measurements should be taken near the area where the people are located who are
complaining of the noise. For instance, for a person complaining that noise from a
facility annoys them while they are trying to sleep, the measurements would be
taken at the bedroom window or near the house."
Based on this policy, it appears that "Route 125" and "Bake-n-Joy Foods" do not
apply because they are in fact located at a distance farther than the Material
Installations shipping area.
My complaint letter dated September 10, 2003 stated: "The source of the nuisance
is shipping related activity. This includes the operation of trucks, trucks idling
over 5 minutes (overnight as well as during shipping dock operations), loading
tractor trailers/commercial containers (e.g., trash compactor), operating
machinery and loud voices of workers." The letter also included research on the
health effects of noise as well as possible solutions.
A follow-up letter to Inspector LaGrasse dated November 10, 2003 stated:
"Regarding your planned noise level measurements, it is requested that they begin
no later than 6 in the morning. This is due to truck and compactor activity that
regularly begin between 6 and 7 a.m."
The readings cited in Inspector LaGrasse's letter do not reference measurements
for the time period between 6 and 7 in the morning.
The readings taken on December 24, 2003 indicate an "ambient range" of"47.6dB
— 55.4dB." The corresponding readings exceed the 47.6dB ambient level by at least
10 decibels.
The readings taken on January 14, 2004 indicate an "ambient range" of"49dB —
56dB." The corresponding readings also exceed the 49dB ambient level by at least
10 decibels.
Ed Kunce, Northeast Regional Director of the DEP has informed me that readings
of 85dB represent "very high" noise levels.
According to the Federal Highway Administration, a study of noise equivalency
factors for trucks relative to Passenger vehicles determined that a truck traveling
at a speed of 20 mph has an equivalency factor equal to 84 passenger vehicles.
The Material Installations shipping activity causes noise, vibrations, fumes and
exhaust. This interferes with the quiet enjoyment and use of my property to
include sleep. Material Installations has not taken any steps to effectively confine
the noise/nuisance effects to their property.
Regarding nuisance activity, the Code of Massachusetts Regulations (CMR) defines
air pollution as "the presence in the ambient air space of one or more air
contaminants or combinations thereof in such concentrations and of such
duration as to:
(a) cause a nuisance;
(b) be injurious, or be on the basis of current information, potentially
injurious to human or animal life, to vegetation, or to property; or
(c) unreasonably interfere with the comfortable enjoyment of life and
property or the conduct of business."
There is case law on this issue. In Davis v. Sawyer, (133 Mass. 289, 290, 43
Am.Rep. 519), the Supreme Court of Massachusetts stated "'Noise which
constitutes an annoyance to a person of ordinary sensibility to sound, such as
materially to interfere with the ordinary comfort of life, and impair the reasonable
enjoyment of his habitation, is a nuisance." Additionally, In Shea v. National Ice
Cream Co., Inc., (280 Mass. 206, 211) the court said, "'the defendants are entitled
to a reasonable use of their property. It is plain, however, that it cannot be so used
as to disturb the plaintiffs, who have a right to sleep at night in their own homes."
Research from the federal Environmental Protection Agency (EPA) entitled
"Information on Levels of Environmental Noise Requisite to Protect Public Health
and Welfare with an Adequate Margin of Safety" provides technical direction on
this issue. This document identifies noise levels required to protect public health
and welfare against hearing loss, annoyance and activity interference. Levels of 55
decibels outdoors and 45 decibels indoors are identified as preventing activity
interference and annoyance. These levels of noise are considered those which will
permit spoken conversation and other activities such as sleeping, working and
recreation, which are part of the daily human condition. This report also identifies
a noise level of 32db to protect against sleep interference. According to the EPA,
this frequently requested document is posted at:
htt /www.nonoise.org/library/levels74/levels74.htm.
The EPA reports that sleep is a restorative process during which organs of the
body renew their supply of energy and nutritive elements. Since noise can disrupt
the sleep process, it may lead to health disorders. Research is accumulating that
suggests a relationship between long-term noise exposure and stress-related
health effects, particularly those related to the cardiovascular system.
The Commonwealth of Massachusetts treats noise as an emission of sound and
regulates it as a source of air pollution. The Massachusetts General Laws (ch. 214,
§ 7A) define "damage to the environment" to include "air pollution." Article 97 of
the Massachusetts Constitution guarantees the people's right to "clean air and
water."
The compactor used by Material Installations is frequently used between 6 and 7
in the morning. This produces loud noise that disrupts the quite use of my
property to include sleep. The compactor appears to be a dock feed type style and
is located outside their building. As you are aware, section 3.2 of the North
Andover Dumpster Regulations state: "The Board of Health may attach any
condition to the license of a removal contractor that it deems would serve the
interest of the safety, health, welfare or quality of life of the citizens of the town."
The North Andover Dumpster Regulations state:
Section 4.1: ". . . each dumpster must be located at a distance from the lot line so
as not to interfere with the safety convenience or health of abutter or
residents."
Section 4.2: ". . . may be required that dumpster site be enclosed or screened . . ."
Section 4.3: ". . . responsibility of the owner . . . to maintain the dumpster area
free of. all other nuisances."
Section 4.7: " Dumpsters are not to be filled after 9:00 P.M. or before 7•00 A.M."
As you are aware, Dumpster permits can only be issued "in conformity with
statutes and ordinances relating thereto" and are subject to being "suspended or
revoked."
My December 2, [2]003 letter to Inspector. LaGrasse stated "As for identifying
appropriate measures to end the noise nuisance, my [September 10th] letter lists
possible solutions to include a noise barrier wall. Regarding the refuse compactor,
I have been informed that special vertical compactors are available to fit inside a
structure."
Material Installations borders North Andover's Meadowood neighborhood. The
character of the Meadowood neighborhood is distinctly residential consisting of
single family homes most of which have young children. In addition, there are no
access roads connecting the two districts.
Please provide an explanation detailing the basis for the Board's opinion,
specifically that "the presence of subject trucking activities does not pose a health
risk due to noise levels and is not considered a noise nuisance . . ." As previously
noted, Inspector LaGrasse's sound measurements indicate that the ambient level
is exceeded by at least 10 decibels. This appears to violate 310 CMR 7.10(1). In
addition, there is case law regarding sleep disruption as a nuisance as well as
research as a health hazard.
It is encouraging that your department has finally started to take action to abate
the multiple vehicle idling violations by Material Installations. This is no doubt
related to your recent appointment as Director as well as the assistance of the
federal EPA. This is in sharp contrast to your predecessor. Beginning with my first
contact with the town (June 2003) and subsequent correspondences with the
health department, I have always provided proof of the violations, research
regarding the associated health effects, and the applicable legal basis for
enforcement action. Simply put, this should not be a difficult matter to investigate
and require compliance.
It is requested that a literal enforcement of the Air Pollution Control Regulations
and Dumpster Regulations be undertaken. It is also requested that any opinions
by the board/DEP reference the basis for the corresponding opinion (e.g., legal
statutes, expert research, lay opinion).
Should you require additional information, please contact me at the above address
or via telephone at 978-683-3414 (home) or 617-557-1235 (work).
Thank-you for your time and attention to this important health issue.
Sincerely,
Konstantinos "Dino" Balos
cc: Assistant Town Manager
Board of Selectmen
North Andover Meadowood Road Residents
Town of North Andover NORTH
11 t
Office of the Planning Department
O p
Community Development and Services Division
27 Charles Street n°* •.''��
North Andover,Massachusetts 01845 ��SSACNUS���y
ht!p://www.townoEnorthandover.com
Town Planner. tparrino @townofnorthandover.com P (978) 688-9535
Julie Parrino F (978) 688-9542
March 3, 2004
Konstantinos Balos
66 Meadowood Road
North Andover,MA 01845
RE: Material Installation
Dear Mr. Balos:
This letter is a follow-up to my letter dated February 19, 2004. The Planning Board is in receipt
of comments from Town Counsel regarding your concerns with Material Installation. Town
Counsel referred to Section 10.1 of the North Andover Zoning Bylaw which provides that the
bylaw "shall be enforced by the Building Inspector". As you are aware, the Building Inspector
opined that Material Installation, Inc. was in compliance with the Zoning Bylaw and Planning
Board Special Permit of August 31, 1987. Recently, the Zoning Board of Appeals upheld the
Building Commissioner's decision dated August 25, 2003.
With regards to the Planning Board modifying the Special Permit, Town Counsel referred to his
previous opinion that he could not find a definitive ruling,which authorizes such a modification.
This opinion was referenced in a letter submitted to you by Heidi Griffin, dated January 22, 2004.
Upon phone discussions with several of the Planning Board members, they have agreed that in
light of the Zoning Board of Appeals decision, no further involvement from the Planning Board
is warranted.
Sincerely,
� y
Julie,Parrino, Town Planner
cc: Planning Board
Heidi Griffin, Community Development Director
Thomas Urbelis, Town Counsel
Mark Rees,Town Manager
Raymond Santilli, Assistant Town Manager
William Sullivan,ZBA Chairman
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
URBELIS&FIELDSTEEL, LLP
155 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1727
�0011
Telephone 617-338-2200 Andover
THOMAS J.URBELIS Telephone 978-475-4552
e-mail tjU@,L1fb.corn Telecopier 617-338-0122 ,,i i i u6fJ 6 f*
February 25, 2004
Julie Parrino
North Andover Town Offices
Community Development and Services Division
27 Charles Street
North Andover, MA 01845
RE: DINO BALOS—MATERIAL INSTALLATION, INC.
Dear Ms. Parrino:
I have received your letter dated February 20, 2004 requesting that I "determine if the
Planning Board should have any further involvement in this case."
There are procedures in place for an individual to request action upon an alleged violation
of the town zoning bylaws. Section 10.1 of the North Andover Zoning Bylaw provides that the
bylaw "shall be enforced by the Building Inspector". Mr. Balos applied to the Building
Commissioner who opined that Materials Installation, Inc. was in compliance with the Zoning
Bylaw and the Planning Board Special Permit of August 31, 1987. Mr, Balos appealed that
deten-nination to the Zoning Board of Appeals which upheld the Building Commissioner's
decision.
With regard to a request by Mr. Balos for the Planning Board to modify, on its own
motion or at the request of an abutter, the substantive conditions to the site plan special permit, I
addressed that issue in my January 26, 2004 correspondence
Whether the Planning Board wants to have any further involvement is a question for the
Board to determine. However, in light of the Zoning Board of Appeals decision, it is difficult to
ascertain as to exactly what involvement the Planning Board would have.
Please call if you have any questions.
Very truly yours,
Thomas . rbelis
TJJJ/Iah
cc: Heidi Griffin
Mark Rees
sAwp5 I\work\Ti-andove\coiTesp\pa]Tiiio.itr-balos,doe
Town of North Andover o� �0 oTM
4o-�.s��t ybT6 O71
Office of the Planning Department
Community Development and Services Division - y
27 Charles Street °R °� �' • °'�
North Andover,Massachusetts 01845 SSgcwu§�t�y
jparrino@tow-lofilorthandover.com
Planning Director:
http://www.townofnorthandover.com p ( )978 688-9535
Julie A.Parrino F (978)688-9542
MEMORANDUM
TO: Thomas Urbelis
FROM: Julie Parrino,Planning Director
CC: Heidi Griffin,Community Development&Services Director
Mark Rees,Town Manager
RE: Dino Balos-Material Installation
DATE: February 20,2004
Correspondence is enclosed relating to the Material Installation facility located on Bayfield Road. The +
Zoning Board of Appeals upheld the Building Commissioner's letter of August 25, 2003. Mr. Balos is
demanding a meeting before the Planning Board to further address his arguments as outlined in his
February 6 and 10, 2004 letters. Heidi Griffin did submit a letter to Mr. Balos stating no definitive ruling
was identified that would allow`tlie'Planning Board to modify the Special Permit issued in 1987. The Solar
v.Zoning Board of Appeals of Lincohi,33 Mass.App. Ct. 398 (1993)case was referenced.
Please review the arguments presented in the February 6 and 10, 2004 letters to determine if the Planning
Board should have any further involvement in this case. Your findings will be relayed to Mr. Balos in a
follow-up letter.
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Town of North Andover a& t%®pTH
Office of the Planning Department
Community Development and Services Division
27 Charles Street
" �AT6�RPP
North Andover,Massachusetts 01845 �SSA�r+usE�
bttp://www.townofnordiandover.com
Town Planner. iparrino@townofnorthandover.com P (978)688-9535
Julie Parrino F (978)688-9542
February 19, 2004
Konstantinos Balos
66 Meadowood Road
North Andover, MA 01845
RE: Material Installation
Dear Mr. Balos:
This letter is to confirm that we are receipt of your February 10, 2004 letter addressed to Alberto
Angles, Chairman of the Planning Board. I am aware that you submitted a letter to Heidi Griffin, ,
dated February 6, 2004. The Planning Department nor Heidi Griffin received the letter as it is my
understanding it was faxed over and was not internally forwarded to the proper Departments. We
are now in receipt of the letter and I apologize for the confusion. Your letters have been
forwarded to the Planning BgaVmembers and to Town Counsel.
It is my understanding that the Board of Appeals voted on February 10, 2004 to uphold the
Building Commissioner/Zoning Enforcement Officer's letter dated August 25, 2003. I am
awaiting an opinion from Town Counsel as to whether the Planning Board may take further action
relating to your concerns.
I assure you I will follow up with written documentation upon receipt from an opinion from Town
Counsel.
Sincerer
z
"Jylie Parrmo, Mown Planner
cc: Planning Board
Heidi Griffin, Community Development Director
Thomas Urbelis, Town Counsel
Mark Rees, Town Manager
Raymond Santilk Assistant Town Manager
William Sullivan, ZBA Chairman
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Town of North Andover NORTF/
Offi e;.of the Zoning Board of Appeals -
c 10 l ur R Development and Services Division
' 27 Charles Street
North Andover,Massachusetts 01845 Ss��HUSE
D. Robert Nicetta Telephone(978)688-9541
Fax(978) 688-9542
Building Commissioner
Any appeal shall be filed Notice of Decision
within(20)days after the Year 2004
date of filing of this notice -
in the office of the Town Clerk. Property at: for property at: 11 Bayfield Drive
NAME: Konstantinos&Rowena Balos, HEARING(S): 11-18,2003,1-13&2-10-04
66 Meadowood Road,North Andover,MA
ADDRESS: for property at: 11 Bayfield Drive PETITION: 200-037
North Andover,MA 01845 TYPING DATE: 2/12/04
The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,the 10`b of February 2004
at 7:30 PM in the Senior Center, 120R Main Street,North Andover upon the application of Konstantinos&Rowena
Balos, 66 Meadowood Road requesting a Finding from Section 4,Paragraph 4.132 and Section 10,Paragraph 10.4 of the
Zoning By-law to reverse the Building Commission's opinion that Materials Installations,Inc. 11 Bayfield Drive,North
Andover,MA are in compliance with the Zoning By-law and the Planning Board Special Permit of August 31, 1987.
The said premise affected is property with frontage on the North side of Bayfield Drive within the I-1 zoning district.
The legal notice was published in the Eagle Tribune on November 3& 10,2003.
The following members were present: Walter F. Soule,Ellen P.McIntyre,Joseph D.LaGrasse,and Richard D. Byers.
Upon a motion by Joseph D.LaGrasse and 2nd by Richard J.Byers,the Board voted to uphold the Building
Commissioner/Zoning Enforcement Officer's letter of August 25,2003 and DENY the Finding of the party aggrieved
for the following reasons:
1. The Planning Board Special Permit of August 31, 1987,time stamped by the North Andover Town Clerk
on September 03, 1987 does not place a definite hourly time of operation for Materials Installations,Inc.,
11 Bayfield Road in the Conditional Approval of the Site Plan Review.
2. The Planning Board decision of 1987 does not place any restriction on the type of business Materials
Installations,Inc. conducts at the Industrial-1 site. In fact the August 31'decision gave the business
permission"to expand the assembly and live storage areas in an existing building by 18,200 square feet".
3. In 1987 and presently the North Andover Zoning By-law does not address hours of operation.
4. In 1987 and presently the North Andover Zoning By-law does not address"noise levels"in any zoning
district.
5. The Building Commissioner/Zoning Enforcement Officer's site visit found that Materials
Installations had conformed to Paragraph 5 of the Conditional Approval.
6. The Zoning Board has no authority to modify a Planning Board decision.
7. The Zoning Board has no authority to order the Building Commissioner/Zoning Enforcement Officer to act
outside North Andover By-laws.
Voting favor of the denial: Walter F. Soule,Ellen P.McIntyre,Joseph D.LaGrasse,and Richard D.Byers.
Town of North Andover
Board of Appeals,
Walter F. Soule,Acting Chairman
Decision 2003-037.
M25P73.
Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535
Page 1 of 1
Glennon, Michel
From: Thomas J. Urbelis [tju @ufb.com]
Sent: Thursday, February 19, 2004 10:04 AM
To: 'Michel Glennon'
Subject: RE: ZBA decision for Balos vs. Building Commissioner
Michel...-not heaving � � � � hearings, offer p. � �� n � � y
aitc,��da�.t the h�,:�riy�¢ , i c�ft'r,r roc opinion can tP�a. :;r�ir°:�mr�~tir�c.� ��t th:c.,c9�.�;a:u�b�:an„ h��i G can ����I,
say that on the face of it, the decision appears to be in order.
-----Original Message-----
From: Michel Glennon [ma ilto:ring len non @townofnorthandover.com]
Sent: Thursday, February 19, 2004 9:32 AM
To: 'Atty. Thomas J. Urbelis'
Subject: ZBA decision for Balos vs. Building Commissioner
Hello, Atty. Urbelis; Mr Soule thought it would be a good idea if you reviewed the attached (I hope)
decision, since there is a possibility that it will be appealed. Mich Glennon.
2/19/04
Town of North Andover o� No oT"qti
OFFICE OF
COMMUNITY DEVELOPMENT SERVICES � p
27 Charles Street
North Andover, Massachusetts 01845
HEIDI GRIFFIN SSACHU50
Director
(978)688-9531 Fax(978)688-9542
February 12, 2004
Mr. Dino Balos
66 Meadowood Road
North Andover, MA 01845
Re: Material Installations
Dear Mr. Balos:
In your correspondence dated February 10, 2004 you refer to a letter dated February 6,
2004 addressed to me. We are not in possession of this letter nor was it provided as an
attachment to the facsimile you transmitted on February 10.
Sincerely,,
-Ijr r l s
'}Heidi Griffin
Director
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
02/10/04 15:18 FAX 617 565 7528 LgJuuz
Page 1 of 7
February 10, 2004
66 Meadowood Road
North Andover, MA 01845-5927
North Andover Planning Board
Alberto Angles, Jr., Chairman
27 Charles Street
North Andover, MA 01845
Fax: 978-688-9542
Subject: Demand for Planning Board Hearing
Re: Materials Installations, Inc.'s Special Permit
Dear Mr. Angles:
This letter is written in reference to a hearing before the Zoning Board of Appeals (ZBA)
regarding Material Installations'use of its property in violation of section 4.132 of the
town's zoning by-laws.
The Massachusetts General Laws (Chapter 40A) define "Zoning" as "ordinances and by-
laws, adopted by cities and towns to regulate the use of land, buildings and
structures to the full extent of the independent constitutional powers of cities and
towns to protect the health, safety and general welfare of their present and
future inhabitants.
I have submitted documentation to the ZBA substantiating that Material Installations,
Inc. is a warehousing/wholesaling business in the furniture trade. This includes the
Articles of Incorporation, which under purpose state: "to store, warehouse, transport
and deliver all types and kinds of office furniture or related systems." In addition, I have
provided U.S. Labor Department records indicating that the nature of this industry
(warehousing) includes trucking and that there is a"blurring distinction" between
trucking and warehousing.
Under the "Permitted Uses" section of the zoning by-laws (4.12), section 4,132
(Industrial-1), paragraph 13 states "warehousing and wholesaling shall be permitted
onlu as a secondary use."
Note: The text of the 1987 and 2002 zoning bylaws re: Industrial-1 Districts is
identical to the original 1972 version.
The July 1987 "Application for a Special Permit" states the following:
• Under the heading"2(c) Zoning District," the application states"I-1."
• Under the heading "4(b) Occupancy or use," the application states: "Expansion
for the assembly and live storage areas of the existing facility."
02/10/04 15:18 FAX 617 565 7528 LgjUUa
Page 2 oil
• Under"5(b) Occupancy and use," states: "Light industrial: offices, assembly and
storage areas for office partition systems components."
• Under"9. The principal points," the application affirms "The proposed addition
complies with the provisions of the zoning by-law."
The Special Permit Application does not disclose the "warehouse, transport and deliver"
language contained in the company's Articles of Incorporation. Likewise, the Articles of
Incorporation does not contain the "assembly and live storage"listed on the Special
Permit Application. Moreover, the by-laws do not mention the term "light industrial."
As a result of residential abutter concerns with regard to "activity at night," "trucks,"
"noise" and "lights," the Special Permit includes the use of"evergreens and fencing" for
"noise barriers." As previously mentioned, the purpose of zoning is "to protect the
health, safety and general welfare of their present and future inhabitants."
The Mass. Gen. Laws state that: "Special permits may be issued only for uses which are
in harmony with the general purpose and intent of the ordinance or by-law."
Clearly the intent of the Special Permit restrictions were for effective noise barriers. I
have provided the town with expert research that the 1987 Special Permit noise barrier
conditions are ineffective.
The "assembly and live storage" language contained in the Special Permit Application is
a misrepresentation and a material change from the actual use
(warehousing/wholesaling), This violates paragraph 9 of the Conditional Approval
Special Permit that states " . . . any changes from these approved plans . . . will negate
this Special Permit and will require a new filing of application."
Town records indicate that Material Installations was not granted a variance to section
4.132 of the zoning by-laws ("warehousing and wholesaling shall be permitted only as a
secondary use"),
A"conditional use" or"special permit" is neither the equivalent of nor should it be
confused with "variances." According to the Mass. General Laws (Ch.40A), "variance
power is given only to the Board of Appeals." Likewise, the by-laws (section 10.4) state
"the Zoning Board of Appeals shall have power upon appeal to grant variances from the
terms of this Zoning Bylaw."
In Coolidge v. Planning;Board of North Andover (337 Mass. 648), the Supreme Judicial
Court stated that"there is no room for an implication of zoning power in boards other
than those specified in the statute."
Zoning records indicate that the land presently occupied by the Meadowood
neighborhood has been zoned as "residential" since at least 1972. The character of the
Meadowood neighborhood is distinctly residential consisting of single family homes
most of which have young children. In addition, there are no access roads connecting
the two districts.
02/10/04 15:19 FAX 617 565 7528 LO 004
Page 3 of 7
The Meadowood neighborhood relies on the Industrial-1 zoning restrictions for
protection from the neighboring [Industrial-1] property. The conditions caused by the
non-permitted use of the Industrial-1 property (warehousing/wholesaling) are an
impairment to the neighborhood. This includes noise, fumes, odor, vibrations and
exhaust. I have provided the town with research indicating that this is a nuisance and
health hazard as well as a violation of the statutory air pollution control violations. In
like manner, section 4.132 (paragraph 11) of the zoning by-laws specifically identifies
dust, smoke, fumes, odor, noise, vibration, and light as "adverse environmental
effect[s]."
During the January 13, 2004 ZBA hearing, Acting Chairperson Walter Soule indicated
that the ZBA is waiting for a legal opinion from town counsel regarding the Special
Permit. I received a letter dated January 22, 2004 from Director Heidi Griffin of the
Community Development Office referencing the opinion of Town Counsel Thomas
Urbelis.
The letter cites the Middlesex Appeals Court decision, Solar v Zoning Board of Appeals
of Lincoln (33 Mass. App. Ct. 398). It states "the Appeals Court ruled that a board was
not free to modify, on its own, a special permit to make it conditional upon ownership of
the land (a new policy of the board) when the original permit was subject to three-year
automatically renewable terms."
In the Solar case, the appeals court ruled that the board "injected into its decision
criteria not found in the by-taw."The court also ruled that this "new policy" is
"unrelated to the lanct' and "not based upon factors concerned with the land or the
protection of the surrounding community." Section 4.132 of the zoning by-laws is
not a"new policy" and is directly related "to the land." The noise barrier conditions are
"based upon factors" related to the "protection of the surrounding community." The
Solar case is not applicable to this matter.
On February 5, 2004, I contacted Town Attorney Thomas J. Urbelis. I informed him that
the Solar decision does not apply to the present matter for reasons as outlined above. I
also informed Mr. Urbelis that the town opinion does not address the fact that Material
Installations did not receive a Special Permit or variance to operate as a
warehousing/wholesaling business. At the suggestion of Mr. Urbelis, I sent a letter to
Director Griffin dated February 6, 2004 explaining my position (see attachment).
As you are aware, a letter dated February 5, 2004, was sent to your attention from
Benjamin Tymann, Esq., attorney for Material Installations, Inc. Mr. Tymann's letter is
predicated on the assumption that Material Installations received a valid Special Permit.
Paragraph 3 of page 1 from Mr. Tymann's letter states "a special permit is a property
right granted to a landowner. (See G.L.c 40A, 9)." Mr. Tymann's letter does not
reference that the chapter also states: "Special permits may be issued only for uses
which are in harmony with the general purpose and intent of the ordinance or by-
law, and shall be subject to general or specific provisions set forth therein."
02/10/04 15:19 FAX 617 565 7528 LgJoub
Pege4of7
As indicated earlier, the Special Permit application, misrepresents (assembly and
storage) Material Installations'true use (warehousing/wholesaling) of the Industrial-1
property. The warehousing/wholesaling use is not permitted by the by-laws and is
certainly not in harmony with the general purpose and intent contained in section
4.132 of the by-laws. The permit is illegal and was erroneously issued based on
misrepresented and non-disclosed information regarding the type of business.
Page 2 of Mr. Tymann's letter states "Mr. Balos cannot now attack the Special Permit,
years after the fact, by asking your board to revise it." This claim is also predicated on
the assumption that the Special Permit was validly issued. Moreover, paragraph 9 of the
Conditional Approval Special Permit states " . . . any changes from these approved
plans . . . will negate this Special Permit and will require a new filing of application."
As stated earlier, the "assembly and live storage" language contained in the Special
Permit Application is a misrepresentation and material change from the actual use
(warehousing/wholesaling).
Furthermore, the Mass. Gen. Laws describe the purpose of zoning as "to protect the
health, safety and general welfare of their present and future inhabitants." Planning
board records clearly document residential abutter concerns with regard to "noise" and
"trucks."These concerns preceded the issuance of the Special Permit and
accompanying noise barrier conditions. Town records also indicate residential abutter
noise and truck complaints [regarding Material Installations'operations] from at least
1998. Mr. Tymann's claim that the Special Permit cannot be attacked does NOT bar the
town from enforcing the zoning by-laws.
Page 2 of Mr. Tymann's letter also cites the Middlesex Superior Court case Chi
Allison v. Barberry Homes, Inc (12 Mass. L. Rep. 138), and states " a neighbor came
forward to request revision or reversal of a property right that was granted to a land
owner nearly a decade earlier." This case does not apply because it is predicated on a
validly issued permit. Material Installations'improperly granted permit is based on
misrepresented and non-disclosed information regarding the true use of the property.
Page 3 of Mr. Tymann's letter, citing the same Allison case, references my claim that
Material Installations is a nuisance. Mr. Tymann (quoting the same Allison case) states:
"Th[e] limitation, however, does not mean that-disgruntled neighbors may, under a
nuisance theory, reopen the underlying agency proceedings that led to the issuance of
the license to see whether, with hindsight, the license terms could have been crafted
differently . . The law of nuisance is not a mechanism for disturbing an agency
decision that has long since become final."
In the Allison case, the plaintiffs claim of nuisance is a result of property restrictions
associated with wetlands. The court stated: "there is nothing noxious, unpleasant or
damaging about the replicated wetlands on Barberry Homes' property -- they emit no
noise, odors,fumes, dust, dirt, bright Tights,flying objects, etc." The court also
stated that "the tort of nuisance has been predicated on such things as the
emission of noise, odors,fumes, and/or vibrations."
02/10/04 15:20 FAX 617 565 7528 WJUU6
Page 5 of 7
Note: The Supreme Judicial Court in Davis v. Sawyer (133 Mass. 289, 290) said,
"noise which constitutes an annoyance to a person of ordinary sensibility
to sound, such as materially to interfere with the ordinary comfort of life,
and impair the reasonable enjoyment of his habitation, is a nuisance."
Note: The Supreme Judicial Court in Shea v National Ice Cream Co., Inc. (280
Mass. 206, 211) said, "the defendants are entitled to a reasonable use of
their property. It is plain, however, that it cannot be so used as to disturb
the plaintiffs, who have a right to steep at night in their own homes."
Page 3 of Mr. Tymann's letter also references that I purchased my property after
Material Installations received its Special Permit and began its"warehousing and
assembly operations."The letter contains a footnote to a Bristol Appeals Court decision
in Escobar v Continental Baldng Co., (33 Mass. App. Ct. 104, 110). Mr. Tymann
(quoting Escobar) states "C]oming to a nuisance . . . is a significant factor'weighing
against a prospective plaintiff's nuisance claim, particularly where the plaintiff knew or
should have known of the type of commercial use taking place on an adjoining property
at the time he moved to the neighborhood."
A review of the Escobar case indicates that the appeals court, in fact, stated "coming to
a nuisance in itself Toes NOT bar relief, it, too, is a significant factor." Additionally,
the Appeals Court stated: "the plaintiffs were aware . . . that the area was, in large
measure, commercial." The Meadowood properties have been residentially zoned since
at least 1972 and consist of single-family homes most of which have young children.
Furthermore, there are no access roads connecting the two districts. Moreover, the
"Footnotes" section of the Escobar ruling states: "the zoning by-law was not part of the
record and the judge made no findings as to zoning. See Weltshe v. Graf, 323 Mass.
498, 500,-
In the Weltshe case, the plaintiffs, whose homes were located a residential district zone,
bordered a district zoned for business and were disturbed in their sleep at night by
unreasonable noises from a freight terminal operated by the defendants. In granting an
injunction, the Supreme Judicial Court stated"a zoning ordinance is an important
factor in determining whether the use being made of the land in conducting a
particular enterprise goes beyond what is reasonable in view of the nature
and character of the locality . . . [b]ut a zoning ordinance affords no protection to one
who uses his land in such a manner as to constitute a private nuisance." Similar to the
Weltshe case, the properties in Meadowood are residentially zoned and border the
Industrial-1 district that is the source of the nuisance,
Regarding Mr. Tymann's claim that"the law is clear that Material Installation's property
rights under the Special Permit cannot be unilaterally revised," the appeals court in
Vitale v. Planning Bd. Of NewbuKMort (10 Mass. App. Ct. 483) ruled that "due process
does not require that an [administrative] agency must bind itself to an error in
perpetuity irrespective of the public interest."
The Supreme Judicial Court in Ferriter v. Herlihy (287 Mass. 138) stated that"the
sanction that the Legislature gives by authorizing local officials to issue a license to
conduct a certain business on specified premises is subject not only to the limitation
02/t0/04 15:21 FAX 617 565 7528 191 007
Page 6 of 7
that the business must be carried on without negligence, but to the further qualification
that it must be conducted without unnecessary disturbance of the rights of others." The
present use of the Material Installations property infringes on the right to enjoy and use
of my property.
Furthermore, in Ferrante v Board of Appeals of Northampton (345 Mass 158), the
Supreme Judicial Court (quoting the Supreme Court of New Jersey in Zahodiakin Engr.
Co. v, Zoning Bd. Of Adjustment, 8 N.J. 386) stated"the governmental zoning power
may not be forfeited by the action of local officers in disregard of the statute and the
ordinance. The public has an interest zoning that cannot thus be set at naught. The
plaintiff landowner is presumed to have known of the invalidity of the exception and to
have acted at his peril. It follows that the issuance of a building permit and the erection
of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a
variance by reason of estoppel."
In Inspector of Buildings of Burlington v. Murphy (320 Mass. 207), the Supreme
Judicial Court ruled "since the change was a violation of a valid zoning bylaw, no
permit can legalize it." A permitee acquires no vested right where the permit is issued
in violation of the zoning ordinance. The Supreme Judicial Court in Town of Ma nard v.
Tomyl (347 Mass. 397), stated "the defendants can assert no right under the first,
illegally granted, permit."
In KolodLiy v. Building Commissioner of Brookline (346 Mass. 289), the Supreme
Judicial Court ruled "the existence of a permit for the violation is inconsequential in
proceeding to end the violation." In Simeone Stone Corp. v. Oliva (350 Mass 31), the
Supreme Judicial Court ruled that"every presumption is to be made in favor of the by-
law, and its enforcement will not be refused."
Regarding Mr. Tymann's claim that"such action would constitute a taking, for which
Material Installations would be entitled to compensation," the Supreme Judicial Court
in the Ferrante case stated: "the plaintiff landowner is presumed to have known of the
invalidity of the exception and to have acted at his peril." As previously noted, the
Special Permit Application misrepresents the true type of business and affirms
compliance with the zoning by-laws.
In Everett S Wood & others v. Building Commissioner of the City-of Boston (256 Mass,
238), the Supreme Judicial Court ruled that a "permit was improvidently granted . .
and . . . violates the law. It was the duty of the building commissioner . . . to take
immediate steps to enforce the provisions of the statute."
The final paragraph of Mr. Tymann's letter states "Material Installations . . . has been
an outstanding'corporate citizen." The actions of Material Installations indicate
otherwise. Despite several "good faith" attempts to resolve this issue to include the
assistance of Selectman Stewart, Material Installations has refused to participate. In
addition, Material Installations has made several material statements to town officials
that misrepresent the facts. This includes that their shipping operations (to include all
truck activity) do not start before 7 in the morning. As I have submitted to the town on
several occasions, I have video proof that operations routinely begin before 7 a.m.
02/10/04 15:21 FAX 617 565 7528 tffJuu0
Page 7 of 7
Material Installations, a [corporate] citizen of our town, has not taken any steps to
effectively confine the nuisance activity to their property in order to prevent the
impairment of its residential neighbors/citizens. Good neighbors keep their noise to
themselves.
As referenced in this letter, the zoning by-laws (1972) restricting
warehousing/wholesaling only as a secondary use precede the Special Permit
Application (1987). The use of the Material Installations property
(warehousing/wholesaling) is a material change from the use allowed by the Special
Permit (assembly and storage) and is in violation of the by-laws.
The Conditional Use Special Permit was erroneously granted based on a
misrepresentation of the type of business. The permit also misrepresents that it
"complies with the provisions of the zoning by-law." The improperly granted Special
Permit confers no rights [to Material Installations] to operate in violation.of the by-laws.
Consequently, the non-permitted use of the Material Installations property is a
nuisance and infringes on my rights to the enjoyment and use of my property.
I am a taxpayer and constituent that lives, raises a family, and participates in multiple
community activities in North Andover. The residents of Meadowood rely on the
Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1}
property. The conditions caused by the non-permitted use (warehousing/wholesaling) of
the Industrial-1 property are an impairment to the neighborhood. Accordingly, the town
is obligated to protect the citizenry by administering the General laws and
corresponding zoning by-laws with impartiality. This is absolutely necessary in the
preservation and protection of the town zoning by-laws. Not doing so would deny my (as
well as other Meadowood citizens) property rights under the equal protection clause of
the constitution. I am demanding that this issue be placed on the agenda for the next
planning board hearing.
I am available to attend any meetings and/or provide further information.
Should you require additional information, please contact me at the above address or
via telephone at 978-683-3414 (home) or 617-557-1235 (work).
Thank-you for your time and attention to this important matter.
S'ncerely,
Konstantinos "Dino" Balos
Attachments
cc: Community Development Office
Zoning Board of Appeals
Board of Selectmen
Town Manager
Attorney Thomas J. Urbelis, Town Counsel
Attorney Matthew C. Donahue
02/06/04 15:12 FAA 617 b6b 1OZ6 .r,
Page 1 of 3
February 6, 2004
66 Meadowood Road
North Andover, MA 01845-5927
Town of North Andover
Community Development Office
Heidi Griffin, Director
27 Charles Street
North Andover, MA 01845
Fax: 978-688-9542
Subject: Your January 22, 2004 Letter
Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA.
Dear Ms. Griffin:
This is a response to your letter dated January 22, 2004 as well as a February 5, 2004
conversation with Town Attorney Thomas J.Urbelis regarding the Material Installations
Special Permit.
The town response references the Middlesex Appeals Court decision,Solar v. Zoning
Board of Appeals of Lincoln (33 Mass. App. Ct. 398). It states "the Appeals Court ruled
that a board was not free to modify, on its own, a special permit to make it conditional
upon ownership of the land (a new policy of the board) when the original permit was
subject to three-year automatically renewable terms."
In the Solar case, the court ruled that the board "injected into its decision criteria not
found in the by-law." The court also ruled that this "new policy" is "unrelated to the
land" and "not based upon factors concerned with the land or the protection of the
surrounding community.'
As you are aware, the Massachusetts General Laws (Chapter 40A) define "Zoning' as
"ordinances and by-laws, adopted by cities and towns to regulate the use of land,
buildings and structures to the full extent of the independent constitutional powers of
cities and towns to protect the health, safety and general welfare of their present and
future inhabitants.
As stated in my January 15, 2004 letter, Material Installations is a
warehousing/wholesaling business located in an Industrial-1 District. The "permitted
uses" section of the zoning by-laws (4.132), states "warehousing and wholesaling" is
permitted "only as a secondary use."
The July 1987 Application for a Special Permit states the following:
• Under the heading "4(b) Occupancy or use," the application states: "Expansion
for the assembly and live storage areas of the existing facility."
• Under "5(b) Occupancy and use," states: "Light industrial: offices, assembly and
storage areas for office partition systems components."
' r D '°`) 3' D
l�,l. VVL/VVJ
02/06/04 15:13 FAX 617 565 7528
Page 2 of 3
• Under 119. The principal points," the application states "The proposed addition
complies with the provisions of the zoning bu-law."
The Special Permit Application does not list the "warehouse, transport and deliver"
language contained in the company's Articles of Incorporation. In addition, the Zoning
by-laws do not contain the term "light industrial,"
As a result of residential abutter concerns with regard to "activity at night," "trucks,"
"noise" and"lights," the Special Permit includes the use of"evergreens and fencing" for
"noise barriers." I have provided expert research demonstrating that the aforementioned
noise barriers are ineffective.
Paragraph 9 of the Special Permit states " . . . any changes from these approved plans .
. . will negate this Special Permit and will require a new filing of application." The
"assembly and live storage" language contained in the Special Permit Application is a
misrepresentation of the actual use (warehousing/wholesaling).
Town records indicate that there is no variance to section 4.132 of the zoning by-laws
that states: "Warehousing and wholesaling shall be permitted only as a secondary use."
A"conditional use" or "special permit" is neither the equivalent of nor should it be
confused with "variances." According to the Mass. General Laws (Ch.40A), "variance
power is given only to the Board of Appeals." Likewise, the by-laws (section 10.4) state
"the Zoning Board of Appeals shall have power upon appeal to grant variances from the
terms of this Zoning Bylaw."
Zoning records indicate that the land presently occupied by the Meadowood
neighborhood has been zoned as "residential" since at least 1972. The character of the
Meadowood neighborhood is distinctly residential consisting of single family homes
most of which have young children.
The Meadowood neighborhood relies on the Industrial-1 zoning restrictions for
protection from the neighboring [Industrial-1] property. The conditions caused by the
prohibited use (warehousing/wholesaling) of the Material Installations property are an
impairment to the neighborhood.
Demand forePlannin&Board:Hearin
I submit that the Material Installations property is not used in accordance with the
terms of the Special Permit. Material Installations is a wholesale/warehouse business in
violation of the zoning by-laws. The permit is illegal and.was erroneously issued based
on misrepresented and non-disclosed information regarding the type of business.
This permit confers no rights [to Material Installations] to operate in.violation of the by-
laws. Consequently, the present use of the Material Installations property infringes on
my rights to the enjoyment and use of my residential property.
A permit issued under mistake of fact or in violation of law confers no vested right or
privilege on the person to whom the permit has been issued, and may be revoked,
notwithstanding he may have acted upon it, and any expenditures made in reliance
DZlUbliT4' T3;I3 I'7Ra T!"boa t�ra, q,VV., ...,
Page 3 of 3
upon such permit are made at his peril. Cochran v. Roemer ((287 Mass 500); Milton v.
Donnelly (306 Mass 451).
In Inspector of Buildings of Burlington v. Murphv (320 Mass. 207), the Supreme
Judicial Court ruled "where the change is a violation of a valid zoning by-law, and no
permit can legalize it." In Town,of Mayriard v. Tomyl (347 Mass. 397) the Supreme
Judicial Court ruled" the defendants can assert no right under the first; illegally
granted, permit." In Kolodny v. Building Commissiner of Brookline (346 Mass. 289), the
Supreme Judicial Court ruled that"the existence of a permit for the violation is
inconsequential in proceeding to end the violation." In Simeone Stone Corp. v. Oliva
(350 Mass 31), Supreme Judicial Court ruled that "every presumption is to be made in
favor of the by-law, and its enforcement will not be refused . . ."
In Vitale v. Planning Bd. Of Newburyport (10 Mass. App. Ct. 483), the Appeals Court
ruled that "due process does not require than an [administrative] agency must bind
itself to an error in perpetuity irrespective of the public interest." Furthermore, in
Ferrante v. Board of Appeals of Northampton (345 Mass 158), the Supreme Judicial
Court ruled that "the governmental zoning power may not be forfeited by the action of
local officers in disregard of the statute and the ordinance."
The Solar case referenced in your January 22, 2004 letter is not applicable to this
matter. Section 4.132 of the zoning by-laws is not a"new policy" and is directly related
"to the land." As a matter of fact, the text of section 4.132 is identical to the original
1972 version. The noise barrier conditions are "based upon factors" related to land use
and the "protection of the surrounding community.'"
Please follow the law and by-laws with impartiality as required under the equal
protection clause of the 14th Amendment: 1 am demanding that this issue be placed.on
the agenda for the next planning board hearing.
I am available to attend any meetings and/or provide further information.
Should you require additional information, please contact me at the above address or
via telephone at 978-683-3414 (home) or 617-557-1235 (work).
Thank-you for your time and attention to this important matter.
I(As_antinos "Dino"Balos
Attachments
cc: Zoning Board of Appeals
Board of Selectmen
Assistant Town Manager
Attorney Thomas J. Urbelis, Town Counsel
Attorney Matthew C. Donahue
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston,Massachusetts 02111
Benjamin B.Tymann 617 542 6000
617 542 2241 fax
Direct dial 617 210 6853
btymann @mintz.com [5
February 5, 2004 F 'f €
BY FACSIMILE AND FIRST CLASS MAIL '
G,
Chairman Alberto Angles, Jr.
North Andover Planning Board
Town of North Andover
27 Charles Street
North Andover, MA 01845
Re: Material Installation, Inc. 's Special Permit ofAugust 31, 1987
Dear Chairman Angles:
As you may know, a hearing was held before the North Andover Zoning Board of
Appeals on January 13, 2004 relative to Konstantinos Balos' appeal of the decision of
Commissioner Nicetta that my client, Material Installations, Inc., is in full compliance with the
Planning Board Special Permit of August 31, 1987 governing operations at Material
Installation's headquarters at 11 Bayfield Drive (the "Special Permit"). During that ZBA
hearing, Acting Chairman Soule stated that, per the request of Mr. Balos, the Planning Board
would be asking Town Counsel Urbelis to render an opinion on the question of whether the
Special Permit can be revised unilaterally by the Planning Board despite Material Installation's
full compliance with each of the Permit's terms and conditions.
I do not know whether your Board yet has asked for, let alone received, Attorney
Urbelis"s opinion on this legal question. Nonetheless, I write to explain the reasonN why the raw
clearly does not permit a planning board to revisit, or consider substantive revisions to, a special
permit granted sixteen and a half years ago by a predecessor planning board.
As you know, a special permit is a property right granted to a landowner. See G.L. c.
40A, § 9. Of course, a permit granting authority that issues a special permit may make the
property right it is conveying to the special permit holder subject to conditions, including
"limitations on time." Id. Once a permit granting authority decides to issue a special permit
with whatever conditions it has included,then files its decision with the town clerk, that"final
action," G.L. c. 40A, § 17, is subject to an appeal period of only 20 days. Id. Any such
challenge to the special permit -- whether by an aggrieved private party or "any municipal
officer or board," id. -- must occur within that twenty-day period. "Th[is] remedy shall be
exclusive,"the statute says. Id. (emphasis added).
Boston Washington Restota New York New Haven Los Angeles London.
M1NTZ,LEVIN,COHN,FERWS,GLOVSKY AND POPEO,P.C.
Chairman Angles
February 5, 2004
Page 2
Here, the Planning Board granted Material Installations the Special Permit, unlimited in
time, in 1987. No one appealed that Special Permit. Mr. Balos cannot now attack the Special
Permit, years after the fact,by asking your board to revise it.
The decisions of Massachusetts courts that have treated the issue of the finality of a
special permit are as unambiguous as the statutory language that those decisions interpret. In
Iodice v City of Newton, for example,the Supreme Judicial Court held that"by its plain
language, Section 17 establishes that a person aggrieved by a decision of a special pen d
granting authority must seek review of that decision, if at all, within twenty days of the filing of
the decision in question." 397 Mass. 329, 333 (1986) (emphasis added); see also, e.g., Eldercare
Services., Inc v Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480, 482 (1984);
Lincoln v Board of Appeals of Framingham, 346 Mass. 418, 420 (1963) (both cases holding
that the exclusive remedy for undoing board of appeals' decisions is the statutory 20-day
appeal).
The Supreme Judicial Court has been just as unequivocal in reiterating the Legislature's
rationale for strictly limiting the ability to attack property rights enshrined in a special permit:
the holder of a special permit, like Material Installations, "should be able to rely on the
decisions of... special permit granting authorities which have not been challenged within a
limited period." Iodice, 397 Mass. at 334 (emphasis added). Massachusetts courts take this
legal principle so seriously as to treat compliance with Section 17's twenty-day appeal provision
as "a condition of maintaining" a challenge to a special permit and a requirement that is
"`policed in the strongest way."' Bonfatti v Zoning Bd. of Appeals of Holliston, 48 Mass. App.
Ct. 46, 50 (1999), uotin Cappuccio v Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 311-
312 (1986). In fact, as recently as 2001,the Appeals Court upheld a trial court's decision that
invalidated a legal challenge to the issuance of a special permit by an abutter because that
abutter was 15 minutes late in filing a copy of her appeal with the Town Clerk as required under
[the twenty-day appeal provision. Bingham yCity Council of Fitchburg, 52 Mass. App. Ct.
566, 556-67 (2001) ("Harsh as it may seem,"there was no "wiggle room" under the statute to
allow this slightly late filing). If one who wishes to undo a special permit cannot do so because
she started her challenge 15 minutes after the moment the permit holder could rely on it as final,
surely either Mr. Balos or the Planning Board would be barred from doing so sixteen and half
years after that deadline.
In a Superior Court case where, like here, a neighbor came forward to request revision or
reversal of a property right that was granted to a land owner nearly a decade earlier,the Court, in
rejecting that challenge, applied these same principles safeguarding a property owner's ability to
rely on the property rights already conveyed to him by government authorities. Allison v.
Barberry Homes, Inc., 12 Mass. L. Rptr. 138 (Mass. Super. Ct. Aug. 1, 2000) (Sosman, J. In
that case, however, the property right that the Court protected from that extremely tardy legal
challenge was a license, a far less enduring property right than a special permit. The holding of
MrNTZ,LEVIN,COHN,FERRIS,GLovsKY AND POPEO,P.C.
Chairman Angles
February 5, 2004
Page 3
then-Judge (now Supreme Judicial Court Justice) Sosman in the Allison case is particularly apt
to the situation the Planning Board faces with Mr. Balos who -- in addition to claiming that
Material Installations is a nuisance to him even though he bought his home well after my client
received its special permit and began its warehousing and assembly operations I/ -- apparently
hopes that this Board will add new conditions or otherwise revise Material Installations' Special
Permit based solely on the notion that, in 1987, a predecessor Planning Board could have added
different conditions or otherwise reached a different result. Rejecting this same theory in
Allison, then-Judge Sosman stated:
Th[e] limitation [that a license should be used in compliance with its terms] does not
mean that disgruntled neighbors may, under a nuisance theory, reopen the underlying []
proceedings that led to the issuance of the license to see whether, with hindsight, the
license terms could have been crafted differently. ...Challenges to the wisdom or
propriety of a [license-granting authority]'s decision must be brought before the
[authority] and addressed in any judicial review of the [authority]'s decision. The law of
nuisance is not a mechanism for disturbing a [] decision that has long since become final.
12 Mass. L. Rptr. 138.
As this letter demonstrates, the law is clear that Material Installation's property rights
under the Special Permit cannot be unilaterally revised or reversed sixteen and a half years after
those rights were granted. Were that ever to occur, such action would constitute a taking, for
which Material Installations would be entitled to compensation. When the 1987 Planning Board
issued the Special Permit to Material Installations it did not, as it could have, limit the Permit's
duration; rather, it conveyed to Material Installations an indefinite property right. That property
right then became final at the moment that the "exclusive remedy" for anyone wishing to
challenge the Permit expired. Material Installations, which has been an outstanding corporate
citizen and taxpayer in North Andover since 1987, relies on the Special Permit as vital to its
business and. as Commissioner Nicetta correctly determined, is in full compliance with it.
Therefore, I respectfully urge the Planning Board not to pursue the futile course suggested by
Mr. Balos.
" "[C]oming to a nuisance ... is a significant factor"weighing against a prospective plaintiff's nuisance claim,
particularly where the plaintiff knew or should have known of the type of commercial use taking place on an
adjoining property at the time he moved to the neighborhood. Escobar v. Continental Baking Co.,33 Mass.App.
Ct. 104, 110(1992).
MIN]2'LIVg0'C0BN,FERRIS,(3LOVSKY AND 9OP40,yI�
Chairman Angles
February 5, 2U04
Page
If I can answer any questions or provide any additional information of this matter, please
do not hesitate tn contact me. Thank you for your attention to this matter.
YO
`
�
V
'-_ uo
�
cc: 9 I3ouz� o��oz�ura �
_���" �
Board of4nnou�a ozcol�cro
Zoning" --,, �
D. Robert NUoetto, Building Commissioner |
Thomas ]. Urbe}io, Beq., Town Counsel
Mark Rees, Town Manager
Mr. KoomtantiooaBOl0s
Mr. Michael Farrow
Ll7|44O733v\
�
�
�
Town of North Andover NORTH 3�Dy t4OR o
OFFICE OF O
COMMUN&V DEVELOPMENT AND SERVICES
27 Charles Street 44QDATF DwYP`y�`J
North Andover,Massachusetts 01845 SACHU`t
HEIDI GRIFFIN
Director
Fax(978)688-9542
(978)688-9531
January 22, 2004
Mr. Dino Balos
66 Meadowood Road
North Andover, MA 01845
Re: Material Installations, 11 Bayfield Dr.
Dear Mr. Balos:
Town Counsel responded to my request about your concerns with Material Installations.
Atty. Urbelis determined with regard t is modification otion or at the request of other parties,he
special permit sought by the board
could.find no definitive ruling,which authorizes such a modification.
Solar v Zoning Board of Appeals of Lincoln, 33 Mass.App. Ct. 398 (1993),the Appeals
Court ruled that a board was not free to modify, sof the board)when it original
ke it
conditional upon ownership of the land(a new policy
permit was subject to three-year automatically renewable terms.
Sincerely, .
Heidi Griffin
HEALTH 688-9540 PLANNING 688-9535
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530
� l
URBELIS &FIELDSTEEL, LLP
155 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1727
THOMAS J.URBELIS Telephone 617-338-2200 Andover
e-mail tju @ufb.com Telecopier 617-338-0122 Telephone 978-475-4552
January 20, 2004
Heidi Griffin
North Andover Town Offices
27 Charles Street
North Andover, MA 01845
RE: DINo BALOS
Dear Heidi:
This is in response to your letter dated January 14, 2004 and your inquiry about
procedures for a request by an abutter for a modification of substantive conditions to a site plan
special permit which has been in place for about 17 years.
If the special permit granting authority is requested by the recipient of the special permit
to modify a condition,Huntington v. Zoning Board of Appeals of Hadley, 12 Mass. App. Ct. 710
(1981) would suggest that, under certain circumstances, the permit granting authority might have
the authority to do so assuming that the relevant notice and hearing requirements were met.
However, with regard to a modification of a substantive condition (and not an inadvertent
or clerical error) of a special permit sought by the board on its own motion or at the request of
other parties, I could find no definitive ruling which authorizes such a modification. The court in
Huntington, specifically did not decide on such authority. In Solar v. Zoning Board of Appeals
of Lincoln, 33 Mass. App. Ct. 398 (1993), the Appeals Court ruled that a board was not free to
modify, on its own, a special permit to make it conditional upon ownership of the land(a new
policy of the board) when the original special permit was subject to three-year automatically
renewable terms.
Please call if you have any questions or if there is anything else that you need.
Very truly yours,
Thomas J. Llrbelis
V
TJU/lah
cc: D. Robert Nicetta
s:\wp51\work\n-andove\corresp\griffin.ltr-dinobacos.doc
12/15/03 15:59 FAX 617 565 7528 10001
K.Dino Balos
Community Development Office
To: From: K.Dino Balos
Heidi Griffin,Director
Fax: 978-688-9542 Pages:X5
Phone: 978-6B8-9533 Date: 121212003
Re: Material Installations CC: Planning Department
J.Justin Woods,Director
0 For Review d Please Comment 0 Please Reply Privileged and Confidential
i
• Comments:
See attachment..
N CALL
FOR D TE /`° IMEC L7 A.M
M S�
PHONED::: +
OF J
PHONE D / � <��/ RE D
UR CALL
EA CODE NUMBER EXTENSION PLEASE GALL'
MESSAGE _
:AGAIN
bAME TO' `
SEE YDU' :
WANTS TO
SIGNED ! S1iV�s�{Al_ 48003
FORT DAT X-7
l? f P.M- l
PHONEO
'4 A =( K
A.
�
y PHONE_
P A g M 5EXTENSIO PLEASE CALL
MESSAG
i LAME TO
SEE YOU
WANTS TO
I3 r
SEE YOU
I
S I G N E D JY���lf�u 48003
12/15/03 15:59 FAX 617 565 7528 0]002
December 1, 2003
66 Meadowood Road
North Andover, MA 01845-5927
Town of North Andover
Community Development Office
Heidi Griffin, Director
27 Charles Street
North Andover, MA 01845
Fax: 978-688-9542
Subject: Planning Board Conditional Approval-Noise Barriers
Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA.
Dear Ms. Griffin:
This letter is written under the recommendation of Zoning Board member Walther Soule
during a November 18, 2003 hearing regarding the noise nuisance caused by Material
Installations to its residential neighbors. A finding of the following was requested:
1) That Material Installations is not zoned for its current location and has become a
nuisance to its residential neighbors; and
2) That the Planning Board's 1987 Conditional Approval regarding"noise barrier"
restrictions be amended to accomplish its original intent relative to "activity at
night, trucks, noise, and lights."
Material Installations-Type of.Business
Town, Commonwealth, and Merrimack Valley Planning Commission (MVPC) records
indicate that Material Installations is a warehouse/wholesaler business. According to the
U.S. Labor Department (DOL), the nature of this industry includes trucking. The DOL also
indicates that there is a"blurring distinction"between "trucking and warehousing."The
truck activity at Material Installations causes various types of noise and vibrations which
interfere with the quiet enjoyment of my property. This includes:
a) Shipping dock operations that regularly begin between 6 and 7 a.m.;
b) Truck Activity;
c) Operation of waste compactor;
d) Trucks regularly idling over 5 minutes
e} Nighttime activities (e.g., truck operations -truck fueling, truck idling, etc.); and
f) Loud voices of workers.
Zonin
As you are aware, zoning protects adjoining property owners from incompatible uses and
enhances overall quality of life.
Material Installations is zoned by the Town of North Andover as "Industrial-l."
The properties in the Meadowood neighborhood are zoned as "Residential-6."They are
distinctly residential consisting of single-family homes. Furthermore, there are no access
roads between the two districts.
12/15/03 15:59 FAX 617 565 752 8 10003
Section 4.132, of the North Andover Zoning By-laws states the following:
Paragraph 13. Warehousing and wholesaling shall be permitted only as a secondary
use.
Paragraph 15 (4.132) states: "accessory use shall not be injurious, noxious or
offensive to the neighborhood."
In addition, section 4.1.1 (General Provisions) states that"Accessory uses, as defined
herein, shall be on the same lot with the building of the owner or occupant, and shall be
such as not to alter the character of the premises on which they are located nor impair the
neighborhood."
Planning Board-Noise Barriers
A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes residential abutter
concerns with regard to "activity at night, trucks, noise and lights.
During the Site Plan Review (August 3 & 17, 1987) the use of"evergreens and fencing to be
looked into for possible noise barriers" as well as "the possibility of a 6 foot stockade fence
and arborvitae to be planted as a buffer"were inputted.
Furthermore, during the Planing Board's conditional approval of the Special Permit (August
31, 1987), in response to noise concern, proponents, "admit that into the winter months a
lack of foliage in the intervening woods may be cause for concern."
As a result, the conditional approval (September 2, 1987) includes a landscape plan with a
"row of planted arborvitae to the rear of the building" as well as "a six(6) foot closed
stockade fence be erected along the property line."
Research- Noise Barriers
Expert research indicates that the aforementioned noise buffers are ineffective in that it
only provides psychological relief and does not physically lessen noise.
The Federal Highway Administration (FHWA) indicates that"Vegetation, if high enough,
wide enough, and dense enough (cannot be seen through), can decrease noise. A 200-foot
width of dense vegetation can cut the loudness of noise in half.
The FHWA also indicates that effective noise barriers can reduce noise levels in half. They
can be constructed to be visually pleasing and blend in with their surroundings. However,
for a noise barrier to work, it must be high enough and long enough to block the view of the
[source of noise].
North Andover Police Department records indicate noise complaints against Material
Installations from at least early 1998.
The town has a duty to protect citizenry from disruption of the peaceful enjoyment of their
residences. In Davis v. Sawyer, (133 Mass. 289, 290, 43 Am. Rep. 519), the Supreme Court
of Massachusetts said "'Noise which constitutes an annoyance to a person of ordinary
12/15/03 16:00 FAX 617 565 7528 10004
sensibility to sound, such as materially to interfere with the ordinary comfort of life, and
impair the reasonable enjoyment of his habitation, is a nuisance."
The Massachusetts Supreme Court (Ferriter v. Herd, 287 Mass. 138) stated that"the
sanction that the Legislature gives by authorizing local officials to issue a license to conduct
a certain business on specified premises is subject not only to the limitation that the
business must be carried on without negligence, but to the further qualification that it must
be conducted without unnecessary disturbance of the rights of others."
In Shea v. National Ice Cream Co., Inc., (280 Mass. 206, 211) the court said, '"the
defendants are entitled to a reasonable use of their property. It is plain, however, that it
cannot be so used as to disturb the plaintiffs,who have a right to sleep at night in their
own homes."
Furthermore, in Weltshe v. Graf(323 Mass. 498), plaintiff landowners and the.defendant
trucking company were located at the boundaries of a district zoned for business and a
district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin
defendant-trucking company from operating its business as a nuisance due to truck
terminal noises. The Massachusetts Judicial Supreme Court ordered that.a decree be
entered in favor of the landowners enjoining the trucking company from shipping-related
activity. The court also affirmed that a"zoning ordinance affords no protection to one who
uses his land in such a manner as to constitute a private nuisance."
It is requested that appropriate action be taken to amend the conditional approval with
regard to noise barriers by providing an effective long-term solution. It is also requested that
actions be coordinated with the Zoning Board of Appeals as necessary.
I am available to attend any meetings and/or provide further information.
Should you require additional information, please contact me at the above address or via
telephone at 978-683-3414 (home) or 617-557-1235 (work).
Thank-you for your time and attention to this important matter.
Sincerely,
Konstan nos "Dino" Balos
Attachments
cc: Zoning Board of Appeals
Planning Department
Assistant Town Manager
Attorney Matthew C. Donahue
� - �'rown of North Andover No;'.2 b`'., ->.
Office of the Building Department o
p
Community Development and Services Division
27 Charles Street
North Andover,Massachusetts 01845 �SSACHUSEt
Telephone (978)688-9545
D. Robert Nicetta Fax(978)688-9542
Building Commissioner
August 25,2003
Mr.Konstantinos"Dino"Balos
66 Meadowood Road
North Andover,MA 01845
RE: Zoning Complaint
Materials Installations,Inc.
11 Bayfield Drive
Dear Mr.Balos:
I am of the following opinion after investigating your complaint against the above referenced business:
• The Planning Board Special Permit of August 31, 1987 did not place a definite time of
operation for Materials Installations,Inc. in the Conditional Approval of the Site Plan
Review.
• In 1987 and presently the North Andover Zoning By-law does not address hours of operation.
• The Planning Board Decision of 1987 does not place any restriction on the type of business
Materials Installations,Inc. conducts at the Industrial-I site.In fact the August 31"decision
gave the business permission"to expand the assembly and live storage areas in an existing
building by 18,200 square feet".
6 In 1987 and presently the North Andover Zoning By-law does not address"noise levels"in
any zoning district.
® On site investigation reveals that the"row of planted arborvitae to the rear of the building and
the six(6)foot closed stockade fence erected along the property line"are in place as required
in Paragraph 5 of the Conditional Approval.
The Building Commissioner/Zoning Enforcement Officer is of the opinion that Materials Installations,
Inc. is in compliance with the approved Planning Board Special Permit of August 31, 1987,time stamped
by the North Andover Town Clerk on September 03, 1987.
Pursuant to Section 10.4 of the North Andover Zoning By-law this decision maybe grieved within thirty
(30)days before the North Andover Zoning Board of Appeals.
Yours truly,
D.Robert Nicetta
Building Commissioner/Zoning Enforcement Officer
CC: Heidi Griffin,Director CD&S
Mark H Rees,Town Manager
Raymond J Santilli,Assistant Town Manager
Thomas J.Urbelis,Town Counsel
William Sullivan,Chairman ZBA
BOARD OF APPEALS 688-9541 BUILDING 688 9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-95.35
10M V o ARU.J 1Rev 3.79►10.79.132118
fie- Tommunw-ealt4 of Musar4usrtts
' MICHA.EL JOSEPH CONNOL Y
F nrr Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF ORGANIZATION
(Under G.L. Ch. 156B)
Incorporators
NAME POST OFFICE. ADDRESS
Include given.name in full in case of natural persons; in case of a corporation, give stale of Incorporation.
Rober". A. `.,`,'�'t(,_";merdine, Esc .
One Union F:_,:wet
Boston, :i.'i 02108
The above-named incoro0rator;s)do hereby associate(themselves)with the intention of forming a corporation under the
provisions of General Laws, Chapter 156B and hereby state(s):
I. The name by which the corporation shall be known is:
� Name
I A",roved
Material Instal latic,;t 1c
2. The purpose for wt%ich inc corporation is formed is as follows:
1. To store, warehouse, transport and deliver all types
and kinds of office furniture or related systems.
(See Continuation Sheet 2A)
C CJ
P ❑-
M ❑
R.A, ❑
Now if the space provided under any article or item nn this form is Inrulllcient,aultliUun%+111111 he set foril►nun Wnnrale N 1.2 t 11
�• sheeht of paper leaving a loll hand margin of at least 1 inch for handing. Addltlml%the more Ihnn nnv nitucle nun N coNulnurd nn 11
r.c. ;Ingle cheat +n long nn each article rnqul:fng each such addition is clearly Intltcnled
TOWN OF NORTH ANDOVER
OFFICE OF
TOWN MANAGER
120 MAIN STREET
NORTH ANDOVER,MASSACHUSETTS 01845
NORTH
Mark H. Rees '6
0
Telephone (978)688-9510
Town Manager FAX(978)688-9556
MEMO RECISIVED
TO: D. Robert Nicetta, Building Commissioner APR 1 4, �0(),j
Michel Glen-non, Board of Appeals NOrl P-4 �AWXWEH
Julie Parrino, Conservation Administrator f"[ANi4140 A19TMEN-r
Justin Woods,Town Plamier
Sandra Starr,Health Administrator
Donna Mae D'Agata,Adm.Asst., CD&S
Richard Stanley,Police Chief
William Hrnurciak, Director,Public Works
Joyce Bradshaw, Town Clerk
FROM: Karen A.Robertson,Administrative Assistant
DATE: April 14,2003
RE: Request for Information
Enclosed please find a Public Records Request from K.Dino Balos, 66 Meadowood Road,
North Andover, Please provide this office with copies of the information requested in the attached
correspondence pertaining to your office. We would appreciate receiving this information at your
earliest convenience.
Thank you for your cooperation in this matter. If you have any questions, please do not hesitate
to contact me.
Cc: Mark Rees,Town Manager
6f
t
Town of North Andover of t%e oT"
Office of the Planning Department
Community Development and Services Division
27 Charles Street
North Andover, Massachusetts 01845 �S�AC""5&�
Planning Director: iwoods @townofnorthandover.com P (978) 688-9535
P
P Justin Woods h�://www•townofnorthandover.com F (978) 688-9542
J. Technical Review Committee Report
TO: Mark Rees,Town Manager
FROM: J.-Justin Woods,Planning Director/TRC Chair
CC: Raymond Santilli,Assistant Town Manager/Acting Director of Community Development
Heidi Griffin,Community Development& Services Director
Joyce Bradshaw,Town Clerk
RE: Balos Request for Information
DATE: April 15,2003
Attached please find copies of the following three decisions:
1) Site Plan Approval for 11 Bayfield Drive dated September 2,1987;
2) Preliminary Subdivision Approvals dated February 28, 1983;AND
3) Definitive Subdivision Approval dated April 2, 1984.
I have reviewed all three decisions, which do not contain any conditions regarding hours of operation or
decibel level for noise. I also provided copies to the Town Clerk who will pull the applicable minutes from her
archives.
I have corresponding files with each of these decisions,which I have set aside for easy access. The Planning
Assistant and I have both met with Mr.Balos and permitted him to review these files. Mr.Balos can feel free
to come in to view these files again and/or to copy them. We can provide him with a table on which to work
and unlimited access to the copier. He will be charged$0.20 per copy.
Re e tfull
4 ,
stin Woods
130ARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
0 O 1
04/10/03 12:07 FAX 617 565 7528 Lo
April 10, 2003
66 Meadowood F�oad
North Andover, MA 01845-5927
TOWN MANAGER'S OFFICE
MARK REES, TOWN MANAGER
120 MAIN STREET
NORTH ANDOVER MA
via fax: 978-688-9556
Subject: Citizen Public Records Request
Re: Material Installations Inc., 11 Bayfield Drive, North Andover
To Whom It May Concern:
Pursuant to the Nx:assachusetts Public Records Law, this letter :,ewes as a
request for the following:
Any and all information related to hours of operation, an-/ and all town
permits and licenses, business operating plans, building forms, zoning
plans, any town authorized exceptions, citizen and/or to,vn complaints,
any and all citations, waste disposal permits/licenses, noise, vibrations,
nuisance, and minutes of town meetings related to the a1 orementioned
items for Material Installations located in the North Andover Industrial
Park 11 Bayfield Drive accessible via Willow Street off Ro ate 114.
This includes: the building department, police departme zt: records,
zoning permits, Board of Health records, Public Works records, Planning
Department records, Community Development records, Conversation
Commission records, Town Clerk records, and Zoning Board of Appeals
records.
I can be contacted at the above address or via telephone at 978.683-3414
(home) or 617-55 7-123 5 (work).
Thank-you for your time and assistance.
Sincerely,
K. Dino Balos
J1\ Town of North Andover .�aRTh
/ 6 tSLYy�~Q
Office of the Planning Department 0 -
>��� Community Development and Services Division
� 27 Charles Street
°q�reo Pe
North Andover,Massachusetts 01845. 9SSgCHUSE�a�
http://www.townofnorthandover.com
Planning Director. jwoods@townofnorthandover.com P (978) 688-9535
J.Justin Woods F (978) 688-9542
INFORMATION REQUEST
TOWN PLANNER
Please use this form if the Town Planner is unavailable to provide immediate assistance. The
Planner can provide information on new development in Town, Planning Board actions and
meetings, and Planning Board application procedures.
Please fill out the attached form in its entirety to ensure an accurate and prompt response. All
requests for information will be handled as soon as possible.
CONTACT INFORMATION
Date: ' �`� \ '�' �I Q S Pmt {�( �
Name:
Phone number:
Fax number: j S JP/�% c t o 7 �l
Address: e V e'-)I"
G/wov) r,�� L! Ii✓
INQUIRY
Property in question: (Please include as much information as possible, e.g.: address;tax map and
parcel number, subdivision or site plan name.)
Inquiry: P.z�a�
fY� `I Q1 L � !al
Thank you for your interest and inquiry.
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
_��
�`j' _
t�
L1 J ��� tr
,� ' I
%���� � !j
� � �
3� �
j � / If
`o l
'7 � � '� i
� � (,
� � �;
_�. ! �''
� � �
� � --r
�� f
l
� t �'
f 1(
/ i
�' j
r
,�
��
1
�!
i
� �;�