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Miscellaneous - 1077 OSGOOD STREET 4/30/2018 (11)
t Q V �P O O Q. -t rb f 4 f ut C` v Mar []S! p#ra#itt WON Appiic atioD filed pC bearing due on: 7' neasiou due am �0 7 7 ac wO �' 7"�..L QU i lM�� 'Aa�til�(aJ v :a�a I "uO�°A�i�r YazYH�i�aj • �� SOU Z9&�q - Ise b 'T �vwf 1 R E yORTFI 3? 4�`r * 6me Stam o REp ��O p Tai tv! v 1=R�;'s OFFICE1 — 2005 AUG -3 PM 2. 55 cHUS t� MIM OF ZONING BOARD OF APPEALS HQRtH An0OVE,` Community Development Division MASSACHUSETTS S ` 1 Any appeal shall be ailed within Notice of Decision (20)days after the date of filing Year 2006 of this notice in the office of the Town Clerk,per Mass. Gen.L.ch. §17 Property at: 1077 Osgood Street NAME: Frank J.Ragonese, 1939 Great Pond REARING(S): July 18,2006 Road ADDRESS: re:property at: 10-770-sgood Street PETITION: 2006-023 North Andover,MA 01845 TYPING DATE: July 28,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,July 18,2006 at 7:30 PM in the Senior Center, 120R Main Street,North Andover,Massachusetts upon the application of Frank J. Ragonese, 1939 Great Pond Road,requesting a Finding from the Zoning Board of Appeals under Section 4, Paragraph 4.136, Section 8,Paragraph 8.3.8, Section 10,Paragraphs 10.1.1,and 10.4 of the Zoning By-law in order to appeal the Inspector of Building's failure to act upon petitioner's request for enforcement action of alleged Zoning Bylaw violation by Angus Realty Trust d/b/a Butcher Boy,1077 Osgood Street,(Map 35, Parcel 27)North Andover,MA. Legal notices were sent to all names on the abutter's list and were published in the Eagle-Tnbune,a newspaper of general circulation in the Town of North Andover,on July 3& 10,2006. The following voting members were present: Ellen P.McIntyre,Joseph D.LaGrasse,Richard J.Byers,Albert P. Manzi,III,and Thomas D. Ippolito. The following non-voting members were present: Richard M.Vaillancourt, and Daniel S.Braese. Upon a motion by Albert P.Manzi,III and 2nd by Richard J.Byers,the Board voted to uphold the Inspector of Buildings/Zoning Enforcement Officer's letter of April 27,2006 and DENY the Finding of the party aggrieved. Voting in favor of the motion to deny the Finding. Ellen P.McIntyre,Joseph D.LaGrasse,Richard J.Byers, Albert P.Manzi,III,and Thomas D. Ippolito Town of North Andover Board of Appeals, Ellen P.McIntyre,C Decision2006-023. M35P27 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 918.688.9541 Fax 918.688.9542 Web www.townofnorthandover.com t r �1ORTy q _ •_ ` 6 OL t t:.r Lam, O� ,4 Y�` 2006 JUN 15 AM 9: 33 T q fOCwKw1w[w`'t� 'Tf9 °gwno r� r ' }SS�1CHu5� �°�s�.1`�T��j'�?1.��l.l,v,W ., ZONING BOARD OF APPEALS Community Development Division M SSA JHTS .f .. Legal Notice North Andover, Board of Appeals Notice is hereby given that the North Andover Zoning Board of Appeals will hold a public hearing at the top floor of Town Hall, 120 Main Street, North Andover, MA on Tuesday the 18'h of July, 2006 at 7:30 PM to all parties interested in the application of Frank J. Ragonese, 1939 Great Pond Road, requesting a Finding from the Zoning Board of Appeals under Section 4, Paragraph 4.136, Section 8, Paragraph 8.3.8, Section 10, Paragraphs 10.1.1, and 10.4 of the Zoning By-law in order to appeal the Inspector of Building's failure to act upon petitioner's request for enforcement action of alleged Zoning Bylaw violation by Angus Realty Trust d/b/a Butcher Boy, 1077 Osgood Street,(Map 35, Parcel 27)North Andover, MA. Said premise affected is property with frontage on the East side of Osgood Street within the GB zoning district. Plans are available for review at the office of the Board of Appeals office, 400 Osgood Street, North Andover, MA Monday through Friday from the hours of 8:30 to 4:30PM. By order of the Board of Appeals Ellen P. McIntyre, Chair Published in the Eagle-Tribune on July 3 & 10, 2006. f Legalnotice 2006-023. M35P27. oho zau�a c)o0 u; z^ice<_.w m=w 5w-1�0 o u� T� 1� "__1Z s� .N� ao . p. fD�oo ��0°<0oa� wo�NwCD a-0 .awvw��QaCga0ID-, r_ °'onor _43.'. - OS �'7o003��. ��pµ.00D Ntpolo9S01oO.�X�0jy pdj�"_a�OftWS-'��rn QD°���•�omD�NO �ommoo3 .vW�o°�OwN "•�•��>o�wp� ='!9p o-o`oD? •��mmo- cow�N� ,p� mss• maD000��.i�a ��wOrnO r !� o a ao�c`a � y�M§yg°�'�co� w9aov=o�� °�mc�om�°°m°-o'O °Er( Z.I ro $ cis. `so a-� •c ww o m w sa OQ W@ Dm _0 9: �, •y.�w go NCH �y.o c•v:�c��m y m��a�`S- o�DDa•�<d 0 ,0 v °�D=to ���mD..r.mmWO.!3oy�- � vc°co ���S�D�-aw�p�.Dmm . Hm o3?~mm� m°ma ��O pO NCD i CMM L s�c'n�u,m�m°—'��m`i�,m��N� N1 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9541 Fax 978.688.9542 Web www.townofnorthandover.com 1 zBA345 -- NORTN 0� TOWN OF NORTH ANDOVER RECEIPT S`rgCHU5E 1 This certifies that ... G✓� ��r !,k�... ' W►.�.►�1 j�....................... has paid t• !..© ....0 M�... .7.7. ..7.................................... for 1....r✓?..�..l..l! ...... ?Z.i....0.2 3............................................ J ,• i Received by......... .. . . y7.P.�1�:??.� .............................................. Department......... ............................................................... WHITE: Applicant CANARY:Department PINK:Treasurer No.: - .3 Date - .�' f NORTH TOWN OF NORTH ANDOVER FOS qt 6OLp BUILDING DEPARTMENT �90 �c Building/Frame Permit Fee $ S^CHUS Foundation Permit Fee $ J Other Permit Fee 10 / / G ' IlanRd -,5 A URBELIS&FIELDSTEEL.LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 TnoMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 November 28, 2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street Nof a Aundove.r, MA 01845 RE: FRANK J.RAGONESE V.MANZI,ET AL. Dear Board Members: Enclosed please find the Order on Defendants Butcher Boy Meat Market, Inc. and Angus Realty Corporation's Motion for Thirty-Day Stay of Judgment dated November 26, 2007. Please call if you have any questions. Very truly yours, J Thomas J belis TJU/kmp Enclosure cc: Board of Selectmen (w/enc) Mark Rees (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) NOV ? J tUU/ BOARD OF Hr PEALS c�X4� +- � (SEAL) COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V. ) ALBERT MANZI III, ELLEN MCINTYRE,) JOSEPH LaGRASSE, RICHARD BYERS, ) and THOMAS IPPOLITO, as members of ) the North Andover Board of Appeals, ) GERALD BROWN, as Building Inspector ) of the Town of North Andover, BUTCHER ) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. ) ) ORDER ON DEFENDANTS BUTCHER BOY MEAT.MARKET, INC. AND ANGUS REALTY CORPORATION'S MOTION FOR THIRTY-DAY STAY OF JUDGMENT By agreement of the parties, the injunctive orders in the final judgment (1) directing the building inspector to enforce the North Andover Zoning Bylaw in accordance with the Decision of the court dated October 31, 2007, and (2) directing Butcher Boy Meat Market, Inc. and Angus Realty Corporation to remove the trailers from the setback by no later than thirty days from the date of the judgment (i.e. on or before November 30, 2007) are hereby STAYED for an additional thirty days and shall now take effect January 2, 2008. SO ORDE D. ost: on J.) Deborah J. Patterson, Recorder Dated: 26 November 2007 A,TRUE COPY ATTEST: NOV 2 � LU07 � RECORDER BOARD OF A,-TEALS URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 e-mail tju@uf-law.com Andover Telecopier 617-338-0122 Telephone 978-475-4552 November 9, 2007 Board of Selectmen North Andover Town Offices 120 Main Street North Andover, MA 01845 RE: FRANK J. RAGONESE VS. NORTH ANDOVER PLANNING BOARD,ET AL. (BUTCHER BOY) Dear Members: A Notice of Appeal (if any) to the Massachusetts Appeals Court of the Land Court decision must be filed by November 29, 2007. Unless I hear from you to the contrary, I will not file a Notice of Appeal. Very truly yours, Thomas J. rbelis TJU/kmp cc: Zoning Board of Appeals Mark Rees Gerald Brown \�rk n dE\c�esp\i lectm n'i _.gonese.doc NOV 14 NO I BOARD OF ANNEALS URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 Telephone 617-338-2200 Andover THOMAS J.URBELIS Telephone 978-475-4552 e-mail tju@uf-law.com Telecopier 617-338-0122 November 1,2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover,MA 01845 RE: FRANK J.RAGONESE V.MANZI,ET AL. Dear Board Members: Enclosed please find the Judgment and Decision dated October 31, 2007. Please call if you have any questions. Very truly yours, Thomas J. belis TJU/kmp Enclosure k. cc: Board of Selectmen (w/enc) Board of Health(w/enc) Planning Board(w/enc) Mark Rees(w/enc) Raymond Santilli (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) Lincoln Daley (w/enc) Susan Sawyer (w/enc) Joyce Bradshaw(w/enc) Charles Salisbury (w/enc) UV 2 PV!',RD OF APPEALS I COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V. ) ALBERT MANZI III, ELLEN McINTYRE,) JOSEPH LaGRASSE, RICHARD BYERS, ) and THOMAS IPPOLITO, as members of ) the North Andover Board of Appeals, ) GERALD BROWN, as Building Inspector ) of the Town of North Andover, BUTCHER ) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. ) DECISION Introduction Butcher Boy Market ("Butcher Boy"), a gourmet supermarket in North Andover, stores meat and produce both inside its main building and in two cold storage trailers. Each trailer is forty-five feet long, eight feet wide, and 18,000 pounds in weight and they are parked in a space only twenty feet from Butcher Boy's property line, directly abutting a residential neighborhood. The trailers have been in that same location, with almost no interruption, for over seven years. So far as the record shows, Butcher Boy has no plans of ever moving them for anything other than periodic maintenance. The trailers' compressors run on electrical power supplied from the main building via a permanent concrete base and pole,to which the trailers are attached. The vv t I� NUV 2 - M1 b I BOARD OF APPEALS compressors run twenty-four hours a day, and the noise is so loud and disturbing to the neighbors that one of them—plaintiff Frank Ragonese—sought zoning enforcement action from the North Andover Building Inspector. The plaintiff requested the removal of the trailers, contending they were"buildings" illegally placed within the setback area. Butcher Boy disagreed with this contention, taking the position that its trailers were not "buildings" and, if it wished, it could ring the entire shopping center with such trailers inside the setback—each permanently hooked-up to the main store for electricity and each with compressors operating twenty-four hours a.day—without violating any current zoning regulation. The building inspector refused to take enforcement action. North Andover's Board of Appeals (the"Board") upheld this decision. Mr. Ragonese timely filed this G.L. 40A, § 17 appeal from the Board's decision to this court. The case was tried before me, on a"case stated"basis, on stipulated facts and exhibits. Based upon those facts, those exhibits, and the North Andover Zoning Bylaw (the "Bylaw" or"North Andover Zoning Bylaw") as applied to those facts and exhibits, I find and rule that the trailers at issue are"buildings"within the scope and meaning of the Bylaw. As such, they may not be located within the setback. Both the building inspector and the Board acted on a legally untenable ground, as well as arbitrarily and capriciously, in denying enforcement action. Their decision is therefore ANNULLED. The building inspector is hereby ORDERED to enforce the Bylaw in accordance with this Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty(3 0) days from the date of this Decision. 2 The Standard of Review In a"case stated" review, "any court before which the case may come, either in the first instance or upon review, is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at a trial, unless the parties expressly agree that no inferences shall be drawn." Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325, 326 (2006). The parties in this case agreed to "case stated" review without any limitations, and I do so. The Standard for Judicial Interpretation of a Zoning Bylaw The interpretation of bylaws is a question of law for the court, to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981). Where ambiguities exist in the language, a statute—or, as here, a bylaw—is to be interpreted according to "the intent of the Legislature ascertained from all its words construed by the ordinary and -- - - --=--appr-0ued usage.o thelangu_age,, considered_in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Moloney v. Boston Five Cents Savings Bank, FSB, 422 Mass. 431, 433 (1996). The language of the provision at issue is to be construed "in association with other statutory language and the general statutory plan." Sperounes v. Farese, 449 Mass. 800, 804 (2007) (quoting Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 497 (1984)). "Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Id. (quoting FMR Corp. v. Commissioner of Revenue, 441 Mass. 810, 819(2004)). In addition, 3 deference is given to a board's "reasonable interpretation" of its own bylaw. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921, 923 (1997). Where a literal reading of the terms of a"municipal bylaw would lead to an absurd or unreasonable result, that reading is rejected in favor of one that comports with the purpose of those terms. Springfield Preservation Trust, Inc. v. Springfield Library and Museums Ass'n Inc., 447 Mass. 408, 422 (2006). See also Todino v. Town of WelNeet, 448 Mass. 234, 238 (2007) (even a strict interpretation must be reasonable; "the focus remains on the intent of the Legislature"). Facts The parties stipulated to the following facts: • Plaintiff Frank J. Ragonese is the owner of a single-family residence on a lot located at 1939 Great Pond Road in North Andover, Massachusetts. Stipulation #1. • Defendant Angus Reap Trust is the_owner_of a commercial propert��_located.at. 1077 Osgood Street, North Andover, Massachusetts. Stipulation#2. • The Ragonese lot and the Angus lot abut at the southeasterly boundary of the Angus lot. Stipulation#3. • Mr. Ragonese has standing to bring this action. Stipulation#4. • The Angus lot, comprising approximately 5.3 acres of land, is located in two zoning districts in the Town of North Andover, namely the B-2 (business) and G.B. (general business) districts. Stipulation#5. Mr. Ragonese's lot is located in a Residential-2 (R-2) zoning district. Stipulation#6. 4 • Defendant Butcher Boy Meat Market, Inc. has operated a market on the Angus lot since the 1950's. Stipulation#7. • Angus received three special permits from the North Andover Planning Board in 1990 and 1991 to reconstruct the building on the Angus lot. Stipulation#8.' Angus built a single-story 35,000 square foot building for retail use. Butcher Boy occupies this building along with six other retail tenants. Butcher Boy occupies approximately 13,000 square feet of the building. Stipulation#9. • Butcher Boy once sold mostly meat products. Over time, it diversified into a retail food market. Today, it continues to specialize in quality meats, with approximately fifty percent(50%) of its store area dedicated to meat products. Stipulation#10. • Butcher Boy requires cold storage for its meats and produce. It has cold storage both on and off site. Stipulation#11. -_ ----•-=In 2-OOO,—But-cher-Boy-required:more`cold_stoxage_for meats and -roduce.- It acquired two cold storage trailers. Stipulation#12. Butcher Boy purchased one trailer on or about August 14, 2000 and leased the other trailer from August 2000 until it purchased that trailer on or about August 18, 2005. Stipulation#13. • The two trailers are used for cold storage and must be maintained at a storage temperature of thirty to thirty-four degrees. Butcher Boy stores meats and produce in these trailers for sale at its store. Stipulation#14. I The first of the special permits allowed Angus to construct a detention pond within the Lake Cochickewick Watershed District. Trial Ex.2. The second-a site plan approval—allowed Angus to construct a 320' x 120' two-story retail-office building on its 5.3 acre site. Trial Ex.3. The third modified the site plan approval,reducing the number of stories from two to one. Trial Ex.4. 5 • The equipment used to maintain these temperatures requires electricity. Stipulation#15. On June 16, 2000, Butcher Boy obtained an electrical permit to connect an electrical source to the two trailers. Stipulation#16. • Butcher Boy erected a pole on a cement base to place the electrical equipment needed to power the two trailers. Stipulation#17. The electricity to power the two trailers comes from wires that lead to the Butcher Boy premises. Stipulation #18. The electrical pole is located at the rear of the Angus lot at its southeasterly boundary. Stipulation#19. • The two trailers are located at the site of the electrical pole, which is located near the delivery doors at the rear of the Butcher's Boy store. Stipulation#20. The two trailers have remained at this location since 2000 to the present, but have been moved on occasion for maintenance and repairs or to be re-registered. Stipulation#21. The two trailers are registered in the State of Maine to Butcher Boy. Stipulation#25. • On occasion, other trailers that operate with diesel and not electricity are brought to the Angus lot during busy seasonal use,which is not an issue in this case. Stipulation#22. • A photograph taken from the air shows the Angus and Ragonese lots, the building where Butcher Boy operates its business, the Ragonese house and the two trailers. Stipulation#23. See Ex. 1 attached to this Decision. The two trailers are located approximately twenty(20) feet from the southeasterly boundary of the Angus lot. Stipulation#24. 6 • Each trailer is approximately the same size and weight. Each trailer is forty-five feet long, eight feet wide and thirteen feet, six inches high from the ground to the top of the trailer.' Each trailer weighs approximately 18,000 pounds. Stipulation #26. Each trailer has four wheels on the rear, and two steel supports at the front. Stipulation#27. In order to move one, a cab or tractor must be attached to the trailer. Stipulation#28. • Each trailer is constructed of steel and aluminum. The walls, roof and floor are insulated. The thickness of the walls, roof and floor is approximately three inches. Each trailer has doors for access, and no windows. Stipulation#30. o For approximately one year, Butcher Boy placed a hood between the two trailers. The hood was held up on two posts and placed on top of the trailers. The hood was removed in the beginning of 2007. Stipulation#29. • On April 14, 2006, Mr. Ragonese made a formal request to the Building Inspector _for-zoning-enforcemeritaction -contend-ing that Butcher-Bo _``has:--.. W—__.. placed/constructed accessory structures in violation of the approved site plan and failed to obtain any permits prior to action." Trial Exhibit 5. By letter dated April 27, 2006, the Building Inspector refused that request. Trial Exhibit 6. On May 24, 2006, Mr. Ragonese timely appealed the Building Inspector's denial to the North Andover Board of Appeals. Stipulation#31 & Trial Exhibit 7. The Board upheld the Building Inspector's denial by decision filed with the town clerk on August 3, 2006. Trial Exhibit 8. Mr. Ragonese timely appealed that decision to this court. Stipulation#31 &Trial Exhibit 9 2 Since the interior of the trailers are more than six feet high,they each thus contain more than 2,500 square feet of storage space. 7 • On May 23, 2007, one of the trailers was moved from its location, taken out of the Butcher Boy parking area with a motorized tractor, driven on Route 125 in front of the Butcher Boy plaza, and returned to its prior location. Stipulation#32. At all times relevant hereto, both trailers have been federally inspected, mobile, and have met all federal and state standard[s] of roadworthiness. Stipulation#33. The Relevant Bylaw Provisions The Town of North Andover's Zoning Bylaw lists among its purposes "preventing overcrowding of land," "conserving the value of land and buildings," and "providing adequate light and air." Bylaw § 1. It defines an "accessory use or structure" as "a use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building." Bylaw § 2.21. It defines a"building" as "a structure having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26. It defines a"structure" as "a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers,radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words `or part thereof"' Bylaw § 2.68.3 3 Because the parties presently disagree on the correct wording of this bylaw provision,I.take the wording as it appears in Stipulated Exhibit 16,p.22. In a post-trial submission,the Town Clerk certified that the actual language of Bylaw § 2.68 (the definition of"structure")is"a combination of materials to form a construction that is safe and stable,including,among others,buildings, stadiums, tents,reviewing stands,platforms,staging,observation towers,radio towers,water tanks,towers,private and public swimming pools,trestles,piers and wharves,sheds,shelters, fences and walls,and display signs;the term structure shall be construed as if followed by the words `or part thereof."' Letter from Town Clerk Joyce 8 It defines "Yard, Rear(Setback)" as "an open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands." Bylaw § 2.74. Buildings in B-2 districts are required to have a minimum rear setback of thirty feet. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements. Buildings in GB districts are required to have a minimum rear setback of thirty-five feet. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements. Adjacent to a residential district, an additional fifteen foot rear setback is required in both the B-2 and GB districts, with the first fifteen feet of the total setback abutting the residential district to remain open and green, be suitably landscaped, un-built upon, unpaved, and not parked upon. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements; n.2. Analysis This case presents a single issue. Are 2,500+ square foot cold storage trailers, _registered as "Ion semi-trailers"in the State of Maine and capable of being moved if hitched to a cab or tractor but, in actuality,permanently parked and receiving their electric power by permanent hookup to a retail supermarket market building whose operations use them as permanent storage space, "buildings"within the scope and meaning of the North Andover Zoning Bylaw and thus subject to its building setback requirements? I conclude that they are. Any other conclusion not only contradicts the express language of the Bylaw,but completely undercuts its clear intent and would lead to an unreasonable result. A. Bradshaw(July 11,2007). Since my Decision would be the same under either wording,the difference is not material. 9 I begin with the purposes of the Bylaw, which include the prevention of overcrowding, conserving the value of land and buildings, and providing adequate light and air. Bylaw § 1. Building setbacks are central to the achievement of these purposes, and it is significant that the Bylaw requires an additional fifteen foot setback in business zones abutting residential zones. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirement; n.2. The clear intent of this requirement is to have a wide separation between residences and the noise, traffic and other impacts of commercial enterprises. Whether Butcher Boy's trailers must conform to these setback requirements requires me to deternline whether the trailers are "buildings" within the.meaning of the Bylaw. Consistent with the intention to have wide separations, "buildings" are given a broad definition in the Bylaw. They are "structure[s] having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26. "Structures" are broadly defined as "a combination of materials to form a construction that is safe and stable," and "sheds,""shelters" and even "tents" are given as explicit examples. Bylaw § 2.68. Butcher Boy, supported by the decisions of the building inspector and the Board, contends that its cold storage trailers are not"buildings"because they lack permanency. They can be moved at any time, Butcher Boy says, and they have up-to-date registrations so they can be so moved. It is indicative, however, that they have not been moved in over seven years except for periodic maintenance and for a trip around the block, shortly before trial, to show the court their mobility if a need arose. It should not go unnoticed that Butcher Boy never saw such a need previously. 10 Moreover, Butcher Boy's argument ignores the clear language of the Bylaw. As just noted, "buildings," are defined as "[1] structure[s] having a roof supported by columns or walls [2] for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26. The cold storage trailers in this case perfectly fit both aspects of this definition. They have a roof supported by walls. They are used for the shelter, support and enclosure of property. They receive the electricity they need via a permanent hookup (wires attached to a pole, mounted on a permanent concrete base that required an electrical permit from the town).4 They are buildings because they are in a fixed location and intended, and used,for permanent storage. As their seven years in the exact same location show, they are neither used,nor intended for use, as mobile transport. They are, for all practical purposes, accessory structures mounted on a wheeled base, the wheels serving solely as foundation posts.5 To see them as anything other than storage buildings is to ignore reality. As the late Supreme Court Justice Felix Frankfurter observed in another context "there comes a point_where [we] should not be ignorant as judges of what we know as men." Watts v. Indiana, 338 U.S. 49, 52 (1949). This is that point.6 4 Trial Ex. 13. 5 See State v. Perry, 149 Conn.232,235(1962)(finding that the use of trailers was an attempt to expand freezing and storing operations in violation of the zoning regulations). Although State v.Perry is a nonconforming use case,the court saw through the defendant using a trailer(which,as in this case,could be moved)to impermissibly expand his operations in violation of the zoning regulations. I agree with the logic of the Supreme.Court of Connecticut—"What he cannot do directly he has attempted to do indirectly by the importation of the trailer." Id. Butcher Boy cannot use a trailer to avoid the setback requirements for buildings. 6 I reject Butcher Boy's argument that,because"trailers"are not explicitly referenced in the Bylaw definitions of"structures"or"buildings,"they cannot be considered as such. The Bylaw definitions are broad ones,focusing on function rather than name, and the specific references (e.g.,"shed,""shelter") are inserted for illustrative purposes,not limiting ones. The Bylaw definition of"structure"specifically says "including,"not"limited to." I also reject Butcher Boy's argument based on Tolley Co. v. Theken,Jackson Township Zoning Inspector,2000 Ohio App. LEXIS 3699 (Aug. 14,2000). Tolley Co. is a decision from another state and has no precedential effect in Massachusetts. I note that it was decided by a regional appellate court,and was never reviewed by a higher court. I am also not persuaded by its reasoning. It interprets a different Bylaw and,in my view,does so incorrectly. See State v. Perry,supra. Finally,I reject Butcher Boy's argument that"buildings"must be"permanent"to fall within the Bylaw's definition. The word"permanent"does not appear in either Bylaw§§ 2.26 or 2.28. It appear only in an unrelated 11 Butcher Boy's arguments implicitly raise the specter of the slippery slope. Surely delivery trucks can park overnight prior to being unloaded without being deemed "buildings." What about two nights? What about a few more? At what point are trailers transformed into "buildings"? Does such an inquiry inevitably drift into an analysis of "intent," and may a zoning board permissibly conduct such an inquiry? More importantly, does the North Andover Zoning Bylaw allow such an analysis? There is a short answer to these questions, and that is this. None of them arise in the context of this case. Here,the Bylaw focuses on function (does the structure have a roof supported by walls and if so is it being used for the shelter, support or enclosure of persons,,animals > g Pp or property"?). It is conduct that is being judged —the continuous, seven-year usage of cold storage trailers, with their compressors "on" around the clock,parked in a single location near the store's receiving dock, getting their electricity via a permanently- installed hookup that required an electrical permit to be built. In a very real sense, all law consists of drawing lines. This line is an easy one, and long since crossed. See Irwin v. Gavit,.268 U.S. 161, 168 (1925) (Holmes, J.). Other than the Bylaw requirement that they have walls and a roof, it is not, as Butcher Boy argues, the nature of the trailers that determines whether they are "buildings" or not. It is the nature of their use. The trailers are not being used for transport. They have been in a single location for years and are used exclusively for storage. As such, they are "buildings" subject to the Bylaw's setback requirements. section of the Bylaw, § 4.136(c)(iii) (prohibited uses in Watershed Protection District buffer zones), and its absence from the provisions relevant to this case is thus significant. Moreover,to the extent the trailers need a degree of permanency to fall within the definition of a building,their seven-year use for the same purpose at the same location is sufficiently permanent. 12 Conclusion For the foregoing reasons, the Board's decision upholding the building inspector's refusal to take zoning enforcement action against the Butcher Boy cold storage trailers is ANNULLED. The trailers are"buildings" within the meaning of the North Andover Zoning Bylaw, and thus must comply with the Bylaw's setback requirements. The Board's and the building inspector's rulings to the contrary were incorrect, arbitrary and capricious,would lead to an unreasonable result contrary to the clear intent of the Bylaw, and thus are not entitled to any deference. The building inspector is hereby ORDERED to enforce the Bylaw in accordance with this Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty (30) days from the date of this Decision. Judgment shall issue accordingly. SO ORDERED. —Keith C -L— ong, ustc — --- Dated: 31 October 2007 13 I n, sally IsEhrwlC' :.. �,•, .,- •. t'' 5;�;. 1�'fi!„�i 't '! n:';:., ,� �.. „ d+.,�y'"A'-t _�� ��. +t"�,_•,. �;4`�s r �� p' t i 1 , i1 it � {• r 4.1. 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I� ��1 {11 I�l�'��F� T' q ., r :V��jf 1t � 'l i�.hl 'L ll!I16r i,rtl t,lkslf, i:{.Illl � .., _ 1<I.,t1� A i,g Yv' + ,r # i$$ 1 rSr' •'! a `4'" }i}'^� 1}I�Y tr II t�,1j'yyail r! }I IL) '1 i� � iTll ill/I /� -!4 le P,'j � },. s [i �k _�f l �. ]y1 a. d, r• r. ..�! J 7'Ei'�!'� t �I II 11 e 1 r E ;�! y�E; �l 77 yt.r !•fir la li r :I�, Iy►�}1}5 j.] 9 i�, *�:��r �Ir +$:S{:fi t I'l li'S'•,��� � � +-n, �. 11fkF 1 t 1. �t ;,:,:,. .,ir C ,rF.l:lt'!\=�' f � 1 (-SEAL! COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V. ) ALBERT MANZI III, ELLEN McINTYRE,) JOSEPH LaGRASSE, RICHARD BYERS, ) and THOMAS IPPOLITO, as members of ) the North Andover Board of Appeals, ) GERALD BROWN, as Building Inspector ) of the Town of North Andover:, BUTCHER. ) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. ) JUDGMENT This case is plaintiff Frank J. Ragonese's G.L. c. 40A, § 17 appeal from the August 3, 2006-decision of-theNortlTAnd-over--B-oard-o -Appeals-a rming-t e Bui rng-Inspectors--ema - --of zoning enforcement action against defendant Butcher Boy Meat Market, Inc. For the reasons set forth in the court's Decision of this date, the Board's decision is ANNULLED. The building inspector is hereby ORDERED to enforce the North Andover Zoning Bylaw in accordance with the Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty (30) days from the date of this Judgment. SO ORDE B t ng, J.) At Deborah J. Patterson Recorder Dated: 31 October 2007 A TRUE COPY . ATTEST RECORDER UR13ELIS &FIELDSTEEL,LLP 155 FEDERAL STREET CBOSTON,MASSACHUSETTS 02110-1727 THOMAS I URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 August 23, 2006 Clerk Land Court Department 226 Causeway Street Boston, MA 02114 RE: FRANK J.RAGONESE VS. NORTH ANDOVER BOARD OF APPEALS,ET AL. DOCKET No. 06 MISC 328227 Dear Clerk: Enclosed please find my Notice of Appearance in the above matter. Very truly yours, Thomas J. �71 elis TJU/kmp Enclosure cc: Leonard F. Femino, Esq. (w/eric j. E � W N AUG 2 4 2006 BOARD OF APPEALS w.,�vpS 1'nvork`ji-widove�ragonese\coun.kr.doc TTu + �- 2DD b-pA3 0 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. LAND COURT DEPARTMENT DOCKET NO. 06 MISC 328227 FRANK J. RAGONESE, Plaintiff V. ALBERT P. MAitiTZI III, ELLEN P. MCINTYRE, JOSEPH D. LAGRASSE, RICHARD J. BYERS and THOMAS D. IPPOLITO, as they are members of the North Andover Board of Appeals, and GERALD A. BROWN, As Building Inspector, Defendants NOTICE OF APPEARANCE Please enter my appearance for the Defendants the North Andover Board of Appeals and Gerald A. Brown, Building Inspector. Date: August 23, 2006 NORTH ANDOVER BOARD OF APPEALS and GERALD A. BROWN, Building Inspector By their attorney, Thomas J. Urbeli6jBBO #506560 URBELIS & FIELDSTEEL, LLP 155 Federal Street Boston, MA 02110 (617) 338-2200 AUG 2 4 2006 D BOARD OF APPEALS w:\wp5 i\work\n-andove\ragonese\appearance.doc CERTIFICATE OF SERVICE I, Thomas J. Urbelis, hereby certify that I served a true copy of the Notice of Appearance by mailing same first-class mail, postage prepaid, to counsel of record Leonard F. Femino of Alexander & Femino, One School Street, Beverly, MA 01916 on this 23`d day of August, 2006. Thomas J. Ur is 2 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju(a)uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 July 23, 2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover, MA 0i.845 RE: FRANK J.RAGONESE V. MANZI,ET AL. Dear Board Members: Enclosed please copies of the following: I. Letter dated July 16, 2007 from Attorney Leonard Femino to the court with exhibits; and 2. Letter dated July 19, 2007 from Attorney Matthew Caffrey to the court. Very truly yours, 414U14SAvAu4z` Thomas J. belis TJU/kmp Enciosures JUL 15 L007 D BOARD Or-APPEALS A ALEXANDER & FEMINO ATTORNEYS AT LAW ONE SCHOOL STREET BEVERLY,MASSACHUSETTS 01915 alexanderfemino@earthlink.net LEONARD F.FEMINO TELEPHONE(978)921-1990 THOMAS i.ALEXANDER FAX(978)921-4553 JERALD A:PARISELLA July 16, 2007 VIA FEDERAL EXPRESS ATTN: Scott Smith, Sessions Clerk The Honorable Justice Keith C. Long Justice; Land Court Department 226 Causeway Street Boston, MA 02114 RE: Frank J. Ragonese v. Manzi et al. Docket No. 328227 Dear Justice Long:. I am writing to you to clarify a point that was raised during oral argument July 6, 2007. At issue was the definition of"structure" (Section 2.6.8) in the North Andover zoning bylaw. It appears that the zoning bylaw definition was changed without proper authority and the bylaw presented to you does not contain the correct definition of structure. I submit to you two definitions of structure, Exhibit A which the Town of North Andover has on its current website as the definition of structure and was.presented to you as the current definition and Exhibit B, the definition of structure that was previously in the bylaw as the definition of structure, and was noted as the current definition in my brief. The Town Clerk has certified (Exhibit C) that Exhibit B is the correct definition forcture. I have enclosed the certificate from her for your review, and wish to submit LU JUL Z 5 is current as part of the record. BOARD OF APPEALS 6 The Town Clerk states there is no record that the definition of structure was amended by Town Meeting, and the definition of structure has not changed since at least 1995. I have sent a copy of this correspondence and attached documents to all counsel of record in this case. I appreciate your attention to this matter. Very truly yours, PeonardF. Femino LFF/gsw Enclosures CC: Matthew A. Caffrey, Esquire / Thomas J. Urbelis, Esquire Frank Ragonese 2 EXHIBIT A EXHIBIT A conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw. 2.66 Special Permit Use A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 Street A public way or a private way open to travel by the general public, or a way shown on a plan of a subdivision theretofore duly approved by the Planning Board. 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers,water tanks, towers, private and public swimming pools,trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words "or part thereof". 2.69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot, as provided by this Bylaw. 2.70 Tributary Any portion of any brook, stream, bog, swamp, or pond, which flows into Lake Cochichewick. 2.71 Yard (Setback) An open space which lies between the principal building or group of buildings and a lot line. 2.72 Yard,Front (Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 2.73 Yard,Rear (Setback) An open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands. 2.74 Yard, Side (Setback) An open space between the side line of a lot and the adjacent side of any building thereon, such open space being understood to cover the entire extent between the front yard and the rear yard of such a lot. 2.75 (1985/25) See 2.30.1 2.76 Planned Development District 1. Planned Development District—A Planned Development District shall mean development of an area of land as a single entity, which lies in an Industrial S (I-S) District, in which a mixture of residential, open space, commercial, and/or industrial uses, and a variety of building types nd designs are determined to be sufficiently advantageous to render it appropriate to grant a ,7 JUL 51UU/ J 22 BOARD Or APPEALS EXHIBIT B EXHIBIT B 2.63 Rooming House Any building or portion thereof containing more than two and less than ten rooms without kitchen facilities that are used, rented or hired out to be occupied for sleeping purposes for compensation, whether the compensation be paid directly or indirectly. J 2,64 Special Permit The words Special Permit where used in this Bylaw shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General.Law. 2,65 Special Permit Granting Authority The Planting Board shall be the granting Authority of all Special Permits to Cluster Development, Planned Development District, (1985/15)driveways, nursing and convalescent homes, 'Watershed Protection District (1994/37), 'Wireless Service Facilities (1998/37) and large estate condominium conversions, The Board of Selectmen shall be the grunting authority of all Special Penults penaining to non-accessory signs as specified in Section 6.52 of This Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw. 2.66 Special Permit Unit A use of a building or lot or an action upon promises which niay be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a. Special. Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 Street �... A public way or a private way open to travel by the general public,or a way shown on a plan of a subdivision theretofore duly approved by the Planning Board, 2.68 Structure Means a combination of materials to forret a construction that is safe and stable, including, among others, buildutgs,stadiums,tents,reviewing stands,platforms,staging,observation towers,radio touters,water tanks, towers,private and public swimming pools,trestles, piers and wharves, Sheds,shelters,fences and walls, and display signs;the term structure shall be constmed as if followed by the words"or part thereof.'. 2,69 Town House An attached house in a row of three or more such houses capable of being sold as an independcnt dwelling with its own.lot,as provided by this Bylaw. 2.70 Tributory Any portion of any brook,stream,bog,swamp,or pond,which flows into Lara Cochichewick. 2.71 Yard(Setback) An open space,which lies between.the principal building or group of buildings and a lot line. 2.72 Yarm,Front(Setback) An open space extending Across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. ,v7 � 23 JUL Z 5 NO1 D _ . BOARD OF APPEALS EXHIBIT C NORTII O 9 K� Y SA US TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH-ANDOVER, MASSACHUSETTS 01845 Joyce A. Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshaw(iDtownofnorthandover.corn July 11, 2007 I, Joyce A. Bradshaw, Town Clerk for the Town of North Andover, do hereby certify that the following is in effect for Section 2.68 of the Zoning Bylaw for the Town of North Andover: SECTION 2 DEFINITIONS 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among others, buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words "or part thereof'. I also certify that there are no pending amendments to this section as of July 11, 2007 and according to Town Records this definition has been in place at least since 1995. Joyce A, Bradshaw, Town Clerk Callrev �J-smith, _l�iom.ae �.q�a�re P.O. 12ox 1317 Y(/uEE�i¢cu /d a� eek k 300 eimx Street,-Lnnnn wrence, M.01842 Jhomue y� �mit�i 978-686-6151 978-683-3399 ,/ antP�/MCAFFREY@CAFFREYSMITH.COM q� aCao admitted in / J4 U ekide: CAFFREYSMITH.COM July 19, 2007 Attn: Scott Smith, Clerk The Honorable Justice Keith C. Long Land Court 226 Causeway Street Boston, MA 02114 Re : Ragonese v. Albert P . Manzi, et al . Land Court Case No. 06 MISC 328227 Dear Justice Long : I am in receipt of the recent letter to the Court dated July 16 , 2007 , by Plaintiff ' s counsel . On behalf of the Defendants, I oppose that submission. I am further constrained to point out the following: 1 . The trial is concluded; no further evidence may be submitted. 2 . The definition of "structure" was contained within the Stipulated Exhibits, and was argued before the Court . It therefore cannot now be challenged. 3 . As a matter of equity, the Defendants should be permitted to rely on the latest version of the Zoning Bylaw, as it appears in hard copy and on the Town' s own website . The Defendants should not be required to verify that all previous versions of the Bylaw are consistent with the present version. 4 . Even if the Court accepts that some error has occurred regarding the . definition of structure in the Bylaws, that error should be addressed by a separate legal action against the Town. The accuracy of the Bylaw is an independent issue, which cannot be resolved within this case . 'I JUL 4 3 cuu! BOARD OF APPEALS C,a��re� �JYI7.iLYL, The Honorable Justice Keith C . Long July 19, 2007 Page -2- Thank you for your attention to this matter. Very truly yours, Matthew A. frey cc : All Counsel of Record EXHIBIT A conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special:Permits allowed in this Zoning Bylaw. 2.66 Special Permit Use A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 Street ` A public way or a private way open to travel by the general public, or a way shown on a plan of a P IS51 � -: subdivision theretofore duly approved by the Planning Board. 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums,tents, reviewing stands, platforms, staging, observation towers, radio towers,water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words"or part thereof'. 2.69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot, as provided by this Bylaw. 2.70 Tributary Any portion of any brook, stream, bog, swamp, or pond, which flows into Lake Cochichewick. 2.71 Yard (Setback) An open space which lies between the principal building or group of buildings and a lot line. 2.72 Yard,Front (Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 2.73 Yard,Rear (Setback) An open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands. 2.74 Yard, Side (Setback) An open space between the side line of a lot and the adjacent side of any building thereon, such open space being understood to cover the entire extent between the front yard and the rear yard of such a lot. 2.75 (1985/25) See 2.30.1 2.76 Planned Development District 1. Planned Development District—A Planned Development District shall mean development of an area of land as a single entity, which lies in an Industrial S (I-S) District, in which a mixture of residential, open space, commercial, and/or industrial uses, and a variety of building types nd designs are determined to be sufficiently advantageous to render it appropriate to grant a .T JUL 5LUUI 22 BOARD Or APPEALS EXHIBIT B _J 2.63 Rooming House Any building or portion thereof contRa n.g more than two and less than ten rooms without kitchen facilities that are used, rented or hired out to be occupied for sleeping purposes for compensation, whether the compensation be paid directly or indirectly. J 2,64 Special Permit 7be words Special Permit where used in this Bylaw shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General.Law. J 2,65 Special Permit Granting Authority The Plamning Board shall be the granting attthority of all Special Permits to Cluster Development, Planned Development District, (1985/15) driveways, nursing and convalescent homes, 'Watershed Protection District (1994/37), 'Wireless Service Facilities (1998/37) and large estate condominit-an conversions. The Board of Selectmen shall be the granting authority of all Special Permits peiuining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the grunting authority of all other Special Permits allowed in this Zoning Bylaw. 2.66 Special Parrott Unit A use of a building or Jot or an action upon premises which)nay be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special. Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 StreetI a c -Y �... A public way or a private way open to travel by the general public;or a way shown on a plan of e subdivision < theretofore duly approved by the Planning Board. �Ga 2.69 Structure Means a combination of materials to form a construction that is safe and stable, including, among others, buildings,stadiums,tents,reviewing stands,platforms,staging,observation towers,radio towers,water tanks, towers, private and public swimming pools,trestles,piers and wharves, sheds, shelters,fences and walls,and display signs;the term structure shall be construed as if followed by the words"or part thereof'. 2,69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot,as provided by this Bylaw. 2,70 Tributary Any portion of any brook,stream,bog,swamp,or pond,which flows into Lake Cochichewick. 2.71 Yard(Setback) An open space,which lies between.the principal building or group of buildings and a lot line. 2.72 Yard,Front(Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 23 JUL Z 5 [007 BOARD OF APPEALS URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS 1.URBELIS Telephone 617-338-2200 Andover e-mail tju cJuf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 July 9, 2007 Curt Bellavance Town of North Andover 1600 Osgood Street N. Andover, MA 01845 Re: Frank I Ragonese v.North Andover Zoning Board of Appeals, et al Land Court 328227 Dear Curt: Based upon the issues raised in this case, and regardless of the outcome, I recommend that at the next Town Meeting the Zoning Bylaws be amended to specifically deal with the issue of whether a storage trailer which has wheels and is registered by the Department of Motor Vehicles, such as is now located on the Butcher Boy property, is or is not a "structure" and whether it is "temporary" or "permanent" within the definitions in Section 2.68. The amendment should clarify the issue as to whether such trailers trigger the setback requirements of the zoning bylaw. Very truly yours, T�/owiiyias TJU:j eh cc: Board of Selectmen / Zoning Board of Appeals✓ Planning Board Mark Rees Gerald Brown Lincoln Daley JUL 10 w\,t5�,v4�1'MtJn�r' "WFjoM11'aoce.ltndoc /-, /V1� f I URBsus&RELDSTEn,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.UUMS Telephone 617-338-2200 Andover c-mail ga@d-lew.00m Teleeopier 617-338-0122 Telephone 978-475-4552 May 25,2007 By Fax Gerald Brown,Building Inspector Albert Manzi IN,Esq. North Andover Town Offices 24 Main Street 1600 Osgood Street North Andover,MA 01845 North Andover,MA 01845 RE: RAGomn vs.NORTH ANDOVER ZBA AND BUTCHER BOY Dear Gerry and Al: Please review these proposed Stipulated Facts and let me know as soon as possible (by 1:30pm today if you can)as to whether I may sign the Stipulation. Very truly yours, 1 s Thomas Urbelis TJU/kmp Enclosure t.�w�J t\.,ohY►wmell�eonwbetldawau.eae MAY 2 5 LUU I BOARD OF APPEALS vv 'i0 -7� til i URBE LIS &FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MA 02110 Telephone: (617)336-2200 Telempier: (617)338-0122 Andover Telephone: (978)4754562 FAX COVER SHEET TO: At Manzi FAX: (978) 681-6628 Gerry Brown (978)688-9542 FROM: Thomas J. Urbelis, Esq. PHONE: (617)338.2200 RE: Ragonese v. North Andover DATE: . May 26, 2007 Number of pages Including cover sheet: 9 Message: THE INFORMATION CONTAINED N THIS FACSIMIE MSSSAGE 15 PRNKMW ANO CONhDF.NTIAL IWORMATION INTENDED ONLY FOR THE USE OF THE MMDUAL OR ENTITY NAMED AYOvE. IF TWE READER OF TW MESSAGE 18 NOT THE INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY OISSEMINATION,OWROLMON OR COPYING OF THIS COMMUNICATION IS STRICTLY PROMIERED. IF You MAYE RECEt11E0 TMS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND MtLft THE ORIGINAL MESSAGE TO US AT THEA ADDRESS VIA THE U.S.POSTAL SERVCE.THANK COMMONWEALTH OF MASSACHUSMS , SZJFFOI.I(, ';,,,:•, •�.', .:ti , • 8S. LAND COURT DEPARTMFT`iT • DOCKET NO.06 MiSC 32847 '• ' i 1 �I FRANK J.RAGONESE, ) •. '.. Plaintiff ) ''` 'I ALBERT P.MANZI III,ELLEN P.MQNrYRE, ) JOSEPH D.LAQWSE,RICHARD d.BYHRS,AND ) THOMAS D.IPPOLI'M),as they aro members of the Nor&Andover Board ofAppeais,and GERALD A.BROWN,As Building bVector, ) and ' ! 1TrCHER BOY MEAT MARKET,jNc.and ANGtjS REALTY CORPORATION, Defaidants ~ SIM 1i-AIM t:ACTS I 1. Now come the !r . parties,namely FRANK 7. RAGONESE,the TOWN OF NORTH ANDOVER BOA1W OF APPS • AI.S,(]BRAID A.BROWN,as Building Insgectox,ANCiTJS REALTY TRUST and BUTCHER BOY beAT MARKET,INC.,by their res and stipulate that the Weinafta marked Facts be admitted as evidence in dais matwr. ' ' STIPULATION#1 - PbdutiiT,Frank 7. ese ' Ragoa (Ragoaese)is the owner of a siAgwihtnad� Tesidence on a lot located at 1939 Great Pond Road in Forth Atldo!,=4 Massadmsetta{anew lot). I • STIPULATION#2- Defendan ' . ,• , �, t,Apps Realty Trust(Anus)is tlae owner of a wanmer+ci�r. i r.erw4.niwltl9! f00% TrR ALR IM91 Rr$*I AAa L66S19C;1b ;�! • ci, cvvl i[• 1'trm--UKDtL1J d r1tMJttl •• '• NO. 9 1 P. 4 property at 1077 Osgood S l , 8 �North Andover,l�sachus�;i ( lot). ' STIPULATION#3- The Ragoneese lot and the Angus lot abut at the southeasterly bouae3aty • of the Angus lot, (See Exhibit 1) 'ia;• 1 S'T'IPULATION#4- Ragonese has ftadhig. STIPULATION#S- The Angus lot comprising ' aplsroxumattly 5.3 acres of land,is loc"` pt, {:. two zomiag districts in the Town of North Andover,nsmely the 13-2:',. . (business)and G.B.(General Business)districts. '. ', �,�• STIPULATION#6- The Ragonese lot is located in the Residential-2(R-2) '!' ., zoning district, STIPULATION#7- Aeftdant,Butcher Boy beat Market;Inc.(Butcherh ;'`' 1 market on the Angus lot since the 1950'x. Bay) STIPULATION#8- Anps reWvcd ft=SpOdal Permits finm the North Andover Plar�t� board in 1990 and 1991 to reoonstruct the building on the Angus lot';*. r (Exkbits 2,3 and 4). ' STIPULATION#9 '�� •; ` , Angus built a sir4gle story 35,000 square foot building for retail nae.: Butcher 130Y°a"Pies this building aloes with six other retail tetia�n g► Butcher Boy 000*08 aPProximatcly 13,000 square feet of the btr4. . I• r SWULATION#10- Butcher Boy once sold mostly meat produce. overtime,it diverji4ii ift a retail food m er. Today,it continuers to specialin in qw1tx: meats,with approximuely fifty(301•)perroent of it store area llml< ed` +; to meat products. STPULATTON#11 But cberr Hoy requires sold storage for its meats and Produce, it has cold! ' ' storage on site,and it has cold storage offsite. ;. STIPULATION#12- in 2000,Butcher Boy required more cold . storuuge for onsets and •• •}•, pmc�oe.`` It acquired two cold storage trailer's. Those trailers erre shaven on ; ' Fadi t9. STIPULATION 013- Hutcherr Boy purobased one trafler oa or about Attgast 14,2000 su !td'• ' , lenod the other railer from August 2000 yWH it purchased that trailer oa or about August 18,2005. ' STYPULA 77ON#14- These two trailers are for cold storage and need to maintain a strara� taapara M of 30 to 34 d 9,,.:,;• a•;.,,�• • , egrew. Butcher Boy storax meats and pr+aduee ' in these travlexs for sale at its store, STIPULATION#1 S- • The equipment used on these teailejrs to maintain these temperatmes _ need electoicity to opgate. i 2 CCCb Tf.R Rill Xtlf 90 ;OT nR.'u ioa%iotiio' 7If f. !1 1, 1 STPMATION#16. On June 16,2000 Butwr w Boy obtained an electrical peYmh to com b& , �. an electrical source to the two trailers. (Exhibit 13). STIPULATION#17- Butcher Boy placed a pole on a cervi t base to place the electrical, ent needed to ' . • equiptr► power the two trailer. (Extulait 14). ;; , ' . + STIPULATION#18- The electricity to power the two trailers comes from tivires that lead;t" ` the Butchrar Boy premises STIPULATION#19. The electrical pole is located at to rear of the Angus lot, or the . III southeaste iy bonnda ry of the lot as shown on located a few Feet E�tba'bit#1. This'�role is , + fmm a light pole that is shown on Exhibit#1,.and 1 / marked with the loner"E"on ftMbtt#1. STIPULATION#20- The two trailers are located at the site of the el ' `' • ' ' ectnical pole and#iairdl , beau at this location since approximately June,2000;the t idlem ' electricity to refrigerate and fts location is new the delivery doors at�d' . raw of the Butches Boys store. STBUTATION#21 The two hers have rimed at this Location since 2000 to the preset"' but have bees maw d on occasion for maim . , etaance and x+epaics or tor�� •, . . registered. ' STIPULATION#22- The approximate location of the two trailers has been madcedin red,tn3 Exhibit 1 with the letter"r. On occasion,other mWem that opera • with diesel and not electricity aro brought to the Angus lot durngg busy ' seasonal use,which is not an issue in this case, 14 , STRULATION#23 A photograph taken from the air shows the Angus and Ragoneae building where Buddha Boy operates its business,the Ragauese ho"s k' and the two Wkm STIPULATION#24- The two trailas we located apP OZkMat+elY twenty(20)feet from-&e.f:' mthostcdy boundary of the Angus lot. b• STIPULATION#25 - ?he two trailers are registered in the State of Maine -,,t, � acne tG Butcher Boy,.; • (Bxbiblt#12). ►' ,•r STIPULATION#26- Each trailer is appz+oximately the same sue and weisbt. Bach harm, 45 feet long 8 feet wide and 13 feet 6 inches high from the ground to.tb�' • top of fe trailer, Each trailer weighs approximately 13,000 pouods+'� ' S'1'IP'[7LATION#27- Each trader hes 4 w ' heels on the rear of each trailer,and two steel ' �'}? support at the front of each trailer. t STIPULATION#28- To move a trailer,a cab or trsetor,must be attached to each trailer. ` I :'d, , •:: ••ww reels T9a .0/0 Yv.a rC CQT ARM aloohitiso .c . —WI-61V q I lLLVJI LLl STIPULATION#29- For epproximanely one Year,and to$se be ' •' ' �, E B 1 up guouning of 2007,Bu6alet ,•- ,�:.. Boy placed a hood betwe®the two trailers. The hood was hetd'uplori two posts and placed on top of the trailers. (Exhibit#9). The hood was' Moved in 2007, OUbbits#10 and OM1 l). 'I ' S'1'1PUl,AT10N#30- Each trailer is and al �ottstructed of steel, ut�um,�e walls,roof atu'!•. � 1 floor are insulated. 'Rte '° ,.• ' °' tluicicaess of8te '.•i' , �• walls,roof and floor is . '.. I VFO)dmateiY 3 inch%. Each trailer has doors fair access,and A 1 windows. STIIULATION#31 ;i::; , ,,, ., • itagonese timely appealed the Building>aasp=Wes denial aid the IYi��' Andover Board of A ' '� • :•. '. " ppeals decision. , Rllysnbmit • Respect�y submitted, North A ndom Zming Board ofAppeals and Guild A.Brown, hulk J.Raflonese ' t Bddnag Inspector B By its attorne Y his ' It Thomas J.U*elis Leonard F. eanno BBM06560 BBO#16269S Urb b&Pieldsteel,LLP 15S Federal Street Alexander&Femino !' MA 02110 One Sci001 StreetBcvtd r i 6I7-338-2200 Y,MA 01915 ;�':;:,• ' Ir, 978-921-1990 i : • RespedbIlysubmitted, , Angus Realty Corporation And Butcher Boy Meat 1 , MarYet,Inc., By their attom Manbew A„Camay (BBO#SS9901) ' CAFFRJ?'Y&SMrrH,p.C. 300 Essex Street Lam,MA 01840 • * a (978)686.6151 :'• , °,a_00I 0@�•. test 199 8L6 xvd EE ;91 nAa LO6xJ4EA50 MAY. lti. ZUUI 11: I4rM UKtltl1J d r1tM1ttL---• Irv. y I I r. 11 11•�� i} i� h 4'� M. I I • ,�f � ! �, 1 l COMMONWEALTH OF MASSACHUSETTS • 1 SUFFOLK,SS. 11 LAND COURT DEPARTMENT ;. . DOCKET NO.06 MIBC 328227 „ FRANK L RAGONFSE,1 ) V. ALBERT P.MANZI III,ELLEN P.MaNT'YRE, JOSEPH D.LAG WSE,RICHARD J.BYERS,AND THOMAS D.IPPOLITO,as they are members of the ) North Andow Board of Appeals,and ) GERALD A.BROWN,As Bullftg bspector, and BUTCHER BOY MEAT MAW= INC. and ANGus ) t" IZF.ALTY CORPORATION, ) ' ,�•. .�' , .. • Defendants ) •t t•' ,t, STM A.ATRn F7[T.itt21TC ' ' � < •` (+ Now comethe ''�r t t • the patties,t►amcly FRANK J.RAGONESE,the TOWN OF NoItTij t ANDOVER BOARD OF APPEALS,OBRALD A,BROWN,as Building Inspector,ANGUS REALTY TRUST end BUTCHER BOY MEAT MARKET,INC.,by thoir rmsj rMve atom" and stipulate that the her b2fh r marked Exbibits be admitted as evidence in this matter: `t ' err#1 - Cmttied copy of Butcher Boy Market Place she plan siped by the planning board on March 7, 1991. r•t; 4 r Yee eie rv.r CC :4T na.r. 0•Anscer.•1.415 �,mAr, 17. IUUI I1: wM,-UUUI� ritMiM„ iuu. Y r. o .:;rr „ f 1 EXHIBIT#2 - Certified copy of Town of North Andover Plamoing Board Notice of Decsibi 4 dated August 7, 1990 and recorded at the North Essex Registry of Deeds,06Rk 31650 Page 11- ' r EXHIBIT#3 Certified copy of Town of North Andover Pla=og Board Notice of Aecis on; i 0.4" , '' dated August 31, 1990 and recorded at the North Essex Registry of Deeft Bobs 316S,Pap 18. , l • EXHMIT##44- Certified copy of Town of North Andover Planing Board Notice of Decisi1 I ' ModifyW Special Pemoit,dated September 27, 1991 and recorded at Ragi*,, y . of Deeds,Book 3334,Page 185. EXMBrr#S- Plaimifla Request fbr zoning a&rccraw,dated April 14,2006. Buil for once to Request far Enforoament,dated 27,240 . 1 EX Mrr#6- ding �P eques � ;• EXHIBIT#7- Plaintiffs Notice of Appeal filed with the Torn Clerk witho-a attacJunents, ! ' dated May 24,2006 and Sled May 2S,2006. BXHIBIf#8- Decision of the Town of Nordi Andover Zoning Board of Appeals,filed with ' the Town Clerk on August 3,2006. s . E)am T#9- PhotogMh of trailers taken July,2006 by Plaintif. ([�•; EXMIT#10- Photograph of pole for eiecWc for trailers taken May,2007 by P16-39M 1••. EXHMrr#11- Photograph of site from the air taken in April,2007 by Plaintiff. ' MCMBTr 012- Copy of Reristraeion for the Butcher Boy hers. EXHIBIT#13- Copy of Application and Permit fiur electical work for pole to trailars,dated. June 16,2000. ' .1 MGMI T#14- Copy of Sales Journal from Eastern Mass Lasing Corp.to Butcher Boar 6016: 2000 to April,2007. EMMIT 015- Copy of Fasten Mass Leasing Corp. 2 ..'.'...:.: cc4.9 •YEd ac6 Xra 6t 191 Ass L069192- tSO mnr. [7. LVUI IL; i r uno[LrO q rI«uJi «L Irv. lir I• � . ; EXMB1T#16- Town of North Andover Zoning By-laws. i Respectfay sw=tted, RespeedUy submitted, 0 North Andover Zoning Board Frank L Ragoneae of Appeals and Gerald A,Brown, ' Building Inspector By his attorney, By its attorney,; f„''f;, Phomas J.Urbelis Leonard F.Fe>mino BBM06560 BBO#162685 Urbelis&Fieldstcel,LLP Alomander&F mino ' ISS Federal Street One School Street Boston,MA 02110 Beverly,MA 01,91 S '617-339-2200 978-921.1990 y f' RespecdAu y submitted, ►' . . Amps CyMaat And Dutdier Bo � Mftet,lne,, ' 1 I. By their y. ,.. r Matthew A.Cdkw , (BBO#558901) CAFFREY&SMITH,P.C. ' 300 F--,sex Suet Iawr==,MA 01840 '` ' (978)686.6151 I' 3 `i.;",. ; tk«oe&RfA RCC• t26 RtB Imil EE=9Z ilea L669AMAO URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 0-2110-1727 TFtoMAs J.URBELis Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 May 7, 2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover, MA 01845 RE: FRANK J. RAGONESE VS. NORTH ANDOVER BOARD OF APPEALS, ET AL. DOCKET No. 06 MISC 328227 Dear Members: The Pre-Trial Conference has been rescheduled to May 15, 2007, at 9:15 a.m. Very truly yours, TJU/kmp Thomas J.VJrbelis MAY 8 - Z007 ! �! BOARD OF APPEALS s:`•wp5I\work\n-andove\ragonese\zba.Itr.doc URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 November 1, 2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover, MA 01845 RE: FRANK J.RAGONESE V.MANZI,ET AL. Dear Board Members: Enclosed please find the Judgment and Decision dated October 31, 2007. Please call if you have any questions. Very truly yours, Thomas J. belis TJU/kmp Enclosure cc: Board of Selectmen (w/enc) Board of Health(w/enc) Planning Board (w/enc) Mark Rees (w/enc) Raymond Santilli (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) Lincoln Daley (w/enc) Susan Sawyer(w/enc) Joyce Bradshaw(w/enc) Charles Salisbury (w/enc) U NOV . _ ZU01 BOARD OF APPEALS 9x + �,� + .Q (1139A COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V., ) ALBERT MANZI III, ELLEN McINTYRE,) JOSEPH LaGRASSE,RICHARD BYERS, ) and THOMAS IPPOLITO, as members of ) the North Andover Board of Appeals, ) GERALD BROWN, as Building Inspector ) of the Town of North Andover,BUTCHER ) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. ) DECISION Introduction Butcher Boy Market("Butcher Boy"), a gourmet supermarket in North Andover, stores meat and produce both inside its main building and in two cold storage trailers. Each trailer is forty-five feet long, eight feet wide,and 18,000 pounds in weight and they are parked in a space only twenty feet from Butcher Boy's property line, directly abutting a residential neighborhood. The trailers have been in that same location, with almost no interruption,for over seven years. So far as the record shows, Butcher Boy has no plans of ever moving them for anything other than periodic maintenance. The trailers' compressors run on electrical power supplied from the main building via a permanent concrete base and pole,to which the trailers are attached. The Nw 2 — cuu 1 BOARD OF APPEALS 1 compressors run twenty-four hours a day, and the noise is so loud and disturbing to the neighbors that one of them—plaintiff Frank Ragonese—sought zoning enforcement action from the North Andover Building Inspector. The plaintiff requested the removal of the trailers, contending they were"buildings"illegally placed within the setback area. Butcher Boy disagreed with this contention,taking the position that its trailers were not "buildings" and, if it wished, it could ring the entire shopping center with such trailers inside the setback—each permanently hooked-up to the main store for electricity and each with compressors operating twenty-four hours a,day—without violating any current zoning regulation. The building inspector refused to take enforcement action. North Andover's Board of Appeals (the"Board") upheld this decision. Mr. Ragonese timely filed this G.L. 40A, § 17 appeal from the Board's decision to this court. The case was tried before me, on a"case stated"basis, on stipulated facts and exhibits. Based upon those facts, those exhibits, and the North Andover Zoning Bylaw (the"Bylaw" or"North Andover Zoning Bylaw") as applied to those facts and exhibits, I find and rule that the trailers at issue are"buildings"within the scope and meaning of the Bylaw. As such, they may not be located within the setback. Both the building inspector and the Board acted on a legally untenable ground, as well as arbitrarily and capriciously, in denying enforcement action. Their decision is therefore ANNULLED. The building inspector is hereby ORDERED to enforce the Bylaw in accordance with this Decision, and Butcher Boy Meat Market,Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty(30) days from the date of this Decision. 2 The Standard of Review In a"case stated"review, "any court before which the case may come, either in the first instance or upon review, is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at a trial, unless the parties expressly agree that no inferences shall be drawn." Town of Ware v. Town of Hardwick; 67 Mass. App. Ct. 325, 326 (2006). The parties in this case agreed to "case stated"review without any limitations, and I do so. The Standard for Judicial Interpretation of a Zoning Bylaw The interpretation of bylaws is a question of law for the court, to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981). Where ambiguities exist in the language, a statute—or, as here, a bylaw—is to be interpreted according to "the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment,the mischief or imperfection to be remedied and the main object to be accomplished,to the end that the purpose of its framers may be effectuated." Moloney v. Boston Five Cents Savings Bank, FSB,422 Mass. 431,433 (1996). The language of the provision at issue is to be construed"in association with other statutory language and the general statutory plan." Sperounes v. Farese, 449 Mass. 800, 804 (2007) (quoting Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490; 497 (1984)). "Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Id. (quoting FMR Corp. v. Commissioner of Revenue, 441 Mass. 810, 819(2004)). In addition, 3 deference is given to a board's "reasonable interpretation"of its own bylaw. Livoli v. Zoning Bd. of Appeals of Southborough,42 Mass. App. Ct. 921, 923 (1997). Where.a literal reading of the terms of amunicipal bylaw would lead to an absurd or unreasonable result, that reading is rejected in favor of one that comports with the purpose of those terms. Springfield Preservation Trust, Inc. v. Spring f eld Library and Museums Assn Inc., 447 Mass. 408,422 (2006). See also Todino v. Town of WelNeet, 448 Mass. 234, 238 (2007) (even a strict interpretation must be reasonable; "the focus remains on the intent of the Legislature"). Facts The parties stipulated to the following facts: • Plaintiff Frank J. Ragonese is the owner of a single-family residence on a lot located at 1939 Great Pond Road in North Andover, Massachusetts. Stipulation #1. • Defendant Angus Realty Trust is the owner of a commercial property located at 1077 Osgood Street, North Andover, Massachusetts. Stipulation#2. • The Ragonese lot and the Angus lot abut at the southeasterly boundary of the Angus lot. Stipulation#3. • Mr. Ragonese has standing to bring this action. Stipulation#4. • The Angus lot, comprising approximately 5.3 acres of land, is located in two zoning districts in the Town of North Andover,namely the B-2 (business) and G.B. (general business) districts. Stipulation#5. Mr. Ragonese's lot is located in a Residential-2 (R-2) zoning district. Stipulation#6. 4 • Defendant Butcher Boy Meat Market, Inc.has operated a market on the Angus lot since the 1950's. Stipulation#7. • Angus received three special permits from the North Andover Planning Board in 1990 and 1991 to reconstruct the building on the Angus lot. Stipulation#8.1 Angus built a single-story 35,000 square foot building for retail use. Butcher Boy occupies this building along with six other retail tenants. Butcher Boy occupies approximately 13,000 square feet of the building. Stipulation#9. • Butcher Boy once sold mostly meat products. Over time, it diversified into a retail food market. Today, it continues to specialize in quality meats,with approximately fifty percent(50%) of its store area dedicated to meat products. Stipulation#10. • Butcher Boy requires cold storage for its meats and produce. It has cold storage both on and off site. Stipulation#11. • In 2000,Butcher Boy required more cold storage for meats and produce. It acquired two cold storage trailers. Stipulation#12. Butcher Boy purchased one trailer on or about August 14, 2000 and leased the other trailer from August 2000 until it purchased that trailer on or about August 18, 2005. Stipulation#13. • The two trailers are used for cold storage and must be maintained at a storage temperature of thirty to thirty-four degrees. Butcher Boy stores meats and produce in these trailers for sale at its store. Stipulation#14. 1 The first of the special permits allowed Angus to construct a detention pond within the Lake Cochickewick Watershed District. Trial Ex.2. The second—a site plan approval—allowed Angus to construct a 320'x 120'two-story retail-office building on its 5.3 acre site. Trial Ex.3. The third modified the site plan approval,reducing the number of stories from two to one. Trial Ex.4. 5 • The equipment used to maintain these temperatures requires electricity. Stipulation#15. On June 16, 2000, Butcher Boy obtained an electrical permit to connect an electrical source to the two trailers. Stipulation#16. • Butcher Boy erected a pole on a cement base to place the electrical equipment needed to power the two trailers. Stipulation#17. The electricity to power the two trailers comes from wires that lead to the Butcher Boy premises. Stipulation #18. The electrical pole is located at the rear of the Angus lot at its southeasterly boundary. Stipulation#19. • The two trailers are located at the site of the electrical pole, which is located near the delivery doors at the rear of the Butcher's Boy store. Stipulation#20. The two trailers have remained at this location since 2000 to the present,but have been moved on occasion for maintenance and repairs or to be re-registered. Stipulation#21. The two trailers are registered in the State of Maine to Butcher Boy. Stipulation#25. • On occasion, other trailers that operate with diesel and not electricity are brought to the Angus lot during busy seasonal use,which is not an issue in this case. Stipulation#22. • A photograph taken from the air shows the Angus and Ragonese lots, the building where Butcher Boy operates its business, the Ragonese house and the two trailers. Stipulation#23. See Ex. 1 attached to this Decision. The two trailers are located approximately twenty(20) feet from the southeasterly boundary of the Angus lot. Stipulation#24. 6 • Each trailer is approximately the same size and weight. Each trailer is forty-five feet long, eight feet wide and thirteen feet, six inches high from the ground to the top of the trailer.2 Each trailer weighs approximately 18,000 pounds. Stipulation #26. Each trailer has four wheels on the rear,and two steel supports at the front. Stipulation#27. In order to move one, a cab or tractor must be attached to the trailer. Stipulation#28. • Each trailer is constructed of steel and aluminum. The walls,roof and floor are insulated. The thickness of the walls, roof and floor is approximately three inches. Each trailer has doors for access, and no windows. Stipulation#30. • For approximately one year,Butcher Boy placed a hood between the two trailers. The hood was held up on two posts and placed on top of the trailers. The hood was removed in the beginning of 2007. Stipulation#29. • On April 14, 2006,Mr. Ragonese made a formal request to the Building Inspector for zoning enforcement action, contending that Butcher Boy"has placed/constructed accessory structures in violation of the approved site plan and failed to obtain any permits prior to action." Trial Exhibit 5. By letter dated April 27, 2006, the Building Inspector refused that request. Trial Exhibit 6. On May 24, 2006, Mr. Ragonese timely appealed the Building Inspector's denial to the North Andover Board of Appeals. Stipulation#31 &Trial Exhibit 7. The Board upheld the Building Inspector's denial by decision filed with the town clerk on August 3, 2006. Trial Exhibit 8. Mr. Ragonese timely appealed that decision to this court. Stipulation#31 &Trial Exhibit 9 2 Since the interior of the trailers are more than six feet high,they each thus contain more than 2,500 square feet of storage space. 7 On May 23, 2007, one of the trailers was moved from its location, taken out of the Butcher Boy parking area with a motorized tractor, driven on Route 125 in front of the Butcher Boy plaza, and returned to its prior location. Stipulation#32. At all times relevant hereto, both trailers have been federally inspected,mobile, and have met all federal and state standard[s] of roadworthiness. Stipulation#33. The Relevant Bylaw Provisions The Town of North Andover's Zoning Bylaw lists among its purposes "preventing overcrowding of land,""conserving the value of land and buildings,"and "providing adequate light and air." Bylaw § 1. It defines an"accessory use or structure" as"a use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building." Bylaw § 2.21 It defines a"building" as "a structure having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26. It defines a"structure" as "a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers,radio towers, water tanks, towers,private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words `or part thereof."' Bylaw § 2.68.3 3 Because the parties presently disagree on the correct wording of this bylaw provision,I-take the wording as it appears in Stipulated Exhibit 16,p.22. In a post-trial submission,the Town Clerk certified that the actual language of Bylaw§2.68(the definition of"structure")is"a combination of materials to form a construction that is safe and stable,including,among others,buildings,stadiums,tents,reviewing stands,platforms,staging,observation towers,radio towers,water tanks,towers,private and public swimming pools,trestles,piers and wharves,sheds,shelters,fences and walls,and display signs;the term structure shall be construed as if followed by the words`or part thereof."' Letter from Town Clerk Joyce 8 It defines "Yard, Rear(Setback)" as "an open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands." Bylaw § 2.74. Buildings in B-2 districts are required to have a minimum rear setback of thirty feet. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements. Buildings in GB districts are required to have a minimum rear setback of thirty-five feet. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements. Adjacent to a residential district, an additional fifteen foot rear setback is required in both the B-2 and GB districts, with the first fifteen feet of the total setback abutting the residential district to remain open and green,be suitably landscaped,un-built upon,unpaved, and not parked upon. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements; n.2. Analysis This case presents a single issue. Are 2,500+square foot cold storage trailers, registered as "long-term semi-trailers"in the State of Maine and capable of being moved if hitched to a cab or tractor but, in actuality,permanently parked and receiving their electric power by permanent hookup to a retail supermarket market building whose operations use them as permanent storage space, "buildings"within the scope and meaning of the North Andover Zoning Bylaw and thus subject to its building setback requirements? I conclude that they are. Any other conclusion not only contradicts the express language of the Bylaw,but completely undercuts its clear intent and would lead to an unreasonable result. A.Bradshaw(July 11,2007). Since my Decision would be the same under either,wording,the difference is not material. .9 I begin with the purposes of the Bylaw, which include the prevention of overcrowding, conserving the value of land and buildings, and providing adequate light and air. Bylaw § 1. Building setbacks are central to the achievement of these purposes, and it is significant that the Bylaw requires an additional fifteen foot setback in business zones abutting residential zones. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirement;n.2. The clear intent of this requirement is to have a wide separation between residences and the noise, traffic and other impacts of commercial enterprises. Whether Butcher Boy's trailers must conform to these setback requirements requires me to determine whether the trailers are "buildings"within the.meaning of the Bylaw. Consistent with the intention to have wide separations, "buildings" are given a broad definition in the Bylaw. They are "structure[s] having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26. "Structures" are broadly defined as "a combination of materials to form a construction that is safe and stable,"and "sheds,""shelters"and even"tents"are given as explicit examples. Bylaw § 2.68. Butcher Boy, supported by the decisions of the building inspector and the Board, contends that its cold storage trailers are not"buildings"because they lack permanency. They can be moved at any time, Butcher Boy says, and they have up-to-date registrations so they can be so moved. It is indicative,however, that they have not been moved in over seven years except for periodic maintenance and for a trip around the block, shortly before trial, to show the court their mobility if a need arose. It should not go unnoticed that Butcher Boy never saw such a need previously. 10 Moreover, Butcher Boy's argument ignores the clear language of the Bylaw. As just noted, "buildings," are defined as "[1] structure[s] having a roof supported by columns or walls [2] for the shelter,support or enclosure of persons,'animals, or property." Bylaw § 2.26. The cold storage trailers in this case perfectly fit both aspects of this definition. They have a roof supported by walls. They are used for the shelter, support and enclosure of property. They receive the electricity they need via a permanent hookup (wires attached to a pole,mounted on a permanent concrete base that required an electrical permit from the town).4 They are buildings because they are in a fixed location and intended, and used,for permanent storage. As their seven years in the exact same location show, they are.neither used,nor intended for use, as mobile transport. They are, for all practical purposes, accessory structures mounted on a wheeled base, the wheels serving solely as foundation posts.5 To see them as anything other than storage buildings is to ignore reality. As the late Supreme Court Justice Felix Frankfurter observed in another context, "there comes a point where [we] should not be ignorant as judges of what we know as men." Watts v. Indiana, 338 U.S. 49, 52 (1949). This is that point.6 4 Trial Ex. 13. 5 See State v. Perry, 149 Conn.232,235 (1962)(finding that the use of trailers was an attempt to expand freezing and storing operations in violation of the zoning regulations). Although State v.Perry is a nonconforming use case,the court saw through the defendant using a trailer(which,as in this case,could be moved)to impermissibly expand his operations in violation of the zoning regulations. I agree with the logic of the Supreme.Court of Connecticut—"What he cannot do directly he has attempted to do indirectly by the importation of the trailer." Id. Butcher Boy cannot use a trailer to avoid the setback requirements for buildings. 6 1 reject Butcher Boy's argument that,because"trailers"are not explicitly referenced in the Bylaw definitions of"structures"or"buildings,"they cannot be considered as such. The Bylaw definitions are broad ones,focusing on function rather than name, and the specific references(e.g.,"shed,""shelter")are inserted for illustrative purposes,not limiting ones. The Bylaw definition of"structure"specifically says "including,"not"limited to." I also reject Butcher Boy's argument based on Tolley Co. v. Theken,Jackson Township Zoning Inspector,2000 Ohio App.LEXIS 3699(Aug. 14,20.00). Tolley Co. is a decision from another state and has no precedential effect in Massachusetts. I note that it was decided by a regional appellate court,and was never reviewed by a higher court. I am also not persuaded by its reasoning. It interprets a different Bylaw and,in my view,does so incorrectly. See State v. Perry,supra. Finally,I reject Butcher Boy's argument that"buildings"must be"permanent"to fall within the Bylaw's definition. The word"permanent"does not appear in either Bylaw§§ 2.26 or 2.28. It appear only in an unrelated 11 Butcher Boy's arguments implicitly raise the specter of the slippery slope. Surely delivery trucks can park overnight prior to being unloaded without being deemed "buildings." What about two nights? What about a few more? At what point are trailers transformed into "buildings"? Does such an inquiry inevitably drift into an analysis of "intent," and may a zoning board permissibly conduct such an inquiry? More importantly, does the North Andover Zoning Bylaw allow such an analysis? There is a short answer to these questions, and that is this. None of them arise in the context of this case. Here,the Bylaw focuses on function (does the structure have a roof supported by walls and, if so, is it being used"for the shelter, support or enclosure of persons,.animals, or property"?). It is conduct that is being judged—the continuous, seven-year usage of cold storage trailers, with their compressors"on"around the clock,parked in a single location near the store's receiving dock, getting their electricity via a permanently- installed hookup that required an electrical permit to be built. In a very real sense, all law consists of drawing lines. This line is an easy one, and long since crossed. See Irwin v. Gavit,.268 U.S. 161, 168 (1925) (Holmes, J.). Other than the Bylaw requirement that they have walls and a roof, it is not, as Butcher Boy argues,the nature of the trailers that determines whether they are "buildings"or not. It is the nature of their use. The trailers are not being used for transport. They have been in a single location for years and are used exclusively for storage. As such, they are "buildings" subject to the Bylaw's setback requirements. section of the Bylaw, §4.136(c)(iii)(prohibited uses in Watershed Protection District buffer zones),and its absence from the provisions relevant to this case is thus significant. Moreover,to the extent the trailers need a degree of permanency to fall within the definition of a building,their seven-year use for the same purpose at the same location is sufficiently permanent. 12 Conclusion For the foregoing reasons, the Board's decision upholding the building inspector's refusal to take zoning enforcement action against the Butcher Boy cold storage trailers is ANNULLED. The trailers are"buildings"within the meaning of the North Andover Zoning Bylaw, and thus must comply with the Bylaw's setback requirements. The Board's and the building inspector's rulings to the contrary were incorrect, arbitrary and capricious,would lead to an unreasonable result contrary to the clear intent of the Bylaw, and thus are not entitled to any deference. The building inspector is hereby ORDERED to enforce the Bylaw in accordance with this Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty (30)days from the date of this Decision. Judgment shall issue accordingly. SO ORDERED. Keith C. Long, Justice Dated: 31 October 2007 13 ' '13ti., "...z" .,.'F In'-;Ili )hd,:i'.'ed7iN, d,fllt(!y.{�•'i.°b�yyl+"i»5 'ilV n\4iS'1 4'ij �r.i''�,pj;r 5kj r� 'ri rt�� t4i' 41 i ilt y17� Pu �I '+I' t 1 � r. I�{n, ( �j I � I� 't 7 �r7����F 'jllf�]1 R�,/.��` tt��Jr ! - - �,.:• .. 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F 1*f 11 Gi t IJI 7':°^�1 '.-Tt.- rl { •.�r it et7 )r •3t l i' f,:I,�, I (SE.AL COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V. ) ALBERT MANZI III, ELLEN McINTYRE,) JOSEPH LaGRASSE, RICHARD BYERS, ) and THOMAS IPPOLITO, as members of the North Andover Board of Appeals, } GERALD BROWN, as Building Inspector ) of the Town of North Andover:, BUTCHER.) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. } JUDGMENT This case is plaintiff Frank J. Ragonese's G.L. c. 40A, § 17 appeal from the August 3, 2006 decision of the North Andover Board of Appeals affirming the Building Inspector's denial of zoning enforcement action against defendant Butcher Boy Meat Market, Inc. For the reasons set forth in the court's Decision of this date,the Board's decision is ANNULLED. The building inspector is hereby ORDERED to enforce the North Andover Zoning Bylaw in accordance with the Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty(30) days from the date of this Judgment. SO ORDE B Kng, J.) A Deborah J. Patterson Recorder Dated: 31 October 2007 ATRUE CO€ Y ATTEST RECORDER URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tjuLuf-lawxom Telecopier 617-338-0122 Telephone 978-475-4552 July 23, 2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover, MA u 184 3 RE: FRANK J.RAGONESE V.MANZI,ET AL. Dear Board Members: Enclosed please copies of the following: 1. Letter dated July 16, 2007 from Attorney Leonard Femino to the court with exhibits; and 2. Letter dated July 19, 2007 from Attorney Matthew Caffrey to the court. Very truly yours, i Avju4x�' S Thomas J. belis TJU/kmp Enciosures JUL 15 [007 D BOARD Or APPEALS ALEXANDER & FEMINO ATTORNEYS AT LAW ONE SCHOOL STREET BEVERLY,MASSACHUSETTS 01915 alexanderfemino@earffihnk.net LEONARD F.FEMINO TELEPHONE(978)921-1990 THOMAS 1.ALEXANDER FAX(978)921-4553 JERALD A:PARISELLA July 16, 2007 VIA FEDERAL EXPRESS ATTN: Scott Smith, Sessions Clerk The Honorable Justice Keith C. Long Justice; Land Court Department 226 Causeway Street Boston, MA 02114 RE: Frank J. Ragonese v. Manzi et al. Docket No. 328227 Dear Justice Long: I am writing to you to clarify a point that was raised during oral argument July 6, 2007. At issue was the definition of"structure" (Section 2.6.8) in the North Andover zoning bylaw. It appears that the zoning bylaw definition was changed without proper authority and the bylaw presented to you does not contain the correct definition of structure. I submit to you two definitions of structure, Exhibit A which the Town of North Andover has on its current website as the definition of structure and was.presented to you as the current definition and Exhibit B, the definition of structure that was previously in the bylaw as the definition of structure, and was noted as the current definition in my brief. I� The Town Clerk has certified (Exhibit C) that Exhibit B is the correct definition . for cture. I have enclosed the certificate from her for your review, and wish to submit JUL Z 5 LUAts cument as part of the record. BOARD OF APPEALS -1- � The Town Clerk states there is no record that the definition of structure was amended by Town Meeting, and the definition of structure has not changed since at least 1995. I have sent a copy of this correspondence and attached documents to all counsel of record in this case. I appreciate your attention to this matter. Very truly yours, PeonardF. Femino LFF/gsw Enclosures CC: Matthew A. Caffrey, Esquire / Thomas J. Urbelis, Esquire Frank Ragonese 2 EXHIBIT A EXHIBIT A conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw. 2.66 Special Permit Use A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 Street A public way or a private way open to travel by the general public, or a way shown on a plan of a subdivision theretofore duly approved by the Planning Board. 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums,tents, reviewing stands, platforms, staging, observation towers, radio towers,water tanks,towers, private and public swimming pools,trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words"or part thereof'. 2.69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot, as provided by this Bylaw. 2.70 Tributary Any portion of any brook, stream, bog, swamp, or pond, which flows into Lake Cochichewick. 2.71 Yard (Setback) An open space which lies between the principal building or group of buildings and a lot line. 2.72 Yard,Front (Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 2.73 Yard,Rear (Setback) An open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands. 2.74 Yard, Side (Setback) An open space between the side line of a lot and the adjacent side of any building thereon, such open space being understood to cover the entire extent between the front yard and the rear yard of such a lot. 2.75 (1985/25) See 2.30.1 2.76 Planned Development District 1. Planned Development District—A Planned Development District shall mean development of an area of land as a single entity,which lies in an Industrial S (I-S)District, in which a mixture of residential, open space, commercial, and/or industrial uses, and a variety of building types And designs are determined to be sufficiently advantageous to render it appropriate to grant a U JUL 2 5 ZUU/ 22 BOARD Or APPEALS EXHIBIT B EXHIBIT B 2.63 Rooming House Any building or portion thereof containing more than tvvo and less than ten rooms without kitchen facilities that are used, rented or hired out to be occupied for sleeping purposes for compensation, whether the compensation be paid directly or indirectly. J 2.64 Special Pemlit The words Special Permit where used in this Bylaw shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General.Law. J 2.65 Special Permit Granting Authority planned The Plaming Board shall be the granting authority of all Special Permits to Cluster Development, Development District, (1985/15)driveways, nursing and convalescent homes, Watershed Protection District (1994/37), Wireless Service Facilities (1998/37) and Large estate condominium conversions. 'Che Board of Selectmen shall be the granting authority of all Special Permits pet•taining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the gmnting authority of all other Special Permits allowed in this Zoning Bylaw, 2.66 Special Permit Unit A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special 'hermit Granting Authority for a Special. Permit and subject to the approval of such Perriut Granting Authority and the conditions stipulated. 2.67 Street A public way or a private way open to travel.by the general public,or a way shown on a plan of a subclivision theretofore duly approved by the Planning Board. t✓ 2.69 Structure Means a combination of materials to forst a construction that is safe and stable, including, among others, buildings,stadiums,tents,reviewing stands,platforms,staging,observation towers,radio towers,water tanks, towers, private and public swimming pools,trestles, piers and wharves, sheds, shelters,fences and walls,and &play signs;the term structure shall be construed as if followed by the words"or part thereof'. 2.69 Town House An attached house i.n a row of three or more such houses callable of being sold as an independent dwelling with its own 14 as provided by this Bylaw. 2.70 Tributary Any portion of any brook,stream,bog,swamp,or pond,which flows into Lake Coebichewiek. 2.71 Yard(Setback) An open space,which lies between.the principal building or group of buildings and a lot line. 2.72 Yawl,Front(Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. r i ,v7 23 JUL "L 5 NO] D _ BOARD Or APPEALS e EXHIBIT C HORTh Of .o �1ti0 F 9 it • 1ys^CHUSt� TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH-ANDOVER, MASSACHUSETTS 01845 Joyce A. Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshaw(a)townofnorthandover.corn July 11, 2007 I, Joyce A. Bradshaw, Town Clerk for the Town of North Andover, do hereby certify that the following is in effect for Section 2.68 of the Zoning Bylaw for the Town of North Andover: SECTION 2 DEFINITIONS 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among others, buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words "or part thereof'. I also certify that there are no pending amendments to this section as of July 11, 2007 and according to Town Records this definition has been in place at least since 1995. � �al 41�1'd Joyce A, Bradshaw, Town Clerk t Callrev �J" smith, P.O. 1 ox 1317 firm y q a re 300 !CLa yyex street, wrence, l'Vl,�nn a 0 18{2 iV/aEE�iewJd. a� ec�k C�7]/ 978-686-6151 `/`Wmay smiE� n .}ax 978-683-3399 n q�J•// ante/MCAFFREY@CAFFREYSMITH.COM *aAo J..iEEed in / 1/Ve6jiEe: CAFFREYSMITH.COM July 19, 2007 Attn: Scott Smith, Clerk The Honorable Justice Keith C. Long Land Court 226 Causeway Street Boston, MA 02114 Re : Ragonese v. Albert P. Manzi, et al . Land Court Case No. 06 MISC 328227 Dear Justice Long : I am in receipt of the recent letter to the Court dated July 16, 2007 , by Plaintiff ' s counsel . On behalf of the Defendants, I oppose that submission. I am further constrained to point out the following: 1 . The trial is concluded; no further evidence may be submitted. 2 . The definition of "structure" was contained within the Stipulated Exhibits, and was argued before the Court . It therefore cannot now be challenged. 3 . As a matter of equity, the Defendants should be permitted to rely on the latest version of the Zoning Bylaw, as it appears in hard copy and on the Town' s own website . The Defendants should not be required to verify that all previous versions of the Bylaw are consistent with the present version. 4 . Even if the Court accepts that some error has occurred regarding the definition of structure in the Bylaws , that error should be addressed by a separate legal action against the Town. The accuracy of the Bylaw is an independent issue, which cannot be resolved within this case . I . JUL 0 ,LUU1 LJ BOARD OF APPEALS fh l . The Honorable Justice Keith C . Long July 19, 2007 Page -2- Thank you for your attention to this matter. Very truly yours, s / f 4" Matthew A. frey cc : All Counsel of Record EXHIBIT A conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special.Permits allowed in this Zoning Bylaw. 2.66 Special Permit Use a A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 StreetA A public way or a private way open to travel by the general public, or a way shown on a plan of a iM i551'v19 ti - subdivision theretofore duly approved by the Planning Board. 1 LZ 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums,tents, reviewing stands, platforms, staging, observation towers,radio towers,water tanks,towers,private and public swimming pools,trestles, piers and wharves, sheds, shelters, fences and walls, and display signs;the term structure shall be construed as if followed by the words"or part thereof'. 2.69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot, as provided by this Bylaw. 2.70 Tributary Any portion of any brook, stream, bog, swamp, or pond, which flows into Lake Cochichewick. 2.71 Yard (Setback) An open space which lies between the principal building or group of buildings and a lot line. 2.72 Yard,Front (Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 2.73 Yard,Rear (Setback) An open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands. 2.74 Yard, Side (Setback) An open space between the side line of a lot and the adjacent side of any building thereon, such open space being understood to cover the entire extent between the front yard and the rear yard of such a lot. 2.75 (1985/25) See 2.30.1 2.76 Planned Development District 1. Planned Development District—A Planned Development District shall mean development of an area of land as a single entity, which lies in an Industrial S (I-S)District, in which a mixture of residential, open space, commercial, and/or industrial uses, and a variety of building types and designs are determined to be sufficiently advantageous to render it appropriate to grant a JUL 5 M1 22 BOARD OF APPEALS EXHIBIT B 2.63 Rooming House Any building or portion thereof containing more than two and less than ten rooms without kitchen 'facilities that are used, rented or hired out to be occupied for slcepir►g purposes for compensation, whether the compensation be paid directly or indirectly. J 2,64 Special Permit The words Special Permit whero used in this Bylaw shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General.Law. J 2.65 Special Permit Granting Authority The planning Board shall be the granting authority of all Special Permits to Cluster Development, Planned Development District, (1985/15) driveways, nursing and convalescent homes, 'Watershed Protection District (1994/37), 'Wireless Service Facilities (1998/37) and large estate condominitun conversions. The Board of Selectmen shall be the gutting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw. 2.66 Special Permit Unit A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special. Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 Street ►�l a �. A public way or a private way open to travel.by the general public,or a way shown on a plan of a subdivision theretofore duly approved by the Planning Board. 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among others, builduugs,stadiums,tents,reviewing stands,platforms,singing,observation towers,radio towers,water tanks, towers, private and public swimming pools,trestles, piers and wharves, sheds, shelters,fences and walls,and display signs;the term structure shall be construed as if followed by the words"or part thereof. 2.69 Town House An attached house in a row of three or more such houses capable of being sold as an independcnt dwelling with its own lot,as provided by this Bylaw. 2.70 Tributary Any portion of any brook,stream,bog,swamp,or pond,which flows into Lake Coehichewiek. 2.71 Yard(Setback) An open space,which lies between the principal building or group of buildings and a lot line. 2.72 Yard,Front(Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 23 JUL L 5 [007 D _ BOARD OF APPEALS �ORT#f Ot .ao.a7ti0 F p t # #i # tBSACiOIs TOWN OF NORTH ANDOVER. OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshaw(atownofnorthandover.com July 11, 2007 I, Joyce A. Bradshaw, Town Clerk for the Town of North Andover, do hereby certify that the following is in effect for Section 2.68 of the Zoning Bylaw for the Town of North Andover: SECTION 2 DEFINITIONS 2.68 Structure Means a combination of materials to form a construction that is safe and stable, including, among others, buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs, the term structure shall be construed as if followed by the words"or part thereof'. I also certify that there are no pending amendments to this section as of July 11, 2007. Joyce A,Bradshaw, Town Clerk u vel L D JUL 12 LOUT BOARD Or APPEALS 9-" 6-4 3 /077 Ostiao� Message Page 1 of 1 Glennon, Michel From: Bradshaw,Joyce Sent: Thursday,July 12, 2007 4:00 PM To: Ippolito, Mary; Glennon, Michel Subject: RAGONESE CERTIFICATION OF SECTION 2.68-STRUCTURE-JOYCE-JULY 11,2007 1 researched this section and gave this to Mr.Ragonese. I will go back and do a compare document to what I have and see if there is anything else. We probably should correct and change this on the web site. I can make the change and send to Berndatte if you like. Thanks for all your help! i 7/12/2007 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBHLIS Telephone 617-338-2200 Andover e-mail iju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 July 9, 2007 Curt Bellavance Town of North Andover 1600 Osgood Street N. Andover, MA 01845 Re: Frank J. Ragonese v.North Andover Zoning Board of Appeals, et al Land Court 328227 Dear Curt: Based upon the issues raised in this case, and regardless of the outcome, I recommend that at the next Town Meeting the Zoning Bylaws be amended to specifically deal with the issue of whether f_ a storage trailer which has wheels and is registered by the Department of Motor Vehicles, such as is now located on the Butcher Boy property, is or is not a "structure" and whether it is "temporary" or "permanent" within the definitions in Section 2.68. The amendment should clarify the issue as to whether such trailers trigger the setback requirements of the zoning bylaw. Very truly yours, Thomas J. T rbelis TJU:j eh cc: Board of Selectmen / Zoning Board of Appeals✓ Planning Board Mark Rees Gerald Brown Lincoln Daley JUL 10 LUUI `� WA\�$J�l i^YI-4'pv��r3� � .Itr.doc i L URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSET'T'S 02110-1727 Tmmm J.Usaeus Telephone 617-338-2200 Andover c-mail gn@Uf-iaw.00 n Tekcopier 617-338.0122 Telephone 978-475-4552 4 May 25,2007 By Fax Gerald Brown, Building Inspector Albert Manzi IN,Esq. North Andover Town Offices 24 Main Street 1600 Osgood Street North Andover,MA 01845 North Andover,MA 01845 RE: RAwNESE VS.NORTH ANDOVER ZBA AND BUTCHER BOY Dear Gerry and Al: Please review these proposed Stipulated Facts and let me know as soon as possible (by 1:30pin today if you can)as to whether I may sign the Stipulation. Very truly yours, js Thomas Urbelis TJU/lanp Enclosure j,\Wry 1bCENIFYdOr01A�OpMNIe/IR�.010VGMAW MAY 2 5 CUU I BOARD OF APPEALS I URBELIS &FIELDSTEEL, LLP 155 FEDERAL STREET I BOSTON, MA 02110 Telephone: (617)338.2200 Telewpier: (617)338-0122 Andover Telephone: (978)47S.4= FAX COVER SHEET TO: Al Manzi FAX: (978) 681-6628 Gerry Brown (978)688-9542 FROM: Thomas J. Urbelis, Esq. PHONE: (617)33&2200 RE: Ragonese v. North Andover DATE: . May 25, 2007 Number of pages including cover sheet: 9 Message: THE INFORMATION CONTAWM N TH18 FA=uLE Id1IW iE 15 PNMLEGED AND GONF1D MIAL IWORMOMON INTENDED ONLY FOR THE UN OF TME INDMO MI OR VMTY PMMNIED MOVE. is THE READER OF TMS MESSAGE I8 NOT THE INTENDED REGPIENT,YOU ARE HERESY Nowso THAT ANY DumNATON,DISTRIBUTION OR COPYING OF TM15 COMMUNICATION 18 STRICTLY PROMIiR®. IF YOU HAVE RECEIM'DO COpwflutUNICAT10N IN ERROR, PLEASE WAEMkTELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE A ADDRusyN THE U.S.P09TAL SERVICE.TNAw YOy. COMMONWEALTH OF MASSACHUSETTS , ;,� , • SUFFOLK,3S. LAND COURT DEPARTMENT DOCKET NO.06 MISC 3282,'.7 `' r " FRANK J.RAGONESE, ) ' plaintiff, ALBERT P.MANZI IIL,ELLEN P.MCIN rM. j ! JOSEPH D.LAGRABSB,RICHARD J.BYERS,AND THOMAS D.IPPOLrM,as they aro members of the j Nor&Andover Board ofAppeals,and ►,1, ;; ', '• GERALD A.BROWN,As BWWk g inspector, and . ' BtTPCMM BOY MEAT MARKET,INC.and ANCRJ3 REALTY CORPORATION, E Deihndsans ) STM IT-AIM PACTS . ,rt : Now mm the !` pestes,nunely FRANK,J.RAGONESB,the TOWN OF NORTH ;►r'!,,; ,;i' ANDOVER BOARD OF APPEALGERALD A.BROWN,as Btfldimg Inspector,ANCJ S REALTY TRUST and BUTCHER BOY MEAT MARKET,INC.,by their res p Wvt at�otisays and st ipulae that the hereinafter marked Facts be admitted as avideuco is ibis mattar, STIPULATION#1 - Pladn Frank J,Rag (Ra,go ) tifl; onese nese is the owner of asi4"Rnily residence on a lot located at 1939 Great Pond Road in North Aridoy Massachusetts(Ragonese lot). ' r STIPULATION#2- Defendant,Angus Realty Trust(Angus)is die owner of a com=er .4 • r.elwn::,in�t1911 'Pao?) Trot 41.4 Iva CC Sol 11Ha L66z1q¢/S6 • 6 A V u i ILLV01LLI • •• 9 1 P. 4 pmperty located at 1077 Osgood Street,North Andover, (Angus lot). STIPU"'noN#3 The R"Onese lot and the Angus lot abut at the t southeasterly boundary of the Angus lot, (See Exfd'bit 1) "' • S'TIPUL AITON#4- Ragonese has sten ft. a �' STIPULATION#5 The Angus lot comprising I' I t � approximately 5.3 acres of lead is locaieil`�igt' two zonigg districts irk the Town of N ` (business)cad G.B. enstar North Andover,namely the B 2: .( Bim)dicnicts. STIPULATION#6- The Ragonese lot is located is ilte Residential-Z(R-2)zoning district, STIPULATION#7- Defendant,Butcher Meat {•: 4 '•'' ; ' Boy Market,loc.(Butcher BOY)has apei4*a. market on the Angus lot since the 1950'x. ' STIPULATION#8- Angus received throe Spoaial Permits from the North Andover Planxtit board in 1990 and 1991 to reconstruct the buildup on the Angus lot :; i ' (Exlu'bits 2,3 and 4). 0 #9- built a ; 4 STIPULATI N single story 35,000 square foot building for retail use y O=upies this building a1 _ oag with six othcu:zetail tetittn,�, 1 Butches Boy occupies aPPmxhnalely 13,000 square feet of the bail., t- r STIPULATION#10- Butcher Boy once soldmostl meat dam. E•; ,•' '' into a retad food Mark+eL Toch t Pm 0"Q timq it diver�iStd Today,; cominues to�ecialize in quality,►; , the tom products. ately fifty(30%)pelt of its store area dedi*ed'. ' 11 , 'STIPULATION# - Butcher Boy requires cold storage for its Meats and produce. It has cold! ' ' storage on site,and it has cold storage offsite. , 1 STIPULATION#12- In 2000,BuMQ Boy more cold storye for meats and pnoditoe,`' R acquired two cold storage trailers. Those trailers are shown on lot.. Exhibit 9. " , r STBULATION 013- Butcher Boy Pua'obAsed one tr at7er an or about Avgnst 14,2000 aad! , Imsod the odw txsiler tlrom August 2000 tm n it purchased that on or about August 18 2r ' t, STYPtJIAT'ION#1.4- ' These two trail ' `::', :. '•, era are for cold storage cad need to maintain a stoxa� ' tcmPIWOM of 30 to 34 degrm' Butcher Bo in t3iese trailers for Y forts masts and prodgce sale at its store, •' ` ' L STIPULATION#1 S- . The equipment used on these trailers to maintain these temperatures� ' steed elect)icityto operate. ► ' 2 1 eee, T9.R R�,r ,ev,r ae ;oT 6R.T. LOOP.%�Z�SA' STRUT,ATION#16- On June 16,2000 Butcher Boy ob permit to con t, •'•` : • ' ' ' an alect<ical sotxroe to�e taro tamed as electrical I treulets. (Exlu'bit 13). ; r f ; STIPULATION#17- Bh utces Boy plaiced a pole on a cesued base to !r'• place the electrical, equ%aeut needed to power the two trailers. ' STWULATION#18- The electricity to power the two trailers comes iota woes that lead;tdr; the Butcher Boy premises. -•,.,,; ST`1PUI,ATION#19- The electrical pole i8 located at the rear of t to or the i ' ' soolheasteriyboumdauy of true lot as sbowa on EXln'bit 1. •�:; ',. ,�`��' .; et This kole;i� located a few Be from a light pole that is shown on ExUbit#l,.add 1 : ` • ' ; marked with the letter"E"on Acldbtt#1. STIPULATION#20- are located at the The two trailers site of the eiec�cal pole and bin at this locatloay since approximately AjT4 2000;the trailers neo¢, electricity to rebrigarate and this location is neer the delivery doors at thtl ., rear of the Butcher Boy's fie, ;`• STIPULATION#21 - The two t MOM bave maimed at thio location since 2000 to the presntrt;'' but have been moved on a I colon for Mainteeance and"Pain or io, re-rosistered. ' STIPULATION#22- The appmximate location ofthe two trailea has been Markod.iu red'bil Exhibit 1 with time letter"E". On oeenjon,other trailers that op" and not electricity. with diesel 'city are brought to the Angus lot during b* seasonal use,which is not an issue in this case. ,II i' STRULATION#23- A taken the air shows the and ' ` photograph $ from Angus Rsgonese'lttt�s;•8se• a: ��S uta Boy operates its busiaws,the Ragonese hots and the two trailers. ` f STIPULATION#24- The two trailers are located aPPro 1Yh"+entY(ID)feet fr m-1he,�:. Southeasterly boundary of the Angus lot. ' f STIFULA77ON#25• T!u two trailers are registered in tate State of Maine to Butcher Bo ` (Exbibit#12). Y '�' '► STWULATION#26- Each trailer is approximaralyr the same sine and we1gbt. Tach tralla, 9' 45 feet long 8 feet We and 13 feet 6 b dhes bigh from the ground to.ft top of the trailer, Each trailer weighs approximately 13,000 pouadt' STIFULATION#27- Each trailer has 4 wheels on the rear of each trailer,and two steel supports at the front of each trailer. f STIPULATION 028- To move a trailer,a cab or esaw,must be attached to ` each trailer. ' eee- TTO 419 VVR cc CGT MR.T, 1,000htiga STIPULATION#29- For ' • ' ' • approximately one yeay and up to the begWloing of 2007,Buto2iet !F Boy placed a hood betwccn the two trailers. The hood was held,uploo . 4' two posts and planed on top of the traUM. (Exhibit#91 i ' The hood was re moved in 2007 (Fxhxbstz#!10 and#1]). '• , ST>PUIT. �A,T10N#30- Each trailex is constructed of st t !,; east,and ala um,the walls,roof am... ' floor ars insudate& 'nse thicimm of thea wa4 roof and floor is j,• approximately 3 inches. Each trailer has doors foot'access,and no , ' Windom. STIPULATION#31 - ltagonese timed algid y apps the Building toss d • ' emal and the;•I+Nt�rt1k' P. Andover Board of decision. ' ' . , Rcgw9%lly mbmdtted, Respectfully submitted, ` North Andover Zomns Bond hok J.Ragoaese ' of Appeals and QwWd A.Brown, Boding--"_"-'r By his a}}� S I By its attorney, , , Thomas J.U rbelis BB0+ 506560 �Aard F.Feamino • ' U"=&Fieldsteel,LLP BBO#!62685 U ...•<. . ' Alexander&Femino t 155 Federal Street One School Stc+eet 'j i`.;; '' ;•;',,�, ' Boatvn,MA 02110 Beverly MA, 01915 ►' 617-338-2200 978-921-1990 Respec&Uy subadtted, 14 Angus Realty mon ' And Butcher Boy Meat 1 ' Market,lac., : By their anom ` F• ,' . CFFM&S AMiTH,p.C. i F = a 300 Essex Street Lae,MA01840 ' - (978)686.6151 , : • °.i.00/ i10�. 021 196 BL6 XVd EE 01 (kHz L00T ZA60 MAY. 15• 1 U1 11: 14rM UKdtLI & tIUU)Ittl---- IYU. y i. COMMONWEALTH OF MASSACHUSETTS ` 1 ' I' SUFFOLK,SS. LAND COURT DEPARTM)EI�tT ' ` ' DOCKET NO.06 MIBC 328227 PRANK L RA , CiONESE, � •+� � ' Plainttff, „ V. t f ALBERT P.MANZI III,ELLEN P.MCiNTYRE JOSEPH D.LAGrRASSE,RICHARD 1.BYERS,AND ) THOMAS D.VTOL1TO,els they are mambas of the •r" North Andover Board of Appeals,and ' t3ERALD A.BROWN,As Building bspector, ) , and k': •;'i,,' •S=HER BOY DRAT MAIRRZ, INC. and � r ` ! Ictm Y CORPORAMON jJS ' S=I II.ATRn E MdR2TTC ' � Now come theE,the TOWN OF NORTA r patties,namely FRANK J.RAGONES a • • ANDOVER BOARD OF APPEALS,GERALD A.BROWN,as Building Inspe+otor,AN GUS s REALTY TRUST and BUTCHER BOY MEAT MARKET,INC.,by their respmdve atwme" ' and sdpuWe that the herei:od=marked Unbits be a&tlkW as evidence in this matter: I •• ;� EXHIBr '#1 - Ceded copy of Butcher Boy Market Place site pian aigtted by the pla y bostd on Mann 7, 1991. eeew tr! 01! nri CC :4T AR.T, 'AfL16��'1�0 1 MAY, 17' 1UU1 Il: 17rNMtll� d rltMittl [9V. yl !' r. 01:;; y , 1t1 .tl is . , , • EXMTT#2 - Certified copy of Town of North Andover Plamming Board Notice of Dads an' dated August 7, 1990 and recorded at the North Essen Registry of Deeds,t6pk' 3165,Page 11. 1 EXHIBIT#3- Certified copy of Town of North Andover Planning Board Notice of Decision; `? '` • ,' ' dated August 31,1990 and recorded at the North Essex Registry of Deco,064k 3165,Page 19. l , 8XMIT 04- Certified Dopy of Town of North Andover Planning Board Notice of Deodsi64 !1 i Modifying Special Posen;dated September 27,1991 and recorded at Regi#y.. ` of Deeds,Book 3334,Page 195. EXHMrr#5 Plaintiffs R pmt for zonwDg enforceineat,dated April 14,2006. EXHIBIT#6- Btulding'laspector response to Request for Enforcement,dated Alnil 27.204. EXHIBIT#7- Plaintiffs Notice of Appeal filed with the Town Clerk witthou-tc attaebments, dated May 24,2006 and filed May 25,2006, I l?X MIT 09- De siiowt of the Town of Nortb Andover Zoning Board of Appeals,filers vnth 1•:: the Tmn Clerk on Aufust 3,2006. 1 a 1 , ; EXHIBIT#9- Photograph of trailers taken July,2006 by Plaintiff, EX,HWIT#10- Photograph of pole for electric for traiilas taken May,2007 by PtaizdfE •1 1• EXIM1T#11 - PhotogWh of site from the air taken is April,2007 by Plaintiff. tXMrr#12 Copy of Registration for the Butcher Boy hers. EXHIBIT#13- Copy of Application and Permit f>Dr electrical work for pole to trailers,dated,r � June 16,2000. EXHIBIT#14- Copy of Sales Journal from Eastern Mass Lasing Corp.to Butcher Boy frotsi, 2000 to Apel,2007. ; SIT 015- Copy of Eastern Mass Leasing Corp. • 'i 1,N , . �1 1 1 , /' ,I .. yi .• of,11 a I • , ill •a 2 ` •• 11 cat. •rtze Rc6 arca Et tat nHs cootwAeztso 11h L7. LUV! IL; 17rm unD[Lra d ri«uJi «L nv. 7ir EXWrr#16- Town dfNortb Andover Zoning By-laws. r Respw fully submitted. Respectfully snbmitbA North Andover ZOWAS Board .Frank L Rapnese f' ofAppealS and Gerald Ar Brown, j Building Inspector By his attorney, By its attorney, , Tbomas J.Urbelis Leonard F.Femino ; BBM06560 BBO#162685 ' Urbelis&Fieldsteel,LLP Aloxmrdw&Femino 155 Federal Street One School Street ,• Bamn,MA 02110 Bever►,MA 0415 ' 617-338.2200 978-921.1990 { Respeeddly submitted, ' Angus RaIlly Aud B Boyceat ' MeW t,Inc,, By tick Anorney. r :VI ' Matthew A. Caffrey (BBO#558901) ,, ► CAFFRE'Y&SMrM P.C. ` 300 I.Ssex Sheet ' Lawrence,MA 01840 (978)686.6151 ' ' f • 1, t,+ Rik'R.re&AM RCCA tZ6 Rt6 %Vd EE191 flus LOOTOz so URBELIS &FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 May 7, 2007 Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover, MA 01845 RE: FRANK J.RAGONESE VS. NORTH ANDOVER BOARD OF APPEALS,ET AL. DOCKET No. 06 MISC 328227 Dear Members: The Pre-Trial Conference has been rescheduled to May 15, 2007, at 9:15 a.m. Very truly yours, TJU/kmp Thomas J.VJrbelis kLIn MAY 8 - 2007 BOARD OF APPEALS s'.twp5I\work\n-andove\ragonese\zba.Itr.doc 4x t�+'A )- d�"3 Town of North Andover ZONING BOARD OF APPEALS Albert P. Manzi III,Esq. Chairman o`No oT s qti Associate Members Ellen P.McIntyre, mice-Chair y`.:,. ", o y �' °c Thomas D. Ippolito Richard J.Byers,Esq. Clerk ° Richard M. Vaillancourt Joseph D.LaGrasse t David R.Webster �o e�* Daniel S.Braese,Esq. 0 0111 A A,) �pSSACNu'5E May 6,2007 VIA FACSIMILE &US MAIL Mark R Rees, Town Manager Town of North Andover 120 Main Street North Andover,MA 01845 RE: Ragnese v North Andover Zoning Board of Appeals,ET AL Docket No. 06MISC328227 Dear Mark: As you are likely aware, at the July 18`h 2007 meeting of the Zoning Board of Appeals hereinafter("ZBA") the ZBA voted unanimously to: 1) UPHOLD the finding of the Inspector of Buildings/Zoning Enforcement Officer letter of April 27,2006 and DENY the requested Finding of the party aggrieved,Mr.Frank J. Ragonese. (See ZBA decision incorporated by reference) After speaking with Town Counsel,it is my understating the Town's policy on litigation with respect to regulatory board approvals is different from its policy with respect to denials, and therefore,defends the latter by different standard. As Chairman of the ZBA and a parry to above captioned matter,I am troubled to recently learn of this practice as it may have a negative impact on ZBA decisions. It is concerning to learn that ZBA decisions are not likely to be defended if they do not meet a particular internal standard of review set by the Town Manager or Selectmen or both.Absent further explanation,this policy can and may undermine the independent efforts of the land use boards;As applied to the ZBA,to effectively enforce and or waive existing zoning by-laws as determined by the merits of an application.For the Selectmen and or Town Manager to arbitrarily not stand behind a decision that is appealed,undermines the land use process. One may infer this D C jo�calci vents the independent jurisdiction of the land use boards, MAY 9 - 1007 1600 Osgood Street,North Andover,Massachusetts 01845 one 978-688-9541 Fax 978-688-9542 Web www.townofnorthandover.com BOARD OF APPEALS Mark Rees Ragnese v Zoning Board of Appeals,ET AL Page 2 of 2 in the case of the ZBA, our authority,as derived in part from the Town Charter,MGLA Ch. 40A, & MGLA Ch. 41 Sec. 81AA,as applicable. At a minimum,appeals of land use decisions should be reviewed on a case by case basis on the merits, and the Town Manager/Selectmen should conference with the Chairman of the Board with jurisdiction to determine the merits of a particular claim. By doing so,the Selectmen can make an informed decision with respect to funding.To date,I do not recall a conference with respect to the Butcher Boy appeal or any other litigation,if any, involving the ZBA. With respect to ZBA Findings in general,and this Finding in particular, and whereby this Finding includes both an approval and a denial of each parry,it is a distinguishable appeal and therefore deviates from your existing policy. The Town should be actively participating in the litigation by way of zealously defending the decision of the ZBA,which should include but not be limited to actively cooperating and or participating with Counsel for Angus Realty Trust d/b/a Butcher Boy and myself as Chairman. In no way is this statement intended to .suggest that Town Counsel either has or has not cooperated or participated with the co-defendant or myself to date. In closing, as Chairman of the ZBA and to the extent of my authority,I strongly urge the Selectmen to fund Town Counsel for the purpose to use any and all means necessary to actively defend the vote of the ZBA. Furthermore, as Chairman, and to the extent of my authority, I order Town Counsel to inform the Court that the ZBA wishes to see the decision of July 18`h 2007 upheld. With respect to the above captioned matter,and in light of the pending trial at the end of the month, be advised I would like to conference with you,Attorney Urbelis and Attorney Caffrey with respect to the same as soon as possible for all parties. Finally,be advised I will make myself available,and plan to attend the trial at the Land Court. Very truly yours, Zoning Board of Appeals �dbert P.Manzi III,Esquire Chairman CC: Thomas J.Urbelis,Esquire Matthew Caffrey,Esquire Board of Selectmen Zoning Board of Appeals Lop`_o l3 { 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978-688-9541 Fax 978-688-9542 Web www.townofnorthandover.com 4kti� ��I may;.^.• r� L-' � 1 +S ,rte` :�'. ,•. s MoIwo I ` s ov grrr K W1y, r :F� � .��� � .t� � .fir, C'��A . � ,`rw t T 2� 1 .m {� �� .. -� - _ er-.. r �` .."i# 1 ,; �. 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III +y, ,f• �t}.•a':� ' ., ♦ •-'t IJFAOR '}f� .frt✓,�!I �` •.O�Y«r. �,p;1,,��.f6% as y I�IS'r. .r- s: 'i. �.. ,+ A4,N�.1 �� ���� �S� y,f a�r •� .y,l ~a1 na . •'�`'' •: �� �• Vii• � � ' f womommp- 1 'I 'fel,/ - � '�� ! �ti p, .r' �'•�, ,r `II �}'X v 1 �� �1/� „4 I �.I �i•.3 r ��'✓ ..Pr's r / r. �r . � -•"�r�_ �.�,, �-• ,say d •r� ��ei �;�'` ���//�� ,: �f tr 4 AW., ` •-!%' ,ly. �' .,'�,; /,i7 h•;'n�i t. a?r s'7Z,Ilyr; <i ', 41 � �� � ;yi' til. �!� �" , 1 � •la .i '`' ye'�`�;;. '� I'' 1 ,�,,.j•.�. .f` �"�' .,. 1`�,.�. "'/� l�•��J wpb'' ri .�s 1� '' d �� �� .fiAi •J •A Ij'1 •.. G •s '1U /, r / E ���ppp��,FFF ,I r�_� • � 9Y'�,�Ijl", Ar'y y~ �// •e.al �}1 • I I �'� rt f�f�� 1 r•�d��, f l ��� ab '�/���i��( �N�� !'pJ� r! ''`�t,���+7�" � •.� � /1. •+I��.1�jf ..i*I SII �� 'yy/`� F, i.t t' v` � ����•WAS , � l+'a +t,'!i ,y !, �,d�l . 1 1�1 t j� 'I%v4/► ���� �t , . � '', iiE/ 4A tA Ail �"\•. ; ; � `; a ;'� •�4 yYy�y \1�`�' �a�-! by .��`� �. }' ►'�_'� -� � � r�1Sr`�• +� .�•, � y.. i Y i .ri kAL -L_ M _ NA,�� . . r � i MEMO TO: Zoning Board of Appeals FROM: Gerald A. Brown, Inspector of Buildings/Zoning Enforcement Officer DATE: July 6, 2006 SUBJECT: Pending July 18, 2006 Finding The Constructive Grant 65-day deadline for this finding is up on July 28, 2006. Unfortunately, I am committed to teach at LaSalle on July 18th and respectfully request the Board of Appeals to accept Brian Leathe, Building Inspector, as Zoning Enforcement Officer. Also, the Board and Mr. Ragonese may be more comfortable discussing the petition in my absence. t&ORTH 3rOyt��eD *6�hOOL r�4.� �p o TQ`vYN CL EIRK'S 0 F F 1C._ �D 2006 JUN 15 AM 9: 33 .aA COC.Kgw.[w DAgT'tD P� I i ZONING BOARD OF APPEALS NORTH .61='Vl MASSACJH .':S4€•r; Community Development Division Legal Notice North Andover, Board of Appeals `. 1.1=�A�t�OTICE Notice is hereby given that the North Andover Zoning Board of Appeals will hold a VER, BOARD.bF APPEAL public hearing at the top floor of Town Hall, 120 Main Street, North Andover, MA on ivor, is h8reby gnren< :that the North Andover Tuesday the 18th of July, 2006 at 7:30 PM to all parties interested in the application of zoning Board of Appears: Frank J. Ragonese, 1939 Great Pond Road, requesting a Finding from the Zoning A tne.opf l oir r Town; hall 12a;Main Street; Board of Appeals under Section 4, Paragraph 4.136, Section.8, Paragraph 8.3.8, Section ivarth Andover„Ma on 10, Paragraphs 10.1.1, and 10.4 of the Zoning By-law in order to appeal the inspector o Tuesday#tse 18th of Julys $ Y PP p 2f 06 at J 36 PN1 io ill on Building's failure to act u petitioner's request for enforcement action of alle ed pares interested+n the: $ p p q $ ppt�cafian bf an J Zoning Bylaw violation by Angus Realty Trust d/b/a Butcher Boy, 1077 Osgood #iagonese 1939 Great> Pond Road,requesting a Street,(Map 35, Parcel 27)North Andover, MA. Ending from theon�rag;; board ot;Appeals`under_ Sectaon�4 Patagraptr Said remise affected is property with frontage on the East side of Osgood Street within a 1ss,section$:,Para.' p p perty g g graph s s:sr Section 10„ the GB zoningdistrict. Paragraphs 107 t;and i3O 4tvf.#ltie_Zoning 8y .law irf-orderto appeal fie: Inspector a3 Building s Plans are available for review at the office of the Board of Appeals office' 400 Osgood !aiiur00 act UP.0n-! 1 .roner's °:request- tor: Street, North Andover, MA Monday through Friday from the hours of 8:30 to 4:30PM :entorcerrent aotlan or ;'<1legAd,Z001— Bylaw: <v�otataon;tiyAngus Realiy By order of the Board of Appeals ���o goo s-- Ellen P. McIntyre, Chair Map 3s Parcer'27); North Andover MA. . Salo frem�se affecteb` ys property with frontage; vn the East side ofi Osgood Sheet w�thiil the 1� GB zoning dlstnct -Plsns•are_avala6le for; review�t the o�ceof the:: Board ofAppeals office Published in the Eagle-Tn�bune on July 3 & 10, 2006. o,osgood street, ;North AndoveriIA;AAon 'tlay thropgr Fnda�ifrom :t,e hours=of$:3D fo 4:30 -PM 6y order-ot the; Hoard of Appeals' 1=1fen on Chair .� 7/37l10I200ti: �:� Legalnotice 2006-023. , M35P27. 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9541 Fax 978.688.9542 Web www.townofnorthandover.com JUL-05-2006(WED) 11; 17 Butcher Bou (FAX)9786855640 P. 003/003 Town Clark rune Sump RECEIVED #� • '- '' °� TOWN CLERK'S OFFICE p 2006 JUN-6 AN 9: 59TOWN OF NORTH ANOOVE;t ZONING BOARD OF AP MLS MASSACHUSETTS Commurity0evelopmeatDivision Senior Center 120 R Main Street Legal Notice North Andover,Board of Appeals Notice is hereby given that the North Andover Zoning Board of Appeals will hold a public hmunng at the top floor of Town Hall, 120 Maus Street,North Andover,MA on Tuesday the I II of July, 2006 at 7:30 PM to all parties interested-in the application of Frank J Ragonese, 1939 Great Pond Road, requestin$a Finding from the Zoning Board of Appeals under Section 4,Paragraph 4,136, Section 8,Paragraph 83.8;Section 10,Paragraphs 10.1.1, and 10.4 of the Zoning By-law in order to appeal the Inspector of Building's failure to act upon petitioner's request for enforcement action of alleged Zoning Bylaw violation by Angus Realty Trust d/b/a Butcher Boy,1077 Osgood Street,(Map-35,Parcel 27)North Andover,MA. Said premise affected is property with frontage on the East side of Osgood Street within the GB zoning district. Plans are available for review at the office of the Board of Appeals office,400 Osgood Street,North Andover,MA Monday through Friday from the hours of 8:30 to 4:30PM. By order of the Board of Appeals Ellen P. McIntyre,Chair Published in the Earle-Tribune on June 26&July 3,2006. Legalnotice 2006-0.�.2r(3._ W P27. �.. 1. gIY.� .7rJr r YLr rl. i.'+;� �SCRE 1$p7 ids?r• �[�3r. moi- , .r, bi �bt• Ge s,:,��p. ,. tar �' .r C, )W �, b 7'�,f !• ' � .Ry V� � •:�`".��+.�� .'3 n�;i� '�„.�P QM1Qn. ••p4 r.+_-a ....-.,., ............ Ct•... - 1600 Osgood Street,North Andover,Blassochusgtts 01845 phone 976.688.9541 Fax 978. SUS42 Wad Wvw tov+aotaorthandover.com r I ; Ln t Y RJ Town of North Andover o Zoning Board of Appeals 1800 Osgood street, Building 20,Suite 2.38 North Andover,MA 01845 7006 0100 0006 0844 2414 _. -16 rt • n m cm Angus Realty Corp. g m 1077 Osgood Street $ c North Andover MA 01845 0 US PMSTAPPA T X v tD co cm to L" Ul Q+ r. O .p O O rV 1 O O W JUL-05-2006(WED) 11: 17 Butcher Boy (FHX)9786855640 P. 001/003 1077 OSGOOD STIREET NO. ANDOVER, MA 01845 PHONE : ( 978)- 688- 1511 ARKETS FAi (978)- 68:5-5640 • 4 FACSIMILE TRANSMITTAL;SHEET 1v: PROW COMM 0ATl..+ /�!"r - FAX KMEk TMAI L 3 FAORS UAMUDD G COVM PJi01�'1VUA16Efi - SEMFA3 RE i AGN Z r1:JWZPJ Ym EF.FE1tEtiKz Numm. RESI X URuNr O POR RBV18W O PLZAZ C0XWXr O P1f�.E uz onT O PLWIF.RgC= I NOr6f/CQl�tEM'S� I E BBPAXdoc i Town Clerk Time Step RECEIVED 2006 MAY 2AM 10: 43 FINDING ,s *RCtitiS� TOWN OF NORTH ANDOVER ` ,`{-1i.0 F 11 ZONING BOARD OF APPEALS MA5-5SAU,tiv`.3! -Y:y NAME: Frank J. Ragonese , petitioner ADDRESS OF APPEAL: 1077 Osgood Street, North Andnv r- Procedure & Requirements for an Application for a Finding Ten (10) copies of the following information must be STEP 6: SCHEDULING OF HEARING AND submitted thirty U days prior to the first public hearing. PREPARATION OF LEGAL NOTICE: Failure to submit the required information within the The Office of the Zoning Board of Appeals schedules time periods prescribed may result in a dismissal by the the applicant for a hearing date and prepares the legal Zoning Board of an application as incomplete. notice for mailing to the parties in interest (abutters) and The information herein is an abstract of more specific for publication in the newspaper. The petitioner is requirements listed in the Zoning Board Rules and notified that the legal notice has been prepared and the Regulations and is not meant to supersede them. The cost of the Party in Interest fee. petitioner will complete items that are underlined STEP 7: DELIVERY OF LEGAL NOTICE TO STEP 1: ADMINISTRATOR PERMIT DENIAL: NEWSPAPER The petitioner applies for a Building Permit and The petitioner picks up the legal notice from the Office receivers a Zoning Bylaw Denial form completed by the of the Zoning Board of Appeals and delivers the legal Building Commissioner. notice to the local newspaper publication. . STEP 2: FINDING APPLICATION FORM: STEP 8: PUBLIC HEARING BEFORE_ THE ZONING Petitioner completes an application form to petition the BOARD OF APPEALS: Board of Appeals for a Finding. All information as The petitioner should appear in his/her behalf, or be required in items 1 through and including 11 shall be represented by an agent or attorney. In the.absence of completed. any appearance without due cause on behalf of the petitioner, the Board shall decide on the matter by using STEP 3: PLAN PREPARATION: the information it has otherwise received. Petitioner submits all of the required plan information as STEP 9• DECISION: cited in section 10, page 4 of this form. After the hearing, a copy of the Board's decision will be sent to all Parties in Interest. Any appeal of the Board's STEP 4: OBTAIN-LIST OF-PAR PARITIES IN INTEREST:--------- .._- 2_______.b-6-madef _ The petitioner requests the Assessor's Office to compile decrslon may be made pursuant to-Nfassarfiusetts---- a certified list of Parties in Interest(abutters). General Law ch.40A§ 17,within twenty (20)days after the decision is filed with the Town Cleric. STEPS: SUBMIT APPLICATION: STEP 10: RECORDING THE DECISION AND PLANS. Petitioner submits one (1)original and ten (10)Xerox The petitioner is responsible for recording certification of copies of all the required information to the Town Clerk's the decision and any accompanying plans at the Essex Office to be certified by the Town Clerk with the time County, North Registry of Deeds, 381 Common St., and date of filing. The original will be left at the Town Lawrence.MA, and shall complete the Certification of Cleric's Office, and the 10 Xerox copies will be left with Recording form and forward it to the Zoning Board of the "Zoning Board of Appeals secretary. Appeals and to the Building Department. .-.a.a»+•aaa{aa1K:+af{f{W{tfaMlK{Wliiia»affai{aa»cw{f{{a.i:+aaaW a»{{»{{f{taaa+++a»+uaa.aa.a++aia»laf aa»a{{tfaxuatat.stu{{c uNafa»Nff{»a»»fUlt{fti{i.»Na4f{YYaf»»s.:»+:.+c:i..i .�IPC�RTANT PHONE NUMBERS: 978-0:38-9533 Office of Community Dev. &Services North Andover Town !-fall 1600 Osgood St., Bldg. 20, Suite 2-32 10 Main Street [Npith Andover, MA 01845 978-888-9501 Town Cleric`s Office 978- :� Ining for Community Development offices 978-688-9566 ;assessor's Office MPS18 8�- ilding Department - Board of Appeals Office BOARD OF APPEALS PAGE 14 4 PAGE 2OF4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a F I N D I N G Blease complete all items 1 -10 below: 1. ,Petitioner: *Name, *Address and telephone number: Frank J. Ragonese` ;1.939: Great Pond Road. -Nortl -Andover MA 01845. 978-828-4667 *The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address, telephone number, and number of years under this ownership: 4g4s .Realty Trust d/b/a Butcher Boy; 1077 Osgood Street North Andover-MA 01845 978-688-1511 Years Owned Land: approximately. 46 years:; per Assessor's records 3. Location of Property: a. Street: 107 Osgood street Zoning District: P� b. Assessors: Map number: 35, B16:6k_'2.7- Lot Number: o..o c. Registry of Deeds: Book Number:.. 912, Page Number: 443 4. Zoning Bylaw Section(s)* under which the petition for the Finding is made. 10.4; 10.1.1; 4. 136; 8.3.8 *Refer to the Zoning Bylaw Denial and Plan Review Narrative form as supplied by the Building Commissioner. 5. Describe the Finding request: This is an-<appeal..of' the Building Inspector's .failure .to actupon petitioner'-s. request for ,en-forcemen.t-"action_of alleged` .zoning bylaw viAol1tion.<by .owners :., of premises located at ,1.Q77,Osgood Street The above description-shallbeused-for.the purpose of the legal.notice and decision,- A more detailed description-is required pursuant to the Zoning Board Rules and Regulations as cited on page 4, section 9 of this application. Failure by the applicant to describe the request clearly may result in a decision that does not address the intent of the applicant. The decision will be limited to the request by the applicant and will not involve additional items not included above. 6 A. Difference from Zoning Bylaw requirements Indicate the dimension(s)that will not meet current Zoning Bylaw Requirements. (Lines A and B are in case of a lot split) Lot Area Open Space Percentage Lot Frontage Parking Sq, Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear A. B. % Page 3 of 4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a FI N DI NG 6 B. Existing Lot: Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 6 C. Proposed Lot(s): Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 6 D. Required Lot: (As required by Zoning Bylaw&Table 2) Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 7A. Existing Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq.feet Building" of Units" 'Reference Uses from the Zoning Bylaw&Table 1. *"State number of units in building(s). 7B. Proposed Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq. feet Building" of Units" *Reference Uses from the Zoning Bylaw&Table 1. "State number of units in building(s). 8. Petitioner and Landowner signature(s): Every application for a Finding shall be made on this form, which is the official form of the Zoning Board of Appeals. Every application shall be filed with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or the Zoning Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal notification. Failure to comply with application requirements, as cited herein and in the Zoning Board Rules and Regulations may result in a dismissal by the Zoning Board of this application as incomplete. Si nature: Type above name(s) here: Leonard F. Femino, Esq. , Attorney for Petitioner �EGEiVED ALEXANDER&FEMINO ATTORNEYS AT LAw 2006 MAY Y 2 J N112: 2 0 ONE SCHOOL STREET BEVERLY,MASSACHUSETTS 01915 EMAIL:LFFQALEXANDERFEMINO.NET LEONARD F.FEMINO 17 �, )f EIP3 ONE(978)921-1990 THOMAS I.ALEXANDERn c' M," i JERALD A.PARISELLA M A a.?s�� ;;_:- {978)921 4553 May 24, 2006 Zoning Board of Appeals Town of North Andover 1600 Osgood Street Bld 20 Suite 2-36 North Andover, Massachusetts 01845 Notice of Appeal Under G.L. c. 40A, § 8 and the North Andover Zoning Bylaw, Section 10.4 Appellant: Frank J. Ragonese 1939 Great Pond Road North Andover, Massachusetts 01845 (Appellant) Nature of Appeal: This is an appeal to the permit granting authority under the procedures of the Massachusetts Zoning Act, G.L. c. 40A, § 8, and the North Andover Zoning Bylaw (Bylaw), Section 10.4, taken by a person aggrieved by reason of his inability to obtain enforcement action by the North Andover Building Inspector(Inspector). The Appellant seeks action from the Zoning Board of Appeals (Board) to effect termination of unlawful operation of storage/refrigeration facilities located on the grounds of the Butcher Boy Mall, 1077 Osgood Street. Grounds for Appeal: a. Appellant sought enforcement of the Bylaw by letter dated April 14, 2006, addressed to the Inspector.A copy of that letter is attached hereto as Exhibit A, and incorporated by reference. b. The Inspector refused the enforcement request and rendered an opinion, explaining his refusal, in a letter dated April 27, 2006, a copy of which is attached hereto and marked Exhibit B. That letter is incorporated by reference. c. The public records of the North Andover Planning Department contains a letter dated November 28, 2005 outlining the Town Planner's perceived violations of the Zoning Bylaw, Code of Massachusetts Regulations and Wetlands Protection Bylaw. That letter is attached hereto as Exhibit C and incorporated by reference. d. The placement and operation of the refrigeration equipment without permits violates the following provisions of the Town's Bylaws: Section 10.1.1 (requirement to obtain building permit); Section 4.136 (Watershed Protection District requirements to obtain special permit from the Planning Board); failure to conform to the Special Permit approving the construction of the mall, see also the other violations as noted in the Town Planner's letter. construction of the mall, see also the other violations as noted in the Town Planner's letter. The applicant also contends that the noise emitting from the refrigeration units is a nuisance and violates the provisions of 310 CMR 7.10, State Noise Regulation, which is enforceable by the building inspector. Relief Request: The Appellant requests that the board exercise powers pursuant to the Massachusetts Zoning Act and the North Andover Zoning Bylaw, after public notice and hearing, and reverse the decision of the Inspector, thereby to effect termination of illegal land use and removal of unlawful structures at premises of 1077 Osgood Street (Butcher Boy Mall) and of activity by the owners of said premises. Respectfully submitted, Frank J. Ragonese By His Attorney, Leonard F. Femino EXHIBIT A April 14, 2006 Mr. Gerald Brown, Inspector of Building Town of North Andover 400 Osgood Street North Andover, MA. 01845 Re: Butcher Boy Mall @ 1077 Osgood Street. Formal request for enforcement action. Dear Mr. Brown, This is a formal request for enforcement action pursuant to Massachusetts General Law, chapter 40A, section 7, as you are the Zoning Enforcement Officer and Inspector of Buildings for the Town of North Andover. As you know, the above referenced property is currently in violation of the North Andover Zoning Bylaw [NABL] and the Massachusetts Building Code [780 CMR]_because the owner(s)has placed/constructed accessory structures in violation of the approved site plan and failed to obtain any permits prior to action. These structures as you know are too close to the property line and were installed without approval from the Conservation Commission and without re-applying to the Planning Board to amend the Site Plan Review Decision. In addition to what appear to be obvious violations, these also,in my opinion, create an undue safety hazard with respect to emergency vehicle access to the site and noise generated all day and evening from the refrigeration compressors which clearly create a nuisance to me and other nearby property owners. Please, upon receipt of this request, take action necessary to bring the property and all structures into compliance with the bylaw, Site Plan Review decision, and the Massachusetts Building Code. I would also ask the Agent for the Conservation Commission to enforce the applicable state and local Wetland Protection Regulations and see if the North Andover Fire Chief feels any enforcement action is necessary to insure the safety of the owner(s) and occupants of these'structures and property due to these being obstructions of emergency vehicles?As you see below, I have also furnished copies of this request to these other officials and or departments. If you have questions or need any information-from me,please call anytime and thank you in advance for assisting me with this problem. You may reach me at 978-356-6603 days or leaving a message on 978-794-4462: Yours truly, Frank J. Ragonese cc; Mark Rees Town Manager William Dolan Fire.Chief Alison McKay Conservation Curt T. Bellavarice Director Community Development Lincoln Daley Town Planner i EXHIBIT B EXHIBIT C Town of North Andover Building Department Community Development and Services Division #'�, ._ _.�.•= 400 Osgood Street CHU Gerald A.Brown North Andover,Massachusetts 01845 Inspector of Buildings Telephone(978)688-9545 Fax(978)688-9542. April 27,2006 Mr.Frank J.Ragonese 1939 Great Pond Road North Andover,Massachusetts 01.845 Dear Mr. Ragonese: This letter is in response to your letter dated April 14,2006 requesting enforcement action from the Inspector of Buildings/Zoning Enforcement Officer pursuant to Massachusetts General Law,ch.40A§7 in. order to bring the property and all structures of the Butcher Boy Mall, 1077 Osgood Street,into compliance with the bylaw. I am of the following opinion after investigating your complaint against the above referenced business: • The North Andover Zoning Bylaw does not define"permanent"or"temporary'. Since the trailer is on wheels and is registered;it is temporary because it can be moved. • The NorthAndoverZoning By-law does not address noise levels in any zoning,district. • The North Andover Zoning By-law does not address hours of operation in any zoning district. If you have any questions,please feel free to contact me. If you would like to appeal this interpretation of the North Andover Zoning Bylaw, Section 10.4 of the Bylaw states that decisions may be grieved within (30)days before the North Andover Zoning Board of Appeals. Sincerely, Gerald A.Brown, Inspector of Buildings/Zoning Enforcement Officer cc: Mark Rees,Town Manager Curt Bellavance,Community Development Director Alison McKay,Conservation Administrator Lincoln Daley,Town Planner William Dolan,Chief,Fire Department Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 t HoRTH o F �1SSACHU Town of North Andover Community Development Division 400 Osgood Street RECEIVED North Andover, Massachusetts 01845 Angus Realty Corporation SPR 13 2006 U 1077 Osgood Street NORTH ANDOVER North Andover, MA 01845 CONSERVATION COMMISSION November 28, 2005 Mr. Ken Yameen: This letter is in response to a meeting with Mark Rees,Town Manager seeking a resolution to the refrigeration units located behind the Butcher Boy Market Place. It is our understanding that an abutter, Frank Rangonese filed a complaint against the Butcher Boy Market Place regarding the level of noise produced by the structures. We further understand that discussions between Butcher Boy Market Place and Mr. Rangonese were left unresolved. Mr. Rees asked the Community Development Division to examine the historical records and remedy the situation. The statements below are based on information of record within the Division of Community Development. As defined by the North Andover Town Bylaw and as determined by the Inspector of Buildings,the refrigeration units are categorized as a building and/or structure.' Building Department records indicate that the Butcher Boy Market Place did not obtain the necessary building permits to construct or locate the refrigeration units on the property. As such,the Butcher Boy Market Place is currently in violation of 780 CMR 110.0 Application for Permit, Subsection 110.1 Permit Application which states: "It shall be unlawful to construct, reconstruct, alter, repair, remove or demolish a building or structure; or to change the use or occupancy of a building or structure; or to install or alter any equipment for which provision is made or the installation of which is regulated by 780 CMR with first filing a written application with the building official and obtaining the required permit therefore. " The Building Department would be required to issue a Cease and Desist order for those structures without a building permit. Upon examination of the Planning Department files, the Site Plan Special Permit in the 1988 Settlement Decision and 1990 Planning Board Conditions of Settlement make no mention of structures utilized for refrigeration. Further, the Final Approved Site Plans dated 10/15/86, Revised 10/22/91 do not contain any reference or detail of structures used for refrigeration outside the footprint of the approved main Town Bylaw Section 2.26 Building- A structure having a roof supported by columns or walls for the shelter, support, or enclosure of persons, animals,or property. Town Bylaw Section 2.68 Structure - Means a combination of materials to form a construction that is safe and stable, including, among others, buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs:the term structure shall be construed as if followed by the words"or part thereof: i I i building. As determined by the Town Planner, the buildings and/or structures in question are considered substantial and materially different to the approved site plan and require the applicant to file a modification with the Planning Board in accordance with Section 8.3.8 of the Town Bylaw. The Conservation Administrator recently conducted an onsite inspection and after reviewing Conservation Department files, determined that the refrigeration structures are in violation to the 50'No Build setback and 25'No-Disturbance setback as regulated in 3.4 (Buffer Zones) of the North Andover Wetlands Protection Bylaw, which reads: "Where a proposed activity involves the removing, filling, dredging or altering of Buffer Zone, the Commission shall presume that protection of the Buffer Zone of a resource area identified in Section 1.3 is significant to the interests specified in Section 178.1 of the Bylaw. This presumption is rebuttable and may be overcome upon a clear showing that the Buffer Zone does not play a role in the protection of said interests. In the event that the Commission deems that the presumption has been overcome, the Commission shall make a written determination to this effect, setting forth its grounds. The 100 foot Buffer Zones of Bordering Vegetated all contain, at a minimum, a 25 foot No-Disturbance Zone and a 50- foot No-Build Zone... " Further, all activities performed (including, but not limited to the placement of a structure(s))within the 100'buffer zone to a protected wetland resource area shall be subject to review and approval by the Conservation Commission. "The Commission shall not grant such permission without receiving written notice of the intention to conduct such activity, and without issuing written permission to do so in compliance with the provisions of the Bylaw" We strongly encourage you to meet with the Staff of the Community Development Division to discuss an appropriate course of action and alternatives to the current refrigeration units on site. The Town fully appreciates the commercial and historical significance of the Butcher Boy Market Place. The Community Development Division would be more than willing to work with Butcher Boy Market Place to resolve this issue in the best interest of the parties involved. If you have any questions, please feel free to contact Curt Bellavance, Community Development Division Director at 978-688-9533. Sincerely, Lincoln Daley, "Town Planner on behalf of the North Andover Community Development Division CC: Mark Rees,Town Manager Curt Bellavance, Community Development Director Gerald Brown, Inspector of Buildings Alison McKay, Conservation Administrator Susan Sawyer, Health Director Lincoln Daley, Town Planner Frank Rangonese, Abutter May 24 2006 3: 45PM Town of North Hndover Mas 9786883211 p. 2 Abutter to Abutter( ) Building Dept ( ) Conservation ( ) Zoning ( ) REQUIREMENT.' MGI 40A.Section 11 slates in part*Parties in Interest as used h this chaper emit mean the petitioner, ab Aars,amwe or land dirsdly opposbon any pW k or private way.and abutters to abutters within three Wndred(300)feet of to property line of the petitioner as they appear on the most recent applicable tan list,not wbhatamfg that the land of any such owner Is bcaled In another city or town.Me piannhg boa of the city or fawn.and the plamkp board of every abutting dty or town' Subiect Property: MAP PARCEL Name Address 35 27 ANGLIS REALTY CORP JA77 0SGOOD STREET,NORTH ANDOVER,MA 01645 Abufdars Proaerd cps Og P&WIlame Address 35 20 Russell Treadwell LZ221 Huntington Place Drive,Sarasorta,PL 34237 35 50 1003"Orsgood Street LLC L-M Pleasant Street,North Andover,MA 01845 35 21/28/44 Town of North Andover L120 Main Street,North Andover,MA 01845 35 90 Neal Shapielgh -75 French Fann Road,North Andover,MA 01845 35 47 VJ VK Inc. 53 Kelly Road,Salem,NH 03079 35 15 /Vincent Grasso t.WCommerce Way, North Andover,MA 01845 35 36 V-ti(A i VA r u Haphey Realty Trust 40 Russell Street,North Andover.MA 01845 35 53 1140 Osgood Street Trustv4159 Osgood Street,North Andover,MA 01845 35 13 Edward Riemities 187 Stonedeave Road,North Andover,MA 01845. 35 14 One Clark Street NA LLC jAfA Exchange Street,Portland ME 04101 35 109 Town of North Andover)q?E120 Main Street,North Andover,MA 01845 35 58 Paul Lawson L.,"25 Great Pond Road,North Andover,MA 01845 35 59 Celestial Realty Trust &4939 Great Pond Road,North Andover,MA 01845 35 108 John Kelly t.,4 Lowell Street Peabody MA 01960 35 61 Joseph Pelich 725 Boxford Street,North Andover.MA 01845 35 5 Frederick Fontein 1895 Great Pond Road,North Andover,MA 01845 35 91 Michael Salach 63 French Faun Road,North Andover.MA 01845 35 7 1159 Osgood Street Trust VI'159 Osgood Street,North Andover,MA 01845 35 37 VicentTyle r 1/r149Osgood Street,North Andover,MA 01845 35 6 Tobi McCarthy 1145 Osgood Street,North Andover,MA 01845 35 94 William Stathos 33 French Farm Road,North Andover,MA 01845 35 93 Fred Boucher t,,�French Farm Road,North Andover,MA 01845 35 92 Brian Mcanaily 53 French Farm Road,Notch Andover,MA 01845 35 51 Simone Marchand ✓S81 Great Pond Road,North Andover,MA 01845 Lake (ochichewick Commonwealth of MA,4 f 400 Cambridge Street,Boston,MA 02202 �! rt' G✓�e� 7` Z`b� This oerti ieS that the names appearing on the records of the A Offs as Of Certified b : �D�-��LQ�„/ r PAGE 4 of 4 FINDING 9. WRITTEN DOCUMENTATION Application for a Finding must be supported by a legibly *10. C. *Features To Be Included On Plan: written or typed memorandum setting forth in detail all I) Site Orientation shall include: facts relied upon. All dimensional requirements shall be 1. north point clearly identified and factually supported when requesting 2. zoning district(s) a Finding from the requirements.of MGLA ch. 40A, and 3. names of streets the North Andover Zoning Bylaws. All points,A-C, are 4. wetlands (if applicable) required to be addressed with this application. 5. abutters of property, within 300' radius 6. locations of buildings on adjacent properties A. The particular use proposed for the land or structure. within 50' from applicants proposed structure B. Fact(s) relied upon to support a Finding that the 7. deed restrictions, easements. proposed extension or alteration shall not be more 11)Legend & Graphic Aids: substantially detrimental than the existing non- 1. . Proposed features in solid lines& outlined in red conforming use. 2. Existing features to be remov d-in dashed lines C. Address all appropriate details of the Building 3. Graphic Scales Commissioner's denial. 4. Date of Plan 5. Title of Plan 6. Names, addresses, and phone numbers of the 10. PLAN OF LAND applicant, owner of record, and designer or Each application to the Zoning Board of Appeals shall be surveyor. accompanied by the following described plan. Plans 10. D. Minor Projects must be submitted with this application to the Town Minor projects,such as decks,sheds, and garages, Clerk's Office and ZBA secretary at least thirty(30)days shall require only the plan information as indicated with prior to the public hearing before the Zoning Board of an asterisk(*). In some cases further information may appeals. be required A set of building elevation plans by a Registered Architect may be required when the application 11. APPLICATION FILING FEES involves new construction/conversion/and/or a proposed change in use. 11.A. Notification fees: Applicant shall provide a checl, or money order to: "Town of North Andover-#022-1760- 4841" 022-17604841" for the cost of first class, certified, return receipt 10. A. Major Projects ($4.42 as of November 2003) x#of all parties in interesl Major projects are those which involve one of the identified in MGLA ch. 40A§11 on the abutter's list for following whether existing or proposed: the legal notice check. Also, the applicant shall supply 1)five(5) or more parking spaces, first class postage stamps(currently 37¢) x the#of 11)three(3)or more dwelling units, parties,of,interest on_the abutter's_ lis.t_for.the decision 111)2,000 square feet of building area. mailing. Major Projects shall require, in addition to the 1013. & 10 C. features, that the plans show detailed utilities, soils, 11. B. Mailing labels: Applicant shall provide four(4) and topographic information. sets of mailing labels no larger than 1"x2-5/8" (3 copies for the Legal mailing and one copy for the Decision *10. B. *Plan Specifications: mailing). I) size of plan: Ten (10 ) paper copies of a plan not to exceed 11"x17", preferred scale of 11. C. See 2005 Revised Fee Schedule. 19'=40'. II) one(1) Mylar. III) The plan must be prepared by a Registered Professional Engineer and/or Land Surveyor, with a block for five (5) ZBA signatures and date indicated on the Mylar. Town of North Andover Zoning Board of Appeals 400 Osgood Street North Andover,Massachusetts 01845 Phone 978-688-9541 Fex 978-688-9542 ABUTTERS LIST REQUEST FORINT MORN O 9 r r �1 ZACM� Please submit this form to the North Andover Assessor's Office,120 Main Street,North Andover, 01845,phone 978-688-9566. The Assessor's Otliee Is open from 8:30 to 4:30. The fee for the list is 3'25.00. The Assessor's Office requests tco working days to prepare a Certified IlsL REQUIREMENT:MGL 40A,Section I1 states in part"Parties in interest as used in this chapter shall man the petitioner,abutters,owners of land directly opposite on any public or private street or way,and abutters to abutters within three hundred(300)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." Map(s) Pameks) 35 Block 27, Lot 0.0 Address: No(s). 1077 Sam: Osgood Street, North Andover Property Owner of Record: Angus Realty Corp: d/b/a Butcher Boy Name of Person Requesting List: Alexander & Femino Phone No,: 978-921-1990 Requestor's address: One School Street, Beverly MA 01915 Date of Request: May 24, 2006 zoo/Zoom xvd W11 cam 9002/t+z/S0 NORTH OE , 4F, -� O .01,11 IT CHUS���� ZONING BOARD OF APPEALS Community Development Division FAX TRANSMISSION TO: ra ell t e— FAX NUMBER: 017 f; z;(o 19 FROM: Town of North Andover Zoning Board of Appeals 1600 Osgood Street FAX: 978-688-9542 PHONE: 978-688-9541 Cover& Pages: 13 Date: Subject: eef PVHJ pogd Remarks: • o G r Cq ll 4-0 j e(r 6 ra'�✓► /0 72 Qy pn� 5tv-et`f A A u 5 Rei f� s 1�Vlap = 3�) �q�`e' ;z 7 9 3 9 Alf 35 Parce 1 �J 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9541 Fox 978.688.9542 Web www.townofnorthandover.com Commercial Property Record Card PARCEL_ID:210/035.0-0027-0000.0 MAP:035.0 BLOCK:0027 LOT:0000.0 PARCEL ADDRESS:1077 OSGOOD STREET PARCEL INFORMATION Use-Code: 323 Sale Price: 0 Book: 00912 Road Type: T Inspect Date: 09/09/1997 Tax Class: T Sale Date: 12/31/1959 Page: 0443 Rd Condition: P Meas Date: 09/09/1997 Owner: Tot Fin Area: 29834 Sale Type:, Cert /Doc: Traffic: M Entrance: X ANGUS REALTY CORP - Tot Land Area: 9.05 Sale_Valid: N Water: Collect Id: JEL Address: Grantor: Sewer: Inspect Reas: R 1077 OSGOOD STREET NORTH ANDOVER MA 01845 Exempt-B/L% / Resid-B/L% 0/0 Comm-B/LW0/100 Indust-B/L% 0/0 Open Sp-B/L% 0/0 COMMERCIAL SECTIONS/GROUPS LAND INFORMATION Section: ID: 101 Use-Code: 323 NBHD CODE: 31 NBHD CLASS: 1 ZONE: GB Category Gmd-Fl-Area Story Height Bldg-Class Yr-Built Eff-Yr-Built Cost Bldg Seg Type Code Method Sq-Ft Acres lnflu YIN Value Class 2 29834 1 C 1995 1995 2,328,800 1 P 325 S 304920 6.85 1,829,520 Groups: 2 R 323 A 2.2 Y 22,000 Id Cd B-FL-A Firs Unt DETACHED STRUCTURE INFORMATION 1 325 29834 1 1 Str Unit Msr-1 Msr-2 EYR-Bit Grade Cond%Good.P/F/E/R Cost Class LI C 10 1995 A A ///95 12,900 3 AS S 97000 2000 G G 100///100 178,500 3 OT C 1 1995 A A ///100 110,000 3 VALUATION INFORMATION Current Total: 4,610,000 Bldg: 2,758,500 Land: 1,851,500 MktLnd: 1,851,500 Prior Total: 4,610,000 Bldg: 2,758,500 Land: 1,851,500 MktLnd: 1,851,500 SKETCH PHOTO et4 + , 1077 OSGOOD STREET q' Parcel ID:210/035.0-0027-0000.0 as of 7/25/06 Page 1 of 1