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HomeMy WebLinkAboutPEARSON, DONALD * , FORECE1%1`t�- /I_:;If a FORM C APPLICATION FOR APPROVAL OF DEFINITIVE PLAN Tt3Y c., ER a MAY 4 M9041g To the Planning Board of the Town of North Andover: The undersignedt being the applicant as defined under Chapter 41, Section 81—Lt for approval of a proposed subdivision shown on a plan entitled ENGLISH CIRCLE IN NORTH ANDOVER DRAWN FOR GENE L. ENGLISH by MERRIMACK ENGINEERING SERVICES, INC. dated APRIL 1989 being land bounded as follows:- 3.0+ ACRES BOUNDED BY SALEMSTREET TO THE EAST AND LAND OF LAWRENCE J. .ARDITO TO THE NORTH, LAND OF ABBOTT ST. REALTY TRUST TO THE WEST, AND LAND OF JAMES G. & EDITH V. WINNING AND OF RICHARD B. & JEAN WINNING TO THE EAST, ALL OF NO. hereby submits said plan as a DEFINITIVE plan in accordance with the Rules and ANDOVER Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds' Book 1327 , Page 711 ; or Certificate of Title No. _,_,`, Registration Book_t page ; or Other: Said plan has(x� has not( ) evolved from a preliminary plan submitted to the Board of MARCH 31, 19 87 and approved (with modifications) ( � disapproved (7 on MAY 26 t 19 87 The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Board's Rules and Regulations. The undersigned hereby further covenants and agrees with the Town of North Andover, upon approval of said DEFINITIVE plan by the Board: 1. To install utilities in accordance with the rules and regulations of the Planning Boards the Public Works Department, the Highway Surveyors the Board of Health' and all general as well as zoning by—laws of said Towns as are applicable to the installation of utilities within the limits of ways and streets; 2. To complete and construct the streets or ways and other improvements shown thereon in accordance with Sections Iv and V of the Rules and Regulations of the Planning Board and the approved DEFINITIVE plant profiles and cross sections of the sauce. Said plan, profiles, cross sections and construction specifications are specifically' by reference, incorporated herein and made a part of this application. This application and the covenants and agree— ments herein shall be binding upon all heirs, executorst administrators, successors, grantees of the whole or part of said land, and assigns of the undersigned; and 3. To complete the aforesaid installations and construction within two (2) years from the date hereof. Received by Town Clerk: Date: Signature of Applicant GENE L. ENGLISH Time: 14 HARVARD STREET Signature: WOBURN, MA 01801 Address t Notice to APPLICANT/TOWN CLERK and Certification of Action of Planning Board on Definitive Subdivision Plan entitled: DEFINITIVE SUBDIVISION PLAN OF LAND IN NO. ANDOVER, MA, DRAWN FOR GENE L. ENGLISH,- 14 HARVARD ST. EXTENSION, _WOBUR_N, MA By: MERRIMACK ENGINEERING SERVICES, INC. dated APRIL , 19 89 The North Andover Planning Board has voted to APPROVE said plan, subject to the following conditions.: 1. That the record owners of the subject land forthwith execute and record a "covenant running with the land", or otherwise provide security for the con- struction of ways and the installation of municipal services within said sub- division, all as provided by G.L. c. 419 S. 81-U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of this Board. 3. That, as required by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots No. as shown on said Plan without the prior consent of said Board of Health. k. Other conditions: In the event that no appeal shall have been taken from said approval within twenty days from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. The North Andover Planning Board has DISAPPROVED said plan, for the following reasons: NORTH ANDOVER PLANNING BOARD Date: By: i}' Notice to APPLICANT/TOWN CLERK and Certification of Action of Planning Board on Definitive Subdivision Plan entitled: DEFINITIVE SUBDIVISION PLAN OF LAND IN ,NO. ANDOVER, MA, DRAWN FOR GENE L. ENGLISH9 -14 HARVARD ST. EXTENSION, WOBURN, MA By: , MERRIMACK ENGINEERING SERVICES. INC. dated APRIL • 19 89 Revised August, 1989; September, 1989 The North Andover Planning Board has voted to APPROVE said plan, subject to the following conditions 1. That the record owners of the subject land forthwith execute and record a "covenant running with the land", or otherwise provide security for the con- struction of ways and the installation of municipal services within said sub- division, all as provided by G.L. c. 41., S. 81-U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of this Board. 3. That, as required. by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots No. as shown on said Plan without the prior consent of said Board of Health. 4. Other conditions: SEE ATTACHED ` Na AA ,�8W* C;� G In the event that no appeal shall have been taken from said approval within twenty days from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. ti NORTH AMVER PLAHaW3 BOARD Date: September 21, 1989 By: George Perna, Jr. , Chairman /I Q�l {k ri r FORM C R E C F=,4 APPLICATION FOR APPROVAL OF 'DEFINITIVE'PLAN 0' LONG —� TD NORTf ­ER t C8 8. ... To the Planning Board of the Town of North Andover: The undersignedt being the applicant as defined under Chapter 119 Section 81—L9 for approval of a proposed subdivision shown on a plan entitled EMGLISH CIRCLE IN NORTH ANDOVER DRA14N FOR GENE L. ENGLISH by , MERRIMACK ENGINEERING SERVICES, INC. dated APRIL 1989 being land bounded as follows: 3.0±- "ACRES BOUNDED BY SALEM STREET TO THE EAST AND LAND OF LAWRENCE J. ARDITO TO THE NORTH, LAND OF ABBOTT ST.`­REALTY TRUST TO THE WEST, AND LAND OF JAMES G. & EDITH EV.' WINNING 'AND OF RICHARD B. &JEAN WINNING TO THE EAST, ALL OF NO. hereby submits said p2 as a DEFINITIVE plan in accordance with the Rules and ANDOVER Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds, Book13279 Page; or Certificate of Title No. .9 Registration Book.9 page,_,_; or, Other: Said plan has(x) has not( ) evolved from a preliminary plan submitted to the Board of MARCH 31, 19 and approved (with modifications) disapproved ( on MAY 26 lg -$Z--' The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Board's Rules and Regulations. The undersigned hereby further covenants and agrees with the Town of North Andover, upon approval of said DEFINITIVE plan by the Board: 1. To install utilities in accordance with the rules and regulations of the Planning Board, the Public Works' Department, the Highway Surveyor, the ' Board of Health, and all general as well as zoning byj-laws of said Towns as are applicable to the installation of utilities within the limits of ways and streets; 2. To complete and construct the streets or ways and other improvements shown thereon in accordance with Sections Iv and V of the Rules and Regulations of the Planning Board and the 'approved DEFINITIVE plan, profiles and cross sections of the same. Said plan, profi.lest cross sections and construction specifications are specifically, by-reference# incorporated herein and made a part of this application. This application and the covenants and agree- menta herein shall be binding upon all heirs, executors, administrators, successors, grantees of the whole or part of said land, and assigns of the undersigned; and 3. To complete the aforesaid installations and construction within two ;(2) Years from the date hereof. Received by Town Clerk: Date: S Pau" of AP Plicant GENE L. ENGLISH , Time: 14 HARVARD STREET Signature: WOBU,RN, MA 01801 :Address ENGLISH CIRCLE, DEFINITIVE SUBDIVISION CONDITIONAL APPROVAL. (1) There shall be no driveways placed where stone bound monuments and/or catch basins are to be set. it shall be the developers responsibility to assure the proper placement of the driveways regardless of whether individual lots are sold. The Planning Board shall require any driveway to be moved at the owners expense if such driveway is at a catch basin or stone bound position. Certification by the Department of Public Works will be required prior to the issuance of a certificate of occupancy. (2) All drainage facilities including detention basins, shall be constructed and erosion controlled prior to any lot release. (3) An as-built plan and profile shall be submitted for review and approval prior to the final release of DPW bond money. A certified interim as-built verifying that all utilities have been installed in accordance with the plans and profile shall be submitted prior to the application of the binder coat of pavement. In addition, all required inspection and testing of water, sewer, and drainage facilities shall be completed prior to binder course paving. (4) All Planning Board order of conditions are to be placed upon the recorded Definitive Plan, ( Cover Sheet ) prior to endorsement and filing with the Registry of Deeds. (5) Throughout all lands, tree cutting shall be kept to a minimum in order to minimize erosion and preserve the natural features of the site. Accordingly, the developer in conjunction with a registered arborist, shall submit a tree cutting and reforestation plan consistent with the provisions of Section 5.8 of the North Andover Zoning Bylaws ( The plan is for areas of substantial cutting and filling ) to be reviewed by the Planning Staff prior to the applicant receiving a permit to build on any lot within the subdivision. This Plan shall explicitly include specific trees to be retained. Also, the developer shall inform the Town Planner when significant tree cutting is to occur in order that the Planner may determine the need to be to be present. (6) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. (7) Gas, Telephone, Cable and Electric utilities shall be installed as specified by the respective utility companies. (8) All catch basins shall be protected with hay bales to prevent siltation into the drain lines during road construction. (9) No open burning shall be done except as is permitted during burning season under the Fire Department regulations. (10) No underground fuel storage shall be installed except as may be required by Town Regulations. (11) Lot numbers shall be posted prior to any lot recieving a permit to build (12) Permanent house numbers will be posted on dwellings prior to occupancy. (13) All lots shall have residential fire sprinklers installed prior to the issuance of the Certificate of Occupancy, per order NAFD. (14) Prior to a Certificate of Occupancy being issued for any lot, that lot shall have received all necessary permits and approvals from the North Andover Board of Health. (15) Prior to construction, two stop signs shall be put in place. One shall be placed at the intersection of Bannan drive and Salem Street, the other shall be placed at the intersection of English Circle and Salem Street. Per order N.A.P.D. (16) Bonds, in an amount to be determined by the Planning Board, shall be posted to ensure construction and/or completion of sewers, roadways, site screening and other pertinent public amenities. These bonds shall be in the form of a Tri-Party Agreement. (17) The edge of pavement at the northwest intersection at Salem Street shall be constructed at a 351 radius. (18) Prior to the issuance of a certificate of occupancy on lot 2 , and final release of bond money, the applicant shall submit a topographic as built plan proving the surface runoff from the street enters the detention pond in overflow conditions. The Planning Board shall take a site visit to confirm compliance with this condition. (19) Prior to the release of any lot from the statutory covenant the developer shall submit approved septic system designs to the Planning Board and certify that the grading of said lot is in conformance with the Definitive Plan and drainage calculations, and that said lot does not create adverse flooding on an adjacent property. The following plans shall be deemed as part of this decision; Plans entitled: Subdivision plan ENGLISH CIRCLE in NORTH ANDOVER, Drawn for Gene L. English. Dated Sept. 1989. Prepared by: Merrimack Engineering Services cc: Director of Public Works Board of Public works Highway Surveyor Building Inspector Board of Health Assessors Conservation Commission Police Chief Fire Chief Applicant Engineer File MORRIS, ROGERS & PHILLIPS ATTORNEYS AT LAW EDWARD F. MORRIS** 10 HIGH STREET NEW HAMPSHIRE OFFICE STEPHEN H. ROGERS* PO BOX 1962 PETER C. PHILLIPS** ANDOVER, MASSACHUSETTS 01810 400 LAFAYETTE ROAD PO BOX 804 FRANCIS M. FUNARO** TELEPHONE 9781475-4141 HAMPTON, NH 03843-804 M. PAUL IANNUCCILLO* FACSIMILE 978/475.7479 TELEPHONE 603!929-1700 **Admitted to practice in Mass.&NH FACSIMILE 6031929-$049 *Admitted to practice in Mass. July 24, 1998 BY HAND = X o Joyce Bradshaw s Town Clerk Town of North Andover Town Hall 120 Main Street North Andover, MA 01845 RE: Donald Pearson v. Zoning Board ofAppeals Town of North Andover Dear Ms. Bradshaw: Please accept this letter as notice of an amended complaint filed on July 15, 1998 with the Land Court Department of the Trial Court of the Commonwealth pursuant to Massachusetts General Laws, Chapter 40A, Section 17, and Massachusetts General Laws, Chapter 240, Section 14A. I enclose a copy of the Complaint as filed. Please acknowledge receipt by dating and signing one copy of this letter and returning it to this office. I have enclosed a stamped, self-addressed envelope for your convenience. Thank you for your anticipated cooperation. Very truly yours, MORRIS, ROGERS &PHILLIPS Stephen H. Rogers SHR/bib Enclosure cc: Donald Pearson " d COMMONWEALTH OF MASSACHUSETTS ESSEX, SS, Land Court Misc. Case No. 248606 DONALD PEARSON, Plaintiff ) (First Amended) V. ) Complaint TOWN OF NORTH ANDOVER, ) ZONING BOARD OF APPEALS ) TOWN OF NORTH ANDOVER ) and WILLIAM SULLIVAN, ) WALTER SOULE, RAYMOND ) VIVENZIO, ROBERT FORD AND ) x JOHN PALLONE AS MEMBERS OF THE NORTH ANDOVER ) � � ZONING BOARD OF APPEALS, ) s` AND SCOTT KARPINSKI, ELLEN McINTYRE AND GEORGE EARLEY, AS ) ASSOCIATE MEMBERS OF ) THE NORTH ANDOVER ) ZONING BOARD OF APPEALS, ) Defendants ) NATURE OF CASE 1. This is an appeal under Massachusetts General Laws c. 40A, section 17, from a decision by the Defendant, Zoning Board of Appeals of the Town of North Andover, filed with the Town Clerk of North Andover on May 27, 1998. A certified copy of the Board's decision is attached hereto as Exhibit A. This is also a complaint under Massachusetts General Laws c. 240, sec. 14A. The Court's jurisdiction over this action derives from G.L, c. 40A, sec. 17, G.L. c. 185, secs. 101/2) and I(k), G.L. c. 240, sec. 14A and G.L. c. 231 A, sec. 1, PARTIES 2. Donald Pearson resides at 1030 Johnson Street, North Andover, Essex County, Massachusetts, and owns the property located at 521 Salem Street, North Andover, Essex County, Massachusetts. 3. William Sullivan, Walter Soule, Raymond Vivenzio, Robert Ford and John Pallone are Members of the North Andover Zoning Board of Appeals, and Scott Karpinski, Ellen McIntyre and George Earley are Associate Members of the North Andover Zoning Board of Appeals, and are sued in their official capacity. They reside, respectively, at: William Sullivan 405 Salem Street North Andover, MA 01845 Walter Soule 70 Raleigh Tavern Road North Andover, MA 01845 Raymond Vivenzio 11 Appledore Lane North Andover, MA 01845 Robert Ford 89 Bear Hill Road North Andover, MA 01845 John Pallone 67 Vest Way North Andover, MA 01 845 Scott Karpinski 691 Forest Street North Andover, MA 01845 Ellen McIntyre 23 Tanglewood Lane North Andover, MA 01845 George Earley 125 Lymari Road North Andover, MA 01845 4. The Town of North Andover (the "Town") is a municipal corporation located in Essex County, Massachusetts. L APPEAL PURSUANT TO G.L. c. 40A sec. 17 FACTS 5. The Plaintiff, Donald Pearson, desired to purchase a two-family home in the Town of North Andover, Essex County, Massachusetts, as investment property. On November 21, 1997, the Plaintiff purchased the property located at 521 Salem Street, North Andover, after being assured by both his realtor and the Town of North Andover Assessor's office that the home on the property was an existing two-family home. All tax records at the Assessor's office reveal that the home at 521 Salem Street, North Andover has been classified as a two-family home since 1936. 6. On or about December 5, 1997, the Plaintiff applied to the Town of North Andover for a building permit. He planned on renovating the back of the home and adding approximately 120 square feet to its footprint. On December 12, 1997, the Plaintiff received a Permit to Build from the Town of North Andover. 7. Relying on the Permit to Build, Mr. Pearson purchased materials and commenced substantial work on the house, which included laying a foundation for the 120 square foot extension. 8. On or about December 20, 1997, the Building Inspector for the Town of North Andover called to inform the Plaintiff that work on the property would have to stop. The Building Inspector stated that the building permit was given in error, because he did not realize that the structure was an existing two-family home. Since the home was now sitting in an R-3 District, which allows for only one- family dwellings, the Plaintiff would have to go before the North Andover Zoning Board of Appeals in order to request a special permit for the extension and alteration of a preexisting, non-conforming structure. 9. The Plaintiff stopped working on the property, and hired a surveyor to start field work and to assemble the necessary plans required for the special permit application. 10. The surveyor finished approximately three quarters of the work when the Building Inspector for the Town of North Andover called the Plaintiff on or about January 7, 1998. He told the Plaintiff that, after considering the Plaintiffs situation, he felt that Massachusetts General Laws c. 40A, sec. 6 exempted the Plaintiff from having to apply to the North Andover•.Zoning Board of Appeals for a special permit. He then gave the Plaintiff permission to proceed with his work.at 521 Salem Street. 11. The Plaintiff requested that the surveyor stop his work, and bill him for the time he had already spent on this particular job. Once again, the Plaintiff resumed work on the property. At this point, the Plaintiff estimates that he spent approximately $15,000 on labor and materials, relying on the validity of the original building permit and the Building Inspector's subsequent verbal authorization to continue work at the site. 12. On January 16, 1998, the Plaintiff received a letter from the Zoning Enforcement Officer for the Town of North Andover. The letter stated that the Plaintiff was to discontinue work on the site. More specifically, it stated "In accordance with c. 40A, sec. 6 you are conducting an alteration, extension and structural change to a preexisting, non-conforming use. Such activity requires that the Zoning Board determine that the extension or alteration is not substantially more detrimental than the existing non-conforming use." 13. On January 21, 1998, the Plaintiff applied for a special permit under Section 9 of the North Andover Bylaw. Paragraph 9.1 provides "Preexisting non-conforming structures or uses, however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood." Paragraph 9.2 of the Bylaw provides that "A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: • Such change shall be approved by a special permit or otherwise by the Board of Appeals. • Such change shall be permitted only upon the same lot occupied by the non- conforming use on the date that it became non-conforming. • Any increase in volume, area or extent of the non-conforming use shall not exceed an aggregate of more than twenty-five percent (25%) of the original use. • No change shall be permitted which tends to lengthen the economic life of the non-conforming use longer than a period reasonable for the amortization of the initial investment. 14. Following three public hearings on February 10, 1998, March 10, 1998 and April 14, 1998, the North Andover Zoning Board of Appeals entered a written decision dated May 27, 1998 denying the Plaintiff's application for a special permit under Section 9 of the Bylaw. A copy of the decision was filed with the North Andover Town Clerk on May 27, 1998. The decision by the North Andover Zoning Board of Appeals is based not on the merits of the Plaintiffs case, but rather "on the grounds that there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraphs 9.1 & 9.2 of the Zoning Bylaw." COUNT ONE (Relief under G.L. Chapter 40A, Sec. 17) 15. The Plaintiff incorporates the allegations set forth in paragraphs 1-.14 as if set forth here at length. 16. The Plaintiff is aggrieved by the decision of the North Andover Zoning Board of Appeals. The denial of the Plaintiff's application for a special permit exceeds the authority of the Board of Appeals, was arbitrary, unreasonable and an abuse of discretion. The Plaintiff appeals the Board's decision, stating as his reasons: A. the Plaintiff has met all the criteria required by Section 9 of the North Andover"Bylaw for the granting of a special permit. B. the decision of the North Andover Zoning Board of Appeals that "...there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraphs 9.1 & 9.2 of the Zoning Bylaw" is based on a legal error. WHEREFORE, Donald Pearson prays that the Court: a) enter an order annulling the May 27, 1998 decision of the North Andover Zoning Board of Appeals denying his application for a special permit; b) enter an order that the North Andover Zoning Board of Appeals issue a special permit to Donald Pearson in accordance with his application; c) award him the costs of this action, including reasonable attorneys' fees; and d rant him such further g relief as the Court deems dust and equitable. 1I. RELIEF UNDER G.L. c. 240, sec 14A ALLEGATIONS 17. Plaintiff purchased the property located at 521 Salem Street, North Andover, Massachusetts (the "Property") on November 21, 1997. The Property contains approximately 25,000 square feet, and is improved with a two-story, 4,816 square foot home (the "Home"). The Home was represented to the Plaintiff as a lawful two-family home by the Town's Assessor's office. All tax records indicate that the home has been classified edasa - tw o family home from 1936 through 1997. 18. From 1936 through 1989 g , the Home sat on a lot which contained 126,939 square feet. 19. In 1989, the owner of the lot decided to create a subdivision known as the "English Circle Subdivision," which was approved by the Town on September 21, 1989. A copy of the approval is attached hereto as Exhibit B. He created 4 lots, individually known as Lot 1, Lot 2, Lot 3 and Lot "A." New houses were constructed on Lots 1, 2 and 3. The Home, however, remained unchanged and was situated on Lot "A." Consequently, Lot "A" comprises the Property. 20. From 1936 through 1972, the Property was situated in a Residential District which permitted two-family homes. In 1972, the Town reclassified its Zoning Districts, and as a consequence, the Property was included in an R-3 District. Under the Town's Zoning By-law ("Zoning Bylaw") two-family homes are not permitted in an R-3 District. Relevant provisions of the Zoning By-law are attached as Exhibit C. 21. From 1936 through 1997, the Home was used as a two-family home. Subsequent to the zoning change in 1972, the Home's two-family status was protected as a pre- existing non-conforming use. All evidence suggests that the two-family use had never been abandoned or changed during this entire period. 22. After Plaintiff purchased the Property, he planned to make several improvements to enhance the use of the Home as a two-family structure. He desired to add 120 square feet to the footprint of the Home, and add a living room above the existing garage which would measure 15 x 26 (390 square feet). 23. On January 21, 1998, the Plaintiff applied for a special permit under Section 9 of the Zoning Bylaw. Paragraph 9.1 provides "Preexisting non-conforming structures or uses, however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood." Paragraph 9.2 of the Bylaw provides that "A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: • Such change shall be approved by a special permit or otherwise by the Board of Appeals. • Such change shall be permitted only upon the same lot occupied by the non- conforming use on the date that it became non-conforming. , • Any increase in volume, area or extent of the non-conforming use shall not exceed an aggregate of more than twenty-five percent (25%) of the original use. • No change shall be permitted which tends to lengthen the economic life of the non-conforming use longer than a period reasonable for the amortization of the initial investment. 24. Following three public hearings on February 10, 1998, March 10, 1998 and April 14, 1998, the North Andover Zoning Board of Appeals (the Board) entered a written decision dated May 27, 1998 denying the Plaintiffs application for a special permit under Section 9 of the Zoning By-law. The decision of the Board is based not on the merits of the Plaintiffs case, but rather"on the grounds that there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraphs 9.1 and 9.2 of the Zoning By-law." The Board expressed concern that the Home may have lost its pre-existing non- conforming protection when the lot was subdivided in 1989. If the Home did indeed lose its protection, then the Plaintiff cannot lawfully use it as a two-family dwelling. if the Home did not lose its pre-existing non-conforming status, it appears that Plaintiff would obtain the special permit as of right, based on the fact that the Board heard evidence concerning the Property's conformance with Section 9 of the Zoning Bylaw, and evidence that the two-family use had not been abandoned or changed, but based its written decision solely on the question of whether or not the home continues to be protected as a pre-existing non-conforming structure. COUNT TWO (Declaratory Relief Under G.L. c. 240, sec. 14A and G.L. c. 231A) 25. The Plaintiff incorporates the allegations contained in paragraphs 17-24 as if set forth here at length. 26. Under current Massachusetts law, the reduction of the lot from 126,939 square feet to 25,000 square feet in 1989 did not affect the Home's status as a lawful, pre- existing non-conforming structure. Furthermore, Plaintiffs proposed renovation and addition to the Home comply in all respects with the requirements for a special permit laid out in Section 9, paragraphs 9.1 and 9.2 of the Zoning Bylaw. 27. An actual controversy exists between Plaintiff and the Town concerning the question of whether the Home continues to be protected as a lawful, pre-existing non- conforming structure, and the extent to which the Zoning Bylaw affects the Property and Plaintiffs proposed use thereof. PRAYER FOR RELIEF Plaintiff Prays that the Court enter judgment as follows: (i) under Count Two, declaring that the reduction of the lot from 126,939 square feet to 25,000 square feet in 1989 did not affect the Home's status as a lawful, pre-existing non-conforming structure. Furthermore, declaring that Plaintiffs proposed renovation and addition to the Home comply in all respects with the requirements for a special permit laid out in Section 9, paragraphs 9.1 and 9.2 of the Zoning Bylaw. Donald Pearson, By his attorney, Stephen H. Rogers BBO No. 628557 , MORRIS, ROGERS & PHILLIPS 10 High Street Andover, Massachusetts 01810 (978) 475-4141 Dated: July 14, 1998 t NORTH 1 O . EXHIBIT A �� ~' ,y0 0 O — I{L m l_ p JOYCE f ',r,I !y o Town GI ■ NORTH t,h:l;� 'i_r, �1-AY 1 2La I ! I. Jj TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Any appeal shall be riled wft-fArlOA—days atter the NOTICE OF DECISION date of filing of this Notice in the office of the Town Property: 521 Salem St. Clerk, NAME: Donald Pearson DATE: 5/27/98 ADDRESS: 521 Salem St. PETITION: 003-98 North Andover, MA 01845 HEARING: 2/10/98,3/10/98,4/14/98,5/19198,5/26198 The Board of Appeals held a Special Meeting on Tuesday evening, 5:30 PM, May 26, 1998, in Town Hall, 120 Main St., in the Library conference room, upon the application of Donald Pearson, of 521 Salem St., North Andover, MA, requesting a Special Permit from the requirements of Section 9, Paragraph 9.1. & 9.2 of Table 2, of the Zoning Bylaw, for alteration or extension to a non-conforming structure in the R-3 Zoning District . The following members were present: Walter F. Soule, Robert Ford, Scott Karpinski, Ellen McIntyre. The notice was posted on the Town Hall bulletin board 48 hours in advance of the Special Meeting. Upon a motion made by Robert Ford, and seconded by Scott Karpinski, the Board voted to Deny the petition on the-grounds that there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraph 9.1 & 9.2, of the Zoning Bylaw. Voting in favor of the denial was unanimous: Walter F. Soule, Robert Ford, Scott Karpinski, Ellen McIntyre. BOARD OF APPEALS L� /decocts Walter F. Soule, acting Chairman Zoning Board of Appeals +� `+•; ' Exhibit Notice to APPLICAITF/TOWN CLERK and Certification of Action of Planning Board r on Definitive Subdivision Plan entitled: DEFINITIVE SUBDIVISION PLAN OF LAND IN NO. ANDOVER MA DRAWN FOR GENE L. ENGLISII 14 EIARVARD ST, EXTENSION , 110BURN , h1A By: MERRIMACK ENGINEERING SERVICES INC. dated APRIL , 19 89 Revised August, 1989; September, 1989 The North Andover Planning Board has voted to APPRUVE said plan, eubject to the following conditions: 1. That the record owners of the subject land forthwith execute and record a "covenant running with the land", or otherwise provide security for the con- struction of ways and the installation of municipal cervices within said sub— division, all as provided by G.L. c. 41., S. 81—U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of thin Board. 3. That, as required by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots 140, as shown on said Plan without the prior consent of said Board of Health. 4. Other conditions: DANIEL LONG SEE ATTACHED TOWN CLFaK 120 Main$tenet North Andover,MA 01846 G ' -v In the event that no appeal shall have been taken from said approval within twenty days from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. NORTH ANDUVE11 PLANNIIU BOARD Date: September 21, 1989 By: George Perna, Jr. , Chairman ^ .\� FORM C APPLICATION FOR APPRMAL OF DEFINITIVE PLAN TO'v)I r '� NORT}! ,' :'111T,'ER MAr 5 L8 " tt 19� 3 89 To the Planning Board of the Town of North Andover: (3 The undersigned, being the applicant as defined under Chapter 41, Section 81—L, for approval of a proposed subdivision shown on a plan entitled ENGLISH CIRCLE IN NORTH ANDOVER DRAM FOR GENE L. ENGLISH by MERRIMACK ENGINEERING SERVICES INC. dated APRIL 1989 being land bounded as follows: 3.0+ ACRES BOUNDED BY SALEM STREET TO THE EAST AND LAND OF LAWRENCE J. ARDITO TO THE NORTH, LAND OF ABBOTT ST. REALTY TRUST TOTIE KST, AND LAND OF JAMES G. & EDITH V. WINNING AND OF RICHARD B. &JEAN WINNING TO THE EAST, ALL OF NO. hereby submits said plan as a DEFINITIVE plan in accordance with the Rules and ANDOVER Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds, Book 1327 Page 711 ; or Certificate 'of Title No. , Registration Book , page ; or Other: Said plan has(X) has not( ) evolved from a preliminary plan submitted to the Board of MARCH 31, _19 87 and approved (with modifications) disapproved ( on .—MAY 26 , 19 87 The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Board's Rules and Regulations. The undersigned hereby further covenants and agrees with the Town of North Andover, upon approval of said DEFINITIVE plan by the Board: 1. To install utilities in accordance with the rules and regulations of the Planning Board, the Public Works Department, the Highway Surveyor, the Board of Health, and all general as well as zoning by—laws of raid Town, as are applicable to the installation of utilities within the limits of ways and streets;' 2. To complete and construct the streets or ways and other improvements shown thereon in accordance with Sections Iv and V of the Rules and Regulations of the Planning Board and the approved DEFINITIVE plan, profiles and cross sections of the same. Said plan, profiles, cross sections and construction specifications are specifically, by reference, incorporated herein and made a part of this application. This application and the covenants and agree— ments herein shell be binding upon all, heirs, executors, administrators, successors, grantees of the whole or part of said land► and assigns of the undersigned; and 3• To complete the aforesaid installations and construction within two (2) Yea's from the date hereof. Received by To" Clerk: Date: Signature of Ap ican GENE L. ENGLISH Time: 14 HARVARD STREET Signature: WOBURN, MA_ 01801 Address i ENGLISH CIRCLE, DEFINI'T'IVE SUBDIVISION CONDITIONAL APPROVAL. (1) There shall be no driveways placed where stone bound monuments and/or catch basins are to be set. it shall be the developers responsibility to assure the proper placement of the driveways regardless of whether individual lots are sold. The Planning Board shall require any driveway to be moved at the owners expense if such driveway is at a catch basin or stone bound position. Certification by the Department of Public Works will be required prior to the issuance of a certificate of occupancy. (2) All drainage facilities including detention basins, shall be constructed and erosion controlled prior to any lot release. (3 ) An as-built plan and profile shall be submitted for review and approval prior to the final release of DPW bond money. A certified interim as-built verifying that all utilities have been installed in accordance with the plans and profile shall be submitted prior to the application of the binder coat of pavement. In addition, all required inspection and testing of water, sewer, and drainage facilities shall be completed prior to binder course paving. (4 ) All Planning Board order of conditions are to be placed upon ,. the recorded Definitive Plan, ( Cover Sheet ) prior to endorsement and filing with the Registry of Deeds . (5) Throughout all lands, treecutting shall be kept to a minimum in order to minimize erosion and preserve the natural features of the site. Accordingly, the developer in conjunction with a registered arborist, shall submit a tree cutting and reforestation plan consistent with the provisions of Section 5 . 8 of the North Andover Zoning Bylaws ( The plan is for areas of substantial cutting and filling ) to be reviewed by the Planning Staff prior to the applicant receiving a permit to build on any lot within the subdivision. This Plan shall explicitly include specific trees to be retained. Also, the developer shall inform the Town Planner when significant tree cutting is to occur in order that the Planner may determine the need to be to be present. (6) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. (7) Gas, Telephone, Cable and Electric utilities shall be installed as specified by the respective utility companies . (8) All catch basins shall be protected with hay bales to prevent siltation into the drain lines during road construction. (9) No open burning shall be done except as is permitted during burning season under the Fire Department regulations . (10) No underground fuel storage shall be installed except as may be required by Town Regulations . ( 11) Lot numbers shall be posted prior to any lot recieving a permit to build (12 ) Permanent house numbers will be posted on dwellings prior to occupancy. (13 ) All lots shall have. residential fire sprinklers installed prior to the issuance of the Certificate of Occupancy, per order NAFD. ( 14) Prior to a Certificate of Occupancy being issued for any lot, that lot shall have received all necessary permits and approvals from the North Andover Board of Health . (15) Prior to construction, two stop signs shall be put in place. One shall be placed at the intersection of Bannan drive and Salem Street, the other shall be placed at the intersection of English Circle and Salem Street. Per order N.A. P. D. (16) Bonds, in an amount to be determined by the Planning Board, shall be posted to ensure construction and/or completion of sewers, roadways, site screening and other pertinent public amenities . These bonds shall be in the form of a Tri-Party Agreement. (17) The edge of pavement at the northwest intersection at Salem Street shall be constructed at a 35 ' radius . (18) Prior to the issuance of a certificate of occupancy on lot 2 , and final release of bond money, the applicant shall submit a topographic as built plan proving the surface runoff from the street enters the detention pond in overflow conditions . The Planning Board shall take a site visit to confirm compliance with this condition. li (19) Prior to the release of any lot from the statutory nt the developer shall submit approved septic system designstothe Planning Board and certify that the grading of said lot is in conformance with the Definitive Plan and drainage calculations, and that said lot does not create adverse flooding on an adjacent property. The following plans shall be deemed as part of this decision; Plans entitled: Subdivision plan ENGLISH CIRCLE in NORTH ANDOVER, Drawn for Gene L. English. Dated Sept. 1989 . Prepared by: Merrimack Engineering Services cc: Director of Public Works Board of Public works Highway Surveyor Building Inspector Board of Health Assessors Conservation Commission Police Chief Fire Chief Applicant Engineer File EXHIBIT C 4.1 District Ilse Regulations 4.I I General Provisions r 1. In the zoning districts above.speciGed, the fallowing designated buildings and alterations and i extensions thereof surd buildings accessory thereto and the following designated uses of land, buildings, Or part thereof and uses accessory thereto are permitted. All other buildings and f uses are hereby expressly prohibited except uses which are similar in character to the permitted uses shall be treated as requiring,a Special Permit (1985/26) 2. When a lot in one ownership is situated in part in the Town of North Andover and in part in all adjacent town or city, the provisions, regulations and restrictions of this Bylaw shall be applied i to that portion of such lot as lies in the Town of North Andover in the same ruanner as if t(re 3 entire lot were situated therein. 3. When a zoning district boundary divides a lot of record on June 5, .1972 in one Ownership, all the zoning regulations set forth in this Zoning Bylaw applying to the greater part by area of such lot so divided juay, by Special Permit, be deenied to apply and govern at and beyond such zoning district boundary, but only to all extent not more than one hundred (100) linear feet in depth (at a right angle to such boundary) into the lesser part by area 6--f-such lot so divided. 4. Accessory uses, as defined herein, shall be on tine same lot with the building of the owner or �� occupant, and shll b ae such as not to alter the character of the premises on which they are located nor impair the neighborhood. Where manufacturing of any kind is allowed as an accessory use, it shall be restricted to such light manufacturing s is incidental to a perrrritted use and where tlne product is customarily sold on the premises by the producer to the custorrner. 5. No private or public (1985/20) way giving access to a building or use or not pernutted in a residential district shall be laid out or constructed so as to pass through a residential district. 4.12 1'ernnilted Uses 4.121 Residence I District Residence 2 District a Residence 3 llist►-ict 1. One family dwelling, but not to exceed one dwelling on any one lot. t 2. Place of warship. 3. Kooning house, renting rooms for dwelling purposes or furnislling table board to not more than four (4) persons not members of the family resident in a dwelling so used, provided there be no display or advertising ori such dwelling or its lot other than a name place or sign not to 27 exceed six (6) inches by twenty-Cour (24) inches in size and Curther provided that no dwelling shall be erected or altered primarily fbr such use. l For use of a dwelling in any residc,itial district or multi-family district for a home occupation, the following conditions shall apply: a. Not more than a total of three (3) people may be employed in the home occupation, one of whom sliall be the owner of the home occupation and residing in said dwelling; b. "lire use is carried on strictly within the principaLbuilding; c. There shall be no exterior alterations, accessory- buildings,g , or display winch are not customary with residential buildings; 3 — d. Not more than twenty-five (25) percent of the existing-gross floor area ofthe dwelling 1 unit soused, not to exceed otic thousand(1000) square feet,.is devoted to such use. In r connection with such use, there is to be kept no stock in trade, commodities or products which occupy space beyond these limits; e. There will be no display of goods or wares visible from the street; f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, emission of odor, gas, smoke, dust, noise, disturbance, or in any other way become # objectionable or detrimental to any residential use within the neighborhood; g. Any such building shall include no features of custom not design gt cry in buildings.for 'residential use. S 5. Real estate signs not to exceed twenty-four (24) inches by thirty-six (36) inches in size wluclt shall advertise only the rental, lease, or sale of the preurises upon wtuclr they are placed. ? 6. a. Agriculture, horticulture, floraculture, viticulture or silvaculture. (1986/100). f b. On airy lot of at least three (3) acres, the keeping of a total of not more than three (3) of any kind or assortment of animals or birds in addition to the household pets ora faruily (I Mg on such lot, and for each additional acre of lot size to five (5), the keeping of one additional animal or bird but not the keeping of any animals, birds or pets of persons 'lot resident on such lot. (1993/36) C, On any tot of at least five (5) acres, tine keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding acadeirlies, stables, stud farms, mid poultry batteries. 20 d. The sale of products raised as a result of the above uses on the subject land. (1986/100). e. The sale of products of agriculture, horticulture, floraculture, viticulture or silvaculture as well as accessory or customary items, by any person who is primarily engaged in any of the above activities. 'hie operation Must be on at least ten (10) contiguous acres used primarily for any,of these activities. (1986/100). 7. Swimming pools in excess of two (2) feet deep shall be considered a structure and-permitted provided they are enclosed by a suitable wall or fence at least four (4) feet in height to be determined by the Building Inspector to prevent the entrance of persons other than those residing at the pool location. Pools shall have a minimum ten (10) foot setback from side'and rear lot lines and be located no nearer the street than the building line of the dwelling, except by Special Permit. 8. - Museums. 9.. a. Public and private non-profit educational fzcilities. (1986/17) b. Private for profit educational facilities by Special Permit. (1986/17) 10. Public building and public service corporations (Special Permit required), but not includin i public works garages. g - i 11, Golf Course. 12. Swimming and/or tennis clubs shall be permitted with a Special Permit. 13. Cemetery. 14. Nursing and convalescent home - see dimensional requirements of Table 2 (Special Permit required). 15. Municipal recreational areas. 16. wry accessory use customarily incident to any of the above permitted uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. 17. Family Suite - a separate dwelling unit within or attached to a dwelling for a member of a household is allowable by Special Permit provided: - 29 i (Section 8.8 created and approved May 6, 1996 Annual Town Meetirrf;, Article 22) I SECTI ON 9 NON-CONFORMING USES d 9.1 Non-Couforrning Uses Any non-conforming building structure, or use as defined herein, which lawfully existed at the time of passage of the applicable provision of this or any prior by Law or any amendment thereto may be i continued subject to the provisions of this Bylaw. Any lawfblly non-conforming building or structure ! and any lawfully non-conforming use of building or land may be continued in the same kind and 3— manner and to the same extent as at the time it became lawfully non-conforming, but such buildin or g use shall not at any time be changed, extended or enlarged except for a purpose permitted hi the zoning district in which such building or use is situated, or except as may be permitted by a Special Permit or otherwise by the North Andover Board of Appeals. Pre-existing non-confomring structures or uses, I however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a fining by the Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood. I When a pre-existing structure has been made non-conforming due to changes in the lot size required by this bylaw, such structure may be extended or altered based on a finding by the Zoning Enforcement Officer- that such structure after the change meets all current zoning requirements except for lot • (1995/43) P size. 9.2 Alteration or Extension A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: 1. Such change shall be approved by a Special Permit or otherwise by the Board of Appeals. 2. Such change shall be permitted only upon the same lot occupied by the tion-conforming use on the date that it became non-conforming. 3. Any increase in volume, area, or extent of the non- confonrring use shall not exceed all aggregate of more than twenty five percent(25%) of the original use. `1. No change shall be.pennitted which terids to lengthen the economic life of the non-conforming longer than a period reasonable for the amortization of the initial investment. 9.3 Building After Catastrophe 125 Any non-conforming building or structure destroyed or darnaf,ed by fire flood li titin wind otherwise to the extent of sixty-five percent (G5%) or more of its reproduction cost at the time of such darrrage shall not be rebuilt, repaired, reconstructed nor altered except for a purpose permitted in that zoning district in which such building is located, or except as may be permitted by a Special Permit or otherwise by the Board of Appeals acting under G.L. Chapter 40A. 9.4 Abandonment If any lawfully non-conforminng building or use of a building or land be at any time discontinued for a Period of two years or more, or if such use or building be changed to one conforning with the North Andover Zonurg Bylaw in the district in which it is located, it shall thereafter continue to conform. SECTION 10 ADMINISTRATION 10.1 Enforcement The North Andover Zoning Bylaw shall be enforced by the North Andover Building Inspector. The Building Inspector, upon being informed in writing of a possible violation of this Bylaw or on his own initiative, shall make or cause to be made an investigation of facts and an inspection of the premises where such violation may exist. If the Building Inspector is so informed in writing and declines to act, he sliall within fourteen (14) days of his receipt of such information give to !us informant, in writing, his reasons for refraining from taking any action. Tile Building Inspector, on evidence of any violation afler investigation and inspection, shall give written notice of such violation to the owner and to the occupant of such premises, and the Building Inspector shall demand in such notice that such violation be abated within such reasonable time as may be given by mail addressed to the owner at the address appearing for hum on the most recent real estate tax records of North Andover, and to the occupant at the address of the premises of such seeming violation. If, after such notice and demand, such violation has not been abated within the time specified, the Building Inspector or the Selectmen shall institute appropriate action or proceedings in the name of the Town of North Andover to prevent, correct, restrain, or abate any violation of this Bylaw. 10.11 Building Permit No building shall be erected, altered, moved, razed or added to'in North Andover without a written Penult issued by the Building Inspector. Such permits shall be applied for in writing to the Building - Iruspector. The Building Inspector shall not issue any such permit unless the plans for the building and the intended use th ereof in all respects 1 s fulfill flue provisions of the North Andover Zoning Bylaw (and other applicable Town Bylaws) except as may have been specifically permitted otherwise by action of 126 i r i l the North Arad v o er 130ard of Appeals, provide d a written Copy of the terms governing any exception so pernutted be attached to the application for a building permit and to the building permit issued therefor. One copy of-each such permit, as issued, including any conditions or exceptions attached thereto, shall be kept on file in the 011ice of the Building Inspector. In addition to the inlorrnation required above, a plot plan shall in dicate provisions for requirements of this Bylaw, including but not limited o off-street packing, screening andfencing.ig.ter iysical Upon granting a permit the Building Inspector shall cause a copy to be posted on the property to which i it relates in a conspicuous place. 10.12 Certificate of Use and Occupancy No building hereafter erected, enlarged, extended , or altered shall be used or occupied in whole or in part until a certificate of use and occupancy has been issued by the Building Inspector. No building or laud changed fi-om orie use to another, in whole or in part, shall be occupied or used until a certificate ' of use and occupancy has been issued by the Building Inspector. This certificate shall certify _. compliance with the provisions of this Bylaw and of all applicable pp cable codes(1974). 10.13 Penalty for Violation - Whoever continues to violate the provisions of this Bylaw atter written notice from the Building i - Inspector demanding an abatement of a zoning violation within a reasonable time, shall be subject to a fine of three hundred dollars ($300). Each day that such violation continues shall be considered a separate offense. (1986/15) 9 i 10.2 Board of Appeals 10.21 Appointment and Organization a i There shall be a Board of Appeals of five (S) members and not more than three (3) Associate Members, which shall,have and exercise all the powers provided under G.L. Chapter 40 and P A, which -- shall hear and decide all matters specifically referred to the Board of Appeals by the North Andover Zoning Bylaw and other matters referred to such Board by statute. The Board of Appeals members and Associate Members shall be appointed by the Selectmen rrt the mariner provided by statute Within two (2) weeks of the beginning of each calendar year, the Zoning Board of Appeals shall organize and elect a Chairman and Clerk from within its own membership. Tire length of terms of the members of the Board of Appeals shall-be such that the term of one member expires each year. A member of the Board of Appeals may be removed for cause by the Board of Selectilpen only after written charges have been made and a public hearing has been held. 10.22 Powers of the Board of Appeals 46 127 The Board of Appeals shall have the following powers: fo bear and decide actions ;")(] appeals as provided herein; 2. To bear and decide applications for appropriate Special Permits and variances which the Board of Appeals is required to act upon under this Bylaw. 10.3 Special Permit The Special Permit Granting Authority shall adopt rules and regulations for the conduct of its business relative to the issuance of Special Permits. A copy of these rules and regulations shall be filed with the Town Clerk. The rules and regulations shall contain, as a minimum, a description of the size, form, contents, style and number of copies and number of plans and specifications to be submitted and the iprocedures for submission and approval of Special permits. The Special Permit Granting Authority may grant a Special permit within the framework of this Bylaw only affier holding a-public !rearing which must be held within sixty-five (65) days after the applicant files for such Special Permit. Tire sixty-five (65) days period shall be deemed to have begun with the filing of the application with tine Special Permit Granting Authority. The applicant is responsible for transmitting a copy of the application for a Special Permit within tw ` p enty-four(24) hours of the filing of the application with the Planning Board or the Board of Selectmen and to the Town Clerk. If an s application for a Special Permit is to be filed with the Board of Appeal, the applicant shall file the application with the Town Clerk, who shall transmit the application to the Board of Appeals wither twenty-four(24)hours. 10.31 Conditions for Approval or Special Permit 1. The Special Permit Granting Authority shall not approve any such application for a Special pennit unless it finds that in its judgment all the following conditions are met: a. The specific site is an appropriate location for such a use, structure or condition, b. The use as developed will not adversely affect the neighborhood; C. There will be no nuisance or serious hazard to vehicles or pedestrians; �l. Adequate and appropriate facilities will be provided for the proper operation of the proposed use; C. The Special Permit Granting Authority shall not grant any Special Permit unless they make a specific finding that tine use is in harmony with the general purpose and intent of this Bylaw. i 2. In approving a Special Permit, the Special Permit Granting Authority may attach such conditions and safeguards as are deemed necessary to protect the neighborhood such as, but riot limited to, the following: a. Requirements of front, side, or rear yards greater- than the minimum required by this Bylaw. b. Requirements of screening parking areas or other palls of the premises from adjoining premises or from the street, by walls, fences, planting, or other devices as specified by the Special Permit-Granting Authority. C. Modification of the exterior features or appearances of the structure; d. Linnitation of size, number of occupants, method or time of operation, or extent of facilities; e. Regulation of number, design and location of access drives or other traffic features. 3. Special Permit granted under the provisions contained herein shall be deemed to have lapsed aller a two (2) year period from the date on which the Special permit was granted unless substantial.use or construction has commenced. If the applicant can show good cause why substantial use or construction has not commenced within the two (2) year period, the Special Permit Granting Autliority, as its discretion, may extend the Special Permit for an additional one (1) year period. Included within the two (2) year period stated above, is the time required to pursue or wait the determination of an appeal from the provisions of the Bylaw. 4. The Special Permit Granting Authority may, within the guidelines for Special Permits contained herein, allow accessory uses whether located on the sarne lot as the principal use or not, wherever necessary in connection with scientific research, scientific.development or related production provided that the Special Permit Granting Authority finds that the proposed accessory use does not substantially derogate from the public good. 5. Within (90) days following the date of tine public hearing, the Special Permit Granting Authority shall take final action in tine matter in order to issue a Special Permit provided for in this Zoning Bylaw. 'There shall be at least four (4) of the five (5) members of the Granting Authority voting in favor of issuing the Special Permit. 6. A Special Permit grunted under the provisions of this Bylaw shall not take effect until: a. The Town Clerk certifies on a copy of the decision that twenty (20) days have.elapsed without filing of an appeal or that any appeal filed has been dismissed or denied; it l29 O. The certified decision has beer' recorded at the owner's eXpense In the 1 ssCX County Registry of�Deed's indexed in the grantor index under the rianle of the record owner and noted orf the Owner's Certificate of'I'it(e; C. If the Special Permit involves registered property, the decision, at the owner's expense shall also be filed with the Recorder of the Land Court. 10.32 '('c►upcfrary Pe►-r►►it The Board of Appeals may grant a temporary Special Permit for use or occupancy permit for a period Of not more than one (1) year at a time, subject to a single renewal. Such permits shall be subject to conditions imposed by the Board related to safeguarding the character of the district affected and shall be processed in accordance with the procedures provided herein for the granting of Special Permits. 10.4 Variances and Appeals 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, slope, or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially ® derogating from the intent or purpose of this Bylaw. Additionally, an appeal may be taken to the Zoning Board of Appeals as provided herein by a person aggrieved by reason of Ns inability to obtain a' permit or enforcement action from the Building Inspector, by the Merrimack Valley Planning Commission, or by any person including an officer or Board of the Town of North Andover, or an abutting city or town, aggrieved by an order or decision of the Building Inspector or other administrative officials in violation of any provision of thus Bylaw. Any petition for an appeal above must be taken within thirty (30) days of the date of the order or decision that is being appealed by filing a notice of appeal, specifying the grounds thereof with the Town Clerk, who shall forthwith transmit copies of the appeal to such officer or Board, whose order or decision is being appealed, and to the Zoning Board of Appeals. Such officer or Board shall forthwith transmit to the Zoning Board of Appeals all documents and paper constituting the records of the case in which the appeal is taken. 1 No petition for a variance or appeals shall be granted until a public hearing is held on the matter by the Zoning Board of Appeals within sixty-five-(65) days after the Zoning Board of Appeals receives the petition from the Town Clerk. 2. The Zoning Board of Appeals must make its decision on a petition for a variance or appeal Within seventy-five (75) days after the date of the petition is filed with the Town Clerk. In 130 order to grant a petition for a variance or an appeal, four (4) of the live (5) members of the i Board must concur. If the Zoning; Board of Appeals fails to act within the time limits specifi<:e1 f herein, the petition for a variance or appeal shall be deeined granted. l a. 1n the case of' a variance the Zoning Board of Appeals may impose condi11,0rns, safeguards and limitations of time and use, hoWCVCr, these conditions cannot require j continued ownership of the land or structure to which the variance pertains by tine l applicant, petitioner, or owner. Furthermore, if the rights authorized by the variance are not exercised within one (1) year of the date of thegrant, they shall lapse and ;xray be re-established only after notice and a new hearing. 3. The Zoning Board of Appeals shall cause to be made a detailed record of its proceeduigs indicating the vote of each member upon cacti question, or if absent or failing to vote indicating such fact, and setting forth clearly the reason or reasons which shall be filed within 1 the fourteen(14) days in the office of the Town Clerk and shall be a public record. i Notice of the decision shall be mailed forthwith to the petitioner, applicant, or appellant, to the parties in interest designated lierein, and to every person present at the hearing who requested that notice be-sent to him and stated the address to which such notice was to be sent. Each notice shall specify that appeals, if any, shalt be filed within twenty (20) days after the date of filing.of such notice in the office of the Town Clerk. The decision shall also contain the names and addresses of the owner, and identification of the land and/or structure affected if a variance procedure - how the variance complies with the statutory requirements for issuing a variance). Certification that copies of the decision have been filed with the Planning Board and Town Clerk are required { i 10.5 Amendments to Zoning Bylaw lThis Bylaw shall be adopted and shall be amended Gom time to time by a two-thirds vote at an annual or special town meeting. Amendments to this Bylaw may be initiated by submission of the amendment to the Board of Selectmen by any of the following: a) Board of Selectmen; b) Zoning Board of 1 Appeals; c) by an individual owning land to be affected by the amendment; d Y request uest of q , registered voters of the town pursuant to Section 10, Chapter 39 of the Mass. General Laws; e) the Planning Board; and f) by the Merrimack Valley Planning Commission. 10.51 Submission of Amendment to Planning Board Within fourteen (14) days of the receipt of an application for an amendment to this Bylaw, the Board of Selectmen shall submit the proposed amendment to the Planning Board for review. The Planning Board shall hold a public hewing ori any North Andover Town Meeting Warrant Article to amend the Zoning Bylaw or the zoning arid shall report its recommendations t here n o if anto , the Town Meeting. , Y 1 131 ing map shall explicitly state the nature, extent and location of I�aclr warrant article to change the zon the map change proposed and shall be accompanied by; 1. 'l'hree blackline prints of a diagram to scale showing and stating clearly the dimensions in feet of the land area proposed to be changed as to zone, 2. Also a sketch or other explicit identification of the location of such land in relation to the majority of the rest of the town. 10.52 Public Hearing —�- Within sixty-five (65) days after receipt of a proposed amendment from the Board of Selectmen, or MOM) sixty five(65) days after the receipt of an application for a Special Permit, the Planning Board or Zoning Board of Appeals, as the case may be, shall hold a public hearing, notice of which shall be published in a newspaper of general circulation covering the town once in each of.two_(2) successive weeks. The first publication may not be less than fourteen(14) days before the day of the hearing, (the date of the public hearing shall not be counted in the fourteen(14) days). Additionally, notification of the public hearing shall be posed in a conspicuous place in the North Andover Town Hall for a period of not less than fourteen (14) days before the date of-the hearing. Further, notification of the public hearing shall be sent to the Massachusetts Department of Community Affairs, the Merrimack Valley Planning Commission and Planning Board of all abutting..cities and towns prior to public hearing date. Notice of the public hearing shall include: a) the time and place of hearing; b) the subject matter; c) the place where texts and reaps may be inspected. 10.53 Report by Planning Board No vote to adopt the proposed aniendment shall be taken by the Town Meeting until the report with recommendations by the Planning Board has been submitted to the Town Meeting or until twenty-one (21) days after said hearing has elapsed without submission of said reports or submissions. After such notice, hearing, and report, or ager twenty-one (2 1) days shall have elapsed after such hearing, without submission of such report, the Town Meeting(annual or special) may adopt, reject, or amend any such proposed amendment. 10.54 Failure to Adopt If the Town meeting falls to vote t � O adopt airy propose(] Bylaw amendment within six (6) months orntl)s after the hearing described heretofore, no action shall be taken thereon until after a subsequent public heaving is held with notice and report as heretofore provided. 10.5.5 Repetitive Petitions 132 I( any proposed Bylaw arncndrnent thereto is acted upon unfavorably by the Town Meeting (annual of Special), It shall not be acted upon again fora period of two (2) years Goln the date of the unfavorabl action unless the Planning Board recommends in favor of the petition in the report. 10.56 Procedural Defects 111 accordalnce with Chapter 40%1, no claim or invalidity of this Bylaw or any amendment to this Bylaw arisu1g out of a possible defect in the procedure of adoption or amendment shall be made in any legal - -- proceeding and no state, regional, county, or municipal officer shall refuse, deny, or revoke any permit,__._ approval, or certificate because of any such claim of invalidity unless such claim is made within one hundred twenty (120) days after the adoption of the Bylaw or amendment. Notice specifying the court, parties, invalidity claim, and date of filing is filed together with a copy of the petition, with the `Town Clerk within seven(7) days after commencement of the action. 10.57 Effect of Subsequent Amendments In the case of amendments to this Bylaw or changes in the districts or the boundaries subsequent to the date this Bylaw becomes effective, the right to continue the use or maintenance of any building, structure, or premises which was lawful when such arnendment or change, except as provided by statute, specifically:. that construction or operations under a building pens it or Special Permit shall conform to any subsequent amendment unless the use or construction is commenced within a period of not less than six(6) months after the issuance of tine permit, (tine date of issuance shall be considered to be the date on which the building pernut was issued or in the case of a Special Permit, the date on which the Planning Board voted final action) and in cases involving construction unless such construction is contained through completion as continuously and expeditiously as is reasonable. 10.6 Conflict of Laws lrr general, this Bylaw is supplementary to other North Andover Bylaws affecting the use, height, area, and location of buildings and structures and tine use of premises. Where this Bylaw imposes a greater restriction upon the use, height, area, and location of buildings and structures and tine use of premises Mian is unposed by other Bylaws, the provisions of this Bylaw shall control. 10.7 Validity The invalidity of ally section or provision of this Bylaw shall not invalidate any other section provision thereof 10.8 Repetitive Petitions 133 When 1) the Planning Board denies an application for a Spccial Permit; or 2) the Board of Appeals denies a petition or a variance, no application on the sante matter may be Beard and acted favorably upon Cor a two (2) year period unless the following conditions are met: In the case of l) above, four (4) of the five (5) members of the Planning Board find that there are specific rind material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the records of it proceedings, and only after a public hearing at wlicli such consent will be considered and after notice is given to the parties in interest. In the case of 2) above, the Zoning Board of Appeals may not act favorably upolLa-petition which has been previously denies within a two (2) year period of time unless four (4) of the five (5) inembers of the 'Zoning Board of Appeals find that there are specific and material changes in the conditions upon which the clrailges in the records of its proceedings and only after a public hearing, held by the Pla mitig Board, at which consent to allow the petitioner to re-petition the Zoning Board of Appeals will be considered and after notice is given to parties in interest and only with four,(4) of the five (5) members of the Planning Board voting to grant consent. 10.9 Withdrawal Without Prejudice Any petition for a variance which has been transmitted to the Zoning Board of Appeals or any application for a Special Permit which has been transmitted to the Planning Board.may be withdrawn, without prejudice, by the petitioner prior to the publication of notice of a public-hearing thereon, but thereafter be withdrawn without prejudice orrly with approval (majority vote) of the Zomig Board of Appeals or Planning Board respectively. SECTION 11 PLANNED DEVELOPMEN I'DISTRICT 11.1 Jurisdiction The Planning Board may'grwit a Special Permit for construction of a PDD in the following district: I-S. The Special Permit shall conform to this Bylaw and to G.L. Chapter 40A, Section 9, and to regulations which the Planning Board shall adopt for carrying out its duties llereuttder. Except its set out hereunder , or in the Maiming Board's regulations, or in a specific pennit granted hereunder, the provisions of the Zoning Bylaw shall continue to govern. 11.2 Purpose The purpose of the PDD District is to provide for a mixture of land usage at designated locations at greater density and intensity than would normally be allowed provided that said land usage: 1. Does not detract IL-om the livability and aesthetic qualities of tine environment. 134 MORRIS, ROGERS & PHILLIPS ATTORNEYS AT LAW EDWARD F. MORRIS** 10 HIGH STREET NEW HAMPSHIRE OFFICE STEPHEN H. ROGERS* PO BOX 1962 PETER C. PHILLIPS— ANDOVER,MASSACHUSETTS 01810 400 LAFAYETTE ROAD PO BOX 804 FRANCIS M. FUNARO** TELEPHONE 978/475-4141 HAMPTON, NH 03843-804 M. PAUL IANNUCCILLO* FACSIMILE 978/475-7479 rrAdmitted to practice in Mass.&NH TELEPHONE 603/929-1700 r Admitted to practice in Mass. FACSIMILE 6031929-5049 July 24, 1998 BY HAND = o o..i Joyce Bradshaw Town Clerk Town of North Andover J G' Town Hall } 120 Main Street North Andover, MA 01845 RE: Donald Pearson v. Zoning Board of Appeals Town of North Andover Dear Ms. Bradshaw: Please accept this letter as notice of an amended complaint filed on July 15, 1998 with the Land Court Department of the Trial Court of the Commonwealth pursuant to Massachusetts General Laws, Chapter 40A, Section 17, and Massachusetts General Laws, Chapter 240, Section 14A. I enclose a copy of the Complaint as filed. Please acknowledge receipt by dating and signing one copy of this letter and returning it to this office. I have enclosed a stamped, self-addressed envelope for your convenience. Thank you for your anticipated cooperation. Very truly yours, MORRIS, ROGERS & PHILLIPS Stephen H. Rogers SHR/bib Enclosure cc: Donald Pearson s COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. Land Court Misc. Case No. 248606 DONALD PEARSON, Plaintiff ) (First Amended) V. ) Complaint TOWN OF NORTH ANDOVER, ) ZONING BOARD OF APPEALS TOWN OF NORTH ANDOVER ) and WILLIAM SULLIVAN, ) WALTER SOULE, RAYMOND ) VIVENZIO, ROBERT FORD AND ) EF, z JOHN PALLONE AS MEMBERS OF TIIE NORTH ANDOVER ZONING BOARD OF APPEALS AND SCOTT KARPINSKI, ) "' ELLEN McINTYRE AND ) =4 GEORGE EARLEY, AS ) ASSOCIATE MEMBERS OF ) THE NORTH ANDOVER ) ZONING BOARD OF APPEALS, ) Defendants ) NATURE OF CASE 1. This is an appeal under Massachusetts General Laws c. 40A, section 17, from a decision by the Defendant, Zoning Board of Appeals of the Town of North Andover, filed with the Town Clerk of North Andover on May 27, 1998. A certified copy of the Board's decision is attached hereto as Exhibit A. This is also a complaint under Massachusetts General Laws c. 240, sec. 14A. The Court's jurisdiction over this action derives from G.L. c. 40A, sec. 17, G.L. c. 185, secs. 101/2) and l(k), G.L. c. 240, sec. 14A and G.L. c. 231 A, sec. 1. PARTIES 2. Donald Pearson resides at 1030 Johnson Street, North Andover, Essex County, Massachusetts, and owns the property located at 521 Salem Street, North Andover, Essex County, Massachusetts. 3. William Sullivan, Walter Soule, Raymond Vivenzio, Robert Ford and John Pallone are Members of the North Andover Zoning Board of Appeals, and Scott Karpinski, Ellen McIntyre and George Earley are Associate Members of the North Andover Zoning Board of Appeals, and are sued in their official capacity. They reside, respectively, at: William Sullivan 405 Salem Street North Andover, MA 01845 Walter Soule 70 Raleigh Tavern Road North Andover, MA 01845 Raymond Vivenzio 11 Appledore Lane North Andover, MA 01845 Robert Ford 89 Bear Hill Road North Andover, MA 01845 John Pallone 67 Vest Way North Andover, MA 01845 Scott Karpinski 691 Forest Street North Andover, MA 01845 Ellen McIntyre 23 Tanglewood Lane North Andover, MA 01845 George Earley 125 Lyma6 Road North Andover, MA 01845 4. The Town of North Andover (the "Town") is a municipal corporation located in Essex County, Massachusetts. 1. APPEAL PURSUANT TO G.L. c. 40A see. 17 I FACTS 5. The Plaintiff, Donald Pearson, desired to purchase a two-family home in the Town of North Andover, Essex County, Massachusetts, as investment property. On November 21, 1997, the Plaintiff purchased the property located at 521 Salem Street, North Andover, after being assured by both his realtor and the Town of North Andover Assessor's office that the home on the property was an existing i two-family home. All tax records at the Assessor's office reveal that the home at 521 Salem Street, North Andover has been classified as a two-family home since 1936. 6. On or about December 5, 1997, the Plaintiff applied to the Town of North Andover for a building permit. He planned on renovating the back of the home and adding approximately 120 square feet to its footprint. On December 12, 1997, the Plaintiff received a Permit to Build from the Town of North Andover. 7. Relying on the Permit to Build, Mr. Pearson purchased materials and commenced substantial work on the house, which included laying a foundation for the 120 square foot extension. 8. On or about December 20, 1997, the Building Inspector for the Town of North Andover called to inform the Plaintiff that work on the property would have to stop. The Building Inspector stated that the building permit was given in error, because he did not realize that the structure was an existing two-family home. Since the home was now sitting in an R-3 District, which allows for only one- family dwellings, the Plaintiff would have to go before the North Andover Zoning Board of Appeals in order to request a special permit for the extension and alteration of a preexisting, non-conforming structure. 9. The Plaintiff stopped working on the property, and hired a surveyor to start field work and to assemble the necessary plans required for the special permit application. 10. The surveyor finished approximately three quarters of the work when the Building Inspector for the Town of North Andover called the Plaintiff on or about January 7, 1998. He told the Plaintiff that, after considering the Plaintiff's situation, he felt that Massachusetts General Laws c. 40A, sec. 6 exempted the Plaintiff from having to apply to the North Andover Zoning Board of Appeals for a special permit. He then gave the Plaintiff permission to proceed with his work.at 521 Salem Street. 11. The Plaintiff requested that the surveyor stop his work, and bill him for the time he had already spent on this particular job. Once again, the Plaintiff resumed work on the property. At this point, the Plaintiff estimates that he spent approximately $15,000 on labor and materials, relying on the validity of the original building permit and the Building Inspector's subsequent verbal authorization to continue work at the site. 12. On January 16, 1998, the Plaintiff received a letter from the Zoning Enforcement Officer for the Town of North Andover. The letter stated that the Plaintiff was to discontinue work on the site. More specifically, it stated "In accordance with c. 40A, sec. 6 you are conducting an alteration, extension and structural change to a preexisting, non-conforming use. Such activity requires that the Zoning Board determine that the extension or alteration is not substantially more detrimewal than the existing time-cof for»>ing use." 13. On January 21, 1998, the Plaintiff applied for a special permit under Section 9 of the North Andover Bylaw. Paragraph 9.1 provides "Preexisting non-conforming structures or uses, however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood." Paragraph 9.2 of the Bylaw provides that "A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: • Such change shall be approved by a special permit or otherwise by the Board of Appeals. • Such change shall be permitted only upon the same lot occupied by the non- conforming use on the date that it became non-conforming. • Any increase in volume, area or extent of the non-conforming use shall not exceed an aggregate of more than twenty-five percent (25%) of the original use. • No change shall be permitted which tends to lengthen the economic life of the non-conforming use longer than a period reasonable for the amortization of the initial investment. 14. Following three public hearings on February 10, 1998, March 10, 1998 and April 14, 1998, the North Andover Zoning Board of Appeals entered a written decision dated May 27, 1998 denying the Plaintiff's application for a special permit under Section 9 of the Bylaw. A copy of the decision was filed with the North Andover Town Clerk on May 27, 1998. The decision by the North Andover Zoning Board of Appeals is based not on the merits of the Plaintiff's case, but rather"on the grounds that there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraphs 9.1 & 9.2 of the Zoning Bylaw." COUNT ONE (Relief under G.L. Chapter 40A, Sec. 17) 15. The Plaintiff incorporates the allegations set forth in paragraphs 1-14 as if set forth here at length. 16. The Plaintiff is aggrieved by the decision of the North Andover Zoning Board of Appeals. The denial of the Plaintiff's application for a special permit exceeds the authority of the Board of Appeals, was arbitrary, unreasonable and an abuse of discretion. The Plaintiff appeals the Board's decision, stating as his reasons: A. the Plaintiff has met all the criteria required by Section 9 of the North Andover'Bylaw for the granting of a special permit. B. the decision of the North Andover Zoning Board of Appeals that "...there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraphs 9.1 & 9.2 of the Zoning Bylaw" is based on a legal error. WHEREFORE, Donald Pearson prays that the Court: a) enter an order annulling the May 27, 1998 decision of the North Andover Zoning Board of Appeals denying his application for a special permit; b) enter an order that the North Andover Zoning Board of Appeals issue a special permit to Donald Pearson in accordance with his application; c) award him the costs of this action, including reasonable attorneys' fees; and d) grant him such further relief as the Court deems just and equitable. U. RELIEF UNDER G.L. c. 240 sec 14A ALLEGATIONS 17. Plaintiff purchased the property located at 521 Salem Street, North Andover, Massachusetts (the "Property") on November 21, 1997. The Property contains approximately 25,000 square feet, and is improved with a two-story, 4,816 square foot home (the "Home"). The Home was represented to the Plaintiff as a lawful two-family home by the Town's Assessor's office. All tax records indicate that the home has been classified as a two-family home from 1936 through 1997. 18. From 1936 through 1989, the Home sat on a lot which contained 126,939 square feet. 19. In 1989, the owner of the lot decided to create a subdivision known as the "English Circle Subdivision," which was approved by the Town on September 21, 1989. A copy of the approval is attached hereto as Exhibit B. He created 4 lots, individually known as Lot 1, Lot 2,,Lot 3 and Lot "A." New houses were constructed on Lots 1, 2 and 3. The Home, however, remained unchanged and was situated on Lot "A." Consequently, Lot "A" comprises the Property. 20. From 1936 through 1972, the Property was situated in a Residential District which permitted two-family homes. In 1972, the Town reclassified its Zoning Districts, and as a consequence, the Property was included in an R-3 District. Under the Town's Zoning By-law ("Zoning Bylaw") two-family homes are not permitted in an R-3 District. Relevant provisions of the Zoning By-law are attached as Exhibit C. 21. From 1936 through 1997, the Home was used as a two-family home. Subsequent to the zoning change in 1972, the Home's two-family status was protected as a pre- existing non-conforming use. All evidence suggests that the two-family use had never been abandoned or changed during this entire period. 22. After Plaintiff purchased the Property, he planned to make several improvements to enhance the use of the Home as a two-family structure. He desired to add 120 square feet to the footprint of the Home, and add a living room above the existing garage which would measure 15 x 26 (390 square feet). 23. On January 21, 1998, the Plaintiff applied for a special permit under Section 9 of the Zoning Bylaw. Paragraph 9.1 provides "Preexisting non-conforming structures or uses, however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood." Paragraph 9.2 of the Bylaw provides that "A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: • Such change shall be approved by a special permit or otherwise by the Board of Appeals. • Such change shall be permitted only upon the same lot occupied by the non- conforming use on the date that it became non-conforming, • Any increase in volume, area or extent of the non-conforming use shall not exceed an aggregate of more than twenty-five percent (25%) of the original IIS use. • No change shall be permitted which tends to lengthen the economic life of the non-conforming use longer than a period reasonable for the amortization of the initial investment. 24. Following three public hearings on February 10, 1998, March 10, 1998 and April 147 1998, the North Andover Zoning Board of Appeals (the Board) entered a written decision dated May 27, 1998 denying the Plaintiff's application for a special permit under Section 9 of the Zoning By-law. The decision of the Board is based not on the merits of the Plaintiff's case, but rather"on the grounds that there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraphs 9.1 and 9.2 of the Zoning By-law." The Board expressed concern that the Home may have lost its pre-existing non- conforming protection when the lot was subdivided in 1989. If the Home did indeed lose its protection, then the Plaintiff cannot lawfully use it as a two-family dwelling. If the Home did not lose its pre-existing non-conforming status, it appears that Plaintiff would obtain the special permit as of right, based on the fact that the Board heard evidence concerning the Property's conformance with Section 9 of the Zoning Bylaw, and evidence that the two-family use had not been abandoned or changed, but based its written decision solely on the question of whether or not the home continues to be protected as a pre-existing non-conforming structure. COUNT TWO (Declaratory Relief Under G.L. c. 240, sec. 14A and G.L. c. 23 l A) 25. The Plaintiff incorporates the allegations contained in paragraphs 17-24 as if set forth here at length. 26. Under current Massachusetts law, the reduction of the lot frorn 126,939 square feet to 25,000 square feet in 1989 did not affect the Home's status as a lawful, pre- existing non-conforming structure. Furthermore, Plaintiff's proposed renovation and addition to the Home comply in all respects with the requirements for a special permit laid out in Section 9, paragraphs 9.1 and 9.2 of the Zoning Bylaw. 27. An actual controversy exists between Plaintiff and the Town concerning the question of whether the Home continues to be protected as a lawful, pre-existing non- conformingstructure, and the extent to which the Zoning Bylaw affects the Property and Plaintiff's proposed use thereof. it PRAYER FOR RELIEF Plaintiff Prays that the Court enter judgment as follows: (i) under Count Two, declaring that the reduction of the lot from 126,939 square feet to 25,000 square feet in 1989 did not affect the Home's status as a lawful, pre-existing non-conforming structure. Furthermore, declaring that Plaintiffs proposed renovation and addition to the Home comply in all respects with the requirements for a special permit laid out in Section 9, paragraphs 9.1 and 9.2 of the Zoning law. i g B Y Donald Pearson, By his attorney, Stephen H. Rogers BBO No. 628557 MORRIS, ROGERS & PHILLIPS 10 High Street Andover, Massachusetts 0 18 10 (978) 475-4141 Dated: July 14, 1998 or HORTH 1 EXHIBIT A o — 4. F(E p J0YGE l; 1ti Z TOW! h.1 - NORTH / ht 'J. Trss,cws£` TOwrr1 Or NORTH Ari[DOvER ju MASSACHUSETTS BOARD OF APPEALS Any appeal shall be filed witllin.LQl_days atter the NOTICE OF DECISION date of filing of(his tdotice in the orrice of Ilie Town Property: 521 Salem St. Clerk NAME: Donald Pearson DATE: 5/27/98 ADDRESS: 521 Salem St. PETITION' 003-9t3 North Andover MA 01845 HEARING.- 2/10198,3/10/98, 4/14/98,5/19/98,5126/98 The Board of Appeals held a Special Meeting on Tuesday evening, 5:30 PM, May 26, 1998, in Town Hall, 120 Main St., in the Library conference room, upon the application of Donald Pearson, of 521 Salem St., North Andover, MA, requesting a Special Permit from the requirements of Section 9, Paragraph 9.1. & 9.2 of Table 2, of the Zoning Bylaw, for alteration or extension to a non-conforming structure in the R-3 Zoning District . The following members were present: Walter F. Soule, Robert Ford, Scott Karpinski, Ellen McIntyre. The notice was posted on the Town Hall bulletin board 48 hours in advance of the Special Meeting. Upon a motion made by Robert Ford, and seconded by Scott Karpinski, the Board voted to Deny the petition on the-grounds that there is insufficient evidence for the Board to make a decision as to whether the property is conforming, or non-conforming, under Section 9, Paragraph 9.1 & 9.2, of the Zoning Bylaw. Voting in favor of the denial was unanimous.- Walter F. Soule, Robert Ford, Scott Karpinski, Ellen McIntyre. BOARD OF APPEALS /decocts Walter F. Soule, acting Chairman Zoning Board of Appeals z. r� �� t•.�,' Exhibit Notice to APPLICANr/TOHN CLERK and Certification of Action of•1Planning Board on Definitive Subdivision Plan entitled: DEFINITIVESUaDIVISION PLAtl OF LAND IN NO. ANDOVER Mla DRAlJtJ FOR GEt4F L. ENGL I SI I I4 f IARVARD ST. E XTENS I Otd , WOQU RtJ , MA 'By: MERRIMACK ENGINEERING SERVICES INC. dated APRIL , 19 89 Rev.i.sed August, 1989'; September-, 1989 �F IF �F 1F 1F �F The North Andover Planning Board has voted to APPROVE said plan, subject to the following conditions: I. That the record owners of the subject land forthwith execute and record a "covenant running with the land", or otherwise provide security for the con— struction of ways and the installation of municipal services witilin said sub— division, all as provided by G.L. c. 41, S. 81—U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of this Board. 3. That, as required by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots too• as shown on said Plan without the prior consent of said Board of Health. -tel 4. Other conditions: DANIDL LONG SEE ATTACHED TOWN CLERK . 120 Main 8b-oct North Andover,MA 01846 In the event that no appeal shall have been taken from said approval wittdn twenty days from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. NORTH ANDOVE32 PLA1111Ii1; BOARD Dater September 21, 1989 By: George Perna, Jr. , Chairman FORM C APPLICATION FOR APPROVAL OF DEFINITIVE PLAN RAMI i.. 1.rFIy!5;10 `y Mn 5 4 19 69 To the Planning Board of the Town of North Andover: The undersigned, being the applicant as defined under Chapter 41, Section 61—L, for approval of a proposed subdivision shown on a plan entitled ENGLISH CIRCLE IN NORTH ANDOVER DRA!,IN FOR GENE L. ENGLISH by MERRIMACK ENGINEERING SERVICES INC. dated APRIL 1989 being land bounded as follows: 3.0+ ACRES BOUNDED BY SALEM STREET TO THE EAST AND LAND OF LAWRENCE J . AR.DITO TO THE NORTH ,~LAND OF ABBOTT ST. REALTY TRUST TO THE VEST, AND LAND OF JAMES G. & EDITH V. WINNING AND OF RICHARD B. & JEAN WINNING TO THE EAST, ALL OF NO. hereby submits said plan as a DEFINITIVE plan in accordance with the Rules and ANDOVER Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds, Book 13271 page 711 ; or Certificate 'of Title No. , Registration Book , page ; or Other: Said plan has(X) has not( ) evolved from a preliminary plan submitted to the Board of MARCH 31 , 19 87 and approved (with modifications) disapproved ( on NLAY 26 , 19 87 The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Board's Rules and Regulations. The undersigned hereby further covenants and agrees with the Town of North Andover, upon approval of said DEFINITIVE plan by the Board: 1. To install utilities in accordance with the rules and regulations of the Planning Board, the Public Works Department, the Highway Surveyor, the Board of Health, and all general as well as zoning by—laws of said Town, as are applicable to the installation of utilities within the limits of Kays and streets;' 2. To complete and construct the streets or Nays and other improvements shown thereon in accordance Vitt' Sections Iv and V of the Rules and Regulations of the Planning Board and the approved DEFINITIVE plan, profiles and cross sections of the same. Said plan, profiles, cross sections and construction specifications are specifically, by reference, incorporated herein and made a past of this application. This application and the covenants and agree— ments herein shall be binding upon all heirs, executors, administrators, successors, grantees of the whole or part of said land, and assigns of the undersigned; and 3• To complete the aforesaid installations and construction within two (2) Years from the date hereof. Received by Town Clerk: _ L Date: Signature of ApJAanGENE L. ENGLISH Time: 14 HARVARD STREET Signature: WOBURN, MA_ 01601 Address I ENGLISII CIRCLE, DEFINI'T'IVE SUBDIVISION CONDI`T'IONAL APPROVAL. (1) There shall be no driveways placed where stone bound monuments and/or catch basins are to be set. it shall be the developers responsibility to assure the proper placement of the driveways regardless of whether individual lots are sold. The Planning Board shall require any driveway to be moved at the owners expense if such driveway is at a catch basin or stone bound position . Certification by the Department of Public Works will be required prior to the issuance of a certificate of occupancy . ( 2 ) All drainage facilities including detention basins , shall be constructed and erosion controlled prior to any lot release. ( 3 ) An as-built plan and profile shall be submitted for review and approval prior to the final release of DPW bond money. A certified interim as-built verifying that all utilities have been installed in accordance with the plans and profile shall be submitted prior to the application of the binder coat of pavement. In addition, all required inspection and testing of water, sewer, and drainage facilities shall be completed prior to binder course paving . (4 ) All Planning Board order of conditions are to be placed upon • the recorded Definitive Plan, ( Cover Sheet ) prior to endorsement and filing with the IZegistry of Deeds . (5) Throughout all lands, tree cutting shall be kept to a minimum in order to minimize erosion and preserve the natural features of the site . Accordingly, the developer in conjunction with a registered arborist, shall submit a tree cutting and reforestation plan consistent with the provisions of Section 5 . 8 of the North Andover Zoning Bylaws ( The plan is for areas of substantial cutting and filling ) to be reviewed by the Planning Staff prior to the applicant receiving a permit to build on any lot within the subdivision. This Plan shall explicitly include specific trees to be retained. Also, the developer shall inform the Town Planner when significant tree cutting is to occur in order that the Planner may determine the need to be to be present. ( 6) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation . (7) Gas, Telephone , Cable and Electric utilities shall be installed as specified by the respective utility companies. (8) All catch basins shall be protected with hay bales to prevent siltation into the drain lines during road construction. (9) No open burning shall be done except as is permitted during burning season under the Fire Department regulations . ( 10) No underground fuel storage shall be installed except as may be required by Town Regulations . (11) Lot numbers shall be posted prior to any lot recieving a permit to build (12) Permanent house numbers will be posted on dwellings prior to occupancy. ( 13) All lots shall have residential fire sprinklers installed prior to the issuance of the Certificate of Occupancy, per order NAFD. ( 14 ) Prior to a Certificate of Occupancy being issued for any lot, that lot shall have received all necessary permits and approvals from the North Andover Board of Health. ( 15) Prior to construction, two stop signs shall be put in place. One shall be placed at the intersection of Bannan drive and Salem Street, the other shall be placed at the intersection of English Circle and Salem Street . Per order N.A. P. D. (16) Bonds, in an amount to be determined by the Planning Board, shall be posted to ensure construction and/or completion of sewers, roadways, site screening and other pertinent public amenities . These bonds shall be in the form of a Tri-Party Agreement. (17) The edge of pavement at the northwest intersection at Salem Street shall be constructed at a 35 ' radius . ( 18 ) Prior to the issuance of a certificate of occupancy on lot 2 , and final release of bond money, the applicant shall submit a topographic as built plan proving the surface runoff from the street enters the detention pond in overflow conditions . The Planning Board shall take a site visit to confirm compliance with this condition . (19) Prior to the release of any lot from the statutory covenant the developer shall submit approved d se tic pp system designs i ns t Y o the Planning Board and certify that the grading of said lot is in conformance with the Definitive Plan and drainage calculations , and that said lot does not create adverse flooding on an adjacent property. The following plans shall be deemed as part of this decision; Plans entitled: Subdivision plan ENGLISH CIRCLE in NORTH ANDOVER, Drawn for Gene L. English. Dated Sept. 1989 . Prepared by: Merrimack Engineering Services cc: Director of Public Works Board of Public works Highway Surveyor Building Inspector Board of Health Assessors Conservation Commission Police Chief Fire Chief Applicant Engineer File EXHIBIT C t.l District fisc Regiflations 1 d.l I General Pruvisir)ns I 1. In file Z.Uning (Iistr'Icts above.speclf ed, the fi)IIUWIiig designated buildings and alterations and extensions thereof anti buildings accessory tile,eto an(1 the IUIIUtvlrlg (leslgnated uses of lane{ buildings, or Dart thereof and uses accessory thereto are pernnitted. All other lauildings and uses are hereby expressly prohibited except uses which are silililar in character to the permitted 1 Uses shall be treated as rcquiring,a Special Permit (1985/26) i 2 When a lot111 011e OW11eCslrlp is sitrlate(l ill part In the Town of North Andover arl(I 1i1 part In all adjacent town or city, the provisions, rCgulatlolls and restrictions of this Bylaw shall be applied to that portion of such lot as lies in the Town of North Andover in the salve lllallller is if the entire lot were situated therein. 3. Wiled a zoning district boundary divides a lot of record on June 5, ,1972 in one Ownership, all the zoning regulations set fortll ill this Zoning Bylaw applying to the greater part by arca of such lot so divided may, by Special Permit, be deemed to apply and govern at and beyond such zoning district boundary, but only to all extent not more than one hundred (100) linear feet ill depth (at a right angle to such boundary) into the lesser part by area of-such lot so divided. 4. Accessory uses as defined herein, shall be on the sante lot with the building of the owner or Occupant, and shall be such as not to alter the character of the premises on which they are i located nor impair the neighborhood. Where manufacturing of any kind is allowed as an accessoryuse> it shall be restricted to such light manufacturing as is incidental to a permitted use and where the pj-o(luct is customarily sold oil tile )renllscs by the producer to the custonner. t 5. No private or public (1985/20) way gI Ing access to a btlildirlg or use or not permitted if, a < residential district shall be laid out or constructed so as to pass through a residential district. 4.12 Permitted Uses 4.121 Resilience 1 District Residence 2 District i Residence 3 District 1 Ont lankly dwelling, but not to exceed one dwelling on any one lot. i 2. Place of worsllip. 3. Rooming house, renting rooms for dwelling purposes or furnishing table board to not more than four (4) persons not rllenlbers of the family resident in a dwelling so used, vided th he no display or advertising on such dwelling or its lot other than a name e placelof-sig ndnotcre l o 27 exceed six (6) inches by (twenty-Cour (24) Inches in size, and rul-ther provided that no (Iwellin b shall be c,r c.c.tc 1 ( or altc,rcd � ' , l lu'1W'I} (or such use. ! l or use or it (swelling in any residential dlstl lCt or multi-farllily district for a home occupation the follow'ng conditions shall apply: a. Not more than a total of three (3) people nlay be employed in the home occupation, One of whom shall be the Ow'ler Of the Mollie occupation and residing ill said dwelling; b. The use is carried oil strictly within the principal.building; c. There shall be no exterior alterations, accessoi buildings,gs, or display which are not customary with residential buildings; 1 — d. Not more than twenty-five (25) percent of the exisbilg-gross floor area of die dwelling unit so used, 'lot to exceed one thousand(1000) square feet..is devoted to-'such use. In i connection tvith such use, there is to be kept no stock in trade, commodities or products which occupy space beyond these limits; C. There will be no display of goods or wares visible front the street; C The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of tine neighborhood due to the exterior appearance, emission of odor, gas, smoke, dust, noise, disturbance, or in any other way become l objectionable or detrimental to any residential use within the neighborhood; r 3 i g Any such building shall include no features of design not customary in buildings for residential use. .f i 5 !Zeal estate signs not to exceed twenty-Cour (24) inches by thirty-six (36) inches in size whicil 1 shall advertise only the rental, lease, or sale of the premises upon which they azeplaced. ' 6. a. agriculture, horticulture, floraculture, viticulture or silvaculture. (1986/100). 1�. On any lot of at least three (3) acres, the keeping of a total of not more than three (3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five (5), the keeping of orle additional animal or bird but not the keeping of any animals, birds or pets of persons 'lot resident on such lot. (1993/36) C. On Wry lot of at least five (5) acres, the keeping of aly number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud (arms, and poultry batteries. 20 d. The sale of products raised as a result of the above uses on the subject land. (1986/100). C. The sale of products of agricultui°e, hOF(ICUhllrC, f10racultUfe, viticulture or silviculture as well as accessory or customary items, by any person who is primarily engaged in any of the above activities. The operation must be on at least ten (10) contiguous acres used primarily for arry.of these activities. (1986/100). 7 Swimming pools in excess of two (2) feet deep shall be considered a structure and-permitted provided they are enclosed by a suitable wall or fence at least four (4) feet in height to be determined by the Building Inspector to prevent the entrarice of persons other than those residing at the pool location. Pools shall have a minimum tell (10) foot setback from side'and reu-lot lines and be located no nearer the street than the building line of the dwelling, except by Special Permit. 8. Museums. 9. a. Public and private non-profit educational facilities. (1986/17) ' ! b. 1'tivatc for profit educational facilities by Special Permit. (1986/17) -- 10. Public building and public service corporations (Special Permit required), but not including ti public works garages. Golf Course 12. Swimming vui/or tennis clubs shall be permitted with a Special 1'ernut. 13. Cemetery. 14. Nursing and convalescent borne - see dimensional requirements of Table 2 (Special Permit required). 15. Municipal recreational areas. 16. Any accessory use customarily incident to any of the above permitted uses, provided that such accessory use shall riot be injurious, noxious, or offensive to the neighborhood. 17. Family Suite - a separate dwelling unit within or attached to a dwelling for a member of a Household is allowable by Special Permit provided: I Z() 1 i i r a (Section 8.8 created and approved May 6, 1996 Annual Town Meeting, Article 22) f SECTION 9 NON-CONhOlzmING USES 9.1 Noir-Coirfornrirrg Uses i Any non-conforming building, structure, or use as defined herein, which lawfully existed at the time of passage of the applicable provision of this or any prior by Law or any-.amendment thereto may be continued subject to the provisions of this Bylaw. Any lawfully non-conforming building or• structure I and any lawfully norl-conforming use of building or land may be continued in the same kind and r ' — marunec and to tlue sank extent as at the time it became lawfully non-conformurg, but such building or use shall not at any time be changed, extended or enlarged except for a purpose pennitted ui the zoning district in which such building or use is situated, or except as may be permitted by a Special Permit or otherwise by the North Andover Board of Appeals. Pre-existing non-confonning structures or uses, j however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a fining by the Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing non- conforming use to the neighborhood. W11cII a pre-existing structure has been made non-conforming due to changes in the e lot size required by this bylaw, such structure may be extended or altered based ori a finding by the Zoning Enforcement Officer that such structure aper the change meets all current zoning requirements except for lot size. (1995/43). 9.2 Alteration or Extension A use or structure housing a use, which does not contorm to tlue regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: 1. Such change shall be approved by a Special Permit or otherwise by the Board of Appeals. 2. Such change shall be permitted only upon the same lot occupied by the non-conforming use on the date that it became tion-corufonming. 3. Any increase in volume, area, or extent of the non conforming use shall not exceed all aggregate of more than twenty five percent(25%)of the original use. 11- No change shall bepeanitted which tends to lengthen the economic life of the non-conforming longer than a period reasonable for the amortization of the initial investment. 9.3 Building After Catastrophe ® 125 li Any iion-corlforflllrlg bulldlilg or structure destroyed or damaged by fire, flood, lighting, wind or othel-wise to the extent of sixty-five percent (65%) or more of its reproduction cost at the time of such c1t1111a9C s11a11 not be rebuilt, repaired, reconstructed ilor altered except fo[- a put poSC permitted lir that zoning district in whicli such building is located, or except b I as may e er-initted b � Otherwise by the Board of Appeals actirig under G.L. Chapter 40A. p Y a Special I errnrt or 9.4 Abandonment If any lawfully roll-coriforriiing building or use of a building or land be at any time discontinued for a period of two years or more, or if such use or building be changed to one confoniiing with the Nortli Andover Zoning Bylaw in the district ill which it is located, it shall thereafter continue to conform. SECTION 10 ADMINISTRATION 10.1. Enforcement The North Andover Zoning Bylaw shall be enforced by the North Andover Building Lispector. The Building Inspector, upon being informed in writing of a possible violation of this Bylaw or on his own : initiative, shall make or cause to be made all investigation of facts and an inspection of the premises where such violation may exist. If the Building Inspector is so informed in writing and declines to act, Ile shall within fourteen (14) days of his receipt of such information give to his informant, ill writing, his reasons for refraining from taking any action. The Building Inspector, on evidence of any violation after investigation and inspection, shall give written notice of such violation to the owner and to the occupant of such premises, acid the Building Inspector sliall demand in such notice that such violation be abated within such reasonable time as may be given by snail addressed to the owner at the address appealing for him on the most recent real estate tax records of North Andover, and to the occupant at the address of the premises of such seeming violation. If, alley such notice and demand, such violation has not been abated within the tinie specified, the Building Lispector or the Selectmen sha11 institute appropriate action or proceedings iri the name of the "Town of North Andover to prevent, correct, restrain, or abate any violation of this Bylaw. 10.11 Building I'erniit No building shall be erected, altered, moved, razed or added Win North Andover without a written permit issued by the Building Inspector. Such permits sliall be applied for in writing to the Building - IllsPector. 'The Building Inspector shall not issue any such permit unless the plans for the building and the intended use thereof in all respects fulfill the provisions of the North Andover Zoning Bylaw (and other applicable Town Bylaws) except as may have been specifically permitted otherwise by action of 1.26 ;i r . 1 the North Andover Board of Appeals, provided a written copy opy of the terms governing any exception so Pei be attached to the application for a building perniit aril to the building permit issued the One copy of each such permit, as issued, including any conditions or exceptions attached thereto, shall he kept on file in the Oitice of the Building Inspector. In addition to the information required above, a plot plan shall indicate requirement of this Bylaw, including but not limited to oft-street rking,screiening and ris for lfencirghysical Upon granting a perrrrit the Building Inspector shall cause a copy to be posted on the property to which it relates in a conspicuous place. 10.12 Ccr-tific,1te of Use and Occulrancy No building hereafter erected, enlarged, extended , or altered shall be used or occupied in whole or irr Part until a certificate of use and occupancy has been issued by the Building Inspector. No building or laird changed from, one use to another, in whole or in part, shall be occupied or used until a certificate of use and occupancy has been issued by the Building Inspector. This certificate shall certify compliance with the provisions of this Bylaw and of all applicable codes (1974). _ 10.13 Penalty for Violation l IWhoever continues to violate tine provisions of this Bylaw atter written notice from the Building Inspector demanding an abatement of a zoning violation within a reasonable time, shall be subject to a d f rle of three hundred dollars (5300). Each day that such violation continues sliall be considered a separate offense. (1986/15) 3 i 10.2 I3oarrl ofAppcals 10.21 Appointment and Organization i There shall be a Board of Appeals of five (5) members and not more than three (3) Associate { Members, which shy all,have and exercise all the powers provided under G.L. Chapter 40A,aiid wlucli sha11 bear and decide all matters specifically referred to the Board of Appeals by the North Andover Zoning Bylaw and other matters referred to such Board by statute. The Board of Appeals memo and Associate Members shall be appointed by the Selectmen in the manner provided b PPerg ' p y statute. Within two (2) weeks of the beginning of each calendar year, the Zoning Board of Appeals shall organize and elect a Chairman aril Clerk from within its own membership. Tire length of terms of the members of the Board of Appeals shall-be such that the term of one member expires each year. A member of the Board of Appeals may be removed for cause by the Board of Selectmen only after written charges have been 6 made and 1 public blrc hear-rng has been held. 10.22 Powers of the 13oard of A1)1)e.1 is reals 46 127 `I'llc Board ot'Appcals shall have the following powers: 1. To hear and decide actlolls and appeals as provided herein 2. To hear and decide applications fur appropriate Special Permits and variances which lite Board of Appeals is required to act upon under this Bylaw. 10.3 Special Permit The Special Permit Granting Authority shall adopt rules and regulations for the conduct of its business relative to the issuance of Special Permits. A copy of these rules and regulations shall be filed with the Town Clerk. The rules and regulations shall contain, as a rrlinimurn, a description of the size, form, contents, style arid number of copies arld number of plans and specifications to be submitted and the i procedures for submission and approval of Special permits. The Special Permit Granting Authority may grant a Special permit within the framework of this Bylaw only after holding a.public hearing which must be field within sixty-five (65) days after the applicant fries for such Special Permit. The sixty-five (65) days period shall be deemed to have begun with the l` filing of the application with the Special Permit Granting Authority. The applicant is responsible for ? transmitting a copy of the application for a Special Permit within twenty-four four(24) hours of the filing of the application with the Planning Board or the Board of Selectmen arid to the Town Clerk. If an application for a Special Permit is to be filed with the Board of Appeal, the applicant shall file the application with the Town Clerk, who shall transmit the application to the Board of Appeals within twenty-four(24) hours. 10.31 Conditions for Al)proval of Spcci.11 Permit 1. The Special Permit Granting Authority shall not approve any such application for a Special permit unless it finds that in its judgment all the following conditions are met: a. The specific site is an appropriate location for such a use, structure or condition; b. The use as developed will 'lot adversely affect the neighborhood; C. There will be no nuisance or serious hazard to vehicles or pedestrians; d. Adequate and appropriate facilities will be provided for the proper operation of the proposed use; e. The Special permit Granting Authority shall not grant any Special Permit unless they make a specific finding that the use is in harmony with the general purpose and intent of this Bylaw. 1.20 i 2. In approving a Special I'ernuit, tl►e Special Permit Granting Authority' may attach sucl uconditions ad sa`eguards as are deemed necessary to protect tt►e neighborhood such as, but not li►nited to, tlue following: a. Requirements of Dont, side, or rear yards greater than the minimum required by this 13ylaw. b, Requirements of screening parking areas or other pau'ts of the premises from adjoining premises or from the street, by walls, fences, planting, or other devices as specified by the Special PermiLGranting Authority. C. Modification of the exterior features or appearances of the structure; d. Limitation of size, number of occupants, method or time of operation, or extent of facilities; e. Regulation of number, design and location of access drives or other traffic features. 3. Special Pernit granted under the provisions contained herein shall be deemed to have lapsed after a two (2) year period from the date on which the Special permit was granted unless substantial use or construction has conunenced. If tyre applicant can show good cause why substantial use or construction has not commenced within the two (2) year period, the Special Permit Granting Authority, as its discretion, may extend the Special Permit for an additional one (1) year period. Included within the two (2) year period stated above, is the time required to pursue or wait tlue determination of an appeal from the provisions of the Bylaw. }. The Special Perrot Granting Authority may, within the guidelines for Special Permits contained luerein, allow accessory uses whether located on the same lot as the principal use or not, wherever necessary Ili connection with scientific research, scientific. development or related production provided that the Special Permit Granting Authority finds that the proposed accessory use does not substantially derogate from the public good. 5. Within (90) days following the date of the public hearing, the Special Pernit Granting Authority shall take final action in the matter in order- to issue a Special Permit provided for in this Zoning Bylaw. There shall be at least four (4) of the five (5) members of the Granting Authority voting in favor of issuing the Special Permit. 6. A Special Permit granted under the provisions of this Bylaw shall not take effect until: a. The Town Clerk certifies ori a copy of the decision that twenty (20) days have elapsed Without filing of an appeal or that any appeal tiled has been dismissed or denied; 129 h. The certified decision has been recorded at the o IZcwner's expense in the Issex County gistry of Deed's indexed in the grantor index under , 1> rdcr the name of the record owner, I and noted on the ow er' s Certificate of"I'itle c. aSpecial Igermit involves regi shall stered property, the decision, at the owner's expense ll also be filed with the Recorder of the Land Court. 10.32 I'cnrperrary Per•nrit The Board oCAppeals may grant a temporary Special Permit for use or occupancy permit for a period Of trot more than one (1) year at a time, subject to a single renewal. Such permits shall be subject to conditions imposed by the Board related to safeguarding tine character of the district affected and shall be processed in accordance with the procedures provided herein for the granting of Special Permits. 10.4 Variances and Appeals '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, slope, or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially ® derogating from the intent or purpose of tlus Bylaw. Additionally, an appeal may betaken to the Zoning Board of Appeals as provided herein by a person aggrieved by reason of Jus inability to obtain a' perinit or enforcement action from tine Building Inspector, by the Merrimack Valley Planning Commission, or by any person including an officer or Board of the Town of North Andover, or an abutting city or town, aggrieved by an order or decision of the Building Inspector or other administrative officials in violation of any provision of this Bylaw. Any petition for an appeal above must be taken within thirty (30) days of the date of the order or decision that is being appealed by filing a notice of appeal, specifying the grounds thereof witli the Town Clerk, who shall forthwith transmit copies of the appeal to such officer or Board, whose order or decision is being appealed, and to file Zoning Board of Appeals. Such officer or Board shall forthwith transmit to the Zoning Board of Appeals all documents and paper constituting the records of the case in which the appeal is taken. 1 No petition for a variance or appeals shall be granted until a public hearing is held on the matter by the Zoning Board of Appeals within sixty-five-(65) days after the Zoning Board of Appeals receives the petition from the Town Clerk. 2. The Zoning Board of Appeals must make its decision on a petition for ' W101111 seventy-five (75) days after the date of the petition is filed with the Town Clerk p In 130 1:aclr warrant article to change the zoning reap shall explicitly state the nature, extent and location the nrap changeP proposed and shall be accorn anied by: of I. Thrce blackline prints of a diagram to scale showing and stating clearly the dimensions in feet ofllic land arcs proposed to be changed as to zone; 2. Also a sketch or other explicit identification of the location of such land in relation to the majority of the rest of the town. 10.52 Pubic Ilcarinb Within sixty-five (65) days alter receipt of a proposed amendment fi-orrr the Board of Selectmen, or within sixty five(65) days ager the receipt of an application for a Special Pennit, the Planning Board or Zoning Board of Appeals, as the case may be, shall hold a public lrearin�, notice of which shall be published in a newspaper of general circulation covering the town once in each of two-(2) successive weeks. The first publication may not be less than fourteen (14) days before the day of the hearing, (the date of the public hearing shall not be counted in the fourteen (14) days). Additionally, notification of the public hearing shalt be posed in a conspicuous place in the North Andover Town Hall for a period of riot less than fourteen (I4) days before the date of-the hearing. Further, notification of the public bearing shall be sent to the Massachusetts Department of Community Affairs, the Merrimack Valley Planning Commission and Planning Board of all abutting..cities and towns prior to public hearing date. Notice of the public hearing shall include: a) the time and place of bearing; b) the subject matter, c) the place where texts and maps may be inspected. 10.53 Report Iry Planning 130',l_(1 No vote to adopt the proposed anrerndnnent shall be taken by the "Town Meeting.until the report with recommendations by the Planning Board has been submitted to the Town Meeting or until twenty-one (21) days after said hearing has elapsed without submission of said reports or submissions. After such notice, hearing, and report, or after twenty-one (2 1) days shall have elapsed after such hearing, without submission of such report, the Town Meeting(annual or special)may adopt, reject, or amend any such proposed amendment. 10.54 Failure to Adopt If the "Town Meeting fails to vote to adopt any proposed Bylaw amendment within six (6) months after the hearing described heretofore, no action shall be taken thereon until after a subsequent public bearing is held with notice and re)ort a l s heretofore provided. f 10.55 Repetitive Petitions 132 IfanY propoed Bylaw ar ncdcnt the rcto - Is acted upon unfavorably by the Town Meeting (arunru<t! sr special), it shall not be acted upon again again fora period of'two (2) years fi-otn the date of the unfavorabic action unless the planning Board reconurnends in favor of the petition in the report. 10.56 I'rocerlural Defects Jn accordwnce with Chapter 40A, no claim or invalidity of this Bylaw or any amendment to this Bylaw arising out of a possible defect in the procedure of adoption or amendment shall be made in any ef;al - -- proceeding and no state, regional, county, or municipal officer shall refuse, deny, or revoke any permit,___-. approval or certificate because of any such claim of invalidity unless such claim is made within one hundred twenty (120) days after the adoption of the Bylaw or amendment. Notice specifying the court, parties, invalidity claim, and date of filing is filed together with a copy of the petition, with tine `Town Clerk within seven(7)days after commencement of the action. 10.57 Effect of Subsequent Amenrinrents III the case of amendments to this Bylaw or changes in the districts or the boundaries subsequent to the date this Bylaw becomes effective, the right to continue the use or maintenance of arty building, stricture, or premises which was lawful when such amendment or change, except as provided'by statute specifically: that construction or operations under a building permit or Special Pernut sliall conform to any subsequent annendtnent unless the use or construction is commenced within a period of not less thall sir (6) months after the issuance of the pennit, (the date of issuance shall be considered to be the date on winich the building pennit was issued or in the case of a Special Permit, the date on which the Planniing Board voted final action) and in cases involving construction unless such constriction is contained through completion as continuously and expeditiously as is reasonable. 10.6 Conflict of Laws In general, oris Bylaw is supp(enicntary to other North Andover Bylaws affecting the use, height, ares and location of buildings and structures and tine use of premises. Where this Bylaw imposes a greater restriction upon the use, height, area, and location of buildings and structures and the use of premises than is unposed by other Bylaws, the provisions of this Bylaw shall control. 10.7 Validity The invalidity oCany section or provision of'this Bylaw shall not Invalidate any other section )Fovision thereof 1 10.8 Repetitive Petitions 133 �Vhcn 1) file Planning Board denies an application f�)1- a Spccial Permit; or 2) the Board o{�Appeals (ICnles a iMiti )il or a variance, no application plication oil the sante Illatter may L ( 1} be hcarxi and acted favorably upon (or a two (2) year period unless the following conditions are nlet: In the case of 1) above, four (4)'of the five (5) incmbers of the Planning Board find that there are specific and material changes in the conditions upon which the previous unfavorable action was based, and describes suc11 changes in the records of it proceedings, and only after a public hearing at wlucll such consent will be considered and atter notice is given to the parties ill interest. lu the case of 2) above, the Zoning Board of Appeals may not act favorably upolLa-petition which has been previously denies within a two (2) year period of time unless four (4) of the five (5) members of the Zoning Board of Appeals find that there are specific and material changes in the conditions upon which the cllallges in the records of its proceedings and only atler a public hearing, field by the Planning Board, at which consent to allow the petitionel- to re-petition the Zoning Board of Appeals will be considered and alter notice is given to parties in interest and only with four,(4) of the five (5) members _ of tllc Planning Board voting to grant consent. 10.9 Withdi-Mval Without Prejudice Any petition for a variance which has been transmitted to the Zoning Board of Appeals or any application for a Special Permit which has been transmitted to the Planning Board may be withdrawn, Wit-1101-It prejudice, by the petitioner prior to the publication of notice of a public hearing thereon, but thereafter be withdrawn without prejudice only Wit]] approval (majority vote) of the Zoning Board of Appeals or Planning Board respectively. SIf'CTION l I PLANNED DEVELOPMENT DISTIZIC•I' 1 LI Jurisdiction The Plani)ing Board may'grant a Special Permit for construction of a PDD in the following district: I-S. The Special Permit shall conform to this Bylaw and to G.L. Chapter 40A, Section 9, and to regulations which the Planning Board shall adopt for carrying out its (lulics hereunder. Except as set out hereunder , or in the Plalliling Board's regulations, or in a specific pennit granted hereunder, the provisions of the Zoning Bylaw shall continue to govenl. 11.2 Purpose The purpose of the I'DD District is to provide for a mixture of land usage at designated locations at greater density and intensity than would normall be allowed provided d flat p said laird usage: 1. Docs not detract front the Livability and aesthetic qualities of the environment. 134 -w ... .a. x s o �f