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Home My WebLink AboutLegal Document - 56 CHURCH STREET 3/10/2017 - L—Aw OFFICE OF TOVINPI, CVVED 01-FICE MATTHEw A. CAFFREY, P.C . 2917-MAR; 13 %r,11: 49 T o vv 0 F THOMAS F. CAFFREY 93 MAIN SWVWRi'dag MATTIHEw A. CAFFREY* ANDOV44AW� SAMER OBEID 978-475-0043 FAX 978-475-0049 E-MAIL: MCAFF;REY0CAFFREyLAworr1C,5.00M *ALSO ADWrrED IN N.H. March 10, 2017 APPEAL OF DECISION OF THE BUILDING INSPECTOR Albert P. Manzi, III, Esq. North Andover Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 RE: Notice of Appeal 56-58 Church Street,North Andover, MA (the "Property") Dear Chairman Manzi: I represent Edward G. Kollen, the owner of the above-referenced property. See Deed, recorded in the Essex North Land Court, Cert. # 17588. Please consider this an appeal of the Cease and Desist Order issued by the Building Inspector dated February 15, 2017 (the "Decision"). A copy of the Decision is attached hereto as Exhibit A. Since the date of the Decision, my client has been unable to operate his business at the Property, resulting in extreme financial hardship. This is a very serious matter, and we ask the Board to consider this case carefully. The grounds of this Appeal are as follows. I. THE CONDITION OF THE PROPERTY First, we dispute the Building Inspector's characterization of the condition of the Property. At the time of the inspection(December 20" 2016), Mr. Kollen had some personal property on his front porch(e.g.,rocking chairs, etc), and in his front yard. This was not"refuse and debris,"as claimed by the Building Inspector. Nevertheless, and without waiving this objection, my client has removed his personal property from the front yard areas of the Property. Second, as noted below,my client is permitted to have commercial vehicles at the Property, as of right. Nevertheless, and without waiving this objection, he has agreed to park all his commercial vehicles in areas other than on the street, or in the front yard of the Property. Third, my client has submitted a Zoning Compliance Form for his business with the Building Inspector's office. LAW OFFICE OF MATTHEW A. CAFFREY, P.C. Albert P. Manzi, III, Esq. March 10, 2017 Page-2- Il. ZONING STATUS Respectfully, we appeal all aspects of the Decision as it relates to the zoning status and use of the Property. As the Building Inspector noted, the Property is located in the General Business District. Under the Bylaw's Table of Uses, a "contractor's yard" is a permitted use, as of right. My client operates such a contractor's yard at the Property for his landscaping business. Therefore, we respectfully disagree with the Building Inspector's decision on this key point. The vehicles and equipment related to that business, and which were noted by the Building Inspector, are permitted to be at the Property, ag of right. Second,the Building Inspector's statement that a"groundskeeping business is not an allowed use in the GB Zone"is simply incorrect. To the contrary, a groundskeeping business is permitted as a "mercantile activity, not involving manufacturing." Section 4.131.(1).' It involves or relates to the"trade"of landscaping. Third, even if a landscaping business and/or a contractor's yard was prohibited by the current Bylaw(which they are not), Mr. Kollen's business constitutes a pre-existing, non- conforming use under the Bylaw, as he has operated his landscaping business continuously at the Property since 1976. Accordingly, his use is grandfathered under the Bylaw. See Affidavit of Edward Kollen; attached hereto as Exhibit B. Therefore, he may operate that business from his residence, as he has done before. Finally, although not referenced directly in the Decision, the Property includes a residential structure built in 1850, according to the Property Record Card maintained by the Town of North Andover. The house contains three (3)units, two (2) of which are rental units, and one in which Mr. Kollen resides. The rental units have been in continuous use since at least 1970, when Mr. Kollen's mother and father purchased the Property. Because the rental use of the Property pre-dates the Zoning Bylaw,the rental use of the Property is a pre-existing, non- conforming use, and is therefore grandfathered under the Bylaw. Therefore, the 50%restriction for residential use under Section 4.131(6) does not apply. p ' Definition of mercantile for English Language Learners. :of or relating to the business of buying and selling products to earn money: of or relating to trade or merchants. Merriam-Webster Dictionary(On-Line), https://www.merriam-webster.com/dictionary/mercantile(emphasis added). LAw OFFICE OF MATTHEW A. CAFFREY, P.C. Albert P. Manzi, III, Esq. March 10, 2017 n Page-3- P The above facts are undisputed. The Bylaw is clear. Under these circumstances, the Decision must be reversed. CONCLUSION Based on the foregoing discussion, the Decision is arbitrary and capricious because it is not based on the undisputed facts as presented here,nor on the express and clear language of the Zoning Bylaw. We request that the Zoning Board reverse the Decision of the Building Inspector, and dissolve the Cease and Desist Order immediately. Very truly yours, Matthew A. Caf ey Encl. cc: Client u y ti i 3 Ip EXHIBIT A Town of North Andover Building Department Community&Economic Development Division 120.Main Street North Andover, Massachusetts 01845 P(978)688-9545 F(978)688-9542 Febmary 15,2017 Kollen Nominee Trust % Edward G. Kollen 58 Church Street North Andover,MA 01845 RE: 56 Church Street,North Andover, MA 01845 MAP 41 LOT 40 ZONE GB Dear Edward G. Kollen: Our office has received a complaint regarding your property at 56 Church Street. There is allegedly a groundskeeping business (KOLLEN'S GROUNDSKEEPING) operating from your residence. Our office made a site visit December 20, 2016 which revealed the following but not limited to: Commercial vehicles, equipment, refuse and debris are located on and about the aforementioned property. Groundskeeping business is not an allowed use in GB Zone, operation of such constitutes a violation of 8th Edition of the Massachusetts State Building Code, 780 CMR, and is subject to $1000.00 fine, each day constitute a new violation until the violation is resolved. In addition this is also a violation of the Zoning Bylaw of The Town of North Andover section 10.13, subject to a fine of$300.00, each day that such violation continues shall be considered a separate offense. -International Building Code (IBC) 2009 Section 114,with Massachusetts 8th Ed. Amendments The Town of North Andover Zoning Bylaw Section 4.131 You are hereby ordered to Cease and Desist the aforementioned violation and report to the Building Department within ten days upon receiving this letter to resolve any and all violations. If you feel you have been aggrieved by any actioi/s I have taken or failed to take, you have the right to appeal to the Town of North Andover Zoning Board of Appeals or the.State Building Board of Appeals accordingly. FT you, Donald Belanger Inspector of Buildings/ Zoning Enforcement Officer cc: Edward G. Kollen 56 Church Street North Andover MA, 01845 E '.•�� l��Y.'II r ' 11a - at- fff ME . i I �-a �`"�-_ao_ � ., `•' _ eta. y��`.q�3\:"+;�. (`ai ,.��fir} ,}e£ 1 r' � �� ! }•;,.�c� �� M1� , " s•�f��B"L�(f'�tL��4"'� ��E�IEEE�EE�€EEI o�� r t y � ��' T •---�'•-r�-i-,' 'fid'Ir'f-_.:#�.- �_ � - � _. �,�•_ _-, .-c-�--r.=-_.-:r-'., ..•.-�r-=L--.z-=_-.-r-:._��.a. -_ - �- :N IN HIM S E2 1 �' ET i I 1t �• _ 9 EXHIBIT B AFFIDAVIT OF EDWARD G. KOLLEN Now comes the Affiant, Edward G. Kollen, and he does state and swear as follows. p 2 1. My named is Edward G. Kollen, and I reside at 58 Church Street,North Andover, MA (the "Property"). 2. My parents purchased the Property in 1970, and I have lived there all my life. 3. In 1976, I began to work as a landscaper from the Property in my business known as "Kollen's Groundskeeping." I worked out of my car, using my trunk to store and carry lawnmowers to the various customers that I worked for. 4. In 1980, I acquired my first truck, and stored it at the Property. 5. Since 1980, I have been acquiring trucks necessary for my landscaping business, which includes snow plowing as seasonal work. In fact, I have worked for many years as a snow plow driver for the Town of North Andover. I have always used the rear portion of the yard as a contractor's yard. 6. Since 1970, during the entire time that my parents owned the Property, there has always been a recital unit in it. 7. There is no "debris"at the Property. I had some personal property in the front yard,but I have now removed it due to the Building Inspector's complaint against me. 8. The Cease and Desist Order issued by the Building Inspector is preventing me from working in my business, and causing me great financial harm. The Property is located in the General Business District, and I have been informed that my business (including the contractor's yard in the rear) are both allowed in that District. So, I think it is very unfair that my business is shut down because I have been operating legally at all times. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 10'x'DAY OF MARCH, 2017. Edward G. Kollen