HomeMy WebLinkAboutMiscellaneous - 11 BAYFIELD DRIVE 4/30/2018 (4) 11 BAYFIELD DRIVE ,
210/025.0-0073-0000.0
I
I
I
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 KonstantinossE:Bal-osy(`=Bolos") in
this action. For the reasons stated below,MI's-motion for summary judgmenvis ALLOWED on
all counts as to all defendants.
MI is in the business of assembling and distributing office partitions fand has operated in
an industrial park located at f I Bayfield Drive in Nortlx Andover(the "Ml.faci11ty")"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
r
was created in or about 1993., ,
Beginning on or about June 12, 2003, Balos complained to the Town of North Andover
that MI's operations at the MI facility were not in compliance with the North Andover Zoning
By-laws or with a Planning Board Special Permit of August 31, 1987 (the "1987 Special
' Permit") that, pursuant to the Site Plan Review provisions of the North Andover Zoning By-
laws,permitted MI, inter alfa, "to expand the assembly and live storage areas in [its] existing
building by 18,200 square feet" and, additionally, set certain conditions regulating operations at
the MI facility. Specifically, Balos complained of excessive noise from trucks operating at the
MI facility, particularly early in the morning, and further complained that such activity was in
violation of conditions of the 1987 Special Permit and the North Andover Zoning By-laws.
After an investigation of Balos' complaint that included site visits to the MI facility, the North
Andover Building Commissioner and Zoning Enforcement Officer, D. Robert Nicetta
("Nicetta"), issued a decision on August 25, 2003 (the"Nicetta Decision") that determined that
NII was in compliance with the North Andover By-laws and the conditions of the 1987 Special
Permit; specifically,Nicetta found that: i
• The [1987 Special Permit] did not place a definite time of operation for [MI];
Y
• In 1987 and presently the North Andover Zoning By-law does not address hours of
operation;
• The [1987 Special Permit] does not place any restriction on the type of business [MI]
conducts at the Industrial-I site. In fact, the [1987 Special Permit] 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; and
• 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 [1987 Special Permit]
2
Balos appealed the Nicetta Decision to the Town of North Andover Zoning Board of
Appeals (the "ZBA"). In evaluating the Nicetta Decision, the ZBA was charged by the North
Andover By-law with deciding 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.
The ZBA then held two duly noticed public hearing sessions on Balos' appeal, on January 13
and February 10, 2004. During these hearings, Balos requested, both to the ZBA and separately
to the North Andover Planning Board (the "Planning Board") that the 1987 Special Permit be
modified or annulled.
The ZBA rendered a unanimous decision that upheld the Nicetta Decision as consistent „
with the North Andover Zoning By-laws and the 1987 Special Permit (the "ZBA Decision").
r
Specifically, the.ZBA found, as Commissioner Nicetta had,that MI was in compliance with the
conditions of the 1987 Special Permit and had not violated any by-law relating to Balos'
complaints. In addition, the ZBA also found that"The Zoning Board has no authority to modify
r
a Planning Board decision," i.e., the 1987 Special Permit, and that""The ZoningrBoard has no
authority to order the Building Commissioner/Zoning Enforcement Officer to act outside the
North Andover By-laws." The ZBA Decision was filed with the North Andover Town Clerk on
February 19, 2004.
On March 9, 2004, Balos, proceeding pro se, timely filed a Complaint in this Court
against MI and the ZBA to appeal the ZBA Decision under M.G.L. ch. 40A, section 17. The
complaint in large part,related more to the propriety of the 1987 Special Permit rather than the
2004 ZBA Decision.
On or about July 26, 2004, Balos filed an Amended Complaint adding as defendants the
Town of North Andover, the Planning Board, and The Channel Building Company, Inc.
3
("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
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. Lindsgy v. Romano, 427
Mass. 771, 773 (1998); Kourouvacilis v. General Motors Corp., 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
reviewsofthat decision, if at all, within twenty days of the filing of the decision in question."
4
a
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
i
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
4
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 Plannipg 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.
9
To the extent that Balos' pleadings.constitute an appeal of the 2004 ZBA Decision, he hos
failed to present any evidence at summary judgment that raises any genuine question of disputed
5
A
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
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.
b
t
Patrick J. Rile
Justice of the Superior Court
Dated: March 30, 2005
a
v
a
b
6
URBELIS&FIELDSTEEL, LLP
155 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1727
t -
THOMAS J. URBELIS Telephone 617-338-2200 Andover
e-mail tju(uufbxom Telecopier 617-338-0122 Telephone 978-475-4552
April 5, 2005
North Andover Zoning Board of Appeals RECEIVED
400 Osgood Street APR 0
N. Andover, MA 01845 6' 205
RE: BALOS V. SOULE, ET AL. BUILDING DEPT.
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.
k
Very truly yours,
Thomas J. Uybelis
Enclosures
TJU/kmp
cc: Board of Selectmen (w/enclosures)
Mr. Mark Rees (w/ enclosures)
Mr. D. Robert Nicetta(w/enclosures)
4
Ms. Heidi Griffin (w/enclosures)
a
s:\wp511work\n-ndovelbalos\zaning.boad.letter.doc -
x
l�
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 Judgrrlent 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.
t
Patrick J. r4ey
Justice of the Superior Court
4
Dated: March 30, 2005
p
s
TOWN OF NORTH ANDOVER
OFFICE OF
TOWN MANAGER
120 MAIN STREET
NORTH ANDOVER,MASSACHUSETTS 01845
NORTF1
Of ti�eu`�7tiO
Mark H. Rees
Telephone(978)688-9510
Town Manager ►° , FAX(978)688-9556
SSACHUSE
MEMO RECEIVED
TO: D.Robert Nicetta, Building Commissioner APR 1 4. 2003
Michel Glennon, Board of Appeals
Julie Parrino, Conservation Administrator Ntsi4'rH.ANDOVER
P(,ANNING DEPARTMENT
Jnstin�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 03
FROM: Karen A. Robertson, Administrative Assistant
DATE: April 14, 2003
RE: Request for Information
Enclosed please find a Public Records Request from K.Dino Balos, 66 Meadowood Road,
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
y
. .^.. � MUM fflfltt"
O ;WN ,.Oh+ NORTIi AN n0DIr!- R
M S S A C I1 U S E T T S
SEP 3 II II fti;°1 17 0, Na I. Any appeal shall be filed
o
r ' within (20) days after the
F p
date of filing of this N
• �' OtICP
. ••�''�y in the Office of the Town
,SSAC NUStI
Clerk.
NOTICE OF DECISION
Date. Sp-ptembaL .2. . 1.9.$7 . . . . . . . .
Date of Hearing August .31,. 19$7
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. Zonin. g. Bylaw,. .Section. .8 ;. Para. . 3, . . . _ . . . . .
. . . . . . . . . .
. . . . .
so as to permit . . to.exjpand, the .assembly, and .live .storage .areas .in. an
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
existinq. building bX. 18,.200. square, feet. . . . . . . . . . . . . . . . _ . . . . . . .
. . . . . . . . . . . . . . . . . . . . .
After a public hearing givcn on the above date. the Planning Board voted
Conditionally
to APVrove. . . . . .the . . .Site. Plan. Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .
based upon the following conditions:
Signed
Erich, W,., ,Nitzschc, , c:Y}airmap:
John Simons Clerk
. . . . .
George Perna
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .
Paul Hedstrom
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
John J. Burke
. . . . . . . .plaAnhr g 13oard . . . . . . . .
Of 4.
OFFICES OF 0 TOI1of 120 Milill Stt('('.t
North Alld(wer,
APPEA1,S NORTH ANDOVER
If BUILDING Nl,'iss;ichusults 1845
T'!MVISION(!I
CONSERVATION ,
us (617)685.4775
HEALTH
PLANNING PLANNING & COMM[JNITYI ME V ELOPMENT
KARE-k H.11. 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, 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 with revised plans .
1 Page 2 . ", '
MOTION: By John Simons to close the publi. Ir paring.
SECOND: George Perna SEP v ►�`3 11:
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.
Therefore, the Planning Board renders this Conditional Approval
for the construction of the proposed building additions for
Material Installations:
Page 3:
• TZ
1, Bayfield Drive will be construpte0ls,ii-1ccordance with the
Subdivision Plans of North 'AndoV0r� Business Park and be
brought to at least bindb'Y 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
to construction.
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 Presention 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 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 a new filing of application.
Sincerely,
PLANNING BOARD
Erich W. Nitzsckfb,
Chairman
/j e
cc: Director of Public Works
Highway Surveyor
Board of Public Works
Tree Warden �n
Conservation Commission
Building Inspector
Board of Health
Assessor
Police Chief
Fire Chief
Applicant
Engineer
File
Interested Parties
03/12/03 16:13 FAX 617 565 7528 1� 001
March 12, 2003
66 Meadowood Road
North Andover, MA 01845
North Andover Building Department
Attn: Michael McGuire, Building Inspector
27 Charles Street
North Andover, MA 01845
Fax: 978-688-9542
Subject: Records Request
Re: Material Installations, Inc., 11 Bayfield Drive
North Andover Industrial Zone 2, parcel 125
Dear Mr. McGuire:
Per our telephone conversation, requested are copies of any and all records related
to Material Installations, Inc.
Should you require additional information please contact me at 617-557-1235.
The documents may be faxed to 617-557-1211.
Thank-you for your assistance with this matter.
Sincerely,
K. Dino Balos