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Any appeal shall be filed
within (20) days after the
date of filing of this Notice
in the Office of the Town
Clerk.
APOILM
1855 0
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
kE[ ;a.r_u
JUL 26 1 39 FM W
Date ....... u 1 y.. 2 3 ,. ..1.9 8 2..... .
Petition No.... 2.4 -.'.8 2 ...........
Date of Hearing ... J u.l y. 12 .,..19 8 2
Petition of .....0 d w.a rd. . a n.d . N.a n c.y.. C.o. n d.o n /.R o b.e rt. . a n.d . M.o n i .q. u e.. G o.o d r.i. c h......
Premises affected .... L PA . W,,.. F,1. a g s, h i .p . D.r i V e .... , ..... .
Referring to the above petition fora w1kthA .. r.e v i.e. W. o. f ..a
de.cisi_on..mad. e..by_ t.he..E o.i.1cii.ng..In.s.pecto_r..a.nd. enfQrc.eme.nt..act.i.on..in.-.
wwttxPa,Atx .cl.udi.ng..r.ev.oca.ti o.n . o.f . b.ui l.di n.g . p.er. m.i.t.,..deni a -l.. a.nd/o.r....
re.voc.ati.on..of..Cer.ti f.i.ca.te.for. .Llse.. and..Occ.upancy..an.d . the.-remova.l.,
alteration or relocation of a building
After a public hearing given on the above date, the Board of Appeals voted to ... D.E P1 Y.... the
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Signed ,
Frank Serio; Jr., Chairman
...........................................
Alfred E. Frizelle, Esq. Vice Chairman
..........................................
Richard J. Trepanier, Esq., C_ler.k
William J. Sullivan
......................................
Augustine W. Nickerson
Board of Appeals
' a 40RTH ,
Ot st.ao e Sao
RECEIVED:: OL
DANIE_ LONG F A
T04't,' ("ERK
NORTH 'SDOYER
AT..
1SSACNUSEt .
JUL 26 38 PSS X82
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
July 23, 1982
Edward Condon/
Robert Goodrich
Lot W Flagship Drive
Petition No. 24-'82
Mr. Daniel Lonq, Town Clerk
Town Office Buildina
North Andover, Mass. 01845
Dear Mr. Long:
The Board of Appeals held a public hearing on Monday evening,
July 12, 1982 upon the application of Edward and Nancy Condon
and Robert and Monique Goodrich. The hearing was advertised
in the North Andover Citizen on June 10 and 17, 1982, and all
abutters were notified by regular mail. The following members
were present and voting: Frank Serio, Jr., Chairman; Alfred E.
Frizelle, Esq., Vice Chairman; Richard J. Trepanier, Esq.,
Clerk; William J. Sullivan; and Augustine W. Nickerson.
The petitioners requested that the Board of Appeals review a
decision of the Building Inspector and enforcement -action,
including revocation of a building permit, denial and/or
revocation of a.Certificate of Use and Occupancy, and the
removal, alteration, or relocation of a building which is in
violation of the Zoning By Law on premises located at Flagship
Drive and known as Lot w, Flagship Drive.
Property of the petitioners abut Lot W, known as the Marion
Drive property.
The petitioners were represented by Attorney Andrew Caffrey
of the law firm of Ford, Caffrey, and Grasso, Lawrence, Mass.
Evidence was introduced by the petitioners showing that the
building in question, constructed by Advance Reproduction
Corporation (ARC), is situated on Lot W, Flagship Drive, and
is located 60 feet from the ARC property line abutting the
r
Condon/Goodrich
Lot W Flagship Drive
July 23, 1982
Page 2
petitioners' property.
RECEIVED
DANIEL LOgG
TC'W N L E�;n
N0RTI-i , ;�'DOYER
JUL 26 1 38 pN I82
The petitioners contend that the building should be located
100 feet from the petitioners' property line to meet the set
back requirement of the Zoning By Law.
Lot W, :Flagship Drive, is located in an I-1 zone. The peti-
tioners' property (except for a portion thereof) is located
in an R-2 zone.
The applicable section of the Zoning By Law is Table 2, Summary
of Requirements, Footnote 3:
"Adjacent to residential districts (including those in
bordering towns), an additional 50 foot side or rear
set back shall be required. This additional set back
area shall be maintained open and green, be suitably
landscaped, unbuilt upon, unpaved, and unparked upon"
The petitioners further contend that when the subdivision con-
taining Lot W Flagship Drive was approved, the Planning Board
specifically required that there be a 100 foot (50 foot rear
setback plus an additional 50 foot per Table 2, Footnote 3).
set back in the rear. The Planning Board; in its decision
of October 6, 1980, referred to said set back in condition
number 7 which stated:
"That as required by our Zoning By Law, Table 2, Summary
of Dimentional Requirements, Footnote 3, Adjacent to
residential districts, the required side or rear set
back shall be 100 feet. The first 50 feet shall remain
open and green, be suitably landscaped, unbuilt upon,
unpaved, and not parked upon. Said 100 foot set back
shall extend from the property line"
Condition (dumber 7 of the Planning Board was not endorsed on
the approved plan recorded at the Registry of Deeds.
The Building Inspector issued the building permit, according
to his testimony, allowing construction of the building on
Lot W, Flagship Drive, to be 60 feet from the property line
of ARC. The zoning district line is located, according t -o
the decision of the Building Inspector, some 40 feet from the
ARC property line on the property of the petitioners. The
Building Inspector's determination of the zoning district line
was made based upon the Zoning Map, made a part of the Zoning
By Law, which shows the R-:2, I-1 line to be 300 feet from the
center of Marion Drive, which places the district line approxi-
mately 40 feet from the ARC property line on the petitioners
property. The Building Inspector determined that since the
K
REC. EIVE0
Condon/Goodrich T0,�!k "'LEPK
Lot W Flagship Drive N0�711 �<<'rltER
July 23, 1982
Page 3 JUL 26 1 18 ?M W
ARC property is not adjacent to the R-2 residential district,
that Table 2, Footnote 3 is not applicable and issued the
building permit, which is the subject of review.
The petitioners' counsel contends that the correct interpre-
tation of Table 2, Footnote 3 read in conjunction with the
Planning Board's October 6, 1980 condition, should be that
the 100 foot set back (50 feet plus 50 feet) should run from
the ARC property line. (It should be noted that, coincidentally,
the plans presented to the Board of Appeals show that the
building is set back 100 feet from the zoning district line
running through the petitioners' property).
Upon a motion made by Mr. Frizelle and seconded by Mr. Serio,
the Board voted unanimously to deny the request of the peti-
tioners to revoke the building permit, to revoke or deny the
Certificate of Use and Occupancy; and, the removal, alteration,
or relocation of the building on the premises known as Lot W,
Flagship Drive.
The Board finds that the Building Inspector's determination of
the location of the zoning district line and his interpretation
of Table 2, Footnote 3 was correct,
The crux of the issue presented is the location of the zoning
district line of the R-2 and I-1 zone.
Section 3.2, Zoning Map of the Zoning By Law makes the Zoning
Map a pa -rt of the Zon-ing -:By Law. Th -e- Zoning Map shows the
location of the I-1, R-2 zone to .be 300 feet from the center
line of .Marion Drive. The Zoning Map does not make reference
to property lines of owners of the land.
Section 3.3 of the Zoning By Law, District Boundaries, provides
that the Building Inspector shall determine the location of
such boundaries when uncertainty exists.
The Board finds that the Building Inspector relied upon the
Zoning Map and the subdivision plans certified by a registered
civil engineer, which shows the zoning district line to be
some 40 feet on the petitioners' property.
Since the Lot w, Flagship Drive property is not adjacent (Web-
ster's Seventh New Collegiate Dictionary defines adjacent as
"having a common border: ABUTTING") Table 2, Footnote 3 is not
applicable.
s
BEC, F,i"t0, .
Condon/Goodrich TM; LU
Lot W Flagship Drive N06-1.�'�'rFR
July 23, 1982 ` 38
P a g e 4 AUL Z�
The Board further finds that the.Planning Board specifically
referred to the provisions of Table 2, Footnote 3 of the Zoning
By Law in its October 6,, 1980 decision and that such condition
number 7 was not endorsed on the recorded plan; and, therefore,
the provision stating: "Said 100 foot set back shall extend from
the property line;" is not enforceable.
The Board of Appeals rejects the contention of the petitioners
that the Zoning By Law should be read in conjunction with the
Planning Board's condition number 7. Since the Planning Board
did not include condition number 7 on the plan, the clear
language of the Zoning By Law prevails,
The Board finds that the building located on Lot W, Flagship
Drive is in conformance with the Zoning By Law.
AEF/jw
Sincerely,
BOARD OF APPEALS
Frank Serio, Jr.,
Chairman
Zoning Board of Appeals North Andover
Hearing No.: ZBA-2007-0032 Date: April 26, 2007
APPLICATION TYPE: SUBMISSION DATE:
Finding Wed May 26, 1982
Applicant's Name:
NAME
ARC REALTY CORPORATION & CHARLES S
ADDRESS:
100 FLAGSHIP DRIVE
TOWN:
NORTH ANDOVER
TOWN:
NORTHANDOVER
STATE
MA
I ZIP CODE:
01845
PHONE NO.:
FAX NO.:
EMAIL ADDRESS:
MAP:
Site Information:
Owner's Name:
NAME-
AMEARC REALTY CORPORATION & CHARLES S
ARC
ADDRESS:
100 FLAGSHIP DRIVE
TOWN:
NORTH ANDOVER
STATE:
MA
ZIP CODE:
01845
PHONE NO.:
FAX NO.:
EMAIL ADDRESS:
Work Location.:
SITE ZONING:
100 FLAGSHIP DRIVE
DECISION DRAFT BY:
TOWN:
SECTION OF BYLAW:
NORTH ANDOVER, MA 01845
10.4
GIS #
MAP:
BLOCKLOT:
HEARING DATE:
ACTION TAKEN:
7791
10%C
I 0025
HEARING TIME:
VOTING DEADLINE:
Reason for filing:
Party aggrieved, Edward & Nancy Condon & Robert & Monique Gooddich - request Bulldhrg Inspector to revolve building permit & certificate
of occupancy & use Lot W, 100 Flagship Drive.
HARDSHIP:
FINDINGS:
COULD NOT DEROGATE BECAUSE
FILING DEADLINE:
MAILING DATE:
HEARING CONTINUED DATE:
DECISION DRAFT BY:
APPEAL DATE:
REFERRALS IN DATE:
HEARING DEADLINE DATE:
Fri Jul 30, 1982
HEARING CLOSE DATE
FINAL SIGNING BY:
APPEAL DEADLINE
FIRST ADVERTISING DATE
HEARING DATE:
VOTING DATE:
DECISION DATE
SECOND ADVERTISING DATE:
HEARING TIME:
VOTING DEADLINE:
DECISION DEADLINE:
MEMBERS PRESENT: VOTE
MOTION MADE BY: SECONDED BY: VOTE COUNT: DECISION:
MINUTES OF MEETING:
GeoTMS@ 1998 Des Lauriers & Associates, Inc.
Leaal Notict
r: T6 uN OF ' �, °,. .
NORTH ANDOVER
MASSACHUSETTS.
BOARD OF APPEALS
40RT#f 7
Oti0 `
a 0 A
June 1; 1982
Notice is hereby given that the
Board of Appeals will give a
hearing at the Town Building,
North Andover, on Monday
evening, the -12th day -of July,
1982 at 7:30 p.m. to all parties
interested in the appeal of ED-
WARD AND NANCY CONDON
and ROBERT AND MONIOUE
GOODRICH requesting a review
of! a decision made. by the
Building Inspector and enforce-
ment action including revocation
of building permit, denial and/or
revocation of Certificate for Use
and Occupancy and the removal,
alteration or relocation of a
building which isin violation of
the Zoning By , law on : the
_ premises located at' Flagship
Drive and known as tot . W,
Flagship 'Drive. '
`
By Order of the Board. of Ap-
peals.,
Frank Serio, Jr:
Chairman
Publish North Andover Citizen
;June' 10: 'and—.1?-,-v1982. --
B33-1109.
I
I
June 1, 1982
Notice is hereby given that the Board of Appeals will give a
hearing at the Town Building, North Andover, on Monday evening,
the 12th day of July, 1992 at 7:30 p.m. to all parties interested
in the appeal of EDWJARD AND NANCY CONDON and ROBERT AND MONIQUE
GOODRICH requesting a review of a decision made by the Building
Inspector and enforcement 40 action including revocation of
building pemmit, denial and/or revocation of Certificate (f(Fr
Use and Occupancy and the removal. alteration or rel6cation of
;D building which is in violation of the Zoning By Law on the
premises located at Flagship Drive and knovin' as Lot 14, Flagship
Drive.
By Order of the Board of Appeals
By: Frank Sef6o, Jr., Chairman
Publish: N. A. Citizen: June 10 and 17, 1982
Send bill to: A.Lty. Joseph A. Grasso, Jr.
300 Essex Street
Lawrence, Mass.
Z
- --- - - -- _.._ a�-,�'lit/��� _ eu�^� ; �i(�✓+ilXti�LGtN __!L �c`'(s'__-���6'�"F- . - _ ..�+-_�I
cJOS.EPH FITZGIBBONS
ATTORNEY AT LAW
CENTRAL BUILDING -316 ESSEX STREET- LAWRENCE, MA 01840
617 685-3090
0
July 6, 1982
Clerk's Office
Essex Superior Court
34 Federal Street
Salem, MA 01970
Re: Robert P. Goodrich, et als
Vs: Charles H. Foster, et als
Civil Action No. 82-1223
Dear Sir/Madam:
Enclosed please find Motion of the Defendant, A.R.C.
Realty Corporation, for Summary Judgment in connection with
the above-mentioned action.
Would you kindly mark the same for hearing at the Superior
Court House in Peabody on Monday,. July 19, 1982.at. 9:30 a.m.
Thank you. -
Very truly yours,
Joseph Fitzgibbons
JF: lsk
Enclosure
cc: Joseph A. Grasso, Jr., Esq.
300 Essex Street
Lawrence, MA 01840
John J. Willis, Esq.
160 Pleasant Street
North Andover, MA 01845
R��D
JOSEPH FITZGIBBONS
ATTORNEY AT LAW
C[NTRAL BUILDING
318 BBB[X BTR[BT
LAWR[NCC MA 01M0
B17 BBe•soBo
ESSEX, SS:
ROBERT P. GOODRICH, )
MONIQUE GOODRICH, EDWARD )
A. CONDON, JR., NANCY )
CONDON, INDIVIDUALLY AND )
AS TAXABLE INHABITANTS OF)
THE TOWN OF NORTH ANDOVER)
AND )
)
JAMES HART, MARY HART, )
WILLIAM CHEPULIS, BRIAN )
FINN, MARGARET FINN, )
NICHOLAS DeNITTO, BARBARA)
DeNITTO, DAVID AMUNDSEN, )
LINDA AMUNDSEN, RICHARD )
VALLE AND BEVERLY VALLE, )
AS THEY ARE TAXABLE IN- )
HABITANTS OF THE TOWN OF )
NORTH ANDOVER, )
Plaintiffs )
ALL OF NORTH ANDOVER, )
ESSEX COUNTY, MASSACHU-
SETTS 1
VS.
CHARLES H. FOSTER, OF )
SAID NORTH ANDOVER AS HE )
IS THE INSPECTOR OF )
BUILDINGS OF THE TOWN OF )
NORTH ANDOVER AND A.R.C. )
REALTY CORPORATION, A )
MASSACHUSETTS CORPORATION)
Defendants
FACTS
TRIAL COURT
SUPERIOR COURT
DEPARTMENT C.A.
NO. 82-1223
DEFENDANT'S MEMORANDUM IN
SUPPORT OF MOTION FOR
.SUMMARY JUDGMENT
On or about October 20, 1980, the Planning Board for the
Town of North Andover unanimously approved the definitive
plan of land entitled "Willows Industrial Park Extension".
By decision dated October 22, 1980, the Planning Board reported
its decision to the Town Clerk. (Accord, Exhibit #4 of Plaintiffs
Complaint.) Several conditions were listed in said decision.
(Exhibit #4 of Plaintiffs' Complaint.) On or about November
JOSEPH FITZGIBBONS
ATTORNEY AT UAW
CENTRAL BUILDING
310 EBBEX BTAKET
LAWR[NCZ. MA 0I440
•IT ue.aoeo
25, 1981, the Defendant, A.R.C. Realty Corporation, .purchased
one parcel in the subdivision as approved by the Planning
Board; that lot being Lot W. (Attached Affidavit of Charles
Nigrelli, the President of the Defendant corporation.)
The purchase price for parcel "W" of said subdivision
was $250,000.00. (Affidavit of -Charles Nigrelli.) Mr.
Nigrelli, on behalf of the Defendant, applied for and was
granted a building permit for Lot W of said subdivision for a
building with an estimated construction cost of $250,000.00.
(Exhibit #2 of Plaintiffs' Complaint.) The building inspector
for the Town of North Andover reviewed, among other items,
the proposed construction plans, and after reviewing the
zoning setbacks, 'Concluded that the building would comply
with said Zoning By-law requirements; he issued the building
permit. (Exhibit #7 of the Plaintiffs' Complaint.) The
building foundation and structure are in compliance with the
permit. (Affidavit of Charles Nigrelli.) At no time were the
conditions of the Planning Board recorded or made reference
to by any recording filed with the appropriate Registry of
Deeds, either. on or attached to the subdivision plans or
otherwise. (Affidavit of Attorney Kenneth M. Homsey. As one
of the conditions listed in the October 22, 1980 decision the
Board provided in paragraph number 7:
"That, as required by our Zoning By -Law, Table 2 Summary
of Dimentional (sic) Requirements, footnote 3: Adjacent
to residential districts, the required side or rear
setback shall be 100 feet. The first 50 feet shall
remain open and green, be suitably landscaped, unbuilt
upon, unpaved and not parked upon. Said 100 foot setback
shall extend from the property line." .(Exhibit #4 of
the Plaintiffs' Complaint.)
The Plaintiffs maintain that the above -referenced
"condition" number 7 requires, in the circumstances of this
case, a 100 foot side. and rear setback, and that the Defendant's
building 'is less than 100 feet on its side and rear setbacks
and, therefore, is in violation of an alleged condition. The
Defendant maintains (a) that its building satisfies all of
the listed conditions, because the building and the lot on
which it is located are not adjacent to or abutting a resi-
dential lot; (b) further, the condition would be invalid if
given the interpretation the Plaintiffs' urge; (c) the said
conditions are not binding against the Defendant where the
conditions are not recorded or made reference to in the
Registry of Deeds; (d) that the Plaintiffs fail to state a
claim under M.G.L., c.41, S81Y and that this Court, accord-
ingly, lacks jurisdiction.
The Plaintiffs, Goodrich and Condon, each occupy a lot
abutting the Defendant's Lot W on Flagship Drive as shown on
-2-
JOSEPH FITZGIBBONS
ATTORNEY AT LAW
C[NTRAL BUILDING
Rif [BBBX BTR[ET
LAWR[NCE, MA 03640
417 64"*DO
North Essex Registry of Deeds Plan No. 8648. '(Paragraph 18
of Plaintiffs' Complaint.) Each of the lots occupied by the
Plaintiffs, Condon and Goodrich, are divided by the demarcation
line between the industrially zoned district (I-1) and the
residentially zoned district (R-2). (Accord, attached Zoning
Map of the Town of North Andover, and paragraph 29 of Plaintiffs'
Complaint, and Exhibit #7 of the Plaintiffs' Complaint.)
Thus, that part of each of the lots of the Plaintiffs, Condon
and Goodrich, which abuts Lot W of Flagship Drive, the Defendant'
lot, is zoned industrial (I-1), and the remainder of each of
said lots is zoned residential (R-.2) by the Zoning Map of the
Town of North Andover.
LEGAL DISCUSSION
ISSUE #1:
Whether the Building Inspector
Andover was in error in determining
Drive of the Willow Industrial Park
adjacent to a residential district"
condition #7 of the.decision of the
#4 of Plaintiffs' Complaint) and is,
to the more stringent side and rear
of the Town of North
that Lot W on Flagship
subdivision is "not
within the meaning of
Planning Board (Exhibit
therefore, not subject
setback provisions.
The resolution of this issue depends upon an application
of the facts presented to the Court in the attached Zoning
Map, Zoning By-laws, pleadings of the Plaintiffs, attached
affidavits and stipulations. An analysis of said materials
will reveal that the property lines of the Plaintiff abuttors
do not coincide with the demarcation line between the R-2 and
I-1 Zoning Districts." The Zoning demarcation line cuts through
the lots of the Plaintiff abuttors, Condon and Goodrich,
thereby splitting their lots into part residentially zoned
(R-2) district and part industrially zoned (I-1) district.
(Accord, subdivision plans of record and zoning map of Town
of North Andover).
The Plaintiffs argue that condition #7 hasspecific
reference to Lot W as it abuts with the land of the Plaintiffs,
Condon and Goodrich. They would argue -that said condition
specifically dictates 100 foot side and rear setbacks for any
building on Lot W.. However, a plain reading of the condition
at issue fails to support such a contention.
First, the condition begins with a phrase which indicates
that rather than creating any exception, the Planning Board
was merely requiring compliance with the Town's Zoning By-
laws. Thus, the condition starts, "That as required by our
Zoning By-laws...". Next, the condition plainly tracts the
words of the Zoning By=law, "Table 2 Summary of Dimentional
(sic) Requirements Footnote 3: Adjacent to residential dis-
tricts the required side and rear setback shall be 100 feet."
-3-
JOSEPH FITZGIBBONS
ATTORNEY AT LAW
CENTRAL BUILDING
3114 EBBEk BTREET
LAWRENCE, MA 01840
The condition adds: "Said 100 foot setback shall extend from
the property line." (Accord Exhibit #4 and paragraph 31 of
Plaintiffs' Complaint.) Nowhere in the condition does there
appear wording specifically referring to Lot W, the land of.
Condon or Goodrich, or to any condition more stringent than
those of the Zoning By-laws. If the Planning Board had incended
to provide 100 foot setbacks for subdivision lots adjacent to
land which is industrially zoned but part of a lot split
between residential and industrial use classifications, then
it would have specifically referred to said split lots. The
conditions make no reference to that specific set of facts.
Lot W of this subdivision is adjacent to an industrially
zoned district and, therefore, condition #7 has no application
to said lot. (Accord, Exhibit #7 of the Plaintiffs' Complaint.)
The Plaintiffs specifically acknowledge their awareness that
the property lines.of the abuttors do.not coincide with the
demarcation line between the R-2 and I -1 -Zoning Districts.
(Paragraph 29 of Plaintiffs' Complaint.) They also acknowledge
by implication in paragraph 29 of Plaintiffs' Complaint that
Lot W is adjacent to land of the Plaintiffs, Condon and Goodrich,
which is also zoned industrial and, thus, they state in said
paragraph 29:
"...the Planning Board did determine that the setback
requirements imposed when industrial districts border
residential districts would be required... as if the
property lines of abuttors coincided with the demarcation
line between R-2 and I-1 Zoning Districts." (Emphasis
Supplied.)
The conditions listed in the decision of the Planning
Board (Exhibit #4 of Plaintiffs' Complaint) are, by their
terms, conditions on all the lots of the subdivision shown on
"The definitive plan of land entitled."Willows Industrial
Park Extensions....". If the Planning Board had intended to
make a specific exception in those areas adjacent to a split
classification lot or specifically for the abuttors, Condon
and Goodrich, they would have so specified.
ISSUE #2:
Whether, in the event that the Court finds that the
Planning Board intended by condition #7 of its decision of
October 22, 1980 a requirement of 100 foot side and rear
setbacks for Lot .W, said conditions are binding and valid
when not recorded at the appropriate Registry of Deeds.
The Defendant maintains that the statutory scheme for
approval of subdivisions provides for,the recordation of
conditions imposed by planning boards. In M. DeMatteo.Con-
struction Co. vs. Board of Appeals of Hingham, 3_Mass..App.
446, 334 NE2d 51, 59, 60 (1975), where a certain condition
was neitner endorsed on the plan nor. set forth.in a separate
617 833.3090 11 -4-
N'`m'''ti
JOSEPH FITZGIBBONS
ATTORNEY AT LAW
CENTRAL BUILDING
010 E99EX STREET
LAWRKNGE. MA 02040
617 065-3000
instrument referred to in the plan, the Court held that the
recording controls and that the landowner was not bound by
the conditions. The Court cited an earlier precedent. for its
ruling in the case of Board of Selectmen of Pembroke vs. R. &
P. Realty Corr, 348 Mass..120, 202 NE2d 409, 413, 414 (1969),
which involved the constructive approval of a plan by failure
of the Planning Board to file a decision with the Town Clerk
within the statutorily prescribed time limits. In that case.
the developer knew that his plan had been approved by the
Planning Board only on eight conditions. The Planning Board
failed to timely file its decision with the Clerk, and the
developer was issued a certificate by the Clerk for approval
of the plan, so long as it remained in effect (see below),
gave him [the developer] and his grantees, with or without
knowledge of the Board'sineffective decision, the right to
deal with the plan:as a constructively approved plan and to
deal with the land accordingly,. (Emphasis Added.) No con-
ditions were either recorded or made reference to in the
appropriate. Registry of Deeds for the Willow Industrial Park
subdivision. (Accord, Affidavit of Attorney Kenneth M. Homsey)
Indeed, M.G.L., c. 41, §81R provides that:
"A planning board may ... where the ways are not otherwise
deemed adequate, approve a plan on conditions limiting the
lots ... The planning board shall endorse such conditions on'
the plan to which they relate, or set them forth in a separate
instrument attached thereto to which reference is made on
such plan and which shall for the purpose of the subdivision
control. law be deemed to be a part of the Plan." (Emphasis
Added.) This statute was enacted. by c. 674 of the acts of
1953 and amended by c. 411, Sl,,of.1955 and-effective.at all
times relevant herein. Even more telling is the following
reference n G.L., c. 41, §81Y:
"...the board or officer, if any, having the power and
duty to issue permits for the erection of buildings shall not
issue any permit....until first satisfied....that any condition
endorsed thereon limiting the right to erect or maintain
buildings do such lot have been satisfied, or waived by the
planning board,.... Thus, in the very statute upon which the
Plaintiffs rely for their action to enforce an alleged con-
dition there exists a requirement of endorsement of conditions
on the subdivision plans. The Court has characterized the
Subdivision Control: Law as "the specification of a procedure
designed to provide definitive rights to accrue upon final
record notice of such action or inaction." (Citing from
Pembroke (Supra) with,approval).
The Court went on to say in DeMatteo (Supra):
"We need not labor the difficulties and uncertainties
which would result if it were not possible to rely on
-5-
the official record when landowners are arranging for
construction and financing and -building inspectors are
issuing building permits. (Emphasis Added).
Finally, M.G.L., c. 41, §81X provides in part
"The contents of any such endorsement of the'planning
board or certificate by,the clerk.of the city or town
shall be Final and conclusive on all parties, subject to
the provisions of section eighty-one W."
In the case at bar, conspicuous by the absence of any
mention in the Plaintiffs' Complaint and numerous exhibits is
: an averment that the conditions or any reference to said
conditions was oris duly recorded, with or without the
Subdivision Plans. The Defendant maintains that where it is
specifically provided by statute that the conditions be
recorded with the.plans at the appropriate Registry of Deeds,
and that it is also provided that said endorsement is conclu-
sive on all parties, then it is the Plaintiffs' burden to
demonstrate the recordation of an alleged condition which he
seeks to enforce against a successor in interest. The
Plaintiffs fail to P
allege or rove any such recordations..
The attached affidavit of Attorney Kenneth M. Homsey
relative to the non-existence of recorded or even referenced
conditions is competent evidence of the facts contained.
therein. Because said alleged condition is not recorded,
even if this court should decide that the Planning Board
would otherwise require 100 foot setbacks, it is not valid
and binding against your- Defendant.
It is especially worthy of notice. that under both the
Pembroke (Supra) and DeMatteo (Supra)ra) cases,
the Court ruled
that although the condit— io do not survive a failure to
record "It does not necessarily follow that the -town and
planning board are without means of relief. General Laws, c.
41, S81W provides in part:
"A Planning Board, on its own motion or on the petition
of any person interested, shall have power to modify,
amend or rescind its approval of a plan of a sub -division,
or to require a change in a plan as a condition of its
retaining the status of an approved plan..."
It is also important to realize that the Plaintiffs,
through their present attorney, appeared at Planning Board
hearings on May 3, 1982, and May 17, 1982, seeking further
3EPH FITZGIBBONS relief and that said Planning Board took no action on his
ATTORNEY AT LAW request.
�_[NTRAL ■UILDINO
314 KSSKX STRSKT - 6 -
-LWR[NC[, NA 01630
917 4IG6-3090
A
OSEPH FITZGIBBONS
ATTORNEY AT LAW
C[NTRAL BUILDING
9t9 Ussax BTRt[T
�LAWRKMCB, MA 01 040
637 409.3000
, Whether the Planning Board exceeded its authority in
imposing conditions which would provide zoning provisions
more stringent.than those of the Zoning By-laws and Zoning
Map of the Town of North Andover.
It is clear that the'Plaintiffs seek to have 100 foot
setbacks instead of 50 foot setbacks on Lot W of the Willow
Industrial Park subdivision. 'It is also clear that a 100
foot setback is a more stringent setback than is a 50 foot
setback. It also seems abundantly clear from paragraph
number 29 of the Plaintiffs' Complaint that.,,despite the fact
that the Plaintiffs admit that Lot W is adjacent to their own
industrially zoned 'land, they allege the more :stringent setback
requirements were required by.the Planning Board, "as if the
property: lines of the abuttors coincided:wi.th the `demarcation
line between R-2 and I-1 Zoning Districts."
The Plaintiffs' interpretation of condition #7 would.
yield a result whereby the Planning Board would be imposing
requirements independent of and more stringent.than those of
the zoning by-law. This would cause a result leading to the
invalidity of said.conditions as an unlawful extension of
authority by the Planning Board. M.G.L., c. 41, §81Q provides
in part-
"Except insofar as it may require compliance with the
requirements of the existing zoning ordinances or by=laws, no
rule or regulation (of the planning board] shall relate to
the size, shape, width, frontage or use of lots within a
subdivision, or to the buildings which may be constructed
thereon."
It is the Defendant's position that a plain reading of
condition#7 leads to a result which is in accord with the
parameters of authority given to planning boards by the enabling
legislation. The Plaintiffs' reading of the condition aside
from its correctness, is self-defeating to the Plaintiffs'
cause because it invalidates the condition sought to be en-
forced. In Arri o v. Planning Board of Franklin, 429 NE2d
355, 360 (1981) the Appeals Court stated that the language
quoted above from Section 81Q, "is to be read merely as pre-
cluding a planning board from imposing frontage requirements
(the issue in that case involving frontage) independent of
and more stringent than those of the zoning by-law."
The Court should seek to avoid such a result where there
is another reading of the condition which would not invalidate
it. An ordinance or by-law should be so interpreted by a
court as to render it consistent with the enabling statute
-7-
whenever it is practicable. See LaMontagne v. Kenney, Mayor,
288 Mass. 363, 193 N.E. 9 (1935) whereby a zoning ordinance
was upheld. By analogy the same rule of construction should
be applied to the•Planning Board's application of its Rules
and Regulations in the promulgation of conditions. In any
event, the Plaintiffs' reading of condition #7 is so strained
as to be untenable, and to place such a reading on it now
would be to supplanta new condition in place of the Planning
Board's condition.
Respectfully submitted,
Attorney for the Defendant,
A.R.C. Realty Corporation
JOSEPH FITZGIBBONS, ESQ.
.316 Essex Street
Lawrence, MA 01840
.Tel. No. (617.) 685-3090
Dated: July 6, 1982
EPH FITZGIBBONS
XrORNEY AT LAW
cNTRAL BUILDING
•16 94141113[ DTRXKT
WR41MCt. NA 014140
617 4141E -30Y0
JOSEPH FITZGIBBONS
ATTORNEY AT LAW
CENTRAL BUILDING
at• calx mltrr
LAWR1NQl. MA O/W
617 Ma -36"
INDEX OF EXHIBITS*
Exhibit Subject
A. Zoning Map, Town of North Andover
B. Subdivision PlanI'of Hillside Acres
C. Subdivision Plan of Willow Industrial
Park Extension
D. Zoning By -Laws of -the Town,of No,.rth.Andover
E. Deed to Plaintiff Abuttor, Condon
F. Deed to Plaintiff Abuttor, Goodrich
.G. Affidavit of Mr. Charles Nigrelli
H. Affidavit of Attorney Kenneth M.' Homsey
*By agreement of the parties, because of the bulk of the
exhibits referred to _herewith, said exhibits will be pre-
sented to the Court at the time and place of -the hearing
on the Motion.for Summary Judgment
-9-
Juee 3, 1982_
"Attorney Joseph Grasso, Jr.
A00 Essex Street
A
LAwrence, mass.
Re Petition of Condon/Good ch
fear Attorney irasso:
Please submit the amount of $7.20 to the Town of North
Aidaver to cover the cost of mailing the legal notices
D:. fir the above captioned petition
Or check should be made payable to the Town of North
f1dover and may .be sent to my attention at the Town Office
Wilding, 120 Main Street, North Andover, Mass. 01S45.
Sincerely,
BOARD OF APPEALS
Jean E. White,
Secretary
1 ORT
i ved by Town Clerk: °'•�"p
Date: REC R' AN OF NORTH ANDOVER, MASSACHUSETTS «� - •
BOARD OF APPEALS ''• --�. f� ) , Vit_ ; b•„,° ..
Ti me :'' V,iJR' 'SS ACMU
gt
Notl ce : T,s application must be typewritten
APPLICAT ,1' OR RELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE
Edward and Nancy Condon
Applicant Robert and Monique Goodrich
1. Application is hereby made
89 Marian Drive, North Andover
Address 99 Marian Drive., North Andover
(a) For a variance from the requirements of Section Paragraph
and Table of the Zoning By -Laws.
(b) For a Special Permit under Section Paragraph of the
Zoning By --Laws.
(c) As a party aggrieved, for.: review of a decision made by the: Building
Inspector or other authority. See Request for Enforcement and Decision by Bu ild-
ing.Inspector attached hereto as Exhibits 1 and 2 and incorporated herein by reference.
2. (a) Premises affected are land X and building(s) X numbered
Lot W,Flagship Drive, North Andover x R)tx (Parcel 25, Map 107C)
No. Essex Registry Plan No.8648 Assessos Flats
(b.), Premises affected are property with frontage on the No-rth ( )
South ( ) East ( X) West ( ) side of Flagship Drive
Street, and known as Rc= Lot W1bjEs,ex��� 3mlxewc.
(c). Premises affected are in Zoning Districti-1 and the premises
affected have an area -of 4.24 acres &gxm=txk and frontage of
square feet.
3. Ownership
(a) lHame
and address of owner (if
joint
ownership, give all names):
A.R.C.
Realty Corporation, Turnpike
Street,
North Andover, MA
Da.te of .purchase 1981 Previous: Owner Capricorn Corporation
(b) If applicant is not owner, check his interest in the premises:
Prospective Purchaser Lesee X Other (explain)
AEuttors and Aggrieved Parties,
4. Size of proposed building: front; feet deep;
Height: stories; feet.
(a) Approximate date of erection:
(b) Occupancy or use of each floor:
(c) Type of construction:
5. Size of existing building: 150' feet front; 168' feet deep;
Height: stories; feet.
(a) Approximate date of erection: 1982 - Incomplete
(b) Occupancy or .use of each floor: Industrial
(c) Type of construction:
6. Has there been a previous appeal, under zoning, on these premises? No
If so, when?
7. Description of. rel i of sought on this petition Request Pursuant to General Laws
Chapter 40A for enforcement action including (1) revocation of building permit, (2) denial
and/or revocation of Certificate for Use and Occupancy and (3) -the removal, altPrat;nn nr re-
location of a building located on Lot W Flagship Drive (Plan No. 8648) which is in violation
of the Zoning By -Laws. See also Exhibit 1 Attached hereto.
8. Deed recorded in the. Registry'. of Deeds in Book 1547 Page 319 !fix
and Corrective. Deed recorded Book 1561, Page 325.
- r� ;
The principal points upon which.I:base my application are as follows:
(Must be stated in detail)
The aggrieved parties maintain that: (1) no part of,�Yieir property,is properly zoned
industrial (71 an= r=ning of part of their prQperty wag inadvert'efi Land of no force or
effect; and (3) that their property as a whole within the confines of their property
lines is to he deemed residential for r)urnoges of determining the setbacks, require on
property of abutting lot owners of industrially zoned property and the requirements of
Footnote 3 to Table 2 Summary of Dimensional ReauiremPntG_ coo �I —
Exhibit 1 attached hereto.
agree t� pay for
d A. Con 0, Nance
ney, J
Sec. 1 APPLICATION
advertising in newspaper and incidental expenses*
mdon, Robert P. Goodrich and Monique Goodrich
rV\e Petitioner's Signature
A-. Grasso, r . , , Esq. , Ford, Caffrey & Grasso, P. C.
300 Essex St., Lawrence, MA 01840
FORM 686-6151
Every application for action by the Board shall be made on a form
approved by the Board. These forms shall be furnished by the clerk
upon request. Any communication purporting to be an application
shall.be treated as mere notice of intention to seek relief until
such time as it is made on the official application form. All in-
formation called for by the form shall be furnished by the applicant
in the manner therein prescribed.
Every application shall be submitted with a list of "Parties in.
Interest" which list shall include the petitioner, abutters,, owners
of land directly opposite on any public or private street or way,
and abutters to'the abutters within three hundred feet of the property
line of the petitioner as they appear on the.most recent applicable
tax list, notwithstanding that the land of any such owner is located
in another city or town, the Planning Board of the city or town, and
the Planning Board of every abutting city or town.
* Every application shall be submitted with an application charge cost
in the amount of $25.00. In addition, the petitioner shall be respon-
sible for any and all costs involved in bringing the petition before
the Board. Such costs shall include mailing and publication, but
are not necessarily limited to these.
LIST OF PARTIES IN INTEREST
Name
1. A.R.C. Realty Corporation
• 2. Peter P. Novello
K,3. Edward J. O'Leary
Raymond J. Vicunas
4. Capricorn Corporation
5. John R. Haverty Estate c/o John Hamilton
6. Micromatics Products Co., Inc.
-7. Richard L. & Patricia A. Cavanaugh
-8. Frank J.. & Frances J. Greslick
�-•9. Commador Corporation
10..North Andover Planning Board
Address
Turnpike Street, North Andover
111 Marian Drive, North Andover
P. 0. Box 468, Holyoke, MA
801 Turnpike Street, North Andover
15414 S. Stevens Ave.; Bellflower, CA 90706
48 Haverhill St., P.O.Box 3 SVS, Andover, MA
123 Marian Drive, North Andover
79 Marian -Drive, North Andover
805 Turnpike Street, North Andover
Town Hall, North Andover
C�7
(Use additional sheets if necessary)
1
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
J9���or2�s al oGec� � U.
April 14, 1982
Planning Board
Town of North Andover
Town Hall
North Andover, Massachusetts 01845
ATTENTION: Chairman
Re: Request for Review of Action
Exercise of Enforcement Under
Chapter 41, Section 81Y
Dear Mr. Chairman:
'Por l�ssex Jlree� - oLa�s eiece, a 078 0
6'17 686-91W
6'77' 6cf666X;I
of Building Inspector and
Massachusetts General Laws,
This office represents several taxable inhabitants of the Town of
North Andover, inter alia Edward and Nancy Condon and Robert and
Monique Goodrich, all of Marian Drive, North Andover. You are hereby
requested to utilize your powers under Massachusetts General Laws,
Chapter 41, Section 81Y to annul and enjoin certain actions violating
the provisions thereof. Specifically, your attention is directed to
the fact that a building presently under construction on property
believed to be owned by A. R. C. Realty Corporation, Flagship Drive,
Lot W, Plan No. 8648 North Essex Registry of Deeds, is being constructed
in violation of conditions lawfully imposed by the Planning Board on
October 20, 1980 itss decision to app-c�,e the definitive plan of
land entitled Willows Indus vial Park Extension, dated June 13,1980
and revised Oct 6, 1980." ��—
The minutes of your meeting for October 20, 1980 indicate at
Paragraph 7. that construction adjacent to the residential district
(Marian Drive) which adjoins Lot W should utilize a 100 foot side or
rear setback. Specifically, your decision stated:
117. That, as required by our Zoning By -Law, Table 2 Summary of
Dimentional Requirements, Footnote 3: Adjacent to residen-
tial districts, the required side or rear setback shall be
100 feet. The first 50 feet shall remain open and green, be
suitably landscaped, unbuilt upon, unpaved and not parked
upon. Said 100 foot setback shall extend from the property
line;
It has come to our attention that the building presently under
construction on Lot W is being constructed utilizing a rear setback of
�a
Planning Board -2- April 14, 1982
considerably less than 100 feet. In fact, the foundation for the
building is approximately 60 feet from the rear property line separating
Lot W from certain parcels of land whereon the Condons and the Goodriches
reside.
Under separate cover, I have this day sent a request to the Build-
ing Inspector for enforcement by him of applicable provisions of the
Zoning By-laws; and I advised him of the failure to conform with the
Planning Boards's conditions. A copy is enclosed herewith. This
request is made to ask you to exercise your enforcement powers under
the subdivision control law which is also violated by the actions
outlined herein.
Very truly Xgurs,
JJ eph A. Grasso, Jr.
JAG: tab
Enclosure
Gam'
oirfLo VCL��e� CL/G d 9'.4.40
J4�i`o�a�s a` oLa�o, � C2
1!Z_0I11e�`� �
CERTIFIED MAIL
RETURN RECEIPT REQUESTED.
Jm Cruex Jlree` - eKmee ece, -Illaii Oi�lrO
April 14, 1982 6'17666-010
6'17666-6>Sl
Charles H. Foster,
Building Inspector
Town of North Andover
Main Street
North Andover., Massachusetts 01845
Re: Request for Enforcement Pursuant to
General Laws, Chapter 40A, Section 7
Dear Mr. Foster:
This office represents Edward and Nancy Condon and Robert and
Monique Goodrich, all of. Marian Drive in North Andover. Pursuant to
Massachusetts General Laws, Chapter 40A, §7 our clients request that
you enforce the provisions of the Zoning By-laws of the Town of North
Andover with respect to an industrial building presently under con-
struction on Lot W, Plan No. 8648, North District of Essex Registry of
Deeds,_bel.ieved.to be owned by A.R.C. Realty Corporation and located
on Flagship Drive.
Specifically, our clients maintain that the building currently
under construction thereon is being erected in violation of several
provisions of the Zoning By-laws, including Section 2.71, 2.73, Section
4.129 (12), and Footnote 3 to Table 2 Summary of Dimensional Require-
ments, which requires an additional 50 foot side or rear setback in
addition to the normal 50 foot side or rear setback. You are directed
to a letter dated October 20, 1.980 from your office to the Planning
Board relative to this very matter wherein you indicate that the yard
setbacks are always taken from the lot line. You are further directed
to Section 2.73 which defines rear setback as that space between the
rear of the building and the rear lot line of the lot on which such
building stands.
The building under construction on Lot W is being erected less
than 100 feet from the property lines of some of the residential abutters.
In fact, the building is approximately 60 feet from the rear property
line.separating Lot W from the Condon and Goodrich properties. Accord-
ingly, we ask that you enforce the Zoning By-laws, levying such penalties
as are provided therein, and further that you prevent, correct, restrain
and abate the violations discussed herein. We ask that you revoke the
building permit issuedthereon and/or decline and refuse to issue a
Certificate of Occupancy allowing the use of any building constructed
Exhibit 1
Charles H. Foster,
Building Inspector -2- April 14, 1982
thereon until such construction complies with the 100 foot side and
rear setback requirements, taken from the lot lines of the abutters.
Under separate cover, I am sending a copy of this correspondence
along with an additional request to the Planning Board of the Town of
North Andover o enforce pursuant to law the conditions outlined in a
decision of the Planning Board dated October 20, 1980. Paragraph
number 7. of said conditions specifically states that a 100 foot setback,
taken from the property line shall apply to subdivision plan No. 8648.
A copy of any letter to the Planning Board is enclosed.
Your prompt attention to this matter in accordance with Chapter
40A, Section 7 is requested.
jlr truly y/6 rs,
J.seph A. Grasso, Jr.
JAG:tab
G® �p
An""Vs al -Fall, 6-P 1e
&iex JlreeLawmce, �1aJA eld V 0
°was Via- �April 14, 1982 6''7'686-010
JV 01?a4s1, 6A. 6''7' 686-69S'
CERTIFIED MAIL.
RETURN RECEIPT REQUESTED
Planning Board
Town of North Andover
Town Hall
North Andover, Massachusetts 01845
ATTENTION: Chairman
Re: Request for Review of Action of Building Inspector and
Exercise of Enforcement Under Massachusetts General Laws,
Chapter 410, Section 81Y.
Dear Mr. Chairman:
This office represents several taxable inhabitants of the Town of
North Andover, inter alia Edward and Nancy Condon and Robert and
Monique Goodrich, all of Marian Drive, North Andover. You are hereby
requested to utilize your powers under Massachusetts General Laws,
Chapter 41, Section 81Y to annul and enjoin certain actions violating
the provisions thereof. Specifically, your attention is directed to
the fact that a building presently under construction on property
believed to be owned by A. R. C. Realty Corporation, Flagship Drive,
Lot W, Plan No. 8648 North Essex Registry of Deeds, is being constructed
in violation of conditions lawfully imposed by the Planning Board on
October 20, 1980 in its decision to approve the definitive plan of
land entitled "Willows Industrial Park Extension, dated June 13, 1980
and revised October 6, 1980."
The.minutes of your meeting for October 20, 1980 indicate at
Paragraph 7. that construction adjacent to the residential district
(Marian Drive) which adjoins tot W should utilize a 100 foot side or
rear setback. Specifically, your decision stated:
"7. That, as required by our Zoning By -Law, Table 2 Summary of
Dimentional Requirements, Footnote 3: Adjacent to residen-
tial districts, the required side or rear setback shall be
100 feet. The first 50 feet shall remain open and green, be
suitably landscaped, unbuilt upon, unpaved and not parked
upon. Said 3.00 foot setback shall extend from the property
line;"
It has come to our attention that the building presently under
construction on Lot W is being constructed utilizing a rear setback of
Exhibit 1 Enclosure
Planning Board -2- April 14, 1982
considerably less than 100 feet. In fact, the foundation for the
building is approximately 60 feet from the rear property line separating
Lot W from certain parcels of land whereon the Condons and the Goodriches
reside.
Under separate cover, •I have this day sent a request to the Build-
ing Inspector for enforcement by him of applicable provisions of the
.Zoning By-laws;.and I advised him of the failure to conform with the
Planning Boards's conditions. A copy is enclosed herewith. This
request is made to ask you to exercise your enforcement powers under
the subdivision control law which is also violated by the actions
outlined herein.
V ry truly ours,
r )-
J, eph,,A. Grasso, Jr.
JAG: tab
Enclosure
NORTH ANDOVER BUILIDING DEPARTMENT
120 MAIN STREET
NORTH ANDOVER, MA 01845
INSPECTOR OF BUILDINGS
ELECTRICAL INSPECTOR
GAS INSPECTOR
Joseph A. Grasso, Jr., Esq.
300. Essex Street
Lawrence, Ma. 01810
Dear Sir:
April 28, 1982
I am replying to your letter regarding a request for
enforcement of the Zoning By—Law of the Town of North Andover.
TEL. 888-8102
When A.R.C. Realty applied for their building permit, I
very carefully reviewed the zoning setbacks to make sure that the
building permit, when issued, would comply with all zoning require—
ments. Footnote 113 of Table 2 has to do with the additional 50 ft.
requirement on Industrial districts abutting Residential districts.
I re-examined the zoning map, the Assessor's plat and the engineer',;,
certified ?lot plan and found nothing to change my original decision.
The building does not require an additional 50 ft. setback because
the land of Condon and Goodrich abutting Lot "W" Flagship Drive, is
zoned industrial rather than residential.
in effect.
CHF: ad
Therefore$ the building permit is not revoked and remains
Very truly yours,
CHARLES H. FOSTER.
INSPECTOR OF BUILDINGS
Exhibit 2
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