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HomeMy WebLinkAboutMiscellaneous - 210 HOLT ROAD FEB-07-2001 WED 12:39 PM FAX NO, 6172273361 P. 01 NEWMAN & NEWMAN, P,C, RECEIVED ATTORNEYS AT L,AW JOYCE EB C OERKAW ONE MCKINLEY SQUARE NORTH ANDOVER BOSTON, MASSACHUSETTS 02169 r� (617) 227.3961 2001 FEB -I P l: 42 FACSIMILE (617) 729-1710 EMAIL, MNEWMAN PCOAOL.COM MARSHALI. F. NEWMAN ABRAHAM NEWMAN HOWARD 1. AOSEN (Isis - 1995) RICHARD A. FREEDMAN MATTHEW J, 3GAMBETTERA SAMUEL- NEWMAN COUNSEL —.. February 7, 2001 BY FAX AND MAIL (978-688-9556) Joyce A. Bradshaw, Clerk Town of North Andover 120 Main Street North Andover, MA 01845 Re: Rocket Entertainment, Inc. V. Vivenzio, et al. Land Court No, 269389 Dear Ms. Bradshaw: Rocket Entertainment, Inc. has appealed the decision of the Zoning Board of Appeals denying the special permit. I have enclosed a copy of the complaint that was filed in the Land Court on February 5, 2001. Yours truly, -'4 W. D' Richard A. Freedman RAF/nt enc. 1'.001.13 FEB-07-2001 WED 12: 39 PN FAX N0. 6172273361 P. 02 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. LAND COURT MISC. NO. 269389 ROCKET ENTERTAINMENT, INC. V. RAYMOND A.VIVENZIO, ROBERT FORD,JOHN PALLONE, ELLEN MCINTYRE, GEORGE M. EARLEY and WALTER SOULE, as they are members of The Zoning Board of Appeals of North Andover -COMPLAINT I. Rocket Entertainment, Inc. ("Rocket") is a Massachusetts corporation with a usual place of business at 210 Holt Road, North Andover, Massachusetts. 2. Raymond A. Vivenxio resides at I I Appledore Lane, North Andover, Massachusetts. He is the acting chairman of the Zoning Board of Appeals of North Andover ("the Board"), 3. Robert Ford resides at 89 Bear Hill Road, North Andover, Massachusetts. He is a member of the Board. 4. John Pallone resides at 67 Vest Way, North Andover, Massachusetts. He is a member of the Board. 5. Ellen McIntyre resides at 23 Tanglewood Lane, North Andover, Massachusetts. She is a member of the Board. 6. George M. Earley resides at 125 Lyman Road, North Andover, Massachusetts. He is a member of the Board. FEB-07-2001 WED 12: 39 PN FAX N0. 6172273361 P. 03 7. Walter Soule resides at 70 Raleigh Tavern Road, North Andover, Massachusetts. He is a member of the Board. S. Rocket submitted an application to the Board for a special permit under Section 8.8 (Adult Use Zone) of the North Andover Zoning Bylaw. 9. Section 8.8 of the North Andover Zoning Bylaw was created and approved on May 6, 1996 at the Annual Town Meeting. The said section created an Adult Use Zone ("the Zone") as an overlay district in an Industrial 2 District, 10. The Zone consists of approximately eleven (1 1) acres on a portion of Holt Road. The current uses within or adjacent to the overlay district include trucking and truck storage, a recycling center, an automotive paint and body shop, an incinerator and an airport. There is no Residential Zoning District or "church, school, park, playfield, or other location where large numbers of minors regularly congregate"within 500 feet of the Zone. There is no establishment licensed under G. L. c. 138, § 12 within 300 feet of the Zone. 9. Following a public hearing on January 9, 2001, the Board denied.Rocket's application. The Board's Notice of Decision was received by the Town Clerk on January 18, 2001, A copy of the said decision certified by the Town Clerk is attached hereto as Exhibit A. 10. The Board's decision was not on the merits of the application, but rather on alleged deficiencies in the application and presentation as stated in the Notice of Decision. 11. The alleged deficiencies concerned either: (a) facts already known to the Board (e.g.that the proposed adult use would not be located "within 500 feet of a Residential Zoning District or within 500 feet of any church, school, park, playfield, or other location where large numbers of minors regularly congregate"); (b) matters"which Rocket was not required to 2 FEB-07-2001 WED 12: 39 PM FAX NO, 6172273361 P. 04 present to the Board or which could have been proven at the hearing if the Board had answered Rocket's repeated inquiries about unspecified deficiencies in the application alluded to several times by one or more members of the Board; or(c) matters which Rocket could not reasonably have expected would be required by the Board because they were not included in the application form or in any rule or regulation of the Board. 12. The Board's decision was unreasonable,whimsical, arbitrary, and/or capricious and exceeded the Board's authority. WHEREFORE, Rocket Entertainment, Inc.prays that the decision of the Zoning Board of Appeals of North Andover denying the application for a Special Permit pursuant to Section 8.8 of the Zoning Bylaw be annulled. ROCKET ENTERTAINMENT, INC. By its attorney, Richard A. Freedman BBO # 178700 Newman & Newman, P.C. One McKinley Square Boston, Massachusetts 02109 617-227-3361 rockicom 3 FEB-07-2001 WED 12 39 PN FAX N0, 6172273361 P. 05 � poMTp i a - RECEIVED JOYCE BRADSHAW v ",•.° TOWN CLERK 1�su5e� NORTH ANDOVER NORTH ANDOVER OFFICE OF 2001 JAN 18 P 12; 3Q THE 'ZONING BOARD OF APPEALS 27 CHARLES STREET NORTI-1 ANDOVER,MASSACHUSETTS 01845 FAX(978)688-9542 Notice of Decision 6ny appeal a it be flied wtthin 1201 fts atter the Year 2001 data of flUng 9f;Mlo n9t[r, In ft gMce of the_Tawn Clerk. Property at' 210 Holt Road NAME: Rocket Entertainment,Inc. DATE: January 10,2001 ADDRESS: 210 Holt Road(lots 3&d) PETITION: 048-2000 North Andover, MA 01845 HEARING: 1/8/2001 The North Andover Board of Appeals held a public healing at its regular meeting on Tuesday, January 9, 2001 at 7:30 PM upon the application of Rocket Entertainment, Inc.,210 Holt Road, (lots 3&4)North Andover, MA for a Special Permit from Section 6.8, Paragraph 1,ADULT USE ZONE,and such ancillary paragraphs of section 8,8 and 2.21.2 as maybe applicable hereto. Said premises affected is property with frontage on the East side of Holt Road within the 1-2 AUZ Zoning District. The following members were present: Raymond Vivenzio,acting Chairman;Walter Soule, acting Clark Robert Ford, John Pallone, Ellen McIntyre and George Earley. Reliberatlons centered on the multiple deficiencies In the petitioner's application and presentation. Member Robert Ford stated that because the evidence submitted did not address the issues that must be addressed under Section 8.8 of the zoning Bylaw, he would not seek to have the Board take the matter under advisement Upon a motion made by George Earley and 2w by,John Pallone,the Board voted to DENY the application for all of the following reasons: Section 8.82(a) no evidence was presented that the proposed adult use will not be located within 500' feet of a Residential Zoning District or within 500'feet of any church, school, park, playfield, or other location where large numbers of minors regularly congregate; Section 6.8.2(c)—no evidence was presented that the proposed adult use will not be looted within 300' feet of any establishment licensed under MGL Ch. 138, Sec. 12; Section 8.8.4 (a)—the evidence submitted on the petitioners plan shows parking In the rear yard, whereas this zoning provision limits parking to side and front yards only. While the entrance to the proposed structure may be located on the side of the building,the entrance has no bearing on the definition of side, front or rear yards, See Sections 2.71, 2.72,2.73 and 2.74 of the Zoning Bylaw, The applicant fails to comply with Section 6.8.4(a). Page 1 of 2 ATTEST: A True Copy P7�,Q�aI - BOARD OF,VVEAi.S 688-9541 BUILDINGS 688-9545 CONSKFtVATION 688-9530 HErkLTH 688.9540 PLANNR ft161erk EXHIBIT A FEB-07-2001 WED 12:39 PM FAX N0. 6172273361 P. 06 RECEIVED Continued page 2 of 2- Rocket Entertainment, Inc, JOYCE BRADSHAW TOWN CLERK NORTH ANDOVER Section 8.8.4(b)—insufficient evidence of adequate illumination of the parking area was M . (r$e P 12: 3p Board was not provided with adequate lighting details of the kind and amount of lighting that will be provided. No evidence was submitted that the proposed lighting is contained on the property, nor was any lighting shown for the parking area immediately in the front of the building adjacent to the structure. The applicant fails to comply with Section 8.8.4(b). Section 8.8.4(c)-requires a minimum 5'foot wide landscaped buffer or a 6'foot fence along the side and rear property lines. No evidence of compliance with this provision was submitted, the proposed plan showing trees only along only one sideline(east)and a portion of the rear property line. Section 8.8.5-regarding the screening of all building openings, entries and windows;only 2 sides of the building are shown on the plan,and no evidence or elevations were submitted as to the other 2 sides not shown on the plan. The applicant fails to comply with Section 8.8.5. Section 8.8.9—no evidence was submitted that the principals have not been convicted of certain offenses noted in this section, i.e. MGL, Ch. 119, Sec, 63 and MGL, Ch. 272, Sec. 28. Section 8.8.7(e)--Other than the one(1)paragraph description of proposed security contained in the application, no evidence was presented that such measures are reasonable and adequate. With such lack of detail and lack of professional testimony as to its adequacy for this proposed large facility,the Board is unable to reach any conclusion concerning public safety and whether adequate and appropriate facilities would be provided for the proper operation of the proposed use. See Section 10,31 of the Zoning Bylaw. The Police Chief testified that he was unable to evaluate the applicants proposed security measures with the information provided, Section 8.8.11 — The written application contains no reference to licenses in its possession or intended to be obtained. The applicant states that a liquor license is an integral part of its proposal. The applicant has failed to demonstrate that adequate safeguards exist through licensing or other means to assure that activities therein will not be patently contrary to prevailing standards of adults in the community,and will not involve minors in any way, in view of the evidence submitted by the liquor Licensing Chairman who was present at the hearing in opposition to the petition, namely,that at Town Meeting in 1982,the provisions of General taws, Chapter 138, Section 12B were adopted by the Town, which statute prohibits nudity on premises where alcoholic beverages are served, the applicant offered no evidence whatsoever of its entitlement or likelihood of success in obtaining a liquor license, as its proposal contemplates nude dancing. On its face,the law in question prohibits licensing of the applicant. Applicant's response thereto was to refer to an earlier decision of the Supreme Judicial Court in the"Golden Banana'case,where existing licensees had their licenses revoked after adoption of General taws Chapter 138, Sec. 128,and later such licenses were reinstated by the Court. Board members felt that such reference to this decision of the Court was not pertinent, as the applicant is not an existing license holder. The applicant fails to comply with Section 8.8.11. Section 10.31.1 (c)-no evidence by way of traffic study or otherwise was submitted to the Board, in order to permit a determination that there will be no nuisance or serious hazard to vehicles or pedestrians. The applicant fails to comply with this section. See also Section 1.4 of the Zoning Bylaw. The Board further notes that the plan falls to contain a legend identifying many of the objects depicted thereon. Mr. Soule abstained from voting in this matter. Voting in favor of the DENIAL, Raymond Vivenzio, Robert Ford,John Pallone, Ellen McIntyre and George Earley. Town of North Andover Board of Appeals Raymond A. Vivenzio MIldecisions 200112&3 acting Chairrnan NEWMAN & NEWMAN, P.C. RECEIVED ATTORNEYS AT LAW JOYCE BRADSHAW ONE MCKINLEY SQUARE f TOWN CLERK BOSTON,MASSACHUSETTS 02109 NORTH H AN=DOVER (617) 227-3361 /} FACSIMILE (617) 723-1710 2001 FEB g p 12: 0....1 EMAIL MNEWMANPCCAOL.COM MARSHALL F. NEWMAN ABRAHAM NEWMAN HOWARD 1. ROSEN (1915 - 1995) RICHARD A. FREEDMAN MATTHEW J. SGAMBETTERA SAMUEL NEWMAN COUNSEL February 7, 2001 BY FAX AND MAIL (978-688-9556) Joyce A. 13radsha , Clerk Town of North Andover 120 Main Street North Andover, MA 01845 Re: Rocket Entertainment, Inc. v. Vivenzio, et al. Land Court No. 269389 Dear Ms. Bradshaw: Rocket Entertainment, Inc. has appealed the decision of the Zoning Board of Appeals denying the special permit. I have enclosed a copy of the complaint that was filed in the Land Court on February 5, 2001. Yours truly, i Richard A. Freedman RAF/nt enc. let-201.13 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. LAND COURT MISC. NO. 269389 ROCKET ENTERTAINMENT, INC. V. RAYMOND A. VIVENZIO, ROBERT FORD,JOHN PALLONE, ELLEN MCI NTYRE, GEORGE M. EARLEY and WALTER SOULE, as they are members of The Zoning Board of Appeals of North Andover COMPLAINT I. Rocket Entertainment, Inc. ("Rocket") is a Massachusetts corporation with a usual place of business at 210 Holt Road, North Andover, Massachusetts. 2. Raymond A.Vivenzio resides at I I Appledore Lane, North Andover, Massachusetts. He is the acting chairman of the Zoning Board of Appeals of North Andover ("the Board"). 3. Robert Ford resides at 89 Bear Hill Road, North Andover, Massachusetts. He is a member of the Board. 4. John Pallone resides at 67 Vest Way, North Andover, Massachusetts. He is a member of the Board. 5. Ellen McIntyre resides at 23 Tanglewood Lane, North Andover, Massachusetts. She is a member of the Board. 6. George M. Earley resides at 125 Lyman Road, North Andover, Massachusetts. He is a member of the Board. 7. Walter Soule resides at 70 Raleigh Tavern Road, North Andover, Massachusetts. He is a member of the Board. 8. Rocket submitted an application to the Board for a special permit under Section 8.8 (Adult Use Zone) of the North Andover Zoning Bylaw. 9. Section 8.8 of the North Andover Zoning Bylaw was created and approved on May 6, 1996 at the Annual Town Meeting. The said section created an Adult Use Zone ("the Zone") as an overlay district in an Industrial 2 District. 10. The Zone consists of approximately eleven (1 1) acres on a portion of Holt Road. The current uses within or adjacent to the overlay district include trucking and truck storage, a recycling center, an automotive paint and body shop, an incinerator and an airport. There is no Residential Zoning District or "church, school, park, playfield, or other location where large numbers of minors regularly congregate"within 500 feet of the Zone. There is no establishment licensed under G. L. c. 138, § 12 within 300 feet of the Zone. 9. Following a public hearing on January 9, 2001,the Board denied.Rocket's application. The Board's Notice of Decision was received by the Town Clerk on January 18, 2001. A copy of the said decision certified by the Town Clerk is attached hereto as Exhibit A. 10. The Board's decision was not on the merits of the application, but rather on alleged deficiencies in the application and presentation as stated in the Notice of Decision. 11. The alleged deficiencies concerned either: (a) facts already known to the Board (e.g. that the proposed adult use would not be located "within 500 feet of a Residential Zoning District or within 500 feet of any church, school, park, playfield, or other location where large numbers of minors regularly congregate"); (b) matters which Rocket was not required to 2 present to the Board or which could have been proven at the hearing if the Board had answered Rocket's repeated inquiries about unspecified deficiencies in the application alluded to several times by one or more members of the Board; or(c) matters which Rocket could not reasonably have expected would be required by the Board because they were not included in the application form or in any rule or regulation of the Board. 12. The Board's decision was unreasonable, whimsical, arbitrary, and/or capricious and exceeded the Board's authority. WHEREFORE, Rocket Entertainment, Inc. prays that the decision of the Zoning Board of Appeals of North Andover denying the application for a Special Permit pursuant to Section 8.8 of the Zoning Bylaw be annulled. ROCKET ENTERTAINMENT, INC. By its attorney, -"/W. C( Richard A. Freedman BBO # 178700 Newman & Newman, P.C. One McKinley Square Boston, Massachusetts 02109 617-227-3361 rockuom 3 f ,IORTH 1 p St�ao ,aa ti0 RECEIVED ''',,.� ._.:::..�.' JOYCE BRADSHAW �R ..•<"h TOWN CLERK SS "�5E NORTH ANDOVER NORTH ANDOVER OFFICE OF 2001 JAN 18 P 12: 31-1 THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER,MASSACHUSETTS 01845 FAX(978)688-9542 Notice of Decision Any appeal shall be filed whhln(2Q)gaYs after the Year 2001 date of filing of this notice In the office of the Town Clerk. Property at: 210 Holt Road NAME: Rocket Entertainment,Inc. DATE: January 10,2001 ADDRESS: 210 Holt Road(lots 3&4) PETITION: 048-2000 North Andover, MA 01845 HEARING: 1/9/2001 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday, January 9, 2001 at 7:30 PM upon the application of Rocket Entertainment, Inc.,210 Holt Road, (lots 3&4)North Andover, MA for a Special Permit from Section 6.8, Paragraph 1,ADULT USE ZONE,and such ancillary paragraphs of section 8.8 and 2.21.2 as may be applicable hereto. Said premises affected is property with frontage on the East side of Holt Road within the 1-2 AUZ Zoning District. The following members were present: Raymond Vivenzio,acting Chairman;Waiter Soule, acting Clerk; Robert Ford, John Pallone, Ellen McIntyre and George Earley. Deliberations centered on the multiple deficiencies in the petitioner's application and presentation. Member Robert Ford stated that because the evidence submitted did not address the issues that must be addressed under Section 8.8 of the Zoning Bylaw, he would not seek to have the Board take the matter under advisement. Upon a motion made by George Earley and 2nd by John Pallone,the Board voted to DENY the application for all of the following reasons: Section 8.8.2(a)—no evidence was presented that the proposed adult use will not be located within 500' feet of a Residential Zoning District or within 500'feet of any church, school,park, playfield,or other location where large numbers of minors regularly congregate; Section 8.8.2(c)—no evidence was presented that the proposed adult use will not be located within 300' feet of any establishment licensed under MGL Ch. 138,Sec. 12; Section 8.8.4(a)—the evidence submitted on the petitioner's plan shows parking in the rear yard,whereas this zoning provision limits parking to side and front yards only. While the entrance to the proposed structure may be located on the side of the building,the entrance has no bearing on the definition of side, front or rear yards. See Sections 2.71,2.72,2.73 and 2.74 of the Zoning Bylaw. The applicant falls to comply with Section 8.8.4(a). .ATTEST: Page 1 of 2 A True Copy pr�'0.5ra4A4,., BOARD OF APPEALS 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANTNIIMUM-Berk EXHIBIT A M. s RECEIVED Continued page 2 of 2-Rocket Entertainment, Inc. JOYCE BRADSHAW TOWN CLERK NORTH ANDOVER Section 8.8.4(b)—insufficient evidence of adequate illumination of the parking area was W . F8e P !Z: 3 Board was not provided with adequate lighting details of the kind and amount of lighting that will be provided. No evidence was submitted that the proposed lighting is contained on the property, nor was any lighting shown for the parking area immediately in the front of the building adjacent to the structure. The applicant fails to comply with Section 8.8.4(b). Section 8.8.4(c)-requires a minimum 5'foot wide landscaped buffer or a 6'foot fence along the side and rear property lines. No evidence of compliance with this provision was submitted,the proposed plan showing trees only along only one sideline(east)and a portion of the rear property line. Section 8.8.5-regarding the screening of all building openings, entries and windows; only 2 sides of the building are shown on the plan, and no evidence or elevations were submitted as to the other 2 sides not shown on the plan. The applicant fails to comply with Section 8.8.5. Section 8.8.9—no evidence was submitted that the principals have not been convicted of certain offenses noted in this section, i.e. MGL, Ch. 119, Sec. 63 and MGL, Ch. 272, Sec. 28. Section 8.8.7(e)—Other than the one(1)paragraph description of proposed security contained in the application, no evidence was presented that such measures are reasonable and adequate. With such lack of detail and lack of professional testimony as to its adequacy for this proposed large facility,the Board is unable to reach any conclusion concerning public safety and whether adequate and appropriate facilities would be provided for the proper operation of the proposed use. See Section 10.31 of the Zoning Bylaw. The Police Chief testified that he was unable to evaluate the applicants proposed security measures with the information provided. Section 8.8.11 — The written application contains no reference to licenses in its possession or intended to be obtained. The applicant states that a liquor license is an integral part of its proposal. The applicant has failed to demonstrate that adequate safeguards exist through licensing or other means to assure that activities therein will not be patently contrary to prevailing standards of adults in the community, and will not involve minors in any way. In view of.the evidence submitted by the liquor Licensing Chairman who was present at the hearing in opposition to the petition, namely,that at Town Meeting in 1982,the provisions of General Laws, Chapter 138, Section 12B were adopted by the Town,which statute prohibits nudity on premises where alcoholic beverages are served,the applicant offered no evidence whatsoever of its entitlement or likelihood of success in obtaining a liquor license,as its proposal contemplates nude dancing. On its face,the law in question prohibits licensing of the applicant. Applicant's response thereto was to refer to an earlier decision of the Supreme Judicial Court in the"Golden Banana"case, where existing licensees had their licenses revoked after adoption of General Laws Chapter 138, Sec. 12B, and later such licenses were reinstated by the Court. Board members felt that such reference to this decision of the Court was not pertinent, as the applicant is not an existing license holder. The applicant fails to comply with Section 8.8.11. Section 10.31.1 (c)-no evidence by way of traffic study or otherwise was submitted to the Board, in order to permit a determination that there will be no nuisance or serious hazard to vehicles or pedestrians. The applicant fails to comply with this section. See also Section 1.4 of the Zoning Bylaw. The Board further notes that the plan fails to contain a legend identifying many of the objects depicted thereon. Mr. Soule abstained from voting in this matter. Voting in favor of the DENIAL: Raymond Vivenzio, Robert Ford, John Pallone, Ellen McIntyre and George Earley. Town of North Andover Board of Appeals Raymond A. Vivenzio MI/decisions 2001/2&3 acting Chairman