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Home My WebLink AboutCorrespondence - 1077 OSGOOD STREET 11/8/2012 LYNCH, DESIMONE&NYLEN, LLP ATTORMYS AT LAW 10 POST OFFICE SQuARr-.,Sun'r,970N BOSTON,MASSACHUSETTS 02109 Telephone: (617)348-4500 Facsimile: (617)348-4545 Email: RNylon @LDNLLP,C0M JOHN M.LYNCH,P,C, ERNEST P.DESimoNE OFCOUNISEL RICHARD A.NyjEN,JR. STEPHEN W.DE.CouRcRy November 8,2012 JAMES W.MURPHY SHANNONMICHAUD WAYNE H.Scorr Via Facsimile& 1". Class mall Albert P.Manzi,111,Esq., Chair 0 Zoning Board of Appeals 1600 Osgood Street Building 20, Suite 2-36 BOARD OF APPEALS North Andover,MA 01845 Re: Angus Realty Corporation; 1077 Osgood Street,North Andover,MA 01845; Withdrawal of Opposition to Variance Request Dear Chairman Manzi and Members of the Zoning Board of Appeals: This office represents Mr. Frank Ragonese of 1939 Great Pond Road,North Aiidover, Massachusetts 01845 who hereby withdraws his opposition to the above application filed by Angus Realty Corporation (the"Applicant")seeking a Variance from the Watershed Protection District and 4.136.c.ii(3)of the Zoning Bylaw of North Andover, The Applicant has made a plan revision to address my client's concern and he hereby retracts his letter dated August 14,2011 Please contact me if you have any questions. Thank you, cprely, 4-1 chard A.Nylen, Jr. RAN/kad cc: Mr.Frank Ragonese Paula M.Devereaux, Esq. HARagonosOLetter to North Andover ZBA 11-06-12,doox r Aug. 14. 2012 1 34P Lynch, DeSimone & Nylen LLP No. 1680 P. 1 H 0 W IE RYC)zT"D A.NYLEN,JR. J D LYNCH,DESIMONE &NYLEN,LLP PnAPn CAF APIDPAI q 10 Post Office Squaxe,Suite 970N Boston,�XA 02109 Telephone: 617-343-4500 Facsimile: 617-345-4545 pACSZMXLY,TRANSMITTAL DATE: August 14,2012 TO: North Andover Z)3A PAXNO. (978) 688-9542 .Attu: Ms.Angela Oiofolo FROM: Richard A.Nylen,Jr.,Esq. RE: Opposition to Variance Request;Angus Realty Corpotation: 1077 Osgood Street,North Andover,MA 01545 NC7MBER OF PAGES (including cower sheet) The document accompanying this telecopy transmission contains information from Lynch, DeSimone and Nylen, LLP,which is confidential and legally privileged. The information is intended only for the use of the individual or entity named on this transmission sheet. If you are not the intended recipient,you are hereby notified that any disclosure,copying,distribution,or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited and that the document should be returned to this firm immediately. in this regard,if you have received this telecopy in error,please notify us by-telephone immediately so that we can arrange for the return of the original document to us at no cost to you. Aug, 14, 2012 1 :34PM Lynch, DeSimone & Men LLP No, 1680 P. 2 LYNCH, D1381MONE&NYLP-N, LLP ATro NP_ys AT LAW' 10 POST OFFICE SQUARIs,SUITE 97ON ]BOSTON,MASSACHUSETTS 02109 Telephone: (617)348-4500 )FAGS mile: (617)348-4545 Email: .RNy1en@LbNf L]'.COM �o1�NM.�,� ,� � .p.c, ]EMESTP. )ESiMONE OF COUNSEL RICHARD A.NYLmq,JR. _ SnPHEN W.DECOURCEY August 14,2012 JAMHS W.MURPHY SHANNO14M1CHAW WAYNE14,SCOTT Tiira Facsimile a& zs; G7rassMrail Albert P.Manzi,I11,Esq., Chair Zoning Board of Appeals 1600 Osgood Street Building 20, Suite 2-36 Forth Andover,MA 01845 Re: Angus Realty Corporation; 1077 Osgood Street,North Andover,Na 01545; Opposition t:o'Varia)ice Request Dear Chairman Manzi and Members of the Zoning Board of Appeals: This office represents Mr. Frank Ragonese of 1939 Great Pond Road,North Andover, Massachusetts 01845 who is offering his opposition to the above application filled by Angus Realty Corporation (the"Applicant')seeking a Variance fi-om the Watershed Protection District and 4.136.c.ii(3) of the zoning Bylaw of North Andover, My apologies as I am unable to appear before the Board on August 14, 2012 due to a previously scheduled hearing in Norton,Massachusetts, Mr.Ragonese opposes the Variance because the Applicant has not met the three prong test' established by the Bylaw under 10.4 or Massachusetts General Laws, Chapter 40A, §10. Specifically, the Variance process is to be used for situations Inhere the unique landform, topography or soils has created a hardship,financial or otherwise, A Variance should not be granted under 10,4 or Chapter 40A, §10 when it is based upon the Owner's desire to expand its substantial buildings and uses into the only vacant area remaining on the Property. The Variance should not be granted for the following reasons.- A. The Watershed.Bylaw Prohibits the Disturbance. The Project involves the construction of a new bank at the shopping plaza within the 250 foot non-disturbance zone of the North Andover Watershed District, The Project involves new impervious area and the elimination of an approved detention basin on the west of the Property. The Bylaw was enacted almost twenty(20)years ago and prior to the Applicant's assembly of the parcels used to create the shopping center. See don 4.136 of'the Bylaw was carefully drafted to protect the areas surrounding the North Andover water supply with an overlay District that Aug. 14. 2012 1 :35PM Lynch, DeSimone & Men LLP No. 1680 P. 3 August 14,2012 2IPage established four zones of protection including the general 400 foot zone,the non--discharge zone, the non-disturbance zone and the conservation zone. These zones and their use restrictions of setbacks axe the foundation of the Watershed Protection District. The Bylaw allows certain uses within the general and conservation zones by Special Permit but prohibits most uses in the non- disturbance zone. B. The®twner does not meet the three prong test for a Variance under the Bylaw and state law. The Applicant submitted a memorandum in support of its Variance application dated July 18,2012 which fails to demonstrate that the proposal meets the three prong test necessary to be granted a Variance. The Applicant has failed to meet its burden of proof and the Board cannot make the necessary findings. Y. The Applicant has not demonstrated that the circumstances are unique relating to soil conditions,shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located. The Applicant concedes that the soil conditions are not at issue. The Applicant concedes that the reason the Variance is required is due to the location of portion of its expansive property within the restricted non-disturbance area, The plans demonstrate that there is nothing unique about this large multi-acred property than already contains multiple stores and parking. The shape is not confining or irregular for its allowed uses, The plans demonstrate that those is nothing unique about the topography of this flat parcel. In fact,the Applicant seeks to fill in a detention basin that provides open space and storinwater infiltration,two purposes of the Bylaw. 2. The Applicant has not demonstrated that the literal enforconeot of'the Watershed Proteetiou Bylaw will result in a substantial hardship to it, financially or otherwise. The Courts have issued many decisions to guide municipalities as to what constitutes a hardship. There is no demonstrated hardship. First,the Applicant has not stated what the hardship is. Second,the Applicant cannot claim a financial hardship to its shopping plaza for the past twelve (12) years based upon its inability to place a bank in the Watershed District. Third,the courts are clear that the financial hardship must be the result of the unique condition of the land and not the owner's personal or financial status. Huntington v. ZBA of Hadley, 12 Mass. App. Ct. 710,715 (1981). Here there is no demonstration that the shopping plaza has suffered a substantial hardship without a bank on the premises for the past twelve(12)years. Finally,the courts do not consider the enforcement a governtnent regulation such as a bylaw or local restriction that may result in a lesser profit or less than maximum used to be a hardship. Kirkwood v, ZBA of Rockport, 17 Mass. App, Ct. 431 (1984); Bicknell v.Boston Board of Appeals,330 Mass. 676, 681 (1953), Aug, 14. 2012 1 ; 35PM Lynch, DeSimone & Nylen LLP No. 1680 P. 4 August 14,2012 3 age 3. The Variance will cause harm to the public good and derogate from the purpose of the Bylaw. The third test requires the Applicant to demonstrate that the P oject will not substantially harm the public good or substantial derogation from the Bylaw. In addition to proposing a use not allowed under the Bylaw the application is deficient as pointed out by the planning Department and the Building Inspector. The application does not include stormwater calculations with more than 20,000 square feet of new impervious surface being presented. Impervious areas are the types of uses which the non-disturbance zone is designed to protect against. Second,there is xao demonstration that the pzoject complies with the Wetlands Protection Bylaw or the Wetlands Act. Third,the design ignores the fact that the substantial number of trucks are sent to the same vicinity as the bank. Trucks idle and create queues due to the existing traffic circulation patterns that sometimes spill out onto Osgood Street creating a public safety issue. The bank will take up an area where trucks line up and will add traffic. C. The Applicant and the Board cannot rely upon the findings in prior permits. The Applicant has suggested that the prior approval of a parking area on the property supports the issuance of this Variance. This is not a compelling or correct argument. The Applicant must meet the three prong requirements of the Variance and cannot rely up on the prior actions or prior pzoceedings. Callahan&Sons v.Board of Appeals of Lenox) 30 Mass,App. Ct. 36, 40 (1991);Lopes Y. Board of Appeals of Fairhaven, 27 Mass. App. Ct. 754(1939). 5BMMARX The intention of the Bylaw acid the state statute is to gratit Variances only under last resort conditions where the unique character, shape or topography presents a hardship. There is no ri ht under M.G.L.,c. 40A, §10 or the Bylaw to a Variance. The Courts have stated expressly that Variances are to be issued sparingly in contrast to the more flexible Special Permits. Mendes Y. 13oard of Appeals of Barnstable, 28 Mass, App, Ct. 527, 531 (1939): "The power of variation is to be sparingly exercised and only in rare instances and tinder exceptional circumstances peculiar in their nature, and with due regard to the main purpose of a zoning ordinance to preserve the property rights of others . . ." Real Prop. Inc.v. Board of Appeal of Boston, 319 Mass. 180, 184-185 (1946). Aug, 14. 2012 1 :36PM Lynch, DeSimone & Men LLP No, 1680 P. 5 -August 14, 2012 4_IPage The Courts have also stated that all three elements and findings must be made, Failure to meet any one of the three shall result in the denial of the'variance, Kitkwood y.Board of Appeals of Rockport, 17 Mass, App. Ct. 423, 427(19$4), In this instance, as,noted above,the Applicant has not presented sufficient evidence that it meets any of the tluee tests. The Applicant seeks to maximize the use of a lot and has not been harmed. This is not a hardship. Please deny the Variance. Please contact me if you have any questions. Thank you. Sincerely, E ard A.Nylen, t•, RAN/kad H:\RwneselLeiwr(o North Andover ZDA 09•14.12.doox