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PLANNING DEPARTMENT
OR'4 � Community Development Division
MAS +J m 1600 Osgood Street
North Andover,Massachusetts,01845
July 27,2009
Board of Selectmen
1600 Osgood Street
North Andover, MA 01845
REFERENCE: Article 44 ATM 2008
Declaration of Use Covenants 2302 Turnpike St.
Dear Board of Selectmen Members:
The town of North Andover approved Article 44 at the Annual Town Meeting 2008. The approval of this
article resulted in a change of zoning from Residential 2 (R-2)to Business 2 (B-2) for 3.52 acres of land
known as 2302 Turnpike Street, Map 108A, Parcel 9. At the time of the vote, the owner of the property
agreed to a covenant which would restrict certain uses on the property,excluding the following uses:
• Automobile Service Station
• Taxi Depot
• Drive-through facilities for restaurants greater than 1500 s.f. gross floor area.
These restrictions were discussed with the Planning Board at the April 26, 2008 meeting and approved by
the Board at the May 6, 2008 meeting.
The covenant has recently been reviewed by the Planning Board at their July 21, 2009 meeting and was
referred to the Board of Selectmen for approval. A copy of the covenant is attached. Attorney John
Smolak, representing the owner of the property, will provide you with the original document for
signatures. Please let me know if you have any questions.
Very truly yours,
Judy Tymon
Town Planner
DECLARATION OF PROTECTIVE USE COVENANTS,
CONDITIONS AND RESTRICTIONS
This Declaration of Protective Use Covenants, Conditions and Restrictions is made as of
this I st day of July, 2009, by Kevin Murphy and Elizabeth Murphy, their successors and assigns
(herein collectively referred to as the "Declarant").
WITNESSETH:
WHEREAS, Declarant is the current owner of real property, consisting of two parcels of
land collectively consisting of 3.52 acres of land, known and numbered as 2302 Turnpike Street,
being shown as Parcel 1 and Parcel 2, respectively, on a plan entitled "Plan of Land in North
Andover, Mass. owned by Kevin and Elizabeth A. Murphy" dated February 29, 2008, Scale
"=60' prepared by Scott L Giles, R.P.L.S., and whereby Parcel 1 (2302 Turnpike Street) is
identified in a Deed to Kevin Murphy and Elizabeth A. Murphy recorded with the Essex North
District Registry of Deeds in Book 9834, Page 206, and Parcel 2) is identified in a Deed to
Kevin Murphy and Elizabeth A. Murphy recorded with said Deeds in Book 10019, Page 161
(hereinafter referred to as the "Property;"and,
WHEREAS, the Declarant's Property was the subject of Warrant Article 44 of the 2008
Annual Town Meeting for the Town of North Andover where said Article requests approval for
the rezoning of the Property from Residential 2 (R-2)to Business 2 (B-2); and,
WHEREAS, the Declarant has agreed to prohibit certain uses outlined under the list of
uses permitted within the Business 2 Zoning District as outlined under Section 4.127 of the
Town of North Andover Zoning Bylaws;
NOW, THEREFORE, for good and valuable consideration,receipt of which is hereby
acknowledged, and for the mutual promises and covenants contained herein, the Declarant
declares that the Property is and shall be held, transferred, leased, encumbered, conveyed,
improved and occupied subject to the covenants and restrictions, hereinafter set forth below:
1. Land Subject to This Declaration. The real property which is, and shall be, held,transferred,
sold, conveyed and occupied subject to this Declaration is the Property as defined above.
2. Use Restrictions. Notwithstanding the uses permitted within the Business 2 Zoning District
as outlined under Section 4.127 of the Town of North Andover Zoning Bylaws, the Declarant
agrees the Property shall not be used for the following purposes:
a. Automobile service station; and,
b. Taxi depot.
C. Drive-through facilities for restaurants greater than 1,500 s.f. gross floor area.
Subject to the use limitations above, the Declarant shall be permitted to use the Property
for all other uses permitted by law, including but not limited to, other uses permitted under the
DECLARATION OF PROTECTIVE USE COVENANTS 5 9 08(Rev 6 30 09) Final doc Clean(2)
Town of North Andover Zoning Bylaws, as amended.
3. Enforcement. It is expressly understood and agreed that this Declaration of Protective Use
Covenants, Conditions and Restrictions shall attach to and run with the land and run for the
benefit of the Town of North Andover. Enforcement of this Declaration shall be by a
proceeding at law and/or in equity by the Town of North Andover, acting by and through its
Planning Board, against any person or persons violating or threatening to violate any
covenant either to restrain the violation and/or recover damages suffered by them for any
violation thereof The Declarant, or the Town of North Andover and their successors and
assigns, shall have the full right to enforce this Declaration of Protective Use Covenants,
Conditions and Restrictions both in law and at equity, and to recover damages.
4. Severability. Each and every one of the covenants, conditions and restrictions contained
herein shall be considered to be an independent and separate covenant and agreement, and in
the event that any one or more of the covenants, conditions and restrictions shall, for any
reason, be held to be invalid or unenforceable by a court of law,then all remaining
covenants, conditions and restrictions shall nevertheless remain in full force and effect.
5. Duration. All of the foregoing covenants and restrictions shall continue and remain in full
force and effect at all times against the owner(s)of any lot(s)in such Property, regardless of
how such title was acquired, in perpetuity, unless applicable law provides that such
covenants and restrictions cannot continue and remain in full force and effect in perpetuity,
in which case they shall continue and remain in full force and effect for a period of thirty (30)
years from the date of recording hereof, after which time said Declaration shall automatically
be extended for successive ten (10) year periods, by an instrument which shall be recorded
with the Essex North District Registry of Deeds by the owner(s) of the Property or which
may be recorded by the Town of North Andover, within the time prescribed by M.G.L. c.
184, s. 27.
6. Non-Waiver. The failure or delay of the Town of North Andover or Declarant to enforce the
restrictions, covenants or other provisions herein shall not be deemed a waiver of the right to
do so thereafter as to the same breach or to one occurring prior or subsequent.
7. Amendment and Termination. The provisions in this Declaration may be amended,
modified, and/or terminated by vote of the record title holder of the property, and with the
assent of the Town of North Andover Planning Board, but such amendment, modification
and/or termination shall not be effective until such time as it is reduced to writing, signed by
the Property owner(s) of record, and recorded with the Essex North District Registry of
Deeds.
8. Successors Bound. All of the covenants, conditions and restrictions described herein shall
run with the land, and the grantees of the Property, by accepting the deed thereto, accept the
same subject to such covenants, conditions and restrictions, and agrees for themselves, their
heirs, administrators, successors and assigns to be bound by each such covenant, condition
and restriction jointly, separately and severally.
DECLARATION OF PROTECTIVE USE COVENANTS 5 9 08(Rev 6 30 09) Final doe Clean(2)
9. Extent of Covenants, Conditions and Restrictions. The covenants, conditions and restrictions
created pursuant to this Declaration: (a) shall be subject to restrictions presently of record, if
any; and, (b) shall only be effective after: (i)the North Andover Town Meeting adopts the
Zoning Bylaw Amendment in the form set forth in the published 2008 Annual Town
Warrant, (ii) all subsequent actions shall have been completed that are necessary to cause
such Zoning Bylaw Amendment to be incorporated into the Zoning Bylaw(such as approval
by the Attorney General); (iii)to the extent that any referenda challenging the Town
Meeting's adoption of the Zoning Bylaw Amendment or any other appeal of the Town
Meeting's adoption of the Zoning Bylaw Amendment has occurred, such referendum or
appeal [a] has been fully adjudicated by a court having jurisdiction over such a matter(which
court upholds the Town Meeting's adoption of the Zoning Bylaw Amendment)the decision
of which is not subject to appeal or from which no appeal is taken within the relevant period;
[b] such referendum or appeal is dismissed with prejudice, or [c] the appeal is settled by the
parties thereto with the Zoning Bylaw Amendment remaining in force and effect without any
modification thereto (collectively, "Final Zoning Bylaw Approval").
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed under
seal by Kevin Murphy and Elizabeth Murphy,this 1 st day of July,2009.
Eliz4bjtb Murphy
r`
Kevin Murphy
COMMONWEALTH OF MASSACHUSETTS
ESSEX COUNTY
On this 1st day of July, 2009, before me, the undersigned notary public, personally appeared
Elizabeth Murphy and Kevin Murphy proved to me through satisfactory evidence of
identification, which was a ❑ driver's license; Xpersonally known to me; or 0 personally known
to 3`d party witness personally known to me, to be the persons whose names are signed on the
preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its
stated purpose. (�,
tary Public
V
My C0mmissi0rtl6P*11e!8M0LAK
NOTARY PUBLIC
Commonweaith o`Massachusetts
DECLARATION OF PROTECTIVE USE COVENANTS S 9 08(Rev 6 30 09) Final doc Clean(2) My Commission �xplre,
December., ^�
ACCEPTANCE BY TOWN OF NORTH ANDOVER
The undersigned Board of Selectmen of the Town of North Andover hereby accept the
foregoing Declaration of Protective Use Covenants, Conditions and Restrictions on behalf of the
Town.
L4642
S Ictan S ctman
Selectman Selec
r
Selectman
Commonwealth of Massachusetts
Essex, ss. Ut j�;fa 2009
On this �,3 day of0 ll s 2009, before me, the undersigned notary public,
personally appeared the above- e Board of Selectmen proved to me through satisfactory
evidence of identification, which was known to me to be the person whose name is signed on the
preceding document in my presence and acknowledged to me that they signed it voluntarily for
its stated purpose, as Selectmen of the Town of Andover.
Notary Public
My Commission Expires:
DECLARATION OF PROTECTIVE USE COVENANTS 5 9 08(Rev 6 30 09) Final doc Clean(2)
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