HomeMy WebLinkAboutCorrespondence - 1679 OSGOOD STREET 9/7/2010 SMOLAK & VAUGHAN J John T. Smolak, Esq.
T: 978-327-5215 1 F: 978-327-5219
jsmolak(a;smolakvaughan.com
September 7,2010
BY HAND AND VIA EMAIL
John Simons,Chairman
Planning Board
Town of North Andover
1600 Osgood Street
North Andover,Massachusetts 01845
RE: Proposed Definitive Subdivision at 1679 Osgood Street
Applicant: GMZ Realty
Comments of S.P.E.C. Reale Trust
Dear Chairman Simons and Other Board Members:
This firm represents Christopher V. Adams, as Trustee of S.P.E.C. Realty Trust
(the "Trust"),the owner of a 2-acre parcel of land depicted as Lot 31 on Map 34 of the
North Andover Assessors Maps ("Lot 31"). Lot 31 abuts the proposed Definitive
Subdivision currently under review by the Planning Board. The Trust is requesting the
Board's consideration of the Trust's request that access to Lot 31 be provided through
the subject Definitive Subdivision for the reasons described in this letter. This letter is
intended to provide the Board with: (a) background and history concerning Lot 31;
(b) the 2008 rezoning process, including the removal of Lot 31 from the 2008 rezoning of
parcels along Osgood Street (Route 125) to CDD 3; (c) the definitive subdivision process;
(d) legal basis for the Board's rights to condition the approval of the Definitive
Subdivision upon the grant of access and other rights described herein; and, (d) a
proposal for access from the Definitive Subdivision to Lot 31 in a maimer which may
work for both parties.
(a) Background and History Concerning Lot 31
As described above, the Trust is the owner of Lot 31. Lot 31 abuts the Definitive
Subdivision as depicted on Assessors Map 34 which is attached as Exhibit A. Lot 31
also abuts land owned by the Trust shown as Lot 4 on Assessors Map 34,and is located
to the west of Lot 31. Lot 4 has frontage on Osgood Street and has an address of 1591
Osgood Street. Mr. Adams,through various entities,has owned both Lot 4 and Lot 31
since 1958.
(b) Rezoning Process in 2008
As the Board is aware,Town Meeting in 2008 rezoned a number of parcels located
along Osgood Street to the Corridor Development District 3 (CDD-3) Zoning District
designation. Initially included as part of that proposed rezoning were Lots 4 and 31.
East M ill,21 High Street,Suite 301,North Andover,MA 01845
W WW.SMOLAKVAUGHAN.COM
SMOLAK & VAUGHAN LLP
John Simons,Chairman
Planning Board
September 7,2010
However, as a result of discussions occurring at the Planning Board, and later in the
form of a floor amendment at Town Meeting,most of Lot 31 was removed from the
rezoning to CDD-3,and in fact,the CDD-3 zoning boundary line was specifically
established for Lot 31 "by a line parallel to and distant 500 feet easterly from the
centerline of rte. 125/Osgood Street and as shown on the Map..." In effect,
approximately 2/3 of Lot 3 was maintained within the R-2 zoning District while the
remaining third was rezoned to CDD-3. See certified copy of Article 38 of the 2008
Annual Town Meeting attached as Exhibit B.
We did not represent the Trust during the Planning Board and Town Meeting
process at that time. We understand,however, that the purpose of removing most of
Lot 31 from the proposed CDD-3 rezoning was specifically because of Lot 31's proximity
to the adjacent White Birch Lane residential subdivision and adjacent protected open
space, as well as Lot 31's location next to the subject Definitive Subdivision. In effect, we
understand that the Plaiuiing Board at the time felt that the rezoning of the entire Lot 31
would have resulted in an island of CDD-3 generally surrounded by residentially zoned
land. See Zoning Map attached to 2008 Warrant Article in Exhibit B.
As a result of the rezoning, most of Lot 31 has become an isolated residential lot
zoned as R-2 which,although it abuts the Trust's Lot 4 having frontage on Osgood
Street,may not as a matter of law have access rights through the CDD-3 District to
construct a single family residential dwelling. Further,there would be no access
through the White Birch subdivision since a conservation restriction would impede
access to that project. As a result, the only viable alternative is to secure access through
the proposed Definitive Subdivision.
(c) The Definitive Subdivision
As was discussed by Mr. Adams at the Planning Board's last hearing on the
Definitive Subdivision,Mi. Adams did have some preliminary discussions with GMZ
and did in fact contribute to the costs of the engineering work performed in order to tie
Lot 31 into the Definitive Subdivision. In fact,Mr. Adams did provide the Board with a
copy of a proposed definitive subdivision which included Lot 31 as a part of the
proposed subdivision several years ago, a copy of which is attached as Exhibit C.
However,Mr. Adams was informed that as a result of the downturn in the economy,the
subdivision was not being pursued at that time. Moreover,we further understand that
GMZ Realty made a very low offer to Mr. Adams to purchase Lot 31 but the offer did
not represent a realistic value of the property. Thereafter, after many months of no
communication between GMZ and Mr.Adams, the subject Definitive Subdivision was
filed with the Board which included a plan which would effectively eliminate any tie-in
of Lot 31 to the proposed subdivision even though the currently proposed Definitive
Subdivision maintains the same general lot configuration as that originally proposed in
Exhibit C, except for access to Lot 31. See proposed subdivision plan attached as
Exhibit D. Accordingly,the Trust is requesting the Board to provide the Trust with an
opportunity to have Lot 31 tied into the Definitive Subdivision. Based upon the zoning
SMOLAK & VAUGHAN LLP
John Simons,Chairman
Planning Board
September 7,2010
and other history of Lot 31,we feel that the provision of some form of access and utility
rights as a condition to the approval of the Definitive Subdivision is not only a fair and
equitable proposal,but the provision of access to an otherwise unusable lot is something
which is reflected in the Board's subdivision rules and regulations.
(d) Authority for the Provision of Access to Lot 31 Through the Definitive
Subdivision
The Planning Board has clear authority to require the provision of access rights to
enable the provision of access from the Definitive Subdivision to Lot 31. Specifically,
Section 81M of the State Subdivision Control Law (M.G.L. c.41,Section 81M) and Section
1.2 of the Rules and Regulations for the Subdivision of Land in North Andover (the
"Subdivision Rules") provide that the planning board shall exercise..."due regard for
the provision of adequate access to all of the lots in a subdivision by ways that will be
safe and convenient for travel; ...for securing adequate provision for water,sewerage,
drainage,underground utility services,fire,police,and other similar municipal
equipment,and street lighting and other requirements where necessary in a subdivision;
and for coordinating the ways in a subdivision with each other and with the public ways
in the city or town in which it is located and with the ways in neighboring
subdivisions." (emphasis added) Section 2.4 of the Town's Subdivision Rules states that
"streets in each subdivision shall be laid out to provide ...for the proper projection of
streets as laid out in the proposed subdivision into adjoining land,on which there are no
existing streets." Moreover, Section 6.8.6 of the Subdivision Rules provides that"the
subdivision design shall provide for continuation of streets between adjacent properties
when such continuation promotes the convenient movement of traffic, effective fire
protection and emergency vehicle access,efficient snow removal service and efficient
provision of utilities. If the adjacent property is undeveloped and a street must be dead-
ended temporarily,the right of way shall extend to the property line."
Accordingly,the Subdivision Rules provide clear legal authority for the Planning
Board to require the provision of access to an adjacent parcel of land. See Patel v. Town
of North Andover,27 Mass. App. Ct.477(1989);Samara Realty Trust v. Hayden,12 LCR
260 (2004);Ranieri Trust v. Town of Wrentham, 15 LCR 622 (2007). Further,from a
planning standpoint, the provision of access to Lot 31 makes the most planning sense
among all alternatives available to the Trust for the many reasons described above.
(e) Proposal
As described above, the current Definitive Subdivision proposal does not
provide for access to Lot 31 although a prior proposal does suggest that access to Lot 31
is possible without significant deviation from the current proposal. In fact,it appears
that access could be created along the common boundary of proposed Lots 16-5 and 16-
6, or via an extension of the common access depicted on the plan attached as Exhibit D.
SMOLAK & VAUGHAN LLP
John Simons,Chairman
Planning Board
September 7,2010
While we understand that the buildout of a full road to provide access to Lots 16-
5,16-6 and Lot 31 may be costly, we would propose a form of access in a location
similar to that proposed in Exhibit C,but with waivers from the right-of-way and width
of pavement requirements of the Subdivision Rules to enable the access through the
segment extending from Lot 31 to the maul subdivision roadway to function as a
common driveway rather that a fully constructed subdivision roadway. In this manner,
impervious surfaces, cuts and fills would be reduced, stormwater runoff would be
reduced,and wetlands crossings and related impacts could be minimized. There is
precedent with the Board in granting such waivers, and we feel it would be consistent
with past Board actions to provide for reduced roadway standards in specific
circumstances.
This access could be designed as access from the main subdivision road to Lot 31
only, following the common boundary of Lots 16-5 and 16-6 to Lot 31 as generally
proposed in the plan attached as Exhibit C. Alternatively,common access for Lots 16-5,
16-6 and Lot 31 could be provided as generally contemplated on the plan in Exhibit D as
extended to Lot 31. We would prefer that the access be incorporated as part of the
pending Definitive Subdivision. Alternatively,rights could be reserved and conditioned
in the pending Definitive Subdivision as part of a decision to allow for the Trust to
separately file an application for a single lot subdivision in the future. We feel,
however,it would be more efficient to handle this design as part of the pending
Definitive Subdivision filing.
We would be happy to discuss this proposal further with the Board at the next
hearing on this matter. Please feel free to contact my office with any further questions
or concerns.
Sincerely,
f)1VI' T. Smolak
JTS/
cc: Christopher V. Adams,Trustee,S.P.E.C. Trust
SAIOLAK & VAUGHAN LLP
John Simons,Chairman
Planning Board
September 7,2010
EXHIBIT A
ASSESSORS MAP
X
t
DATE Town of North Andover rtRraa
Board of Assessors
Fiscal Ycar 2008 Property Maps(as of January 1.2007) L 34
SIVIOLAK & VAUGHAN LLP
John Simons,Chairman
Planning Board
September 7,2010
EXHIBIT B
2008 ZONING CHANGE AND ZONING MAP
`pada Asn�d
TOWN OF NORTH ANDOVER
OFFICE OF THE TOWN CLERK
120 14AIN STREET
NORTH ANDOVER,MASSACHUSETTS 01.845
Joyce A.Bradshaw,CMMC 'Telephone(978)68139501
Town Clerk Fax (978)688-9557
E-mail ibradshaw@townofnorthandover.com
This is to certify that the following vote on Article 38 was taken at the
Dissolved Annual Town Meeting for the Town of North Andover held May 13,2,008
and May 14,2006:
VOTED MAY f4,2008
Article 38. Amend Zoning M Rezone Rte. 125 / OsLyood Street Between
L
Barker's Firm and Bounds
LCDD31. UNANIMOUSLY VOTED to amend Zoning Map of the Town of No
Andover pursuant to Section 3.2 to rezone twenty-nine (29) parcels fronting Route
125/Osgood Street, Bradford Street, Beechwood Drive, and Orchard Village Road from
their cur-rent zoning designations to Corridor Development District 3. Said parcels begin
at Map 34, Parcel 10 (Barkers's Farm) and terminate at Map 61, Parcel 39 (boundary of
Haverhill and North Andover).
> To rezone fifteen (15) parcels of land, consisting of approximately 27.6 acres, with
land fronting Osgood Street and Bradford Street beginning at the Haverhill and North
Andover Town boundary line and extending easterly and southeasterly by a line
parallel to and distant 500 feet easterly from the centerline, of Rte. 125 / Osgood
Street to and including Assessor's Map 34, Parcel 41 with the following exceptions:
The Corridor Development District 3 Zoning designation shall be extended to
include the entire property boundaries of Map 61,Parcel 3 8.
The Corridor Development District 3 Zoning designation shall be extended to
include the entire property boundaries of Map 61, Parcel 66.
Map 34,Parcel 31 shall be zoned entirely Residential 2.
Map 61,Parcel 22 shall be zoned entirely Residential 2.
These fifteen (15) parcels of land are shown with the following street address
and on the Town of North Andover Assessors Map as,map fki)d parcels to change
from their current zoning designation of Indus SAb,Co.rrJ dor Development
District 3:
721 Osgood Street—Map 61, Parcel 8
1679 Osgood Street—Map 61,Parcel 16
1719 Osgood Street—Map 61, Parcel 17
ATTBST!
0 Osgood Street—Map 61,Parcel 18
True Copy
Towh,Nrk
0 Bradford Street-Map 61,Parcel 39
1755 Osgood Street-Map 61 Parcel 39
1701 Osgood Street-Map 61,Parcel 66
1659 Osgood Street-Map 34,Parcel I
1635 Osgood Street-Map 34, Parcel 2
1627 Osgood Street-Map 34,Parcel 3
1591 Osgood Street-Map 34,Parcel 4
1609 Osgood Street- Map 34,Parcel 29
0 Osgood Street-Map 34, Parcel 31
1581 Osgood Street-Map 34,Parcel 41
1615 Osgood Street-Map 34,Parcel 44
To rezone twelve (12) parcels of land fronting Osgood Street and a certain
parcel located within 1000 feet of Osgood Street beginning near intersection of
Beechwood Drive and Osgood Street at Assessor's Mop 34, Parcel 42 to and
including Assessor's Map 34, Parcel 26 and consisting of approximately 40,8
acres,
These twelve (12) parcels of land are shown with the following street address
and on the Town of North Andover Assessors Map as map and parcels from
their current zoning designation of Industrial 1. to Corridor Development
District 3:
0 Bradford Street-Map 61,Parcel 6
45 Beechwood Drive -Map 34, Parcel 6
49 Orchard Village Road-Map 34,Parcel 8
1451 Osgood Street-Map 34,Parcel 9
1475 Osgood Street-Map 34,Parcel 16
E 0 Osgood Street-Map 34, Parcel 25
F 1429 Osgood Street-Map 34, Parcel 20
ff 0 Osgood Street-Map 34, Parcel 26
M 1551 Osgood Street-Map 34,Parcel 42
0 Beechwood.Drive-Map 34,Parcel 50
45 Beechwood Drive-Map 34, Parcel 51
25 Orchard Village Road-Map 34, Parcel 52
> To rezone a parcel of land with frontage on Osgood Street, shown on the
Assessor's Map 34, Parcel 7 and consisting of approximately 2 acres from
Business 2 to Corridor Development District 3.
P To rezone a portion of a parcel of land shown on the Assessor's Map 34, Parcel
10 from Industrial I to Corridor Development District 3 beginning from the
westerly and southwesterly boundaries of the property to a line parallel to and
distant 1,100 feet running north and westerly from the centerline of Barker
Street
DELETE THE FOLLOWING LANGUAGE SHOWN AS STRICKEN BELOW:
LANGUAGE BETWEEN "A'la.p 61, Parcel 38" and "Map 61., Parcel 22 Shall be
zoned entirely Residential 2."
To rezone fifteen (15) parcels of land, consisting of approximately 27.6 acres, with
land fronting Osgood Street and Bradford Street beginning at the Haverhill and North
Andover Town boundary line and extending easterly and southeasterly by a line
parallel to and distant 500 feet easterly from the centerline of Rte. 125 / Osgood
Street to and including Assessor's Map 34,Parcel 41 with the following exceptions: i
The Corridor Development District 3 Zoning designation shall be extended to
include the entire property boundaries of Map 61,Parcel 38.
;.
--A4V 31, . ---1 .
■ Map 61, Parcel 22 shall be zoned entirely Residential 2.
And in connection, decrease the CDD3 zoning boundary line easterly and southerly
! for Map 61., Parcel 66 and Map 34, Parcel 31 by a line parallel to and distant 500
feet easterly from the centerline of rte. 125 / Osgood Street and as shown on the
Map below:
�• Amended CDD3 Zoning District
Boundary Line
Approx.500 feet from
ccaterline Rte. 125 ;
Article 38 Amendment reducing the
CDD3 Toning boundary line for Map
61,Parcel 66 and Map 34,Parcel 31.
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SMOLAK & VAUGHAN LLP
Jol-m Simons,Chairman
Planning Board
September 7,2010
EXHIBIT C
ORIGINAL SUBDIVISION DESIGN
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John Simons,Chairman
Planning Board
September 7,2010
EXHIBIT D
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