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HomeMy WebLinkAboutLegal Document - 1503 OSGOOD STREET 10/19/2017 LAw OFFICE OF MATTHEW A. CAFFREY, P . C . THOMAS F. CAFFREY 93 MAIN STREET, SUITE 2 I f i MATTHEW A. CAFFREY* ANDOVER, MA 01 8 10 SAMER OBEID 978-475-0043 FAX 978-475-0049 E-MAIL: MCAFF"REY@CAFFREYL4WOFFlCE.COM 'ALSO ADMITTED m N,H, - October 19, 2017 Albert P. Manzi, III, Esq. North Andover Town Hall 120 Main Street North Andover, MA 01845 RE: Application for Finding 1503 Osgood Street, North Andover, MA (the "Property") Dear Chairman Manzi: I represent Hera Development Corporation, the Petitioner in the above-referenced matter (the "Aggrieved Party"). My client seeks to construct a self-storage facility at the above-referenced address. In response to our inquiry, however, the Building Inspector has issued a Use Determination in which he states that a "self storage facility is not an allowed use in CDD3." Exhibit 1. We respectfully disagree, and submit the following for consideration by the Board in this case. First, we submit that under the Zoning Bylaw, self-storage has never been expressly stated as an allowed use in any zoning district in the Town. This fact raises the question of how other self-storage facilities in Town were permitted, and whether the Petitioner is similarly situated to those other petitioners. A. 1701 Osgood Street (Extra Space Storage) This property was issued a Special Permit for self-storage by the Zoning Board in 2000. It is located on Osgood Street within one mile of the Petitioner's property. See Exhibit 2. At the time of the approval, the Extra Space property was located in the I-S District, later to become part of the CDD3 District in 2008. The Petitioner's property is also located in the CDD3 District. The size of the Extra Space building (49,050 sq.11.) is also comparable to the building proposed by the Petitioner(64,809 sq.ft.). Based on the Board's decision (copy attached at Exhibit 2), it is clear that the Board found that"self storage" is subsumed within the definition of"warehousing" when it granted the LAW OFFICE OF MATTHEW A. CAFFREY, P.C. ALBERT P. MANZI, 111, ESQ. OCTOBER 19, 201 7 PAGE -2- i I Special Permit for the Extra Space building. The Board issued a Special Permit: ...in order to construct a warehouse for a particular purpose on the condition and basis that it be self storage warehouse facility only and if any change in use from a self storage warehouse facility the property owner is required to come back in front of the ZBA to obtain the authorization for any change in use.... Emphasis added. Thus, the Board found that the "self storage" use came within the broad terms of"warehousing," a use which was expressly permitted in the Zoning Bylaw. We submit that the Petitioner comes before this Board in the exact same position as the petitioner in the Extra Space matter. The same reasoning applied by the Board in 2000 should hold here. Warehousing includes "self-storage," which should be allowed as of right, or by Special Permit from the Zoning Board. B. 1171 Turnpike Street (now "Uncle Bob's Storage") This property was issued a Special Permit for self-storage by the Planning Board in 1988. It is located on Turnpike Street, and is now known as Uncle Bob's Storage. Exhibit 3. At the time of the approval, this property was located in the I-2 District. In this case, Charles Foster, the then Building Inspector issued a letter opinion that"land on Turnpike Street where you propose to build mini warehousing is properly zoned for that use." See copy attached at Exhibit 3. Again, the clear implication is that"self storage" comes within the broad definition of"warehousing." We have also included a copy of a letter dated March 30, 1987, from the attorney for the petitioner in which he indicates that Karen Nelson (then director of the Planning and Community Development Office) raised the issue of"permitted use." At that time, the Board indicated "the proposed use as a `mini warehouse' facility was a permitted use for the site, and proceeded with the public hearing." The Board appeared to agree that "self storage" falls within the broad term "warehousing." The construction ultimately approved was of a 3-story building with 22,000 sq.$per floor(66,000 total sq.ft.). Accordingly, it is comparable to the building proposed by the Petitioner. We submit that the Planning Board's findings in this regard should hold true today, and that "self storage" is subsumed within the definition of warehousing. C. 492 Sutton Street (NorthEast Storage Corp.-- at the airport) Lastly, we have reviewed the file related to 492 Sutton Street. See Exhibit 4, attached hereto. In this 1999 decision, the Zoning Board issued a special permit for a: LAW OFFICE OF MATTHEW A. CAFFREY, P.C, ALBERT P. MANZI, III, ESQ. OCTOBER 19, 201 7 PAGE -3- ...self-storage 3- ...self-storage facility similar in character to the permitted use i.e.; a warehousing per the said plan in order to construct a 1 two story building and 3 single story buildings. Emphasis added. As in other decisions, the Board found that the "self-storage" facility is similar in character to the permitted use ("warehousing"), and therefore allowed the use with a Special Permit. We submit that the same reasoning applies in this matter, and that"self storage" is (or should be) subsumed within the definition of warehousing. CONCLUSION The Building Inspector's strict interpretation of the Zoning Bylaw is unreasonable. It has the effect of excluding all derivative uses which are reasonably implied, and which have actually been allowed by this Board in the past. Based on these facts, the Aggrieved Party's proposed self storage use in the CDD3 District is either: (1) permitted as of right, or (2) should be permitted with the issuance of a Special Permit issued by the Zoning Board. Thank you for your consideration. Very truly yours, Matthe . Caffrey Encls. EXHIBIT 1 '� � :,•. TOWN OF NORTH ANDOVER, MASSACHUSETTS Building Department Town Hall 120 Main Street, North Andover; MA 01845 Telephone 978-688-9545 Fax 978-688-9542 1 October 5, 2017 Law Office of Matthew A. Caffrey, PC 93 Main Street, Suite 211 Andover, MA 01810 978-475-0043 (tel.) 978-475-0049 (fax) RE: Zoning Determination: 1503 Osgood Street,North Andover,MA Dear Attorney Caffrey: Per your request for a Zoning Determination as to whether a self-storage facility is an allowed use at 1503 Osgood Street in the Corridor Development District 3 (CDD3). Section 16.4 of the Zoning Bylaw establishes the permitted uses within the CDD3. A"Self-Storage Facility" is not included in Section 16.4. Under Section 4.1.1(1) any use not included is expressly prohibited. Therefore, a self-storage facility is not an allowable use in CDD3. . Thank You Donald Belanger Inspector of Buildings/ Zoning Enforcement Officer Proudly Serving Since 1921 i R 2 EXHIBIT 2 �r rE:. ... .-,:. ..:�;...,.. ... ... . ... ,.,ziy.Fk..r.�.-..t { ,,, . NOW ll�111I 1i III!IF 1 7 s t n� toy 1701 OSGOOD STREET (flkla 1679 OSGOOD STREET) - EXTRA SPACE STORAGE -- allowed by Special Permit issued by the Zoning Board in the I-S District (511012000) -- now located in the CDD3 District established in 2008 -- 49,050 sq.ft. "mini storage warehouse building" -- the Board granted a Special Permit "in order to construct a warehouse for a particular purpose on the condition and basis that it be self storage warehouse facility only and if any change in use from a self storage warehouse facility the property owner is required to come back in front of the ZBA to obtain the authorization for any change in use...." -- Site was an "appropriate location for the project as it is located in the Industrial I-S Zone and involves the construction of a mini-storage warehouse building" µORTF! RECEIVED JOYCE BRADSHAW sAC TOWN CLERK NORTH ANDOVER NORTH ANDOVER OFFICE OF 1000 RAY 18 P 2. 32 THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER,MASSACHUSETTS 01845 Any appeals shalt be filed NOTICE OF DECISION 1 within(20)days after the Year 2(}00 . date of filing of this notice Property at: 1679 Osgood St,. in the office ofthe Town Clerk, NAME: R J.Kelly Company,d/b/a: 55 Cambridge St., Burlington,MA DATE:5/10/2000 ADDRESS: for-premises at;1679 Osgood St. PETITION:006-2000 North Andover,MA 01845 HEARING: 5/9/2000 The Board of Appeals held a regular meeting.on Tuesday everting,May 9, 2000 at 7:30 PM upon the application of R.J.Kelly Company,d/b/a 55. Cambridge St.,Burlington,MA for premises at: 1679 Osgood St.,Rte.#125,North Andover,MA. Petitioner is requesting a Variance&Finding from the requirements of Section 7,Paragraph 7.6 for relief of floor area ratio from 0.50:1 to 4.66:1,and Section 8, Paragraph 8.1 to provide l l parking spaces instead of 121;within the i-S Zoning District, Petitioner is requesting a finding for a Spectral Permit from Section 4.135 Paragraph 9,in order to construct a warehouse. The following members were present: .Raymond Vivenzio,Robert Ford,John Pallone,Ellen McIntyre. Upon a motion made by Robert Ford and 2°a by John Pallone the Board voted to GRANT a Variance from the requirements of Section 8,Paragraph 8.1 to provide for 45 parking spaces including 2 handicapped spaces, Section 7,Paragraph 7.6 for floor area ratio did not require a variance. On the condition and basis that the petitioner has satisfied the provisions of Section t0,paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate front the intent and purpose of the Zoning Bylaw. The'Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw.where the Board finds that owing to circumstances relating to soil conditions,shape,or topography of the land or structure and especially affecting such land or structures but not affecting generally the zoning district in general,a literal E enforcement of the provisions of this bylaw will involve substantial hardship,financial or otherwise,to the petitioner or applicant,and that desirable relief maybe granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this bylaw. The Board voted to GRANT a Special Permit from.Section 4.135,Paragraph 9,in order to construct a warehouse for a particular purpose on,the condition and basis that it be a self storage warehouse facility only and if any change in.use from-a self storage warehouse facility the property owner is regwred to come back in front of the ZBA to obtain the authorization for.any change in use. In accordance with the Plan of hand by: Richard F.Kaminski&Associates,Inc.#29031,.dated 5/312000(revision A,general revisions). Voting in favor: Raymond Vivenzio,Robert Ford,John Pallone,&EllenMc7ntyre.. Turibermore,iftho rights authorized bytl►e variance are not exercised within one(1)year ofthe date ofthe grant,they shall lapse,and may be mastablished only aflerno0cae;add a aew hearing. Ftuthermore;if Special Permit granted under theprovisions oontained herein shall be deemed to have lapsed after a two'(2)year period from the date on whichtho Special Permit was granted unless substantial use or consttudion has winnienoed,they shall lapse and may be reestablished only afternodoe,and a new bearing. By or r ofit BoaW of Appeals, �J William J, van,Chairman mWecisious2000/14 BOA1tD OF A.PPE,,US 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 IIEAI,.TH 688-9340 PLANNING 688-9535 i F i EXHIBIT 3 �j i 4 s i zt , fiilK ' a �z 4 , , 7xZx} t• -c 1171 TURNPIKE STREET - UNCLE BOB'S STORAGE (formerly Safe 'N' Mini Storage) -- allowed by Special Permit issued by the Planning Board in Industrial 2 District (4119/88) -- Charles Foster (Building Inspector) issues determination that "land on Turnpike Street where you propose to build mini warehousing is properly zoned for that use." S f NORTH ANDOVER BUILDING DEPARTMENT kORTh 120 MAIN STR EE'I :0; NORYR ANDOVER, MA 01845 ° .ti cm h INSPECTOR o! BUILDWOS THL. 888-8102 ELECTRICAL INSPECTOR GAN INSPECTOR Oetobex. 22, 1985 Mn. John B. Todd 15 Windward Road Lowe., MA. 01852 Deah Si - In anzweA to your queAy, wanehou6ing ins an att owed u,5 e .in a diztkie t zoned Indcv t&iaZ-2. The f-and on Turnpike StAeet wheAe you pnopoz e to bu ad mini waaeho"ing, �z property zoned 4ot that use. V e-y twzy you u CHARLES H. FOSTER INSPECTOR OF BUILDINGS AND ZONTNG OFFICER CHF:a4 KLEINFEL❑ & DERAOLA ATTORNEYS AND COUNSELLORS AT LAW EIGHT WINCHESTER STREET BOSTON. MASSACHUSETTS 02116 LEONARD F. 6EPAOLA AREA CODE 617 � BURTON H. KLEINFELO 402-2377 GEORGE H. NA60N Y March 30 , 1987 TO: PLANNING BOARD OF THE TOWN OF NORTH ANDOVER Mr . Erich W. Nitzsche , Chairman Mr. Michael P. Roberts , Vice Chairman Mr . John L. Simons , Clerk Mr . John J. Burke Paul A. Hedstrom, Esti. RE: John B. Todd Safe ' N' Sound Mini Storage Gentlemen: Thank you for -the courtesies extended me and my client , Mr . John B. Todd of Safe ' N' Sound Mini Storage Cos . during the executive session of your Board held on March 16 , 1987 . During this meeting the Board indicated that the issue of "permitted use" raised by Ms . Nelson would be taken under advisement and addressed at a future time . I am writing to specifically address the issue of permitted use as it applies to the project proposed by my client .for the parcel of land abutting Route 114 which is zoned 1-2 , Heavy Industrial . As my client has informed you, he has obtained a written determination from Mr . Charles Foster , the zoning Enforcement Officer of the Town of North Andover , to the effect that the proposed use is in fact a permitted use in an I-2 District , I have attached a copy of this determination for your review. We would also like to bring your attention to the fact that during the previous public hearings on this matter (July 21 and August 10 of 1986 ) , Ms . Nelson raised the issue of "permitted use" . At that time the Board indicated that the proposed use as a "mini-warehouse" facility was a permitted use for the site and proceeded with the public hearing( s) . i In order to further clarify this matter and to show that extensive precedent has been set regarding the construction Planning Board of the Town of North Andover March 30 , 1987 Page Two of "mini-warehouse" facilities in municipalities which allow warehousing but do not specifically categorize "mini.-warehousing" or "mini-storage" in their by-Laws as an allowed use , the attached chart has been generated by my client . The municipalities shown are fairly representative of the many cities and towns where "mini-warehouses" exist , but do not , by any means , constitute the total list . However , we are unaware of any municipal ordinance or By-Law that specifically refers to "mini-warehousing" or "mini-storage" . I sincerely hope that this information will be of some assistance and that we can come to a mutually beneficial and viable solution to this problem. Res pe ful :y s meted , / .3urt0 Kleinfeld BHK/crs Enclosure cc : Mr . John B. Todd Ms . Karen Nelson Dominic Scalise , Esq. Peter Shaheen , Esq. Charles Westcott , Esq. MINI-WAREHOUSE FACILITIES ALLOWED BY LOCAL AUTHORITIES MINI-WAREHOUSING MINI-WAREHOUSING LISTED (PER SE) MINI-WAREHOUSING ALLOWED IN IN BY-LAW AS A IS ALLOWED USE ZONING CATEGORY PERMITTED USE BASED ON BY-LAW CITY/TOWN SHOWN YES-NO CATEGORY SHOWN Lowell I-A, Warehousing , No Warehousing/Storage Storage , Lt . Mfg . Peabody BH, Hwy . Bus . No Storage Warehouse ( S . P. - City Council ) Boston Heavy Ind . No Warehousing Chelmsford I--A, Industrial No Warehouse and Open Storage Dracut Industrial No warehousing Waltham Commercial No Wholesale , Warehouse and Storage Facilities Weymouth B-1 , Business No S . P. by Pln . Brd . for any Category Not Listed in By-Law, 3 Issued Nashua PI , Ind . Park No warehousing Everett IH, Heavy Ind . No Warehousing Tynesboro industrial No Warehouse Facilities Tewksbury Heavy Ind . No warehousing/ Distribution Lynnfield Limited Ind . No Storage Warehouse Middleton MFG/Industrial No Storage - S . P. by ZBA Lawrence Secondary No Warehouses Business , Gen' l industrial MINI-WAREHOUSING MINI-WAREHOUSING LISTED (PER SE) MINI-WAREHOUSING ALLOWED IN . IN BY-LAW AS A IS ALLOWED USE ZONING CATEGORY PERMITTED USE BASED ON BY-LAW CITY/TOWN SHOWN YES--NO CATEGORY SHOWN Methuen Hwy. Bus . , No Warehouse Fully Ltd . Inca . Enclosed s Central Business Medford Commercial-2 No Storage Industrial N . Reading Ind . A, B & C No Storage Warehouse Hwy. Bus . Salem, NH Comm./Ind . No Warehouse and Storage -2- i i s t 3 EXHIBIT t us;z'Eta4 l L 3? f�. 3Er 1 y'.t 1 � #,•T`C Fj € 4 {44j 1C' S� 14� € 492 SUTTON STREET- NORTHEAST STORAGE CORP. -- allowed by Special Permit issued by the Zoning Board in Industrial 1 Zoning District (6122199) -- "a self-storage facility similar in character to the permitted use i.e.; a warehousing per the said plan in order to construct a 1 two story building and 3 single story buildings." -- ground footprint of 34,200 sq.ft.