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Miscellaneous - 11 BAYFIELD DRIVE 4/30/2018
11 BAYFIELD DRIVE 2101025.0-0073-0000.0 \` I i I - -� rvtA55Al.;HUSETTS UNIFORM APPLICATION FOR PERMIT TO DO GASFITTINO (Print of Type) NORTH ANDOVER , Mass. Date act Building Location_ !, I, Permit # Owner's c� f nn Name New Renovation ❑ Replacement [] Plans Submitted:. Yes ❑ No h : , a tK1 s C n at y r aC ►- a O a1 tl -1 h W 0 V a! f N 1 p w H t 30' s Z 40 �. x „ 8: s! tlv w ss j h e 00 NO a M .w1 .Ile 81 E 'i 'o e ZK i t t� ° 0 1�1 n. IN. O .1 V e teuel—tssMT. SASHMENT 1ST FLOOR 21410.FLOOR l 3Rb FLOOR 4THFLOOR i 4TH FLOOR STH FLOOR i 7TH FLOOR t , STH FLOOR ftLLI Installing Company Name ( Check one: Certificate Address v 1 Q Corp' d Partnership QFlrm/Co. Business Telephone Name of Licensed Plumber or teas Filter � [1 I ,�,��,�� INSURANCE COVERAGE: Check one I have a current liability Insurance policy or its substantial equivalent. ' yes .j, No ❑ If you have checked yea, please indicate the type coverage by checking the appropriate box. A Itat;plty Insurance pdicyOther type of Indemnfty L7 Bond ❑ OWNER'S INSURANCE WAIVER: I am aware that the licensee does not have the Insurance coverage required by Chapter 142 of the Mass. General Laws, and that my signature on this permit a ppllcatlon wolves this requirement. Check one: %nature of Owlet or Owner's Agent Owner ❑ Agent ❑ I hereby certify that all of the details and Information I have submitted (or entered)In above application are true and accurate to the best of my knowledge and that an plumbing work and Installations performed under the permH Issued/or this appikatlon will be M compliance with all pertinent provisions of the Massachusetts Stele Qas Code and Chapter 142 of the al l eyvt. T of tkense: Plumber THIe na urs o nse um er or as er Oastlllef �,/To Master tkense Number S r� Joumeyman Mf'f10VED (Of FICE USE ONLY) "`yrs^.-++..v��...irS.......-..,:iL"' """ ... -n t..::•�.- *Tp 2360 Date...��`.ZIQ. ... .W. ,.prrTM TOWN OF NORTH ANDOVER 0 � PERMIT FOR GAS INSTALLATION SS CH n .. -44— This certifies that . . . . . '. . .. . ... . . . . . . . . . has permission for gas installationJ .,/Y1 :,�/�h�'1! in the buildings of // u; at . 0. . .:t� �!. . ... . .. North Andover, Marg. JA-1 CU Fee.5,`�. i . o.�.? .� . . . . . . . . . . . . . . . . . . . . . . .. Pk ,� GAS INSPECTOR WHITE:AppfTc..t GRANARY: 8uiiding Dept. PINK:Treasurer GOLD:File Office Use ON 014e If gasgarf�aPls Permit No. ^' Bep aItmient af,Valbllc *afftl Occupancy&Fee Checked J 3M (leave blank) a7 BOARD OF FIRE PREVENTION REGULATIONS 527 CMR 12:00 APPLICATION FOR PERMIT TO PERFORM ELECTRICAL WORK All work to be performed in accordance with the Massachusetts EIectrical Code, 527 CMR 12:0r0/ (PLEASE PRINT IN INK OR TYPE ALL INFORMATION) Date Lam_ 7 — �( (X)� or Town of NORTH ANDOVER To the Inspector of Wires: The udersigned applies for a permit to perform the electriiccJal work described below. Location (Street & Number) G � � �"'-' at- Owner or Tenant 144 y E-4 C4t..)t(i-t Owner's Address Is this permit in conjunction with a building permit: Yes _ No (Check Appropriate Box) Purpose of Buildina Utility Authorization No. Existing Service Amos _J Volts Overhead ' Undgrnd L' No. of Meters r- New Service Amps _J Vaits Overhead Unagrna r No. of Meters Number of Feeders and Amoacity Location and Nature of Prcoosed Elec:ricai Work Totai No. of Llgnting Outlets i No. of Hct -.:bs No. of Transformers KVA I above— In- No. of Lichting Fixtures i Swimming Pcoi grre _ gmc. _ Generators KVA iI No. of Emergency Lighting No. of Cil Burners No. of Recectac!e Outlets Battery Units No. of Switch Outlets I No. of Gas Burners FIRE ALARMS No. of Zones Total No. of Detection and No. of Ranges No. of Air Ccr.c. tons Initiating Devices Heat Total Totat No. of Oisoosals I No.of Pur—os Tors KW No. of Sounding Devices iVo. of Sart Contained No. of oishwasners SoaceiArea Heating KW Detec:;oniSouncing Devices Municibai —Other No. of Dryers Heating Deices KW Local Connec:con No. of No. of Law Voltage No. of Water Heaters KW ! Signs Sailasts Wirinc No. Hydro Massage Tubs I No. of Motors/ y� "T�ota�l HP �} OTHER: lCl L L 1 tet/ �fJ INSURANCE COVERAGE: Pursuant:o ine reduirements of '.tassacnusers general Laws _ 1 have a current Liagiiity Insurance Policy inciucmg C^m^eetec Ccerations Coverage or its subs:anbai ecuivaient. YES NO _ have sucmi[ted valid proof of same to the Office. YE NO _ If you nave checkea YES. please indicate :he type o coverage by checking theproeriate box. INSURANCE BONO _ OTHER _ (Please Scec:fy) (Exeiration Datei Estimated Value of E!ec:ncal Work 5 Insoecaon Date Redues:ec: Rough_ Final Work to Start Signed under:he Penalties,at Eerl LIC. NO. FIRM NAME H A Yh Sigr.at::re LIC. NO. �,.�---- Licensee G 9 Bus. Tei. No. J �f �� / VV Att. -el. No. Address L Js� OWNERS INSURANCE WAIVER: 1 am aware that the L, ensee odes not nave the insurance w coverage e i substantial eauivalenAgent t ente quires by Massacnusetts General Laws. and that my signature on :his permit aopiicauon waives this regwrement. Owner� C,G (P!ease cnecK one) Teieonone No. PERMIT FEE 3 Signature of Owner or Agent) 1'050' 2689 Date.. ? :.�. ... TIy , TOWN OF yN}�O.�Rr�TH ANDOVER L.-i ibI L ... 0 y� � op PERMIT FOR IM INSTALLATION s i r �9SSACMUSES This certifies that . . ,,�,�,'. . . . . . .. '/� r y✓t rt,hti�b��� has permission for,W installation. . f in the buildings of ��f . . ..�Q... . . . . . . . . . . . . . at .,�(� �� � r-C�. . . . . . . . . . . . ., North Andover, Mass. i Fee.i eti. .'Zic. No. 0�" . (33'3 INSPECTOR (�i1111191t1i Qbant 9 Y:Ming Dept. PINK:Treasurer GOLD:File MON The Commonwealth of Massachusetts °r:``a `''a only Dtporrment of Public Safety Vf BOARD OF FIRE PREVENTION REGULATIONS S27 CMR t OCC°i-ancy a roe a,.ckto��_ 2W 3/90 (leave blank) !! ,5jr APPLICATION FOR PERMIT TO , PERFORM ELECTRICAL WORK NI vmrk to bt Periormed an accordance with the Masaachuseru EJce1r1c&1 Codi:!�X :00 / (PLEASE PRINT IN INR OR E INFORMATION) Date City or Town of To the Inspector of Wires: The undersigned applies for a permit to perform the electrical work described below. Location (Street b Number) (, Owner or Tenant Owner's Address /J Is this permit in conjunction with a building permit; Yes ❑ No (Check Appropriate Box) Purpose of Building &N-eV IA Utility Authorization NO. Existing Service Amps / Volts Overhead ❑ Undgrd ❑ No. of Meters New Service _Amps / Volts Overhead ❑ Undgrd ❑ No. of Meters Number of Feeders and Ampscity, " 11 Location and Nature of Proposed Electrical Work y1 n /h r� a n No. of Lighting Outlets No. of Hoc tubsTotal No. of Transformers S IV No. of Lighting Fixtures Above In-Pool rnd. ❑ grnd. ❑ Generators KVA No. of Receptacle Outletsg Battery No. of 011 Burners No. of Emergency Lighting No, of Switch Outlets Units No. of Cas Burners FIRE ALARMS No. of Zones No, of Ranges No. of Air Cord, Total No. of Detection and lona Initiating Devices No. of Disposals No. of Heat Total Total P=:,3 KW No. of Sounding Devices No. of Dishwashers Space/Area Heating KW No. of Self Contained Detection/Sounding Devices No. of Dryers Heating Devices KW ❑ Municipal Local Connection❑Other No. of Water Heaters KW No, of o. o Si ns Ballasts Low Voltage Wiring No. Hydro Massage Tubs No. of Motors Total HP OTHER: INSURANCE COVERAGE: Pursuant to the requirements of Massachusetts General Laws I have a current Liabilit Insurance Policy including Completed Operations Coverage or its substantial equivalent. YES E NO 5 I have submitted valid proof of same to this office. YES Q NO If you have checked YES, please indicate the type of coy a byy c pyeking the appropriate No INSURANCE BOND ❑ 0THER ❑ (Please Specify) / 1/�`L�I� �Estimated Value of Electrical Work S Work to Start Inspection Date Requestedr Fi Rough C,041// 8 nal � Signed under the enalties of perjury: FIRM NAME �G�C T 12!C 1 iYc_ \ U � S: T Licensee LIC. N0. sy� �ii5q /� Si�/gnature LIC. N0. Address_/C? �//LLSiI�� �.� /1,/I G� �yf us. Tel. No. lv S-- 3 —77 ' 7 _ OWNER'S INSURANCE WAIVER: I an aware that the Licensee does not have the insurance coverage or is su stantial equivalent as required by Massachusetts Ceneral ws, and that my signature on this permit application waives this requirement. Owner Agent (Please check one) Telephone No. . PERMIT FEE S XS Signature of Owner or Agent Date......7. 71 2511 ,AOROHI 04 ...T ...4, TOWN OF NORTH ANDOVER 0 PERMIT FOR WIRING 1SgACMu This certifies that ..... (�bc......... ...J111C......... 9 has permission t4erfor ....................................4 �'Z wiring in the building of. ...... . .................................. at.&...7.naw� SIB V. ....................... .North Andover,Mas Fee/-:::i.0...:n-.�... Lic.ap..�a ........ ELECTRICAL WHITE:Applicant CANARY: B61,'ding Dept. PINK:Treasurer GOLD: File u '�J P9 aft ow C:uV 0� 3 � ti L1� C� b� P �P��s:�, , ,s;ded +',me 5��1i�`�4 M A(ee+ e�cer -31- 7 �c- � ✓,�-J �o� -�-3-03 �p � - 16-D3 e d Ceo Y�!ucJ �U�-� II-3�p3 V! ' �y-e, V��li�c.a�►c,f. H p�5 �- 5���d elf. ` 0oc,(ATADA-'j� ,�y�n 7 r25C,1A I� I� �✓ ?-l7- a-b 03 � &-A5 z6A � � II-17-03 11 �e�pf� ��✓� � "�-��(�.,/a �r�{F;� Vlo � s� ' � � 5 0:3 310 At t )1- (�-03 v-e- ,? q-e6 ' A t f T�h'tc, n n q q L-° 6 9 r 1�L4 V Pmt�1 s�G� ,il v I -e 4 >� �/J, J '✓C)q IIVlP� 1Ill� vJort' vs �uV14'e— cox's t- jq dYt q j In') t '�Ot") ('I� �� ?✓ ��9�,� l� Il�j � ✓�7 �1 ✓h 9 �I� Z✓J}��yft 1'Zl� �- Is o`j �Ins�e�or � � , G,,,'�,'� 'c) Y° le�Jcr F q �G�irn�t75 ��f p a sid��. 6A d-4frd 15 le ffer 4-D 1�, G�'� �� ✓1 t � �j, oi��c,l��n 0 I � ,mq�n ('�1tar5Tol������ �� n5��P5 C�qi� !°�J 1� co��✓ ��x a- to G✓� {FIA t w�(��y Sok�� i� �� '�� c,� , cover ULO-)f5 �elllJa a- il � o`� fly l���vin 'y �- t0 - D� r�� clf Fv� ( ,los a-io i� �r�e�`s s �- I-$- � � (�va-F�' ,ec ►hi ,�''1 11 ����;�I� A � ✓4�P�i5 Cry-�P�f 2`�9-� C A�L� Poo be � a - a-3- off y-' c� CA 4^ F' S 4 - f \ Date rF_&ORTPI ?c`at .o TOWN OF NORTH ANDOVER BUILDING DEPARTMENT 'SS+cMusEth Building/Frame Permit Fee Foundation Permit Fee $ i F ,Q . �0f'f9L'P'PitTMFE��° $ • n ►{ II V14 rtp 37 4A 'EBe 4ji;; rvspeod'or... ZBA 1 6 6 -Date 9.-J.7-..P.3...... �NORT/y TOWN OF NORTH ANDOVER O 9 . RECEIPT Sr4CHU5E This certifies that t?.. 4L....115-1 L41 ...5.............................................. has paid ....e-- ...�...... ..............................`.. for. .}.. .(��.n r�.................................................................................... Receivedby. F E rL+xj. ....................................................... /�1 Department.�-:.. e. ......... �.,�t...^.oal......................................... V WHITE: Applicant CANARY:Department PINK:Treasurer / Michael J.Farrow Chief Executive Officer LEleven-BffyfieId Drive Forty-Seven Depot Street Seventy-Nine A Bradley Drive North Andover,MA 01845 Merrimack,NH 03054 Westbrook,ME 04092 Tel: (978)685-9685 Tel: (603)429-0411 Tel: (207)854-2251 Fax: (978)686-1515 Fax: (603)429-0430 Fax: (207)854-2384 (�V 2 4 2003 BOARD OF APPEALS Town of North Andover N°oTH , Office,of the Zoning Board of Appeals Comnl� ty Development and Services Division x • I '_. I 0 V 27 Charles Street North Andover,Massachusetts 01845 'sSCHUS iul`sl i Eb' I imp I�: D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 Any appeal shall be filed Notice of Decision within(20)days after the Year 2004 date of filing of this notice in the office of the Town Clerk. Property at: for property at: 11 Bayfield Drive NAME: Konstantinos&Rowena Balos, HEARING(S): 11-18,2003,1-13&2-10-04 66 Meadowood Road,North Andover,MA ADDRESS: for property at: 11 Bayfield Drive PETITION: 200-037 North Andover,MA 01845 TYPING DATE: 2/12/04 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,the I Oh of February 2004 at 7:30 PM in the Senior Center, 120R Main Street,North Andover upon the application of Konstantinos& Rowena Balos,66 Meadowood Road requesting a Finding from Section 4,Paragraph 4.132 and Section 10,Paragraph 10.4 of the Zoning By-law to reverse the Building Commission's opinion that Materials Installations,Inc. 11 Bayfield Drive,North Andover,MA are in compliance with the Zoning By-law and the Planning Board Special Permit of August 31, 1987. The said premise affected is property with frontage on the North side of Bayfield Drive within the I-1 zoning district. The legal notice was published in the Eagle Tribune on November 3& 10,2003. The following members were present: Walter F. Soule,Alen P.McIntyre,Joseph D.LaGrasse,and Richard D.Byers. Upon a motion by Joseph D.LaGrasse and 2nd by Richard J.Byers,the Board voted to uphold the Building Commissioner/Zoning Enforcement Officer's letter of August 25,2003 and DENY the Finding of the party aggrieved for the following reasons: 1. The Planning Board Special Permit of August 31, 1987,time stamped by the North Andover Town Clerk on September 03, 1987 does not place a definite hourly time of operation for Materials Installations,Inc., 11 Bayfield Road in the Conditional Approval of the Site Plan Review. 2. The Planning Board decision of 1987 does not place any restriction on the type of business Materials Installations,hic. conducts at the Industrial-1 site. In fact the August 31'decision gave the business permission"to expand the assembly and live storage areas in an existing building by 18,200 square feet". 3. In 1987 and presently the North Andover Zoning By-law does not address hours of operation. 4. In 1987 and presently the North Andover Zoning By-law does not address"noise levels"in any zoning district. 5. The Building Commissioner/Zoning Enforcement Officer's site visit found that Materials Installations had conformed to Paragraph 5 of the Conditional Approval. 6. The Zoning Board has no authority to modify a Planning Board decision. 7. The Zoning Board has no authority to order the Building Commissioner/Zoning Enforcement Officer to act outside North Andover By-laws. Voting favor of the denial: Walter F. Soule,Ellen P. McIntyre,Joseph D.LaGrasse,and Richard D.Byers. Town of North Andover Board of Appeals, Walter F. Soule,Acting Chairman Decision 2003-037. M25P73. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 t > Town of North Andover of NORT1� Office of the Zoning Board of Appeals ,'..° •'�� Community Development and Services Division 27 Charles Street + - � •,4r•° ' North Andover,Massachusetts 01845 is CH D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 Legal Notice North Andover, Board of Appeals Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main Street, North Andover, MA on Tuesday the 180`of November, 2003 at 7:30 PM to all parties interested in the appeal of Konstantinos & Rowena Balos, 66 Meadowood Road requesting a Finding from Section 4, Paragraph 4.132 and Section 10, Paragraph 10.4 of the Zoning By-law to reverse the Building Commission's opinion that Materials Installations, Inc. 11 Bayfield Drive,North Andover, MA are in compliance with the Zoning By-law and the Planning Board Special Permit of August 31, 1987. The said premise affected is property with frontage on the North side of Bayfield Drive within the I-1 zoning district. Plans are available for review at the office of the Building Department 27 Charles Street, North Andover, MA, Monday through Thursday from the hours of 9:00 AM to 2:00 PM. By order of the Board of Appeals William J. Sullivan, Chairman Published in the Eagle Tribune on November 3 & 10, 2003. Le alnotice 2003-037 M25P73 Nom .�, Wom33�o3 oao ..�o .�Qo�nro�ot°om�70o .togcn(���cQ wi <O 003Z M- .�o�m taa3DZ-.0?:o<o° � .Q00 mw Dim < Z M Cd C3 �<-cm�� �oy`�3��� wcoN 3mN��3ca�X@00Z EZnOr � 2, m�vc�i-cm3*m ID ) D 3 ° °�g��?:m 1 �vN omojO �o���N=coo oyo�?; •°^'m0=ral'� v 3 Z'i>5 0'-m a 33��Er U w o Wd�ocpa nD mgt m oa- mmCDw pCD0v00 o�tp3D yyWG?_a,oam��'v'`-5-- a-azoZ W S('>CA Om�.O+N O< ?.QO �- t0 R 7�O O C AT O 7 O,-N D� W oil O .. omc�ooi D�3Z��w. =1 2Z �_WWivo�mv tom Oo��O�vc�o ��w>�m 30<,M3 �000�toQ a-off �� �<�v�n�p�,wao mn°�'wio3ca�a�m — �} _. _ _ wo o .« sv��o v,<» .N :m °'oco_woo .00'v�wrn tom o�osM is r - 03 <3. ,m CD � l:,.a<m�a �to0 0 toarnl��`tn°'s - 1�7 0 Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning_978-688-9535 Town of North Andover NORTI; pE tt�•o ��~O Office. of the Zoning Board of Appeals 3 ` O ' A i \ \L Ji�r C4**'1X 4 Development and Services Division ; z !'. `i 1 U V:� 27 Charles Street ' _ :>• • ! North Andover,Massachusetts 01845 'SswCHU } SEt 10 f I L-D I q P 12' D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 Any appeal shall be filed Notice of Decision within(20)days after the Year 2004 date of filing of this notice in the office of the Town Clerk. Property at: for property at: 11 Bayfield Drive NAME: Konstantinos&Rowena Balos, HEARING(S): 11-18,2003,1-13&2-10-04 66 Meadowood Road,North Andover,MA ADDRESS: for property at: 11 Bayfield Drive PETITION: 200-037 North Andover,MA 01845 TYPING DATE: 2/12/04 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,the 10'h of February 2004 at 7:30 PM in the Senior Center, 120R Main Street,North Andover upon the application of Konstantinos&Rowena Balos,66 Meadowood Road requesting a Finding from Section 4,Paragraph 4.132 and Section 10,Paragraph 10.4 of the Zoning By-law to reverse the Building Commission's opinion that Materials Installations,Inc. 11 Bayfield Drive,North Andover,MA are in compliance with the Zoning By-law and the Planning Board Special Permit of August 31, 1987. The said premise affected is property with frontage on the North side of Bayfield Drive within the I-1 zoning district. The legal notice was published in the Eagle Tribune on November 3& 10,2003. The following members were present: Walter F. Soule,Ellen P.McIntyre,Joseph D.LaGrasse,and Richard D. Byers. Upon a motion by Joseph D.LaGrasse and 2"d by Richard J.Byers,the Board voted to uphold the Building Commissioner/Zoning Enforcement Officer's letter of August 25,2003 and DENY the Finding of the party aggrieved for the following reasons: 1. The Planning Board Special Permit of August 31, 1987,time stamped by the North Andover Town Clerk on September 03, 1987 does not place a definite hourly time of operation for Materials Installations,Inc., 11 Bayfield Road in the Conditional Approval of the Site Plan Review. 2. The Planning Board decision of 1987 does not place any restriction on the type of business Materials Installations,Inc. conducts at the Industrial-1 site. In fact the August 31'decision gave the business permission"to expand the assembly and live storage areas in an existing building by 18,200 square feet". 3. In 1987 and presently the North Andover Zoning By-law does not address hours of operation. 4. In 1987 and presently the North Andover Zoning By-law does not address"noise levels"in any zoning district. 5. The Building Commissioner/Zoning Enforcement Officer's site visit found that Materials Installations had conformed to Paragraph 5 of the Conditional Approval. 6. The Zoning Board has no authority to modify a Planning Board decision. 7. The Zoning Board has no authority to order the Building Commissioner/Zoning Enforcement Officer to act outside North Andover By-laws. Voting favor of the denial: Walter F. Soule,Ellen P.McIntyre,Joseph D.LaGrasse,and Richard D.Byers. Town of North Andover Board of Appeals, Walter F. Soule,Acting Chairman Decision 2003-037. M25P73. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 URBELIS&FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 THOMAS I URBELIS Telephone 617-338-2200 Andover e-mail tju@ufb.com Telecopier 617-338-0122 Telephone 978-475-4552 April 5, 2005 North Andover Zoning Board of Appeals 400 Osgood Street N. Andover, MA 01845 RE: BALOS V. SOULE. ET AL. C.A. No. ESCV2004-00428D Dear Board Members: Enclosed please find copies of: 1. Decision on Motion for Summary Judgment; and 2. Order of Judgment Mr. Balos has 30 days within which to file a Notice of Appeal. Please call if you have any questions. Very truly yours, Thomas J.Obelis Enclosures TJU/kmp cc: Board of Selectmen (w/enclosures) Mr. Mark Rees (w/enclosures) Mr. D. Robert Nicetta(w/enclosures) Ms. Heidi Griffin(w/enclosures) Ob I �5 pECE � WE0 0 T�� AP R\T'6 R 6 - 2005 BORtvgr�n�m�dgv las\zy7ni�n�board.letter.doc COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION-NO. 2004-00428-D KONSTANTINOS E. BALOS, ) Plaintiff, ) V. ) WALTER F. SOULE, ELLEN P. MCINTYRE, ) JOSEPH D. LAGRASSE, and RICHARD D. BYERS, ) as they are Members of the TOWN OF NORTH ) ANDOVER ZONING BOARD OF APPEALS; ) ALBERTO ANGLES, JR. and JOHN SIMONS ) as they are Members of the TOWN OF NORTH ) { ANDOVER PLANNING BOARD, THE TOWN OF ) NORTH ANDOVER; THE CHANNEL ) BUILDING COMPANY, INC., and ) MATERIAL INSTALLATIONS, INC. ) Defendants. ) ORDER OF JUDGMENT On Defendant Material Installations, Inc.'s Motion For Summary Judgrrfent On All Counts As To All Defendants, after hearing, IT IS ORDERED AND ADJUDGED that judgment on all counts of the Amended Complaint shall enter for all defendants in this action, and this action shall be and hereby is dismissed with prejudice. c t Patrick J. Qey Justice of the Superior Court Dated: March 30, 2005 L A t 1 1 APR 6 - 2005 D BOARD OF APPEALS int• ' v COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 2004-00428-D KONSTANTINOS E. BALOS, ) Plaintiff, ) V. ) WALTER F. SOULE, ELLEN P. MCINTYRE, ) JOSEPH D. LAGRASSE, and RICHARD D. BYERS, ) as they are Members of the TOWN OF NORTH ) ANDOVER ZONING BOARD OF APPEALS; ) ALBERTO ANGLES, JR. and JOHN SIMONS ) as they are Members of the TOWN OF NORTH ) ANDOVER PLANNING BOARD, THE TOWN OF ) NORTH ANDOVER; THE CHANNEL ) BUILDING COMPANY; INC., and ) MATERIAL INSTALLATIONS, INC. ) Defendants. ) DECISION ON MOTION FOR SUMMARY JUDGMENT Defendant Material Installations, Inc. ("MI") has moved for summary judgment in favor of all defendants on all counts of the Complaint of plaintiff Konstantinos E. Balos ("Balos")in this action. For the reasons stated below, MI's motion for summary judgment is ALLOWED on Y all counts as to all defendants. MI is in the business of assembling and distributing office partitions and has operated in an industrial park located at 11 Bayfield Drive in North Andover(the "MI facility") since the early 1980's. Balos has resided in a property abutting the MI facility, 66 Meadowood Road, since in or about January 2003. 66 Meadowood Drive is part of a residential subdivision that was created in or about 1993. APR 6 - 2005 D r BOARD OF APPEALS ("Channel"), the owner of the MI facility at the time of the 1987 Special Permit. The Amended Complaint prayed for the annulment of the 1987 Special Permit, and for injunctive relief halting y MI's business operations. MI filed a motion to dismiss the Amended Complaint, with prejudice, and this Court held a hearing on the motion, attended by counsel for MI, Town Counsel, and Balos, proceeding pro se. The Court denied the motion to dismiss (see Order on Defendant Material Installations, Inc.'s Motion to Dismiss, dated February 1, 2005) on the grounds brought by MI, but ruled it would treat MI's motion as one for summary judgment and established a schedule for all parties to submit additional papers if they so chose. MI then filed papers in support of the instant summary judgment motion, and Balos likewise submitted an opposition with supporting papers. This Court held a hearing on the summary judgment motion on March 15, 2005, again with counsel for MI, Town Counsel, and Balos present. Summary judgment is granted where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Lindsay v. Romano, 427 Mass. 771, 773 (1998);Kourouvacilis v. General Motors Corgi, 410 Mass. 706, 716 (1991); Mass. R. Civ. P. 56(c). As a matter of law, Balos cannot now challenge the 1987 Special Permit. Once a permit granting authority decides to issue a special permit, then files its decision with{the town clerk, that"final action," G.L. c. 40A, § 17, is subject to an appeal period of 20 days. Id. Any such challenge to the special permit must occur within that twenty-day period. "Th[is] remedy shall be exclusive," the statute says. Id. (emphasis added). "[B]y its plain language, Section 17 establishes that a person aggrieved by a decision of a special permit granting authority must seek review of that decision, if at all, within twenty days of the filing of the decision in question." 4 ' I Iodice v. City of Newton, 397 Mass. 329, 333 (1986). A permit holder"should be able to rely on the decisions of... special permit granting authorities which have not been challenged within a limited period." Id. at 334. Here, the Planning Board granted Channel and MI the 1987 Special Permit, unlimited in time, in September 1987. No one appealed the 1987 Special Permit by the 20-day appeal deadline of September 23, 1987. Therefore, Mr. Balos, who did not become an abutter until 2003 --cannot now attack the 1987 Special Permit. It is noteworthy that many of the concerns voiced by Balos, e.g., truck traffic, noise and hours of operation, were aired by North Andover citizens during the Planning Board's public hearings. Pursuant to the by-law provision for Site Plan Review under which the special permit application was submitted, the Planning Board was charged with considering "uses and , structures which may have significant impacts on the surrounding area should the proposed application be permitted. The Court reviewed the affidavit of an abutter filed by Balos who reportedly participated in these hearings and voiced those concerns to the Plannitig Board. In short, it is clear that the Planning Board undertook careful consideration of the concerns of the neighbors long before Balos became an abutter, and then issued its decision, with conditions it deemed appropriate, e.g., requiring MI to install a row of planted arborvitae to the rear of the building as well as a six foot closed stockade fence along the property line. That permit by the Planning Board then became final after the statutory appeal period expired in September, 1987 without any appeals being filed. MI has thus appropriately relied on that final permit,since that time, and has operated its business thereunder. To the extent that Balos' pleadings constitute an appeal of the 2004 ZBA Decision, he has failed to present any evidence at summary judgment that raises any genuine question of disputed y 5 r i j material fact that the Decision-- in finding, after a hearing, that the Nicetta Decision was correct and, additionally, that the ZBA could not direct Commissioner Nicetta to act outside the North F Andover By-laws and, further, that the 1987 Special Permit could not be disturbed by the ZBA was "based on a legally untenable ground or was unreasonable, whimsical, capricious or arbitrary." Roberts v. Southwestern Bell Mobile Sys.. Inc., 429 Mass. 478, 486 (1999) (citations and quotations omitted). Accordingly, MI's motion for summary judgment on all counts as against all parties is ALLOWED. Patrick J. Rile Justice of the Superior Court Dated: March 30, 2005 4 t 6 North Andover Health Department Chronology of Correspondence regarding Konstantino Balos of 66 Meadowood Drive vs. Materials Installation, 11 Bayfleld Drive, both of North Andover, MA Date of Letter Sent By: Sent To: Copied To: Regarding: Arrived at Materials Installation @ 6:20 a.m.; two pick-ups arrived and left by 6:45 a.m.; Walked by @ 6:45 a.m.; No action occuring; Observed Statewide Carting dumpster Co. drive by @ 6:45 a.m. followed dumped container down the street. Note: send copy of registration info. to company Ray Santilli, ATM/HR, with note.; Observed truck leaving Materials June 28, 2004 Susan Sawyer Board of Health N.A.Heidi Griffin, C.D.D. Installation @ 6:55 a.m.; Left area @ 7:00 a.m. Arrived at Materials Installation @ 6:25 a.m. and left at 7:01 a.m.; two cars arrived by 6:40 a.m.; Ray Santilli, ATM/HR, two trucks out @ 6:45&6:48; No banging; June 25, 2004 Susan Sawyer Board of Health N.A.Heidi Griffin, C.D.D. Dumpster not used. Arrived at Materials Installation @ 6:17 a.m. and observed the following: 2 cars entered lot before 6:30 a.m.; 2 cars entered lot 6:30-6:50 a.m.; 1 car with radio @ 6:50 a.m.; 1 car departed lot at 6:43 a.m.; Outside talking @ 6:45 a.m. (echos, "done already...beautiful'); 1 Truck-began loading at Ray Santilli, ATM/HR, 6:55 a.m.; 1 Material Inst. truck arrived @ 6:56 June 18, 2004 Susan Sawyer Board of Health N.A.Heidi Griffin, C.D.D. a.m. and shut off moter at 6:58 a.m. Health Department Handling of Complaint for June 14, 2004 Konstantinos Balos Ray Santilli, A.T.M., N.A. Mark Rees, T.M., N.A. Investigation Heidi Griffin, C.D.D. Susan Sawyer, P.H.D., N:A. Response to Mr. Balos letter of May 20, 2004. June 8, 2004 Susan Sawyer Konstantinos Balos Ray Santilli, ATM/HR, N.A. Three main issues for follow up. Note: Sent certified- received green card of confirmation. Regarding the use of a trash compactor-copy of June 6, 2004 Susan Sawyer Materials Installation Ray Santilli, ATM/HR, N.A. dum ster regulations sent as a reminder 66 Meadowood - Dino Balos Chronology.xls 8/31/04 1 - - J Regarding three issues: Trash compactor; Truck idling; Nuisance noise. Request for investigation by DEP. Attached: 3/1/04 letter to Mr. Balos; 3/23/04 letter to Ms. Sawyer; 5/20/04 letter to Ms. June 4, 2004 Susan Sawyer Ed Pawlowski, DEP Konstantinos Balos Sawyer Ray Santilli, ATM/HR, N.A. Response to receipt of May 19th letter from Mr. Balos re: inaction of the Health Dept. in addressing compliants of Materials Installation. Ms. Sawyer met with Mr. Santilli on Tuesday, June 1, 2004. A written response by Health Director June 2, 2004 Ray Santilli, ATM/HR Konstantinos Balos Mark Rees, TM, N.A. due by 6/11/04 (Done). Heidi Griffin, CDD, N.A. Susan Sawyer, PHD, N.A. 66 Meadowood - Dino Balos Chronology.xls 8/31/04 2 Air Pollution and Noise Nuisance Complaitn against Material Installations, Inc.; Attach: DEP Noise Policy 90-001; DEP Noise Fact Sheet; Dumpster Permit&Application (2003); North May 19, 2004 Konstantinos Balos Susan Sawyer Ray Santilli, ATM/HR, N.A. Andover Dumpster Regs. Board of Selectmen Response to Mr. Balos letter of March 23, 2004 April 21, 2004 Susan Sawyer Konstantinos Balos Materials Installation regarding complaint about Materials Installations. Ray Santilli, ATM/HR, N.A. Heidi Griffin, CDD, N.A. Denny Dart, EPA Regarding receipt of letter dated March 1, 2004 from Brian LaGrasse and dissatisfaction with March 23, 2004 Konstantinos Balos Susan Sawyer Ray Santilli, ATM/HR, N.A. findings of noise levels Board of Selectmen North Andover Meadowood Road Residents Response to Mr. Balos request for noise levels- decibel readings were reported for four different March 1, 2004 Brian J. LaGrasse Konstantinos Balos Susan Sawyer, PHD, N.A. dates at various times of the day Materials Installation Tom Niterio, DEP Denny Dart, EPA Ken Kimmell, Town Counsel Order Letter re: violoations of MGL Chapter 90, Section 16 A and 310 CMR 7.11 U (1)(b) re: excessive vehicle idling (hand delivered with February 24, 2004 Brian LaGrasse Materials Installation Board of Health Members Denny Dart of EPA) Susan Sawyer, PHD, N.A. Ken Kimmell, Town Counsel Konstantinos Balos Tom Niterio, DEP Penny Dart, EPA 66 Meadowood - Dino Balos Chronology.xls 8/31/04 3 70V/IVG -ZOA90 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss Trial Court Superior Court Dept. No. ESCV2004-00428-D Konstantinos E. Balos ) Plaintiff ) NOTICE OF MOTION V. ) Walter F. Soule; Ellen P. ) McIntyre; Joseph D. LaGrasse; ) and Richard D. Byers, as they ) are Members of the Town of ) North Andover Zoning Board of ) j Appeals; the Town of North Andover; ) and Material Installations, Inc. ) Defendants ) NOTICE OF MOTION TO: Town of North Andover, Defendant Joyce A. Bradshaw, Town Clerk 400 Osgood Street North Andover, MA 01845 PLEASE TAKE NOTICE that the undersigned will bring the annexed .motions on for hearing before this court at session D sitting in Room 2 at Essex Superior Court in Lawrence, Massachusetts on the 6th day of August 2004, at 10 o' clock in the forenoon of that day or as soon thereafter as counsel can be heard. C.) - 0 Konstantinos E. Balos Plaintiff 66 Meadowood Road r F .r.; North Andover, MA 01845 978-683-3414 'r7, i`J l"J D Q � JUL 30204 D BOARD OF APPALS 4, COMMONWEALTH OF MASSACHUSETTS ESSEX, ss Trial Court Superior Court Dept . No.ESCV2004-00428-D Konstantinos E. Balos ) Plaintiff ) MOTION TO CHANGE TRACKING ORDER V. ) Walter F. Soule; Ellen P. ) McIntyre; Joseph D. LaGrasse; ) and Richard D. Byers, as they ) are Members of the Town of ) North Andover Zoning Board of ) Appeals; the Town of North Andover; ) and Material Installations, Inc. ) Defendants ) PLAINTIFF' S MOTION TO CHANGE TRACKING ORDER 1. NOW 'GOMES the plaintiff in the above-captioned matter and moves this honorable Court to change the tracking order by extending the deadline for filing all motions under MRCP Rule 15 from August 6, 2004 to August 12, 2004 . On July 26, 2004, the plaintiff served the defendants with a motion to amend complaint and add party defendants via service by mail. The extension is requested to comply with MRCP Rule 6 (d) which adds three (3) days to the prescribed period. 2. A copy of the tracking order is attached. WHEREFORE, plaintiff moves this Court for the relief requested herein. Konstantinos E. Balos, Plaintiff 66 Meadowood Rd North Andover, MA 01845 978-683-3414 DATED: (Certificate of Service) (Notice of Motion) County of Essex p The Superior Court CIVIL DOCKET# ESCV2004-00428-D RE: Balos v Soule et al TO:Konstantinos E Balos 66 Meadowood Rd North Andover, MA 01845 TRACKING ORDER - F TRACK You are hereby notified that this case is on the fast (F) track as per Superior Court Standing Order 1-88. The order requires that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and return filed with the Court 03/30/2004 Response to the complaint filed (also see MRCP 12) All motions under MRCP 12, 19, and 20 filed 08/06/2004 All motions under MRCP 15 filed 08/06/2004 All discovery requests and depositions completed 01/03/2005 All motions under MRCP 56 served and heard 02/02/2005 Final pre-trial conference held and firm trial date set 03/04/2005 Case disposed 05/03/2005 The final pre-trial deadline is not the scheduled date of the conference. You will be notified of that date at a later time. Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session D sitting in CtRm 2 (Lawrence) at Essex Superior Court. Dated: 03/09/2004 Thomas H. Driscoll Jr. Clerk of the Courts BY: Edward D. Sullivan Location: CtRm 2 (Lawrence) Assistant Clerk Telephone: (978) 687-7463 Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court at(617)788-8130 dvdVad 2.wpd 458162 in1docl1 melnickp COMMONWEALTH OF MASSACHUSETTS ESSEX, ss Trial Court Superior Court Dept. No. ESCV2004-00428-D Konstantinos E. Balos ) Plaintiff ) CERTIFICATE OF SERVICE V. ) Walter F. Soule; Ellen P. ) McIntyre; Joseph D. LaGrasse; ) and Richard D. Byers, as they ) are Members of the Town of ) North Andover Zoning Board of ) Appeals; the Town of North Andover; ) and Material Installations, Inc. ) Defendants ) II CERTIFICATE OF PERSONAL SERVICE ON PARTY I certify that on July 26, 2004, I served the following attachments: motion to amend complaint; amended complaint; notice of motion to amend complaint; notice of motion to change tracking order; and motion to change tracking order upon the Town of North Andover, the defendant, via service by mail at 400 Osgood Street, North Andover, MA 01845. Signed under the penalties of perjury. i Konstantinos E. Balos, Plaintiff 66 Meadowood Road North Andover, MA 01845 978-683-3414 i COMMONWEALTH OF MASSACHUSETTS ESSEX, ss Trial Court Superior Court Dept. No. ESCV2004-00428-D Konstantinos E. Balos ) Plaintiff ) MOTION TO AMEND COMPLAINT TO ADD CAUSE OF ACTION V. ) AND ADD PARTY DEFENDANTS Walter F. Soule; Ellen P. ) McIntyre; Joseph D. LaGrasse; ) and Richard D. Byers, as they } are Members of the Town of ) North Andover Zoning Board of ) Appeals; the Town of North Andover; ) and Material Installations, Inc. ) Defendants PLAINTIFF'S MOTION TO AMEND COMPLAINT TO ADD CAUSE OF ACTION AND ADD PARTY DEFENDANTS i i 1. NOW COMES the plaintiff in the above-captioned matter and moves this honorable Court to I issue an Order pursuant to Mass.R. Civ. P. 15(a) allowing Plaintiffs First Amended Complaint. A copy of the proposed amended complaint is attached as Exhibit A. i The.ground for the motion is that since the filing of the complaint,the plaintiff has learned of the existence of additional facts stated in the proposed amended complaint related to the original claim and as an additional cause has requested an injunction. The additional facts are referenced in and attached to the proposed amended complaint as exhibits DD, EE, FF, GG, HH, and II. The plaintiff also replaces EXHIBIT B (Permit to Build)with EXHIBIT B(Application for Permit to Build). The remaining exhibits contained in the original complaint (A; C to CC) are unchanged and are referred.to in the amended complaint by their original exhibit identifiers. 2. The plaintiff also moves this honorable court to add as party defendants Alberto Angles, Jr., 561 Massachusetts Ave, North Andover, Massachusetts, 01845, in his capacity as the Chairman of the North Andover Planning Board; John Simons, 25 Ironwood Rd, North Andover, Massachusetts, 01845, in his capacity as a member of the North Andover Planning Board; and Channel Building Company, Inc. a corporation organized under the laws of the Commonwealth of Massachusetts with a usual place of business at 242 Neck Road, Haverhill, Essex County, Massachusetts, 01830.. In support of the foregoing, plaintiff states that no responsive pleading has yet been served and no order of dismissal has been entered in this matter and that MassR.Civ.P. 15(a) permits this amendment as a matter of right. Further, the parties which the plaintiff seeks to add as defendants are necessary and indispensable parties to this action. WHEREFORE, plaintiff moves this Court for the relief requested herein. Konstantinos E. Balos (Pro se) Plaintiff 66 Meadowood Rd North Andover, MA 01845 978-683-3414 DATED: (Certificate of Service) (Notice of Motion) COMMONWEALTH OF MASSACHUSETTS ESSEX, ss Trial Court Superior Court Dept. No. ESCV2004-00428-D Konstantinos E. Balos ) Plaintiff ) AMENDED COMPLAINT APPEAL PURSUANT TO V. ) G.L. C. 40A, S. 17 AND PRAYER FOR INJUNCTIVE Walter F. Soule; Ellen P. ) RELIEF PURSUANT TO McIntyre; Joseph D. LaGrasse; ) G.L. C. 40A, S. 7 and Richard D. Byers, as they ) are Members of the Town of ) North Andover Zoning Board of ) Appeals;Alberto Angles Jr. and ) John Simons, as they are ) Members of the Town of North ) Andover Planning Board; the } Town of North Andover; the ) Channel Building Company, Inc; ) and Material Installations, Inc. ) Defendants ) i COMPLAINT NATURE OF CASE 1. This is an appeal under M.G.L. ch. 40A, section 17, from a decision by the defendant, Zoning Board of Appeals of North Andover, filed with the Town Clerk of North Andover on February 19, 2004. A certified copy of the Board's decision is attached hereto as Exhibit A. 2. This complaint also seeks to obtain under M.G.L. ch. 40A,section 7, an injunction, restraining and enjoining the defendant Material Installations, Inc. against the continued use of the Industrial-1 zoned land in violation of the section 4.132 of the North Andover Zoning By-laws. 3. This complaint also seeks to negate the Special Permit granted by the North Andover Planning Board to Material Installations, Inc. and require a new filing. PARTIES 4. The plaintiff, Konstantinos E. Balos [hereinafter"plaintiff°], is an individual who resides at and owns the property located at 66 Meadowood Rd, North Andover, Essex County, Massachusetts, 01845. 5. The Zoning Board of Appeals (ZBA) of the Town.of North Andover is a duly constituted board of the Town of North Andover, with its principal office located at 27 Charles Street, North Andover, Essex County, Massachusetts 01845. 6. The Town of North Andover is a duly organized municipal corporation under the laws of the Commonwealth of Massachusetts with its principal office located at 120 Main Street, North Andover, Essex County, Massachusetts 01845. 7. Walter F. Soule, 70 Raleigh Tavern Lane, North Andover, Massachusetts; Ellen P. McIntyre, 23 Tanglewood Lane, North Andover, Massachusetts; Joseph D. LaGrasse, 40 Sugarcane Lane, North Andover, Massachusetts; and Richard D. Byers, 97 Forest, North Andover, Massachusetts, are members of the ZBA and each is a defendant in his or her capacity as a member of said ZBA: 8. Alberto Angles, Jr., 561 Massachusetts Ave, North Andover, Massachusetts, 01845, is a defendant in his capacity as the Chairman of the North Andover Planning Board. 9. John Simons, 25 Ironwood Rd, North Andover, Massachusetts, 01845, is a defendant-in his capacity as a member of the North Andover Planning Board. 10. Channel Building Company, Inc. is a corporation organized under the laws of the Commonwealth of Massachusetts with a usual place of business at 242 Neck Road, Haverhill, Essex County, Massachusetts, 01830 and is a defendant. 11. The defendant Material Installations; Inc. [hereinafter"Material Installations"] is a corporation organized under the laws of the Commonwealth of Massachusetts with a usual place of business at 11 Bayfield Drive, North Andover, Essex County, Massachusetts, 01845..Michael J. Farrow is an officer of the corporation. FACTS 12. The plaintiffs property borders the land owned and used by Material Installations and is located to its north. The plaintiffs property is part of North Andover's "Meadowood" neighborhood and zoned as "Residential-6" (EXHIBIT B). The Material.Installations land is zoned as "Industrial-1." 13. Zoning records indicate that the land presently occupied by the Meadowood neighborhood has been zoned as "residential" since at least 1972 (EXHIBIT C).The character of the Meadowood neighborhood (built in 1993) is distinctly residential consisting of single family homes most of which have young children. There are no access roads connecting the two districts. 14. Material Installations'Articles of Incorporation (December 4, 1980) states the following under purpose: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." (EXHIBIT D) 15. Documentation from the North Andover Building Assessor's Department indicates that Material Installations is categorized under"State-Use-CD" as"401-Warehouse" and under "Use-Code" as "325— Distrib—Whse." (EXHIBIT E) 16. The Merrimack Valley Planning Commission (MVPC) identifies the "Primary Business" of Material Installations as "Office Furniture and Equipment Installation (Whol)." The MVPC also identifies the "SIC Code" (Standard Industrial Classification) as "5021-22" (EXHIBIT F). The U.S Department of Labor(DOL) describes this SIC Code as "Wholesale Trade . . . primarily engaged in the wholesale distribution of furniture . . ." (EXHIBIT G) I 17. The warehousing/wholesaling industry is integrated with trucking.According to the DOL, "transportation and material-moving occupations, most of whom are truck drivers and material movers comprise one of the largest occupational groups in the [wholesale] industry." (EXHIBIT H). With regard to warehousing,DOL records indicate that the nature of this industry includes trucking and that there is "blurring distinction" between "trucking and warehousing." (EXHIBIT 1) i 18. The Massachusetts General Laws (Chapter 40A) define "Zoning" as "ordinances and by-laws, adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants." 19. The"Permitted*Uses" section of the North Andover zoning by-laws.(4.12); specifically section 4.132 (Industrial-1 District) states that"Warehousing and wholesaling shall be permitted only as a secondary use."' i 20. The July 1987 Material Installations "Application for a Special Permit" states the following (EXHIBIT K): Under the heading "Applicant,"the application states"Channel Building Company, Inc." Under the heading "2(c) Zoning District,"the application states 1-1." Under the heading "3(a). Name and address of owner," the application states "Material Installations, Inc., 11 Bayfield Drive, North Andover, MA 01845 Under the heading "3(b) If applicant not owner, check his interest in the premises,"the application states "Owner's representative." Under the heading "4(b) Occupancy or use,"the application states: "Expansion for the assembly and live storage areas of the existing facility." Under the heading "5(b) Occupancy and use," states: "Light industrial: offices, assembly and storage areas for office partition systems components." Under the heading 7. Description of purpose": "Material Installations wishes to expand the assembly and live storage areas of their facility by approximately 18,200 s.f. The project will provide parking for 20 additional cars. A special permit is required for construction of a building with over 10 parking spaces in an industrial zone." Under the heading "9. The principal points,"the application affirms "The proposed addition complies with the provisions of the zoning by-law." 21. The Special Permit Application does not reference the "warehouse, transport and deliver" language contained in Material Installations'Articles of Incorporation. In addition, the by-laws do not contain the term "light industrial" as listed in the Special Permit application. 'The text of the 1987 and 2002 zoning bylaws regulating Industrial-1 Districts is identical to the original 1972 version. (EXHIBIT J) 22. A Site Plan Review (August 3, 1987) [for"Material Installations"] recognizes residential abutter concerns with regard to "activity at night," "trucks,""noise" and "lights." It also states "evergreens and fencing to be looked into for possible noise barriers." (EXHIBIT L) 23. During the Site Plan Review(August 17, 1987) "the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer"were inputted. (Exhibit M) 24. Page 2 of the Planning Board's conditional approval of the Special Permit (August 31, 1987), under"issues of concern" identifies "concern by abuttors to the North of Material Installation property of truck noise and lights during the night." Proponents [in paragraph 2]°admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." The construction includes a landscape plan with a (paragraph 5) "row of planted arborvitae to the rear of the building" as well as "a six(6) foot closed stockade fence be erected along the property line." The conditional approval identifies defendant John Simons as a member of the Planning Board. (EXHIBIT 0) 25. Paragraph 9 of the Conditional Approval Special Permit states " . . . any changes from these approved plans . . . will negate this Special Permit and will require a new filing of application." 26. The Federal Highway Administration (FHWA), Office of Environment and Planning Noise and Air Quality Branch does not consider the planting of vegetation as a noise abatement measure. Specifically, "the planting of trees and shrubs provides only psychological benefits and may be provided for visual, privacy, or aesthetic treatment, not noise abatement."The FHWA also indicates that"Vegetation, if high enough, wide enough, and dense enough (cannot be seen through), can decrease noise. A 200-foot width of dense vegetation can cut the loudness of noise in half. Likewise, the FHWA indicates that solid noise barriers can reduce noise levels by 10 decibels, cutting the loudness of noise in half. (EXHIBIT P) 27. M.G.L. ch. 40A, sec. 9, states that: "special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law." The statute also limits the award of special permits to "specific types of uses which shall only be permitted in specified districts."These uses and districts must clearly be specifically stated in the zoning by-laws.2 28. The zoning by-laws do NOT identify any Special Permit uses relative to the Industrial-1 District(section 4.132). Only those uses actually spelled out are eligible for consideration.3 29. The Planning Board is a municipal board established pursuant to M.G.L. ch. 41, sec 81 and is separate and distinct from the ZBA established by M.G.L. ch. 40A, sec 12. 2 In Gage v.Town of Egremont(409 Mass. 345),the Supreme Judicial Court invalidated the town's by-law authorizing by special permit"any. . . use determined by the Planning Board . . . not offensive or detrimental to the neighborhood!The court reasoned that this generic approach violated the charge of the statute to be specific. In SCIT v. Planning Board of Braintree(19 Mass.App. Ct. 101), the court ruled"Section 9 is unambiguous, however,in authorizing special permits only for`specific types of uses,'and it is clear that this language was intended to mean exactly what is says." . 3 In Board of Appeals of Webster"v.Z& K Enterprises (1 Mass.App. Ct.845), the court ruled:"It is not enough ["'2]that a use for which a special permit is sought be"consistent"or"compatible"with a specific use for which the by-law states such a permit may be granted. Geheral laws c. 40A,§4, requires such a use to be"of a character set forth in... [the] by-law"(emphasis supplied). 30. The board of appeals is the only municipal board authorized to consider a variance. Section 10.4 (Variances and Appeals) of the zoning by-laws states "the Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw."The Mass. Gen. Laws (Ch.40A, § 15) state"variance power is given only to the Board of Appeals.' 31. There is no record of a variance granting Material Installations an exception from section 4.132 of the by-laws. The Nonpermissive use of the Material Installations Industrial-1 land (warehousing/wholesaling) is a violation of section 4.132 of the zoning by-laws of North Andover. 32. The shipping area of Material Installations borders the backsidef o the plaintiffs home. Each work day, a number of Material Installations employees drive to the shipping area in the early morning hours. The employees load any number of diesel-fueled trucks bearing the logo "Material Installations'" and operate them. The shipping area consists of noisy steel platforms. that are used during loading operations. Other noise includes colliding metal merchandise, dull thuds, rattling of chains, loud voices, and a variety of other sounds incidental to the wholesale handling of merchandise. 33. Throughout the workday, Material Installations' trucks as well as non-Material Installations trucks enter and leave the shipping area on a routine basis. These trucks produce loud noise, infrasound (low frequency noise), vibrations, fumes and odors. Typically, the noise has a rapid nerve-shattering start rate. This includes the abruptness of an approaching truck, the starting of the engine, engine revving, sounds from the connection and separation of tractors from trailers, as well as truck movement and stopping. The noise and vibration is so noticeable that the plaintiff is alerted to incoming truck traffic prior to trucks entering the shipping area. The employees also operate an outdoor refuse compactor that produces loud noise and vibrations. 34. On a multitude of occasions, the aforementioned trucks have been left idling in excess of the 5-minute statutory limit (310 CMR 7.11 -Air Pollution Control Regulations) resulting in fumes and odors that effect the plaintiff's property and poses a real health threat. (See Exhibits X & DD) 35. These noises, vibrations, fumes and odors have interfered with and still continue to interfere with the comfort of the plaintiff and his.family, in the occupation of the dwelling house, making it difficult for them to sleep uninterrupted, and making it uncomfortable to peacefully enjoy the ordinary use of the premises as a dwelling house, and to pursue the ordinary occupations of life therein.5 ° In Coolidge v. Planning Board of North Andover(337 Mass.648),the Supreme Judicial Court stated that "there is no room for an implication of zoning power in boards other than those specified in the statute." 5 In Weltshe v. Graf, (323 Mass.498, 500),the plaintiffs,whose homes were located a residential district zone and bordered a district zoned for business were disturbed in their sleep at night by unreasonable noises from a freight terminal operated by the defendants. In granting an injunction,the SJC stated"a zoning ordinance is an important factor in determining whether the use being made of the land in conducting a particular enterprise goes beyond what is reasonable in view of the nature and character of the locality. . . REQUEST FOR ENFORCEMENT AND DECISION 36. On June 12, 2003, the plaintiff wrote to the Town Manager requesting assistance from the town. The letter included a log of activity indicating that shipping operations begin at approximately six (6) in the mo ning.s 37. A letter dated July 27, 2003, from the Assistant Town Manager states"The company claims that their daily activities begin at 7:00 a.m. as required. This includes all truck operations. This obviously differs significantly from the activity log you provided for a 4 Y2 month period." (EXHIBIT R) 38. On August 6, 2003, the plaintiff wrote to,the North Andover Building Commissioner and requested that he enforce the zoning by-laws. (EXHIBIT S) 39. On August 25, 2003, the Building Commissioner refused to enforce the by-laws stating that "Material Installations, Inc. is in compliance with the approved Planning Board Special Permit of August 31, 1987, time stamped by the North Andover Town Clerk on September 03, 1987." (EXHIBIT T) 40. On October 14, 2003, the plaintiff filed an appeal from the Building Commissioner's decision with the ZBA. After due publication of notice to the public, and individual notice to Material Installations and other abutters in accordance with M.G.L. ch. 40A, sec. 11, the ZBA held a hearing. (EXHIBIT U) 41. During the Nov 18, 2003 hearing, Walter Soule recommended that the N. Andover Community Development Office be contacted regarding the modification of the Special Permit. On December 1, 2003, a letter was sent requesting that appropriate action be taken to amend the conditional approvaVspecial permit with regard to the Planning Board's ineffective noise barriers (EXHIBIT V). A second letter was sent to the Community Development Office on January 15, 2004 (EXHIBIT W). This included EPA research about the health effects associated with exposure to diesel exhaust. A January 20, 2004 letter followed this addressed to Walter Soule (EXHIBIT X). 42. A letter dated January 22, 2004 from Director Heidi Griffin of the Community Development Office stated that Town Counsel "could find no definitive ruling which authorizes such a modification."The letter also references the Middlesex Appeals Court decision, Solar v. Zoning Board of Appeals of Lincoln (33 Mass. App. Ct. 398). It states "the Appeals Court ruled that a board was not free to modify, on its own, a special permit to make it conditional upon ownership of the land (a new policy of the board)when the original permit was subject to three-year automatically renewable terms."' (EXHIBIT Y) 6 A log of activity is attached as Exhibit 0. Video conoboration is available at the court's request. The Solar case is not applicable to this matter. The appeals court ruled that the board"injected into its decision criteria not found in the by-law.'The court also ruled that this"new policy"is"unrelated to the land"and"not based upon factors concerned with the land or the protection of the surrounding community."Section 4.132 of the zoning by-laws is not a"new policy"and is directly related"to the land."The noise barrier conditions are"based upon factors"related to the"protection of the surrounding community." In Board or Selectmen of Stockbridge v. Monument Inn, (8 Mass.App. Ct. 158, 163), the appeals court indicated that modification of a special permit by the court is permitted where"it is clear from the record that exactly the same ultimate result would occur from a remand as that effected by the decree."In this event, a remand to the board may be avoided(Chira v. Planning Board of Tisbury, 3 Mass.App. Ct. 433,439-440). 43. On January 29, 2004, a public records request was sent to the Town of North Andover for any and all Building Department records relative to Material Installations specifically Building Permits, Certificate of Occupancy and any log of inspection. A reply dated February 13, 2004, from Assistant Town Manager Ray Santilli contained the Special Permit, the Permit for Wiring, an Application for Permit to Perform Electrical Work, and the Permit for Gas Installation. The contents did not include any Building Permit as well as Certificate of Occupancy. (EXHIBIT Z) 44. On February 6, 2004, the plaintiff submitted a letter to the Community Development Office. The letter details the issues contained in this complaint and demanded to be placed on the agenda for the next planning board hearing (EXHIBIT DD). This was followed by a letter to defendant Alberto Angles Jr dated February 10, 2004. (EXHIBIT EE) 45. On March 3, 2004, the plaintiff received a letter from the North Andover Town Planner. The letter states that the Planning Board members "have agreed that it light of the Zoning Board of Appeals decision, no further involvement from the Planning Board is warranted." (EXHIBIT FF) 46. By decision dated February 10, 2004, which was filed with the Town Clerk on February 19, 2004, the ZBA voted to uphold the Building Commissioner/Zoning Enforcement Office's letter of August 25, 2003 and DENY the Finding of the party aggrieved for the following reasons: 1. The Planning Board Special Permit of August 31, 1987, time stamped by the North Andover Town Clark on September 03, 1987 does not place a definite hourly time of operation for Material Installations, Inc., 11 Bayfield Road in the Conditional Approval of the Site Plan Review. 2. The Planning Board decision of 1987 does not place any restriction on the type of business Material Installations, Inc., conducts at the Industrial-1 site. In fact the August 31st decision gave the business permission "to expand the assembly and live storage areas in an existing building by 18,200 square feet". 3. In 1987 and presently the North Andover Zoning By-law does not address hours of operation. 4. In 1987and presently the North Andover Zoning By-law does not address °noise levels" in any zoning district. 5. The Building Commissioner/Zoning Enforcement Officer's site visit found that Materials Installations had conformed to Paragraph 5 of the Conditional Approval. 6. The Zoning Board has no authority to modify a Planning Board decision. 7. The Zoning Board has no authority to order the Building Commissioner/Zoning Enforcement Officer to act.outside the North Andover By-laws. 47. The plaintiff is aggrieved by the decision of the ZBA and by the refusal of the BuildingT Commissioner to enforce the zoning by-laws of North Andover, and appeals therefrom, stating ag his reasons, therefore: a) The decision of the Building Commissioner and the ZBA effectively denying the enforcement of the zoning by-laws is not supported by the evidence and is unreasonable; b) Plaintiff has the right to a judicial review of the ZBA's February 10, 2004 decision as "any person aggrieved by such decision or nonaction." (M.G.L. c. 40A, sec 17); c) The plaintiff is a residential abutter to land used by Material Installations and zoned as Industrial-I. The conditions caused by the deviation from the[Industrial-1] zoning bylaws are a nuisance and infringe on the plaintiffs rights to the enjoyment and use of his property;$ d) Material Installations has not taken steps to effectively confine the noise, vibrations, fumes and odors to their property to protect the adjacent properties. This interferes with the sovereignty of the plaintiffs property to be free from nuisance conditions caused by Material Installations; e) The plaintiff has an interest in the preservation of the residential character of the Meadowood neighborhood to be free from the noise, vibrations, fumes and odors caused by the nonpermissive use of the adjacent Industrial-1 land; f) The plaintiff relies on the preservation of the Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1] property;9 g) The special permit application did not identify the actual intended use of the property necessary for the board to determine compliance with the by-laws. h) The nonpermissive use of the Industrial-1 land by Material Installations alters the character of the Meadowood neighborhood and infringes on the more restrictive and protective zoning regulations (section 4.125) governing the plaintiff's property that state: "6f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, emissions of odor, gas, smoke, dust, noise, disturbances, or in any way become objectionable or detrimental to any residential use within the neighborhood"; i) Defendant Material Installations' nonpermissive use of the Industrial-1 property violates the plaintiffs constitutional right guaranteed under Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, which states "the people of the Commonwealth shall have the right to clean air and water, [and] freedom from excessive noise."10 (See paragraphs 48-50) j) The plaintiff is burdened with the nuisance conditions caused by Materiel Installations. k) The intent of the by-laws is clear in distinguishing that the warehousing/wholesaling permitted use is restricted to the Industrial-2 (section 4.133) and Industrial-S (4.135) Districts. B The Supreme Judicial Court in Davis v. Sawyer(133 Mass. 289,290)said,'noise which constitutes an annoyance to a person of ordinary sensibility to sound,such as materially to interfere with the ordinary comfort of life,and impair the reasonable enjoyment of his habitation, is a nuisance." The Supreme Judicial Court in Shea v. National Ice Cream Co.. Inc. (280 Mass. 206, 211)said, "the defendants are entitled to a reasonable use of their property. It is plain, however,that it cannot Lie so used as to disturb the plaintiffs,who have a right to sleep at night in their own homes." 9 In Jaffe v. Zoning Board of Appeals of Newton (34 Mass App. Ct.929)the court ruled"A party need not reside in the same zoning district as the objected to use to suffer a violation of a private right or interest. "[A]proprietor's rights . . . are not necessarily confined to his own zone, and may extend into another restricted zone. . . ." 10 In Harvard Square Defense Fund v. Planning Board of Cambridge(27 Mass.App. Ct.491), the Appeals Court ruled"individual or corporate property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." 1) The by-laws clearly distinguish Industrial-1 districts from the Industrial-2 and Industrial- S districts specifically that"warehousing and wholesaling" shall be permitted "ONLY" as a secondary use in an Industrial-1 district(section 4.132); m) The fact that the zoning by-laws distinguish the permitted use of warehousing and wholesaling from a "secondary use" is a declaration that such activity is significant for zoning classification. n) The nonpermissive use of the property (warehousing/wholesaling) implies a change in the zoning regulation of Industrial-1 land in that it authorizes the more detrimental Industrial-2&S permitted uses. o) Allowing the nonpermissive use of the property (warehousing/wholesaling) in the Industrial-1 district derogates from the intent to restrict it as a "secondary use only." p) The deviation from the Special Permit authorized use (Assembly and Storage) to WarehousingMholesa ling is substantially more detrimental to the neighborhood due to the frequency of diesel-fueled trucks. q) The conditions (noise, vibrations., odors and fumes) caused by the nonpermissive use of the Industrial-1 land are referenced as "adverse environmental effect[s]" by section 4.132 (Industrial-1) of the zoning by-laws; r) The language contained in the special permit application misrepresented and did not adequately disclose the true use of the property (warehousing/wholesaling). As a result, the board's decision was tainted. The permit is invalid and was erroneously granted and requires a new public hearing. There is no statute of limitations where the use was not authorized; 11 s) The zoning bylaws must provide adequate standards for the guidance of the board in deciding whether to grant or withhold a permit. The board's ability to accomplish this was tainted due to the language in the special permit application indicating compliance with the zoning by-laws. 12 " In Cape Resort Hotels. Inc v.Alcoholic Licensing Board of Falmouth(385 Mass.205),the Supreme Judicial court ruled that the current use was not protected,at least when the building permit did not give notice that such use was intended. In Lord v.Zoning Board of Appeals of Somerset(30 Mass.App. Ct.at 228),the Appeals Court"The omission of protection for use violations not sanctioned by permit is plain on the face of the statue. . . No similar confusion arises from the omission in[section].7 of protection for nonpermissive use violations.". In Ferrante v. Board of Appeals of Northampton(345 Mass 158),the SJC(quoting the Supreme Court of New Jersey in Zahodiakin Engr. Co. v.Zoning Bd. Of AdiuStment, 8 N.J. 386)stated"the governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance.The public has an interest zoning that cannot thus be set at naught.The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril. It follows that the issuance of a building permit and the erection of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a variance by reason of estoppel." In Ferriter v. Herlihv(287 Mass. 138),the SJC stated"the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others." see also Goldhirsch v McNear(32 Mass.App. Ct. 455). 12 In Josephs v Board of Appeals of Brookline(362 Mass. 290),the SJC ruled"the board, when granting a special permit, must set forth'clearly the reason or reasons for its decisions' and that the applicable statutory and by-law standard have been met." Q The use exceeds the zoning limitations.for an Industrial-1 district. The zoning by-laws . . do not identify any Special Permit uses for the Industrial-1 District;13 u) The illegal permit does not bar the.town from enforcing the zoning by-laws. The town's refusal to correct the erroneously granted permit encourages landowners to misrepresent land uses as well as violate by-laws;14 v) The Material Installations Industrial-1 land has not been used in accordance with the terms of its Special Permit. The"assembly and live storage" language contained in the Special Permit Application is a misrepresentation and a material change from the actual use (warehousing/wholesaling). This violates paragraph nine (9) of the Conditional Approval Special Permit that states " . . . any changes from these approved plans . . . will negate this Special Permit and will require a new filing of application;" w) Planning board hearings clearly document residential abutter concerns with regard to "noise, "trucks," and "activity at night" prior to the issuance of the Special Permit and it's accompanying, although ineffective, noise barrier conditions. There is a clear nexus between the perceived threat to the community (noise, trucks, activity at night) and the Special Permit's noise barrier restrictions implemented as a result of the hearings; x) The plaintiff also petitioned the ZBA, the Community Development Office, and the Planning Board to modify the Special Permit conditions relative to the noise barrier conditions. This included information relative to highway noise barrier walls for effective noise reduction. Clearly the true intention of the Planning Board was for effective and adequate noise barriers. This relief is no different from the original abutter concerns with regard to "noise," "trucks," and "activity at night" that led to the noise barrier restrictions in the Planning Board's Conditional Approval;15 y) Material Installations has no rights where the permit was issued in violation of the zoning ordinance and based on misrepresented information regarding its type of business, its purpose for applying for the special permit, as well as compliance with the by-laws;16(see also 11) 13 In Ferrante v. Board of Appeals of Northampton(345 Mass 158),the Supreme Judicial Court stated"a use which exceeds zoning limitations cannot be made a fulcrum to lift those limitations." 14 In Vitale v. Planning Bd. Of Newburvport(10 Mass App.Ct.483)the court ruled that"due process does not require that an[administrative]agency must bind itself to an error in perpetuity irrespective of the public interest.' The Supreme Judicial Court in Town of Maynard v.Tomvl(347 Mass. 397),stated"the defendants can assert no right under the first, illegally granted, permit' 15 In Huntington v.Zoning Board of Appeals of Hadley(12 Mass.App.Ct. 710),the court ruled'the board may not make a substantive amendment which changes the result of an original deliberate decision, or which grants relief different from that originally granted,without compliance with the relevant notice and hearing requirements.' t6 In Inspector of Buildings of Burlington v. Murohv(320 Mass.207),the Supreme Judicial Court ruled "since the change was a violation of a valid zoning by-law, no permit can legalize it." In W. Gregory Whelan v. Zonnq Board of Appeals of Norfolk(430 Mass. 1009), the SJC ruled"it is a principle of longstanding application in the zoning context: a landowner will not be permitted to create a dimensional conformity if he could have used his adjoining land to avoid or diminish the nonconformity." • I I z) There is no statute of limitations on commencement of an action alleging a use violation where no building permit was issued. aa)The zoning by-laws (1972) restricting warehousing/wholesaling only as a secondary use precedes the Special Permit Application (1987); bb)The Nonpermissive use of the Material Installations land is a nuisance and infringes on the plaintiff's rights to the enjoyment and use of his property; cc)The town has a duty and obligation to protect the citizenry by administering the General laws and related zoning by-laws with impartiality. This is absolutely necessary in the preservation and protection of the zoning by-laws; dd)The plaintiff has made several, although unsuccessful " 9 , good faith attempts to reach a mutually beneficial compromise with Material Installations and avoid administrative and legal action;" ee)The denials of the ZBA and Building Commissioner imply p y that the Planning Board has zoning power to grant variances. See also Paragraph 30, ff) "Use" variances must be specifically authorized by the local zoning bylaws. G.L. c. 40A s. 1018. gg)The denials of the ZBA and Building Commissioner imply that the Planning Board can bar the enforcement of the zoning by-laws;19 hh)The Building Commissioner has a duty to enforce the zoning bylaws as authorized b M.G.L. 40A, sec. 7;20 y ii) The ZBA has the authority to order the Building Commissioner/Zoning Enforcement Officer to enforce the zoning by-laws (M.G.L. 40A, sec. 8). 17 On March 19,2003,the plaintiff sent a letter via certified mail to Material Installations detailing their nuisance activity(EXHIBIT AA).The plaintiff proposed that Material Installations share the costs related to the installation of noise abatement windows-on the backside of his property. On March 26,003,the plaintiff requested the assistance of North Andover Selectman Donald Steward to mediate this matter(EXHIBIT BB). On May 30, 2003,a letter was sent from Attorney Matthew Donahue(for plaintiff)to Matefial Installations via certified mail restating the March 19'h proposal(EXHIBT CC).To date, Material Installations has not participated. During the ZBA hearings,the plaintiff proposed the possibility of a noise barrier wall as a reasonable alternative to accomplish the planning board's original intent of abating the noise. 18 Where the zoning bylaws do not authorize a variance for a use not otherwise permitted,a board of appeals is without authority to grant a variance. Planning Board of Framingham v Gargiulo(11 Mass.App. Ct. 958). 191n Kolodnv v. Building Commissioner of Brookline(346 Mass. 289),the Supreme Judicial Court ruled "the existence of a permit for the violation is inconsequential in proceeding to end the violation." In Simeone Stone Corp. v. Oliva(350 Mass 31), the Supreme Judicial Court ruled that"every presumption is to be made in favor of the by-taw, and its enforcement will not be refused." In Weltshe v. Graf,(323 Mass.498, 500),the Supreme Judicial Court ruled that"a zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." 20 In Everett S. Wood v. Building Commissioner of the City of Boston(256 Mass.238), the Supreme Judicial Court ruled that a"permit was improvidently granted. . .and . . . violates the law. It was the duty of the building commissioner. . . to take immediate steps to enforce the provisions of the statute." The decision of the ZBA is deficient as it did not address the material aspect of the permitted uses in the Industrial-1 zoning by-law and its application to the actual use of the Material Installations property (warehousing/wholesaling) 21 48. On March 8, 2004, the North Andover Board of Health issued an order letter to Material Installations charging violations of the Commonwealth's anti-idling statutes. The letter describes the activities of Material Installations as a "public health and noise nuisance" and ordered them stopped. (EXHIBIT GG) 49. On June 16, 2004, the United States Environmental Protection Agency (EPA) issued a Notice of Violation to Material'lnstallations citing evidence of"over 1000 minutes of idling in violation of the anti-idling rule." The letter charges "by allowing delivery trucks to idle at its loading dock area" it has violated the federal Clean Air Act. The letter also states "these violations are environmentally significant because diesel exhaust can trigger asthma, respiratory illness, and possibly cancer. In addition, the letter indicates that Material Installations denied entry to EPA inspectors on two occasions. zz (Exhibit HH) 50. Despite, notice from the Board of Health and federal EPA, trucks continue to idle in excess of the statutory five minutes at the Material Installations property. (Exhibit II) 51. Material Installation's nonpermissive use of the property is the foundation for its idling [and Clear Air Act] violations which puts its residential neighbors at risk. No one is at liberty to use his own property without reference to the health, comfort or reasonable enjoyment of the public or private rights of others. PRAYER FOR RELIEF WHEREFORE, plaintiff respectfully prays that this Honorable Court: 1) Hear the evidence and determine the facts, as provided in M.G.L. ch. 40A, sections 7 & 17 and any other applicable law. 2) Declare that the ZBA decision exceeds the authority of the board. 3) Declare that Material Installations is a warehousing and/or wholesaling business. 4) Declare that the Material Installations use of the Industrial-1 land (warehousing1wholesaling) is a nonpermissive use in violation of section.4.132 of the North Andover Zoning by-laws. 5) Declare that the Planning Board has no zoning power,to grant/imply a variance. 6) Declare that the Planning Board's Conditional Approval/Special Permit did not authorize the warehousing/wholesaling use of the Material Installations Industrial-1 land. 21 In V.S.H. Realty v.Zoning Board of Appeals of Plymouth(30 Mass.App. Ct. at 535),the Appeals Court ruled"a zoning board decision cannot be sustained if it is based on legally untenable ground,or is unreasonable,whimsical,capricious or arbitrary. 22 Massachusetts has been classified by the EPA as an area of serious nonattainment of ozone and carbon monoxide federal standards.The anti-idling laws are part of the state's effort to comply with the federal Clean Air Act. 7) Declare that the Planning Board's decision was tainted due to misrepresented and non- disclosed information regarding Material Installations' business and by-law compliance. 8) Declare that Material Installations has not utilized the Industrial-1 property in conformity with the Special Permit's express terms. 9) Negate the Special Permit and order a new filing of application by Material Installations. 10)Require the defendant Chairman Alberto Angles Jr. of the Planning Board to place the Material Installations Special Permit on the agenda for the next Planning Board hearing to Modify the defective noise barrier conditions. 11)Declare that the ZBA exceeded its authority by allowing a Planning Board decision to bar the enforcement of the zoning by-laws. 12)Vacate the decision of the ZBA and order the ZBA to direct the Building Commissioner to prohibit Material Installations from using the Industrial-1 land as a warehousing/wholesaling business, and to take whatever legal steps are necessary to enforce such order. 13)Due to the conduct of the defendant Material Installations in having, keeping, maintaining and allowing to exist conditions detrimental to the health of its residential neighbors, and the making and maintaining nuisance conditions, the plaintiff seeks an injunction against the continued use of the Industrial-1 property in the manner and respect herein complained of. 14)Wherefore the plaintiff prays that the court permanently restrain and enjoin Material Installations against the continued use of the land in the manner and respect herein complained of to include restraining shipping terminal hours between nine (9) in the morning and six (6) in the evening Monday through Saturday and all day on Sunday. 15)Modify the Special Permit by requiring Material Installations to install effective noise barriers in lieu of the ineffective row of trees to achieve the intended result of the Planning Board. 16)Enter such other relief as the court deems appropriate. Konstantinos E. Balos PLAINTIFF Date PERMIT NO_ � y 0 PAGE 1 APPLICATION FOR PERMIT TO BUILD — NORTH ANDOVER, MASS. ,f ; MAP RSO. LOT NO. 2 RECORD OF OWNERSHIP JDATE BOOK IiPAGE N ZONE SUd DIV.LOT NO. Q- LOCATION —�—� PURPOSE OF BUILDING OWNER•$ NAME NO. OF STORIES 1 SIZE 7i fl OWNER'S ADDRESS r` fEMENT OR SLAB ARCHITECT'S NAME « ZI r. .A 1►L�ll i '�'GG'�t7�L. t,I�s SIZE OF FLOOR TIMBERS 19T �x IND X I U ,RD Th�I�naS BUILDER'S NAME LaAAAcin , SPAN DISTANCE TO NEAREST BUILDING 10I DIMENSIONS OF SILLS 4 DISTANCE FROM STREET ,D i POSTS CA << N C 1 REAR j 1 GIRDERS (L' X I Z DISTANCE FROM LOT LINES SIDES w.I .7 oO� FRONTAGE 1 HEIGHT OF FOUNDATION THICKNESS I I 97 AREA OF LOT Z rj 0 �o (A SIZE OF FOOTING lip II x 7_221 (D IS BUILDING NEW OIS BUILDING ADDITION lO MAT[RtAL OF CHIMNEY O /V IS 13UILDING ALTERATION a 18 BUILDING O SOLID R FILLED LAND Na I WILL BUILDING CONFORM TO REQUIREMENTS OF CODE P. l6 BUILDING COMNLCTED TO TOWN WATER e BOARD OF APPEALS ACTION. IF ANY - -I Am 10 BUILDING CONNECTED TO TOWN SCWCR •v 19 BUILDING CONNECTED TO NATURAL GAS LIN a PROPERPY INFORMATION INSTRUCTIONS t ^ LAND COAT �� /� Q.f !EE BOTH StOtf tif� EBT. BLDG. COST200- PAGE 1 FILL OUT GECTIONS 1 f LESS FDA FEE. ,..�� y EAY• sum.eofT PER f0•Fr. m DUE FRAME PERMIT EST' mum cofT PER Roof A 236 x PAGE I FILL OUT SECTIONS 1 /2 W IJ.I SEPTIC PERMIT NO. O [t,.tC'TR1C M[TtPi MUST at ON OUTBID[OF BUILDING A APPROVED BY A Z ATTACHED GARAGES MUST CONFORM TO STATE FIRE REGULATIONS _ PLANS MUTT at FILED ANDA PROVED BY BUILDING INSPECTOR �� ~ , DAT[ FILED ' BOARD OF HEALTH i O Z ' SIGNATURE OF OW ER HORIZED AGENT r' Q. Fes �d 7-v PLANNING BOARD PERMIT GRAS ?Q OyyA- 7: �7BOARD OF BELtCTMEN e Vj L P Page t of 3 February 6, 2004 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Community Development Office Heidi Griffin, Director 27 Charles Street North Andover; MA 01845 Fax: 978-688-9542 Subject: Your January 22, 2004 Letter Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. Dear Ms. Griffin: This is a response to your letter dated January 22, 2004 as well as a February 5, 2004 conversation with Town Attorney Thomas J. Urbelis regarding the Material Installations Special Permit. The town response references the Middlesex Appeals Court decision, Solar v. Zoning Board of Appeals of Lincoln (33 Mass. App. Ct. 398). It states "the Appeals Court ruled that a board was not free to modify, on its own, a special permit to make it conditional upon ownership of the land (a new policy of the board)when the original permit was subject to three-year automatically renewable terms." In the Solar case, the court ruled that the board "injected into its decision criteria not found in the by-law."The court also ruled that this "new policy" is "unrelated to the land" and "not based upon factors concerned with the land or the protection of the surrounding community."' As you are aware, the Massachusetts General Laws (Chapter 40A) define "Zoning" as "ordinances and by-laws, adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants. As stated in my January 15, 2004 letter, Material Installations is a warehousing/wholesaling business located in an Industrial-1 District. The "permitted uses" section of the zoning by-laws (4.132), states "warehousing and wholesaling" is permitted "only as a secondary use." The July 1987 Application for a Special Permit states the following: • Under the heading "4(b) Occupancy or use," the application states: "Expansion for the assembly and live storage areas of the existing facility." • Under"5(b) Occupancy and use," states: "Light industrial: offices, assembly and storage areas for office partition systems components." EXHIBIT-!jD Page 2 of 3 • Under"9. The principal points," the application states "The proposed addition complies with the provisions of the zoning Ln-law." The Special Permit Application does not list the"warehouse, transport and deliver" language contained in the company's Articles of Incorporation. In addition, the Zoning by-laws do not contain the term "light industrial.' As a result of residential abutter concerns with regard to "activity at night,' "trucks,' "noise" and"lights,' the Special Permit includes the use of"evergreens and fencing° for "noise barriers." I have provided expert research demonstrating that the aforementioned noise barriers are ineffective. Paragraph 9 of the Special Permit states" . . . any changes from these approved plans . . , will negate this Special Permit and will require a new filing of application.'The "assembly and live storage language contained in the Special Permit Application is a misrepresentation of the actual use (warehousing/wholesaling). Town records indicate that there is no variance to section 4.132 of the zoning by-laws that states: "Warehousing and wholesaling shall be permitted only as a secondary use." A "conditional use" or"special permit' is neither the equivalent of nor should it be confused with "variances.' According to the Mass. General Laws (Ch.40A), "variance power is given only to the Board of Appeals.' Likewise, the by-laws (section 10.4) state "the Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw." Zoning records indicate.that the land presently occupied by the Meadowood neighborhood has been zoned as "residential' since at least 1972: The character of the Meadowood neighborhood is distinctly residential consisting of single family homes most of which have young children. The Meadowood neighborhood relies on the Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1] property.The conditions caused by the prohibited use (warehousing/wholesaling) of the Material Installations property are an impairment to the neighborhood. Demand for Planning Board Hearial[ I submit that the Material Installations property is not used in accordance with the terms of the Special Permit. Material Installations is a wholesale/warehouse business in violation of the zoning by-laws. The permit is illegal and was erroneously issued based on misrepresented and non-disclosed information regarding the type of business. This permit confers no rights [to Material Installations] to operate in violation of the by- laws. Consequently, the present use of the Material Installations property infringes on my rights to the enjoyment and use of my residential property. A permit issued under mistake of fact or in violation of law confers no vested right or privilege on the person to whom the permit has been issued, and may be revoked, notwithstanding he may have acted upon it, and any expenditures made in reliance Page 3 of 3 upon such permit are made at his peril. Cochran v. Roemer ((287 Mass 500); Milton v. Donnelly (306 Mass 451). In Inspector of Buildings of Burlington V. Mumhv (320 Mass. 207), the Supreme Judicial Court ruled "where the change is a violation of a valid zoning by-law, and no permit can legalize it." In Town of Maynard v. Tomyl (347 Mass. 397) the Supreme Judicial Court ruled" the defendants can assert no right under the first, illegally granted, permit." In Kolodny v. Building Commissiner of Brookline (346 Mass. 289), the Supreme Judicial Court ruled that"the existence of a permit for the violation is inconsequential in proceeding to end the violation." In Simeone Stone Com. v. Oliva (350 Mass 31), Supreme Judicial Court ruled that"every presumption is to be made in favor of the by-law, and its enforcement will not be refused . . ." In Vitale v. Planning Bd. Of Newburynort (10 Mass. App. Ct. 483), the Appeals Court ruled that"duerocess does not p require than an [administrative] agency must bind itself to an error in perpetuity irrespective of the public interest." Furthermore, in Ferrante v. Board of Appeals of Northampton (345 Mass 158), the Supreme Judicial Court ruled that"the governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and.the ordinance." The Solar case referenced in your January 22, 2004 letter is not applicable to this matter. Section 4.132 of the zoning by-laws is not a"new policy' and is directly related "to the land."As a matter of fact, the text of section 4.132 is identical to the original 1972 version. The noise barrier conditions are "based upon factors" related to land use and the "protection of the surrounding community.'" Please follow the law and by-laws with impartiality as required under the equal protection clause of the 14th Amendment. I am demanding that this issue be placed on the agenda for the next planning board hearing. I am available to attend any meetings and/or provide further information. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and attention to this important matter. S. 1 Ko stantinos "Dino" Balos Attachments cc: Zoning Board of Appeals Board of Selectmen Assistant Town Manager Attorney Thomas J. Urbelis, Town Counsel Attorney Matthew C. Donahue 1 z Page 1 of 7 February 10, 2004 66 Meadawood Road North Andover, MA 01845-5927 North Andover Planning Board Alberto Angles, Jr., Chairman 27 Charles Street North Andover, MA 01845 Fax: 978-688-9542 Subject: Demand for Planning Board Hearing Re: Materials Installations,.Inc.'s Special Permit Dear Mr. Angles: This letter is written in reference to a hearing before the Zoning Board of Appeals (ZBA) regarding Material Installations'use of its property in violation of section 4.132 of the town's zoning by-laws. The Massachusetts General Laws (Chapter 40A) define "Zoning' as "ordinances and by- laws, adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants. I have submitted documentation to the ZBA substantiating that Material Installations, Inc. is a warehousing/wholesaling business in the furniture trade. This includes the Articles of Incorporation, which under purpose state: "to store, warehouse, transport and deliver all types and kinds of office furniture or,related systems." In addition, I have provided U.S. Labor Department records indicating that the nature of this industry (warehousing) includes trucking and that there is a"blurring distinction" between trucking and warehousing. Under the "Permitted Uses" section of the zoning by-laws (4.12), section 4.132 (Industrial-1), paragraph 13 states "warehousing and wholesaling shall be permitted oni�as a secondary use." Note: The text of the 1987 and 2002 zoning bylaws re: Industrial-1 Districts is identical to the original 1972 version. The July 1987 "Application for a Special Permit" states the following: • Under the heading "2(c) Zoning District," the application states "I-1." • Under the heading "4(b) Occupancy or use," the application states: "Expansion for the assembly and live storage areas of the existing facility." EXHIBIT-f:t Page 2 of 7 • Under"5(b) Occupancy and use," states: "Light industrial: offices, assembly and storage areas for office partition systems components." • Under "9. The principal points," the application affirms "The proposed addition E complies with the provisions of the zoning by-law." The Special Permit Application does not disclose the "warehouse, transport and deliver" language contained in the company's Articles of Incorporation. Likewise, the Articles of Incorporation does not contain the "assembly and live storage" listed on the Special Permit Application. Moreover, the by-laws do not mention the term "light industrial." As a result of residential abutter concerns with regard to "activity at night," "trucks," "noise" and "lights," the Special Permit includes the use of"evergreen's and fencing" for "noise barriers." As previously mentioned, the purpose of zoning is "to protect the health, safety and general welfare of their present and future inhabitants." The Mass. Gen. Laws state that: "Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law." Clearly the intent of the Special Permit restrictions were for effective noise barriers. I have provided the town with expert research that the 1987 Special Permit noise barrier conditions are ineffective. The "assembly and live storage" language contained in the Special Permit Application is j a misrepresentation and a material change from the actual use (warehousing/wholesaling). This violates paragraph 9 of the Conditional Approval Special Permit that states " . . . any changes from these approved plans . . . will negate this Special Permit and will require a new filing of application." I Town records indicate that Material Installations was not granted a variance to section 4.132 of the zoning by-laws ("warehousing and wholesaling shall be permitted only as a secondary use"). A"conditional use or"special permit" is neither the equivalent of nor should it be confused with "variances." According to the Mass. General Laws (Ch.40A), "variance power is given only.to the Board of Appeals." Likewise, the by-laws (section 10.4) state "the Zoning Board of Appeals shall have power upon appeal to grant variances from the . terms of this Zoning Bylaw." In Coolidge v. Planning Board of North Andover(337 Mass. 648), the Supreme Judicial Court stated that "there is no room for an implication of zoning power in boards other than those specified in the statute." Zoning records indicate that the land presently occupied by the Meadowood neighborhood has been zoned as "residential" since at least 1972. The character of the Meadowood neighborhood is distinctly residential consisting of single family homes most of which have young children. In addition, there are no access roads connecting the two districts. Page 3 of 7 The Meadowood neighborhood relies on the Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1] property. The conditions caused by the non-permitted use of the Industrial-1 property (warehousing/wholesaling) are an impairment to the neighborhood. This includes noise, fumes, odor,.vibrations and exhaust. I have provided the town with research indicating that this is a nuisance and health hazard as well as a violation of the statutory air pollution control violations. In like manner, section 4.132 (paragraph 11) of the zoning by-laws specifically identifies dust, smoke, fumes, odor, noise, vibration, and light as "adverse environmental effect[s]." During the January 13, 2004 ZBA hearing, Acting Chairperson Wafter Soule indicated that the ZBA is waiting for a legal opinion from town counsel regarding the Special Permit. I received a letter dated January 22, 2004 from Director Heidi Griffin of the Community Development Office referencing the opinion of Town Counsel Thomas Urbelis. The letter cites the Middlesex Appeals Court decision, Solar v. Zoning Board of Appeals of Lincoln (33 Mass. App. Ct. 398). It states "the Appeals Court ruled that a board was. not free to modify, on its own, a special permit to make it conditional upon ownership of the land (a new policy of the board) when the original permit was subject to three-year automatically renewable terms." In the Solar case, the appeals court ruled that the board "injected into its decision criteria not found in the by-law." The court also ruled that this "new policy" is "unrelated to the land" and "not based upon factors concerned with the land or the protection of the surrounding community." Section 4.132 of the zoning by=laws is not a "new policy" and is directly related "to the land." The noise barrier conditions are "based upon factors" related to the "protection of the surrounding community."The Solar case is not applicable to this matter. On February 5, 2004, I contacted Town Attorney Thomas J. Urbelis. I informed him that the Solar decision does not apply to the present matter for reasons as outlined above. I also informed Mr. Urbelis that the town opinion does not address the fact that Material Installations did not receive a Special Permit or variance to operate as a warehousing/wholesaling business. At the suggestion of Mr. Urbelis, I sent a letter to Director Griffin dated February 6, 2004 explaining my position (see attachment). As you are aware, a letter dated,February 5, 2004, was sent to your attention from Benjamin Tymann, Esq., attorney for Material Installations, Inc. Mr. Tymann's letter is predicated on the assumption that Material Installations received a valid Special Permit. Paragraph 3 of page 1 from Mr. Tymann's letter states "a special permit is a property right granted to a landowner. (See G.L.c 40A, 9)." Mr. Tymann's letter does not reference that the chapter also states: "Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by- law, and shall be subject to general or specific provisions set forth therein." Page 4 of 7 As indicated earlier, the Special Permit application, misrepresents (assembly and storage) Material Installations'true use (warehousing/wholesaling) of the Industrial-1 property. The warehousing/wholesaling use is not permitted by the by-laws and is certainly not in harmony with the general purpose and intent contained in section 4.132 of the by-laws. The permit is illegal and was erroneously issued based on misrepresented and non-disclosed information regarding the type of business. Page 2 of Mr. Tymann's letter states "Mr. Balos cannot now attack the Special Permit, years after the fact, by asking your board to revise it." This claim is also predicated on the assumption that the Special Permit was validly issued. Moreover, paragraph 9 of the Conditional Approval Special Permit states " . . . any changes from these approved plans . . . will negate this Special Permit and will require a new filing of application." As stated earlier, the "assembly and live storage" language contained in the Special Permit Application is a misrepresentation and material change from the actual use (warehousing/wholesaling). Furthermore, the Mass. Gen. Laws describe the purpose of zoning as "to protect the health, safety and general welfare of their present and future inhabitants." Planning board records clearly document residential abutter concerns with regard to "noise" and "trucks." These concerns preceded the issuance of the Special Permit and accompanying noise barrier conditions. Town records also indicate residential abutter noise and truck complaints [regarding Material Installations' operations] from at least 1998. Mr. Tymann's claim that the Special Permit cannot be attacked does NOT bar the town from enforcing the zoning by-laws. Page 2 of Mr. Tymann's letter also cites the Middlesex Superior Court case Cheryl D. Allison v. Barberry Homes, Inc (12 Mass.L. Rep. 138), and states " a neighbor came forward to request revision or reversal of a property right that was granted to a land owner nearly a decade earlier." This case does not apply because it is predicated on a validly issued permit. Material Installations'improperly granted permit is based on misrepresented and non-disclosed information regarding the true use of the property. Page 3 of Mr. Tymann's letter, citing the same Allison case, references my claim that Material Installations is a nuisance. Mr. Tymann (quoting the same Allison case) states: "Th[e] limitation, however, does not mean that disgruntled neighbors may, under a nuisance theory, reopen the underlying agency proceedings that led to the issuance of the license to see whether, with hindsight, the license terms could have been crafted differently . . . The law of nuisance is not a mechanism for disturbing an agency decision that has long since become final." In the Allison case, the plaintiff's claim of nuisance is a result of property restrictions associated with wetlands. The court stated: "there is nothing noxioui , unpleasant or damaging about the replicated wetlands on Barberry Homes' property -- they emit no noise, odors,fumes, dust, dirt, bright lights,flying objects, etc." The court also stated that "the tort of nuisance has been predicated on such things as the emission of noise, odors,fumes, and/or vibrations." P Page 5 of 7 Note: The. Supreme Judicial Court in Davis v. Sawyer (133 Mass. 289, 290) said, "noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance." Note: The Supreme Judicial Court in Shea v. National Ice Cream Co., Inc (280 Mass. 206, 211) said, "the defendants are entitled to a reasonable use of' their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to steep at night in their own homes." Page 3 of Mr. Tymann's letter also references that I purchased my property after Material Installations received its Special Permit and began its "_warehousiwI and assembly operations."The letter contains a footnote to a Bristol Appeals Court decision in Escobar v. Continental Baking Co., (33 Mass. App. Ct. 104, 110). Mr. Tymann (quoting Escobar) states "C]oming to a nuisance . . . is a significant factor'weighing against a prospective plaintiff's nuisance claim, particularly where the plaintiff knew or should have known of the type of commercial use taking place on an adjoining property at the time he moved to the neighborhood." A review of the Escobar case indicates that the appeals court, in fact, stated "coming to a nuisance in itself does 1VOT bar retie , it, too, is a significant factor." Additionally, the Appeals Court stated: 'the plaintiffs were aware . . . that the area was, in large measure, commercial." The Meadowood properties have been residentially zoned since at least 1972 and consist of single-family homes most of which have young children. Furthermore, there are no access roads connecting the two districts. Moreover, the "Footnotes" section of the Escobar ruling states: "the zoning by-law was not part of the record and the judge made no findings as to zoning. See Weltshe v. Graf, 323 Mass. 498, 500.- In 98, 500."In the Weltshe case, the plaintiffs, whose homes were located a residential district zone, bordered a district zoned for business and were disturbed in their sleep at night by unreasonable noises from a freight terminal operated by the defendants. In granting an injunction, the Supreme Judicial Court stated "a zoning ordinance is an important factor in determining whether the use being made of the land in conducting a particular enterprise goes beyond what is reasonable in view of the nature and character of the locality . . . [b]ut a zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." Similar to the Weltshe case, the properties in Meadowood are residentially zoned and border the Industrial-1 district that is the source of the nuisance. Regarding Mr. Tymann's claim that "the law is clear that Material Installation's property rights under the Special Permit cannot be unilaterally revised," the appeals court in Vitale v. Planning Bd. Of NewbunMort (10 Mass. App. Ct. 483) ruled that "due process does not require that an [administrative] agency must bind itself to an error in perpetuity irrespective of the public interest:" The Supreme Judicial Court in Ferriter V. Herlihy (287 Mass. 138) stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation Page 6 of 7 that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others."The present use of the Material Installations property infringes on the right to enjoy and use of my property. Furthermore, in Ferrante v. Board of Appeals of Northampton (345 Mass 158), the Supreme Judicial Court (quoting the Supreme Court of New Jersey in Zahodiakin Engr. . Co. v. Zoning Bd. Of Adjustment, 8 N.J. 386) stated "the governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest zoning that cannot thus be set at naught. The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril. It follows that the issuance of a building permit and the erection of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a variance by reason of estoppel." In Inspector of Buildings of Burlington v Murphy (320 Mass. 207), the Supreme Judicial Court ruled "since the change was a violation.of a valid zoning by-law, no permit can legalize it." A permitee acquires no vested right where the permit is issued in violation of the zoning ordinance. The Supreme Judicial Court in Town of Maynard v. Tomyl (347 Mass. 397), stated "the defendants can assert no right under the first, illegally granted, permit." I In Kolodny v. Building Commissioner of Brookline (346 Mass. 289), the Supreme Judicial Court ruled "the existence of a permit for the violation is inconsequential in proceeding to end the violation." In Simeone Stone Corp. v. Oliva (350 Mass 31), the Supreme Judicial Court ruled that "every presumption is to be made in favor of the by- law, and its enforcement will not be refused." Regarding Mr. Tymann's claim that "such action would constitute a taking, for which Material Installations would be entitled to compensation," the Supreme Judicial Court in the Ferrante case stated: "the plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril."As previously noted, the Special Permit Application misrepresents the true type of business and affirms compliance with the zoning by-laws. In Everett S. Wood & others v. Building Commissioner of the City of Boston (256 Mass. 238), the Supreme Judicial Court ruled that a"permit was improvidently granted . . . and . . . violates the law. It was the duty of the building commissioner . . . to take immediate steps to enforce the provisions of the statute." The final paragraph of Mr. Tymann's letter states "Material Installations . . . has been an outstanding corporate citizen."The actions of Material Installations indicate otherwise. Despite several "good faith" attempts to resolve this issue to include the assistance of Selectman Stewart, Material Installations has refused to participate. In addition, Material Installations has made several material statements to town officials that misrepresent the facts. This includes that their shipping operations (to include all truck activity) do not start before 7 in the morning. As I have submitted to the town on several occasions, I have video proof that operations routinely begin before 7 a.m. t Page 7 of 7 Material Installations, a [corporate] citizen of our town, has not taken any steps to- effectivelya nuisance activity to their property in order to prevent the confine the t3' P PertY impairment of its residential neighbors/citizens. Good neighbors keep their noise to themselves. As referenced in this letter, the zoning by-laws (1972) restricting warehousing/wholesaling only as a secondary use precede the Special Permit Application (1987). The use of the Material Installations property (warehousing/wholesaling) is a material change from the use allowed by the Special Permit (assembly and storage) and is in violation of the by-laws. The Conditional Use Special Permit was erroneously granted based on a misrepresentation of the type of business. The permit also misrepresents that it "complies with the provisions of the zoning by-law." The improperly granted Special Permit confers no rights [to Material Installations] to operate in violation of the by-laws. Consequently, the non-permitted use of the Material Installations property is a nuisance and infringes on my rights to the enjoyment and use of my property. I am a taxpayer and constituent that lives, raises a family, and participates in multiple community activities in North Andover. The residents of Meadowood rely on the Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1] property. The conditions caused by the non-permitted use (warehousing/wholesaling) of the Industrial-1 property are an impairment to the neighborhood. Accordingly, the town is obligated to protect the citizenry by administering the General laws and corresponding zoning by-laws with impartiality. This is absolutely necessary in the preservation and protection of the town zoning by-laws. Not doing so would deny my (as well as other Meadowood citizens) property rights under the equal protection clause of the constitution. I am demanding that this issue be placed on the agenda for the next, planning board hearing. I am available to attend any meetings and/or provide further information.. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and attention to this important matter. Sincerely Konstantinos "Dino" Balos Attachments cc: Community Development Office Zoning Board of Appeals Board of Selectmen Town Manager Attorney Thomas J. Urbelis, Town Counsel Attorney Matthew C. Donahue A arYu ui tvuiut nimover NORrp O Office of the Planning Department opt,:'• : Community Deyelopment and Services Division 4. T° 27 Charies Street 77 ► _ .- North Andover,Massachusetts 01845 httl2://www.t6wnofnorthandove_r.COM , Town Planner. Wil P (9�8j 6$��53g )utle t?arrinn F (978)%G88,=952 March 3, 2004 Konstantinos Balos 66 Meadowood Road North Andover,MA 01845 RE: Material Installation Dear Mr. Bolos: 'Phis letter is a follow-up to my letter dated February 19,2004. The Planning Board is in receipt of coninients from Town Counsel regarding your concerns with Material Installation. Town Counsel referred to Section 10.1 of the North Andover Zoning Bylaw which provides that the bylaw "shall be enforced by the Building Inspector".As you are aware, the Building Inspector opined that Material Installation, Inc. was in compliance with the Zoning Bylaw and Planning Board Special Permit of August 31, 1987. Recently, the Zoning Board of Appeals upheld the Building Commissioner's decision dated August 25, 2003. With regards to the Planning Board modifying the Special Permit,Town Counsel referred to his previous opinion that he could not find a definitive ruling,which authorizes such a modification. This opinion was referenced in a letter submitted to you by-Heidi Griffin, dated January 22, 2004. Upon phone discussions with several of the Planning Board members, they have agreed that in light of the Zoning Board of Appeals decision, no further involvement from the Planning Board is warranted. Sirccrply, ' JuliejParrino,Town Planner cc: Planning Board Heidi Griffin,Community Development Director Thomas Urbelis,Town Counsel Mark Rees,Town Manager Raymond Santilli, Assistant Town Manager William Sullivan, ZBA Chairman BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 EXHI8IT•'� Town of North Andover „ +rr►, a Office of the Health Department O O Community Development and Services Division t w 27 C:lharles Street '►�i . r North Andover,Massachusetts 01845 s�caus Susan Saw yti Telephone(978)688-9540 I'1.'hlir..I/a.11111 I.)incl lr Fax(978)688-9542 NORTH ANDOVER BOARD OF HEALTH ORDER LETTER Issued under the provisions of the Massachusetts General Laws(MGL),Chapter 90, Section 16A, 310 Code of Massachusetts Regulations (CMR) 7:11 U(1)(b) and MGL Chapter 111,Sections 122-124. Date: February 24, 2004 Materials Installations Inc. Attn: Michael Farrow 11 Bayfield Drive North Andover,MA 01845 Mr.Farrow: A resident complaint was submitted to the North Andover Board of Health regarding your property at the above referenced address with specific concern to excessive motor vehicle idling and the creation-of a public nuisance. North-Andover Health Department personnel in response to the complaint have met and discussed the situation with the Massachusetts Department of Environmental Protection(DEP), United States Environmental Protection Agency (EPA), personnel from Materials Installation Inc.,and the complainant. Health Department staff have inspected your site on various occasions,inspected the complainant's site and taken decibel readings at various times throughout the day and reviewed video documentation from the complainant. The inspections and video documentation revealed violations of MGL Chapter 90,Section 16A and 310 CMR 7.11 U(1)(b)regarding excessive vehicle idling at the above-referenced property. MGL Chapter 90 Section 16A states: D('IF APPf.ASiiYS..954I 131_;ILI)IPJt�S %, 1;.' �it�aEkt';�'f)C)Nii$-9$;t) FIktI:fH(i>°9 .}0 PLA*JAJIAi 63S-9�:; EXHIBIT- . �� "No person shall cause, suffer, allow or permit the unnecessary operation of the engine of a motor article while scud vehicle is slopped for a foreseeable period of time in excess of five ininules... Whoever violates any provision of this secoOn shall beunished p. by a fine of not more than one hundred dollars for the first offense, nor more than five hundred dollars fnr each succeeding offense." MGL Chapter 90 Section 16A and 310 CMR 7.11 U(1)(b)list specific exemptions fur vehicles being serviced, vehicles engaged In delivery where engine assisted power is necessary and for vehicles engaged in operation in which engine power is necessary for an associate power need other than movement. The Health Department has determined that the operations with reference to Materials Installations Inc. do not, require any engine assisted power or an associate power need while the vehicles are in ._ the loading area and any vehicle idling over five(5) minutes is a violation of 1�T�L Chapter 90 Section 16A and 310 CMR 7.11 U (1)(b). The Health Department has also determined that excessive vehicle idling over five(5)minutes constitutes a public health and noise nuisance that must be ceased within 24 hours of receipt.of this Order Letter. In accordance with MGL Chapter 111, Section 123, the Board of Health may also levy a fine of not more than one thousand (1,000) dollars every day during which such an order is violated and the nuisance is not abated. The Health Department has also looked into a concern that was previously discussed which addresses the need for a longer period of vehicle warm up in the winter and cold months. The Health Department has contacted the EPA and reviewed research published in April of 2002 by the EPA on this subject. According to the EPA and engine manufacturers recommendations,five(5)minutes is ample time to warm up a diesel engine for normal use and driving. EPA staff specifically stated that there is no reason to warm up a vehicle for more than five minutes,including the winter months and cold weather. If there is a problem with specific vehicles, several devices are available,such as electrical block heaters to avoid starting difficulties and reduce idling time needed for warm-up during colder months. You are hereby ORDERED to correct the violations stated-above within twenty- four(24)hours from receipt of this Order Letter. Failure to comply within the specified time period will result in further action by the North,Andover Board of Health. You have the right to request a hearing before the Board of Health if you feel this order should be modified or withdrawn. A request for said hearing must be submitted in writing to the Health Department within seven(7) days from the receipt of this order. At said hearing you will be given an opportunity to be heard and to present witnesses and documentary evidence as to why this order should be modified or withdrawn. All affected parties will be informed of the date, time and place of the hearing and of their right to inspect and copy all records concerning the matter to be heard. You may be represented by an attorney. You have the right to inspect and obtain copies of all relevant records concerning the matter to be heard. 2 Certified Mail # Yl�M� ����Q(� OA `J tDeNn nn US E` If you have any questions,comments or concerns,please feel free to call me at(978) 688- 9540 between the hours of 8:30-4:30,Monday through Friday. Sincerely, Brian J. UGrasse Health Inspector CC: Board of Health Susan Saywer,Public Health Director Ken Kimmel, Esq. Dino Balos, 66 Meadowview Road,North Andover,MA 01845 File DEP,Tom Natario 3 Ja�Ec sr�j�s UNITED STATES ENVIRONMENTAL PROTECTION a"' � �, TECTiON AGENCY SWO W REGION f i 1 CONGRESS STREET,SUITE 1100 ' Af BOSTON,MASSACHUSETTS 02114-2023 t Ppm June 16, 2004 CERTIFIED MAEL RETURN RECEIPT REQUESTED. Michael Farrow, Chief Executive Officer Material Installations,Inc. 11 Bayfield Drive North Andover,Massachusetts 01845 Re: Clean Air Act Notice of Violation Docket No. CAA-04-0033 Dear Mr.Farrow: Attached is:a Notice of Violation "NOV" ( )issued by the United States Environmental Protection Agency("EPA'')to Material Installations,Inc. under Section 113 of the Clean Air Act ("CAA" or"Act"),42 U.S.C. §§ 7413. The.NOV.notifies you that by allowing delivery trucks to idle at its loading dock area, Material Installations has violated Section :11(1)(b)of Title 310 of the Code of Massachusetts Rr g IatiiSfi ',;M -h proMb is the idling of a motor vehicle for a duration greater than five (5) min tr. titclt under special circumstances. As described in the NOV,EPA has evidence of (1 over�l �nnfitites of Whig in.violation of the anti-idling rule.These violations are envYioterTly Significant because diesel exhaust can trigger asthma, respiratory illness, and ossibl 'C. ori F X.. , `You fnaetlfer w�t1 ;EPA concerning the violations cited in the NOV. To schedule an NOV cn �r nc please COW&Rebecca Kurowski,Environmental Engineer, at(617) 918-1863, or have your attitney contact Thomas T: Olivier, Senior Enforcement Counsel,at (617)918-1737, within one:.week of receipt of this NOV. Sincerely; Stephe :Pe hs,Director Office of Environmental Stewardship cc: Ed Pawlowski,MA DEP Northeast Regional Office Richard Mahoney, Material Installations, Inc. Brian J. LaGrasse, Town of North Andover Department of Health,27 Charles St. 01845 ExHI91T•H 1� Toll Froi 4,1.888.372.7341 Internet Addreat►(URL)a http://www.opa.bov/r000ni Rloplo"ecyciablo•Printed with Vegetable Oil Bawd Inks on Ro ycled Psper(Mihtrnun,30%Postoonainneri UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION I IN THE MATTER OF: ) NOTICE OF VIOLATION ) .Material Installations,Inc. ) Proceeding under Section 113 of the Clean 11 Bayfield Drive ) Air Act North Andover,Massachusetts 01845 ) Docket No. CAA-04-0033 1 L STATUTORY AUTHORITY 1. The United States Environmental Protection Agency ("EPA")issues this Notice of Violation("NOV")to Material Installations,Inc.under Section 113(a)(1)of the Clean Air Act (the`.`Act"),42 U.S.C. § 7413(a)(1). Section 113(a)(1)of the Act provides that whenever,on the basis of any information available,EPA finds that any person has violated or is in violation of any requirement or prolubition of an applicable state implementation plan or.permit, EPA shall notify the person of such finding. This NOV describes EPA's finding that Material Installations, Inc.has violated the Act by failing to comply with Section 7.11(1)(b)of Title 310 of the Code of Massachusetts Regulations ("CMR'j(hereinafter referred to as the"Massachusetts anti-idling regulation"),which prohibits the idling of a motor vehicle for a duration greater than five(5) minutes,except under special circumstances. 2. The Commonwealth of Massachusetts has adopted an "applicable implementation plan"within the meaning of Section 113(a)(1)of the Act. This plan,commonly known as a state implementation plan ("SIP'),has been approved by EPA under Section 110 of the Act,42 U.S.C. § 7410. The Massachusetts SIP includes various federally-approved portions of the -2- Massachusetts Air Pollution Control Regulations at 310 CMR§7.00"et . 3. The Massachusetts anti-idling regulation,which.is part of.the Massachusetts SIP,was approved by EPA on May.31, 1972,and thus is federally enforceable. H. FACTUAL BACKGROUND AND VIOLATIONS 4. Material Installations,Inc.,located in North Andover,MA,is a distributor of pre- manufactured office furniture. The facility has five truck ports for delivery vehicles. 5.EPA received a January 29,2004 letter from a citizen concerned about truck idling at the Material Installations facility. 6. On March 8,2004 and April 2, 2004,EPA visited Material Installations at 11 Bayfield Drive,North Andover,MA. The inspectors were denied entry to the facility on March 8,2004 and again on April 2,2004. " 7. EPA has received from a concerned citizen nine eight-hour video tapes apes of trucks idling at Material Installations.The dates of idling shown on the tapes range from August 8,2003,to March 3,2004. 8.The video tapes show more than one thousand minutes of illegal truck idling(that is, idling beyond the limit of 5 minute per vehicle,per event). The idling violations of longest duration are shown in the following table: -3 - Date Time Total Idle Time Non-Compliance Time Vehicle Identity Stamp (minutes) (minutes) Aug 18,2003 0641-0714 33 28 MatwW bmtoations Oct 03,2003 0630-0656 26 21 M�bstanwoas Oct 06,2003 0636-0703 27 22 Material lnstanations Oct 06,2003 0638-0704 26 21 Material Instanations Oct 08,2003 0717-0754 38 33 Mai"Instanations Oct 23,2003 0633-0705 32 27 MalaW haaaflons Nov 21,2003 0714-0751 37 32 Mataw lnsmnations Nov 26,2003 0653-0721 28 23 MatcfW howlations Jan 06,2003 0712-0804 52 47 Mesal.hLmHafi0n Jan 22,2004 0731-0808 37 32 MatuW lasbEsdow Jan 28,2004 1107-1214 67 62 Mataw hubnations Feb 04,2004 0657-0725 28 23. Matedsi InsWations Feb'09,2004 0736-0822 46 41. Ma tmW moons Feb 12,2004. 0648-0726 38 33 Material hWeff,ations Feb 12,2004 0658-0743 45 40 Matc.rW habdhdow " Feb 16,2004 0648-0805 77 72 MatcsiW moons Feb 19,2004 0555-0623. 28 23 MaterW bmunations Feb 23,2004 0743-0813 30 25 MataW hmtWMons Mar 03,2004 0706-0739 33 28 Material Installations Total 633 -4- .9. The Massachusetts anti4dhng regulation prohibits the unnecessary operation of the engine of a motor vehicle while the vehicle is stopped for a foreseeable period of time in excess of five minutes. There are three situations in which this regulation does not apply: (a)when a vehicle is being serviced,provided that the operation of the engine is essential to the proper repair thereof; (b)when a vehicle is engaged in the delivery or acceptance of goods, wares,or merchandise for which engine assisted power is necessary, and substitute alternate means cannot be made available;or(c)when a vehicle is engaged in an operation for which the engineP ower is necessary for an associated power need other than movement,and substitute alternate power means cannot be made available, provided that such operation does not cause or contribute to a condition of air pollution. i 10. The observed idling did not meet any of the above-listed exceptions to the Massachusetts anti4dling regulation. 11. Accordingly,EPA finds that Material Installations violated the Massachusetts anti- idling regulation on numerous occasions,between August g,2003,and March 3,2004. . III. ENFORCEMENT 12. At any time after the expiration of thirty(30)days following the date of issuance of this NOV,EPA may issue Material Installations an order requiring compliance with the Massachusetts SIP and the Massachusetts ant 4d1ing regulation;commence a civil judicial action for penalties and injunctive relief; and/or issue an administrative penalty order for monetary penalties up to$27,500 per day for each violation until March 15, 2004,and of up to$ 32,500 per day for each violation after March 15,2004. See Sections 113(a), (b)and(d)of the Act,42 U.S.C. §§7413(a),(b)and(d),40 CFR Part 19,and 69 FR 7121 (February 13,2004)(Clean Air Act judicial and administrative penalties raised from$25,000 to$27,500 and to$32,500). Be advised that where EPA or another agency has notified a source of a violation,in certain circumstances the violation shall be presumed to continue for each and every day from the date of notice until the violator establishes that continuous compliance has been achieved. See Section 113(e)(2)of the Act: 13. The issuance of this NOV does not preclude EPA from electing to pursue any other remedies or sanctions authorized by law to address the violations. IV. OPPORTUNITY TO CONFER 14. You may confer with EPA concerning this NOV and the findings on which it is based. To schedule a conference,or if you have any questions,please contact Rebecca Kurowski,Environmental Engineer,at(617)918-1863,or have your attorney call Thomas T. Olivier,Senior Enforcement Counsel,at(617)918-1737 within one week of receipt of this NOV. V. EFFECTIVE DATE 15. This NOV shall become effective immediately upon issuance by EPA. SO ISSUED: Stephen grkins,Director Date Office of Environmental Stewardship Aunited btates Office of Enforcement and Compliance Assurance(2201A) EPAAgencyEnvironmental Protection EPA 300-F-99-004 September 1999 Office of • and Compliance Assurance INFORMATION SHEET . i U.S. EPA Smart Business Resources 'f you own a small business, the United States Environmental Protection Agency(EPA) offers a vane of compliance.assistance variety com p ce and tools to assist you in complying with federal and State environmental laws. These resources can help you understand your environmental obligations, improve compliance and find cost-effective ways to comply through the use of pollution prevention and other innovative technologies. EPA Websites EPA's Small Business Ombudsman Hotline can pro- EPA has several Internet sites that provide useful vide a list of all the hot lines and assist in determining compliance assistance information and materials for the hotline best meeting your needs. Key hotlines small businesses. Many public libraries provide ac- include: cess to the Internet at minimal or no cost. EPA's Small Business Ombudsman EPA's Small Business Home Page (http:// (800) 368,-5888 www.epa.gov/sbo)is a good place to start because it links with many other related websites. Other useful Hazardous Waste/Underground Tanks/ websites include: Superfund (800) 424-9346 EPA's Home Page National Response Center http://www.epa.gov (to report oil and hazardous substance spills) (800) 424-8802 Toxics Substances and Asbestos Information Small Business Assistance Programs (202) 554^.1404 httpJ/www.epa.gov/tbVsbap Safe Drinking Water (800) 426=4791 Compliance Assistance Home Page httpJ/www.epa.gov/oeca/oc Stratospheric phheric Ozone and Refrigerants- 1 (800) 296-1996 Office of Site Remediation Enforcement AtpJ/www.epa.gov/oeca/osre Clean Air Technical Center (919) 541-0800 Wetlands Hotline Hotlines, Helplines and (800) 832-7828 6learinghouses - _PA sponsors approximately 89 free hotlines and :learinghouses that provide convenient assistance in environmental requirements. Continued on back Office of Regulatory Enforcement Website: Activity Log-Material Installations Shipping Area DATE T8111E. DESCRIPTIOIOF ACTPATY Mar 09,2004 .0620-0630 TRUCK IDLING Mar 09,2004 0633-0646 TRUCK IDLING Mar 09,2004 0632-0701 TRUCK IDLING Mar 17,2004 0650-0657 TRUCK IDLING Mar 17,2004 0808-0815 TRUCK IDLING Mar 17,2004 . 0922-0930 TRUCK IDLING i Mar 17,2004 0706-0719 TRUCK IDLING Mar 17,2004 0830-0846 TRUCK IDLING Mar 18,2004 0740-0752 TRUCK IDLING Mar 19,2004 0852-0910 TRUCK IDLING _ Mar 29,2004 0723-0731 ' TRUCK IDLING Mar 29,2004 0711-0720 TRUCK IDLING Apr 01,2004 0900-0912 TRUCK IDLING _ A r 01,2004 1506-1538 TRUCK IDLING Apr 05,2004 0845-0853 TRUCK IDLING Apr 05,2004 1011-1025 TRUCK IDLING _ Apr 06,2004 0705-0711 TRUCK IDLING Apr 07,2004 0829-0837 TRUCK IDLING Apr 07,2004 0839-0848 TRUCK IDLING Apr 14,2004 0918-0925 TRUCK IDLING Apr 14,2004 1021-1033 TRUCK IDLING _ Apr 14,2004 0917-0931 TRUCK IDLING Apr 14,2004 0933-1020 TRUCK IDLING Apr 16,2004 0935-0942 TRUCK IDLING Apr 19,2004 0841-0851 TRUCK IDLING _ May 12,2004 0650-0656 TRUCK IDLING May 18,2004 1038-1055 TRUCK IDLING May 18,2004 0937-0959 TRUCK IDLING May 19,2004 0712-0731 TRUCK IDLING _ Jun 03,2004 0648-0700 TRUCK IDLING _ Jun 04,2004 0820-0827 TRUCK IDLING Jun 04,2004 0629-0644 TRUCK IDLING _ Jun 04,2004 0646-0703 TRUCK IDLING Jun 09,2004 0757-0803 TRUCK IDLING Jun 14,2004 0632-0642 TRUCK IDLING JU106,2004 0827-0837 TRUCK IDLING Jul 08,2004 0947=1001. TRUCK IDLING Jul 12,2004 0805-0818 TRUCK IDLING 'Does not contain every incident EX F I I (t Z� Town of North Andover + NORTM Office of the Zoning Board of Appeals 3� s Community Development and.Services Division 27 Charles Street --- : North Andover, Massachusetts 01845 'S'T.A U5 D. Robert Nicetta Telephone (978) 688-9541 Building Commissioner Fax (978) 688-9542 FAX TRANSMISSION t T0: FAX NUMBER: FROM: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover, Massachusetts 01845 FAX: 978-688-9542 PHONE: 978-688-9541 NUMBER OF PAGES: DATE: r�7 SUBJECT: REMARKS: y 1�jo/ yAv, 8"10s I15 4/ our 010SwPft on, MPP, iie- 617-5 - ).235' �V r ��Gt,5 C' t I'l fi U 4°'1 r—' . Y P 0 Y-ft 1� �I SPl7 M ) 6.Iry V I V J ( l G S e e nd e�� IS ala I�� h C0 yd t Y 4�\� 1 r) / / jci*APf G a b etl���j �a� 1�V lP p �� pW V�W Board of Appeals 978-688-9541 Building 978-688.9545 Conservation 978-688.9530 Health 978-688.9540 Planning 978-688-9s3 s to 9787688-9556 at. 6/3/04 9:44 AM 002 June 3, 2004 66 Meadowood Road North Andover, MA 01845-5927 TOWN MANAGER'S OFFICE . MARK REES, TOWN MANAGER 120 MAIN STREET NORTH ANDOVER MA via fax: 978-688-9556 Subject: Citizen Public Records Request r Re: ZBA Petition 200-037 for property at 11 Bayfield Drive. To Whom It May Concern: Pursuant to the Massachusetts Public Records Law, this letter serves as a request for the following: Any and all information related to the above referenced Zoning Board of Appeals Public Hearings for the dates of 11-18-2003, 1-13-2004, and 2- 10-2004. This includes but is not limited to any and all minutes, notes, logs, and transcripts as well as copies of the audio recordings taken for each of those dates. I can be contacted at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and assistance. Sincerely., / ✓ K. Dino Balos JUN 7 - ZI BOARD OF APPEALS Town of North Andover �oRTFt Office of the Planning Department �p Community Development and Services Division 27 Charles Street North Andover,Massachusetts 01845 �SSAcausEa bt42://www.townofnorthandover.com Town Planner. iparrino@townofilorthandover.com. P (978)09535 Julie Parrino F (978)688-9542 I February 19, 2004 Konstantinos Balos 66 Meadowood Road North Andover, MA 01845 RE: Material Installation Dear Mr. Balos: I This letter is to confirm that we are receipt of your February 10,2004 letter addressed to Alberto Angles, Chairman of the Planning Board. I am aware that you submitted a letter to Heidi Griffin, , dated February 6, 2004. The Planning Department nor Heidi Griffin received the letter as it is my understanding it was faxed over and was not internally forwarded to the proper Departments. We are now in receipt of the letter and I apologize for the confusion. Your letters have been forwarded to the Planning Bq0members and to Town Counsel. It is my understanding that the Board of Appeals voted on February 10, 2004 to uphold the Building Commissioner/Zoning Enforcement Officer's letter dated August 25, 2003. I am awaiting an opinion from Town Counsel as to whether the Planning Board may take further action relating to your concerns. I assure you I will follow up with written documentation upon receipt from an opinion from Town Counsel. Sincerely f 'e Parrino," own Planner cc: Planning Board Heidi Griffin, Community Development Director Thomas Urbelis, Town Counsel Mark Rees, Town Manager Raymond Santilk Assistant Town Manager D (� :' ' '� Sullivan,ZBA Chairman f FEB C' . 2004 BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 BOARD OF APPEALS Page 1 of 1 Glennon, Michel From: Thomas J. Urbelis[tju@ufb.com] Sent: Thursday, February 19, 2004 10:04 AM To: 'Michel Glennon' Subject: RE: ZBA decision for Balos vs. Building Commissioner Michel.....not having attended the hearings, I offer no opinion on the correctness of the decision, but I can only say that on the face of it, the decision appears to be in order. -----Original Message----- From: Michel Glennon [mailto:mg[ennon@townofnorthandover.com] Sent: Thursday, February 19, 2004 9:32 AM To: 'Atty. Thomas J. Urbelis' Subject: ZBA decision for Balos vs. Building Commissioner Hello, Atty. Urbelis; Mr Soule thought it would be a good idea if you reviewed the attached (I hope) decision, since there is a possibility that it will be appealed. Mich Glennon. 2/19/04 i L V 7 CL zc/ 4-z., n ✓1 Town of North Andover To# Office of the Zoning Board of Appeals F? •`y' `.' °A Community Development and Services Division x • 27 Charles Street `^ °-=--• "r North Andover,Massachusetts 01845 �SSAC14 D. Robert Nicetta Telephone(978)688-9541 Building Commissioner Fax(978)688-9542 FAX TRANSMISSION t I TO: C.vl� � v v� n h Ess FAX NUMBER: (4 1 5 a 122 FROM: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover, Massachusetts 01845 FAX: 978-688-9542 PHONE: 978-688-9541 NUMBER OF PAGES: DATE: SUBJECT: ri, REMARKS: )� - 7 1� ; Oa 10,5 /p _ �,Pr Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 02/10/04 15:18 FAX 617 565 7528 [a 001 i p To: Alberto Angles,Jr,,Planning Board From: K.Dino Balos Fac 978-888-9542 Pages: 8 Phonm Date: 2/10/2004 Re: Material Installations CC: Director Griffin,Acting Chairman Soule O Urgent ❑ For Review ❑Please Comment 0 Please Reply ❑Phase Recycle e Comments: Please make a copy for Heidi Griffin, Director of Community Development andalter Soul Acting Chairman for Zoning Board of Appeals. Thank-you. 02/10/04 15:18 FAX 617 565 7528 0 002 Page 1 of 7 February 10, 2004 66 Meadowood Road North Andover, MA 01845-5927 North Andover Planning Board Alberto Angles, Jr., Chairman 27 Charles Street North Andover, MA 01845 Fax: 978-688-9542 Subject: Demand for Planning Board Hearing Re: Materials Installations, Inc2s Special Permit Dear Mr. Angles: This letter is written in reference to a hearing before the Zoning Board of Appeals (ZBA) regarding Material Installations'use of its property in violation of section 4.132 of the town's zoning by-laws. The Massachusetts General Laws (Chapter 40A) define "Zoning" as "ordinances and by- laws, adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, sqfettj and general welfare of their present and future inhabitants. I have submitted documentation to the ZBA substantiating that Material Installations, Inc. is a warehousing/wholesaling business in the furniture trade. This includes the Articles of Incorporation, which under purpose state: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." In addition, I have provided U.S. Labor Department records indicating that the nature of this industry (warehousing) includes trucking and that there is a"blurring distinction" between trucking and warehousing. Under the "Permitted Uses" section of the zoning by-laws (4.12), section 4.132 (Industrial-1), paragraph 13 states "warehousing and wholesaling shall be permitted oniu as a secondary use." Note: The text of the 1987 and 2002 zoning bylaws re: Industrial-1 Districts is identical to the original 1972 version. The July 1987 "Application for a Special Permit" states the following: • Under the heading"2(c) Zoning District," the application states"I-1." 0 Under the heading"4(b) Occupancy or use," the application states: "Expansion for the assembly and live storage areas of the existing facility." I 02/10/04 15:18 FAX 617 565 7528 - IA003 Page 2 of 7 • Under"5(b) Occupancy and use," states: "Light industrial: offices, assembly and storage areas for office partition systems components." • Under"9. The principal points," the application affirms "The proposed addition complies with the provisions of the zoning by-law." The Special Permit Application does not disclose the "warehouse, transport and deliver" language contained in the company's Articles of Incorporation. Likewise, the Articles of Incorporation does not contain the "assembly and live storage"listed on the Special Permit Application. Moreover, the by-laws do not mention the term "light industrial." As a result of residential abutter concerns with regard to"activity at night," "trucks," "noise" and "lights," the Special Permit includes the use of"evergreens and fencing" for "noise barriers." As previously mentioned, the purpose of zoning is "to protect the health, safety and general welfare of their present and future inhabitants." The Mass. Gen. Laws state that: "Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-taw." Clearly the intent of the Special Permit restrictions were for effective noise barriers. I have provided the town with expert research that the 1987 Special Permit noise barrier conditions are ineffective. The"assembly and live storage" language contained in the Special Permit Application is a misrepresentation and a material change from the actual use (warehousing/wholesaling). This violates paragraph 9 of the Conditional Approval Special Permit that states " . . . any changes from these approved plans . . . will negate this Special Permit and will require a new filing of application." Town records indicate that Material Installations was not granted a variance to section 4.132 of the zoning by-laws ("warehousing and wholesaling shall be permitted only as a secondary use"). A"conditional use" or"special permit" is neither the equivalent of nor should it be confused with "variances." According to the Mass. General Laws (Ch.40A), "variance power is given only to the Board of Appeals." Likewise, the by-laws (section 10.4) state "the Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw." In Coolidge v. Planning Board of North Andover(337 Mass. 648), the Supreme Judicial Court stated that"there is no room for an implication of zoning power in boards other than those specified in the statute." Zoning records indicate that the land presently occupied by the Meadowood neighborhood has been zoned as "residential" since at least 1972. The character of the Meadowood neighborhood is distinctly residential consisting of single family homes most of which have young children. In addition, there are no access roads connecting the two districts. 02/10/04 15:19 FAX 617 565 7528 10 004 Page 3 of 7 The Meadowood neighborhood relies on the Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1) property. The conditions caused by the non-permitted use of the Industrial-1 property (warehousing/wholesaling) are an impairment to the neighborhood. This includes noise, fumes, odor, vibrations and exhaust. I have provided the town with research indicating that this is a nuisance and health hazard as well as a violation of the statutory air pollution control violations. In like manner, section 4.132 (paragraph 11) of the zoning by-laws specifically identifies dust, smoke, fumes, odor, noise, vibration, and light as "adverse environmental effecgs]." During the January 13, 2004 ZBA hearing, Acting Chairperson Walter Soule indicated that the ZBA is waiting fora legal opinion from town counsel regarding the Special Permit. I received a letter dated January 22, 2004 from Director Heidi Griffin of the Community Development Office referencing the opinion of Town Counsel Thomas Urbelis. The letter cites the Middlesex Appeals Court decision, Solar v. Zoning Board of Appeals of Lincoln (33 Mass. App. Ct. 398). It states "the Appeals Court ruled that a board was not free to modify, on its own, a special permit to make it conditional upon ownership of the land (a new policy of the board) when the original permit was subject to three-year automatically renewable terms." In the Solar case, the appeals court ruled that the board "injected into its decision criteria not found in the by-law."The court also ruled that this"new policy" is , "unrelated to the land" and "not based upon factors concerned with the land or the protection of the surrounding community." Section 4.132 of the zoning by-laws is not a"new policy' and is directly related "to the land." The noise barrier conditions are "based upon factors" related to the "protection of the surrounding community." The Solar case is not applicable to this matter. On February 5, 2004, 1 contacted Town Attorney Thomas J. Urbelis. I informed him that the Solar decision does not apply to the present matter for reasons as outlined above. I also informed Mr. Urbelis that the town opinion does not address the fact that Material Installations did not receive a Special Permit or variance to operate as a warehousing/wholesaling business. At the suggestion of Mr. Urbelis, I sent a letter to Director Griffin dated February 6, 2004 explaining my position (see attachment). As you are aware, a letter dated February 5, 2004, was sent to your attention from Benjamin Tymann, Esq., attorney for Material Installations, Inc. Mr. Tymann's letter is predicated on the assumption that Material Installations received a valid Special Permit. Paragraph 3 of page 1 from Mr. Tymann's letter states "a special permit is a property right granted to a landowner. (See G.L.c 40A, 9)." Mr. Tymann's letter does not reference that the chapter also states: "Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by- law, and shall be subject to general or specific provisions set forth therein." 02/10/04 15:19 FAX 617 5657528 10005 Page 4 of 7 As indicated earlier, the Special Permit application, misrepresents (assembly and storage) Material Installations'true use (warehousing/wholesaling) of the Industrial-1 property. The warehousing/wholesaling use is not permitted by the by-laws and is certainly not in harmony with the general purpose and intent contained in section 4.132 of the by-laws. The permit is illegal and was erroneously issued based on misrepresented and non-disclosed information regarding the type of business. Page 2 of Mr. Tymann's letter states "Mr. Balos cannot now attack the Special Permit, years after the fact, by asking your board to revise it."This claim is also predicated on the assumption that the Special Permit was validly issued. Moreover, paragraph 9 of the Conditional Approval Special Permit states " . . . any changes from these approved plans . . . will negate this Special Permit and will require a new filing of application." As stated earlier, the "assembly and live storage" language contained in the Special Permit Application is a misrepresentation_ and material change from the actual use (warehousing/wholesaling). Furthermore, the Mass. Gen. Laws describe the purpose of zoning as "to protect the health, safety and general welfare of their present and future inhabitants." Planning board records clearly document residential abutter concerns with regard to "noise" and "trucks."These concerns preceded the issuance of the Special Permit and accompanying noise barrier conditions. Town records also indicate residential abutter noise and truck complaints [regarding Material Installations'operations] from at least 1998. Mr. Tymann's claim that the Special Permit cannot be attacked does NOT bar the town from enforcing the zoning by-laws. Page 2 of Mr. Tymann's letter also cites the Middlesex Superior Court case Cheryl D. Allison v. Barberry Homes. Inc (12 Mass. L. Rep. 138), and states " a neighbor came forward to request revision or reversal of a property right that was granted to a land owner nearly a decade earlier." This case does not apply because it is predicated on a validly issued permit. Material Installations'improperly granted permit is based on misrepresented and non-disclosed information regarding the true use of the property. Page 3 of Mr. Tymann's letter, citing the same Allison case, references my claim that Material Installations is a nuisance. Mr. Tymann (quoting the same Allison case) states: "Th[e] limitation, however, does not mean that disgruntled neighbors may, under a nuisance theory, reopen the underlying agency proceedings that led to the issuance of the license to see whether, with hindsight, the license terms could have been crafted differently . . . The law of nuisance is not a mechanism for disturbing an agency decision that has long since become final." In the Allison case, the plaintiffs claim of nuisance is a result of property restrictions associated with wetlands. The court stated: "there is nothing noxious, unpleasant or damaging about the replicated wetlands on Barberry Homes' property -- they emit no noise, odors,fumes, dust, dirt, bright lights,flying objects, etc." The court also stated that"the tort of nuisance has been predicated on such things as the emission of noise, odors,.&mes, and/or vibrations." 02/10/04 15:20 FAX 617 565 7528 Q006 Page 5 of 7 Note: The Supreme Judicial Court in Davis v. Sawyer(133 Mass. 289, 290) said, "noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance," Note: The Supreme Judicial Court in Shea v. National Ice Cream Co.. Inc. (280 Mass. 206, 211) said, "the defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a tight to steep at night in their own homes.' Page 3 of Mr. Tymann's letter also references that I purchased my property after Material Installations received its Special Permit and began its "warehousing and assembly operations.'The letter contains a footnote to a Bristol Appeals Court decision in Escobar v. Continental Baking Co., (33 Mass. App. Ct. 104, 110). Mr. Tymann (quoting Escobar states "goming to a nuisance . . . is a significant factor'weighing against a prospective plaintiffs nuisance claim, particularly where the plaintiff knew or should have known of the type of commercial use taking place on an adjoining property at the time he moved to the neighborhood." A review of the Escobar case indicates that the appeals court, in fact, stated "coming to a nuisance in itself does NOT bar retie,,j; it, too, is a significant factor." Additionally, the Appeals Court stated: "the plaintiffs were aware . . . that the area was, in large measure, commercial." The Meadowood properties have been residentially zoned since at least 1972 and consist of single-family homes most of which have young children. Furthermore, there are no access roads connecting the two districts. Moreover, the "Footnotes" section of the Escobar ruling states: "the zoning by-law was not part of the record and the judge made no findings as to zoning. See Weltshe v. Graf, 323 Mass. 498, 500.- In 98, 500."In the Weltshe case, the plaintiffs, whose homes were located a residential district zone, bordered a district zoned for business and were disturbed in their sleep at night by unreasonable noises from a freight terminal operated by the defendants. In granting an injunction, the Supreme Judicial Court stated"a zoning ordinance is an important factor in determining whether the use being made of the land in conducting a particular enterprise goes beyond what is reasonable in view of the nature and character of the locality . . . [b)ut a zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." Similar to the Weltshe case, the properties in Meadowood are residentially zoned and border the Industrial-1 district that is the source of the nuisance. Regarding Mr. Tymann's claim that"the law is clear that Material Installation's property rights under the Special Permit cannot be unilaterally revised," the appeals court in Vitale v. Planning Bd. Of Newburyport (10 Mass. App. Ct. 483) ruled that "due process does not require that an [administrative] agency must bind itself to an error in perpetuity irrespective of the public interest." The Supreme Judicial Court in Ferriter v. Herlihy (287 Mass. 138) stated that"the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation 02/10/04 15:21 FAX 617 565.7528 1�007 Page 6 of 7 that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others." The present use of the Material Installations property infringes on the right to enjoy and use of my property. Furthermore, in Ferrante v. Board of Appeals of Northampton (345 Mass 158), the Supreme Judicial Court (quoting the Supreme Court of New Jersey in Zahodiakin Engr. Co. v. Zoning Bd. Of Adjustment, 8 N.J. 386) stated"the governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest zoning that cannot thus be set at naught. The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril. It follows that the issuance of a building permit and the erection of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a variance by reason of estoppel." In Inspector of Buildings of Burlington v. Murphy (320 Mass. 207), the Supreme Judicial Court ruled "since the change was a violation of a valid zoning by-law, no permit can legalize it." A permitee acquires no vested right where the permit is issued in violation of the zoning ordinance. The Supreme Judicial Court in Town of Maynard v. Tomyl (347 Mass. 397), stated "the defendants can assert no right under the first, illegally granted, permit." In Kolodnv v. Building Commissioner of Brookline (346 Mass. 289), the Supreme Judicial Court ruled "the existence of a permit for the violation is inconsequential in proceeding to end the violation." In Simeone Stone Corp. v. Oliva (350 Mass 31), the Supreme Judicial Court ruled that"every presumption is to be made in favor of the by- law, and its enforcement will not be refused." Regarding Mr. Tymann's claim that"such action would constitute a taking, for which Material Installations would be entitled to compensation," the Supreme Judicial Court in the Ferrante case stated: "the plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril." As previously noted, the Special Permit Application misrepresents the true type of business and affirms compliance with the zoning by-laws. In Everett S. Wood & others v. Building Commissioner of the City of Boston (256 Mass. 238), the Supreme Judicial Court ruled that a"permit was improvidently granted . . . and . . . violates the law. It was the duty of the building commissioner . . . to take immediate steps to enforce the provisions of the statute." The final paragraph of Mr. Tymann's letter states "Material Installations . . . has been an outstanding'corporate citizen." The actions of Material Installations indicate otherwise. Despite several "good faith" attempts to resolve this issue to include the assistance of Selectman Stewart, Material Installations has refused to participate. In addition, Material Installations has made several material statements to town officials that misrepresent the facts. This includes that their shipping operations (to include all truck activity) do not start before 7 in the morning. As I have submitted to the town on several occasions, I have video proof that operations routinely begin before 7 a.m. 6 02/10/04 15:21 FAX 617 565 7528 [A 008 I Page 7 of 7 Material Installations, a [corporate] citizen of our town, has not taken any steps to effectively confine the nuisance activity to their property in order to prevent the impairment of its residential neighbors/citizens. Good neighbors keep their noise to themselves. As referenced in this letter, the zoning by-laws (1972) restricting warehousing/wholesaling only as a secondary use precede the Special Permit Application (1987). The use of the Material Installations property (warehousing/wholesaling) is a material change from the use allowed by the Special Permit (assembly and storage) and is in violation of the by-laws. The Conditional Use Special Permit was erroneously granted based on a misrepresentation of the type of business. The permit also misrepresents that it "complies with the provisions of the zoning by-law."The improperly granted Special Permit confers no rights [to Material Installations] to operate in violation.of the by-laws. Consequently, the non-permitted use of the Material Installations property is a nuisance and infringes on my rights to the enjoyment and use of my property. I am a taxpayer and constituent that lives, raises a family, and participates in multiple community activities in North Andover. The residents of Meadowood rely on the Industrial-1 zoning restrictions for protection from the neighboring [Industrial-1] property. The conditions caused by the non-permitted use (warehousing/wholesaling) of the Industrial-1 property are an impairment to the neighborhood. Accordingly, the town is obligated to protect the citizenry by administering the General laws and corresponding zoning by-laws with impartiality. This is absolutely necessary in the ,preservation and protection of the town zoning by-laws. Not doing so would deny my (as well as other Meadowood citizens) property rights under the equal protection clause of the constitution. I am demanding that this issue be placed on the agenda for the next planning board hearing. I am available to attend any meetings and/or provide further information. Should you require additional information, please contact me at.the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and attention to this important matter. S' cerely, Konstantinos "Dino" Balos Attachments cc: Community Development Office Zoning Board of Appeals Board of Selectmen Town Manager Attorney Thomas J. Urbelis, Town Counsel Attorney Matthew C. Donahue r Page 1 of 3 January 20, 2004 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Zoning Board of Appeals Walter F. Soule, Acting Chairman 27 Charles Street North Andover, MA 01845 Subject: Appeal of Building Commissioner's Decision Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. Dear Mr. Soule: This letter is a follow-up to the January 13, 2004 Zoning Board of Appeals (ZBA) hearing regarding my appeal of the [August 25, 2003] Building Commissioner's denial to enforce the town zoning by-laws. As you are aware, zoning allows local government to regulate what uses may be made of a parcel of land. As presented to the ZBA, 11 Bayfield Drive is located in the Industrial-1 District zone. Under the "Permitted Uses" section of the North Andover zoning by-laws (4.12), specifically section 4.132 (paragraph 13) states that "Warehousing and wholesaling shall be permitted only as a secondary use." Note: The text of the 1987 and 2002 zoning bylaws re: Industrial-1 Districts is identical to the original 1972 version. (see attachment). I have submitted documentation to the ZBA substantiating that Material Installations is a warehousing/wholesaling business. This includes the Articles of Incorporation, which under purpose state: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." In addition, documentation from the Building Assessor's Department indicates that Material Installations is categorized under "State-Use-CD" as " 401-Warehouse" and under "Use-Code" as "325 - Distrib - Whse." Likewise, the Merrimack Valley Planning Commission (MVPC) identifies the "Primary Business" of Material Installations as "Office Furniture and Equipment Installation (Whol)." The MVPC also identifies the "SIC Code" (Standard Industrial Classification) as "5021-22." The U.S Department of Labor (DOL) describes this SIC Code as "Wholesale Trade . . . primarily engaged in the wholesale distribution of furniture . . ." I have also provided the ZBA with documentation indicating that the warehousing/wholesaling industry is integrated with trucking. Specifically, DOL documentation which states "transportation and material-moving occupations, most of whom are truck drivers and material movers comprise one of the largest occupational groups in the [wholesale] industry." With regarding to warehousing, DOL records indicate that the nature of this industry includes trucking and that there is "blurring distinction" between "trucking and warehousing." The Special Permit Application for Material Installations, dated July 14, 1987, states the following: • Under the heading "2(c) Zoning District," the application states 1-1. " • Under "5(b) Occupancy and use": "Light industrial: offices, assembly and storage areas for office partition systems components." (� [ �AiFl �_lr "7. Description of purpose": "Material Installations wishes to expand the ass � Ibly and live storage areas of their facility by approximately 18,200 s.f. The JAN 2 11 20C4 U BOARD OF APPEALS Page 2 of 3 project will provide parking for 20 additional cars. A special permit is required for construction of a building with over 10 parking spaces in an industrial zone." • Under "9. The principal points": "The proposed addition complies with the provisions of the zoning by-law." (see attachment) The Special Permit Application does NOT list the "warehouse, transport and deliver" language as contained in the company's Articles of Incorporation nor identity it as a "wholesale" business. In addition, the Zoning by-laws do not contain the term "light industrial" as listed in the 1987 Special Permit Application. As you are aware, the zoning by-laws regulate the industrial use of a parcel of land by classifying it into one (1) of four (4) districts. As previously noted, Material Installations (11 Bayfield Drive) is located in an Industrial-1 District. Section 4.132 (Industrial-1 District) states "Warehousing and wholesaling shall be permitted only as a secondary use." The "assembly and live storage" language contained in the Special Permit Application is a misrepresentation of the actual use (warehousing/wholesaling). The Building Commissioner/Zoning Enforcement officer's August 25, 2003 letter states that "the Planning Board Decision of 1987 does not place any restriction on the type of business . . . at the Industrial-1 site. In fact the August 31St decision gave the business permission `to expand the assembly and live storage areas in an existing building' . " As submitted to the ZBA, the Massachusetts General Laws (Ch.40A, § 15) states that "variance power is given only to the Board of Appeals." Furthermore, Section 10.4 (Variances and Appeals) of the zoning by-laws states "the Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw." There is no record of a ZBA variance for Material Installations from the restrictions of paragraph 13 of section 4.132 (Industrial 1 District), specifically that "warehousing and wholesaling shall be permitted only as a secondary use." The properties in the Meadowood neighborhood are zoned as "Residential-6." They are distinctly residential consisting of single-family homes. Furthermore, there are no access roads between the two districts. According to the 1972-zoning map, the land presently occupied by the Meadowood neighborhood is zoned as "residential." The map also shows that the land presently occupied by Material Installations is zoned as "Industrial-1." (see attachment) I have also submitted to the ZBA that the noise caused by the shipping activity of Material Installations is an impairment to the neighborhood by causing a nuisance to its residential neighbors. This includes video corroboration along with a log of shipping activity that refutes Attorney Tymann's [January 14, 2004] claim that "noise from truck traffic has been minimized." Material Installations has not taken any steps to effectively confine the noise to their property. I have also submitted research that noise is a health hazard, not just a nuisance. In the Commonwealth, noise is treated as an emission of sound and is regulated as a source of air pollution. The Mass. Gen. Laws (ch. 214, § 7A) defines "damage to the environment" to include "air pollution." Moreover, section 4.132 (paragraph 11) of the zoning by-laws specifically identify "noise" and "vibration" as an "adverse environmental effect." Regarding Mr. Tymann's claim that "there is no basis in law whatsoever for the notion that Material Installation's property rights under the Special Permit can be unilaterally revised or rescinded," condition #9 of the Special Permit states: "any changes from these approved plans and that may be shown on the As-Built Plan submitted for approval prior to Page 3 of 3 occupancy will negate this Special Permit and will require a new filing of application." Furthermore, the zoning by-laws restrict warehousing/wholesaling "only as a secondary use" in Industrial-1 Districts. I submit to the ZBA that the property rights affected are the peaceful enjoyment of my residential home to include uninterrupted sleep caused by the non-permitted use (warehousing/wholesaling) of the Material Installations property. As submitted to the ZBA, The Supreme Judicial Court of Massachusetts (Ferriter v. Herlihy, 287 Mass. 138) stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others." Furthermore, the court has stated (Shea v. National Ice Cream Co., Inc., 280 Mass. 206, 211), "the defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to sleep at night in their own homes." In my August 6, 2003 letter to the Building Commissioner, I requested the enforcement of the North Andover zoning by-laws. As you are aware, section 10.4 of the zoning by-laws state: "an appeal may be taken to the Zoning Board of Appeals as provided herein by a person aggrieved by reason of his inability to obtain a permit or enforcement action from the Building Inspector . . ." During the January 13, 2004 ZBA hearing, I informed the board that the issue before the ZBA is whether, under the zoning by-laws, Material Installations is permitted to operate as a warehousing/wholesaling business. As submitted to the ZBA, the zoning by-laws (section 4.132) state: "Warehousing and wholesaling shall be permitted only as a secondary use." I respectfully request the following: 1) that the ZBA issue a finding that the Material Installations property is not used in accordance with the terms of the Special Permit ("assembly and live storage") in that it is a wholesale/warehouse business: 2) that the ZBA find that Material Installations'use of the property (warehousing/wholesaling) is not permitted by the zoning by-laws (section 4.132, paragraph 13); 3) that the ZBA confirm that Material Installations did not receive a variance from the ZBA from the provisions of paragraph 13 of section 4.132 of the zoning by-laws to operate as a warehousing/wholesaling business; and 4) that the ZBA reverse the Building Commissioner's denial and order the enforcement of the North Andover zoning by-laws. Regarding the issue of the Planning Board and its referral to town counsel, I have provided a courtesy copy of a letter dated January 15, 2004 addressed to Heidi Griffin, Director of the Community Development Office. I am available to attend any meetings and/or provide further information. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and attention to this important matter. Sincer K' o stantinos "Dino" Balos Attachments cc: Zoning Board of Appeals Attorney Thomas J. Urbelis, Town Counsel Attorney Matthew C. Donahue NORTH ANDOVER ZONING BY—LAVI - 1972 CONTENTS r _'�rP; >. r - Page <Section 1 PURPOSES Section 2 DEFINITIONS 2 ion3 ZONING DISTRICTS AND BOUNDARIES 8 SFy 3.1 Establishment of-Districts t: 3.2 Zoning Map f� c 3.3 District Boundaries �.�x Section 4 BUILDINGS AND USES PERMITTED 9 ^� X 4.1 District Use Regulations 4.2 Accessory Uses cc P, 4.3 Access to Buildings Table 1: Summary of Use Regulations 26 Section 5 EARTH MATERIALS REMOVAL 27 Section 6 DIMENSIONAL REQUIREMENTS 29 6.1 Lot Areas 6.2 Street Frontage 6.3 Yards (setbacks 6.4 Building Heights 6.5 Lot Coverage 6.6 Floor Area Ratio 6.7 Dwelling Unit Density 6.8 Exceptions Table 2: Summary of Dimensional Requirements 32 Section 7 SUPPLEMENTARY REGULATIONS 33 7.1 Off—Street Parking 7.2 Automobile Service Stations and Other Automotive Services Section 8 NON—CONFORMING USES 37 8.1 Continuance 8.2 Alteration or Extension 8.3 Rebuilding After Catastrophe 8.4 Abandonment . 74813 Alov . )972 c) On any lot of at least ten (10) acres, the keeping of any '= number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. M1 . d) The sale of products raised as a result of the above uses on the subject land. (14) Parking, indoor storage and other accessory uses associated with the above uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. 4.128 General Business District (1) Retail stores and wholesale stores, salesrooms, funeral parlors, showrooms or places for any professional, artistic or mercantile activity, not involving manufacturing, also retail bakeries or retail confectioneries. (2) Banks, offices and municipal, civic or public service buildings such as post office, telephone exchange, town offices, school, library, museum, place of worship, local passenger station. (3) Hall, club, theatre or other place of amusement or assembly. (4) Automobile service and filling stations, automobile storage and repair garages including automobile body repairs and painting, and automobile sale agencies for new and used cars provided there be not displayed or stored outdoors on such premises more than twenty—five (25) automobiles or other vehicles. (5) Restaurant, dining room or lunch room. (b) Residential use where such use is not more than 50 percent of the total floor space in the structure. (7) Any accessory use customarily incident to any of the above per— mitted uses, provided that such accessory use shall be not in— jurious, noxious, or offensive to the neighborhood. 4.129 Industrial 1 District (1) Research and development facilities. (2) Business, professional and other offices. (3) Limited retail, personal service and eating and drinking use shall be permitted in an amount not to exceed five percent of total gross floor area of the principal uses. 1 —21— (4) Place of worship. I (5) Nonprofit school or private school for profit. 1i (6) Public building or use and public service corporation. ;� x (7) Medical center, clinic or medical laboratory. (8) Art gallery or museum. (9) Swimming and/or tennis clubs shall be permitted with a Special Permit. x_ (10) Printing and reproduction. (11) Helistop (defined .as a landing and take—off place for a helicopter but not including facilities for storage or major repair of heli— copters). elicopters). Special Permit required. i (12) Light manufacturing including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise, provided such uses are conducted offensive within noxi.ous,ldetrimentalg and uro�her provided that such uses are no dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. (13) a) Farming of field crops and row crops, truck gardens, orchards, plant nurseries, and green houses. b) On any lot of at least three (3) acres, the keeping of a total of not more than three (3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to nine (9) acres the keeping of one additional animal or bird; but not the keeping of any animals, birds, or pets of persons not resident on such lot. c) On any lot of at least ten (10) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. t d) The sale of products raised as a result of the above uses on the subject land. { (14) Warehousing and wholesaling shall be permitted only as a secondary use. (15) Golf course. (16) Parking, indoor storage and other accessory uses customarily above uses associated with the ab t Provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. { —22— f Table 1 SUMMARY OF USE REGULATIONS t: Permitted Use Res. Res. 4 Res 12& A-B-s- Bus.5 Bus. 1 Bus. 4 Gnsral Ind. 1 Ind. 2 ;nd. S A icultural Usel Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Art Gallery N No No Yes Yes Yes Yes Yes Yes Yes No Auto service station No N No N Yes Yes No Yes No Yes SP Auto & vehicle re- air, body shop No No No No No No No Yes No Yes No Bus garage No No No N No No �NoYes No Yes Yes Ri??ccsgss k other No No 1 No No Yes Yes YesYes Yes Yes Car wash No No N No No No Noes No Yes No Cemete Yes Yes Yes No No No No No No No No f lagEt d iVcing No N Nol Nol Yes Yes Not Yes Not Nol SP Funeral 2E12r N No No No Yes Yes Yes No No No Golf course Yes Yes Yes No No No No No Yes Yes Yes Guest house No Yes Yes No No No No No No No No Helistop No No No No No No No No SP SP No nd o�r place amus en� assemg No No No No Yes Yes No Yes No No No Lumb r fuEl or or crbntrac or'��S s�� No No No No NO No No Yes No Yes Yes Manufacturin No No No No No No No No Yes Yes Yes Medical centerl No No No No Yes Yes Yes Yes Yes Yes No ". Motel or hotel No No SP No No No Yes No No No No an3ta aLt ehtswelling No No Yes Nol SP No No No No No No New car salesl No No No No No Yes No Yes No No No Nonprofit school Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes escs4ghomss°��- SP SP SP No No No Yes No N No No One-family dwelling Yes Yes Yes No No No No No No ''���` No No P5Ej8Tfhg ce No No Not Yes Yes Yes No Yes NO No I No Place of worship Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Pd�icg& repro- No NoZNNo Yes Yes Yes Yes Yes Yes Yes S�rv �fi€hool Yes YesNo Yes Yes Yes YesYes Yes Yes Professional offices No NoYes Yes Yes Yes Yes YesYes Yes orbu s buildingSP SPYes Yes Yes Yes Yes Yes Yes Yes Recreation areas SP SPSP SP SP SP SP SP SP No ssscIgslop- No No No No No Yes Yes Yes Yes Yes Yes Retail establishment Vo No No Yes Yes YesNo Yes No N 1 No Roominghouse Yes Yesl Yesl No No No No�No No No No Taxi de t No No No No Yes Yes NoNo No No Town houses N Yes Yes No SP No NNo No No Two-familydwellin No Yes Yes No No No No No No No No Rhe� � hospital No No No No No No No No No Yes No wiogesoa ng and No No No No No No No Yes Nol Yes yes I See detailed district use regulations. SP - with Special Permit only. NOTE: This chart is for summary informational purposes only and is not a substitute for the detailed district use regulations contained in Section 4 of this By-law. -26- L• JUL i�; II a Hf, 'fl1 , TOWN OF NORTH ANDOVER MASSACHUSETTS PLANNING BOARD Y APPLICATION FOR SPECIAL PERMIT r NOTICE: This application must be typewritten Applicant Channel Building Company, Inc. Address 23 Main St/P.O. Box 522, Andover, MA 0181 . 1. Application is hereby made (a) For a Special Permit under Section 8.3.7, Paragraph 2 of the Zoning By-Law, 2. (a) Premises affected are, land X and buildings X numbered Bayfield Drivex (b) Premises *affected are property with frontage on the North_ South_ East West side of P.ayfield Drive S:txie6vA, and known as NO-11 Bayfield Ocive (c) Premises affected are in Zoning District I-1 and the premises affected E have an area of 4.38 acres and frontage of 1,500 feet, f 3. Ownership: (a) Name and address of owner (if ,joint ovniership, give all names): Material Installations, Inc-m Bayfield Drive, North Andover, MA 01845 Date of purchase 1984 Previous Owner 114 Associates (b) If applicant is not owner, chock his interest in the premises: Prospective purchaser Lessee X Othor (explain) Owner's representative 4. Size of proposed building: 162 ± ft. front; 120 ± feet deep Height: 1 stories; 21 feet. (a) Approximate date of erection August 1987 - April 1988 (b) Occupancy.or use (of each floor) Expansion for the assembly and live storage areas of the existi tiq facility (c) Type of construction Metal frame - 2C - unprotected, non-combustible 5. Size of Existing Building: 245 ± feet front; 125 ± feet deep Height: 1 stories 21 feet. (a) Approximate date of erection 1985 (b) Occupancy or use (of each floor) Light industrial: officps, assembly and storaoe areas for office partition systems components (c) Type of construction metal frame - 2C - unprotected, non-combustible 6. Has there been a previous application for a Special Permit from the Planning Board on these premises? no. If so, when site plan' review ,under old zoning 7. Description of purpose for which Speoial Permit is sought on .this petition: Material Installations wishes to expand the assembly and live storage areas of. their facility by approximately 18,200 s.f. The project will provide parking for 20 additional cars. A special permit is required for construction of a build- ins with over 10 parking spaces in an industrial zone. (over) 8. Deed recorded in the Registry of Deeds in Book 1975 Page 333 or Land Court Certificate No. Dook Page 9. The principal points upon which I base my application are as follows: (must be stated in detail) The proposed addition complies with the provisions of'the zoning by-law. From a functional standpoint, it will improve truck,circulation on Bayfield Drive and also provide for a fire lane which conforms to the latest recommenda- tions of the North Andover Fire Department. The addition will continue the at- tractive contemporary design aesthetic of the existing structure which is also characteristic of the development. I agree to pay for adv r'tieing in newspaper and postage fee for mailing legal notices to "Parties in iuterest". Petitioner's siattu-e Every application for action by the Board shall be made on a form approved by the Board. Those forme sha11 be fiu-nished by the Clerk upon request. My oommunioation purporting to be an applioation shall be treated as more notioe of intention to.seek relief until such time as it is made on the official applioation form. All information called for by the form shall befurnished by the applicant in the manner therein prescribed. Every application shall be submitted with a list of "Parties in Interest" which shall include the petitioner, abutters, owners of land direotly opposite on any publio or private street or way and abutters to the abutters within three hundred (300) feet. of the property line all as they appear on the most recent applicable tax list, notwith- standing that the land of any suoh owner is located in another oity or town, the Plan- ning Board of the town and the planning board of every abutting city or town. LIST OF PARTIES IN INTEREST UQLC ADDRESS \. Robert E. Webster Leo P. & Rose M. Beninato 20 Main Street 10 Kathleen Drive Andover, MA 01810 Andover, MA 01845 \. Stephen J. & Madeline N. Bilicki Francis &,%,Tune M. Walsh 278 Newbury Street 12 Kathleen Drive Peabody, MA 01960 Andover, MA 01845 \ Morton Margolis Joseph B & Fratda R._1Coffman _.... Andover By-Pass 14 Kathleen Drive North Andover, MA 01845 Andover,-MA 01810 Irene Saliba. 114 Associates Realtv Trust 4- Kathleen Drive R. Webster & B. Osgood, Trustees Andover, MA 01810 2 Elm Square Andover, MA 01810 Leverette J. & ANita F. Zompa 6 Kathleen Drive Atlee of Delaware Andover, MA 01810 Willow Street Extension North Andover, MA 01845 Folios Barounis - 8 Kathleen Drive Andover, MA 01845 ADD ADDITIONAL SICCCTS I IF NECESSARY. -cc AICS -0 -I]K-NC-D CO F�V�3 Uq Z'2J 2,'2) S-0 2,-21 eD I- I lac• �c4 LAND SHOWN ON THIS PLAN SUBJECT TO SUB- P�&gesO .D DIVISION COVENANT BETWEEN VIN ASSOCIATES _ INDEX OF DRAWINGS �C / REALTY TRUST AND NORTH ANDOVER PLANNING BOARD DATED SEPT.10,1984 TO BE RECORDED NOD of SHEETS DESCRIPTION +rJ HEREWITH s�.QraiChct0C-y a. er \ / NOTES: 1•i • A LrNI / I TIE Ow1ER RRM.L RETAIN TITLE TO TE TEE O EACH STREET, a>A.fy t Dn.t \ MTN OR E VXNT N OA APPAi TEHIANT ro TIE SA9tMVUKN I a.wr,a Nr,urr n. TM) N UNrILL CONYETED ro TIE TONIN AW SHALLAANUIN AND REJ'AII tuu'' THE ROADS AND ORAPAGE FACAJTiEe N AMANA lATHSFACroRrNPI TO THE PLAMM BOARD DiSUNO THAT PERIOD. y'�'- LEGEND / ENSION VIVA TE- / IA E APPROVAL OF THIS SUBDIVISION ODER THE PLANac BOARDS p--_DENortt.Runt Poco r0.! C / RU E1 THE B REDXAT DOES NOT RELIEVE E APP I:ANT/ Xr _ G MHER/DEVELOPER OF THE RESPoNSaRY TO BIWA PROPER" � �• 5 FEEL / DwFHDIPHOSE wn�MAY MBE DIREECSRORrwE�nTey APPROVAL UDER SU60NVRSDN CONTROL ARGE.t LAW NOT REWIRED. ANDOVER PLANNING BOARS /.. 9 'c.c1 DATE' �,"'T_' ♦, ARF LOCUS \ r / \ LOT 1 AC. L-I ���eE 7_•oC / \\ ARu•-A/ e X531 / 9u•j IDV/��� / \\ / F SSE_' it/rDOYfR. . •. ��frrtA •Y/A'MtiPOquJ � \ \�/ \ \ LOCUS MAP s—E:r..w REFERENCE / ,do• / PERIMETER PROPERTY INFORMATION COMPILED FROM I HEREBY CERTIFY THAT Iq NOTICE aF APPEAL PLAN OF LAND IN NORTH ANDOVER S ANDOVER NTY WAS RECEIVED 01R0 THE TWIN"DAYS NEXT / ��•/ �� / DATED OCT 4,1983,PREPARED BY NAYFS DNGNEERING EERINC AFTER RECEFT AND RECORDMO OF NOTICE FROM /< / INC FOR IN ASSOCIATES REALTY TRUST. THE PLANNING BOARD OF THE APPROVAL OF '�PF+.T 2 �ffT �� PROPERTY REFERS TO TOWN PLATT*980 S*20. THIS RLN. Gwf.Fc ` ��� D�)r IO' AVF SYA105EK ELEVATIONS REFER TO US.C.9G.S.DATUM. CITY CLERK .LbGa —Jy�-•'^-=L�- Dr yI , l - ION BENCH MARK:MANHOLE RW AT STA2NTS,ELEV.21291. DATE /l 4D-7y ` ; G,pT¢ I CERTIFY THAT THE PREPARATION OF THIS PLAN O P'11 r�11C CONFORMS WITH THE RULES AND REGULATIONS OF •P/ / P THE REGISTERS OF DEEDS.DATED JANMRY 1,19M E < /<O .F �T w "�E•f.T S LOT f0 REG.LAND SURVEYOR,44f?"�•- "<9fV / `E 6j'I'C A.FZ4•G6lAC. DATE_2-3e-OT 1 1 0 APPuuwr s OWNER ' 4 O 9 3 0 IN ASSOCIATEREALTY TRUST 3 ELY SQUARE t NORTH ANDOVER A'Y�O -Ac• / .au•sso'+.Fc tiTANSQUARERDOVER,MILTS. t# PLANNING BOARD 9 Brp'QS � s4aENORTH ANDOVER BUSINESS PARK NORTH ANDOVER,MAD LA rJ� F /?s TOMS LI \` KEY PLAN VIN Im Too ER_ -- i Aw.NDORE AfgtJATYI WC (tu.. MAre B-n-A� faaA w r[R CM2 R oorIPYLTPN Iwwr,AgR 1••100• MC[r jar j DATES �O�t,. cFi+cpwL NPAwsAv/� urllDrm: wrc 02/05/2004 15:18 FAX 617 542 2241 MINTZ LEVIN 1A 001 MINTZ�/� � a1tOn •'"-E`JIN Bworbington One Finawrid Cedtcr CO�iN 1�ER �� Reitan Dairen,Mwacbarew 02111 1�.[�.a Nem Yark 617 542 6000 GT <J ovsky�� 617 542 2741 fax J.. Now I�ionen Lot�4n8elaF wmd.mintZ.ram ��� FI� London Fax Cover Sheet DATE: February 5,2004 FROM: Benjamin B. Tymann Din3ct Diad 617 2106853 btylrlann@mintz.com To: N. Andover 2:oning r8'-688-9541 (978)688-9542 Board of A peals MESSAGE: We are sending a total of 5 pages,including this cover sheet, Please call us at 617.348.4966,if you experience any problems. STATEMENT OF CONFIDENTIALITY THE INFORMATION CONTAINED IN THIS FAX TS INTENDED FOR THE EXCLUSIVE USE OF THE ADDRESSEE ANI)MAY CONTAIN CONFIDENTIAL OR PFi V ILEGED INFORMATION. IF YOU ARE NOT THE DnM41)ED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY FORM OR DLSSININATION OF THIS COMMUNICATION IS STRICTLY PROHIIMITED. IF THIS FAX WAS SENT IN ERROR., PLEASE IMMEDIATELY NOTIFY US BY PHONE. FEB b 2004 BOARD OF:APPEALS 02/05/2004 15:18 FAX 617 $42 2241 MINTZ LEVIN IA002 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P,C. One Financial Center Boston,Massachusetts 02111 Benjamin 8.Tymam► 617 542 6000 617 542 2241 fax Direct drat 617 210 68'+3 btymann®mintz.com February 5,2004 BY FACSiMILK AND FIRST CLASS WAIL Chairman Albi,rto Angles,Jr. North Andover Planning Board Town of North Andover 27 Charles Str,'.et North Andova-,MA 01845 Re: iWalerial Installation, Inc. 's Special Permit of August 31, 1987 Dear Chairman Angles: As you may know, a hearing was held before the North Andover Zoning Board of Appeals on January 13, 2004 relative to Konstantinos Balos' appeal of the decision of Commissioner Nicetta that my client,Material Installations,Inc_,is in full compliance with the Planning Board Special Permit of August 31, 1987 governing operations at Material Installation's headquarters at 11 Bayfield Drive(the"Special Permit"). During that ZBA hearing,Acting Chairman Soule stated that,per the request of Mr.Balos,the Planning Board would be asking Town Counsel Urbclis to render an opinion on the question of whether the Special Permit can be revised unilaterally by the Planning Board despite Material Installation's full compliance:with each of the Permit's terms and conditions. I do not know whether your Board yet has asked for,let alone received, Attorney Urbelis's opinion on this legal question. Nonetheless,I write to explain the reasons why the law clearly does nor permit a planning board to revisit,or consider substantive revisions to,a special permit granted sixteen and a half years ago by a predecessor planning board. Asou know,a y special permit is a property right granted to a landowner. See G.L.c. 40A, § 9. Of course,a permit granting authority that issues a special permit may make the property right-it is conveying to the special permit holder subject to conditions,including "limitations on,time." Id. Once a permit granting authority decides to issue a special permit with whatever conditions it has included,then files its decision with the town clerk,that"final action,"G.L.e.40A, § 17,is subject to an appeal period of only 20 days. Id. Any such challenge to the special permit--whether by an aggrieved private party or"any municipal officer or board,"id.--must occur within that twenty-day period. "Th f is] remedy shall be exchisive,"the statute says_ Id. (emphasis added). D U It.2ston Washington Reston New York New Haven Los Angeles London t FEB J 2004 BOAP'D ar APPEALS 02/05/2004 15:18 FAX 817 542 2241 MINTZ LEVIN 10009 MUM,UVIN,CORN,FEws,GLOVSKY AND POPEO,P.C. Chairman Angles February 5,2004 Page 2 Here,the Planning Board granted Material InsWations the Special Permit,unlimited in time,in 1987. No one appealed that Special Permit. Mr.Balos cannot now attack the Special Permit,years after the fact,by asking your board to revise it. The decisions of Massachusetts courts that have treated the issue of the finality of a special perntir,are as unambiguous as the statutory language that those decisions interpret. In lodiee v. Cit of Newton,for example,the Supreme Judicial Court held that"by its plain language,.Section 17 establishes that a person aggrieved by a decision of a special permit granting authority must seek review of that decision,if ar all,within twenty days of the filing of the decision ni question_" 397 Mass. 329,333 (1986)(emphasis added); see also.M Eldercare Services. Inc. v.Zoning Bd. of ApReals of Hingbarn. 17 Mass.App.Ct.480,482(1984))- Lincoln 1984);Lincoln v.Board of Appeals of Framingham,346 Mass. 418,420(1963)(both cases holding that the exclusive remedy for undoing board of appeals'decisions is the statutory 20-day appeal). The Supreme Judicial Court has been just as unequivocal in reiterating the Legislature's rationale for strictly limiting the ability to attack property rights enshrined in a special permit: the holder of<<special permit,like Material Installations, "_chould be able to rely on the decisions of....special perinitgranting authorities which have not been challenged within a limitedperiod." Iodice.397 Mass. at 334(emphasis added). Massachusetts courts take this legal principle so seriously as to treat compliance with Section 17's twenty-day appeal provision as"a condition of maintaining"a challenge to a special permit and a requirement that is "`policed in the strongest way.` Bonfatti Y. Zoning Bd_of Appeals of Holliston,48 Mass. App. Ct.46,50(1999),quolin Cappuceio v. Zoning Bd. of Ap2eals of Spencer,398 Mass.304,311- 312(1986). I11 fact,as recently as 2001,the Appeals Court upheld a trial court's decision that invalidated a I.-gal challenge to the issuance of a special permit by an abutter because that abutter was 15'minutes late in filing a copy of her appeal with the Town Clerk as required under [the twenty-day appeal provision. Bingham v. City Council of Fitchburg,52 Mass.App. Ct. 566,556-67(2001)("Harsh as it may seem,"there was no"wiggle room"under the statute to allow this slightly late filing). If one who wishes to undo a special permit cannot do so because she started her challenge 15 minutes after the moment the permit holder could rely on it as final, surely either Mr.Balos or the Planning Board would be barred from doing so sixteen and half years after that deadline. In a Superior Court case where,like here,a neighbor came forward to request revision or reversal of a property right that was granted to a land owner nearly a decade earlier,the Court, in rejecting that challenge,applied these same principles safeguarding a property owner's ability to rely on the property rights already conveyed to him by government authorities. Allison v. Barberry Hom.s.Inc., 12 Mass.L.Rptr. 138(Mass.Super. Ct.Aug. 1,2000)(Sosman,J.). In that case,however,the property right that the Court protected from that extremely tardy legal challenge was a license,a far less enduring property right than a special permit. The holding of 02/05/2004 15:18 FAX 617 542 2241 MINTZ LEVIN 0004 Mzm,LEVIN,COHN,FERRIS,GLOVSKY AND POPEO,P.C. Chairman Angles February S,2004 Page 3 then-Judge(now Supreme Judicial Court Justice)Sosman in the Allison case is particularly apt to the situation the Planning Board faces with Mr. Balos who--in addition to claiming that Material Instillations is a nuisance to him even though he bought his home well after my client received its special permit and began its warehousing and assembly operations"—apparently hopes that this Board will add new conditions or otherwise revise Material Installations' Special Permit based solely on the notion that,in 1987,a predecessor Planning Board could have added different conditions or otherwise reached a different result. Rejecting this same theory in Allison,then-Judge Sosman stated- Th[q] limitation [that a license should be used in compliance with its terms] does not mean that disgruntled neighbors may,under a nuisance theory,reopen the underlying[] proceedings that led to the issuance of the license to see whether,with hindsight,the license terms could have been crafted differently. ...Challenges to the wisdom or propriety of a[license-granting authority]'s decision must be brought before the [authority] and addressed in any judicial review of the [authority]'s decision. The law of nuisance is not a mechanism for disturbing a[] decision that has long since become final. 12 Mass. L.Rptr. 138. As this letter demonstrates,the law is clear that Material Installation's property rights under the Special Permit cannot be unilaterally revised or reversed sixteen and a half years after those rights were granted. Were that ever to occur,such action would constitute a taking,for which Material Installations would be entitled to compensation. When the 1987 Planning Board issued the Special Permit to Material Installations it did not,as it could have,limit the Permit's duration;rather,it conveyed to Material Installations an indefinite property right. That property right then became final at the moment that the"exclusive remedy"for anyone wishing to challenge the Permit expired. Material Installations,which has been an outstanding corporate citizen and tax))ayer in North Andover since 1987,relies on the Special Permit as vital to its business and,as Commissioner Nicetta correctly determined, is in full compliance with it. Therefore,I re:;pectfully urge the Planning Board not to pursue the futile course suggested by Mr.Balos. lCloming to a nuisance...is a significant factor"weighing against a prospective plaintiff's nuisance claim, particularly where the plaintiff knew or should have known of the type of commercial use taking place on an adjoining property at the time he moved to the neighborhood- Escobar v.Qntinental Baldng Co.,33 Mass.App. Ct. 104, 110(1990_ 02/05/2004 15:19 FAX 617 542 2241 MINTZ LEVIN @1005 C MINu,UVIN,470HN,FERRIS,GLOVSKY AM POPEO,P.C. Chairman Angles February S,2004 Page 4 If I can answer any questions or provide any additional information of this matter,please do not hesitate;to contact me. Thank you for your attention to this matter. i Ien yo in B. ann cc: Planning Board members Zoning Board of Appeals members D. Robert Nicetta,Building Commissioner ThomE,J.Urbelis,Esq.,Town Counsel Mark Rees,Town Manager Mr.Konstantinos Balos Mr.M;,rhael Farrow LIT 1440733v1 URBELIS&FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 THOMAS I URBELIS Telephone 617-33&2200 Andover e-mail tju@ufb.com Telecopier 617-338-0122 Telephone 978-4754552 January 20, 2004 E Heidi Griffin ' North Andover Town Offices 27 Charles Street North Andover, MA 01845 RE: DIINO BALOS Dear Heidi: This is in response to your letter dated January 14,2004 and your inquiry about procedures for a request by an abutter for a modification of substantive conditions to a site plan special permit which has been in place for about 17 years. If the special permit granting authority is requested by the recipient of the special permit to modify a condition, Huntington v. Zoning Board of Appeals of Hadley, 12 Mass. App. Ct. 710 (1981)would suggest that, under certain circumstances,the permit granting authority might have the authority to do so assuming that the relevant notice and hearing requirements were met. r However, with regard to a modification of a substantive condition(and not an inadvertent or clerical error) of a special permit sought by the board on its own motion or at the request of other parties, I could find no definitive ruling which authorizes such a modification. The court in Huntington, specifically did not decide on such authority. In Solar v. Zoning Board of Appeals of Lincoln, 33 Mass. App. Ct. 398 (1993),the Appeals Court ruled that a board was not free to modify, on its own, a special permit to make it conditional upon ownership of the land(a new policy of the board) when the original special permit was subject to three-year automatically renewable terms. Please call if you have any questions or if there is anything else that you need. Very truly yours, Thomas J. �Kelis r.J TJU/lah cc: D. R i ert Nicetta J[N' 2 �� 200.4, s.ap"SI`�vti .�_dinobacos.doc - _._ 00 January 15, 2004 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Community Development Office Heidi Griffin, Director 27 Charles Street North Andover, MA 01845 Fax: 978-688-9542 Subject: Planning Board Conditional Approval - Special Permit Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. Dear Ms. Griffin: This letter is a follow-up to my December 1St letter and our January 8, 2004 meeting regarding the Special Permit for Material Installations. As you are aware, the present matter regarding zoning violations is before the Zoning Board of Appeals (ZBA). During the January 13, 2004 ZBA hearing, Acting Chairperson Walter Soule stated that the ZBA is waiting for a legal opinion from town counsel regarding the ;Special Permit. The following details pertain to the Special Permit. PLEASE FORWARD THIS LETTER AND ALL ATTACHMENTS TO TOWN COUNSEL. Section 4.132, of the North Andover Zoning By-laws states the following: Paragraph 13. Warehousing and wholesaling shall be permitted only as a secondary use. Note: 4.133 (Industrial-II) identifies "Warehousing and wholesaling" as a permitted use. Note: The text of the 1987 and 2002 zoning bylaws re: Industrial-1 districts is identical to the original 1972 version. (see attachment) The Articles of Incorporation dated December 4, 1980 states the following under purpose: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." (see attachment) According to the U.S. Labor Department, the nature of this industry (warehousing) includes trucking. The DOL also indicates that there is a "blurring distinction" between "trucking and warehousing." (see attachment) According to the North Andover Building Assessor's Department, Material Installations is categorized under "State-Use-CD" as " 401-Warehouse" and under "Use-Code" as "325 - Distrib - Whse." (see attachment) The Merrimack Valley Planning Commission (MVPC) identifies the "Primary Business" of Material Installations as "Office Furniture and Equipment Installation (Whol)." The i Page 2 of 5 MVPC also lists "5021-22" under "SIC (Standard Industrial Classification) Code" (see attachment). According to the U.S Department of Labor (DOL), the SIC Description for 5021 is "Wholesale Trade . . . primarily engaged in the wholesale distribution of furniture . . ." According to the DOL, "transportation and material-moving occupations, most of whom are truck drivers and material movers comprise one of the largest occupational groups in the industry." (see attachment) According to town records, an Application for a Special Permit was submitted to the North Andover Planning Board on July 14, 1987 for Material Installations. The application identifies the following: • Under' the heading "2(c) Zoning District," the application states "I-1. " • Under the heading "3. Ownership," the application lists "Material Installations, Inc., 11 Bayfield Drive, North Andover, MA 01845." • Under the heading "4(b) Occupancy or use," the application states: "Expansion for the assembly and live storage areas of the existing facility." • Under "5(b) Occupancy and use," states: "Light industrial: offices, assembly and storage areas for office partition systems components." • Under "7. Description of purpose," the application lists "Material Installations wishes to expand the assembly and live storage areas of their facility by approximately 18,200 s.f. The project will provide parking for 20 additional cars. A special permit is required for construction of a building with over 10 parking spaces in an industrial zone." • Under "9. The principal points," the application states "The proposed addition complies with the provisions of the zoning by-law." (see attachment) Note: The Special Permit Application does not list the "warehouse, transport and deliver" language contained in the company's Articles of Incorporation. The Zoning by-laws do not contain the term "light industrial" as listed in the 1987 Special Permit Application. A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes residential abutter concerns with regard to "activity at night," "trucks," "noise" and "lights." (see attachment) During the Planning Board Meeting's Site Plan Review (August 3 & 17, 1987) the use of "evergreens and fencing to be looked into for possible noise barriers" as well as "the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer" were inputted. (see attachment) During the Planning Board's conditional approval of the Special Permit (September 3, 1987), in response to noise concern, proponents, "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." The Conditional Approval includes a landscape plan with a "row of planted arborvitae to the rear of the building" as well as "a six (6) foot closed stockade fence be erected along the property line." (see attachment) Page 3 of 5 Expert research indicates that the aforementioned noise barriers are ineffective in that it only provides psychological relief and does not physically lessen noise. The Federal Highway Administration (FHWA) indicates that "Vegetation, if high enough, wide enough, and dense enough (cannot be seen thro,:egh), can decrease highway traffic noise. A 200 foot width of dense vegetation can reduce noise by 10 decibels, which cuts the loudness of traffic noise in half. (see attachment) According to the FHWA, effective noise barriers must be high enough and long enough to block the view of the source of noise. Paragraph 9 of the Special Permit states " . . . any changes from these approved plans . will negate this Special Permit and will require a new filing of application." Building Commissioner's Denial A letter dated August 25, 2003, from the building commissioner/zoning enforcement officer indicated that "the Planning Board Decision of 1987 does no-: place any restriction on the type of business . . . at the Industrial-1 site. In fact the August 31St decision gave the business permission `to expand the assembly and live storage areas in an existing building' . . " (see attachment) This implies a variance to paragraph 13 of section 4.132 (Industrial 1 District) of the zoning by-laws that state that "warehousing and wholesaling shall be permitted only as a secondary use." According to Mass. Gen. Laws. Ch.40A, § 15 "variance power is given only to the Board of Appeals." Section 10.4, Variances and Appeals, of the zoning by-laws state "the Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw." Note: Town records indicate that there is no variance to the terms of paragraph 13 of section 4.132 (Industrial 1 District). The properties in the Meadowood neighborhood are zoned as "Residential-6." They are distinctly residential consisting of single-family homes. Furthermore:, there are no access roads between the two districts. The 1972 zoning map indicates the land presently occupied by the Meadowood development as residentially zoned. The map also shows the land occupied by Material Installations zoned as "Industrial-1." (see attachment) Impairment to Neighborhood The shipping activity at Material Installations, which primarily involves the use of trucks, has become a nuisance to its residential neighbors. This ha made the backside of my home unsuitable for quiet enjoyment. Research supports that noise is a health hazard, not just a nuisance. According to the Environmental Protection Agency (EPA), research is accumulating which suggests a Page 4 of 5 relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. North Andover Police Department records indicate noise complaints against Material Installations from at least early 1998. Mass. Gen. Laws ch. 214, § 7A defines "damage to the environment' to include "air pollution." The Department of Environmental Protection (DEP) defines air pollution as: the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: a) cause a nuisance b) be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business. Mass. Regs. Code tit. 310, § 7.00. et seq. The DEP regulations also prohibit the unnecessary idling of a motor vehicle while it is stopped for more than five minutes. As highlighted in my previous correspondence, Material Installations far exceeds the five-minute idling limit on a routine basis. In addition, to the noise impairment on the neighborhood, there is also concern about the health effects associated with exposure to diesel exhaust. According; to the EPA, unnecessary idling causes pollution. This includes the emission of :significant amounts of pollution including: carbon dioxide, nitrogen oxides and volatile organic compounds, both of which contribute to the formation of ozone smog; poisonous carbon monoxide; and particulate. (see attachment) The town has a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Davis v. Sawyer, (133 Mass. 289, 290, 43 Am. Rep. 519), the Supreme Court of Massachusetts said "'Noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance." The Massachusetts Supreme Court (Ferriter v. Herlihy, 287 Mass. 138) stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others." In Shea v. National Ice Cream Co., Inc., (280 Mass. 206, 211) the court said, "'the defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to sleep at night in their own homes." Furthermore, in Weltshe v. Graf (323 Mass. 498), plaintiff landowners and the defendant trucking company were located at the boundaries of a district zoned for business and a district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin defendant-trucking company from operating its business as a nuisance due to truck terminal noises. The Massachusetts Judicial Supreme Court ordered that a decree be entered in favor of the landowners enjoining the trucking Page 5 of 5 company from shipping-related activity. The court also affirmed that a "zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." Request for Planning Board Hearing I submit to the Board that the Material Installations property is not used in accordance with the terms of the Special Permit in that it is a wholesale/warehouse business. As previously indicated, the Articles of Incorporation (1980), which precede the Special Permit Application (1987), describe the purpose of Material Installations as: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." In addition, the aforementioned town and MVPC records further support that Material Installations is a wholesale/warehouse business. The current use (warehouse/wholesale) is a significant change from the Special Permit use (assembly and live storage) which does not identify "warehouse, transport and deliver" as a permitted use. The zoning by-laws state "Warehousing and wholesaling shall be permitted only as a secondary use." As indicated in condition #9 of the Special Permit: " . . . any changes from these approved plans and that may be shown on the As- Built Plan submitted for approval prior to occupancy will negate this Special Permit and will require a new filing of application." It is requested that appropriate action be taken in order to implement an effective noise barrier as originally intended during the 1987 Planning Board hearings. It is also requested that actions be coordinated with the Zoning Board of Appeals as necessary. I am available to attend any meetings and/or provide further information. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and attention to this important matter. Sincerely, Konstantinos "Dino" Balos Attachments cc: Zoning Board of Appeals Planning Department Board of Selectmen Assistant Town Manager Attorney Matthew C. Donahue NORTH ANDOVER ZONING BY—LAW — 1972 CONTENTS ,1, �r��Yt y.Y:CyraaFi:.Y•' _ Page Section 1 PURPOSES 1 Section 2 DEFINITIONS 2 p .. Section 3 ZONING DISTRICTS AND BOUNDARIES 8 3.1 Establishmenf Districts `� 3.2 Zoning Map I� yygg� ` _ 3.3 District Boundaries Section 4 BUILDINGS AND -USES PERMITTED 9 7 ^ J 4.1 District Use Regulations 4.2 Accessory Uses Cc p, q 4.3 Access to Buildings Table 1: Summary of Use Regulations 26 Section 5 EARTH MATERIALS REMOVAL 27 Section 6 DIMENSIONAL REQUIREMENTS 29 6.1 Lot Areas 6.2 Street Frontage 6.3 Yards (setbacks 6.4 Building Heights 6. 5 Lot Coverage 6.6 Floor Area Ratio 6.7 Dwelling Unit Density 6.8 Exceptions Table 2: Summary of Dimensional Requirements 32 Section 7 SUPPLEMENTARY REGULATIONS 33 7.1 Off—Street Parking 7.2 Automobile Service Stations and Other.Automotive Services Section 8 NON—CONFORMITIF, USES 37 8.1 Continuance 8.2 Alteration or Extension 8.3 Rebuilding After Catastrophe 8.4 Abandonment .74813 c) On any lot of at least ten (10) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d) The sale of products raised as a result of the,•above uses on the subject land. (14) Parking, indoor storage and other accessory uses associated with the above uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. L..128 General Business District (1) Retail stores and wholesale stores, salesrooms, funeral parlors, showrooms or places for any professional, artistic or mercantile activity, not involving manufacturing, also retail bakeries or retail confectioneries. (2) Banks, offices and municipal, civic or public service buildings such as post office, telephone exchange, town offices, school, library, museum, place of worship, local passenger station. (3) Hall, club, theatre or other place of amusement or assembly. (4) Automobile service and filling stations, automobile storage and repair garages including automobile body repairs and painting, and automobile sale agencies for new and used cars provided there be not displayed or stored outdoors on such premises more than twenty—five (25) automobiles or other vehicles.. ( 5) Restaurant, dining room or lunch room. (6) Residential use where such use is not more than 50 percent of the total floor space in the structure. (7) Any accessory use customarily incident to any of the above per— mitted uses, provided that such accessory use shall be not in— jurious, noxious, or offensive to the neighborhood. 4.129 Industrial 1 District (1) Research and development facilities. (2) Business, professional and other offices. (3) Limited retail, personal service and eating and drinking use shall be permitted in an amount not to exceed five percent of total gross floor area of the principal uses. 1 --21— (4) Place of worship. (5) Nonprofit school or private school for profit. and public service corporation. s' (6) Public building or use (7) Medical center, clinic or medical laboratory. (g) Art gallery or museum. (9) Swimming and/or tennis clubs shall be permitted with a Special Permit. (10) Printing and reproduction. (11) Helistop (defined .as a landing and take—off place for a helicopter but not including facilities for storage or major repair of heli— copters) . Special Permit required. (12) Light manufacturing including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise, provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. (13) a) . Farming of field crops and row crops, truck gardens, orchards, plant nurseries, and green houses. b) On any lot of at least three (3) acres, the keeping of a total of not more than three (3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to nine (9) acres the . one oropetpslrthe ll of any animals, birds, osoferonsnot resident on such lot. c) On any lot of at least ten (10) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d) The sale of products raised as a result of the above uses on the subject land. (14) Warehousing and wholesaling shall be permitted only as a secondary use. (15) Golf course. (16) Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. i —22— (9) Warehousing and wholesaling. (10) Lumber or other building materials storage or sales, fuel storage, or contractor's yard, provided all outdoor uses are enclosed by a fence of five feet or more in height. (11) Bus garage. 4.2 ACCESSORY USES (1) Accessory uses, as defined herein, shall be on the same lot with the building of the owner or occupant, and shall be such as do not alter the character of the premises on which they are located nor impair the neighborhood., (2) Where manufacturing of any kind is allowed as an accessory use, it shall be restricted to such light manufacturing as is incidental to a permitted use and where the product is customarily sold on the premises by the producer to the consumer. 4.3 ACCESS TO BUILDINGS No private way giving access to a building or use not permitted in a residential district shall be laid out or constructed so as to pass through a residential district. —25— Table 1 `.' SUMMARY OF USE REGULATIONS Permitted Use Res. Res. 4 Res. 5 Bus. 1 Bus. 2 Bus. 3 Bus. 4 Gednueral Ind. 1 Ind. 2 'nd. S 1 2& A icultural Use Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Art Gallery N No No Yes Yes Yes Yes Yes Yes Yes' , No Auto service station No N No Na Yes Yes No _ Yes No Yes �a Auto & vehicle re- air, body shop No No No No N N No Yes No Yes No Bus ara No No N No N No No Yes No Yes Yes i� Csss& other No No N NO Yes Yes Yes Yes Yes Yes Yes Car wash No N N No No No No Yes No Yes No Cemetery ��rr Yes Yes Yes No N No No No No No No 8s aNo No Not NO Yes Yes Not Yes Not Not SP Funeral parlor N N N No Yes Yes Yes No No No Golf course Yes Yes Yes No No No No N Yes Yes Yes Guest house No Yes Yes No No No No No No No No Helisto pp No No No I No No No No No SP SP No men °brpassemoi anus No No No Na Yes Yes No Yes No No No or°c�ntracor$s°rs?rd No No No No No No No Yes No Yes Yes Manufacturin No No No No No No No No Yes Yes Yes Medical center' No No No No Yes Yes Yes jYe I Yes Yes No Motel or hotel No No SP No No No Yesj No No No M'qan armentswelling No No Yes Nol SP No No No No No No New car sales' No No No No No Yes No Yes No No No Nonprofit school Yes Yes Yes Yes I Yes Yes Yes Yes Yes Yes Yes escgn4ghomssnyal SP SP SP No No No Yes No NO No No One-family dwelling Yes Yes Yes No No No No No No No No esEmishgsCeNo No No' Yes Yes Yes Nol Yes Not Nol Nol Place of worship Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes ri�ic� g k repro- Ko No No No Yes Yes Yes Yes Yes Yes Yes psi°$ �f €hool Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Professional offices No No Yes-' Yes Yes Yes Yes Yes Yes Yes Yes Publibuilding or u39 SP SP SP YesYes Yes Yes Yes Yes Yes Yes Recreation areas SP SP SP SP SP SP SP SP SP SP No Asc� scii1i s 'O� No No No No No Yes Yes Yes Yes Yes Yes Retail establishment Vo No No Yes Yes Yes No Yes N° Nol No Roominghouse Yes Yes' Yesl No No No No No No No No Taxi depot No No No No Yes Yes No Yes No No No Town houses N Yes Yes No SP No No No No No No Two-family dwelling No Yes Yes ( No No No No No No No No y��eqni,%j hospital No No No No No No No No No Yes No __f War h �n and wno es No No No I No No No NO Yes No' Yes Yes 1 See detailed district use regulations. SP - with Special Permit only. NOTE: This chart is for summary informational purposes only and is not a substitute for the detailed district use regulations contained in Section 4 of this By-law. -26- MIM t'U ARU!tRer 3.741 111-79-152121 MICHAEL JOSEPH CONNOLT Y F�ncr Secretary of State ONE ASHBURTON PLACE. BOSTON: MASSa 02I08•' ARTICLES OF ORGANIZATION (Under G.L Ch. 1558) Incorporators NAME POST OFFICE ADDRESS Include given name in full in case of natural pt:rsuns; In case of a corporation, give state of Incorporation. Robert A. Shelmerdine, Esq. One Union Street Boston, M 02103 The above-named inconulrator;s)do hereby associate(themselves)with the intention of forming a corporation under the provisions ol'Gcneral Laws. Chapter 156B and hereby statc(s): Name I. The name by which the corporation shall be known is: ' Afvcd Material. Installations, Inc. 2. The purpose for which the corporation is formed is as follows: 1. To store, warehouse, transport and deliver all types and kinds of office furniture or related systems. (See Continuation Sheet 2A) i C U P (D" M ❑ R.A. D Note:if the,pace provided under any artlcic or Itcm on Ih1,Airm i,Imtdilcien1,Atli ainhot ll he wt Itirttt iin%voinrntc N I.2 11 �• %hecti of paper leaving n fell hand margin of at Ieml 1 Inch for hinding. Addlilon%to morv.thon tan•nl/tele tna% tx�,lntnittctitln n 1 C oingle sheet 40 Icing n%each nrilele requHng ench ..%uch addition is clearly indical"ti U.S. Department of Labor, Bureau of'Labor Statistics, Bulletin 2541-Trucking and Warehou., U.S. Department of Labor I Bureau of Labor Statistics I Bulletin 2541 Trucking and Warehousing .............. .................... . .. ............. ............ . . . ............................................. I . ........... ..................... ............... .............. Significant Points o Truckdrivers hold one-half of all trucking and warehousing jobs. o Job opportunities are expected to be good for qualified truckdrivers and service technicians. o A growing proportion of the Nation's freight is being transported by truck, but business in the industry is prone to rise and fall with upswings and downturns in the overall economy. NatMv.--,ef the Industry Firms in thelraddrig and warehousing 'industry provide a link between manufacturers and consumers. Businesses, and occasionally individuals, contract with trucking and warehousing companies to pick up, transport, store, and deliver a variety of goods. This industry includes two segments, local and Ion—distance trucking and terminals and public warehousing and storage. However, the trend towards full-service logistical companies is blunirrg. ne-c st as ienrbetween trucking and warehousing. http://wv,rw.bls.gov/oco/eg/print/egs02l.htmri �NAN1:L I S( MA;i;iRI:HIC>l I f'; POR P11,401. I l•`,f I Nh I)91 L 1 f 03 PAIiE PARCH 10: 2101025.D-0013-0000.01 SAIF DAIS: 0000 (CONIINUFDI ;Tx;; CUMMMIAL S01'110 4 IN I.W;I OPDAIK) 1012'.1!00 SAH CH AMENIIT-3-IT MISC-AIT-VAl srArE-uSE-CD 401 - NARFHOI►5F AMFNIfT-•l-IIN RI.,f(0-GOND A - AVEROE USE-CAIEGORT 3 - 1NDIISIRIAL AMENITT-j-M YEAR-BUIL! 1985 GRNO-FL-ANFA 42459 A0.ntfT-4-0 FFF-Tk-BUILT 1940 SIORT-HEIGN] 1 AMENITY-4-ON PHT-M-r,00f: PERIMETER 1141 AMENifT-4-Ms FUN-PCf-6001.) BLDG-CLASS f: - CLASS-C FIRF-ESf:APE. ECN-RCT-6000 901 RUUFING Mf - MErRI LifAD-Olir.z-;F PCf-CI)MPI.EfE 01-011.-ITP GH - I:ONI:k-HIUCt• CANOPY-SOF! HLOG-FAVOR EC(-itkNAMENI ESI:ALHION'; (Nta)Mt-FLHG AMENIIT-1-]t VSNGR-ELEVIF RMAIN-PCT-GO 81 AMENLfT-1-UN FN6H1-HAY fN kl;N 140.;499 AMENI1T-i-M:. NUn-OYRHO-DR RCNLII 1185434 AMr N1 I T-2-I T EN I NT-.q ;nun) VAlilt AMLNI)T-2-UN FNIRT-GRAN COSI-HL1)G II h400 AMt:N1l'i-2-M mtsc-Rf1-SIN xxxx C1IMMERI:JAL 00UP A ]Olt 1 LAS] DPDAIE(! 10/23/00 : I';f h-tl:ih-!:D is PC f-HEA I ED t l)0 W4-(:IIUE t% - DJSIRJH-WHs.L (:UnAI:t-I:UNuO FIRE-AIARM RAN). rLuuN I'IOUR INil - cincNLtE r,NAnr. t - AvtNAht HASE-f.I-RkFr 4;'41'? PARIJIIIIIIS A - AVERAGE PCI-SVkN1(Lk't 100 rUn-rI UIIN^t t, I'f 11.1NI;1, CONDI I IUN Al; - AVERAI Hil)01) GHP-MEASURL 42419 Pl IIMNI H4 A - AVtkAI;E GRUIIP-R(:N 1.53.~'443 NLIMHlk-lIN I I.`.. '.) t.11;H I I nli A - AVr NAlil HNII-ITPt HEAIJNh-ITP; SH - SYAU.-HFA, >xxx INCIW. SOMMART G I LAST I)Plm fLU : W h/0 INCOME-010 M MANUAL EXPENSES-PC) i.:AP-INL:OMf 1653386 ON r I-ME I HOD CAP-RA I r ADI1-t NO-VAI ,) ON11-Rt14t PCI-(:DMVLEIt ADD-ALD-VAL (I 91'1-REMIAft E 01-LVD-RHEA .4.4 f0f-tNc-VAI. 16�;.;Nb YAi:-L OSS-PI:1 1 U 1-F 1 M-AREA 4?45' �xxx j1EfH1:HED Slktlt:IllNh tF t. LAS( IIPUA(FD t0/ L/?! SIFOR:IORE AS - PAVING-ASPHI MIN-%-GUoD SLUG-FACJOR ur.f-aIHO-CU A - COMMERCIAI. I;RAUE A - AYERAI;E RMAIM-90-hU s0 uN115 S - SQUARE-FEET CONDI II ON A - AVERAGE RCN 51460 MEA;iiNE-L .;40110 PHT-PCI-I;IIIII) 50 RCNLD :-H 131) MFASIJRE-2 FIIN-PC1-GOOD SOUND-VALUt EFF-rN-9UU.f 1'?Itl ECN-PCf-1;000 I:DSf-HIi6 28100 ANN-PCi-(IFPV PCI-COMPLFrE JNCOME-FLAK lvlvr(-� - rarcel lnlormacion minder Page 1 of 1 Parcel 25- Address Bayfield Dr. North Andover, MA 01845 State Code 210 Industrial Site 2 No. Industrial Park North Andover Business Park Current Use Acreage . 4.4 Building Sq. Ft. 42459 Company Material Installations Co. Name SIC Code 5021-22 Primary Office Furniture and Equipment Business Installation (Whol) Employment 100-249 Range Sales $20-50million Owner Bud Realty Trust Gas Essex County Gas Electricity Massachusetts Electric Sewer Service Public Water Service Public Highway Directly off of Route 114 Access Distance to Approximately 3.5 miles from Exit Interstate 42 off of 1-495 Public No Service Transportation Zoning Industrial Standard Industrial Classification (SIC) System Search 17 eOCCUP lonal Safety Department . , Labor SIC Description for 5021 Division F: Wholesale Trade Major Group 50: Wholesale Trade-durable Goods Industry Group 502:Furniture And Home Furnishings _ _..__...._._..—._._......_...– ..._..._............._.__..._...._._........._....__...._._....._.. ............................_._..._..................-------.................._------.._._._........--.................. ................_.._....._._..._..... . 5021 Furniture Establishments primarily engaged in the wholesale distribution of furniture, including bedsprings, mattresses, and other household furniture; office furniture; and furniture for public parks and buildings. Establishments primarily engaged in the wholesale distribution of partitions, shelving, lockers, and store fixtures are classified in Industry 5046. • Bar furniture-wholesale • Bedsprings-wholesale • Cafeteria furniture-wholesale • Chairs household, office, and public building-wholesale • Church pews-wholesale • Desks, including school-wholesale • Furniture,juvenile-wholesale • Furniture, unfinished-wholesale • Furniture household, office, restaurant, and public building-wholesale • Lawn furniture-wholesale • Mattresses-wholesale • School desks-wholesale • Theater seats-wholesale • Waterbeds-wholesale http://www.osha.gov/cgi-bin/sic/sicser2?slc=5021 U.S. Department of Labor ( Bureau of Labor Statistics Bulletin 2541 - Wholesale Trade The activities of wholesale-distribution firms commonly center on storing, selling, and transporting goods. As a result, the three largest occupational groups in the industry are office and administrative support workers , many of whom work in inventory management; sales and related workers ; and transportation and material-moving occupations , most of whom are truck drivers and material movers. In 2000, two-thirds of wholesale trade workers were concentrated in these three groups. http://www.bis.gov/oco/cg/pn'nt/cgsO26.htm .111E TOWN OI' NORTH ANDOVER MAS SAC IRJ sGTTS PLANNING BOARD APPLICATION FOR SPECIAL PERMIT NOTICE: This application must be typewritten i� Applicant Channel Building Company, Inc. Address 23 Main St/P.O. Box 522, Andover, MA 0181 . 1. Application is hereby made (a) For a Special Permit under Section 8.3.1, Paragraph 2 of the Zoning By-Law. 2. (a) Premises affected are. land X and buildings X numbered Bayfield Drivt t&x)4,tX (b) Premises 'affected are property with frontage on the North_ South_ East— West side of p yfield Drive S�z t, and known as Noll Bayfield Dcive "X'4- A i (c) Premises affected are in Zoning District I-1 and the premises affected have an area of 4.38 acres and frotwtage of 1,500 - feet. 3. Ownership: (a) Name and address of owner (if joint own orship, give all names): Material Installations, Inc.m Bayfield Drive, North Andover, MA 01845 Date of purchase 1984 Previous Owner 114 Associates (b) If applicant is not ownor, chock his interest in the premises: Prospective purchaser Leseoe X Othor (explain) Owner's representative 4. Size of proposed building: 162 - ft. front; 120 ± feet deep Height: 1 stories; 21 feet. (a) Approximate date of erection August 1987 - April 1988 (b) Occupancy.or use (of each floor) Expansion for the assembly and live stocale areas of the exisg facility (c) Type of construction Metal frame - 2C - unprotected, non-combustible 5. Size of Existing Building: 245 ± feet front; 125 ± feet deep Height- l stories 21 feet. (a) Approximate date of erection 1985 (b) Occupancy or use (of each floor) Light industrial - offices assembly and stora4e areas for office partition systems components (c) Type of construction metal frame - 2C - unprotected, non-combustible 6. Has there been a previous application for a Special Permit from the Planning Board on these premises? no- If oo, when site plan review under old zoning J. Description of purpose for which Special Permit is sought on .this petition: Material Installations wishes to expand the assembly and live storage areas of. their facility by approximately 18,200 s f The project will provide parking for 20 additional cars. A special permit is required for construction of a build- ing with over 10 parking spaces in an industrial zone. (over) 8. Deed recorded in the Registry of Deeds in Book 1975 Page 333 or Land Court Certificate No. Book Page 9. The principal points upon which I base my application are as follows: (must be stated in detail) The proposed addition complies with the provisions of the zoning by-law. From a functional standpoint, it will improve truck,circulation on Bayfield Drive and also provide for a fire lane which conforms to the latest recommenda- tions of the North Andover Fire Department. The addition will continue the at- tractive contemporary design aesthetic of the existing structure which is also characteristic of the development. I agree to pay for adv r'tising in newspaper and postage fee for mailing legal notices to "Parties in interest". ' Petitioner's signature) Every application for aotion by the Board shall be made on a form approved by the Board. These forme shall be f%u-nished by the Clerk upon request. Any oommunioation purporting to be an application shall be treated as more notioe of intention to-seek relief until ouch time as it is made on the offioial application form. All information called for by the form shall be furnished by ilia applicant in the manner therein prescribed. Leery application sliall be submitted with a list of "Parties in Interest" which shall include the petitioner, abutters, owners of land dirsotly opposite on any publio or private street or way and abutters to the abutters within three hundred (300) feet..-. of the property line all as they appear on the most recent applicable tax list, notwith- otanding that the land of any staoli owner is located in another oity or town, the Plon- ning Board of the totim and the planning board of evory abutting city or town. LIST OF PARTIES IN INTEREST IIAatG ^ ADDRESS -- - \. Robert E. Webster Leo P. & Rose M. Beninato 20 Main Street 10 {Cathleen Drive Andover, MA 01810 Andover, MA 01845 \. Stephen J. & Madeline N. Bilicki Francis &,June M. Walsh 278 Newbury Street 12 Kathleen -Drive Peabody, MA 01960 Andover, MA 01845 \ Morton Margolis Joseph B & _Pratda R_-Xoffman Andover By-Pass 14 Kathleen Drive North Andover, MA 01845 Andover,-MA 01810 Irene Sal;be. . 114 Associates Realtv Trust 4- Kathleen Drive R. Webster & B. Osgood, Trustees Andover, MA 01810 2 Elm Square Andover, MA 01810 Leverette J. & ANita F. Zompa 6 Kathleen Drive :\ Atlee of Delaware Andover, MA 01810 Willow Street Extension North Andover, MA 01845 Folios Barounis 8 Kathleen Drive Andover, MA 01845 ADD ADDITIONAL SUETS, IF NECESSAl1Y. 230 �_ Y 3, PLANNING BOARD MEETING AUGUST 3, 1987 The Planning Board held a regular meeting on Monday evening August 3, 1987 at approximately 8:08 p.m. in the LibraryConference of Hall. The following members were present and voting: ch tz the Town Chairman; John Simons, Clerk; Paul Hedstrom; GeorgegPernaJohnBurke was absent. PUBLIC HEARING ME _3Z t': "Si""tT",,Ir �'- �` ",*� ��',=..� :e�Elan�Re�iew John Simons read the Legal Notice to open the public hearing. Letters were received and read from the Fire Department, Board of Health and two (2) from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans. existing building, drive, and parking presently constructed to expand live storage area from 26,700 sq. ft. to 45,000 sq. ft. cul—de—sac to be finished as shown on plans easement for utilities only The Planning Board had the following concerns: Mitigation of water runoff Buffer zone to be taken care of Zone line to be identified at the back of builping Roof drains to be calculated into storm drains The Board recognized Joan Redman of Andover 'Bypass, an abutter- with the following concerns: activity at night trucks noise lights The lighting is to be addressed. Also evergreens and fencing to be looked into for possible noise barriers. MOTION: By John Simons to continue the Public Hearing until August 17, 1987. SECOND: George Perna VOTE: Unanimous Approval Not Required Plans Form A 1. Rea Street — Maureen Joyce Applicant withdrew without prejudice MOTION: By John Simons to accept the applicant's wishes to withdraw without prejudice. SECOND: Paul Hedstrom VOTE: Unanimous NOTE: Planning Board concerned that the plan shows a subdivision 235 Graywood Estates - Planned Residential Development Letter received from the developer to continue the public hearing until - August 31, 1987. MOTION: By John -Simons to continue the public hearing until 8=31=87 SECOND: George Perna VOTE: Unanimous Osgood Street - Channel Building - Site Plan Review r� Letter received from the developer to continue the public hearing until August 31, 1987. MOTION: By John Simons to continue the public hearing until 8-31-87 SECOND: George Perna M� VOTE: Unanimous Q _Material Installation-- Site Plan Review John Simons read a copy of a letter sent to Mr. & Mrs. Redman from Material installation with regards to lighting and traffic issues. Jim Bourgeois of Channel Building presented the Board with revised plans. He proposed that traffic would enter from Willow Street opposed to the preeent route of entering. The lighting issue will be addressed as well as the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer. Tom Neve spoke with regards to mitigation of runoff and 4. 19 acres of an area being incubious on 5.6 acres. MOTION: By John Simons to close the public hearing SECOND: George Perna VOTE: Unanimous Jerad II - Definitive Modification Mr. Tom Neve requested an extension for the decision until Sept. 18, 1987. MOTION: By George Perna to continue the public hearing until Sept. 14, 1987 SECOND: John Simons VOTE: Unanimous Rocky Brook - Definitive Modification Mr. Tom Neve spoke with regards to the plans being consisitant with the conditional approval decision the Board previously rendered. Issues relating to drainage, floodplain and detention ponds were addressed. The waterloop issue, a concern of the Fire Department, not necessary as long as sprinklers and sprinkler systems are used by the applicant. The dead-end road length i issue is not a problem according to a letter received from Buddy Cyr to Mr. Neve. There will be a 30 foot easement on lot 19. Mr. Neve will send a letter for an extention for the decision until Sept. 6, 1987. Decision due at August 31, 1987 meeting. I . �F�. :.��.-::�:. PU� n� ► OSB O WN,,OI' N OR 'rJr AN r) O VER ( . MSSACITUSETTS C'.i . SEP 3 8 Igo Ail '87 *°:';.�° Any appeal shalt be filed. °; within (20) days after the _ :rte. date of filing of this Notice • ••••• •'r•1S in the Office _ of th-e Town Clerk. NOTICE OF DECISION . Date. Se_ptembaz .2, . X9.$Z . . . . . . _ . Date of Hearing August .31 ,. .L9.$7 Petition of , , , .Channel Building. . • • . • . • . . . . . Premises affected • ,ll. Bayfield .Drive ._ .Industrial=1 • (I-1). . Zoning_Distrrct Referring to the above petition for a special permit from the requirements of the , ,North .Andover. Zoning. Bylaw,. Section _8: Para. 3 _ . • . _ . _ . so as to permit . • to expand, the assembly, and •live •storage areas .in. an existing. building bar. I8 , 200 square feet _ . _ _ _ _ _ After a public hearing given on the above date, the Planning Board voted Conditionally to . .APSrove . . . . . .the . . .Site. Plan.Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . based upon the following conditions :. n - Si ed Erich, W.. ,Nit zsche , CYjairmap John. Simons . Clerk. , . . . . . . . . George Perna Paul Hedstrom John_ J H OFFICES OF: o Town � own o: . 120 hUlin Street North And(W r. APPEALS ;: L-r NORTH ANDOVER BUILDING ;,`•::.; %'.* t M;1Ssa(.htuscllS01845 CONSERVATION "°"ps -f�'i)[VISION O1; (61 7) 685.4775 HEALTH PLANNING PLANNING & COMM M1INITYIMEVELOPMENT KARE�i FH.P. NELSON, DIREC'I'OR September 2 , 1987 Mr. Daniel Long, Town Clerk Town Office Building 120 Main Street North. Andover, MA 01845 Re : Material Installation. 11 Bayfield Drive North Andover, MA Site Plan Review through Special Permit Dear Mr. Long: The North Andover Planning Board held a public hearing upon the application of Channel Building Company, 23 Main Street, Andover, MA. on Monday evening, August 3 , 1981 in the Town Office Meeting Room. The hearing was advertised in the North Andover Citizen on July 16. and July 23 , 1987 . The following members were present and voting: Erich W. Nitzsche, Chairman; John L. Simons , Clerk; George Perna and Paul Hedstrom. John J. Burke was absent. The petitioner seeks a Special Permit under Section 8 , paragraph 3 ; Site Plan Review. The purpose of the Site Plan Special Permit is to review the proposal to expand the assembly and live storage areas of the existing facility by approximately 18 , 200 square feet of land on the North side of Bayfield Drive known as 11 Bayfiled Drive in an Industrial-1 (I-1) Zoning District. John Simons read the legal notice to open the public hearing. Letters were received and read from the Fire Department, Board of Health and two (2) letters from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans . MOTION: John Simons to continue the public hearing until the August 17 , 1987 meeting. SECOND : George Perna VOTE : Unanimous On August 17 , 1987 the public hearing was continued. John Simons read a letter sent to Mr. & Mrs . Redman from Material Installation with regards to lighting and traffic issues . Jim Bourgeois of Channel Building presented the Planning Board withrevised plans . .:,.:. .. .. _ .r»-i r- C - t 4. .- r-`--'re'�". jr -..:.-i' •" 'Uwa_N^"742,E "_ �'Y'e-1 i T" .1 L'.!1'ai*t i___.._ r=� .�': . '. a_,F �t l..- .. ._i_.— __ '- _..'t'�L'Z!�'"S.C1G= ..c .S C.'=� _..i:.`1.. �iL-•___ y Page 2 : MOTION: By John Simons to close theubl;jttp acing. SECOND: George Perna SEP 3 49 Et VOTE : Unanimous On August 31 , 1987 the Planning Board held a regular meeting and voted to approve the Special Permit application by Channel Building to construct an 18 ,300 square foot addition to the existing building located on Bayfield Drive at the intersection of Willow Street. Three issues of concern were discussed at the Public Hearing that should be ' addressed in this Conditional Approval are as follows : 1 . The unfinished Cul-de-Sac at the end of Bayfield Drive does not allow for adequate fire protection and access- egress for the existing building. It was discussed that the Cul-de-Sac was not finished by the developer of North Andover Business Park prior to this date because of a pending application to the Commonwealth of Massachusetts to create an entry onto Route 125 . The Planning Board is in receipt of a letter from the Division of Public Works dated November 14, 1986 denying the request for emergency access onto Route 125 and is concerned that no work has taken place on Bayfield Drive thru 1987. 2 . Concern by abuttors to the North of Material Installation property of truck noise and lights during the night. Proponents for the project stated that the newest dwellings are 200 feet and 400 feet respectively from the building, but admit that into the winter months, a lack of foliage in the intervening woods may be cause for concern and have suggested that truck traffic be directed onto the locus by way of the Willow Street entrances thereby minimizing headlights being directed to the North by the present access from Bayfield Drive. 3 . There was a concern by the Planning Board of the increased rate of runoff being produced within the North Andover Business Park by the inclusion of additional impervious pavement and building additions . The applicants Engineer, Mr. Tom Neve, has submitted drainage calculations stating the peak runoff has been decreased from the locus due to the fact that percentage of impervious area on the lot has been reduced from the overall Master plan of the Park and that the lot size has been reduced. Notwithstanding these factors, the Planning Board recognizes that if this lot size has been reduced, another lot. in the Park must have been increased, and that Mr. Neve nor the Planning Board has an accurate accounting of the present impervious area versus the original Master Plan impervious area of the Business Park overall. LLThere.fore,, the Planning Board-.rend.ers*phis-:`=Cod�t�,tnal ApprovL z f, ar-.'l h--d.�•e - - - _ o is ti ttcti:on'-af; t proposed bttildri 'd Page 3 : 1 . Bayfield Drive will be con�stru9te ',i Iccordance with the Subdivision Plans of Nojth 'kndbV�r"Business Park and be brought to at least bind8y pavement to the satisfaction of the North Andover Fire Department and to the Division of Public Works prior to construction of the ,building addition. 2. The lawn area to the East of the proposed building between the building and Willow Street shall be designed as a Detention/Retention Pond to further mitigate runoff flows and to account for loss ground water infiltration due to the impervoius area. This will necessitate redirecting runoff flows into the Ponding area, preferably from the parking lot prior to discharge off site, with proper pipe sizing to detain storm water flows to the maximum possible . 3 . Truck traffic flow will be .required to access-egress the property from the Willow Street curb cut only and automobile egress the site from the curb cut on Bayfield Drive. This will be a condition for continued occupancy and will be implemented by the use of one-way signs and exit only signs and others as deemed necessary both installed at the two curb cuts as well as at the truck docks and pointed indications on the pavement throughout the parking. and access-egress areas. 4 . Upon completion of the building addition and prior to building occupancy, the applicant shall file an As-Built Plan of the total site showing at least, but-not limited to the following, pavement grades , rims and inverts, drainage size, access- egress signs, lighting landscaping and all utilities . Said plan to be prepared and certified by a Professional Land Surveyor and submitted for approval by the Planning Board. 5 . The landscape plan as submitted does not show the existing row of planted arborvitae to the rear of the existing building and the Planning Board is of the opinion that the proposed planting of arborvitae will be of the same nature, and therefore will not mature to a full effective screening for many years and therefore will require that in addition to the landscaping plan as submitted being conformed to in its entirety, a six (6) foot closed stockade fence be erected along the property line from a point starting fifty (50) feet from Route 125 and extending Easterly to the Easterly line of the proposed building addition. 6 . In accordance with the Fire Department report of July 31 , 1987 , the following shall be provided: 1 . The addition must be equipped with an automatic fire suppression system (sprinklers) and. the fire detection and alarms form the original building must be extended into the addition. Both of these systems must have plans submitted to the Fire Chief for approval =:prior - Otto construtt.ion ;: , - _ ...�#.4e 'Cli'! "w� - ,. ...Y£.i: 4/}•yi�.i,}_isJ-`_. �.����.... .� ..c i,i.. ...�. _...�._ '' i...._ ._-. Page 4: 2. The Fire Chief has requested that information regarding the material to be stored and the amount of storage for products in this expansion be submitted to himself or the Fire Present-ion Officer. 7. The North Andover COnservation Comission' s Order of Conditions under File No. 242-193, shall become a part of this approval and be strictly adhered. 8 - In addition to the aforementioned Conditions, the Planning Board approves only that work as shown on the submitted plans namely: 1 . Sheet Ll-1 dated 9/5/86 and revised 8/13/87 2 . Sheet L2-1 dated 9/5/86 and revised 8/13/87 3 . Sheet L4-1 dated 9/5/86 and revised 8/13/87 4 . Unnumbered Sheet dated 8/13/86 and revised 9/9/86 and entitled "Scheme 3" 9 . Any proposed changes and/or future building expansion will be the subject of a new Public Hearing under a new Special Permit Application and further that any changes from these approved plans and that may be shown on the As-Built Plan submitted for approval prior to occupancy will negate this Special Permit and will require a new filing of application_ Sincerely, PLANNING BOARD Erich W. Nitzsciffi, Chairman m /je cc: Director of Public Works Highway Surveyor Board of Public Works Tree Warden ;D Conservation Commission Building Inspector Board of Health Assessor Police Chief Fire Chief Applicant Engineer File Interested Parties al ....._ {•�__...�_ 7_ _:..,.... . ..s.M1 i4'�'c'i .�ry,�L�,� -+ - ... - v.rva kyr s'�ti�i,r—•�iiJ - >Yi.�,--' r Highway Traffic Noise - FHWA t The third part of the highway noise reduction strategy is highway planning and design. Early in the planning stages of most highway improvements, highway agencies do a noise study. The purpose of this study is to determine if the project will create any noise problems. First, the existing noise levels of a highway are measured or computed by models. Then, the agency predicts what the noise levels will be if the project is constructed. If the predicted noise levels are above Federal noise criteria, the noise study must consider measures that can be taken to lessen these adverse noise impacts. This information is reported at public p meetings and hearings if they occur. Noise Reduction on Existing Roads Some noise reduction measures that are possible on existing roads or on roads that are being rebuilt include creating buffer zones, constructing barriers, planting vegetation, installing noise insulation in buildings, and managing traffic. Buffer zones are undeveloped open spaces which border a highway. Buffer zones are created when a highway agency purchases land, or development rights, in addition to the normal right of way, so that future dwellings cannot be constructed close to the highway. This precludes the possibility of constructing dwellings that would otherwise experience an excessive noise level from nearby highway traffic. An additional benefit of buffer zones is that they often improve the roadside appearance. However, because of the tremendous amount of land that must be purchased and because in many cases dwellings already border existing roads, creating buffer zones is often not possible. .w.�.. x Open space can be left as a buffer zone between residences and a highway. Noise barriers are solid obstructions built between the highway and the homes along the highway. Effective noise barriers can reduce noise levels by 10 to 15 decibels, cutting the loudness of traffic noise in half. Barriers can be formed from earth mounds along the road (usually called earth berms) or from high, vertical walls. Earth berms have a natural appearance and are usually attractive. However, an earth berm can require quite a lot of land if it is very high. Walls take less space. They are usually limited to 25 feet in height for structural and aesthetic reasons. Noise walls can be built of wood, stucco, concrete, masonry, metal, and other materials. Many attempts are being made to construct noise barriers that are visually pleasing and that blend in with their surroundings. However, barriers do have1 imitations. For a noise barrier to work, it must be high enough and long enough to block the view of a road. Noise barriers do very little good for homes on i ,<.. ! ys tai 4��� r� `�'��1 �� •� ]�`���.£„c� � .•1 - -r.•: rs � r ...w_..� a -n+r•r. :t .ryr..v wwn.rce.wG_.4.::..,.<1s,..-rt.•" Highway Traffic Noise - FHWA Shadow Effect of Noise Barrier The lower house is protected by the barrier, but the upper one is not. _Vegetation, if high enough, wide enough, and dense enough (cannot be seen through), can decrease highway traffic noise. A 200-foot width of dense vegetation can reduce noise by 10 decibels, which cuts the loudness of traffic noise in half. It is often impractical to plant enough vegetation along a road to achieve such reductions; however, if dense vegetation already exists, it could be saved. If it does not exist, roadside vegetation can be planted to create psychological relief, if not an actual lessening of traffic noise levels. 2QO legit Loudness Cut in Half No Noise Reduction (Psychological) Vegetation and Noise Reduction Insulating buildings can greatly reduce highway traffic noise, especially when windows are sealed and cracks and other openings are filled. Sometimes, noise-absorbing material can be placed in the walls of new buildings during construction. However, insulation can be costly because air conditioning is usually necessary once the windows are sealed. In many parts of the country , highway agencies do not have: the authority to insulate buildings. In those states, insulation cannot be included as part of a hi.ghway project. Managing traffic can sometimes reduce noise problems. For example, trucks can be prohibited from certain streets and roads, or they can be permitted to use certain streets and roads only during daylight hours. Traffic lights can be changed to smooth out the flow of traffic and to eliminate the need for frequent stops and starts. Speed limits can be reduced; however, about a 20 mile-per-hour reduction in speed is necessary for a noticeable decrease in noise levels. Pavement is sometimes mentioned as a factor in traffic noise. While it is true that noise levels do vary with changes in pavements and tires, it is not clear that these variations are significant when compared to the noise from exhausts and engines, especially when there are a large number of trucks on the highway. More research is needed to determine to what extent different types of pavements and tires contribute to traffic noise. Until this research is completed, the use of different types of pavement cannot be depended upon to reduce traffic noise. Noise Reduction on New Roads All of the measures described above can be employed on both existing roads and new roads. There are, however, some additional measures which can usually be used only on Town of North AndoveryOR 4 JF�,�•u .�1 NJ Office of the Building Depailmnent Community Development and Services Division 27 Charles Street ` ?- ---- North Andover, .Massachusetts 0"1345 y'SSA USCt< D. Robert Nicetta -FIlephone (978)638-9545 Building Commissioner Fax (973)683-9542 August 25,2003 Mr.Konstantinos"Dino"Balos 66 Meadowood Road North Andover,MA 01845 RE: Zoning Complaint Materials Installations,Inc. 11 Bayfield Drive Dear Mr. Balos: I am of the following opinion after investigating your complaint against the above referenced business: • The Planning Board Special Permit of August 31, 1987 did not place a definite time of operation for Materials Installations,Inc. in the Conditional Approval of the Site Plan Review. • In 1987 and presently the North Andover Zoning By-law does not address hours of operation. • The Planning Board Decision cf 1987 does not place any restriction on the type of business Materials Installations,Inc. conducts at the Industrial-1 site. In fact the August 31"decision gave the business permission"to expand the assembly and live storage areas in an existing building by 18,200 square feet". • In 1987 and presently the North Andover Zoning By-law does not address"noise levels"in any zoning district. • On site investigation reveals that the"row of planted arborvitae to the rear of the building and the six(6)foot closed stockade fence erected along the property line"are in place as required in Paragraph 5 of the Conditional Approval. The Building Commissioner/Zoning Enforcement Officer is of the opinion that Materials Installations, Inc. is in compliance with the approved Planning Board Special Permit of August 31, 1987,time stamped by the North Andover Town Clerk on September 03, 1987. Pursuant to Section 10.4 of the North Andover Zoning By-law this decision maybe grieved within thirty (30)days before the North Andover Zoning Board of Appeals. Yours truly, D.Robert Nicetta Building Commissioner/Zoning Enforcement macer CC: Heidi Griffin,Director CD&S Mark H. Rees,Town Manager Raymond J. Santilli,Assistant Town Manager Thomas J. Urbelis,Town Counsel William Sullivan,Chairman ZBA BIill.DING 688-7545 C0 NS17I2V:\'I'I0NGXX=9534 I11(.\I..I'llt,SX-)540 Ill.:\NNI\(iGXX')535 � � m C%5 i \ e I R.QIGGr..Cr dsiQKr r bl BuanMe 1 dalacf / ��� i - f •• � e—�s� L .. " ,i !. .__ �� b !atonal .dc,o,cr d p� b.WSMr56 L ds,Q.cr @ \ � i • V r' a T` r, rr ,I QA(.'MQLI Nas3r dl,aKf w i ZONING MAP ' i.. •.• y - — �RIF :'.. 1 D4r�Q LAND SHOWN ON THIS PLAN SUBJECT TO SUB- P*9LSe INDEX OF DRAWINGS / DIVISION COVENANT BETWEEN 114 ASSOCIATES A REALTY TRUST AND NORTH ANDOVER PLANNING H0.of SHEETS DESCRIPTION �V aCARD DATED SEPT.0;1264 TO BE RECORDED HEREWITH I M oWIEA SHALL ALTAR TITLE TOM IEE OF EACH STREET. • 4A.a.• urrurc nA.a MTII OI•.ar HEAT R OI APPYIIT[IWIT TO M at.EOiMNNI 1 RTNV• I OI YNIu CONVETEG TOM T0-AMD f•MlL HIA•ITAW ACO A41AI1 4' IA t/Ny•V:S FA1 D / '� TO RNAAOa AID ORA•MOE full-THAT N AwA•EA BAT1fTAt IOIT 4/rr• LEGEND / � To THER.FMS Bawd DON ER VPEADD. Y,LRIA q---•EA•1E1•uwrtE•eM�•T2•! E APPIq.AL OF TN!21PQINa1DH1 u2EA M P1.AI•M=; /f rE H510H tpIIYArt' / n RULES B IEDU ATHONS DOES NOT AELEK M MfiiCNrt/ /Ex / x OPER/DEWIp'EA OF THE RE3KRSH RT To OTTER HogTT ET ORCEIN MDSE LAAO MAY BE ORECN O1 NDRECTLY APPFUYAL UNDER SL60M2SON CDNTIIOLFJTRE ` / AFr¢TED IT M DEVlIDPHF.IfTI STORM HATER—01ARBE LAW NOT REQUIRED. 1 ANDOVER PLANNING BOARD DATE: NL01L°Cit AC' / 1 / M3 j I ARS _' 2 V l l // R! � LOCUS AREA r \ �f'r• A(/A• l \ wtseooua / \\ LOCUS MAP l V. i l \ REFERENCE I HEREBY CERTIFY 7l WT NO NOTCE OF APPEAL / O•\ / \\ / PERIMETER PROPERTY INFORMATION C011PILED FROM WAS RECEIVED DURING THE TWENTY DAYS NEXT / 0�,� y / �/ PLAN OF LAND IN NORYH ANDOVER B AHDOVER,MASS' "-TV, ND f1ECOR01/10 Or PI'Of1LE FROM / DATED OCT 4,12BS,PREPARED ST HATES ENINNEERINC THEPL.MINN G BOARD OF TIE APPROVAL OF ..PT. T JJ, / IIID FOR 114 ASSOCIATES REALTY TRUST THIS PUN. ` QW•?r^ k fT PROPERTY REFERS TO TVIM PLATT*900 IS'25. Aj/F JYMOSEK CITY CLERK �. � 4 - / – 13 IOy ELEVAi q1U REFER TO Ul.C.BQS DATUM. • DATE -I: 'Y/4�` PI ��7, e•ITF/V 2j0� SEXCH MARK:MANHOLE RIM AT STA.2171%ELEY24731. ICE RTIFT THAT THE PREPARATION OF TV"P1JW O CTIE.t•7�' / + - �'� V' tyO CONFORMS WITH THE RATS AND RECULATIONS OF •P r / 4e4,ywr THE REGISTERS OF DEEDS,DATED JA/VARY 1,1916 t y O 'W� c e or 1F4 URD SURVEYOR-414As•.-- i•Y+t 4 / -4a+'4C tor IC+IC. ILII DATE_)"!•-9f Q APPLICANT I OWNER IH ASSOCIATE! FEALTY TRUST ,4 E ELM SQUARE k E NORTH ANDOVER ��O x l [or s � ANDOVER,a4AlS. EEggg PLANNING BOARDR '4-.i+wt NORTH ANDOVER BUSINESS PARK NORTH ANDOVER.jamE MA. _ y KEY PLAN mw.i—%4a•Or —— -- PMP.3.21-A4 DATE: IOf LT- N cnurvwL IPtwrwwE oo...kT2F•oro�NAm• I••NIB, APPAOTEO: ale , SAVE MONEY AND'IQ`, APRIL 2❑02 r ; M REDUCE POLLUTION WHAT YOU SHOULD KN0W191 BOUT .na ., -'x-x` ..; s+• y.M1 k,a� x . nx� i•#..��� s,�+� �a - G r � t, � �.i�'RSkx w RjU_C K� II�I 'I p Ll N Gs * q . m - p>. Diesel engines play an important role in the transport WHAT CAN of goods and services nationwide. They are a durable and YOU D O? economical source of power. However, there is growing `3 ` Turn off your engine concern about the health effects associated with exposure to diesel exhaust. Diesel exhaust affects everyone, but when your vehicle is people with existing heart or lung disease, asthma, or not in motion, other respiratory problems are most sensitive to the small particles in diesel exhaust Fortunately, new emission standards and new technology are helping to ensure that the Use electric engine cleaner diesel engines of the future will dramatically heaters to ininimize reduce these health risks.If you drive a truck,there are several warm-up time., things that you can do now to save money and reduce pollution. i WHAT ARE SOME OF THE PROBLEMS Use auXlllarypower ASSOCIATED WITH IDLING? units instead of the IDLING WASTES FUEL AND MONEY • A typical truck burns approximately one gallon of diesel engine to provide fuel for each hour it idles. electric power. • If this truck idles for 6 hours per day and operates 300 days a year, it would consume 1,800 gallons of fuel per 1 year, simply idling. \/ PA • At a price of$1.25 per gallon of diesel, this idling comes with a price tag of$2,250 per truck. 2 New England For more information: IDLING CAUSES EXCESSIVE ENGINE WEAR • Running an engine at low speed (idling) causes twice the Visit www.epa.gov/ne/ wear on internal parts compared to driving at regular eco/diesel/,or call the speeds.According to the American Trucking Association, 3 EPA Air Quality Hotline at such wear can increase maintenance costs by almost 1-800-821-1237 $2,000 per year and shorten the life of the engine. _ UNNECESSARY IDLING CAUSES POLLUTION • Idling vehicles can emit significant amounts of pollution 4 including: carbon dioxide, which contributes to global climate change; nitrogen oxides and volatile organic compounds,both of which contribute to the formation of ozone smog; poisonous carbon monoxide;and particulate matter. IDLING POSES HEALTH RISKS TO DRIVERS While sitting in an idling vehicle, drivers are exposed to the vehicle's pollution more so than when the vehicle is in motion since there is no air flow to vent the emissions. continued 0 SAVE MONEY AND REDUCE UNNECESSARY IDLING—STEPS YOU CAN TAKE: • Turn off your engine when your vehicle is not in motion. (Follow manufacturers recommendations for cool-down—usually 3-5 minutes after full load operation.) • Follow manufacturers recommendations for minimum warm-up time—usually 3 to 5 minutes depending on the vehicle. • Use electric engine heaters (such as block heaters) to minimize idling time during warm-up,especially in cold weather. • Install a small generator or auxiliary power unit specifically designed for a truck that provides heat, air conditioning, and/or electrical power while the vehicle is not in motion.These devices are a better, more efficient alternative to idling as they use substantially less fuel and emit less pollution.Depending on the amount of time spent idling each year,the payback on these devices can be one to two years. • When buying new equipment, purchase engines already equipped with devices that minimize idling and warm-up time automatically. • Follow anti-idling laws and guidelines in your state. Currently, three New England states have anti-idling laws: Connecticut, Massachusetts, and New Hampshire. FACTS ABOUT DIESEL ENGINES AND IDLING Although there are some legitimate reasons why trucks and buses idle(e.g.,to bring the engine to proper operating temperature),there are also some misconceptions. Most engine manufacturers recommend that newer INITIAL STARTING / WARM-UP TIME Most engine manufacturers recommend that newer engines run for roughly 3-5 minutes I engines run for roughly 3.5 before driving.In colder climates,block heaters are a good alternative to excessive idling. iminutes hefol e and after They plug into electrical outlets and help warm the engine to avoid starting difficulties and driving, reduce idling time during engine warm-up. RESTARTING Tod;iy's winter blends of Although engine manufacturers recommend that you let your engine idle for a few diesel fuel are much less minutes after you stop,most newer diesel engines will stay warm for several hours after likely to gel in cold weather. they have been running, retaining more than enough heat to keep the engine warm and avoid starting difficulties. Older vehicles may have more difficulty restarting, but don't assume new engines should be operated like older ones. Check the manufacturer's Letting an engine idle actually recommendations. does more damage to the FUEL GELLING engine than starting and Gelling of diesel fuel used to be a problem years ago,but refiners have worked to resolve stopping. that issue by creating winter blends that better withstand colder temperatures. ENGINE WEAR AND TEAR Letting an engine idle actually does more damage to the engine than starting and stopping. Running an engine at low speed (idling)causes twice the wear on internal parts A compared to driving at regular speeds,which can increase maintenance costs and shorten X;4EPA the life of the engine.Generally,fuel consumption during engine start-up is equivalent to about 30 seconds of engine idling. New England 1 Congress Street Suite 1100 Boston,MA 02114-2023 wwv4.epa.gov/ne/eco/diesel/ EPA Air Quality Hotline: 1-800-821-1237 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston,Massachusetts 02111 Benjamin B.Tymann 617 542 6000 617 542 2241 fax Direct dial 617 210 6853 btymann@mintz.com January 14, 2004 BY FACSIMILE AND FIRST CLASS MAIL Walter F. Scule, Acting Chairman North Andover Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Balos'appeal of Building Commissioner's decision on special permit compliance at 11 Bayfield Drive Dear Chairman Soule: Thank you for the opportunity to be heard on Mr.. and Mrs. Balos' appeal of Commissioner Nicetta's decision concerning the compliance of my client, Material Installations, Inc., with the Planning Board Special Permit of August 31, 1987 (the "Special Permit"). As I stated to your Board last evening, I agree with Mr. Balos' statement that the only issue before the Board is, simply, the validity of Commissioner Nicetta's decision of August 25, 2003 that concluded that Material Installations is in full compliance with the Special Permit. Specifically, the Board must decide only whether"[the] order or decision of the Building Inspector [is] in violation of any provision of[the Zoning] By-Law." North Andover Zoning By- Law, § 10.4. Conversely,the question that you reported last night as being referred by the Planning Roaru to tmom counsel, i.�., whether the Special.Permit can be revised unilaterally despite Material Installation's compliance with each of its conditions, is not relevant at all to the validity of Commissioner Nicetta's decision under the Special Permit and Zoning By-Law as they currently exist. While we believe that town counsel will agree with us that there is no basis in law whatsoever for the notion that Material Installation's property rights under the Special Permit can be unilaterally revised or rescinded, the more salient point is that the answer to that question should have no bearing on the decision that the ZBA must make. Therefore, further delay in that decision is unnecessary. On the merits of Commissioner Nicetta's well-supported decision that Material Installations is fully complying with the Special Permit, there is, as I argued last evening, no reasonable dispute that that decision was made in full compliance with the Zoning By-Law and, therefore, Mr. and Mrs. Balos' appeal of that decision cannot stand. Specifically, and to reiterate the Commissioner's conclusions, it is indisputable that the neither the Special Permit nor the C� il18 x.�, D � � � ZQQ4 Boston Washington Reston New York New Haven Los Angeles London i BOARD OF APPEALS MINTz,LEVIN,COHN,FERRIS,GLOVSKY AND POPEO,P.C. Walter F. Soule, Acting Chairman January 14, 2004 Page 2 Zoning By-Law places restrictions on the hours of operation at 11 Bayfield Drive (though Material Installations voluntarily has limited the times of operation for truck traffic at the site), or on the type of business operation there (though the "assembly and live storage"that have and continue to take place there are fully compliant), or on noise levels (though, as noted, noise from truck traffic has been minimized), and, further, that Material Installations is in full compliance with the"planted arborvitae" and fence conditions that are relevant to the Balos' complaint (and, in addition, Material Installations voluntarily has installed signs to control truck traffic). In short, I respectfully urge the ZB.A to act,without further delay, on the only issue before it --the validity of Commissioner Nicetta's decision-- and to deny the Balos' meritless appeal at the February 10, 2004 meeting. If I can answer any questions or provide any additional information of this matter, please do not hesitate to contact me. Thank you for your consideration. 4B. , Be jamann cc: Zoning Board of Appeals members D. Robert Nicetta, Building Commissioner Thomas J. Urbelis, Esq., Town Counsel Mr. Konstantinos Balos Mr. Michael Farrow LIT 1438562v1 20C4 V BOARD OF APPEALS LW 047J82000825 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston,Massachusetts 02111 Walter F. Soule, Acting Chairman North Andover Zoning Board of Appeals Town of North Andover 27 Cahrles Street North Andover, MA 01845 JAN 2 : 2004 BOARD OF APPEALS =;ri rte?S i4 11lrrrfrrij[3r/rsltIli llf+trr1tlrat17r7rIII Ili III(rlar rraff 1 01/14/2004 15,20 FAX 617 542 2241 MINTZ LEVIN 14 001 Boston I�VINr eson CA)t Fwavial Center G)HN FERRIS Rtato, Bim,Massadiusttcs 03111 Nein York 6175426000 i GT o TS'K Y 617 ni 2241 faz LV NemFla� rurlriawntz.crnn POPEO P,(,-"j London Fax Cowr Sheet DATE: January 14, 2004 +I Rom: Benj.unin B.Tymann Direot Dial 617 210 6853 bt)n►lann@mintz.com To: Ns Walter F. Soulc, North Andover (978)688-9541 (978)688-9542 Acting Chairman Zoning Board of Appeals MESSAGE: Per our conversation,thank you in advance for distributing to the other ZBA members and Mr. Nicetta. We are sending a total of 3 pages,including this cover sheet. Please call us at 617.348.4966,if you experience any problems. STA'r&MENT OF CONFIDENTIALITY THE INFORMATION CONTAINED IN THIS FAX IS INTENDED FOR THE EXCLUSrVE USE OF THE ADDRESSEE AND MAY CONTAIN CONFIDENTIAL ORPILMILEGED INFORMATION, IF YOU ARE NOT THE INTENDED RECIPIENT,YOU ARL•HCREBY NOTIFIE-I)THAT ANY FORM OR DISS=MINATION OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF THIS FAX WAS SENT IN ERROR PLEASE IMMLDIATEL;d NOTIFY US BY PHONE-. 01/14/2004 15:23 FAX 617 542 2241 MINTZ LEVIN 10002 i Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston,Massachusetts 02111 Benjamin B.Tymann 617 542 6000 617 542 2241 fax Direct dial 617210 685_ btymann@miutzcom January 14, 2004 By FACSIMILE,AND FIRST CLASS MAIL Walter F. Soul:,,Acting Chairman North Andover Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover. MA 01845 Re: 3alos'appeal of Building Commissioner's decision on special permit compliance at 11 Bayfleld Drive Dear Chairman Soule: Thank ou for the opportwtity to be heard on Mr. and Mrs.Balos' appeal of Commissioner Nicetta's decision concerning the compliance of my client,Material Installations, Inc.,with the Yarning Board Special Permit of August 31, 1987(the"Special Permit"). As I staled to your Board last evening, I agree with Mr. Balos' statement that the only issue before thi: Board is, simply,the validity of Commissioner Nicetta's decision of August 25, 2003 that eone.l uded that Material Installations is in full compliance with the Special pen-nit. Specifically,the Board must decide only whether"[the] order or decision of the Building Inspector[is]ii; violation of any provision of[the Zoning]By-Law." North Andover Zoning By- Law, § 10.4. C,)nversely, the question that you reported last night as being referred by the Planning Board to town counsel, i.e.,whether the Special Permit can be revised unilaterally despite Material Installation's compliance with each of its conditions,is not relevant at all to the validity of Commissioner Nicetta's decision under the Special Permit and Zoning By-Law as they currently exist, While we believe that town counsel will agree with us that there is no basis in law whatsow,er for the notion that Material Installation's property rights wider the Special Permit can be unilaterally revised or rescinded,the more salient point is that the answer to that question should have no bearing on the decision that the ZBA must make. Therefore, further delay in that decision is unnecessary. On the merits of Commissioner Nicetta's well-supported decision that Material Installations is WHY complying with the Special Permit,there is, as I argued last evening,no reasonable disXute that that decision was made in full compliance with the Zoning By-Law and, therefore,Mr. aad Mrs. Balos' appeal of that decision cannot stand. Specifically, and to reiterate the Commissioner's conclusions,it is indisputable that the neither the Special Permit nor the b oston Washington Re-rion New York New Haven Los Angeles London � l WE JAIN 1 r. 2004 BOARD OF APPEALS 01/14/2004 15:23 FAX 617 542 2241 MINTZ LEVIN10003 MINTz,LEVIN,O.iHN,FERRIS,GLOuSKYAND POPEo,P.C. Walter F. Soule:,,Acting Chairman January l4,2004 Page 2 Zoning By-Law places restrictions on the hours of operation at 11 Bayfield Drive(though Material Install:itions voluntarily has limited the times of operation for truck traffic at the site), or on the type of business operation there(though the"assembly and live storage"that have and continue to tak,: place there are fully compliant),or on noise levels(though,as noted,noise from truck traffic ha,_been minimized), and, further,that Material Installations is in full compliance with the"plant,:;d arborvitae"and fence conditions that are relevant to the Balos' complaint(and, in addition,MF.,.eria1 Installations voluntarily has installed signs to control truck traffic). In short, I respectfully urge the ZBA to act,without further delay,on the only issue before it--the validity of Commissioner Nicetta's decision--and to deny the Balos' meritless appeal at the February 10,2004 meeting. If I can;mswer any questions or provide any additional information of this matter,please do not hesitate 1 o contact me. Thank you for your consideration. WnB. n. cc: Zoning.3oard of Appeals members D.Rob.::rt Nicetta, Building Coirnnissioner Thoma;;J.Urbelis, Esq., Town Counsel Mr.Konstantinos Balos Mr_MichaeI Farrow LIT 1438562v1 Town of North AndoverNORT►i pf tt Lau Office of the Zoning BoAr&of Appeals o Community DevelopmenttiEices Division 27 Charles*044 nn 0 N North Andover,Massachusetts 01845 'sS,it:HUSE` D. Robert Nicetta ' l �;'X;'' I L G a Telephone(978)688-9541 Building Commissioner Fax (978) 688-9542 Date'14ti3 ° 'A TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845_ Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance Special Permit C m rehensive Permit (40B)- for property located at: TOWN: TO MEETING DATE(S): NAME OF PETITIONER: Signed: 5 Petitioner (or petitioner's representative) WAIVER .E a� Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 70 i , BOARD U� THE ZONING BY LAW TOWN OF NORTH ANDOVER, MASSACHUSETTS 1972 Reprinted 1987 NORTil O -q O '9SS SE�� �CHU PLANNING BOARD 2C 2,' -P . _ ,l .s TABLE OF REVISIONS REVISED ZONING BYLAWS OF THE TOWN OF NORTH ANDOVER MASSACHUSETTS AMENDMENT # ZONING BYLAW BRIEF TITLE SECTION 1985/12 4 . 135 (4) LAKE COCHICHEWICK AMEND . 1985/13 4 . 135 (2) (a) WATERSHED DISTRICT 1985/15 2. 65 SPGA DEFINITION AMEND. 1985/20 4 . 11 (5) GENERAL PROVISION 1985/21 2. 29 .1 DAY CARE CENTER 1985/23 ALL DIST. DAY CARE CENTER 1985/24 -7 .4 . 1 LOT WIDTH 1985/25 2. 30 .1 DEFINITION OF DRIVEWAY 1986/13 4 . 2 ESTABLISHED PHASED DEV. 1986/15 10 . 13 PENALTY FOR VIOLATION 1986/16 7 . 1 CBA REQUIREMENTS 1986/17 4 . 121 (a) (b) PUBLIC/PRIVATE EDUCATION 1986/18 ALL DIST . MUNICIPAL BUILDINGS 1986/100 4 . 121 (6) (a,d,e) SALE OF AG. PRODUCTS 1987/8 TABLE '2 R-1 DIST. LOT AREA CHANGES 1987/10 8 . 5 ESTABLISHED PRD 1987/11,28 8 . 3 (1) STANDARDS FOR SITE PLAN 4 . 123 ESTABLISHED VR DISTRICT 1987/12 8 .4 ESTABLISHED LANDSCAPE STD. 8 . 1 (13) PARKING IN VR DISTRICT 4. 128 ESTABLISHED VC DISTRICT 1987/14 TABLE 1 DELETED"HELISTOP" 1987/16 3.4 ESTABLISHED HISTORIC DIST. 1987/20 2. 38 .1 DEF . FLOOR AREA, GROSS } f 1987/21 2.38 .2 DEF. FLOOR AREA, NET 1987/22 2. 37 .1 DEF. OF FAMILY SUITE 1987/23 2.34 AMENDED DEF. OF TWO FAMILY DWELLING 1987/24 4. 122 TWO FAMILY DWELLING IN R-4 1987/25 4. 131 (3) RETAIL USE- INDUSTRIAL 1987/26 8 .1 (2) OFF STREET PARKING 1987/27 8 .1 (2) OFF STREET PARKING 1987/28 8 . 3 SITE PLAN REVIEW CRITERIA 1987/29 4. 135 (4) (A) WATERSHED DISTRICT 1987/83 8 .6 STANDARDS; SATELITE DISCS SECTION 1 PURPOSES The purpose of this By-Law is the promotion of the health, safety, convenience, morals and welfare of the inhabitants of the Town of North Anodver , as provided by Chapter 40-A of the General Laws of the Commonwealth of Massachusetts, as amended by. Chapter 808 , Acts of 1975 , and as they may be further amended, by regulating and restricting the use of land and buildings, thereby: 1. encouraging the most appropriate use of land, 2. preventing overcrowding of land, 3 . conserving the value of land and buildings , 9 4. lessening congestion of traffic, 5 . preventing undue concentration of population, 6. providing adequate light and air , 7 . reducing the hazards from fire and other ,danger , 8 . assisting in the economical provision of transportation, water , sewerage, schools, parks and other public facili- ties , 9 . controlling the use of bodies of water , including water- courses , 10 . reducing the probability of losses resulting from floods, and 11. preserving and increasing the amenities of the town. 1 r� SECTION 4 BUILDINGS AND USES PERMITTED 4. 1 District Use Regulations 4 .11 General Provisions (1) In the zoning districts above specified, the following designated buildings and alterations and extensions thereof and buildings accessory thereto and the following designated uses of land, buildings, or parts thereof and uses accessory thereto are permitted. All other buildings and uses are hereby expressly pro- hibited except uses which are similar in character to the permitted uses shall be treated as requiring. a Special Permit (1985/26 ) . (2) When a lot in one ownership is situated in part in the Town of North Andover and in part in an adjacent town or city, the provisions; regula- tions and restrictions of this By-Law shall be applied to that portion of such lot as lies in the Town of North Andover in the same manner as if the entire lot were situated therein. (3 ) When a zoning district boundary divides a lot of record on June 5 , 1972 in one ownership, all the zoning regulations set forth in this Zoning By-Law applying to the greater dart by area of such lot so divided may, by Special Permit , be deemed to apply and govern at and beyond such zoning district boundary, but only to an extent not more than one hundred (100) linear feet in depth (at a right angle to such boundary) into the lesser part by area of such lot so divided. (4) Accessory uses, as defined herein, shall be on the same lot with the building of the owner or occupant, and shall be such as not to alter the character of the premises on which they are lo- cated nor impair the neighborhood. Where manu- facturing of any kind is allowed as an accessory use, it shall be restricted to such light manu- facturing as is incidental to a permitted use and where the product is customarily sold on the premises by the producer to the consumer. (5 ) No private or public (1985/20) way giving access to a bui-lding or use not permitted in a 14 i residential district shall be laid out or I constructed so as to pass through a residential district. 4 . 12 Permitted Uses i 4.121 Residence 1 District Residence 2 District Residence 3 District (1) One family dwelling, but not to exceed one. dwelling on any one lot. (2) Place of worship. (3) Rooming house, renting rooms for dwelling pur- poses or .furnishing table board to not more than four (4) persons not members of the family resident in a dwelling so used, provided there be no display or advertising on such dwelling or its lot other than a name place or sign not to exceed six (6) inches by twenty-four (24) inches in size, and further provided that no dwelling shall be erected or altered primarily far such use. (4) For the use of a. dwelling in any residential district or multi-family district for a home occupation, the following conditions shall apply: a) Not more than a total of three (3 ) people may be employed in the home occupation, one of whom shall be the owner of the home occupation and residing in said dwelling; b) The use is carried on strictly within the principal building; c) There shall be no exterior alterations , accessory buildings, or display which are not customary with residential buildings; d) Not more than twenty-five (25) percent of the existing gross floor area of the dwelling unit so used, not to exceed one thousand (1 ,000) square feet, is devoted to ,such use. In connection with such use, there is to be kept no stock in trade, commodities or products which occupy space beyond these limits; 15 . (8) a) Farming of field crops and row crops, truck gardens, orchards, plant nurseries, and greenhouses. b) On any lot of at least five5 ( ) acres, the keeping of a total of not more than five (5) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to nine (9) acres, the keeping of one additional animal or bird; but not the keeping of any animals , birds, or pets of persons not resident on - such lot. c) On any lot of at least ten (10 ) acres, the keeping of any number of animals or birds regardless of ownership. and the operation of. equestrian riding academies, stud farms , dairy farms, and poultry batteries. d) The sale of products raised as a result of the above uses on the subject land. (9) Day Care Center by Special Permit (1985/23) 4 . 131 Industrial 1 District (1) Research and development facilities. (2) Business, professional and other offices. (3) Retail and Food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use. No more than ten percent (10%) of the gross floor area of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have 10% of gross floor area (GFA) devoted to any accessory use. (Refer to Section 2. 21, Definition of Accessory Use Structure) . (1987/25) (4) Place of worship. (5) Nonprofit school or private school for profit. (6) Public building or use and public service cor- porations. (7) Medical center , clinic, or medical laboratory. (8) Art gallery or museum. (9) Swimming and/or tennis clubs and/or indoor ice skating facilities shall be permitted with a Special Permit. (10) Printing and reproduction. (11) Helistop (defined as a landing and take-off place for a helicopter, but not including facilities for storage or major repair of helicopters) . Special Permit required. (12) Light manufacturing , including manufacturing , fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive noxious detrimental or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor , noise , vibration, light or other adverse environmental effect. (13) a) Farming of field crops and row crops, truck gardens, orchards, plant nurseries, and greenhouses . b) On any lot of at least three (3 ) acres , the keeping of a total of not more than three (3 ) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre .of lot size to nine (9) acres, the keeping of one additional animal or bird; but not the keeping of any animals , birds, or pets of persons not resident on such lot. c) On any lot of at least ten (10 ) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d) The sale of products raised as a result of the above uses on the .sub •Ject land (14) Warehousing and wholesaling shall be permitted 17 F f only as a secondary use. (15) Golf course. (16 ) Parking, indoor storage and other accessory y uses customarily associated with the above uses, pro- vided that such accessory use shall not be in- furious, noxious, or offensive to the neighbor- hood. (17 ) Day Care Center by Special Permit (1985/23) 4 . 132 Industrial 2 District (1) Research Ernd development facilities . (2) Business, professional, and other offices. (3) Accessory retail, personal service and eating and drinking use shall be permitted in an amount not to exceed ten percent (10%) of the total gross floor area of the principal uses. (4 ) Place of worship. (5 ) Nonprofit school or private school for profit . (6 ) Public service corporation and energy or re- source recovery facility. (7) Medical center, clinic, or medical laboratory. (8) Art gallery. (9) Swimming and/or tennis clubs shall be permitted with a Special Permit. (10 ) Printing and reproduction. (11) Helistop (defined as a landing and take-off place -for a helicopter, but not including facilities for storage or major repair of helicopters) . Special Permit required. (12) Light manufacturing , including manufacturing , fabrication, processing, finishing, assembly, packing , or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town 38 .• I M I ! by reason of dust, smoke, fumes, odor , noise , vibration, light, or other adverse environmental effect. i (13) a) Farming of field crops and row crops, truck gardens, orchards, plant nurseries, and greenhouses. b) On any lot of at least three (3 ) acres, the it keeping of a total of not more than three (3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to nine (9 ) acres, the keeping of one additional animal or bird; but not the keeping of any animals , birds, or pets of persons not resident on such lot.. c) On any lot of at least ten (10 ) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms , and poultry batteries. i d) The sale of products raised as a result of the above uses on the subjet land. (14) Warehousing and wholesaling . (15) Golf course. (16 ) Lumber or other building materials storage or sales, fuel storage or contractor ' s yard, pro- vided all outdoor uses are enclosed by a fence of five (5) feet or more. in height. (17 ) Bus garage. (18 ) Automobile service station ( limited to one in each 2 ,000 linear feet of street or highway as measured along centerline) . (19) Car wash. (20) Automobile or other motor vehicle repair , pro- vided -all activities are within an enclosed building. (21) Veterinary hospital and kennels, provided all activities are within an enclosed building. �o R (22) Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. (23) Day Care Center by Special Permit (1985/23) 4 . 133 Industrial 3 District (1) Public buildings. (2) Public garages and accessory buildings. (3 ) Public service corporations. (4 ) Public sanitary disposal site . (5) Public storage of equipment. (6 ) All uses permitted in the Industrial 1 District. (7) Day Care Center by Special Permit (1985/23) 4 . 134 Industrial "S' District (1) Research and development facilities . . (2) Business , professional and other offices. (3 ) Place of worship. (4 ) Nonprofit school or private school for profit. (5) Public building or use and public service cor- poration. (6 ) Printing and reproduction. (7 ) Light manufacturing , including manufacturing , fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise , other commercial non-retail activity, provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor , noise, vibration, light or other adverse environmental effect. U.S. Department of Labor, Bureau of Labor Statistics, Bulletin 2541-Trucking and Warehou; U.S.Department of Labor I Bureau of Labor Statistics I Bulletin 2541 Trucking and Warehousing . I I Significant Points o Truckdrivers hold one-half of all trucking and warehousing jobs. o Job opportunities are expected to be good for qualified truckdrivers and service technicians. o A growing proportion of the Nation's freight is being transported by truck, but business in the industry is prone to rise and fall with upswings and downturns in the overall economy. Na eemf the Industry Firms in the tracking and warehousing industry provide a link between manufacturers and consumers. Businesses, and occasionally individuals, contract with trucking and warehousing companies to pick up, transport, store, and deliver a variety of goods. This industry includes two segments, local and long-distance trucking and terminals and public warehousing and storage. However, the trend towards full-service logistical companies is blurring the distinction between trucking and warehousing. http://www.bis.gov/oco/cg/print/cgsO21.htmrl - _. S s / I December 1, 2003 66 Meadowood Road North Andover, MA 01845-5927 Town of North Andover Community Development Office Heidi Griffin, Director 27 Charles Street North Andover, MA 01845 Fax: 978-688-9542 Subject: Planning Board.Conditional Approval - Noise Barriers Re: Materials Installations, Inc., 11 Bayfield Drive, North Andover, MA. Dear Ms. Griffin: This letter is written under the recommendation of Zoning Board member Walther Soule during a November 18, 2003 hearing regarding the noise nuisance caused by Material Installations to its residential neighbors. A finding of the following was requested: 1) That Material Installations is not zoned for its current location and has become a nuisance to its residential neighbors; and 2) That the Planning Board's 1987 Conditional Approval regarding "noise barrier" restrictions be amended to accomplish its original intent relative to "activity at night, trucks, noise, and lights." Material Installations - Type of Business Town, Commonwealth, and Merrimack Valley Planning Commission (MVPC) records indicate that Material Installations is a warehouse/wholesaler business. According to the U.S. Labor Department (DOL), the nature of this industry includes trucking. The DOL also indicates that there is a "blurring distinction" between "trucking and warehousing." The truck activity at Material Installations causes various types of noise and vibrations which interfere with the quiet enjoyment of my property. This includes: a) Shipping dock operations that regularly begin between 6 and 7 a.m.; b) Truck Activity; c) Operation of waste compactor; d) Trucks regularly idling over 5 minutes e) Nighttime activities (e.g., truck operations - truck fueling, truck idling, etc.); and f) Loud voices of workers. Zonin As you are aware, zoning protects adjoining property owners from incompatible uses and enhances overall quality of life. Material Installations is zoned by the Town of North Andover as "Industrial-1." The properties in the Meadowood neighborhood are zoned as "Residential-6." They are distinctly residential consisting of single-family homes. Furthermore, there are no access roads between the two districts. Section 4.132, of the North Andover Zoning By-laws states the following: Paragraph 13. Warehousing and wholesaling shall be permitted only as a secondary use. Paragraph 15 (4.132) states: "accessory use shall not be injurious, noxious or offensive to the neighborhood." In addition, section 4.1.1 (General Provisions) states that "Accessory uses, as defined herein, shall be on the same lot with the building of the owner or occupant, and shall be such as not to alter the character of the premises on which they are located nor impair the neighborhood." Planning Board - Noise Barriers A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes residential abutter concerns with regard to "activity at night," "trucks," "noise" and "lights." During the Site Plan Review (August 3 8v 17, 1987) the use of"evergreens and fencing to be looked into for possible noise barriers" as well as "the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer" were inputted. Furthermore, during the Planing Board's conditional approval of the Special Permit (August 31, 1987), in response to noise concern, proponents, "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." As a result, the conditional approval (September 2, 1987) includes a landscape plan with a "row of planted arborvitae to the rear of the building" as well as "a six (6) foot closed stockade fence be erected along the property line." Research - Noise Barriers Expert research indicates that the aforementioned noise buffers are ineffective in that it only provides psychological relief and does not physically lessen noise. The Federal Highway Administration (FHWA) indicates that "Vegetation, if high enough, wide enough, and dense enough (cannot be seen through), can decrease noise. A 200-foot width of dense vegetation can cut the loudness of noise in half. The FHWA also indicates that effective noise barriers can reduce noise levels in half. They can be constructed to be visually pleasing and blend in with their surroundings. However, for a noise barrier to work, it must be high enough and long enough to block the view of the [source of noise]. North Andover Police Department records indicate noise complaints against Material Installations from at least early 1998. The town has a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Davis v. Sawyer, (133 Mass. 289, 290, 43 Am. Rep. 519), the Supreme Court of Massachusetts said "'Noise which constitutes an annoyance to a person of ordinary i sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance." The Massachusetts Supreme Court (Ferriter v. Herlihy, 287 Mass. 138) stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others." In Shea v. National Ice Cream Co.. Inc., (280 Mass. 206, 211) the court said, "'the defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to sleep at night in their own homes." Furthermore, in Weltshe v. Graf(323 Mass. 498), plaintiff landowners and the defendant trucking company were located at the boundaries of a district zoned for business and a district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin defendant-trucking company from operating its business as a nuisance due to truck terminal noises. The Massachusetts Judicial Supreme Court ordered that a decree be entered in favor of the landowners enjoining the trucking company from shipping-related activity. The court also affirmed that a "zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." It is requested that appropriate action be taken to amend the conditional approval with regard to noise barriers by providing an effective long-term solution. It is also requested that actions be coordinated with the Zoning Board of Appeals as necessary. I am available to attend any meetings and/or provide further information. Should you require additional information, please contact me at the above address or via telephone at 978-683-3414 (home) or 617-557-1235 (work). Thank-you for your time and attention to this important matter. Sincerely, Konstan inos "Dino" Balos Attachments cc: Zoning Board of Appeals Planning Department Assistant Town Manager Attorney Matthew C. Donahue Highway Traffic Noise - FHWA The third part of the highway noise reduction strategy is highway planning and design. Early in the planning stages of most highway improvements, highway agencies do a noise study. The purpose of this study is to determine if the project will create any noise problems. First, the existing noise levels of a highway are measured or computed by models. Then, the agency predicts what the noise levels will be if the project is constructed. If the predicted noise levels are above Federal noise criteria, the noise study must consider measures that can be taken to lessen these adverse noise impacts. This information is reported at public meetings and hearings if they occur. Noise Reduction on Existing Roads Some noise reduction measures that are possible on existing roads or on roads that are being rebuilt include creating buffer zones, constructing barriers, planting vegetation, installing noise insulation in buildings, and managing traffic. Buffer zones are undeveloped open spaces which border a highway. Buffer zones are created when a highway agency purchases land, or development rights, in addition to the normal right of way, so that future dwellings cannot be constructed close to the highway. This precludes the possibility of constructing dwellings that would otherwise experience an excessive noise level from nearby highway traffic. An additional benefit of buffer zones is that they often improve the roadside appearance. However, because of the tremendous amount of land that must be purchased and because in many cases dwellings already border existing roads, creating buffer zones is often not possible. 'S Na 10 b e✓'Mb�� �f .G' 4•. I C r Y :t y ; Open space can be left as a buffer zone between residences and a highway. Noise barriers are solid obstructions built between the highway and the homes along the highway. Effective noise barriers can reduce noise levels by 10 to 15 decibels, cutting the loudness of traffic noise in half. Barriers can be formed from earth mounds along the road (usually called earth berms) or from high, vertical walls. Earth berms have a natural appearance and are usually attractive. However, an earth berm can require quite a lot of land if it is very high. Walls take less space. They are usually limited to 25 feet in height for structural and aesthetic reasons. Noise walls can be built of wood, stucco, concrete, masonry, metal, and other materials. Many attempts are being made to construct noise barriers that are visually pleasing and that blend in with their surroundings. However, barriers do have1 imitations. For a noise barrier to work, it must be high enough and long enough to block the view of a road. Noise barriers do very little good fors on -ray Traffic Noise - FHWA i a hillside overlooking a road or for buildings which rise above the barrier. Openings in noise - - walls for driveway connections or intersecting streets destroy the effectiveness of barriers. In some areas, homes are scattered too far apart to permit noise barriers to be built at a reasonable cost. Earth Berm Noise Barrier i q Wooden Noise Barrier IL AN Concrete Noise Barrier witioodgrain Texture tlnsh;et�e��!ovs Sl��: rfet!Huse P,�OJS'Barrier Highway Traffic Noise - FHWA ` Shadow Effect of Noise Barrier The lower house is protected by the barrier, but the upper one is not. Vegetation, if high enough, wide enough, and dense enough (cannot be seen through), can decrease highway traffic noise. A 200-foot width of dense vegetation can reduce noise by 10 decibels, which cuts the loudness_of traffic noise in half. It is often impractical to plant enough vegetation along a road to achieve such reductions; however, if dense vegetation already exists, it could be saved. If it does not exist, roadside vegetation can be planted to create psychological relief, if not an actual lessening of traffic noise levels. 200 Piet Loudness Cut in Half No Noise Reduction (Psychological) Vegetation and Noise Reduction Insulating buildings can greatly reduce highway traffic noise, especially when windows are sealed and cracks and other openings are filled. Sometimes, noise-absorbing material can be placed in the walls of new buildings during construction. However, insulation can be costly because air conditioning is usually necessary once the windows are sealed. In many parts of the country , highway agencies do not have: the authority to insulate buildings. In those states, insulation cannot be included as part of a hi.ghway project. Managing traffic can sometimes reduce noise problems. For example, trucks can be prohibited from certain streets and roads, or they can be permitted to use certain streets and roads only during daylight hours. Traffic lights can be changed to smooth out the flow of traffic and to eliminate the need for frequent stops and starts. Speed limits can be reduced; however, about a 20 mile-per-hour reduction in speed is necessary for a noticeable decrease in noise levels. Pavement is sometimes mentioned as a factor in traffic noise. While it is true that noise .levels do vary with changes in pavements and tires, it is not clear that these variations are significant when compared to the noise from exhausts and engines, especially when there are a large number of trucks on the highway. More research is needed to determine to what extent different types of pavements and tires contribute to traffic noise. Until this research is completed, the use of different types of pavement cannot be depended upon to reduce traffic noise. Noise Reduction on New Roads All of the measures described above can be employed on both existing roads and new roads. There are, however, some additional measures which can usually be used only on Town of North Andover TM Office of the Zoning Board of Appeals Community Development and Services Division 27 Charles Street ` °`.— verso North Andover,Massachusetts 01845 "SS,c►+USEt`� D. Robert Nicetta Telephone (978) 688-95, Building Commissioner Fax (978) 688-9� Date TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover MA 01845 Please be advised that I.have agreed to waive the time constraints for the North. Andover Zoning Board of Appeals to make a decision regarding the granting of a N Variance ' Special Permit- ';c�A Com rehensive Permit (40B) CD 1 "- in r�c� 4'✓ ) r for property located at: I 1 STREET: a ► �d r �� TOWN: TO MEETING DATE(S): � NAME OF PETITIONER: Signed: Petitioner (or petitioner's representative) WAIVER Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 �3� �,_ „ 11/18/2603 16:13 5088333150 HORSLEY + w111 EN NHuE e2 �l 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 15.003: continued (3) Local approving authorities may enact more stringent regulations to protect public health,safety,welfare and the environment only in accordance with M.G.L.C. 111,131 and M.G.L.c.21 A,¢ 13. (4) Local requirements,or portions thereof,which were in effect prior to March 31, 1995 and which are less stringent than 310 CMR 15.000 shall not be applied to new construction, upgrade or expansion of existing systems. (5) Local regulations adopted under M.G.L.c. 111,¢31 shall be filed with the Department's Division of Water Pollution Control Boston Office and the appropriate Regional Office of the Department in accordance with M.G.L.c.21A,§ 13. AppligabilitY (1) The provisions set forth at 310 CMR 15.280 through 15.289(alternative systems)Shall take effect on November 10, 1994 and the provision set forth at 310 CMR 15.100(2) (requirement for soil evaluation)shall take effect on January 1, 1996. All other provisions of 310 CMR 15.000 shall take effect on March 31,199S provided the Department publishes in the Massachusetts Register a determination that it has granted approval for general use(t.a. use in new construction as well as remediation)to at least two alternative systems in addition to those listed at 310 CMR 15.289,with costs comparable to conventional systems designed pursuant to 310 CMR 15.000. Except as otherwise provided in 310 CMR 15.005(transition rules),any application filed on or after the effective date shall be governed by 310 CMR 15.000. C(2) The approving authority shall not rpprove the construction,upgrade,or expansion of an on-site subsurface sewage disposal system unless it is: (a) a system serving or designed to receive only sanitary sewage from a facility where the total design flow generated on the facility.is less than 10,000 gallons per day; (b) a system or systems serving it facility with a total design flow of 10,000 gpd or greater but less than 13,000 gpd constructed in accordance with 310 CMR 15.005(7) (transition rule)and 15.006(design flows of 1000 MA or greater but less than 15,000 gpd);or (c) a facility for which subdivision approval has been obtained,to construct dwellings with a cumulative total design flow of 10,000 gpd or greater provided that a disposal system construction permit to construct a system io compliance with 310 CMR 15.000 on each of the subdivision lots to be served by a system is obtained and such separate subdivision lots arc to be conveyed to independent owners. (3) No system shall serve more than ons:facility except as explicitly allowed pursuant to 310 CMR 13.010 (division and aggregation) or 310 CMR 15.290 through 15.292 (shared sy�ems). (4) No new system shall be constructed,and no system shall be upgraded or expanded,if it is feasible to connect the facility to a sanitary sewer,except in the following circumstances: (a) the system is an alternative system approved for such use pursuant to 310 CMR 15.280 through 15.287 and the Department has made the determination: 1. in approving the remedial use of an alternative system pursuant to 310 CMR 15.284 that any person using such system need not connect the facility to such sanitary sewer;of 2. in granting provisional approval of an alternative system pursuant to 310 CMR 15.286 that the alternative system is likely to provide a level of environmental protection at least equivalent to that of a sewer;or 3. in certifying in an alternative system for general use pursuant to 310 CMR 15.288 that the performance of the alternative system will provide a level of protection to public health and safety and the environment that is at least equivalent to that of a sewer;or (b) the owner of an existing system has obtained a variance from this requirement pursuant to 310 CMR 15.410 through 15.415. 12/27/96 310 CMR-491 NOV � 1a2oo3 BOARD OF APPEALS �.no3 _ 037 f i D.S. Department of Labor.J Bureau of Labor Statistics Bulletin 2541 Trucking and Warehousing I i I 1 Significant Points • Ti uckdrivers hold one-half of all trucking and warehousing jobs. • Job opportunities are expected to be good for qualified truckdrivers and service technicians. j • A growing proportion of the Nation's freight is being transported by truck, but business in the industry is prone to rise and fail with upswings and downturns in the overall economy. Nature of the Industry Firms in the trucking and warehousing industry provide a link between manufacturers and consumers. Businesses, and occasionally individuals, contract with trucking and warehousing companies to pick up, transport, store, and deliver a variety of goods. This industry includes two segments, local and long-distance trucking and terminals and public warehousing and storage. However, the trend towards full-service logistical companies is blurring the distinction between trucking-and warehousing. Local and long-distance trucking and terminals provide over-the-road transportation of cargo using motor vehicles, such as trucks and tractor trailers. This industry segment is further subdivided based on distance traveled and type of goods delivered. Local trucking establishments primarily carry goods within a single metropolitan area and its adjacent nonurban areas. Long-distance trucking establishments carry goods between distant areas. Courier service establishments handle individual letters and light packages. a,ov3� a3 ? !I- / � -a 3 �� ���►� Activity Log - Material Installations Shipping Area \_ J DATE TIME DESCRIPTION OF ACTIVITY (military hours) Feb 02, 2003 0030 -0600 Truck Idling Feb 03, 2003 No to Log of Feb 23, 2003 Actitiy Feb 24, 2003 2345 Truck Idling Feb 26, 2003 0400 Truck Idling Mar 01, 2003 0010 Truck Idling Mar 02, 2003 No to Log of Mar 22, 2003 Actitiy Mar 22, 2003 midnight Truck Idling Mar 25, 2003 0545 Truck Idling Mar 26, 2003 0515 Truck Idling Mar 28, 2003 2140 Truck Idling Apr 02, 2003 2125 Truck Idling Apr 04, 2003 0550-0830 Truck Idling Apr 04, 2003 2035 Truck Idling Apr 07, 2003 0600-0745 Truck Idling Apr 08, 2003 0730 Truck Idling Apr 14, 2003 0600-0745 Truck Idling Apr 15, 2003 0615-0722 Truck Idling Apr 17, 2003 0600-0745 Truck Idling Apr 18, 2003 0615-0745 Truck Idling Apr 19, 2003 0650-0730 Truck Idling Apr 22, 2003 0630-0720 Operating Waste Disposal Unit Apr 23, 2003 0605-0630 Operting Heavy Machinery Apr 23, 2003 0645-0730 Truck Idling Apr 25, 2003 0630-0745 Truck Idling Apr 26, 2003 0645 Truck Idling Apr 28, 2003 0605-0650 Truck Idling Apr 29, 2003 0615-0730 Truck Idling Apr 30, 2003 2225 Truck Fueling May 01, 2003 0620-0715 Truck Idling May 02, 2003 0625-0725 Truck Idling May 03, 2003 0615-0645 Truck Idling May 05, 2003 0445-0505 Truck Idling May 06, 2003 0630-0715 Operating Waste Disposal Unit May 08, 2003 0440-0505 Truck Idling May 08, 2003 2145-2210 Truck Idling May 10, 2003 1220-1235 Truck Fueling May 12, 2003 0550-0622 Truck Idling May 12, 2003 2300-2310 Truck Idling May 14, 2003 2115-2130 Truck Fueling May 15, 2003 0600-0630 Dumpster Operation May 16, 2003 0530-0615 Truck Idling May 17, 2003 0230-0245 Truck Idling May 17, 2003 0500-0510 Truck Idling May 24, 2003 0250-0315 Truck Fueling May 24, 20031 0800-0840 Truck Idling INOV 1 9 2003 bN Pagel of 8 80ARI OF APPEAL$ '>- t�D 3� � 37 Activity Log - Material Installations Shipping Area May 29, 2003 0630-0710 Truck Idling May 30, 2003 0620-0655 Truck Idling May 31, 2003 0235-0245 Truck Fueling May 31, 2003 0555-0720 Truck Operations Jun 02, 2003 2220-2230 Truck Fueling Jun 04, 2003 0630 Truck Idling Jun 04, 2003 2200 Truck Idling Jun 05, 2003 0600 Truck Idling Jun 06, 2003 0550 Truck Idling Jun 09, 2003 2250 Truck Fueling Jun 10, 2003 0555-0615 Truck Idling Jun 11, 2003 0800-0830 Truck Idling Jun 11, 2003 2245-2255 Truck Fueling Jun 12, 2003 0555-0655 Truck Idling Jun 13, 2003 0545-0600 Truck Idling Jun 13, 2003 0620-0635 Truck Idling Jun 13, 2003 0650-0720 Truck Idling Jun 14, 2003 0300 Truck Activity Jun 14, 2003 0700 Truck Activity Jun 16, 2003 0550-0615 Truck Idling Jun 16, 2003 0650-0700 Truck Idling Jun 18, 2003 0600-0610 Truck Idling Jun 18, 2003 0640-0655 Operation of Machinery Jun 18, 2003 2105-2115 Truck Idling Jun 18, 2003 2230-2345 Truck Idling Jun 19, 2003 0605-0610 Truck Idling Jun 20, 2003 0550 Loading Activity Jun 20, 2003 0555-0605 Truck Idling Jun 20, 2003 0630-0650 Truck Idling Jun 20, 2003 0730-0755 Truck Idling Jun 20, 2003 2135-2140 Truck Idling Jun 20, 2003 2150 Truck Activity Jun 21, 2003 0720 Truck Activity Jun 22, 2003 0615-0630 Loading Activity Jun 22, 2003 0650 Truck Activity Jun 23, 2003 0557-0607 Truck Idling Jun 23, 2003 0615 Truck Activity Jun 23, 2003 0630 Truck Activity Jun 23, 2003 2000-2010 Truck Idling Jun 23, 2003 2230 Truck Activity Jun 24, 2003 0620 Truck Activity Jun 24, 2003 0700-0820 Operation of Machinery Jun 24, 2003 2215 Truck Activity Jun 25, 2003 0712-0723 Truck Idling Jun 26, 2003 0700 Truck Activity Jun 26, 2003 0720-0845 Truck Idling Jun 27, 2003 0715 Truck Activity Jul 01, 2003 0710 Truck Activity Jul 02, 2003 0720 Truck Activity Jul 08, 2003 2155 Truck Activity Jul 09, 2003 230-2240 Truck Idling Jul 10, 2003 0705-0750 Truck Idling Page 2 of 8 Activity Log - Material Installations Shipping Area Jul 11, 2003 2300 Truck Activity Jul 12, 2003 0615-0700 Truck Idling Jul 13, 2003 0610 Truck Activity Jul 13, 2003 0628 Truck Activity Jul 13, 2003 0630-0638 Van Idling Jul 14, 2003 0600 Truck Activity Jul 14, 2003 0604-0622 Truck Activity Jul 14, 2003 0700-0707 Truck Idling Jul 14, 2003 2135-2200 Truck Idling .Jul 15, 2003 0600-0635 Truck Idling Jul 16, 2003 0550-0600 Truck Idling Jul 17, 2003 0600 Truck Activity Jul 17, 2003 0650-0700 Truck Idling Jul 18, 2003 ' 0630 Truck Activity Jul 19, 2003 0225-0235 Truck Fueling Jul 20, 2003 0700 Truck Activity Jul 21, 2003 0703 Truck Activity Jul 22, 2003 0700 Truck Activity Jul 23, 2003 0640-0725 Truck Idling Jul 24, 2003 0710-0737 Loading Activity Jul 25, 2003 0700 Truck Activity Jul 25, 2003 2335 Truck Activity Jul 28, 2003 0610-0615 Truck Activity Jul 30, 2003 0610 Truck Activity Jul 30, 2003 0636 Truck Activity Jul 30, 2003 2145 Truck Activity Jul 31, 2003 0603 Truck Activity Jul 31, 2003 0614 Truck Activity Jul 31, 2003 0633 Loading Activity Jul 31, 2003 0638 Truck Activity Aug 01, 2003 0646 Loading Activity Aug 02, 2003 0645 Truck Activity Aug 04, 2003 0645 Loading Activity Aug 04, 2003 0705-0726 Truck Idling Aug 05, 2003 0615 Loading Activity Aug 05, 2003 0640 Truck Activity Aug 05, 2003 0646-0703 Truck Idling Aug 06, 2003 0610-0630 Truck Idling Aug 06, 2003 0642-0647 Truck Idling Aug 06, 2003 0655-0710 Loading Activity Aug 07, 2003 0600 Truck Activity Aug 07, 2003 0603 Truck Activity Aug 07, 2003 0617-0652 Loading Activity Aug 07, 2003 0652 Truck Activity Aug7 2003 0721- 7 g 0 31 Truck Idling Aug 08, 2003 0548 Truck Activity Aug 08, 2003 0550 Loading Activity Aug 08, 2003 0605 Truck Activity Aug 08, 2003 0616 Truck Activity Aug 08, 2003 0623 Truck Activity Aug 08, 2003 0714-0720 Truck Activity Aug 09, 2003 No Log Page 3 of 8 i Activity Log - Material Installations Shipping Area to of Aug 11, 2003 Activity Maintained Aug 12, 2003 0615 Truck Activity Aug 12, 2003 0634 Truck Activity Aug 12, 2003 0639-0659 Truck Idling Aug 12, 2003 0641 Truck Activity (Separate) Aug 12, 2003 0705-0720 Operation of Machinery Aug 13, 2003 0552 Truck Activity Aug 13, 2003 0620 Loading Activity Aug 13, 2003 0638 Loud Music Aug 13, 2003 2100 Truck Fueling Aug 14, 2003 0839-0859 Truck Idling Aug 15, 2003 0620 Loading Activity Aug 18, 2003 0615 Loading Activity Aug 18, 2003 0640-0720. Truck Idling Aug 18, 2003 0654-0714 Truck Idling (Separate) Aug 18, 2003 2249-2254 Truck Fueling Aug 20, 2003 0629 Truck Activity Aug 20, 2003 0702-0709 Truck Idling Aug 21, 2003 0605-0640 Loading Activity Aug 21, 2003 0700-0717 Truck Idling Aug 22, 2003 0607 Loading Activity Aug 22, 2003 0622-0656 Truck Idling Aug 22, 2003 0643-0650 Truck Idling (Separate) Aug 22, 2003 0645-0655 Truck Idling (Separate) Aug 22, 2003 2110-2113 Truck Activity Aug 23, 2003 0722-0735 Truck Idling Aug 25, 2003 0615 Loading Activity Aug 25, 2003 0621-0624 Truck Idling Aug 25, 2003 0635-0637 Truck Idling Aug 26, 2003 0624-0626 Truck Idling Aug 27, 2003 0558-0605 Truck Idling Aug 27, 2003 0613 Truck Activity Aug 27, 2003 0617-0619 Truck Activity Aug 27, 2003 0625-0627 Truck Idling Aug 27, 2003 0632 Loading Activity Aug 28, 2003 0510 Truck Activity Aug 28, 2003 0611 Loading Activity Aug 28, 2003 0620-0657 Truck Idling Aug 29, 2003 0609 Truck Activity Aug 29, 2003 0610-0612 Truck Idling Aug 29, 2003 0638-0640 Truck Idling Aug 29, 2003 0648 Truck Activity Sep 02, 2003 0130-0137 Truck Idling Sep 02, 2003 0550 Truck Activity Sep 02, 2003 0605 Truck Activity Sep 02, 2003 0607-0613 Truck Idling Sep 02, 2003 0615-0638 Loading Activity Sep 03, 2003 0616 Truck Activity Sep 03, 2003 0653-0702 Truck Idling Sep 03, 2003 2131-2138 Truck Fueling Sep 04, 2003 0617 Truck Activity Page 4 of 8 Activity Log - Material Installations Shipping Area Sep 04, 2003 0640 Truck Activity Sep 05, 2003 0610 Loading Activity Sep 05, 2003 0618 Truck Activity Sep 05, 2003 2010-2017 Truck Fueling Sep 05, 2003 2037 Truck Activity Sep 08, 2003 0155 Truck Activity Sep 08, 2003 0633-0647 Loading Activity Sep 08, 2003 0712-0723 Truck Idling Sep 08, 2003 1934 Truck Activity Sep 09, 2003 0649 Truck Activity Sep 10, 2003 0553-0614 Truck Idling Sep 10, 2003 0618-0707 Truck Idling Sep 10, 2003 0619-0704 Truck Idling (Separate) Sep 10, 2003 0620-0651 Truck Idling (Separate) Sep 10, 2003 0725-0751 Truck Idling (Separate) Sep 11, 2003 0635 Truck Activity Sep 11, 2003 0705-0713 Truck Idling Sep 11, 2003 2158 Truck Activity Sep 12, 2003 0551 Truck Activity Sep 12, 2003 0642 Loading Activity Sep 12, 2003 0647 Truck Activity Sep 12, 2003 0653 Truck Activity Sep 12, 2003 0725-0736 Truck Idling Sep 12, 2003 2134 Truck Activity Sep 12, 2003 2236 Truck Activity Sep 13, 2003 0100 Truck Activity Sep 13, 2003 0657 Loading Activity Sep 15, 2003 0050 Loading Activity Sep 15, 2003 0627 Truck Activity Sep 15, 2003 0641 Loading Activity Sep 15, 2003 0651 Truck Activity Sep 15, 2003 0705 Operation of Machinery Sep 15, 2003 0705-0709 Truck Idling Sep 15, 2003 0745-0750 Truck Idling Sep 16, 2003 0130-0136 Truck Fueling Sep 16, 2003 0637 Operation of Machinery Sep 17, 2003 0705-0712 Truck Idling Sep 19, 2003 0523-0549 Truck Idling Sep 20, 2003 0703-0713 Truck Idling Sep 23, 2003 0558-0630 Truck Idling Sep 25, 2003 0530 Truck Activity Sep 26, 2003 No Log to of Sep 29, 2003 Activity Maintained Sep 30, 2003 0048 Truck Fueling Sep 30, 2003 0614 Truck Activity Sep 30, 2003 0624-0630 Truck Idling Sep 30, 2003 0625-0632 Separate Truck Idling Sep 30, 2003 0650 Operating of Compactor Sep 30, 2003 0652 Truck Activity Sep 30, 2003 0653-0700 Truck Idling Oct 01, 2003 2052-2059 Truck Idling Page 5 of 8 Activity Log - Material Installations Shipping Area Oct 02, 2003 0602 Truck Activity Oct 02, 2003 0605-0614 Truck Idling Oct 03, 2003 0617 Truck Activity Oct 03, 2003 0624 Truck Activity Oct 03, 2003 0626-0648 Truck Idling Oct 03, 2003 0630-0705 Truck Idling Oct 03, 2003 0640-0656 Separate Truck Idling Oct 03, 2003 2159-2206 Truck Fueling Oct 06, 2003 0605-0609 Truck Idling Oct 06, 2003 0615-0652 Truck Idling Oct 06, 2003 0631 Loading Activity Oct 06, 2003 0633 Separate Truck Idling Oct 06, 2003 0636-0703 Separate Truck Idling Oct 06, 2003 0638-0704 Separate Truck Idling Oct 07, 2003 0546 Truck Activity Oct 07, 2003 0548-0559 Truck Idling Oct 07, 2003 0613-0626 Loading Activity Oct 07, 2003 0628 Truck Activity Oct 07, 2003 0649-0709 Truck Idling Oct 07, 2003 0650-0711 Separate Truck Idling Oct 07, 2003 0651-0709 Separate Truck Idling Oct 07, 2003 0652-0731 Separate Truck Idling Oct 08, 2003 0717-0801 Truck Idling Oct 10, 2003 0634 Truck Activity Oct 10, 2003 0640-0708 Truck Idling Oct 10, 2003 0641 Truck Activity Oct 11, 2003 0323 Truck Activity Oct 13, 2003 0631 Truck Activity Oct 13, 2003 0712-0732 Truck Idling Oct 13, 2003 2056-2103 Truck Fueling Oct 14, 2003 0620 Loading Activity Oct 14, 2003 0647-0712 Truck Idling Oct 16, 2003 0600 Truck Activity Oct 16, 2003 0606 Separate Truck Activity Oct 16, 2003 0615 Separate Truck Activity Oct 16, 2003 0617 Separate Truck Activity Oct 16, 2003 0641 Separate Truck Activity Oct 16, 2003 0656-0702 Truck Idling Oct 20, 2003 0233-0239 Truck Fueling Oct 20, 2003 0601-0624 Truck Idling Oct 20, 2003 0605-0646 Separate Truck Idling Oct 20, 2003 0609-0638 Separate Truck Idling Oct 20, 2003 2150 Truck Fueling Oct 21, 2003 0631-0637 Truck Idling Oct 23, 2003 0554 Truck Activity Oct 23, 2003 0603-0709 Truck Idling Oct 23, 2003 0633-0707 Separate Truck Idling Oct 24, 2003 0650-0715 Truck Idling Oct 24, 2003 2208-2215 Truck Fueling Oct 25, 2003 0651-0704 Truck Idling Oct 27, 2003 0555 Loading Activity Oct 27, 2003 0605 Truck Activity Page 6 of 8 A U Activity Log - Material Installations Shipping Area Oct 28, 2003 0628 Truck Activity Oct 29, 2003 0615 Truck Activity Oct 29, 2003 0621-0648 Truck Idling Oct 30, 2003 0131 Truck Activity Oct 30, 2003 0640 Truck Activity Oct 30, 2003 0643-0651 Truck Idling Oct 30, 2003 0645-0700 Truck Idling Oct 31, 2003 0530 Truck Activity Oct 31, 2003 0553-0607 Truck Idling Oct 31, 2003 0554-0605 Separate Truck Idling Oct 31, 2003 0625-0634 Truck Idling Oct 31, 2003 2255-2302 Truck Fueling Nov 03, 2003 0610 Loading Activity Nov 04, 2003 0420-0432 Truck Idling Nov 05, 2003 0654-0705 Truck Idling Nov 05, 2003 0725-0806 Truck Idling Nov 05, 2003 2114-2124 Truck Fueling Nov 06, 2003 0553 Loading Activity Nov 06, 2003 0606-0611 Truck Idling Nov 06, 2003 0608 Separate Truck Activity Nov 06, 2003 0611 Separate Truck Activity Nov 06, 2003 2130 Truck Activity Nov 07, 2003 0600 Loading Activity Nov 07, 2003 0608-0613 Truck Idling Nov 07, 2003 0614 Loading Activity Nov 07, 2003 0616 Separate Truck Activity Nov 07, 2003 0618 Separate Truck Activity Nov 07, 2003 0646 Separate Truck Activity Nov 08, 2003 0640-0701 Truck Idling Nov 10, 2003 0653-0745 Truck Idling Nov 10, 2003 2300 Truck Activity Nov 10, 2003 2323 Separate Truck Activity Nov 10, 2003 2327-2338 Truck Idling Nov 11, 2003 0650-0703 Truck Idling Nov 11, 2003 0650-0708 Separate Truck Idling Nov 11, 2003 0650-0714 Separate Truck Idling Nov 11, 2003 0650-0715 Separate Truck Idling Nov 11, 2003 0650-0715 Separate Truck Idling Nov 11, 2003 0936-0951 Truck Idling Nov 11, 2003 1044-1126 Truck Idling Nov 12, 2003 0633-0649 Truck Idling Nov 12, 2003 0635-0643 Separate Truck Idling Nov 12, 2003 0650 Truck Activity Nov 13, 2003 0638 Truck Activity Nov 13, 2003 2240 Truck Activity Nov 14, 2003 0451 Truck Fueling Nov 14, 2003 0556 Truck Activity Nov 14, 2003 0558 Separate Truck Activity Nov 14, 2003 0635 Separate Truck Activity Nov 14, 2003 0636-0712 Truck Idling Nov 14, 2003 0646-0655 Separate Truck Idling Nov 14, 2003 2250 Truck Activity Page 7 of 8 y Activity Log - Material Installations Shipping Area Nov 15, 2003 0604 Truck Activity Nov 15, 2003 0606 Separate Truck Activity Nov 15, 2003 0611 Separate Truck Activity Nov 15, 2003 0650-0658 Truck Idling Nov 15, 2003 0703-0717 2 Trucks Idling Nov 17, 2003 0625 Truck Activity Nov 17, 2003 0628 Loading Activity Nov 17, 2003 0630 Truck Activity Nov 17, 2003 0640 Operation of Compactor Nov 17, 2003 0648-0709 Truck Idling Nov 17, 2003 0649-0706 Separate Truck Idling Nov 17, 2003 0649-0702 Separate Truck Idling Nov 17, 2003 0745-0754 Truck Idling TOTAL#OF MONITORED DAYS 212 (Excludes Sundays&Non-Monitored Days) TOTAL#OF NUISANCE ACTIVITY 164 (In Days) % OF NUISANCE ACTIVITY 77% Page 8 of 8 page 1 sw�Yi �{�At.l�► z,!l+s 1 E'hflE Ia:R Environment FP{4AtA>HEP%Enwon;nent>Noise>Products 'R� 54 ww, f nlll 4 s 3 Highway Traffic Noise f'm 5 0 fib` ,0&101 4gOW: m+� The Price of Progress In recent years, highway traffic noise - the unpleasant, unwanted sounds generated on our nation's streets and highways - has been of increasing concern both to the public and to local, State, and Federal officials. At the same time, modern acoustical technology has been providing better ways to lessen the adverse impacts of highway traffic noise. The purpose of this pamphlet is to explain some of these acoustical techniques which are now being employed by government agencies, highway planners and designers, construction engineers, and private developers. Sound and Noise As we all know, sound is created when an object moves: the rustling of leaves as the wind blows, the air passing through our vocal cords, and the almost invisible movement of the speakers on a stereo. This movement causes vibrations or waves in air molecules, like ripples on water. When the vibrations reach our ears, we hear sound. Sound is quantified by a meter which measures units called decibels (dB). For highway traffic noise, an adjustment, or weighting, of the high- and low-pitched sounds is made to approximate the way that an average person hears sounds. The adjusted sounds are called " A-weighted levels" (dBA). The A-weighted decibel scale begins at zero. This represents the faintest sound that can be heard by humans with very good hearing. The loudness of sounds (that is, how loud they seem to humans) varies from person to person, so there is no precise definition of loudness. However, lewd bn'gny tests of large numbers of people, a sound level of 70 is twice as loud to the listener as a level of 60. This principle is illustrated on the next page. NOV 1 7 2003 U BOARD OF APPEALS page 2 W� 'tnv cs zwk Ov % Causes of Traffic Noise The level of highway traffic noise depends on three things: 1) the volume of the traffic, (2) the speed of the traffic, and (3) the number of trucks in the flow oft9—traffic. Generally, the loudness of traffic n6ise is increased by heavier traffic volumes, higher speeds, and greater numbers of trucks. V —hicle noise is a combination of the noises produced by the engine, exhaust, and tires:/The loudness of traffic noise can also be increased by defective mufflers or other faulty equipment on vehicles. Any condition (such as a steep incline) that causes heavy laboring of motor vehicle engines will also increase traffic noise levels. In addition, there are other more complicated factors that affect the loudness of traffic noise. For example, as a person moves away from a highway, traffic noise levels are reduced by distance, terrain, vegetation, and natural and manmade obstacles. Traffic noise is not usually a serious problem for people who live more than 500 feet from heavily traveled freeways or more than 100 to 200 feet from lightly traveled roads. How Traffic Volume Affects Noise 2000 vehicles per hour sound twice as loud as 200 vehicles per hour How Speed Affects Traffic Noise Traffic at 65 miles per hour sounds twice as loud as traffic at 30 miles per hour How Trucks Affect Traffic Noise ,,page 3 4 .......a..,....._......-.N+..+w.wr-..«.w.a....-....,,.m................._... ..__...w.q +�,..m.rw.w.,,. ...i ..-...............w One truck at 55 miles per hour sounds as loud as MFJL 617A 66F b IV 28 cars at 55 miles per hour Determining Noise Impact Highway traffic noise is never constant. The noise level is always changing with the number , type, and speed of the vehicles which produce the noise. Traffic noise variations can be plotted on a graph as shown below. However, it is usually inconvenient and cumbersome to represent traffic noise in this manner. A more practical method is to convert the noise data to a single representative number . Statistical descriptors are almost always used as a single number to describe varying traffic noise levels. The two most common statistical descriptors used for traffic noise are Llo and Leq. Llo is the sound level that is exceeded 10 percent of the time. Y'#min 2min 2 rrTin tVf'al?11 L Le'1�3 I 6�0 rt i tiler: s k� In the above graph, the shaded areas represent the amount of time that the Llo value is exceeded. Adding each interval during which this occurred shows that during the 60-minute measuring period the Llo was exceeded 6 minutes (1/2 + 2 + 2 + 11/2 = 6) or 10 percent of the time. The calculation of Leq is more complex. Leq is the constant, average sound level, which over a period of time contains the same amount of sound energy as the varying levels of the traffic noise. Leq for typical traffic conditions is usually about 3 dBA less than the Llo for the same conditions. The Federal Highway Administration (FHW A) has established noise impact criteria for different land uses close to highways. Some of the exterior criteria are illustrated below. I Land Use L10 Leq Residential 70 67 dBA dBA Commercial dB72 A dBA If a project causes a significant increase in the future noise level over the existing noise level, it is page 4 also considered to have an impact. What Can Be Done to Reduce Highway Noise? Highway noise is being attacked with a three-part strategy: motor vehicle control, land use control, and highway planning and design. The responsibilities for implementing these strategies must be shared by all levels of government: Federal, State, and local. Often, local officials can most effectively solve specific noise problems in their areas, as demonstrated in the U.S. Environmental Protection Agency's (EPA) Quiet Community and Each Community Helps Others (ECHO) programs. The following two sections briefly describe how traffic noise impacts can be reduced or prevented through efforts to obtain quieter vehicles and efforts to control future development near highways. The remainder of this pamphlet focuses mainly on noise abatement in the Federal-aid highway program. Motor Vehicle Control The first part of the strategy goes right to the source of traffic noise: the vehicles. For example, vehicles can be designed with enclosures for the engine, fans that turn off when not needed, and better mufflers. Quieter vehicles would bring about a substantial reduction in traffic noise along those roads and streets where no other corrective measures are possible. The EP A has issued regulations placing a limit on the noise which new trucks can make. In addition, many local and State governments have passed ordinances or laws requiring existing vehicles to be properly maintained and operated. Unfortunately, due to limitations in technology, these EP A regulations for new trucks and State and local regulations for maintenance of vehicles can only partially reduce the noise created by traffic. The best that can be expected is a 5 to 10 dBA decrease in the noise level. Where this is insufficient, other measures must be used. Land Use Control The second part of the strategy calls for the control of future development. Sometimes, complaints about highway traffic come from occupants of new homes built adjacent to an existing highway. Many of these highways were originally constructed through undeveloped lands. There are several hundred thousand miles of existing highways in this country bordered by vacant land which may some day be developed. Prudent land use control can help to prevent many future traffic noise problems in these areas. Such controls need not prohibit development, but rather can require reasonable distances between buildings and roads as well as "soundproofing" or other abatement measures to lessen noise disturbances. Many local governments are working on land use control. �l ,--, 3 y, 4 tX T Less noise-sensitive commercial buildings can n be placed next to a highway, with residences farther away. Highway Planning and Design The third part of the highway noise reduction strategyis highway planning and design. Earl in the 9 Y p 9 9 Y page 5 planning stages of most highway improvements, highway agencies do a noise study. The purpose of this study is to determine if the project will create any noise problems. First, the existing noise levels of a highway are measured or computed by models. Then, the agency predicts what the noise levels will be if the project is constructed. If the predicted noise levels are above Federal noise criteria, the noise study must consider measures that can be taken to lessen these adverse noise impacts. This information is reported at public meetings and hearings if they occur. Noise Reduction on Existing Roads Some noise reduction measures that are possible on existing roads or on roads that are being rebuilt include creating buffer zones, constructing barriers, planting vegetation, installing noise insulation in buildings, and managing traffic. Buffer zones are undeveloped open spaces which border a highway. Buffer zones are created when a highway agency purchases land, or development rights, in addition to the normal right of way, so that future dwellings cannot be constructed close to the highway. This precludes the possibility of constructing dwellings that would otherwise experience an excessive noise level from nearby highway traffic. An additional benefit of buffer zones is that they often improve the roadside appearance. However, because of the tremendous amount of land that must be purchased and because in many cases dwellings already border existing roads, creating buffer zones is often not possible. s k Open space can be left as a buffer zone between residences and a highway. Noise barriers are solid obstructions built between the highway and the homes along the highway. Effective noise barriers can reduce noise levels by 10 to 15 decibels, cutting the loudness of traffic noise in half. Barriers can be formed from earth mounds along the road (usually called earth berms) or from high, vertical walls. Earth berms have a natural appearance and are usually attractive. However, an earth berm can require quite a lot of land if it is very high. Walls take less space. They are usually limited to 25 feet in height for structural and aesthetic reasons. Noise walls can be built of wood, stucco, concrete, masonry, metal, and other materials. Many attempts are being made to construct noise barriers that are visually pleasing and that blend in with their surroundings. However, barriers do have1 imitations. For a noise barrier to work, it must be high enough and long enough to block the view of a road. Noise barriers do very little good for homes on a hillside overlooking a road or for buildings which rise above the barrier. Openings in noise walls for driveway connections or intersecting streets destroy the effectiveness of barriers. In some areas, homes are scattered too far apart to permit noise barriers to be built at a reasonable cost. page 6 Q101"'.1, MV € ` yt z x Earth Berm Noise Barrier z Wooden Noise Barrier ria Y f A d 4 r Concrete Noise Barrier with Woodgrain Texture Shadow Effect of Noise Barrier The lower house is protected by the barrier,.but the upper one is not. Vegetation, if high enough, wide enough, and dense enough (cannot be seen through), can -page 7 decrease highway traffic noise. A 200-foot width of dense vegetation can reduce noise by 10 decibels, which cuts the loudness of traffic noise in half. It is often p impractical to plant enough p vegetation along a road to achieve such reductions; however, if dense vegetation already exists, it could be saved. If it does not exist, roadside vegetation can be planted to create psychological relief, if not an actual lessening of traffic noise levels. Loudness Cut in Half No Noise Reduction (Psychological) Vegetation and Noise Reduction Insulating buildings can greatly reduce highway traffic noise, especially when windows are sealed and cracks and other openings are filled. Sometimes, noise-absorbing material can be placed in the walls of new buildings during construction. However, insulation can be costly because air conditioning is usually necessary once the windows are sealed. In many parts of the country , highway agencies do not have: the authority to insulate buildings. In those states, insulation cannot be included as part of a hi.ghway project. Managing traffic can sometimes reduce noise problems. For example, trucks can be prohibited from certain streets and roads, or they can be permitted to use certain streets and roads only during daylight hours. Traffic lights can be changed to smooth out the flow of traffic and to eliminate the need for frequent stops and starts. Speed limits can be reduced; however, about a 20 mile-per-hour reduction in speed is necessary for a noticeable decrease in noise levels. i Pavement is sometimes mentioned as a factor in traffic noise. While it is true that noise levels do vary with changes in pavements and tires, it is not clear that these variations are significant when compared to the noise from exhausts and engines, especially when there are a large number of trucks on the highway. More research is needed to determine to what extent different types of pavements and tires contribute to traffic noise. Until this research is completed, the use of different types of pavement cannot be depended upon to reduce traffic noise. Noise Reduction on New Roads All of the measures described above can be employed on both existing roads and new roads. There are, however, some additional measures which can usually be used only on new roads. First, a new road can be located away from noise-sensitive areas, such as schools or hospitals, and placed near nonsensitive areas, such as businesses or industrial plants. New roads can also be located in undeveloped areas. .page 8 Second, a new road can be constructed below ground level. Much of the noise from vehicles • traveling on this type of road is deflected into the air by embankments on the side of the road. Thus, these embankments function in much the same way as noise barriers. Highway Below Ground Level Third, a new road can be designed and constructed as level as possible. The elimination of steep I inclines helps to reduce traffic noise because motor vehicle engines, especially multigeared truck engines, do not have to work as hard. Although there are a great many noise reduction measures possible, they all have limitations. Consequently, there are many situations where none of these noise reduction measures can be used. In these situations, the only option left may be for local authorities to require adequate muffler devices for the louder vehicles. Federal Role The Federal Highway Administration is the agency responsible for administering the Federal-aid highway program. Under this program, Federal funds are allotted by Congress to the individual States. However, before these monies can be used for highway projects, the projects must be approved by FHW A, which can only grant its approval for projects that are developed in accordance with Federal statutes and regulations. One of these regulations requires that a noise study be accomplished to determine what noise impacts, if any, will result from the proposed highway improvement and what measures will be taken to lessen these noise impacts. If noise impacts are expected, noise-reduction measures that are determined by the State highway agency and the FHW A to be practicable, reasonable, and acceptable to the public must be incorporated into the highway improvement. The costs of the noise-reduction measures are included with the other costs of the highway improvement and are eligible for Federal funding in the same proportion as other aspects of the project. State highway agencies may also use Federal highway grants for noise-reduction projects on existing roads on the Federal-aid system. The monies spent on noise-reduction measures are deducted from funds which would otherwise be available for highway construction. Federal funds may be used for the construction of noise barriers, for acquisition of land on which to build such barriers, and for the purchase of undeveloped land as a preemptive buffer zone. Traffic operational measures such as truck routes and restriction of hours of operation are often feasible noise abatement measures, and the costs of such measures are eligible for Federal funding. The "soundproofing" of public-use institutional buildings may be incorporated in Federal-aid highway projects to abate traffic noise, but the use of Federal funds for soundproofing commercial buildings or private dwellings is not normally permitted. SHA FHWA Home I NEP Home I Noise Home I Feedback I � TOWN OF NORTH ANDOVER DUMPSTER REGULATIONS FOR THE REMOVAL, TRANSPORTATION AND STORAGE OF GARBAGE, RUBBISH, OFFAL OR OTHER OFFENSIVE SUBSTANCES The Board of Health, Town of North Andover, Massachusetts in accordance with, and under the authority granted by Sections 31A and 31B of Chapter 111 of the General Laws of the Commonwealth of Massachusetts hereby adopted the following rules and regulations at the meeting of February 10, 1994. This regulation shall take effect January 1, 1995. Section 1. 0 DEFINITIONS Dumpster: Any container other than a conventional trashcan with lid intended for the outdoor storage of . rubbish, garbage or refuse of any sort. Section 2 . 0 PRE-INSTALLMENT RE UIREMENTS: 2.1 No person or property owner, authorized agent or corporate entity shall maintain or operate a trash or refuse dumpster, with a volume capacity greater than (three) 3 cubic yards, without first obtaining a permit from the Board of Health at least three (3) days prior to installation. 2.2 The permit fee shall be $25.00 per establishment per calendar year, and must be accompanied by a completed application on a form supplied by the Board of Health. 2 .3 Dumpster permits may be suspended or revoked by the Board of Health for failure of the dumpster contractor or property owner/owner's agent to comply with the requirements of these regulations. 2.4 No contractor, firm or person shall supply a dumpster service in the Town of North Andover, for the purpose of storage, removal or transporting of garbage, rubbish, offal or other offensive substances without first obtaining a dumpster service license from the Board of Health. All licenses shall expire at the end of the calendar year in which they are issued, but may be renewed annually on application as herein provided. There shall be a fee of $100 payable for said dumpster service license, per truck. 2 . 5 These regulations apply to all dumpsters in the Town of North Andover, whether for residential, commercial, or industrial use. & NOV 17 2003 L APR 2 01994 BOARD Or APPEALS LA N D LAW INC t Section 3 . 0 CONTRACTOR'S RESPONSIBILITIES: 3 . 1 The contractor shall have the dumpster(s) deodorized, washed or sanitized as necessary at the time of emptying, or as directed by order of the Board of Health. 3 .2 The emptying of the contents of the dumpster(s) by the contractor shall not commence before 7:00 AM and not continue after 9:00 PM. The Board may modify these hours, if, in its reasonable judgement, it is convinced that the public health, safety or public welfare would be better served. The Board of Health shall be guided in this regard by the location, nearness to residential property, frequency of emptying, resulting noise and other factors which it considers appropriate. 3 . 3 The contractor shall have his/her name and business telephone number conspicuously displayed on each dumpster. 3 . 4 No truck that hauls dumpster contents shall be used to transport hazardous materials or waste. 3 . 5 The Board of Health may attach any conditions to the license of a removal contractor that it deems would serve the interest of the safety, health, welfare or quality of life of the citizens of the Town. 3. 6 Failure to comply with these regulations may result in a fine of $50. 00, as well as suspension or revocation of permits as deemed necessary by the Board of Health. Section 4. 0 AUTHORIZED AGENT/PROPERTY OWNER'S RESPONSIBILITY 4 . 1 Each dumpster must be located at a distance from the lot line so as not to interfere with the safety, convenience or health of abutter or residents. Dumpster location must be approved by the Board of Health. 4.2 When deemed necessary by the Board of Health, it may be required that a dumpster site be enclosed or screened by the property owner or authorized agent. 4 . 3 It shall be the responsibility of the owner or agent whose property is being serviced to maintain the dumpster area free of odors, scattered debris, and all other nuisances, and to prevent overflow. `r 4 .4 It shall also be the responsibility of the owner or agent whose property is being serviced by the dumpster (s) to maintain the lid(s) in a closed condition at all times except when actually in the process of placing refuse in the dumpster. 4.5 Dumpsters are to be used only by those individuals who are authorized by the owner or agent whose property is being serviced. All unauthorized use shall be considered a trespass of private property. The owner or agent may post a sign stating: "Unauthorized use is prohibited by order of the Board of Health. " 4.6 No dumpster shall be used to dispose of hazardous materials or waste. 4.7. Dumpsters are not to be filled after 9: 00 P.M. or before 7:00 A.M. for residential property nor after the close of the business day for commercial property, at which time the lids are to be locked. Section 5. 0 TEMPORARY •DUMPSTERS 5. 1 No person or property owner, authorized agent or corporate entity shall maintain or operate a temporary dumpster (gondola or roll-off type) without first obtaining a 30-day permit from the Board of Health at least three (3) days prior to installation. Said permit may be renewed for an additional 30 days upon application. The property owner or authorized agent shall comply with all the provisions of these regulations which are applicable to the operation of a dumpster. 5.2 The fee for each temporary dumpster permit shall be $10. 00. 5.3 An inspection and sanitary survey of the temporary dumpster and surrounding area will be conducted by an agent of the Board to verify compliance with Board of Health standards. 5.4 Temporary dumpsters for on-site use by construction, renovation, or repair firms will be exempt from these regulations. Section 6.0 ENFORCEMENT 6. 1 Random inspections and sanitary surveys of in-place dumpsters and surrounding areas will be conducted by an agent of the Board to verify compliance with Board of Health standards. I � c -Q 6.2 All violations of State and Local Regulations shall be remediated in accordance with said regulations. 6. 3 If such corrective action, as ordered by the Board of Health, is not taken by the authorized agent/property owner within the time limit set forth by the Board of Health, the Board of Health shall take such legal action as necessary to remediate the violation. n 6.4 The Board of Health, at its discretion may levy fines upon the authorized agent/property owner in accordance with MGL Section 40, Chapter 21D. Fines will be no less than $50, and no greater than $100. Section 7.0 SEVERABILITY If any provision of this General Bylaw is held to be unconstitutional or in violation of State Law, it will not affect any other provision or the administration thereof. Rev. 1/94 1 TOWN OF NORTH ANDOVER FINDING � �� ZONING BOARD OF APPEALS a a I Procedure & Requirements AN For an Application for a Finding Ten (10) copies of the following information must STEP 6: SCHEDULING OF HEARING AND be submitted thirty (30) days prior to the first public PREPARATION OF LEGAL NOTICE: hearing. Failure to submit the required information The Office of the Zoning Board of Appeals schedul within the time periods prescribed may result in a the applicant for a hearing date and prepares the k notice for mailing to the parties in interest (abutter: dismissal by the Zoning Board of an application as 50' incomplete. for publication in the newspaper. The petitioner is C � notified that the legal notice has been prepared ant The information herein is,an abstract of more specific cost of the Party in Interest fee. requirements listed in the Zoning Board Rules and 'I Regulations and is not meant to supersede them. Items that STEP 7: DELIVERY OF LEGAL NOTICE TO are underlined will be completed by the Town. NEWSPAPER/PARTY IN INTEREST FEE: The petitioner picks up the legal notice from the Of STEP 1: ADMINISTRATOR PERMIT DENIAL: of the Zoning Board of Appeals and delivers the let The petitioner applies for a Building Permit and receives notice to the local newspaper for publication. a Permit Denial form completed by the Building Commissioner. STEP 8: PUBLIC HEARING BEFORE THE ZONI BOARD OF APPEALS: STEP 2: FINDING APPLICATION FORM: The petitioner should appear in his/her behalf, or bi Petitioner completes an application form to petition the represented by an agent or attorney. In the absent Board of Appeals for a FINDING. All information as any appearance without due cause on behalf of the required in items 1 through and including 11 shall be petitioner,the Board shall decide on the matter by t completed. the information it has otherwise received. Step 3: PLAN PREPARATION: STEP 9: DECISION: r a Petitioner submits all of the required plan information as After the hearing, a copy of the Board's decision wi. cited in item 10 page 4 of this form. sent to all parties in interest. Any appeal of the Bo, decision may be made pursuant to Massachusetts STEP 4: SUBMIT APPLICATION: General Laws ch. 40A sec. 17, within twenty (20)d. Petitioner submits one (1) original of all the required after the decision is filed with the Town Clerk. information and 10 xerox copies to the ZBA Secretary. The original will be stamped by the Town Clerk Step 10: RECORDING CERTIFICATE OF DECISI t certifying the time and date of filing. The remaining ten PLANS. ply copies will remain at the office of the Zoning Board of The petitioner is responsible for recording certificati a Appeals secretary. the decision and any accompanying plans at the Es County North Registry of Deeds, Lawrence STEP 5: LIST OF PARTIES IN INTEREST: Massachusetts, and shall complete the Certification Once the petitioner submits all of the required Recording form and forward it to the Zoning Board information,the petitioner requests from the Assessors Appeals and the Building Department Office. Office a certified list of Parties in Interest (abutters). r } C]C;"f IMPORTANT PHONE NUMBERS: `' �� "j rn > , 978-688-9541 Zoning Board of Appeals Office. Lir 978-688-9501 Town Clerk's Office <;�u c0`. 978-688-9545 Building Depart SEP 2 2 2003 BOARD OF APPEALS PAGE 4OF4 FINDING North Andover Zoning Board of Appeals 77 - 12, ».,.r....,i...........L.+...1.., .,<....a....,.....,x..,._. _. ,...,. ....«,..... '..:...av',>..,_. .,.z...w....<_a ..,......, «..,«.«. .. .,..A,.,...+.....«.. d .....<..,.... ., .., ..... ..............xT-ad,<x,M�..«,.a. 9. WRITTEN DOCUMENTATION Application for a Finding must be supported by a legibly written or typed memorandum setting forth in detail all 10 C. FEATURES TO BE INDICATED ON PL facts relied upon. This is required in the case of a finding when the following points based on MGLA ch. A. Site Orientation shall include: 40A sec. 6 and 9 and the North Andover Zoning By-Law 1. North point Section 9.0 a request for a FINDING shall be clearly 2. zoning district (s) identified and factually supported: Addressing each of 3. names of streets the below points individually is required with this 4. wetlands to be shown on plan (if applicable) application. 5. abutters of property,within 300 foot radius 6. location of buildings of adjacent properties within A. The particular use proposed for the land or from applicants proposed structure 7. deed restrictions, easements structure. B. Legend&Graphic Aids: B. Fact relied upon to support a Finding that the 1. Proposed features in solid lines &outlined in ren proposed extension or alteration shall not be more 2. Existing features to be removed in dashed lines substantially detrimental than the existing non- 3. Graphic Scales conforming use. 4. Date of Plan 5. Title of Plan C. Addressing all details of the Building 6. Names addresses and phone numbers of the Commissioner's denial when appropriate. applicant, owner or record, and designer or surveyor. 10. Plan Land 10 D. FURTHER REQUIREMENTS: Each application to the Zoning Board of Appeals shall be accompanied by the following described plan. Plans Major Projects shall require that in addition to the abov: must be submitted with this application to the Town features, plans must show detailed utilities, soils, and Clerk's Office and ZBA secretary at least thirty(30) days topographic information. A set of building elevation an( prior to the public hearing before the Zoning Board of interior of building plans shall be required when the Appeals. application involves new construction, conversion and.ic proposed change in use. Elevation plans for minor 10 A. Major Projects projects include decks,sheds, &garages shall be Major projects are those which involve one of the included with a side view depicted on the plot plan, following whether existing or proposed: a)five or more which include a ground level elevation. parking spaces, b)three or more dwelling units, 11. APPLICATION FILING FEES c) 2000 square feet or more of building area. Minor projects that are less than the above limits shall A. Notification Fees: Applicant is to send by certifies require only the plan information as indicated with an mail all legal notices to all abutters, and then SLIP asterisks (*). In some cases further information may be proof of mailing to the ZBA secretary. Applicant is( required. supply stamps (appropriate current postage)for mailing of decisions to all parties of interest as 10. B. Plan Specifications: identified in MGLA ch. 40A, sec. 11 as listed on the a) Size of plan: Ten (10.) copies of a plan not to application. ZBA Secretary will compute number ofstamps. i exceed 11"x17" preferred scale of 1" =40'. B. Applicant is to supply one(1)set of addressed b) Plan prepared by a Registered Professional labels of abutters to ZBA Secretary who will mail Engineer and/or Land Surveyor, with a block for five decisions to abutters and parties in interest. ZBA signatures and date on mylar. C. Administrative fee of$50.00 per application. 1 i a � Page 2 of 4 Date&Time Stamp Application for a FINDING NORTH ANDOVER BOARD OF APPEALS 1. Petitioner: Name, address and telephone number: KONSTANTINOS & ROWENA BALOS, 66 -MEADOWOOD RD, N. ANDOVER. 978-683-3414 *The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address and Telephone number and number of years under this ownership: BUD REALTY TRUST d/b/a MATERIAL INSTALLTIONS, 11 BAYFIELD DRIVE, N. ANDOVER 978-685-9685 Years Owned Land: 16 3. Location of Property: a. Street: BAYFIELD DRIVE Zoning District INDUSTRIAL-1- b. Assessors: Map number 2 5 Lot Number: 7 3 c. Registry of Deeds: Book Number 019 7 5 Page Number:_0 3 3 3 4. Zoning Sections under which the petition for the Finding is made. SECTION 4. 132 NORTH ANDOVER ZONING BYLAWS SECTION 10. 4 NORTH ANDOVER ZONING BYLAWS *Refer to the Permit Denial and Zoning By-taw Plan Review as supplied by the Building Commissioner 5 • PETITIONERS APPEAL THE DECISION OF THE BUILDING . Describe the Finding request:re 9 q COMMISSIONER RELATIVE TO A ZONING COMPLAINT DATED 8/6/2003. REQUEST FINDING OF: 1) THAT MATERIAL INSTALLATIONS IS NOT ZONED FOR ITS LOCATION AND HAS BECOME A A NUISANCE TO ITS RESIDENTIAL NEIGHBORS; AND 2) THAT THE PLANNING BOARD' S CONDITIONAL APPROVAL REGARDING "NOISE BARRIER" RESTRICTIONS BE AMENDED TO END NUISANCE. *The above description shall be used 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 of this application.Failure by the applicant to clearly describe the request 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 hems not Included above. 6a, Difference from Zoning By-LAW requirements: Indicate the dimensions that will not meet current Zoning By-Law Requirements. (A and B are In the case of a lot split) Lot Area Open Space Percent Lot Frontage Parking Minimum Lot set Back Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear A. % B. N/A % 4 a Page 3 of 4 Application for a FINDING ki � 1 1;�Y �k14�Rri��} Wi.F�':-?�3�....r.�,�, i�?la�°Q.�.�IY.��i-.'��a"'7 f't*n,,e eFY7t i � ,*x � rcc�..a# i'� ; �..,• ....ka3r4{> �.4'n u. ...tz. S �' -uea NORTH ANDOVER ZONING BOARD OF APPEALS 6. b. Existing Lot: Lot Area Open Space Percent Lot Frontage Parking * Minimum Lot set Back" Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear N/A c. Proposed Lot (S): Lot Area Open Space Percent Lot Frontage Parking * Minimum Lot set Back• Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear N/A % d. Required Lot: (As required by Zoning By-Law) Lot Area Open Space Percent Lot Frontage Parking * Minimum Lot set Back Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear N/A % 7. a. Existing Buildings: Ground Floor Number of Total Use of Square feet Floors Sq.feet Building* N/A *Reference Use Code numbers and Uses from the Zoning By-Law State number of units in building. b. Proposed Buildings: Ground Floor Number of Total Use of Square feet Floors Sq.feet Building* WAREHOUSING AND WHOLESALING *Reference Use Code numbers and Uses from the Zoning By-Law State number of units in building. 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.d Signature __ �,h H , -F M KONSTANTINOS BALOS ROWENA BALOS Type above name (s) here 'r ®TYof North ®1tAndover p ttORTH � K , O Office of the wilding Department p Community Development and Services Division * � b- 27 Charles Street * °'•`"'"" North Andover,Massachusetts 01845 "SSACHUSE< D. Robert Nicetta Telephone(978)688-9545 Bu.11ding Coinnussioner Fax(978)688-9542 August 25,2003 Mr.Konstantinos`Dino"Balos 66 Meadowood Road North Andover,MA 01845 RE: Zoning Complaint Materials Installations,Inc. 11 Bayfield Drive Dear Mr.Balos: I am of the following opinion after investigating your complaint against the above referenced business: • The Planning Board Special Permit of August 31, 1987 did not place a definite time of operation for Materials Installations,Inc.in the Conditional Approval of the Site Plan Review. • In 1987 and presently the North Andover Zoning By-law does not address hours of operation. • The Planning Board Decision of 1987 does not place any restriction on the type of business Materials Installations,Inc. conducts at the Industrial-1 site.In fact the August 31�`decision gave the business permission"to expand the assembly and live storage areas in an existing building by 18,200 square feet". In 1987 and presently the North Andover Zoning By-law does not address"noise levels"in any zoning district. • On site investigation reveals that the`row of planted arborvitae to the rear of the building and the six(6)foot closed stockade fence erected along the property line"are in place as required in Paragraph 5 of the Conditional Approval. The Building Commissioner/Zoning Enforcement Officer is of the opinion that Materials Installations, Inc. is in compliance with the approved Planning Board Special Permit of August 31, 1987,time stamped by the North Andover Town Clerk on September 03, 1987. Pursuant to Section 10.4 of the North Andover Zoning By-law this decision maybe grieved within thirty (30)days before the North Andover Zoning Board of Appeals. Yours truly, D.Robert Nicetta Building Commissioner/Zoning Enforcement Officer CC; Heidi Griffin,Director CD&S Mark H.Rees,Town Manager Raymond J. Santilli,Assistant Town Manager Thomas J.Urbelis,Town Counsel William Sullivan,Chairman ZBA BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 TOWN OF NORTH ANDOVER 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 f NORT/{q 3�Os4tlE0 6P6N OL Raymond T Santini TEL(978) 688-9516 Assistant Town Manager FAX(978) 688-9556 & Human Resources Director �SSatHuSEt July 17, 2003 Mr. Konstantinos Balos 66 Meadowood Road North Andover, MA 01845 Dear Mr. Balos: Your recent letter to Town Manager Mark Rees regarding Material Installations, Inc. was forwarded to me for follow-up and response. Over the past weeks, I have met with Building Commissioner Robert Nicetta several times to review your issues. Mr. Nicetta has had multiple discussions and meetings with representatives of Material Installations regarding your concerns. The company claims that their daily activities begin at 7:00 a.m. as required. This includes all truck operations. This obviously differs significantly from the activity log you provided for a 4'/2 month period. Regarding the noise and truck issues, I have notified the Police Department to dispatch a patrol unit several times during the night hours to the location(11 Bayfield Drive) to ensure that there is no truck activity(either idling or fueling). I have also asked that these nightly dispatches occur at random times. Regarding the zoning by-law issues you raise, I have forwarded your letter to Mr. William Sullivan, Chairman of the Zoning Board of Appeals. If you wish to address the matter before the ZBA, you can file the appropriate paperwork at the ZBA office located at 27 Charles Street as part of the Community Development& Services Division. Sincerely, e Raymond T. Santilli Assistant Town Manager &Human Resources Director cc., Mark Rees,Town Manager Robert Nicetta, Building Commissioner William Sullivan, Chairman, ZBA Zoning Board of Appeals #9-Finding Request Application for a Finding (Written Documentation re: Material Installations p1of7 9. WRITTEN DOCUMENTATION A. THE PARTICULAR USE PROPOSED FOR THE LAND OR STRUCTURE. Zonin As you are aware, zoning allows local government to regulate what uses may be made of a parcel of land. The common intent is to protect adjoining property owners from incompatible uses and to increase the likelihood that a community grows in a way that enhances overall quality of life. • The Town of North Andover classifies the properties on Meadowood Road as "Residential-6." Source: Town of North Andover records. • 11 Bayfield Drive d/b/a Material Installations is classified as "Industrial- Source: Town of North Andover records. • Zoning by-laws, paragraph 13 of section 4.132 (Industrial 1 District) states that "warehousing and wholesaling shall be permitted only as a secondaru use." Zoning by-laws, paragraph 15 (section 4.132) states "parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious noxious or offensive to the neighborhood." Planninx Board - Noise Barrier Town records indicate the following: a) A Site Plan Review (August 3, 1987) recognizes concerns with regard to "activity at night," "'trucks," "noise" and 'lights."The plan indicates the use of"evergreens and fencing to be looked into for possible noise barriers." b) A Site Plan Review (August 17, 1987) indicates "the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer." c) Conditional approval of the Special Permit (August 31, 1987) by the Planning Board. Regarding noise concerns, proponents "admit that into the winter months a lack of foliage in the intervening woods may be cause for concern." , e Zoning Board of Appeals #9-Finding Request Application for a Finding (Written Documentation re: Material Installations p 2 of 7 d) Paragraph 5 of the conditional approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line." B. FACTS RELIED UPON TO SUPPORT A FINDING Material Installations - Type of Business • The Articles of Organization [for Material Installations, Inc] states the following with regard to its business: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." Source: Commonwealth of Massachusetts records. • The Merrimack Valley Planning Commission (MVPC) indicates that the primary business of Material Installations is "Office Furniture and Equipment Installation (Whol)." Source: MVPC. • The Board of Assessor's Database indicates that Material Installations is a "warehouse." Source: Town of North Andover Noise Nuisance The noise caused by Material Installations is a nuisance and unreasonably interferes with the comfort of my family and myself. This has made the backside of my house unsuitable for quiet enjoyment. The source of the nuisance is outdoor shipping related activity. This includes the operation of trucks, truck idling (overnight as well as during shipping dock operations), loading tractor trailers/commercial containers (e.g., trash dumpster), operating machinery outdoors (i.e., trash compactor) and loud voices of workers. The truck noise includes the engine, the drive-train, exhaust, tire/road contact, and braking. The trucks also cause vibration and infrasound (low frequency noise). Typically, the noise has a rapid start rate. This is a result of the abruptness of an approaching truck, the starting of the engine, as well as truck movement and stopping (which cause increased accelerations). f , Zoning Board of Appeals #9-Finding Request Application for a Finding (Written Documentation re: Material Installations p 3 of 7 The noise occurs during the morning, afternoon and evening hours. Moreover, the noise and vibration is so noticeable that residents are alerted to approaching traffic prior to trucks entering the shipping area. I have attached a spreadsheet detailing the extensive amount of nighttime and early morning activity associated with Material Installations. Research - Noise Barriers Research from the Washington State Department of Transportation (WSDOT), Environmental and Special Services Section, indicates that "it would take at least 100 feet of dense vegetation to provide the same acoustical benefit as a noise wall." The Federal Highway Administration (FHWA), Office of Environment and Planning Noise and Air Quality Branch does not consider the planting of vegetation as a noise abatement measure. Specifically, "the planting of trees and shrubs provides only psychological benefits and maybe provided for visual, privacy, or aesthetic treatment, not noise abatement." Noise barriers must also be "high and long enough to block the view" of the source of the noise. Adverse Environmental Effects - Noise Research supports that noise is a health hazard, not just a nuisance. According to the Environmental Protection Agency, "research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system." Additionally, studies indicate that noise causes sleep disturbances, which cause a host of problems to include, reduced job performance, mood changes, and increased risk of automobile accidents. Studies also indicate that children are more susceptible to the effects of noise. In the Commonwealth, noise is treated as an emission of sound, and is regulated as a source of air pollution. The Code of Massachusetts Regulations (CMR) defines air pollution as "the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information, potentially injurious to human or animal life, to i Zoning Board of Appeals #9-Finding Request Application for a Finding (Written Documentation re: Material Installations p 4 of 7 vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business." I have attached a handout provided to Meadowood Road residents. This contains research regarding the health effects of noise as well as possible solutions. Attempts to Resolve Problem I am a firm believer in first attempting to resolve disputes on a personal basis. On February 3, 2003, I met with T.J. Doherty, Operations Manager for Material Installations. Mr. Doherty informed me that he is aware of the truck noise and that truck drivers are notified in advance not to idle next to the bordering residential homes. Regarding hours of operation, Mr. Doherty stated that Material Installations received Board of Selectmen approval to begin at 6 in the morning. On March 3, 2003, I met with Mr. Doherty in hope of reaching a mutually beneficial solution to the noise nuisance. Mr. Doherty stated that he communicated my concerns from our February 3rd meeting to Michael Farrow, Treasurer of Material Installations. Mr. Doherty stated that it is the position of Material Installations to maintain a good relationship with its neighbors. As a solution, I suggested the installation of noise abatement windows on the area of my home affected by the noise. Mr. Doherty stated that he would arrange a meeting between Mr. Farrow and myself to discuss this issue. On March 19, 2003, having not heard from Material Installations, I sent a letter via certified mail to Material Installations detailing the noise problem. As a mutually beneficial solution, I proposed that Material Installations share the costs related to the installation of noise abatement windows on the backside of my house. Note: The Acoustical Insulating Window System referenced in my letter is specifically designed to reduce unwanted noise affecting residential communities (i.e., aircraft, trains and automobiles). On March 26, 2003, I requested the assistance of Selectman Stewart in mediating the dispute. On April 7, 2003, Mr. Stewart informed me that he discussed the matter with Mr. Doherty. Mr. Stewart told me that Mr. Doherty said that Material Installations would not pay for the windows due to concerns that other neighbors would want a similar settlement. Note: There are approximately 3 other homes that border the shipping area of Material Installations. I Zoning Board of Appeals #9-Finding Request Application for a Finding (Written Documentation re: Material Installations p 5 of 7 On May 30, 2003, a letter was sent from Attorney Matthew Donahue to Material Installations via certified mail. This letter restated the proposal originally made on March 19, 2003. To date, Material Installations has not responded to either correspondence. On June 10, 2002, Robert Nicetta, building commissioner, informed me that he visited Material Installations. Mr. Nicetta stated that Mr. Farrow informed him that truck activity starts at 7 in the morning and that truck operators are informed not to park in the rear. Mr. Nicetta also stated that Mr. Farrow told him that damaged evergreens would be replaced along the property line. As referenced in this letter, the trees provide no barrier to noise. On June 12, 2003, I requested the assistance of the town manager's office. I received a letter dated July 17, 2003 from the Assistant Town Manager indicating that "the company claims that their daily activities begin at 7.00 a.m. as required. This includes all truck operations. This obviously differs significantly from the activity log you provided for a 4 1/ month period." The claims by Material Installations referenced in the assistant town manager's letter are untrue. The attached log indicates activity beginning before 7:00 a.m. Moreover, I have video footage corroborates the attached log. C. DETAILS OF THE BUILDING COMMISSIONERS DENIAL i On August 6, 2003, I submitted a zoning complaint for investigation to the building commissioner relative to the noise nuisance referenced in section 9B. A letter dated August 25, 2003, from the building commissioner/zoning enforcement officer indicated that "the Planning Board Decision of 1987 does not place any restriction on the type of business . . . at the Industrial-1 site. In fact the August 31St decision gave the business permission "to expand the assembly and live storage areas in an existing building . . " Appeal: As indicated earlier, Commonwealth and Merrimack Valley Planning Commission records indicate that Material Installations is a warehousing and wholesaling business. Paragraph 11 of section 4.132 states that "warehousing and wholesaling shall be permitted only as a secondaru use." Note: The current text of zoning by-law section 4.132 is identical to the 1987 version. Regarding the Building Commissioner's position that the planning board gave the business permission for "assembly" purposes, paragraph 11 of section 4.132 states the following: Zoning Board of Appeals #9-Finding Request Application for a Finding (Written Documentation re: Material Installations p6 of 7 "Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing, or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke,fumes, odor, noise, vibration, light or other adverse environmental effect." Appeal: The source of the noise nuisance is shipping activity outside the existing building. Additionally, the Building Commissioner indicates that "the North Andover Zoning By-law does not address `noise levels' in any zoning district." Appeal: As indicated above, paragraph 11 (section 4.132) specifically identifies "noise" as an adverse environmental effect. Conclusion Based on its documented type of business (warehousing and wholesaling), it appears to violate paragraph 13 in that it is not zoned for its current location. If, as implied by the building commissioner, the town considers Material Installations an "assembly" business, then its operations appear to violate paragraph 11 of section 4.132. Specifically, that its uses are not "within a building" and are "offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke,fumes, odor, noise, vibration, light or other adverse environmental effect." Regarding the Planning Board's landscape design for a "noise barrier," expert research indicates that it is an unacceptable noise barrier in that it only provides psychological relief and does not physically lessen noise levels. It is not unreasonable to expect absolute quiet in a residential community. As homeowners, we are entitled the right to enjoy the full use of my property without unreasonable interference. There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. The Massachusetts Supreme Court (Ferriter v. Herlihy, 287 Mass. 138) stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessaru disturbance of the rights of others." ;PARCt1Sf* MASSACHIM TI'S DON PARCH. 1l`;(ING 09/1.1103 PAGE 2 PARC[!. 11): 210102'+.0-0073-0000,0, SALF DATE: 0000 (CONT1.NUFO) ;*** COMMERCIAL $01:110 A [01 I.ASf WPOWA) 1012..5100 Sr,F1CH AMFNIIY-3-11 NiSC-ATI-VAL SIM.-USF-CO 401 - WAkEHOuSF AMFN1.(Y-,S-LIN SECTION-GOND A - AVERAGE I)SF-CAfEGORY 3 - MAISIRIAL AMENITY-3-MS YEAR-81,1111 198.5 GRNO-FL•AW X2459 AMEHI(Y-4-fY rFF-YR-01111-l' t99() SIORY-HEIGHT I AMENITY-4-UN PHY-PCI-Goof! PERIMM.N 1.147 ANN1fY-4-M fIIN-PCf-GOOD HLOG-CLASS C - CLASS-C' F1NF-ESCAPF<< KN-PO-GOOD 90 R00EING MT - MEfAI. LOO-DOCK-Sl' PI.:f-COMPI.Ef11 EXT-WAIt.-)YP (:H - CONCR-81,00, CANOPY-SUFI BLDG-FACIOR EXI-ORNAMENI FSCA1.Af0NS INCOME-FLAG AMENIIY-1-1'f PSHUR-ELEVIF RMAJN-PCT-6f) 81 AMENITY-I.-UN FR(iH(-FI.FVfR RCN 1463499 AMFNJIY-I-MS NIIM-OVRHD-OR 7 RCNLD 1185434 AMENIIY-2-iY ENI Hy-sl' SOUND VALDE AMENIIY-2-UN FNTRY-GRADE COST_81-06 1185400 AMENITY-2-MS MIS(:-Aff-STk **** COMMERCIAL GROUP # 101t ) LAST UPDATED : 10/23100 SIATE-tISE-CO .401 - WAREHU(ISE WALL-HE1GH( t6 PC f-HEA IE1) 100 (ISE-(100E 325 - DISTRld-WHSt COM RCI-CO NOO FIRE-ALARM RASE-FLUOR 1 VLOIIRING cN - CONCRtfr. GRADE A - AVERAGE BASE-EL-ARFA 42459 PARIII)ONS A - AVERAGE PCI-SPRNNLRS 100 NUM-EtUORS I. CF.It.I.NGS CONDIIU)m AG - AVERAGE-GOOD GRP-MEASURt 42459 PLUMB!% A - AVERAGE GRUIIP-RCN 1535943 NUMHEk-UNITS 0 (.[;HI 1% A - AVEHAGF. UN1i-TYPt HEATING-TYPE SH - SPACE-HFAI **** INCOME SUMMARY 4 1 LASE UPUAIED 61 6111; 1."COME-Mf 1Hf, M - MANUAL EXPENSES-PCT CAP-INCOME 1653386 UNII-MEIHOD i:AP-RATE ADO-tNO-VAL 0 UN1I-REN! PCI-CONPLFft AC)D-BLU-VAt 0 PCI-REMIAdLE 101-LNO-AREA 9.4 Of-I.NC-VAI. 165,i [16 VAC-LUSS-PCI TOT-FIN-AREA 42459 x*** OFIACHED StRI)C(URE 4 1 LASE UPI)A(ED 101 1191 STROCIORF AS - PAVING-ASPHI MT N-%-Goof" BLDG-FACTOR OE(-S(NU-CLS 3 - COMMERCIAL GRAM A - AVERAGE RMAIN-PCT-GO 50 UN1.1S S - SOUARE-FEEL CONDITION A - AVERAGE R(:N 57460 MEASURE-1 34000 PHY-PC 1-0000 50 RCHLO 2813(1 MEASURE-? FUN-PCI-GOOD SOUND-VALUt EFE-YR-dull.T i.91t5 ECN-Q(..(-1aQOD +;OST-dI.DG 28J4() ANN-PCI-DEPP PCT-COMPLETE INCOME-FLAG MVPC - Parcel Information Finder Page 1 of 1 v , Parcel 25- Address Bayfield Dr. North Andover, MA 01845 State Code 210 Industrial Site 2 No. Industrial Park North Andover Business Park Current Use Acreage 4.4 Building Sq. Ft. 42459 Company Material Installations Co. Name SIC Code 5021-22 Primary Office Furniture and Equipment Business Installation (Whol) Employment 100-249 Range Sales $20-50million Owner Bud Realty Trust Gas Essex County Gas Electricity Massachusetts Electric Sewer Service Public Water Service Public Highway Directly off of Route 114 Access Distance to Approximately 3.5 miles from Exit Interstate 42 off of 1-495 Public No Service Transportation Zoning Industrial I piM V 1)AAt>71Rev .1.791 111-79.1321214 p Cn t2rtnttwralt4 of Massar4usetto � MICHAEL JOSEPH CONNOLi Y F�ttcr Secretary of Slate ONE ASHBURTON PLACE, BOSTON, MASS. 02108 ARTICLES OF ORGANIZATION (Under G.L. Cli. 156B) Incorporators NAME POST OFFICE ADDRESS Include given name in full in case of natural persons; in case of a corporation, give stale of Incorporation. Rober" A. ,sic, merdine, Esq. one Union N>_T:r-e,et Boston, :LA 02103 The above-named incorooratogs)do hereby associate,(themselves)with the intention of forming a corporation under the provisions of Ocneral Laws.Chapter 156B and hereby state(s): 1. The name by which the corporation shall be known is: Name I i ,A,-proved Material Installatic..,. 2. The purpose for w�ich inc corporation is formed is as follows: 1. To store, warehouse, transport and deliver all types and kinds of office furniture or related systems. (See Continuation Sheet 2A) C U P El- R.A. l- R.A. ❑ Now If the space provided under any article or)tem on lhis form Is InsuMvien1, he%t 1 litrgl%on sw;lnrale N 1 2 11 11 vheets of paper leaving it left hnnd margin of at Icaat I Inch for binding. AddlNon%to more than)nw nili le mat> IK conunucd on 11 t C single sheet +n Icing an ench article reciul.Ing ench such addition is clenrly Indicated 9 PACE 2 Or CONTINUATION SHEET 2.A. law, (2) such purchase, sale or transfer is not otherwise prohibited by law and (3) shares of its own capital stock be- longing to it shall not be voted on directly or. indirectly. 1 B. To do, or cause to have done, any and all such acts and things as they be necessary, desirable, convenient or incidental. to the consunuuation or accomplishment of any or all of the foregoing purposes. 9. To act as the incorporator or shareholder in any other corporation, either by itself or in conjunction with any other individual or corporation and to enter into a partnership agreement or agreements as a general or limited partner without any limitation thereon. 10. In furtherance and not in limitation of these purposes and powers, to do any and all things and exercise any and all powers necessary, convenient or advisable to accomplish one or more of the purposes of this corporation or which shall at any time appear to be icr the benefit of the corporation in connection therewith , wii :., iaay now or hereafter be. lawful for the corpor- . �. to parform or exercise, wider r.n� in ,°s,nce of the laws of tf<n "(.immonwealth of Massaoh},,setts, i I r a NOISE NUISANCE- MATERIAL INSTALLATIONS, INC. 1 of 11 FACTS: • The Town of North Andover classifies the properties on Meadowood Road as Residential-6.' Source:Town of North Andover records. • 11 Bayfield Drive d/b/a Material Installations is classified as Industrial-1.' Source: Town of North Andover records. 0 A Site Plan Review (August 3, 1987) [for 11 Bayfield Drive] recognizes concerns with regard to truck noise and the use of"evergreens and fencing to be looked into for possible noise barriers." Source: Town of North Andover records. • The Conditional Approval (September 2, 1987) indicates a landscape plan that includes a "row of planted arborvitae to the rear of the building." The plan also includes "a six (6) foot closed stockade fence be erected along the property line." Source: Town of North Andover records. • The Articles of Organization [for Material Installations, Inc] states the following with regard to its business: "to store, warehouse, transport and deliver all types and kinds of office furniture or related systems." Source: Commonwealth of Massachusetts records. • The Merrimack Valley Planning Commission (MVPC) indicates that the primary business of Material Installations is "Office Furniture and Equipment Installation (Whol)." Source: MVPC. NOISE SOURCE— MATERIAL INSTALLATIONS. INC. a) Shipping dock operations (to include truck activity) beginning earlier than claims made by Material Installations that they begin at 7:00 a.m.; b) Mechanical operation of trucks and related machinery (e.g., waste disposal); c) Trucks idling over 5 minutes (overnight as well as during shipping dock operations); d) Nighttime activities (e.g., truck operations - truck fueling, truck idling, etc.); and e) Loud voices of workers. ' Q , NOISE NUISANCE — MATERIAL INSTALLATIONS, INC. TABLE OF CONTENTS FACTS (pages 1-2) • NOISE SOURCE- MATERIAL INSTALLATIONS, INC. • NOISE-TRUCKING ACTIVITY • HOW DOES NOISE ANNOY? • IS NOISE A PROBLEM? NOISE EFFECTS- GENERAL (pages 3-4) • IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? • WHY IS NOISE CONSIDERED A HEALTH PROBLEM? NOISE AND THE BODY'S REACTIONS (page 4) • ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? NOISE AND THE UNBORN (page 5) • CAN NOISE AFFECT THE FETUS? PERFORMANCE INTERFERENCE (page 5) • IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? • ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? EFFECTS OF NOISE (page 6) • HOW DOES NOISE INTERFERE WITH SLEEP? • IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? CRITERIA FOR SLEEP DISTURBANCE (page 6) • CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? MENTAL, PSYCHOLOGICAL EFFECTS (page 7) • IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? WHAT LAWS APPLY TO THE NOISE PROBLEM? (pages 7-8) • HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? WHAT CAN I DO? (page 8) POSSIBLE SOLUTIONS (pages 8-10) • CHANGE BUSINESS OPERATIONS • ACOUSTICAL ENGINEERING- SOUND PROOF WINDOWS • SOUND BARRIER WALL • OTHER SUGGESTIONS CONCLUSION (page 11) • GOOD NEIGHBOR POLICY • CLOSING NOISE NUISANCE- MATERIAL INSTALLATIONS, INC. 3 of 11 But the presence of noise in our natural, rural, and urban environments is not just a nuisance-it's a health hazard. For example: • Noise is a biological stressor that has negative effects on the entire physiological system, contributing to elevated blood pressure, and changes in blood chemistry. • Noise causes sleep disturbances, which cause a host of problems, including reduced job performance, mood changes, and increased risk of automobile accidents. • Noise negatively affects one's ability to learn and concentrate. Studies have shown decreased reading ability and scholastic performance of school children exposed to noise. • Studies of adults show poorer performance of complex tasks in noisy environments. • Noise renders us less tolerant of frustration and numb to the needs of other people, further reducing our quality of life and the civility of society. Source: The Quiet Noise, Noise Pollution Clearinghouse, Summer 2001. NOISE EFFECTS - GENERAL Research solidly supports that noise is a health hazard, not just a nuisance. In passing the Noise Control Act of 1972, Congress.found that "inadequately controlled noise presents a danger to the health and welfare of the Nation's population, particularly in urban areas." IS LONG-TERM EXPOSURE TO NOISE CONSIDERED A HEALTH RISK? It is possible that repeated or constant exposure to noise can contribute to a deterioration in health. Research is accumulating which suggests a relationship between long-term noise exposure and stress-related health effects, particularly those related to the cardiovascular system. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 33. WHY IS NOISE CONSIDERED A HEALTH PROBLEM? • Noise is generally viewed as being one of a number of general biological stressors. • Noise may contribute to the development and aggravation of stress related conditions such as high blood pressure, coronary disease, ulcers, colitis, and migraine headaches. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 2 of 11 NOISE— TRUCKING ACTIVITY • Motor vehicles cause various types of noise, includes engine acceleration, tire/road contact, braking, and horns. • Heavy vehicles (i.e., trucks) can cause vibration and infrasound (low frequency noise). Source: Indicators of the Environmental Impacts of Transportation, Office of Policy and Planning, USEPA(Washington DC; www.itre.ncsu.edu/cte), 1999. • A study of noise equivalency factors for trucks relative to Passenger vehicles determined that a truck traveling at a speed of 20 mph has an equivalency factor equal to 84 passenger vehicles. Source: FHWA-Office of Policy, "Comprehensive Truck Size and Weight." • A study of outdoor noise levels indicated that a "Diesel Truck at 50 feet" is classified in the "Very Loud" category. Source: California-Nevada Super Speed Train Commission—March 2002 HOW DOES NOISE ANNOY? • Noise by definition is unwanted sound. It is an intrusion on one's sense of privacy. • Noise can be an emotional strain and a source of great frustration when the noise is beyond a person's control. Noise may interfere with a broad range of human activities, the overall effect of which is to cause annoyance. Such activities include: 1. Speech communication in conversation and teaching 2. Telephone communication 3. Listening to television and radio broadcasts 4. Listening to music 5. Concentration during mental activities 6. Relaxation 7. Sleep Source: Noise Effects Handbook,A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 56 IS NOISE A PROBLEM? In the words of former U.S. Surgeon General William H. Stewart, "Calling noise a nuisance is like calling smog an inconvenience. Noise must be considered a hazard to the health of people everywhere." NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 5 of 11 NOISE AND THE UNBORN CAN NOISE AFFECT THE FETUS? • Studies have shown maternal stress causes constriction of the uterine blood vessels which supply nutrients and oxygen to the developing baby. • Stress may then threaten fetal development if it occurs early in pregnancy. The most important period is about 14 to 60 days after conception. During this time, important developments in the central nervous system and vital organs are taking place. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 37. PERFORMANCE INTERFERENCE IS INDUSTRIAL NOISE CONSIDERED A PROBLEM IN PERFORMANCE INTERFERENCE? Yes, industrial noise may have the most pronounced effects on performance including exhaustion, absentmindedness, mental strain absenteeism tenseness, and irritability. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 47. ARE CHILDREN SUSCEPTIBLE TO PERFORMANCE EFFECTS OF NOISE? • There have been field studies which demonstrate that high noise levels have been correlated with poor performance on reading tests and auditory discrimination problems. • These effects were found to have little to do with socio-economic class or IQ. The significance of these effects is particularly important for younger children who through lack of verbal experience need lower noise levels in which to perform in order to develop the basic skills which contribute to cognitive and language development. • Sleep disturbance is one of the major causes of annoyance due to noise. If it becomes a chronic problem, sleep disturbance may potentially lead to health disorders. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106.. Page 47. b NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 4 of 11 • Growing evidence suggests a link between noise and cardiovascular problems. • There is also evidence suggesting that noise may be related to birth defects and low birth-weight babies. • There are also some indications that noise exposure can increase susceptibility to viral infection and toxic substances. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 31. NOISE AND THE BODY'S REACTIONS ARE CHILDREN MORE SUSCEPTIBLE TO THE PHYSIOLOGICAL STRESS EFFECTS OF NOISE? • At least two studies exist which suggest that exposure to high noise levels in schools and neighborhoods are associated with elevations in blood pressure. • The blood pressure levels of children living in high noise environments were found to be significantly higher than those of children attending schools or residing in quieter areas. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 34. WITH WHAT OTHER STRESS EFFECTS CAN NOISE BE ASSOCIATED? Stress can be manifested in any number of ways, including headaches, irritability, insomnia, digestive disorders, and psychological disorders. Noise has been related to the following: • General morbidity (illness) • Neuropsychological disturbances • headaches • fatigue • insomnia • irritability • neuroticism • Cardiovascular system disturbances • hypertension • hypotension • cardiac disease • Digestive disorders • ulcers • colitis • Endocrine and biochemical disorders Source: Noise Effects Handbook,A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 35. NOISE NUISANCE- MATERIAL INSTALLATIONS, INC. 7 of 11 MENTAL, PSYCHOLOGICAL EFFECTS WHAT KIND OF MENTAL OR PSYCHOLOGICAL EFFECTS CAN OCCUR WITH EXCESSIVE NOISE EXPOSURE? • Excessive noise exposure can bring about a wide variety of pucholo ig_cal responses or symptoms in the individual. A person may respond with anger, or experience symptoms such as anxiety, irritability, and/or general emotional stress. • Distraction and poor judgment may result from mental fatigue. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. IS EXCESSIVE NOISE EXPOSURE RELATED TO MENTAL ILLNESS? Studies have shown that residential areas exposed to high noise levels may have a higher incidence of mental illness among their residents. Source: Noise Effects Handbook,A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 53. WHAT LAWS APPLY TO THE NOISE PROBLEM? Zonin : Through zoning local government regulates what uses may be made of a parcel of land. The intent is to protect adjoining property owners from incompatible uses and to increase the likelihood that a community grows in a way that enhances overall quality of life. • Section 4.132 of the North Andover Zoning By-laws states the following: 11. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing, or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke,fumes, odor, noise, vibration, light or other adverse environmental effect. 13. Warehousing and wholesaling shall be permitted only as a secondary use. 15. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be iniurious, noxious or offensive to the neighborhood. 6 � NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 6 of 11 EFFECTS OF NOISE HOW DOES NOISE INTERFERE WITH SLEEP? • Noise, of course, can make it difficult to fall asleep. • Noise levels can create momentary disturbances of natural sleep patterns by causing shifts from deep to lighter stages. • Noise may even cause awakening which the person may or may not be able to recall. Source: Noise Effects Handbook,A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. IS THE SLEEPER AWARE OF ALL OF HIS BODILY REACTIONS TO NOISE? • He/she can be completely unaware of being affected but can have a disruption of total sleep quality nevertheless. • Subjects often forget and underestimate the number of times that they awaken during sleep. • Loud noises can continue to awaken or arouse the sleeper, but they may become so familiar with the sounds that they return to sleep very rapidly. Source: Noise Effects Handbook,A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. WHAT ARE THE INDIRECT EFFECTS OF SLEEP DISTURBANCE? A person whose sleep has been disturbed severely may feel lethargic and nervous during his waking hours and may be unable to perform at his usual level of efficiency. Source: Noise Effects Handbook, A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 48. CRITERIA FOR SLEEP DISTURBANCE CAN SLEEP DISTURBANCE CAUSE LONG-TERM PROBLEMS? • Sleep is thought to be a restorative process during which organs of the body renew their supply of energy and nutritive elements. • Since noise can disrupt the sleep process, it may take its toll on health. Source: Noise Effects Handbook,A Desk Reference to Health and Welfare Effects of Noise. By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S. Environmental Protection Agency. EPA 500-9-82-106. Page 52. NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 9 of 11 CHANGE BUSINESS OPERATIONS The Noise Pollution Clearinghouse recommends the following with regard to Commercial and Industrial operation within 1,000 feet of residential property: 1. Limit noisy operations such as outdoor loading, unloading, use of power tools, to 9 AM to 5 PM, Monday to Saturday. 2. Ensure that any noise spilling over onto neighbor's property is less than typical conversational levels. 3. Turn off trucks and auxiliary equipment if vehicle is stationary for more than 2 minutes. 4. Schedule trash pickup between 9 AM and 5 PM. ACOUSTICAL ENGINEERING— SOUND PROOF WINDOWS Sound Abatement Windows: These windows are specifically designed to reduce unwanted noise affecting residential communities (i.e., aircraft, trains and automobiles). • These windows are used at airports throughout the country to include Boston's Logan Airport. SOUND BARRIER WALL Q. How effective are noise walls? A. This depends on the distance between the listener and the wall. For residences located directly behind the wall, the perceived noise level will be cut in half. This benefit decreases as a listener moves farther away from the wall and is negligible at distances greater than 500 feet. Q. How is the height of the barrier determined? A. Noise walls are designed to provide a minimum of five decibels of reduction in average background traffic noise for the majority of first row of residences located directly behind the wall, with a 7 decibel reduction at at least one location. The reasonableness criteria places a practical limitation on the height of any noise barrier. Q. Why not plant trees instead of putting up a wall? A. Trees provide a visual shield and some psychological benefit, but are not nearly as effective at reducing noise levels as a solid barrier. It would take at least 100 feet of dense vegetation to provide the same acoustical benefit as a noise wall. Source: Washington State, Department of Transportation, Environmental and Special Services. A. The Federal Highway Administration (FHWA) does not consider the planting of vegetation to be a noise abatement measure. IM f NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 8 of 11 • Section 7:11 of the Code of Massachusetts Regulations (CMR) states the following with regard to motor vehicles: "(b) No person shall cause, suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes." • There is a duty to protect citizenry from disruption of the peaceful enjoyment of their residences. In Ferriter v. Herlihy (287 Mass. 138), the Massachusetts Supreme Court stated that "the sanction that the Legislature gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessaru disturbance of the rights of others." HAVE THERE BEEN ANY COURT CASES SIMILAR TO THIS? Yes. In Weltshe v. Graf (323 Mass. 498), plaintiff landowners and the defendant trucking company were located at the boundaries of a district zoned for business and a district zoned for residences. The plaintiff brought a bill in equity seeking to enjoin defendant-trucking company from operating its business as a nuisance due to truck terminal noises. The Massachusetts Judicial Supreme Court ordered that a decree be entered in favor of the landowners enioining the trucking company from shipping-related activity. The court also affirmed that a "zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance." WHAT CAN I DO? As you are aware, I have filed a complaint with the town (see me for a copy). I suggest the following: • Contact the town and inform them of the noise problem. o The town manager's phone number is 978-688-9510. o The Board of Selectmen phone number is 978-688-9510. • Contact the police (during the noise disturbance) at 978-683-3168. POSSIBLE SOLUTIONS As you are aware, an official complaint has been filed with the town regarding Material Installations and the problem of noise nuisance. If you would like a copy please see me. The below suggestions only relate to solving the problem and do not address the fact that Material Installation has continued their operations unchanged. This is despite knowing that their operations are a nuisance to their neighbors. t NOISE NUISANCE- MATERIAL INSTALLATIONS, INC. 11 of 11 Sound Wall - Summary While noise barriers do not eliminate all noise, they do reduce it substantially and improve the quality of life for people who live adjacent to areas of noise. OTHER SUGGESTIONS A combination of the above mentioned suggestions providing a long-term solution to noise nuisance. CONCLUSION GOOD NEIGHBOR POLICY The Purpose of the Good Neighbor Policy is to protect the comfort, quiet, repose, health, peace, and quality of life of people. At a minimum, everyone should reasonably expect: 1. To be protected from adverse impacts on their quality of life due to noise; 1. Not to have their sleep disturbed by noise; 2. Not to hear someone else's noise in their home. Source: Noise Pollution Clearinghouse. CLOSING • As outlined in this guide, there are many concerns related to noise. • This includes health effects and quality of life issues. • Ignoring the problem, condones the problem. In conclusion, ask yourself if you find it acceptable to mow your lawn early in the morning or in the middle of the night. Chances are that you don't out of common courtesy for your neighbors. Why should someone else be held to a lesser standard? "The community is only as strong as the will of its individual members." THIS IS A PROBLEM. LET'S DO SOMETHING ABOUT IT! NOISE NUISANCE - MATERIAL INSTALLATIONS, INC. 10 of 11 A. The planting of trees and shrubs provides only psychological benefits and visual, privacy, or aesthetic treatment, not noise abatement. Source: Federal Highway Administration, Office of Environment and Planning Noise and Air Quality Branch"HIGHWAY TRAFFIC NOISE ANALYSIS AND ABATEMENT POLICY AND GUIDANCE." How Do People React to Noise Barriers? Residents adjacent to barriers say that conversations in households are easier, sleeping conditions are better, the environment is more relaxing, windows are opened more often, and yards are used more in the summer. Source: Federal Highway Administration, Highway Traffic Noise Barriers. Are Residents' Views Considered? • Landscaping in the vicinity of noise barriers should be integrated with the landscaping theme. Wherever possible, consideration should be given toward accommodating existing vegetation in the design process. • A balance should be struck between wall decorations and landscaping. Decisions made in consultation with neighborhood groups & elected officials. • The general approach is to aesthetically design the noise wall in a manner that it blends into the surrounding environment and is as un-intrusive as possible. Source: Federal Highway Administration, Noise Barrier Aesthetics f4 ' ` '=rlr51 F ey� N Rf:a...E' .n..:.ha o6..�s—:lw.ui{Avh Ay. a➢:La'.iuuunn.2!r,Sa�. .Y.,R2'bm �IhW •gym� �4�'.l� lY �R 1 r CODE OF MASSACHUSETTS REGULATIONS 310 CMR:Department of Environmental Protection 310 CMR 7.00:AIR POLLUTION CONTROL • Section 7.00: Definitions AIR CONTAMINANT means any substance or man-made physical phenomenon in the ambient air space and includes, but is not limited to,dust,flyash,gas,fume, mist,odor,smoke,vapor, pollen, microorganism, radioactive material, radiation,heat,sound,any combination thereof,or any decay or reaction product thereof. AIR POLLUTION means the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a)cause a nuisance; (b)be injurious,or be on the basis of current information,potentially incurious to human or animal life,to vegetation, or to property; or (c)unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business. • Section 7.10: U Noise (1) No person owning, leasing, or controlling a source of sound shall willfully, negligently,or through failure to provide necessary equipment,service,or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise. (2) 310 CMR 7.10(1)shall pertain to, but shall not be limited to, prolonged unattended sounding of burgular alarms, construction and demolition equipment which characteristically emit sound but which may be fitted and accommodated with equipment such as enclosures to suppress sound or may be operated in a manner so as to suppress sound, suppressable and preventable industrial and commercial sources of sound,and other man-made sounds that cause noise. (3) 310 CMR 7.10(1)shall not apply to sounds emitted during and associated with: (a) parades, public gatherings,or sporting events, for which permits have been issued provided that said parades, public gatherings, or sporting events in one city or town do not cause noise in another city or town; (b) emergency police,fire,and ambulance vehicles; (c) police,fire,and civil and national defense activities; (d) domestic equipment such as lawnmowers and power saws between the hours of 7:00 A.M. and 9:00 P.M. • Section 7.11: U Transportation Media (1)Motor Vehicles. (a) All motor vehicles registered in the Commonwealth shall comply with pertinent regulations of the Registry of Motor Vehicles relative to exhaust and sound emissions. (b) No person shall cause,suffer, allow, or permit the unnecessary operation of the engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in excess of five minutes. 310 CMR 7.11 shall not apply to: I 1. vehicles being serviced,provided that operation of the engine is essential to the proper repair thereof, or 2. vehicles engaged in the delivery or acceptance of goods, wares, or merchandise for which engine assisted power is necessary and substitute alternate means cannot be made available,or 3. vehicles engaged in an operation for which the engine power is necessary for an associated power need other than movement and substitute alternate power means cannot be made available provided that such operation does not cause or contribute to a condition of air pollution. EW I � 2003 4) OF APPEALS i 10 Application for a Finding-Zoning BoardA6 tylLog - Shipping Area Re: Material Installations, Inc. DATE TIME ACTIVITY (military hours) Feb 02, 2003 0030 - 0600 Truck Idling Feb 03, 2003 No to Log of Feb 23, 2003 Actitiy Feb 24, 2003 2345 Truck Idling Feb 26, 2003 0400 Truck Idling Mar 01, 2003 0010 Truck Idling Mar 02, 2003 No to Log of Mar 22, 2003 Actitiy Mar 22, 2003 midnight Truck Idling Mar 25, 2003 0545 Truck Idling Mar 26, 2003 0515 Truck Idling Mar 28, 2003 2140 Truck Idling Apr 02, 2003 2125 Truck Idling Apr 04, 2003 0550 - 0830 Truck Idling Apr 04, 2003 2035 Truck Idling Apr 07, 2003 0600 - 0745 Truck Idling Apr 08, 2003 0730 Truck Idling Apr 14, 2003 0600-0745 Truck Idling Apr 15, 2003 0615-0722 Truck Idling Apr 17, 2003 0600-0745 Truck Idling Apr 18, 2003 0615-0745 Truck Idling Apr 19, 2003 0650-0730 Truck Idling Apr 22, 2003 0630-0720 Operating Waste Disposal Unit Apr 23, 2003 0605-0630 Operting Heavy Machinery Apr 23, 2003 0645-0730 Truck Idling Apr 25, 2003 0630-0745 Truck Idling Apr 26, 2003 0645 Truck Idling Apr 28, 2003 0605-0650 Truck Idling Apr 29, 2003 0615-0730 Truck Idling Apr 30, 2003 2225 Truck Fueling May 01, 2003 0620-0715 Truck Idling May 02, 2003 0625-0725 Truck Idling May 03, 2003 0615-0645 Truck Idling May 05, 2003 0445-0505 Truck Idling May 06, 2003 0630-0715 Operating Waste Disposal Unit May 08, 2003 0440-0505 Truck Idling May 08, 2003 2145-2210 Truck Idling May 10, 2003 1220-1235 Truck Fueling May 12, 2003 0550-0622 Truck Idling Supplemental Attachment Application for a Finding-Zoning Board146tWtylLog - Shipping Area Re: Material Installations, Inc. May 12, 2003 2300-2310 Truck Idling May 14, 2003 2115-2130 Truck Fueling May 15, 2003 0600-0630 Dumpster Operation May 16, 2003 0530-0615 Truck Idling May 17, 2003 0230-0245 Truck Idling May 17, 2003 0500-0510 Truck Idling May 24, 2003 0250-0315 Truck Fueling May 24, 2003 0800-0840 Truck Idling May 29, 2003 0630-0710 Truck Idling May 30, 2003 0620-0655 Truck Idling May 31, 2003 0235-0245 Truck Fueling May 31, 2003 0555-0720 Truck Operations Jun 02, 2003 2220-2230 Truck Fueling Jun 04, 2003 0630 Truck Idling Jun 04, 2003 2200 Truck Idling Jun 05, 2003 0600 Truck Idling Jun 06, 2003 0550 Truck Idling Jun 09, 2003 2250 Truck Fueling Jun 10, 2003 0555-0615 Truck Idling Jun 11, 2003 0800-0830 Truck Idling Jun 11, 2003 2245-2255 Truck Fueling Jun 12, 2003 0555-0655 Truck Idling Jun 13, 2003 0545-0600 Truck Idling Jun 13, 2003 0620-0635 Truck Idling Jun 13, 2003 0650-0720 Truck Idling Jun 14, 2003 0300 Truck Activity Jun 14, 2003 0700 Truck Activity Jun 16, 2003 0550-0615 Truck Idling Jun 16, 2003 0650-0700 Truck Idling Jun 18, 2003 0600-0610 Truck Idling Jun 18, 2003 0640-0655 Operation of Machinery Jun 18, 2003 2105-2115 Truck Idling Jun 18, 2003 2230-2345 Truck Idling Jun 19, 2003 0605-0610 Truck Idling Jun 20, 2003 0550 Loading Activity Jun 20, 2003 0555-0605 Truck Idling Jun 20, 2003 0630-0650 Truck Idling Jun 20, 2003 0730-0755 Truck Idling Jun 20, 2003 2135-2140 Truck Idling Jun 20, 2003 2150 Truck Activity Jun 21, 2003 0720 Truck Activity Jun 22, 2003 0615-0630 Loading Activity Jun 22, 2003 0650 Truck Activity Jun 23, 2003 0557-0607 Truck Idling Supplemental Attachment 6 Application for a Finding- Zoning BoardA6fiMtylLog - Shipping Area Re: Material Installations, Inc. Jul 31, 2003 0633 Loading Activity Jul 31, 2003 0638 Truck Activity Aug 01, 2003 0646 Loading Activity Aug 02, 2003 0645 Truck Activity Aug 04, 2003 0645 Loading Activity ' Aug 04, 2003 0705-0726 Truck Idling Aug 05, 2003 0615 Loading Activity Aug 05, 2003 0640 Truck Activity Aug 05, 2003 0646-0703 Truck Idling Aug 06, 2003 0610-0630 Truck Idling Aug 06, 2003 0642-0647 Truck Idling Aug 06, 2003 0655-0710 Loading Activity Aug 07, 2003 0600 Truck Activity Aug 07, 2003 0603 Truck Activity Aug 07, 2003 0617-0652 Loading Activity Aug 07, 2003 0652 Truck Activity Aug 07, 2003 0721-0731 Truck Idling Aug 08, 2003 0548 Truck Activity Aug 08, 2003 0550 Loading Activity Aug 08, 2003 0605 Truck Activity Aug 08, 2003 0616 Truck Activity Aug 08, 2003 0623 Truck Activity Aug 08, 2003 0714-0720 Truck Activity Aug 09, 2003 No Log to of Aug 11, 2003 ctivity Maintained Aug 12, 2003 0615 Truck Activity Aug 12, 2003 0634 Truck Activity Aug 12, 2003 0639-0659 Truck Idling Aug 12, 2003 0641 Truck Activity (Separate) Aug 12, 2003 0705-0720 Operation of Machinery Aug 13, 2003 0552 Truck Activity Aug 13, 2003 0620 Loading Activity Aug 13, 2003 0638 Loud Music Aug 13, 2003 2100 Truck Fueling Aug 14, 2003 0839-0859 Truck Idling Aug 15, 2003 0620 Loading Activity Aug 18, 2003 0615 Loading Activity Aug 18, 2003 0640-0720 Truck Idling Aug 18, 2003 0654-0714 Truck Idling (Separate) Aug 18, 2003 2249-2254 Truck Fueling Aug 20, 2003 0629 Truck Activity Aug 20, 2003 0702-0709 Truck Idling Aug 21, 2003 0605-0640 Loading Activity Supplemental Attachment d , Application for a Finding- Zoning BoardA66NtylLog - Shipping Area Re: Material Installations, Inc. Jun 23, 2003 0615 Truck Activity Jun 23, 2003 0630 Truck Activity Jun 23, 2003 2000-2010 Truck Idling Jun 23, 2003 2230 Truck Activity Jun 24, 2003 0620 Truck Activity Jun 24, 2003 0700-0820 Operation of Machinery Jun 24, 2003 2215 Truck Activity Jun 25, 2003 0712-0723 Truck Idling Jun 26, 2003 0700 Truck Activity Jun 26, 2003 0720-0845 Truck Idling Jun 27, 2003 0715 Truck Activity Jul 01, 2003 0710 Truck Activity Jul 02, 2003 0720 Truck Activity Jul 08, 2003 2155 Truck Activity Jul 09, 2003 230-2240 Truck Idling Jul 10, 2003 0705-0750 Truck Idling Jul 11, 2003 2300 Truck Activity Jul 12, 2003 0615-0700 Truck Idling Jul 13, 2003 0610 Truck Activity Jul 13, 2003 0628 Truck Activity Jul 13, 2003 0630-0638 Van Idling Jul 14, 2003 0600 Truck Activity Jul 14, 2003 0604-0622 Truck Activity Jul 14, 2003 0700-0707 Truck Idling Jul 14, 2003 2135-2200 Truck Idling Jul 15, 2003 0600-0635 Truck Idling Jul 16, 2003 0550-0600 Truck Idling Jul 17, 2003 0600 Truck Activity Jul 17, 2003 0650-0700 Truck Idling Jul 18, 2003 0630 Truck Activity Jul 19, 2003 0225-0235 Truck Fueling Jul 20, 2003 0700 Truck Activity Jul 21, 2003 0703 Truck Activity Jul 22, 2003 0700 Truck Activity Ju123, 2003 0640-0725 Truck Idling Ju124, 2003 0710-0737 Loading Activity Jul 25, 2003 0700 Truck Activity Jul 25, 2003 2335 Truck Activity Jul 28, 2003 0610-0615 Truck Activity Jul 30, 2003 0610 Truck Activity Ju130, 2003 0636 Truck Activity Jul 30, 2003 2145 Truck Activity Jul 31, 2003 0603 Truck Activity Jul 31, 2003 0614 Truck Activity Supplemental Attachment 0 Application for a Finding- Zoning BoardA66WtylLog - Shipping Area Re: Material Installations, Inc. Aug 21, 2003 0700-0717 Truck Idling Aug 22, 2003 0607 Loading Activity Aug 22, 2003 0622-0656 Truck Idling Aug 22, 2003 0643-0650 Truck Idling (Separate) Aug 22, 2003 0645-0655 Truck Idling (Separate) Aug 22, 2003 2110-2113 Truck Activity Aug 23, 2003 0722-0735 Truck Idling Aug 25, 2003 0615 Loading Activity Aug 25, 2003 0621-0624 Truck Idling Aug 25, 2003 0635-0637 Truck Idling Aug 26, 2003 0624-0626 Truck Idling Aug 27, 2003 0558-0605 Truck Idling Aug 27, 2003 0613 Truck Activity Aug 27, 2003 0617-0619 Truck Activity Aug 27, 2003 0625-0627 Truck Idling Aug 27, 2003 0632 Loading Activity Aug 28, 2003 0510 Truck Activity Aug 28, 2003 0611 Loading Activity Aug 28, 2003 0620-0657 Truck Idling Aug 29, 2003 0609 Truck Activity Aug 29, 2003 0610-0612 Truck Idling Aug 29, 2003 0638-0640 Truck Idling Aug 29, 2003 0648 Truck Activity Sep 02, 2003 0130-0137 Truck Idling Sep 02, 2003 0550 Truck Activity Sep 02, 2003 0605 Truck Activity Sep 02, 2003 0607-0613 Truck Idling Sep 02, 2003 0615-0638 Loading Activity Sep 03, 2003 0616 Truck Activity Sep 03, 2003 0653-0702 Truck Idling Sep 03, 2003 2131-2138 Truck Fueling Sep 04, 2003 0617 Truck Activity Sep 04, 2003 0640 Truck Activity Sep 05, 2003 0610 Loading Activity Sep 05, 2003 0618 Truck Activity Sep 05, 2003 2010-2017 Truck Fueling Sep 05, 2003 2037 Truck Activity Sep 08, 2003 0155 Truck Activity Sep 08, 2003 0633-0647 Loading Activity Sep 08, 2003 0712-0723 Truck Idling Sep 08, 2003 1934 Truck Activity Sep 09, 2003 0649 Truck Activity Sep 10, 2003 0553-0614 Truck Idling Sep 10, 2003 0618-0707 Truck Idling Supplemental Attachment . o Application for a Finding- Zoning BoardA6 tyljOg - Shipping Area Re: Material Installations, Inc. Sep 10, 2003 0619-0704 Truck Idling (Separate) Sep 10, 2003 0620-0651 Truck Idling (Separate) Sep 10, 2003 0725-0751 Truck Idling (Separate) Sep 11, 2003 0635 Truck Activity Sep 11, 2003 0705-0713 Truck Idling Sep 11, 2003 2158 Truck Activity Sep 12, 2003 0551 Truck Activity Sep 12, 2003 0642 Loading Activity Sep 12, 2003 0647 Truck Activity Sep 12, 2003 0653 Truck Activity Sep 12, 2003 0725-0736 Truck Idling Sep 12, 2003 2134 Truck Activity Sep 12, 2003 2236 Truck Activity Sep 13, 2003 0100 Truck Activity Sep 13, 2003 0657 Loading Activity Sep 15, 2003 0050 Loading Activity Sep 15, 2003 0627 Truck Activity Sep 15, 2003 0641 Loading Activity Sep 15, 2003 0651 Truck Activity Sep 15, 2003 0705 Operation of Machinery Sep 15, 2003 0705-0709 Truck Idling Sep 15, 2003 0745-0750 Truck Idling Sep 16, 2003 0130-0136 Truck Frieling Sep 16, 2003 0637 Operation of Machinery Supplemental Attachment C/,/1'7 243 John Burke stated that the Board has not had enough time to review the plans. A recommendation to walk the site and draft comments was made. f MOTION: By John BUrke to set up a site visit on September 19, 1987 at 9:00 a.m. and continue the discussion until September 28, 1987 meeting. SECOND: George Perna VOTE: Unanimous DECISIONS ati:eriamlrit'allatiori °'Site Plan"°'Review MOTION: By John Simons to approve the Special Permit subject to -9 conditions j SECOND: George Perna VOTE: Unanimous N NOTE: Decision is part of minutes. Rocky Brook - Definitive Subdivision M� MOTION: By John Simons to approve subject to 41 conditions. W SECOND: John Burke EE Q VOTE: Unanimous I NOTE: Decision is part of minutes. Northmark Bank - Site Plan Review MOTION: By Paul Hedstrom to approve as per draft decision. SECOND: John Burke VOTE: Unanimous NOTE: Decision is part of minutes i MINUTES OF AUGUST 17, 1987 and April 29, 1987 MOTION: By George Perna to accept the minutes SECOND: John Burke VOTE: Unanimous BONDS Turner Estates MOTION: By Paul Hedstrom to accept the cash bond of $92,200. SECOND: George Perna VOTE: Unanimous Teoma Estates MOTION: BY George a Perna to release $7,000.00 SECOND: Paul Hedstrom VOTE: Unanimous Bear Hill Subdivision - Lot 478 MOTION: By John BUrke that 2 Board members sign and hold until the Planner and Director approve. SECOND: George Perna VOTE: Unanimous REORGANIZATION MOTION: By John BUrke to rotate Chairmanship Paul Hedstrom, Chairman George Perna, Vice-Chairman - John Simons, Clerk SECOND: George Perna VOTE: Unanimous 235 Graywood Estates - Planned Residential Development Letter received from the developer to continue the public hearing until August 31, 1987. MOTION: By John Simons to continue the public hearing until 8-31-87 SECOND: George Perna VOTE: Unanimous Osgood Street - Channel Building - Site Plan Review o, Letter received from the developer to continue the public hearing until ^ ' August 31, 1987. `V MOTION: By John Simons to continue the public hearing until 8-31-87 (� SECOND: George Perna 0 VOTE: Unanimous co a rt-ii is Insta l ation T-_Site Plan' Review. John Simons read a copy of a letter sent to Mr. & Mrs. Redman from Material installation with regards to lighting and traffic issues. Jim Bourgeois of Channel Building presented the Board with revised plans. He proposed that traffic would enter from Willow Street opposed to the present route of entering. The lighting issue will be addressed as well as the possibility of a 6 foot stockade fence and arborvitae to be planted as a buffer. -- Tom Neve spoke with regards to mitigation of runoff and 4.19 acres of an area being incubious on 5.6 acres. MOTION: By John Simons to close the public hearing SECOND: George Perna VOTE: Unanimous Jerad II - Definitive Modification Mr. Tom Neve requested an extension for the decision until Sept. 18, 1987. MOTION: By George Perna to continue the public hearing until Sept. 14, 1987 SECOND: John Simons VOTE: Unanimous Rocky Brook - Definitive Modification Mr. Tom Neve spoke with regards to the plans being consisitant with the conditional approval decision the Board previously rendered. Issues relating to drainage, floodplain and detention ponds were addressed. The waterloop issue, a concern of the Fire Department, not necessary as long as sprinklers and sprinkler systems are used by the applicant. The dead-end road length issue is not a problem according to a letter received from Buddy Cyr to Mr. Neve. There will be a 30 foot easement on lot 19. Mr. Neve will send a letter for an extention for the decision until Sept. 6, 1987. Decision due at August 31, 1987 meeting. 4W'N,;0h NOR 'r1I ANT) ODER ( 3'' � ' •(�"{SSACII USI.. I' T S , SEP 8 48 lI`1 °Q7 "°e';,ho Any appeal shall be filed. within (20) days after the A :mac. filing date of ' ` = • g of this Notice In the Office J,CHUs<<` of the Town Clerk. NOTICE OF DECISION Date. Saptembex .2, . 19.$Z . . . . . . . . Date of Hearing .August .31,. .1.987 Petition of . . . .Channel Building. . . Premises affected •, , .11• Bayfield .Drive - Industrial-1 (I-1) Zoning District . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . ... . . . . . . . . . . . . Referring to the above petition for a special permit from the requirements of the , ,North Andover Zoning. Bylaw: Section .8;. Para 3. . , , . . . . . . . . . . . . . . . . so as to permit , , to.ex�and, the . , . . . assemblyand live storage areas .in. an existing, building by. 18, 200 scjuare feet . . . . . . . . . . . . After a public hearing given on the above date, the Planning Board voted Conditionally , toApprove. . . . . .the Site Plan ;Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . based upon the following conditions: Signed John Simons Cierk . . . . . . . . . George Perna . . . . . . . . . Peru . . . . . . . . . . . . . . . . . . Paul Hedstrom . . . . .. . . .. . ., . . . . . . . . . . . . . . . Josh �J,: Bur . x _ : . E4 - z ', �� x.•i�lnnnitirr�� ftri�rrl`• . , 4 .10Nf/� OFFICES OF: or � 1 oWn of 122 Ntain Street APPEALS R' NORTH ANDOVER North Andover. ;,� 4g. � Mi1SSi1Ch11SCAIS 0184 5 CONSERVATION g@�CXOges �t l)IVI�IUN(!!; ((i 17)68 5,4775 HEAI:I'I I 1�n! PLANNING PLANNING & CO 3 M`UNI' YWMEVELOPMENT KAFZAPH.P. NELSON, DIRECTOR September 2, 1987 Mr. Daniel Long, Town Clerk Town Office Building 120 Main Street North. Andover, MA 01845 Re: Material . Installation 11 Bayfield Drive North Andover, MA Site Plan Review through Special Permit Dear Mr. Long: The North Andover Planning Board held a public hearing upon the application of Channel Building Company, 23 Main Street, Andover, MA. on Monday evening, August 3, 1987 in the Town Office Meeting Room. The hearing was advertised in the North Andover Citizen on July 16 and July 23 , 1987. The following members were present and voting: Erich W. Nitzsche, Chairman; . John L. Simons, Clerk; George Perna and Paul Hedstrom. John J. Burke was absent. The petitioner seeks a Special Permit under Section 8 , paragraph 3; Site Plan Review. The purpose of the Site Plan Special Permit is to review the proposal to expand the assembly and live storage areas of the existing facility by approximately 18, 200 square feet of land on the North side of Bayfield Drive known as 11 Bayfiled Drive in an Industrial-1 (I-1) Zoning District. John Simons read the legal notice to open the public hearing. Letters were received and read from the Fire Department, Board of Health and two (2) letters from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans. MOTION: John Simons to continue the public hearing until the August 17 , 1987 meeting. SECOND: George Perna VOTE: Unanimous On August 17 , 1987 the public hearing was continued. John Simons read a letter sent to Mr. & Mrs . Redman from Material Installation with regards to lighting and traffic issues. Jim Bourgeois of Channel Building presented the Planning Board with revised plans . d a .C.ea d • y Page 2 : MOTION: By John Simons to close the publi�Varing. SECOND: George Perna 0 W) li c VOTE: Unanimous �EP On August 31 , 1987 the Planning Board held a regular meeting and voted to approve the Special Permit application by Channel Building to construct an 18, 300 square foot addition to the existing building located on Bayfield Drive at the intersection of Willow Street. Three issues of concern were discussed at the Public Hearing that should be addressed in this Conditional Approval are as follows: 1 . The unfinished Cul-de-Sac at the end of Bayfield Drive does not allow for adequate fire protection and access- egress for the existing building. It was discussed that the Cul-de-Sac was not finished by the developer of North Andover Business Park prior to this date because of a pending application to the Commonwealth of Massachusetts to create an entry onto Route 125. The Planning Board is in receipt of a letter from the Division of Public Works dated November 14, 1986 denying the request for emergency access onto Route 125 and is concerned that no work has taken place on Bayfield Drive thru 1987. 2. Concern by abuttors to the North of Material Installation property of truck noise and lights during the night. Proponents for the project stated that the newest dwellings are 200 feet and 400 feet respectively from the building, but admit that into the winter months, a lack of foliage in the intervening woods may be cause for concern and have suggested that truck traffic be directed onto the locus by way of the Willow Street entrances thereby minimizing headlights being directed to the North by the present access from Bayfield Drive. 3. There was a concern by the Planning Board of the increased rate of runoff being produced within the North Andover Business Park by the inclusion of additional impervious pavement and building additions. The applicants Engineer, Mr. Tom Neve, has submitted drainage calculations stating the peak runoff has been decreased from the locus due to the fact that percentage of impervious area on the lot has been reduced from the overall Master plan of the Park and that the lot size has been reduced. Notwithstanding these factors, the Planning Board recognizes that if this lot size has been reduced, another lot. in the Park must have been increased, and that Mr. Neve nor the Planning Board has an accurate accounting of the present impervious area versus the original Master Plan impervious area of the Business Park overall.. refore,, the P.lann �g Boafd rendersthzlCo�Yt �naI A Thepp�dtYi �.,._ "Ifar the4 eoz st uct on -of ,t ie proposed buildifig ` ddi-dnvs=wfo mn-'Pri a; T-eh f'; l 1 A i nns: G , I _ s ' i . 230 PLANNING BOARD MEETING AUGUST 3, 1987 The Planning Board held a regular meeting on Monday evening August 3, 1987 at approximately 8:08 p.m. in the Library/Conference Room of the Town Hall. The following members were present and voting: Erich Nitzsche, Chairman; John Simons, Clerk; Paul Hedstrom; George Perna. John Burke was absent. PUBLIC HEARING Materiel Itis'allation .- Site Pbla>n-Review. :: John Simons read the Legal Notice to open the public hearing. Letters were received and read from the Fire Department, Board of Health and two (2) from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans. existing building, drive, and parking presently constructed to expand live storage area from 26,700 sq. ft. to 45,000 sq. ft. . cul-de-sac to be finished as shown on plans easement for utilities only The Planning Board had the following concerns: Mitigation of water runoff Buffer zone to be taken care of Zone line to be identified at the back of' building Roof drains to be calculated into storm drains: The Board recognized Joan Redman of Andover•'Bypass,• an abuttet; with the following concerns: activity at night trucks noise Tights The lighting is to be addressed. Also evergreens and fencing to be looked into for possible noise barriers. MOTION: By John Simons to continue the Public Hearing until August 17, 1987. SECOND: George Perna VOTE: Unanimous Approval Not Required Plana Form A I. Rea Street - Maureen Joyce Applicant withdrew without prejudice MOTION: By John Simons to accept the applicant's wishes to withdraw without prejudice. SECOND: Paul Hedstrom VOTE: Unanimous NOTE: Planning Board concerned that the plan shows a subdivision Town of forth Andover, Zoning Board of Appeals Parties of Interest/Abutters Listing REQUIREVIENT: .MGL 40A, Section 11 states in part "Parties in Interest as used in this chapter shall mean the petitioner, abutters, owners.of land directly opposite on any public or private street or way, and abutters toabutters within three:hundred (300) feet of the property line of the petitioner.as they appear on the most recent applicable flax 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." Applicant's property, list by map, parcel, name and address (please print clearly and use black ink.) MAP PARCEL NAME ADDRESS ee�a7,5KANc It0z)5 ABUTTERS PROPERTIES MAP PARCEL NAME ADDRESS 0^�5 73 €a► -�Y �N,75_r oC ot? �xGJ P 2V �Nr� 35 5 tM Kid v l B 87 Q 5: X41 5 eve Ill1i sa iiv�de+1 . C�4® Meg20.�do pA vlett 5 5 9 a @o�kcsh �Ma►n\slug Crodhgnj ?o l�iea►2o � �� �1�`t5 a 9 3 N 9E!joLjn� Y--,\"\ -16 S 9 to �� . ol$Lt 5 5 1t3'-1 �wac�, PRpc�1gv•re -75 Wwct_6� M o1$it� aS OS .Saes C @ �� SpvMvcA 65 U1g't5 a 5 8R . �e Frzy �\�e �b �g 6 o 18 4,5 ,. 60 ot$'t5 �5' 6 I -70 IQ5. tat%"t5 `jam �gy e\c� of`A 01V-1,5 THIS MFORMAT ION WAS OBTAINED AT THE ASSESSORS OFFICE AND CER'PDUD By THE ASSESSORS OFFICE BY: - HATE SIGNATURE PAGE Z OF-z__- Cgtified by Boa of Assess r h Andov r TOWN OF NORTH ANDOVER, LIST OF PARTIES OF INTEREST: PAGE OF SUBJECT PROPERTY MAP jPAR #j NAME ADDRESS 90 ABUTTERS: CAI ------------- OjB b04ess"'O'H1 , dd*er CERT. BY : DATE: NURIH A100VER Di NCH 0:xA l come to W, 10130101 02:24PM 51 ire 09Pons Awn 1, 00% vt7bl! e AWN Ndw F F I H Stock unit Id "r': Fi PO YJhol1 t' Vwn L'':124 /. 44591 A weight : 0.3502 a seta l Cost: 4,42 Base Rate: 0.37 SERVICES Certified mail 2.;[ Alum REL?Q MA Am Pottage 1q, PA, x iotdl post. 4,42 Me Date AN 70031630.1IJU Y;NO 7 Return Receipt 3. First C!:rs:. 4 , Destinatim: 019.. welrgrit: 0 v'' I 10ta1 Lost =i .4i base Rate: W7 SERVINC. WNW Mail 1003166UON4015 084 Return Rectipt 1 , First. Ciawu ..•r. Oestinatlon: 01845 Weight: 0.30cz Postage Type: PVI IULUI QUOL. .1 1 ItL Base Rate: 0.37 SERVICES Certified Mail 2,30 70031680000499159091 Return Receipt 1 .75 5. 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First Class I --. -4-12. 11-1 w Ues .7 nat ,:_---'01845 Weight; 0.20oz Postage Type: PVI Total Cost: 4.42 Base Rate: 0.37 SERVICES Certified Mail 2.30 70001680000499154152 Return Receipt 1 .75 11 . First Class 4.42 Destination: 01810 Weight; 0.30oz Postage Type: PVI Total Cost: 042 Base Rate: 0.37 SERVICES Certified Mail 2.:30 70031680000499159!69 Return Receipt 1 .7b 12, First Class ON Destination; 018811 Weight: 0.3K Postage Type: PVI total Cost: 042 Base Rate: 0.37 SERVICES Certified Mail 2.0 003168000049909176 Return Receipt LEE 13. First Class 4.42 Destination: 01845 Weight: 0.30o 'ostage type: P'VI Total Cost: 4.42 Base Rate: 0.37 SERVICES Certified Mail 2.30 70031680000499159183 Return Receipt 1 .75 14, First Class 4.42 Destination: 01845 Weight: 0.30oz Postage Type: PVi Total Cost; 4.42 Base Rate: 0.37 SERVICES Certified Mail AT) 70031680000489159 1,9-10 Return Receipt 1 .75 15. First Class 4.41 Destination: 01845 Weight: 0.20oz Postage Ape: PVI Total Cos ; 4.42 Base Rate: 0.37 mm"imm CertifiedAT 2.30 70031680000499159206 Return Receipt 1 .75 16, First Class 4.42 Destination: 01845 Wei?ht: 0.30o? Postage Type: PVT Dotal Cost: 4.42 Base Rate: 0.37 QUICK Certified Mail 2.3U 70031680000499159213 Return Receipt 1 15 17, First Class 4,42 Destination: 01845 Weight: 0.30oz Postage Type: PVI Total Cost: 4.42 Base Rate: 0.37 SERVICES Certified Mail 2.30 70031680000499105220 Return Receipt 1 75 18. First Class 4.4' Destination: 01845 Weight: 0,30oz Postage Type: 01 Dotal Cost: 4.42 Base Rate: 0.37 SERVICES Certified Mal 1 70031680000490159237 Return Receipt 1 i5 A First Clan: 4A' Destination: 01845 ale i clht: 0.3000 Postage Type: PVT Total Cost: 042 Base Rate: 0.37 SERVICES Certified Mail 2.0 70031680000499159244 Return Receipt 135 Subtotal 83 A Total 63 18 Personal/ Business Check 83.98 Plumber of Items Sold: 19 �`l•hank You Have a Nice Day" A,T N0. 98 S0 53 H d 44 (� 78 4 3 e 5 0 7 n a'8 - 113 ,o 20 112 4 un.. II,m 14 110 9 WTLLOW ' 113 . m Jf� 141 1 ibl ._ 140 Y6225 160 89' a �p .97 r �, IL59 123� 26 STREET �e aSB LANE- lC1 n. EXT- m s 147. 137 S Y"'. • - m 733 135 l;4 • �4(r•�/ x .�14I,148c• 124 -'136 132" 3 70 b 0 149 7940• �3.151 132 125 g 7 o S'C. ,. A� 303= .,� 73 .n.. y � m 100 1 106 .72 z X143 ldb � 164 165 `7'._. •, .. 102 . .. .•y 4 n344 .0 ' _ 1w •93 u Q ` 128 . 99 - g o.• ]6 ' ~ RQp9 4 o S - 7a H+ •93 98 a 26 lo. ag4.3�4 BY PASS 38 16,74 2 12,470 17a 5a 0.3ec 1.3-- 31 19 58 59 60 61 32 30 .. .27 - 91,960 62 067).. 37.300 47.770 55,550 mm >Pm... 63 16 1.163 4t. 45,x53 . 36 44,050 68 57 29 9,200 1.34— P�O�R o 83 SFE PL°113239 7j 80 305 5.267 M S.2 x. B4 im py2f3• y 52 E 11.25 ec. 2 iar ro5 � � 4 r2 nT y TA 9.74 ec. b EXT 75 v� 2.6.. Q Y v 85 3.2 ac 3 1.1 76 b oc. 119 .. . 1.66— FISCAL 2002 MAPS DRAWN BY FIRANK S.-GILES, P.L.S < PASS MEASUREMENTS ARE SCALED ONLY NOT FOR SURVEY PURPOSE. ` SEE PL a9 "' 21.600 tIjLL as 21.282 47 20.995 20,526 45 20,195 2 13,082 1 A 3.82 e. 64 z 203 oc 69 4 4.81�. 66 35 4;by 42780. le ec. ro 12 C y 266 z ANDOVER o 1. 4.71 r. 67 11.23 r. 13 %95x ttl r a z 0 N A Wn-ow SF' I A. ANDOVER SCALE - 400 FEET = 1 INCH B` Town of North Andover, Zoning Board of Appeals Parties of Interest/Abutters LisfinLF REQUIREMENT: MGL 40A, Section 11 states in part "Parties in Interest as used in this chapter shall mean 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." Applicant's property, list by map, parcel,name and address (please print clearly and use black ink.) t MAP PARCEL NAME ADDRESS Vt.?j'C ABUTTERS PROPERTIES / MAP PARCEL NAME ADDRESS �� — 7� ✓�@ �J � �+ :%�; ✓ tl dFti'i�:.�Ei-.G IJt1-� �%' l•�t^i� Q-7 v/35, 5 c9t 5 q1 V 6g® Meg2o� � tld C�tB't 5 9a sh `�1 ni shg Gc4hcyn\ -5 35 93 N O'x� YN\rn ✓ -7 6 -0 5 L5 104 �/ d �t PAc�\ gv ire "7 5 Meq P �l 'i i 2.S os r�u�� Sees r bte. -L 6vnve-� 65 MeAjN.o.,� �5 61,\ 5 VK- a5 6 Qcc is : Mie G�\�rsk;l 8h\cen pc��e c�1��z� 15 6 ► `I ��v_\ Cmc ee ✓ \c� crn�e e:l p��•+� o�g ►a .2S 70 ✓ S>C� ✓ tl 1-1V CWf',eVs 106-6, 01$,45 THIS INFORMATION WAS OBTAINED AT THE ASSESSORS OFFICE AND CERTOMD BY THE ASSESSORS OFFICE BY: DATE SIGNATURE PAGE Z OF'Z.i Date Cofti#'ied by , Boa of Assess r h Andov r 1 TOWN OF NORTH ANDOVER UST OF PARTIES OF INTEREST:.. PAGE OF SUBJECT PROPERTY MAP I PAR # NAME ADDRESS cio ABUTTERS: ( I q AG T7v\ Oati#ied bOate lell(e/t�7-? B d of A esso h Ando er CERT. BY : DATE: 1 Town of North Andover °f NOR°T11 Office of the Building Department "`° °°p Community Development and Services Division r� 27 Charles Street °+ten° fi North Andover,Massachusetts 01845 9SSwcHUS�� D. Robert Nicetta Telephone(978)688-9545 Building Commissioner. Fax(978)688-9542 August 25,2003 Mr.Konstantinos`!Dino"Balos 66 Meadowood Road North Andover,MA 01845 RE: Zoning Complaint Materials Installations,Inc. 11 Bayfield Drive Dear Mr.Balos: I am of the following opinion after investigating your complaint against the above referenced business: • The Planning Board Special Permit of August 31, 1987 did not place a definite time of operation for Materials Installations,Inc. in the Conditional Approval of the Site Plan Review. • In 1987 and presently the North Andover Zoning By-law does not address hours of operation. • The Planning Board Decision of 1987 does not place any restriction on the type of business Materials Installations,Inc. conducts at the Industrial-1 site.In fact the August 31°`decision gave the business permission"to expand the assembly and live storage areas in an existing building by 18,200 square feet. • In 1987 and presently the North Andover Zoning By-law does not.address"noise levels"in any zoning district. • On site investigation reveals that the"row of planted arborvitae to the rear of the building and the six(6)foot closed stockade fence erected along the property line"are in place as required in Paragraph 5 of the Conditional Approval The Building Commissioner/Zoning Enforcement Officer is of the opinion that Materials Installations, Inc.is in compliance with the approved Planning Board Special Permit of August 31,1987,time stamped by the North Andover Town Clerk on September 03, 1987. Pursuant to Section 10.4 of the North Andover Zoning By-law this decision maybe grieved within thirty (30)days before the North Andover Zoning Board of Appeals. Yours truly, D.Robert Nicetta Building Commissioner/Zoning Enforcement Officer CC: Heidi Griffin,Director CD&S Mark H.Rees,Town Manager Raymond J Samilli,Assistant Town Manager Thomas J Urbelis,Town Counsel ✓William Sullivan,Chairman ZBA BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Memorandum To: Karen A. Robertson, Administrative Assistant From: Michel Glennon, Board of Appeals Date: April 14 2003 i Re: Request for Information There was no Zoning Board of Appeals file for 11 Bayfield Drive at 27 Charles Street. CC: Mark Rees, Town Manager D. Robert Nicetta, Building Commissioner ZBA file 4 TOWN OF NORTH ANDOVER ° OFFICE OF TOWN MANAGER_ 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 OORTH Mark H.Rees3?°�`��eD'6°�°°� Telephone(978) 688-9510 Town Manager ° . p FAX(978)688-9556 Arlo ��sSgCHU MEMO TO: D. Robert Nicetta,Building Commissioner Michel Glennon,Board of Appeals Julie Parrino,Conservation Administrator Justin Woods, Town Planner Sandra Starr,Health Administrator Donna Mae D'Agata,Adm.Asst.,CD&S Richard Stanley,Police Chief William Hmurciak,Director,Public Works Joyce Bradshaw,Town Clerk FROM: Karen A.Robertson,Administrative Assistant DATE: April 14,2003 RE: Request for Information Enclosedlease find a Public Records Request from K.Dino Balos, 66 Meadowood Road, p q North Andover. Please provide this office with copies of the information requested in the attached correspondence pertaining to your office. We would appreciate receiving this information at your earliest convenience. Thank you for your cooperation in this matter. If you have any questions,please do not hesitate to contact me. Cc: Mark Rees,Town Manager 04/10/03 12:07 FAX 617 565 7528 10001 r d April 10, 2003 66 Meadowood F o,ad North Andover, PIA 01845-5927 TOWN MANAGER'S OFFICE MARK REES, TOWN MANAGER 120 MAIN STREET NORTH ANDOVER MA via fax: 978-688-9556 Subject: Citizen Public Records Request Re: Material Installations Inc., 11 Bayfield Drive, North Andaver To Whom It May Concern: Pursuant to the Massachusetts Public Records Law, this letter :serves as a request for the following: Any and all information related to hours of operation, anr and all town permits and licenses, business operating plans, building forms, zoning plans, any town authorized exceptions, citizen and/or to-ni complaints, any and all citations, waste disposal permits/licenses, noise, vibrations, nuisance, and minutes of town meetings related to the a1 orementioned items for Material Installations located in the North Andover Industrial Park 11 Bayfield Drive accessible via Willow Street off Ro.xt:e 114. This includes: the building department, police departme-11. records, zoning permits, Board of Health records, Public Works records, Planning Department records, Community Development records, Conversation Commission records, Town Clerk records, and Zoning Board of Appeals records. I can be contacted at the above address or via telephone at 978.683-3414 (home) or 617-557-1235 (work. Thank-you for your time and assistance. Sincerely, K. Dino Balos April 10, 2003 66 Meadowood F o,ad North Andover, MA 01845-5927 TOWN MANAGER'S OFFICE MARK REES, TOWN MANAGER 120 MAIN STREET NORTH ANDOVER MA via fax: 978-688-9556 Subject: Citizen Public Records Request Re: Material Installations Inc., 11 Bayfield Drive, North Andover To Whom It May Concern: Pursuant to the Massachusetts Public Records Law, this letter :,erves as a request for the following: Any and all information related to hours of operation, anv and all town permits and licenses, business operating plans, building forms, zoning plans, any town authorized exceptions, citizen and/or to,via complaints, any and all citations, waste disposal permits/licenses, noise, vibrations, nuisance, and minutes of town meetings related to the a1 orementioned items for Material Installations located in the North Andover Industrial Park 1 1 Bayfield Drive accessible via Willow Street off Ro-it:e 114. This includes: the building department, police departme zt. records, zoning permits, Board of Health records, Public Works records, Planning Department records, Community Development records, Conversation Commission records, Town Clerk records, and Zoning Board of Appeals records. I can be contacted at the above address or via telephone at 978.683-341.4 (home) or 617-557-1235 (work). Thank-you for your time and assistance. Sincerely, K. Dino Balos � � � L T O '%V N OV N O It '[' 11[ AN i) O V E It RECEIVED MASSACII U ], '1' '1' S D.MELL0`6 Y0*1,, NORI H 04ER p1 3 4� MAY 11 12 �6131a '88 appeal shall be filed arc. min (20) days after the ' of filing of this Notice in the Off ice of the Town NOTICE OF or=crsror4 Clerk. " Date . . stay .17' . .1,988. . . . . . . . . . . . . . . 1)ut(I of I1caring May 12: 1988 Petition of . . . C .ZuLding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises affect d . . . 11 .$4yfie,ld, gr�yp. , . .i�gterial, Installation Referring to the above petition for a special permit from the requirements of the , North.Andover Z .Section .8.3, so as to permit , , , , , the .construction. of, an.addition to. an, existing building. 18,200 square feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . After a public hearing given on the above date, the Plarinirrt; Board voted to .ACCEPT . , , , , , , ,the , ,[,1ITHDRA[. . WITHOUT PREJUDICE , . . , , , . . . , cc: Director of Public Works based U1)OT) the following conditions : Board of Public Works WO � Highway Surveyor D n [r] Tree Warden ® Board of Health S1viled Building Inspector n Conservation Commission Pat}1 A.. HedstFpp�, ;[yt�q$��aD a c:::' Assessors _U No G' Police ChiefPernaj, Vice-Chairman M w FH Fire Chief cn John Simons,Applicant , . . . Engineer File Erich Nitzsche. . Interested Parties z 'd OBt,ELBBBLG 314I OOSSrJ 3A3W SHWOHi eSZ : T T EO LT .Jdd 11 Bay6 i.e2d strive Requested addition to ex irst ng ..bu%e Ung WITHDRAWAL WITHOUT PREJUDICE I 5 plclvm h5 3Ocrd det.li &9"'1 CHANNEL BUILDING _ Se��. 2 1987 11 Da. Indw6t4i.ae -1 Zoning Di.6t. '_.__-----------.---- Soeditiorra�-A1apnovrt-a.6....SIT ---PLAN_.------.----.----..___----__._-_ REVIEW - -- - - -------------- - - - - - )i �(88 Jeffery & Paula Dunn Variance 1907 Salem Street 89 Continental Cablevision Special Permit Clay Pit Hill, Johvl S-tree 90 Alan D. Solomont, Partner North Andover Associated Special Permit 1802 Salem Turnpike(Rt. 11 ; 91 Sanlau Realty Trust(Messina) Variance 109-123 Main Street 92 John F & Sharen L. Shaw Variance 230 South Bradford St. 93 James & Sandra Cassell Variance 15 Forest Street 94 Joseph Carroll Variance Booth & Saville Sts.VV 95 James Mavrikos Special Permit 88-90, 88A, 90A Pleasant S� 96 Michael & Ann Bova Variance 119 Duncan Drive 6�1�✓r'°' 97 Joyce Patracone Variance 90 Sutton St. 9-v 98 Ercole L. Sideri, Jr. Variance 6 Russell St. AT 99 Ercole L. Sideri, Jr. Variance 412 Main St.. 100 North Andover Texaco Variance Special Permit 980 Osgood Street g z t 101 Geraldine M. Stella, trustee Variance 1438 Great Pond Rd. 102 Anthony & Ann Conte Special Permit 11-13 Third Street 103 Margaret Coady Special Permit 89 Lisa Lane ^ 104 Suzanne Luttrell' Special Permit 105 Kara Drive 105 Parm Development Corp Special Permit 671-669 Waverly Road Q 106 MiA on E & Patricia A. Long Variance 29 Rosedale Ave. t 107 . Joseph G. Bishop Variance 50 Granville Lane 108 John M. Maguire Variance 56 Magnolia Drive 109 Philip & Gloria DiGloria, Jr. Special Permit 22 Monteiro Way i 110 Z. Richard & Barbara Wysocki Variance 8 Y 51 Forest St. 111 Janet Cooper Special Permit 150 .Sutton St. ' 12 Gordon M. Rokes Variance 40 Third St. w�a 113 Flintlock Realty Trust Party Aggreived Lots 1 thru 5 Cranberry Lane 114 Constantine Stoupis Variance 69-71 Brightwood Ave. 115 Robert F & Helen M. Hajjar Variance 20 Mablin Ave. 59 Crusader Paper Inc. Special Permit Southwest slve of Clark . ; 60 Orlando J. Campisi Variances South side of Mablin !A�' , & southeast side of Eli I 61 Unity Realty Trust-Essex Variance Proposed building at 30 Mass. Avenue U 62 Jefferson Childrens Ctr. Special Permit 790 Turnpike St. 63 James & Ruth Carabello Variance 23 Autran Avenue o0 64 William C. Canty Variance 44 Phillips Court Gilbert Rea Special Permit 44 Rea Street f, 66 Stephen R. Doherty Variance 65 Second St. 67 Michael S. Nicolosi Variance 1187 Salem St.4�`^' 68 James & Sandra Cassell Variance 15 Forest St. 69 Salvatore A. Coco Variance 164 Mass Ave. 70 Robert Turner Special Permit 54-56 Saunders St. 71 W. S. & K. Borys Special Permit 76 Boxford St. 72 Robert Labadini Special Permit 35 Bay State Rd. � 73 K.M.T.K. Realty Trust Special Permit296/298 Sutton St 74 Robert Salemme Special Permit 50 Boxford St. 75 David A. Kindred, trustee Variance a of Kindred Family Trust Special Permit Lot 7B, Marbleridg Rd. 76 Dan Keshian Variance 344 Raleigh Tavern pane 77 John J & Frances Sullivan Variance South side of Holt R � 78 Gary M & Sally J Mucica Variance 7 Olympic Lane 79 Raymond J Canty Variance 46 Phillips Court Sl�`rTtg " 0'' .I�nigitbridge' ar3tn�rs Inc - iance;rVar' 81 David & Cheryl Lanzoni Variance 24 Longwood Ave. 82 John & Evelyn DiGaetano Variance 177 Great Pond Rd. � 83 Peter Ti Slipp, trustee Variance Lots 56,58, 59 & art of E Pleasant Streeti� 84 Marylee Spicer Special Permit 59 Elm Streets-MA "- 85 Harold J. McPhee Variance & Special Per. 61-65-67 Water St eeY t� � 86 David R. Scanlon Advertised as variance 1, "� 322 Middlesex St. I� 87 Suzanne Kucharewski & Nicholas Kucharewski Variance Lot 26D Carlton Lane or 3o 37 Jefferson Office PARK Variance Limited Partnership Special Permit. 671 Chestnut St . �38 Combined Development Group Trust III Turnpike St John R. Rivers , Trustee Special Permit . Lot '80 (Bl),' Alan D. Solomont �� 39 Reb Sarah Realty Trust Special Permit . East &ide of' cam^ Chestnut St . 40 Domenic Giarruso Variance 318 Salem St. ` 41 James D & Diane M Guthrie variance 108 Moody Streets 42 Leon S. Belinsky variance 334 Clark St. ` 43 North Andover Associates Variance Parcel 3 & 2 Foster1 44 Theodore L & Rita DiSalvo Variance 463 Johnson Street ~ 45 Alan D. Solomont, Trustee �a of Reb Sarah Realty Trust Special Permit - Chestnut StreetcV 46 Douglas F. Strong Richard Barrett Variance 133 Pleasant St. �47 Wilber & Ann Burnhan Variance 42 Buckingham Road¢ 48 William & Pamela Buco Variance Lots 42-49 Saville St 49 Donald Samaha Party Aggrieved 98 Beverly St . cr,t4AA1 50 Leslie & Constance . 170 Great Pond Rd. & Sheppard Variance adjacent lot "' 51 Ronald F. Pollone Variance & Special- Permit 185-187 Main Street I 52 A. William Kochanczyk Variance 61 Sylvan Terrace 53 Salvatore Coco Variance 164 MASS. Ave. J 54 William R. Davis Special Permit 891 Great Pond Road 55 Elizaberth M. Bilodeau Variance �N9�r��✓ Aut' Lots 147,148-Parcel 1 ,, Lots 149, 150-Parcel 2 56 Bruce I Sachs Variance 770 Forest Street OrAj 57 James W. Wright, Jr. Adm-Mel Corp. Variance 20/22 Camden Street 58 Paul & Beverly Leclerc Variance 14 Camden Street -- a 9 81 Pleasant Times Realty Trust variance Pleasant Street 82 Michael J. Kettenbach variance Osgood St ) Lake) (!,-P,1 83 New Stevens Hall Special Permit- 75 Park St. May __ 84 Robert J. & Barbara J. Dorsey -'""' Special Permit�Kava Drive , Lot 1-2 85 Gilbert 0. Rea Special Permit ' 44 Rea Street ?`L 86 .Peter & Louise L. Aziz Variance 74 Innis St . 87 Anthony T & Susan J Moreschi Variance Morris St , Lot 18 88 Frederick T . Murphy Variance 125 Meadowview . 89 Mobil Oil Co. Variance Special Permit . 498 Chickering Rcr. 90 Michael d. Leary Variance 17-19 First St. 91 Estate of Avis Comstock Variance 39 Rosedale Ave . 's 92 William T. Godden Variance 25 25 Morningside I 93 Center Realty Trust Party Aggrieved 3 Great Pond Rd.0 y 94 Rosario L & Blanche Consoli Variance 1;2 Lisa Lane 95 Raymond & Gladys Mesiti Variance & 01[P Special Permit . 9496 Elm Street 96 Linda M. Selheim Variance 60 Hemlock Streety \\ �q . 99 Robert & Regina Dombrowski Special Permit - 7-9 Commonwealth / 98 George Hanna Special Permit . 93-95 Union St. U-A 7" George & Wendy Stern Variance 58 Osgood Street -2 Thomas B . Sapienza Variance 482 Mass Ave . 3 Maurice F & Jean J Lynch Variance 27 Wilson RoaodC{�lir 4 Rosario L & Blanche Cons oli Variance 112 Lisa Lane 5 Daniel McConaghy Party Aggrieved 59 Appleton St .AAIW 6 H . Michael Smola, k , Jr . Variance Dale St . 7 Warren & Joya Si Jeri S p e c i al Permit. 133 P1-easant St 8 Michael J . Leaey Variance & 0����__•• S ecial Permi - 7- p t 1 1 9 First St . 9 Jose . ph & Angela Cavallero Variance 240 Marbleridge Rdj� 10 Dorothy Thieben Variances 50 & 58 Linden Av- -917 ION 11 Center Realty Trust Special Permit • 3 Great Pond Rd 12 John D i S a 1 v e Variance 91 Beverly St . P t" 13 Mary Ann & Peter Kurgan Special Permit • 2$1 Sutton St .U) 14 Kinder Care Corp . Variance Rt 114 , Turnpike. J 15 Kinder Care Corp . Special Permit • Rt 114 , Turnpike 16 Kinder Care Corp Variance & S . P . Rt . 114 , Turnpike 17 Robert & Linda Marconi & 4114 Mary A . Levis Variance 78 Johnson Cir lE 18 Homer & Elizabeth Leighton Variance 438 Summer St . � 1._ 19 North Andover Office Park Variance 451 Andover St A&K 20 John J . Enright Variance 25 -27 Concord S" S side of Camden 21 Richill , Inc . dba 4-Star Aviation Variance Sutton Street ! 22 Eastern Technologies , Ltd . Variance2350 Turn pike . S . 23 Myron A . . Eastwood Variance 138 High Street ^ 24 North Andover Housing Authority Variance & Comprehensive Permit Ashland & Second 25 William & Cora McMillan Variance 28 Rock Road (J 26 Peter M. Fce.,2%- Special Permit 160 Kara Drive TO- 27 Samuel S . Rogers , Owner Edgewood Life Care Ctr. Special Permit, 547 Osgood Stat Stevems 28 Warren & Joya Sideri Variance 133 Pleasant St.I+ 29 William & Kathleen Masterson Variance 695 Salem St . "� 30 Mary & Peter Kurgan Variance 281 Sutton St . TO- 31 Francis Gucc a1.1 i Vari,_ance 13 Glenwood St . 332 Robert K. Daigle Special Permit. Hodges Street 33Alistair & Rita Fraser Party Aggreive`d 42 Buckingham Rd . 34 James P . Maynard, Trustee Variance Maynard Real Estate Trust Special Permit. 731 Chestnut St . 35 Eileen Lynch Variance 258 Sutton St . T�36 Chestnut Green at the Andover Condonimum Trust . Variance 555 & 575 Turnpike S• a8 4t Up NORirr 3r.• •,�°� ToWn. of 120 Main Streel NORTH•ANDOVER N'Issordi Ancltrver, k if ✓�49s M:ts��K'huscits(')1 Ei4> f)ING ass 6• { W 17)685-4775 NSERVATIONALTH "ON°B j.'I�IVi51ON cih'; >EANNING PLANNING & COMMPNITYIMEVELOPMENT r« S� KAFZh�i�YPH:I'. NELSON, DIRECTOR September 2, 1987 Mr. Daniel Long, Town Clerk Town Office Building 120 Main Street North Andover, MA 01845 Re: Material Installation 11 Bayfield Drive North Andover, MA Site Plan Review through Special Permi- Dear Mr. Long: The North Andover Planning Board held a public hearing upon the application of Channel Building Company, 23 Main Street, Andover, MA. on Monday evening, August 3, 1987 in the Town Office Meeting Room. The hearing was advertised in the North Andover Citizen on July 16 and July 23 , 1987. The following members were present and voting: Erich W. Nitzsche, Chairman; John L. Simons, Clerk; George Perna 'and Paul Hedstrom. John J. Burke was absent. The petitioner seeks a Special. Permia under Section 8` " paragraph 3; Site Plan Review. The purpose of the Site Plan Special Permit is to review the proposal to expand the assembly and live storage areas of the existing facility by approximately 18 , 200 square feet of land on the North side of Bayfield Drive known as 11 Bayfiled Drive in an Industrial-1 (1-1) Zoning District. John Simons read the legal notice to. open the public hearing. Letters were received and read from .the Fire ' Department, Board of Health and two (2) letters from the Conservation Commission. Jim Bourgeois representing Channel Building, Material Installation and 114 Associates presented the proposed plans. MOTION: John Simons to continue the public hearing until the August 17 , 1987 meeting. SECOND: George Perna VOTE: Unanimou°s On August 17 , 1987 the public hearing was continued. John Simons read g letter sent to Mr. & Mrs . .RedmarI fr;Qm Material installation with regards to lighting arid, tnr-W f c issues. m � u e© of Char nel ,4 i"Id ng pre n � s tue Planning` S.tS i°+X a '-''u"t4 Y,t ,�,�#.f �h 's'' ` ; z' '�.A ,,i, s �•, .�1 ;6 ,"+ ,t, ;,r u�'��.'` ��s - -, , ._ 4 0..t ��' �-�� a� ; xE•-`�i� S{-f r F ` far_:i..a .�e�:n.�'�.�;'S t8 "rf' ##:. y t„'-.sl t .;;.tfrSr�a''�+r2b r a l-- t S 3-T'sF-dc'Trf+�ki^' ' ;. „t„4r4�.S a-:i{n r ,;r^r. ,. xs 3-, z ..iz" z' fi - d '� x #'� .' 'i?'": t '-t" .4•, i ',E`a,.:'�.w., .R t'7 ; :c;a` F' ..: Page 2 . i MOTION: By John Simons to close the ubliei�paring. SECOND: George Perna SEP 3 041 It. VOTE: .Unanimous on August 31 , 1987 the Planning Board held a regular meeting and voted to approve the Special Permit application by Channel Building to construct an 18, 300 square foot addition to the existing building located on Bayfield Drive at the intersection of Willow Street. Three issues of concern were discussed at the Public Hearing that should be addressed in this Conditional Approval are as follows: 1 . The unfinished Cul-de-Sac at the end of Bayfield Drive does not allow for adequate fire protection and access-. . egress for the existing building. It was discussed that the Cul-de-Sac was not finished by the developer of North Andover Business Park prior to this date because of a pending application to the Commonwealth of Massachusetts to create an entry onto Route 125 . The Planning Board is in receipt ; of a letter from the Division ,of Public Works dated November 14, 1986 denying the request for emergency access onto Route 125 and is concerned that no work has taken place on Bayfield 'Drive thru 1987. 2. Concern by abuttors to the North of Material Installation property of truck noise and lights during the night. Proponents for the project stated that the newest dwellings are 200 feet and 400 feet respectively from the building, but admit that into the winter months, a lack. df foliage in the intervening woods, may be cause for concern and .have suggested that truck traffic be directed onto the locus .by way of the Willow Street entrances thereby minimizing headlights being directed to the North by the present access . from Bayfield Drive. 3 . There was a concern by the Planning Board of the increased rate of runoff being produced within the North Andover - Business Park by the inclusion of additional impervious pavement and building additions. The applicants Engineer, Mr. Tom Neve, has submitted d'rainag'e calculations stating the peak runoff has been decreased from the locus 'due to the fact that per'c'entage of impervious area on the lot has been reduced from the overall Master plan of the Park and that the lot size has been reduced. Notwithstanding the,, , factors., the Panning Board recognizes that if this lot site has been reduced, another 1ot. in t:he Park must have been increasedy acrd that M Netre nor the Planning 11" i-hd ha,g an accurat : aocourtt�an"g of the present �Fmperr aur arena versus the Qrinal Nester' Planzgeviou ,Yaea o=f the Btxsine a iA WrE x } - - IA 00 Kv: � ge 3 41 . Bayfield Drive will be eonstru#e ;i� C;lccor an ce Subdivision Plans of No-rth ?Andbi dr"Business Parkand the brought to at least bind i be pavement to the satisfaction of the North Andover Fire Department and to the Division of Public Works prior to construction of the building addition. 2. The lawn area to the East of the proposed building betty the building and Willow Street. shall be designed as a een Detention/Retention Pond to further mitigate runoff flows and to account for loss ground water infiltration due to the impervoius area. This will necessitate redirecting runoff flows into the Ponding area, preferably from the parking lot prior to discharge off site, with proper pipe sizing to detain storm water flows to the maximum possible. 3. Truck traffic flow will be required to access-egress the property from the Willow Street curb cut only and automobile egress the site from the curb cut on Bayfield Drive. This will be a condition for continued occupancy and will be implemented by the use of one-way signs and exit only signs and others as deemed necessary both installed at the two curt cuts as well as at the truck docks and pointed indications on the pavement throughoutthe parkin and access-egress areas. g 4• Upon completion of the building addition and prior to occupancy, the. applicant shall file an As-Built Plan of the.total . sX a showing at least, but-not limited to the follora n pavement grades, rims and inverts, drainage size, access- g, egress signs, -lighting landscaping and all utilities. Said plan to be prepared and certified by a Professional Land Surveyor and submitted for approval by the Planning Board. 5. The landscape plan as submitted does not show the existing row of planted arborvitae to the rear of the existing building and the Planning Board is of the opinion that the proposed planting of arborvitae will be of the same nature and therefore will not mature to a full effective screening g for many years and therefore will require that in addition to the landscaping plan as submitted being conformed to in its entirety, a six (6) foot closed stockade fence be erected along the property line from a point startin fifty feet from Route 125 and extending line of the proposed buildinEasterly to the Easterl g addition, 6. In accordance with the Fire Department report of July 19$.7; the following shall be provider Y 31 1 . The addition mustbe equipped with an automatic fire S'uPPression system (sprinklers) and the fire deteton and alarms foram the origi.nai buxldin tb theddit .on Both of to g must be extended ,c t b Ytt r ' '4'P40S .ITtt3St: e 7, 7V > .fix, ,c }. , §�''asFtS fiy '. Y sit tE a st d s A OR- Wage 4: 2• The Fire Chief has requested that information regarding the material to be stored and the amount of storage for products in this expansion be submitted to himself or the Fire Presention Officer. 7• The North Andover. COnservation Comission ' s Order of Condi under File No. 242-19p3, shall become a art of this a tions and be strictly adhered. pproval 8 - in addition to the aforementioned Conditions, the P Board approves Planning ann ' PP only in y that work as shown on the submitted g plans namely: 1• Sheet L1-1 dated 9/5/86 and revised 8/13/87 2• Sheet L2-1 dated 9/5/86 and revised 8/13/87 3 . Sheet L4-1 dated 9/5/86 and revised 8/13/87 4 • Unnumbered -Sheet dated 8/13/86. and revised 9/9/86 and entitled "Scheme 3" 9• Any proposed changes and/or future building expansion will be the subject of a new Public Hearing under a new Special Permit Application and further that any changes from these approved plans and that may be shown on the As-Built Plan submitted for. approval prior to occupancy will negate this Special Permit and will require new filing of application. Sincerely, PLANNING BOARD Erich W. Nitzsc e Chairman Director of Public Works -ti Highway Surveyor h,! Board of Public Works Tree Warden Conservation Commission ED Building Inspector _ Board of =, > Health Assessor Police Chief Fire Chief Applicant Engineer File Interested Parties } }rte n 3t 7 1cifi�7;i ;ss Y f '. .�r ��,;�. ���.: � .°.a+.R: ,¢ �"�_K"� , ,� t`yv a" F d+3`.:jam,:, „P,a�^��� a :...:,7 s t. s�'•d, t k '.w:' * 7• �5�dh�4'ift3 iq� . W ` ']� �.a�t3ti 5 L A /yRY �,