HomeMy WebLinkAboutLegal Document - 56 CHURCH STREET 3/13/2017 ECEaD
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'LAW OFFICE OF TO V,11H
MATTHEW A. CAFFREY, P.C . 2017-MAR13 %01: 49
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MATTHEw A. CAFFREY*
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FAX 978-475-0049
E-MAIL: MCAFF;REY(g)CAFFRF-YLAWOF)rICE.COM
*ALSO ADMITTED 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:
1 represent Edward G. Kollen, the owner of the above-referenced property. See Deed,
recorded in the Essex North Land Court, Cert. 4 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-
H. 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, as 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.
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 E
Page-3-
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
E
EXHIBIT A
•
7
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
February 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 actions 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.
Fyou,
Belanger
Inspector of Buildings/
Zoning Enforcement Officer r
cc:
Edward G. Kollen
56 Church Street
North Andover MA, 01845
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EXHIBIT B
AFFIDAVIT OF EDWARD G. KOLLEN
Now comes the Affiant, Edward G. Kollen, and he does state and swear as follows. E
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 rental 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 IO'h DAY OF
MARCH, 2017.
Edward G. Kollen