Loading...
HomeMy WebLinkAbout1983-11-14November 14, 1983 Regular Meeting The Board of Appeals held a regular monthly meeting on Monday evening, November 14, 1983 at 7:30 p.m. in the Town Office Meeting Room. The following members were present and voting: Frank Serio, Jr., Chairman; Richard J. Trepanier, Esq., Clerk; Walter F. Soule; Maurice S. Foulds; and Raymond A. Vivenzio, Esq. Member William J. Sullivan arrived late and voted on the hearings from the time he arrived. Building Inspector Charles Foster was also present. PUBLIC HEARINGS Letterie, Frank - Varianc. e .- Haymeadow Road The Clerk read the legal notice. Attorney Philip Coppola was present for the applicant and requested that the petition be withdrawn without prejudice because an agree- ment has been reached with an abutter for a land swap, making the variance unnecessary. MOTION: by Mr. Trepanier to allow the petition to be withdrawn without prejudice. SECOND: by Hr. Vivenzio VOTE : Unanimous motion carries. Schruen.de?..,. ~.eorge - Variance - Salem Street The Clerk read the legal notice. Mr. Schruender was present and made the following presentation: The house (855 Salem Street) was built around 1973-1974. The lines of the house were drawn by him before plot plans were required. He believed the house was 33 feet from the right corner. The plot plan which was recently drawn for conveyance purposes shows that the house is in violation. Ms. Nancy Salafia, the prospective purchaser, asked that the variance be granted as soon as possible. Mr. Frank Kosdras, an abutter, asked that the boundaries be staked out $o that the problem does not reoccur. Also, a letter from the secretary was read stating that Attorney J. Albert Bradley asked that the public hearing'not be held because November 14, 1983 _¸2= Regular Meeting Schruender - continued a plan was not made available until today for inspection. MOTION; by Mr. Soule to take the petition under advisement. SECOND: by Mr. Trepanier VOTE : Unanimous motion carries. Schruender, Geor§e Variance - Greene Street Note: Mr. Sullivan arrived here. Sitting: Serio, Trepanier, Sullivan, Soule, Foulds The Clerk read the legal notice. Rr. Schruender was present and made the following presentation: The property is being conveyed and the plot plan revealed the front and side setback violations. The house is 30 years old. No one spoke in favor or opposition, but Irene l~cKenna a~d Eliza- beth Killen voiced concern about the town taking a portion of the road. It is very narrow. Chairman Serio explained the nature of this request to the neighbors by stating that it is a case where property is being conveyed and the variance is necessary for the transfer. MOTION: by Hr. Foulds to grant the variance as requested. SECOND: by Mr. Trepanier VOTE : Unanimous motion carries. Law, D. avi~ Varia.nc~ - Mifflin Drive Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio The Clerk read the legal notice. Attorney Thomas Murphy was representing the petitioner and made the following presentation: A setback violation was recently discovered when a plot plan was required for conveyance purposes. The house was constructed in 1959. Denial of the variance would create a hardship to the petitioner. November 14, 1983 -3- Regular Meeting Law - continued There are heavy bushes on each side of the house so that the privacy of the house next door is not affected. The potential buyers are living in the house on a rental No one spoke in favor or opposition to the request. MOTION: by Mr. Vivenzio to grant the variance as requested. SECOND: by Mr. Trepanier VOTE : Unanimous - motion carries. Twombls~ Judith Variance Prescott Street Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio The Clerk read the legal notice. Attorney Timothy Hatch, representing the petitioner, made the following presentation: basis. Upon completion of the development, being the Prescott Village Townhouses, an "As' Built" plan was drawn which discovered that the setbacks were not met. An Occupancy Permit has been issued. There is a 17 foot setback from the unit to the lot line, where 25 feet is required under the Zoning By Law. This unit was completed prior to the approved plan by the Planning Board. No one spoke in favor or opposition to the petition. Building Inspector Charles Foster gave a summary of the townhouse development and how the problem arose. MOTION: by Mr. Trepanier to grant the variance as requested. SECOND: by Mr. Soule VOTE : In favor 4 (Serio, Trepanier, Soule, Vivenzio) Abstain I (Sullivan) Motion carries. November 14, 1983 -4- Regular Reeting Prescott Village - Variance Stac~ Drive Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio The Clerk read the legal notice. Attorney Timothy Hatch was present and made the following presen- tation: This is the same request as Twombly. It is the Prescott Village Townhouse Development. This unit has been taken off the market until the variance is secured. This is also a setback problem. No one spoke in favor or opposition to the petition. MOTION: by Mr. Trepanier to take ~he petition under advisement. SECOND: by ;.~r. Sullivan VOTE : Unanimous - motion carries. Berube, Douglas - Variance - Summit Street Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio The Clerk read the legal notice. Mrs. Berube gave the following presentation: - The petitioner decided to put an addition on the house, which was built to the side lot. The problem is that the builders put the deck up in violation by one foot. It is 29 feet back and should be 30 feet. There was a previous deck on the house which was removed and the new deck was placed in the same spot. - It is an open deck and is fully completed. No one spoke in favor or opposition to the petition. A letter from the Building Inspector dated 11/14/83 was read and placed on file. MOTION: SECOND: VOTE : by Mr. Sullivan to grant the variance as requested. by Mr. Soule Unanimous - motion carries. November 14, 1983 -5- Regular ~eeting Bruqueta,_.Jose - Variance Pleasant Street The Clerk read the legal notice. Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio Mr. Bruqueta was present and made the following presentation: He was not aware of the setback requirements and has started to construct a garage. He is seeking relief from the setback requirements in order to complete the construction. It is not offensive to the neighborhood and denial of the variance would'involve a hardship to him. A letter from ~rs. Giribaldi was read and placed on file. In addition, a letter from the Building Inspector dated 11/14/83 was read and placed on file. No one spoke in opposition to the petition. ~r. Bruqueta added that the garage is 20' x 22' and will be used for two cars and storage. Building Inspector Foster added that there are several gara§es in the neighborhood too close to the lot lines. NOTION: by Mr. Trepanier to take the petition under advisement. SECOND: by Mr. Sullivan VOTE : Unanimous - motion carries. Carter/A§ler - Party. Aggr.!eved - Chestnut Street The Clerk read the legal notice. Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio Attorney Martin Jacobs, representing the applicants, made the following presentation: - In 1958 the North Andover Board of Appeals issued a decision granting a variance to permit the erection of a tower to a height in excess of that otherwise permitted on Mill's Hill, off 300 Chestnut Street. - The tower was subsequently erected and med consistently over the years, primarily by M.I.T. and the MITRE Corporation under the terms of the written leases. Mr. Carter and Mr. Agler purchased the lot on which the tower November 14, 1983 -6- Regular Meeting sits in April, 1979, subject to a written lease to MITRE Corporation. In August, 1981, ~.lr. Carter and Mr. Agler entered into an agreement with Electrocom Corp. for the operation and manage- ment of the "Mills Hill Antenna Site" for the installation and operation of radio communication systems "including but not limited to transmitters, receivers, antenna supports or masts, cable and wiring, and accessories used therewith" Since August, 1981, the site has been utilized in accordance with that agreement. In September, 1982, Mr. Carter and Mr. Agler entered into a lease with Rollins Cablevision of Massachusetts, Inc. ("Rollins") for the use by Rollins of the tower for its cable television elquipment. On December 3, 1982, the Building Inspector of the Town of North Andover (Charles Foster) issued a letter decision in which he found: That the proposed use of the Mill s Hill tower by Rollins was a change in use that could not be allowed, since it would be for commercial purposes, and That a Special Permit would be required to allow what Mr. Foster believed to be a change or expansion of a non-conforming use of structure. The Building Inspector's decision was issued in response to a letter from Benjamin and Linda Farnum, 1370 Turnpike Street, North Andover. Until said decision, Mr. Carter and ~r. Alger, as well as their lessee Rollins were under the impression and clear belief that the proposed use by Rollins was clearly within the scope of the 1958 variance, and that no further permits were required. As a result of the Building Inspector's letter, Rollins, as lessee, petitioned this Board to overturn that decision and/or for a Special Permit. (Petitions numbered 5 and 6 of 1983). At the hearing on January 10, 1983, no abutters appeared in opposition to the petitions. However, the Farnum's, through their attorney, Howard Berger, objected strenuously. He stated that Rollins had been dealing at length with his clients and that hJ~s clients had therefore sought and obtained a Special Permit from this Board so as to be able to enter into a lease with Rollins (Petition No. 22 of 1982), only to find that Rollins instead was now dealing eith Mr. Carter and Mr. Agler to use the Mill's Hill site. This Board denied Rollins' petitions on February 1, 1983. Rollins has since decided not to continue its lease agreement November 14, 1983 -7- Regular Meeting with l~r. Carter and Mr. Agler, and instead entered into a lease w~th the Farnum's not later than March, 1983. Rollins thus no longer has any legal interest in the Mill's Hill site. Mr, Carter and ~r. Agler have had nothing further to do with Rollins. The petitioners are now left in the position of wondering whether there is any problem with the exis~in9 a9reement with Electrocom Corp; (that is, whether the use being made of the tower is permissible) and whether they are free to enter into future contracts for the use of the tower at Mill's Hill for commercial purposes for which it is well- adapted. Such uses may, for example, include anything that has been allowed to the Farnum's. The first petition by Carter/Agler seeks to overturn the Building Inspector's decision. The Building Inspector's sole reason for objection to Rollins' proposed use was that it would be for commercial purposes. However, the Farnum's petition for a Special Permit was allowed without any mention even being made by this Board about the commercial use pro- posed. Therefore, the Board obviously feels that the use of such property for commercial purposes, in and of itself, is nonobjectionable (that is, not a chan§e in use). The petitioners believe that this is the correct position to take, and it obviously renders the Building Inspector's decision incorrect. The second petition need not even be addressed if the first petition is allowed. However, if the Board upholds the Building Inspector's decision, petitioner's say that the Board must grant them a Special Permit because: a) The history of the Mill's Hill site owned by Mr. Carter and Mr, Agler is very similar to the other tower site in the town (Boston Hill, owned by Farnum); b) The tower exists and has existed at its current site and essentially in its current form since 1958; c) The use to be made of the tower is a mere continuation of the past use; d) The Board allowed a Special Permit for a similar structure and uses on Boston Hill in 1982; to d~ny the same consid- eration to these petitioners would be arbitrary and would severely damage the petitioners' use of their property and thus its value; e) The tower has been and will continue to be unmanned; poses no noise, odor, aesthetic or traffic problems; and other than the possible replacement of the current equipment shed with one of a slightly larger size and more solid construction, all within a heavily screened area, no November 14, 1983 -8- Regular Meeting structural changes are comtemplated; f) These petitioners merely wish to receive the same con- sideration and advantages granted by thelBoard to the Farnum's, owners of Boston Hill. In connection with this point, the petitioners Point out that this case is an even stronger one than that presented by the Farnums since: Mills Hill is in an R-3 zone, whereas Boston Hill is in an R-2 zone. The Farnums needed approval to build a tower on top of their existing structure, which this Board allowed. Mr. Carter and ~r. Agler do not require any such approval, as they merely seek to continue to use the existing tower structure. The Farnums' site and tower is quite visible to those in its surrounding area and from Route 114, whereas the tower at Hills Hill is substantially hidden from view. No abutters have objected to thie petition, nor did any abutters object to Rollins' earlier petitions seeking to use Mills Hill. The only objections to Rollins~ petitions were from the Farnums themselves. There were objections by at least one abutter to the Farnums' petition for a Special Permit. The 1958 variance granted on the Mills Hill site was clearly a variance, and was granted without any specific conditions attached. The 1957 decision on the Boston Hill site is now believed to have been a variance, although the Board was not always so clear about that. Further, the 1957 decision spe- cifically attached conditions. g) It is believed that there are no factual reasons whatso- ever to discriminate against these petitioners by denying a Special Permit when that relief has recently been granted to other people who are similarly situated. h) In the circumstances as presented, to deny the same con- sideration to these petitioners as has been granted to others would be unsupportable, arbitrary and motivated by considerations outside the scope of the legitimate concerns of this Board of Appeals and its authority under G.L. c. 40A and the Town's Zoning By Laws. See Cargill v. Danvers Zoning Board of Appeals, Essex Superior Court No. 83-1037, 1038 (1983). BUilding Inspector Foster informed the Board that in his opinion this petition has already been heard (Rollins petition), and any November 14, 1983 -9- Regular Meeting Cafter/A~ler continued request to have his decision overturned should have been filed in 30 days. Atty. Jacobs responded that the Rollins decision was appealed in the courts by ~r, Carter, He is now representing the owners of the tower and this is not the same petition. Atty. Jacobs then asked to have the petition asking for relief of the Building Inspector's decision withdrawn without prejudice, MOTION: by Mr, Vivenzio to allow the petition to be withdrawn without prejudice, SECDND: by Mr. Trepanier VOTE : Unanimous - motion carries. Car_te~/Ag.1.,.er Special Permit Chestnut Street The Clerk read the legal notice. Sitting: Serio, Trepanier, Sullivan, Soule, Vivenzio Attorney ~4artin Jacobs again represented the petitioners and stated that the bulk of his presentation has been given with the previous petition, Member Vivenzio questioned how this petition varies from the Rollins request and Atty, Jacobs responded that it is different because it is a different party. Also, the tower will be used by Electocom, who has been using it for a couple of years. Building Inspector Foster added that he attempted to inspect the property and was referred to Mr. Carter's lawyer. This petition is a result of pressure from the town. Mr. Carter then added that when Mr, Foster made his judgement he was never notified. He found out through Rollins. He spoke to the Building Inspector who told him that he couldn't find the owner. ~r. Foster referred to the 1958 decision which stated that it would be used for certain purposes and none of them were commercial. He explained that when there is a specific variance and there is a change in that use it is a change in use and that is why he deter- mined that it was a change in use. Atty. Jacobs agreed with Mr. Foster but felt that the Carter/Agler decision should be the same as the Farnum decision. November 14, 1983 -10- Regular Meeting Member Soule pointed out that, in his Opinion, there is a big difference in the two sites - Boston Hill has a concrete structure; the Mills Hill site and structure can be removed tomorrow. Mr. Carter responded that ~4r. Soule is correct i~ that one structure would be easier to take down~ but he is wrong in the original intent. This was covered at the Farnum hearing. The Board allowed the maintenance of a 6-story brick, concrete steel structure amd is worried about a "dinky" structure like his. In addition, Mr. Carter stated that he bought his property because of the common driveway and to de-intensify the useage. The previous owner almost put five houses on it. It would have ruined the privacy. He asked if the Board wanted every piece of property developed or do they want a reason for using some of it for other things that are not traffic generating. No subsidy from the Government is being sought. No one spoke in favor of the petition. Speaking in opposition was Mr. Henry Fink, who stated that he is and always has been against this petition. It is a non-conforming use in a R-3 district and should not be allowed. The original intent was for national defense. After the 12 years went by, it should have been taken down. Also, there are four towers in North Andover, not twot Atty. J&cobs added that the site was being used before Rollins came into the picture and that it is being used for repeaters. He offered to bring in the people who run the site. It is used in conjunction with other radio signals. It is unmanned. Mr. Carter added that ~ITRE was not involved for a decade in national defense they were in private research. Atty. Jacobs concluded that they are asking for a Special Permit for the use and for the structure. The structure is not going to change - the only change is that the shed will be replaced. No changes to the tower are proposed, but antennas will be added. They need a Special Permit to get over the hump of the December, 1982 letter. Building Inspector Foster stated they are proposing to change the structure. It is there by way of a variance and it cannot be changed. It is NOT non-conforming, but the use is no longer allowed. He thinks they should request another variance. NOTION: by ~lr. Trepanier to take the petition under advisement. SECOND: by Mr. Sullivan VOTE : Unanimous - motion carries. November 14, 1983 -11- Regular Meeting Voisine, Maureen - Party Aggrieve~ - Hodges/.Ma.y Streets The Clerk read the legal notice. Sitting: Serio, Trepanier, Sullivan, Soule, Foulds Mrs. Voisine was at the hearing and made the following presentation: Her problem is that across from her house there were ten un- registered cars and three trucks. She wrote to the Building Inspector but did not receive an answer. The license is for five cars, but there was a total of thirteen vehicles on the property. Building Inspector Foster explained that the property in question, owned by Giard, is zoned General Business. It was re-zoned in 196D. He also reported that some of the cars have been removed. He said that he should have responded to Mrs. Voisine's letter, but Mr. Giard agreed to move some of the cars and clean up the lot. He now feels that Mr. Giard is operating within the law. Chairman Serio explained to Mrs. Voisine and several neighbors in the audience that the jurisdiction for storing cars is under the Board of Selectmen. He apologized to those present, and informed them that the Board of Appeals does not have the powe~ to act on this petition. Mrs. Voisine requested to have the petition wi prejudice. MOTION: SECOND: VOTE : by Mr. Foulds to allow the petition without prejudice. by Mr. Sullivan Unanimous - motion carries. hdrawn without o be withdrawn Thompson's Restaurant - Variance - Andover Street Mr. Sullivan read the legal notice. Sitting: Serio, Sullivan, Soule, Foulds, Vivenzio Attorney Richard Asoian, representing the petitioner, made the following presentation: - The variance request is needed so that BayBank Merrimack Valley can install an automatic teller machine (kiosk) on the Turnpike Street side of the parcel. November 14, 1983 -12- Regular Meeting The setback requirement is 100 feet and the proposed setback is approximately 5 feet. The sideline requirement is 25 feet and the proposal is for 10 feet. The lot coverage allows 35%. With the proposed changes the Board of Appeals approved last August, the coverage will be 18½%. The change will be minimal and will not go over 20%. - The land is zoned General Business and allows for the use of the premises as a banking facility. The lot has contained a restaurant since the 1930's by the Thompson family and is still being used for the same purpose. The kiosk will be prefabricated (masonry and glass} and will not require town services. It will be unmanned and will be serviced by the maintenance people and members of the bank. The property will be properly landscaped. They would like to turn it so it will not be exactly as shown on the plan. It will be lighted from within. There are no residences opposite this proposal. If granted, it will take away 1½ to 2 parking spaces. The traffic flow will be the same as it is for the restaurant. It is already a "fast area" with the Burger King Restaurant next door. Mr. Spoffard from the BayBank was also present and added that between 2,500 and 3,000 customers per month would be expected to use the kiosk. The length of each transaction is very short. Their lease is expiring with Mr. George Schruender up the street. The peak hours will be mornings and weekends with some business between 4p.m. and 6 p.m. Mr. Stuart Thompson, owner of the restaurant, added that there are no cars after 6 p.m. at the Furniture Barn, adjacent to the restaurant, so his customers could park there. The area has grown, so if one wants to expand and improve his property, he should be allowed to do so. The kiosk will help his business financially. Speaking in opposition were the following: GeDrge Stern (letter dated 11/14/83) Benjamin Osgood November 14, 1983 -13- Regular Meeti~ng Thompson's - continued Mr. Osgood voiced the following objections: - He finds the harship shallow. They were granted a variance with the condition that the garage be taken down and now they are saying that by complying with that variance creates a hardship. He has had to maintain a 100 foot setback along Route 114 when contructing buildings. Also, there are nine banks in town and they are significant taxpayers. Other banks will want to do the same thing. - The Planning Board should create zoning restrictions because they will make a mess. - They will not generate any taxes. - Everybody who owns a parking lot will want one. Mr. George Schruender, landlord of the BayBank up the street, stated that he is not in opposition to this request, but he would rather have them stay where they are. Atty. Asoian responded that they might this proposal is not meant to replace the existing bank it is a convenience and a supplement. In response to ~r. Osgood's comments, Atty. Asoian stated that his comments are tainted because this might create competition, since he has a bank as a tenant across the street. His objections are self-serving. No one spoke in favor of the proposal. MOTION: by Mr, Vivenzio to take the petition under advisement. SECOND: by Mr. Foulds VOTE : Unanimous motion carries. OTHER BUSINESS Dushame, Frank Revised Plan Lexington St. Mr. Dushame explained that he would like to add an easement on his plan, which has been endorsed by the Board. MOTION: by Mr. Trepanier to allow the 10 foot sewer easement to be incorporated on the plan as p~rt of the plan as signed by the Board, from Bunkerhill St. through Lot A to Lot B. November 14, 1983 -14- Regular Meeting Dushame - continued SECOND: by Mr. Soule VOTE : Unanimous - motion carries. DECISIONS Schruender, George - Variance Salem St. MOTION: by Mr. Trepanier to grant the variance as requested. SECOND: by Mr. Soule VOTE : Unanimous - motion carries. Prescott Village - Variance Stacy Drive MOTION: by Mr. Soule to grant the variance as requested. SECOND: by Mr. Vivenzio VOTE : In favor 4 (Serio, Trepanier, Soule, Vivenzio) Abstained- i (Sullivan) Motion carries - variance granted. Bruqueta, Jose Variance Pleasant St. No action Board to view the site. Carter/A~ler Special Permit Chestnut St. MOTION: by Mr. Sullivan to deny the petition because substantially identical issues were involved in a previous decision by this Board (Petition No. 6-'83) and this previous petition was denied by this Board is is presently on appeal in the Essex Superior Court (Civil Action No. 83-462). SECOND: by Mr. Vivenzio VOTE : Unanimous - motion carries. Th~mpson's Restaurant - Variance - Andover St. MOTION: by Mr. Vivenzio to deny the petition for the reason that the petitioner failed to show that owing to any particular circumstances affecting that lot in particular but not affecting the zoning district in which the lot is loca- ted, that a literal enforcement of the Zoning By Law would involve a financial hardship sufficient to justify a variance from the 100 foot setback required along Route 114. November 14, 1983 .15- Regular Meeting Thompson's continued SECOND: by Mr. Soule VOTE : Unanimous MINUTES motion carries August 8, 1983; August 9, 1983; August 22, 1983; September 19, 1983; October 17, 1983. by Mr. Sullivan to accept all the above minutes as written. MOTION: SECOND: VOTE : by Mr. Trepanier Unanimous motion carries The meeting adjourned at 11:30 p.m. ~rank S~e~rio, . ~ n Jean E. White, Secretary