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Miscellaneous - 1275 TURNPIKE STREET 4/30/2018 (10)
-41-- ea-?pf u i -41-- ea-?pf u Ln �. C �ryo v � Q C �r yr QQ �i 'b G S� oG Ln �. C �ryo 14 2�1 hL C-f(� 0" °f f t), 0U V) ,1 t(�sp�u ��-7 H t 14 2�1 hL C-f(� 0" °f f t), 0U V) ,1 t(�sp�u ��-7 �J i� N k 1n� rya I i� Bowditch & Dewey, LLI P" M1 A T T O R N E 5' S F{I I AIy BRIAN C. LEVEY FRAMINGHAM WORCESTER 161 Worcester Road 311 Main Street Framingham, MA 01701-9320 Worcester, MA 01608.1552 (508) 879-5700 EXt 603 (508) 791.3511 Facsimile (508) 872-1492 blevey@bowditch.coma www.bowditch.com The MZO. GROUP DESIGNERS ■ ARCHITECTS ■ PLANNERS IN THE (MIQUE.LLE TRADITION David H. O'Sullivan, AIA Vice President 92 Montvale Avenue, Suite 2400 ■ Stoneham, Massachusetts 02180-3628 Voice 781279.4446 ■ Fax 781•`79.44'48'i E -Mail mzo@tiac.net Mstt µ6RT{y' 1 DATE: 3/10/99 ADDRESS: 11 Old Boston Rd., Tewksbury, MA for premises at: Boston Hill, Salem Turnpike * nn n' 1�vGC HEARING:2/9/99 & 3/9/99 t SS,HuSE NORTH ANDOVER �,a� 16 22 OFFICE OF OTHE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER, MASSACI-RJSETTS 01845 FAX (978) 688-9542 Any appeal shall be file NOTICE OF DECISION within (20) days after the date of filing of this notice Property at: Boston Hill, Salem Turnpike in the office of the Town Clerk. NAME: Boston Hill Development, LLC DATE: 3/10/99 ADDRESS: 11 Old Boston Rd., Tewksbury, MA for premises at: Boston Hill, Salem Turnpike PETITION:054-98 North Andover, MA 01845 HEARING:2/9/99 & 3/9/99 The Board of Appeals held a regular meeting on Tuesday evening, March 9, 1999 upon the application of Boston Hill Development, LLC, 11 Old Boston Rd., Tewksbury, MA., for premises at: Boston Hill on Salem Turnpike, North Andover, requesting a variance from the requirements of Section 8, paragraph 8.7(6e) open space requirements and 8.5 (6c) height limitation and as a Party Aggrieved of Section 8.7 (6e) of the Growth Management Bylaw, within the V -R Zoning District. The following members were present: Walter F. Soule, Raymond Vivenzio, John Pallone, Ellen McIntyre, Scott Karpinski. The hearing was advertised in the Lawrence Tribune on 1121/99 & 1/26/99 and all abutters were notified by regular mail. Upon a motion made by Walter F. Soule and 2"d by John Pallone, the Board voted to allow the petitioner to Withdraw Without Prejudice the request of 8.5 (6c) height limitation; and the Board voted to uphold the Building Inspector's decision of Section 8.7 (6e) and*Board voted to deny the Party Aggrieved petition of the Growth Management Bylaw and the Board voted to GRANT a Variance on the following Open Space Appeal/Variance with the following conditions: 1. This variance is conditioned upon agreement that only 79 units be allowed. This variance applies to the 33.35 acre parcel of land shown on the plan entitled `Open Space AppealNariance Plan" for Boston Hill in North Andover, MA prepared for Mesiti Development Corp., by Marchionda & Associates, L.P., 62 Montvale Avenue, Suite I, Stoneham, MA and dated February 24, 1999 (the 'Open Space Plan') which is recorded along with this variance. Page 1 of 2 Im ).11,11M O 1p S s{i 3'll,i)INI;SnAR_':1: cO\NsIaI `" 1'1O"6�:„` 0 111:: `a ".i 11 1. 1. G;i;�- 1 _ 1. ll. :I' -". U Decision continued of: Boston Hill, Salem Turnpike, North Andover, MA 2. This variance is conditioned upon the approval by the Town of North Andover Planning Board of a Site Plan for a multi -family housing project on the 33.35 acre parcel of land known as Boston Hill in North Andover which property is shown on the Open Space Plan. 3. This variance is conditioned upon half of the land or 16.68 acres being retained as open space in perpetuity for conservation, agricultural or recreational uses by deed restriction, dedication to the Town or other similar mechanism. As this variance is conditioned upon the approval of a Site Plan by the Planning Board of a multi -family project which process may result in changes to the precise layout of the project, the 16.68 acres of open space may be located anywhere within the parcel shown on the Open Space Plan and need not be the same 16.68 acres shown on said plan. 4. This variance is conditioned upon the agreement that the proper Open Space will allow a tie into the Rte. #114 and Ward Hill Reservation area to allow for a Conservation Trail to be located on the site. As per the above conditions the Zoning Board of Appeal's vote was unanimous: Walter F. Soule, Raymond Vivenzio, John Pallone, Scott Karpinski, Ellen McIntyre. The petitioner has satisfied the provision of Section 10, paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. Boar of Appeals, Raymond Vivenzio acting Chairman ml/1999decision/3 Page 2 of 2 O 09 �ojtroo TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main St.,-NoithAndaver, -MA ion Tuesday the-Sth -day-of.-February, x999 at 7:30 PM to all parties interested in the appeal of Boston Hill Development, LLC , 11 Old Boston Road. Tewksbury requesting a Variance from the requirements of Section 8, paragraphs 8.7 (6 e) open space requirements and 8.5 (6 c) height limitation and as a Party Aggrieved -of -Section-S.7-(6-e)-of-tie-Growth Management By- Law. Said premises affected is property located on 33.35 acres on the Salem Turnpike which is in Village Residential Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover Monday through Thursday, -from-the-hours-of--9:AM to 1:PM. By order of the Board of Appeals, William J. Sullivan, Chairman Published in the -Eagle TXabune-on 112.11994 1-126/99 BOARD OF APPEALS 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING =i 4tiTOWN OF NORTH ANDD' I the: Board .of App ,hold 1 -public hearli Sion Center, 1 MA on-.Tuesda : the 9th I`day�of�Fibuary, 1999 of s 'Z:30.PM to all- arties inter= ' I•-esteg�.ln1,the`appeal of Boston,Hill Development, LLC 11 Old Boston • Road; .Tewkstfury.requesting 'a rVarleacejrom:the require- ments-6f equire-ments_of Section 8, para- as,, ara- requfrementS�and'8.$�(6'c)'1 heigtitlimitation an"d as,a''•`+ Party A99rleved`of Section (, i3.7 (6 e)rof.the Growth Man I agement By Law.' ` I .-, _Said premises.affected is I property *1bcated on 33.35 acresron,the Salem.Turn- pike-which' 'Is in!Village Res- ;idential;Zonlrig District: „Plans are..available for .review'af the'Offlce`of the Building De ,_;27,Charles Street; North over Mon- daythroughAThursday,:from a the hours of 9:dM to i PM;,F, k "`" Bjirder of the 'Board f Appeals t William ..Sullivan, Chairman F -T— Annuary P 26. 1999 ! TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereb;�' �. that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main St., North Andover, MA on Tuesday the 9th day of February, 1999 at 7:30 PM to all parties inter- ested in the appeal of Boston Hill Development, LLC. 11 Old Boston Road, Tewksbury requesting a Variance from the require- ments of Section 8, para- graphs 8.7 (6 e) open space _requirements and 8.5 (6 c) height limitation and as a Party Aggrieved of Section 8.7(6 e) of the Growth Man- agement By Law. Said premises affected is property located on 33.35 acres on the Salem Turn- pike which is in Village Res- idential Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover Mon- day through Thursday, from the hours of 9:AM to 1:PM. By order of the Board of Appeals, William J. Sullivan, Chairman F -T — January 21, 26,,199 GLL S S To place j classified ad, we nearest to the Local Area: 6E Vew Hampshire: Flaverhill Area: 3i Imesbury Area: 4t Phone & Counter Ho Monday-Friday 8am- (Phones only til 6 pi Saturday 8am-4pn CELLATION AND ERRORS i your ad get§ the desired results nake the appropriate rate adjus deadlines. VSIENT RATES � ttsv ie ryO h e� •�L • t e^ # �9SSAC HUSE� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main St.,-ftrth-Andover,-AAAion Tuesday -the --9 h day -of febr-uary, 1999 at 7:30 PM to all parties interested in the appeal of Boston Hill Development, LLC , 11 Old Boston Road. Tewksbury requesting a Variance from the requirements of Section 8, paragraphs 8.7 (6 e) open space requirements and 8.5 (6 c) height limitation and as a Party Aggrieve! -of Section -8.7 -(6 -e) -of -the -Growth -Management -By Law. Said premises affected is property located on 33.35 acres on the Salem Turnpike which is in Village Residential Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover Mondaythrsugh Thursday, -from-tlae-fours-of-9:AM-to-1:-PM- By order of the Board of Appeals William J. Sullivan, Chairma+rl Published in theEagle Tribune -on 1./21-/99-& 1-/26/99 BOARD OF APPEALS 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 r t NORTF, , 3�Oct(``D /e'6�OOL O ,n • "t + y 9. coc.c+cWK« � TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main -St:; -North -Andover, -MA on Tuesday the -9'' -day-of -February, x999 at 7:30 PM to all pailies interested in the appeal of Boston Hill Development, LLC , 11, Old Boston Road. Tewksbury requesting a Variance from the requirements of Section 8, paragraphs 8.7 (6 e) open space requirements and 8.5 (6 c) height limitation and as a Party Aggrieved -,of -Section-8.7-(8-e)-of-the-Growth Management By -Law. Said premises affected is property located on 33.35 acres on the Salem Turnpike which is in Village Residential Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover Monday through Thursday, from -the-tours-of-9:AM to 1:PM. By order of the Board of Appeals, William J. Sullivan, Chairman Published in the.E,agle Tribune -on 11211994 1!26/99 BOARD OF APPEALS 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING LECITIi� OTIC STOW. 4 OF'd;t NORTHY'ANDOAR V 'the 9th 1999 at. ties Inter= ideal of ��t;. �•l:rv,a;poston rsoaa, , Tewks"ry''regaesting a xV'rlan`ce'frorri the require- ments of Section_8, para- graphsL87y(6 e),open space c _regfifrements and -8.5,(6 c) I height ftitatiori�Hd as�a PartyrAggrieypd of Section I 8.7n(t%,e)'of the Growth,Man agement By Law. ` " I I..k ;Sald,pr"emises,affected is l propeity'locate'd 6n.33.35 acres on -the _. alem Turn pike-which`is In Villa6e-Res- idential2onirig District..' , Plans _are .available for review !at,the'Offlce'of the Building -,.Dept:;; 2T,;Charlas Street, North Andover Mori-, day,4hrough,Thursdayjrcim y the,tiouis of 9:AM to ,;P(A_ By H r`ef the Boa'rd�f I p,.eals William Sullivan, Chairman E-T—danuan, 21 26, 1999 I_, NORTH ANDOVER22 1 r OFFICE OF THE ZONLNG BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER. VASSACI-iUSETTS 018-15 FA2,', (973) 633-954 Any appeal shall be file NOTICE OF DECISION within (20) days after the date of filing of this notice Property at: Boston Hill, Salem Turnpike in the office of the Town Cleric. NAME: Boston Hill Development, LLC DATE: 3/10/99 .. .ORTk '. !. 04 •`w '94,, —` HEARING:2/9199 & 319199 �• t � �QYOC C `'`` NORTH ANDOVER22 1 r OFFICE OF THE ZONLNG BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER. VASSACI-iUSETTS 018-15 FA2,', (973) 633-954 Any appeal shall be file NOTICE OF DECISION within (20) days after the date of filing of this notice Property at: Boston Hill, Salem Turnpike in the office of the Town Cleric. NAME: Boston Hill Development, LLC DATE: 3/10/99 ADDRESS: 11 Old Boston Rd., Tewksbury, MA for premises at: Boston Hill, Salem Turnpike PETITION:054-98 North Andover, MA 01845 HEARING:2/9199 & 319199 The Board of Appeals held a regular meeting on Tuesday evening, March 9,1999 upon the application of Boston Hill Development, LLC, 11 Old Boston Rd., Tewksbury, MA., for premises at: Boston Hill on Salem Turnpike, North Andover, requesting a variance from the requirements of Section 8, paragraph 8.7(6e) open space requirements and 8.5 (6c) height limitation and as a Party Aggrieved of Section 8.7 (6e) of the Growth Management Bylaw, within the V -R Zoning District. The following members were present: Walter F. Soule,. Raymond Vivenzio, John Pallone, Ellen McIntyre, Scott Karpinski. The hearing was advertised in the Lawrence Tribune on 1121/99 & 1126/99 and all abutters were notified by regular mail. Upon a motion made by Walter F. Soule and 2"d by John Pallone, the Board voted to allow the petitioner to Withdraw Without Prejudice the request of 8.5 (6c) height limitation; and the Board voted to uphold the Building Inspector's decision of Section 8.7 (6e) and to Board voted to deny the Party Aggrieved petition of the Growth Management Bylaw and the Board voted to GRANT a Variance on the following Open Space AppealNariance with the following conditions: 1. This variance is conditioned upon agreement that only 79 units be allowed. This variance applies to the 33.35 acre parcel of land shown on the plan entitled "Open Space AppealNariance Plan" for Boston Hill in North Andover, MA prepared for Mesiti Development Corp., by Marchionda & Associates, L.P., 62 Montvale Avenue, Suite 1, Stoneham, MA and dated February 24, 1999 (the 'Open Space Plan') which is recorded along with this variance. Page 1 of 2 �il!'•.Ii l'I iP li'u!'..'�.1.�!i;--..,-. C,J i;I i1,i:I\lrS „S;;_,,:�` �;l `'`.<I IZ''..Il(1`. i,.,.. -'!`.;h I;I`..''•.I., :i ,,., to I'!. 1'...;'.i Decision continued of: Boston Hill, Salem Turnpike, North Andover, MA 2. This variance is conditioned upon the approval by the Town of North Andover Planning Board of a Site Plan for a multi -family housing project on the 33.35 acre parcel of land known as Boston Hill in North Andover which property is shown on the Open Space Plan. 3. This variance is conditioned upon half of the land or 16.68 acres being retained as open space in perpetuity for conservation, agricultural or recreational uses by deed restriction, dedication to the Town or other similar mechanism. As this variance is conditioned upon the approval of a Site Plan by the Planning Board of a multi -family project which process may result in changes to the precise layout of the project, the 16.68 acres of open space may be located anywhere within the parcel shown on the Open Space Plan and need not be the same 16.68 acres shown on said plan. 4. This variance is conditioned upon the agreement that the proper Open Space will allow a be into the Rte. #114 and Ward Hill Reservation area to allow for a Conservation Trail to be located on the site. As per the above conditions the Zoning Board of Appeal's vote was unanimous: Walter F. Soule, Raymond Vivenzio, John Pallone, Scott Karpinski, Ellen McIntyre. The petitioner has satisfied the provision of Section 10, paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. Boar of Appeals, Raymond Vivenzio acting Chairman r mi/1999decision/3 Page 2 of 2 ti .0 C W N O W 20 `O Z N N O C C 0, N co v m U fn N M �O i1 O O O V CJ U O e- N N r e- N N V- N r- t- N N V- � r- r N N N N .- N e- N V- N r N e- N .- N T- N V- N CI i O U Marchlonda & Associates, L.P. Engineering and Planning Consultants April 4, 2001 Mr. Jay Wickersham MEPA Director Executive Office of Environmental Affairs 100 Cambridge Street, Room 2000 Boston, MA 02202 RE: EDEA Number 7628, Boston Hill, North Andover Dear Mr. Wickersham: J'P). C 1 MAY 2 3 2001 On December 111 1998 I sent you a letter requesting you to issue a Notice of Project change for the subject site. A copy of my December 11, 1998 letter is enclosed along with a copy of your letter to me dated December 29; 1998 certifying that no further MEPA review was required. The development plan that was proposed by my client at that time has since been voluntarily withdrawn from the local approval process and replaced with a proposal to develop 108 age restricted (age 55 and older) town homes. A copy of the age -restricted proposal has been enclosed for your review. As you can see, this proposal is very similar to one that was forwarded to you in December of 1998 and significantly less dense than the original proposal of 104 town homes plus a 25,000 square foot cominercial development that went through the entire MEPA review process. The only noteworthy change is the relocation of the entry road onto route 114, which is being proposed to address concerns the planning board had relating to conflicts with traffic movements in and out of Johnson Street. The design of that entrance will be reviewed and approved by Mass Highway when we apply for a curb cut permit. All other aspects of the project are essentially the same as has been approved previously. Therefore, we are requesting that EOEA issue a Notice of Project Change allowing us to continue with the pennitting process for Boston Hill without requiring any further MEPA action. We base this request on the fact that all of the impacts that were addressed by the EIR, for which Certificate 7628 was issued, will be the same or less that originally considered. If there are any questions please do not hesitate to call. M4chionda an ssoc., L.P. PauqAarchionda. PE President Cc: Ken Grandstraff, Mesiti Development Christian Huntress ENF Circulation 62 Montvale Avenue Tel: (781) 438-6121 Suite I Fax: (781) 438-9654 Stoneham, MA 02180 Email: mail@marchionda.com website: http://www.marchionda.com , W. , 1 , 1 Z a- Q LLJ Z z o a a CO � ® a T Q 0.0 � z L I i ' 4 , ' r • 1 t 1 O `J 0 L I I J Q U V) r 3 0) I 1 I I I t I I 1 I 1 I I I I I I I I I archi®naa & Associates, L.P. Engineering and Planning (onsuitcnts December 11, 1998 Secretary Trudy Coxe r Executive Off ce of Environmental Affairs 100 Cambridge Street Room 2000 Boston, MA 02202 RE: EOEA Number 7628, Boston Hill. North Andover Dear Secretary Coxe: Page 1 of 2 rMIts to develop 79 townhouse I represent Mesiti Development Corp. who is currently setf o the development of th units on Boston Hill in North Andover. In the late- 80's, permits Boston Hill property located on Route 114 in North Andover Ev-rFe ast�ed wed oith the Executive utive r the construction of 104 townhouse units. As part of that approval process. Office of Environmental Affairs (EOE A) and it was determined that an EIR was required. Subsequently a Draft and Final EIR were prepared 90d A copy o that Secretary JohnCertificate has been Certificate approving the project on January 1 i. 19 enclosed for your convenience. Enclosed is a copy of our proposed development plan. Asto can see. is bele currently proposed from development is very similar to the previous plan except that 104 units to 79. In the Certificate issued by Secretary DeVillars. there is a reference to he the requWestsiirement for 2-for-1 wel infiltration/inflow mitigation due to issues associated with sur charg interceptor. As you are aware, the Town of North Andover is currently under an Administrative Consent Order (ACC -NE -98-1004) to correct the surcharging issues associated with the Westside interceptor. I am enclosing a copy of the first quarterly report which esummarizess of the Towns by y the William Humurc : PE, compliance with the Consent Order that was recently p p Director of the North Andover Publn their way to ic Works. As you lan see, the iVlr Hum regardingu`1c�akthe complying with the Consent Order. I also had a con for a con infiltration/inflow requirement and he confirmed that there inform antlyiat the town assesslall of a 2-for-1 infiltrationlinflow mitigation. Mr. Humurciak, new development sewer tie in fees which are used to fund of s hedule 4 -for -1 infiltration/inflow mitigation program which has been progressing ahead Tel:: (781) 438-6121 6ZMontvaleAvenus. fox: (781) <38-965a Suite I website: htiD:; /aww.mafGhlandQ.Czm` Stanenam. MA 02180 Email: maii® marcnianda.cam ®end. & Associates, LP. Engineering and Planning Consultanu Page Of On behalf of Mesiti Development Corp., we are requesting that EDEA issue a Notice of Project Change allowing us to continue with the permitting process for Boston Hill without requiring any further action from EOEA. `tie base this request on the fact that due to the 24% reduction in density from 104 to 79 units, all of the impacts that were addressed by the EIR for which Certificate 7628 was issued, will be less that originally considered. If there are any questions please do not hesitate to call. Sin"C- ly, iMarch brida and Asso ., L.P. v V/4,11' Paul A. Marchionda, PE President Cc: Ken Grandstraff 7 M1 C}fAEL .S:. MU KA K 3 5 "GCVE:NOR F fCHWOeVILLARS SECRETARY S.W' r: ,1b� �•i .��,.��{y .� _ � �:. -ice = Or-- MASSACHUSETTS-, •.iE=GaiWNf0NWEALTH `hct 'r; CE: OF ENVIRONMENTAL A •ti_� � �• O f FF'AIRS.::�,=;;: EX,ECUTiV.E, OW KiQ J anuary 1 , 1990 /. ` CERTIFICATE OF TfE SECRETARY OF E:FTJ G,SENTAi� P�''eAycS ON THE ..� FINAL rNVIRC MENTAL IIGACT REPORT PROJECT NAME Boston =i l . PROJECT LOCATION North Andover EOEA NUMBER : 7628 PROJECT PROPONENT Robert natal DATE NOTICED 7N MONITOR OeCSMher 11, 1S81-1 The Secretary of Environmental Affairs herein issses a statement that the Final Environmental 1r -Fact Report the above project adecuat:aly and properlj caaplies wi',.1` th, Massachiisetts Environ=ent,al Policy Act and »ich its implementing reg-al.aticns ( 3 O_ C'n il. OO) . Overvi=_w Me Final En viroruaen•tal Impact Repert .s compieta and well. done- This report's responsiveness tc the issues raised in the Ce—.6 tificate on the Draft Z= is ex9MP1arv. The clarity provided ;.z the revised text. generally shows that the proposed mitigation t -ed impact's would he appropriate �cr projec�-rala� � o with the passible exception of the proposed mitigaticn iDr sewer irtfrastruct'are deficierc��as. This issue is discussed further, {n the Certificate. Sewage Impacts The proponent's commitment in the Drayt EIR to a 2 -for -i Infiltration/Inflow (11T) mitigation program to alleviate. additional impacts to the. West Side Trunk Sewer appeared tc be =sistent wi:tI, the impact•analysis: presented in the main. report. LOO CAMSRjaae STREET'• aCa1'CN- MA 02202. ism TZ7 yF-'q� 3''_ 1OQ°b RErYCLE7 PAPE? : �r. r I M u n.- . c r ac cr iu r tificate The report also stated titat the proponent would coordinate the mitigation program with the Town of North Andover. Accordingly, this iu sse did not raise any c-=entary at the Draft EiR rev':L sw stage .- F-Ecwetier, the sever ily of the existing sewer surcharging problems in the downstream sections cf the West Side Trunk Sewer leading to the Greater Lawrence Wastewater Trea trlert Plant was not conveyed as clearly in the Main Report, as in the LEA Group Study, which specifically concluded: "The West Side Tzn nk Sewer is severely under capac:i.ty for exist:;rg wet weather flows for the last 4343 feet of its length, and in its present condition does not appear to n- capable cf accommodating any additional flow."- urQn reconsideration. of this issue, it appears that additional sewer mitigaticn may • e needed, prior to approving the\ proposed sewer line extension. The Tcwn of North Andover should concur with the proposed sewer mitigaticn plan for this project, as detailed in tee. C.3O, S. 61 Finding associated with the eL.roval fr-= the DEP, Division of 'Rater Fcwlutl.cn Cont --c-", , I= issuance of the sewer connection pe=Mi t by the DEP. January 17 1990 DATE comments received: 1/10/90 ECTC JD / NB / nb 0 VV\ Jon Oevi_lars, Sacretar-y -.r� .v � .w U -•—. �+ ^C _— i sur January T7, 1.9190 The report also stated titat the proponent would coordinate the mitigation program with the Town of North Andover. Accordingly, this iu sse did not raise any c-=entary at the Draft EiR rev':L sw stage .- F-Ecwetier, the sever ily of the existing sewer surcharging problems in the downstream sections cf the West Side Trunk Sewer leading to the Greater Lawrence Wastewater Trea trlert Plant was not conveyed as clearly in the Main Report, as in the LEA Group Study, which specifically concluded: "The West Side Tzn nk Sewer is severely under capac:i.ty for exist:;rg wet weather flows for the last 4343 feet of its length, and in its present condition does not appear to n- capable cf accommodating any additional flow."- urQn reconsideration. of this issue, it appears that additional sewer mitigaticn may • e needed, prior to approving the\ proposed sewer line extension. The Tcwn of North Andover should concur with the proposed sewer mitigaticn plan for this project, as detailed in tee. C.3O, S. 61 Finding associated with the eL.roval fr-= the DEP, Division of 'Rater Fcwlutl.cn Cont --c-", , I= issuance of the sewer connection pe=Mi t by the DEP. January 17 1990 DATE comments received: 1/10/90 ECTC JD / NB / nb 0 VV\ Jon Oevi_lars, Sacretar-y -.r� .v � .w U -•—. �+ ^C _— i sur V. _ _ - 06, / �OD�� • ��; ���� ��� 02202 AAGEO PAUL CELLUCCI GOVERNOR TRUUrC)Y ,COXE December 29, 1998 lyu'TRil Marchionda. Marchionda & Associates, Inc. 62. Montvale Ave:, Suite I Stoneham, MA 02180 Re: EDEA 47628, Boston Hell, North Andover Dear Mr. Marchionda: Tel: (617) 727-9800 Fax: (617) 727-2754 http://www.magnet.state.ma.usienvir I am responding to your letter dated December 11, 1998 in which you describe certain changes in this project and ask for a determination whether further MEPAreview would be required. According to your letter and accompanying materials, the project consists of the construction of 79 townhouse units on Boston Hill in North Andover. The Final EIR for the project, which was certified as adequate on January 17, 1990, analyzed the impacts of 104 townhouse units arid 25,000 square feet of retail space. You state that there are no longer plans to build the -retail space: In 1990, the proponent committed to 2-for-1 infiltration/inflow (UI) mitigation to alleviate additional impacts on the West. Side Trunk Sewer. The Town ofNorth Andover currently assesses all new development sewer tie-in fees to fund I/I removal at a 4-for=1 ratio. The extent of traffic mitigation necessary for the revised project will be determined during Massachusetts Highway Department permitting. Based on the information that you have provided and the criteria in Section 11.10 (6) of the NT2A.regulations, it appears that the changes are unlikely to increase the environmental consequences of the project. The reduction in the size of the project should result in a lower level ofwaste water and traffic generation than originally anticipated. Therefore; no -further -T EPA review-&tegaii'ed: ` rrequest that revised. Section 61 Findings for all state permits be forwarded to this office to complete the file following project permitting. ORTIy Town of North Andover N OFFICE OF ,•?�`St�Ee6�OOL COMMUNITY DEVELOPMENT AND SERVICES 10p 27 Charles Street► a f North Andover, Massachusetts 01845�9ssncNush WILLIAM 1. SCOTT Director (978) 688-9531 i Fax (978) 688-9542 October 2, 2000 To: Robert Nicetta, Building Commissioner Alison Lescarbeau, Chairman, Planning Board Gayton Osgood, Chairman, Board of Health William Sullivan, Chairman, ZBA From: Brian LaGrasse, Acting Conservation Administrator Vi/ At our Conservation Commission meeting held on September 20, 2000 the following decisions were approved: 242-1028 Hawkins Lane The NACC approved construction of a single family house, driveway, grading and associated appurtenances within the Buffer Zone to a Bordering Vegetated Wetland (BVW). The Order of Conditions included: A row of double staked hay bales backed by trenched siltation fence to be placed between all construction areas and wetlands. A minimum of 15 extra hay bales and sufficient stakes for staking these bales. A check payable to the Town of North Andover in the amount of $3,000 as a Bond. There were no waivers on this Order of Conditions. The As-Builts will have the engineer's and land surveyor's signatures. 242-1011 '-Boston Ski Hill --,-1 This NOI was approved for the construction of a roadway, two condominium buildings, the demolition of existing structures and a 25' No Disturbance restoration within the Buffer Zone to a Bordering Vegetated Wetland (BVW). The Order of Conditions included: In order to prevent any alteration of wetland resource areas a 25' NDZ and a 50' NCZ shall be established from the edge of the adjacent wetland resource area except for the demolition of existing structures and the 25' NDZ restoration. The NACC found the applicant's proposal for 13,675 s.f. of wetland restoration to be adequate. A minimum of 200 extra hay bales covered on site and sufficient stakes for staking these bales (or an equivalent of silt fence). BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Decisions from Conservation Commission Meeting of 9/20/2000 (2) A check payable to the Town of North Andover in the amount of $61,025 as a Cash Bond and due to the combination of Paxton soils, steep grades and shallow ground water with the close proximity to a highly sensitive Riverfront area, a $125,000 Surety Bond shall be provided to the Town of North Andover. The applicant shall designate a professional Wetland Scientist as an "Erosion Control Monitor" to oversee any emergency placement of controls and regular inspection or replacement of sedimentation control devises. Credentials of said Erosion Control Monitor (prior to designation) shall be Submitted for review and subsequent approval by the NACC or an Agent thereof. This person shall be given the authority to stop construction for erosion control purposes. At least once per day during which construction activities occur on-site and for as long thereafter as ground remains unstabilized, the "Erosion Control Monitor" shall contact the NACC or agent thereof and verbally submit a daily update. At least once during each week in which construction activities occur on-site and for as long thereafter as ground remains unstabilized, the applicant shall submit a written report from the "Erosion Control Monitor" to the NACC at the end of each week certifying that, to the best of his/her knowledge and belief based on a careful site inspection, all work is being performed in compliance with the Order of Conditions and that approved setbacks are being adhered to. . All catch basins shall contain oil/gasoline traps and Cascade Covers. As soon as the drainage system is on line, bi-annual (April 1St and October 1 S) inspection reports must be submitted by a Registered Professional Engineer. There shall be no stockpiling of soil or other materials within 25' of any resource area. The toe of any stockpile of soil shall be no closer in distance to the NDZ than the total height of the stockpile itself measured from the toe to the crest.. No trash dumpsters will be allowed within 50' of areas subject to protection under the Act or local ByLaw. An annual Affidavit that the O&M Plan has been carried out, including proof such as invoices of catch basin cleaning and street sweeping shall be submitted to the NACC by no later than April 1st. This shall be a perpetual condition. The NACC also agreed that the Order of Conditions be incorporated into the Condo Documents. If you would like a copy of the Order of Conditions please contact the Conservation Department. CC: Scott Masse, Chairman, Conservation Commission Heidi Griffin, Town Planner Sandra Starr, Board of Health Administrator t FARfJ426 018454026 IN RETURN TO SENDER NO FORWARD ORDER ON FILE UNABLE_ TO FORWARD RETURN TO SENDER , fill] 11 'NYCE BRAOONAW TOWN C1 �:QK i;OR i H ANDOYER k�i 13 p4 qq Received by Town Clerk TOWN OF NORTE ANDOVER, MASSACEUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE• Applicant Boston Hill Development, LLC Address 11 Old Boston Road Tewksbury Tel. No. 978-851-9395 1. Acclicat_cr. is here;ry made: a) For )k va_ia CesfYcm the req-1-:irements of and 8.5(6) (C) �xxxxxxxxx XXXx.X,XX o f the Z c n i .c E y i aws b) For a specia_ P-.rnit under Secticn Paraara= . of the Zoning Bylaws. DAsa Party P.cerieved, for review of a decisicr. made by tAhe Suild_nc insioector or other authority. .Appeal of interpret tion of Section 8.7(6)(e). 2. a) Premises affected are land xxxxxxxx )&� XYZ [}�� 3 39 acres on Salem Turnpike X xxx b) Premises affected are property with frcrtace c the Nor -.h ( ) Scuth 1(x East ( ) West ( ) side of Salem Turnpike (Route 114) Street, and known as No. Ctreer. Village Residential C) Premises are i . Zoning District and the premises a:=ected have an area e= 33-35 X9M X)ft%X acres and frontage of !is feet 5 c_ 8 Rev. JAN 1 41999 ; /U J' v Y I 3. Ownershic: a c 6. 7 a) Name and address of owner (if joint ownershi., give all names) : Boston Hill Development, LLC Date of Purchase 1/2/98 Previous OwnerBoston Hill Ski Area, Inc. b) 1. If applicant is not owner, check his/her i_^_teresc in the premises: Prospective Purchaser Lessee Other 2. Letter of ;autlierizaticr. for V.riarce/Special Pe. -nit recuired . Applicant plans to apply for Site Plan Review to the Plannin& Board.for a 79 -unit Size cf proposed building: frcrt; _..t seep; multi -family I project. Heicht stories; feet. a) Approximate date of erection: I b) Occucancv or use of each floor: C) Type of construction: Has there been a previous appeal, under zoning, cr_ these premises? yes I If se, when? May and August, 1989. Descri=tion of reli statement. Deed recorded in th Lard C-- rt Certlfic The princical pci_^its up follows: (must be stat See attached Statement. f sought or. this cetiticn See attached Fc-acistry of Deeds in Book 4932 Pace 127 to No. Back Pace 7 which I base my acplicaticn are as in detail) I i I I agree to cay the fi l_ c fee, •adver-isi_^_c -4--. newsr-aper, and in de__nLal e:cmenses* S;of Petitioner(s) 6 of 8 Rev. 06.05.x_ i I i DESCRIPTION OF VARI.;YCr RrQUEST= ZONING DISTRICT: Village Residential i Required Setback or Area 1) Height 30 feet or 2.5 stories F=isting Setback Relief or Area Requested Up to 40 feet for units Up to 48 feet for multi -family structures 2)In the event appeal is notranted A licant also see space requirement in Section,from the 10 -acre oxen Street Frontage E.7(6)(e). I i Front Setback I Side Setback(s) Rear Setback Special Permit Request: 1 7 c 8 Fev CS.00.ca rj A • TOWN OF NORTH ANDOVER 4 f LIST OF PARTIES OF INTEREST; PAG pF SUBJECT PROPERTY MAP PAR # NAMEi ADDRESS ABUTTER/070 S: CERT. BY: DATE: i /J- I'Ll' - J- CO% / COMMONWEALTH OF MASSACHUSETTS N J RT H i-- LAND COURT .41112i�� ESSEX, ss. CASE NO. BENJAMIN G. FARNUM, Plaintiff vs. �17F5E_RvoD APR - ,^ a -�3 BOSTON HILL DEVELOPMENT, LLC., WILLIAM J. SULLIVAN, WALTER F. SOULE, RAYMOND VIVENZIO, ROBERT FORD, JOHN PALLONE, SCOTT KARPINSKI AND ELLEN MCINTYRE AS THEY COMPRISE THE ZONING BOARD OF APPEALS FOR THE TOWN OF NORTH ANDOVER AND THE TOWN OF NORTH ANDOVER, Defendants NOTICE OF APPEAL Please be advised that Benjamin G. Farnum hereby appeals the Decision of William J. Sullivan, Walter F. Soule, Raymond Vivenzio, Robert Ford, John Pallone, Scott Karpinski and Ellen McIntyre individually and as they constitute the North Andover Zoning Board of Appeals. Dated: 1- r. Benjamin G. Farnum By -his attorney, rancis A. i a B.B.O. No. Roche, Care s & D com, 600 Unicorn ar Drive Woburn, MA 01801-3343 (781)933-5505 P.C. 60P�1 COMMONWEALTH OF MASSACHUSETTS LAND COURT ESSEX, ss. BENJAMIN G. FARNUM, Plaintiff VS. BOSTON HILL DEVELOPMENT, LLC., WILLIAM J. SULLIVAN, WALTER F. SOULE, RAYMOND VIVENZIO,ROBERT FORD, JOHN PALLONE, SCOTT KARPINSKI AND ELLEN MCINTYRE AS THEY COMPRISE THE ZONING BOARD OF APPEALS FOR THE TOWN OF NORTH ANDOVER AND THE TOWN OF NORTH ANDOVER, Defendants INTRODUCTION CASE NO. �a N G-1 This is an appeal of Plaintiff Benjamin G. Famum, being an aggrieved party, from a decision of the North Andover Zoning Board of Appeals inappropriately granting a variance to Defendant Boston Hill Development, LLC. allowing Boston Hill Development to deviate from relevant sections of the North Andover Zoning By -Laws. The action is brought pursuant to the provisions of M.G.L. c. 40A § 17. PARTIES. 1. Plaintiff Benjamin G. Famum (hereinafter referred to as "Famum") is a natural f: adult person having a principal place of residence at 397 Famum Street, North Andover, Essex County, Massachusetts. 2. Defendant Boston Hill Development, LLC (hereinafter referred to as Boston Hill) is a duly formed Massachusetts corporation having a principal place of business at 11 Old Boston Road, North Andover, Essex County, Massachusetts. r S' I . Defendant William J. Sullivan is an adult natural person having a principal place of residence at 405 Salem Street, North Andover, Essex County, Massachusetts. Defendant Sullivan is a duly appointed member of the North Andover Zoning Board of Appeals. 4. Defendant Walter F. Soule is an adult natural person having a principal place of residence at 70 Rawley Tavern Lane, North Andover, Essex County, Massachusetts. Defendant Soule is a duly appointed member of the North Andover Zoning Board of Appeals. 5. Defendant Raymond Vivenzio is an adult natural person having a principal place of residence at 11 Appledoor Lane, North Andover, Essex County, Massachusetts. Defendant Vivenzio is a duly appointed member of the North Andover Zoning Board of Appeals. 6. Defendant Robert Ford is an adult natural person having a principal place of residence at 89 Bearhill Road, North Andover, Essex County, Massachusetts. Defendant Ford is a duly appointed member of the North Andover Zoning Board of Appeals. 7. Defendant Scott Karpinski is an adult natural person having a principal place of residence at 691 Forest Street, North Andover, Essex County, Massachusetts. Defendant Karpinski is a duly appointed member of the North Andover Zoning Board of Appeals. 8. Defendant Ellen McIntyre is an adult natural person having a principal place of residence at 23 Tanglewood Lane, North Andover, Essex County, Massachusetts. Defendant McIntyre is a duly appointed member of the North Andover Zoning Board of Appeals. 2 9. Defendant William Sullivan, Walter Soule, Raymond Vivenzio, Robert Ford, Scott Karpinski, and Ellen McIntyre all being duly appointed, constitute the Zoning Board of Appeals for the Town of North Andover, MA. 10. Defendant Town of North Andover is a duly formed municipal corporation pursuant to the General Laws of the Commonwealth of Massachusetts. FACTS 11. Plaintiff Farnum is the owner of real estate locally known as Boston Hill Salem Turnpike, North Andover, Massachusetts. The Farnum property is shown on the North Andover Assessors Map 107A as Lots 7, 11, 34, 42, 68, 252, 253, 254 and 255. 12. On or about January 13, 1999, Boston Hill Development, LLC caused to be filed with the North Andover Zoning Board of Appeals, an Application for Relief (hereinafter referred to as Application) from the Zoning Ordinance requesting relief in the form of a variance from the requirements of Section 8.7(6)(e) and 8.5(6)(c) of the Zoning By -Laws and for a review of a decision made by the Building Inspector concerning an interpretation of Section 8.7(6)(e) of the Zoning By -Laws. A copy of relevant portions of the said Application is appended hereto and marked Exhibit A. 13. The Application concerns land shown on the North Andover Assessors Map 107A as Parcel 149. 14. The PlzYntiff, Farnum, owns land abutting the land shown on the aforementioned North Andover Assessors Map 107A as Parcel 149. 15. Plaintiff Farnum, being the owner of land abutting land subject to the Application and abutting land within 300 feet of the property line subject to the Application, did not receive notice by mail, postage prepaid. 3 16. On or about February 9, 1999'and March 9, 1999 the Defendants comprising North Andover Zoning Board of Appeals, at a regular meeting, held a hearing concerning the Application of Defendant Boston Hill Development, LLC. 17. On or about March 9, 1999, Defendant North Andover Zoning Board of Appeals voted to grant a variance concerning the municipality's Open Space By -Law. 18. On or about March 10, 1999, a Notice of Decision relating to the variance was drafted. 19. On or about March 16, 1998, the Notice of Decision (hereinafter referred to as Decision) concerning the variance was filed with the North Andover Town Clerk. A copy of the Notice of Decision so recorded is appended hereto and marked as Exhibit B. 20. The Decision fails to identify the land affected. 21. The Decision fails to comply with the statutory requirements for the issuance of such variance. 22. The Decision fails to certify that copies of the Decision and all plans referred to in the decision have been filed with the Planning Board and Town Clerk. 23. Plaintiff Farnum is aggrieved by the Decision of the Zoning Board of Appeals. 24. The variance granted related to the provisions of Section 8.7 (Growth Management) (6) (Exemption) (e) of the North Andover Zoning By -Laws that specifically reads: r a. "6. EXEMPTIONS The following developments are specifically exempt from the Growth Rate Limit and Development Scheduling provisions of this by-law. The issuance of building permits for these Developments shall count toward the Growth Rate Limit of 80 permits in a Year. Except that permits issued 4 J under subsection (a) below shall not count towards the Growth Rate Limit of 80 permits in a Year. e) Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and feasible given the environmental conditions of the tract, with the surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection." 25. The intent and purpose as set forth in Section 8.7.1 of the North Andover Zoning By -Laws is: "8.7 GROWTH MANAGEMENT 1. INTENT AND PURPOSE This Section 8.7 adopted pursuant to the provisions of M.G.L., c. 40A and the Home Rule Amendment, Article 89 of the Massachusetts Constitution for the following purposes: a) To ensure that srowrth occurs in an orderly and planned manner, at a rate that can be supported by Town services, while avoiding large year to year variations in the development rate; b) To allow the Town time to update its Master Plan and to provide the Town with time to study the effect of growth on the municipality's infrastructure, character and municipal services; C) To allow the town time to study, plan for, and 41 provide an additional source of water; :d) To relate the timing of residential development to the Town's ability to provide adequate public safety, schools, roads, municipal infrastructure, and human services at the level of quality which citizens expect, and within the Town's ability to pay under the financial limitations of Proposition 2 ''/z; e) To preserve and enhance the exiting [sic] community character and value of property; and 5 f) To allow departures from the strict application of the growth rate measures herein in order to encourage certain types of residential growth which address the housing needs of specific population groups or which provide significant reductions in the ultimate residential density of the Town. 26. The Decision of the Zoning Board of Appeals is inconsistent with the provisions of the North Andover Zoning By -Laws. 27. The Defendant North Andover Zoning Board of Appeals made no specific findings that owing to circumstances relating to the soil conditions, shape, or topography of the land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which the land is located, a literal enforcement of the provisions of the by-law would involve substantial hardship to Boston Hill Development, LLC and that the desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such Zoning By -Law. :.. . 28. The Decision of the Zoning Board of Appeals exceeds the authority of the 29. The Decision of the Zoning Board of Appeals does not comply with the statutory mandate authorizing the relief requested. Wherefore, Plaintiff Farnum prays this Honorable Court to: r a. 1) Annul the Decision of the Zoning Board of Appeals granting the variance; 2) Determine the Zoning Board of Appeals exceeded its authority in granting the variance; and 3) Grant any other such further relief as is just and equitable. L Dated: `! — tel' Verified by: ,Benjami . Famum enj6nin G. Fa y his attorney, ./ Francis A.i a B.B.O. No Roche, Caren DeG 600 Unicom Park Drive Woburn, MA 01801-3343 (781)933-5505 7 c P.C. a, EXHIBIT "All or C �- r� Edi '� �...,%• •� is �i i h � �� ;, �'j^� " 13 Receive= I:v Tclw C? == r = TCF'tiV OF NCF' - s�YiC4 ., id_sS.caC=u c: ' _QA7_Z C: - ?_1.1" L�=C_'zT=C11 = C R FST.- F .Cz* ZCN=`IC C_zzM := , TC_: Boston Hill Development, LLC 11 Old Bos ton Road, Tewksbury Te? . ria . 978-851-9395 he==^Y made FCr I va__=-_es:'^- C e r______mencs C=- 8.7(6)fe) and 8.5(6)(C. 1'r=' i;�Y�C�C:C`_C`.C'C:{:Z;C_Y'C��:{T�C:T.:{��`t•{CL C: = ZC.. _ c�/_=w5 C�= : _C t_ =C== cc=r._- = C=-= _ Qr C4_ ZCi � .0 Cs T. -J5. cJ As C==-'/ c --`_=_-==`tom:, =eV_='.J CL c G== -S -C — M= de C?t che Appeal of interpretation of. Section 8.7(6)(e). Ward lrrewrsr+� Z 15 acres Ari SaT om T„rnnike ���Y mom; Ca a_ G SIC=_`' ( ) Sc'== C{) weS= ( ) s_d = c. Salem Tu-nnike (Route 114) i�`"A+•�fYY C) IRev. J=_ --==_a C= 1, 100 .1 Y . Village Residential acres _ = J=_ --==_a C= 1, 100 .1 Y i 3 . Owr_er s:_:c : a) Name a=d adc.`ess cz cwnar (if c_.t ewr_e= s --, c_ve. a_1 r_ames) . Boston Hill Development, LLC 1/2/98 =Boston H Date e= Pu=case F=ev_cus Owr�e_ ill Ski Area, Inc. b) 1. if aZ:DI Ca: L is mcc ewrie_, CCeck his/re" _-Ceres in t�'e pre=ses : Pres: ect_ve Pure :ase= Lessee Other 2. Lett:e ez-auchcricaticr_ =cr tia=ra: ce Applicant plans to apply for Site Plan Review to the PlanninF- Board. for a 79 -unit 4. S_ze multi -family project. Fe'C^C a) Accrcximace date ez ereCtiCr_: b) Cccupa__ci cr use ez each z?ccr: C) Type cz c:orst_UcZicr_: i c .3 hero ee _o. •� F: s C � a p r_.,L's ac=e=? l:'_der ZCL:=CC, C : CF'esZ 'Czent_ses? yes ! If sc, when? May and Auzust, 1989. -f See attached _ . Cesc__ c= rel _ s cLc_dc cr. this cec_tic statement. � 7. Cz== -==_ === =-- t--= - ==-`C= c= Cc==- =-- HCC:< 4y32 - =S= 127 0=- 0====- =e Vc . =ccs _act CC' *' _s L• =C7- Which I base MV a*'�• 1 ; C S:' C = a= e as See attached SrAramanr ac=== cc CGv :e _21; 41. Ap GCre___-_ C-7 • I QF VTZ_R .,NTC . iL.aVr.0 l�J ZCN=?iG 1) ---S=, Village Residential RecLired SetL-ac!t ---isting Set!^acR. Retie: e= •- ea ; cr Ax -ea Rec_ues ted } Height 30 feet or 2.5 stories Up to 40 Up to 48 feet for units feet for multi -family - j structures .n the event appeal is not Qranted, Aoolicant also seeks ayar{anrofrom the 10 -acre open :pace requirement in Section.,8.7(6)(e). M=eet F --cytase I rc=t Seth^acy i. .ice Set�ac!c(s) . TOWN Or NORTH ANDOVER S /U ::ERT. BY ]ATE: i Any appeal shall be file NOTICE OF DECISION within (20) days after the date of filing of this notice Proper� at: Boston Hill, Salem Turnpike in the office of the Town Clerk. NAME: Boston Hill Development, LLC DATE: 3110199 ADDRESS: 11 Old Boston Rd., Tewksbury, MA for premises at: Boston Hill, Salem Turnpike EXHIBIT North Andover, MA 01845 HEARING:219199 & 319199 NORTH ATzue Cc- Y NORTH ANDOVER �I 16 22 (� AK OFFICE OF 37MC" THE ZONL G BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER_ MASSACHUSETTS 01345 FA.`C (973) 633-9542 Any appeal shall be file NOTICE OF DECISION within (20) days after the date of filing of this notice Proper� at: Boston Hill, Salem Turnpike in the office of the Town Clerk. NAME: Boston Hill Development, LLC DATE: 3110199 ADDRESS: 11 Old Boston Rd., Tewksbury, MA for premises at: Boston Hill, Salem Turnpike PETITION:054-98 North Andover, MA 01845 HEARING:219199 & 319199 The Board of Appeals held a regular meeting on Tuesday evening, March 9, 1999 upon the application of Boston Hill Development, LLC, 11 Old Boston Rd., Tewksbury, MA., for premises at: Boston Hill on Salem Turnpike, North Andover, requesting a variance from the requirements of Section 8, paragraph 8.7(6e) open space requirements and 8.5 (6c) height limitation and as a Party Aggrieved of Section 8.7 (6e) of the Growth Management Bylaw, within the V -R Zoning District. The following members were present: Walter F. Soule, Raymond Vivenzio, John Pallone, Ellen McIntyre, Scott Karpinski. The hearing was advertised in the Lawrence Tribune on 1121199 & 1/26i99 and all abutters were notified by regular mail. Upon a motion made by Walter F. Soule and 2nd by John Pallone, the Board voted to allow the petitioner to Withdraw Without Prejudice the request of 8.5 (6c) height limitation; and the Board voted to uphold the Building Inspector`s decision of Section 8.7 (6e) and to Board voted to deny the Party Aggrieved petition of the Growth Management Bylaw and the Board voted to GRANT a Variance on the fallowing Open Space AppealNadance with the following conditions: 1. This variance is conditioned upon agreement that only 79 units be allowed. This variance applies to the 33.35 acre parcel of land shown on the plan entitled 'Open Space AppealNariance Plan' for Boston Hill in North Andover, MA prepared for Mesiti Development Corp., by Marchionda & Associates, L.P., 62 Montvale Avenue, Suite I, Stoneham, MA and dated February 24, 1999 (the `Open Space Plan') which is recorded along with this variance. Page 1 of 2 BO:VZD OF .\1'P[:.\LS ci8:{—')541 BUILDINGS 68X-)5:5 CONSERVATIONOX-9530 11E.\L,ri1 633 95.10 I'L.\NN1\Cr GBS=)535 /3 Decision continued of: Boston Hill, Salem Turnpike, North Andover, MA 2. This variance is conditioned upon the approval by the Town of North Andover Planning Board of a Site Plan for a multi -family housing project on the 33.35 acre parcel of land known as Boston Hill in North Andover which property is shown on the Open Space Plan. 3. This variance is conditioned upon half of the land or 16.68 acres being retained as open space in perpetuity for conservation, agricultural or recreational uses by deed restriction, dedication to the Town or other similar mechanism. As this variance is conditioned upon the approval of a Site Plan by the Planning Board of a multi -family project which process may result in changes to the precise layout of the project, the 16.68 acres of open space may be located anywhere within the parcel shown on the Open Space Plan and need not be the same 16.68 acres shown on said plan. 4. This variance is conditioned upon the agreement that the proper Open Space will allow a tie into the Rte. #114 and Ward Hill Reservation area to allow for a Conservation Trail to be located on the site. As per the above conditions the Zoning Board of Appeal's vote was unanimous: Walter F. Soule, Raymond Vivenao, John Pallone, Scott Karpinski, ©len McIntyre. The petitioner has satisfied the provision of Section 10, paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. Boar of Appeals, Raymond Vivenao acting Chairman mill999decisionl3 . Page 2 of 2 U4, 05/99 RUN 1:3:52 MA 508 872 1482 130NI)1TUAMWEY rxA+1. "�11141U,46ee, 4002 71 E COMIMONWEALTII OF MASSACHUSLI-I S J ;' TMY"i nLi_ ESSEX, S.S. LAN 1) COW"' MISC. T.�pI{�T NO. ry5-(G IO BOSTON HILL DEVELOPMENT, LLC, Plaintiff, V. NORTH ANDOVER ZONING BOARD OF APPEALS, Defendant. NOTICE OF APPEAL To: Town Clerk "Town of North Andover Pursuant to G.L. c. 40A, § 17, please take notice that on April 2, 1999, the plaintiff, Boston Hill Development, ILC, appealed the decision of the Zoning Board of Appeals of the Town of North Andover (filed with the Office of the North Andover Town Clerk on March 16, 1999), upholding the ruling of the BUulding Commissioner regarding the interpretation of Section 8.7(6)(e) of the Town of North Andover Zoning Bylaw. The appeal was filed in the Land Court, Boston, Massachusetts. A copy oi'the Complaint is attached_ BOSTON HILL DEVELOPMENT, LLC By its attorney. Brian C. Levi( BB09 542129 Bowditch & Dewey 161 Worcester Road Framingham, Massachusetts 01701 (508) 879-5700 Dated: Hlalqg (JAuhents\1iAh3IR71111011APPL AL.000.1 ) 1 04105/99 MON 13:53 FAX 508 872 1492 BOWDITCH&DE49EY FRAM. X003 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. ) BOSTON HILL ) DEVELOPMENT, LLC, } Plaintiff, ) } V. ) NORTH ANDOVER ZONING ) BOARD OF APPEALS, ) Defendant. ) ... _. ................ ) COMPLAINT LAND COURT MISC. DOCKET NO. � 5t5� IG Introduction 1. This is an appeal wider General Iaws chapter 40A, § 17, liom a decision by the defendant board of appeals to uphold the ruling of the building commissioner regarding the interpretation of an open space provision of the local zoning bylaw. The Parties 2. The plaintiff, Roston Hill Development, LLC is a Massachusetts limited liability corporation with a usual place of business at 11 Old Boston Road, Tewksbury, Middlesex County, Massachusetts ("Roston Hill"). 3. The defendant, the North Andover "Zoning Board of Appeals, is the duly authorized board of appeals for the 'Town of North Andover pursuant to General Laws chapter 40A, § 14, and the `Lown of North Andover Zoning Bylaw (tile "Bylaw" and the "Board"). The Board has a usual place of business at 27 Charles Street, North Andover, Essex County, Massachusetts. (I kdicn1sk1ir\h3I RTO I O11COMPI.AINDM; I I 04105/99 HON 13:53 FAX 508 872 1492 BOWDITCH&DEWEY FRaH, The Underlying Zoning 4. Boston Hill owns a 33.35 -acre parcel of land with approximately 1,100 feet of frontage on the southerly side of the Salem Turnpike (Route 114) across from Johnson Street in North Andover, Massachusetts (the "Locus"). Locus. 5. Boston IEll seeks to develop a 79 -unit, multi -family housing project at the 6. The Locus is zoned Village Residential which permits multi -family residential structures not exceeding five (5) dwelling units per structure. 7. By virtue of the grandfathered status of the Focus, Boston Hill's proposed project has a density of four (4) units per acre. 8. Under the Bylaw, multi -family structures in a Village Residential zone must obtain site plan approval and must satisfy die open space requirements of section 8.5(6)(F)(2) which states as follows: For site planned ... [projects], the minimum usable open space requirement shall be 50% of the total parcel area; and no more than 25% of the total required usable open space shall be wetland. 9. Accordingly, under Boston Hill's proposed project, 50% or 16.67 acres of the Locus is set aside as usable open space. Growth Management Bylaw 10. Section 8.7 of the Bylaw, Growth Management, provides for growth rate limitations and development schedules for multi -family projects. Section 8.7(6) provides exemptions from these development limitations. -7.- Z 004 3 11. Specifically, section 8.7(6)(c) provides, in pertinent part, as follows: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and feasible given the environmental conditions of the tract, with the surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. 12. Accordingly, to qualify for this exemption, under Boston Hill's proposed project, it agreed to a 40% reduction in the density of the project from 132 units (4 units X 33.35 acres) to 79 units. Dispute Over Interpretation of Open Space Requirement in Section 8.7(6)(e) 13. Boston Hill maintains that it complies with that portion of section 8.7(6)(e) which requires that 10 buildable acres be set aside as open space. Specifically, Boston Hill has set aside 16.67 acres as open space under section 8.5(6)(F)(2). 14. Boston Hili requested the Building Commissioner's interpretation of this issue. By letter dated January 8, 1999, he opined that Boston Hill must provide not only the 16.67 acres of open space pursuant to the underlying zoning, but also must set aside an additional 10 acres of open space (a total of 26.67 acres of open space) under the Growth Management Bylaw. 15. On or about January 13, 1999, Boston I -ill appealed the Building Commissioner's decision to the Board. 16. The public hearing on the appeal commenced on February 9, 1999 and was continued to March 9, 1999. 17. On March 9, 1999, the Board voted 5 to 0 to uphold the Building Cotnnlissioner's position. :�clicnCtUilXb31R7\OIOIICOMPT.A1N noC. U4/•95/99 MON 13:54 FAX 508 872 1492 BOIVDITCH&DEWEY FF -M. 2006 18. On March 16, 1999, the Board filed its decision in the office of the Town Clerk (the "Decision"). A true copy of the Decision is attached as Exhibit A. Awl 19, Boston Hill is a person aggrieved by the Decision of the Board. 20. The Decision is in excess of the Board's authority and is arbitrary and capricious for several reasons which include, but are not limited to, the following: a. The Decision contains insufficient findings in support of its conclusion. b. When interpreted in accordance with its plain cleaning, the Bylaw requires a minimum of 10 acrd of open space, not an additional 10 acres of open space. C. Even if the Bylaw were ambiguous, rules of construction confirm that the Bylaw requires a minimum of 10 acres of open space, not an additional 10 acres of open space. WHEREFORE, Boston Hill requests that the Court: I _ Annul that portion of the Decision upholding the Building Commissioner's ruling; 2. Enter judgment in favor of Boston Ilill; -4- Q 04/05/99 HON 13:54 FAX 508 872 1492 BOWDITCH&DEWEY FRAN. Z007 3. Grant such other and further relief as the Court deems appropriate. BOSTON DILL DEVELOPMENT, LLC By its attorneys, Brian C. LevK, Es . BBO# 542129 Bowditch & Dewey, LLP 161 Worcester Road Framingham, MA 01778 (508)879-5700 -5- 6 Yv..Y•�Vy.l,yyt.y♦ ♦.,syr. „QR lHER NORTH ANDOVER KaR I6 OFRCE OF THE ZONING BOAn OF APPEALS 27 C1IARI.f S STRJ:= ?T NORTH ANDOVER, MASSACHUSETTS 0 L14i Any appeal shall be file YAW (20) days after the date of fling of this natico In the aiffice of the Town Clerk NOTICE OF DECISION -711 .l. 7- r FIT M=TP FAX (978) 633-9342 NAME: Basion NO Oev* pawn, LLC OATS 3110199 ADDRESS: 11 Old Boston Rd. Tewksbury. MA for prermses at Boston NO. Salem Twpke PEnTION:054-98 Narih Andaw, MA 01845 HEARING..SW & 319!99 NORTH ANDOVER KaR I6 OFRCE OF THE ZONING BOAn OF APPEALS 27 C1IARI.f S STRJ:= ?T NORTH ANDOVER, MASSACHUSETTS 0 L14i Any appeal shall be file YAW (20) days after the date of fling of this natico In the aiffice of the Town Clerk NOTICE OF DECISION -711 .l. 7- r FIT M=TP FAX (978) 633-9342 NAME: Basion NO Oev* pawn, LLC OATS 3110199 ADDRESS: 11 Old Boston Rd. Tewksbury. MA for prermses at Boston NO. Salem Twpke PEnTION:054-98 Narih Andaw, MA 01845 HEARING..SW & 319!99 The Board of Appeals held a regular meeting on Tuesday evening, March 9, 1999 uaon the application of Boston Hal Development, LLC, 11 Old Boston Rd., Tewksbury, MA., fcx premises at: Boston HU on Salem Turnpike, North Andover, requesting a variance from the requirements of Section 8, paragraph 8.7(6e) open space requirements and 8.5 (6c) height limitation and as a Party Aggrieved of Section 8.7 (6e) of the Growth Management Bylaw, within the V -R Zoning Distr L The following members were present Walter F. Soule, Raymond Yvenao, John Pailone, Ellen Mctrltyre, Scott Karpinsid. The hearing was advertised in the Lawrence Tribune on 1121199 b 1126199 and all abutters were notified by regular mad. Upon a motion made by Walter F. Sone and 2nd by John Pallone, the Board voted to allow the petitioner to Withdraw Without Prejucrm the request of 8.5 (6c) height limitation; and the Board voted to uphold the Building inspecWs decision of Section 8.7 (6e) and to Board voted to deny the Party Aggrieved petition of the Growth Management Bylaw and the Board voted to GRANT a Variance on the following Open Space AppegMance with the following conOM, . 1. This variance is condoned upon agreement that only 79 units be allowed. This variance applies to the 33.35 acre parcel of land shown on the plan entitled 'Open Space Appeal/Variance Plan' for Boston Hill in North Andover, MA prepared for Mesio Development Corp., by Marchionda & Associates, L.P., 62 Montvale Avenue, Suite I, Stoneham, MA and dated February 24,1999 (the -Open Space Plan") which is recorded along with this variance. Page 1 of 2 ;t1.'J:!),ri ..1'! �1.:. .... 9•li .a ilat`.tE.,.... 1+17 t.l�'•.•:I•!t' 1'I ...�.;::::..I. *j V V g 7 . 1 �... �. .. •.� ..r -.� � � _ YV.IY��V{�MVYIIYi.,i {�i{A• ., .ii VV� Decision continued of: Boston Hill, Salm Turnpike, North Andover, MA 2. This variance is conditioned upon the approval by the Town of North Andover Planning Board of a Site Plan for a multi -family housing project on the 33.35 acre parcel of land known as Boston bill in North Andover which property is shown on the Open Space Plan. 3. This variance is conditioned upon half of the land or 16.68 acres being retained as open space in perpetdity for conservation, agrtcultrual or recreational uses by deed restriction, dedication W the Town or other similar mechanism. As this variance is conditioned upon the approval of a Site Plan by the Planning Board of a nvA4amdy project which process may result in changes to the precise layout of the project the 16.68 ayes of open space may be located anywhere witfun the parcel shown on the Open Space Plan and need not be the same 16.68 acres shown on said plan- 4. This variance is conditioned upon the agreement that the proper Open Space will allow ate into the Rte. #114 and Ward Hill Reservation area to allow for a Conservation Trail to be located on the site. As per the above conditions the Zoning Board of Appeal's vote was unanimous: Walter F. Soule, Raymond Yvecuio, John Pa llone, $cod Karpinski, Ellen McIntyre. The petitioner has satiskd the provision of Section 10, paragraph 10.4 of the Zoning Bylaw and thatthe granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. Boar of Appeals, Raymond Yrvenao J acting Chairman mI11999decisionl3 Va ge 2 of 7 04,'05/99 MUN 13:55 FAX 508 872 1492 BOWDITCH&DEWEY FRATH. mal jo ,�%9y/76eC(aojo E1ECl - TOW!'t>>k; Pt4RT.1 �111d,0,, COMMONWFALTHOI� MASSACIIYJSFiTS �FR 2 5= !`l ',Ijl� ESSEX, SS. BOSTON HILL DEVELOPMENT, LLC, LAND COURT MISC. DOCKET NO. Q 5S � 1( Plaintiff, ) COMPLAINT V. ) NORTH ANDOVER ZONING } BOARD Or APPEALS, ) Defendant. ) Introduction 1. This is an appeal under General Laws chapter 4011, § 17, from a decision by the defendant board of appeals to uphold the ruling, of the building commissioner regarding the interpretation of an open space provision of the local zoning bylaw. The Panics 2. The plaintiff, Boston Hill Development, LLC is a Massachusetts limited liability corporation with a usual place of business at 11 Old Boston Road, Tewksbury, Middlesex County, Massachusetts ("Boston Hill") 3. The defendant, the North Andover Zoning Board of Appeals, is the duly authorized board of appeals for the Town of North Andover pursuant to General Laws chapter 40A, § 14, and the Town of North Andover Zoning Bylaw (tbe "Bylaw" and the "Board"). The Board has a usual place of business at 27 Charles Street, North Andover, Essex County, Massachusetb;- J)A(:hcnt51,1idh3 18 -AO I0I\COMPIAIN.IW:1) 04/-95/99 MON 13:56 FAX 508 872 1492 BOWDITCH&DEWEY FRAN. Zoll The Undcrlying Zoning 4. Boston Hill owns a 33.35 -acre parcel of land with approximately 1,100 feet of frontage on the southerly side of the Salern Turnpike (Route 114) across from Johnson Street in North Andover, Massachusetts (the "Locus"). Locus. 5. Boston Hill seeks to develop a 79 -unit, multi -family housing project at the 6. The Locus is zoned Village Residential which permits multi -family residential structures not exceeding five (5) dwelling units per structure. 7. By virtue of the grandfathered status of the Locus, Boston Hill's proposed project has a density of four (4) units per acre. 8. Under the Bylaw, multi -family structures in a Village Residential zone must obtain site plan approval and must satisfy the open space requirements of section 8.5(6)(F)(2) which states as follows: For site planned ... (projects], the minimum usable open space requirement sball be 50% of the total parcel area; and no more than 25% of the total required usable open space shall be wetland. 9. Accordingly, under Boston Hill's proposed project, 50% or 16.67 acres of the Locus is set aside as usable open space. Growth Management Bylaw 10. Section 8.7 of the Bylaw, Growth Management, provides for growth rate limitations and development schedules for multi -family projects. Section 8.7(6) provides exemptions liom these development limitations. -2- 10 04./,05/99 MON 13:56 FAX 508 872 1492 BOWDITCH&DEWEY FRAM. 0012 11. Specifically, section 8.7(6)(e) provides, in pertinent part, as follows: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable kits), below the density, (buildable lots), permitted under r.oning and feasible given the environmental conditions of the tract, with the surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. 12. Accordingly, to qualify for this exemption, under Boston Hill's proposed project, it agreed to a 40% reduction in the density of the project from 132 units (4 units X 3 3.3 5 acres) to 79 units. Dispute Over Interpretation of Open Space Requirement in Section 8.7(6)(e) 13. Boston Hill maintains that it complies with that portion of section 8.7(6)(e) which requires that 10 buildable acres be set aside as open space_ Specifically, Boston Hill has sct aside 16.67 acres as open space wider section 8.5(6)(F)(2). 14. Boston Hill requested the Building Commissioner's interpretation of this issue. By letter dated January 8, 1999, he opined that Boston Hill must provide not only the 16.67 acres of open space pursuant to the underlying zoning, but also must set aside an additional 10 acres of open space (a total of 26.67 acres of open space) under the Growth Management Bylaw. 15. On or about January 13, 1999, Boston Hill appealed the Building Commissioner's decision to the Board. 16. The public hearing on the appeal commenced on February 9, 1999 and was continued to March 9, 1999. IT On March 9, 1999, the Board voted 5 to 0 to uphold the Building Commissioner's position. kl iatts0 im i 1 K -N)101 WOMPr.AIN. DOC; -3- it 04/05/99 HON 13:58 FAX 508 872 1492 BOWDITCH&DEWEY FRAN. f�jp13 18. On March 16, 1999, the Board filed its decision in the office of the Town Clerk (the "Decision"). A true copy of the Decision is attached as )exhibit A. Apgeal 19. Boston Hill is a person aggrieved by the Decision of the Board. 20. The Decision is in excess of the Board's authority and is arbitrary and capricious for several reasons which include, but are not limited to, the following: a. The Decision contains insufficient fuldings in support of its conclusion. b. When interpreted in accordance with its plain meaning, the Bylaw requires a minimum of 10 acres of open space, not an additional 10 acres of open space. C. Even if the Bylaw were ambiguous, rules of constntction confirm that the Bylaw requires a minini.um of 10 acres of open space, not an additional 10 acres of open space. WHE E);ORT:, Roston Hill requests that the Court: i. Annul that portion of the Decision upholding the Building Commissioner's ruling; 2. Enter judgment in favor of Boston Ili]1; -4- 04/05/99 MON 13:57 FAX 508 872 1492 BOWDITCH&DEWEY FRAM. Z014 3. Grant such other and further relief as the Court deems appropriate:. BOSTON HILL DEVELOPMENT, LLC By its attorneys, Brian C. Lev , Es . BBOA 542129 Bowditch & Dewey, LLP 161 Worcester Road Framingham, MA 01778 (508) 879-5700 -5- 13 04/.'05/99 MON 18:54 FAX 508 872 1492 BOWDITCH&DEWEY F1411. li!l0ws ,soft to,pt DATE. 3110199 ^t PE MON:054-98 o� PIE^ •` TO1+� ;- *• •-•�•r`o t� NORTN tats;��E NORTH ANDOVER �„p, �� � 22 OFFICE OF THE ZONING BOARD OF APPEALS 27 C:ILA.RLES 51721:ET NORTH ANDOVER, MASSACHUSETTS 0 1.14 5 FA.K (978) 63&9342 Any appeal shall be file NOTICE OF DECISION within (20) days after the date of filing of this notice Property at Boston Hill. Salem Tum pike in the office of the Town Cterk. NAME: Boston Hill Development, LLC DATE. 3110199 ADDRESS: I I Old Boston Rd., Tewksbury. MA for prumises at: Boston Hill, Salem Turnpike PE MON:054-98 North Andover. MA 01M HEARING -MM & 319199 The Board of Appeals held a regular meeting on Tuesday evening, March 9, 1999 upon the application of Boston Hill Development, LLC, 11 Old Boston Rd., Tewksbury, MA., for premises at Boston Hill on Salem Turnpike, North Andover, requesting a variance from the requirements of Section 8, paragraph 8.7(6e) open space requirements and 8.5 (6c) height limitation and as a Party Aggrieved of Section 8.7 (6e) of the Growth Management Bylaw, within the V -R Zoning District The following members were present: Walter F. Soule, Raymond Vivenao, Jahn Pailone, Ellen McIntyre, Scott Karpinski. The hearing was advertised in the Lawrence Tribune on 1121199 & 1/26199 and all abutters were notified by regular mail. Upon a motion made by Walter F. Soule and 2nd by John Paltone, the Board voted to allow the petitioner to Withdraw Without Prejudice the request of 8.5 (6c) height limitation; and the Board voted to uphold the Building Inspector's decision of Section 8.7 (6e) and to Board voted to deny the Party Aggrieved petition of the Growth Management Bylaw and the Board voted to GRANT a Variance on the following Open Space AppeaiNariance with the following conditions: 1. This variance is conditioned upon agreement that only 79 units be allowed. This variance applies to the 33.35 acre parcel of land shown on the plan entitled 'Open Space Appeal/Variance Plan' for Boston Hill in North Andover, MA prepared for Mesiti Development Corp., by Marchionda & Associates, L.P., 62 Montvale Avenue, Suite 1, Stoneham, MA and dated February 24,1999 (the 'Open Space Pian') which is recorded along with this variance. Page 1 of 2 ::�. ,f::��:f .rr• ,,:. ..... _.�; �a n:m.�:,.•::�: +°�' �_r••:>:r:c �r;,.� �.;c:.�-��� [I: •.f.t:;�.tix.•,<��� ri ��.-:��.,,,... , rA 04d'05/99 HON 13:55 FAX 508 872 1492 BOWDITCH&DEWEY FRAM. 0009 Decision continued of: Boston Hill, Salem Turnpike, North Andover, MA 2. This variance is conditioned upon the approval by the Town of North Andover Planning Board of a Site Plan for a multi -family housing project on the 33.35 acre parcel of land known as Boston Hill in North Andover which property is shown on the Open Space Plan. 3. This variance is conditioned upon half of the land or 16.68 acres being retained as open space in perpetuity for conservation, agricultural or recreational uses by deed restriction, dedication to the Town or other similar mechanism. As this variance is conditioned upon the approval of a Site Plan by the Planning Board of a multi -family project which process may result in changes to the precise layout of the project, the 16.68 acres of open space may be located anywhere within the parcel shown on the Open Space Plan and need not be the same 16.68 acres shown on said plan. 4. This variance is conditioned upon the agreement that the proper Open Space will allow ate into the Rte. #114 and Ward Hill Reservation area to allow for a Conservation Trail to be located on the site. As per the above conditions the Zoning Board of Appeal's vote was unanimous: Walter F. Soule, Raymond Yvenzio, John Pallone, Scott Karpinski, Ellen McIntyre. The petitioner has satisfied the provision of Section 10, paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. 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'" 'y �sf y�.' .�•�r "F �y`�Y i ' � �3 Ff-.�. �bt+,f,.; ,�1' _ i d � ' s �� � ��• cry ..�, + � ��, � . � ' r ', r '.�,1a »� • ' � a .. �.,» .' _ �'k , �.,� ; �. a - 1 Yp k�'�.. u i § x�?o ♦M `as. .?x 3st' 'a F e'z, Tt' F . , 7 'F •p,�#,At�..+�,la J: a` 1 Fy S �•'"4 .3' t �.. E Y Ep�k WO r?i�94' i � t �. S'�f22.y �i�'�y;t 1 .�� " - f i • F s- ,s _ 1 ✓ 1 r4 1 •,e r-1 1 I TxomAs I URBBLIS E-MAIL: tju@ufb.com URBELIS, FIELDSTEEL & BAILIN, 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110 - North Andover Zoning Board of Appeals 27 Charles Street North Andover, MA 01845 130ARa OF APP Andover Office :6 Chestnut Street over MA 01810-3600 E91;978-475-4552 Telephone 617-338-2200 Please Send Correspondence Telecopier 617-338-0122 To Boston Address f� April 8, 1999 Re: Boston Hill Development v. North Andover Zoning Board of Appeals -Land Court No. 255616 Benjamin G. Farnum v. North Andover Zoning Board of Appeals - Land Court No. 255618 Dear Members of the Board: A Complaint has been filed against the Zoning Board of Appeal in the Town Clerk's Office by Boston Hill Development, LLC, Land Court No. 255616. Would you please send me copies of any notices of same received by you at your earliest convenience? A Complaint has also been filed against the Board by Mr. Farnum in relation to the same matter, Land Court No. 255618. Please send me copies of any notices you receive in regard to that suit as well. Sincerely, Thomas I Urbelis DGB/rg w:\wp5l\work\n-andove\boston—l\bosM.Itr Town of North Andover NORTH OFFICE OF'6 6 tiOL COMMUNITY DEVELOPMENT AND SERVICES ° 27 Charles Street North Andover, Massachusetts 01845 �9SSgCeMUs�t�y WILLIAM J. SCOTT Director (978)688-9531 FAX TRANSMISSION Fax (978)688-9542 Date: Time:. No. of Pages To: From: Subject: Building Dept Fax Number 978-688-9542 Send to Fax No: Gia - 9i REMARKS: BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 1 u TOWN OF NORTH ANDOVER Zoning Board of Appeals 27 Charles Street North Andover, MA 01845 TO: The North Andover Zoning Board of Appeals 120 Main St., North Andover, MA 01845 FAX NUMBER: 978-688-9556 FROM: V, // r /�✓G�pL�/J�,�/ /G C G Applicants name ...................................... ............ ------- Applicants address DATE.- PLEASE ATE: PLEASE BE ADVISED THAT I WISH TO WITHDRAW MY PETITION WITHOUT PREJUDICE FROM THE ZONING BOARD OF APPEALS AGENDA. signe by p icaW' or applicants representative (Dear petitioner, please return this signed form to my attention, via fax number 978- 688-9556. Thank you, Mary Leary-Ippolito, ZBA Secretary) MUWITHDRAW 463 Johnson Street North Andover, MA. 01845 February 9, 1999 Zoning Board of Appeals Ir �, Town of North Andover- _° Main Street � FEB North Andover, MA. 01845 _ 91999, To the members of the Zoning Board of Appeals, Due to my work schedule, I cannot attend the meeting regarding the development of homes planned for the former Boston Hills Ski Resort. Please consider this letter as my public input. I request that no further variances be granted along Route 114 until the entire road is studied in detail. The original plan for the development of this road is no longer in effect; instead, variances have been granted in the area of Route 125 causing a very dangerous situation. I drive this route daily to and from work and not a day goes by that I don't see a near accident caused by drivers running the lights, or trying to cut in to traffic. Making the situation worse is the complete lack of sidewalks and crosswalks. There are pedestrians trying to cross 114, Merrimack students crossing 125, and people walking down on the side of the street. The road is already inhospitable. Add to this the traffic from another large scale development and we will soon have a street like Route 28 in Salem --noisy and dangerous. Add to this the situation that already exists on Johnson Street --speeding traffic that makes it dangerous just to go to the mail box. It has become a short cut for cars and trucks to avoid 114 while heading north and they treat it just like a highway. It is a residential area with school children walking. The town voted a building moratorium for a reason. We must regain control of our streets and plan for growth rather than suburban sprawl. Sidewalks and crosswalks should be built first, and police should enforce the speeding laws. It makes me sad to see the way the area has changed, from the original plan of corporate offices set back on hillsides to in -your -face shopping centers crammed onto lots too small for them. You have a responsibility to uphold the intent of the law, not just the letter of the law, and make a stand for the quality of life in North Andover. Please do so. Sincerely yours, Roberta Allen McDonnell 01/13/99 Town gfth Andover°RTiy OFFICE OF �r°4`'°1�°0 COMMUNITY DEVELOPMENT AND SERVICES ° . p 27 Charles Street North Andover, Massachusetts 01845 '► `°•,•° ,.''` �5 WILLIAM J. SCOTT' �SSACHUSEt Director (978)688-9531 Fax(978)688-9542 Memorandum i To: William Sullivan, Chairman, Zoning Board of Appeals i From: Richard Rowen, Chairman, Planning Board 1C1� - Date: January 6, 1999 Re: Boston Hill — Variance Request I am writing on behalf of the, Planning Board to express the Board's support for a variance from a portion of Section 8.7(6)(e) of the Growth Management Bylaw. The Board believes that no relief should be granted from the prevision requiring a 40% density reduction, but the Board does support a variance from the requirement of preserving a minimum of ten buildbale acres as open space and/or farmland. However all "surplus land", whatever the acreage may be, must be permanently protected. The Board supports the variance request, as the underlying zoning district already requires the preservation of 50% of the site as open space. The requirement to preserve an additional ten acres creates a substantial hardship to the petitioner, as the project becomes unbuildable on the small area of land left to be built upon. The Board's support for this, variance however, is predicated upon the fact that whatever surplus land is available, apart from land in addition to the required 50%, be permanently preserved as open space with the appropriate restrictions placed upon the land. CC. W. Scott, Dir. CD&S Planning Board BOARD OF APPEAI.S 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 rt01A t3ta +�uwnwaxiipGl�es,ll. ru �oi�io rplu.�o�v�ovici IV. now Ng4liw u oaiwu"wwuAV1110 rtp4gig rtlpnpa - ,.a TOwnt. of North: Andover OFMSOF COMMUNITY DEVELOPMENT AND SERVICES 27 Charles: Street North Andovor, Massachusetts 01845 waijAM J, koTr Director (978)688-9531 October 29,1998 Mr. Paul Marchionda, President Marchionda & Associates, L.P. 62 Montvale Ave, Suite I Stoneham, MA 02180 Re: Boston 10 — Village Residential Zone Dear Mr. Marchionda, IVL' I=4.414 P 03 Bob Nicetta; Building Inspector, and I. have reviewed your letter of October 7, 1998 outlining the applicable sections of the zoning bylaw and conducted our own review of the Zoning Bylaw as follows: • Section 4.123 Village Residential allows multi -family dwellings not to exceed five (5) dwelling units per structure. • Table 2 states that 4 units per acre are allowed. • Footnote 12 states that all lots must be connected to sewer. multi -family projects are subject to site plan review under section 8.3, and that the open space requirements of Section 8.5 must be met. Section 8.5(F) requires 50% of the total parcel to be preserved as open space with no more than 25% of the total as wetland • Footnote 13 requires all lot -fronting on Rt. 114 to have 250' of frontage it Footnote 14 allows multi -family subject to the criteria set forth in Section 8.5 with no opportunity for a bonus density. The height of building must be 30' of2.5 stories. The distance between structures must be 50'. A 50' buffer, zone must be preserved along the parcel boundary. • Section 8.7(6)(e) Growth Management Exemptions allows a project to become exempt from the Growth Management Bylaw with a 40% permanent reduction in density permitted under BOARD OF A2'FEALS 68&9541 BUILDING 688-9343 CONSERVATION 688-9$30 HEALTH 68&9540 FLANNINO 6W9535 rrom:ratua uawwa mmuuww.o►uwuau�,�r, ray io��oeoov raa:�oi�n w. is nu�nn odea oarrea�uswnnama raptan mcnuy,noremwv4Im 4:4aArm jv O'V 2 — 9 $ M O. N.. : 1. = Z ;-_-. _. -... -:. P 0 4 zoning and feasible given the environmental conditions of the tractwiththe surplus land equal to at least ten buildable acres- and permanently designated as open space. The exemption from the Growth Management Bylaw would require an additional 10 acres to be preserved above and beyond the 50% Open Space requirement. The Open Space to be preserved must be reviewed by the Open Space Committee and must be valuable, quality, open space. If you have any questions or need additional information, please do not hesitate to contact me at (978) 68&9535. I look forward to working with you to create the best project for the site. Very truly yours,.._ — Kathleen Bradley Colwell Town Planner cc. W. Scott, Dir. CD&S R Nimna, Building Insp. M. Howard, Cans. Admin. Open Space Committee Februaiy 8, 1999 r A B C BUS Co., IIVC'o Phone: (508) 686-0383 r_4rl FEB y 9 1999 (508) 777-4080 1175 Turnpike Street (508) 887-9973 P.O. Box 596 Fax: (508) 689-0909 North Andover, MA 018459 y^+� ,% North Andover Board of Appeals 1/0 Main Street North Andover, Ma. 01845 To whom it may concern: As an Alters to the sulliect property. Boston Mill, we would like to offer our support for the petitioner for a height variance. The contour of this property sets certain limitations for development. It seems highly logical that approval be granted for this reason. Thank you for considering our opinion on this matter. Respectfully, Charlie Carrell, Owner- B C Realty Trust 1175 Turnpike St. ay urke, Owner - Safe n Sound Mini Storage h 1171 Turnpike St. r Mrs. Bernice Fink 1250 Turnpike Street P.O. Box 363 North Andover, MA 01845 February 7, 1999 Town of North Andover, Massachusetts Board of Appeals Office of the Building Dept. 27 Charles Street North Andover, Massachusetts 99 r`Rk A6 tom.`. Re: Boston Hill Development, LLC request for Variance from the requirements of Section 8, paragraphs 8.7 (6e) open space requirements and 8.5 (6c) height limitation and as a Party Aggrieved of Section 8.7 (6e) of the Growth Management By Law. As an abutter to the affected premises, I received notification of the public hearing to be held on February 9. 1 would very much like to attend but regrettably will not be back in town until late February. Before leaving town, I quickly reviewed the plans and I have ,many questions and concerns about them. I would very much appreciate if you would continue the public hearing into March so that I may have a chance to attend. Among my questions are "Has this plan been before the planning board? And, if so, then why wasn't I notified?", and "Why was the parcel recently subdivided into 3 lots? What effect does that have on the proposed plan?". With respect to the specific variance request, since Boston Hill slopes up from Turnpike Street, the proposed 40' building heights will be on the Turnpike Street side, the side with greatest visibility and hence a clear violation of the intent of the height restriction. In addition, I find it inconceivable that the planned density is no more than 60% of that which would be feasible given the environmental conditions of the tract. I also want confirmation as to whether the current zoning bylaws permit that high a density in a VR zone. This appeal clearly seeks to circumvent the intent of the Growth Management provisions in North Andover's Zoning Bylaw. I strongly oppose this request. Please deny! Sincerely, Bernice Fink John Leeman 45 rine Ridge Road N Andover, MA 01845 Mr. Robert Nicetta February 3,1999 The Town of N Andover Board of Appeals 27 Charles Street N Andover, MA 01845 Re; Boston Hill Project Dear Mr. Nicetta I am writing this letter to express my concern over the increasing complaints I have been receiving about how the Growth Management Bylaw has been integrated into our existing Zoning Bylaws. This letter more specifically addresses the current controversy with the Boston Hill Development. It is my understanding that the Developer, Mr. Barrett, is being asked to comply with section 8.7(6)(e) of the Growth Management Bylaw, which would require him to set aside 10 acres of open space, and also with section 8.5 of the Village Residential Zoning which would require 16 acres, for a total of 26 acres. I can understand Mr. Barrett's concern as this is totally unreasonable and was not the intent of the Growth Management Bylaw. As one of the authors of the Bylaw it certainly was not my intent to increase the amount of land required to be set aside under the established zoning, only to insure that at least a 40% reduction in density would occur in order for exemption from the Growth Management Bylaw. In this case the set aside of 16 acres under section 8.5 certainly satisfies that goal. I would certainly support granting Mr. Barrett a variance in this case as I do not. believe the intent of the Growth Management Bylaw would be compromised. As you know I was one of the proponents of limiting residential development in North Andover, but I do believe that we have to approach this in a fair and equitable manner and what has occured with Mr. Barrett seems to be neither. Sincerely, 7 hn Lee an elect n Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 27 Charles Street North Andover, Massachusetts 01845 WILLIAM J. SCOTT Director (978)688-9531 William. Barrett 1049 Turnpike St North Andover MA 01845 Re: Boston Hill Development, LLC Dear Mr. Barrett: , - Fax (978) 688-9542 January 8, 1999 You have inquired if your proposed development of Boston Hill must meet the requirements of both Zoning By -Law Sections 8.5 (6) (e) and 8.5 (6) (f) (2). I refer you to the Planning Board correspondence of October 29, 1998 to Paul Marchionda, also the correspondence of Town Counsel to the Town Manager dated December 8, 1999 (copies enclosed). As such, I am of the opinion that your development must satisfy the requirements of both sections of the Zoning By-law. If you have any questions please call my office at 978-688-9545. Very truly yours, D. Robert Nicetta, Building Commissioner DRN:jm enclosures BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 URBELIS, FMLDS77M & BAILI;N, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 DEAR-* G. BAILIN E -MALL. dgb@Ufb.com Robert J. Halpin, Town Manager - North Andover Town Offices 120 Main Street N. Andover, MA 01845 Re: Boston Hill Zoning Dear Bob: :Telephone 617-338-2200 Telecoplcr, 617-33 8-0122 December 8, 1998 Andover omce 26 Chestnut Street Andover, MA 01810.3600 Telephone 978-475-4552 Please: Send Correspondmce To Boston Address RECEIVED DEC 0 9 1998 BUILDING DEPT. We have received your request for our opinion on the above matter. The facts, as we understand them, are as follows: The site at issue was zoned Village Residential District. A preliminary subdivision plan was filed on this property on May 9, 1997, which plan was disapproved on July 1, 1997. The definitive subdivision plan for a three lot subdivision under the Village Residential District bylaw was filed on December 8, 1997 and approved by the Planning Board on April 22, 1998. At the time the preliminary subdivision plan was filed, Table 2 provided; as to Village Residential, a maximum density of four units per acre. (It has since been amended to reduce that density to one unit per acre.) Land within the Village Residential District may be used for multi- family. Footnote 12 provides in relevant part that: "If multi-farnily structures are selected to attain the maximum density allowed, the proposed project shall be subject to the minimum open space requirement found in Section 8.5 (Planned Residential Development), and to the site plan review requirements of Section 8.3." Footnote 14 specifically. provides: "The diT tensional criteria describ_d in the table below applies only to detached single faMily development. Multi -family. structures developed in this district shall be subject to all criteria applicable to multi -family developments as stated in Section 8.5, 14owever, in no instances shall the bonus density subsections of Section 8.5 apply in the Village Residential District." Section 8.5 provides as to open space in relevant part; "Usable Open Space: Usable Open Space shall be defined as the. part or parts of land within the PRD which are reserved for permanent open space. This space shall exclude parking areas, but include required setbacks and walkways. The usable open space shall be open an unobstructed to the sky; however; trees, planting, arbors, flagpoles, sculptures, fountains, swimming pools, atriums, outdoor recreational facilities and similar objects shall not be considered obstructions. (1) For subdivision PRD's the minimum usable open space requirements shall be 3 5% of the total parcel area; and no more than 25% of the total amount of reglaired usable open space shall be wetland. (2) For site planned PRD's, the minimum usable open space requirements shall be 50% of the total parcel area; and no more that 25% of the total required usable open space shall be wetland." Section 8.5 also requires a 50 foot buffer between w,W�pJ1\*gfLo ndove%c0rresp4Wpm2Ar 1: Umais, F=sTEEI. & BAmiN, LLP .q� Robert J. Halpin, Town Manager North Andover / Re: Boston Hill Zoning December 8, 1998 Page 2 ` structures and a 50 foot buffer zone from the parcel boundary to any structure located within a PRD Development. Under the Village Residential District Bylaw, therefore, a set aside of 50% as open.space is required for multi -family development. The Growth Management Bylaw, which was adopted in 1996, provided specific exemptions from the Growth Rate Limit and Development. Scheduling of its provisions. At issue .here is subsection (e), which provides: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and feasible given the environmental conditions of,the tract, with the_ surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection. We read this provision as requiring, not only a.40% permanent reduction in the density of a project , but a set aside of 10 acres for open space. Because the underlying zoning requires 50% set aside for open space, the 10 acres must be deemed to be in addition to that required by the underlying Village Residential zoning.for multifamily. As construed and applied. to this project, we understand that the- developer is claiming that the amount of set aside for open space is excessive. It must be recalled that exemption (e) is applicable to many kinds of development, many of which do not call for the set aside for any open space. It may be that the Town wants to have the Planning Board consider an amendment to this provision as to developments which already require open space set asides for the underlying development. The only other alternative is for the developer. to seek a variance from the application of the additional 10 acres from the Zoning Board of Appeals. Please feel free to contact. me if you have any questions or require any further information. Very truly yours, TJU:rg Thomas J. rbelis cc: Kathleen Bradley Colwell, Town Planner William J. Scott, Director ,/D. Robert Nicetta, Building Commissioner VrAW051kw rk4o-ando %—dmOw1Pb*2k from:PadM8a0�ICdhbtdllotldabAsSOc lS,LP:Faz:t914 9�4Voce:I81�39b1Z110:Wham-tlaRlQdCMt; M MOmtS raga NOV— • 2-98 MON Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT. AND SERVICES 27 Charles Street North Andovor, Massachusetts 01845 WDIIAM 1. SCOTT Dtrrnor (978)688-9531 October 29, 1998 Mr. Paul Marchionda, President Marchionda & Associates, L.P. 62 Montvale Ave, Suite 1 Stoneham, MA 02180 Re: Boston Hill — Village Residential Zone M0n0y, NOVOW P41998 4:41:11 ra P.03 f OWN , �?p••,•t0 r,� hpp A °j+rye •� 43 1SActWS� Fax(978)688.9542 Dear Mr. Marchionda, Bob Nicetta, Building Inspector, and 1 have reviewed your letter of October 7, 1998 outlining the applicable sections of the zoning bylaw and conducted our own review of the Zoning Bylaw as follows: Section 4.123 Village Residential allows multi -family dwellings not to exceed five (5) dwelling units per structure. • Table 2 states that 4 units per acre are allowed. • Footnote 12 states that all lots must be connected to sewer, multi -family projects are subject to site plan review under section 8.3, and that the open space requirements of Section 8.5 must be met. Section 8.5(F) requires 50% of the total parcel to be preserved as open space with no more than 25% of the total as wetland. • Footnote 13 requires all lot fronting on Rt. 114 to have 250' of frontage • Footnote 14 allows multi -family subject to the criteria set forth in Section 8.5 with no opportunity for a bonus density. The height of building- must be 30' oe2.5 stories. The distance between structures must be 501. A 50' buffer zone must be preserved along the parcel boundary. -• Section 8.7(6)(e) Growth Management Exemptions allows a project to become exempt from the Growth Management Bylaw with a 40% permanent reduction in density permitted under BOARD OF APPEAI.E 688-9341 BUILDINO 688-9543 CONSERVATION 688.9530 HEALTH 688-9540 PLANNINO 686-9333 rrom: raw maaaonaa A18morIWONiioCltOCi Li. tax: m43om voltt:IC NOV-- 2-98 MON 1 1 5 2. 1 I lo:.'"n rl OUN F- butt Won nom" rip o vo MOn03y NcvemcerU[, is cu., 4 rm - - P. 04 zoning and feasible given the environmental conditions of the tract with the surplus land equal to at least ten buildable acres and permanently designated as open space. The exemption from the Growth Management Bylaw would require an additional 10 acres to be preserved above and beyond the 50% Open Space requirement. The Open Space to be preserved must be reviewed by the Open Space Committee and must be valuable, quality, open space. If you have any questions or need additional information, please do not hesitate to contact me at (978) 588-9535. I look forward to working with you to create the best project for the site. Very truly yours,: _ -- C�"J Kathleen Bradley Colwell Town Planner cc, w. Scott, Du. CD&S R Nioetta, Building insp. M. Howard, Cons. Admin. Opm Spm Committee STATEMENT OF BOSTON HILL DEVELOPMENT, LLC IN SUPPORT OF APPLICATION FOR ZONING APPEAL OR VARIANCE FROM CERTAIN OPEN SPACE REQUIREMENTS (§ 8.7(6)[e]) AND VARIANCE FROM HEIGHT LIMITATION (§ 8 5(6)[Cl) Boston Hill Development, LLC (the "Applicant") seeks to construct a 79 -unit, multi -family housing project at Boston Hill in North Andover, a 33.35 -acre parcel of land with approximately 1,100 feet of frontage on the southerly side of the Salem Turnpike (Route 114) across from Johnson Street ("Boston Hill"). A Conceptual Plan showing the land and preliminary locations of the buildings of Boston Hill is attached as Exhibit A. In response to the suggestion of the North Andover Planning Board, the Applicant makes this application to the Board of Appeals prior to filing with the Planning Board for Site Plan Review to resolve two issues. First, the Applicant appeals the ruling of the Building Inspector regarding the meaning of § 8.7(6)(e) of the Town of North Andover Zoning Bylaw (the "Bylaw") relating to open space requirements or, in the alternative, seeks a variance from this provision of the Bylaw., Second, the Applicant requests a variance from the height limitation set forth in § 8.5(6)(C) of the Bylaw. I. Anneal from Building Inspector's Ruling regarding Open Space. The property is zoned Village Residential District which permits multi -family residential structures not exceeding five (5) dwelling units per structure. (Bylaw, § 4.123(3).) The Boston Hill project enjoys a maximum density of four (4) units per acre since the land is grandfathered under the Zoning Act, General Laws Chapter 40A, § 6. Specifically, a preliminary subdivision plan was filed for the property on May 9, 1997. A related definitive subdivision plan was filed on December 8, 1997 and approved by the Planning Board on April 22, 1998. At the time of the filing of the preliminary /3 subdivision plan, Table 2 of the Bylaw permitted a maximum density of four (4) units per acre in the Village Residential District. Thus, under chapter 40A, § 6, the four (4) unit per acre zoning in effect on May 9, 1997 applies to the property today. Therefore, the Applicant may build up to 132 units on its 33.35 -acre site at Boston Hill. Footnote 12 to Table 2 provides that in the event a multi -family project is contemplated, it is subject to the minimum open space requirements in § 8.5 (Planned Residential Development)1 and to the Site Plan Review requirements of § 8.3. In turn, § 8.5(6)(F)(2) states that [fJor site planned PRD's, the minimum usable open space requirement shall be 50% of the total parcel area; and no more than 25% of the total required usable open space shall be wetland. Accordingly, the underlying zoning for Boston Hill requires that 50% of the land or 16.67 acres of the Boston Hill project be set aside as usable open space. The open space land will be subject to a deed restriction precluding development and limiting use to conservation, agricultural or recreational purposes. Section 8.7, Growth Management, provides for growth rate limitations and development schedules for multi -unit projects such as Boston Hill. Section 8.7(6) provides exemptions from these development limitations. Specifically § 8.7(6)(e) provides in pertinent part as follows: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and feasible given the environmental conditions of the tract, with the surplus land equal to at least ten buildable acres and permanently designation as open space and/or farmland. 'Footnote 14 to Table 2 reiterates that multi -family structures in the Village Residential District are subject to the criteria governing multi -family developments in § 8.5, except that the bonus density provisions do not apply. 2 In order to qualify for this exemption, the Applicant agrees to a 40% reduction in the density (buildable lots) of Boston Hill from 132 to 79 units. Having set aside 16.67 acres of land as open space pursuant to the underlying zoning, § 8.5(6)(F)(2), the Applicant maintains that it satisfies the requirement of § 8.7(6)(e) that at least ten buildable acres be set aside as open space. The Building Inspector and the Town Planner have opined that § 8.7(6)(e) requires an additional ten acres to be preserved as open space "above and beyond" the 50% open space requirement of'§ 8.5(6)(F)(2). (See Ex. B.) On the conclusory basis that "[b]ecause the underlying zoning requires 50% set aside for open space, the 10 acres must be deemed to be in addition to that required by the underlying... zoning," Town Counsel issued a letter supporting this conclusion. (See, Ex.C.) A. The Bylaw's Plain Meaning Requires a Total of 10 Acres of Open Space. Bylaws are interpreted in accordance with their "ordinary meaning." Hall v. Zoning Board of A-ppeals of Edgartown, 28 Mass. App. Ct. 249, 254 (1990). Section 8.7(6)(e) requires "surplus land equal to at least ten buildable acres and permanently designation [sic] as open space...." As designed pursuant to the underlying zoning, Boston Hill contains more than 10 acres of open space. Thus, Boston Hill contains the open space mandated by § 8.7(6)(e). Section 8.7(6)(e) does not state that an additional 10 acres of open space must be provided in the event that a project already meets this threshold: To the contrary, this section mandates only "at least" 10 acres of open space. The purpose of § 8.7(6)(e) is to insure that a developer who wishes to bypass Growth Management restrictions sets aside a minimum of 10 acres of open space. Boston Hill meets this threshold and satisfies the Bylaw's requirement. Town Counsel contends that the Town must insist on the provision of 10 acres of open space since not every development seeking an exemption under § 8.7(6)(e) will have open space. The Applicant agrees: Section § 8.7(6)(e) should be read as requiring a minimum of 10 acres of open space to qualify for this exemption. Projects with, for example, four acres of open space should be required to provide an additional six acres to enjoy this exemption. Boston Hill meets the 10 -acre requirement and should not be obligated to set aside an additional 10 acres of its land. B. Even if the Bylaw Were Ambiguous, Rules of Construction Mandate Finding that an Additional 10 Acres of Open Space is Not Required. Even assuming that there is some lack of clarity whether the 10 acres required under § 8.7(6)(e) are in addition to the open space mandate of § 8.5(6)(F)(2), three main rules of statutory construction support the Applicant's position. Iodice v.Newton, 397 Mass. 329, 332-333 (1986). First, "Bylaws should not be so interpreted as to cause absurd or unreasonable results when the language is susceptible of a sensible meaning." Green v. Board of Appeal of Norwood, 358 Mass. 253, 258 (1970). There, the Bylaw provided that in a certain district no dwelling could be erected on a lot having an area less than "two acres and not less than 4,000 square feet per dwelling unit for all units on the lot in buildings for three or more families." The Court interpreted this to require that buildings accommodating three or more families be on lots with at least two acres, having for each dwelling unit thereon at least 4,000 square feet. The argument that each lot had to be at least two acres plus 4,000 square feet for each dwelling unit was rejected as causing an absurd or unreasonable result. The same is true in this case. Were the Building Inspector's interpretation adopted, the Applicant would be required to set aside a total of 4 l.� 26.67 out of 33.35 acres as open space. This is truly an absurd and unreasonable result. This leaves 6.58 acres of land on which to develop 79 units, resulting in a large number of units for each non -restricted acre of land. A reasonable result is the construction of 79 units on 16.67 acres. Second, a provision of a bylaw is not viewed in isolation from the remainder of the bylaw. Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 478 (1986). The Courts have recognized the general principle that bylaws should be "construed so as to harmonize superficially discordant provisions." Lee v. Board of Appeal of Harwich, 11 Mass. App. Ct. 148, 154 (1981). Although the open space requirements of § 8.7(6)(e) and § 8.5(6)(F)(2) were enacted for wholly different reasons -- insuring growth management versus reducing the density of multi -family housing projects -- neither requirement may be viewed in isolation. To the contrary, the provisions must be harmonized. Reading these provisions together requires one to conclude that there must be a minimum of 10 acres of open space for projects to qualify for the § 8.7(6)(e) exemption. Where Boston Hill contains more than 20 acres and has set aside 16.67 acres for open space under the multi -family zoning, the Board must harmonize these provisions by holding that the Applicant has satisfied the 10 acre open space requirement. Under the Bylaw, multi -family housing projects must provide open space. Such projects should not be penalized by applying the same open space requirement twice. Third, "where doubt exists as to the meaning of zoning restrictions, courts hold that such restrictions will be strictly construed in favor of the land owner ... since a zoning ordinance or Bylaw is in derogation of the owner's common law rights in the use 5 of his land...." 1 Ziegler, Rathkopf s The Law of Planning and Zoning, § 5.03. See, Manchester v. Phillips, 343 Mass. 591, 596 (1962). Should the Board conclude that there is an ambiguity, this rule of construction also supports finding in favor of the Applicant. A corollary of this rule is "that zoning restrictions will not be extending by implication, but will be limited to what is clearly proscribed." (Id.) Nowhere in § 8.7(6)(e) does it state that 10 acres of open space must be set aside in addition to other open space. This exemption from Growth Management requires "at least 10 acres" of open space. The Town cannot extend a restriction on the Applicant's land on the basis that it is impliedly part of the Bylaw. No language in the. Bylaw expressly requires an additional 10 acres of open space if 10 or more acres of open space have already been set aside under the landowner's development plans. II. Alternatively, the Applicant is Entitled to an Open Space Variance. Should the Board elect to interpret the Bylaw as requiring 26.67 acres of open space, the Applicant respectfully requests a variance from § 8.7(6)(e). The Board may grant a variance where it finds that (1) owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, (2) a literal enforcement of the provisions of the bylaw would involve substantial hardship, financial or otherwise, to the petitioner, and (3) desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such bylaw. Extreme variations in grade, such as those present at the Boston Hill property, satisfy the requirement of unique shape, topography or soil condition. See, eg, rel Al Broderick v. Board of Appeal of Boston, 361 Mass. 472 (1972). Already, on a previous occasion, this Board granted several dimensional variances due to the "steep topographical' condition of the land. (See, Ex. D.) The courts have repeatedly held that developments in compliance with zoning which is "not practicable from a sound investment view point" justifies the grant of a variance. Rodenstein v. Board of Appeals of Boston, 337 Mass. 333, 337 (1958). After paying fair market value for a potentially developable 33 acre parcel of land, an interpretation of the Bylaw permitting developing on only 6 acres does not result in development that is practical from a sound investment view point. Determination of whether there is substantial detriment to the public good depends upon "the overall effect of the proposed use of the locus on other property within the same district." Planning Board of Framingham v. Zoning Board of Appeals, 5 Mass. App. Ct. 789-790 (1977). "The deviation must be substantial and ...unless the use significantly detracts from the zoning plan for the district, the local discretionary grant of the variance ... must be upheld. Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396,400 (1980). The development of a 79 -unit project on 16.75 acres of land is permitted under the underlying zoning district. No better proof exists that a variance in the circumstance would be in keeping with the public good and that the overall effect of the project would not be substantially detrimental to the property within the same zoning district. III. Height Variance. Under § 8.5(6)(C) the permitted height of the buildings at the proposed Boston Hill project is 30 feet or 2.5 stories. The Applicant requests a variance from this height limitation in order to build units with a height of up to 40 feet and structures (consisting h /10 of up to five units) with a height of up to 48 feet. As shown on the Height Variance Plan attached as Exhibit E, while each dwelling unit will be no taller than 40 feet, when attached, one unit will be lower than the next. The height of the entire multi -family structure will have the appearance of stepping down from unit to unit. Thus, the difference between the lowest basement point (in the lowest unit) and highest roof point (in the highest unit) for the entire multi -family structure will be no more than 48 feet. The courts and local boards generally demonstrate greater leniency in granting dimensional, as opposed to use, variances. See, e.g., Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 66 (1977). Further, in this case where there is a steep slope on the property, physical conditions exist justifying the grant of a variance. osMhs v. Board of Appeals of Brookline, 362 Mass. 290 (1972); Broderick v. Board of Appeals of Boston, 361 Mass. 290 (1972). In fact, this Board previously granted a height variance from 30 to 40 feet citing the "steep topographical features, tree locations, M. a �, and soil conditions of the site" as well as the need to "minimize ... grading" of the lot. (See, Ex. D.) The Applicant seeks roughly the same variance in this case. Brian C. Levey, Esq. V Counsel for Boston Hill Development, LLC Dated: \' Nit 6 �i r DEQ G. BAR.IN E -MALL: dsb?ufb.cora 1 1"�VI.1 URBELIS, FMLDSTEM & BAILIN, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 Robert r. Halpin, Town Manager. North Andover Town Offices 120 Main Street N. Andover, MA 01845 Re: Boston bill Zoning Dear Bob: Telephone 617-338-2200 Telecopicr.617-33 8-0122 December 8, 1998 Andover Otjicc 26 Chestnut Street Andover, HA 01810-3600 Telephone 979475-4552 Plasc Send Correspondrnce To Boi„ou Addras RECEIVED DEC 0 9 1998 BUILDING DEPT. We have received your request for our opinion on the above matter. The facts, as we understand them, are as follows: The site at issue was zoned Village Residential District. A preliminary subdivision plan was filed on this property on May 9,'1997, which plan was disapproved on July 1, 1997. The definitive subdivision plan for a three lot subdivision under the Village Residential District bylaw was fifed on December 8, 1997 and approved by the Planning Board on April 22, 1998. At the time the preliminary subdivision plan was filed, Table 2 provided; as to Village Residential, a maximum density of four units per acre. (It has since been amended to reduce that density to one unit per acre.) Land within the Village Residential District may be used for multi- family. Footnote 12 provides in relevant part that: "If multi -family structures are selected to attain the maximum density allowed, the proposed project shall be subject to the minimum open space requirement found in Section 8.5 (Planned Residential Development), and to the site plan review requirements of Section 8.3." Footnote 14 specifically. provides: "The di:Iftensional criteria described in the *able below applies only to detached single family development. Multi -family structures developed in this district shall be subject to all criteria applicable to multi -family developments as stated in Section 8.5, However, in no instances shall the bonus density subsections of Section 8.5 apply in the Village Residential District." Section 8.5 provides as to open space in relevant part: "Usable Oven Space: Usable Open Space shall be defined as the. part or parts of land within the PRD which are reserved for permanent open space. This space shall exclude parking areas, but include required setbacks and walkways. The usable open space shall be open an unobstructed to the sky; however; trees, planting, arbors, flagpoles, sculptures, fountains, swimming pools, atriums, outdoor recreational facilities and similar objects shall not be considered obstructions. (1) For subdivision PRD's the minimum usable open space requirements shall be 35% of the total parcel area; and no more than 25% of the total amount of required usable open space shall be wetland. (2) , For site planned PRD's, the minimum usable open space requirements shall be 50% of the total parcel area; and no more that 25% of the total required usable open space shall be wetland." Section 8.5 also requires a 50 foot buffer between w.%-01NWWL1--doveV"Pi0JC e-� z VGo-1'=;2 -) 1..7N1°1 1 nul"1 - � f . . URBELIs, FIELDSTEEL & BAm N, LLP Robert J. Halpin, Town Manager North Andover / Re: Boston Hill Zoning December 8, 1998 Page 2 structures and a 50 foot buffer zone firom the parcel boundary to any structure located within a PRD Development. Under the Village Residential District Bylaw, therefore, a set aside of 50% as open.space is required for multi -family development. The Growth Management Bylaw, which was adopted in 1996, provided specific exemptions from the Growth Rate Limit and Development Scheduling of its provisions. At issue .here is subsection (e), which provides: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and feasible given the environmental conditions of:the tract, with the surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection. We read this provision as requiring, not only a.40% permanent reduction in the density of a project , but a set aside of 10 acres for open space. Because the underlying zoning requires 50% set. aside for open space, the 10 acres must be deemed to be in addition to that required by the underlying Village Residential zoning for multifamily. As construed and applied. to this project, we understand that the. developer is claiming that the amount of set aside for open space is excessive. It Must be recalled that exemption (e) is applicable to many kinds of development, many of which do not call for the set aside for any open space. It may be that the Town wants to have the Planning Board consider an amendment to this provision as to developments which already. require open space set asides for the underlying development. The only other alternative is for the developer. to seek a variance from the application of thei iuonal a01 cres from the o`ning Board -of Appeals Please feel free to contact. me if you have any questions or require any further information. Very truly yours, I r_� TJU:rg Thomas J. rbelis cc: Kathleen Bradley Colwell, Town Planner William T Scott, Director ,/.D. Robert Nicetta, Building Commissioner wlroS llwmL41-andovzkcwixp�JWpkalw ")-2) Post -its Fax Note �-rFo/ 1 Date Io' To t ` pages Co./Dept. / i � % Fax # �J P,AvI-D ,cjfvLwwq Mza G��P Ii i 4- 0 01/13/99 WILLIAM J. SCOTT Director (978)688-9531 To: wn cf'th Andover OFFICE OF DEVELOPMENT AND SERVICES 27 Charles Street North Andover, Massachusetts Ol 845 Memorandum William Sullivan, Chairman, Zoning Board of Appeals From: Richard Rowen, Chairman, Planning Board e CX r � ICS Date: January 6, 1999 Re: Boston Hill — Variance Request Li. � T(U 'PF i1h/ Fax(978)688-9542 I am writing on behalf of the Planning Board to express the Board's support for a variance from a portion of Section 8.7(6)(e) of the Growth Management Bylaw. The Board believes that no relief should be granted from the prevision requiring a 40%, density reduction, but the Board does support a variance from the requirement of preserving a minimum of ten buildbale acres as open space and/or farmland. However all "surplus land", whatever the acreage may be, must be permanently protected. The Board supports the variance request, as the underlying zoning district already requires the preservation of 50% of the site as open space. The requirement to preserve an additional ten acres creates a substantial hardship to the petitioner, as the project becomes unbuildable on the small area of land left to be built upon. The Board's support for thisvariance however, is predicated upon the fact that whatever surplus land is available, apart from and in addition to the required 50%, be permanently preserved as open space with the appropriate restrictions placed upon the land. CC. W. Scott, Dir. CD&S Planning Board BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 From: Paul Honda Muchionda&Awri6s, l.P. Fu: 7814M Voice:7814384121 To: Willem K. Banca at BMCuston Homes ftp 4 of Monday, NMberQZ 1N 4:41:21 NOV- 2-98 MON 11:51 P.03, Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 27 Charles Street North Andovor, Massachusetts 01845 WDI AM J. SCOTT Dfmclor (978) 688-9531 October 29, 1999 Mr. Paul Marchionda, President Marchionda & Associates, L.P. 62 Montvale Ave, Suite 1 Stoneham, MA 02180 Re: Boston Hill — Village Residential Zone Dear Mr. Marchionda, Fax(978)688.9542 Bob Nicetta, Building Inspector, and I have reviewed your letter of October 7, 1998 outlining the applicable sections of the zoning bylaw and conducted our own review of the Zoning Bylaw as follows: • Section 4,123 Village Residential allows multi -family dwellings not to exceed five (5) dwelling units per structure. • Table 2 states that 4 units per acre are allowed. • Footnote 12 states that all lots must be connected to sewer, multi -family projects are subject to site plan review under section 8.3, and that the open space requirements of Section 8.5 must be met. Section 8.5(F) requires 50% of the total parcel to be preserved as open space with no more than 25% of the total as wetland. • Footnote 13 requires all lot fronting on Rt.114 to have 250' of frontage • Footnote 14 allows muni -family subject to the criteria set forth in Section 8.5 with no opportunity for a bonus density. The height of building must be 30' oF2,5 stories. The distance between structures must be 50'. A 50' buffer zone must be preserved along the parcel boundary. • Section 8.7(6)(e) Growth Management Exemptions allows a project to become exempt from the Growth Management Bylaw with a 40% permanent reduction in density permitted under IDOARD Of AP"AU 68&9341 $UILDINO 688-"45 CONSERVATION 688.9530 HEALTH 638-9540 PLANNINO 68&9335 VM: rW Man;m U MaRmonQ & PZotiall5, l.r. W:10140ft Voice:1014JU41Z1 I O: Wtlaam K. 5M aC dM i;U$WMQnm FIp 5 A Monday, Novembetq 1996 4:4Y:94 PM NOV- 2-48 MON 11:52 P_04 zoning and feasible given the eavironmcntal conditions of the tract with the surplus land equal to at least ten buildable acres and permanently designated as open space. The exemption from the Growth Management Bylaw would require an additional 10 acres to be preserved above and beyond the 50% Open Space requirement. The Open Space to be preserved must be reviewed by the Open Space Committee and must be valuable, quality, open space. If you have any questions or need additional information, please do not hesitate to contact me at (978) 688-9535. I look forward to working with you to create the best project for the site. Very truly yours,:_ -- &Mt���WIWJA" Kathleen Bradley Colwell Town Planner M W. Soon, Dir. CD&S R. Nimtm, Bm7ding Insp. M. Howard, Cans. Admin. Opal Spave Committee C w w i V ✓_Vl 1 r\VI r G URBELIS, FIELDSTEEL & BAMIN, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 DEQ G. BAILIN E-MmL: dgb@ufbxo=u Robert 1. Halpin, Town Manager North Andover Town Offices 120 Main Street N. Andover, MA 01845 Re: Boston Hill Zoning Dear Bob: :Telephone 617-338-2200 Telecopier, 617-338-0122 December 8, 1998 Andover 015ce 26 Chesnut Street Attdova, SMA 01810.3600 Telephone 978-475-4552 Please Send Cormpondenrc To Boson Address RECEIVED DEC Og1998 BUILDING DEPT We have received your request for our opinion on the above matter. The facts, as we understand them, are as follows: The site at issue was zoned Village Residential District. A, preliminary subdivision plan was filed on this property on May 9, 1997, which plan was disapproved on July 1, 1997. The definitive subdivision plan for a three lot subdivision under the Village Residential District bylaw was filed on December 8, 1997 and approved by the Planning Board on April 22, 1998. At the time the preliminary subdivision plan'was filed, Table 2 provided; as to Village Residential, a maximum density of four units per acre. (It has since been amended to reduce that density to one unit per acre.) Land within the Village Residential District may be used for multi- family. Footnote 12 provides in relevant part that: "If multi-farruily structures are selected to attain the maximum density allowed, the proposed project shall be subject to the minimum open space requirement found in Section 8.5 (Planned Residential Development), and to the site plan review requirements of Section 8.3." Footnote 14 specifically provides: "The dimensional cr:teriz der_rib_d in the ±Zble below appEes only to detached single family development. Multi -family structures developed in this district shall be subject to all criteria applicable to multi -family developments as stated in Section 8.5. However, in no instances shall the bonus density subsections of Section 8.5 apply in the Village Residential District." Section 8.5 provides as to open space in relevant part: "Usable Oven Space: Usable Open Space shall be defined as the. part or parts of land within the PRD which are reserved for permanent open space. This space shall exclude parking areas, but include required setbacks and walkways. The usable open space shall be open an unobstructed to the sky; however; trees, planting, arbors, flagpoles, sculptures, fountains, swimming pools, atriums, outdoor recreational facilities and similar objects shall not be considered obstructions. (1) For subdivision PRD's the minimum usable open space requirements shall be 3 5% of the toial parcel area; and no more than 25% of the total amount of required usable open space shall be wetland. (2) For site planned PRD's, the minimum usable open space requirements shall be 50% of the total parcel area; and no more that 25% of the total required usable open space shall be wetland." Section 8.5 also requires a 50 foot buffer between w,,W p� � �+vw�in.�naorekaropwlpiniJv 4—Gb— I�J`J`J W: 1 .3F1M 1' KUM FIELDSTE -L & BAIL N, LLP Robert J. Halpin, Town Manager North Andover / Re: Boston Hill Zoning December 8, 1998 Page 2 structures and a 50 foot buffer zone from the parcel boundary to any structure located within a PRD Development. Under the Village Residential District Bylaw, therefore, a set aside of 50% as open.space is required for multi -family development. The Growth Management Bylaw, which was adopted in 1996, provided specific exemptions from the Growth Rate Limit and Development Scheduling of its provisions. At issue .here is subsection (e), which provides: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and feasible given the environmental conditions of the tract, with the surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection. We read this provision as requiring, not only a.40% permanent reduction in the density of a project , but a set aside of 10 acres for open space. Because the underlying zoning requires 50% set. aside for open space, the 10 acres must be deemed to be in addition to that required by the underlying Village Residential zoning for multifamily. As construed and applied to this project, we understand that the developer is claiming that the amount of set aside for open space is excessive. It must be recalled that exemption (e) is applicable to many kinds of development, many of which do not call for the set aside for any open space. It may be that the Town wants to have the Planning Board consider an amendment to this provision as to developments which already require open space set asides for the underlying development. The only other alternative is for the developer. to seek a variance from the application of the additional 10 acres from the Zoning Board of Appeals. Please feel free to contact me if you have any questions or require any further information. Very truly yours, TTU:rg Thomas J. L rbelis cc: Kathleen Bradley Colwell, Town Planner William J. Scott, Director ✓.b. Robert Nicetta, Building Commissioner w:�wpS llworkln•andovakonavllralpin2�a %mi E Town of North Andover -- t rpRTN- OFFICE OF 3?C�tt`,o Ie.°�G0 COMMUNITY DEVELOPMENT AND SERVICES 27 Charles Street �9 ; North Andover, Massachusetts 01845 �9`°•��° •�''� WUILIAM J. SCOTT SSAC"US Director (978) 688-9531 Fax (978) 688-9542 January 8, 1999 William. Barrett 1049 Turnpike St North Andover MA 01845 Re: Boston HW -Development, LLC Dear Mr. Barrett: You have inquired if your proposed development of Boston Hill must meet the requirements of both Zoning By -Law Sections 8.5 (6) (e) and 8.5 (6) (f) (2). I refer you to the Planning Board correspondence of October 29, 1998 to Paul Marchionda, also the correspondence -of Town counsel to the Town Manager dated December 8, 1999 (copies enclosed). As such, I am of the opinion that your development must satisfy the requirements of both sections of the Zoning By-law. If you have any questions please call my office at 978-688-9545. Very truly yours, D. Robert Nicetta, Building Commissioner DRN:jm enclosures BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 tt01A tat"1, GOtiQi a>an ati LC. rax IC��J11�1p04.Y01Ct:Inli�i41L� 19:f11M ICUM a[.aa(ti 6UMflnvmes rip 94 0 V 2:—'9,9' M 01 W-- L la:: 'moi ]�..;-:: ;_ _.._ r ` Towu: of North Andover O"M"OF COMMUNITY DEVELOPMENT AND SERVICES 27 Charlcs Street North Andovor, Massachusetts 01845 WD IJAM I SCOTT Director (978)688-9531 October 29,1998 Mr. Paul Marchionda, President Marchionda & Associates, L.P. 62 Montvale Ave, Suite 1 Stoneham, MA 02180 Re: Boston Hill — Village Residential Zone MOnOay,Nove11DtrY4 im 4.411 P 03 Fax(978)688-9542 Dear Mr. Marchionda, Bob Nicetta, Building Inspector, and I have reviewed your letter of October 7,1998 outlining the applicable sections of the zoning bylaw and conducted our own review of the Zoning Bylaw as follows: 9 Section 4.123 Village Residential allows multi -family dwellings not to exceed five (5) dwelling units per structure. • Table 2 states that .4 units per acre are allowed. • Footnote 12 states that all lots must be connected to sewer, multi -family projects are subject to site plan review under section 8.3, and that the open space requirements of Section 8.5 must be met. Section 8.5(F) requires 50% of the total parcel to be preserved as open space with no more than 25% of the total as wetland. • Footnote 13 requires all lot -fronting on Rt. 114 to have 250' of frontage Footnote 14 allows muhi-family subject to the criteria set forth in Section 8.5 with no opportunity for a bonus density. The height of building must be 30' oe2.5 stories. The distance between structures must be 50' A 50' buffer zone must be preserved along the parcel boundary. • Section 8.7(6)(e) Growth Management Exemptions allows a project to become exempt from the Growth Management Bylaw with a 40% permanent reduction in density permitted under DOARD OF APPEALS 68&9141 B=1NO 688-9545 CONSERVATION 688.9330 HEALTH W-9540 PLANNING 688-9535 rran:rawa ruwwa UuwnPwaMwcwei,Lf. raxJ014 a N;VO -J014 iia. io:.ff=f.narrea EnarreaUSMMomes rag M MonWNQVIM tv41M 4:42AFM yN0�'J 2-98 M:O-W_rl:1 - _, ,;. __ P 04 zoning and feasible given the environmental conditions of the tract with the surplus land equal to at least ten buildable acres and- permanently designated as open space. The exemption from the Growth Management Bylaw would require an additional 10 acres to be preserved above and beyond the 50% Open Space requirement. The Open Space to be preserved must be reviewed by the Open Space Committee and must be valuable, quality, open space. If you have any questions or need additional information, please do not hesitate to contact me at (978) 6M9535. I look forward to working with you to create the best project for the site. Very truly yours,:.... — Kathleen Bradley Colwell Town Planner CC. W. Scott, Du. CUS R Nimra, Building Insp. Nt Howard, Cons. Admin. Open Space Committee URBELIs, FIBLDSMEL & BAILIN, LLP 155 FEDERAL STREET nndowRortec BOSTON, MASSACHUSETTS 02110-1727 26 Chestnut Street Andover, , 01810.3600 Telephone 978-075-4552 DEvzA G. BAILIN E -MALL dgb(aMufb.com T. Robert f. Halpin, Town Manager. North Andover Town Offices 120 Main Street N. Andover, MA 01845 Re: Boston Hill Zoning Dear Bob: :Telephone 617-338-2200 TeIccopier. 617-33 8-0122 December 8, 1998 Please Send Corrtspondmce To Boston Addteu RECEIVED DEC 0 q 1998 BUILDING DEPT. . We have received your request for our opinion on the above matter. The facts, as we understand them, are as follows: The site at issue was zoned Village Residential District. A preliminary subdivision plan was filed on this property on May 9, 1997, which plan was disapproved on July 1, 1997. The definitive subdivision plan for a three lot subdivision under the Village Residential District bylaw was frl'ed on December 8, 1997 and approved by the Planning Board on April 22, 1998. At the time the preliminary subdivision plan was filed, Table 2 provided; as to Village Residential, a ma, -c mum density of four units per acre. (It has since been amended to reduce that density to one unit per acre.) Land within the Village Residential District may be used for multi- family. Footnote 12 provides. in relevant part that: "If multi -family structures are selected to attain the maximum density allowed, the proposed project shall be subject to the minimum open space requirement found in Section 8.5 (Planned Residential -Development), and to the site plan review requirements of Section 8.3." Footnote 14 specifically. provides: he diTrlensional criteria dernib- in -he table below apples only to detached single family development. Multi -family structures developed in this district shall be subject to all criteria applicable to multi -family developments as stated in Section 8.5. However, in no instances shall the bonus density subsections of Section 8.5 apply in the Village Residential District." Section 8.5 provides as to open space in relevant part: "Usable Open Space: Usable Open Space shall be defined as the. part or parts of land within the PRD which are reserved for permanent open space. This space shall exclude parking areas, but include required setbacks and walkways. The usable open space shall be open an unobstructed to the sky; however; trees, planting, arbors, flagpoles, sculptures, fountains, swimming pools, atriums, outdoor recreational facilities and similar objects shall not be considered obstructions. (1) For subdivision PRD's the minimum usable open space requirements shall be 35% of the toial parcel area; and no more than 25% of the total amount of required usable open space shall be wetland. (2) - For site planned PRD's, the minimum usable open space requirements shall be 50% of the total parcel area; and no more that 25% of the total required usable open space shall be wetland." Section 8.5 also requires a 50 foot buffer between w;wgJ t lworlia-ufdovarrocresyW kpinlJC J, URBELis, FmDsTEEI. $ BAIL.IN, LLP Robert J. Halpin, Town Manager North.Andover / Re: Boston Hill Zoning December8, 1998 f . . P age 2 structures and a 50 foot buffer zone from the parcel boundary to any structure located within a PRD Development. Under the Village Residential District Bylaw, therefore, a set aside of 50% as open.space is required for multi -family development. The Growth Management Bylaw, which was adopted in 1996, provided specific exemptions from the Growth Rate Limit and Development, Scheduling of its provisions. At issue .here is subsection (e), which provides: Development projects which voluntarily agree to a minimum 40% permanent reduction in density, (buildable lots), below the density, (buildable lots), permitted under zoning and. feasible. given the environmental conditions of:the tract, with the. surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection. We read this provision as requiring, not only a.40% permanent reduction in the density of a project , but a set aside of 10 acres for open space. Because the underlying zoning requires 50% set aside for open space, the 10 acres must be deemed to be in addition to that required by the underling Village Residential zoning -for multifamily. As construed and applied, to this project, we understand that the- developer is claiming that the amount of set aside for open space is excessive. It must be recalled. that exemption (e) is applicable to many kinds of development, many of which do not call for the set aside for any open space. It may be that the Town wants to have the Planning Board consider an amendment to this provision as to developments, which already. require open space set asides for the underlying development. The only other alternative is for the developer.to seek a variance from the application of the additional 10 acres from the Zoning Board of Appeals. Please feel free to contact. me if you have any questions or require any further information. Very truly yours, T_1� TJU:rg Thomas J. L11belis cc: Kathleen Bradley Colwell, Town Planner William J. Scott, Director ,/D. Robert Nicetta, Building Commissioner w:1wpS I\wod;\n•andan�m'ropUxfouf2JEY r