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HomeMy WebLinkAboutMiscellaneous - 1600 OSGOOD STREET 4/30/2018 (8) Ia ��� ❑Var ❑Sp n Plndin J S� nQ4UB A � pen1 .. Application filed on• -, Nearing duc on: Decision due on: i _�L�� J'� �I S �'� { � - � � �_� � C � C� i I L��/�/(.'tri� Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi Ill,Esq.Chairman tNORTH qti o t� o ; Ellen P.McIntyre, Vice-Chairman 32 �,�`. °'e 0 Associate Members Richard J Byers,Esq.Clerk o Michael P.Liporto D.Paul Koch Jr.,Esq. # * Doug Ludgin Allan Cuscia Deney Morganthal 4 Zoning Enforcement Officer �S< SSACHUS` 9 Gerald A.Brown Legal Notice North Andover Board of Appeals Notice is hereby given in accordance with M.G.L. 40A that the Zoning Board of Appeals will hold a public hearing at the Town Hall at 120 Main Street,North Andover, MA on Tuesday, June 23rd, 2015 at 7:30 PM to all parties interested in the application of Osgood Solar LLC, located at Osgood Landing 1600 Osgood Street North Andover, MA 01845 (Map 34 Parcel 17)the Property,whereby the applicant is requesting a Finding(s) as a party aggrieved from a Building Commissioner's determination(s) dated March 24, 2015 to the North Andover Planning Board for the Property that is subject to the OSGOD Zoning Bylaw and located within Osgood Smart Growth Overlay Zoning District, with respect to the following: 1. Section 17.3.2 -Underlying Zoning as to the Property, that: the term"site" (a term that is undefined by the Zoning Bylaw) is not defined to mean"Lot" (a term that is defined by the Zoning Bylaw), and further that the OSGOD Section of Zoning Bylaw contemplates multiple"Projects" on a Lot. 2. Section 17.6.3.2 As-of-Right Uses upon Plan Approval by the Plan Approval Authority within the Business Opportunity Zone located within Osgood Smart Growth Overlay Zoning District,that: the Building Commissioner erred in applying Section 17.6.1.2 and further,that"manufacturing" includes renewable or alternative energy manufacturing such as solar generating facilities as an As-of-Right use. 3. Section 17.6.3.3 Uses Allowed by Special Permit within the Business Opportunity Zone located within the Osgood Smart Growth Overlay Zoning District by Plan Approval Special Permit issued by the Plan Approval Authority as Special Permit Granting Authority,that: the Building Inspector erred in his determination that that the Solar Photovoltaic System consisted of an application for Special Permit when in fact it was an application for OSGOD Plan Approval by pursuant to section 17.6.3.2 as an As - of-Right Use. 4. Section 17.6.4 Prohibited Uses with respect to the Business Opportunity Zone located within Osgood Smart Growth Overlay Zoning District that: the Building Inspector erred in his determination that solar energy generating facilities are not expressly allowed and therefore a Prohibited Use; 5. Section 4.133 (1 lb) in the Industrial 2 Zoning District and Section 17.6.3.2. -that: "manufacturing"as it relates to solar energy generating facilities is not limited in any way to preclude the transmission of all or any portion of the energy being generated for use off of the Property. The applicant refutes the Building Commissioner's Determination(s) dated March 24, 2015 to the North Andover Planning Board. The Applicant's proposal is for the construction of a 6 megawatt t Town of North Andover ZONING BOARD OF APPEALS Albert P.Man---i III,Esq.Chairman NORTH qti O taco» El1enP.McIntyre, Vice-Chairman ,°`;o '•6 o Associate Members Richard J.Byers,Esq.Clerk -- io Michael P.Liporto D.Paul Koch Jr.,Esq. * Doug Ludgm Allan Cuscia * _ «4 Deney Morganthal � 'q,r.o�P"•<y Zoning Enforcement macer ass^CRUSES Gerald A.Brown Rooftop and Parking Canopy Mounted Solar Photovoltaic System. The proposed system is to consist of 19,500 Solar Modules; approximately 5,500 rooftop mounted solar modules and approximately 14,000 modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, ranging between 1.50-630 feet long. Application and supporting materials are available for review at the office of the Zoning Department located at 1600 Osgood Street, Suite 2035,North Andover, MA, during regular business hours. By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman North Andover Board of Appeals Notice is hereby given in accordance with M.G.L.40A that the Zoning Board of Appeals will hold a public hearing at the Town Hall at 120 Main Published in the Eagle Tribune on: Street,North Andover,MA on Tuesday,June 23rd,2015 at 7:30 PM to all 2015 parties interested in the application of Osgood Solar LLC, located at Os- Date of first publication June 9 good Landing 1600 Osgood Street North Andover,MA 01845(Map 34 Par- Date of second publication June 16, 2015 ce117)the Property,whereby the applicant is requesting a Findings)as a party aggrieved from a Building Commissioner's determinations)dated March 24,2015 to the North Andover Planning Board for the Property that t is subject to the OSGOD Zoning Bylaw and located within Osgood Smart Growth Overlay Zoning District,with respect to the following: North Andover Board of Appeals . 1.Section 17.3.2-Underlying Zoning as to the Property,that:the term Notice is hereby given in accordance with M.G.L.40A that the Zoning site"(a term that is undefined by the Zoning Bylaw)is not defined to mean Board of Appeals will hold a public hearing at the Town Hall at 120 Main "Lot"(a term that is defined by the Zoning Bylaw),and further that the OS- Street,North Andover,MA on Tuesday,June 23rd,2015 at 7:30 PM to all GOD Section of Zoning Bylaw contemplates multiple"Projects"on a Lot. parties interested in the application of Osgood Solar LLC, located at Os- 2. Section 17.6.3.2 As-of-Right Uses upon Plan Approval by the Plan good Landing 1600 Osgood Street North Andover,MA 01845(Map 34 Par- Approval Authority within the Business Opportunity Zone located within cell 7)the Property,whereby the applicant is requesting a Finding(s)as Osgood Smart Growth Overlay Zoning District,that:the Building Commis- a party aggrieved from a Building Commissioner's determination(s)dated i sioner erred in applying Section 17.6.1.2 and further,that"manufacturing" March 24,2015 to the North Andover Planning Board for the Property that includes renewable or alternative energy manufacturing such as solar gen- is subject to the OSGOD Zoning Bylaw and located within Osgood Smart erating facilities as an As-of-Right use. Growth Overlay Zoning District,with respect to the following: 3.Section 17.6.3.3 Uses Allowed by Special Permit within the Business 1.Section 17.3.2-Underlying Zoning as to the Property,that:the term Opportunity Zone located within the Osgood Smart Growth Overlay Zon- "site"(a term that is undefined by the Zoning Bylaw)is not defined to mean ing District by Plan Approval Special Permit issued by the Plan Approval "Lot"(a term that is defined by the Zoning Bylaw),and further that the OS- Authority as Special Permit Granting Authority,that:the Building Inspector GOD Section of Zoning Bylaw contemplates multiple"Projects"on a Lot. erred in his determination that the Solar Photovoltaic System consisted of 2. Section 17.6.3.2 As-of-Right Uses upon Plan Approval by the Plan an application for Special Permit when in fact it was an application for OS Approval Authority within the Business Opportunity Zone located within GOD Plan Approval by pursuant to section 17.6.3.2 as an As-of-Right Use. Osgood Smart Growth Overlay Zoning District,that:the Building Commis- 4.Section 17.6.4 Prohibited Uses with respect to the Business Opportu- sioner erred in applying Section 17.6.1.2 and further,that"manufacturing" nity Zone located within Osgood Smart Growth Overlay Zoning District that: includes renewable or alternative energy manufacturing such as solar gen- the Building Inspector erred in his determination that solar energy generat- erating facilities as an As-of-Right use. ing facilities are not expressly allowed and therefore a Prohibited Use; 3.Section 17.6.3.3 Uses Allowed by Special Permit within the Business 5. Section 4.133 (11 b) in the Industrial 2 Zoning District and Section Opportunity Zone located within the Osgood Smart Growth Overlay Zon- 17.6.3.2.-that:"manufacturing"as it relates to solar energy generating fa- ing District by Plan Approval Special Permit issued by the Plan Approval cilities is not limited in any way to preclude the transmission of all or any Authority as Special Permit Granting Authority,that:the Building Inspector portion of the energy being generated for use off of the Property. erred in his determination that the Solar Photovoltaic System consisted of The applicant refutes the Building Commissioner's Determination(s)dat- an application for Special Permit when in fact it was an application for OS ed March 24,2015 to the North Andover Planning Board.The Applicant's GOD Plan Approval by pursuant to section 17.6.3.2 as an As-of-Right Use. proposal is for the construction of a 6 megawatt 4.Section 17.6.4 Prohibited Uses with respect to the Business Opportu- Rooftop and Parking Canopy Mounted Solar Photovoltaic System.The nity Zone located within Osgood Smart Growth Overlay Zoning District that: proposed system is to consist of 19,500 Solar Modules; approximately the Building Inspector erred in his determination that solar energy generat- 5,500 rooftop mounted solar modules and approximately 14,000 modules ing facilities are not expressly allowed and therefore a Prohibited Use; mounted on structures approximately 39 feet wide comprised of approxi- 5. Section 4.133 (11 b) in the Industrial 2 Zoning District and Section mately 21 rows,ranging between 150-630 feet long. 17.6.3.2.-that:"manufacturing"as it relates to solar energy generating fa- Application and supporting materials are available for review at the of- cilities is not limited in any way to preclude the transmission of all or any fice of the Zoning Department located at 1600 Osgood Street,Suite 2035, portion of the energy being generated for use off of the Property. North Andover,MA,during regular business hours. The applicant refutes the Building Commissioner's Determination(s)dat- By order of the Board of Appeals ed March 24,2015 to the North Andover Planning Board.The Applicant's Albert P.Manzi III,Esq.,Chairman proposal is for the construction of a 6 megawatt ET-6/9,6/16/15 Rooftop and Parking Canopy Mounted Solar Photovoltaic System.The proposed system is to consist of 19,500 Solar Modules; approximately 5,500 rooftop mounted solar modules and approximately 14,000 modules mounted on structures approximately 39 feet wide comprised of approxi- mately 21 rows,ranging between 150-630 feet long. Application and supporting materials are available for review at the of- fice of the Zoning Department located at 1600 Osgood Street,Suite 2035, North Andover,MA,during regular business hours. By order of the Board of Appeals Albert P.Manzi III,Esq.,Chairman ET-6/9,6/16/15 Stamps can be purchased: ® Online at usps.com/stamps ® By phone vial 800 STAM P-24 ® By mail/fax order through the UNITEDSTATES USA Philatelic catalog POST13L SERVICE® Follow us on: ® tacebook.com/USPSstamps ® Twitter: @USPSstamps Postal CERTIFIED o RECEIPT r- Domestic Lrl For delivery information,visit our website,at www.usps.com". 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Ln Ucp ru ru Postage $ p Q, t CD 0 Certified Fee r 2 �� .S, p `! ���/Postmark Cl Return Receipt Fee ' �V d: p (Endorsement Required) / ��I Here � w 0 Restricted Delivery Fee p (Endorsement Required) r" j, `7 r-oi Total Postage&Fees $ , ru :21 sent To Commonwealth of Massachusetts Street&Apt.Nr90-cambfidge-street----------------------------------- o� orPoB------BOStQU,MAD.22Q2----------------City state,ZIA4 P Form 3800,July 2014 See Reverse for Instructions CertifiedMailservice provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and •A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, ■A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service's for a specified period. this USPS®-postmarked Certified Mail Important Reminders: receipt to the retail associate,who will ■You may purchase Certi6d Mail sere a with provide a duplicate return receipt for no additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides ServiceO,or Priority MajIO service. delivery to the addressee specified by name, ■Certified Mail service is not available for or to the addressee's authorized agent. international mail. 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Article Number rrransfer from service label) ?014 2120 0000 8228 525? 1' PS Form 3811,February 2004 Domestic Return Receipt 102SM-MMAMn UNrrED STATESW6W68NViCE First-Class Mail 040 CX2:1+ Postage&Fees Paid USPS Permit Na,G-90 • Sender: Please print your name, address, and ZIP+4 in this box • Town of North Andover Zoning Board ofAppenis 1600 Osgood Street-Suite 2035 North Andover, Ma 01845 ��llj�llt{:1t'{:II I1•ii wlI{iFfi�i{}i{ {•1,1111{#1{Ii}�"11' VF . { 1I{�1 {' ! { 1'11"'l' � 1 Postal CERTIFIED o RECEIPT ru Domestic Mail Only Ir Fora U-1 delivery • F ,visit our website m USE ru ru Postage $ co _ Certified Fee 3 C3 _Postmark p Retum Receipt Fee p (Endorsement Required) O Restricted Delivery Fee 1 r O (Endorsement Required) t� o� � Total Postage&Fees rtj Sent To r �- 120-Main Str��t__=___I.._..__ ----•-------------------- C3 or PO xNo.o., North Andover, MA 0184 _________________ or PO Box No. r` ---------------------------------------------------------- City,State,ZIP+4 PS :.0 Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. i assistance.For an electronic return receipt, ■A record of delivery(including the recipient'➢ see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail Important Reminders: receipt to the retail associate,who will P provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package Restricted deliveryservice,which provides Service®,or Priority Mail®service. delivery to the adressee specifieby name, ■Certified Mail service is not available for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is not available for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically •To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.if you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office—for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt,attach PS Form 3811 to your IMPORTANT•.Save this receipt for your records. PS Form 3800,July 2014(Reverse)PSN 7530.02-000-9047 i SENbER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Si tune item 4 if Restricted Delivery is desired. / ❑Agent X 11 Print your name and address on the reverse ❑Addressee so that we can return the card to you. B. Reve by(Printed Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, �� or on the front if space permits. V 1. D. Is delivery address differedf 1 1:1 Yes 1. Article Addressed to: C' If YES,enter delivery address below: ❑No Town of Nor>Ln Andover 120 Main Street North Andover, MA 01845 3. Service Type ❑Certified Mail ❑Express Mail ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. - 7 Yes 2. Artic (Tran PS Domestic Return Receint �ro54F-n�-nn-i Fan UNITED STATES P05TK7 .GE4VICE First-Class Mall t s: USPS e&Fees Pald ,.••, "„ IVA "-I Permit No.G-10 • Sender: Please print your narne, address, and ZIP+4 In this box • T3 •r r r 7 Postal s , p RECEIPT Domestic Mail Only 0 Er Ln ro • OFFIC-1AL u s F- 7 , ru CU Postage $ v Certified Fee MA 07 X3.3 �ti O Return Receipt Fee 0 Postmark p� C3 (Endorsement Required) Z Here A,� Restricted Delivery Fee to C3 (Endorsement Required) R ru ra Total Postage&Fees s . ru sent ro North eye., 'Zc�--- C _____&Apt. 0 Street or PO BoxNohlladelphia, PA 19103 City State.ZIP+4-------------- -------- :�� -1 Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or atterned Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, ■A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS postmarked Certified Mail receipt to the retail associate,who will Important Reminders. provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides Service®,or Priority Mail®service. delivery to the addressee specified by name, ■Certified Mail service is not available for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is not available for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office"for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt,attach PS Form 3811 to your IMPORTANT:Save this receipt for your records. PS Form 3800.JuIV 2014(Reverse)PSN 7530-02-000-9047 comPLETE THIS SECTION . DELIVERY ■ Complete items 1,2,and 3.Also complete A. Signature , item 4 if Restricted is desired. ■ Print your name and address n the reverseXgent Me,p3 ❑Addressee so that we can return the card to you. B. Received b ed ame) a elivery ■ Attach this card to the back of the mailpiece, ex�j' or on the front if space permits. D. Is delivery d�lress different from item 1? ❑YX 1. Article Addressed to: If YES,en r deliverys Ib2ouq0i�❑N6 North Andover 2004 LLC 1735 Market Street,Suite A400 Phiw.ielphia, PA 19103 3. Service Type J. ❑Certified Mail ❑Express Mail ❑Registered ❑Return Receipt for Merchandise -- ❑Insured Mall ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7014 2120 0000 8228 5905 (Transfer from service(abeq .PS Form 3811. February 2004 Domestic Return Receipt 02595-02-M-1540 UNITED STATES POSTAL SERVICE First-Gass Mail Postage&Fees Paid USPS / Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • ;;35 Postal CERTIFIED o . t.rt Domestic Mail Only CC) For delivery information,visit our� I r - L at I SE ni ! ru Postage $ to Certified Fee 0 � Postmark O Return Receipt Fee Q (Endorsement Required) �O'Hare C3 Restricted Delivery Fee Q (Endorsement Required) ��� \01 "' � y Total Postage&Fees r ru Sent To / i 1635 Osgood Street________________ Street ----------_ -------------- ------- C3 orPosoxft! orth Andover, MA 01845 -cny"siaie;zia+a ------------------------------------------------------------ Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier fbr your maWece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, ■A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders: provide a duplicate return receipt for no •You may purchase Certified Mail service with additional fee. First-Class Mail°,First-Class Package -Restricted delivery service,which provides Service ,or Priority Mail•service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is notavailable for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,'or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office'for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Retum deposit the mailpiece. Receipt attach PS Form 3811 to your IMPORTAIN111 Save this receipt for your records. Ps Form 3800,duly 2014(Reverse)PSN 7530-02-000-9047 1 SENDER: COMPLETE THIS SEC TION COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete' 'A. ign re item 4 if Restricted Delivery is desired. Agent 01 Print your name and address on the reverse ❑Addressee so that we can return the card to you. B ceived Printed Name) C. ate off)eIivgpj ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Wdelivery address different from item1? s 1. Article Addressed to: � ��/, If YES,enter delivery address below: ❑ o BEM Realty ` �la✓1 1635 Osgood Street North Andover, MA 01845 3 Service Type Certified Mail 0 Express Mail ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7014 2120 0000 8228 5875 (Transfer from service label) PS Form 3811, February,')04 Domestic Return Receipt 102595-02-M-1540 UNITED STATE&pq!Q �VICE First-Class Mail Postage ostae&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • Town of North Andover Zoo irg :.3oard of App2als iuDJ Osgood Street-Suite 2035 iso;•"1�.,�,:�..,;; :,:::is t�-;5 Postal oRECEIPT CERTIFIED MAIL u) Domestic Mail Only .n aFor delivery Lr) �o I � 1:0 0 ru ru Postage $ o M CO Certified Fee 'iO r O Return Receipt Fee �P d Postmark 0 (Endorsement Required) Here.S 0 00 Restricted Delivery Fee / h (Endorsement Required) I'Ll a Total Postage&Fees $ , n,l Sent To 1591 Realty-1-r-st a 1S��QoQ�_ reet •----------y----------- - orPoBoxNo. North Andover, MA 01845 City,State,Zif44 PS Form 3800,July 2014 See Reverse for Instructions i Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, ■A record of delivery(including thyecipient's� see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders. provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Maile,First-Class Package -Restricted delivery service,which provides Service ,or Priority WHO service. delivery to the addressee specified by name, ■Certified Mail service is not available for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is not available for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office'"for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt;attach PS Form 3811 to your IMPORTANT:Save this receipt for your records. Ps Form 3800,July 2014(Reverse)PSN 7540.02-000-9o47 SENDER: COMPLETE THIS SECTION COMPLETE THIS SECT I ION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. X ❑Agent • Print your name and address on the reverse < _ ❑Addressee so that we can return the card to you. B, Received by(Printed Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: D, Is delivery address different from item 1? 11 Yes A4If YES,enter delivery address below: ❑No 139' _'ealty Trust 1591._sgood Street North Andover, MA 01845 3. Service Type ❑Certified Mall ❑Express Mail ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7014 2120 0000 8228 5165 (transfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES eT¢1l;'SVICE First-Class Mail Postage&Fees Paid USPS "'11 IVA i r;: Permit No.G-90 • Sender: Please print your name, address, and ZIP+4 in this box • Town of North Andover Zoning Board of Appeals 1600 O-;good Sweet-Suite 2035 ?North Andover, Ma 01845 Postal CERTIFIED o RECEIPT w Domestic Ln r-1 For delivery information,visit our website at www.usps.com". Lrl ro ti RJ Postage $ 4 T 3 Certified Fee ' O � O Return Receipt Fee D L Postmark. O (Endorsement Required) ;qty` Here �C,`Restricted Delivery Fee O (Endorsement Required) / ru ? Total Postage&Fees rlJ centro Service Burry, r-1 -Strut&Apt.N6:,�4��3sg©©(�'rJtr22t--------"------'---------------- ---- C3 or PO Box No. r` -------- -----NQrth.Aad.Quer,&LA D184,�.-------------------- City,State,ZIP+4 PS Form :.. July 2014 Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and •A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery, assistance.For an electronic return receipt, ■A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a t5pecified pernd. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders: provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package Restricted delivery service,which provides ServiceO,or Priority MaIIO service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. International mail. Include applicable postage to cover the ■Insurance coverage is notavailable for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically •To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office-for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt,•attach PS Form 3811 to your IMPOiiMARr Save this receipt for your records. PS Form 3800,July 2014(Reverse)PSN 7530-02-000.9047 i COMPLETE •N COMPLETE THIS SECTIONON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse X ❑Addressee so that we can return the card to you. ed=j(Printed Name) C. Date of Delive ■ Attach this card to the back of the mailpiece, 61106 ( or on the front if space permits. D. Is delivery address different from item 1? es 1. Article Addressed to: If YES,enter delivery address below: ❑No Service Burry, LLC 1503 Osgwd Street North Andover, MA 01845 3. Service Type ❑Certified Mail ❑Express Mail ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7014 2120 0000 8228 5158 (Transfer from service fabeq PS Form 3811.February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES PpsTAtx SFi2YICE First-Class Mail yE;,} }�sY rl Postage&Fees Paid USPS Permit No.G-10 • Sender. I�lease print your name, address, and ZIP+4 in this box • Town of North Andover Zoning Board of Appeals 1600 Osgood Street-Suite 2035 Not th AnJover. Ma 01845 ' • CERTIFIED o RECEIPT ru Domestic Mail Only ra cc information, FL USE ru ru Postage $ a 4 Certified Fee r 5-9 O ReturnReceipt Fee Postmark C3 (Endorsement Required) �� Here C3 Restricted Delivery Fee (Endorsement Required) 10 ni r-1 Total Postage&Fees ru I- Sent To 1627 Realty Trust Stieef&Apt.No.,1627 QS �oct�`Creet - - � or PO Box No. b 3 --------------------Neft4-And-wer,-MA-01sa5------------------------ City,State, IP+4 PS Form :00 Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery df attemptdd_., Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, •A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders: provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides Service ,or Priority Mail service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is not available for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office-for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt;attach PS Form 3811 to your IMPORTANT:Save this receipt for your records. SENDER: • • • OH• ■ Complete items 1,2,and 3..Also compete . Sign re item 4 if Restricted Delivery is desired. an ■ Print your name and address on the reverse ❑: ddre ee so that we can return the card to you. B. Received by( d Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 1? 13 Yes 1. Article Addressed to: j� If YES,enter delivery address below: ❑No 1627 Realty Trust 1627 Osgood Street North Andover, MA 01845 3. Service Type ❑Certified Mail 0 Express Mail ❑Registered ❑Return Receipt for Merchandise. ❑Insured Mall ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number (transfer from service label) 7 014 2120 0000 8228 5172 PS Form 3511.February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE First-Gass Mail Postage&Fees Paid LISPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • Town of North Andover Zoning Board of Appeals Osgood S;Teet-Suite 2035 0:-' H:luover, Ma0]g'5 TM Postal CERTIFIED o RECEIPT * Domestic Mail Only Lr) Ln For delivery website at information, UAILn U , .O1 OFHC - L G: rU rU Postage $ 4 qq Certified Fee �k XiA o \ C3 + �Ptisbherk C3 Return Receipt Fee 0 (Endorsement Required) t Here; O Restricted Delivery Fee C3 (Endorsement Required) �. rqTotal Postage&Fees $ t 1 - ru Sent To -3 --------- 9.541-OSgDAd.Street -------- ----------------------- Street&'%. o., Q or PO Ba rth Andover, MA 01845 N - ---------------`-------------- - - �.........•----------- :.__, City,State,ZIP+4 PS Form :.0 Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, ■A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained 6 the Postal i receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders. provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides Service®,or Priority Mall®service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is notavailable for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.if you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office'for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt,-attach PS Form 3811 to your IMPONTAN11 Save this receipt for your records. Ps Foran 3800.JuN 2014(Reverse)PSN 7530-02-00MO47 SECTIONSENDER: COMPLETETHIS SECTION COMPLETE T141S ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse ❑Addressee so that we can return the card to you. B. ReceCed by(Printed Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from item 1? ❑Yes If YES,enter delivery address below: ❑No Mirwave Engineering CDT- 1551 0!;good orp.15510sgood Street North Andover, MA 01845 3. Service Type ❑Certified Mail C]Express Mail ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. ❑Yes 2. Articl (Trans PS Form oa t I,Feoruary 2004 Domestic Return Receipt 102595-02-M-1540. UNITED STATER`?f ,5F1 ' fiVICE First-Gass Mail ,•, I. Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print;your name, address, and ZIP+4 in this box • �p:i •}: iiri:i i i "•ivi' ° °I •i• r vs:• r• . . . . ... .... ... €rii is I � iii I �i' s I: •s r ii II � ' • CERTIFIED o RECEIPT 7 Dom6stic Mail Only M r-1 For delivery m � L USE r ru nj Postage $ s CO C3 certified Fee $�`S O Return Receipt Fee V Q' Postmark 9s C3 (Endorsement Required) D Here ip Restricted Delivery Fee I a (Endorsement Regwred) i r-q Total Postage&Fees N Sent To Red Barn I rust 0 3Yieer&Apt.i�io 2�6�'f�SgOOf Sof£2-------------------------------------- torPOB!x. o. NarthAnda.V2x.-MA-Q1B_45------------------------•- City,State,ZIP+4 PS Form :00 July 2014 Certified Mail service provides the following benefits: •A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, •A record of delivery(includA the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders: provide a duplicate return receipt for no •You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides ServiceO,or Priority WHO service. delivery to the addressee specified by name, ■Certified Mail service is not available for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is not available for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt Is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office'for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt attach PS Form 3811 to your IMPORTANT:Save this receipt for your records. Ps Form 3800,July 2014(Reverse)PSN 7530-02-000-9047 SENDER: COA4PLF 40N' COMPLETE T'41S SECTION ON DELIVERY TE THIS SE-C7 ■ Complete items 1 , r 3 Also complete A. Signatur item.4 if RestriedlJrver desired. ❑Agent ■ Print your name and:, dregtrvn the reverse X n ❑Addressee so that we can return the card to you. B. Received by( nted Name)' C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 1? El Yes 1. Article Addressed to: If YES,enter delivery address below: ❑No Red Barn Trust 1267 Osgood Street North Andover, MA 01845 3. Service Type 13 Certified Mail IZI Express Mail ❑Registered 0 Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7014 2120 0000 8228 5134 (Transfer from service/abed PS Form 3811. February 2004 Domestic Return Receipt +ngrgR.nq-mIiran UNITED STATEA. 6.b" :9u RVICE Mrst-Class Man Postgge&Pees Paid USPS Permit No.G-10 • Bender: Please print your name, address, and ZIP+4 in this box • Town of North Andover Zoning Board of Appeals 1600 Osgood Street-Suite 2035 Nosh A mover, Ma 0!845 �£!{Fl�iliji3�41171��3{�!}il`Il11I��IIftF£i1'I'11�1111'11'Ii'!''€ TM Postal CERTIFIED o RECEIPT r-9 Domestic N nl it www.usps.COM L17 L ni rU Postage $ a cc Certified Fee E:3 0184,s Return Receipt Fee , ` Postmmk9 C3 O (Endorsement Required) �(P Restricted Delivery Fee (Endorsement Required) l r r�9 Total Postage&Fees $ r r Sent ro GEzy Properties a_f1QQ_ r-R ------------ OsBoadStrzet..:----------=-------•-------------------- Street&Apt.No., 0 orPoeoxn@Jorth Andover MA 01845 r` ----------------------------------------- -- ----------- > City State,ZIP+4 'PS For :�� .. Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. T a assistance.For an electronic return receipt, ■A record of delivery(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail Important receipt to the retail associate,who will P provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides Service®,or Priority Mail•service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. International mail. Include applicable postage to cover the •Insurance coverage is not available for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,'or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is Included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office'for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt;attach PS Form 3811 to your IMPORTANT:Save this receipt for your records. Ps Form 3800,Juty 2014(Reverse)PSN 7530-02-000-9047 3 SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Si item 4 if Restricted Delivery is desired. r 0 Agent P Print your name and address on the reverse Addressee so that we can return the card to you. B. Received by(Printed Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D, Is delivery address different from item 1? 0 Yes 1. Article Addressed to: If YES,enter delivery address below: 0 No Ozzy Properties 1600 Osgood Street North Andover, MA 01845 3. Service Type 0 Certified Mail 0 Express Mail 0 Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery?(Extra Fee) 0 Yes 2. Article Number 7014 2120 0000 8228 5271 (transfer from service label) PS Form 3811.February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES ;._eKVICE First-Class Mail USES e&Fees Paid Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • Town of Norte Andover Luning Board of Appeals 1600 Osgood Street-Suite 2P'5 h Andover, Ma 01845 rlrllrr'1'lrrrrl'Ill�ilii'1'Irrlrllrrl'ri'rrl'Irrrr'fr'I'!"r1r'r Postal CERTIFIED o RECEIPT n Domestic Mail Only ru For delivery information,visit our website at www.usps.comO. Ln .01 0 F F A -L, k. 'ru rU Postage $ (a Certified Fee C3 . V 3 t+ j C3 Return Receipt Fee C3 (Endorsement Required) r Here Restricted Delivery Fee O (Endorsement Required) ru l rq Total Postage&Fees rU Sent To a J609.Dspod.5treet-------=------- •--------- Street 8 Apt. o., N ----------------------PoeoxNoNorth Andover, MA 01845 ----- --------------........ ry, ,ZIP+4 Certified Mail service provides the following benefits: •A Certified Mail receipt(this portion of the mailpiece;include applicable postage o Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipti •Electronic verification of delivery or attempted Requested,"or see a retail associate far delivery. assistance.For an electronic return re.eipt, ■A record of delivery(including the recipient's see a retail associate for assistance.Td signature)that is retained►y the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders: provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides ServiceO,or Priority WHO service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. international mail. Include applicable postage to cover the ■Insurance coverage is notavailable for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically •To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office—for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt,'attach PS Form 3811 to your IMPORTANT.Save this receipt for your records. PS Form 3800,July 2014(Reverse)PSN 7530-02-000-5047 COMPLETE •N COMPLETE THIS SECnION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Sigp item 4 if Restricted Delivery is desired. // ��' ❑Agent ■ Print your name and address on the reverse X ❑Addressee so that we can return the card to you. d. Received by(Printed Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: /a If YES,enter delivery address below: ❑No ti Mark Valer, 1609 Osgood Street North Andover, MA 01845 s. Service Type 13 Certified Mail® ❑Priority Mail Express- ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑Collect on Delivery A P.QM fAH r).11- l 11: r#-C-1 ❑Yes 2. Arti (fra PS Form oo i i,uuiy zoi s Dommtic Return Receipt UNITED STATES ICE First-Class Mail Postage&Fees Paid MA-Y32 USPS Permit No.G-10 • Sender Ablase-print your name, address, and ZIP+4® in this box* :1 C_ _ .. 035 if Vill, ' staif Service" . • o RECEIPT r—1 Domestic Mail Only rlFor delivery �O Lil � F L R! N - Postage $ 0 • CO Certified Fee ` O Postmark Q Return Receipt Fee �i� Q (Endorsement Required) _ Here Restricted Delivery Fee O (Endorsement Required)ru n r-j Total Postage&Fees I1.1 Sent To __7.7Q.Boxfor_d.Street.--------------- Street&Apt.No„ orPOBoxNo. North Andover' MA 01845 r` - - -- -------------------•---------------------•----------------•-•------ City,State,ZIP+4 Certified Mail service provides the following benefits: ■A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label). cover the return receipt service fee;and ■A unique identifier for your mailpiece. endorse the mailpiece"Return Receipt •Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. `.r assistance.For an electronic return receipt, •A record of delivej(including the recipient's see a retail associate for assistance.To signature)that is retained by the Postal receive a duplicate return receipt,present Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders: provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. First-Class Mail®,First-Class Package -Restricted delivery service,which provides ServiceO,or Priority Mail service. delivery to the addressee specified by name, ■Certified Mail service is notavailable for or to the addressee's authorized agent. international mail. Include applicable postage to cover the •Insurance coverage is notavailable for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,'or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office-for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt;attach PS Form 3811 to your IMPORTANIII Save this receipt for your record& Ps Form 3800,July 2014(Reverse)PSN 7530.02-Jen-9047 , I ' SENDER: COMPLETE THIS SECTION COMPLETE'THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Signak-• item 4 if Restricted Delivery is desired. 0 0 Agent ■ Print your name and address on the reverse ddressee so that we can return the card to you. B. Received 4(Pri ted N 9 C. to f Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. f D. Is delivery address different from item 1, es 1. Article Addressed to: If YES,enter delivery address below: o Kristen&L`-Asay Realty[ !- 770 Boxford Street North Andover, MA 01'845 3. Service Type 0 Certified Mail ❑Express Mail ❑Registered 0 Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7 014 212 0 0000 8 2 2 8 5141 (Transfer from service label; PS Form 3811. February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES. ?OvTA 'iRVICE First-Class Mail Postage&Fees Paid > 3 r°s •.c ..). ,� USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • Town nrt'a Andover Zonir )f Appeals 1600+✓.,(Yood Street-Suite 2035 Postal CERTIFIED o RECEIPT Domestic ru For delivery information,visit our website at w4w.usps.cornO. Ul ru M Postage $CIO d Certified Fee �!l �A 8.1,5.9 O 0 Return Receipt FeeP Hire t��y C3 (Endorsement Required) 2. V 0 Restricted Delivery Fee (Endorsement Required) It% ru 1 vi r-1 Total Postage&Fees is r nJ Sent To Town Of Noi-th Andovei Street&Apt/VZZD_l1[ldlClStfeet------------------ -----------------------'-- rr -POBoxNo•North Andover,-MA-01845___ City,State.Z/P+4 ............... 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Receipt,attach PS Form 3811 to your iMPORTART.Smre this receipt for your records. PS Form 3800,July 2014(Reverse)PSN 753002-OOP9047 SENDER: COMPLETE THIS SECTION COMPLETE THIS SLXT.'ON ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Signat e item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse X V ❑Addressee so that we can return the card to you. B. Received by(7trinted Nam Ir of Delivery ■ Attach this card to the back of the mailpiece, Irl or on the front if space permits. D. Is delivery address different froitem 1? 1:1 Yes 1. Article Addressed to: i/ If YES,enter delivery address below: ❑No Town of North Andover 120 Main Street North Andover, MA 01845 3. Service Type ❑Certified Mail ❑Express Mail ❑Registered ❑Return Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number (transfer from service label) 7 014 2120 11000 8228 5264 PS Form 3811.February 2004 Domestic Return Receipt 02595-02-M-1540 UNITED STATES I I 'SkkVICE First-Gass Mail Postage&Fees Paid USPS Permit No.G-10 Sender: Please print your name, address, and ZlP+4 in this box • Town of North Andover Zoning Board of Appeals 1600 Osgood Street-Suite 2035 North Andover, Ma 0 1845 Postal CERTIFIED o RECEIPT N Domestic Mail Only CO CO For delivery information,visit our webar-15-T MW111,- . -=H u7 c0 N N Postage $ 7-1 Certified Fee _ 0 4 t.Pa C7 Return Receipt Fee Q Here9 C3 (Endorsement Required) �` , .9� Restricted Delivery Fee N (Endorsement Required) N / r-;1 Total Postage&Fees N lylerMMe 1- Sent To 100 Foster Street Street&Apt No., - -- -• - --•` - ` C3 North Andover, MA 01845 or PO Box No. r%- --------------- '- -------------•-------------------------------------••----•--- ---` City,State,LPM PS Form :00 Certifie6 Mail service provides the following benefits: •A Certified Mail receipt(this portion of the mailpiece;include applicable postage to Certified Mail label), cover the return receipt service fee;and ■A unique Identifier for your mailpiece. endorse the mailpiece"Return Receipt ■Electronic verification of delivery or attempted Requested,"or see a retail associate for delivery. assistance.For an electronic return receipt, ■A record of deliveryin� din the red see a retail associate for assistance.To a g pient's receive a duplicate return receipt, signature)that is retained by the Po,�l Ppresent Service®for a specified period. this USPS®-postmarked Certified Mail receipt to the retail associate,who will Important Reminders. provide a duplicate return receipt for no ■You may purchase Certified Mail service with additional fee. 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Include applicable postage to cover the ■Insurance coverage is notavailable for restricted delivery fee and endorse the purchase with Certified Mail service.However, mailpiece"Restricted Delivery,"or see a the purchase of Certified Mail service does not retail associate for assistance. change the insurance coverage automatically ■To ensure that your Certified Mail receipt is included with certain Priority Mail items. accepted as legal proof of mailing,it should ■For an additional fee,you may request the bear a USPS postmark.If you would like a following services: postmark on this Certified Mail receipt,please -Return receipt service,which provides you present your Certified Mail item at a Post with a record of delivery(including the Office'for postmarking.If you don't need a recipient's signature).You can request a postmark on this Certified Mail receipt,detach hardcopy return receipt or an electronic the barcoded portion of this label,affix it to the version.For a hardcopy return receipt, mailpiece,apply appropriate postage,and complete PS Form 3811,Domestic Return deposit the mailpiece. Receipt attach PS Form 3811 to your IMPORTANT:Save this receipt for your records. Ps Form 3800,dory 2014(Reveres)PSN 7530-02-000-9047 i SECTIONSENDER: COMPLETE THIS •MPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Sijnet item 4 if Restricted Delivery is desired. X , n V ❑A ent ■ Print your name and address on the reverse N U ddressee so that we can return the card to you. g ecd eiv by(Printed Name) C, ate f Delivery ■ Attach this card to the back of the mailpiece, V( or on the front if space permits, D. Is delivery address different from item 1? t3 Yds 1. Article Addressed to: If YES,enter delivery address below; o Tyler Monroe 100 Foster Street North Andover, MA 01845 3. Service Type ❑Certified Mail 17 Express Mail ❑Registered ❑Return Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7014 2120 0000 8228 5882 (Transfer from service lab PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-1540, UNITED STATE.&--..,O '%L. X First-Class Mail -P $ Ir Ci2 A USPSPostage&Fees Paid Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • To,.Vn or,.,OKN c cr Or,, . Z(,,-is ';ocrcl vi Aptv,Is I Usi�c_ 2035 l Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi 111,Esq.Chairman cF No DTM q4, Ellen P.McIntyre, Vice-Chairman 3� ,!`;r *.°'6 vL Associate Members Richard J.Byers,Esq.Clerk F 4 - p Michael P.Liporto D.Paul Koch Jr.,Esq. DougLud n Allan Cuscia +� 1i > ^ + Deney Morganthal 11 Zoning Enforcement Officer �9SSgCHUS�t�y Gerald A.Brown Legal Notice North Andover Board of Appeals Notice is hereby given in accordance with M.G.L. 40A that the Zoning Board of Appeals will hold a public hearing at the Town Hall at 1.20 Main Street,North Andover, MA on Tuesday,June 23rd, 2015 at 7:30 PM to all parties interested in the application of Osgood Solar LLC, located at Osgood Landing 1600 Osgood Street North Andover, MA 01845 (Map 34 Parcel 17)the Property,whereby the applicant is requesting a Finding(s) as a party aggrieved from a Building Commissioner's determination(s) dated March 24, 2015 to the North Andover Planning Board for the Property that is subject to the OSGOD Zoning Bylaw and located within Osgood Smart Growth Overlay Zoning District, with respect to the following: 1. Section 17.3.2 -Underlying Zoning as to the Property,that: the term "site" (a term that is undefined by the Zoning Bylaw) is not defined to mean "Lot" (a term that is defined by the Zoning Bylaw), and further that the OSGOD Section of Zoning Bylaw contemplates multiple"Projects" on a Lot. 2. Section 17.6.3.2 As-of-Right Uses upon Plan Approval by the Plan Approval Authority within the Business Opportunity Zone located within Osgood Smart Growth Overlay Zoning District, that: the Building Commissioner erred in applying Section 17.6.1.2 and further,that"manufacturing" includes renewable or alternative energy manufacturing such as solar generating facilities as an As-of-Right use. 3. Section 17.6.3.3 Uses Allowed by Special Permit within the Business Opportunity Zone located within the Osgood Smart Growth Overlay Zoning District by Plan Approval Special Permit issued by the Plan Approval Authority as Special Permit Granting Authority,that: the Building Inspector erred in his determination that that the Solar Photovoltaic System consisted of an application for Special Permit when in fact it was an application for OSGOD Plan Approval by pursuant to section 17.6.3.2 as an As - of-Right Use. 4. Section 17.6.4 Prohibited Uses with respect to the Business Opportunity Zone located within Osgood Smart Growth Overlay Zoning District that: the Building Inspector erred in his determination that solar energy generating facilities are not expressly allowed and therefore a Prohibited Use; 5. Section 4.133 (1 lb) in the Industrial 2 Zoning District and Section 17.6.3.2. -that: "manufacturing" as it relates to solar energy generating facilities is not limited in any way to preclude the transmission of all or any portion of the energy being generated for use off of the Property. The applicant refutes the Building Commissioner's Determination(s) dated March 24, 2015 to the North Andover Planning Board. The Applicant's proposal is for the construction of a 6 megawatt 1 _ Town of North Andover ZONING BOARD OF APPEALS Albert P.Mand 111,Esq.Chairman f pORTFI qti Q STllo+6 O Ellen P.McIntyre, Vice Chairman Associate Members Richard J.Byers,Esq.Clerk A Michael P.Liporlo D.Paid Koch Jr.,Esq. # * Doug Ludgin Allan Cuscia Deney Morganthal Zoning Enforcement Officer etS SSACHUS y Gerald A.Brown Rooftop and Parking Canopy Mounted Solar Photovoltaic System. The proposed system is to consist of 19,500 Solar Modules; approximately 5,500 rooftop mounted solar modules and approximately 14,000 modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, ranging between 150-630 feet long. Application and supporting materials are available for review at the office of the Zoning Department located at 1600 Osgood Street, Suite 2035,North Andover, MA, during regular business hours. By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman Published in the Eagle Tribune on: Date of first publication June 9, 2015 Date of second publication June 16, 2015 Town of North Andover ZONING BOARD OF APPEALS Albert P.rsfanzi III,Esquire,Chairman Ellen.P.McIntyre,Vice-Chair D.Paul Koch Jr..Esquire Doug Ludgin 4, Allan Cuscia 0 2015 SEP 8 PHI 2: 3 1 Associate Members _r, 4Town Clerk,Time Stamp Deney Moraauthal Nathan Weinreich Alexandria A.Jacobs,Esquire UN'%%n M1 OSGOOD SOLAR,LLC AGGREIVED PARTY V NORTH ANDOVER BUILDING INSPECTOR DECISION PETITION 2015-003 I. INTRODUCTION' The North Andover Zoning Board of Appeals hereinafter("Board")finds in favor of Osgood Solar LLC,hereinafter the("Aggrieved Party")as to five(5)requests for findings by and for Osgood Solar,LLC and overturns the Building Inspector's Determination dated on or about March 24,2015 with respect to a proposed Solar Photovolic System as filed before the Planning Board pursuant to the North Andover Zoning Bylaw and MGL Ch.40A and or MGL Ch 40R. Forthwith,the Building Inspector shall comport previous determinations made on or about March 24,2015 with this Decision and its findings contained herein;the Board further instructs the Building Inspector to reasonably inform the Planning Board also known as the Plan Approval Authority hereinafter("PPA")pursuant to section 17 of the North Andover Zoning Bylaw,of the MGL Ch 40A time standards for Plan Approval,with respect to the Aggrieved Party's Plan Approval Process as stated within section 17 of the Osgood Overlay Smart Growth District also known as Osgod of the Zoning Bylaw and used interchangeably herein. The North Andover Board of Appeal's authority is pursuant to MGL Ch 40A and the North Andover Zoning Bylaw, and all applicable legal authority thereto. 11. PROCEDURAL HISTORY: The North Andover Board of Appeals held public hearings at the Town Hall, 120 Main Street, North Andover,MA on Monday June 28,2015 and Tuesday August 25,2015 at 7:30 PM with respect to the Aggrieved Party's application of Osgood Solar,LLC for the property located at 1600 Osgood Street(Map 34 Parcel 17), located within the Business Opportunity Zone of the Osgood Smart Growth Overlay Zoning District also known as"Osgod"pursuant to section 17 of the Zoning Bylaw and also located within the underlying Industrial 2 Zoning District,North Town of North Andover - ZONING BOARD OF APPEALS Albert P.iVlanzi 111,Esquire,Chairman Ellen P.McIntyre,vice-Chair D.Paul Koch Jr.,EsquireF 14ORT� Doug Ludgin t�Ess, Allan CusciaQ ss Associate Members & a Deney it=3or¢autha[ Nathan Weinreich �'q "�•>C�,.pa��, Alexandria A.Jacobs,Esquire SS q US Andover,MA 01845.Legal notices were sent to all the certified abutters provided by the Town of North Andover Assessor's Office,and were published in the Eagle-Tribune, a newspaper of general circulation in the Town of North Andover,June 9,and June 16"2015. The public hearing opened on June 28,2015 and closed on August 25,2015. The Board notes no abutters were present to be heard at the public hearing(s). Voting in favor of the Aggrieved Party's five (5)findings were:Albert P.Manzi III,Esquire,Allan Cuscia,Doug Ludgin,Nathan Weinreich. Voting against: D.Paul Koch Jr.,Esquire.Present but not voting:Alexandria A. Jacobs, Esquire (Associate) III. BACKGROUND: The Aggrieved Parry proposes to construct a Solar Photovoltaic System within the borders of its 169 acre+/-property within the Business Opportunity Zone of the Osgod Overlay District pursuant MGL ch 40R with respect to section 17 of the North Andover Zoning Bylaw know as "Osgod",the purpose of which is to"encourage smart growth in accordance with the purposes of G.L. ch 40X"as enumerated in section 17.1 of the Zoning Bylaw as adopted at the 2007 Town Meeting. The proposed Solar Photovoltaic System is also located within the underlying Industrial 2 Zoning District. The property is also located within the underlying Industrial 2 Zoning District that is regulated pursuant to section 4.133-1 lb of the North Andover Zoning Bylaw.At the 2010 Town Meeting a zoning change was adopted to include the use of solar and alternative energy uses on properties within the Industrial 2 District with respect to parcels being twenty(25)or more acres or 10 or more acres pursuant to a Special Permit by the Special Permit Granting Authority. The record evidence suggests that the Aggrieved Party's property is the only property in town known to the Board that comports with the aforementioned 2010 Town Meeting zoning change limiting solar and alternative energy uses to the Industrial 2 District both as to use and to dimensional size. The 169+/-acre property is located on the Northwesterly section of Town bordering Haverhill, boarded by route 125, interstate 495,with the MBTA Haverhill line crossing in proximity but with no train stop. The property's main structure is approximately 2 Million square feet with various adjacent structures. The main structure houses various tenants including the North Andover Community Development Office which in turn houses,the Planning,Building, Conservation,Health,and Zoning Departments for the Town of North Andover. Historically,the property formerly housed the former giant Western Electric Company and subsequent AT&T/Lucent Companies,and the property has housed industrial and commercial that served three Page 2 of 11 PETITION:2015-003 Town of North Andover ZONING BOARD OF APPEALS Albert P.'Manzi 111,Esquire,Chairman Ellen P.;:iclntyre,Vice-Chair D.Paul Koch Jr.,Esquire & osza€r DougLudgii4 Allan Cuscia Associate Members � � T Dency Morganthal e ^� Nathan Weinreicla Alexandria A.Jacobs,Esquire SS�cc�LFS= working shifts while under prior ownership. The property has been under new ownership since on or about 2007 and has been leased and fitted for tenants as part of a redevelopment plan. IV.APPLICATION TO THE PLANNING BOARD AKA PLAN APPROVAL AUTHORITY: On or about March 2015 the Aggrieved Parry submitted a Solar Photovoltaic System plan to the Planning Board a/k/a The Plan Approval Authority("PPA")pursuant to and in accordance with Section 17 of the Osgood Overlay District of the Zoning Bylaw(Osgod)for the purpose of Plan Approval(which is akin to site plan approval)as an exempted and allowed use pursuant to MGL ch.40A sec 3, and not for the purposes of the issuance of a Special Permit approval,which contemplates a higher standard of review for non exempt uses,but is notably allowed by Special Permit pursuant to section 4.133-11 b. The Aggrieved Party proposed to the PPA to construct a 6 megawatt rooftop and parking canopy mounted Solar Photovoltaic System.The proposed system is to consist of 19,500 Solar Modules; approximately 5,500 rooftop mounted solar modules and approximately 14,000 modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows,ranging between 150-630 feet long by right as an exempted use pursuant to MGL Ch.40A sec 3. The PPA sought a determination of the Building Inspector who made findings,relied upon by the PPA,as to the proposed project with respect to use, site,manufacturing,and the choice of zoning by and between the 40R overlay district and the underlying zoning pursuant to MGL ch. 40A as articulated in a letter to the Planning Board dated on or about March 24,2015. V. EVIDENCE SUBMITED: Prior to the close of the Public Hearing, the Board takes note of the oral arguments presented at the public hearing and documentary evidence thereto for consideration as listed in Exhibit "A" attached hereto and incorporated by reference herein and takes notice of Massachusetts General Law and applicable legal authorities. VI. DISCUSSION: a. DEVELOPER'S ZONING ELECTION: Section 17.2 Definitions of the Osgod Smart Growth Overlay zoning district sets forth forty-five (45)defined terms to be used in accordance with the application of section 17 as noted therein, "For the purposes of this Section 17.0,the following definitions shall apply." See Section 17.2 North Andover Zoning Bylaw Page 2 The Framers of section 17 of the Zoning Bylaw chose to use the term"shall"with respect to the Definitions thereby imposing a duty upon the PETITION:2015-003 Page 3 of l l _ _ I Town of North.Andover - ZONING BOARD OF APPEALS Albert P.Manzi III,Esquire,Chairman Ellen P.Mclntwe,Vice-Chair D.Paul Koch Jr.,Esquire Doug LudLogin �4etttce rp�a�p�.. Allan Cuscia to Associate'Members Denev Morsanthal Nathan Nveinreich Alexandria A.Jacobs,Esquire �SSgClaiiS Definition's application and/or interpretation as to the meaning of a particular term within the forty-five defined terms. Pursuant to section 17.3.2 "The OSGOD is an overlay district superimposed on all underlying zoning districts.As required by the Enabling Laws,the regulations for use,dimension,and all other provisions of the Zoning Bylaw governing the underlying zoning districts) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s)."l As stated therein,the Osgod overlay zoning is superimposed over the underlying zoning and the underlying zoning remains in full force and effect,and the developer: "may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning diStriCt(S)"2 The use of the word "may"3 as oppose to "shall,4 with respect to a developer(s) election contained within section 17.1.2 is express so as not to impose an unreasonable"duty"upon the developer to make an express election with respect to the overlay district or the underlying zoning district in contemplation of a"site". Had the framers of sectionl7 intended for a developer(s)zoning district preference election to be final and/or irrevocable,the Zoning Bylaw or defined terms therein would have expressly stated so,or the term"site"would have been defined within section 17.2 Definitions. The Board finds"site"is not defined by section 17 for the purposes of the Osgood Smart Growth Overlay District or the Zoning Bylaw. Due to the nature and purpose of the Smart Growth Overlay District in contemplation of the underlying zoning which remains in full force and effect,it is reasonable to conclude the framers of the Zoning Bylaw intended for a flexible permitting scheme within the context of the statutory 40R overlay zoning and did not intend to impose an unreasonable duty of zoning selection upon 1 Section 17.3.2 North Andover Zoning Bylaw. 2 Section 17.3.2 North Andover Zoning Bylaw 3 may,vb, 1.Is permitted to-Black's Law Dictionary 7`"Edition Bryan A.Garner Editor in Chief a shall,vb. I.Has a duty to;more broadly,is required to—Black's Law Dictionary 7t'Edition Bryan A.Garner Editor in Chief Page 4 of II PETITION:2015-003 Town of North Andover ZONING BOARD OF APPEALS .filbert P.Manzi 1.11,Esquire,Cbairenan Ellen P.McIntyre,Vice-Chair � D.Paul Koch Jr.,Esquire & �o�r� D ouar 1.udgiu QGCq 4tP 6 Allan Cuscia 0� 3S Associate Members � 'r Deney Morgauthal Nathan Weinreich Alexandria A.Jacobs,Esquire �S A U5�� a developer thereby irrevocably binding a developer as to their final selection. The framers chose the phrase "may elect"as opposed to"shall elect"within section 17.3.2. The Board finds that"site"remains undefined within section 17.2 Definitions. The Board finds and no creditable supportive evidence and or legal authority was submitted by the Building Inspector and or Community Development Director to support the Building Inspector's determination of March 24,2015. The Board now relies on the definition of"site"as defined by Black's Law Dictionary 7h Edition Bryan A. Garner Editor in Chief whereby"site"is define as: "1._A-place or location• esp. a piece of property set aside for a specific use." . The Board is not persuaded by the position put forth by the Building Inspector and or Community Development Director that pursuant to section 17 a developer(s)is effectively irrevocably bound by a single zoning district selection in contemplation of a"site"for a building permit; The Board finds no creditable supportive evidence,or legal authority was submitted on record to support that position. The Board finds the evidence,or lack thereof,suggests that the PPA did not comport with the procedures set forth within section 17.13.2 Circulation to Other Boards,with respect to a single permitting under sect 17 by the developer as to the Act Theater application. The Board does not credit the unsupported argument presented by the Community Development Director in favor of the denial of an exempted use protected by MGL Ch 40A sec 3 and or the definition of Manufacturing as to Solar use.No evidence was submitted in support of reasonable regulation as to Solar by and for the Health Safety and Welfare of the Town within the Zoning Byalaw justifying the Building Inspector's finding. The Board credits,MGL Ch. 40A sec 9b, and MGL Ch. 184 sec 23C along with MGL Ch. 25A sec 3 and 10 with respect to Solar use and or Manufacturing. The Board credits the Aggrieved Party's persuasive argument that for the purposes of Section 17 of the Zoning Bylaw with respect to Overlay District applications for permits, a"site"(a term that is undefined by the Zoning Bylaw)is not defined to mean"Lot" (a term that is defined by the Zoning Bylaw),and further that the OSGOD Section of Zoning Bylaw contemplates multiple "Projects"on a Lot.We also credit the evidence submitted as to the number of building permits issued since 2007 with respect to the underlying Industrial 2 District for the property as compelling and persuasive to reach the finding herein. Section 17.13.3 states: The PAA shall hold a public hearing for which notice has been given as provided in Section 11 of G.L. Chapter 40A. The decision of the PAA shall be made, and a written notice of the decision filed with the Town Clerk,within 120 days of the receipt of the PETITION:2015-003 Page 5 of 11 Town of North.Andover ZONING BOARD OF APPEALS � Albert P.Manzi 11L Esquire,Chairman Ellen P.McIntyre,Vice-Chair D.Paul Koch Jr.,Esquire NORTf, -4 DougLudgfn Allan Cuscia p Associate Members � x 1?eney Pvlorganthal Nathan Weinreich 1,3'4,1..0"�`�5 Alexandria A.Jacobs,Esquire SSRCHUS application by the Town Clerk.The required time limits for such action may be extended by written agreement between the applicant and the PAA,with a copy of such agreement being filed in the office of the Town Clerk. Failure of the PAA to take action within said 120 days or extended time,if applicable, shall be deemed to be an approval of the application and site plan.5 Additionally the Plan Review process along with Plan Approval and or Disapproval are articulated with sections 17.14.2, 17.14.3,and 17.14.4 of the Zoning Bylaw law by and for the PPA to follow as to the Aggrieved Parry's application to the PPA. The Board takes note the framers of Section 17 did in fact define the terms Project and Commercial Project,and therefore the Board makes no particular finding as to the Defined Term Project within sec 17,and sees no inconsistency with the use of the term Project in contemplation of the Aggrieved Parry's requested findings. b. PLAN APPROVAL(aka SITE PLAN v. SPECIAL PERMIT At issue for the Aggrieved Party is the determination as to whether or not Applicant has submitted its original application as a request for plan approval, which arises as a matter of common law principles, or as the Building Inspector concluded, as an application for a Special Permit, which has a more particular meaning and is to be issued in accordance with statutory laws, MGL Chapter 40A, Section 9. As a general matter Section 9 provides that "Zoning ordinances or bylaws shall provide for specific types of uses which shall only be permitted in specific districts upon the issuance of a special permit. Special permits may be issued only for uses which were in harmony with the general purpose and intent of the ordinance or Bylaw, and shall be subject to general or specific provision set forth therein.; and such permits may also impose conditions, safeguards and limitations on time or use." Special Permits are, as the law states, intended to be relief for the allowance of uses, rather than site plan reviews which are a creature of common law intended to place reasonable conditions on uses. Section 17.14.4 of the Zoning Bylaws provides limited circumstances for site plan disapproval. The process of the site plan review is to assure protection of the public interest to a degree consistent with reasonable use but not necessarily to deny that use. In addition, special permits can only be issued, under Massachusetts law, by a permit granting authority which has been authorized to issue special permits. MGL Chapter 40A, Section 9 provides "Zoning ordinances or bylaws may provide that certain classes of special permits shall be issued by one special permit granting authority and others by another special permit granting authority as provided in the ordinance or bylaw." Section 2.65 of the Town Bylaw identifies the s Section 17.13.3 North Andover Zoning Bylaw Page 6 of 11 PETITION:2015-003 1 Town of North Andover Albert P.Manzi III,Esquire,Chairman ZONING BOARD OF APPEALS Elden P.ii'Iclntyre,vice-Chair D.Paul Koch Jr.,Esquire 4� OORTks Doug Ludgin Allan Ctescia 0 Associate Members i Deney Morganthal Nathan Weinreich Alexandria A.Jacobs,Esquire �$Seaacss�� Special Permit Granting Authority as follows: "The Planning Board shall be the Granting Authority of all Special Permits to Cluster Development, Plan Development District, (1985/15) driveways, nursing and convalescent homes, Watershed Protection District (1994/37), Wireless Service Facilities(1998/37) and large estate condominium conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw." Within the Business Opportunity Zone, Section 17.6.3.2 of the Bylaw identifies As-Of-Right Uses which can are allowed "upon Plan Approval." Section 17.6.3.3 of the Bylaw identifies Uses allowed only upon the issuance of a Plan Approval Special Permit. As referenced herein, the Applicant's proposed solar use would fall under the subcategory of As-Of-Right uses under 17.6.3.2, at subparagraph 13, Manufacturing. Clearly the Bylaw intends to distinguish Plan Approval for As-Of-Right Uses under Section 17.6.3.2 from Plan Approval Special Permit Uses under Section 17.6.3.3. To categorize Aggrieved Party's filing with the PPA as anything other than a Plan Approval pursuant to section 17 or section 4.133-11b is misplaced and likely not enforceable unless regulated within the Zoing Bylaw pursuant to Health Safety and Welfare. Based upon the law and record evidence,the Applicant has only applied for Plan Approval and not a Special Permit. To the extent that the Aggrieved Party applied for a Special Permit pursuant to 4.133-11b, then the Special Permit Granting Authority in this instance must be the Zoning Board of Appeals and not the Planning Board,as directed by Section 2.65 of the Zoning Bylaw. c. ALLOWED USE: Section 17.3.3 identifies three sub-districts within the Osgod overlay district. The Business Commercial District is the overlay selection district proposed by the Aggrieved Parry with respect to the Solar Photovolic System. As to allowed use,MGL Ch. 40A sec 3 exempts certain uses from the zoning act, including but not limited to solar as is agriculture, education,and other stated uses. The Premises is located in an I-2 Zone. Within the I-2 Zone, under Section 4.133 Industrial 2 District-11.b. Solar facilities are allowed by the express language of the Bylaw as follows: "Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass and tidal on a lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit." PETITION:2015-003 Page 7 of 11 Town of North Andover ` ZONING BOARD OF APPEALS t Albert P.Manzi[[I,Esquire,Chairman Ellen P.Ni felotyre,'Vice-Chair B.Paul Koch Jr.,Esquire � 0o�g[j DougLuflgin �Oa,�t�.eo .k �g0 �... 0 4tDManC!lSCia . p Associate Members 1Deney'[organthil 4 Nathan Weinreich Alexandria A.Jacobs,Esquire SSACMU`�E4 The Premises is also located within the OSGOD Overlay District. Within such district, there are three (3) sub-districts. In particular, the Applicant's proposal relates to the Business Opportunity Zone. Within the Business Opportunity Zone, Section 17.6.3.2 of the Bylaw identifies As-Of- Right Uses. Section 17.6.3.3 of the Bylaw identifies Uses allowed by Special Permit. Within the subcategory of As-Of-Right uses under 17.6.3.2,at subparagraph 13,Manufacturing is listed as an allowed use. There is no other restriction or limitation as to the definition of manufacturing within 17.6.3.2 and, therefore, Applicant presents that the term manufacturing would include solar manufacturing as defined within our Bylaw in Section 4.133-1 lb. (previously referenced). Pursuant to Mass. General Law Chapter 40A, Section 3 "No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate collection of solar energy, except where necessary to protect the public health, safety or welfare." (emphasis added). At the time that the Town adopted the OSGOD Overlay District, the Warrant Articles adopting OSGOD were submitted to the Commonwealth of Massachusetts Office of the Attorney General for their review and approval, as is required under applicable law. The Attorney General,by correspondence dated October 2,2007,approved the Warrant Article, however, in doing so, the Attorney General called attention to certain provisions within the OSGOD Warrant Article specifically Section 17.6.4 as to "Prohibited Uses". The Attorney General specifically cautioned the Town that those provisions could not be applied in a manner inconsistent with Mass. General Laws Chapter 40A, Section 3. d. DEFINITION OF MANUFACTURING: As previously discussed, in the absence of a specific definition, terms are to be interpreted in accordance with statutory construction and, in the absence thereof, customary usage and dictionary definitions. In this particular instance, the Town Bylaw specifically references manufacturing to include solar. By its express language under Section 4.133 I-2 District-1 Lb, the Bylaw uses the terminology ".... alternative energy manufacturing such as wind, solar, biomass and tidal..." (emphasis added) By using the term manufacturing under Section 17.6.3.2 subsection 13 as a Use Allowed As-Of-Right, no intention to exclude any types of manufacturing can be inferred. Since the Bylaw has already identified solar as a type of manufacturing, the only inference that can be drawn it is that manufacturing includes solar manufacturing. Reference can also be had to other statutory provisions which define manufacturing including, but not limited to, Mass. General Laws Chapter 164 Section 1 which defines a "Generation Facility" to be "plant or equipment used to produce, manufacture or otherwise generate electricity..." Chapter 164 is entitled MANUFACTURE AND SALE OF GAS AND ELECTRICITY and, therefore, the definitions therein are directly relevant to the topic of solar PETITION:2015-003 Page 8 of 11 • - Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi TTS,Esquire,Chairman Ellen P.1'Icintyre,vice-Chair D.Paul Koch Jr.,Esquire snoRTis Doug Ludgin Allan Cassia Associate stembers .Deney Morganthal o _ 9� o Nathan Weinreich Alexandria A.Jacobs,Esquire SSRC9Hifs�k generation as manufacturing. Within those definitions, the statute also defines the term "Generation" as "the act or process of transforming other forms of energy into electric energy..."; and within the definition of "Renewable Energy" specifically includes "solar photovoltaic". The Aggrieved Parry made specific reference to recent Massachusetts case law including the Duseau decision, which decision was rendered by the Massachusetts Land Court on January 2, 2015. That case tells us specifically that "In the absence of an express definition of a word or phrase in the bylaw itself, however, the court looks to `ordinary principles of statutory construction."'The Duseau Court continued by elaborating that"undefined words are given their `usual and accepted meanings, as long as these meanings are consistent with their statutory purpose."' The Duseau Court referenced deriving meanings from legal context and dictionary definitions in construing associated words or phrases within the statutory context. The Duseau Court specifically advises that"courts may also turn to the General Laws and other legislation in order to assign meaning to undefined terms, because the interpretation of provisions using identical language must be uniform."The court in Duseau goes on to reference specific instances arising in a zoning context where these rules have been applied. VII.MASSACHUSETTS GENERAL LAWS CHAPTER 40A SECTION 3 The Building Inspector's letter to the Planning Board stating that the Applicant's proposal was not allowed specifically references OSGOD Bylaw Section 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. The Building Inspector concluded that the solar proposal did not qualify as manufacturing and therefore was not expressly allowed.As such,the Building Inspector concluded that the Applicant's solar proposal was prohibited. To the extent that such a conclusion is reached, the Town would be in violation of Mass. General Law Chapter 40A, Section 3 as the Attorney General cautioned. Specifically, the only other Section of the Town Bylaw allowing solar manufacturing is Section 4.133-11b, referenced herein. That Section limits solar to the I-2 district and parcels with twenty (25) or more acres (or ten(10) or more acres with a Special Permit). The subject parcel at 1600 Osgood Street,North Andover is the only parcel of land in the Town of North Andover which meets this requirement. Therefore, to the extent, for whatever reason, the Town were to deny the right to construct a facility used for the collection of solar energy, except where necessary to protect the public health, safety or welfare, such denial would be in violation of State law. PETITION:2015-003 Page 9 of It Town of North Andover ZONING BOARD OF APPEALS .Albert P.iWlanA III,Esquire,Chairman Ellen P.NIcInttrre,Vice-Cliair D.Paul Koch Jr.,Esquire Dou-LuflgiR �t5 t,s.ev ras6N0 Allan Cuscia ti oA Associate,Members ]Deney hlorganthal o ^" Nathan Weinreich �� °gnY6a.�" A Ale-andriaA.Jacobs,Esquire S-AC Us�� VIII.BUILDING PERMIT: During the public hearing,the Aggrieved Party acknowledged it had not filed for a building permit because it had not been afforded the opportunity to do so. The Board of Appeals notes that the issue of a building permit has not been reached as a building permit has not been applied for due to the fact that the application had stalled at the PPA. The Board makes no particular finding with respect to the issuance of a building permit or the methods or materials of construction thereto. To the extent necessary,the Board reserves the issue of a Building Permit for the Aggrieved Party to be raised at a future date by request. IX. ]FINDINGS AND DECISION OF THE BOARD After deliberations, the Board of Appeals determined that Findings shall issue that comport with this Decision in favor of the Aggrieved Party's(5)requested Findings as follows: 1. The term "site" (a term that is undefined by the Zoning Bylaw) is not defined to mean "Lot" (a term that is defined by the Zoning Bylaw), and further that the OSGOD Section of the Bylaw contemplates that there can be multiple"sites"on a Lot. 2. The Building Commissioner erred in applying Section 17.6.1.2 and, further, under 17.6.3.2 the term "manufacturing" includes renewable or alternative energy manufacturing such as the solar being proposed by the Applicant and, further, such facilities cannot be prohibited or unreasonably regulated in violation of Massachusetts General Laws Chapter 40A, Section 3. 3. Solar energy generating facilities such as are being proposed by the Applicant are not "Prohibited Uses" and, further, such facilities cannot be prohibited or unreasonably regulated in violation of Massachusetts General Laws Chapter 40A, Section 3. 4. "Manufacturing"as relates to solar energy generating facilities is not limited in any way to preclude the transmission of all or any portion of the energy being generated for use off of the Property. 5. The Application is for an OSGOD Plan Approval and not an application for a Special Permit under MGL Chapter 40A, Section 9. Page 10 of 11 PETITION:2015-003 Town of North Andover Albert P.XAanzi 111,Esquire,Chairman ZONING BOARD OF APPEALS Ellen 1'.McIntyre,Vice-Chair D.Paul Koch Jr.,Esquire Doug Ludgin °`�,`.�a rb�n✓ty Allan Cuscia 0 4 Associate Members Deney Morganthal Nathan Weinreich �� �RATe a• cP�{�? Alexandria A.Jacobs,Esquire Ss vCus� Voting in favor of the Aggrieved Party's five (5) filed requested findings were: Albert P. Manzi III, Esquire, Allan Cuscia, Doug Ludgin,Nathan Weinreich. Voting against: D. Paul Koch Jr., Esquire. NORTH ANDOVER ZONING BOARD OF APPEALS So Ordered, e - ac�04,c_wl Aydert P.Manzi 0, squire, Chairman Allan Cuscia Doug Ludgin Nathan J. Weinreich D.Paul Koch Jr. Esquire PETITION:2015-003 Page 11 of 11 LISTING FOR OSGOOD SOLAR LLC . EXHIBIT "A" Date Title Author 6-Jun--201S Legal Notice ZBA Albert Manzi 17-Mar-15 Signature authorization Orit Goldstein 24-Mar-15 Building Inspector letter of Gerald Brown enforcement 20-Mar-15 application of OSGOD Permit Applicant 21-Aug-03 Quitclaim Deed Applicant 23-Apr-15 Appeal of NA Building Inspector Wilmer Hale,Mark C.Kalpin Determination 20-Mar-15 notice to Planning Board Meridian AssociatesRichard E Waitt submitting Application 20-Mar-15 Supporting documents for Orit Goldstein approval 8-Mar-15 Osgood Solar Zoning Analysis Mark C. Kalpin 24-Mar-15 Legal Notice PB Planning Board 21-Apr-15 letter in response to e-mail Gerald Brown dated 16 April 15 23-Apr-15 Building Inspector's Decision Eric Kfoury 5-March 2015 North Andover analysis Mark C.Kalpin 18-march 2015 North Andover analysis Mark C. Kalpin 2-Qct-07 Certified Bylaws Joyce Bradshaw 9-Mar-15 Response Andrew Maylor 22-April 2015, 16- Request for 12 Zoning Dan Leary April 2015 Determination 17-Mar-15 Abutters list Assesors Office 22-April 2015, Dimensional and density Merridan Associates Plans 10 pages Requirement 15-Apr-15 Request for 1-2 Approval Dan Leary 4/21/2015/16 April re:request for 1-2 Approval Gerald Brown 2015 27-May-15 Notice of Appearance Mark C. Kalpin Mar-07 Map of Smart Growth Overlay Joyce Bradshaw 26-May-15 Finding Applicant 15-Aug-15 Osgood Solar Hearing-regarding Michael D Rosen Permits 10-Aug-15 Request for Supplemental ZBA Chairman information 17-Aug-15 ;Chapter 184 Section 23C jZBA Chairman 11-Aug-15 Permit Listing Report Building Department 12-Aug-15 Chapter 40A Section 9B ZBA Chairman 12-Aug-15 Chapter 40A Section 3 ZBA Chairman LISTING FOR OSGOOD SOLAR LLC j EXHIBIT "A" 24-Jun-15 Land Court Department-Duseau submittedy byAtty Rosen v.Szawlowski Realty 31-Jul-15 Waiv the time constraint applicant OSGOOD Solar Plan approval applicant application before ZBA June 23rd, 2015 Hearing Presentation Legal Summary 25-Aug-15 Chapter 25A Section 10 ZBA Chairman 25-Aug-15 Chapter 25A Section 3 ZBA Chairman 25-Aug-15 Chapter 164 Section 1 ZBA Chairman 25-Aug-15 Chapter 184 Section 23C ZBA Chairman 25-Aug-15 Definition of Site-Black's ZBA Chairman Law Dictionary, Seventh Edition,Page 1392.West Group St.Paul Minn. 1999. Byran A. Garner Editor Ea Chief 25-Aug-15 Chapter 7,Appointed Town ZBA Chairman Boards(Page 19) i 25-Aug-2015 Chapter 10, Planning and the ZBA Chairman Enviroment(Page 10) 25-Aug-15 Legal Definition of ZBA Chairman Manufacturing(Page 977) I Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi 111,Esquire,Chairman Ellen P—Mclatyre,Vice-Chair D.Paul Koch Jr..Esquire < OORT,4 Doug Ludgin 0 Allan Cuscia 4 201.5 SEP -8 PiH 2: 31 Associate Ntembers Deney Morgauthal ; l 4 Town Clerk,Time Stamp v Nathan Weinreich ;".1 k­ Alexandria A.Jacobs,Esquire KA SS A L' OSGOOD SOLAR,LLC AGGREIVED PARTY V NORTH ANDOVER BUILDING INSPECTOR DECISION PETITION 2015-003 1. INTRODUCTION: The North Andover Zoning Board of Appeals hereinafter("Board")finds in favor of Osgood Solar LLC,hereinafter the("Aggrieved Party")as to five(5)requests for findings by and for Osgood Solar,LLC and overturns the Building Inspector's Determination dated on or about March 24,2015 with respect to a proposed Solar Photovolic System as filed before the Planning Board pursuant to the North Andover Zoning Bylaw and MGL Ch.40A and or MGL Ch 40R. Forthwith,the Building Inspector shall comport previous determinations made on or about March 24,2015 with this Decision and its findings contained herein; the Board further instructs the Building Inspector to reasonably inform the Planning Board also known as the Plan Approval Authority hereinafter("PPA")pursuant to section 17 of the North Andover Zoning Bylaw,of the MGL Ch 40A time standards for Plan Approval,with respect to the Aggrieved Party's Plan Approval Process as stated within section 17 of the Osgood Overlay Smart Growth District also known as Osgod of the Zoning Bylaw and used interchangeably herein. The North Andover Board of Appeal's authority is pursuant to MGL Ch 40A and the North Andover Zoning Bylaw, and all applicable legal authority thereto. 11. PROCEDURAL HISTORY: The North Andover Board of Appeals held public hearings at the Town Hall, 120 Main Street, North Andover,MA on Monday June 28,2015 and Tuesday August 25,2015 at 7:30 PM with respect to the Aggrieved Party's application of Osgood Solar,LLC for the property located at 1600 Osgood Street(Map 34 Parcel 17), located within the Business Opportunity Zone of the Osgood Smart Growth Overlay Zoning District also known as"Osgod"pursuant to section 17 of the Zoning Bylaw and also located within the underlying Industrial 2 Zoning District,North Town of North Andover 0 ZONING BOARD OF APPEALS Albert P.Manzi III,Esquire,Chairman Ellen P.;McIntyre.Vice-Chair D.Paul Koch Jr_,Esquire F 14ORTH q Doug Ludgin 2pt5�¢Q ,0�0 Allan Cuscia - 4 n Associate Members any Deney:Llorganthal ?Lathan Weinreich Alexandria A.Jacobs,Esquire SSAC.+us� Andover,MA 01845.Legal notices were sent to all the certified abutters provided by the Town of North Andover Assessor's Office,and were published in the Eagle-Tribune, a newspaper of general circulation in the Town of North Andover,June 9, and June 16"2015. The public hearing opened on June 28,2015 and closed on August 25,2015. The Board notes no abutters were present to be heard at the public hearing(s). Voting in favor of the Aggrieved Parry's five (5)findings were:Albert P. Manzi III,Esquire,Allan Cuscia,Doug Ludgin,Nathan Weinreich. Voting against: D.Paul Koch Jr.,Esquire.Present but not voting:Alexandria A. Jacobs, Esquire (Associate) III. BACKGROUND: The Aggrieved Party proposes to construct a Solar Photovoltaic System within the borders of its 169 acre+/-property within the Business Opportunity Zone of the Osgod Overlay District pursuant MGL ch 40R with respect to section 17 of the North.Andover Zoning Bylaw know as "Osgod",the purpose of which is to"encourage smart growth in accordance with the purposes of G.L. ch 40R"as enumerated in sectionl7.1 of the Zoning Bylaw as adopted at the 2007 Town Meeting. The proposed Solar Photovoltaic System is also located within the underlying Industrial 2 Zoning District. The property is also located within the underlying Industrial 2 Zoning District that is regulated pursuant to section 4.133-1 lb of the North Andover Zoning Bylaw.At the 2010 Town Meeting a zoning change was adopted to include the use of solar and alternative energy uses on properties within the Industrial 2 District with respect to parcels being twenty(2 5)or more acres or 10 or more acres pursuant to a Special Permit by the Special Permit Granting Authority. The record evidence suggests that the Aggrieved Party's property is the only property in town known to the Board that comports with the aforementioned 2010 Town Meeting zoning change limiting solar and alternative energy uses to the industrial 2 District both as to use and to dimensional size. The 169+/-acre property is located on the Northwesterly section of Town bordering Haverhill, boarded by route 125,interstate 495,with the MBTA Haverhill line crossing in proximity but with no train stop. The property's main structure is approximately 2 Million square feet with various adjacent structures. The main structure houses various tenants including the North Andover Community Development Office which in turn houses,the Planning,Building, Conservation,Health,and Zoning Departments for the Town of North Andover. Historically,the property formerly housed the former giant Western Electric Company and subsequent AT&T/Lucent Companies,and the property has housed industrial and commercial that served three Page 2 of 11 PETITION:2015-003 Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi 111,Esquire,Chairman Ellen P.Mclntvre,vice-Chair D.Paul Koch Jr.,Esquire t4ORT¢ � 4 4e.a lboug 1,udgin ,� ,,Ct`, ;6•b�d Allan Cuscia t?� Associate Members DeneyMorganthal a, � Nathan Weinreicla Alexandria A.Jacobs,Esquire SS�c aai: = working shifts while under prior ownership. The property has been under new ownership since on or about 2007 and has been leased and fitted for tenants as part of a redevelopment plan. IV.APPLICATION TO THE PLANNING BOARD AKA PLAN APPROVAL AUTHORITY: On or about March 2015 the Aggrieved Party submitted a Solar Photovoltaic System plan to the Planning Board a/k/a The Plan Approval Authority("PPA")pursuant to and in accordance with Section 17 of the Osgood Overlay District of the Zoning Bylaw(Osgod)for the purpose of Plan Approval(which is akin to site plan approval)as an exempted and allowed use pursuant to MGL ch.40A sec 3, and not for the purposes of the issuance of a Special Permit approval,which contemplates a higher standard of review for non exempt uses,but is notably allowed by Special Permit pursuant to section 4.133-1 lb. The Aggrieved Party proposed to the PPA to construct a 6 megawatt rooftop and parking canopy mounted Solar Photovoltaic System.The proposed system is to consist of 19,500 Solar Modules; approximately 5,500 rooftop mounted solar modules and approximately 14,000 modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows,ranging between 150-630 feet long by right as an exempted use pursuant to MGL Ch.40A sec 3. The PPA sought a determination of the Building Inspector who made findings,relied upon by the PPA as to thero osed project with respect to use site P P P J p manufacturing,and the choice of zonvlg by and between the 40R overlay district and the underlying zoning pursuant to MGL ch. 40A as articulated in a letter to the Planning Board dated on or about March 24,2015. V. EVIDENCE SUBMITED: Prior to the close of the Public Hearing, the Board takes note of the oral arguments presented at the public hearing and documentary evidence thereto for consideration as listed in Exhibit "A" attached hereto and incorporated by reference herein and takes notice of Massachusetts General Law and applicable legal authorities. VI. DISCUSSION: a. DEVELOPER'S ZONING ELECTION: Section 17.2 Definitions of the Osgod Smart Growth Overlay zoning g y g district sets forth forty-five (45)defined terms to be used in accordance with the application of section 17 as noted there' "For the purposes of this Section 17.0,the followingdefinitions shall apply." See Section 17.2 North Andover Zoning Bylaw Page 2.The Framers of section 17 of the Zoning Bylaw chose to use the term"shall"with respect to the Definitions thereby imposing a duty upon the PETTI'IOAt:2015-003 Page 3 of ll Town of North.Andover ZONING BOARD OF APPEALS Albert P.Manzi FBI,Esquire,Chairman Ellen P.McIntyre,Vice-Chair D.Paul Koch Jr.,Esquire +AORTti q Dougl.n(Igin Y��QejtteO f 646��L Allan Cuscia Associate Members co Y IDcney Morganthal Nathan Weinreicla 'q,>�,•�" �} Alexandria A.Jacobs,Esquire �S�Acwus�t Definition's application and/or interpretation as to the meaning of a particular term within the forty-five defined terms. Pursuant to section 17.3.2 "The OSGOD is an overlay district superimposed on all underlying zoning districts.As required by the Enabling Laws,the regulations for use,dimension,and all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD,a developer may elect to either develop a site in accordance with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s)."' As stated therein,the Osgod overlay zoning is superimposed over the underlying zoning and the underlying zoning remains in full force and effect,and the developer: "may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(S)"2 The use of the word "may"3 as oppose to "shall,4 with respect to a developer(s) election contained within section 17.1.2 is express so as not to impose an unreasonable"duty"upon the developer to make an express election with respect to the overlay district or the underlying zoning district in contemplation of a"site".Had the framers of section17 intended for a developer(s)zoning district preference election to be final and/or irrevocable,the Zoning Bylaw or defined terms therein would have expressly stated so,or the term"site"would have been defined within section 17.2 Definitions. The Board finds"site"is not defined by section 17 for the purposes of the Osgood Smart Growth Overlay District or the Zoning Bylaw. Due to the nature and purpose of the Smart Growth Overlay District in contemplation of the underlying zoning which remains in full force and effect,it is reasonable to conclude the framers of the Zoning Bylaw intended for a flexible permitting scheme within the context of the statutory 40R overlay zoning and did not intend to impose an unreasonable duty of zoning selection upon `Section 17.3.2 North Andover Zoning Bylaw. 2 Section 17.3.2 North Andover Zoning Bylaw s may,vb, 1.Is permitted to-Black's Law Dictionary 7`"Edition Bryan A.Garner Editor in Chief 4 shall,vb. 1.Has a duty to;more broadly,is required to—Black's Law Dictionary 7`h Edition Bryan A.Garner Editor in Chief Plage 4 of 11 PETITION:2015-003 Town of North Andover ZONING BOARD OF APPEALS .filbert P.Manzi 7.11,Esquire,Chairman Ellen P.McIntyre,Vice-Chair D.Paul Koch Jr.,Esquire 6 �oRTFJ � IDougLudgin o��,tga ,bab�o Allan Cuscia Associate Members 'r Deney 14torgauthal 4 a Nathan Weinreich 4NCY6D °a �� AlexandnaA.Jacobs,Esquire �s�ACRUs�� a developer thereby irrevocably binding a developer as to their final selection. The framers chose the phrase"may elect"as opposed to "shall elect"within section 17.3.2. The Board finds that"site"remains undefined within section 17.2 Definitions. The Board finds and no creditable supportive evidence and or legal authority was submitted by the Building Inspector and or Community Development Director to support the Building Inspector's determination of March 24,2015. The Board now relies on the definition of"site"as defined by Black's Law Dictionary 7`�'Edition Bryan A. Garner Editor in Chief whereby"site"is define as: 41.A place or location: esp., a piece of property set aside for a specific use." . The Board is not persuaded by the position put forth by the Building Inspector and or Community Development Director that pursuant to section 17 a developer(s)is effectively irrevocably bound by a single zoning district selection in contemplation of a"site"for a building permit; The Board finds no creditable supportive evidence, or legal authority was submitted on record to support that position. The Board finds the evidence,or lack thereof,suggests that the PPA did not comport with the procedures set forth within section 17.13.2 Circulation to Other Boards,with respect to a single permitting under sect 17 by the developer as to the Act Theater application. The Board does not credit the unsupported argument presented by the Community Development Director in favor of the denial of an exempted use protected by MGL Ch 40A sec 3 and or the definition of Manufacturing as to Solar use.No evidence was submitted in support of reasonable regulation as to Solar by and for the Health Safety and Welfare of the Town within the Zoning Byalaw justifying the Building Inspector's finding. The Board credits,MGL Ch. 40A sec 9b, and MGL Ch. 184 sec 23C along with MGL Ch. 25A sec 3 and 10 with respect to Solar use and or Manufacturing. The Board credits the Aggrieved Party's persuasive argument that for the purposes of Section 17 of the Zoning Bylaw with respect to Overlay District applications for permits, a"site"(a term that is undefined by the Zoning Bylaw)is not defined to mean"Lot" (a term that is defined by the Zoning Bylaw),and further that the OSGOD Section of Zoning Bylaw contemplates multiple "Projects"on a Lot. We also credit the evidence submitted as to the number of building permits issued since 2007 with respect to the underlying Industrial 2 District for the property as compelling and persuasive to reach the finding herein. Section 17.13.3 states: The PAA shall hold a public hearing for which notice has been given as provided in Section 11 of G.L. Chapter 40A. The decision of the PAA shall be made, and a written notice of the decision filed with the Town Clerk,within 120 days of the receipt of the PETITION:2015-003 Page 5 of 11 Town of North Andover f ZONING BOARD OF APPEALS Albert P.Manzi 111,Esquire,Chairman Ellen P. dntyre,vice-Chair D.Paul Koch Jr.,Esquire °�r Doug Ludgsn Alan Cuscia o Associate Members n :. 1Dene}�Morganthal � 4y.. .,"4 Nathan Weiureich Alexandria A.Jacobs,Esquire �SSAC Ut ti application by the Town Clerk.The required time limits for such action may be extended by written agreement between the applicant and the PAA,with a copy of such agreement being filed in the office of the Town Clerk. Failure of the PAA to take action within said 120 days or extended time,if applicable, shall be deemed to be an approval of the application and site plan.5 Additionally the Plan Review process along with Plan Approval and or Disapproval are articulated with sections 17.14.2, 17.14.3,and 17.14.4 of the Zoning Bylaw law by and for the PPA to follow as to the Aggrieved Parry's application to the PPA. The Board takes note the framers of Section 17 did in fact define the terms Project and Commercial Project,and therefore the Board makes no particular finding as to the Defined Term Project within sec 17,and sees no inconsistency with the use of the term Project in contemplation of the Aggrieved Parry's requested findings. b. PLAN APPROVAL(aka SITE PLAN v. SPECIAL PERMIT At issue for the Aggrieved Party is the determination as to whether or not Applicant has submitted its original application as a request for plan approval, which arises as a matter of common law principles, or as the Building Inspector concluded, as an application for a Special Permit, which has a more particular meaning and is to be issued in accordance with statutory laws, MGL Chapter 40A, Section 9. As a general matter Section 9 provides that "Zoning ordinances or bylaws shall provide for specific types of uses which shall only be permitted in specific districts upon the issuance of a special permit. Special permits may be issued only for uses which were in harmony with the general purpose and intent of the ordinance or Bylaw, and shall be subject to general or specific provision set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use." Special Permits are, as the law states, intended to be relief for the allowance of uses, rather than site plan reviews which are a creature of common law intended to place reasonable conditions on uses. Section 17.14.4 of the Zoning Bylaws provides limited circumstances for site plan disapproval. The process of the site plan review is to assure protection of the public interest to a degree consistent with reasonable use but not necessarily to deny that use. In addition, special permits can only be issued, under Massachusetts law, by a permit granting authority which has been authorized to issue special permits. MGL Chapter 40A, Section 9 provides "Zoning ordinances or bylaws may provide that certain classes of special permits shall be issued by one special permit granting authority and others by another special permit granting authority as provided in the ordinance or bylaw." Section 2.65 of the Town Bylaw identifies the 5 Section 17.13.3 North Andover Zoning Bylaw Page 6 of 11 PET fflON:2015-003 Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi III,Esquire,Chairman Ellen P.I'VIclntvre.,Vice-Chair D.Paul Koch.Ir.,Esquire Dong 1.udgin Allan Clescia 0 � Associate Members x i n .Denev Morgauthal o w Nathan weinreieh Alexandria A.Jacobs,Esquire s aewoa�e Special Permit Granting Authority as follows: "The Planning Board shall be the Granting Authority of all Special Permits to Cluster Development, Plan Development District, (1985/15) driveways, nursing and convalescent homes, Watershed Protection District (1994/37), Wireless Service Facilities (1998/37) and large estate condominium conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw." Within the Business Opportunity Zone, Section 17.6.3.2 of the Bylaw identifies As-Of-Right Uses which can are allowed "upon Plan Approval." Section 17.6.3.3 of the Bylaw identifies Uses allowed only upon the issuance of a Plan Approval Special Permit. As referenced herein, the Applicant's proposed solar use would fall under the subcategory of As-Of-Right uses under 17.6.3.2, at subparagraph 13, Manufacturing. Clearly the Bylaw intends to distinguish Plan Approval for As-Of-Right Uses under Section 17.6.3.2 from Plan Approval Special Permit Uses under Section 17.6.3.3. To categorize Aggrieved Party's filing with the PPA as anything other than a Plan Approval pursuant to section 17 or section 4.133-11b is misplaced and likely not enforceable unless regulated within the Zoing Bylaw pursuant to Health Safety and Welfare. Based upon the law and record evidence,the Applicant has only applied for Plan Approval and not a Special Permit. To the extent that the Aggrieved Party applied for a Special Permit pursuant to 4.133-11b, then the Special Permit Granting Authority in this instance must be the Zoning Board of Appeals and not the Planning Board,as directed by Section 2.65 of the Zoning Bylaw. c. ALLOWED USE: Section 17.3.3 identifies three sub-districts within the Osgod overlay district. The Business Commercial District is the overlay selection district proposed by the Aggrieved Party with respect to the Solar Photovolic System. As to allowed use,MGL Ch.40A sec 3 exempts certain uses from the zoning act,including but not limited to solar as is agriculture, education,and other stated uses. The Premises is located in an I-2 Zone. Within the I-2 Zone, under Section 4.133 Industrial 2 District-11.b. Solar facilities are allowed by the express language of the Bylaw as follows: "Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass and tidal on a lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit." PETITION:2015-003 Page 7 of 11 Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi Ill.Esquire,Chairman Ellen MiMcIntyre,Vice-Chair D.maul Koch Jr.,Esquire F ,°rags Doug Ludgin Allan Cuscia Associate Members �` s � z Ilenev Morganthal r Nathan Weinreich Alexandria A.Jacobs,Esquire cMLIS The Premises is also located within the OSGOD Overlay District. Within such district, there are three (3) sub-districts. In particular, the Applicant's proposal relates to the Business Opportunity Zone. Within the Business Opportunity Zone, Section 17.6.3.2 of the Bylaw identifies As-Of- Right Uses. Section 17.6.3.3 of the Bylaw identifies Uses allowed by Special Permit. Within the subcategory of As-Of-Right uses under 17.6.3.2, at subparagraph 13,Manufacturing is listed as an allowed use. There is no other restriction or limitation as to the definition of manufacturing within 17.6.3.2 and, therefore, Applicant presents that the term manufacturing would include solar manufacturing as defined within our Bylaw in Section 4.133-1 lb. (previously referenced). Pursuant to Mass. General Law Chapter 40A, Section 3 "No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate collection of solar energy, except where necessary to protect the public health, safety or welfare." (emphasis added). At the time that the Town adopted the OSGOD Overlay District, the Warrant Articles adopting OSGOD were submitted to the Commonwealth of Massachusetts Office of the Attorney General for their review and approval, as is required under applicable law. The Attorney General,by correspondence dated October 2,2007,approved the Warrant Article, however, in doing so, the Attorney General called attention to certain provisions within the OSGOD Warrant Article specifically Section 17.6.4 as to "Prohibited Uses". The Attorney General specifically cautioned the Town that those provisions could not be applied in a manner inconsistent with Mass. General Laws Chapter 40A, Section 3. d. DEFINITION OF MANUFACTURING: As previously discussed, in the absence of a specific definition, terms are to be interpreted in accordance with statutory construction and, in the absence thereof, customary usage and dictionary definitions. In this particular instance, the Town Bylaw specifically references manufacturing to include solar. By its express language under Section 4.133 I-2 District-I Lb, the Bylaw uses the terminology ".... alternative energy manufacturing such as wind, solar, biomass and tidal..." (emphasis added) By using the term manufacturing under Section 17.6.3.2 subsection 13 as a Use Allowed As-Of-Right, no intention to exclude any types of (manufacturing can be inferred. Since the Bylaw has already identified solar as a type of manufacturing, the only inference that can be drawn it is that manufacturing includes solar manufacturing. Reference can also be had to other statutory provisions which define manufacturing including, but not limited to, Mass. General Laws Chapter 164 Section 1 which defines a "Generation Facility" to be "plant or equipment used to produce, manufacture or otherwise generate electricity..." Chapter 164 is entitled MANUFACTURE AND SALE OF GAS AND ELECTRICITY and, therefore, the definitions therein are directly relevant to the topic of solar Page S of 11 PETITION:2015-003 Town of North Andover ZONING BOAS OF APPEALS Albert P.'Manzi Ill,Esquire,Chairman Ellen P.1Iclntyre,vice-Chair D..Paul Koch Jr-Esquire t+oRTr Doug Ludgin .0 Allan AIEan Cttscia Associate Members � Deneb Morganthal x athatt i einreich Alexandria A.Jacobs,Esquire �Ss�Csaas or as manufacturing. Within those definitions, the statute also defines the term "Generation" as "the act or process of transforming other forms of energy into electric energy..."; and within the definition of "Renewable Energy" specifically includes "solar photovoltaic". The Aggrieved Party made specific reference to recent Massachusetts case law including the Duseau decision, which decision was rendered by the Massachusetts Land Court on January 2, 2015. That case tells us specifically that "In the absence of an express definition of a word or phrase in the bylaw itself, however, the court looks to `ordinary principles of statutory construction."'The Duseau Court continued by elaborating that"undefined words are given their `usual and accepted meanings, as long as these meanings are consistent with their statutory purpose."' The Duseau Court referenced deriving meanings from legal context and dictionary definitions in construing associated words or phrases within the statutory context. The Duseau Court specifically advises that"courts may also turn to the General Laws and other legislation in order to assign meaning to undefined terms, because the interpretation of provisions using identical language must be uniform."The court in Duseau goes on to reference specific instances arising in a zoning context where these rules have been applied. VII.MASSACHUSETTS GENERAL LAWS CHAPTER 40A SECTION 3 The Building Inspector's letter to the Planning Board stating that the Applicant's proposal was not allowed specifically references OSGOD Bylaw Section 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. The BuildingInspector ctor concluded that the solar proposal did not qualify as manufacturing and therefore was not expressly allowed.As such,the Building Inspector concluded that the Applicant's solar proposal was prohibited. To the extent that such a conclusion is reached, the Town would be in violation of Mass. General Law Chapter 40A, Section 3 as the Attorney General cautioned. Specifically, the only other Section of the Town Bylaw allowing solar manufacturing is Section 4.133-11b, referenced herein. That Section limits solar to the 1-2 district and parcels with twenty (25) or more acres (or ten(10) or more acres with a Special Permit). The subject parcel at 1600 Osgood Street,North Andover is the only parcel of land in the Town of North Andover which meets this requirement. Therefore, to the extent, for whatever reason, the Town were to deny the right to construct a facility used for the collection of solar energy, except where necessary to protect the public health, safety or welfare,such denial would be in violation of State law. PETITION:2015-003 Page 9 of I I f Town of North Andover ZONING BOARD OF APPEALS 1 Albert P.Manzi 111,Esquire,Chairman Ellen P.McIntyre,Vice-Chair D.Paul Koch Jr.,Esquire Doug Lndgan Allan C®scia o o� Associate[Wernbers �` s :Dene} Morganthal o " Nathan Weinreich A�9 9�Rnsao cai�5 Alexandria A.Jacobs,Esquire S�ACHUs� VIII.BUILDING PERMIT: During the public hearing,the Aggrieved Party acknowledged it had not filed for a building permit because it had not been afforded the opportunity to do so. The Board of Appeals notes that the issue of a building permit has not been reached as a building permit has not been applied for due to the fact that the application had stalled at the PPA. The Board makes no particular finding with respect to the issuance of a building permit or the methods or materials of construction thereto. To the extent necessary,the Board reserves the issue of a Building Permit for the Aggrieved Parry to be raised at a future date by request. IX. FINDINGS AND DECISION OF THE BOARD After deliberations, the Board of Appeals determined that Findings shall issue that comport with this Decision in favor of the Aggrieved Party's(5)requested Findings as follows: 1. The term "site" (a term that is undefined by the Zoning Bylaw) is not defined to mean "Lot" (a term that is defined by the Zoning Bylaw), and fiuther that the OSGOD Section of the Bylaw contemplates that there can be multiple"sites"on a Lot. 2. The Building Commissioner erred in applying Section 17.6.1.2 and, further, under 17.6.3.2 the term "manufacturing" includes renewable or alternative energy manufacturing such as the solar being proposed by the Applicant and, further, such facilities cannot be prohibited or unreasonably regulated in violation of Massachusetts General Laws Chapter 40A, Section 3. 3. Solar energy generating facilities such as are being proposed by the Applicant are not "Prohibited Uses" and, further, such facilities cannot be prohibited or unreasonably regulated in violation of Massachusetts General Laws Chapter 40A, Section 3. 4. "Manufacturing"as relates to solar energy generating facilities is not limited in any way to preclude the transmission of all or any portion of the energy being generated for use off of the Property. 5. The Application is for an OSGOD Plan Approval and not an application for a Special Permit under MGL Chapter 40A, Section 9. Page 10 of 11 PETITION:2015-003 Tour of North Andover Albert P.Manzi lll,Esquire,Chairman ZONING BOARD OF APPEALS Ellen P.Mantvre,Vice-Chair D.Paul Koch Jr.,Esquire t4ORTH Doug Ludgin °�s•.`Q yb�bn Allan Cuscia 0 ' o Associate Members Deney lWorgauthal Nathan Weinreich T� RAT6p APP�A��? Alexandria A.Jacobs,Esquire US Voting in favor of the Aggrieved Party's five (5) filed requested findings were: ,Albert P. Manzi III, Esquire, Allan Cuscia, Doug Ludgin,Nathan Weinreich. Voting against: D. Paul Koch Jr., Esquire. NORTH ANDOVER ZONING BOARD OF APPEALS So Ordered, 4an t P.Manzi�: , squire, Chairman Cuscia Doug Ludgin Nathan J. Weinreich D.Paul Koch Jr., Esquire PETITION:2015-003 Page 11 of 11 LISTING FOR OSGOOD SOLAR LLC EXHIBIT "A" + Date Title Author 6-Jun-2015 Legal Notice ZBA Albert Manzi 17-Mar-15 Signature authorization Orit Goldstein 24-Mar-15 Building Inspector letter of Gerald Brown enforcement 20-Mar-15 application of OSGOD Permit Applicant 21-Aug-03 Quitclaim Deed Applicant 23-Apr-15 Appeal of EVA Building Inspector Wilmer Hale,Mark C.Kalpin Determination 20-Mar-15 notice to Planning Board Meridian AssociatesRichard E Waitt submitting Application 20-Mar-15 Supporting documents for Orit Goldstein approval 8-Mar-15 Osgood Solar Zoning Analysis Mark C. Kalpin 24-Mar-15 Legal Notice PB Planning Board 21-Apr-15 letter in response to e-mail Gerald Brown dated 16 April 15 23-Apr-15 Building Inspector's Decision Eric Kfoury 5-March 2015 North Andover analysis Mark C. Kalpin 18-march 2015 North Andover analysis Mark C. Kalpin 2-Oct-07 Certified Bylaws Joyce Bradshaw 9-Mar-15 i Response Andrew Maylor 22-April 2015, 16- Request for 12 Zoning Dan Leary April2015 Determination 17-Mar-15 Abutters list Assesors Office 22-April 2015, Dimensional and density Merridan Associates Plans 10 pages Requirement 15-Apr-15 Request for 1-2 Approval Dan Leary 4/21/2015/16 April re:request for 1-2 Approval Gerald Brown 2015 27-May-15 Notice of Appearance Mark C. Kalpin Mar-07 Map of Smart Growth Overlay Joyce Bradshaw 26-May-15 Finding Applicant 15-Aug-15 Osgood Solar Hearing-regarding Michael D Rosen Permits 10-Aug-15 Request for Supplemental ZBA Chairman information 17-Aug-15 ;Chapter 184 Section 23C ZBA Chairman 11-Aug-15 Permit Listing Report Building Department 12-Aug-15 Chapter 40A Section 9B ZBA Chairman 12-Aug-15 Chapter 40A Section 3 ZBA Chairman LISTING FOR OSGOOD SOLAR LLC EXHIBIT "A" j 24-Jun-15 Land Court Department-Duseau submittedy byAtty Rosen v.Szawlowski Realty 31-Jul-15 Waiv the time constraint applicant OSGOOD Solar Plan approval applicant application before ZBA June 23rd, 2015 Hearing Presentation Legal Summary 25-Aug-15 Chapter 25A Section 10 ZBA Chairman 25-Aug-15 Chapter 25A Section 3 ZBA Chairman 25-Aug-15 Chapter 164 Section 1 ZBA Chairman 25-Aug-15 Chapter 184 Section 23C ZBA Chairman 25-Aug-15 Definition of Site-Black's ZBA Chairman Law Dictionary, Seventh Edition,Page 1392.West Group St.Paul Minn. 1999. Byran A. Garner Editor In Chief 25-Aug-15 Chapter 7,Appointed Town ZBA Chairman Boards(Page 19) 25-Aug-2015 Chapter 10,Planning and the ZBA Chairman Enviroment(Page 10) 25-Aug-15 Legal Definition of ZBA Chairman Manufacturing(Page 977) MEETING NOTICE TOWN OF NORTH ANDOVER Town Clerk Date Stamp Board/Committee Name: ZONING BOARD OF APPEALS Date: 23 June 2015 Time of Meeting: 7:30 PM Location: Town Hall 120 Main St. Signature ange&ei*& AGENDA 1. Call to Order a) Pledge of Allegiance 2. Acceptance of Minutes a) May 12,2015 3. Committee Reports a) Housing Partnership Report b) Merrimack Valley Planning Commission(MVPC)Report 4. New Public Hearings a) Requesting the Board for a Finding on a Determination made by The Inspector of Buildings relating to an OSGOD Permit Application for Solar Photovoltaic System in the I-2 Zoning District at 1600 Osgood Street(Map 34 Parcel 17) Petition 2015-003 b) Special Permit Zoning District,R-4. Janet Eichler 11 Tyler Road (Map 33 Parcel 7) Petition 2015-004 5. Discussions Requesting for extension at 288 Sutton Street Lots 1,2,3,4 and 5 (Notice of Decisions on 2013-006,2013-007,2013-008,2013-009 and 2013-010) 6. Miscellaneous Correspondence a CHAPA 7. Adiournment Notices and agendas are to be posted 48 hours in advance of the meeting excluding Saturdays,Sundays and legal holidays. Please keep in mind the Town Clerk's hours of operation and make necessary arrangements to be sure your posting is made in an adequate amount of time. A listing of topics the chair reasonably anticipates will be discussed at the meeting are to be listed on the agenda. Note: Matters may be called out of order and not as they appear in the agenda. i MEETING NOTICE TOWN OF NORTH ANDOVER Town Clerk Date Stamp Board/Committee Name: ZONING BOARD OF APPEALS Date: 25 August 2015 Time of Meeting: 7:30 PM Location: Town Hall 120 Main St. Signature AGENDA 1. Call to Order a) Pledge of Allegiance 2. Continued Public Hearin a) Requesting the Board for a Finding on a Determination made by The Inspector of Buildings relating to an OSGOD Permit Application for Solar Photovoltaic System in the I-2 Zoning District at 1600 Osgood Street(Map 34 Parcel 17) Petition 2015-003 Board Members in attendance 6-23-2015 Manzi,McIntyre,Cuscia,Koch,Ludgin and Ludgin 3. Adiournment Notices and agendas are to be posted 48 hours in advance of the meeting excluding Saturdays,Sundays and legal holidays. Please keep in mind the Town Clerk's hours of operation and make necessary arrangements to be sure your posting is made in an adequate amount of time. A listing of topics the chair reasonably anticipates will be discussed at the meeting are to be listed on the agenda. Note: Matters may be called out of order and not as they appear in the agenda. 'Y.`✓'•JJ Qn:'/.: '.'/.'..;C3.iu<i!/,/.•JiY%=W3 L5Z ✓:!<'/..;'WXznaY4S.ja7.' s�-VI:T.:•✓f../.y•ux,?,G;rrh'r/,i5c,/•s2:%59'.!ZO"F+':;:t:::r '1rr.:A:/a.•ril=•b;v11-7Y6c1:::!»!• 7.2'L "Y'P,:?,:r/+:.5;:4G'Y,., :.cl.r��yu;./u Town of North andover r hr ZONING BOARD OFAFAEAtS Albert P.Manzi.11l,Esq.Chalrmari s t * rl °'"`'`' EI1en P.McIntyre,Vice Chairman h Allan Cuscia Doug Ludgin s D.Paul Koch ir.Esq G Associate Members a Deney Morgatitha! Nathan Wefnreich f a: I SPECIAL MEETING NOTICE y ZONING SOAR® OF APPEALS D TH u AUGUST 25 :2015 7:30 PM r Town Building Selectmen Meeting Room q 120 Main Street Y l i 2nd Floor f North Andover Ma v s For the continued public hearing as to the a b; Osgood Solar LLC petitions with respect to o r is h purposed Solar Photovoltaic System in the 1-2 Zoning District at 1600 Osgood Street (!1/!ap 34 Parcel 17) 6x i W � I ii Perthe Chairman,Albert P,Manzi III,Esquire in accordance with ATticie 15ection b of the adopted Rules and Regulations of the Zoning Board of Appeals. ,• f i J� Y f$ Y I :Y l :cYFl,:rf%�.�*:%r/i=f.Y.7Y..�?YC"1P•%iT/.r/.N.•r,[::'r.Y b:'•/.`%l/•J:-n;;OY,'Y/SSf.U,f.Y.7Gl.?//_+TI.L.Jlr�i2y';✓.iJ,2FJ.!..�!/.J,-i'JGI/d/S'iG.:'✓/a:r'i:?/dG,7/a7..^+.Q/i:Li•'s�G'/.;.(J}f/.•l'/.lq:b/.✓iJ'%;�'7/.-.7:�i,'f../;%.CJ:.:/,CY,C/7�:/,,`.".:�:lr/.0/.7�`J„r;.^✓/,.,if i I Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi 111,Esq.Chairman Ellen P.McIntyre,Vice-Chairman oRTM D.Paul Koch Jr.,Esq. µ of oR' � q� Doug Ludgin �o� Allan Cuscia F c Associate Members Deney Morganthal * i Nathan Weinreich Alexandria A.JacoUs Esq. SSACHU`�E To: John Simons,Chairman,North Andover Planning Board Kristine Cheetham,Town Planner From: Albert P.Manzi III,Esquire,Chairman,Zoning Board of Appeals Re: Osgood Solar,LLC Date: September 1,2015 With respect to the application of Osgood Solar LLC pending before the North Andover Planning Board,please be advised on or about August 25,2015 the North Andover Zoning Board of Appeals closed the public hearing with respect to Osgood Solar,LLC who requested findings an as an Aggrieved Party pursuant to section 17 of the North Andover Zoning Bylaw and MGL Ch.40A to overturn determinations of the Building Inspector dated on or about March 24,2015 and submitted to the North Andover Planning Board. Please be advised on or about August 25,2015 the Zoning Board of Appeals voted 4-1 in favor of the Applicant to overturn the Building Inspector as to the requested findings. The Board of Appeals shall issue its decision within 14 days of the vote. Page 1 of 1 PETITION:2015-003 TOWN OF NORTH ANDOVER Office of the Building Department o��t,p10 R TF1�o ,,gtio Community Development and Services ° 1600 Osgood Street, Bldg. 20,Suite 2035 �O p North Andover, MA 01845 978-688-9545 AC US Gerald Brown, Inspector of Buildings April 21, 2015 To: Dan Leary—PowerOwners, LLC Fr:Gerald Brown, Inspector of Buildings Re:Osgood Solar LLC Special Permit—Construct Rooftop and Parking Canopy Mounted Solar Photovoltaic System -19,500 Solar Modules, 6 MW.Approximately 5,500 Rooftop Mounted Solar Modules and approximately 14,000 Carport Canopy Modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, 150-630 feet long. In response to your email dated April 16, 2015, 1 have determined the following. According to the Zoning Bylaw of the Town of North Andover Section 4.133—Industrial 2 District, 11. b. is absent of a generating facility,therefore is not allowed. Sincerely, Gerald Brown Inspector of Buildings TOWN OF NORTH ANDOVER Office of the Building Department uF O o 1 qti Community Development and Services e. 'fu "6'° 1600 Osgood Street,Bldg.20,*Suite 2035 ti North Andover, MA 01845 * y� 978-688-9545 �i9 p�RA7EO,,?P��S SSACHU Gerald Brown, Inspector of Buildings March 24,2015 To:Town of North Andover Planning Board Fr:Gerald Brown,Inspector of Buildings Re: Osgood Solar LLC Special Permit—Construct Rooftop and Parking Canopy Mounted Solar Photovoltaic System-19,500 Solar Modules, 6 MW.Approximately 5,500 Rooftop Mounted Solar Modules and approximately 14,000 Carport Canopy Modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, 150-630 feet long. Section 10.1 of the North Andover Zoning Bylaw provides that the Bylaw shall be enforced by the Building Inspector. Based on my review of the application dated March 20,2015 for a Special Permit I have determined the following: 1. Section:17.3.2 of the Osgood Smart Growth Overlay District(OSGOD)of the Zoning.Pylaw states in part: "Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordancq with the requirements of this Section 17,or to develop a site in: accordance with�the requirements ofthe regulations for use,dimension and all-other provisions of the Zoning Bylaw governing the underlying zoning districts(s)." On June 17,2014 this site(Assessor Map 34, Parcel 17) received approval of a Special Permit under the OSGOD. 2. The solar installation for purpose of a generating facility,which is being applied for here,is not a listed use under the As-Of-Right Uses allowed (As-Of-Right Uses Section 17.6.1.2) 3. Prohibited Uses(Section 17.6.4)states"All uses not expressly allowed are prohibited." 4. In addition,the application states it for a "manufacturing" use. In my opinion a solar j Installation for purposes of a generating facility for some utility users-who are not on the site, it is not "manufacturing" under the OSGOD Bylaw. Sincerely, Gerald Brown Inspector of Buildings ; TOWN OF NORTH ANDOVER Office of the Building Department o�tt�eo pORTIy,bgti Community Development and Services o? 1600 Osgood Street, Bldg. 20,Suite 2035 '' 70 North Andover, MA 01845 i * 978-688-9545 o � �9SSCHUSE��� Gerald Brown, Inspector of Buildings April 21, 2015 To: Dan Leary—PowerOwners, LLC Fr: Gerald Brown, Inspector of Buildings Re:Osgood Solar LLC Special Permit—Construct Rooftop and Parking Canopy Mounted Solar Photovoltaic System - 19,500 Solar Modules, 6 MW.Approximately 5,500 Rooftop Mounted Solar Modules and approximately 14,000 Carport Canopy Modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, 150-630 feet long. In response to your email dated April 16, 2015, 1 have determined the following. According to the Zoning Bylaw of the Town of North Andover Section 4.133—Industrial 2 District, 11. b. is absent of a generating facility,therefore is not allowed. Sincerely, Gerald Brown Inspector of Buildings -b I Ciofolo, Angela From: Brown, Gerald Sent: Tuesday, April 21, 2015 5:21 PM To: Dan Leary Cc: Enright,Jean; Kfoury, Eric; Maylor,Andrew; Ciofolo,Angela; Orit Goldstein Subject: RE: Request for I2 Zoning Determination for Osgood Solar Dear Dan, According to the Zoning Bylaw of the Town of North Andover a solar generating facility in the Industrial 2 zone is not an allowed use. Thank you, Gerald Brown F Inspector of Buildings Town of North Andover From: Dan Leary [mailto:dleary@powerowners.com] Sent: Thursday, April 16, 2015 8:34 AM To: Brown, Gerald Cc: Enright, Jean; Kfoury, Eric; Maylor, Andrew; Ciofolo, Angela; Orit Goldstein Subject: Request for I2 Zoning Determination for Osgood Solar Hello Gerry, trust you are well. As we discussed on Tuesday, I have attached a letter that the Osgood Solar development team has compiled to assist with your determination of the solar project under the Industrial 2 District. The planning department has requested this determination in advance of Osgood Solar submitting the permitting application under the 12 zoning. Please feel free to contact me at any time with questions,978.496.3460. v/r, Dan Daniel P. Leary PowerOwners, LLC 857 Turnpike Street, Suite 233 North Andover, MA 01845 978.496.3460 Direct 978.309.6688 Main 1 d Ciofolo, Angela From: albert manzi <attymanzi@manzilaw.net> Sent: Monday, May 11, 2015 11:37 AM To: Ciofolo,Angela Cc: Dan Leary; ogoldstein@ozzyproperties.com Subject: Fw:ZBA Application Angela, Please provide Mr. Leary with our standard Finding application form for his filed pending petition. For docketing purposes, Mr. Leary may incorporate what he's filed under the umbrella of that Finding form as to his request(s) for relief as and his request the board to make particular findings thereto. To the extent Mr. Leary is requesting more that one finding (request for relief) he can list in numerical order on an attached sheet each bylaw section and description and the requested Board action thereto pursuant to the zoning administrative denial(s) of record. Once received back from Mr. Leary or his designee, the legal notice would then need to be prepared in accordance with each numbered request for relief as to each finding. Kindly be certain all other requested information I noted is received. Any questions please do not hesitate to ask me. Regards, APM III, Chairman Attorney Albert P. Manzi III PO Box 486 North Andover, MA 01845 Tel. 978-771-1553 Fax 978-824-3996 www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you re ceive this email in error, please notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments. ----- Forwarded Message ----- From: albert manzi <attymanzi@manzilaw.net> To: "d lea ry@powerowners.com" <dleary@powerowners.com> Cc: Angela Ciofolo <aciofolo@townofnorthandover.com>; "ogoldstein@ozzyproperties.com" <ogoldstein @ozzyprope rties.corn> Sent: Friday, May 8, 2015 11:44 AM Subject: Re: ZBA Application 1 n Mr. Leary, My name is Albert Manzi I I I and I am the Chairman of the North Andover Zoning Board of Appeals (ZBA). I am writing because it is my understanding you wish to be docketed at our June meeting pursuant to your filed request(s) and are preparing to publish a legal notice for a June publishing deadline to make the June meeting. I am writing because I have reviewed your application. In its current form I believe your application is defective, but curable, and will need to be amended to address various procedural and legal notice requirements that need to be addressed timely in order to be properly docketed for a ZBA public hearing in June. Upon my initial review of your application form, I am unclear as to exactly what form of relief you are seeking from the ZBA as to the zoning bylaw and what specific action you are requesting the ZBA take as to each separate request for relief. In your amended application form, kindly cite and describe with particularly each zoning bylaw you are requesting relief from, and the specific action you are asking the ZBA to take thereto as to each request in numbered short concise statements; and indicate whether you are applying pursuant to MGL Ch. 40A or MGL ch. 40R. As to the specific relief itself within your application form, kindly indicate whether you are asking the ZBA for specific findings as a party aggrieved pursuant to MGL Ch. 40A sec 8 and 15 as per Article VI of the ZBA rules and regulations, or some other request as to relief from a dimensional requirement, and or a request for special permit. Please also indicate whether you applied for a building permit and whether that application for building permit was denied. I realize you have a lengthy supporting legal memorandum, but the application form needs to be specific and clear. As to the required legal notice for publication, it must contain the exact specific request for relief for each request and the citied and described zoning bylaw that you are appealing ( as I have indicated in the above paragraph). The legal notice as it is written for publication does not sufficiently state the particular relief you have requested from the ZBA or properly cite and describe the zoning bylaws at issue. Therefore, I do not believe the legal notice in its current form is sufficient for a public hearing notice and will need to be amended based on the information you provide in your amended application form. Additionally, I am not familiar with the application form you used to file with the ZBA as it is not one of our standard forms specific to relief sought by a petitioner that I recall. For example, as stated on the form you used, I am not aware of a ZBA regulation that all applications must be type written. Therefore, pursuant to Article II sec I of the ZBA rules and regulations I am treating your filed application form as a mere notice of intention to seek relief until such time as it is amended and filed with the standard ZBA form as I indicated in the above paragraphs. As you are likely aware pursuant to MGL Ch. 40A, the Zoning Bylaw, section 10-5-1 of the Town Charter, and the Adopted Rules and Regulations of the ZBA, the North Andover Zoning Board of Appeals is an independent 5 person board with three alternates made up of appointed volunteers. In January of 2015 the ZBA administrative secretary's hours was reduced to half time by town management. Therefore, if I can be of assistance as to helping you with respect to your application to ensure you make the June meeting please let me know. As you are likely aware, the ZBA does not have a July meeting scheduled. In summary, in order to move forward procedurally, and in addition to the above stated, the following needs to be filed with your amended application if you have not done so already: 2 • I.'Authorization letter from land title holder granting permission to you and the entity that filed the application for their property. 2. Notice of Appearance from the Attorney that will be representing the Applicant and land owner before the ZBA. 3. Certificate(s) of Good Standing filed with the ZBA as to any and all entity applicants and or title holders. 4. Any and all required plans of scale depicting what you propose to construct and any and all dimensional aspects thereto. 5. Any and all filing requirements pursuant to the adopted ZBA rules and regulations. To the extent I can be of more assistance with respect to the procedural aspects of the ZBA application process, do not hesitate to contact me. Thank you. Regards, APM III, Chairman, ZBA Attorney Albert P. Manzi III PO Box 486 North Andover, MA 01845 Tel. 978-771-1553 Fax 978-824-3996 www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you receive this email in error, please notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments. From: Dan Leary <dleary@powerowners.com> To: "Ciofolo, Angela" <aciofolo@townofnorthandover.com> Cc: attymanzi@manzilaw.net Sent: Wednesday, May 6, 2015 3:41 PM Subject: RE: ZBA Legal Notice reminder for 1600 Osgood Street North Andover Hello Angela, Thank you very much for the reminder. We are tracking the June 3rd deadline, though it never hurts to send the reminder! 3 Thank you for all of your help- Sincerely, Dan Daniel P. Leary PowerOwners, LLC 857 Turnpike Street, Suite 233 North Andover, MA 01845 978.496.3460 Direct 978.309.6688 Main From: Ciofolo, Angela [maiIto:aciofolo(aD-townofnorthandover.com] Sent: Wednesday, May 6, 2015 11:26 AM To: dleary(cD-powerowners.com Cc: 'attymanzi .manzilaw.net' Subject: ZBA Legal Notice reminder for 1600 Osgood Street North Andover Hello Dan, This is just a reminder that the Legal Notice I gave you needs to be published in the Eagle Tribune before the deadline of June 3rd Hope you are doing well and enjoying this well-deserved weather. If you have any questions or concerns, please do not hesitate to call or e-mail me. Have a good day. Angela Ciofolo Zoning Assistant Town of North Andover 1600 Osgood Street-Suite2035 North Andover, MA 01845 Web www.TownofNorthAndover.com All email messages and attached content sent from and to this email account are public records unless qualified as an exemption under the Massachusetts Public Records Law. Visit us online at www.townofnorthandover.com 4 I Social Networks twitter.com/north andover www.facebook.com/northandoverma i 5 Permit Listin Report Date Range.Issued between 0110112007 And 08/11/2015 by Permit Type Printed On:Tue Aug 11,2015 SQL Statement:Street No.like"1600"AND(Street like"OSGOOD STREET"OR Work Location like"*OSGOOD STREET*")and([Type of Permit]="Building") Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $226,175.00 034.0/0017/ 099-13 Expired Aug-06-2012 Wojcik Development Co.Inc.(978)251-7705 Interior Office Fit Up-Network Allies $2,815.00 16480 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $50,000.00 142-14 Expired Aug-14-2013 TADEUSZ DOWGIEERT Tenant Fit Up for ME Technology $700.00 9313 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $4,800.00 144-13 Expired Aug-21-2012 Cubicle Connection Inc.(978)360-7214 Build up of Cubicles $58.00 306 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $58,000.00 178-13 Expired Sep-04-2012 TADEUSZ DOWGIEERT Replace Existing Windows for Network Allies $696.00 8946 i 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $3,800.00 200-14 Expired Sep-10-2013 Cubicle Connection Inc.(978)360-7214 Cubicle Divider Suite 3068 $46.00 435 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $2,000.00 201-14 Expired Sep-10-2013 Cubicle Connection Inc.(978)360-7214 Cubicle Dividers New England Tractor Trailer $30.00 436 GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 1 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $51,760.00 034.0/0017/ 222-14 Expired Sep-10-2013 TADEUSZ DOWGIEERT Office Build Out for Wattts Regulator $621.00 9349 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $166,200.00 438-14 Expired Nov-19-2013 Mark S.Caples(781)933-8288 NETTS Buildout for HVAC Scbool $1,994.00 33927 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $24,500.00 499-15 Expired Dec-02-2014 TADEUSZ DOWGIEERT Tenant Fit UP Strolid $294.00 9780 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $7,000.00 570-15 Expired Dec-23-2014 Quad Construction(603)201-0843 Tenant Fit up Suite 3090-Hudson Design $84.00 2440 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $5,500.00 582-14 Expired Jan-07-2015 Cubicle Connection Inc.(978)360-7214 Cubicles Suite 203-Strolid $166.00 0632 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $95,590.00 634-12 Expired Mar-05-2012 TADEUSZ DOWGIEERT Office Build Out for Watts Regulator-2400 sf office and installation of cublicles $1,147.00 8757 GeoTMS©2015 Des Lauriers Municipal Solutions,Inc. Page 2 of 17 i Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $1,000.00 034.0/0017/ 676-13 Expired Apr-16-2013 Cubicle Connection Inc.(978)360-7214 Cubicles in Suite 2095 $30.00 387 1600 OSGOOD STREET I-2 LUCENT TECHNOLOGIES PROERTY Commercial Alteration $247,800.00 TAX GROUP 693-12 Expired Apr-02-2012 TADEUSZ DOWGIEERT Office Expansion and Buildout of 8500 SF for Mentor Network $3,398.00 8778 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $21,250.00 825-12 Expired May-17-2012 Cubicle Connection Inc.(978)360-7214 Cubicles for Mentor Networks $255.00 0286 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration 839-15 OPEN Apr-27-2015 Larry Cushing Youth Center Carnival 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $825.00 844-12 Expired May-29-2012 Cubicle Connection Inc.(978)360-7214 OFFFICE&WAREHOUSE SPACE $30.00 497 I 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $238,300.00 923-12 Expired Jun-22-2012 TADEUSZ DOWGIEERT Interior Office Build out for Hudson Design,Install new Windows,Renovate Existing Bathrooms $2,860.00 8861 GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 3 of 17 Permit Listinz Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $379,400.00 PROPERTIES,INC 034.0/0017/ BO-2010-196 Expired Sep-14-2009 1600 OSGOOD STREET LLC C/O OZZY COMMERCIAL TENANT FIT UP FOR MENTOR PROPERTIES,INC METWORK FACILITY $4,653.00 ON RECEIPT 1600 OSGOOD STREET C-Power Commercial Alteration $6,500.00 BP_2011-069 Expired Jul-16-2010 C-Power estimted 27 workstations for C-Power,3rd floor $78.00 1499 1600 OSGOOD STREET OZZY PROPERTIES Commercial Alteration $85,000.00 BP-1020-756 Expired May-26-2010 OZZY PROPERTIES Office build out. Permit 756 $1,120.00 8193 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $7,500.00 PROPERTIES,INC BP-2007-501 Expired Jan-16-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP BLDG 20 2ND FLOOR PROPERTIES,INC $90.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $50,300.00 PROPERTIES,INC BP-2007-511 Expired Jan-16-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP BLDG 20,2ND FLOOR PROPERTIES,INC $704.00 ON RECEIPT GeoTMS©2015 Des Lauriers Municipal Solutions,Inc. Page 4 of 17 Permit Listing Report by Permit Type i { Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $19,500.00 PROPERTIES,INC 034.0/0017/ BP-2007-528 Expired Feb-01-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP WATTS REGULATOR PROPERTIES,INC $234.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $16,810.00 PROPERTIES,INC BP-2007-531 Expired Feb-02-2007 1600 OSGOOD STREET LLC C/O OZZY ASSEMBLE MODULAR WORKSTATIONS-WATTS PROPERTIES,INC REGULATOR $202.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Misc $3,000.00 PROPERTIES,INC BP-2007-566 Expired Mar-27-2007 1600 OSGOOD STREET LLC C/O OZZY OFFICE PARTITIONS PROPERTIES,INC $36.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $30,140.00 PROPERTIES,INC BP-2007-580 Expired Mar-06-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP FOR CUBICALS PROPERTIES,INC � $362.00 ON RECEIPT I GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 5 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 LUCENT TECHNOLOGIES PROERTY Commercial Alteration $350.00 TAX GROUP 034.0/0017/ BP-2007-604 Expired Mar-15-2007 LUCENT TECHNOLOGIES PROERTY TAX COMMERCIAL TENANT FIT UP OZZY PROPERTIES GROUP $30.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $627,689.00 PROPERTIES,INC BP-2007-619 Expired Mar-26-2007 1600 OSGOOD STREET LLC C/O OZZY PHOTVOLTAIC ARRAY PROPERTIES,INC $7,532.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $75,000.00 PROPERTIES,INC BP-2007-626 Expired Mar-29-2007 1600 OSGOOD STREET LLC C/O OZZY COMMERCIAL TENANT FIT UP PROPERTIES,INC $900.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $3,200.00 PROPERTIES,INC BP-2007-627 Expired Mar-28-2007 1600 OSGOOD STREET LLC C/O OZZY NEW CEILING,LIGHTS,SPRINKLER FOR NEXSTAGE PROPERTIES,INC MEDICAL $80.00 ON RECEIPT GeoTMS©2015 Des Lauriers Municipal Solutions,hie. Page 6 of 17 Permit Listing Report by Permit Type i Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $2,500.00 PROPERTIES,INC 034.0/0017/ BP-2007-664 Expired Apr-13-2007 1600 OSGOOD STREET LLC C/O OZZY COMMERCIAL TENANT FIT UP PROPERTIES,INC $30.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY REPAIR SERVICE $69,900.00 PROPERTIES,INC BP-2007-677 Expired Apr-23-2007 1600 OSGOOD STREET LLC C/O OZZY REPLACE EXTERIOR DOOR OZZY PROPERTIES PROPERTIES,INC $840.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/0 OZZY Misc $2,400.00 PROPERTIES,INC BP-2007-678 Expired Apr-23-2007 1600 OSGOOD STREET LLC C/O OZZY INSTALLATION OF CUBICLES FOR TRIOLIGIC IN PROPERTIES,INC Bldg 30,2ND FLOOR $30.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Misc $14,800.00 PROPERTIES,INC BP-2007-845 Expired Jun-21-2007 1600 OSGOOD STREET LLC C/O OZZY REPAVING FOR HANDICAP ENTRANCE PROPERTIES,INC $178.00 ON RECEIPT GeoTMS©2015 Des Lauriers Municipal Solutions,Inc. Page 7 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $721,260.00 PROPERTIES,INC 034.0/0017/ BP-2007-846 Expired Jun-21-2007 1600 OSGOOD STREET LLC C/O OZZY INSTALL NEW ELEVATOR AND RENOVATION OF PROPERTIES,INC SO BLDG#30 REST ROOM $8,656.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $55,000.00 PROPERTIES,INC BP-2007-866 Expired Jun-29-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP FOR MUSIC SCHOOL IN BLDG#30, PROPERTIES,INC 2ND FLOOR $660.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY temp permits $2,900.00 PROPERTIES,INC BP-2008-086 Expired Aug-01-2008 1600 OSGOOD STREET LLC C/O OZZY OFFICE TRAILER PROPERTIES,INC $348.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $82,153.00 PROPERTIES,INC BP-2008-090 Expired Aug-03-2007 1600 OSGOOD STREET LLC C/O OZZY OFFICE TENANT FIT UP PROPERTIES,INC $986.00 ON RECEIPT GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 8 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $144,000.00 PROPERTIES,INC ' 034.0/0017/ BP-2008-165 Expired Aug-30-2007 1600 OSGOOD STREET LLC C/O OZZY COMMERCIAL INTERIOR TENANT FIT UP PROPERTIES,INC $1,728.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $338,000.00 PROPERTIES,INC BP-2008-166 Expired Aug-30-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP COMMERCIAL PROPERTY PROPERTIES,INC $4,056.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $1,100.00 PROPERTIES,INC BP-2008-193 Expired Sep-07-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP PROPERTIES,INC $30.00 ON RECEIPT 1600 OSGOOD STREET 1-2 1600 OSGOOD STREET LLC C/O OZZY Demolition $45,000.00 PROPERTIES,INC BP-2008-210 Expired Sep-18-2007 1600 OSGOOD STREET LLC C/O OZZY DEMOLITION OF EXISTING TRAILER BLDG#85 PROPERTIES,INC $540.00 ON RECEIPT GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 9 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $3,800.00 PROPERTIES,INC 034.0/0017/ BP-2008-232 Expired Sep-25-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP COMMERCIAL PROPERTIES,INC $46.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $147,254.00 PROPERTIES,INC BP-2008-242 Expired Sep-28-2007 1600 OSGOOD STREET LLC C/O OZZY COMMERCIAL INTERIOR FIT UP. BLDG#20 2ND PROPERTIES,INC FLOOR $1,767.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $435,143.00 PROPERTIES,INC BP-2008-298 Expired Oct-18-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP FOR LASERCRAZE PROPERTIES,INC $5,222.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $350,787.00 PROPERTIES,INC BP-2008-299 Expired Oct-18-2007 1600 OSGOOD STREET LLC C/O OZZY CREATE FOOD AREA PROPERTIES,INC $4,310.00 ON RECEIPT- GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 10 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 LUCENT TECHNOLOGIES PROERTY Commercial Alteration $5,000.00 TAX GROUP 034.0/0017/ BP-2008-377 Expired Nov-13-2007 LUCENT TECHNOLOGIES PROERTY TAX TENANT FIT UP COMMERCIAL GROUP $60.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $1,709,707.00 PROPERTIES,INC BP-2008-388 Expired Nov-16-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP PROPERTIES,INC $20,516.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $7,600.00 PROPERTIES,INC BP-2008-428 Expired Dec-14-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP AT OZZY PROPERTIES PROPERTIES,INC $91.20 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $231,180.00 PROPERTIES,INC BP-2008-440 Expired Dec-19-2007 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP BLDG#20 + PROPERTIES,INC +j $2,874.16 ON RECEIPT GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 11 of 17 Permit Listinz Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $5,295.00 PROPERTIES,INC 034.0/0017/ BP-2008-484 Expired Feb-15-2008 1600 OSGOOD STREET LLC C/O OZZY PROVIDE ELECTRICAL HOOK UP OF 5 PIECES OF PROPERTIES,INC INDUCTRIAL EQUIPMENT. $66.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $286.00 PROPERTIES,INC BP-2008-491 Expired Feb-21-2008 1600 OSGOOD STREET LLC C/O OZZY MODULAR WORKSTATIONS PROPERTIES,INC $286.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Solar Panels $407,227.00 PROPERTIES,INC BP-2008-558 Expired Mar-31-2008 1600 OSGOOD STREET LLC C/O OZZY INSTALLATION OF PHOTOVOCTAIC ARRAY ON PROPERTIES,INC ROOF $4,886.73 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $15,754.00 PROPERTIES,INC BP-2008-609 Expired Apr-16-2008 1600 OSGOOD STREET LLC C/O OZZY COMMERCIAL TENANT FIT UP FOR BUILDING#20 PROPERTIES,INC 2ND FLOOR $1,821.00 ON RECEIPT GeoTMS@ 2015 Des Lauriers Municipal Solutions,Inc. Page 12 of 17 { 1 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/0 OZZY Commercial Alteration $2,800.00 PROPERTIES,INC 034.0/0017/ BP-2008-757 Expired Jun-19-2008 1600 OSGOOD STREET LLC C/O OZZY ADD HANDICAP RAMP AND WALKWAY PROPERTIES,INC $30.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Misc $0.00 PROPERTIES,INC BP-2009-163 Expired Sep-03-2008 1600 OSGOOD STREET LLC C/O OZZY TEMP TENT PROPERTIES,INC $0.00 ON RECEIPT 1600 OSGOOD STREET 1-2 LUCENT TECHNOLOGIES PROERTY Commercial Alteration $40,000.00 TAX GROUP BP-2009-202 Expired Sep-19-2008 LUCENT TECHNOLOGIES PROERTY TAX INTERIOR TENANT FIT UP GROUP $480.00 ON RECEIPT 1600 OSGOOD STREET 1-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $115,669.00 PROPERTIES,INC BP-2009-301 Expired Oct-30-2008 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP FOR BLDG 20 2ND FLOOR PROPERTIES,INC $1,489.00 ON RECEIPT GcoTMS@ 2015 Des Lauriers Municipal Solutions,Inc. Page 13 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $23,200.00 PROPERTIES,INC 034.0/0017/ BP-2009-324 Expired Nov-12-2008 1600 OSGOOD STREET LLC C/O OZZY RENOVATION OF CAFETERIA @ OZZY PROPERTIES PROPERTIES,INC $279.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $5,400.00 PROPERTIES,INC BP-2009-405 Expired Dec-30-2009 1600 OSGOOD STREET LLC C/O OZZY OFFICE CUBICLES FOR FIRE PRO INC PROPERTIES,INC $65.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $28,040.00 PROPERTIES,INC BP-2009-495 Expired Mar-23-2009 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP IN BLDG 42- 2ND FLOOR PROPERTIES,INC $336.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Misc $0.00 PROPERTIES,INC BP-2009-539 Expired Apr-14-2009 1600 OSGOOD STREET LLC C/O OZZY CARNIVAL FOR FUND RAISER PROPERTIES,INC $0.00 ON RECEIPT GeoTMS@ 2015 Des Lauriers Municipal Solutions,Inc. Page 14 of 17 Permit Listing Repot by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $234,568.00 PROPERTIES,INC 034.0/0017/ BP-2009-605 Expired May-12-2009 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP FOR THE SCHOOL DEPT 3RD FLOOR ' PROPERTIES,INC $2,815.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $376,475.00 PROPERTIES,INC BP-2009-652 Expired May-28-2009 1600 OSGOOD STREET LLC C/O OZZY SITE WORK AND CONCRETE BIODIESEL TRUCK PROPERTIES,INC LOADING $4,618.00 ON RECEIPT 1600 OSGOOD STREET I-2 LUCENT TECHNOLOGIES PROERTY Commercial Alteration $49,000.00 Commercial TAX GROUP BP-2010-335 Expired Oct-26-2009 LUCENT TECHNOLOGIES PROERTY TAX TENANT FIT UP FOR DANCE WORKS BLDG#30 GROUP LOWER FLOOR $588.00 ON RECEIPT 1600 OSGOOD STREET I-2 LUCENT TECHNOLOGIES PROERTY Commercial Alteration $13,500.00 TAX GROUP BP-2010-336 Expired Oct-26-2009 LUCENT TECHNOLOGIES PROERTY TAX TENANT FIT UP MENTOR NETWORKS-3RD FLOOR GROUP $162.00 ON RECEIPT GeoTMS@ 2015 Des Lauriers Municipal Solutions,Inc. Page 15 of 17 Permit Listing Report by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# Building 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Commercial Alteration $368,548.00 PROPERTIES,INC 034.0/0017/ BP-2010-439 Expired Dec-09-2009 1600 OSGOOD STREET LLC C/O OZZY TENANT FIT UP for OPHIR OPTIC BLDG 21 PROPERTIES,INC $4,522.00 ON RECEIPT 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Residential Alteration& $22,117.00 PROPERTIES,INC Repairs BP-2010-514 Expired Feb-16-2010 1600 OSGOOD STREET LLC C/O OZZY REPLACE EXISTING VERTICLA PLATFORM LIFT PROPERTIES,INC $265.00 ON RECEIPT 1600 OSGOOD STREET Jessica's Brick Oven Demolition $20,000.00 BP-2011-083 Expired Jul-27-2010 Jessica's Brick Oven interior non-structural demolition of ceiling,garage door, removal of floor tiles for Jessica's Brick Oven $240.00 2046 1600 OSGOOD STREET Jessica's Brick Oven Commercial Alteration $72,500.00 BP-2011-127 Expired Aug-16-2010 Jessica's Brick Oven interior non-structural demolition of ceiling,garage door, removal of floor tiles for Jessica's Brick Oven build 150 ft.of walls,install bakery equipment,cleaning room,hand sinks,plumbing,electrical,HVAC,permit 127 $970.00 2060 1600 OSGOOD STREET Orit Goldstein/1600 Osgood Street,LLC Commercial Alteration $2,500.00 BP-2011-248 Expired Sep-24-2010 PANEL CLAW CUBICLE AS PER PLANS $30.00 2171 GeoTMS©2015 Des Lauriers Municipal Solutions,Inc. Page 16 of 17 Permit ListinzReport by Permit Type Permit Type Address(Work Location) District Zoning Owner Work Category Est.Cost Proposed Use Details Map/Block/Lot Permit No Online Permit No Permit Status Date Issued Contractor(Phone#) Work Description Fees Paid Check# ! Building 1600 OSGOOD STREET I-2 LUCENT TECHNOLOGIES&PROPERTY Commercial Alteration $71,721.00 TAX GROUP 034.0/0017/ BP-2011-547 Expired Feb-01-2011 OZZY PROPERTIES INTERIOR BUILD-OUT OF APPROX. 1200 S.F.FOR YANKEE CLIPPER SCOUT SHOP,PERMIT 547 $961.00 8405 i 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Misc $300.00 PROPERTIES,INC BP-2011-697 Expired Apr-20-2011 1600 OSGOOD STREET LLC C/O OZZY ANNUAL CARNIVAL TO BE HELD AT 1600 OSGOOD PROPERTIES,INC STREET,PERMIT#697-2011 WAIVED FEE. $0.00 N/A 1600 OSGOOD STREET MOBILE MINI,INC. Commercial Alteration $0.00 BP-2012-018 Expired Jul-08-2011 MOBILE MINI,INC. OFFFICE&WAREHOUSE SPACE $130.00 537 1600 OSGOOD STREET I-2 1600 OSGOOD STREET LLC C/O OZZY Sign Permit $0.00 PROPERTIES,INC S06-2009 Expired Oct-07-2008 1600 OSGOOD STREET LLC C/O OZZY OPHIR OPTICS, SIGN PERMIT PROPERTIES,INC $72.00 ON RECEIPT Permit Type(BUILDING)TOTALS: ESTIMATED COST: $8,753,273.00 NUMBER OF PERMITS: 76 FEES INVOICED: $109,325.09 FEES PAID: $109,325.09 BALANCE: $.00 GRAND TOTALS: ESTIMATED COST: $8,753,273.00 NUMBER OF PERMITS: 76 FEES INVOICED: $109,325.09 FEES PAID: $109,325.09 BALANCE: $.00 GeoTMS®2015 Des Lauriers Municipal Solutions,Inc. Page 17 of 17 f NORTH A O`4t�t° ,aa ti0 ti A 9SSACHUSEt TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail jbradshaw�townofnorthandover.comcom November 20, 2007 Commonwealth of Massachusetts Office of the Attorney General Western Massachusetts Division 1350 Main Street, 4th Floor Springfield, Massachusetts 01103-1629 Kelli E. Gunagan, Assistant Attorney General By-law Coordinator, Municipal Law Unit Dear Attorney Gunagan, Enclosed are certified copies of the amended vote on Article 27 from the Dissolved Annual Town Meeting for the Town of North Andover held June 4, 2007 as prescribed in the Approval for Case 44430 dated October 2, 2007. Also submitted, is a certified copy of the approval letter from the Department of Housing and Community Development dated October 26, 2007 for the Osgood Smart Growth Overlay District Letter of Approval. The posting of the approval of Article 27 and 28 pursuant to Chapter 40 Section 32 was completed on November 9, 2007. Please advise if there is any additional information you require. I wish to express my sincere personal thanks for the assistance and guidance you provide. We would no be able to get through this arduous process without your help. Sincerely, �� Q� e oyce A. Bradshaw, CMMC, Town Clerk N O�n� QF N�RT N 14��oJ I� 76D7 AtJNJA*` L t■■■ ZONING LEGEND „e„•-1, s 'A�� ©��� A ....... MTWT 00JOAR(m" 4!, y, 1 H1W USE ZONE 00.6 kJ /�� p�/� �'1i"PR r CV ovs,ort,um wle n».,,ACJ t Qeerle '�0 > ' Dmf'° to F a th r 3 RP ar 15k11 u•" r � �'.yi�"k�""a�J,'t'�' `�, �t ydYr'j 9' i-s-�v�.. r * stta � 4 J � 1s 'YA 12 i pL AT 41 wn Clerk 1600 Osgood Street Smart Growth Overlay District ro�iA SIM Zoning Map Pf ftorea by the North Andover Dc➢ULIIP_C[?t of Community Dev�lrnmer,l —f.- BULLETIN TOWN OF NORTH ANDOVER � pORTii q 0 �,�LEO 16'6100 O rr p COCNICMl WKM y7. ASR^reo SSACHUS� 2007 ANNUAL TOWN MEETING ADOPTION OF BYLAWS SUPPLEMENTAL POSTING Enclosed in this bulletin are Zoning Bylaws and Maps adopted by the Dissolved Town Meeting for the Town of North Andover held May 14, 2007, May 15, 2007, May 21, 2007, and June 4, 2007 and dissolved on June 4, 2007. Bylaws are as approved by the Office of the Attorney General dated October 2, 2007 — CASE #4430. All maps and bylaws as voted and approved are included herein for Article 27 and 28 with the approval of the Department of Housing and Community Developed dated October 26, 2007 included. A certified copy of the amended bylaw as amended by the Office of the Attorney General for Article 27 and the certified vote for Article 28 are included. Copies of this bulletin are available at the Town Building 120 Main Street, Steven's Memorial Library 345 Main Street, and Office of Community Development 1600 Osgood Street all in North Andover. This bulletin is posted in two locations in each voting precinct (eight) in accordance with Massachusetts General Laws Chapter 40 Section 32. Copies of this Bulletin are available on request by calling the Office of the Town Clerk at (978) 688- 9502 and this bulletin is posted on the Town of North Andover website www.townofnorthandover.com. Claims of invalidity by reason of any defect in the procedure of adoption or amendment of zoning bylaws may only be made within ninety days of this posting. POSTED: November 9,2007 JOYCE A. BRADSHAW, CMMC, TOWN CLERK A, ,h ATrue Copy Town Clerk i Commonwealth of Massachusetts ==_ DEPARTMENT OF MOUSING & -- - COMMUNITY DEVELOPMENT Deval L.Patrick,Governor ♦ Timothy P.Murray,Lt.Governor ♦ Tina Brooks,Undersecretary s October 26,2007 Mark Rees Town Manager Town Offices 120 Main Street North Andover,MA 01845 Re: Osgood Smart Growth Overlay District Letter of Approval Dear Mr. Rees: I Pursuant to MGL, Chapter 40R and 760 CMR 59.05(4), I am pleased to issue this non-expiring Letter of Approval to the Town of North Andover (Town) for its adoption on June 4, 2007 of the Osgood Smart Growth Overlay District (District). The District allows for the construction of 530 Incentive Units. The Town is entitled to a $600,000 Zoning Incentive Payment from the Smart Growth Housing Trust Fund established by outside section 26, subsection 35AA of Chapter 149 of the Acts of 2004. This Letter of Approval is subject to the following conditions: 1. If a building permit has not been issued for a Bonus Unit in the District within three years of the date of the Zoning Incentive Payment, or if a building permit was issued within such three-year period, but no. certificate of occupancy for such Bonus Unit was issued within two years thereafter, the Town must submit satisfactory evidence, in the form of certification by the Plan Approval Authority, zoning . enforcement officer or public works official,of the start of construction within that time period of one or more Projects as defined by 760 CMR 59.02, or be subject to revocation under 760 CMR 59.07(") and the repayment of monies under 760 CMR 59.06(3). The start of construction requires evidence satisfactory to the Department of Housing and Community Development(DHCD)that construction activity has occurred in good faith on the Project, such as the pouring of foundations or footings, or utility relocation, or the remediation of hazardous materials on the site, and provided that such construction is continued through to completion. The three-year time period is extended by the time that a Project on which construction would otherwise have started within the three-year time period is subject to legal or administrative appeal or challenge, or if the proponent is actively pursuing other required permits or there is other good cause for the failure to.start construction. 2. The Town designates a smartgrowth reporting officer required by MGL, Chapter 40S. Such officer is responsible for preparing a smart.growth address list, based on occupancy permits,issued in ',he.District, and transmitting such list and supporting documentation to DHCD. ATTEST: A True COPY Town Clerk 1 100 Cambridge Street,Suite 300 www.tnass.govr!dhcd Boston,Massachusetts 02114 617.573.1100 ....._....... 3. The Town designates the municipal official responsible for filing an Annual Update with DHCD on or before July 31 of each year. The Annual Update shall contain the information specified 760 CMR 59.07. 4. Prior to the issuance of a building permit and marketing of a unit for a Project within the District, the affordable units shall be subject to an Affirmative Fair Marketing Plan approved by DHCD. Such Plan must describe the resident selection process for the affordable units and must set forth a plan for affirmative marketing that provides maximum opportunity to low or moderate income households, including minority households. j In order to receive the $600,000 Incentive Payment, the Town must execute a Commonwealth of Massachusetts Standard Contract Form. Please contact Don Schmidt at {617} 573-1363 to discuss the process for completing this contract. Sincerely, ina Broo Undersecretary cc: Robert Ritchie,Esq., Office of the Attorney General Curt Bellavance,Community Development Office John Smolack,Esq. Senator Steven A.Baddour Senator Bruce E.Tarr Representative David M. Torrisi Representative Barbara A. L'Italien AT IZSr. ` A True Copy Town Oerk 2 -.._.__........... . .. . ............. ......-............. ,%ORTFt 0�4, ao ,a AtiG ! ♦ 3� e�.,a. ...., a OL F• p �9SSACHUSEt TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshaw(atownofnorthandover.com This is to certify that the following vote on Article 27 was taken at the Dissolved Annual Town Meeting for the Town of North Andover held May 14, 2007, May 15, 2007, May 21, 2007 and June 4, 2007 as amended by Attorney General Decision Case#4430 dated October 2,2007 amending Section 17.4: Article 27. Amend Zoning Bylaw —Add New Section — Section 17 - OSGOOD SMART GROWTH OVERLAY DISTRICT. VOTED BY TWO-THIRDS (2/3) VOTE DECLARED BY THE MODERATOR to amend the Zoning Bylaw for the Town of North Andover by adding a new Section-Section 17 — Osgood Smart Growth Overlay District to read as follows: SECTION 17.0 OSGOOD SMART GROWTH OVERLAY DISTRICT (OSGOD) 17.1 Purpose It is the purpose of this Section to establish an Osgood Smart Growth Overlay District and to encourage smart growth in accordance with the purposes of G. L. Chapter 40R, and to foster a range of housing opportunities along with a mixed-use development component, to be proposed in a distinctive and attractive site development program that promotes compact design, preservation of open space, and a variety of transportation options, including enhanced pedestrian access to employment and nearby rail access. Other objectives of this Section are to: 1. Promote the public health, safety, and welfare by encouraging diversity of housing opportunities; 2. Provide for a full range of housing choices for households of all incomes, ages, and sizes in order to meet the goal of preserving municipal character and diversity; ATTEST: A True Copy G7.�a�akaw+- 1 Town Clerk 3. Increase the production of a range of housing units to meet existing and ' anticipated housing needs; 4, Provide a mechanism by which residential development can contribute directly to increasing the supply and diversity of housing; 5. Establish requirements, standards, and guidelines, and ensure predictable, fair and cost- effective development review and permitting; 6. Establish development standards to allow context-sensitive design and creative site planning; 7. Enable the Town to receive Smart Growth Educational Aid payments for school children which may reside in residential developments within the OSGOD pursuant to G.L. Chapter 405, and which are available only for new developments in 40R Smart Growth Zoning Overlay Districts; and 8. Enable the Town to receive Zoning Incentive Payments and/or Density Bonus Payments in accordance with G. L. Chapter 40R and 760 CMR 59.06 arising from the development of housing in the Osgood Smart Growth Overlay District. 17.2 Definitions For purposes of this Section 17.0, the following definitions shall apply. All capitalized terms shall be defined in accordance with the definitions established under the Enabling Laws or this Section 17.2, or as set forth in the rules and regulations of the Permit Approval Authority ("Regulations"). To the extent that there is any conflict between the definitions set forth is this Section 17.2 or the Regulations and the Enabling Laws, the terms of the Enabling Laws shall govern. 1. Accessory Building — A detached building, the use of which is customarily subordinate and incidental to that of the principal building or buildings, whether or not located on the same lot. 2. Accessory Use — A use of a parcel customarily subordinate and incidental to the principal use of the lot, or a neighboring lot in the case of a use pursuant to an easement, or to a structure on the lot, or on a neighboring lot in the case of a structure erected and maintained pursuant to an easement. 3. Administering Agency — The local housing authority or other qualified housing entity designated by the PAA, pursuant to Section17.8.6, to review and implement the Affordability requirements affecting Affordable Housing in Projects under Section 17.8. 4. Affordable Homeownership Unit- An Affordable Housing Dwelling Unit required to be sold to an Eligible Household. 2 3' Affordable Housing - housing that is affordable to and occupied by Eligible Households. 6. Affordable Housing Restriction - A deed restriction of Affordable Housing meeting statutory requirements in G.L. c. 184, Section 31 and the requirements of Section 17.8 of this Bylaw. 7. Affordable Rental Unit - an Affordable Housing Dwelling Unit required to be rented to an Eligible Household. 8. Applicant — A person that files an application for Plan Approval and/or special permit and/or other approval pursuant to this Section 17. If the Applicant is not the owner of the real property on which the development is proposed, then the Applicant, as part of the application or notice shall obtain the owner's written authorization to file such application or notice. Such written authorization may take the form of pre-existing agreements or instruments including, without limitation, signed purchase and sale agreement(s) and signed easement(s) (whether or not yet recorded), or a written letter of authorization from the owner of the real property. 9. As-of-Right Project - Means a development of residential or non- residential under zoning without recourse to a special permit, variance, zoning amendment, or other form of zoning relief. A proposed development that requires a special permit pursuant to this Section 17.0 shall not be considered an As-Of-Right Project. 10. Building — A combination of any materials, whether portable or fixed, having a roof, to form a structure for the shelter of persons, animals, processes or property. For the purpose of this definition, "roof' shall include an awning or any similar covering, whether or not permanent in nature. The word "building" shall be construed, where the context requires, as though followed b the words or art of arts thereof. q � g Y p p 11. Building Area —The aggregate of the maximum horizontal cross-sectional area of all buildings on a lot exclusive of cornices, eaves, gutters, chimneys, unenclosed porches, bay windows, balconied and terraces. 12. Building Height - Measured from the average ground height adjoining at the exterior walls of a building to highest point on the roof of the building, exclusive of decorative cupolas, weather vanes, chimneys and vent structures, antennas, satellite dishes, mechanical penthouses and other structures or enclosures not intended for human habitation. 13. Design Standards — Means provisions of Section 17.11 made applicable to developments within the OSGOD that are subject to the Plan Approval process. 14. Development—Any type of construction not defined as a"Project". 3 15. DHCD — Department of Housing and Community Development of the Commonwealth of Massachusetts, and any successor agency. 16. Driveway or Drive Lane—A portion of a lot designed for vehicular access to off-street parking or loading space or to a garage, whether or not located on the same development real property. For purposes of this Section 17, a Driveway or Drive Lane is distinguished from a "Roadway" as defined below. 17. Dwelling Unit — One (1) or more living, kitchen and sleeping room(s) providing complete living facilities for the use or one (1) or more individuals constituting a single housekeeping unit, with permanent provisions for living, sleeping, eating, cooking and sanitation, but not including mobile homes or trailers, however mounted, or commercial accommodations offered for transient occupancy of less than one month's duration. 18. Eligible Household- An individual or household whose annual income is less than 80 percent of the area-wide median income for the Lawrence MA-NH HMFA (HUD Metro FMR Area) as determined by the United States Department of Housing and Urban Development (HUD), adjusted for household size, with income computed using HUD's rules for attribution of income to assets. 19. Enabling Laws - G.L. Chapter 40R and 760 CMR 59.00. 20. Fast Food Establishment — An establishment whose primary business is the sale of food upon a very short waiting time, served primarily through a drive-through facility, and which, because of the nature of the operation, causes or is a major contributor to a large volume or frequent turnover of vehicular traffic. 21. Floor Area, Gross -- Gross floor area shall be the floor area within the perimeter of the outside walls of the building without deduction for hallways, stairs, closets, thickness of walls, columns or other features. 22. Floor Area Ratio—The ratio of the floor area to the development site area defined in the Application, as determined by dividing the Gross Floor Area by the land area of the site which is the subject of the development defined in the Application. 23. Landscaped Buffer— A planted area intended to provide, when mature, a visual screen between uses. Landscaped buffers may include existing vegetation, new plantings and/or lawn areas. Fencing may form a part of the landscaped buffer or screening where appropriate or dictated by topography or other consideration. 4 i i 24. Landscaping — Improvements to land to enhance its attractiveness and facilitate its use and enjoyment. Landscaping may include walks, terraces and the like, fencing, stone walls or other decorative walls, site furnishings, grading and reshaping of earth contours, planting, and lawn areas. Landscaping may also include existing natural areas indicated to remain and/or be renovated. 25. Lot Coverage - The gross floor area for principal and accessory structures permitted on a site. 26. Mixed-Use Development Project — A development containing a mix of residential uses and non-residential uses, as allowed in Section 17.6, and subject to all applicable provisions of this Section 17. 27. Multi family Residential Use — Apartment or condominium Dwelling Units in one or more buildings, each of which buildings contains or will contain more than three (3) such Dwelling Units. 28. Open Space - The portion of a site within the OSGOD not occupied by buildings, parking, garages, roadways, driveways and drive lanes, but which shall include, among other areas, all landscaped areas, all un-built areas, all sidewalks and walkways, and all swimming pools, tennis courts and other recreational facilities primarily open to the sky, whether or not landscaped. 29. OSGOD — The Osgood Smart Growth Overlay District established in accordance with this Section 17. 30. PAA Regulations — The rules and regulations of the PAA adopted pursuant to Section 17. Such rules and regulations shall not take effect until approved by DHCD and filed with the Town Clerk. 31. Plan Approval— A determination made in the form of a written decision by the PAA that the proposed site plan for the development complies with the standards and criteria which a site located within the OSGOD must meet under the procedures established herein and in the Enabling Laws and/or G.L. c. 40A as more particularly provided herein. 32. Plan Approval Authority (PAA) - For purposes of reviewing development applications and issuing decisions on development Projects and Commercial Projects within the OSGOD, the Planning Board (the "PAA"), consistent with G.L. Chapter 40R and 760 CMR 59.00, shall be the Plan Approval Authority, and consistent with G.L. c. 40A, shall be the special permit granting authority or other approval authority as provided herein, and the PAA is authorized to approve a site plan to implement a development. 5 33. Principal Building— A building in which is conducted main or principal use of the site on which said building is situated. A development is permitted to have more than one Principal Building. 34. Principal Structure—The structure on a development site, which contains the primary use of the site. A principal use shall not be contained within an accessory structure as defined in the above. A development is permitted to have more than one Principal Structure. 35. Project - a Residential Project and/or Mixed Use Development Project, undertaken within the OSGOD in accordance with the requirements of this Section 17. 36. Project, Commercial— a development which is proposed and which either requires a special permit as provided herein, or is otherwise not a "Project" as defined above. 37. Residential Project - a Project that consists solely of residential, parking, and accessory uses. 38. Recreational Uses - Active recreational uses, including but not limited to ball fields; and passive recreational uses, including but not limited to walking and bicycle paths. Amusements or motorized uses shall not be considered eligible recreational uses. 39. Roadway — a main access corridor as defined under Section 17.11.14. A Roadway is not a"Driveway" or"Drive Lane" as defined above. 40. Structure — A combination of materials for occupancy or use, such as a building, bridge, trestle, tower, framework, tank, tunnel, tent, stadium, reviewing stand, platform, shelters, piers, bin, sign, swimming pool or the like; the term structure shall be construed as if followed by the words "or part thereof'. 41. Subdistrict— A specific and defined area of land within the OSGOD that is subject to specific requirements for allowable uses and/or dimensional requirements that may differ from the requirements for allowable uses and/or dimensional requirements in other specific and defined areas within the OSGOD. The boundaries and the names of the Subdistricts are referred to in Section 17.3.3 herein. 42. Underlying Zoning — The zoning otherwise established by the Zoning Bylaw without regard to this Article. 43. Use — The purpose for which a structure or land is used or intended to be used. 44. Use, Substantially Different — A use which by reason of its normal operation would cause readily observable, material differences in 6 patronage, service, appearance, noise, employment or similar characteristics from the use to which it is being compared. 45. Zoning Bylaw - the Zoning Bylaw of the Town of North Andover, as amended. 17.3 Overlay District 17.3.1 Establishment The Osgood Smart Growth Overlay District, hereafter referred to as the OSGOD, is an overlay district having a land area of approximately one hundred sixty-nine (169) acres in size that is superimposed over all underlying zoning districts, including without limitation all other overlay districts, established by the Zoning Bylaw now or hereafter applicable to the properties known as 1600 Osgood Street, and is shown on the Zoning Map as set forth on the map entitled "1600 Osgood Street Smart Growth Overlay District", dated March, 2007, prepared by the North Andover Division of Community Development. This map is hereby made a part of the Zoning Bylaw and is on file in the Office of the Town Clerk (the "OSGOD Zoning Map"). The OSGOD contains all of the real property described in a deed from Lucent Technologies, Inc. to 1600 Osgood Street, LLC dated August 21, 2003, recorded with the Essex North District Registry of Deeds in Book 8213, Page 272 as more particularly shown on the OSGOD Zoning Map. 17.3.2 Underlying Zoning The OSGOD is an overlay district superimposed on all underlying zoning districts. As required by the Enabling Laws, the regulations for use, dimension, and all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). 17.3.3 Subdistricts The OSGOD contains three (3) Subdistricts, all hereby established and all in the locations shown on the OSGOD Zoning Map, including: (a) the Residential Mixed Use Zone, containing approximately 31.65 acres; (b) the Mixed-Use Development Zone, containing approximately 10.15 acres; and (c) the Business Opportunity Zone, containing approximately 125.94 acres. For purposes of the application of this Section 17, and for a proposed development which is located within a Subdistrict identified as the Mixed Use Zone and/or the Business Opportunity Zone, the uses permitted and the dimensional and other controls applicable in a Subdistrict may be extended into the adjacent Subdistrict described above to the extent of one-hundred fifty (150) feet as long as the limit of said extension is reflected on the site plan for a proposed development for which Plan Approval is required under this Section 17. Moreover, a residential use may be accessed 7 via a commercially zoned and/or mixed use Subdistrict, and in turn, a non-residential use may be accessed via a residentially-zoned and/or mixed use Subdistrict. 17.4 Administration,Enforcement, and Appeals The provisions of this Section 17 shall be administered by the Planning Board, except as otherwise provided herein. Any appeal arising out of a Plan Approval decision by the PAA with respect to a Project shall be governed by the applicable provisions of G. L. Chapter 40R, except with respect to a Commercial Project or other development requiring a special permit or other approval under G.L. c.40A, in which case, the provisions of M.G.L. c.40A shall govern only the portion of the development for which a such special permit or other approval is required. This Section shall be enforced by the Building Inspector, who may require the submission of plans, specifications and other information, which he deems to be necessary to determine compliance with its provisions. No building shall be constructed, reconstructed, enlarged, altered, moved, removed or demolished as part of a development governed by this Section without obtaining a building permit. The Building Inspector shall withhold such building permit if such building or such activity included in such a development governed by this Section, would be in violation of this Section. No actual use and occupancy (as opposed to construction and/or break-in period testing) of a building, a lot, or a portion of either of them shall be commenced or changed without the issuance by the Building Inspector of a certificate of compliance. The Building Inspector shall withhold such certificate of compliance unless the Building Inspector is satisfied that all work has been completed in accordance with the provisions of the applicable approved permits and of the applicable provisions of this Section, and that the proposed use will be in conformity with the applicable provisions of this Section. 17. 5 Applicability of OSGOD In accordance with the provisions of G.L. Chapter 40R and 760 CMR 59.00, an Applicant for a development located within the OSGOD may seek Plan Approval in accordance with the requirements of this Section 17. In such case, then notwithstanding anything to the contrary in this Zoning Bylaw, such application shall not be subject to any other provisions of this Zoning Bylaw, including limitations upon the issuance of building permits for residential uses related to a rate of development or phased growth limitation or to a local moratorium on the issuance of such permits, or to building permit or dwelling unit limitations, including but not limited to limitations provided in Section 4.2 ("Phased Development Bylaw") of the Zoning Bylaw. The total number of residential Dwelling Units which can be developed within the OSGOD shall not exceed 530, and such Dwelling Units may only be developed within the Residential Mixed Use Zone and/or the Mixed Use Development Zone defined below and in accordance with the provisions of this Section 17.0. 17.6 Permitted Uses 8 The following uses are permitted, as more specifically described below: 17.6.1 Residential Mixed-Use Zone 17.6.1.1 Purpose The purpose of the Residential Mixed-Use Zone is to increase the efficiency of land use, promote a diversity of housing types, emphasize and encourage pedestrian and bicycle circulation, and to encourage the integration of smaller commercial and retail activities to complement the primary residential uses. 17.6.1.2 As-Of-Right Uses The following uses shall be permitted in the Residential Mixed Use Zone As-of-Right upon Plan Approval pursuant to the provisions of Section 17.12: 1. Two-family, three-family, townhouse, and/or Multi-family Residential Use(s), provided that the minimum allowable as-of-right density requirements for residential use specified in Section 17.9 shall apply to the residential portion of a mixed-use development; 2. Assisted living units and facilities; 3. Continuing Care Retirement Center; 4. Independent Elderly Housing; 5. Day care center; 6. Eating and drinking establishment not to exceed 2,000 square feet in gross floor area per user and shall not contain a drive-through facility; 7. Municipal recreation area; 8. Non-profit School; 9. Outdoor recreation area; 10. Personal Services, banking and retail establishments not to exceed 3,000 square feet in gross floor area per user; 11. Places of worship; 12. Private School; 13. Parking accessory to any of the above permitted uses, including surface, garage- under, and structured parking (e.g., parking garages), as well as parking accessory to the uses described in Subsection 17.6.1.3 below; and, 14. Other accessory uses customarily incidental to any of the above permitted uses as determined by the Building Inspector. 17.6.1.3 Uses Allowed By Special Permit The following uses shall be permitted in the Residential Mixed Use Zone by Plan Approval Special Permit issued by the Plan Approval Authority pursuant to the provisions of Section 17.6.5: 9 1. Eating and drinking establishment in excess of 2,000 square feet of gross floor area per user, but less than 15,000 square feet of gross floor area per user, provided that such establishment shall not contain a Fast Food Establishment; 2. Personal Services, banking and retail establishments in excess of 3,000 square feet of gross floor area per user but less than 15,000 square feet of gross floor area per user; 3. Nursing and Convalescent Homes; 4. Commuter Rail System; and, 5. Other accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.1.4 The total Gross Floor Area devoted to non-residential uses and non-residential accessory uses located within the Residential Mixed Use Zone shall not exceed 75,000 square feet. 17.6.2 Mixed-Use Development Zone 17.6.2.1 Purpose The intent of the Mixed-Use Development Zone is to provide a transition between primarily residential development and compact, higher density commercial and mixed- use development, to increase the efficiency of land use on land which is Substantially Developed Area, to allow Commercial Projects which may include a mixture of complimentary land uses such as housing, retail, offices, commercial services, and civic uses, to create economic and social vitality and to encourage the linking of trips. 17.6.2.2 As-Of-Right Uses The following uses shall be permitted in the Mixed Use Development Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17.6.5 and other applicable provisions of this Section 17: 1. Agricultural Use; 2. Art Gallery; 3. Businesses, Professional and Other Offices; 4. Day Care Center; 5. Eating and drinking establishment not to exceed 2,000 square feet in gross floor area per user and which shall not be a Fast Food Establishment; 6. Funeral Parlor; 7. Guest house; 8. Medical Center and/or Medical Offices; 9. Motel/Hotel; 10. Outdoor recreation area, including but not limited to, tennis court, basketball court, athletic fields,tot lots, and passive recreation; 11. Personal Services Establishments; 12. Places of Worship; 13. Public Building or use; 10 it 14. Retail, banking, and service establishments not to exceed 20,000 square feet in gross floor area per user; 15. Parking accessory to any of the above permitted uses as well as uses described in Section 17.6.2.3, including surface, garage-under, and structured parking (e.g., parking garages), as well as parking accessory to the uses described in Subsection 17.6.2.3 below; and, 16. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.2.3 Uses Allowed By Special Permit The following uses shall be permitted in the Mixed Use Development Zone by Plan Approval Special Permit issued by the Plan Approval Authority, as Special Permit Granting Authority (SPGA), pursuant to the provisions of this Section 17.6.5: 1. Two-family, three- family, townhouse, and/or Multi-family Residential Use(s), provided that the minimum allowable as-of-right density requirements for residential use specified in Section 17.9 shall apply to the residential portion of a mixed-use development; 2. Assisted living units and facilities; 3. Continuing Care Retirement Center; 4. Independent Elderly Housing; 5. Nursing and Convalescent Homes; 6. Retail and Service Establishments in excess of 20,000 square feet of gross floor area per user but less than 65,000 square of gross floor area per user; 7. Eating and Drinking Establishment provided that such establishment shall not be a Fast-Food Establishment; and shall not exceed 15,000 square feet of gross floor area per user; 8. Incubator or Business Park; 9. Indoor Place of Amusement or Assembly, including but not limited to, arenas, theatres, and athletic or recreational facilities; 10. Indoor Ice Skating Facility; 11. Non-profit school; 12. Private School for profit; 13. Research and Development Facilities; and, 14. Retail Plaza not to exceed 150,000 square feet of gross floor area, where any single user cannot exceed 65,000 square feet of gross floor area. 15. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.3 Business Opportunity Zone 17.6.3.1 Purpose 11 The intent of the Business Opportunity Zone is to encourage efficient land use by facilitating compact, high-density retail, commercial, industrial development and other Commercial Projects, and to facilitate development (land use, density and design) that supports public transit if applicable. 17.6.3.2 As-Of-Right Uses The following uses shall be permitted in the Business Opportunity Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17.6.5 and other applicable provisions of this Section 17: 1. Agricultural Use; 2. Art Gallery; 3. Business, Professional and Other Offices; 4. Day Care Center; 5. Funeral Parlor; 6. Medical Center and/or Medical Offices; 7. Motel/Hotel; 8. Places of Worship; 9. Public Building or use; 10. Eating and Drinking Establishment; 11. Personal Services Establishment; 12. Municipal Recreation Area; 13. Manufacturing; 14. Printing and Reproduction; 15. Research and Development Facilities; 16. Retail, banking, and service establishments not to exceed 20,000 square feet in gross floor area per user; 17. Parking accessory to any of the above permitted uses, including surface, garage- under, and structured parking (e.g., parking garages), as well as parking accessory to the uses described in Subsection 17.6.3.3 below; and, 18. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.3.3 Uses Allowed By Special Permit The following uses shall be permitted in the Business Opportunity Zone by Plan Approval Special Permit issued by the Plan Approval Authority, as Special Permit Granting Authority (SPGA), pursuant to the provisions of this Section 17.6.5: 1. Commuter Rail System; 2. Incubator or Business Park; 3. Indoor Place of Amusement or Assembly, including but not limited to, such uses shall include arenas, theatres, and athletic or recreational facilities; 4. Indoor Ice Skating or other athletic facility; 5. Non-profit school; 12 6. Outdoor recreation area, including but not limited to, tennis court, basketball court, athletic fields, and passive recreation; 7. Private School for profit; and, 8. Parking accessory to any of the above permitted uses, including surface, garage- under, and structured parking(e.g., parking garages); 9. Retail and Service Establishments in excess of 20,000 square feet of gross floor area per user; 10. Retail Plaza; 11. Public Service Corporation; 12. Windmills up to one hundred-fifty (15 0) feet to the top of the hub at the center of the rotor; and, 13. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.4 Prohibited Uses. All uses not expressly allowed are prohibited. 17.6.5 Criteria for Special Permit and Other Applicable Approval by Plan Approval Authority. , 17.6.5.1 Any development component for which a special permit is required to be issued by the Plan Approval Authority, as Special Permit Granting Authority pursuant to Section 9 of M.G.L. c.40A, or for a Commercial Project approved under G.L. c. 40A, shall only be issued in accordance with the requirements of this Subsection 17.6.5. 17.6.5.2 The Plan Approval Authority may grant a Special Permit or other approval within the framework of this Section 17 only after holding a public hearing which must be held within sixty-five (65) days after the applicant files for such Special Permit or other approval. The sixty-five (65) days period shall be deemed to have begun with the filing of the application with the Town Clerk. The Applicant is responsible for transmitting a copy of the application for a Special Permit or other approval within twenty-four (24) hours of the filing of the application with the Town Clerk and to the Planning Board. 17.6.5.3 The Plan Approval Authority shall not approve any such application for a Special Permit or other approval unless it finds that in its judgment all the following conditions are met: 1. The specific site is an appropriate location for such a use, structure or condition; 2. The use as developed will not adversely affect the neighborhood; 3. There will be no nuisance or serious hazard to vehicles or pedestrians; 4. Adequate and appropriate facilities will be provided for the proper operation of the proposed use; 13 5. With regard to a Special permit, the Plan Approval Authority shall not grant any Special Permit unless it makes a specific finding that the use is in harmony with the general purpose and intent of this Zoning Bylaw; and, 6. The use for which the special permit or other approval is sought complies with the dimensional and other criteria described in Sections 17.9 through 17.15 unless otherwise waived as provided therein. 17.6.5.4 In approving a Special Permit, the Plan Approval Authority may attach such conditions and safeguards only to the portion of the development requiring a special permit as are deemed necessary to protect the neighborhood such as, but not limited to, the following: 1. Requirements of front, side, or rear yards greater than the minimum required by this Bylaw. 2. Requirements of screening parking areas or other parts of the premises from adjoining premises or from the street, by walls, fences, planting, or other devices as specified by the Plan Approval Authority. 2. Modification of the exterior features or appearances of the structure; 4. Limitation of size, number of occupants, method or time of operation, or extent of facilities; and, 5. Regulation of number, design and location of access drives or other traffic features. 17.6.5.5 Special Permits or other approvals granted under the provisions contained herein shall be deemed to have lapsed after a two (2) year period from the date on which the Special Permit or other approval was granted unless substantial use or construction has commenced. If the Applicant can show good cause why substantial use or construction has not commenced within the two (2) year period, the Plan Approval Authority, as its discretion, may extend the Special Permit or other approval for an additional one (1) year period. Included within the two (2) year period stated above, is the time required to pursue or wait the determination of an appeal from the provisions of the Bylaw. 17.6.5.6 The Plan Approval Authority shall also apply the same dimensional, design and other criteria described in Sections 17.9 through 17.15 as applied to As-of-Right uses unless otherwise waived as provided therein. 17.6.5.7 Within (90) days following the date of the public hearing, the Plan Approval Authority shall take final action in the matter in order to issue a Special Permit or other approval provided for in this Section. There shall be at least four (4) of the five (5) 14 members of the Plan Approval Authority voting in favor of issuing the Special Permit or other approval. 17.6.5.8 A Special Permit or other approval granted under the provisions of this Bylaw shall not take effect until: the Town Clerk certifies on a copy of the decision that twenty (20) days have elapsed without filing of an appeal or that any appeal filed has been dismissed or denied, and the certified decision has been recorded at the owner's expense in the Essex County Registry of Deeds indexed in the grantor index under the name of the record owner, and noted on the owner's Certificate of Title; If the Special Permit or other approval involves registered property, the decision, at the owner's expense shall also be filed with the Recorder of the Land Court. 17.6.5.9 At the discretion of the PAA, an Applicant seeking approval of a development including both As-Of-Right uses as well as uses requiring a Special Permit or other approval may combine such applications into a single application, and the PAA may combine both hearings and issue a single decision on such a combined development, provided that all requirements for the As-Of-Right development are complied with in accordance with the Enabling Laws and this Section 17.0, and with respect to uses allowed by Special Permit or other approval, are complied with in accordance with M.G.L. c. 40A. 17.7 Proieet Phasing The PAA, as a condition of any Plan Approval, may require a Project to be phased to mitigate any extraordinary adverse Project impacts on nearby properties. For Projects that are approved and developed in phases, the proportion of Affordable units and the proportion of market rate units shall be consistent across all phases. 17.8 Housing and Housing Affordability 17.8.1 Marketing Plan As part of any application for Plan Approval for housing within the OSGOD, an Applicant for such approval must submit a narrative document and marketing plan that establishes that the proposed development of housing is appropriate for diverse populations, including households with children, other households, individuals, households including individuals with disabilities, and the elderly. These documents in combination, to be submitted with a Plan Approval application pursuant to Section 17.12 below, shall include details about construction related to the provision, within the development, of units that are accessible to the disabled. 17.8.2 Number of Affordable Housing Units For all Projects, not less than twenty percent (20%) of the housing units constructed shall be Affordable Housing, as required by the Enabling Laws. For purposes of calculating 15 the number of units of Affordable Housing required, any fractional unit of 0.5 or greater shall be deemed to constitute a whole unit. 17.8.3 Requirements Affordable Housing shall comply with the following requirements: 1. For an Affordable Rental Unit, the monthly rent payment, including utilities and parking, shall not exceed 30 percent of the maximum monthly income permissible for an Eligible Household, assuming 1.5 persons per bedroom, unless other affordable program rent limits approved by the DHCD shall apply; 2. For an Affordable Homeownership Unit the monthly housing payment, including mortgage principal and interest, private mortgage insurance, property taxes, condominium and/or homeowner's association fees, insurance, and parking, shall not exceed 30 percent of the maximum monthly income permissible for an Eligible Household, assuming 1.5 persons per bedroom; and, 3. Affordable Housing required to be offered for rent or sale shall be rented or sold to and occupied only by Eligible Households. 17.8.4 Design and Construction Units of Affordable Housing shall be finished, but not furnished housing units. Units of Affordable Housing shall be dispersed throughout the development of which they are part and be compatible in initial construction quality and exterior design to other housing units in the development. The total number of bedrooms in the Affordable Housing shall be, insofar as practicable, proportionate to the total number of bedrooms in all the units in the development of which the Affordable Housing is part. 17.8.5 Affordable Housing Restriction Each unit of Affordable Housing shall be subject to an Affordable Housing Restriction approved by the PAA which is recorded with the appropriate registry of deeds or district registry of the Land Court and which contains at least the following: 1. Specification of the term of the affordable housing restriction which shall be no less than thirty years, and in the discretion of the PAA, the Restriction may be in perpetuity; 2. The name and address of an administering agency with a designation of its power to monitor and enforce the affordable housing restriction; 3. A description of the Affordable Homeownership Unit, if any, by address and number of bedrooms; and a description of the overall quantity and number of bedrooms and number of bedroom types of Affordable Rental Units in a Project 16 or portion of a Project which are rental. Such restriction shall apply individually to the specifically identified Affordable Homeownership Unit and shall apply to a percentage of rental units of a rental Project or the rental portion of a Project without specific unit identification; 4. Reference to a housing marketing and resident selection plan, to which the Affordable Housing is subject, and which includes an affirmative fair housing marketing program, including public notice and a fair resident selection process. The housing marketing and selection plan may provide for preferences in resident selection to the extent consistent with applicable law for the Affordable Housing Units; the plan shall designate the household size appropriate for a unit with respect to bedroom size and provide that the preference for such Unit shall be given to a household of the appropriate size; 5. A requirement that buyers or tenants will be selected at the initial sale or initial rental and upon all subsequent sales and rentals from a list of Eligible Households compiled in accordance with the housing marketing and selection plan; 6. Reference to the formula pursuant to which rent of a rental unit or the maximum resale price of a homeownership will be set; 7. Designation of the priority of the Affordable Housing Restriction over other mortgages and restrictions. 8. A requirement that only an Eligible Household may reside in Affordable Housing and that notice of any lease or sublease of any unit of Affordable Housing shall be given to the administering agency; 9. Provision for effective monitoring and enforcement of the terms and provisions of the affordable housing restriction by the administering agency; 10. Provision that the restriction on an Affordable Homeownership Unit shall run in favor of the administering agency and the Town and/or a nonprofit organization, in a form approved by municipal counsel, and PAA, and shall limit initial sale and resale to and occupancy by an Eligible Household; 11. Provision that the restriction on Affordable Rental Units in a rental Project or rental portion of a Project shall run with the rental Project or rental portion of a Project and shall run in favor of the Administering Agency and the Town and/or a non-profit organization, in a form approved by municipal counsel, and the PAA, and shall limit rental and occupancy to an Eligible Household; 12. Provision that the owner(s) or manager(s) of Affordable Rental Unit(s) shall file an annual report to the administering agency, in a form specified by that agency certifying compliance with the Affordability provisions of this Bylaw and 17 containing such other information as may be reasonably requested in order to ensure affordability; and, 13. A requirement that residents in Affordable Housing provide such information as the administering agency may reasonably request in order to ensure affordability. 17.8.6 Administering Agency An administering agency which may be the Local Housing Authority, or other qualified housing entity (the "Administrating Agency") shall be designated by the PAA as the Administrating Agency for all Projects in the OSGOD. In a case where the Administering Agency cannot adequately carry out its administrative duties, upon certification of this fact by the PAA or by DHCD, such duties shall devolve to and thereafter be administered by a qualified housing entity designated by the PAA or, in the absence of such timely designation, by an entity designated by the DHCD. The Applicant and its successor in title and interest shall pay for the services of the Administering Agency or other such entity providing the services required herein, with such payment not to exceed a reasonable amount for such services to be agreed upon by the PAA and the Applicant. In any event, such Administering Agency shall ensure the following, both prior to issuance of a Building Permit for a Project within the OSGOD, and on a continuing basis thereafter, as the case may be: 1. Prices of Affordable Homeownership Units are properly computed; rental amounts of Affordable Rental Units are properly computed; 2. Income eligibility of households applying for Affordable Housing is properly and reliably determined; 3. The housing marketing and resident selection plan conform to all requirements and is properly administered; 4. Sales and rentals are made to Eligible Households chosen in accordance with the housing marketing and resident selection plan with appropriate unit size for each household being properly determined and proper preference being given; 5. Affordable Housing Restrictions meeting the requirements of this section are recorded with the proper registry of deeds; and, 6. Enforce, by litigation or otherwise, the Affordable Housing Restrictions and the foregoing requirements. 17.8.7 Housing Marketing and Selection Plan The housing marketing and selection plan may make provision for payment by the Project applicant of reasonable costs to the administering agency to develop, advertise, 18 and maintain the list of Eligible Households and to monitor and enforce compliance with affordability requirements. 17.8.8 Age Restrictions The District shall not include the imposition of restrictions on age upon the entire District, but the development of specific Projects within the District may be exclusively for the elderly, persons with disabilities, or for assisted living, provided that any such Project shall be in compliance with all applicable fair housing laws and not less than twenty-five percent (25%) of the housing units in such a restricted Project shall be restricted as Affordable units. Any Project, which includes age-restricted residential units, shall comply with applicable federal, state and local fair housing laws and regulations. 17.8.9 Twenty Percent Requirement For all Projects where the Affordable Units proposed are Homeownership Units, not less than twenty percent (20%) of the total housing units constructed in a Project shall be Affordable Housing. For all Projects where the Affordable Units proposed are Rental Units not less than twenty five percent (25%) of total housing units in any building containing rental units shall be Affordable Housing; provided, however, that 20% of such units may be affordable where the Affordable Units are restricted to households earning less than 50% of area median income. For purposes of calculating the number of units of Affordable Housing required within a Project, any fractional unit of 0.5 or greater shall be deemed to constitute a whole unit. 17.8.10 Phasing For housing that is approved and developed in phases, the proportion of Affordable Housing Units (and the proportion of Existing Zoned Units to Bonus Units as described in 760 CMR 59.04 1(h)) shall be consistent across all phases. 17.8.11 Computation Prior to the granting of any Building Permit for the housing component of a Project, the Applicant must demonstrate, to the satisfaction of the PAA, that the method by which such affordable rents or affordable purchase prices are computed shall be consistent with state or federal guidelines for affordability applicable to the Town of North Andover. 17.8.12 No Waiver Notwithstanding anything to the contrary herein, the Affordability provisions in this Section 17.8 shall not be waived. 17.9 Dimensional and Density Requirement 19 Notwithstanding anything to the contrary in this Zoning Bylaw, the dimensional requirements applicable in the OSGOD are as follows: 40R Overlay SabdistrIcts Dimesional Requirements Mixed-Use Residential District Mixed-Use Commercial District Business Opportunity Zone Minimum Lot Area NA NA I Acre-15 Acres Maximum Minimum Lot Frontage on a Public Way N/A N/A N/A Maximum Building Height 55 Feet 55 Feet 55 Feet Minimum Front Setback' 10 Feet Minimum-25 Feet Maximum 0 Feet Minimum-15 Feet Maximum 0 Feet Minimum-10 Feet Maximum Minimum Rear Yard Setback 15 Feet-25 Feet Maximum No required setback No required setback Minimum Side Yard Setback 5 Feet if lot line is on a street. 3 feet minimum-10 feet maximum if adjacent to another lot line. No required setback No required setback Minimum Open Space 20% 15% 15% Allowable Dwelling Units/Acrel 20 20 Not Allowed Minimum Setback between Principal Buildings 0 Feet Minimum-20 Feet Maximum 0 Feet Minimum-20 Feet Maximum 0 Feet Minimum-20 Feet Maximum Minimum Setback between either(a) Accessory Buildings,or(b)Principal Buildings and Accessory Buildings 0 Feet Minimum-25 Feet Maximum 0 Feet Minimum-5 Feet Maximum 0 Feet Minimum-5 Feet Maximum Multiple Buildings on One Lot Allowed Allowed Allowed Floor Area Ratio(FAR) 0.70:1 0.65:1 0.90:1 Lot Coverage 70% 90% 90% Notes: 1.Refer to Section 17.9.1 2.Allowable Dwelling Units Per Acre shall mean the maximum number of Dwelling Units per acre averaged over the entire Residential Mixed Use Overlay District. 17.9.1 Interpretation of Table 1. A front yard setback of 50 feet for property within the OSGOD shall apply only to front yards abutting Route 125 (Osgood Street). There shall be no front yard setback requirement unless specified in the Subdistrict. 2. Open Space shall be "Useable Open Space" which is defined as the part or parts of land within the OSGOD, which are reserved for permanent open space or passive recreation use. This space shall exclude parking areas, but include required setbacks and walkways. The Usable Open Space shall be open and unobstructed to the sky. Trees, planting, arbors, flagpoles, sculptures, fountains, outdoor open-air, passive/active recreational facilities, such items as streetscape elements (lights, planters, benches, etc.), outdoor areas devoted to dining, cafe or similar uses, and decorative surface treatments for sidewalks and other hard surfaces (such as pavers, cobblestones or concrete surface treatments designed to resemble pavers or cobblestones), and similar objects shall not be considered obstructions. No more than 25% of the total amount of en required Usable Open p Space shall be "wetland" as defined by the requirements of M.G.L. Chapter 131, Section 40, and the Town's Wetland Bylaws. 17.10 Parking Requirements 20 a Notwithstanding anything to the contrary in this Zoning Bylaw, the parking requirements applicable in the OSGOD are as follows: Residential Uses 1 Residential Use(Minimum) 1 space per dwelling unit. 2 Residential Use(Maximum) 2 spaces per dwelling unit. All other places with including(but not limited to)rooming I space per sleeping room for accommodations single or double occupancy, 3 houses,hotels,motels,hospitals,nursing homes. 1 per 2 for rooms exceeding Double beds for rooms exceeding double occupancy Recreation Uses 1 Passive Recreation(i.e.parks,picnic facilities) 5 spaces per acre. 2 jActive Recreation(i.e.athletic fields) I space per 4 persons based on the design capacity of the facility. Business or Commercial Uses I Auditoriums,theaters,funeral parlors,day care centers,and 1 space per 4 persons based on the design capacity of the facility. other places of assembly 2 Restaurants-sit down restaurants. 1 per 2 seats or 15 per 1000 GFA.(Whichever greater applies) 3 Retail store and service establishement. 5 spaces per 1,000 square feet(6 space per 1,000 s.f.maximum) 4 Offices 1 space per 300 square feet of GFA. 5 Medical Offices and Research facilities 3 Spaces per 1000 square feet GFA plus one space per employee. 6 Warehousing,wholesaling,distributing I 1 space per 500 square feet GFA. Mixed Use Development Projects lResidential requirement plus non-residential requirement. Industrial Uses 1 space per 2 employees in the minimum working shift or I space per 1,000 I Manufacturing,assembly,Fabrication,etc GFA(Whichever greater applies). 17.10.1 Interpretation of Table. 1. Unless otherwise approved by the PAA, a minimum of 1 and a maximum of 2.0 off- street parking spaces shall be provided for each residential unit, inclusive of parking spaces within garages. The PAA may allow for additional visitor parking spaces beyond the 2.0 maximum spaces per unit if deemed appropriate given the design, layout and density of the proposed residential or other development. The PAA may allow for a decrease in the required parking as provided in Subsections 4.a through 4.f below. Notwithstanding anything to the contrary herein, an Applicant may satisfy the parking requirements herein even though parking may not be located within the same Subdistrict as the specific use, provided that suitable arrangements to the satisfaction of the PAA are in place to allow for the use of such parking to satisfy the parking requirement; 2. A parking space shall mean an area of not less than 9' x 18', accessible over unobstructed driveways not less that 24' wide. 3. Notwithstanding anything to the contrary herein, the use of shared parking to fulfill parking demands noted above that occur at different times of day is strongly encouraged. Minimum parking requirements above may be reduced by the PAA if the applicant can demonstrate that shared spaces will meet parking demands by using accepted methodologies (e.g. the Urban Land Institute Shared 21 Parking Report, ITE Shared Parking Guidelines, or other approved studies); 4. Notwithstanding anything to the contrary herein, any minimum required amount of parking may be reduced upon a demonstration to the reasonable satisfaction of the PAA that the lesser amount of parking will not cause excessive congestion, endanger public safety, or that lesser amount of parking will provide positive environmental or other benefits, taking into consideration: a. The availability of surplus off street parking in the vicinity of the use being served and/or the proximity of a bus or an MBTA transit station; b. The availability of public or commercial parking facilities m the vicinity of the use being served; c. Shared use of off street parking spaces serving other uses having peak user demands at different times; d. Age or other occupancy restrictions which are likely to result in a lower level of auto usage; e. Impact of the parking requirement on the physical environment of the affected lot or the adjacent lots including reduction in green space, destruction of significant existing trees and other vegetation, destruction of existing dwelling units, or loss of pedestrian amenities along public ways; and, f. Such other factors as may be considered by the PAA. 17.11 General Design Standards 17.11.1 Intent In order to ensure high-quality development within the OSGOD and to ensure design that respects the built and natural character of North Andover, the following design standards are established. These standards are intended to be flexible, and applied by the Plan Approval Authority as appropriate to the development as part of the site plan review process to enable the purpose of this District to be realized. While these guidelines apply to all site improvements and buildings and structures, it is not the intent of this section to prescribe or proscribe use of materials or methods of construction regulated by the state building code, but rather to enhance the appearance of the built environment within an OSGOD. In the case of inconsistency between applicable federal and state law, including without limitation state building code or life safety codes and these Design Standards, the applicable federal and state laws, rules and regulations shall govern. 17.11.2 Building and Structure Placement The placement of buildings and structures in an OSGOD shall: 1. Provide for buffering of buildings and structures to adjoining properties either within the proposed OSGOD or to adjacent land uses. Such buffering includes, but is not limited to: landscaping, screening materials, natural barriers, fencing, and related measures; 22 2. Development should acknowledge Route 125 as its front entry. Rooftop equipment shall be appropriately screened to avoid visual impacts to residential uses; 3. Buildings adjacent to usable open space should generally be oriented to that space, with access to the building opening onto the open space; 4. Provide street trees with tree grates or in planter strips, using appropriate species to provide summer shade, and winter light. Species should be native, resistant to salt and drought, and be tolerant of urban conditions; 5. Orient structures to provide pedestrian entrances to the sidewalk; 6. Street design standards shall not be limited to defined rights of way but shall also apply to driveways and internal ways which function as streets; 7. Trash collection and dumpster locations shall be appropriately located and screened to avoid adverse impacts on neighbors and neighboring properties. Within a development, the containment of all solid waste storage and handling within the building(s) of the development is encouraged; and, 8. Any loading docks or areas associated with the mixed-use development component shall be located to minimize (visual and operational) impacts on the site and on neighboring properties. 17.11.3 Open Space 1. Create open space parks within the development; 2. Mature street trees have a high value to the development; minimize departures from development standards that would impair the health of a mature trees; 3. Use landscape materials that are native, sustainable, requiring minimal irrigation or fertilizer; and, 4. Encourage alternative and green paving materials to minimize stormwater run-off. 17.11.4 Building Massing/Articulation The massing of buildings shall: 1. Avoid unbroken building facades longer than fifty feet (50'). Buildings shall not be longer than two hundred ten (210') feet in length, unless waived by the PAA. In approving building lengths that exceed 210', the PAA must find that pedestrian 23 circulation is enhanced by the provision of archways, passageways, or other similar throughways; 2. Mixed-use buildings should incorporate the use of dual facades to foster integration of uses where appropriate; 3. Provide a variety of building heights and varied roofline articulation; and, 4. Buildings on corner lots shall be oriented to the corner and public street fronts. Parking and automobile access shall be located away from the corners, where practical. 17.11.5 Building Appearance and Treatment To the extent not inconsistent with or pre-empted by the state building code, the following shall be considered as applicable: 1. It is not intended that buildings be totally uniform in appearance or that designers and developers be restricted in their creativity. Rather, cohesion and identity can be demonstrated by: a. Similar building scale or mass; b. Consistent use of facade materials; C. Similar ground level detailing, color or signage; 2. Preferred exterior building siding materials include brick, stone, wood, cement and composite materials and other types of exterior siding materials upon a determination by the PAA that the quality of such siding will not detract from the aesthetics of the proposed buildings. 3. New Buildings. The design of new buildings shall incorporate architectural features, such as: a. Transom or clerestory windows above entrances, display windows and projected bay windows are encouraged within commercial, retail, and industrial developments. b. Multiple paned windows that divide large areas of glass into smaller parts shall be used. c. Incorporate building entry treatments that are arched or framed and protects people from the elements. d. Non-reflective storefront windows and transoms; architectural detailing on the first floor; and detailing at the roofline. 4. Ground Floor. Transparent, open facades for commercial uses at street level; 5. Middle Floors. Architectural features may include change in materials and color and/or texture that enhance specific elements of the building; and, 24 6. Top Floors. Clearly distinguish tops of buildings from the fagade walls by including detail elements such as steep gables with overhangs, parapets and cornices. 17.11.6 Development Environment Pedestrian Open Spaces and Entrances. 1. Entries for residential uses on the street(rather than from the rear of the property); 2. Overhead weather protection shall be designed to minimize gaps in coverage, except to accommodate street trees; 3. Sidewalks shall be surfaced with concrete, brick, or stone materials unless waived by the SPGA; minimum width shall be five feet unless waived by the SPGA; and, 4. Benches for seating shall be provided near retail entrances and at bus stops. At bus stops, such benches shall offer protection from the weather. 17.11.7 Landscaping The landscape design shall strive to provide greenery so that streets and access drives are lined with shade trees, large paved areas are visually divided and screened and buffers are provided within and around the development. Said landscape design shall be prepared and stamped by a registered landscape architect. Landscaping criteria are as follows: 1. Native trees and shrubs shall be planted wherever possible such as lilac, viburnum, day lilies, ferns, red twig, dogwood, oak, maple, sycamore, linden, hawthorne, birch, shadbush, etc.). 2. Provide hedges or continuous shrubs to screen parking areas from streets, where practical; 3. All buildings shall have foundation landscaping, where practical; 4. All islands and landscape areas shall be of a minimum width and size to support healthy plant growth. The minimum width for plantbeds shall be five (5) feet and an eight(8) foot width for trees; 5. All open areas, exclusive of areas to remain in an existing natural state shall be landscaped, utilizing both natural and man-made materials such as indigenous grasses,trees, shrubs, and attractive paving materials and outdoor furniture; 6. Deciduous trees shall be placed along new and existing streets and ways. Street Trees shall be located every thirty feet (30') on center along both sides of the roadway within the District. The species of street trees selected shall be a 25 minimum of four different species from the list of recommended street trees below: a. Plantanus acerifolia (London Planetree); b. Fraxinus pennsylvanica(Green Ash); C. Ginkgo biloba(Ginkgo); d. Gleditsia triacanthos inermis (Honeylocust); e. Maple; f. Oak; g. Tilia cordata(Little leaf Linden); h. Pyrus calleryana(Chanticleer Callery Pear); and i. Zelkova serrata(Japanese Zelkova) The existing roadways, Route 125 and the existing property driveway, shall have larger trees that typically grow to heights greater than fifty feet. The species of street trees selected shall be a minimum of four different species from the list of recommended street trees below: a. Picea pungens (Colorado Blue Spruce); b. Picea abies (Norway Spruce); c. Fagus grandifolia(American Beech); d. Fraxinus Americana(White Ash); e. Betula alleghaniensis (Yellow Birch); f. Acer saccharum (Sugar Maple); g. Acer rubrum (Red Maple); h. Quercus rubra(Northern Red Oak); i. Quercus coccinea(Scarlet Oak); j. Platanus acerifolia (London Planetree); and k. Betula papyrifera(Paper Birch) 7. Outdoor lighting shall be considered in the landscaping plan and requires the submission of a photometric lighting plan. Cutoff shields shall be used to minimize glare and light spillover onto abutting property. Ornamental streetlights, sixteen feet (16') maximum height on minor roads and twenty-four feet (24') maximum height on major roads; 8. Preservation of existing vegetation or tree-lined areas shall be maintained; and, 9. Landscaped, required open space and green areas, in addition to serving as visual amenities, shall be employed to reduce the rate and volume of stormwater runoff compared to pre-development conditions; for that reason, Department of Environmental (DEP) Stormwater Best Management Practices and other measures to minimize runoff and improve water quality shall be implemented. It is also generally intended that said space be designed and located to connect with existing off-site usable open space, and provide potential for connection with 26 future open space by extending to the perimeter of the development particularly when a plan exists for the location and networking of such future open space. 17.11.8 Lighting 1. All artificial lighting used to illuminate residential, commercial, and industrial parking lot, loading bay or driveway shall have underground wiring and shall be so arranged that all direct rays from such lighting falls entirely within the parking, loading or driveway area, and shall be shielded or recessed so as not to shine upon abutting properties or asses; 2. Lighting in display windows to illuminates the sidewalk is recommended; 3. Architectural lighting to complement the architecture of the structure including transparent windows allowing views into and out of the structure; 4. Fixtures that produce glare or that spill light to adjoining sites are prohibited; and, 5. Installation of pedestrian light fixtures as part of a development's sidewalk improvements is strongly encouraged. 17.11.9 Parking Lot Landscaping Parking areas and lots shall use landscaping and terracing to break up large areas of pavement. The following minimum screening and landscaping requirements shall apply for all lots with more than 6 parking spaces: 1. A strip of land at least six (6) feet wide (may be part of required yard setbacks) with trees or shrubs densely planted, to create at least an impervious screen, at least four (4) feet high at the time of planting and which are of a type that may be commonly expected to form a year round impervious screen at least five (5) feet high within three years; 2. If a natural screen as described in item 1 above cannot be attained, a wall or fence of uniform appearance at least five (5) feet high above finished grade will be allowed. Such a wall and/or fence may be perforated, provided that not more than 25% of the face is open; and 3. All required screening, as described in items 1 and 2 above, shall be maintained in good condition at all times. Such screening may be interrupted by entrances or exits, and shall have no signs attached thereto other than those permitted in the district; For all off-street parking areas of 18 or more spaces the following criteria shall also apply. 27 41. On at least three sides of the perimeter of an outdoor parking lot, there shall be planted at least one tree for every thirty (30) linear feet. In the interior part of an outdoor parking lot where two rows of parking spaces containing a total of 9 or more parking spaces face each other, a landscaped open space not less than 6 feet in width shall be provided. The landscaped strip may be provided either (1) between the rows of parking spaces parallel to the aisle, or (2) in two or more strips parallel to the spaces and extending from the aisle serving one row of spaces to the aisle serving the other row of spaces; and, 5. Trees required by this section shall be at least 2.5 inches in diameter at a height four feet above the ground at time of planting and shall be of a species characterized by suitability and hardiness for location in parking lot. To the extent practicable, existing trees shall be retained and used to satisfy this section. Native trees and shrubs shall be planted wherever possible including species such as lilac, viburnum, day lilies, ferns, red twig, dogwood, oak, maple, sycamore, linden, hawthorne, birch, shadbush, etc. 17.11.10 Pedestrian Amenities and Recreation Development shall include the following components: 1. Provide long-term, covered, bicycle parking areas; 2. Provide well-lit, transit shelters where necessary; 3. Pedestrian-oriented features such as walkways, pergolas, outdoor sitting plazas, landscaped open space, drop-off areas, and recreational facilities shall be emphasized, and bike racks shall be provided in appropriate locations throughout the site; and, 4. Tree-lined or otherwise appropriately landscaped pedestrian paths and walkways shall link together areas designated as open space within the site, and wherever possible,to adjoining public areas. 17.11.11 Utilities—Basic Requirements 1. Installation: All utility lines, and/or other subsurface facilities within the street rights-of-way shall be installed prior to the placement of the roadway sub-base materials. All electrical and communications lines shall be installed underground. Communications lines shall include, but not be limited to, telephone, Internet and cable; 2. Identification: The applicant shall provide and install utility identification tape for all underground utility installations. The tape shall be placed in the trench a minimum of twelve inches (12") above the pipe, conduit or cable and not less than twelve inches (12")below the finished grade; 28 Identification tape for utilities shall be traceable, durable, and either non- biodegradable plastic or metallic, and shall be approximately six inches (6") wide by four thousandths (.004) inches, or four mil, in thickness; The following colors shall be used unless otherwise specified in the state building codes: a. Orange - Gas b. Yellow= Electric C. Green - Communications (telephone, cable, fire alarm) d. Blue - Water e. Red - Sanitary Sewer 3. Easements: Wherever necessary, the Board shall require perpetual, unobstructed easements for sewers, storm drains, power lines, water mains and other utilities. Such easements shall be a minimum width of twenty feet (20'), centered on the utility, and shall be indicated on the site plan approved pursuant to the Plan Approval decision by metes and bounds. The width of an easement may be changed if determined to be acceptable by the PAA or Department of Public Works: a. Easements for water, sewer, electric, telephone lines and drainage piping or channels shall be provided at locations determined by the Board and the Department of Public Works for the provision or extension of utilities within the development or to adjacent properties; b. Where the development is traversed by any open watercourse, drainage way, channel or stream, an easement shall be provided which substantially conforms to the lines of such features for the purpose of protection against encroachment or alteration; c. Where such easement or any part thereof crosses or appears on any developed lot in the development, the deed for said lot shall provide a restriction that shall run with the lot, which prohibits any encroachment or alteration within such easement; d. Utility easements into or crossing any open space or protected area shall be prohibited unless approved by the Board upon the recommendation of the Department of Public Works; e. Where easements have been approved entering into or crossing open spaces or protected areas they shall be restored to reflect as nearly as possible the conditions existing prior to the easement. Vegetative visual buffering required by the Planning Board in such easements shall be the responsibility of the developer and shall be reflected in the development performance guarantee; 29 i f. Easements for access to parks and conservation lands abutting a proposed development may be required by the Board. These easements shall be at a width determined by the Board to be sufficient for their purpose but will not normally exceed twenty (20') feet in width; g. The developer may be required to obtain off-site drainage easements when, in the Board's opinion, the development will cause an increase or change in the surface water volumes or velocities, either through open channels or through culverts into or onto any abutting properties; and, h. Where the easement is accessible from the street, the side slope shall be no greater than four feet (4') horizontal to one foot (1') vertical. The first twenty feet (20') of the easement from the back of sidewalk, or edge of roadway, shall have a twelve inch (12") deep base of gravel sub-base material beneath the topsoil to support maintenance equipment. 17.11.12 Signage Associated With The Residential Use Component The residential component shall be limited to three types of sign: name of site, orientation and direction, and to identify common building spaces. At each principal entrance to the site, only one sign identifying the name and address of the development shall be permitted. The sign shall be limited to identifying the name and address of the development. Signs shall be made of natural materials, or have a natural appearance, and may not be interiorly illuminated. The PAA shall require the applicant to submit a signage master plan showing the overall design, location, size and material for all proposed signs within the development. The following signs are prohibited in the OSGOD: roof signs, interior illuminated and ground signs (except those associated with the development entrance). 17.11.13 Signage Associated With the Non-Residential and Mixed-Use Component The PAA shall approve signage within the non-residential and mixed-use components of the district(s) as part of the site plan review process. One sign will be permitted at the principal entrance(s) to the non-residential portion of the property. The sign shall be limited to identifying the name and address of the development. 1. One sign per non-residential use is permitted. The attached or hanging sign shall not exceed, in total area, more than ten percent (10%) of the dimensional elevation of the commercial building as determined by the building frontage multiplied by the floor to ceiling height of the individual business or as specified in applicable sections of the by-law; 2. For premises having multiple occupants, a single sign, identifying those occupants is permitted. The total area of attached signs including this one shall not exceed ten percent (10%) of wall area; 30 3. Temporary unlighted signs inside windows, occupying not more than twenty percent (20%) of the area of the window requires no sign permit; 4. No sign shall project more than three (3) feet over any public right-of-way. The sign shall be covered by appropriate liability insurance as determined by the Building Inspector and verified by a certificate of insurance filed with the Town Clerk; 5. Building directories shall be located inside of the building; 6. Traffic Control orientation and guidance signs located on private property, up to four (4) square feet in area, displayed for purposes of direction or convenience, including signs identifying parking, fire lanes, rest rooms, freight entrances and the like; 7. Design Standards for Signs: i. These standards are not mandatory. ii. Sign content normally should not occupy more than forty percent (40%) of the sign background, whether a signboard or a building element. 8. Environmental Relationship i. Overhanging signs should be used only in such circumstances as on side streets where overhanging positioning is necessary for visibility from a major street; ii. Sign brightness should not be excessive in relation to background lighting levels, e.g., averaging not in excess of one hundred foot-lamberts and not in excess of twenty foot-lamberts in unlighted outlying areas. 9. Building Relationship: i. Signs should be sized and located so as to not interrupt, obscure or hide the continuity of columns, cornices, roof eaves, sill lines or other elements of building structure Clutter should be avoided by not using support brackets extending above the sign or guy wires and turnbuckles. 10. Sign Master Plans. Notwithstanding anything to the contrary to the language contained in Section 17.11.12 and 17.11.13, an Applicant may, in lieu of seeking compliance with the sign provisions described, propose a Master Plan for signs to be permitted on the premises by the PAA. Such sign master plan shall include a listing of each sign type, square footage, location, height, color, materials, and such other information as may be requested by the PAA to confirm that the Master Plan, once implemented, shall consist of a single coordinated and clear plan for signage within said premises which generally conform to the Guidelines described in Sections 17.11.12 and 17.11.13, as applicable. 17.11.14 Roadways 31 i Private roadways shall be allowed in OSGOD. 1. While roadway surface widths may be narrower than widths associated with a traditional subdivision, the durability of private roadway surfaces and sub surfaces within an OSGOD and should be designed based on standard engineering principals. Waivers of the following standards may be granted when appropriate. The following criteria apply: Roadway Criterion ' Minimum Maximum Min. ROW Width 50 feet 60 feet Min. Pavement Width 18 feet 26 feet Min. Centerline Curve Radius 225 feet 250 feet Min. Tangent length between 150 feet 150 feet reverse curves Min. Intersection Corner Curb 40 feet 40 feet Radius Min. Horizontal and Vertical Site 200 feet 250 feet distance Centerline Profile Grade—Max. 8% 7% Centerline Profile Grade—Min. 1% 1% Vertical Curve—Min. Length 100 feet 100 feet Vertical Curve: K Value—Crest 30 30 Vertical Curve: K Value— Sag 40 40 40 Pavement Cross Slope—Normal 3% 3% Crown Maximum Super elevation 6% 6% 2. The PAA shall encourage narrow pavement widths for traveled ways when appropriate. Pavement widths for traveled ways (excluding on-street parking spaces) shall not be less than eighteen feet (18) or more than twenty six (26) feet for two-way traffic, or less than fourteen (14) feet for one-way traffic. The PAA will have discretion to waive these standards when considering public safety and circulation issues, but under no circumstance shall vehicular ways be less than 14 feet wide; 3. Parking and vehicle access: a. Provide for continuous sidewalks that are minimally broken within a block by vehicular access. b. Unstructured surface parking areas facing the main street frontages are discouraged. c. Parking areas shall be setback from structures, property lines and internal ways by a minimum of 10 feet. d. Multi-purpose parking areas paved with unit pavers are encouraged (i.e., areas that serve both parking and public open space needs). 32 e 4. All two-way traveled ways shall provide a pedestrian sidewalk of a minimum six-foot (6') width on both sides of the roadway. All sidewalks shall be of standard concrete or brick set in concrete and are encouraged where applicable. Minor ways may provide a pedestrian sidewalk on a minimum of one side of the roadway. On cul-de-sac turnarounds and at intersections, vertical granite curbing shall be required. Vertical granite curb inlets with curb transition sections shall be required at the back of catch basins, on grades over six (6) percent, and at the intersections with arterial streets; 5. Crosswalks with handicap accessible curb cuts shall be provided at all intersections. All crosswalks and curb cuts shall comply with the requirements of the Massachusetts Architectural Access Board (MAAB) and/or Americans with Disabilities Act (ADA) requirements; and, 6. Streetscape elements shall be encouraged, including: a. Sidewalks and crosswalks as noted above; b. Ornamental street lights, sixteen feet (16') maximum height on minor roads, twenty-four feet(24') maximum height on major roads; c. Brick, concrete or other specialty pavements at building entrances; d. Ornamental fences of less than thirty inches (30") in height, when appropriate; e. Ornamental bollards to direct pedestrian traffic and define public space. 17.11.15 Storm Drainage Storm water drainage systems shall be subject to the most recent Massachusetts laws, regulations, polices and guidelines including but not limited to the DEP Stormwater Management Policy, as amended, as well as local bylaws. The design, construction and maintenance of stormwater systems shall be consistent with the following: 1. Detention / Retention Basin Side Slopes. Basin area side slopes shall be kept as close as possible to natural land contours, i.e. ten percent (10%) or less wherever possible. A maximum 3:1 side slope shall be constructed for the interior of the basin areas. For security purposes fencing may be required by the PAA. Drainage basins shall be designed to facilitate access for maintenance vehicles and personnel; 2. Drainage Easements. If it is necessary to carry drainage across lots within the development, storm drainage easements shall be provided, of such width and construction as will be adequate to accommodate the volume and velocity of the run-off. However, no such easement shall be less than thirty feet(30') in width; If a proposed drainage system would carry water across land outside the development boundaries to an approved outfall, appropriate drainage rights shall 33 be secured by the applicant at the applicant's expense, and shall be referenced on the 40R Plan; 3. Discharging runoff directly into rivers, streams, watercourses, or enlarging the volume, rate or further degrading the quality of existing discharges/runoff is prohibited. Runoff shall be routed through vegetated swales, using native species and other structural and nonstructural systems designed to increase time of concentration, decrease velocity, increase infiltration, allow suspended solids to settle and remove pollutants. Such systems will utilize overland flow and re- infiltration as priority techniques for the treatment of run-off; 4. Retention and detention ponds, and methods of overland flow may be used to retain, detain and treat the increased and accelerated runoff which the development generates; 5. There shall be a minimum of two (2') feet of naturally occurring soils between the detention basin bottom and the maximum annual ground water table; 6. Water shall be released from detention ponds at a rate and in a manner approximating the natural conditions which would have occurred before development; 7. Intermittent water courses such as swales shall be vegetated; 8. The first one (1") inch of runoff from impervious surfaces, such as rooftops and paved surfaces, shall be treated in the site of the development; 9. Runoff from parking lots and streets shall be treated to remove oil and sediments. Catch basins shall be provided with hoods; in the alternative, drainage outfalls shall discharge to low velocity "vegetated treatment" swales; 10. The use of drainage facilities and vegetated buffer zones as open space and conservation areas shall be encouraged; and, 11. Neighboring properties shall not be affected by flooding from excessive runoff. 17.11.16 Water Facilities I. Installation. The applicant shall be responsible for installing water facilities, including, but not limited to water supply, pipes, hydrants, hydrant markers, gates, valves, and all other related appurtenances, in accordance with the Regulations and Master Plan of the Water Department. Any extension of an existing pipe and construction of new pipes requires approval from the Water Department. Building service pipes and appurtenances from the system piping to the exterior line of the street right-of-way shall be constructed for each lot unless the Board of Health has approved individual wells. Said water facilities shall be shown on the 40R plan; 34 2. Fire Hydrants. Fire hydrants shall be required throughout the entire development. Fire hydrants, with hydrant markers, shall be located not more than five hundred feet (500') apart; shall be approved, in writing, as to location by the Fire Chief and the DPW; and shall be shown on the 40R Plan; 3. Extensions. Reasonable provisions shall be made for extension of the water system and pipes to adjoining property, including installation of water gates. Appropriate easements may be required; 17.11.17 Sewer 1. Installation. In the event that the Town sanitary sewer system is located within an existing public way within four hundred feet (400') measured along the existing public way or proposed roadway of the development, the applicant shall be responsible for connecting all lots to the sewerage system unless there are legal, design or operational considerations, in which case, alternative arrangements for sewage disposal such as through the existing on-site sewage treatment plant or other methods permitted by law may be utilized. If applicable, connection to the system shall require an approval from the DPW, and any other required approvals, including, but not limited to approvals issued by the Greater Lawrence Sanitary District, and a permit for extension/connection of the sewer system issued by the Massachusetts Department of Environmental Protection's Division of Water Pollution Control. 17.11.18 Electric and Communication Lines 1. Installation. All electrical and communications lines shall be installed underground. Communications lines shall include, but not be limited to, telephone and community antenna television cable; 2. Electric Lines. The electrical power distribution shall be installed in accordance with the specifications of the Rules and Regulations of the Department of Public Works of the Town of North Andover in effect at the time of application. 17.11.19 Street Signs Street signs shall be installed at all intersections in conformity with the specifications of the Department of Public Works. The signposts at the intersection of each street with any other street, shall have affixed thereto a sign designating such street as a private way. 17.11.20 Monuments Monuments shall be four feet long, 6 inch square concrete or granite, and shall be installed at all roadway intersections, at all points of change in direction or at curvature of 35 roadways, at two (2) property corners of all new lots and at any other points where, in the opinion of the Board, permanent monuments are necessary. 1. Monument Spacing. Monuments located in the street right-of-way shall be spaced so as to be within sight of each other, the sight lines being contained wholly within the street right-of-way limits. The maximum interval shall be one thousand feet (1000'); 2. Monument Materials. Monuments shall be standard granite markers of not less than four feet (4') in length and not less than five inches (5") square, and shall have a drill hole in the center. If subsoil conditions prohibit installation of four (4') foot monuments, with advance approval by the Board, monuments meeting alternative specifications shall be installed. Monuments shall be set flush with the finished grade; and 3. Monument Certification. No permanent monuments shall be installed until all construction, which would destroy or disturb the monuments is completed. Placement and location of bounds are to be certified by a registered professional land surveyor after installation of the street, and shall be shown on the "as-built" or record plans. 17.11.21 Subzone Design Standards 1. Residential Mixed-Use Zone Location: As shown on the OSGOD Map. a. Building Type: The dwelling units in Residential Mixed-Use Zone may be situated in a single structure or in multiple structures. b. Nonresidential Uses: If a building containing residential uses also includes permitted retail, restaurant, and professional services or other uses in the Residential Mixed-Use Zone, the nonresidential uses shall be centrally located on the ground floor of the building in which it is contained. Notwithstanding the foregoing, non-residential uses are preferred, but not required, to be located in buildings containing residential uses, and non-residential uses may be located in buildings which are separate from buildings containing residential uses as long as the non-residential use and building are designed to complement the primary residential use. 2. Mixed-Use Development Zone Location: As shown on the OSGOD Map. a. Building Type: For buildings which include a mix of residential and non- residential uses, the dwelling units in such buildings shall be situated over the allowed non residential space. Buildings may also be constructed which contain either solely residential uses or solely non-residential uses. b. Nonresidential Uses: Non-residential uses are not required to be located in 36 buildings containing residential uses, and non-residential uses may be located in buildings which include no residential uses. 3. Business Opportunity Development Subzone a. Permitted uses in the Business Opportunity Development Subzone shall not exceed 150,000 square feet per development unless waived by the PAA. 17.12 Application for Plan Approval 17.12.1 Preapplication Prior to the submittal of a site plan, a"Concept Plan" may be submitted to help guide the development of the definitive site plan for site buildout and individual elements thereof. Such Concept Plan should reflect the following: 1. Overall building envelope areas; 2. Approximate building massing, showing heights; 3. Open space and natural resource areas; and, 4. General site improvements, groupings of buildings, and proposed land uses. The Concept Plan is intended to be used as a tool for both the applicant and the PAA to ensure that the proposed development design will be consistent with the design standards and other requirements of the OSGOD. 17.12.2 Application Submission. An application for Plan Approval shall be submitted to the PAA on the form provided by the PAA, along with application fees which shall be as set forth in the Regulations. 17.12.3 Required Submittals The application for Plan Approval shall be accompanied by such plans and documents as may be required and set forth in the PAA's Regulations. All site plans shall be prepared by a certified architect, landscape architect, and/or a civil engineer registered in the Commonwealth of Massachusetts. All landscape plans shall be prepared by a certified landscape architect registered in the Commonwealth of Massachusetts. All building elevations shall be prepared by a certified architect registered in the Commonwealth of Massachusetts. All plans shall be signed and stamped, and drawings prepared at a scale of one inch equals forty feet (1"=40') or larger, or at a scale as approved in advance by the PAA. 17.13 Procedures 37 17.13.1 Filin An applicant for Plan Approval shall file the required number of copies of the application form and the other required submittals as set forth in the Regulations with the Town Clerk, and a copy of the application including the date of filing certified by the Town Clerk shall be filed forthwith with the PAA. An Applicant is encouraged to review the final application with the PAA or its Agent to confirm application completeness prior to filing the final application with the Town Clerk and PAA. 17.13.2 Circulation to Other Boards Upon receipt of the Application, the PAA shall immediately provide a copy of the application materials to the Board of Selectmen, Board of Appeals, Board of Health, Conservation Commission, Fire Department, Police Department, Building Commissioner, Department of Public Works, and other municipal officers, agencies or boards for comment, and any such board, agency or officer shall provide any written comments within 60 days of its receipt of a copy of the plan and application for approval. 17.13.3 Hearing The PAA shall hold a public hearing for which notice has been given as provided in Section 11 of G.L. Chapter 40A. The decision of the PAA shall be made, and a written notice of the decision filed with the Town Clerk, within 120 days of the receipt of the application by the Town Clerk. The required time limits for such action may be extended by written agreement between the applicant and the PAA, with a copy of such agreement being filed in the office of the Town Clerk. Failure of the PAA to take action within said 120 days or extended time, if applicable, shall be deemed to be an approval of the application and site plan. 17.13.4 Peer Review The applicant shall be required to pay for reasonable consulting fees to provide peer review of the Plan Approval application, pursuant to G.L. c. 40R. Such fees shall be held by the Town in a separate account and used only for expenses associated with the review of the application by outside consultants, including, but not limited to, attorneys, town counsel, engineers, urban designers, housing consultants, planners, and others. Any surplus remaining after the completion of such review, including any interest accrued shall be returned to the applicant. 17.14 Decision 17.14.1 Waivers Upon the request of the Applicant, but subject to Section 17.8.12 as to Affordability, the Plan Approval Authority may waive dimensional and any other requirements of Section 17.0, including but not limited to, the design standards of Section 17.10, in the interests 38 of design flexibility and overall development quality, and upon a finding of consistency of such variation with the overall purpose and objectives of the OSGOD, or if it finds that such waiver will allow the development to achieve the density, Affordability, mix of uses, and/or physical character allowable under this Section 17.0. 17.14.2 Plan Review An Application for Plan Approval shall be reviewed for consistency with the purpose and intent of this Section, and such Plan Review and shall be construed as an as-of-right review and approval process as required by and in accordance with the Enabling Laws. 17.14.3 Plan Approval Plan Approval shall be granted where the PAA finds that: 1. The applicant has submitted the required fees and information as set forth in the Regulations; 2. The development and site plan meet the requirements and standards set forth this Section 17.0, or a waiver has been granted there from; and, 3. Any extraordinary adverse potential impacts of the development on nearby properties have been adequately mitigated. 17.14.4 Plan Disapproval A site plan may be disapproved only where the PAA finds that: 1. The applicant has not submitted the required fees and information as set forth in the Regulations; or 2. The development and site plan do not meet the requirements and standards set forth this Section 17.0, or a waiver has been granted there from; or 3. It is not possible to adequately mitigate significant adverse potential impacts on nearby properties by means of suitable conditions. 17.14.5 Form of Decision The PAA shall issue to the applicant a copy of its decision containing the name and address of the owner, identifying the land affected, and the plans that were the subject of the decision, and certifying that a copy of the decision has been filed with the Town Clerk and that all plans referred to in the decision are on file with the PAA. If twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk without an appeal having been filed or if such appeal, having been filed, is dismissed or denied, the Town Clerk shall so certify on a copy of the decision. If a plan is approved 39 by reason of the failure of the PAA to timely act, the Town Clerk shall make such certification on a copy of the application or notice. A copy of the decision or application bearing such certification shall be recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or recorded and noted on the owner's certificate of title. The fee for recording or registering shall be paid by the applicant. 17.15 Change in Plans after Approval by PAA 17.15.1 Minor Change After Plan Approval, an applicant may be apply to make minor changes involving minor utility or building orientation adjustments, or minor adjustments to parking or other site details that do not affect the overall buildout or building envelope of the site, or provision of open space, number of housing units, or housing need or affordability features. Such minor changes must be submitted to the PAA on redlined prints of the approved plan, reflecting the proposed change, and on application forms provided by the PAA. The PAA may authorize such changes at any regularly scheduled meeting, without need upholding a public hearing. The PAA shall set forth any decision to approve or deny such minor change by motion and written decision, and provide a copy to the applicant for filing with the Town Clerk. 17.15.2 Maior Change Those changes deemed by the PAA to constitute a major change because of the nature of the change in relation to the prior approved plan, or because such change cannot be appropriately characterized as a minor change as described above, shall be processed by the PAA as a new application for Plan Approval pursuant to this Section 17.0. 17.16 Severability and Authority. This Section 17.0 is promulgated pursuant to the authority of G.L. c. 40R and G.L. c. 40A, as applicable. If any provision of this Section 17 is found to be invalid by a court of competent jurisdiction, the remainder of Section 17 shall not be affected but shall remain in full force and effect. The invalidity of any provisions of this Section 17 shall not affect the validity of the remainder of this Section. TABLE 1: Summary of Use Regulations 40 .- _._...... _ ..._ _W ._. .. Underlying Mixed-Use Mixed-Use Business Opportunity Permitted Use Industrial 2 Zone' 40R Subdistrict 40R Subdistrict 40R Subdistrict Agricultural Use* Y Y Y Y Art Gallery Y N Y Y Auto Service Station* N N N N Auto&Vehicle Repair/Body Shop N N N N Bus Gara 8 N N N N Business&Other Offices Y N Y Y Car Wash N N N N Commuter Rail System Y N N Y Congregate Housing N Y Y N Continuing Care Retirement Center N Y Y N Day Care Center SP Y Y N Eating&Drinking Establishment N* Y' Y' Y Funeral Parlor N N Y Y Golf Course Y N N Y Guest House N N Y N i Incubator or Business Park N N Y Y Independent Elderly Housing N Y Y N Indoor Place of Amusement or Assembly N N SP SP Indoor Ice Skating Facility SP N SP SP Lumber,Fuel Storage or Contractor's Yard Y N N N Manufacturing* Y N N Y Medical Center* Y N Y Y Motel or Hotel N N Y Y Multi-Family Dwellings&Apts. N Y Y N Municipal Recreation Area N N N N New Car Sales* N N N N Non-Profit School Y Y SP SP Nursing&Convalescent Homes* N N Y N One-Family Dwelling N N N N Personal Services N* Y' Y Y Places of Worship Y Y Y Y Printing&Reproduction Y N N Y Private School for Profit Y Y SP SP Professional Offices* Y N Y Y Public Building or Use Y N Y Y Public Garages&Accessory Buildings N N SP SP Public Service Corporation N N N N Public Sanitary Disposal Site N N N N Public Storage of Equipment N N N N Outdoor Recreation Area SP Y Y Y Research&Development Facilities Y N SP Y Retail Establishment N* Y' Y' Y Retail Plaza N N SP Y Rooming House N N N N Taxis Depot N N N N Town House N N N N Two Family Dwelling N N N N Veterinary Hospital&Kennel N N N N Warehousing&Wholesaling Y N N N Windmills N N N Y NOTES: *-See detailed District Use Regulations for uses allowed in the Industrial 2(I-2)Zoning District as defined in Section 4 of the Zoning Bylaw. SP-Allowable with a Special Permit only. Y' -Refer to Sections 17.6.1 and 17.6.2 for gross floor area restrictions. 41 TOWN OF NORTH ANDOVER PLANNING BOARD CHAPTER 40R RULES AND REGULATIONS GOVERNING APPLICATIONS FOR PLAN APPROVAL Pursuant to MGL Chapter 40R, 760 CMR 59.00, and Section 17.00 Of The Town of North Andover Zoning Bylaw entitled "Osgood Smart Growth Overlay District" DATED MAY 14, 2007, AS APPROVED BY THE MASSACHUSETTS DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT TABLE OF CONTENTS 1.0 Preamble and Explanatory Note 2.0 Application Contents and Requirements 3.0 Procedures 4.0 Application Form 5.0 Project Review Fees 1.0 PREAMBLE AND EXPLANATORY NOTES Pursuant to authority granted under G.L. Chapter 40R, implementing regulations at 760 CMR 59.00, and Section 17.0 (Osgood Smart Growth Overlay District) of the Town of North Andover Zoning Bylaw (collectively, the "Enabling Requirements"), these Town of North Andover Planning Board Chapter 40R Rules and Regulations (the "Regulations") are intended to supplement those rules and procedures set forth in the Enabling Requirements in order to further guide the Town and applicants under the process and procedures set forth on Section 17.0. These Regulations shall be administered by the Planning Board, as Plan Approval Authority, set forth in Section 17.0 of the Zoning Bylaw. To the extent that there is any conflict between the Regulations and Section 17.0, the provisions of Section 17.0 shall govern. Moreover, to the extent there is any conflict between these Regulations and/or Section 17.0, and the Enabling Laws, the terms of the Enabling Laws shall govern. These Regulations shall not become effective until such time as the Massachusetts Department of Housing and Community Development (DHCD) has issued a "Letter of Approval" which is a letter issued by the DHCD to the Town of North Andover after the adoption of its Smart Growth Zoning for a District, confirming final approval of the Town's OSGOD District under the Enabling Laws in accordance with the procedures outlined in 760 CMR 59.05(4). Moreover, terms not defined herein shall be governed by the definitions set forth in the Enabling Requirements. 42 2.0 . APPLICATION CONTENTS AND REQUIREMENTS 2.1 Application Contents - The following information shall be submitted as part of an Application for Plan Approval for commercial and residential development unless otherwise waived by the Plan Approval Authority if it finds that such information is not needed for a thorough review of the Project: (1) Plan Application in a form provided by the PAA, along with application fees as required in 5. 0 Project Review Fees Drawings prepared at a scale of one inch equals forty feet (1"=40') or larger, or at a scale as approved in advance by the Town Planner. (2) All site plans shall be prepared by a certified architect, landscape architect, and/or a civil engineer registered in the Commonwealth of Massachusetts. All landscape plans shall be prepared by a certified landscape architect registered in the Commonwealth of Massachusetts. All building elevations shall be prepared by a certified architect registered in the Commonwealth of Massachusetts. All plans shall be signed and stamped, and drawings prepared at a scale of one inch equals forty feet (1"=40') or larger, or at a scale as approved in advance by the Town Planner; (3) The following information must be submitted along with the application: (a) NORTH ARROW/LOCATION MAP: A north arrow and a location map showing surrounding roadways and land uses adjacent to the site (1"=1500'). Location Map should show at least one intersection of two existing Town roadways. (b) SURVEY OF LOT/PARCEL: A boundary survey conforming to the requirements of the Essex County Registry of Deeds Office. The survey shall be dated and include any revision made to the survey or site plan. Any chane in the survey shall be recorded before site plan approval may be g Y p PP Y granted. (c) NAME/DESCRIPTION OF PROJECT: The name of the development and the names, addresses and telephone numbers of the project listing tenants, land uses, development phases, or other pertinent information necessary to evaluate the proposed development plan. (d) EASEMENTS/LEGAL CONDITIONS: Identification of easement(s) or legal encumbrances(s) that are related to the sites physical development, and a listing of any condition(s) placed upon the site by any public body or agency, with the authority to place conditions on the site's development. (e) TOPOGRAPHY: The present and proposed topography of the site, utilizing 43 i two foot (2') contour intervals. The contours shall extend at least fifty (50') feet beyond the site boundaries by estimation of the professional submitting the plan. ZONING INFORMATION: All applicable Zoning g Bylaw information shall be provided regarding the site's development. This information shall be placed in a table and list all parking, setbacks, percent of lot coverage, floor area ratio, number of dwelling units, total amount of square feet, size of signs and any other applicable zoning information necessary for the proper review of the site plan by the Town Planner and Plan Approval Authority. (g) STORMWATER DRAINAGE: All storm water drainage control facilities utilized by the site shall be shown on the site plan. Storm water drainage calculations which support the design of the control facilities shown the plan shall be submitted to the Department of Public Works for review and approval. Calculations shall show a mitigation of runoff to zero of the 2, 10, and 100 year storm event. (h) BUILDING LOCATION: Identification of all existing and proposed structure(s) located on the site. The number of stories, overall height in feet and gross floor area in square feet of all structure shall be indicated. (i) BUILDING ELEVATION: A drawing of the exterior of the building, as viewed from the front (street view) must be submitted. The PAA may request side and rear views if relevant to the PAA's review. This drawing must be at least 8" x 11" in size. 0) LOCATION OF PARKING/WALKWAYS: Identification of the location of all existing and proposed parking and walkways areas, including curb cuts that will be used to access the site from adjacent roadways, or access points. (k) LOCATION OF WETLANDS/NOTICE OF INTENT: All resource areas as defined in M.G.L. Chapter 131, Section 40 and the Town's Wetland Bylaw, shall be shown on the site plan as approved by the North Andover Conservation Commission either through the issuance of the Commission by an Order or Determination. (1) LOCATION OF WALLS/SIGNS: Identification of the location, height and materials to be used for all retaining walls and signs located on the site. (m)LOCATION OF ROADWAYS/DRIVES: Identification of all right of ways and driveways including the type of curb and gutter to be used, and their dimensions. Distances to all the nearest roadways and/or curb cuts shall be shown for both sides of any streets which is adjacent to the site. (n) OUTDOOR STORAGE/DISPLAY AREAS: Identification of the location 44 and type of outdoor storage and display areas on the site. (o) LANDSCAPING PLAN: Identification of the location and landscape schedule of all perimeter and interior landscaping, including but not limited to proposed paving materials for walkways, fences, stonewalls and all planting materials to be placed on the site. In addition, all existing trees over 12 inches DBH, to be saved or removed shall be shown on the site plan. Any landscaping shall be indicated on the site plan in tabular form showing the amount required and the amount provided. (p) REFUSE AREAS: Identification of the location of each outdoor refuse storage area, including the method of storage and screening. All refuse areas must be fully enclosed. (q) LIGHTING FACILITIES: Identification of the proposed illumination, indicating the direction and the degree of illumination offered by the proposed lighting facilities, including an example of the light fixture to be used. (r) DRAINAGE BASIN STUDY: A detailed hydrology study for the site. Included in this study is the proposed storm water runoff rates into the existing drainage system and its potential down-stream impact on the existing drainage system. (s) TRAFFIC IMPACT STUDY: Identification of existing traffic levels, along with the expected traffic impacts to occur based upon the proposed project. For projects which access state highways, a traffic impact study shall be filed with MEPA (if applicable). A copy of any MEPA filing shall also be filed with the PAA. (t) COMMONWEALTH REVIEW: Any information required and submitted to any agency of the Commonwealth, shall be filed with the PAA upon the initial submission of the project for Board review. (u) UTILITIES: All utilities, including water line locations, sewer line locations and profiles, and storm drainage systems. (v) FISCAL IMPACT: Projections of costs rising from increased demand for public services and infrastructure; provisions of benefits from increased tax revenues, employment and infrastructure improvements; and impacts on adjacent property values. COMMUNITY IMPACT: Analysis of the project's impact on the surrounding neighborhood in terms of architectural consistency, pedestrian movement and overall character; impacts on nearby historic structures or site; and an evaluation of the proposed project's consistency ad compatibility with existing local and regional plan. 45 3.O PROCEDURES 3.1 An application for Plan Approval shall be filed by the applicant with the town clerk and a copy of the application including the date of filing certified by the town clerk shall be filed forthwith with the Plan Approval Authority. The PAA shall hold a public hearing for which notice has been given as provided in section 11 of chapter 40A. 3.2 The decision of the PAA shall be made, and a written notice of the decision filed with the town clerk, within 120 days of the receipt of the application by the town clerk. The required time limits for such action may be extended by written agreement between the applicant and the PAA, with a copy of such agreement being filed in the office of the town clerk. Failure of the PAA to take action within said 120 days or extended time, if applicable, shall be deemed to be an approval of the Project. The applicant who seeks approval of a Project by reason of the failure of the PAA to act within such time prescribed, shall notify the town clerk, in writing within 14 days from the expiration of said 120 days or extended time, if applicable, of such approval and that notice has been sent by the applicant to parties in interest. The applicant shall send such notice to parties in interest by mail and each such notice shall specify that appeals, if any, shall be made pursuant to this section and shall be filed within 20 days after the date the town clerk received such written notice from the applicant that the PAA failed to act within the time prescribed. 3.3 The PAA shall issue to the applicant a copy of its decision containing the name and address of the owner, identifying the land affected, and the plans that were the subject of the decision, and certifying that a copy of the decision has been filed with the town clerk and that all plans referred to in the decision are on file with the PAA. If 20 days have elapsed after the decision has been filed in the office of the town clerk without an appeal having been filed or if such appeal, having been filed, is dismissed or denied, the town clerk shall so certify on a copy of the decision. If the plan is approved by reason of the failure of the approving authority to timely act, the clerk shall make such certification on a copy of the application. 3.4. A copy of the decision or application bearing such certification shall be recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or recorded and noted on the owner's certificate of title. The fee for recording or registering shall be paid by the applicant. 3.5 Any court authorized to hear appeals under section 17 of chapter 40A shall be authorized to hear an appeal from a decision under this section by a party who is aggrieved by such decision. Such appeal may be brought within 20 days after the decision has been filed in the office of the town clerk. 46 4.0„ APPLICATION FORM Town of North Andover Plan Approval Authority (Planning Board) Application Check List for OSGOD Plan Review Procedure and Requirements for Filing an Application for OSGOD Plan Review The following information must be submitted thirty (30) days prior to the first public hearing (if necessary). . The information herein is an abstract of more specific requirements listed in the Zoning Bylaw Section 17.0 Osgood Smart Growth Overlay District and is not meant to supersede them. • Step 1: Pick up application package: The petitioner picks up complete application package and Zoning Bylaw to reference specific requirements. • Step 2: OSGOD Application Form: Petitioner completes (3) copies of the application form. All information as required shall be completed. • Step 3: Plan Preparation: Petitioner submits all of the required plan information as cited in Section 17.0 in the North Andover Zoning Bylaw and/or these Rules &Regulations. • Step 4 : Submit Application: Petitioner submits (3)typewritten applications time stamped by the Town Clerk, ten (10) copies of the plan 1" = 40' prepared by a Registered Professional Engineer or Land Surveyor, abutters list certified by the assessors office and filing fee's. The petitioner is responsible for recording certification of the decision and any accompanying plans at the Essex North Registry of Deeds, Lawrence Massachusetts, and shall complete the Certification of recording form and forward it to the Planning Department. Important Phone Numbers ❖ 978-688-9535 Planning Department ❖ 978-688-9542 Planning Department's Fax ❖ 978-688-9501 Town Clerk's Office 47 See Section 17.0 of the North Andover Zoning Bylaw for more detailed information Town of North Andover Planning Board Application for OSGOD Permit Please type or print clearly: 1. Petitioner: Address: Telephone Number: 2. Owners of the Land: Address: Telephone Number: Number of years ownership: If applicant is not the owner, please state interest in property: 3. Request for an OSGOD Permit under Section 17.0 of the North Andover Zoning Bylaw to 4. Location of Property: Zoning District: Assessors: Map: Lot# Registry of Deeds: Book#: Page# 5. Existing Lot: Lot Area (Sq. Ft): Building Height: Street Frontage; Side Setbacks: Font Setback: Rear Setback: Floor Area Ration: Lot Coverage: 6. Proposed Lot (if applicable): Lot Area (Sq.Ft.): Building Height: 48 a a Street Frontage: Side Setback: Front Setback: Rear Setback: Floor Area Ratio: Lot Coverage: 7. Required Lot (as required by Zoning Bylaw); Lot Area (Sq.Ft.): Building Height: Street Frontage: Side Setback: Front Setback: Rear Setback: Floor Area Ratio: Lot Coverage: 8. Existing Building (if applicable): Ground Floor (Sq.Ft.) # of Floors Total Sq. Ft.; Height: Use: Type of Construction: 9. Proposed Building: Ground Floor (Sq.Ft.) # of Floors Total Sq. Ft.; Height: Use: Type of Construction: 10. Has there been a previous OSGOD Application/Permit from the Planning Board on these premises? If so,when and for what type of construction? 11. Petitioner and Landowner signature(s): Every application for an OSGOD Permit shall be made on this form,which is the official form of the Planning Board. Every application shall be filed with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or Planning Office does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal notification. Petitioner's Signature: Print or type name here: Owner's Signature: Print or type name here: 5.0 PROJECT REVIEW FEES 49 I V The following review fees are to cover administrative costs and professional municipal staff review. Additional peer review may be required as outlined in Section 17.13.4. Development Application shall require the following review fees: General Fee is $3,500 + $0.25/sf Example: 5,000 SF development would be calculated as: $3,500 fee + $1,250 (5,000 SF x $0.25) =TOTAL $4,250 Project Application shall require the following review fees: General Fee is $9300+ $50/unit above 200 units Example: 200 Unit project would be calculated as: $9,300 fee = TOTAL $9,300 Example: 250 Unit project would be calculated as: $9,300 fee + $2,500 (50 additional units x $50 each) =TOTAL $12,100 Community Development Division VOTED JUNE 4, 2007 AIrMTI A True Copy Town Clerk 50 THE COMMONWEALTH OF MASSA.k4i TTS OFFICE OF THE ATTORNLY'-:GE4-ffi�AL as WESTERN MASSACmjsr-,r,r.'20YWT"L4 A1,411: 03 1350 MAIN S,rRE_F_T SPRINGFIELD. MASSACI-11 ISLIAS 0 1 103i.1&i0l", MARTHA COAKLEY (413)784-1240 ATrORNEA GENFRAL. MA q SA, `J: r� Wixvw.ago.state.ma.us October 2, 2007 Joyce A. Bradshaw, Town Clerk 120 Main Street North Andover,MA 01845 RE: North Andover Annual Town Meeting of May 14, 2007—Case#4430 Warrant Articles#38,39,47,48, and 49(General) Warrant Articles#27, 28, 30,36, and 37 (Zoning) Dear Ms. Bradshaw: Articles 28,30,36, 37,38,39,47,48, and 49 - I return with the approval of this Office the amendments to the town by-laws adopted under these Articles on the warrant for the North Andover annual town meeting that convened on May 14, 2007, and the maps pertaining to Articles 28 and 30. Article 27- I return with the approval of this Office the amendments adopted under this Article, except as provided below. The amendments adopted under Article 27 add to the town's zoning by-laws a new Section 17, "Osgood Smart Growth Overlay District"(OSGOD). The proposed by-law was adopted pursuant to General Laws Chapter 40R and the regulations adopted thereunder. General Laws Chapter 40R allows municipalities to encourage housing production that is aligned with the principles of "smart growth"and in doing so towns may obtain financial and other incentives accorded exclusively to Smart Growth Zoning Districts. General Laws Chapter 40R prescribes the methods for a town to establish a Smart Growth Zoning District and requires approval by this Office and by the Department of Housing and Community Development (DHCD). We point out that the town must still comply with the provisions of G.L. c. 40R, § 4(b), by obtaining final approval from DHCD of the"Smart Growth Overlay District." Our approval of the amendments adopted under Article 27 is conditioned upon approval by DHCD. Thus, the amendments adopted under Article 27 do not take effect unless and until it receives both such approvals and the town clerk posts and publishes the by-law provisions,in accordance with G.L. c. 40, § 32. We also F:\USERS\RJTCHIE\WP61\DOCS\TOWNS\North Andover\#4430A.DIS.wpd ATTIM., A Tree Copy Town Clerk caution the town that it may not be eligible for financial and other incentives until it receives final approval from DHCD. We suggest that the town discuss this issue in more detail with town counsel and directly with DHCD. Section 17.4 pertains to the administration, enforcement, and appeal of the 40R by-law and. would have provided in pertinent part as follows: The Building Inspector shall not issue a building permit for a development until he is reasonably satisfied that a Plan Approval has issued for the development Any building permit issued by the Building Inspector shall become invalid unless the work authorized by it shall have been commenced within the meaning of the Enabling Laws within six(6) months after its issuance which shall be automatically extended for the duration of any appeal or challenge to such building_permit and which may be further extended as allowed in writing by the Building Inspector pursuant to the State Building Code (Emphasis added.) We disapprove and delete the above underlined text from Section 17.4 as inconsistent with the State Building Code. [Disapproval# 1 on] Beginning with Chapter 802 of the Acts of 1972, as amended by Chapter 541 of the Acts of 1974, the Legislature eliminated local building codes, the purpose of which was to create a state-wide "comprehensive" state building code,which it intended should be applied uniformly throughout all the communities of the Commonwealth. Today, any town seeking to enforce regulations more restrictive than those currently imposed under the State Building Code must request that the State Board of Regulations and Standards adopt such regulation. G.L. c. 143, § 98. The Board will grant such a request only upon a finding, after conducting a public hearing, "that more restrictive standards are reasonably necessary because of special conditions prevailing within such city or town and that such standards conform with accepted national and local engineering and fire prevention practices, with public safety and with the general purposes of a statewide building code . . . ." Id. The issuance and duration of a"building permit" is preemptively governed by the State Building Code. See State Building Code, 6th Edition, 780 C.M.R. §§ 111.2 and 111.8. The State Building Code not only authorizes but requires the Building Inspector(as Code Enforcement Officer under the State Building Code)to issue a building permit where the applicant has demonstrated compliance with the Code and the town's zoning by-laws. G.L. c. 40A,§ 7, and 780 C.M.R. § 111.2. The above quoted text would determine when the building permit is issued and would limit the lifespan of the building permit. Therefore, we disapprove and delete the above underlined text in Section 17.4. We specifically call the town's attention to Section 17.6.1, which pertains to the Residential Mixed-use Zone of the OSGOD. Section 17.6.1.3 pertains to uses allowed by special permit in the Residential Mixed-use Zone of the OSGOD and provides in pertinent part as follows: F:\USERS\RITCHIE\WP61\DOCS\TOWNSWorth Andover\#4430A.D1S.wpd 2 s The following uses shall be permitted in the Residential Mixed Use Zone by Plan Approval Special Permit issued by the Plan Approval Authority pursuant to the provisions of Section 17.6.5: 3. Nursing and Convalescent Homes; 4. Commuter Rail System; and. . . Section 17.6.1.3 (3)requires a special permit for nursing and convalescent homes in the new Residential Mixed-Use Zone of the OSGOD. In approving this text,we caution the town on the protections accorded to certain uses under G.L. c. 40A, § 3,which provides in pertinent part as follows: Notwithstanding any general or special law to the contrary, local land use and health and safety laws,regulations,practices,ordinances,by-laws and decisions of a city or town shall not discriminate against a disabled person. Imposition of health and safety laws or land-use requirements on congregate living arrangements among non-related persons with disabilities that are not imposed on families and groups of similar size or other unrelated persons shall constitute discrimination. The provisions of this paragraph shall apply to every city or town, including,but not limited to the city of Boston and the city of Cambridge. General Laws Chapter 40A Section p 3rohibits discrimination nation a ainst disabled d persons. We caution the town that it would be inconsistent with G.L. c. 40A, § 3, for the town to apply or enforce its by-laws in a way that treats buildings and uses for the disabled with any less deference given to other similar types of buildings and uses projects. Such difference in treatment would violate the provisions of G.L. c. 40A, § 3. We also point out that Section 17.6.1.3 (4)requires a special permit for commuter rail systems. We also call the town's attention to Section 17.6.3, which pertains to the Business Opportunity Zone in the OSGOD. Section 17.6.3.3 (1)pertains to uses allowed in the Business Opportunity Zone and requires a special permit for commuter rail systems. It is not clear whether a commuter rail system would be built or owned by the federal, state, or local government or a private party or some type of combination of these entities. In approving Sections 17.6.1.3 (4) and 17.6.3.3 (1), we point out that the state and federal government are exempt from local regulation unless the state or federal government has chosen to submit to local regulation. "The doctrine of federal supremacy protects the legitimate activities of the United States government from regulation by state and local authorities."May v. United States, 319 U.S. 441, 445-48 (1943) (a state could not impose an inspection fee on fertilizer owned by the United States. "It is necessary for uniformity that the laws of the United States be dominant over those of any state."); United States Constitution, art. VI, clause 2 (the"supremacy clause"); Township of Middletown v F:\USERS\RITCHIE\WP6]\DOCS\TOWNS\North Andover\#4430A.D1S.wpd 3 United States Postal Service, 601 F. Supp. 125, 127-28 (D. N.J. 1985) (local zoning regulations inapplicable to the Postal Service's construction plans). The"State and State instrumentalities are immune from municipal zoning regulations, unless p g re g ss a statute otherwise expressly provides to the contrary." Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. 92, 95 (1989) (The Commonwealth's immunity from zoning regulation is broader than the exemption for as of right uses created in G.L. c. 40A, § 3); County Commissioners of Bristol v. Conservation Commissioners of Dartmouth, 380 Mass. 706, 708-711 (1980) (neither Home Rule Amendment or the Zoning Enabling Act changed presumption of state and county immunity from municipal zoning). Thus, we caution the town to apply its requirement for site plan review for governmental uses in a manner consistent with state and federal law. We next call the town's attention to Section 17.6.2,which pertains to the Mixed-Use Development Zone of the OSGOD. Section 17.6.2.3 (11)pertains to uses allowed by special permit in the Mixed-Use Development Zone of the OSGOD and provides that non-profit schools are allowed by special permit. We also call the town's attention to Section 17.6.3.3 (5), which allows non-profit schools by special permit in the Business Opportunity Zone. In approving these portions of Sections 17.6.2.3 (11) and 17.6.3.3 (5), we call the town's attention to the protections accorded to such uses under G.L. c. 40A, § 3. General Laws Chapter 40A, Section 3, provides in pertinent part: No zoning . . . by-law shall prohibit,regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination,or by a nonprofit educational corporation;provided,however,that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area,setbacks,open space,parkin and building coverage requirements . . . . (Emphasis added.) Section 3 provides exemptions from local zoning for the use of land or structures for certain educational uses, but authorizes the reasonable regulation of such uses in eight areas. Such uses may be subject to reasonable regulations pertaining to bulk and height of structures, yard size, lot area, setbacks, open space,parking, and building coverage requirements. As stated in more detail above, G.L. c. 40A, § 3, provides exemptions for the use of land or structures for certain educational uses. Thus, if an educational use enjoys protections under G.L. c. 40A, § 3, it would be inconsistent with state law to prohibit, regulate, or restrict, including requiring a special permit for such use. Therefore, the town must apply Sections 17.6.2.3 and 17.6.3.3 in a manner consistent with G.L. c. 40A, § 3. We next call the town's attention to Section 17.6.4, which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4, we remind the town of the protections accorded to certain uses and structures under G.L. c. 40A, § 3. General Laws F:\USERS\RITCHIE\WP61\DOCS\TOWNS\North Andover\#4430A.DIS.wpd 4 Chapter 40A, Section 3,provides exemptions from local zoning for uses and structures including agricultural uses, religious uses, educational purposes, and certain day care centers. Thus, the town cannot prohibit,require a special permit,or unreasonably regulate those uses that are accorded protections under G.L. c. 40A, § 3. We caution the town to apply the proposed by-law, including Section 17.6.4, in a manner consistent with G.L. c. 40A, § 3. We next call the town's attention to Section 17.6.5, which pertains in pertinent part to criteria for special permits and provides in as follows: 17.6.5.2 The Plan Approval Authority may grant a Special Permit or other approval within the framework of this Section 17 only after holding a public hearing which must be held within sixty-five(65) days after the applicant files for such Special Permit or other approval. . . . The Applicant is responsible for transmitting a copy of the application for a Specail Permit or other approval within twen -four(24)hours of the filing of the application with the Town Clerk and [sic] to the Planning Board. (Emphasis added) Section 17.6.5.2 requires an applicant for a special permit or other approval to transmit a copy of the application to the Planning Board within 24 hours of filing the application with the Town Clerk. In approving Section 17.6.5.2, we remind the town of the requirements of G.L. c. 40A, § 9, and c. 40R, § 11. General Laws Chapter 40, Section 9,pertains to special permits and provides in pertinent part as follows: Each application for a special permit shall be filed by the petitioner with the city or town clerk and a copy of said application, including the date and time of filing certified by the city or town clerk, shall be filed forthwith by the petitioner with the special permit granting authority. (Emphasis added.) General Laws Chapter 40R, Section 11,pertains to applications for approval of smart growth projects and provides in pertinent part as follows: c)An application for approval under this section shall be filed by the applicant with the . . . town clerk and a copy of the application including the date of filing certified by the town clerk shall be filed forthwith with the approving authority. General Laws Chapter 40A, Section 9,requires that an applicant file"forthwith"copy of the applicant with the special permit granting authority and c. 40R, § 11,requires that an applicant file "forthwith"a copy of the application for project approval with the approval authority. We are unable to find any cases defining"forthwith." According to Mark Bobrowski, there is no case law construing this requirement; however, the Appeals Court has said in the context of the Subdivision Control Law, F:\USERS\RITCHIE\WP6I\DOCS\TOWNS\North Andover\#4430A.DIS.wpd 5 G.L. c. 41, §81K through § 81GG, that a similar fining was to be accomplished"simultaneously or promptly after the first submission." Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law, § 10.03 [G] n. 35 (2003)citing Korkuch v. Planning Bd. of Eastham, 26 Mass. App. Ct. 307, 309 (1998). The town may wish to discuss this issue in more detail with town counsel. We next call the town's attention to Section 17.10 which pertains toarkin requirements. P g q Section 17.10 provides specific parkingrequirements for day care centers and other places of assembly.y In approving this portion of Section 17,10, we remind the town of thep rotections accorded to such uses under G.L. c. 4OA, § 3. General Laws Chapter 40A, Section 3,provides in pertinent part: No zoning . . . by-law shall prohibit,regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational corporation; provided,however,that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space,parking and building coverage requirements . . . . (Emphasis added.) Section 3 provides exemptions from local zoning for the use of land or structures for certain religious and educational uses,but authorizes the reasonable regulation of such uses in eight areas. Such uses may be subject to reasonable regulations pertaining to bulk and height of structures,yard size, lot area, setbacks, open space,parkin , and building coverage requirements. We caution the town that, as applied, the parking requirements in Section 17.10 must be reassessed for reasonableness before they are applied to any specific use that enjoys the protections accorded under G.L. c. 40A, § 3. We also call the town's attention to Section 17.11, which pertains to general design standards. Section 17.11.12 pertains to signage and provides in pertinent part as follows: The residential component shall be limited to three types of sign: name of site, orientation and direction, and to identify common building spaces. . . . . In approving Section 17.11.12, we remind the town that some signs, including political signs, enjoy protection under the First Amendment of the U.S. Constitution and Article 16 of the Declaration of Rights of the Constitution of the Commonwealth.ealth. Section 17 .11.12 cannot be construed and applied to prohibit signs that enjoy constitutional protections. We presume that the town will honor those protections even where not expressly set forth within the by-law itself. We next call the town's attention to Table 1, "Summary of Use Regulations,"which provides in F:\USERS\RITCHIE\WP61\DOCS\TOWNS\North Andover\#4430A.DIS.wpd 6 pertinent part as follows: Permitted Use Underlying Residential Mixed-use 40R Business Industrial 2 Zone Mixed-use 40R Subdistrict Opportunity 40R Subdistrict Subdistrict Non-profit School Y Y SP SP Nursing& N N Y N Convalescent Home* Veterinary N N N N Hospital & Kennel * = See detailed District Use Regulations for uses allowed in the Industrial 2 (I-2)Zoning District as defined in Section 4 of the Zoning Bylaw. In the Table, "Y" stands for an allowed use; "SP" stands for a use allowed by special permit; and"N"stands for a prohibited use. In the Table,non-profit schools are allowed by special permit in the Mixed-use 40R Subdistrict and the Business Opportunity 40R Subdistrict. As stated in more detail above, Section 3 provides exemptions from local zoning for the use of land or structures for certain religious and educational uses, but authorizes the reasonable regulation of such uses in eight areas. Such uses may be subject to reasonable regulations pertaining to bulk and height of structures,yard size, lot area, setbacks,open space,parking, and building coverage requirements. Thus, if an educational use enjoys protections under G.L. c. 40A, § 3, it would be inconsistent to require a special permit for such use. Therefore,the town must apply Sections 17.6.2.3 and 17.6.3.3 in a manner consistent with G.L. c. 40A, § 3. In the Table, nursing and convalescent are prohibited in the town's underlying Industrial 2 Zone, the Residential Mixed-use 40R Subdistrict, and the Business Opportunity 40 Subdistrict. As stated in more detail above, G.L. c. 40A, § 3,prohibits discrimination against disabled persons. We caution the town that it would be inconsistent with G.L. c. 40A, § 3, for the town to apply or enforce its by-laws in a way that treats buildings and uses for the disabled with any less deference given to other similar types of buildings and uses projects. Such difference in treatment would violate the provisions of G.L. c. 40A, § 3. Lastly, the Table prohibits kennels in underlying Industrial 2 Zone, Residential Mixed-use 40R Subdistrict, Mixed-use 40R Subdistrict, and Business Opportunity 40R Subdistrict. In approving this text we remind the town of the protections accorded to agriculture under G.L. c. 40A, § 3. Section 3 provides in pertinent part as follows: F:\USERS\RITCHIE\WP61\DOCS\TOWNS\North\ CS TOWNS\North Andover\#443 OA.DIS.wpd 7 No zoning . . . by-law shall . , . prohibit,unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture,nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture,aquaculture, silviculture,horticulture, floriculture or viticulture, including those facilities for the sale of produce,wine and dairy products,provided that either during the months of June,July, August and September of every year or during the harvest season of the primary crop raised on land of the owner or lessee, 25 per cent of such products for sale,based on either gross sales dollars or volume,have been produced by the owner or lessee of the land on which the facility is located, or at least 25 per cent of such products for sale, based on either gross annual sales or annual volume,have been produced by the owner or lessee of the land on which the facility is located,and at least an additional 50 per cent of such products for sale,based upon either gross annual sales or annual volume, have been produced in Massachusetts on land,other than that on which the facility is located,used for the primary purpose of commercial agriculture,aquaculture, silviculture,horticulture, floriculture or viticulture,whether by the owner or lessee of the land on which the facility is located or by another, except that all such activities may be limited to parcels of 5 acres or more in area not zoned for agriculture,aquaculture, silviculture,horticulture, floriculture or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as 1 parcel. No zoning ordinance or bylaw shall exempt land or structures from flood plain or wetlands regulations established pursuant to general law. For the purposes of this section,the term ""agriculture"" shall be as defined in section 1 A of chapter 128, and the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished,maintained and managed while on the premises. General Laws Chapter 40A, Section 3, states that all agricultural uses must be allowed as of right on land zoned for agriculture and on land that is greater than five acres in size; therefore, a municipality cannot restrict agricultural uses in those areas. A municipality is allowed to restrict agricultural uses on land less than five acres that is not zoned for agriculture. The town cannot prohibit, unreasonable regulate, or require a special permit for agricultural activities on land less than five acres zoned for agriculture. General Laws Chapter 128, Section IA, defines agricultures and provides in pertinent part as follows: "Fanning"or"agriculture"shall include farming in all of its branches and the cultivation and tillage of the soil,dairying, the production, cultivation,growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine,cattle and other domesticated animals used for food purposes, bees, fur-bearing F:\USERS\RITCHIE\WP6I\DOCS\TOWNSWorth Andover\#4430A.DIS.wpd 8 animals, and any forestry or lumbering operations,performed by a farmer,who is hereby defined as one engaged in agriculture or farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market. We remind the town that dog kennels may be considered an agricultural use and thus enjoy the protections accorded under G.L. c. 40A,§ 3. See Sturbridge v. McDowell, 35 Mass. App. Ct. 924, 926 (1993). We caution the town that it cannot take away any rights accorded to an agricultural entity that enjoys the protections accorded under state law. Thus,we caution the town to apply the provision of the Table that prohibits kennels in a manner consistent with the protections given to agriculture under G.L. c. 40A, § 3. Caution: Since the amendments voted under the foregoing Article were adopted under the provisions of G.L. c. 40R,any future amendment thereof may only be adopted in accordance with the requirements of that statute. Article 28- The amendments adopted under Article 28 amend the town's zoning map to include the boundaries of the new"Osgood Smart Growth Overlay District." As stated in more detail above in Article 27, we point out that the town must still comply with the provisions of G.L. c.40R, § 4(b),by obtaining final approval from the DHCD of"Osgood Growth Overlay District." Our approval of the amendments adopted under Article 28 is conditioned upon approval by DHCD. Thus, the amendments adopted under Article 28 do not take effect unless and until it both receives such approval and the town clerk posts and publishes the by-law provisions in accordance with G.L. c. 40, § 32. We also caution the town that it may not be eligible for financial and other incentives until it receives final approval from DHCD. We suggest that the town discuss this issue in more detail with town counsel. Caution: Since the amendments voted under this Article were adopted under the provisions of G.L. c.40R, any future amendment thereof may only be adopted in accordance with the requirements of that statute. Article 38 - The amendments adopted under Article 38 add to the town's general by-laws a new Chapter 82, "Demolition Delay." Section 82-3 of the proposed by-law pertains to the procedures for obtaining a demolition permit and provides in pertinent part as follows: No permit for demolition of a building determined to be a preferablyreserved building g shall be granted until alllans for future use and development opment of the site have been filed with the Building Commissioner and have been found to comply with all laws pertaining to the issuance of a building permit or if for a parking lot, a certificate of occupancy for that site. In approving the above-quoted text in Section 82-3, we remind the town that an applicant has a F:\USERS\RITCHIE\WP61\DOCS\TOWNSWorth Andover\#4430A.DIS.wpd 9 clear entitlement to a demolition permit once the applicant has a"plan"that satisfies all permit requirements and applicable laws. Illustratively, if an applicant intends to leave the property as mere open space, for which no local permits are required, the applicant would be entitled to the demolition permit. The above-quoted text in Section 82-3 cannot be construed as limiting projects or the development of the land after the applicant once satisfies the provisions of Section 82-3. The conditions in Section 82-3 do not carry forward to limit what an applicant can do after the applicant submits a"plan"and get a demolition permit. Otherwise stated, a plan filed as required by this section does not have the effect of limiting the future uses of the property that are otherwise lawful nor does it compel the owner to pursue the uses reflected in the plan filed. It is based on this interpretation of Section 82-3 that we approve its text. We suggest that the town discuss the application of this section with town counsel. We next call the town's attention to Section 82-4,which pertains to the administration of the Demolition Delay by-law and includes a paragraph pertaining to emergency demolitions. In approving Section 82-4, we remind the town of the requirements of G.L. c. 143, §§ 6-10. General Laws Chapter 143, Sections 6 through 10,pertain to the demolition of dangerous or abandoned buildings. We remind the town to apply Section 82-4 in a manner consistent with state law, including G.L. c. 143, §§ 6-10. Lastly,we call the town's attention to Section 83-5, which pertains to the enforcement of the proposed by-law and provides in pertinent part as follows: If a building subject to this bylaw is demolished without first obtaining a demolition permit, no building permit shall be issued for a period of two years from the date of the demolition on the subject parcel of land or any adjoining parcels of land under common ownership and control unless the building permit is for the faithful restoration referred to above or unless otherwise agreed to by the Commission. In approving this text in similar by-laws submitted d from other towns,we point out that the rational relationship between the penalty of withholding building permits for adjoining parcels of land for demolishing a structure without a demolition permit is based on the assumption that there is a common development scheme for the subject parcel and adjoining land under common ownership. However, Section 83-5 does not foreclose rebuttal of such presumption. Denial of a building permit on adjoining parcels where the development is not tied to a common development scheme with adjoining parcels would be no more defensible than if the building permit denial was for a parcel of land several miles away. We suggest that the town apply Section 83-5 in a manner consistent with state law. Article 48 - The amendments adopted under Article 48 delete from the town's general by-law Chapter 69, Article 1, "Fire Detection and Alarm System,"and replace it with new text. The new text governs how one must interface fire alarm systems and equipment with the town's Fire Department's alarm receiving system. The new Article I provides in pertinent part as follows: F:\USERS\RITCHIE\WP61\DOCS\TOWNS\North Andover\#4430A.DIS.wpd 10 § 69-2 Alarm Installation and Permit Requirements A. As of the effective date of this by-law,no alarm system or equipment designed to summon the Fire Department shall be installed without a permit signed by the Fire Chief or his designee. The issuance of permits shall be in compliance with Massachusetts General Law Chapter 148 Section 10 A. C. Actual connection to the Fire Department's alarm receiving system will be made only by an installer approved by the Fire Chief for this service through the issuance of a permit as per Massachusetts General Law Chapter 148 Section 10A. D. As of July 1,2007 connection to the Fire Department's alarm receiving system will be performed only through approved radio master fire alarm boxes. E. As of July 1,2007 all buildings and structures connected to the Fire Department's alarm receiving system will be advised that as of July 1, 2012 master fire alarm boxes connected through hard wired municipal circuit system must be replaced with a radio master box compatible with the Fire Department's alarm receiving equipment. The master boxes on the buildings remain the property of the property owner but must be removed from their location to avoid perceptions that they are connected to the Fire Department. These wireless devices shall be installed and maintained in accordance with the appropriate sections of the then current editions of the following NFPA Standards: NFPA 72 National Fire Alarm Code-NFPA 1221 Standard for the Installation, Maintenance and Use of Emergency Services Communication Systems-NFPA 70 National Electrical Code and all reference documents s contained within these codes and the related rules and regulations i gu ahons of the North Andover Fire Department. (Emphasis added.) Sections 69-2 (A) and(C)provide that alarm system permits and connection installations shall be issued in compliance with G.L. c. 148, § 1OA. In approving these sections, we remind the town that the fees imposed for those permits must in accordance with G.L. c. 148, § 1OA. Section 10A allows limited discretion for town to set permit fees and sets the maximum amount that may be imposed for such permits. For example, Section l0A allows for a single fee for joint smoke detector and carbon monoxide alarm inspections and limits the fee for either a carbon monoxide alarm inspection or a smoke detector inspection, conducted separately,to $50 for a single-family dwelling or a single dwelling unit; $100 for a 2-family dwelling; $150 for any building or structure with 6 or fewer residential units; and $500 for any building or structure with more than 6 units. Therefore any fee imposed for permits issued in under G.L. c. 148, § 10A, cannot be greater than those allowed under Section 1OA. We next call the town's attention to Sections 69-2 (D) and (E). Section 69-2 (D)provides that as of July 1, 2007, all connections to the Fire Department alarm receiving system shall be through an approved radio master fire alarm box. Section 69-2 (E)provides that as of July 1, 2007, owners of F:\USERS\RITCHIE\WP61\DOCS\TOWNS\North Andover\#4430A.D1S.wpd 11 building and structures connected to the town' Fire Department alarm receiving system, will be advised that their system must replaced with a radio master box compatible with the Fire Department's alarm receiving equipment. In approving these Sections,we point out that the proposed by-law adopted under Article 48 has not and will not take effect until the requirements of G.L. c 40, § 32, have been satisfied. We suggest that the town discuss with town counsel,whether it can impose the obligations and duties required under Sections 69-2 (D) and(E), as of July 1, 2007, a date well before the by-law takes effect. We next call the town's attention to Section 69-5, "Alarm System Regulations and Maintenance,"and provides in pertinent part as follows: B. Written instructions for re-setting the alarm system shall be clearly visible on,or adjacent to, the system control panel. Once activated,the system shall not be reset prior to the arrival of the Fire Department. Any attempt to reset a system connected directly to the Fire Department shall be considered a violation of Massachusetts General Law Chapter 268 Section 32(tampering with a fire alarm signal). (Emphasis added.) Section 69-5 (B)provides that the resetting of an alarm system connected directly to the Fire Department after the system has been activated shall be considered a violation of G.L. c. 268, § 32. In approving the above underlined text in Section 69-5 (B),we remind the town that it cannot by by-law establish what constitutes a violation of G.L. c. 268, § 32. Whether the action contemplated in Section 69-5 (B) is a violation of G.L. c. 268, § 32, is governed by state law. Thus,we generously construe the above underlined text in Section 69-5 (B), as a recitation of state and common law pertaining to what constitutes a violation of G.L. c. 268, § 32. We next call the town's attention to Section 69-7, "False Alarm Assessment." Section 69-7 provides a schedule of penalties for false alarms. In approving Section 69-7, we remind the town that G.L. c. 269, § 13, has criminalized false alarms for fire. Section 13 provides as follows: Whoever,without reasonable cause,by outcry or the ringing of bells, or otherwise,makes or circulates or causes to be made or circulated a false alarm of fire shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars,or by imprisonment in a jail or house of correction for not more than one year. General Laws Chapter 269, Section 13, provides for a fine or imprisonment for false alarms. We suggest that,before the town enforces its by-law provisions, the town discuss with the Essex County District Attorney's Office and town counsel the application of the by-law and the principles of double jeopardy established under federal and state law. Great care must be given in implementing and enforcing this by-law because enforcement of a by-law violation, a lesser offense, might foreclose prosecution of a G.L. c. 269, § 13, violation, a more serious offense, brought by the District Attorney F:\USERS\RITCHIE\WP61\DOCS\TOWNS\North Andover\#4430A.DIS.wpd 12 against a person deemed to be an imminent threat to society. Note: Under G.L. c. 40,§ 32, neither general nor zoning by-laws take effect unless the town has first satisfied the posting/publishing requirements of this section. Once this statutory duty is fulfilled,(1)general by-laws and amendments take effect on the date that these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law,and(2)zoning by-laws and amendments are deemed to have taken effect from the date they were voted by Town Meeting, unless a later effective date is prescribed in the by-law. If the Attorney General has disapproved and deleted one or more portions of any by-law or by-law amendment submitted for approval,only those portions approved are to be posted and published pursuant to G.L. c. 40, §32. We ask that you forward to us a copy of the final text of the by-law or by-law amendments reflecting any such deletion. It will be sufficient to send us a copy of the text posted and published by the Town Clerk pursuant to this statute. Nothing in the Attorney General's approval authorizes an exemption from any applicable state law or regulation governing the subject of the by-law submitted for approval. Very truly yours, MARTHA COAKLEY AT ORNEY G ERA ` 9 0 0;J, Al y. Kelli E. Gunagan; ssistant orney General By-law Coordinator, Municipal w Unit 1350 Main Street,4th Floor Springfield,MA 01103-1629 (413) 784-1240, x 117 enc. cc: Town Counsel F:\USERS\RITCHIE\WP61\DOCS\TOWNSWorth Andover\#4430A.DIS.v pd 13 TOWN OF NORTH ANDOVER ANNUAL TOWN MEETING ARTICLE 30 -VOTED MAY 21,2007 REZONE 200-220 SUTTON STREET MAP 39 LOT 24 AND MAP 28 LOT 1 —INDUSTRIAL S (IS)TO BUSINESS 2 (132) ( ,rese t fir — ARTICLE 30 2007 ATM t I / 4 Voted May 21,20074 t Rezone 200-220 / f) ( Sutton Street r r ,'' r 1 tr � - Map 28 Parcel i ,e c6a2D � 1 �- ._ Industrial S(IS)To Business(2)(B2) 1 >.�. L f lr � • 1,k`Sy f. ARTICLE 30 2007 ATM ' Voted May 21,2007 t� 1 Rezone 200-220 f Sutton Street { j1li Map 39 Parcel 24 1% rte` j Il Industrial S(IS)To f 1 �``•, ��j. j Business(2) (B2) j ,l4 � taaamoe �j�[ ( a/ - :. .,. � _.�,,,. 4a��=t►I � l� ,` j,f. y -tet;` -I rr... _ - t6•arad T-`17`-ti, ,t ,f {I f'�s ��1 _``r'' { � Y @ 5 ti �� N.�c,�.�, CO ILegend ��.._ � J � f 1t r• �4J3.9�S23 �.te'"r` .i''1 Itt � r1 .tt; . ..uswt�e.+d.n �.`'z�• `-�X� ��` Q'7`.� ,(� ! �''".r '.L '}t� ' y_-S `•. "�:a�Q� ��uear-a.s..,w.ww�.e�. w �•4� -4 % �� ` '^' 1 •Y .;s�� to •� e.ra..oma.r a % +}� '�. � � f�a �• r. i�.a:'.r`r �,, s`na'aJQ r•``l rr 60DA+OIII3 � a..r Dnr.<D:r� .`� yy ..•P �+ �l` 1f f�'f�4 /�� � �� r� idea1Jb71IwW y. er�r,Dssa, ,r�dfrl Di�e.l ,ruasu.tD,e:va Ilniaee:,O'ria �.xa.uaound. ,+araernrra s Nmdsriaianfat V*RC�easlDMie Y�KRaNp1�l OiWe1 O.a1.r D•. . APPROVED �W E-�ewrvrw Dvuiu rrrr r•n,r.i-aao tae r.. ATTEST: JmegEGP wl P !` — A True Copy R.�r ffice Y; Town Clerk . rimy �f 4.gMk WPRI�4{YYrpErr/ rre,rrrn...�w. Metes&Bounds Description Residential Zone— 1600 Osgood Street North Andover,Massachusetts April 6,2007 Page l of 2 Beginning at a point along the westerly sideline of Osgood Street(Route 125)at the land now or formerly of J. Tropeano, Inc., said point being the northeasterly corner of the within described premises; Thence along said westerly sideline of Osgood Street the following four(4)courses: Along a curve to the right having a central angle of 12°20'40",a radius of one thousand one hundred and seventy(1170.00)feet and an arc length of two hundred.fifty-two and eight hundredths(252.08)feet to a point; Thence S22°55'07"W four hundred twenty-six and six hundredths(426.06)feet to a point; Thence along a curve to the left having a central angle of 26°06'25",an radius of one thousand two hundred and thirty-two(1232.00)feet and an are length of five hundred sixty-one and thirty-six hundredths(561.36)feet to a point; Thence S03°1 I'l 8"E seventy and thirty-six hundredths(70.36)feet to a point; Thence through the land now or formerly of 1600 Osgood Street LLC S76114'53"W one thousand three hundred ninety and forty-six hundredths(1390.46)feet to a point; Thence continuing through the land of said 1600 Osgood Street LLC N13°45'07"W one hundred forty-seven and ninety-five hundredths(147.95)feet to a point at the land now or formerly of Massachusetts Bay Transportation Authority; Thence by the land of said Massachusetts Bay Transportation Authority the following five(5)courses: N38'1 8'43"E one thousand sixty-five and forty-six hundredths(1065.46)feet to a point; Thence S58'0 1 59„E six and fifty hundredths 6.50 feet to apoint; Thence N38°49'09"E three hundred two and eighty-seven hundredths(302.87)feet to a point; Thence N30°47'22"E two hundred eighty-six and ninety-eight hundredths(286.98)feet to a point; ATTEST: A True Copy Pr'a ` - Town Clerk I I Metes&Bounds Description Residential Zone— 1600 Osgood Street North Andover, Massachusetts April 6, 2007 Page 2 of 2 Thence N20°20'59"E three hundred fifty-eight and eighty-eight hundredths(358.88)feet to a point at the land of said J.Tropeano, Inc.; Thence by the land of said J.Tropeano, Inc. S70°06'04"E six hundred twenty-five and thirty-four hundredths(625.34)feet to the point of beginning. Said tract or parcel of land contains 1,381,104 square feet or 31.706 acres,more or less. Metes&Bounds Description Business Opportunity Zone— 1600 Osgood Street North Andover, Massachusetts April 6,2007 Pagel of 3 Beginning at a point along the westerly sideline of Osgood Street(Route 125)and along the land now or formerly of 1600 Osgood Street LLC,said point being the northeasterly corner of the within described premises; Thence along said westerly sideline of Osgood Street the following eight(8)courses: Along a curve to the left having a central angle of 08'22'14",a radius of three thousand one hundred twelve and fifty-seven hundredths(3112.57)feet and an arc length of four hundred fifty-four and seventy-two hundredths(454.72)feet to a point; Thence S13°25'32"E six hundred seventy-four and twenty-two hundredths(674.22)feet to a point; Thence S 13'37'1 YE two hundred sixteen and twenty-one hundredths(216.21)feet to a point; Thence along a curve to the right have a central angle of 16°26'03",a radius of one thousand five hundred (1500.00)feet and an arc length of three hundred eighty-eight and twelve hundredths(388.12)feet to a point; Thence SO 1'12'1 TV four hundred seventy-eight and ninety-nine hundredths(478.99) feet to a point; Thence N88°47'43"W thirty-six(36.00)feet to a point; Thence S07'24'1 YW two hundred fifty-five and fifty-two hundredths(255.52)feet to a point; Thence along a curve to the right having a central angle of 65°19'30",a radius of one hundred(100.00)feet and an arc length of one hundred fourteen and one hundredth(114.01)feet to a point on the northerly sideline of Holt Road; Thence along the northerly sideline of said Holt Road the following five(5)courses: S72°43'43"W three hundred thirty-eight and seventy-one hundredths(338.71)feet to a point; Thence S72'2 1'52"W three hundred fourteen and eighty-seven hundredths(314.87)feet to a point; ATTEST: A True Copy Town Clerk i Metes& Bounds Description Business Opportunity Zone— 1600 Osgood Street North Andover, Massachusetts April 6,2007 Page 2 of 3 Thence S7013 1'07"W two hundred eleven and fifty-nine hundredths(211.59)feet to a point; Thence S62°27'21"W ninety-five and seventeen hundredths(95.17)feet to a point; Thence S60°11'36"W two hundred forty-nine(249.00)feet to a point at the land now or formerly of Commonwealth of Massachusetts Department of Environmental Protection; Thence partly by said land of Commonwealth of Massachusetts Department of Environmental Protection, partly by other land now or formerly of Commonwealth of Environmental Protection and partly by land now or formerly of North Andover 2004, LLC the following six(6)courses: NI 7135'23"W three hundred seventy-eight and ninety-nine hundredths(378.99)feet to a point; Thence N62°12'23"W seven hundred fifty-eight and ninety-eight(758.98)feet to a point; Thence N43°50'26"W one hundred seventy and five hundredths(170.05)feet to a point; Thence NO1°29'29"E two hundred seventy-three and seventy-nine hundredths(273.79) feet to a point; Thence N10°39'45"W sixty-nine and ninety-eight hundredths(69.98)feet to a point; Thence N23°51'01"W one thousand three and eighty hundredths(1003.80)feet to a point at the land now or formerly of Massachusetts Bay Transportation Authority; Thence by said land of Massachusetts Bat transportation Authority the following five(5) courses: N38°l 8'43"E seven hundred forty and ninety hundredths(740.90)feet to a point; Thence N43°10'14"E one hundred and thirty-six hundredths(100.36)feet to a point; Thence N3 7'09'59"E one hundred and two hundredths(100.02)feet to a point; it Metes& Bounds Description Business Opportunity Zone— 1600 Osgood Street North Andover, Massachusetts April 6, 2007 Page 3 of 3 o , Thence N34 - 35 35E one hundred and twenty-one hundredths(100.21)feet to aoint• p , Thence N38°18'43"E three hundred thirty-seven and sixteen hundredths(337.16)feet to a point; Thence through said land of 1600 Osgood Street LLC the following five(5)courses: S 13°45'07"E one hundred forty-seven and ninety-five hundredths(147.95)feet to a point; Thence N76'1 4'53"E three hundred seventy and ten hundredths(370.10)feet to a point; Thence S13°45'07"E one hundred seventy-two and fifteen hundredths(172.15)feet to a point; Thence S76°14'53"W one hundred sixty-six and eighty-seven hundredths(166.87)feet to a point; Thence S 13°45'07"E two hundred forty and seventy-four hundredths(240.74)feet to a point; Thence N76°14'53"E one thousand one hundred eleven and ninety hundredths(1111.90) feet to the point of beginning. Said tract or parcel of land contains 5,493,039 square feet or 126.103 acres more or less. 4 Metes& Bounds Description Mixed Use Zone— 1600 Osgood Street North Andover, Massachusetts April 6,2007 Page I of 1 Beginning at a point along the westerly sideline of Osgood Street(Route 125)and along the land now or formerly of 1600 Osgood Street LLC,said point being the northeasterly corner of the within described premises; Thence along said westerly sideline of Osgood Street S0Y 11'l 8"E three hundred eighteen and thirty hundredths(318.30)feet to a point; Thence continuing along said westerly sideline of Osgood Street along a curve to the left having a central angle of 01'52'01",a radius of three thousand one hundred twelve and fifty- seven hundredths(3112.57)feet and an are length of one hundred one and forty-two hundredths (101.42)feet to a point; Thence through said land of 1600 Osgood Street LLC the following five(5)courses: S76°14'53"W one thousand one hundred eleven and ninety hundredths(l 111.90)feet to a point; Thence N 13'45'07"W two hundred forty and seventy-four hundredths(240.74)feet to a point; Thence N76°14'53"E one hundred one hundred sixty-six and eighty-seven hundredths (166.87)feet to a point; Thence N 13°45'07"W one hundred seventy-two and fifteen hundredths(172.15)feet to a point; Thence N76°14'53"E one thousand twenty and thirty-two hundredths(1020.32)feet to the point of beginning. Said tract or parcel of land contains 445,626 square feet or 10.230 acres more or less. ATTEST: A True Copy pr° O Town Clerk i , A Ibbq A / ZONING LEGEND ' — wsrwcr BQ WARY Rril r , � tt ,�f R309MAL Z*e Mm&J i, A�MMw UUSyct USE ZOW 00.5 Af jr p M Cly awan►�rr Zae 02544 A,1 APPRd sxustl -C. ,j-. ft w .MV„� r� ca.� r •`f 1� � til..� a �1� � N ctp �,tt`% !✓ � t �h 0-CV_L�.6nlIF-D .8. 4 a A; r i7� Q. _ e E-5 wn Clerk 1600 Osgood Street Smart Growth Overlov District i Hunlmss AsswialesNhx'a Zoning M a p P.recaietl bv_the North An oy��l�rt of Comm dty Development f W r�r 0.r wy fon IRafwd b5N'n N O�t�E 4F NOR7 N t�-1cJt�o,J �l2 �DD7 �n1N>lAt sub �Er►nrc. -- r ZONING LEGEND �� MW LW We 60.6 AL1 APPR6MOPPGRn ff IaE 62."k1 �o C-7, > J y4°�y,•�nrtr **.. y ^: t t�'t `t�F1'�J!<,�Srr�� iV�a- r + n#s ��� wyk".' � `�" r .FSI /��! G j� ¢wi- �•.z�, f l_G L LIS VOW LtW i 7T' Hit R fif i r, Ksil r 1 wn Clerk -- I i 1600 Osgood Street , v ' Srnart Growth Overlay District ^ r� Zoning Map e ��w Q "•�""' '^ P./EOored by the North Ani.Qy��(�({j(_n4nL.41_G.OIIIIII:/n qty DStSfN,ier,t ►.r.r w....,sr tw.wd vs,rry �, I I M poRrN of 1 .0 ".��G �O T ACHUSEtt9 TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mailjbradshaw(iDtownofnorthandover.com This is to certify that the following vote was taken on Article 37 at the Dissolved 2010 Annual Town Meeting held May 11, 2010 and May 12,2010: Article 37. Amend Zoning Bylaw — Section 4 Buildings and Uses Permitted, Subsection 4.133.11 Industrial 2 District. Unanimously voted to allow alternative energy uses as-of-right within light industrial uses permitted in the Industrial-2 district. . Section 4, Subsection 4.123.11, is to be amended by adding the text shown as underlined. 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five(25) acres but a minimum of ten (10) acres by Special Permit. ATTEST: A Tiu®COPY T6iO a Clerk Section 4,Subsection 4.123.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12,2010 ATTEST: poery A True Copy ° p Town Clerk Aft �SSICHUSEt TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshawna,townofnorthandover.com This is to certify that the following text is for Section 4.133-Industrial 2 District of the Zoning Bylaw for the Town of North Andover as amended by Article 37 of the Dissolved Annual Town Meeting held May 11,2010 and May 12,2010: 4.133 Industrial 2 District 1. Research and development facilities. 2. Business,professional and other offices. 3. Retail and food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use.No more than ten percent(10%) of the gross floor area(GFA) of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have ten percent(10%) of gross floor area(GFA) devoted to any accessory use. (Refer to Section 2.21, Definition of Accessory Use Structure). (1987/25) 4. Place of worship. 5.Non-profit school or private school for profit. 6. Public service corporation and energy or resource recovery facility,provided that said resource recovery facility has first obtained a valid site assignment from the Board of Health pursuant to Section 150A of Chapter 111 of the General Laws.Any dumping of ash or other hazardous material generated by such facility shall be subject to Special Permit Granting Authority to be the Planning Board.(1992/56), (1999/28) 7. Medical center, clinic,or medical laboratory. 8.Art gallery. 9.Recreational uses, including swimming club,tennis club, health club, indoor ice skating facility,and indoor/outdoor athletic recreation facility by Special Permit. 10. Printing and reproduction. 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. 12. a. Farming of crops and row crops,truck gardens,orchards,plant nurseries, and greenhouses. b. On any lot of at least three (3) acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one (1) additional animal or bird; but not the keeping of animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five (5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy g p farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 13. Warehousing and wholesaling. 14. Golf course. 15.Lumber or other building materials storage or sales,fuel storage or contractor's yard, provided all outdoor uses are enclosed by a fence of five(5)feet or more in height. 16. Bus garage. 17.Automobile service station (limited to one in each 2000 linear feet of street or highway as measured along centerline.) 18. Car wash. 19.Automobile or other motor vehicle repair,provided all activities are within an enclosed building. 20. Veterinary hospitals and kennels,provided all activities are with and enclosed building. 21. Parking, indoor storage and other accessory uses customarily associated with the above uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 22.Day Care Center by Special Permit(1985/23). 23.Hotels and motels 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind,solar,biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. Section 4,Subsection 4.133.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12,2010 ,tORTH Oftt6D hb.�NO FO A ��SSACHIJs���y TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshaw(i townofnorthandover.com This is to certify that the following vote was taken on Article 37 at the Dissolved 2010 Annual Town Meeting held May 11,2010 and May 12,2010: Article 37. Amend Zoning Bylaw — Section 4 Buildings and Uses Permitted, Subsection 4.133.11 Industrial 2 District. Unanimously voted to allow alternative energy uses as-of-right within light industrial uses permitted in the Industrial-2 district. . Section 4, Subsection 4.123.11, is to be amended by adding the text shown as underlined. 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. Section 4, Subsection 4.123.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. VOTED MAY 12,2010 September 9,2010 Joyce A. Bradshaw, Town Clerk 120 Main Street North Andover,MA 01845 RE: North Andover Annual Town Meeting of May 11,2010—Case#5625 Warrant Articles #24, 35,36,39, and 40 (General) Warrant Articles #31,32,33,37, and 38 (Zoning) Dear Ms. Bradshaw: Articles 24,31, 32,33,35,36,37,38,39, and 40 - We return with the approval of this Office the amendments to the Town by-laws adopted under these Articles on the warrant for the North Andover Annual Town Meeting that convened on May 11, 2010, and the map pertaining to Article 38. Our comments on Articles 24 and 32 are detailed below. Article 24 - The amendments adopted under Article 24 make a number of changes to Chapter 44, Section 1, of the Town's general by-laws, "Televising of Board Meetings. As amended, Section 44-1 provides in pertinent part as follows: All meetings of the Planning Board,Zoning Board of Appeals, Board of Health, Conservation Commission;Board of Selectmen and School Committee shall be broadcast live over the local cable television network unless emergency or operational or technical conditions suspend the requirements hereof,as determined by the Town Manager or the Manager's designee. All such meeting shall occur in the Town Hall second floor meeting room or other locations as determined by the Town Manager or the Town Manager's designee. All such meetings shall have posted agendas of discussion items and application names in the Town Hall and on the Town website or on the cable television network twenty-four hours prior to the meeting time. If there is a scheduling conflict with the use of the meeting room,the Town Manager or the Manager's designee, shall have the discretion to determine which Board shall have use of the room. Nothing contained in this bylaw shall be so construed as to conflict with the requirements of the Open Meeting law, M.G.L. Chapter 39, Section 23B. . . . We approve the amendments to Section 44-1,but offer the following caution on. the existing provisions of Section 44-1. The existing provisions of Section 44-1 requires meeting agendas of discussion . items and application names to be posted in the Town Hall and on the Town website.or,:.. ATTEST: A'true Copy Q.79Tc+�a�Q.or— Ttown Clerk i on a cable television network twenty four hours prior to the meeting. Section 44-1 also provides that nothing in Section 44-1 shall be construed as to conflict with the requirements of the"Open Meeting law,M.G.L. Chapter 39, Section 23B." Because of recent amendments to the Open Meeting Law, as more fully explained below,the proper statutory reference is G.L. c. 30A, §§ 18-2, and the Town may wish to further amend the by-law at a future town meeting to correct this statutory reference. Chapter 28 of the Acts of 2009, Sections 17-20,repealed the existing state Open Meeting Law, G.L. c. 30A, §§ 11A, 11A-1/2, county Open Meeting Law, G.L. c. 34, §9F, 9G, and municipal Open Meeting Law, G.L. c. 39, §§ 23A,23B, and 23C, and replaced them with a single Open Meeting Law covering all public bodies, G.L. c. 30A, §§ 18-25, enforced by the Attorney General. The new Open Meeting Law includes requirements pertaining to the methods for posting meeting notices and the information that must be included in meeting notices. We suggest that the Town discuss the existing text of Section 44-1 with Town Counsel to ensure that it is applied in a manner consistent with the requirements of the new Open Meeting Law. A more in-depth explanation of the new Open Meeting Law along with up-to-date regulations, training materials, advisory opinions and orders can be found on the Attorney General's Open Meeting website: www.mass.gov/ago/openmegfiM. Article 32 - The amendments adopted under Article 32 amend Section 5 of the Town's zoning by-laws, "Earth Materials Removal,"by make changes to Section 5.1.1. As amended, Section 5.1.1 provides as follows: Excavation,removal, stripping, or mining of any earth material on any parcel of land,public or private, in North Andover,is prohibited,except as allowed by Section 5.4 Permits for Earth Removal; Section 5.5 Earth Removal Incidental to Development, Construction or Improvements; and Section 5.6 Miscellaneous Removal of Earth. We approve the amendments to Section 5.1.1, but caution the Town that all of Section 5.5 must be applied in a manner consistent with G.L. c. 40A, §3, and our approval is so limited. General Laws Chapter 40A, Section 3,provides in pertinent part as follows: No zoning . . .by-law . . . shall . . .prohibit unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture,nor prohibit,unreasonably regulate or require a special permit for the use,expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture,aquaculture, silviculture,horticulture,floriculture or viticulture, including those facilities for the sale of produce,wine and dairy products,provided that either during the months of June,July,August and September of each year or during the harvest season of the primary crop raised on land of the owner or lessee, 25 per cent of such products for sale,based on either gross sales dollars or volume,have been produced by the owner or lessee of the land on which the facility is located,or at least 25 per cent of such 2 1 r products for sale,based on either gross annual sales or annual volume,have been produced by the owner or lessee of the land on which the facility is located and at least an additional 50 per cent of such products for sale,based upon either gross. annual sales or annual volume,have been produced in Massachusetts on land other than that on which the facility is located,used for the primary purpose of commercial agriculture, aquaculture, silviculture,horticulture,floriculture or viticulture,whether by the owner or lessee of the land on which the facility is located or by another,except that all such activities may be limited to parcels of 5 acres or more or to parcels 2 acres or more if the sale of products produced from the agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture use on the parcel annually generates at least$1,000 per acre based on gross sales dollars in area not zoned for agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture.For such purposes,land divided by a public or private way or a waterway shall be construed as 1 parcel.No zoning ordinance or by-law shall exempt land or structures from flood plain or wetlands regulations established pursuant to the General Laws.For the purposes of this section,the term "agriculture" shall be as defined in section IA of chapter 128,and the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished,maintained and managed while on the premises. General Laws Chapter 40A, Section 3, states that all agricultural uses must be allowed as of right(1) on land zoned for agriculture; (2) on land that is greater than five acres in size; and(3) on land of 2 acres or more if the sale of products from the agricultural use generates $1,000 per acre or more of gross sales.' Therefore, if a parcel falls into any one of these three categories,the parcel enjoys the protections afforded under G.L. c. 40A, § 3 and a municipality cannot restrict agricultural uses in those areas. Depending on the circumstances, earth removal may qualify as normal and customary maintenance and improvement of agricultural land, e.g., construction of dams, creation of farm ponds, leveling of land for growing areas, and preparing land for farm structures.An agricultural use is protected by G.L. c. 40A, § 3 even when it involves the removal of earth for the purpose of conducting a lawful agricultural activity, for example, the creating of a cranberry bog. It would be unreasonable and inconsistent with G.L. c. 40A, § 3, for the Town to prohibit such earth removal activities. Therefore, we caution the Town to apply Section 5.1 in a manner consistent with the protections accorded to agriculture and our approval is so limited. Note: Pursuant to G.L.c.40,§32,neither general nor zoning by-laws take effect unless the town has first satisfied the posting/publishing requirements of that statute.Once this statutory duty is fulfilled,(1) e� neral by-laws and amendments take effect on the date that these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law,and(2)zoning by-laws and amendments are deemed to have taken 1 On Thursday,August 5,2010,Governor Patrick signed into law Chapter 240 of the Acts of 2010. Section 79 of Chapter 240 amended G.L.c.40A, § 3,by adding an additional category of agricultural uses protected by G.L.c.40A, §3,for any parcel of 2 acres or more than generates annual revenues from the sale of products of$1,000 of more per acre. Because Chapter 240 included an emergency preamble it became effective immediately upon the Governor's signing on August 5,2010. 3 r effect from the date they were voted by Town Meeting,unless a later effective date is prescribed in the by-law. If the Attorney General has disapproved and deleted one or more portions of any by-law or by-law amendment submitted for approval,only those portions approved are to be posted and published pursuant to G.L.c.40,§32. We ask that you forward to us a copy of the final text of the by-law or by-law amendments reflecting any such deletion. It will be sufficient to send us a copy of the text posted and published by the Town Clerk pursuant to this statute. Nothing in the Attorney General's approval authorizes an exemption from any applicable state law or regulation governing the subject of the by-law submitted for approval. Very truly yours, MARTHA COAKLEY ATTORNEY GENERAL by: Kelli E. Gunagan,Assistant Attorney General By-law Coordinator Municipal Law Unit 1350 Main Street, 4h Floor Springfield, MA 01103 (413) 784-1240 enc. cc: Town Counsel (via email) 4 NORrN O p �1SSACHUSEt TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshaw(i7�,townofnorthandover.com This is to certify that the following text is for Section 4.133-Industrial 2 District of the Zoning Bylaw for the Town of North Andover as amended by Article 37 of the Dissolved Annual Town Meeting held May 11, 2010 and May 12,2010: 4.133 Industrial 2 District 1.Research and development facilities. 2.Business,professional and other offices. 3.Retail and food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use.No more than ten percent(10%) of the gross floor area(GFA) of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have ten percent(10%) of gross floor area(GFA) devoted to any accessory use. (Refer to Section 2.2 1, Definition of Accessory Use Structure). (1987/25) 4.Place of worship. 5.Non-profit school or private school for profit. 6.Public service corporation and energy or resource recovery facility,provided that said resource recovery facility has first obtained a valid site assignment from the Board of Health pursuant to Section 150A of Chapter 111 of the General Laws. Any dumping of ash or other hazardous material generated by such facility shall be subject to Special Permit Granting Authority to be the Planning Board. (1992/56), (1999/28) 7.Medical center,clinic,or medical laboratory. 8.Art gallery. 9.Recreational uses,including swimming club, tennis club, health club, indoor ice skating facility,and indoor/outdoor athletic recreation facility by Special Permit. i 10.Printing and reproduction. 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. 12. a. Farming of crops and row crops,truck gardens,orchards,plant nurseries,and greenhouses. b. On any lot of at least three(3)acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot,and for each additional acre of lot size to five(5) acres,the keeping of one (1) additional animal or bird;but not the keeping of animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms,dairy farms, and poultry batteries. d.The sale of products raised as a result of the above uses on the subject land. 13. Warehousing and wholesaling. 14. Golf course. 15.Lumber or other building materials storage or sales,fuel storage or contractor's yard, provided all outdoor uses are enclosed by a fence of five(5) feet or more in height. 16.Bus garage. 17. Automobile service station(limited to one in each 2000 linear feet of street or highway as measured along centerline.) 18. Car wash. 19.Automobile or other motor vehicle repair,provided all activities are within an enclosed building. r ' 20. Veterinary hospitals and kennels,provided all activities are with and enclosed building. 21. Parking, indoor storage and other accessory uses customarily associated with the above uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 22.Day Care Center by Special Permit(1985/23). 23.Hotels and motels 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind,solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. Section 4,Subsection 4.133.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12, 2010 t,ORTh a OL �9SSACHUS t TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mailjbradshawna,townofnorthandover.com This is to certify that the following vote was taken on Article 37 at the Dissolved 2010 Annual Town Meeting held May 11, 2010 and May 12,2010: Article 37. Amend Zoning Bylaw — Section 4 Buildings and Uses Permitted, Subsection 4.133.11 Industrial 2 District. Unanimously voted to allow alternative energy uses as-of-right within light industrial uses permitted in the Industrial-2 district. . Section 4, Subsection 4.123.11, is to be amended by adding the text shown as underlined. 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five(25) acres but a minimum of ten (10) acres by Special Permit. ATTEST: A True Copy T® �Clerk Section 4, Subsection 4.123.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12, 2010 t ♦ 1 0 ATTEST. ,.ORT„ A True.Copy p Town Clerk ��SSACHUS tog TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mailibradshaw(&townofnorthandover.com This is to certify that the following text is for Section 4.133-Industrial 2 District of the Zoning Bylaw for the Town of North Andover as amended by Article 37 of the Dissolved Annual Town Meeting held May 11, 2010 and May 12,2010: 4.133 Industrial 2 District 1. Research and development facilities. 2. Business, professional and other offices. 3. Retail and food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use.No more than ten percent(10%) of the gross floor area(GFA) of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have ten percent(10%) of gross floor area(GFA)devoted to any accessory use. (Refer to Section 2.2 1, Definition of Accessory Use Structure). (1987/25) 4. Place of worship. 5.Non-profit school or private school for profit. 6. Public service corporation and energy or resource recovery facility,provided that said resource recovery facility has first obtained a valid site assignment from the Board of Health pursuant to Section 150A of Chapter 111 of the General Laws. Any dumping of ash or other hazardous material generated by such facility shall be subject to Special Permit Granting Authority to be the Planning Board. (1992/56), (1999/28) 7. Medical center, clinic, or medical laboratory. 8. Art gallery. 9. Recreational uses, including swimming club, tennis club, health club, indoor ice skating facility, and indoor/outdoor athletic recreation facility by Special Permit. i 10. Printing and reproduction. 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (2 5) acres but a minimum of ten (10) acres by Special Permit. 12. a. Farming of crops and row crops,truck gardens, orchards, plant nurseries, and greenhouses. b. On any lot of at least three (3)acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five (5) acres,the keeping of one (1) additional animal or bird; but not the keeping of animals, birds, or pets of persons not resident on such lot. c. On any lot of at least five (5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 13. Warehousing and wholesaling. 14. Golf course. 15. Lumber or other building materials storage or sales, fuel storage or contractor's yard, provided all outdoor uses are enclosed by a fence of five (5) feet or more in height. 16. Bus garage. 17. Automobile service station (limited to one in each 2000 linear feet of street or highway as measured along centerline.) 18. Car wash. 19. Automobile or other motor vehicle repair,provided all activities are within an enclosed building. 20. Veterinary hospitals and kennels, provided all activities are with and enclosed building. 21. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. 22. Day Care Center by Special Permit(1985/23). 23. Hotels and motels 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative enemy research and development facilities, renewable or alternative enemy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. Section 4,Subsection 4.133.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (2 5) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12, 2010 r NORTN Of tt ,n Xs 1ti0 O i p ,SSACHUSEt TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER,MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshawna,townofnorthandover.com This is to certify that the following vote was taken on Article 37 at the Dissolved 2010 Annual Town Meeting held May 11,2010 and May 12,2010: Article 37. Amend Zoning Bylaw — Section 4 Buildings and Uses Permitted, Subsection 4.133.11 Industrial 2 District. Unanimously voted to allow alternative energy uses as-of-right within light industrial uses permitted in the Industrial-2 district. . Section 4, Subsection 4.123.11, is to be amended by adding the text shown as underlined. 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. t Section 4,Subsection 4.123.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12,2010 , •T September 9, 2010 Joyce A. Bradshaw, Town Clerk 120 Main Street North Andover, MA 01845 RE: North Andover Annual Town Meeting of May 11,2010—Case#5625 Warrant Articles#24, 35,36,39, and 40 (General) Warrant Articles#31, 32,33,37, and 38 (Zoning) Dear Ms. Bradshaw: Articles 24,31,32,33,35,36,37,38,39, and 40 - We return with the approval of this Office the amendments to the Town by-laws adopted under these Articles on the warrant for the North Andover Annual Town Meeting that convened on May 11, 2010, and the map pertaining to Article 38. Our comments on Articles 24 and 32 are detailed below. Article 24 - The amendments adopted under Article 24 make a number of changes to Chapter 44, Section 1, of the Town's general by-laws, "Televising of Board Meetings. As amended, Section 44-1 provides in pertinent part as follows: All meetings of the Planning Board,Zoning Board of Appeals, Board of Health, Conservation Commission,Board of Selectmen and School Committee shall be broadcast live over the local cable television network unless emergency or operational or technical conditions suspend the requirements hereof, as determined by the Town Manager or the Manager's designee. All such meeting shall occur in the Town Hall second floor meeting room or other locations as determined by the Town Manager or the Town Manager's designee. All such meetings shall have posted agendas of discussion items and application names in the Town Hall and on the Town website or on the cable television network twenty-four hours prior to the meeting time. If there is a scheduling conflict with the use of the meeting room,the Town Manager or the Manager's designee, shall have the discretion to determine which Board shall have use of the room. Nothing contained in this bylaw shall be so construed as to conflict with the requirements of the Open Meeting law, MG.L. Chapter 39, Section 23B. . . . We approve the amendments to Section 44-1, but offer the following caution on the existing provisions of Section 44-1. The existing provisions of Section 44-1 requires meeting agendas of discussion items and application names to be posted in the Town Hall and on the Town website or ; ATTEST: A True Copy �.Q.�ra�alrow�- Town Clerk on a cable television network twenty four hours prior to the meeting. Section 44-1 also provides that nothing in Section 44-1 shall be construed as to conflict with the requirements of the "Open Meeting law, M.G.L. Chapter 39, Section 23B." Because of recent amendments to the Open Meeting Law, as more fully explained below, the proper statutory reference is G.L. c. 30A, §§ 18-2, and the Town may wish to further amend the by-law at a future town meeting to correct this statutory reference. Chapter 28 of the Acts of 2009, Sections 17-20, repealed the existing state Open Meeting Law, G.L. c. 30A, §§ 11 A, 1IA-1/2, county Open Meeting Law, G.L. c. 34, §9F, 9G, and municipal Open Meeting Law, G.L. c. 39, §§ 23A, 23B, and 23C, and replaced them with a single Open Meeting Law covering all public bodies, G.L. c. 30A, §§ 18-25, enforced by the Attorney General. The new Open Meeting Law includes requirements pertaining to the methods for posting meeting notices and the information that must be included in meeting notices. We suggest that the Town discuss the existing text of Section 44-1 with Town Counsel to ensure that it is applied in a manner consistent with the requirements of the new Open Meeting Law. A more in-depth explanation of the new Open Meeting Law along with up-to-date regulations, training materials, advisory opinions and orders can be found on the Attorney General's Open Meeting website: www.mass.p,ov/ap,o/openmeeting. Article 32 - The amendments adopted under Article 32 amend Section 5 of the Town's zoning by-laws, "Earth Materials Removal,"by make changes to Section 5.1.1. As amended, Section 5.1.1 provides as follows: Excavation, removal, stripping, or mining of any earth material on any parcel of land,public or private, in North Andover, is prohibited,except as allowed by Section 5.4 Permits for Earth Removal; Section 5.5 Earth Removal Incidental to Development, Construction or Improvements; and Section 5.6 Miscellaneous Removal of Earth. We approve the amendments to Section 5.1.1, but caution the Town that all of Section 5.5 must be applied in a manner consistent with G.L. c. 40A, §3, and our approval is so limited. General Laws Chapter 40A, Section 3,provides in pertinent part as follows: No zoning . . . by-law . . . shall . . . prohibit unreasonably regulate,or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture, nor prohibit,unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture,aquaculture, silviculture, horticulture, floriculture or viticulture, including those facilities for the sale of produce,wine and dairy products,provided that either during the months of June,July,August and September of each year or during the harvest season of the primary crop raised on land of the owner or lessee,25 per cent of such products for sale,based on either gross sales dollars or volume,have been produced by the owner or lessee of the land on which the facility is located, or at least 25 per cent of such 2 products for sale, based on either gross annual sales or annual volume,have been produced by the owner or lessee of the land on which the facility is located and at least an additional 50 per cent of such products for sale,based upon either gross annual sales or annual volume, have been produced in Massachusetts on land other than that on which the facility is located, used for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, whether by the owner or lessee of the land on which the facility is located or by another,except that all such activities may be limited to parcels of 5 acres or more or to parcels 2 acres or more if the sale of products produced from the agriculture,aquaculture, silviculture, horticulture, floriculture or viticulture use on the parcel annually generates at least$1,000 per acre based on gross sales dollars in area not zoned for agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as 1 parcel.No zoning ordinance or by-law shall exempt land or structures from flood plain or wetlands regulations established pursuant to the General Laws.For the purposes of this section,the term "agriculture" shall be as defined in section I A of chapter 128, and the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises. General Laws Chapter 40A, Section 3, states that all agricultural uses must be allowed as of right(1) on land zoned for agriculture; (2) on land that is greater than five acres in size; and(3) on land of 2 acres or more if the sale of products from the agricultural use generates $1,000 per acre or more of gross sales.I Therefore, if a parcel falls into any one of these three categories, the parcel enjoys the protections afforded under G.L. c. 40A, § 3 and a municipality cannot restrict agricultural uses in those areas. Depending on the circumstances, earth removal may qualify as normal and customary maintenance and improvement of agricultural land, e.g., construction of dams, creation of farm ponds, leveling of land for growing areas, and preparing land for farm structures. An agricultural use is protected by G.L. c. 40A, § 3 even when it involves the removal of earth for the purpose of conducting a lawful agricultural activity, for example, the creating of a cranberry bog. It would be unreasonable and inconsistent with G.L. c. 40A, § 3, for the Town to prohibit such earth removal activities. Therefore, we caution the Town to apply Section 5.1 in a manner consistent with the protections accorded to agriculture and our approval is so limited. Note: Pursuant to G.L.c.40,§32,neither general nor zoning by-laws take effect unless the town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled,(1)general by-laws and amendments take effect on the date that these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law,and (2)zoning by-laws and amendments are deemed to have taken ' On Thursday,August 5,2010,Governor Patrick signed into law Chapter 240 of the Acts of 2010. Section 79 of Chapter 240 amended G.L.c.40A, § 3,by adding an additional category of agricultural uses protected by G.L.c.40A, §3,for any parcel of 2 acres or more than generates annual revenues from the sale of products of$1,000 of more per acre. Because Chapter 240 included an emergency preamble it became effective immediately upon the Governor's signing on August 5,2010. 3 effect from the date they were voted by Town Meeting,unless a later effective date is prescribed in the by-law. If the Attorney General has disapproved and deleted one or more portions of any by-law or by-law amendment submitted for approval,only those portions approved are to be posted and published pursuant to G.L.c.40,§32. We ask that you forward to us a copy of the final text of the by-law or by-law amendments reflecting any such deletion. It will be sufficient to send us a copy of the text posted and published by the Town Clerk pursuant to this statute. Nothing in the Attorney General's approval authorizes an exemption from any applicable state law or regulation governing the subject of the by-law submitted for approval. Very truly yours, MARTHA COAKLEY ATTORNEY GENERAL by: Kelli E. Gunagan, Assistant Attorney General By-law Coordinator Municipal Law Unit 1350 Main Street, 4th Floor Springfield, MA 01103 (413) 784-1240 enc. cc: Town Counsel (via email) 4 D NoerH 10- 9 �i y SCHUS<t°� TOWN OF NORTH ANDOVER OFFICE OF THE TOWN CLERK 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Joyce A.Bradshaw,CMMC Telephone(978)688-9501 Town Clerk Fax (978)688-9557 E-mail ibradshawAtownofnorthandover.com This is to certify that the following text is for Section 4.133-Industrial 2 District of the Zoning Bylaw for the Town of North Andover as amended by Article 37 of the Dissolved Annual Town Meeting held May 11, 2010 and May 12,2010: 4.133 Industrial 2 District 1. Research and development facilities. 2. Business,professional and other offices. 3. Retail and food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use.No more than ten percent(10%) of the gross floor area(GFA) of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have ten percent(10%) of gross floor area(GFA)devoted to any accessory use. (Refer to Section 2.2 1, Definition of Accessory Use Structure). (1987/25) 4. Place of worship. 5.Non-profit school or private school for profit. 6. Public service corporation and energy or resource recovery facility, provided that said resource recovery facility has first obtained a valid site assignment from the Board of Health pursuant to Section 150A of Chapter 111 of the General Laws. Any dumping of ash or other hazardous material generated by such facility shall be subject to Special Permit Granting Authority to be the Planning Board. (1992/56), (1999/28) 7. Medical center,clinic,or medical laboratory. 8. Art gallery. 9. Recreational uses, including swimming club,tennis club, health club, indoor ice skating facility, and indoor/outdoor athletic recreation facility by Special Permit. 10. Printing and reproduction. 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (2 5) acres but a minimum of ten(10) acres by Special Permit. 12. a. Farming of crops and row crops, truck gardens, orchards, plant nurseries, and greenhouses. b. On any lot of at least three (3)acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five (5)acres,the keeping of one (1) additional animal or bird; but not the keeping of animals, birds, or pets of persons not resident on such lot. c. On any lot of at least five (5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 13. Warehousing and wholesaling. 14. Golf course. 15. Lumber or other building materials storage or sales, fuel storage or contractor's yard, provided all outdoor uses are enclosed by a fence of five (5) feet or more in height. 16. Bus garage. 17. Automobile service station (limited to one in each 2000 linear feet of street or highway as measured along centerline.) 18. Car wash. 19. Automobile or other motor vehicle repair, provided all activities are within an enclosed building. i 20. Veterinary hospitals and kennels,provided all activities are with and enclosed building. 21. Parking, indoor storage and other accessory uses customarily associated with the above uses,provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. 22. Day Care Center by Special Permit(1985/23). 23. Hotels and motels 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten (10) acres by Special Permit. Section 4, Subsection 4.133.11, as amended to read as follows: 4.133 Industrial 2 District 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (2 5) acres but a minimum of ten(10) acres by Special Permit. VOTED MAY 12, 2010 Ciofolo, Angela From: Michael D. Rosen <MDR@riw.com> Sent: Saturday,August 15, 2015 11:16 AM To: 'Albert P. Manzi III'; Ciofolo, Angela; Brown, Gerald Cc: Subject: RE: Osgood Solar hearing All, Thank you for your correspondence. In response thereto,please note the following: 1. There have been 28 permits pulled by Ozzy Properties since June 2007 as to 1600 Osgood Street, however,many tenants are required to pull their own permits and we do not have records of those. Of the permits pulled by Ozzy,and only 1 makes any reference to OSGOD. Do you need copies of all 28? If so,this will take some time. 2. To the best of my client's knowledge,they are not aware of ANY correspondence"stating that a developer is required develop a site and or the associated sub-districts per section 17.3.3 of the zoning bylaw in accordance with section 17.3.2 of the zoning bylaw or that a developer has expressly elected to do so". As stated in our answer to your question 1(above),they are only aware of one permit filed under OSGOD. It was filed for ACT and was done so,at the time because the tenant was requested we do so(though we are not sure at the Town who made that request). Of the 28 permits pulled by Ozzy referenced above,26 were before the ACT permit and 1 was after. We several permits have been pulled by tenants after the ACT permit,but are continuing to look into how many permits have been pulled directly by tenants and will supplement this response as we gather that information. 3. As stated above,they are only aware of one OSGOD application(for ACT),and to the best of their knowledge, nothing was circulated to other Boards. Please let me know if I can provide you with any other information before the next meeting. Regards, Michael - _ Michael D. Rosen, Esq. Ruberto,Israel&Weiner,P.C. From: Albert P. Manzi III Sent: Monday, August 10, 2015 11:12 AM To: Angela Ciofolo; Gerry Brown; Michael D. Rosen Subject: Osgood Solar hearing Greetings, I am looking for the following supplemental information, to the extent there is any, for the upcoming zba special meeting. i 1. The number of building permits issued by and or for Osgood Landing applicants and the associated zoning and use classifications utilized thereto for those requested building permits since the adoption of the 40R Osgood Smart Growth Overlay District on or about June 4 2007. 2. Any and all communications by and between the Town of North Andover and Osgood Landing LLC including but not limited to the Building Department and the Plan Approval Authority (Planning Board) stating that a developer is required develop a site and or the ass6ciated="iibdistricts-per section 17.3.3 of the zoning bylaw in accordance with section 17.3.2 of the zoning bylaw or that a developer has expressly elected to do so. 3. Pursuant to section 17.13.2 Circulation to Other Boards of the zoning bylaw, the number of 40R developer applications submitted to the Plan Approval Authority (Planning Board)pursuant to a developers election in accordance with section 17.3.2 of the zoning bylaw that the Plan Approval Authority then circulated to other boards and or departments since on or about June 4 2007 in accordance with section 17.13.2. The above questions 1-3 are raised in context and pursuant to the following: 1. Pursuant to Section 17.2 Definitions, I have not found "site" as a defined term pursuant to Section 17. 2. Pursuant to Section 17.3.2 Underlying Zoning, the bylaw states in relevant part "all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to Section 17. Within the boundaries of OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). Thank you, APM III, ZBA, Chairman Attorney Albert P. Manzi III PO Box 486 North Andover, MA 01845 Confidentiality Notice: The information and/or documents hereby transmitted are privileged and centVkz ,T•.-* confidential matters intended only for the party named above. Any other reading, dissemination, diW.dMtdsiQ-'or•• reproduction is prohibited. If you receive this email in error,please notify the sender immediately by telephone and reply email and fully delete the email received witho g. 4100j,nf tba..gmad- .*r any attachments. 2 WILMERHALE April 23,2015 Mark C.Kalpin +1617 526 6176(t) By Hand +1617 526 5000(f) mark.kalpin@wilmerhale.com Zoning Board of Appeals Town of North Andover Building 20 - Suite 2-36 1600 Osgood Street North Andover,Massachusetts 01845 Re: Osgood Solar, LLC/Appeal of North Andover Building Inspector Determinations Dear Members of the Zoning Board of Appeals: Osgood Solar, LLC ("Osgood Solar") is proposing to construct a solar generation project(the "Project") on property located at 1600 Osgood Street,North Andover,MA(the "Property'). The Project will consist of building roof-top mounted solar panels,carport-mounted solar panels, and/or ground-mounted solar panels. The Project is located within the I-2 Industrial District(the 1-2 District")and the Business Opportunity Zone portion of the Osgood Smart Growth Overlay District(the"OSGOD")established by North Andover's Zoning Bylaw(the"Zoning Bylaw"). On March 20, 2015, Osgood Solar filed an application for Plan Approval for the Project in the OSGOD with the North Andover Planning Board under Section 17 of the Zoning Bylaw(the "OSGOD Application"). See Attachment 1. In a letter dated March 24,2015 (the "OSGOD Letter"),the North Andover Building Inspector determined that the Project is not an allowed "As-of-Right"use in the OSGOD (the "OSGOD Determination"). See Attachment 2. On April 15, 2015, Osgood Solar requested the Building Inspector to confirm that the Project is an allowed As-of-Right use in the I-2 District under Section 4.133 of the Zoning Bylaw(the 1_2 Request"). See Attachment 3. In support of its request, Osgood Solar submitted an email from the North Andover Town Administrator confirming that the Project is an allowed use in I-2 District. See Attachment 4. On April 22, 2015 (the 1-2 Email"),the Building Inspector determined without explanation that the Project is not an allowed use in the I-2 District(the 1-22 Determination"). See Attachment 5. As required under Sections 10 and 17.4 of the Zoning Bylaw and applicable law, Osgood Solar hereby appeals the OSGOD Determination and the 1-2 Determination(collectively,the "Determinations"). Osgood Solar requests that the Zoning Board of Appeals find that: (1)the OSGOD Letter and OSGOD Determination are final appealable actions, and, if so,the Project is an allowed As-of-Right use under Section 17.6.3.3 of the Zoning Bylaw; and(2)the I-2 Email and the I-2 Determination are final actions that are appealable, and, if so,the Project is an allowed As-of-Right use under Section 4.133 of the Zoning Bylaw. Wilmer Cutler Pickering Hale and Dorr LLP,60 State Street,Boston,Massachusetts 02109 Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York Oxford Palo Alto Washington WILMERHALE Zoning Board of Appeals April 23,2015 Page 2 A. Background 1. Osgood Solar is proposing to construct and operate the Project on the Property. a. The Project will help the Commonwealth of Massachusetts achieve its Greenhouse Gas Emission Reduction requirements under the Global Warming Solutions Act and will produce only positive environmental benefits. b. More importantly,the Project will provide significant long-term economic benefits to the Town,which include the payment of real property taxes,the realization of substantial savings to the Town on its municipal electric bill, and the construction of improvements to the Property that are consistent with existing uses and will help attract additional tenants to the Property. c. The immediate economic value of the Project to the Town is anticipated to be several hundred thousand dollars per year—all without any increase in the Town's expenses. 2. On March 20,2015, Osgood Solar filed the OSGOD Application with the Planning Board. The OSGOD Application was filed in advance of obtaining input from the Building Inspector, as Osgood Solar anticipated that the Project would be an allowed use on the Property. 3. In the OSGOD Letter,the Building Inspector determined that the Project is not an allowed"As-of-Right"use on the Property under the OSGOD. 4. On April 7, 2015, Osgood Solar requested that the Planning Board allow Osgood Solar to withdraw the OSGOD Application without prejudice. That request remains pending. 5. On April 15, 2015, Osgood Solar submitted the I-2 Request to the Building Inspector seeking confirmation that Project is an allowed As-of-Right use in the I-2 District. 6. In the I-2 Email,the Building Inspector determined without explanation that the Project is not an allowed use in the 1-2 District. ActiveUS 144464235v.1 WII..MERHAI E Zoning Board of Appeals April 23,2015 Page 3 B. The Determinations under Appeal 1. , The Building Inspector incorrectly determined in the OSGOD Letter that Osgood Application seeks a Special Permit,when in fact it seeks a Plan Approval. 2. The Building Inspector incorrectly determined in the OSGOD Letter that any future development on the Property located with the Business Opportunity Zone portion of the OSGOD, including but not limited to the Project,would be governed exclusively by the provisions of the OSGOD pursuant to Section 17.3.2 of the Zoning Bylaw. a. Section 17.3.2 of the Zoning Bylaw states as follows: The OSGOD is an overlay district superimposed on all underlying zoning districts. As required by the Enabling Laws,the regulations for use, dimension, and all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). b. This determination references that"[o]n June 17, 2014,this site (Assessor Map 34, Parcel 17)received approval of a Special Permit under the OSGOD." 3. The Building Inspector incorrectly determined in the OSGOD Letter that the Project is not an allowed"As-of-Right"use under Section 17.6.3.2 of the Zoning Bylaw. 4. The Building Inspector incorrectly determined in the I-2 Email without explanation that the Project is not an allowed use in the I-2 District under the Zoning Bylaw. 5. The Building Inspector incorrectly determined in the OSGOD Letter that the Project does not qualify as an allowed manufacturing use in the OSGOD under the Zoning Bylaw. 6. The Building Inspector incorrectly determined in the OSGOD Letter that the Project is subject to Section 17.6.4 of the Zoning Bylaw,which states that"[a]ll uses not expressly allowed are prohibited." ActiveUS 144464235v.1 WILMERHALE Zoning Board of Appeals April 23, 2015 Page 4 C. Argument in Support of Appeal 1. The Building Inspector incorrectly determined in the OSGOD Letter that the Osgood Application is an application for a Special Permit. a. The Osgood Application clearly states that the Project consists of "manufacturing" and"Accessory equipment and parking structure"uses. i. Section 17.6.3.2.13 states that manufacturing uses are allowed As-of- Right. ii. Section 17.6.3.2.17 states that parking uses (including structured parking) are allowed As-of-Right. b. Section 17.6.3.3 requires an application for a Special Permit only if a use is not allowed As-of-Right. c. Because the OSGOD Application sought approval for uses allowed"As-of- Right,"the application was for a Plan Approval, and not a Special Permit. 2. The Building Inspector incorrectly determined in the OSGOD Letter that all future development on the 126 acre portion of the Property located within the Business Opportunity Zone portion of the OSGOD is governed solely by the provisions of the OSGOD under Section 17.3.2 of the Zoning Bylaw because a Special Permit was issued under the OSGOD to construct a 5000 square foot theatre in an existing building. a. Unlike the Commonwealth's Model 40R Bylaw, Section 17.3.2 of the Zoning Bylaw applies the "future development election" on a site-by-site basis. b. Neither the Zoning Bylaw nor the OSGOD define the word"site." i. The Building Inspector incorrectly and unreasonably determined that the word"site"means "Lot"or the entire Business Opportunity Zone portion of the OSGOD. ii. As a matter of law, an undefined word(such as"site") cannot have the same meaning as a defined term. Otherwise,the presumption is that the defined term would have been used instead of the undefined word. ActiveUS 144464235v.1 I WILMERHALE Zoning Board of Appeals April 23, 2015 Page 5 iii. As a result,the word"site"must have a different meaning that any term that is defined in the Town's Zoning Bylaw, and cannot have the same meaning as the defined term"Lot." iv. As a result,the word"site"cannot mean the entire Business Opportunity Zone portion of the OSGOD. c. The only permissible determination—especially given the fact that the Business Opportunity Zone is 126 acres in size, and that an Overlay District such as the OSGOD can be comprised of multiple parcels of property with multiple owners— is that"site"means that the specific area on a property where the proposed project would be constructed (e.g., the location occupied by the theatre or the Project). d. Determining that the word"site"means the entire Business Opportunity Zone (or even the entire OSGOD)would lead to an unreasonable result. i. The portion of the Property comprising the Business Opportunity Zone portion of the OSGOD is 126 acres in size. ii. It is unreasonable to conclude that the development of a 5000 square foot project in an existing building would render all future development on the 126 acre Property subject to the OSGOD. iii. This is especially true since no affirmative.election was made at the time the prior application was submitted, and the Determination would be binding (without notice) on all future owners of all or any subdivided portion of the Property. e. The Building Inspector's determination is not consistent with permit authorizations granted by the Town after June 17, 2014 for new construction activities on the Property. i. Those permits were issued under the base Industrial 2 District. ii. None of the permits state that the OSGOD's provisions are applicable. 3. The Building Inspector incorrectly determined in the OSGOD Letter that the Project does not qualify as an"As-of-Right"use allowed under Section 17.6.1.2 of the Zoning Bylaw. a. Section 17.6.3.2.13 states that manufacturing uses are allowed As-of-Right. i. The Zoning Bylaw does not define the term"manufacturing." ActiveUS 144464235v.1 WILMERHALE i Zoning Board of Appeals April 23, 2015 Page 6 ii. M.G.L. Chapter 164 states that equipment(such as the Project)that is used for the generation of electric energy is manufacturing equipment, and the generation of electricity is a manufacturing process. iii. M.G.L. Chapter 164, Section 3 defines a"Generation facility"as"a plant or equipment used to produce, manufacture or otherwise generate electricity ...." [Emphasis added.] iv. The Building Inspector's statement that"a solar Installation [sic] for purposes of a generating facility for some utility users who are not on the site, it is not `manufacturing' under the OSGOD Bylaw" does not comply with the provisions of M.G.L. Chapter 164. v. The Building Inspector's statement that the output of a manufacturing use must be used on the site has no support under the Zoning Bylaw. vi. The Building Inspector's statement that the output of a manufacturing use must be used on the site has no basis under the Zoning Bylaw, and ignores the fact that the output from other manufacturing uses on the Property (such as the bakery)are consumed almost exclusively off of the Property. b. Section 17.6.3.2.17 states that parking uses (including structured parking)are allowed As-of-Right. i. Parking that is accessory to allowed uses under the Zoning Bylaw currently exists on the Property. ii. The Project includes parking area canopies on which solar panels would be mounted. iii. Installation of parking canopy structures is accessory to parking on the Property, and would improve the visual appearance of the parking area. 4. The Building Inspector incorrectly determined in the 1-2 Email without explanation that the Project is not an allowed use in the 1-2 District under the Zoning Bylaw. a. On May 2, 2010,the North Andover Annual Town Meeting adopted an amendment to Section 4.133 of the Zoning Bylaw(the "Amendment")that specifically clarified that renewable energy generation, including but not limited to solar generation,was allowed within the I-2 District provided that minimum lot size requirements were met. b. Prior to the Amendment's adoption, solar generation facilities were allowed in the 1-2 District as a manufacturing use and had been installed on the Property. ActiveUS 144464235v.1 i WILMERHALE Zoning Board of Appeals April 23, 2015 Page 7 c. The Property exceeds the requirement in Section 4.133.1 Lb,which allows for As- of-Right construction if the Lot has a minimum size of twenty-five (25) acres. d. On March 9, 2015,the Town Administrator confirmed that construction of the Project was allowed in the I-2 District. e. As discussed below, a determination that the Project is not an allowed As-of- Right use in the I-2 District violates M.G.L. Chapter 40A, Section 3. 5. The Building Inspector's Determinations that the Project is not an allowed use in either the OSGOD or the I-2 violates the requirements of M.G.L. Chapter 40A, Section 3. a. Section 3 provides that"[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare." b. M.G.L. Chapter 40A, Section 1 defines a"Solar Energy System"as "a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or to provide for the collection, storage and distribution of solar energy for space heating or cooling, electricity generating, or water heating." c. In enacting Section 3,the Legislature incented the development of Solar Energy Systems by shielding them from local zoning prohibitions and unreasonable zoning regulation, except to the extent necessary to protect health, safety or welfare. d. There can be no question that the Land Court would rule that the Project falls within the definition of a"Solar Energy System"that is subject to the protection of Section 3. See Duseau v. Szawlowski Realty, Inc. 12 Misc. 470612 (Mass. Land Ct. Jan. 2, 2015) (reviewing solar farm use relative to Section 3). e. The Building Inspector cannot justify the OSGOD Determination on the grounds that solar generation projects are allowed only within the I-2 District. i. As noted above, any such justification would directly contradict the I-2 Determination, in which the Building Inspector stated that solar generation was not an allowed us in the I-2 District. I ActiveUS 144464235v.1 WILMERHALE Zoning Board of Appeals April 23, 2015 Page 8 ii. Any such justification also would not comply with the "reasonable regulation"requirement under Section 3. 1. Limiting the construction of solar generation projects to only the I- 2 District would mean that the only properties in the Town (other than the Property)that are large enough to allow a solar project As- of-Right consist of(x)property managed by a quasi-governmental commission for the operation of the Lawrence Municipal Airport, and(y)property managed by the Greater Lawrence Sanitary District for the operation of a wastewater treatment plant. 2. There is no reasonable basis to limit the future construction of solar generation projects in the Town to only property that is owned by a quasi-governmental entity 3. Imposing such a restriction is not reasonable because it: a. ignores the fact that the Property owner previously constructed several rooftop solar projects on the Property under the provisions of the OSGOD, and b. raises a serious question as to whether any other solar project constructed in the Town since 2010 (including residential rooftop projects) is legal. 6. The Building Inspector's determination in the OSGOD Letter that the Project is not allowed in the OSGOD because "[a]ll uses not expressly allowed are prohibited"under Section 17.6.4 of the Zoning Bylaw violates M.G.L. Chapter 40A, Section 3. a. The Massachusetts Attorney General's Office specifically cautioned the Town on adopting such a restrictive determination when it approved the OSGOD in 2007. See Attachment 5. b. In its approval letter,the Massachusetts Attorney General's Office specifically stated that the provisions of M.G.L. Chapter 40A, Section 3 continue to apply within the OSGOD: "We next call the town's attention to 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4, we remind the town of the protections accorded to certain uses under G.L. c. 40A,[Section]3. ... This,the town cannotrp ohibit, require a special permit, or unreasonably regulate those uses that are accorded protections under ActiveUS 144464235v.1 WILMERHALE Zoning Board of Appeals April 23, 2015 Page 9 G.L. 40A, [Section] 3. We caution the Town to apply the proposed by-law, including Section 17.6.4, in a manner consistent with G.L. c. 40A,[section]3." [Emphasis added]. D. Conclusion The Determinations issued by the Building Inspector are incorrect, and do not comply with the requirements of the Zoning Bylaw. Worse yet,the Determinations (a)violate the provisions of M.G.L. Chapter 40A, Section 3, (b)disregard the provisions of M.G.L. Chapter 164, (c) ignore the specific warning that was issued by the Massachusetts Attorney General when it approved the OSGOD, and (d)would render illegal any solar development in North Andover that has occurred since 2010. In light of the above, Osgood Solar respectfully requests that the Zoning Board of Appeals find that: (1)the OSGOD Letter and OSGOD Determination are final appealable actions, and, if so, the Project is an allowed As-of-Right use under Section 17.6.3.3 of the Zoning Bylaw; and(2) the I-2 Email and the I-2 Determination are final actions that are appealable, and, if so,the Project is an allowed As-of-Right use under Section 4.133 of the Zoning Bylaw. Sincerely, Mark C. Kalpin cc: Osgood Solar, LLC Dan Leary, PowerOwners Town of North Andover Building Inspector Abutters to the Property Attachments 1. OSGOD Application for Plan Approval (March 20, 2015) 2. North Andover Building Inspector OSGOD Letter(March 24,2015) 3. Osgood Solar I-2 Request to North Andover Building Inspector(April 15, 2015) 4. Town Administrator I-2 Approval Email (March 9, 2015) 5. North Andover Building Inspector I-2 Email (April 22,2015) 6. Massachusetts Attorney General's Office Approval of the OSGOD (October 2, 2007) ActiveUS 144464235v.1 i i Osgood Solar, LLC 1600 Osgood Street North Andover, MA 01845 May 27,2015 Re:Notice of Appearance,Osgood Solar,LLC Dear Chairman Manzi and Members of the Zoning Board of Appeals, The Osgood Solar,LLC Zoning Board of Appeals(ZBA)hearing and related matters may be represented by the following legal counsel: Michael D. Rosen, Esq. Ruberto, Israel&Weiner, P.C. 255 State Street, Boston, MA 02109 Mark C.Kalpin, Esq. WilmerHale 60 State Street,Boston, MA 02109 Please contact me with any questions at w,or 9�8•q�l6 p. Respectfully Submitted, Daniel P. Leary,As Agen sgood Solar 1 1. Abutter to Abutter( ) Building Dept. ( ) Conservation ( X ) Zoning ( ) Town of North Andover Abutters Listing REQUIREMENT: MGL 40A,Section 11 states in pa¢"parties in Interest as used in this chapter shall mean the petitioner, abutters,owners of land directly oppositeon any public or private way,and abutters to abutters within three hundred(300)feet of the property line of the petitioner as they appear on the most recent applicable tax list,not withstanding that the land of any such owner is located in another city or town,the planning board of the city or town,and the planning board of every abutting city or town." Subject Property: MAP PARCEL Name Address 34 17 J Ozzy Properties 1600 Osgood Street,North Andover,MA 01845 Abutters Properties Map Parcel Name Address 34 1 1//Tyler Monroe 100 Foster Street,North Andover,MA 01845 34 2 t/BEM Realty 1635 Osgood Street,North Andover,MA 01845 34 3 1627 Realty Trust 1627 Osgood Street,North Andover,MA 01845 34 4 ,/1591 Realty Trust 1591 Osgood Street,North Andover,MA 01845 34 7 w/Service Burry,LLC 1503 Osgood Street,North Andover,MA 01845 34 9&25 ,Kristen&Lindsay Realty LLC 770 Boxford Street,North Andover,MA 01845 34 10 V Red Barn Trust 1267 Osgood Street,North Andover,MA 01845 34 15 /✓Ozzy Properties 1600 Osgood Street,North Andover,MA 01845 34 16 r/ Town of North Andover 120 Main Street,North Andover,MA 01845 34 18&21 ✓commonwealth of Massachusetts 100 Cambridge Street,Boston,MA 02202 34 28&44 :/f�ark Valentino 1609 Osgood Street,North Andover,MA 01845 34 41&42 �Mirovave Engineering Corp. 1551 Osgood Street,North Andover,MA 01845 34 50 ✓'Alabacado Limited P.O.Box 334,North Andover,MA 01845 34 54 Osgood Landing LLC 1600 Osgood Street,North Andover,MA 01845 75 2 Town of North Andover 120 Main Street,North Andover,MA 01845 78 2 North Andover 2004 LLC 1735 Market Street Suite A400,Philadelphia,PA 19103 This certifies that the ngMag aPP89 40 records of the Asssor. 0'. '`go to. of -- Certified by: Pate ' ._17 OSGOOD SOLAR,LLC SIGNATURE AUTHORIZATION LETTER March 17,2015 Town of North Andover 1600 Osgood Street North Andover,MA 01845 i RE:SIGNATURE AUTHORIZATION To Whom It May Concern: The personnel below are authorized to sign for all matters relating to Osgood Solar,LLC permitting activities with the Town of North Andover: Ellen Keller,Vice President Commercial Real Estate,Ozzy Properties,Inc. Daniel P. Leary,Member,PowerOwners,LLC For questions related to this matter, please contact Orit Goldstein,Manager,Osgood Solar,LLC at @ so W11 43&A2Q Signed, Orit Goldstein Manager Osgood Solar,LLC 1600 Osgood Street North Andover, MA 01845 i I i (FSS :'.. ! • � ..�;� 'Ati4 ..' .d ` � I .Lr M T � ,} - kyr ' ; F. � F':. - �� •.rye 4•r..._ _.._'' .r-..f r �... , ,.. ,_ _-��� rr�rl�llMl'lllAlllA�ll r .. -- a RECEIVED' Pl WN, CLEWS ElFFIOE .2015.MAR0 AM I04. 53 Town of North Andover Planning Board TOWN OF : t 1. METTS ME, A ANDOVER Please type or print clearly: 1. Petitioner:_ (0SInoob SOLAP. . LLC, Address: thM l75 C��f �� N ANIft Telephone Number 6.61 �0 QS WQ0 I?ILCi Z. owners of the band: . L_L,,('� Address: Telephone Number: p Number of years ownership:_ l'Z Y applicant is not the owner,please state interest in property: 021 LL G 3. Request for an oSGQD Permit under Section 17.0 of the North Andover Zoning Bylaw to pn=r-r ki od-rap h 4m. MW k E 0 aL aRv)fS. /�n�e� A4i� sa . Nia�.�l►� 01t V Wj cot)IL 4. Location of Property: Q� �SEDC3� Zoning District:2%ML5,rf1A1 2 Q Assessors: Map: Q Lot# Registry of Deeds: Rook#: page#--'4 l" S. Existing Lot: ���,, Lot Area(Sq,Ft): E " � Building Height: Street Frontage; Side Setbacks: Font Setback: _ Rear Setback: FloorArea Ration: r Lot Coverage: 6. Proposed Lot(if applicable): LotArea(Sq.Ft.): Building Height: Street Frontage: Side Setback: Front Setback; RearSetback: FioorArea Ratio: Lot Coverage: .....m.,w..,,ee.rt�i« 16,..a.u.a�---_---- s.Y -• - _..�...u.�.....r...,rs4,�S'4�1lLelMrsa..,.r�"._..-._ rw � - -- -......... .o-......:«.:_. t I Required Lot(as required by Zoning Bylaw); LotArea(Sq.Ft.): BuildingHeight: Street Frontage: Side Setback: Front Setback: Rear Setback: F1oorArea Ratio: Lot Coverage: s S. Existing Building(if applicable); Ground Floor(Sq.Ft.) #of FIoors I Total Sq.Ft.; Height: Use: Type of Construction: 9. Proposed Building: Ground Floor(Sq.Ft.) #of Floors Total S Fly Height: Use: Type of Construction: �wNb S� R� 10. Has there been a previous OSGOD Application/Permit from the Planning Board on these remises? y .5 --. If so,when and for what type of construction? I ' W 11. Petitioner and Landowner signature(s): Every application for an'OSGOD Permit shall be made on this form,which is the official form of the Planning Board. Every application shall be filed with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or Planning Office does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses f r egal notification. ' Petitioner's Signature: Print or type name here: Owner's Signature: Print or type name here: v7Lt y �,,� nr, _�� � Osgood Solar Plan Approval Application Before Zoning Board of Appeals June 23,2015 Hearing Presentation Legal Summary Laws and Definitions From NORTH ANDOVER ZONING BYLAW: 2.1 General - For the purpose of this Bylaw, certain words or phrases herein shall be interpreted as follows, except where the context clearly indicates the contrary: words used in the singular include the plural, words used in the present tense include the future tense, the word "person" includes a corporation as well as an individual, the word "lot includes the word "plot" or "parcel", the word "shall" is always mandatory and the word "used" or"occupied" as applied to any land or buildings shall be construed to include the words "intended, arranged or designed to be used or occupied" 2.43 Lot(1989/32) An area of land in single or consolidated ownership which contains definite boundaries and ascertainable by a recorded deed in the Essex County Registry of Deeds Office. 4.1.1 — General Provisions. 4. Accessory uses as defined herein, shall be on the same lot with the building of the owner or occupant, and shall be such as not to alter the character of the premises on which they are located nor impair the neighborhood. Where manufacturing of any kind is allowed as an accessory use, it shall be restricted to such light manufacturing as is incidental to a permitted use and where the product is customarily sold on the premises by the producer to the customer. 4.133 Industrial 2 District— 11. a. Light manufacturing, including manufacturing, fabrication, processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities, renewable or alternative energy manufacturing such as wind, solar, biomass, and tidal on any lot with a minimum of twenty-five (25) acres; less than twenty-five (25) acres but a minimum of ten(10) acres by Special Permit. 10.4 - Additionally, an appeal may be taken to the Zoning Board of Appeals as provided herein by a person aggrieved by reason of his inability to obtain a permit or enforcement action from the Building Inspector, by the Merrimack Valley Planning Commission, or by any person including an officer or Board of the Town of North Andover, or an abutting city or town, aggrieved by an order or decision of the Building Inspector or other administrative officials in violation of any provision of this Bylaw. From the OSGOD Bylaw: 17 Definitions— 19 Enabling Laws - G.L. Chapter 40R and 760 CMR 59.00 17.6.5.9 At the discretion of the PAA, an Applicant seeking approval of a development including both As-Of-Right uses as well as uses requiring a Special Permit or other approval may combine such applications into a single application, and the PAA may combine both hearings and issue a single decision on such a combined development, provided that all requirements for the As-Of-Right development are complied with in accordance with the Enabling Laws and this Section 17.0, and with respect to uses allowed by Special Permit or other approval, are complied with in accordance with M.G.L. c. 40A. 26 Mixed-Use Development Project — A development containing a mix of residential uses and non-residential uses, as allowed in Section 17.6, and subject to all applicable provisions of this Section 17. 31 Plan Approval — A determination made in the form of a written decision by the PAA that the proposed site plan for the development complies with the standards and criteria which a site located within the OSGOD must meet under the procedures established herein and in the Enabling Laws and/or G.L. c. 40A as more particularly provided herein. 35 Project - a Residential Project and/or Mixed Use Development Project, undertaken within the OSGOD in accordance with the requirements of this Section 17. 36 Project, Commercial — a development which is proposed and which either requires a special permit as provided herein, or is otherwise not a"Project" as defined above. 37 Residential Project - a Project that consists solely of residential, parking, and accessory uses. 17.3.2 Underlying Zoning - The OSGOD is an overlay district superimposed on all underlying zoning districts. As required by the Enabling Laws, the regulations for use, dimension, and all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD, a developer may elect to either develop a site. in accordance with the requirements of this Section 17, or to develop a site, in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). 17.4 - The provisions of this Section 17 shall be administered by the Planning Board, except as otherwise provided herein. Any appeal arising out of a Plan Approval decision by the PAA with respect to a Project shall be governed by the applicable provisions of G. L. Chapter 40R, except with respect to a Commercial Project or other development 2 requiring a special permit or other approval under G.L. c.40A, in which case, the provisions of M.G.L. c.40A shall govern only the portion of the development for which a such special permit or other approval is required. 17.6.3.2—As-Of-Right Uses The following uses shall be permitted in the Business Opportunity Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17.6.5 and other applicable provisions of this Section 17: 13. Manufacturing; From MGL ch. 40A: Section 3 - No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare. Section 7 - The inspector of buildings, building commissioner or local inspector, or if there are none, in a town, the board of selectmen, or person or board designated by local ordinance or by-law, shall be charged with the enforcement of the zoning ordinance or by-law... Section 8- An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder. Section 16—First paragraph-No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered. 3 From MGL Ch. 40R Section 11 - (e) The project shall be approved by the approving authority subject only to those conditions that are necessary: (1) to ensure substantial compliance of the proposed project with the requirements of the smart growth zoning district ordinance or by-law; or (2) to mitigate any extraordinary adverse impacts of the project on nearby properties. An application may be denied only on the grounds that: (i) the project does not meet the conditions and requirements set forth in the smart growth zoning district ordinance or by-law; (ii) the applicant failed to submit information and fees required by the ordinance or by-law and necessary for an adequate and timely review of the design of the project or potential project impacts; or (iii) it is not possible to adequately mitigate significant adverse project impacts on nearby properties by means of suitable conditions. Section 11- (k) The first paragraph of section 16 of chapter 40A shall not apply to applications for projects within a smart growth zoning district. MGL Ch 164, MANUFACTURE AND SALE OF GAS AND ELECTRICITY Section 1 - "Renewable energy", (i) resources whose common characteristic is that they are nondepletable or are naturally replenishable but flow-limited; or (ii) existing or emerging non-fossil fuel energy sources or technologies, which have significant potential for commercialization in New England and New York, and shall include the following: solar photovoltaic or solar thermal electric energy; wind energy; ocean thermal, wave, or tidal energy; geothermal; fuel cells; landfill gas; waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; naturally flowing water and hydroelectric; and low emission advanced biomass power conversion technologies using such fuels such as wood, by-products or waste from agricultural crops, food or animals, energy crops, biogas, liquid biofuel including but not limited to biodiesel, organic refuse-derived fuel, or algae; provided,however, that renewable energy supplies shall not include coal, oil, natural gas except when used in fuel cells, and nuclear power. DUSEAU V. SZAWLOWSKI REALTY, INC. 12 Misc 470612 (Mass. Land Ct. Jan 2, 2015) In the absence of an express definition of a word or phrase in the bylaw itself, however, the court looks to "ordinary principles of statutory construction." Eastern Point, LLC v. Zoning Bd. of Appeals, 74 Mass. App. Ct. 481 , 486 (2009), citing Framingham Clinic Inc. v. Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Under those rules, undefined words are given their"usual and accepted meanings, as long as these meanings are consistent with their statutory purpose." Eastern Point, LLC, 74 Mass. App. Ct. at 386, citing Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). Meanings are derived from sources presumably known to the statute's enactors, such as other legal contexts and dictionary definitions. Zone Book, Inc., 372 Mass. at 369. The undefined 4 term at issue should be construed together with any associated words or phrases within the statutory context. Bldg. Comm'r of Franklin v. Dispatch Commc'ns of New England, Inc., 48 Mass. App. Ct. 709 , 717-718 (2000). When interpreting a zoning by-law or ordinance, technical words and phrases, or ones that may have acquired a "peculiar and appropriate meaning in law," are construed according to such meaning. G. L. c. 4, § 6, ¶ 3. When necessary, courts may also turn to the General Laws and other legislation in order to assign meaning to undefined terms, because the interpretation of provisions using identical language must be uniform. Bldg. Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 , 403 (1986). Courts interpreting other provisions in G. L. c. 40A, § 3 ("§ 3") have consistently relied on statutes pertaining to matters outside the zoning context in order to determine the scope of uses protected by § 3. When interpreting the § 3, ¶ I exemption for agricultural uses, for example, the Appeals Court looked to the provisions of G. L. c. 61A, concerning the assessment and taxation of agricultural land, to determine whether the raising and selling of horses constituted "agriculture" under § 3. Bateman v. Bd. of Appeals of Georgetown, 56 Mass. App. Ct. 236 , 243 (2002); Steege v. Bd. of Appeals of Stow, 26 Mass. App. Ct. 970 , 971 (1988). Similarly, the Supreme Judicial Court relied on decisions addressing the tax exemption statutes when construing the § 3 educational use exemption. See, e.g., Regis College v. Town of Weston, 462 Mass. 280 , 290 n.12 (2012) (and cases cited). The process is identical when faced with alleged zoning restrictions of religious institutions, with the court free to investigate other sources in order to determine whether the § 3 exemption for religious uses applies. See Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 45 (1990) (stating other legal contexts and definitions are helpful, and relying on federal and state case law, legal treatises and articles in an attempt to define religious activity). Here, Plaintiffs offer a compelling argument that "alternative energy development," is a technical term already defined by statute. In particular, § 1 of G. L. c. 164, the statute governing the manufacture and sale of gas and electricity, defines "alternative energy development" as including, but not limited to, "solar energy, wind, wood, alcohol, hydroelectric, biomass energy systems, renewable non-depletable and recyclable energy sources." [Emphasis added.] This definition was added in 2008. See 2008 Mass. Acts c. 169. In the same 2008 legislative act, the identical definition of "alternative energy development" was added to G. L. c. 25A, § 3, and G.L. c. 25A, § 10(c) was amended to list the qualifications necessary for a municipality to qualify for "green" community funding, providing that "[t]o qualify as a green community, a municipality or other local government body shall . . . provide for the as-of-right siting of renewable or alternative energy generating facilities, renewable or alternative energy research and development facilities, or renewable or alternative energy manufacturing facilities in designated locations [.]" Notably, the three types of renewable or alternative energy facilities which 5 a municipality must allow in order to qualify as a green community under the 2008 legislation generally match the three types of renewable or alternative energy facilities listed under Use 5.26 as allowed by right in the Industrial Districts. [Note 7] Use 5.26 was added to the By-Laws in 2010, two years after the definitions of "alternative energy development" and the green community requirements were added to G. L. c. 25A and G.L. c. 164. Thus, the drafters of the Use 5.26 amendment, and the Town Meeting adopting said amendment, were presumably aware of the statutory language adopted in 2008. See Zone Book, Inc., 372 Mass. at 369 (a word's accepted meaning may be drawn from sources presumably known to a statute's enactors). PLAN APPROVAL v SPECIAL PERMIT Do they consider this a Special Permit or a Plan Approval and what is the standard for approval. Are they aware that Plan Approval does not allow them to prohibit a use, only to regulate it? The process of site plan review is to assure protection of the public interests to a degree consistent with reasonable use, but not to deny such use. Y.D. Dugout v. Board of Appeals of Canton, 357 Mass. 25, 31 (1970). The process is intended to be used to impose reasonable conditions. Plans can only be denied where they are so intrusive on the needs of the public . . . that rejection by the board would be tenable. Prudential Insurance Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 282, 283-284 (1986). There has never been a case meeting this standard; as a result no such denial of a Plan Approval in Massachusetts has EVER been upheld on Appeal). 6 Osgood Solar, LLC 1600 Osgood Street North Andover, MA 01845 i June 23, 2015 Re: Zoning Board of Appeals(ZBA) Handout, Osgood Solar Dear Mr. Manzi and Members of the ZBA: In order to summarize our five Finding Requests into a format most efficient for tonight's hearing, we propose the following questions along with our research: 1. Per Finding Request#1: May the Applicant elect to develop the Solar Project per either Osgood Smart Growth Overlay District (OSGOD)–OR—per the underlying Industrial 2 Zoning District requirements? We believe the answer is "Yes". The OSGOD simply does not eliminate the Applicant's rights to M.G.L. 40A underlying zoning. Possibly the confusion on this stems from the use of the word "site"to mean the "Lot", however it cannot since Lot is previously defined, and does not within its definition use the word "site." In the absence of an express definition of a word or phrase in the bylaw itself, however, the court looks to ordinary principles of statutory construction, General Laws, and other legislation to assign meaning to undefined terms. We support the proposition that site is intended to mean the area being used for a specific Project, but not the entire Property and more in accordance with the Statue and the Model 40R Bylaw for developer's choice by"Project" to utilize 40A or 40R. (compare 8.11.4 use of term "site parcel") 2. Per Finding Request uest#2: Does "Manufacturing" include solar? � We believe the answer is "Yes". Massachusetts General Law defines the Manufacture and Sale of Gas and Electricity specifically to include Solar. Furthermore, our Town Zoning Bylaw specifies "...renewable energy manufacturing such as...solar" as an As of Right Use in the Industrial 2 zoning district and allows manufacturing as an As-Of-Right Use in the Business Opportunity Zone. In the absence of an express definition of a word or phrase in the bylaw itself, however,the court looks to ordinary principles of statutory construction, General Laws, and other legislation to assign meaning to undefined terms. Solar energy manufacturing, an As Of Right Use, has precedent in Massachusetts courts. The Zoning Bylaw listing solar manufacturing in 12 as a type of manufacturing establishes the basis for inclusion of solar in any other zone that allows the broader term "manufacturing" without distinction. [See Duseou v. Szawlowski] 3. Per Finding Request#3: Are Solar Facilities a Prohibited Use in OSGOD (even where underlying Zoning is12 ? We believe the answer is "NO". The AG's office in approving the OSGOD warrant cautioned that uses protected by MGL 40A Section 3, cannot be unreasonably regulated or expressly prohibited. In addition to the very clear caution provided by the AG's office in 2007, we note that the OSGOD specifically includes Wind Turbines as an allowed use. It is only reasonable to conclude that at the time of the drafting, voting, and adoption of the OSGOD that the Town believed that, in addition to being protected under 40A Section 3, solar energy manufacturing was already an As Of Right Use (both under 12 and 17.6.3.2) and would not be unreasonably regulated or expressly prohibited. Further, solar already existed on site and was being expanded; whereas Wind Turbines needed specific protection since it is not protected under 40A Section 3. r i 4. Per Finding Request#4: Does solar Manufacturing allow for all or some portion of the energy to be used off-site? We believe the answer is "Yes". Massachusetts General Law and Regulations do not and have never defined Net Metering, the statute by which the Manufacturing and Sale of solar energy is regulated, by whether any or all of the energy is consumed on site. In fact, Massachusetts statute, regulations, and general policy have encouraged the vast majority of solar installations to be constructed on private property and then to sell the energy to a local municipality. Nowhere in the OSGOD Bylaw is there any language that requires manufactured products to be consumed on the premises (compare 4.1.1 subsection 4 as to sale on premises). Further,technically, based upon the net metering process the product is, in fact, being sold on the premises. 5. Per Finding Request#5: Does the ZBA agree that Manufacturing, an As Of Right Use, shall not be subiect to Special Permit Process under the OSGOD or Industrial 2 Zoning District? We believe the answer is "Yes". North Andover adopted the OSGOD specifically to allow As Of Right Uses for commercial development to be permitted by a Plan Approval Authority. The OSGOD clearly defines processes for permitting As of Right (17.6.3.2) versus by Special Permit (17.6.3.3) 17.3.2 Underlying Zoning The OSGOD is an overlay district superimposed on all underlying zoning districts. As required by the Enabling Laws,the regulations for use, dimension, and all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s).. In Massachusetts it is not lawful for a Site Plan Review, such as the Plan Approval process, to reject a project that has been determined an As Of Right Use. TOWN OF NORTH ANDOVER Office of the Building Department 0"°oTN '91, Community Development and Services F 4 1600 Osgood Street, Bldg. 20,Suite 2035 North Andover, MA 01845 + _ 978-688-9545 �9,VS Ac►+usti��� Gerald Brown, Inspector of Buildings March 24, 2015 To:Town of North Andover Planning Board Fr: Gerald Brown, Inspector of Buildings Re: Osgood Solar LLC Special Permit—Construct Rooftop and Parking Canopy Mounted Solar Photovoltaic System-19,500 Solar Modules,6 MW.Approximately 5,500 Rooftop Mounted Solar Modules and approximately 14,000 Carport Canopy Modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, 150-630 feet long. Section 10.1 of the North Andover Zoning Bylaw provides that the Bylaw shall be enforced by the Building Inspector. Based on my review of the application dated March 20, 2015 for a Special Permit I have determined the following: 1. Section 17.3.2 of the Osgood Smart Growth Overlay District(OSGOD)of the Zoning Bylaw states in part: "Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning districts(s)." On June 17, 2014 this site(Assessor Map 34, Parcel 17) received approval of a Special Permit under the OSGOD. 2. The solar installation for purpose of a generating facility,which is being applied for here, is not a listed use under the As-Of-Right Uses allowed (As-Of-Right Uses Section 17.6.1.2) 3. Prohibited Uses(Section 17.6.4)states"All uses not expressly allowed are prohibited." 4. In addition,the application states it is for a "manufacturing" use. In my opinion a solar Installation for purposes of a generating facility for some utility users who are not on the site, it is not "manufacturing" under the OSGOD Bylaw. Sincerely, Gerald Brown Inspector of Buildings , LEASE SQ.FT. START RENTABLE 1 OFFICE TENANTS BLUE RADIANT CARE 3/1/2015 140 DUCHARME&SHEEHY 11/1/2014 165 ETROLZ INC 9/1/2006 2768 FH CANN ASSOCIATES 3/1/2008 13,574 FH CANN TRAINING ROOMS 5/1/2012 2,760 FIRE PRO INCORPORATED 1/1/2009 4,501 HENRY TROEMNER 1/15/2015 354 KEMMCARE,INC 4/1/2011 S98 HUDSON DESIGN GROUP 10/1/2007 9,964 HYEDRO 2/1/2013 250 MERRIMACK VALLEY LIBRARY CONSORTIUM 6/13/2008 5,020 ME TECHNOLOGIES 10/1/2013 3,321 MICHAEL FELTZ 8/1/2013 145 MIKE THOMPSON 8/1/2014 167 MOBILE MINI 12/1/2011 1,159 MVP COLLEGE FUNDING 2/1/2012 294 NATIONAL MENTOR HOLDINGS,LLC 11/9/2009 23,675 NEXUS STAFFING SPECIALISTS 2/1/2015 182 NLTECHNOLOGY 5/1/2010 2,118 NORTH ANDOVER PUBLIC SCHOOLS 7/17/2009 8008 NRT BUS COMPANY 6/1/2013 1650 ORGANIC WASTE MANAGEMENT 2/7/2012 1,403 PANELCLAW,INC OFFICE 10/1/2009 4,883 RICHARD SHAUGHNESSY,D/B/A AVC SERVICES 5/1/2006 250 STROUD 1/1/2015 4,883 TOWN OF NORTH ANDOVER 4/1/2006 5,673 URSA BUSINESS SOLUTIONS 9/1/2013 137 WATTS WATER TECHNOLOGIES 8/1/2006 10542 WATTS WATER TECHNOLOGIES-DATACENTER 1/8/2007 10,801 kZUCCHETTI 7/15/2013 1,209 TOTAL OFFICE 120,594 2itiG - iT�HIR OPTRONICS 2/1/2008 38,821 1NETWORK ALLIES 8/1/2012 23,527 JESSICA'S BRICK OVEN 8/1/2010 63,800 MOBILE MINI 9/1/2011 4,620 PANELCLAW,INC MANUFACTURING 8/11/2011 12,923 CABOT WOODWORKING&DESIGN 7/1/2009 5,032 GED WORKS 10/7/2006 3,500 TOTAL MANUFACTURING 152,223 3 CEDUCATIONAL/RECREATIONAL , ` `HUGHES ENTERTAINMENT,INC d/b/a LASERCRAZE 1/3/2008 17,820 I COMMUNITY THEATER OF ANDOVER 4/1/2014 10,014 CROSSFIT 9/1/2012 6,420 ERIC SCHNEIDER D/B/A FLATFACE FINGERBOARDS 2/15/2012 3,960 fKRIS KEENE 4/1/2014 500 THE DANCE NETWORK,INC 12/1/2009 5,110 TOTAL RECREATIONAL 43,824 4 `'ETAIL-_--- CORPORATE CHEFS TAW 6,345 YANKEE CLIPPER COUNCIL-BSA 2/1/2011 2,054 TOTAL RETAIL 8,399 5 EDUCATIONAI NEW ENGLAND TRACTOR-TRAILER/HVACTRAININ67 9/1/2010 12,690 TOTAL EDUCATIONAL 12,690 6 WE E OtS7tT�l}TiON� CCO,INC 6/17/2011 12,254 BARIL CORPORATION 5/1/2014 2,500 ESSEX DIRECT 2/1/2013 400 FH CANN STORAGE ROOM 2/5/2009 175 FIRE PRO INCORPORATED STORAGE 1/1/2009 692 HUGHES ENTERTAINMENT,INC d/b/a LASERCRAZE-STORAGE 11/29/2010 400 INTERNATIONAL MEDICAL EQUIPMENT COLLABORATIVE 12/1/2005 163,277 t LIST LOGISTICS 12/1/2013 180,694 LL PANELCLAW,INCSTORAGE 3/1/2010 2,772 I SUNCAPSULE 11/1/2014 9,915 I�NIWO 9/1/2012 80 TOTAL WAREHOUSE/DISTRIBUTION 373,15! TOTAL BUILDING LEASED 710,889 7 LAND LEASES ADCCO,INC 6/17/2011 25,120 IN CONTROL ADVANCED DRIVER TRAINING 8/1/2008 150,000 NEW ENGLAND TRACTOR-TRAILER TRAINING 9/1/2010 215,400 NRT BUS 6/1/2013 43,000 MASS MOTORCYCLE 1/1/2015 60,000 MOBILE MINI 9/1/2011 200,173 TOTAL LAND LEASE 693,693 4.133 Industrial 2 District r- 1. Research and development facilities. 2.,Business, professional and other offices.; 3�eta land food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use. No more than ten percent(10%)of the gross floor area (GFA)of the principal use may be devoted to accessory use.Where there is more than one principal use each use may only have ten percent(10%)of gross floor area (GFA)devoted to any accessory use. (Refer to Section 2.21, Definition of Accessory Use Structure).(1987/25) 4. Place of worship. 5. Non-profit school or private school for profit. 6. Public service corporation and energy or resource recovery facility,provided that said resource recovery facility has first obtained a valid site assignment from the Board of Health pursuant to Section 150A of Chapter 111 of the General Laws.Any dumping of ash or other hazardous material generated by such facility shall be subject to Special Permit Granting Authority to be the Planning Board.(1992/56),(1999/28) 7. Medical center,clinic,or medical laboratory. 8.Art gallery. 9'Recreational uses, including swimming club,tennis club, health club, indoor ice skating facility, and indoor/outdoor athletic recreation facility by Special Permit. 10.Printing and reproduction. 11.a. "I Z dig' including manufacturing,fabrication, processing,finishing,assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive, noxious, detrimental,or dangerous to surrounding areas or the town by reason of dust,smoke,fumes,odor, noise,vibration, light or other adverse environmental effect. b. Renewable or alternative energy research and development facilities,renewable or alternative �ftaxa�g,such as win , biomass,and tidal on any lot with a minimum of twenty-five(25)acres; less than twenty-five(25)acres but a minimum of ten (10)acres by Special Permit. 12.a. Farming of crops and row crops,truck gardens,orchards, plant nurseries,and greenhouses. b.On any lot of at least three(3)acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot,and for each additional acre of lot size to five (5)acres,the keeping of one (1) additional animal or bird; but not the keeping of animals, birds, or pets of persons not resident on such lot. c.On any lot of at least five (5)acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies,stud farms,dairy farms,and poultry batteries. d.The sale of products raised as a result of the above uses on the subject land. 131 aro i ;� d° rh'olesalin .—:f 14.Golf course. 15. Lumber or other building materials storage or sales,fuel storage or contractor's yard, provided all outdoor uses are enclosed by a fence of five(5)feet or more in height. 16. Bus garage. 17.Automobile service station(limited to one in each 2000 linear feet of street or highway as measured along centerline.) 18.Car wash. 19.Automobile or other motor vehicle repair, provided all activities are within an enclosed building. 20.Veterinary hospitals and kennels, provided all activities are with and enclosed building. 21. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious,or offensive to the neighborhood. 22. Day Care Center by Special Permit(1985/23). 23. Hotels and motels limited to one in each 2,000 linear feet of street or highway as measured along the centerline. 17.6.3.2 As-Of-Right Uses , The following uses shall be permitted in the Business Opportunity Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17.6.5 and other applicable provisions of this Section 17: 1.Agricultural Use; 2.Art Gallery; 3. Business,,Professional and Other Offices; 4. Day Care Center; 5. Funeral Parlor; 6. Medical Center and/or Medical,Offices; 7. Motel/Hotel; 8. Places of Worship; 9. Public Building or use; 10 rEating and Drinking_Establishment;.,' 11. Personal Services Establishment; 12.Municipal Recreation Area; 14. Printing and Reproduction; 15. Research and Development Facilities; 16. Retail, banking,and service establishments not to exceed 20,000 square feet in gross floor area per w y user; 17.Parking accessory to any of the above permitted uses, including surface,garage-under,and structured parking(e.g., parking garages), as well as parking accessory to the uses described in Subsection 17.6.3.3 below;and, 18.Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.3.3 Uses Allowed By Special Permit The following uses shall be permitted in the Business Opportunity Zone by Plan Approval Special Permit issued by the Plan Approval Authority,as Special Permit Granting Authority(SPGA), pursuant to the provisions of this Section 17.6.5: 1.Commuter Rail System; 2. Incubator or Business Park; 3-Indoor Place of Amusement or Assembly, including but not limited to,such uses shall include arenas,Meatres;and athletic or rtgea_tiq�al facilities; 4. Indoor Ice Skating or other athletic facility; S. Non-profit school; 6.Outdoor recreation area, including but not limited to,tennis court, basketball court,athletic fields, and passive recreation; 7.Trivate School for profitpand, 8. Parking accessory to any of the above permitted uses, including surface,garage-under,and structured parking(e.g., parking garages) 9. Retail and Service Establishments in excess of 20,000 square feet of gross floor area per user; 10. Retail Plaza; 11. Public Service Corporation; 12.Windmills up to one hundred-fifty(150)feet to the top of the hub at the center of the rotor;and, r. r 13.Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. i i COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT MARY B. DUSEAU, SUSAN L. MOORMAN, KATHLEEN Z.ZEAMER, DANIEL K. EDWARDS,JUDITH B.ZAHN, as TRUSTEE for the JUDITH B.ZAHN LIVING TRUST, BARBARA R. O'SHEPA,STANLEY J. PITCHKO,JR., PATRICIA J. PITCHKO,ALAN BOROWSKI,STEPHEN E. LAIZER, PATRICIA LAIZER, MELISSA A. HESSION, DAVID J. MUSANTE,CINDY A. BARCOMB, KATHLEEN A.SHEEHAN,ANITA R. GINGRAS, MELODY S. EDWARDS,JASON LAPRADE,JAMES TARR also known as JAMES N.TARR and BETSY TARR v. SZAWLOWSKI REALTY, INC.,TOWN OF HATFIELD, and HATFIELD SOLAR, LLC. MISC 12-470612 Hampshire, ss. January 2, 2015 CUTLER, C.J. DECISION ON PARTIES' CROSS-MOTION FOR SUMMARY JUDGMENT With: MISC 13-477351 : MARY B. DUSEAU,SUSAN L. MOORMAN, KATHLEEN Z.ZEAMER, DANIEL K. EDWARDS, JUDITH B. ZAHN, as TRUSTEE for the JUDITH B.ZAHN LIVING TRUST, BARBARA R.O'SHEPA,STANLEY J. PITCHKO,JR., PATRICIA J. PITCHKO,ALAN BOROWSKI,STEPHEN E. LAIZER, PATRICIA LAIZER, MELISSA A. HESSION, DAVID J. MUSANTE, CINDY A. BARCOMB, KATHLEEN A. SHEEHAN,ANITA R. GINGRAS, MELODY S. EDWARDS,JASON LAPRADE,JAMES TARR also known as JAMES N.TARR and BETSY TARR v. SZAWLOWSKI REALTY, INC., BRYON NICHOLAS, MICHAEL F. PASZEK, FRANCIS SPELLACY and DARRYL WILLIAMS,as they are MEMBERS of the HATFIELD ZONING BOARD OF APPEALS,TOWN OF HATFIELD, and HATFIELD SOLAR, LLC. INTRODUCTION On May 23,2013, Hatfield Solar moved for summary judgment in Case 1,that the installation of solar panels for the collection of energy is a use which must be allowed by right in the Rural Residential District pursuant to the §3 Solar Provision because it is not otherwise allowed in the Town of Hatfield. Hatfield Solar also moved for summaryjudgment in Plaintiffs' Case 2,G.L.c.40A, §17 appeal,that the Board's correctly upheld the building permit because, in the absence of a use regulation specifically permitting the construction of the proposed solar collection facility anywhere in the Town,the § 3 Solar Provision exempts the use from prohibition in the RR District in which the facility would be located. Plaintiffs have opposed Hatfield Solar's motions for summary judgment, and have cross-moved for a summary judgment in Case 1 in its favor, declaring that Use 5.26 of the By-laws'Table of Uses applies to the use proposed by Hatfield Solar, restricting it to the Industrial Districts only.They have also moved for partial summary judgment in Case 2, invalidating the Board's decision. Plaintiffs take the position that Hatfield Solar's proposed use is either a "Renewable or Alternative Energy Development Facility," or a "Renewable or Alternative Energy Manufacturing Facility" under Use 5.26,and that Use 5.26 constitutes a reasonable regulation of the installation of solar energy collection facilities such as Hatfield Solar proposes, making Hatfield Solar's project ineligible for exemption under the § 3 Solar Provision. On October 30, 2013,a hearing was held on the Parties'cross-motions. On November 13, 2013, after the Parties were given an opportunity to file supplemental briefing,the court took the cross-motions under advisement. [Note 5] Now, on the basis of the pleadings and other Rule 56 materials filed in this matter, I have determined that there are no material facts in dispute and that the Plaintiffs are entitled to summary judgment as a matter of law in Case 1 and to partial summary judgment in Count 1 of Case 2. UNDISPUTED MATERIAL FACTS Based upon the pleadings and other admissible Rule 56 materials, as well as the Parties'oral representations at the summaryjudgment hearing, I find the following material facts are not in dispute: 1. Defendant Hatfield Solar, LLC("Hatfield Solar") is a duly organized and existing Massachusetts limited liability company with its principal office at 88 Black Falcon Avenue,Suite 342, in Boston. 10.On February 20, 2013,the Board denied the appeal and upheld the issuance of the Building Permit to Hatfield Solar("Decision").The Decision states, in relevant part,that Plaintiffs "allege that the project is not permitted in a Rural Residential District under Use 5.26 of the Hatfield Zoning [By-laws] and further allege that the zoning protection for solar energy systems pursuant to [G. L. c.40A, §3, 191 is not applicable to this project and seek the revocation of the Building Permit."The Board voted, following discussion, "to deny the appeal of the [Plaintiffs] and to uphold the issuance of the Building Permit by the Building Inspector." 11. On March 5, 2013,the Board amended the Decision, by adding the following language: "[t]he reason for denial is that based on its legislative history and plain language, [Use] 5.26 of the Hatfield Zoning [By- laws] is not applicable to the construction contemplated under the building permit. Moreover,the language of G. L. c.40A, § 3 exempts solar collection panels that are the subject of this building permit." DISCUSSION Pursuant to Mass. R. Civ. P.56(c),summary judgment is appropriate when there are no genuine issues of material fact and,viewing the evidence in the light most favorable to the nonmoving party,the moving party is entitled to judgment as a matter of law. Opara v. Mass. Mut. Life Ins. Co.,441 Mass. 539 544(2004);Attorney General v. Bailey, 386 Mass. 367, 370-71(1982) (citations omitted).The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v.Gen. Motors Corp.,410 Mass.706, 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party.Augat, Inc.v. Liberty Mut. Ins. Co.,410 Mass. 117, 120 (1991).When the court is faced with cross-motions,as is the situation here, it analyzes the parties' legal positions guided by which party has the burden on the issues before the court. Each moving party bears the burden of affirmatively demonstrating the absence of triable issues of fact and its entitlement to judgment as a matter of law. Lev v. Beverly Enter.— Massachusetts, Inc.,457 Mass. 234, 237(2010). Here,the undisputed material facts are sufficient to entitle the Plaintiffs to judgment as a matter of law on both the Case 1, G.L.c. 240, § 14A claim and the Case 2,G.L.c.40A,§ 17appeal. I.The Project is a Permitted Use under the By-laws. uniform. Bldg. Inspector of Mansfield v.Curvin, 22 Mass.App. Ct.401,403 (1986).Courts interpreting other provisions in G. L. c.40A, §3 ("§3") have consistently relied on statutes pertaining to matters outside the zoning context in order to determine the scope of uses protected by§ 3.When interpreting the §3, 11 exemption for agricultural uses,for example,the Appeals Court looked to the provisions of G. L. c. 61A, concerning the assessment and taxation of agricultural land,to determine whether the raising and selling of horses constituted "agriculture" under§3. Bateman v. Bd. of Appeals of Georgetown,56 Mass.App. Ct. 236, 243 (2002); Steege v. Bd. of Appeals of Stow, 26 Mass.App. Ct.970 971 (1988). Similarly,the Supreme Judicial Court relied on decisions addressing the tax exemption statutes when construing the §3 educational use exemption.See, e.g., Regis College v.Town of Weston, 462 Mass. 280,290 n.12 (2012) (and cases cited).The process is identical when faced with alleged zoning restrictions of religious institutions,with the court free to investigate other sources in order to determine whether the § 3 exemption for religious uses applies.See Needham Pastoral Counseling Ctr., Inc.v. Bd. of Appeals of Needham, 29 Mass.App. Ct. 31,45 (1990) (stating other legal contexts and definitions are helpful, and relying on federal and state case law, legal treatises and articles in an attempt to define religious activity). Here, Plaintiffs offer a compelling argument that"alternative energy development," is a technical term already defined by statute. In particular, § 1 of G. L. c. 164,the statute governing the manufacture and sale of gas and electricity, defines "alternative energy development" as including, but not limited to, "solar energy,wind,wood,alcohol, hydroelectric, biomass energy systems, renewable non-depletable and recyclable energy sources." [Emphasis added.]This definition was added in 2008.See 2008 Mass. Acts c. 169. In the same 2008 legislative act,the identical definition of"alternative energy development" was added to G. L. c. 25A, § 3, and G.L. c. 25A, § 10(c)was amended to list the qualifications necessary for a municipality to qualify for"green"community funding, providing that"[t]o qualify as a green community, a municipality or other local government body shall . . . provide for the as-of-right siting of renewable or alternative energy generating facilities, renewable or alternative energy research and development facilities, or renewable or alternative energy manufacturing facilities in designated locations [.]" Notably,the three types of renewable or alternative energy facilities which a municipality must allow in order to qualify as a green community under the 2008 legislation generally match the three types of renewable or alternative energy facilities listed under Use 5.26 as allowed by right in the Industrial Districts. [Note 7] Use 5.26 was added to the By-Laws in 2010,two years after the definitions of"alternative energy development" and the green community requirements were added to G. L. c. 25A and G.L. c. 164.Thus, the drafters of the Use 5.26 amendment, and the Town Meeting adopting said amendment,were presumably aware of the statutory language adopted in 2008.See Zone Book, Inc., 372 Mass. at 369 (a word's accepted meaning may be drawn from sources presumably known to a statute's enactors). suggest that use of the word "or" should not be treated as disjunctive.Thus, each listed facility must be treated as separate and distinct from the others. Moreover,there is nothing in the By-laws to suggest that the final modifying clause, "including the manufacture and/or assembly of equipment for Solar, Thermal,Solar Photovoltaic, Hydro Electric and Wind Generation" should be applied to more than the immediately preceding facility—"Renewable or Alternative Energy Manufacturing Facilities." [Note 9] For the reasons stated, I find that the Plaintiffs are entitled to summary judgment in Case 1,declaring that pursuant to the By-laws,Section 3,Table 1, Use 5.26, Hatfield Solar's proposed solar panel collection facility is permitted by right, with administrative site plan review, in the Industrial and Light Industrial Districts, and prohibited in all other districts of the Town, including the RR District in which the Property is located. 2.The Board's Decision was Based on an Incorrect Interpretation of Use 5.26. Under G. L. c.40A, § 17, a zoning board's decision will not be overturned unless it is "based on a legally untenable ground or is unreasonable,whimsical,capricious or arbitrary." Britton v.Zoning Bd.of Appeals of Gloucester,59 Mass.App. Ct. 68, 72 (2003), citing MacGibbon v. Bd.of Appeals of Duxbury, 356 Mass. 635,639 (1970). Here,for the reasons discussed at length in the preceding paragraphs,the Board based its Decision on an incorrect interpretation of Use 5.26.Therefore,the Decision must be annulled. The Board's initial Decision, dated February 25, 2013,simply states that the Board voted "to deny the appeal and to uphold the issuance of the Building Permit by the Building Inspector." On March 5, 2013, the Decision was amended, adding that"[t]he reason for denial is that based on its legislative history and plain language, [Use] 5.26 of the Hatfield Zoning [By-law] is not applicable to the construction contemplated under the building permit. Moreover,the language of G. L. c.40A,§ 3 exempts solar collection panels that are the subject of this building permit." Massachusetts General Laws, Chapter 40A, § 3, $ 9 (referred to herein as the"§3 Solar Provision") states, in relevant part,that "[n]o zoning ordinance or bylaw shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy,except where necessary to protect the public health, safety or welfare." Kathleen Hayes to schedule a status conference.Counsel should confer with each other to arrive at several, mutually acceptable alternative conference dates before contacting the Sessions Clerk. -------------------------------------------------------------------------------- I FOOTNOTES [Note 11 Use 5.26 is a numbered use category listed in the Table of Permitted Uses("Table 1").Table 1 appears in Section 3.0 of the By-laws, and not in Section 5.0 of the By-laws,which is entitled "Special Permits,Site Plan Approval and Site Plan Review."Therefore, although the Parties both refer to this use category as "Section 5.26,"for clarity purposes, it will instead be referenced throughout this Decision as "Use 5.26." [Note 2 The Case 2 Complaint includes four counts three of which are not at issue in this summary ] p y judgment motion.Count II seeks a declaratory judgment concerning a boundary dispute between Defendant Szawlowski and Plaintiffs Jason and Jennifer Laprade; Count III seeks a permanent injunction to remove any construction done while Case 1 is pending; and Count IV seeks money damages for trespass.On April 29,2013, Plaintiffs agreed to the dismissal of their Count IV claim. [Note 3]The Town has not otherwise actively participated in the defense of Case 1. [Note 4] Pursuant to G.L. c.40A, § 17, no answer was required. [Note 51 After the summaryjudgment hearing,the court granted the parties additional time to brief the issue of whether Hatfield Solar qualified as a "public service corporation" entitled to an exemption from local zoning granted by the Department of Telecommunications and Energy under G. L.c.40A, §3, ¶ 2. Plaintiffs and Hatfield Solar filed their supplemental briefs on November 12 and November 13, 2013, respectively. Because I have decided the cross-motions on other grounds, it is not necessary to reach this issue. [Note 11] At oral argument, Hatfield Solar confirmed its position that the § 3 Solar Provision controls because,where neither Use 5.26 nor any other provisions of the By-laws allow solar collection facilities such as the Project,solar collection facilities are deemed a prohibited use in all districts of the Town pursuant to Section 3.0 of the By- laws ("[a]ny use not specifically permitted is prohibited") in contravention of the §3 Solar Provision. By limiting its argument in this manner, Hatfield Solar never challenged the reasonableness of Use 5.26 if it were applied to the Project. Because neither party argued the issue of reasonableness or unreasonableness or presented any evidence in regard to the question of reasonableness, I do not reach the issue here. See Green v. Brookline, 53 Mass.App. Ct. 128 , n.11 (2001) (declining to reach an issue not raised at the lower court and not briefed or argued by the parties). Osgood Solar, LLC 1600 Osgood Street North Andover,MA 01845 May 27,2015 Re:Notice of Appearance,Osgood Solar,LLC Dear Chairman Manzi and Members of the Zoning Board of Appeals, The Osgood Solar,LLC Zoning Board of Appeals(ZBA)hearing and related matters may be represented by the following legal counsel: Michael D. Rosen, Esq. Ruberto, Israel&Weiner, P.C. 255 State Street, Boston,MA 02109 .R�tFr�iursaEti Mark C.Kalpin, Esq. WilmerHale 60 State Street,Boston, MA 02109 Please contact me with any questions at Respectfully Submitted, Daniel P. Leary,As Agen sg ood Solar 1 .Y Ciofolo, Angela From: Michael D. Rosen 1v1ury-11v Trem> Sent: Saturday,August 15, 2015 11:16 AM To: 'Albert P. Manzi III';Ciofolo,Angela; Brown, Gerald Cc: m Subject: RE:Osgood Solar hearing Al, Thank you for your correspondence. in response thereto,please note the following: 1. There have been 28 permits pulled by Ozzy Properties since June 2007 as to 1600 Osgood Street,however,many tenants are required to pull their own permits and we do not have records of those. Of the permits pulled by Ozzy,and only 1 makes any reference to OSGOD. Do you need copies of all 28? If so,this will take some time. 2. To the best of my client's knowledge,they are not aware of ANY correspondence"stating that a developer is required develop a site and or the associated sub-districts per section 17.3.3 of the zoning bylaw in accordance with section 17.3.2 of the zoning bylaw or that a developer has expressly elected to do so". As stated in our answer to your question 1(above),they are only aware of one permit filed under OSGOD. It was filed for ACT and was done so,at the time because the tenant was requested we do so(though we are not sure at the Town who made that request). Of the 28 permits pulled by Ozzy referenced above,26 were before the ACT permit and 1 was after. We several permits have been pulled by tenants after the ACT permit,but are continuing to look into how many permits have been pulled directly by tenants and will supplement this response as we gather that information. 3. As stated above,they are only aware of one OSGOD application (for ACT), and to the best of their knowledge, nothing was circulated to other Boards. Please let me know if I can provide you with any other information before the next meeting. Regards, Michael Michael D. Rosen, Esq. Ruberto,Israel&Weiner,P.C. 6±T" 260 �►r#r{�r�w�ain From: Albert P. Manzi III [mailto:attymanzi@manzilaw.netl Sent: Monday, August 10, 2015 11:12 AM To: Angela Ciofolo; Gerry Brown; Michael D. Rosen Subject: Osgood Solar hearing Greetings, I am looking for the following supplemental information, to the extent there is any, for the upcoming zba special meeting. i 1. The number of building permits issued by and or for Osgood Landing applicants and the associated zoning and use classifications utilized thereto for those requested building permits since the adoption of the 40R Osgood Smart Growth Overlay District on or about June 4 2007. 2. Any and all communications by and between the Town of North Andover and Osgood Landing LLC including but not limited to the Building Department and the Plan Approval Authority(Planning Board) stating that a developer is required develop a site and or the associated subdistricts per section 17.3.3 of the zoning bylaw in accordance with section 17.3.2 of the zoning bylaw or that a developer has expressly elected to do so. 3. Pursuant to section 17.13.2 Circulation to Other Boards of the zoning bylaw,the number of 40R developer applications submitted to the Plan Approval Authority (Planning Board)pursuant to a developers election in accordance with section 17.3.2 of the zoning bylaw that the Plan Approval Authority then circulated to other boards and or departments since on or about June 4 2007 in accordance with section 17.13.2. The above questions 1-3 are raised in context and pursuant to the following: 1. Pursuant to Section 17.2 Definitions, I have not found "site" as a defined term pursuant to Section 17. 2. Pursuant to Section 17.3.2 Underlying Zoning,the bylaw states in relevant part "all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to Section 17. Within the boundaries of OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). Thank you, APM III, ZBA, Chairman Attorney Albert P. Manzi III PO Box 486 North Andover, MA 01845 T77 3 rux 918-8t4--4" t Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you receive this email in error,please notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments. 2 Osgood Solar,LLC 1600 Osgood Street North Andover, MA 01845 May 27,2015 Re:Notice of Appearance,Osgood Solar,LLC Dear Chairman Manzi and Members of the Zoning Board of Appeals, The Osgood Solar, LLC Zoning Board of Appeals(ZBA)hearing and related matters may be represented by the following legal counsel: Michael D. Rosen, Esq. Ruberto, Israel&Weiner, P.C. 255 State Street, Boston,MA 02109 'PTI'GTLt�riva�e+� bZT.14Z.2290 Mark C.Kalpin, Esq. WilmerHale 60 State Street,Boston, MA 02109 =-z7s Please contact me with any questions at A 340 Respectfully Submitted, Daniel P. Leary,As Agen sgood Solar 1 I Ciofolo, Angela From: Brown, Gerald Sent: Tuesday, April 21, 2015 5:21 PM To: Dan Leary Cc: Enright, Jean; Kfoury, Eric; Maylor,Andrew; Ciofolo, Angela; Orit Goldstein Subject: RE: Request for I2 Zoning Determination for Osgood Solar Dear Dan, According to the Zoning Bylaw of the Town of North Andover a solar generating facility in the Industrial 2 zone is not an allowed use. Thank you, Gerald Brown Inspector of Buildings Town of North Andover From: Dan Leary [=11tQ71le ] Sent: Thursday, April 16, 2015 8:34 AM To: Brown, Gerald Cc: Enright, Jean; Kfoury, Eric; Maylor, Andrew; Ciofolo, Angela; Orit Goldstein Subject: Request for I2 Zoning Determination for Osgood Solar Hello Gerry, trust you are well. As we discussed on Tuesday, I have attached a letter that the Osgood Solar development team has compiled to assist with your determination of the solar project under the Industrial 2 District. The planning department has requested this determination in advance of Osgood Solar submitting the permitting application under the 12 zoning. Please feel free to contact me at any time with questions, �. yr, Dan Daniel P. Leary PowerOwners, LLC 857 Turnpike Street,Suite 233 North Andover, MA 01845 1 Rad [2 Osgood Solar, LLC ' 1600 Osgood Street North Andover, MA 01845 BOARD OF APPEALS ° May 26, 2015 las" SW ' s' Re: Osgood Solar, LLC/Findings Form Dear Chairman Manzi and Members of the Zoning Board of Appeals, The attached materials relate to and are submitted to supplement the Application for an Appeal originally filed and accepted by the Town of North Andover on April 23, 2015. These materials are submitted in order to revise the format, to clarify specific finding requests, and to assist the Town in preparation of the Notice for publication. Please contact me with any questions at dleary@powerowners.com, or 978.496.3460. Respectfully Submitted, Daniel P. Leary,As Agent for Osgood Solar Attachments 1. Finding Form, Zoning Board Of Appeals 2. Attachment A: Finding Requests 3. Attachment B: Existing Buildings, Use of Land 1 m A tft� ., I � i Page 2 of 4 Date&Time StampED Application fora NORTH ANDOVER BOARD OF APP [,,jay} � -j i 1. Petitioner: Name, address and telephone number: PASSACP.v T:,, Osgood Solar, LLC , 1600 Osgood Street, North Andover, MA 01845 978.681.5004 x115 'The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address and Telephone number and number of years under this ownership: 1600 Osgood, LLC 1600 Osgood Street North Andover MA 01845 978 681 5004 x115 Years Owned Land: 12 'i 3. Location of Property: a. Street: Osgood Street Zoning District Industrial 2 b. Assessors: Map number 34 Lot Number: 17 C. Registry of Deeds: Book Number 8213 Page Number: 272 and Book Number: 11180 Page Number: 290 4. Zoning Sections under which the petition for the Finding is made. { A) 17.3.2 Underlying Zoning; B) 17.6.3.2 As-Of-Right Uses; C) 17.6.4 Prohibited Uses; D)4.133 Industrial 2 District, 11b I 'Refer to the Permit Denial and Zoning By-Law Plan Review as supplied by the Building Commissioner 5. Describe the Finding request: See Attachment A: Finding Requests i 'The above description shall be used for the purpose of the legal notice and decision. A more detailed description Is required pursuant to the Zoning Board Rules and Regulations as cited on page 4 of this application.Failure by the applicant to clearly describe the request may result in a decision that does not address the Intent of the applicant. The decision will be limited to the request by the applicant and will not Involve additional items not Included above. 6a, Difference from Zoning By LAW requirements: Indicate the dimensions that will not meet current Zoning By-Law Requirements. (A and B are in the case of a lot split) Lot Area Open Space Percent Lot Frontage Parking Minimum Lot set Back Sq. Ft. Sq. Ft Coverage Feet Spaces Front Side A Side B Rear A. N/A % B.- % I p I Page 3 of 4 Application for a FINDING � NORl'H ANDOVER ZONING BOARD OF APPEALS 6. b. Existing Lot: Lot Area Open Space Percent Lot Frontage Parking * Minimum Lot set Back Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear Appx 5.5M N/A % c. Proposed Lot (S): Lot Area Open Space Percent Lot Frontage Parking Minimum Lot set Back" Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear N/A I d. Required Lot: (As required by Zoning By-Law) i * 1 Lot Area Open Space Percent Lot Frontage Parking Minimum Lot set Back Sq. Ft. Sq. FL Coverage Feet Spaces Front Side A Side 8 Rear j N/A % 11 i 7. a. Existing Buildings: Ground Floor Number of Total Use of Square feet Floors Sq. feet Building* appx 870,000 1.13M Please see Attachment B 'Reference Use Code numbers and Uses from the Zoning By-Law State number of units in building. b. Proposed Buildings: Ground.Floor Number of Total Use of Square feet Floors Sq.feet Building' appx 400,000 N/A appx 400,000 Manufacturing/Renewable Energy Manufacturing (Use Code 450) N/A: No New Buildings as structure proposed is for solar energy manufacturing: ! 'Reference Use Code numbers and Uses from the Zoning By-Law State number of units in building. 8. Petitioner and Landowner signature (s): Every application for a Finding shall be made on this form which is the official form of the Zoning Board of Appeals. Every application shall be filed with the Town Clerk's office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or the Zoning Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expens or fill g and legal notification. F re to comply with application requirements,as cited herein and in the Zoning Board Rules and Regulations may res m a dismi al by the Zoning Board t s application as incomplete. Signature Type above name (s) here Daniel P. ea , As Agent for Osgood Solar, LLC I Attachment A: Finding Requests 1. Per 17.3.2 Applicant refutes Building Commissioner's determination that the receipt of a Special Permit for a small portion of the Property has rendered the entire Property subject to the OSGOD Zoning Bylaw without the continuing right to use any portion of the Property in accordance with the underlying Industrial 2 District; and seeks a finding that the term "site" (a term that is undefined by the Zoning Bylaw) is not defined to mean "Lot" (a term that is defined by the Zoning Bylaw),and further that the OSGOD Section of the Bylaw contemplates multiple "Projects". 2. Per 17.6.3.2 Applicant refutes Building Commissioner's determination that a solar generating facility is not an allowed As-of-Right use under the OSGOD Zoning Bylaw, and seeks a finding that the Building Commissioner erred in applying Section 17.6.1.2 and,further, under 17.6.3.2 the term "manufacturing" includes renewable or alternative energy manufacturing such as solar. 3. Per 17.6.4 Applicant refutes Building Commissioner's determination that solar energy generating facilities are not expressly allowed and therefore prohibited, and seeks a finding that solar energy generating facilities are not "Prohibited Uses". 4. Per 4.133-11.b.and 17.6.3.2 Applicant refutes Building Commissioner's determination that "manufacturing" as it relates to renewable or alternative energy is limited to generating energy that MUST be consumed at the Property, and seeks a finding that"manufacturing" as relates to solar energy generating facilities is not limited in any way to preclude the transmission of all or any portion of the energy being generated for use off of the Property. 5. Per the Application,Applicant refutes Building Commissioner's determination that the proposal consisted of an application for Special Permit when in fact it was an application for an OSGOD Plan Approval, and seeks a finding that the Application is for an OSGOD Plan Approval. i i Attachment B: 7(a) Existing Buildings, Use of Building CodeProperty Type Clas ........................................................... ......... .................. ... ..... ... _ _... .... .... ..... .... . 316 Other Storage,Warehouse and Distribution facilities (see also Industrial Code 401) ..... .... ...... .._. 325 Small Retail and Services stores(under 10,000 sq ft.) .._ .... _.... .. . .......... _ 337 Parking Lots-a commercial open parking lot for motor vehicles ..._... ......... ......... . . . ........ ... 340 General Office Buildings ........... .... ........ ....... 351 Educational Properties ......... ......... ........... 354 Bus Transportation Facilities and Related Properties ......... ..... ......... ......... ......... ......... .... _ ... ... 356 Miscellaneous Public Services- professional membership organizations, business associations,etc. ...... ....... .............. . ....._.... ..... . ........_ _... 377 Archery, Billiards, other indoor facilities __..... ...__.... ....._..... 368 Fairgrounds and Amusement Parks 388 Other Outdoor facilities e.g., driving ranges, miniature golf, baseball batting ranges, etc. ........................... ..... _ ........... .. ...... ....._..... 400 Buildings for manufacturing operations .._..... ......... ......... .............. ......... ......... _ ....... ........... 401 Warehouses for storage of manufactured products ........ .. .......-_ ........ ........ .. ....... 402 Office Building- part of ma .. . ......_.... ......._..... .. ....._...... ........ ......... ......: 404 Research and Development facilities ..... ,.. _ ._....... _ ... 450 Electric Generation Plants _.__. _ ....... ......... ......... ..... .... 958 Recreation,Active Use ............... ......_... .... ......... 972 Transportation Authority __...._._ ... ._...... ...... . .........._._ _._. 985 Improved Municipal or Public Safety,Other City or Town .......... _ ......... ......... ,;)7zel �o�n�no�cvea�tl o ��la��acl asetts; M e`er cffaGe . Prise; o-sfon, .Iffauadza<se4 02/ 3 Ory 9YSV William Francis Galvin Secretary of the Commonwealth May 19, 201 TO WHOM IT MAY CONCERN: I hereby certify that a certificate of organization of a Limited Liability Company was fled in this office by 1600 OSGOOD STREET, LLC in accordance with the provisions of Massachusetts General Laws Chapter 156C on August 14, 2003. I further certify that said Limited Liability Company has filed all annual reports due and paid all fees with respect to such reports; that said Limited Liability Company has not filed a certificate of cancellation or withdrawal; and that said Limited Liability Company is in good standing with this office. I also certify that the names of all managers listed in the most recent filing are: ORIT GOLDSTEIN I further certify, the names of all persons authorized to execute documents filed with this office and listed in the most recent filing are: ORIT GOLDSTEIN The names of all persons authorized to act with respect to real property listed in the most recent filing are: ORIT GOLDSTEIN In testimony of which, r I have hereunto affixed the fA Great Seal of the Commonwealth . on the date first above written. F JY` 41" Secretary of the Commonwealth Processed By:nem t s o J 7 elm �zcv ea�tf o �� s�ac�ic���es e b obi �lfate ,�� se; asfa�, ./�fiss�rc���sefts 02,,3 William Francis Galvin Secretary of the Commonwealth May 19, 2015 TO WHOM IT MAY CONCERN: I hereby certify that a certificate of organization of a Limited Liability Company was filed in this office by OSGOOD SOLAR, LLC in accordance with the provisions of Massachusetts General Laws Chapter 156C on December 15, 2014. I further certify that said Limited Liability Company has filed all annual reports due and paid all fees with respect to such reports; that said Limited Liability Company has not filed a certificate of cancellation or withdrawal; and that said Limited Liability Company is in good standing with this office. I also certify that the names of all managers listed in the most recent filing are: ORIT GOLDSTEIN I further certify, the names of all persons authorized to execute documents filed with this office and listed in the most recent filing are: ORIT GOLDSTEIN The names of all persons authorized to act with respect to real property listed in the most recent filing are: ORIT GOLDSTEIN [�i�, � '•, In testimony of which, I have hereunto affixed the Great Seal of the Commonwealth ` on the date first above written. u, Secretary of the Commonwealth Processed By:nem General Laws: CHAPTER 40A, Section 3 Page 1 of 3 TN Home Glossary FAQs THE iH9 GENERAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS ite search Options GO Massachusetts Laws Bills State Budget People Committees Reports , Educate&Engage Events 1 MyLegislature Home Bills&Laws Laws General Laws PART I TITLE VII CHAPTER 40A Section 3 Massachusetts Laws General Laws Print Page Massachusetts Constitution PART I ADMINISTRATION OF THE GOVERNMENT General Laws NEXT j Session Laws TITLE VII CITIES,TOWNS AND DISTRICTS RUIBS PREV NEXT CHAPTER 40A ZONING PREY NEXT Section 3 Subjects which zoning may not regulate;exemptions; public hearings;temporary manufactured home residences PREV NEXT Section 3. No zoning ordinance or by-law shall regulate or restrict the use of materials,or methods of construction of structures regulated by the state building code,nor shall any such ordinance or by-law prohibit,unreasonably regulate,or require a special permit for the use of land for the primary purpose of commercial agriculture,aquaculture,silviculture,horticulture, floriculture or viticulture,nor prohibit,unreasonably regulate or require a special permit for the use,expansion,reconstruction or construction of structures thereon for the primary purpose of commercial agriculture,aquaculture,silviculture,horticulture,floriculture or viticulture,including those facilities for the sale of produce,wine and dairy products,provided that either during the months of June,July,August and September of each year or during the harvest season of the primary crop raised on land of the owner or lessee,25 per cent of such products for sale,based on either gross sales dollars or volume,have been produced by the owner or lessee of the land on which the facility is located,or at least 25 per cent of such products for sale,based on either gross annual sales or annual volume,have been produced by the owner or lessee of the land on which the facility is located and at least an additional 50 per cent of such products for sale,based upon either gross annual sales or annual volume, have been produced in Massachusetts on land other than that on which the facility is located, used for the primary purpose of commercial agriculture,aquaculture,silviculture,horticulture, floriculture or viticulture,whether by the owner or lessee of the land on which the facility is located or by another,except that all such activities may be limited to parcels of 5 acres or more or to parcels 2 acres or more if the sale of products produced from the agriculture, aquaculture,silviculture,horticulture,floriculture or viticulture use on the parcel annually generates at least$1,000 per acre based on gross sales dollars in area not zoned for agriculture,aquaculture,silviculture,horticulture,floriculture or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as 1 parcel. No zoning ordinance or by-law shall exempt land or structures from flood plain or wetlands regulations established pursuant to the General Laws. For the purposes of this section,the term"agriculture"shall be as defined in section 1A of chapter 128,and the term horticulture shall include the growing and keeping of nursery stock and the sale thereof.Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises. No zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building nor shall any such ordinance or by-law prohibit,regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or https://malegislature.gov/Laws/GeneralLaws/Parti/TitleVII/Chapter40A/Section3 8/12/2015 General Laws: CHAPTER 40A, Section 3 Page 2 of 3 ' leased by the commonwealth or any of its agencies,subdivisions or bodies politic or by a religious sect or denomination,or by a nonprofit educational corporation; provided,however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes,lot area,setbacks,open space,parking and building coverage requirements. Lands or structures used,or to be used by a public service corporation may be exempted in particular respects from the operation of a zoning ordinance or by-law if,upon petition of the corporation,the department of telecommunications and cable or the department of public utilities shall,after notice given pursuant to section eleven and public hearing in the town or city,determine the exemptions required and find that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public; provided however,that if lands or structures used or to be used by a public service corporation are located in more than one municipality such lands or structures may be exempted in particular respects from the operation of any zoning ordinance or by-law if,upon petition of the corporation,the department of telecommunications and cable or the department of public utilities shall after notice to all affected communities and public hearing in one of said municipalities,determine the exemptions required and find that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public. For the purpose of this section,the petition of a public service corporation relating to siting of a communications or cable television facility shall be filed with the department of telecommunications and cable.All other petitions shall be filed with the department of public utilities. No zoning ordinance or bylaw in any city or town shall prohibit,or require a special permit for, the use of land or structures,or the expansion of existing structures,for the primary, accessory or incidental purpose of operating a child care facility; provided,however,that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes,lot area,setbacks,open space,parking and building coverage requirements.As used in this paragraph,the term"child care facility"shall mean a child care center or a school-aged child care program,as defined in section 1A of chapter 15D. Notwithstanding any general or special law to the contrary,local land use and health and safety laws,regulations,practices,ordinances,by-laws and decisions of a city or town shall not discriminate against a disabled person.Imposition of health and safety laws or land-use requirements on congregate living arrangements among non-related persons with disabilities that are not imposed on families and groups of similar size or other unrelated persons shall constitute discrimination.The provisions of this paragraph shall apply to every city or town, including,but not limited to the city of Boston and the city of Cambridge. Family child care home and large family child care home,as defined in section 1A of chapter 15D,shall be an allowable use unless a city or town prohibits or specifically regulates such use in its zoning ordinances or by-laws. No provision of a zoning ordinance or by-law shall be valid which sets apart districts by any boundary line which may be changed without adoption of an amendment to the zoning ordinance or by-law. No zoning ordinance or by-law shall prohibit the owner and occupier of a residence which has been destroyed by fire or other natural holocaust from placing a manufactured home on the site of such residence and residing in such home for a period not to exceed twelve months while the residence is being rebuilt.Any such manufactured home shall be subject to the provisions of the state sanitary code. No dimensional lot requirement of a zoning ordinance or by-law,including but not limited to, set back,front yard,side yard,rear yard and open space shall apply to handicapped access https://malegislature.gov/Laws/GeneralLaws/Parti/TitleVII/Chapter4OA/Section3 8/12/2015 General Laws: CHAPTER 40A, Section 3 Page 3 of 3 ramps on private property used solely for the purpose of facilitating ingress or egress of a physically handicapped person,as defined in section thirteen A of chapter twenty-two. No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health,safety or welfare. No zoning ordinance or by-law shall prohibit the construction or use of an antenna structure by a federally licensed amateur radio operator.Zoning ordinances and by-laws may reasonably regulate the location and height of such antenna structures for the purposes of health,safety,or aesthetics; provided,however,that such ordinances and by-laws reasonably allow for sufficient height of such antenna structures so as to effectively accommodate amateur radio communications by federally licensed amateur radio operators and constitute the minimum practicable regulation necessary to accomplish the legitimate purposes of the city or town enacting such ordinance or by-law. Show/Hide Site Map I Mass.gov I site Map I Site Policy I contact us Copyright©2015 The General Court,All Rights Reserved https://malegislature.gov/Laws/GeneralLaws/Parti/TitleVII/Chapter4OA/Section3 8/12/2015 General Laws: CHAPTER 40A, Section 9B Page 1 of 1 THF 189TH GENERAL COURT OF Home Glossary FAQs THE COMMONWEALTH OF MASSACHUSETTS site search ~ \�; Options GO Massachusetts Laws Bills State Budget People Committees Reports Educate&Engage Events My Legislature Home Bills&Laws Laws General Laws PART I TITLE VII CHAPTER 40A Section 9B Massachusetts Laws General Laws Print Page Massachusetts Constitution _ PART I ADMINISTRATION OF THE GOVERNMENT General Laws NEXT Session Laws ——'— -- --- — -- ---— TITLE VII CITIES,TOWNS AND DISTRICTS Rules PREV NEXT CHAPTER 40A ZONING PREV NEXT Section 9B Solar access PREV NEXT Section 913.Zoning ordinances or by-laws adopted or amended pursuant to section five of this chapter may encourage the use of solar energy systems and protect solar access by regulation of the orientation of streets,lots and buildings,maximum building height limits, minimum building set back requirements,limitations on the type,height and placement of vegetation and other provisions.Zoning ordinances or by-laws may also establish buffer zones and additional districts that protect solar access which overlap existing zoning districts.Zoning ordinances or by-laws may further regulate the planting and trimming of vegetation on public property to protect the solar access of private and public solar energy systems and buildings. Solar energy systems may be exempted from set back,building height,and roof and lot coverage restrictions. Zoning ordinances or by-laws may also provide for special permits to protect access to direct sunlight r s ght fo solar energy systems.Such ordinances or by-laws may provide that such solar access permits would create an easement to sunlight over neighboring property.Such ordinances or by-laws may also specify what constitutes an impermissible interference with the right to direct sunlight granted by a solar access permit and how to regulate growing vegetation that may interfere with such right.Such ordinances or by-laws may further provide standards for the issuance of solar access permits balancing the need of solar energy systems for direct sunlight with the right of neighboring property owners to the reasonable use of their property within other zoning restrictions.Such ordinances or by-laws may also provide a process for issuance of solar access permits including,but not limited to,notification of affected neighboring property owners,opportunity for a hearing,appeal process and recordation of such permits on burdened and benefited property deeds.Such ordinances or by-laws may further provide for establishment of a solar map identifying all local properties burdened or benefited by solar access permits.Such ordinances or by-laws may also require the examination of such solar maps by the appropriate official prior to the issuance of a building permit. Show/Hide Site Map ' Mass.gov I Site Mao I SitePoli I Contact us Copyright©2015 The General Court,All Rights Reserved https://malegislature.gov/Laws/GeneralLaws/Parti/TitleVII/Chapter4OA/Section9B 8/12/2015 General Laws: CHAPTER 164, Section 1 Page 1 of 8 "t 7H THE 189 GENERAL COURT OF Home Glossary FAQs kite search THE COMMONWEALTH OF MASSACHUSETTS Options GD Massachusetts Laws Bilis State Budget People Committees Reports Educate&Engage Events MyLegislature Home Bills&Laws Laws General Laws PART I TITLE=1 CHAPTER 164 Section 1 Massachusetts Laws General Laws Print Page Massachusetts Constitution PART I �TADMINISTRATION OF THE GOVERNMENT General Laws NEXT Session Laws TITLE XXII CORPORATIONS Rules PREV CHAPTER 164 MANUFACTURE AND SALE OF GAS AND ELECTRICITY ^V _ PREV NEXT Section 1 eDefinitions NEXT j Section 1. In this chapter, unless the context otherwise requires,the following words shall have the following meanings: "Aggregator",an entity which groups together electricity customers for retail sale purposes, except for public entities,quasi-public entities or authorities,or subsidiary organizations thereof,established under the laws of the commonwealth. "Alternative energy development",shall include,but shall not be limited to,solar energy, wind,wood, alcohol, hydroelectric,biomass energy systems,renewable non-depletable and recyclable energy sources. "Alternative energy producer",a person,firm, partnership,association,public or private corporation,or an agency,department,board,commission or authority of the commonwealth or of a subdivision of the commonwealth,that owns or operates a cogeneration facility or small power production facility as defined in this section, and does not engage in the retail sale of electricity other than sales to customers that are within the confines of an industrial park,which existed before March 1, 1982,and in which there existed as of said date electrical generating capacity of more than 15 megawatts. "Alternative energy property",any property powered in whole or in part by the sun,wind, water,biomass,alcohol,wood,or any renewable, non-depletable or recyclable fuel,and property related to the exploration,development,processing,transportation and distribution of the aforementioned energy resources. "Ancillary services",those functions which support generation,transmission,and distribution, and which shall include the following services: (1) reactive power or voltage control; (2)loss compensation; (3)scheduling and dispatch; (4)load following; (5)system protection service; and(6)energy imbalance service. hi-Frio•//m alarriclatnra trnxr/T nxxre/man, rn1T acz7e/PcirtT/TitlpXXTT/(`hantarl,<A/Car`4inn1 R/7rs/1)A1 S General Laws: CHAPTER 164, Section 1 Page 2 of 8 "Articles of organization",(i)the articles of organization of a corporation which were filed after October 1,1973; (ii)an agreement of association, special act of incorporation and other charter documents, including by-law provisions and stockholder votes in effect before October 1, 1973,which,after that date,would be included in articles of organization,and all amendments thereto,effective before October 1, 1973;and(iii)any of the following amendments made or filed from time to time subsequent to October 1, 1973: (1)a certificate of a vote establishing a series filed under section 26 of chapter 1568; (2)articles of amendment filed under section 8B; (3)restated articles of organization filed under section 8C; (4)certificates of confirmation of proceedings filed under section 8D; (5)articles of consolidation or merger filed under section 102A; (6)articles of dissolution filed under section 100 of chapter 1568; (7)a certificate as to the revival of a corporation filed under section 108 of chapter 156B. "Basic service",the electricity services provided to a retail customer upon either: (i)the inability of a customer to receive competitive supply from a supplier under subsection (d)of section 1B; (ii)the failure of the retail customer to elect competitive supply from a supplier under said subsection(d)of said section 113; or(iii)upon the expiration of and the retail customer's failure to renew a competitive supply contract under said subsection(d)of said section 1B or other means. "Cogeneration facility", any electrical generating unit having a power production capacity which,together with any other facilities located at the same site, is not greater than 30 megawatts and which produces electric energy and steam or other form of useful energy utilized for industrial,commercial,heating or cooling purposes,and employs a fuel other than oil as its primary energy source,except that oil may be used: (1) in combination with coal, in a mixture not exceeding 70 per cent oil;or(2)during any modifications to any existing electrical generating facility undertaken for the purpose of enabling such facility to employ, except during any periods of maintenance or repair,a fuel other than oil as its primary energy source; provided,however,that cogeneration facility shall also include any electric generating unit having a power production capacity which,together with any other facilities located at the same site, is not greater than 30 megawatts and which produces electric energy and steam or other form of useful energy utilized for industrial, commercial, heating or cooling purposes that is within the confines of an industrial park, which existed before March 1, 1982 and, in which park there existed,as of said date, electrical generating capacity of more than 15 megawatts,and in which there existed,since said date,a cogeneration facility or a small power production facility. "Contract termination fee",the fees owed by the distribution company to its wholesale power supplier,as determined and approved by the department of public utilities. "Corporation",a corporation to which this chapter applies,as set forth in section 3. "Default Service",the electricity services provided to a retail customer upon: (i)the failure of a distribution company or supplier to provide such electricity services as required by law or as - I iA/n I - General Laws: CHAPTER 164, Section 1 Page 3 of 8 contracted for under the standard service offer; (ii)the completion of the term of the standard service offer; or(iii)the inability of a customer to receive standard service transition rates during the term of the standard service offer under section IB. "Department",the department of public utilities. "Distributed generation", a generation facility or renewable energy facility connected directly to distribution facilities or to retail customer facilities which alleviate or avoid transmission or distribution constraints or the installation of new transmission facilities or distribution facilities. "Distribution",the delivery of electricity over lines which operate at a voltage level typically equal to or greater than 110 volts and less than 69,000 volts to an end-use customer within the commonwealth.The distribution of electricity shall be subject to the jurisdiction of the department of public utilities. "Distribution company",a company engaging in the distribution of electricity or owning, operating or controlling distribution facilities; provided,however,that a distribution company shall not include any entity which owns or operates plant or equipment used to produce electricity,steam and chilled water,or an affiliate engaged solely in the provision of such electricity,steam and chilled water,where the electricity produced by such entity or its affiliate is primarily for the benefit of hospitals and non-profit educational institutions,and where such plant or equipment was in operation before January 1, 1986. "Distribution facility",a plant or equipment used for the distribution of electricity and which is not a transmission facility,a cogeneration facility or a small power production facility. "Distribution service",the delivery of electricity to the customer by the electric distribution company from points on the transmission system or from a generating plant at distribution voltage. "Electric company",a corporation organized under the laws of the commonwealth for the purpose of making by means of water power,steam power or otherwise and for selling, transmitting,distributing,transmitting and selling, or distributing and selling,electricity within the commonwealth,or authorized by special act so to do,even though subsequently authorized to make or sell gas; provided, however,that electric company shall not mean an alternative energy producer; provided further,that a distribution company shall not include an entity which owns or operates a plant or equipment used to produce electricity,steam and chilled water,or an affiliate engaged solely in the provision of such electricity,steam and chilled water,where the electricity produced by such entity or its affiliate is primarily for the benefit of hospitals and nonprofit educational institutions,and where such plant or equipment was in operation before January 1, 1986; and provided further,that electric company shall not mean a corporation only transmitting and selling,or only transmitting, electricity unless such corporation is affiliated with an electric company organized under the laws of the commonwealth for the purpose of distributing and selling,or distributing only, electricity within the commonwealth. "Electric service",the provision of generation,transmission,distribution or ancillary services. "End user",any individual,corporation,firm or subsidiary of a firm that is an ultimate consumer of petroleum products and which,as part of its normal business practices, //'Y_ .._1T _____T_..tT/T'.1_�T�TT?/!'�l____i__.1/A ICI__1*_ ._I nIn /n I General Laws: CHAPTER 164, Section 1 Page 4 of 8 purchases or obtains petroleum products from a wholesaler or reseller and receives delivery of that product. "Energy audit",a determination of the energy consumption characteristics of a building or facility which identifies the type,size and rate of energy consumption of such building or facility and the major energy using systems of such building or facility; determines appropriate energy conservation maintenance and operating procedures;and indicates the need,if any,for the acquisition and installation of energy conservation measures or alternative energy property. "Energy conservation",shall include, but shall not be limited to,the modification of or change in the operation of real or personal property in a manner likely to improve the efficiency of energy use,energy conservation measures and any process to audit or identify and specify energy and cost savings. "Energy conservation measures", measures involving modifications of maintenance and operating procedures of a building or facility and installations therein, which are designed to reduce energy consumption in such building or facility,or the installation or modification of an installation in a building or facility which is primarily intended to reduce energy consumption. "Energy conservation projects",projects to promote energy conservation, including but not limited to,energy conserving modification to windows and doors;caulking and weatherstripping; combined heat and power facilities; insulation; automatic energy control systems; hot water systems; equipment required to operate variable steam,hydraulic and ventilating systems; plant and distribution system modifications including replacement of burners,furnaces or boilers;devices for modifying fuel openings;electrical or mechanical furnace ignition systems; utility plant system conversions; replacement or modification of lighting fixtures; energy recovery systems;and cogeneration systems. "Energy efficiency",the implementation of an action, policy or measure which entails the application of the least amount of energy required to produce a desired or given output. "Energy management services", a program of services,including energy audits,energy conservation measures,energy conservation projects or a combination thereof,and building maintenance and financing services,primarily intended to reduce the cost of energy and water in operating buildings,which may be paid for in whole or in part, by cost savings attributable to a reduction in energy and water consumption which result from such services. "FERC",the federal energy regulatory commission. "Gas company",a corporation organized for the purpose of making and selling or distributing and selling, gas within the commonwealth,even though subsequently authorized to make or sell electricity; provided, however,that gas company shall not mean an alternative energy producer. "Generation",the act or process of transforming other forms of energy into electric energy or the amount of electric energy so produced. "Generation company", a company engaged in the business of producing, manufacturing or generating electricity or related services or products, including but not limited to,renewable energy generation attributes for retail sale to the public. General Laws: CHAPTER 164, Section 1 Page 5 of 8 "Generation facility", a plant or equipment used to produce, manufacture or otherwise generate electricity and which is not a transmission facility. "Generation service",the provision of generation and related services to a customer. "Green building",a building, including but not limited to, homes,offices,schools,and hospitals constructed or renovated to incorporate design techniques,technologies,and materials that lessen its dependence on fossil fuels and minimize its overall negative environmental Impact. "Horizontal market power",a situation in which 1 or a few market participants combined have undue concentration in the ownership of facilities at the same level in the chain of production resulting in the ability to influence price to his or their own benefit. "ISO-NE",the independent system operator for New England. "Mitigation",all actions or occurrences which reduce the amount of money that a distribution company seeks to collect through the transition charge, including those amounts resulting from both matters within the company's control and from matters not wholly within the company's control; provided,however,that mitigation shall, in accordance with section 1G, include, but not be limited to,the following: (1)sales of capacity, energy,ancillary services, reserves,and emission allowances from generating facilities that are wholly or partly owned by the company; (2)sales of capacity,energy,ancillary services, reserves and emission allowances from generating facilities with which the company has a power purchase agreement; (3)adjustments to the company's minimum obligations under purchase power agreements that decrease such obligations,such as those that may be obtained through contract buy-out or renegotiation; (4)residual value; (5)sales and voluntary write downs of company generation- related assets; (6)any market value in excess of net book value associated with the sale, lease,transfer or other use of the assets of the company unrelated to the provision of transmission service or distribution service at regulated prices,including, but not limited to,rights-of-way, property and intangible assets when the costs associated with the acquisition of those assets have been reflected in the company's rates for regulated service; provided,however,that the department of public utilities shall determine the market values based on the highest prices that such assets could reasonably realize after an open and competitive sale; and(7)any allowed refinancing of stranded assets or other debt obligations as provided by law. "Non-renewable energy supply and resource development",shall include, but shall not be limited to,gasoline,natural gas,coal, nuclear energy,offshore and onshore petroleum and facilities related to the exploration,development,processing,transportation and distribution of such resources and programs established for the allocation of supplies of such resources and the development of supply shortage contingency plans. "Petroleum products", propane,gasoline, unleaded gasoline, kerosene, #2 heating oil,diesel fuel, kerosene base jet fuel, and#4, 5 and 6 residual oil for utility and non-utility uses,and all petroleum derivatives,whether in bond or not,which are commonly burned to produce heat, power,electricity or motion or which are commonly processed to produce synthetic gas for burning. ___/T _1T _ rn T/T',I NTNTTT// I I /A/!Y • 1 nlr��I�n� � General Laws: CHAPTER 164, Section 1 Page 6 of 8 "Primary energy source",fuels used,except during periods of maintenance or repair,for the generation of electric energy; provided,however,that primary energy source shall not include the minimum amounts of fuel required for ignition,start-up,testing,flame stabilization, and control uses, and minimum amounts of fuel required to alleviate or prevent unanticipated equipment outages and emergencies declared by the governor,directly affecting the public health, safety and welfare which would result from electric power outages. "Renewable energy", (i)resources whose common characteristic is that they are nondepletable or are naturally replenishable but flow-limited; or(ii)existing or emerging non- fossil fuel energy sources or technologies, which have significant potential for commercialization in New England and New York,and shall include the following: solar photovoltaic or solar thermal electric energy; wind energy; ocean thermal,wave,or tidal energy; geothermal;fuel cells; landfill gas;waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; naturally flowing water and hydroelectric; and low emission advanced biomass power conversion technologies using such fuels such as wood, by-products or waste from agricultural crops,food or animals, energy crops, biogas, liquid biofuel including but not limited to biodiesel,organic refuse- derived fuel,or algae; provided,however,that renewable energy supplies shall not include coal,oil, natural gas except when used in fuel cells,and nuclear power. "Reseller", a person,corporation,firm or subsidiary of any firm that carries on the trade or business of purchasing petroleum products and reselling them without substantially changing their form,or any wholesaler or retail seller of electricity or natural gas. "Residual value",the value of electric company assets, not including the income which may be obtained through generation facility operation. "Retail access",the use of transmission and distribution facilities owned by a transmission company or a distribution company to transmit or distribute electricity from a generation company,supplier or aggregator to retail customers. "Retail customer",a customer who purchases electricity for its own consumption. "Securitization",the use of rate reduction bonds to refinance debt and equity associated with transition costs under section 1H. "Service territory",the geographic area in which a distribution company provided distribution service on July 1, 1997. "Small power production facility",a facility which is any electrical generating unit which produces electric energy solely by the use, as a primary energy source,of biomass,waste, wind,water,wood,geothermal,solar energy or any combination thereof,or produces gas if it is produced from coal,biomass,solid waste or wood,and has a power production capacity which,together with any other facilities located at the same site,is not greater than 30 megawatts. "Steam distribution company",a person,firm,partnership,association or private corporation organized or operating under the laws of the commonwealth with the primary purpose of operating a plant,equipment or facilities for the manufacture, production,transmission, furnishing or distribution of steam to or for the public for compensation within the commonwealth; provided, however,that steam distribution company shall not include: (i)an I i A /n .. i.. ...... General Laws: CHAPTER 164, Section 1 Page 7 of 8 entity producing or distributing steam exclusively on private property and solely for use by the entity or the entity's tenant,and not for distribution or sale;or(ii)a company that produces and sells steam as a by-product of the production of electricity for sale in the wholesale electricity markets and does not own or operate pipelines off site of the generating facility for the distribution of steam. "Supplier",a supplier of generation service to retail customers,including power marketers, brokers and marketing affiliates of distribution companies,except that no electric company shall be considered a supplier. "Supplying electricity in bulk",engaging in the business of making and selling or distributing and selling electricity to electric companies,railroads,street railways or electric railroads, or to municipalities for municipal use or re-sale to their inhabitants,or to persons,associations or corporations under limitations imposed by special law or under section 90 or corresponding provisions of earlier laws. "Transition charge",the charge that provides the mechanism for recovery of an electric company's transition costs. "Transition costs",the embedded costs as determined under section 1H which remain after accounting for maximum possible mitigation,subject to determination by the department of public utilities. "Transmission",the delivery of power over lines that operate at a voltage level typically equal to or greater than 69,000 volts from generating facilities across interconnected high voltage lines to where it enters a distribution system. "Transmission company",a company engaging in the transmission of electricity or owning, operating or controlling transmission facilities; provided, however,that a transmission company shall provide transmission service to all generation companies, municipal lighting plants,suppliers and load aggregators in the commonwealth,whether affiliated or not,on comparable,nondiscriminatory prices and terms,under federal law and regulation. p "Transmission facility", plant or equipment used for the transmission of electricity,as determined by the FERC under federal law and regulation. "Transmission service",the delivery of electricity to a retail customer, supplier,distribution company or wholesale customer by a transmission company. "Unbundled rates", rates designed to separate the costs of providing generation,the costs of transmission and distribution services,and transition and general access charges. "Vertical market power",a situation in which 1 or a few market participants,having joint ownership of facilities at differing levels of the chain of production,such as generation, transmission and distribution,possess the ability to use such joint ownership to influence price to his or their own benefit. "Wholesaler",a person,corporation,firm or any part or subsidiary of any firm which supplies, sells,transfers or otherwise furnishes petroleum products to resellers or end-users. "Wholesale generation company",a company engaged in the business of producing, manufacturing or generating electricity for sale at wholesale only. General Laws: CHAPTER 164, Section 1 Page 8 of 8 Show/Hide Site Map �s Mass.gov I Site Man I Site Policv I Contact Us Copyright©2015 The General Court,All Rights Reserved General Laws: CHAPTER 184, Section 23C Page 1 of 1 p Tm 189'Gua RAL c oun of Home Glossary FAQs THE COMMONWEALTH OF MASSACHUSETTS to search .�. oFsuns M—rhusellft Laes IUDs Su*t3trgget Peapee co==Vmn Repoats Ed=2te a EngWe Everts myt eghlah— Home tfs a Laws Lars General Lzws PART II TrrLE I CHAPTER f 84 Section 23C Asassachusetts I m%s General Laws Massachusetts Constitution Print Page PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS General Laws PREV NEXT Session Laws -- TITLE I TITLE TO REAL PROPERTY Rules NEXT CHAPTER 184 GENERAL PROVISIONS RELATIVE TO REAL PROPERTY PREV NEXT Section 23C Solar energy systems;instaitation or use;restrictive provisions PREV NEXT Section 23C.Any provision in an instrument relative to the ownership or use of real property which purports to forbid or unreasonably restrict the installation or use of a solar energy system as defined in section one A of chapter forty A or the building of structures that facilitate the collection of solar energy shall be void. Stan!Fine site wap MM&MV ISile-Map I Site Contact Us Capyrigft 02015 The General Court,All RWYs Reserved https:Hmalegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapterl 84/Section23C 8/17/2015 General Laws: CHAPTER 25A, Section 3 Page 1 of 3 THE 189 Tx GENERAL COURT OF Home Glossary FAQs THE COMMONWEALTH OF MASSACHUSETTS kite search y Options 00 Massachusetts Laws ■Bills State Budget People Committees Reports , Educate&Engage Events MyLegislature Home Bills&Laws Laws General Laws PART I TITLE II CHAPTER 25A Section 3 Massachusetts Laws General Laws Print Page Massachusetts Constitution PART I ADMINISTRATION OF THE GOVERNMENT General Laws NEXT Session Laws --- _ _ --- ---- --- --- — TITLE II EXECUTIVE AND ADMINISTRATIVE OFFICERS Rules OF THE COMMONWEALTH PREV NEXT CHAPTER 25A DIVISION OF ENERGY RESOURCES '— PREV NEXT Section 3 Definitions PREV NEXT Section 3.For the purposes of this chapter the following words shall have the following meanings:— "Alternative energy development",shall include but not be limited to solar energy,wood, alcohol,hydroelectric,biomass energy systems,renewable non-depletable and recyclable energy sources. "Alternative energy property",any property powered in whole or in part by the sun,wind, water,biomass,alcohol,wood,or any renewable,non-depletable or recyclable fuel,and property related to the exploration,development,processing,transportation and distribution of the aforementioned energy resources.. "Buildingauthority",the University of Massachusetts Building Authority,the State College Y . Y 9 Y. 9 Building Authority or any other building authority which may be established for similar purposes. "Commissioner",the commissioner of energy resources. "Department",the department of energy resources. "Eligible",able to meet all requirements for offerors or bidders set forth in section 11C or 11I and section 44D of chapter 149 and not barred from bidding under section 44C of said chapter 149 or any other applicable law,and who shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work, "End-user",any individual,corporation,firm or subsidiary of any firm that is an ultimate consumer of petroleum products and which,as part of its normal business practices, purchases or obtains petroleum products from a wholesaler or reseller and receives delivery of that product. "Energy audit",a determination of the energy consumption characteristics of a building or facility which: (a)identifies the type,size and rate of energy consumption of such building or facility and the major energy using systems of such building or facility; (b)determines appropriate energy conservation maintenance and operating procedures;and(c)indicates the need,if any,for the acquisition and installation of energy conservation measures or alternative energy property. https://malegislature.gov/Laws/GeneralLaws/Parti/TitleII/Chapter25A/Section3 8/25/2015 General Laws: CHAPTER 25A, Section 3 Page 2 of 3 "Energy conservation",shall include but not be limited to the modification of or change in the operation of real or personal property in a manner likely to improve the efficiency of energy use,and shall include energy conservation measures and any process to audit or identify and specify energy and cost savings. "Energy conservation measures",measures involving modifications of maintenance and operating procedures of a building or facility and installations therein,which are designed to reduce energy consumption in such building or facility,or the installation or modification of an installation in a building or facility which is primarily intended to reduce energy consumption. "Energy conservation projects",projects to promote energy conservation,including but not limited to energy conserving modification to windows and doors;caulking and weatherstripping;insulation,automatic energy control systems;hot water systems; equipment required to operate variable steam,hydraulic and ventilating systems; plant and distribution system modifications,including replacement of burners,furnaces or boilers; devices for modifying fuel openings;electrical or mechanical furnace ignition systems;utility plant system conversions; replacement or modification of lighting fixtures;energy*recovery systems;on-site electrical generation equipment using new renewable generating sources as defined in section 11F;and cogeneration systems. "Energy management services",a program of services,including energy audits,energy conservation measures,energy conservation projects or a combination thereof,and building maintenance and financing services,primarily intended to reduce the cost of energy and water in operating buildings,which may be paid for,in whole or in part,by cost savings attributable to a reduction in energy and water consumption which result from such services. "Energy savings",a measured reduction in fuel,energy,operating or maintenance costs resulting from the Implementation of energy conservation measures or projects;provided, however,that any payback analysis to evaluate the energy savings of a geothermal energy system to provide heating,cooling or water heating over its expected lifespan shall include gas and electric consumption savings,maintenance savings and shall use an average escalation rate based on the most recent information for gas and electric rates compiled by the Energy Information Administration of the United States Department of Energy. "Local governmental body",a city,town,district,regional school district or county,or an agency or authority thereof,including a housing authority,board,commission,department or instrumentality of a city,town district,regional school district or county,and any other agency which is not a state agency or building authority;or a combination of 2 or more such cities, towns,districts,regional school districts or counties,or agencies or authorities thereof. "Marine or hydrokinetic energy",electrical energy from:(a)waves,tides and currents in oceans,estuaries and tidal areas; (b)free-flowing water in rivers,lakes and streams;(c)free- flowing water in man-made channels;or(d)differentials in ocean temperature,called ocean thermal energy conversion. "Minor informalities",minor deviations,insignificant mistakes and matters of form rather than substance of the proposal or contract document which may be waived or corrected without prejudice to other offerors,potential offerors or the public agency. "Non-renewable energy supply and resource development",shall include but not be limited to gasoline,natural gas,coal,nuclear energy,offshore and onshore petroleum,and facilities related to the exploration,development,processing,transportation and distribution of such resources and programs established for the allocation of supplies of such resources and the development of supply shortage contingency plans. https://malegislature.gov/Laws/GeneralLaws/Parti/TitleII/Chapter25A/Section3 8/25/2015 General Laws: CHAPTER 25A, Section 3 Page 3 of 3 "Person",any natural person,business,partnership,corporation,union,committee,club,or other organization,entity or group of individuals. "Petroleum products",propane,gasoline,unleaded gasoline,kerosene,#2 heating oil,diesel fuel,kerosene base jet fuel,and#4,5,and 6 residual oil for utility and non-utility uses,and all petroleum derivatives,whether in bond or not,which are commonly burned to produce heat,power,electricity or motion or which are commonly processed to produce synthetic gas for burning. "Qualified provider",responsible and eligible person able to meet all requirements set forth in section 11C or 11I,and not barred from bidding under section 44C of chapter 149 or any other applicable law and experienced in the design,implementation and installation of energy savings measures. "Reseller",any person,corporation,firm or subsidiary of any firm that carries on the trade or business of purchasing petroleum products and reselling them without substantially changing their form or any wholesaler or retail seller of electricity or natural gas. "Responsible",demonstrably possessing the skill,ability and integrity necessary to faithfully perform the work required by a particular contract,based upon a determination of competent workmanship and financial soundness in accordance with section 11C or 11I and section 44D of chapter 149. "Responsive offeror",a person who has submitted a,proposal which conforms in all respects to the requests for proposals. "State agency",any agency,authority,board,bureau,commission,committee,council, department,division,institution,officer or other agency of the commonwealth,including quasi-public agencies. "Wholesaler",any person,corporation,firm or any part or subsidiary of any firm which supplies,sells,transfers or otherwise furnishes petroleum products to resellers or end-users. Show/Hide Site Map Mass.gov I Site Mao I Site Polity I Contact us Copyright©2015 The General Court,All Rights Reserved https://malegislature.gov/Laws/GeneralLaws/Parti/TitleII/Chapter25A/Section3 8/25/2015 General Laws: CHAPTER 25A, Section 10 Page 1 of 2 p THE 189TH GENERAL COURT OF Home Glossary FAQs THE COMMONWEALTH OF MASSACHUSETTS site search .; I Options GO Massachusetts Laws Bills State Budget People Committees Reports Educate&Engage Events MyLegislature Home Bills&Laws Laws General Laws PART I TITLE II CHAPTER 25A Section 10 Massachusetts Laws General Laws Print Page Massachusetts Constitution PART ADMINISTRATION OF THE GOVERNMENT General Laws I NEXT Session Laws TITLE II EXECUTIVE AND ADMINISTRATIVE OFFICERS i Rules OF THE COMMONWEALTH PREY NEXT CHAPTER 25A DIVISION OF ENERGY RESOURCES PREY NEXT Section 10 Division of green communities; duties of director; program; qualification as a green community; funding; rules; annual report PREV NEXT Section 10. (a)The division of green communities shall assist the commonwealth's municipalities and other local governmental bodies to: reduce energy consumption and costs, reduce pollution,facilitate the development of renewable and alternative energy resources, and create local jobs related to the building of renewable and alternative energy facilities and the installation of energy-efficient equipment.The director of the division shall be responsible for the administration and oversight of the green communities program and shall apply and disburse monies and revenues as provided in this section. (b)The division shall establish a green communities program.The purpose of the program shall be to provide technical and financial assistance, in the form of grants and loans,to municipalities and other local governmental bodies that qualify as green communities under this section.These loans and grants shall be used to finance all or a portion of the costs of studying,designing, constructing and implementing energy efficiency activities,including but not limited to, energy conservation measures and projects; procurement of energy management services; installation of energy management systems; adoption of demand side reduction initiatives; and the adoption of energy efficiency policies.They shall also be used to finance the siting and construction of renewable and alternative energy projects on municipally-owned land. (c)To qualify as a green community,a municipality or other local governmental body shall: (1)file an application with the division in a form and manner to be prescribed by the division; (2) provide for the as-of-right siting of renewable or alternative energy generating facilities, renewable or alternative energy research and development facilities,or renewable or alternative energy manufacturing facilities in designated locations; (3)adopt an expedited application and permitting process under which these energy facilities may be sited within the municipality and which shall not exceed 1 year from the date of initial application to the date of final approval; (4)establish an energy use baseline inventory for municipal buildings, vehicles and street and traffic lighting, and put in place a comprehensive program designed to reduce this baseline by 20 per cent within 5 years of initial participation in the program; (5) https://malegislature.gov/Laws/GeneralLaws/Parti/TitleII/Chapter25A/Sectionl O 8/25/2015 General Laws: CHAPTER 25A, Section 10 Page 2 of 2 • purchase only fuel-efficient vehicles for municipal use whenever such vehicles are commercially available and practicable; and(6)require all new residential construction over 3,000 square feet and all new commercial and industrial real estate construction to minimize, to the extent feasible,the life-cycle cost of the facility by utilizing energy efficiency,water conservation and other renewable or alternative energy technologies.The secretary may waive these requirements based on a written finding that due to unusual circumstances,a municipality cannot reasonably meet all of the requirements and the municipality has committed to alternative measures that advance the purposes of the green communities program as effectively as adherence to the requirements. (d) Funding for the green communities program in any single fiscal year shall be available, without the need for further appropriation,in a total amount of not more than$10 million from: (1)monies generated by all cap and trade pollution control programs, including, but not limited to,the cap and trade program established under the NOx Allowance Trading Program and the carbon dioxide allowance trading mechanism established under the Regional Greenhouse Gas Initiative,as defined in subsection (a)of section 22 of chapter 164; (2)such amounts as may be directed to municipalities or other governmental bodies under section 19 of chapter 25; (3)amounts from alternative compliance payments established and administered under 225 CMR 14.00 adopted under section 11F; and(4) other funds as the governing board of the Massachusetts Renewable Energy Trust Fund established under section 9 of chapter 233, may provide. (e)The division shall adopt rules,regulations and guidelines for the administration and enforcement of this section, including,but not limited to,establishing applicant criteria, funding priority, application forms and procedures,and energy efficiency product requirements.The division shall also adopt regulations providing for a separate green communities program for those communities served by municipal lighting plants that have chosen to adopt the renewable energy charge under section 20 of chapter 25. (f)The division shall annually, not later than April 1,submit a report to the clerks of the senate and the house of representatives,the joint committee on telecommunications, utilities and energy,the joint committee on state administration and regulatory oversight, and the senate and house committees on ways and means detailing the expenditures and results relative to the green communities program. tl "how/Hide Site Map Mass.aov I Site Mao I Site Policy I Contact us Copyright©2015 The General Court,All Rights Reserved https://malegislature.gov/Laws/GencralLaws/Parti/TitleII/Chapter25A/Sectionl O 8/25/2015 t A , _ .. _ INFIRLEM ram , mama MW M ii i �C 1 ,pw _won fw= it t • e bob— A ,lI9fIY =rpaA..';s. _ r w i r. 9 ♦ Jf a.17 •>a t�. e , r1 ?L 4+4 _`i M'Y..•} ..tj -�uY, y�;'�l it�r,.1F' yr -1,s .e s. 3 r f, now T6 I r■. a ��r����,e,���s®�.rr�lPl��� ��- rY����t1E ;� ii.",. .�:� e�;iu �. �•.� a i i Osgood Solar,LLC 1600 Osgood Street North Andover, MA 01845 May 27,2015 Re:Notice of Appearance,Osgood Solar,LLC Dear Chairman Manzi and Members of the Zoning Board of Appeals, The Osgood Solar,LLC Zoning Board of Appeals(ZBA)hearingand related d m attars may be represented by the following legal counsel: Michael D. Rosen, Esq. Ruberto, Israel&Weiner, P.C. 255 State Street, Boston,MA 02109 w Mm Mark C.Kalpin, Esq. WilmerHa[e 60 State Street,Boston,MA 02109 le.om ��76 - — Please contact me with any questions at Respectfully Submitted, Daniel P. Leary,As Agen sgood Solar 1 i MERIDIAN ASSOCIATES VIA: HAND DELIVERY March 20,2015 Ms.Jean Enright Members of the North Andover Planning Board Town of North Andover Planning Department 1600 Osgood Street North Andover,Massachusetts 01845 Re: Application for Plan Approval Osgood Solar,LLC 1600 Osgood Street North Andover,Massachusetts Dear Ms.Jean Enright and Members of the North Andover Planning Board: On behalf of Osgood Solar,LLC.(Applicant),Meridian Associates,Inc.(MAI)is submitting an Application for Plan Approval to the Town of North Andover Planning Board. The locus property(Site) is located within the underlying Industrial 2(I-2)Zoning District and within the Osgood Smart Growth Overlay District(OSGOD).The proposed development is Iocated within two(2)Subdistricts of the OSGOD:Mixed-Use Commercial Development Zone and the Business Opportunity Zone.The parcel is identified on the Town of North Andover Assessor's Map 34 as Lot 17(1600 Osgood Street). The applicant is proposing to install a Six(6)Megawatt(DC)Solar Development on the roof of the existing principal building,and with carports in the northern and southern parking lots. In support of this filing we are providing the following information: • Ten(10)copies of this Cover Letter dated March 20,2015; • Three(3)copies of the Application for Plan Approval dated March 20,2015; • Ten(10)copies of a letter entitled"Supporting Documentation for a Plan Approval"dated March 20,2015; • One(1)original and nine(9)full size copies of the"Ozzy Properties,Inc.,Solar Development" Plan Set(set of 16 sheets)dated March 20,2015; • $TBD check for filing fee;and • $TBD check for Project Review Fee. 500 Cummings Center,Suite 5950 Beverly,Massachusetts 01915 P:(978)299-0447 F:(978)299-0567 www.meridianassoc.com 4 Thank you for your attention to this Application. We look forward to your correspondence to discuss the development options. Please do not hesitate to contact us if you have any questions or require additional information. Sincerely, MERIDIAN ASSOCIATES,INC. i Richard R Waitt,Jr.,PE Principal P.\5723 Ozzy NorthAndover\ADMU�\Rcports\Plan Appmval\5723-Cover Letter(Planning),doc Enclosures cc: Grit Goldstein(Osgood Solar,LLC) Dan Leary(PowerOwners) Town Clerk 2 TO: TOWN OF NORTH ANDOVER PLANNING BOARD FROM: ORIT GOLDSTEIN,PRESIDENT,OZZY PROPERTIES SUBJECT: SUPPORTING DOCUMENTATION FOR PLAN APPROVAL OF A SOLAR PHOTOVOLTAIC CARPORT AND ROOF MOUNT FACILITY WITHIN THE OSGOOD SMART GROWTH OVERLAY DISTRICT(OSGOD) DATE: MARCH 20,2015 . Proiect Obiective: The proposed Solar Photovoltaic Project("Project")shall enhance public health,safety,and welfare by generating onsite clean,renewable energy which directly offsets brown power generated for the electric utility. The project consists of the installation of car canopy and roof-mounted solar modules,both an As-of- Right and Accessory Use to the principal use. To the extent necessary to effectuate project approval,the Applicant hereby requests that the Planning Board waive any requirements of Section 17.0 to the extent inconsistent with GL.40A Section 3. ["Waivers"Section 17.14.1] The Applicant reserves all rights regarding applicable zoning for this land and project,and other land the Applicant owns within the limits of the OSGOD. 17.6.2.1-2 Mixed-Use Development Zone As-of-Right Use The Project supports the transition between primarily residential development and compact,higher density commercial and mixed-use development by incorporating complimentary use of the parking lots with energy-producing shade and weather protection canopies. These amenities have been sought h g Y premier commercial properties,educational campuses,Fortune 500 Companies,and numerous other entities that seek to attract economic and social vitality.They will additionally include LED accent lighting below the canopy which both enhances safety and dramatically enhances the night-time visual appeal to the surrounding activities. The energy-producing shade and weather protective canopies are parking accessory structures. Additionally,there will be rooftop solar on the main building which has been considered accessory equipment in previous installations at this site. 17.6.3.1 Business Opportunity Zone The Project encourages efficient land use and facilitates high-density retail,commercial,industrial development and other commercial projects by offering attractive and accommodating energy-producing shade and weather protection canopies for customers and personnel. The rooftop component of the project will additionally provide a lower solar heat gain,thus reducing the summertime cooling requirement of the building. points from Osgood Street and the internal vehicular circulation will remain.The realignment of the Northern Parking lot provides improved path of travel and maneuverability to access the loading dock. The proposed project will not result in the alteration or removal of existing walkways.No curb cuts are proposed to be removed for this development. (k)Location of Wetlands/Notice of Intent: A wetland delineation was conducted in 2005,and remains valid under the Permit Extension Act(Section 173 of Chapter 240 of the Acts of 2010,as amended). An Abbreviated Notice of Resource Area Delineation(ANRAD)was filed on August 12,2005 by Epsilon Associates,Inc.(DEP File#:242-1336)and the Conservation Commission subsequently issued an Order of Resource Area Delineation(ORAD)on October 19,2005 approving the wetland boundaries for the site following a thorough peer review by Seekamp Environmental Consulting,Inc. The ORAD references ANR.AD Plans prepared by Chas.H.Sells,Inc.dated August 8,2005 and revised September 30,2005 that depict Bordering Vegetated Wetlands(BVW),Isolated Vegetated Wetlands(IVW,both `jurisdictional' and`non jurisdictional'under the Bylaw,but recognizing that the`non jurisdictional' IVWs may be jurisdictional under the Federal Clean Water Act),intermittent streams,perennial streams/Mean Annual High Water and their associated 200-foot Riverfront Areas. A determination of Bordering Land Subject to Flooding(BLSF,concurrent with the 100-year Floodplain)was excluded from the ANRAD/ORAD process. Epsilon then filed a Notice of Intent(NOD Application on March 31,2006 for Vegetation Management on the site,and included the October 19,2005 ORAD and NOI Plans showing the approved Wetland Resource Areas. The Commission subsequently approved the project,and issued an Order of Conditions (OOC)on April 27,2006. Epsilon requested two extensions of the OOC on March 27,2009 and March 31,2010,and the Commission extended the OOC through April 27,2010 and April 27,2011, respectively. Based on a review of the Pen-nit Extension Act(PEA)and discussions with Mass DEP,the OOC remains valid through April 27,2015,and the Wetland Resource Areas established in the ORAD and referenced and depicted on the NOI plans and in OOC also remain valid. (1)Location of Walls/Signs: The proposed project will not result in the alteration or removal of existing walls.The development will not result in proposed signage. m Location of Roadways/Drlves: The proposed project will not result in the alteration or removal of existing roadways or driveways to and from Osgood Street. (r)Drainage Basin Study: The proposed project will be developed on existing bituminous concrete parking areas and on the existing roof of the main building.The existing stormwater management system within the limit of work will remain.Therefore,the proposed improvements will not result in an increase in stormwater runoff rate and volume during the 2, 10,and 100-year storm events. 3 1 -1 Although the project will have little to no visual impacts,the project will have an even greater positive impact on the Town's character. Over the past few years,the state of Massachusetts has created policies and regulations to promote the use of solar renewable energy to combat the effects of climate change. With the approval of this solar development,the Town would be exhibiting a willingness to permit renewable energy projects for the benefit of the Town and the environment while setting an example for residents to take a strong environmental protection stance.The applicant is showing how solar renewable energy can provide fiscal and environmental benefits,creating an ideal situation for all. The solar project could also provide educational opportunities in science,technology,engineering,and mathematics.Educating youth on solar renewable energy could empower them to change and to create more sustainable urban environments for future generations. Environmental Impact Assessment: The proposed development has been carefully designed to ensure that there will be little to no impacts with respect to on-site and off-site environmental quality. Sedimentation control measures are proposed throughout construction to prevent any adverse impacts on the existing stormwater management system. The proposed solar development will be a renewable source of energy with zero emissions and will therefore have no adverse impacts on quality of air.Instead,such projects aim to eliminate other sources of energy that currently produce emissions that negatively affect air quality. The project will not result in any radiological emissions or other hazardous materials. Since trees will be maintained along the edges of the property,no adverse impacts on temperature and wind conditions on adjacent properties are expected. There will also be no impacts on solar access of adjacent properties and zero off-site noise. The proposed development will not require water or sewer services. 5 WILMERHALE MEMORANDUM +1617 526 6176 +1617 526 5000 Date March 18,2015 mark.kalpin@vAlmerhale.com To Orit Goldstein Jeff Goldstein From Mark C.Kalpin Re Osgood Solar/North Andover Zoning Analysis On March 5,2015,we provided Osgood Solar,LLC("Osgood")with an analysis of zoning issues related to Osgood's proposal to develop a solar generation project(the"Project") in North Andover,Massachusetts on property(the"Property")that is owned and/or managed by Ozzy Properties. The Project would consist of roof-top mounted solar panels,carport-mounted solar panels,and/or ground-mounted solar panels,and be located within the I-2 Industrial Zoning District(the 1-2 District")and the Smart Growth Overlay District(the"Overlay District"). On March 9,2015,the Town of North Andover(the"Town")responded to our analysis. Because solar is specifically allowed in the I-2 District under a 2010 amendment to the Town's Zoning Bylaw(the"Amendment"),the Town stated that M.G.L. Chapter 40A,Section 3 ("Section 3")does not apply to the Project. The Town also stated that since the Overlay District had been used at the Property for permitting uses that would not be allowed under the I-2 District,a question existed as to whether the Property owner could use the provisions of either the underlying I-2 District or the Overlay District on a case-by-case basis. After careful consideration,we respectfully disagree with the Town's analysis, and continue.to believe that construction and operation of the Project on the Property is authorized under both Section 3 and the zoning applicable to the Property.' We understand that your consultant,PowerOwners,has reviewed the background history associated with the passage of the Amendment? Based on its review,PowerOwners believes the Amendment was enacted for purposes of clarification(that is,it identifies the types of renewable projects that would or would not be allowed in the I-2 District),as opposed to prohibiting the construction and operation of all renewable projects in the Town except in the I-2 District. t In reaching this conclusion,we note that the Project is proposed only on those portions of the Property that are covered by both the 1-2 District and the Business Opportunity Zone or Mixed-Use Development Zone portion of the Overlay District,and would not be located within the Residential Mixed-Use Zone of the Overlay District. s PowerOwners contacted Curt Bellavance,who was employed by the Town when the Amendment was enacted. Wilmer Cutler Pickering Hale and Don tt.r,60 State Street,Boston,Massachusetts 02109 Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York Oxford Palo Alto Washington ActiveUS 143603531v.3 , WILMERHALE Orit and Jeff Goldstein March 18,2015 Page 2 We agree with the conclusion reached by PowerOwners. Under the Town's interpretation,the only properties in the I-2 District that are large enough to allow a solar project as-of-right under the Amendment consist of(a)the Property,(b)property managed by a quasi-governmental commission for the operation of the Lawrence Municipal Airport,and(c)property managed by the Greater Lawrence Sanitary District for the operation of a wastewater treatment plant. If the Town is correct that any development on the Property can occur only under the provisions of the Overlay District,3 then a solar project would be in Town as-of-right only on property that is owned by a quasi-governmental entity and is dedicated to a public use. We do not believe that such a restriction satisfies the"reasonable regulation"requirement in Section 3. More importantly,it would not comply with the specific caution on this point that was raised by the Massachusetts Attorney General when it approved the Overlay District in 2007 a We also note that the Town's interpretation ignores the fact that the Property owner previously constructed several rooftop solar projects on the Property under the provisions of the Overlay District. Finally,the Town's interpretation of the Amendment raises a serious question as to the legality of other solar projects(such as rooftop projects)that have been constructed in the Town after the enactment of the Amendment. If the Town is correct,these projects should not have been allowed except in an I-2 District—a result which clearly could not have been intended. In light of this,the only reasonable conclusion is that the Amendment was enacted only for purposes of clarification,and not as an absolute prohibition. As such,we continue to believe that the development of the Project is allowed in both the Business Opportunity Zone and Mixed-Use Development Zone portions of the Overlay District.5 3 Although we do not agree with this conclusion,it is not necessary for us to address it in this memorandum. The Massachusetts Attorney General specifically stated that"We next call the town's attention to 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,we remind elle town o the rotections accorded to certain uses under G.L. 40 f P a A,[Section]3. ... This,the town cannot Rmbibi require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.40A Section 3. We caution the Town to [Section] a the ro ased b -law includ� PPIY I t Section X 7.6 4 Ina P P Y including Section consistent with G.I. c.40A,[section/.3."[Emphasis added]. s Because the Project would be located only in the portion of the Property that is covered by both the I-2 District and the Business Opportunity Zone and Mixed-Use Development Zone portions of the Overlay District,there is no need at this time to address the question of whether a property owner can use either the underlying I-2 District zoning or the provisions of the Overlay District on a case-by-case basis. Allowing the Project to proceed as proposed will not create a precedent regarding any future development on the Property,and neither the Property Owner nor the Town will have waived its rights or arguments with respect to this question. ActiveUS 143603531v.3 WILMERHALE MEMORANDUM +1617 526 6176 +1617 526 5000 Date March 5, 2015 markkalpin@wllmerhale.com To Orit Goldstein From Mark C. Kalpin Bob Fitzpatrick Re Osgood Solar/North Andover Zoning Analysis Osgood Solar, LLC("Osgood")is proposing to develop a solar generation project(the"Project") in North Andover,Massachusetts on property(the"Property")that is owned and/or managed by OzzyProperties. As currently proposed,the Project involves the development of roof-top mounted solar panels, carport-mounted solar panels, and ground-mounted solar panels. The Property is located within North Andover's I-2 Industrial Zoning District (the"I-2 District"), and is also within North Andover's Smart Growth Overlay District (the"Overlay District"). This memorandum explains why the use of the Property for the Project is consistent with and entitled to approval under both state law and local zoning law. State Law. The starting point for the analysis is M.G.L. Chapter 40A, Section 3, which provides that"[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare" (hereinafter referred to as "Section 3"). M.G.L. Chapter 40A, Section 1 defines a"Solar Energy System"as "a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or to provide for the collection, storage and distribution of solar energy for space heating or cooling, electricity generating, or water heating." In enacting Section 3,the Legislature incented the development of Solar Energy Systems by shielding them from local zoning prohibitions and unreasonable zoning regulation, except to the extent necessary to protect health, safety or welfare. Osgood's Project falls within the definition of a"Solar Energy System," and thus is entitled to the protection provided by Section 3. See Duseau v. Szawlowski Really, Inc. 12 Misc. 470612 (Mass.Land Ct. Jan. 2, 2015) (reviewing solar farm use relative to Section 3 protection).' t In Duseau,the Town of Hatfield enacted a zoning bylaw that limited the operation of solar projects to industrial zoned areas. Although the proposed solar farm would have been covered by the provisions of Section 3,the Court upheld the Town's bylaw because the project developer had not shown(as required by Section 3)that it prohibited or otherwise unreasonably regulated the operation of the solar farm. As noted below,in this case Section 3 is applicable to the Project because the Town of North Andover has not enacted a solar generation-specific ordinance. Wilmer Cutler Pickering Hale and Dorr u.r,60 Stare Street,Boston,Massachusetts 02109 Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York oxford Palo Alto Washington ActiveUS 142692584v.2 WILMERHALE Ms. Orit Goldstein March 5,2015 Page 2 North Andover's Zoning Bylaw(the"Bylaw")does not expressly provide for uses involving solar energy systems, either as a use allowed as of right, a use allowed only by special permit, or a prohibited use. As a result, Section 3's unambiguous provisions govern, and the use of the Property for the Project is entitled to approval as a matter of state law. The Town's regulatory authority over the Project use, as a zoning matter,reasonably could be expected to extend only to matters such site access, security, emergency access, and the like. North Andover's Overlay District. Osgood's Project also is located in the Business Opportunity and Mixed Use Development Zones of North Andover's Overlay District. Manufacturing—a term not defined in the Bylaw—is allowed as of right in the Business Opportunity Zone. Under Massachusetts law, equipment used for the generation of electric energy,which Osgood has proposed via its solar panels,has long been classified as manufacturing equipment, and the generation of electricity has been treated as a manufacturing process. Thus, Osgood's Project use is allowed as of right in the Business Opportunity Zone. See, e.g., M.G.L. Chapter 164, Section 3 (defining a"Generation facility" as "a plant or equipment used to produce, manufacture or otherwise generate electricity....")? The portion of Project that will be located in the Mixed Use Development Zone will involve installation of carport-mounted solar panels located in parking areas on the Property. These carports and their associated panels will be accessory to the principal use of the property in this district, and should be allowed as an accessory use as provided in either Section 17.6.2.2.15 (As- Of-Right-Uses) or in Section 17.6.2.3.15 (Uses Allowed By Special Permit). North Andover's I-2 District. Osgood's Project also is located in North Andover's I-2 District. Light Manufacturing,which includes manufacturing, fabrication, processing, finishing assembly and packing or treatment of articles or merchandise,is a use allowed as of right in this district provided that it is conducted solely within a building and is not offensive,noxious, detrimental, or dangerous to surrounding areas or the town. As described above, under Massachusetts law the generation of electricity(including by a solar energy system) constitutes manufacturing. Osgood's proposed use is allowed as of right in the I-2 District, subject to the requirement that the use occur in a building. As to the building requirement,the solar energy system constituting the Project consists of fully-contained solar panels and other self-contained equipment,the operation of which would not be offensive, noxious, detrimental or dangerous to surrounding areas or the town. Indeed, enclosure of the system within a building would totally defeat its ability to manufacture electricity, a result which would be unreasonable under Section 3. As a result,the Project arguably satisfies the intent and purpose of the I-2 District's "building" requirement. 2 In our experience,most municipalities(such as the Town of Hatfield in the Duseau case)that have sought to limit the operation of solar projects from a zoning perspective have treated those projects as an industrial or manufacturing use that should be limited to an industrial or commercial zoned area. ActiveUS 142692584v.2 WILMERHALE Ms. Orit Goldstein March 5, 2015 Page 3. Conclusion. The proposed use of the Property for the Project is entitled to approval as a matter of state law. Notwithstanding this fact,the Project use also (a)is allowed as of right in the Business Opportunity Zone portion of the Overlay District, (b) should be allowed as an accessory use(either as-of-right or by special permit).in the Mixed Use Development Zone of the Overlay District, and(c) should be allowed as Light Manufacturing in the I-2 District.. ActiveUS 142692584v.2 N° 359 Date AjT.Ci.k.4��1� r►OH71� TOWN OF NORTH ANDOVER PLANNING DEPARTMENT *�° , '' ''��g RECEIPT CHU This certifies that..Z ...f- ! ............................................... has paid..,..f.1/ for... Lt. 11�i....��..-... .rJO. .... ....P. �M r Received by........ !li"....!�„allr2a..o�......................................... Department...............P').ouc�'................................................ W HTE: Applleant CANARY:Department PINK:Treasurer 53.7055.2113 O PowerOwners, LhC ;��, 857.Turnpike Street,Suite 233 NOth'Andbver,MA 01845 k Z 97 :3 .6680O - QQ 9 Y` y l^ry^ j 'l jkEE I ..r p Ytai i. Salempi e® I 210.ESSKX'STEM�MA 01970 Escrow- -r -4 .2 L L 3 70 5�58i: 0.880:90 2 7 70v 0183 .i a �' '' '• .. 537055.2113` ., �1,"'r-fc F w ` PowerOwners,'LL C w Y 97 Tur�pNg street,Suite 233 ? 1� �! North nitover MA 01845 978 309:6688 714 • '' �-V L� I�Rrl,� '�-i� //LJIJ �� a ,�w:wn � Sale ve® 210 ESSEX- SALBM MA 970 jpi >I::21137055:8:i: 0.8'8090 '274011' 0184 4J M-E-M-O TO: NAJ FROM: Jean Enright,Planning Department Assistant Rhone 978-688-9535;fax 978-688-9542 DATE: SUBJECT: � to OC7 P5e22cri sIlL-rc.lu ike r- Attached is your legal notice. Please take the legal notice to the Lawrence Eagle Tribune located on 100 Turnpike Street,North Andover, MA 01845. Give it to the Legal Notice Department phone#978-946- 2157. The Town of North Andover is not responsible for paying the fee for the legal notice;the applicant is responsible for doing so. The legal notice is time sensitive. Please take it to the Tribune ASAP. Thank you. ATTACHMENT Legal Notice memo je Town of North Andover Office of the Planning Department Community Development and Services Division 1600 Osgood Street '`}°*.;� -• 17 AATt°►��� North Andover,Massachusetts 01845 �ss�CINUIS LEGAL NOTICE TOWN OF NORTH ANDOVER PLANNING BOARD NOTICE OF PUBLIC HEARING In accordance with the provisions of M.G.L. Chapter 40-A, Section 11,the North Andover Planning Board will hold a public hearing as follows: Purpose of Public Hearing: Application for Special Permit—Osgood Smart Growth Overlay District(OSGOD)under sections 10.3 and 17.0 of the North Andover Zoning Bylaw. Applicant proposes to construct rooftop and parking canopy-mounted solar photovoltaic system, 6MW. The applicant proposes 5,500 rooftop mounted solar modules and approximately 14,000 carport canopy mounted solar modules on approximately 21 rows of structures that are approximately 150'— 630' long and 39'wide. The project is within the Industrial 2 Zone and in the Osgood Smart Growth Overlay District. Applicant/Petitioner: Osgood Solar,LLC 1600 Osgood Street North Andover,MA 01845 Owner: 1600 Osgood,LLC 1600 Osgood Street North Andover,MA 01845 Address of Premises Affected 1600 Osgood Street North Andover,MA 01845 Assessors Map and Lot: Map 034.0 Lot 17 Public Hearing Date&Time Tuesday,April 7,2015 @ 7:00 pm. Location of Public Hearing Town Hall 120 Main Street North Andover,MA 2nd Floor Conference Room. Information Available A copy of the plan and application is on file in the Planning Board office at 1600 Osgood Street,North Andover,MA,and may be inspected during regular office hours. Advertised on: March 24 and March 31,2015 All interested persons may appear and he heard.Persons needing special accommodations and/or those interested in viewing the application materials should contact the North Andover Planning Department at(978)688-9535. BOARD OF APPEALS 688-9541 BULLDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Kalp in, Mark From: Dan Leary <dleary@powerowners.com> Sent: Thursday,April 23, 2015 9:31 AM To: jgoldstein5555@gmail.com; Kalpin, Mark; Orit Goldstein Subject: FW: Building Inspector's Decision Attachments: G. Brown Letter to Planning Board.pdf FYI-- From: Kfoury, Eric[mailto:EKfoury@townofnorthandover.com] Sent:Tuesday, March 24, 2015 6:13 PM To:Orit Goldstein; Dan Leary Cc:Maylor,Andrew Subject: Building Inspector's Decision Orit and Dan, Please find attached a determination letter from the Building Inspector to the Planning Board regarding Osgood Solar, LLC Special Permit application dated March 20, 2015. The determination of the Building Inspector is that the project is not a listed use under the Osgood Smart Growth Overlay District(OSGOD) bylaw and,as such, is prohibited. If you have any questions, please feel free to contact me. Regards, Eric J.Kfoury Director,Community and Economic Development Town of North Andover 1600 Osgood Street—Suite 2035 North Andover,MA 01845 Phone 978.688.9533 Fax 978.688.9542 Email ekfourvCeDtownofnorthandover.com Web www.TownofNorthAndover.com 1 TOWN OF NORTH ANDOVER Office of the Building Department q o �-C.2o ,� "ORTIi 4. Community Development and Services .. .6•e 00 1600 Osgood Street, Bldg.20,Suite 2035 North Andover, MA 01845 978-688-9545 ti .VS CH Gerald Brown, Inspector of Buildings March 24,2015 To:Town of North Andover Planning Board Fr: Gerald Brown, Inspector of Buildings Re:Osgood Solar LLC Special Permit—Construct Rooftop and Parking Canopy Mounted Solar Photovoltaic System-19,500 Solar Modules,6 MW.Approximately 5,500 Rooftop Mounted Solar Modules and approximately 14,000 Carport Canopy Modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows, 150-630 feet long. Section 10.1 of the North Andover Zoning Bylaw provides that the Bylaw shall be enforced by the Building Inspector. Based on my review of the application dated March 20, 2015 for a Special Permit I have determined the following: 1. Section 17.3.2 of the Osgood Smart Growth Overlay District(OSGOD)of the Zoning Bylaw states in part: "Within the boundaries of the OSGOD,a developer may elect to either develop a site in accordance with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use,dimension and all other provisions of the Zoning Bylaw governing the underlying zoning districts(s)." On June 17,2014 this site(Assessor Map 34, Parcel 17) received approval of a Special Permit under the OSGOD. 2. The solar installation for purpose of a generating facility,which is being applied for here, is not a listed use under the As-Of-Right Uses allowed (As-Of-Right Uses Section 17.6.1.2) 3. Prohibited Uses(Section 17.6.4)states"All uses not expressly allowed are prohibited." 4. In addition,the application states it is for a "manufacturing" use. In my opinion a solar Installation for purposes of a generating facility for some utility users who are not on the site,it is not "manufacturing" under the OSGOD Bylaw. Sincerely, Gerald Brown Inspector of Buildings Osgood Solar, LLC 1600 Osgood Street North Andover,MA 01845 April 15,2015 Re:Osgood Solar,LLC—Request for Industrial 2 Zoning Pre-Application Approval Dear Mr.Brown, Osgood Solar, LLC("Osgood Solar") is proposing to construct and operate a solar generation project (the"Project")at 1600 Osgood Street(the"Property"). On March 18,2015,Osgood Solar filed an application with the Planning Board for the Project,in which it sought a Plan Approval under the Osgood Overlay District("OSGOD"). In your letter to the Planning Board,dated March 24,2015,you determined that the development of the Project is not allowed as an"As-of-Right"use under the OSGOD. You did not reach a determination as to whether the Project is allowed as an Accessory use under the OSGOD. Osgood Solar disagrees with the determinations in your letter, as well as the omission of a determination as to whether the Project is allowed as an Accessory use under the OSGOD. As required under Section 10 of the Town of North Andover's Zoning Bylaw and applicable law,Osgood Solar will file an appeal of your letter with the Zoning Board of Appeals on or before April 23, 2015. At this time,Osgood Solar proposes to obtain an As-of-Right permit for the Project in the base Industrial 2 District as outlined in Section 4.133 of the Town of North Andover Zoning Bylaw. On April 6,2015,the Assistant Director of Community and Economic Development for the Town of North Andover informed Osgood Solar that it was required to obtain a determination from you that the Project is an allowed use under Section 4.133 before it can file a formal application for the permit. The Project clearly qualifies as an allowed use in the Industrial 2 District. As such,Osgood Solar respectfully requests that you promptly issue a positive determination. Benefits of the Project • The Project will help the Commonwealth of Massachusetts achieve its Greenhouse Gas Emission Reduction requirements under the Global Warming Solutions Act and will produce only positive environmental benefits. • More importantly,the Project will provide significant long-term economic benefits to the Town,which include the payment of real property taxes,the realization of substantial savings to the Town on its municipal electric bill,and the construction of improvements to the Property that are consistent with existing uses and will help attract additional tenants to the Property. • We anticipate that the immediate economic value of the Project to the Town will be several hundred thousand dollars per year—all without any increase in the Town's expenses. ActiveUS 144305966v.1 The Proiect is an Allowed Use in the Industrial 2 District • On May 2, 2010,the North Andover Annual Town Meeting adopted an amendment to Section 4.133(the"Amendment')that specifically clarified that renewable energy generation,including but not limited to solar generation,was allowed within the Industrial 2 District provided that minimum lot size requirements were met. • Prior to the Amendment's adoption,solar generation facilities were allowed in the Industrial 2 District as a manufacturing use,and had been installed on the Property. • The Property exceeds the requirement in Section 4.133.1i.b that allows for As-of-Right construction if the Lot has a minimum size of twenty-five(25) acres. • On March 9,2015,the Town Administrator confirmed that construction of the Project was allowed in the base Industrial 2 District. Status of Osgood Solar's Pendine Application under the OSGOD • On March 18,2015 Osgood Solar filed an application with the Planning Board for the Project, in which Osgood Solar sought a plan approval under the Osgood Overlay District("OSGOD"). • In your letter to the Planning Board,dated March 24,2015,you determined that any future development on the Property located with the Business Opportunity Zone portion of the OSGOD,including but not limited to the Project,would be governed exclusively by the provisions of the OSGOD and not the base Industrial 2 District. • Your determination referenced Section 17.3.2 of the Zoning Bylaw,which provides that: o The OSGOD is an overlay district superimposed on all underlying zoning districts.As required by the Enabling Laws,the regulations for use,dimension,and all other provisions of the Zoning Bylaw governing the underlying zoning district(s)shall remain in full force, except for those sites undergoing development pursuant to this Section 17.Within the boundaries of the OSGOD,a developer may elect to either develop a site in accordance with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use,dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). • Your determination that the OSGOD exclusively controls all future development within the Business Opportunity Zone appears to be based on the fact that"[o]n June 17,2014,this site (Assessor Map 34, Parcel 17)received approval of a Special Permit under the OSGOD." • On April 7,2015,Osgood Solar requested permission from the Planning Board to withdraw without prejudice the OSGOD Plan Approval application on the grounds that Osgood Solar intended to appeal your determination. • That request currently is pending before the Planning Board. Development of the Project under the Industrial 2 District Provisions is Not Precluded by the OSGOD • Osgood Solar strongly disagrees with any determination that all future development on the 126 acre portion of its Property located within the Business Opportunity Zone is governed solely by the provisions of the OSGOD simply because a Special Permit was issued for the construction of a 5000 square foot theatre in an existing building on the Property. • Your determination is not consistent with the Commonwealth's Model 4011 Bylaw. ActiveUS 144305966v.1 o The Model Bylaw applies the"future development election" identified in your letter on a Project-by-Project basis,and not a site-by-site basis as does the Town Bylaw. o Because the Model Bylaw defines a Project as a Residential Project or Mixed-use Development Project, it is understandable that the Town would not use the term "Project"in its Bylaw as the OSGOD includes several sub-districts,including the Business Opportunity Zone. o Neither the Town's Zoning Bylaw nor the OSGOD define the word "site." • In your letters dated June 17,2014 and March 24,2015,you incorrectly determined that the word"site"means"Lot"or the entire Business Opportunity Zone portion of the OSGOD. o Your determination is not reasonable. o Asa matter of law,a word(such as"site")cannot have the same meaning as a defined term. Otherwise,the presumption is that the defined term would have been used instead of the word. ■ A word such as"site" must have a different meaning that any term that is defined in the Town's Zoning Bylaw. • The word "site"cannot have the same meaning as the defined term"Lot,"or mean the same thing as an entire sub-district such as the Business Opportunity Zone. o The only reasonable determination—especially given the fact that the Business Opportunity Zone is 126 acres in size,and that an Overlay District such as the OSGOD can be comprised of multiple parcels of property with multiple owners—is that the word"site" means that the specific area of a property on which the proposed project would be conducted. • Determining that the word"site" means the entire Business Opportunity Zone(or even the entire OSGOD)would lead to an absurd result. o The portion of the Property comprising the Business Opportunity Zone portion of the OSGOD is 126 acres in size. o It is unreasonable to conclude that the development of a 5000 square foot project in an existing building would render all future development on the 126 acre Property subject to the OSGOD. o This is especially true since no affirmative election was made at the time the prior application was submitted,and your determination would be binding(without notice) on any future owner of all or any subdivided portion of the Property. • Your determination that the Project is not allowed in the OSGOD is not consistent with the provisions of M.G.L.Chapter 40A,Section 3. o Section 3 provides that"[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy,except where necessary to protect the public health,safety or welfare." o M.G.L.Chapter 40A,Section 1 defines a"Solar Energy System"as"a device or structural design feature,a substantial purpose of which is to provide daylight for interior lighting or to provide for the collection,storage and distribution of solar energy for space heating or cooling,electricity generating,or water heating." ActiveUS 144305966v.1 o In enacting Section 3,the Legislature incented the development of Solar Energy Systems by shielding them from local zoning prohibitions and unreasonable zoning regulation,except to the extent necessary to protect health,safety or welfare. o There is no question that the Land Court would rule that the Project falls within the definition of a"Solar Energy System. See Duseau v.Szaw/owski Realty,Inc. 12 Misc. 470612(Mass. Land Ct.Jan.2,2015)(reviewing solar farm use relative to Section 3). o The Project is subject to the provisions of and the protection provided by Section 3. • Any determination that the Amendment precludes the construction of the Project within the Business Opportunity Zone would violate the provisions of M.G.L.Chapter 40A,Section 3. a Interpreting the Amendment to prohibit the Project in the Business Opportunity Zone would mean that the only properties in the Town that are large enough to allow a solar project As-of-Right consist of(a) property managed by a quasi-governmental commission for the operation of the Lawrence Municipal Airport,and(b) property managed by the Greater Lawrence Sanitary District for the operation of a wastewater treatment plant. o Limiting the future construction of solar generation projects in the Town to only property that is owned by a quasi-governmental entity: . ■ violates the"reasonable regulation" requirement in Section 3, ■ ignores the fact that the Property owner previously constructed several rooftop solar projects on the Property under the provisions of the OSGOD, and • raises a serious question as to whether any other solar project constructed in the Town since 2010(including residential rooftop projects)are legal. o The Project is entitled to the protection provided by Section 3. • Your determination violates the terms of the approval for the OSGOD that were issued by the Massachusetts Attorney General's Office in 2007,and which confirmed that M.G.L.Chapter 40A,Section 3 would continue to apply with the OSGOD. o In its approval,the Massachusetts Attorney General specifically stated that"We next call the town's attention to 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,we remind the town of the protections accorded to certain uses under G.L.c.40A, [Section]3. ... This,the town cannot prohibit require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.40A, [Section]3. We caution the Town to apply the proposed by-law,including Section 17.6.4,in a manner consistent with G.L.c.40A,[section]3." [Emphasis added]. • The Project also qualifies under M.G.L.Chapter 164 as a manufacturing use that is allowed As- of-Right in the Business Opportunity Zone. There is no legal support for your determination otherwise • Finally,your determination also is not consistent with permit authorizations that were granted b the Town after June 17 2014 for new construction activities Y it es on the Property. o Those permits were issued under the base Industrial 2 District. o None of the permits states that the provisions of the OSGOD are applicable. ActiveUS 144305966v.1 In light of the above,Osgood Solar respectfully requests that you determine that the Project is an allowed use in the base Industrial 2 District as specified in Section 4.133 of the Town of North Andover Zoning Bylaw. Respectfully Submitted, Daniel P.Leary,As Agent for Osgood Solar, LLC Attachments 1. WilmerHale memorandum to Orit Goldstein, March 5,2015 2. WilmerHale memorandum to Orit Goldstein, March 18,2015 3. Attorney General comments on OSGOD,October 2,2007 4. Maylor Email Message to Orit Goldstein, March 9,2015 ActiveUS 144305966v.1 WiLMERHALE MEMORANDUM +1 617 628 0176 +1 617 528 5000 oats March S,2015 mark.kalpin�wllmerhala.cam To Orit Goldstein From Mark C.Kalpin Bob Fitzpatrick fe Osgood Solar/North Andover Zoning Analysis Osgood Solar,LLC("Osgood")is proposing to develop a solar generation project(the'Trojeof in North Andover,Massachusetts on property(the"Property")that is owned and/or managed by Ozzy Properties. As currently proposed,the Project involves the development of roof-tap mounted solar panels,carport-mounted solar panels,and ground-mounted solar panels. The Property is located within North Andover's I-2 Industrial Zoning District(the"T-2 District"),and is also within North Andover's Smart Growth Overlay District(the"Overlay District"). This memorandum explains why the use of the Property for the Project is consistent with and entitled to approval under both state law and local zoning law. State Law. The starting point for the analysis is M.G.L.Chapter 40A, Section 3,which provides that"[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health,safety or welfare"(hereinafter referred to as "Section 3'J. M.G.L.Chapter 40A,Section 1 defines a"Solar Energy System"as"a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or to provide for the collection,storage and distribution of solar energy for space heating or cooling„electricity generating,or water heating." In enacting Section 3,the Legislature incepted the development of Solar Energy Systems by shielding them from local zoning prohibitions and unreasonable zoning regulation,except to the extent necessary to protect health,safety or welfare. Osgood's Prroject falls within the definition of a"Solar Energy System,"and thus is entitled to the protection provided by Section 3. See Duseau v.Skaw1owski Realty, Inc. 12 Misc. 470612(Mass.Land Ct.Jan.2,2015)(reviewing solar farm use relative to Section 3 protection).r In Duseau,the Town of Hatfield enacted a zoning bylaw that limited the operation of solar projects to industrial zoned areas. Although the proposed solar farm would have been covered by the provisions of Section 3,the Court upheld the Town's bylaw because the project developer had not shown(as required by Section 3)that it prohibited or otherwise unreasonably regulated the operation of the solar farm. As noted below,in this case Section 3 is applicable to the Project because the Town of North Andover has not enacted a solar generation-specific ordinance. Wilmer Cutler PickeringHale and Dorr w,60 State Street,Boston,Massachusetts 0210 9 Bei)'ing Berfin Boston Brussels Derwer Frankfurt London Los Angeles New York Oxford Palo Alto Washington ActiveUS 142692584v.2 S vvxLlbIERHALE Ms.Orit Goldstein March 5,2015 Page 2 North Andover's Zoning Bylaw(the"Bylaw")does not expressly provide for uses involving solar energy systems,either as a use allowed as of right,a use allowed only by special permit,or a prohibited use. As a result,Section 3's unambiguous provisions govern, and the use of the Property for the Project is entitled to approval as a matter of state law. The Town's regulatory authority over the Project use,as a zoning matter,reasonably could be expected to extend only to matters such site access,security,emergency access,and the like. North Andover's Overlay District: Osgood's Project also is located in the Business Opportunity and Mixed Use Development Zones of North Andover's Overlay District. Manufacturing—a term not defined in the Bylaw is allowed as of right in the Business Opportunity Zone, Under Massachusetts law,equipment used for the generation of electric energy,which Osgood has proposed via its solar panels,has long been classified as manufacturing equipment,and the generation of electricity has been treated as a manufacturing process. Thus,Osgood's Project use is allowed as of right in the Business Opportunity Zone. See, e.g., M.G.L.Chapter 164, Section 3(defining a"Generation facility"as"a plant or equipment used to produce, manufacture or otherwise generate electricity ...:')? The portion of Project that will be located in the Mixed Use Development Zone will involve installation of carport-mounted solar panels located in parking areas on the Property. These carports and their associated panels will be accessory to the principal use of the property in this district,and should be allowed as an accessory use as provided in either Section 17.6.2.2.15 (As- Of-Right-Uses) As-Of-Right Uses)or in Section 17.6.2.3.15(Uses Allowed By Special Permit). North Andover's I-2 District. Osgood's Project also is located in North Andover's I-2 District. Light Manufacturing,which includes manufacturing,fabrication,processing,finishing assembly and packing or treatment of articles or merchandise,is a use allowed as of right in this district provided that it is conducted solely within a building and is not offensive,noxious,detrimental, or dangerous to surrounding areas or the town. As described above,under Massachusetts law the generation of electricity(including by a solar energy system)constitutes manufacturing. Osgood's proposed use is allowed as of right in the 1-2 District,subject to the requirement that the use occur in a building. As to the building requirement,the solar energy system constituting the Project consists of fully-contained solar panels and other self-contained equipment,the operation of which would not be offensive,noxious,detrimental or dangerous to surrounding areas or the town. Indeed,enclostue of the system within a building would totally defeat its ability to manufacture electricity,a result which would be unreasonable under Section 3. As a result,the Project arguably satisfies the intent and purpose of the I-2 District's"building" requirement. 2 In our experience,most municipalities(such as the Town of Hatfield in the Duseau case)that have sought to limit the operation of solarprojects from a zoning perspective have treated those projects as an industrial or manufaoturiing use that should be limited to an industrial or commercial zoned area. ActiveM 142692564v.2 i 'W mERHALE Ms. Orit Goldstein March 5,2015 Page 3 Conclusion. The proposed use of the Property for the Project is entitled to approval as a matter of state law. Notwithstanding this fact,the Project use also(a)is allowed as of right in the Business Opportunity Zone portion of the Overlay District,(b)should be allowed as an accessory use(either as-of-right or by special permit)in the Mined Use Development Zone of the Overlay District,and(c)should be allowed as Light Manufacturing in the 1-2 District. AedveUS 142692584x.2 MLMERHALE MEMORANDUM +1017 628 8178 +1817 628 8000 Date March 18,2015 ma&kalpin@vA1rnernale.c= To Orit Goldstein Jeff Goldstein From Mark C.Kalpin Re Osgood Solar/North Andover Zoning Analysis On March 5,2015,we provided Osgood Solar,LLC("Osgood")with an analysis of zoning issues related to Osgood's proposal to develop a solar generation project(the"Project")in North Andover,Massachusetts on property(the"Property'}that is owned and/or managed by Ozzy Properties. The Project would consist of roof-top mounted solar panels,carport-mounted solar panels,and/or ground-mounted solar panels,and be located within the I-2 Industrial Zoning District(the 1-2 District")and the Smart Growth Overlay District(the"Overlay District"). On March 9,2015,the Town of North Andover(the"Town")responded to our analysis. Because solar is specifically allowed in the I-2 District under a 2010 amendment to the Town's Zoning Bylaw(the"Amendment"),the Town stated that M.G.L.Chapter 40A,Section 3 ("Section T)does not apply to the Project. The Town also stated that since the Overlay District had been used at the Property for permitting uses that would not be allowed under the 1.2 District,a question existed as to whether the Property owner could use the provisions of either the underlying I-2 District or the Overlay District on a case-by-case basis. After careful consideration,we respectfully disagree with the Town's analysis,and continue to believe that construction and operation of the Project on the Property is authorized under both Section 3 and the zoning applicable to the Property.' �S pP We understand that your consultant,PowerOwners,has reviewed the background history associated with the passage of theAm ndert.2 Based on its review,ew,PowerOwners believes the Amendment was enacted for purposes of clarification(that is,it identifies the types.of renewable projects that would or would not be allowed in the I-2 District),as opposed to prohibiting the construction and operation of all renewable projects in the Town except in the I-2 District. 1 In reaching this conclusion,we note that the Project is proposed only on those portions of the Property that are covered by both the I-2 District and the Business Opportunity Zone or Mixed-Use Development Zone portion of the Overlay District,and would not be located within the Residential Mixed-Use Zone of the Overlay District. 2 PowerOwners contacted Curt Bellavance,who was employed by the Town when the Amendment was enacted. Wilmer Cutler Pielcering Hale and Dorr LLP,60 Stare Street,Boston,Massachusetts 02109 Bei—prig Berlin Boston Bnsssels Deriver Frankfurt London Los Angeles Now York Oxford Palo Alto Washington ActiveU3143b03S31v.3 WILMEkffiu Orit and Jeff Goldstein March 18,2015 Page 2 We agree with the conclusion reached by PowerOwners. Under the Town's interpretation,the only properties in the I-2 District that are large enough to allow a solar project as-of-right under the Amendment consist of(a)the Property, (b)property managed by a quasi-governmental commission for the operation of the Lawrence Municipal Airport,and(c)property managed by the Greater Lawrence Sanitary District for the operation of a wastewater treatment plant. If the Town is correct that any development on the Property can occur only under the provisions of the Overlay District,3 then a solar project would be in Town as-of-right only on property that is owned by a quasi-governmental entity and is dedicated to a public use, We do not believe that such a restriction satisfies the"reasonable regulation"requirement in Section 3. More importantly,it would not comply with the specific caution on this point that was raised by the Massachusetts Attorney General when it approved the Overlay District in 2007.4 We also note that the Town's interpretation ignores the fact that the Property owner previously constructed several rooftop solar projects on the Property under the provisions of the Overlay District. Finally,the Town's interpretation of the Amendment raises a serious question as to the legality of other solar projects(such as rooftop projects)that have been constructed in the Town after the enactment of the Amendment. If the Town is correct,these projects should not have been allowed except in an I-2 District—a result which clearly could not have been intended. In light of this,the only reasonable conclusion is that the Amendment was enacted only for purposes of clarification,and not as an absolute prohibition. As such,we continue to believe that the development of the Project is allowed in both the Business Opportunity Zone and Mixed-Use Development Zone portions of the Overlay District s 'Although we do not agree with this conclusion,it is not-necessary for as to address it In this memorandum. 4 The Massachusetts Attorney General specifically stated that"We next call the town's attention to 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited In approving Section 17.6.4,we remind the town of the protections accorded to certain uses under G.L.c.40A,[Section]3. ... This,the town cannot prohibit.require a special permit,or unreasonably regulate those uses that are accorded protections under G-L.40A,[Section]3. We caution the Town to apply 1heproposed by-law,!ncludtngSecdon 17.6.4,Ina manner consistent with G.L.c.40A,[section]3."[Emphasis added]. 'Because the Project would be located only in the portion of the Property that is covered by both the I-2 District and the Business Opportune Zone and Mixed-Use Development Zone portions of the Overt District there is no need Opportunity P p a3' tY at this time to address the question of whether a property owner can use either the underlying I-2 District zoning or the provisions of the OverlayDistrict on a case-by-case basis. Allowing the Project to proceed as proposed will not create a precedent regarding any future development on the Property,and neither the Property Owner nor the Town will have waived its rights or arguments with respect to this question. AcdveUS 14360353[v.3 Y THE COMMONWEALTH OF MASSA• TTS OFFICE OF.THE ATTORNfY``UERtkfif- WESTERN MASSACHUSETT:S2 J qNi,4 AN 1' 1350 MAIN STRFF,r SPRrNaHrLD. MASSACHUSETTS 011034Q9:' # MARTHA C OAKLEY la"T.1 P,~;, A•rr tan=Gr:Rm. (41.1)7R -12da !I - - "}''• ' •��1�1'Si;F�'O.Sttlte.11ia.tl8 j October 2,2007 Joyce A.Bradshaw,Town Clerk 120 Main Street North Andover,MA 01845 RE: North Andover Annual Town Meeting of May 149.2007—Case.#4430 Warrant Articles#38,39,47,48,and 49(Generao Warrant Articles#27,28,30,36,and 37(Zoning) Dear Ms.Bradshaw, -- ; $x: �n 49=I refirii wit}C#lie approval of rbcs�}fice the amendments to the town by-laws adopted under these Articles on the warrant for the North Andover annual town meeting that convened on May 14,2007,and the maps pertaining to Articles 28 and 30. rticle 2 - I return with,the approval of this Office the amendments adopted under this Article,except as provided below. The amendments adopted under Article 27 add to the town's zoning by-laws a new Section 17,"Osgood Smart Grvwtfi Overlay District"(OSGOD). The proposed by-law was adopted pursuant to General Laws.Chapter 40R and the regulations adopted thereunder. Cxnaal Laws Chapter 40R allows municipalities to encourage housing production that'is aligned with the principles of "smart growth"and in doing so towns may obtain financial grid other incentives .accorded exclttsiveIy to Smart Growth Zoning Districts. General Laws Chapter 40R prescribes the methods for a town to establish a Smart Growth Zoning District and requires approval by this Office and by the Department of Housing and Community Development(DHCD). We point out that the town must still comply with the provisions of G.L.c.40R,§4(b),by obtaining final approval from DHCD of the"Smart Growth Overlay District." Our approval of the amendmdnts adopted under Article 27 is conditioned upon approval by'DHCD. Thus,the amendments adopted under Article 27 do not take effect unless and until it receives both such approvals and the town clerk posts and publishes the by-law provisions in accordance with G.L.c.40,§32. LVe also , F.WSERMITCHOWPb ITOMTOWNSWorth AndoveAR4430A.D1S, )LTTEST. '"' A True Copy Ply';0.*,41s Town Ole& t t United Statefi bIWIMice 601 F.Supp. 125, 127-28(D.NI 1985)(local zoning regulations -inapplicable to the Postal Service's construction plans). The"State and State instrumentalities are immune ftom municipal zoning regulations,unless a . statute otherwise expressly provides to the contra "Ins ector of Buildin Salem y Salem.State contrary." p •of a m State 1 Colletae.28 Mass.App.Ct.92,95(1989)(The Commonwealth's immunity fiom zoning regulation is ! broader 60 the exempt%ou for as of right uses created in Q.T.,.c.40A,§ 3);Co unty_Camrnissioners of ' Bristol v. -o servation Commissioners of D Sm_ qth,380 Mass.706,748-711 (1980)(neither Horne Rule Amendment or the Zoning Enabling Act changed presumption of state and county immunity from municipal zoning). Thus,we caution the town to apply its requirement for site.plan review for governmental uses in a manner consistent with state and federal law. , We next pall tho towns attention to Section 17,6.2,which pertanis to the Mixed Use l Development Zone of the OSGOD. Section 17,6.2.3(t 1)pertains to uses allowed by special permit in the Mixed-Use Development Zona of the OSGOD and provides that non-profit schools are allowed 'by special permit. 'We also call the town.'$attention to Section 17.6.3.3(5),which allows non-profit schools by special permit in the Business Opportunity Zone. Tit approving these portions of Sections 17.6.2.3(11)and 17.6.3.3 (5),we call the town's attention to the protections accorded to such uses under G.L.c.40A,§3. General Laws Chapter 40A,Section 3,provides in pertinent part: iug... No aan by-law shall prohibit,regulate or restrict the use of land or structuirm for religious purposes cr for educational purposes on land owned or lea t sed by the � cotmnonwealth or any of its agencies,subdivisions.or bodies politic or by a religious sect ; or denomination,or by a nonprofit educational corporation;provided,however,that A , and or$tine s a e b' reasonab regulatio c int the W1 and height of structures and determining yard sizes,lot area,setbacks,open space, and bua7ding coverage requirements.. , . (Emphasis added.) Section 3 provides ex entzptions from local zoning for the use of land or structures for certain educational uses,but authorizes the reasonable regulation of such uses in eight areas. Such uses maybe subject to reasonable regulations pertaining to bulk and height of structures,yard size,lot area, setbacks,open space,parking,and building coverage requirements, As stated in more detail above, G.L.C.40A,§3,provides exemptions for the use of land or structures for certain Thus,if an educational useam educational uses. . enjoys protections under G.L.GLc.40A,§3,it would be inconsistent with state law to prohibit,regulate,or restrict,include requiring. � q tug a s ecial ermit fo P p r such use. • the town must - Therefore, apply Sections 17.6.2.3 and 17.6.3.3 in a'manner consistent with GJ-,c.40A, §3, We next call the town's attention to Section 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,we remind the town of the protections accorded to certain uses and stractures under G.L. c.40A,§3. General Laws 3 3 F:ttJS)~RS�Q�trlwpbITOgITOWNS'North AndQVe6#4430"fS.wpd s 4 , Chapter 40A,Section 3,provides exemptions from local zoning for uses and structures including 1 agricultural uses,-religious uses,educational purposes,and certain day care centers.Thus,the town catmot Prohibit•require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.c.40A, §3. We caution the towel to apply the proposed by-law,includiltg ' Section 17.6.4,in a manlier consistent with G.L,c.40A,§3. We next call the town's attention to Section 17.6.5,which pertains in pertinent part to criteria ; for special permits and provides in as follows; ' i ' 17.6.5,2 The Plan Approval Authority may grant'a Special Permit or other approval within the framework of this Section 17 only after holding a public hearing which must be held within sixty-five(b5)days after the applicant files for such Special Permit or other approval....The Applicant is responsible for transmitting a copy of the application for a Specail Permit or other approval within tweutv-four(24)bolus of the Sling of the { application with the'Town Clerk and(sic]to the Planning Hoard. (Emphasis added) Section 17.6.5.2 requires ail applicant for a special permit or other approval to trauslxrit a copy { of the application to thv Planning Board within 24 hours of filing the applieatioti with the Town Clark, In approving Section 17.6:5.2,we remind the town of the requirements of G.L,c.40A,§9,and f c.40R, § 11. General Laws Chapter 40,Section 9,pertains to special permits slid provides in pertinent part as follows: Erich application for a special permit small be filed by the petitioner-with the city or town clerk and a copy of said application,including the date and time of filing certified by the city or town clerk,shall be filed fo bwitlr by the petitioner with the special permit granting authority. (Bmpbasis added.) General Laws Chapter 40R,Section 11,pertains to applications for approval of sn2art growth projects and provides in pertinent part as follows: c)An application for approval under this section shall be filed by the applicant with the. ..town clerk and a copy of the application including the date of filing certified by the town clerk shall be filed9h_Iwit with the approving authority. General Laws Chapter 40A,Section 9,requires that an applicant file"forthwith"copy of the applicant with the special permit granting authority and c.40R,§ 11,roquires that an applicant file "forthwith"a copy of the application for project approval with the approval authority. We are unable to.find any cases defining"forthwith." According to Mark Bobrowslci,there is no case law construing £ this requirement;however,the Appeals Court has said in the context of the Subdivision Control Law, 1MUSEIiSUtIMUMW61\DOCSITMVNMO th Andover#4430A.OiS.wpd , Kalpin, Mark From: Orit Goldstein <Ogoldstein@ozzyproperties.com> Sent: Monday, March 09, 2015 2:40 PM To: Kalpin, Mark; Dan Leary(dleary@powerowners.com);Jeffrey Goldstein Ogoldstein5555 @gmail.com) Subject: FW: Response Orit Goldstein President OZZY PROPERTIES ZZZ Osgood Landing Phone: 978.681.5004 Ext. 115 1600 Osgood Street Fax:978.681.5109 North Andover, MA 01845 www.ozzyproperties.com Click here to followr{)zzy Properties on Twitter . From: Maylor,Andrew[mailto:amaylor@townofnorthandover.com] Sent: Monday, March 9,2015 8:38 PM To:Orit Goldstein Cc: Dan Leary; Kfoury, Eric Subject: Response Orit, In an attempt to expedite the process, I spoke with Town Counsel directly and he indicated that solar is allowed under the underlying 1-2 district at Osgood Landing. It is my opinion that since the town allows solar at Osgood Landing and in all 1-2 districts,the legal argument made under 40A,Section 3 which provides"no zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar system....."does not pertain,especially since you were involved in creating the 40R zone which did not expressly identify solar as a use. Since the overlay district has already been used at the property for permitting uses that would not be allowed under 1-2,the question now turns to the ability to use either the underlying 1-2 zoning or the provisions of the 40R overlay district on a case by case basis depending on which is more favorable to the property owner. Please have your counsel provide an opinion regarding that question. Regards, Andrew W. Maylor Town Manager Town of North Andover 120 Main Street North Andover,MA 01845 Phone 978.688.9510 Fax 978.688.9556 Email amavlorCcDtownofnorthandover.com Web www.TownofNorthAndover.com 1 _ _ � � F ,� ._ `����V �r�l � r� 2 Kalpin, Mark From: Orit Goldstein <Ogoldstein@ozzyproperties.com> Sent: Tuesday,April 21, 2015 5:25 PM To: Kalpin, Mark;Jeffrey Goldstein Ogoldstein5555@gmail.com) Cc: Dan Leary(dleary@powerowners.com) Subject: FW: Request for I2 Zoning Determination for Osgood Solar Follow Up Flag: Follow up Flag Status: Flagged Orit Goldstein President OZZY PROPERTIES Osgood Landing Phone: 978.681.5004 Ext. 115 1600 Osgood Street Fax:978.681.5109 North Andover, MA 01845 www.ozzyproperties.com Click here to follow Ozzy Properties on Twitter From: Brown,Gerald [mailto:gabrown @townofnorthandover.com] Sent:Wednesday,April 22, 201512:21 AM To: Dan Leary Cc: Enright,Jean; Kfoury, Eric; Maylor,Andrew;Ciofolo,Angela;Orit Goldstein Subject: RE: Request for 12 Zoning Determination for Osgood Solar Dear Dan, According to the Zoning Bylaw of the Town of North Andover a solar generating facility in the Industrial 2 zone is not an allowed use. Thank you, Gerald Brown Inspector of Buildings Town of North Andover From: Dan Leary[mailto:dleary(&powerowners.com] Sent: Thursday, April 16, 2015 8:34 AM To: Brown, Gerald Cc: Enright,Jean; Kfoury, Eric; Maylor,Andrew; Ciofolo, Angela; Orit Goldstein Subject: Request for I2 Zoning Determination for Osgood Solar Hello Gerry, I trust you are well. As we discussed on Tuesday, I have attached a letter that the Osgood Solar development team has compiled to assist with your determination of the solar project under the Industrial 2 District. The planning department 1 has requested this determination in advance of Osgood Solar submitting the permitting application under the 12 zoning. Please feel free to contact me at any time with questions, 978.496.3460. v/r, Dan Daniel P. Leary PowerOwners, LLC 857 Turnpike Street,Suite 233 North Andover, MA 01845 978.496.3460 Direct 978.309.6688 Main All email messages and attached content sent from and to this email account are public records unless qualified as an exemption under the Massachusetts Public Records Law. Visit us online at www.townofnorthandover.com Social Networks twitter.com/north_andover www.facebook.com/northandoverma 2 THE COMMONWEALTH OF MASSA TTS j OFFICE OF mm ATTORNffi` GEfTtk WI?SURN MASSACHUSESZFJ81 TT ( `L.4 AN 11; 03 i 1350 MAIN STREET SPRINGFIELD. MASSACHUSETTS 01103F1 MAMTHAC"OAKLEY t4l.1)7.34-t24a i ATrcRNsY 4r•.�iat.u. MIESA��:�:.;:'`;. ;1,,;n�aDo.state,ilia.11s October 2,2007 Joyce A.Bradshaw,Town Clerk 120 Main Street - North Andover,MA 01845 RE: North Andover Annual Town Meeting of May 14,2007——Case#4430 Warrant Articles#38,39,47,48,and 49(General} Warrant Articles#27,28,30,36,rind 37(Zoning) Dear Ms.Bradshaw, Articles 38.30=�6-37-.38,39; 7 48 ag.–Z i rn witYi the 5pprvvat of this dffice the amendments to the town by laws adopted under these Articles on the warrant for the North Andover annual town meeting that convened on May 14,2007,and the maps pertaining to Articles 28 and 30, ' Article 27- I return with,the approval of this Office the amendments adopted p under this l Article,except as provided below. l The amendments adopted under Article 27 add to the town's zoning by-laws a new Section 17,"Osgood Smart Growth overlay District"(OSGOD). The proposed by-law was adapted Pursuant to General Laws.Chapter 40R and the regulations adopted thereunder. General Laws Chapter 40R allows rays munici aIi p ties to encour a housing ng prodnction that is aligned with the principles of "smart growth"and in doing so towns may obtain financial mid other incentivesaccorded exclusively to Smart Gtowth Zoning Districts. General Taws Chapter 40R prescribes the methods for a town to establish a Smart Growth Zoning District and requires approval by this Off lee and by the Department of Housing and Community Development(DHCD). We point out that the town must still comply with the provisions of G.L.c.4011,§4(b),by obtaining final approval from DHCD of the"Smart Growth.Overlay District." Our approval of the arnchdments adopted under Article 27 is conditioned upon approval byDHCD. Thus,the amendments adopted under Article 27 do not take effect unless and until itreceives both such approvals and the town clerk posts and publishes the by-law provisions in aceordanee with G.L.c.40,§32. We also , Fr1USGI2SIRITGHi81WP6ITOMTOWNSWOrth AndoveM4430A.t?IS.wpd ATTEST. A Tm Ceps► Town Clerk ' f y 3 S United States pglkl�mice 601 F.Supp. 125, 127-28(D.NJ. 1985)(local zDnning regulations inapplicable to the postal Service's construction ) lana. p The"State and State instrumentalities are immune ftom municipal zoning regulations,unless a , statute otherwise expressly provides to the contrary,""htsoector of Buildings of Salem v e S e Col-- lam•28 Mass.App.Ct.92,95(1989)(The Commonwealth's immunity fi•om zoning regulation is broader t6m the exemption for as of right uses created in O.T..c.40A,§ 3); County Commi loners,, f ' Eristal v Conservation tynissioners of Dartmouth 3$0 Mass.706,709-711 (1980)(neither Home Rule Amendment or the Zoning Enabling Act changed presumption of state and county immunity from municipal zoning). Thus,we caution the town to apply its requirement for site.plan review,for governmental uses in a manner consistent with state and federal law. , We next Cali the town's attention to Section 17,6.2,which pertains to`the Mixed-Use 1 Development Zone of the OSGOD. Section 17,6.2,3(1 t)pertains to uses allowed by special permit in the Mined Use Development Zana of the OSGOD and provides that non-profit schools are allowed 'by special permit. 'We also call the town's attention to Section 17.6.3.3(5),which allows non-profit schools by special pennit in the Business Opportunity Zone. Ba approving these portions of Sections 17.b.2.3(11)and 17.6.3.3 (S),we call the town's attention to the protections auccotded to such uses under G.L.c.40A,§3. General Laws Chapter 40A,Section 3,provides in pertinent part: No zoning...by-law shall prohibit,regulate or restrict the use of land or stsuoixnes for • religious purposes or for educational purposes on land owned or leased by the commonwealth or any of Its agencies,subdivisions.or bodies politic or by a religious sect or denomination,or by a nonprofit educational corporation;provided,however,th%t aim , and or struc be b' ct i rea ona 1 re=ulati s cern the bulk and height of structures and determining yard sizes,Jot area,setbacks,opea space,Z& and boding coverage requirements.. . . (Emphasis added.) Section 3 provides exemptions from local zoning for the use of land or structures for certain educational uses,but authorizes the reasonable regulation of such uses in eight areas. Such uses maybe yard si subject to reasonable regulations pertaining to bulk and height of structures, ze,lot area, setbacks,open space,parking,and building coverage requirements, A9 stated in more detail above, G.L.c.40A,§3,provides exemptions for the use of land or structures for certain educational uses. Thus,if-an educational use enjoys protections under G.L.c.40A,§3,it would be inconsistent with state law to prohibit,regulate,or restrict,including requiring a speeialpermit for such use. Therefore, the town must apply Sections 17.6.2.3 and 17.6.3.3 in of manner consistent with G.L,c,40A, §3. We next call the town's attention to Section 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,we remind the town of the protections accorded to certain uses and structures under G.L. c.40A,§3. General Laws t F:'U"RSttZrfCH"'W'6I1DQC31TOWNSWorth MdaY0#4430A.DfS.wpd ` 4 ' Chapter 40A,Section 3,provides exemptions from local zoning for uses and stiuctures including agricultural uses -rail sous usos, ► l� , gh e ,e8ucational purposes,and certain da care centers.Thus the p � Y town ; cannot-mbibit•require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.e 40A, §3. We caution the town to apply the proposed by-law,including ' Section 17.6.4,in a manner consistent with G.L.c.40A,§3. we next can the town's attention to Section 17.6.5,which pertains in pertinentpart to criteria i for special permits and provides in m follows: 17.6.5,2 The Plan Approval Autbority may gmnt'a Special Permit or other approval within the framework of this Section 17 only after holding a public hearing which must be held within sixty-five(65)days after the applicant files for such Special Permit or other approval.,..The Applicant is responsible for transmitting a copy of the application for a SPecail Permit or other approval xylthin _f of the 61ing of the ; application with the'Town Clerk and[sic)to the Planning Board. (Emphasis added) Section 17.6.5.2 requires ail applicant for a special permit or other approval to transmit a copy {{ of the application to the Planning Board within 24 hours of filing the application with the Town Clerk, I In approving Section 17.6;5.2,we remind the town of the requirements of G.L,c.40A,§9,and 1 o.40R;§ 11. General Laws Chapter 40,Section 9,pertains to special permits acid provides in pertinent part as follows. FAch application for a special permit shall be filed by the petitioner.with the city or town clerk and a copy of said application,including the date and time of filing certified by the city or town clerk,shall be filed fog hwi izt by the petitioner with the special parfait granting authority. i (Emphasis added.) General haws Chapter 40R,Section 11,pertains to applications for approval of smart growth projects and provides in pertinent partas follows: c)Az application for approval under this section shall be filed by€ho applicant with the..,town cleric and a copy of the application including the date of filing certified by the town clerk shall be filed AMWIlb with the approving authority. General Laws Chapter 40A,Section 9,requires that an applicant file"forthwith"copy of the applicant with the special permit granting authority and c.40R,§ 11,roquires that an applicant file "forthwith"a copy of the appHcatlon for project approval with the approval authority. We are unable to find any cases defining"forthwith." According to Mark Bobrowsid,there is no case law construing ' this regnirelncnt;however,the Appeals Court has said in the context of.the Subdivision Control Law, ":WSE*WITCkUL'NWP61=CSTOwW4"ING"h Mdow0#4430A.M.wpd s Abutter to Abutter( ) Building Dept. ( ) Conservation ( X ) Zoning ( ) Town of North Andover Abutters Listing REQUIREMENT. MGL 40A,Section 11 states in part"Parties in Interest as used in this chapter shall mean the petitioner, abutters,owners of land directly oppositeon any public or private way,and abutters to abutters within three hundred(300)feet of the pwperty line of the petitioner as they appear on the most recent applicable tax list,not withstanding that the land of any such owner is located in another city or town,the planning board of the city or town,and the planning board of every abutting city or town." Subiect Property, MAP PARCEL Name Address 34 17Ozzy Properties 1600 Osgood Street,North Andover,MA 01845 Abutters Properties Map Parcel Name Address 34 1 ✓Tyler Monroe 100 Foster Street,North Andover,MA 01845 34 2 BEM Realty 1635 Osgood Street,North Andover,MA 01845 34 3 ✓1627 Realty Trust 1627 Osgood Street,North Andover,MA 01845 34 4 ✓1591 Realty Trust 1591 Osgood Street,North Andover,MA 01845 34 7 ;/Service Burry,LLC 1503 Osgood Street,North Andover,MA 01845 34 9&25 /✓Kristen&Lindsay Realty LLC 770 Boxford Street,North Andover,MA 01845 34 10 V Red Barn Trust 1267 Osgood Street,North Andover,MA 01845 34 15 /✓Ozzy Properties 1600 Osgood Street,North Andover,MA 01845 34 16 d Town of North Andover 120 Main Street,North Andover,MA 01845 34 18&21 ✓commonwealth of Massachusetts 100 Cambridge Street,Boston,MA 02202 34 28&44 :/W ark Valentino 1609 Osgood Street,North Andover,MA 01845 34 41 &42 Mirovave Engineering Corp. 1551 Osgood Street,North Andover,MA 01845 34 50 ✓Alabacado Limited P.O.Box 334,North Andover,MA 01845 34 54 Osgood Landing LLC 1600 Osgood Street,North Andover,MA 01845 75 2 Town of North Andover 120 Main Street,North Andover,MA 01845 78 2 North Andover 2004 LLC 1735 Market Street Suite A400,Philadelphia,PA 19103 This certifies that the names app0griria Oft NO records of the ,SSS SSor Certified by: ` /� Osgood Solar, LLC 1600 Osgood Street North Andover, MA 01845 April 15,2015 Re:Osgood Solar,LLC—Request for Industrial 2 Zoning Pre-Application Approval Dear Mr. Brown, Osgood Solar, LLC("Osgood Solar") is proposing to construct and operate a solar generation project (the"Project")at 1600 Osgood Street(the"Property"). On March 18,2015, Osgood Solar filed an application with the Planning Board for the Project, in which it sought a Plan Approval under the Osgood Overlay District("OSGOD"). In your letter to the Planning Board,dated March 24, 2015,you determined that the development of the Project is not allowed as an"As-of-Right" use under the OSGOD. You did not reach a determination as to whether the Project is allowed as an Accessory use under the OSGOD. Osgood Solar disagrees with the determinations in your letter, as well as the omission of a determination as to whether the Project is allowed as an Accessory use under the OSGOD. As required under Section 10 of the Town of North Andover's Zoning Bylaw and applicable law,Osgood Solar will file an appeal of your letter with the Zoning Board of Appeals on or before April 23, 2015. At this time,Osgood Solar proposes to obtain an As-of-Right permit for the Project in the base Industrial 2 District as outlined in Section 4.133 of the Town of North Andover Zoning Bylaw. On April 6,2015,the Assistant Director of Community and Economic Development for the Town of North Andover informed Osgood Solar that it was required to obtain a determination from you that the Project is an allowed use under Section 4.133 before it can file a formal application for the permit. The Project clearly qualifies as an allowed use in the Industrial 2 District. As such,Osgood Solar respectfully requests that you promptly issue a positive determination. Benefits of the Project • The Project will help the Commonwealth of Massachusetts achieve its Greenhouse Gas Emission Reduction requirements under the Global Warming Solutions Act and will produce only positive environmental benefits. • More importantly,the Project will provide significant long-term economic benefits to the Town,which include the payment of real property taxes,the realization of substantial savings to the Town on its municipal electric bill,and the construction of improvements to the Property that are consistent with existing uses and will help attract additional tenants to the Property. • We anticipate that the immediate economic value of the Project to the Town will be several hundred thousand dollars per year—all without any increase in the Town's expenses. ActiveUS 144305966v.1 The Proiect is an Allowed Use in the Industrial 2 District • On May 2, 2010,the North Andover Annual Town Meeting adopted an amendment to Section 4.133(the "Amendment")that specifically clarified that renewable energy generation,including but not limited to solar generation,was allowed within the Industrial 2 District provided that minimum lot size requirements were met. • Prior to the Amendment's adoption,solar generation facilities were allowed in the Industrial 2 District as a manufacturing use,and had been installed on the Property. • The Property exceeds the requirement in Section 4.133.11.1b that allows for As-of-Right construction if the Lot has a minimum size of twenty-five(25) acres. • On March 9,2015,the Town Administrator confirmed that construction of the Project was allowed in the base Industrial 2 District. Status of Osgood Solar's Pending Application under the OSGOD • On March 18,2015 Osgood Solar filed an application with the Planning Board for the Project, in which Osgood Solar sought a plan approval under the Osgood Overlay District("OSGOD"). • In your letter to the Planning Board,dated March 24,2015,you determined that any future development on the Property located with the Business Opportunity Zone portion of the OSGOD,including but not limited to the Project,would be governed exclusively by the provisions of the OSGOD and not the base Industrial 2 District. • Your determination referenced Section 17.3.2 of the Zoning Bylaw,which provides that: o The OSGOD is an overlay district superimposed on all underlying zoning districts.As required by the Enabling Laws,the regulations for use,dimension,and all other provisions of the Zoning Bylaw governing the underlying zoning district(s)shall remain in full force, except for those sites undergoing development pursuant to this Section 17.Within the boundaries of the OSGOD,a developer may elect to either develop a site in accordance with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use,dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). • Your determination that the OSGOD exclusively controls all future development within the Business Opportunity Zone appears to be based on the fact that"[o]n June 17,2014,this site (Assessor Map 34, Parcel 17)received approval of a Special Permit under the OSGOD." • On April 7,2015,Osgood Solar requested permission from the Planning Board to withdraw without prejudice the OSGOD Plan Approval application on the grounds that Osgood Solar intended to appeal your determination. • That request currently is pending before the Planning Board. Development of the Proiect under the Industrial 2 District Provisions is Not Precluded by the OSGOD • Osgood Solar strongly disagrees with any determination that all future development on the 126 acre portion of its Property located within the Business Opportunity Zone is governed solely by the provisions of the OSGOD simply because a Special Permit was issued for the construction of a 5000 square foot theatre in an existing building on the Property. • Your determination is not consistent with the Commonwealth's Model 4011 Bylaw. ActiveUS 144305966v.1 o The Model Bylaw applies the"future development election" identified in your letter on a Project-by-Project basis,and not a site-by-site basis as does the Town Bylaw. o Because the Model Bylaw defines a Project as a Residential Project or Mixed-use Development Project, it is understandable that the Town would not use the term "Project"in its Bylaw as the OSGOD includes several sub-districts,including the Business Opportunity Zone. o Neither the Town's Zoning Bylaw nor the OSGOD define the word "site." • In your letters dated June 17,2014 and March 24,2015,you incorrectly determined that the word"site"means"Lot"or the entire Business Opportunity Zone portion of the OSGOD. o Your determination is not reasonable. o Asa matter of law, a word (such as"site")cannot have the same meaning as a defined term. Otherwise,the presumption is that the defined term would have been used instead of the word. ■ A word such as"site" must have a different meaning that any term that is defined in the Town's Zoning Bylaw. ■ The word "site"cannot have the same meaning as the defined term"Lot,"or mean the same thing as an entire sub-district such as the Business Opportunity Zone. o The only reasonable determination—especially given the fact that the Business Opportunity Zone is 126 acres in size,and that an Overlay District such as the OSGOD can be comprised of multiple parcels of property with multiple owners—is that the word"site" means that the specific area of a property on which the proposed project would be conducted. • Determining that the word "site" means the entire Business Opportunity Zone(or even the entire OSGOD)would lead to an absurd result. o The portion of the Property comprising the Business Opportunity Zone portion of the OSGOD is 126 acres in size. o It is unreasonable to conclude that the development of a 5000 square foot project in an existing building would render all future development on the 126 acre Property subject to the OSGOD. o This is especially true since no affirmative election was made at the time the prior application was submitted,and your determination would be binding(without notice) on any future owner of all or any subdivided portion of the Property. • Your determination that the Project is not allowed in the OSGOD is not consistent with the provisions of M.G.L.Chapter 40A,Section 3. o Section 3 provides that"[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health,safety or welfare." o M.G.L.Chapter 40A,Section 1 defines a"Solar Energy System"as"a device or structural design feature,a substantial purpose of which is to provide daylight for interior lighting or to provide for the collection,storage and distribution of solar energy for space heating or cooling,electricity generating,or water heating." ActiveUS 144305966v.1 o In enacting Section 3,the Legislature incented the development of Solar Energy Systems by shielding them from local zoning prohibitions and unreasonable zoning regulation,except to the extent necessary to protect health, safety or welfare. o There is no question that the Land Court would rule that the Project falls within the definition of a"Solar Energy System. See Duseau v.Szawlowski Realty, Inc. 12 Misc. 470612(Mass. Land Ct.Jan.2,2015)(reviewing solar farm use relative to Section 3). o The Project is subject to the provisions of and the protection provided by Section 3. • Any determination that the Amendment precludes the construction of the Project within the Business Opportunity Zone would violate the provisions of M.G.L. Chapter 40A,Section 3. o Interpreting the Amendment to prohibit the Project in the Business Opportunity Zone would mean that the only properties in the Town that are large enough to allow a solar project As-of-Right consist of(a)property managed by a quasi-governmental commission for the operation of the Lawrence Municipal Airport,and(b) property managed by the Greater Lawrence Sanitary District for the operation of a wastewater treatment plant. o Limiting the future construction of solar generation projects in the Town to only property that is owned by a quasi-governmental entity: ■ violates the"reasonable regulation" requirement in Section 3, ■ ignores the fact that the Property owner previously constructed several rooftop solar projects on the Property under the provisions of the OSGOD, and ■ raises a serious question as to whether any other solar project constructed in the Town since 2010(including residential rooftop projects)are legal. o The Project is entitled to the protection provided by Section 3. • Your determination violates the terms of the approval for the OSGOD that were issued by the Massachusetts Attorney General's Office in 2007,and which confirmed that M.G.L.Chapter 40A,Section 3 would continue to apply with the OSGOD. o In its approval,the Massachusetts Attorney General specifically stated that"We next call the town's attention to 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,we remind the flown of the protections accorded to certain uses under G.L. c.40A, [Section]3, ... This,the town cannot prohibit, require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.40A, [Section]3. We caution the Town to apply the proposed by-law,including Section 17.6.4,in a manner consistent with G.L.c.40A,[section]3." [Emphasis added]. • The Project also qualifies under M.G.L.Chapter 164 as a manufacturing use that is allowed As- of-Right in the Business Opportunity Zone. There is no legal support for your determination otherwise. • Finally,your determination also is not consistent with permit authorizations that were granted by the Town after June 17,2014 for new construction activities on the Property. o Those permits were issued under the base Industrial 2 District. o None of the permits states that the provisions of the OSGOD are applicable. ActiveUS 144305966v.1 In light of the above,Osgood Solar respectfully requests that you determine that the Project is an allowed use in the base Industrial 2 District as specified in Section 4.133 of the Town of North Andover Zoning Bylaw. Respectfully Submitted, tom. Daniel P. Leary,As Agent for Osgood Solar, LLC Attachments 1. WilmerHale memorandum to Orit Goldstein, March 5,2015 2. WilmerHale memorandum to Orit Goldstein, March 18,2015 3. Attorney General comments on OSGOD,October 2,2007 4. Maylor Email Message to Orit Goldstein, March 9,2015 ActiveUS 144305966v.1 WILmmHALE MEMORANDUM +1817 626 6176 +1617 628 6000 Date March 5,2015 mark.kalpingwllmerhale.com To Orit Goldstein From Mark C.Kalpin Bob Fitzpatrick Re Osgood Solar/North Andover Zoning Analysis Osgood Solar,LLC("Osgood")is proposing to develop a solar generation project(the"Project") in North Andover,Massachusetts on property(the"Property")that is owned and/or managed by Ozzy Properties. As currently proposed,the Project involves the development of roof-tap mounted solar panels,carport-mounted solar panels,and ground-rnounted solar panels. The Property is located within North Andover's I-2 Industrial Zoning District(the"I-2 District"),and is also within North Andover's Smart Growth Overlay District(the"Overlay District!"). This memorandum explains why the use of the Property for the Project is consistent with and entitled to approval under both state law and local zoning law. State Law. The starting point for the analysis is M.G.L. Chapter 40A, Section 3,which provides that"[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health,safety or welfare"(hereinafter referred to as "Section 3"). M.G.L.Chapter 40A,Section 1 defines a"Solar Energy System"as"a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or to provide for the collection,storage and distribution of solar energy forace heating g or cooling,electricity generating,or water heating." In enacting Section 3,the Legislature incepted the development of Solar Energy Systems by shielding them from local zoning prohibitions and unreasonable zoning regulation,except to the extent necessary to protect health,safety or welfare. Osgood's Project falls within the definition of a"Solar Energy System,"and thus is entitled to the protection provided by Section 3. See Duseau v.Szawlowskl Realty, Inc. 12 Misc. 470612(Mass.Land Ct.San.2,2015)(reviewing solar farm use relative to Section 3 protection).' t In Duseau,the Town of Hatfield enacted a zoning bylaw that limited the operation of solar projects to industrial zoned areas. Althoughthe proposed solar farm wouldhave been covered by the provisions of Section 3,the Court upheld the Town's bylaw because the project developer had not shown(as required by Section 3)that it prohibited or otherwise unreasonably regulated the operation of the solar farm. As noted below,in this case Section 3 is applicable to the Project because the Town of North Andover has not enacted a solar generation-specific ordinance. Wilmer Cutter Pickering Hale and Dorr LW',60 State Street,Boston,Massachusetts 02109 Beijing Berlin Boston Brussels Deriver Frankfurt London Los Angeles New York Oxford Palo Alto Washington ActiveUS 142692584v.2 WILMERHALE Ms. Orit Goldstein March 5,2015 Page 2 North Andover's Zoning Bylaw(the"Bylaw")does not expressly provide for uses involving solar energy systems,either as a use allowed as of right,a use allowed only by special permit,or a prohibited use. As a result,Section 3's unambiguous provisions govern, and the use of the Property for the Project is entitled to approval as a matter of state law. The Town's regulatory authority over the Project use,as a zoning matter,reasonably could be expected to extend only to matters such site access,security,emergency access,and the like. North Andover's Overlay District. Osgood's Project also is located in the Business Opportunity and Mixed Use Development Zones of North Andover's Overlay District. Manufacturing—a term not defined in the Bylaw is allowed as of right in the Business Opportunity Zone. Under Massachusetts law,equipment used for the generation of electric energy,which Osgood has proposed via its solar panels,has long been classified as manufacturing equipment,and the generation of electricity has been treated as a manufacturing process. Thus,Osgood's Project use is allowed as of right in the Business Opportunity Zone. See, e.g., M.G.L.Chapter 164, Section 3(defining a"Generation facility"as"a plant or equipment used to produce, manufacture or otherwise generate electricity The portion of Project that will be located in the Mixed Use Development Zone will involve installation of carport-mounted solar panels located in parking areas on the Property. These carports and their associated panels will be accessory to the principal use of the property in this district,and should be allowed as an accessory use as provided in either Section 17.6.2.2.15 (As- Of-Right-Uses)or in Section 17.6.2.3.15(Uses Allowed By Special Permit). North Andover's I-2 District. Osgood's Project also is located in North Andover's I-2 District. Light Manufacturing,which includes manufacturing,fabrication,processing,finishing assembly and packing or treatment of articles or merchandise,is a use allowed as of right in this district provided that it is conducted solely within a building and is not offensive,noxious,detrimental, or dangerous to surrounding areas or the town. As described above,under Massachusetts law the generation of electricity(including by a solar energy system)constitutes manufacturing. Osgood's proposed use is allowed as of right in the I-2 District,subject to the requirement that the use occur in a building. As to the building requirement,the solar energy system constituting the Project consists of fully-contained solar panels and other self-contained equipment,the operation of which would not be offensive,noxious,detrimental or dangerous to surrounding areas or the town. Indeed,enclosure of the system within a building would totally defeat its ability to manufacture electricity, a result which would be unreasonable under Section 3. As a result,the Project arguably satisfies the intent and purpose of the I-2 District's"building" requirement. 'In our experience,most municipalities(such as the Town of Hatfield in the Dirseau case)that have sought to limit the operation of solar projects from a zoning perspective have treated those projects as an industrial or manufacturing use that should be limited to an industrial or commercial zoned area. ActiveU5142692584v.2 WILMERHALE Ms.Orit Goldstein March 5,2015 Page 3 Conclusion. The proposed use of the Property for the Project is entitled to approval as a matter of state law. Notwithstanding this fact,the Project use also(a)is allowed as of right in the Business Opportunity Zone portion of the Overlay District, (b)should be allowed as an accessory use(either as-of-right or by special permit)in the Mixed Use Development Zone of the Overlay District,and(c)should be allowed as Light Manufacturing in the I-2 District. AetiveUS 1426925&4v.2 W11MERHAU MEMORANDUM +1617 6266178 +1617 528 5000 Date March 18,2015 markkalpin@vA]merhale.com To Orit Goldstein Jeff Goldstein From Mark C.Kalpin Re Osgood Solar/Nerth Andover Zoning Analysis On March 5,2015,we provided Osgood Solar,LLC("Osgood")with an analysis of zoning issues related to Osgood's proposal to develop a solar generation project(the"Project")in North Andover,Massachusetts on property(the"Property")that is owned and/or managed by Ozzy Properties. The Project would consist of roof-top mounted solar panels,carport-mounted solar panels,and/or ground-mounted solar panels,and be located within the I-2 Industrial Zoning District(the 1-2 District")and the Smart Growth Overlay District(the"Overlay District ). On March 9,2015,the Town of North Andover(the"Town")responded to our analysis. Because solar is specifically allowed in the I-2 District under a 2010 amendment to the Town's Zoning Bylaw(the"Amendment"),the Town stated that M.G.L.Chapter 40A,Section 3 ("Section 3")does not apply to the Project. The Town also stated that since the Overlay District had been used at the Property for permitting uses that would not be allowed under the 1-2 District,a question existed as to whether the Property owner could use the provisions of either the underlying I-2 District or the Overlay District on a case-by-case basis. After careful consideration,we respectfully disagree with the Town's analysis,and continue to believe that construction and operation of the Project on the Property is authorized under both Section 3 and the zoning applicable to the Property.' We understand that your consultant,PowerOwners,has reviewed the background history associated with the passage of the Amendment? Based on its review,PowerOwners believes the Amendment was enacted for purposes of clarification(that is,it identifies the types of renewable projects that would or would not be allowed in the I-2 District),as opposed to prohibiting the construction and operation of all renewable projects in the Town except in the I-2 District. 1 In reaching this conclusion,we note that the Project is proposed only on those portions of the Property that are covered by both the 1-2 District and the Business Opportunity Zone or Mixed-Use Development Zone portion of the Overlay District,and would not be located within the Residential Mixed-Use Zone of the Overlay District. z PowerOwners contacted Curt Bellavance,who was employed by the Town when the Amendment was enacted. Wilmer Cutler Pickering Hale and Dorr rrr,60 State Strect,Boston,Massachusetts 02109 Beiiing earfin Boston Brussels Denver Frankfurt London Los Angeles New York Oxford Palo Alto Washington ActiveUS 143603531v.3 WILMERHALE Orit and Jeff Goldstein March 18,2015 Page 2 We agree with the conclusion reached by PowerOwners. Under the Town's interpretation,the only properties in the I-2 District that are large enough to allow a solar project as-of-right under the Amendment consist of(a)the Property, (b)property managed by a quasi-governmental commission for the operation of the Lawrence Municipal Airport,and(c)property managed by the Greater Lawrence Sanitary District for the operation of a wastewater treatment plant. If the Town is correct that any development on the Property can occur only under the provisions of the Overlay Distriet,3 then a solar project would be in Town as-of-right only on property that is owned by a quasi-governmental entity and is dedicated to a public use. We do not believe that such a restriction satisfies the"reasonable regulation"requirement in Section 3. More importantly,it would not comply with the specific caution on this point that was raised by the Massachusetts Attorney General when it approved the Overlay District in 2007 a We also note that the Town's interpretation ignores the fact that the Property owner previously constructed several rooftop solar projects on the Property under the provisions of the Overlay District. Finally,the Town's interpretation of the Amendment raises a serious question as to the legality of other solar proj ects(such as rooftop projects)that have been constructed in the Town after the enactment of the Amendment. If the Town is correct,these projects should not have been allowed except in an I-2 District—a result which clearly could not have been intended. In light of this,the only reasonable conclusion is that the Amendment was enacted only for purposes of clarification,and not as an absolute prohibition. As such,we continue to believe that the development of the Project is allowed in both the Business Opportunity Zone and Mixed-Use Development Zone portions of the Overlay District.5 'Although we do not agree with this conclusion,it is not necessary for us to address it in this memorandum, "The Massachusetts Attorney General specifically stated that"We next call the town's attention to 17.6.4,which pertains to prohibited uses and provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,we remind the town of the protections accorded to certain uses under G.L.c.40A,[Section]3. ... This,the town cannotru ohibit,require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.40A,[Section]3. We caution the Town to apply the proposed by-law,includingS'ection I7.6.4,in a manner consistent with G.L.c.40A,[section]3."[Emphasis added]. 5 Because the Project would be located only in the portion of the Property that is covered by both the I-2 District and the Business Opportunity Zone and Mixed-Use Development Zone portions of the Overlay District,there is no need at this time to address the question of whether a property owner can use either the underlying 1-2 District zoning or the provisions of the Overlay District on a case-by-case basis. Allowing the Project to proceed as proposed will not create a precedent regarding any future development on the Property,and neither the Property Owner nor the Town will have waived its rights or arguments with respect to this question. ActiveUS 143603331v.3 `l HE COMMONWEALTH OF BASSI a OFFICE OF.THE ` W SURN MASSACHUSEM u,4 A1411: 03 { •1350 MAIN STRUT i SPRINGFIFtLD. WI SSrCHINETTs 01103"]'Q9;�� MARTHA COAKLEY ldl�l� [��,..:��, , (1I.;)7-34-1240[`���rJ1i�.i'�:_e; ,.>;1�'R"S1;E1b0.5t8te.I1fa.113 •i - - i October 2,2007 i • t t . Joyce A.Bradshaw,Town.Clerk , 120 Main Street I North Andover,MA 01845 i • t RE: North Andover Annual Town Meeting of May 14,.2007--Case'#4430 � Warrant Articles##385 39,47,48,and 49(General) Warrant Articles#27 28 30 3 1 - � : , �,a2#d 37(Zoniiu 8) Dear Ms>Bradshaw, Articles ZS 30 3G 98 9-�17 48- d 49=-1 ri;titrrivitYi theppxovai of this dae the amendments to the town by-laws adopted under these Articles on the warrant for the North Andover annual town meeting that convened on May 14,2007,and the maps pertaining to Articles 28 and 30. I Article 27- 1 return with,the approval of this Office the amendments adopted under this s Article,except as provided below. # - i The.amendments adopted under Article 27 add to the town's zoning by-laws a.now Section l 17,"Osgood Smart Growth Overlay District"(OSGOD). The proposed by-law was adopted pursuant to General Laws.Chapter 4011.and the regulations adopted thereunder. Cenral Laws 1 Chapter 40R allows municipalities to encourage housing g production that'is aligned uit1i the principles of � "smart growth"and in doing so towns may obtain fimancial and other incentives.aceorded exclusively to Smart Growth Zoning Districts, Generat Laws Chapter 40R prescribes the methods for a town to establish a Smart Growth Zoning District.and requires approval lay this Office and by the Department of { Housing and Community Development(DHCD), l We point out that the town must still comply with the provisions of G.L.c.40.R, §4(b),by f obtgining final appr©vat from DHCD of the"Smart Growth Overlay District." Our approval of the f arnchdments adopted under Article 27 is conditioned upon approval b�DHCD. Thus,the amendments ` adopted under Article 27 do not take effect unless and lentil it receives both such approvals and the town clerk posts and publishes the by-law provisions in aceordaace with G.L.c>40,§32, We also F,\USCsI29RITGHfE1WP{ITOCSkTOWNSWornh,AodaverU14430A.D15.wpd ATTEST. A A True Copy !�, Town Clerk , - --- ---.•- -._ -... __.._._.•- _.._.T .. .. .......• ni d States Postal Service 601 F.Supp. 125, 127-28(D.NJ. 1985)(local zoning regulations .inapplicable to the Postal Service's construction plans). The"State and State instrumentalities are immune from municipal zoning regulations,unless a , statute otherwise expressly provides to the contra p___l_ contrary,""hispec or of Buildinp-of Salem v Salem state 1 e e 28 Mass.App.Ct.92,95(1989)(The Corbinonwealth's immunity fi'om zoning regulation is broader tliari the exemption for-as Of fight uses created in G.T.,c.40A, § 3);County Commission ers of rystal v Con ery ' n oto nissioners L)f Dar-imo th,380 Mass.706,748-711 (1980)(neither Home Rule Amendment or the Zoning Enabling Act changed presumption of state and county itntnunity from E municipal zoning). Thus,we caution the town to apply its requirement for site.plan review for governmental uses in a mariner consistent with state and federal law, { We next call the town's attention to Section 17.6.2,which pertains to'the Mixed Use f Development Zone of the OSGOD. Section 17.6.2.3(l l)pertains to uses allowed by special permit in tho Mixed-Use Development Zone of the OSGOD and provides that non-profit schools are allowed ' `by special permit. 'We also call the town's attention to Secdon 17.6.3.3(5),which allows non-profit schools by special permit in the Business Opportunity Zoite. Th approving 1 Pp 1;th ese pOrtions of Sec' (11)and 17.6.3.3 (5),we call the town's attention to the protections accorded to such uses i under G.L.c.40A,§3. General Laws Chapter 40A,Section 3,provides in pertinent part. i No son' �.••by-law s hall prohibit,regulate or restrict the Ilse of land or structures for 1 religious purposes or for educational purposes on land owned or leased by the commonwealth-or any of its agencies,subdivisions or bodies politic or by a religious suet of denomination,or by a nonpro.6t educational corporation;provided,however,that WA land or stiuctures xtta be subject io rea oni ble re Mations cancerni the bulk and heightof structures and determining yard sizes,lot area,setbacks,open space, tr kit and j bmilding coverage requirements,. . . s (Emphasis added.) f F Section 3 provides exemptions from,local zariiftg for the use of land or structures for certain � educational rases,but authorizes the reas6nable regulation of such uses in eight areas. Such uses may be j subject to reasonable regulations pertaining to bulk and height of structures,yard size,lot area, y setbacks,open_space,parking,and building;coverage requirements, As stated in more detail above, G.L.c.40A,§3,provides exemptions fox the use Of land or structures for certain educational uses. Thus,if an educational use enjoys protections under G.L.c.40A,§3,it would be inconsistent with 1 state law to prohibit,regulate,or restrict,including requiring a special-permit for such use. The =) the town must apply Sections 17.6.2,3 and 17.6.3.3 in a Therefore, manner consistent with G.L,c. § r We-next call the town's attention to Section 1.7.6.4,which pertains to prohibited uses and E provides that all uses not expressly allowed are prohibited. In approving Section 17.6.4,ive remiud the .i town of the protections accorded to certain uses and structures under G.L. C.40 - - A,§3. General Laws F:1US RnTrCH1MWF61\D0gkT0WhSWuT[h Andovvr\#4434A.0fS.wpd 4 1 F E t. l Chapter 40A,Section 3,provides exemptions fronn local zoning for uses and structures including agricultural uses,-religious uses,educational purposes,and certain day care centers.Thus,the town ' cannot. hi it,require a special permit,or unreasonably regulate those uses that are accorded protections under G.L.c.40A, §3. We caution.the town to apply the proposed by-law,including ' Section 17.6.4,in a manner consistent with G.L,c.40A,§3. i We next Call the town's attention to Section 17.6.5,which pertains in pertinentpart to criteria ' for special permits amid provides in as follows: 17.6.5.2 The Plan Approval Authority may grant-a Special Permit or other approval within the framework of this Section 17 only after holding a public hearing which must be held within sixty-five(65)days after the applicant files for such Special Permit or other i approval.. ..The Applicant is responsible for transmitting a copy of the application for a 1 Specail Permit or other approval within twee -four 24 ears of the Cling of the application with the Town Clerk and[sic)to the Planning Board. (Emphasis added) i 1 Section 17.6.5.2 requires an applicant.for a special permit or other approval to transmit a copy 4 of the application to the Planning Board within 24 hours of filing the spplieatiot4 with the Town Clerk. In approving Section 17.6.5.2,we remind the town of the r€quireinents of G.L.c.41DA,§ 9,and c.40R, § 11. General Laws Chapter 40,Section 9,pertains to special permits avid provides in pertinent part as follows: i Each application for a special permit shall be filed by the petitioner with the city or town clerk and a copy of said application,including the date and time of filing certified by the city or town clerk,shall be filed&hmdt by the petitioner with the special permit granting authority. (Emphasis added.) General haws Chapter 40R,Section 11,pertains to applications for approval of srl�art growth projects and,provides in pertinent part as follows: t c)An application for approval under this section shall be filed by the applicant with the. . .town clerk and a copy of the,application including the date of filing certified by the town clerk shall be filed forthwith with the approving Authority. 1 General Laws Chapter 40A,Section 9,requires that an applicant file"forthwith'copy of the applicant with the special permit granting authority and c.40R,§ 11,requires that an applicant file; j "forthwith"a copy of the application for project approval with the approval authority. We are unable to find any cases defining"forthwith." According to Mark Bobrowski,there is no case law construing this requirement;however,the Appeals Court has said in the context of the Subdivision Control Law, t F:'USFAMITCk1ILAWp61V()CSCTO0 VNSiNorth AndoverV4430A.D.18.wpd c� I } wk-r-:Z,VWPI i 7:IR FM LU ?gl, 3a �itSutidstB+F Orit, In an attempt to expedite the proeet-1,I spoke with Town Counsel directly and he in dicatod that solar Is allowed under the underlying 1-2 district at Osgood Landing.It Is my opffilon that since the town allows solar at 10sZood Landing and in all 1-2 districts,the legal orgument made-under 40A,Section 3 which provides"no toiling ordinance or by-law shall prohibitor wir-aasonably regulate the installation of solar systarm...."does not pertain,especially since you were involved in-treating the 4011 tone which did net expressly Identify solar at,a use. Since the overlay district has alreadybeern used at the property for permitting uses that would not be allowed under 12,the question now turns to the ability to use eitherthe underlying 1-2 zoning or the pfavislons of the 4011 overlay district on a case byt-ata basis depending on which Is more favorable to the properly owner. Please have your coutual provide an opinion regarding that queliffon. Regards, Andrew W.Maylor Town Manager Townal NDdh Andmer 12Omain street Noilb Andover.MA 614145 PlMna 928.688,8310 Fax 978.68&9556 web %ymn�/.Tovjno(NqnhAndayorcam no S i TOWN OF NORTH ANDOVER Office of the Building Department NoarH q Community Development and Services p �tLeo r6Y�0 o � 1600 Osgood Street,Bldg.20,'Suite 2035 ; +- ;- -4 North Andover,MA 01845 978-688-9545 ��SgACHUgB��y it Gerald Brown, Inspector of Buildings March 24,2015 To:Town of North Andover Planning Board Fr:Gerald Brown,Inspector of Buildings Re: Osgood Solar LLC Special Permit—Construct Rooftop and Parking Canopy Mounted Solar Photovoltaic System-19,500 Solar Modules,6 MW.Approximately 5,500 Rooftop Mounted Solar Modules and approximately 14,000 Carport Canopy Modules mounted on structures approximately 39 feet wide comprised of approximately 21 rows,150-630 feet long. Section 10.1 of the North Andover Zoning Bylaw provides that the Bylaw shall be enforced by the Building Inspector. Based on my review of the application dated March 20,2015 for a Special Permit I have determined the following: 1. Section 17.3.2 of the Osgood Smart Growth Overlay District(OSGOD)of the Zoning bylaw states in part: "Withinthe boundaries of the OSGOD,a developer may elect to either develop a site in accordancg with the requirements of this Section 17,or to develop a site in accordance with the requirements of the regulations for use,dimension and all-:other provisions of the Zoning Bylaw governing the underlying zoning districts(s):' On June 17,2014 this site(Assessor Map 34, Parcel 17) received approval of a Special Permit i under the OSGOD. 2. The solar installation for purpose of a generating facility,which is being applied for here, is not a listed use under the As-Of-Right Uses allowed (As-Of-Right Uses Section 17.6.1.2) j 3. Prohibited Uses(Section 17.6.4)states"All uses not expresslyressly allowed are prohibited." . 4. In addition,the application states it is for a manufacturing use. In my opinion a solar ; Installation for purposes of a generating facility for some utility users-who are not on the site, it is not "manufacturing" under the OSGOD Bylaw. I i I Sincerely, Gerald Brown Inspector of Buildings FCEA VED Cir _'LEr CI _ICE Town of North Andover 41 Zoning Board of AppealsqpP , t 23 PH 3. 13 T GDF WN NGRTH ANDD`;i E MASSACH SET i APPLICATION FOR AN APPEAL Notice: Application must be typewritten,completed in full and accompanied with 11 copies of completed application packages as noted in the attached checklist. One copy must be filed with the Town Clerk prior to filing with the Zoning Board of Appeals. All copies must be date stamped by the Town CIerk. 1. Property Location 1600 Osgood Street 2. Zoning District Industrial 2/OSGOD 3.Applicant(s) Osgood Solar, LLC If a Corporation, LLC, Trust or other entity, please provide name of authorized signatory and title Address 1600 Osgood Street Telephone 978.681/5004x115 Email address ogoldstein@ozzyproperties.com 4. Owner of Property 1600 Osgood, LLC Address 1600 Osgood Street Telephone 978.681.5004 x115 5. Attorney or Agent for Applicant Mark C. Kalpin, WilmerHale Address 60 State Street, Boston, MA 02109 Telephone 617.526.6176 6.An Appeal from a Decision or Order of the Building Commissioner is hereby made for relief from the requirements of Sections) 4.133,17.3.2, 17.6.3,and 17.6.4 of the Zoning Ordinance. Osgood Solar requests that the Zoning Board of Appeals find that: (1)the OSGOD Letter and OSGOD Determination of the Building Inspector are final appealable actions, and, if so, the Project is an allowed As-of-Right use under Section 17.6.3.3 of the Zoning Bylaw; and (2) the 1-2 Email and the 1-2 Determination of the Building Inspector are final actions that are appealable, and, if so, the Project is an allowed As-of-Right use under Section 4.133 of the Zoning Bylaw. 7. Description of proposed or existing Building, Lot, Occupancy, Work and/or Uses a. Lot Size appx 5.5M s.f. Building Size appx 400,000 s.f Height ft. appx 12'(canopy) b. Existing Occupancy or Use of each floor Parking canopy solar will cover existing parking lots. Rooftop solar will cover existing roof areas. c. Proposed Work and/or Uses in detail, (attach additional sheets if necessary) 6 MW Solar Photovoltaic Rooftop and Carport Canopy S. If Appealing a Decision or Order of the Building Commissioner, state reasons for the Appeal in detail. (attach additional sheets if necessary) Please see attached letter from Mark Kalpin of WilmerHale 9. If a Site Plan Review is required has the plan been submitted to the Land Use Planner for review? Yes. Currently OSGOD Application is being reviewed 10.If applying for a Variance, state reasons for Variance request in detail (include proof of hardship, See Sec. 29-34). (attach additional sheets if necessary) NIA 11. Have there been any other appeals or a request for a Variance or Special Permit under Zoning for this property? No. If yes, a copy of each decision must be filed with this application. 12. Have there been e any previous building zoning violations, court orders and/or building permits issued at this location? Yes. If so, when? Numerous building permits have been issued to the property owner or tenants at the property since the current owner acquire the property. 13. Is a hearing before any other Town Board required for this use? Yes If yes, please list Planning Boar n Approval A,4thority 14. Signature of Applicants) Date Signature of Owner(s)`—� Date Signature of Representative Dat,> L Please provide Signature Authorization Letter. Every application for an Appeal shall be made on this form,which is the official form of the Zoning Board of Appeals. Every application shall be riled with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish ail supporting documentation mentation with this application. The dated copy of this application received by the Town Clerk or the Zoning Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal nodricatlon. Failure to comply with application requirements,as cited herein and in the zoning Board Rules and Regulations may result in a dismissal by the Zoning Board of this application as incomplete. OSGOOD SOLAR,LLC SIGNATURE AUTHORIZATION LETTER March 17,2015 Town of North Andover 1600 Osgood Street North Andover,MA 01845 RE:SIGNATURE AUTHORIZATION To Whom It May Concern: The personnel below are authorized to sign for all matters relating to Osgood Solar,LLC permitting activities with the Town of North Andover: Ellen Keller,Vice President Commercial Real Estate,Ozzy Properties, Inc. Daniel P. Leary,Member,PowerOwners,LLC For questions related to this matter, please contact Orit Goldstein,Manager,Osgood Solar,LLC at ogoldstein@ozzyproperties.com or 978.423.0202. Signed, Orit Goldstein Manager Osgood Solar,LLC 1600 Osgood Street North Andover,MA 01845 I i tJ s QUITCLAIM DEED i i . LUCENT TECHNOLOGIES INC.,formerly known as NS-MPG Inc.,a corporation duly established under the laws of Delaware,of Murray Hill,New Jersey("Grantor"}, for and in consideration of Thirteen Million Eight Hundred Sixty Five Thousand One Hundred Sixty Eight and No/100 Dollars($13,865,168.00)and other good and valuable consideration,the receipt and sufficiency whereof are hereby acknowledged,hereby grants,with QUITCLAIM COVENANTS,to 1600 Osgood Street LLC,a Massachusetts limited liability company("Grantee'l, having its usual place of business c/o Ozzy Properties,Inc.at 3 Dundee Park,Andover,Massachusetts 01810 the land and the improvements thereon located in North Andover,Massachusetts,commonly known as _... 1600 Osgood Street,more particularly described on Schedule A attached hereto and made a part hereof (the"Property"). . The within conveyance is not d transfer of all or substantially all of the assets of the Grantor located in the Commonwealth of Massachusetts. Subject to and with the benefit of easements,takings,restrictions and aeements of recon f I_. now in force and applicable. d,to the extent [signature on following page] t DE VINE� NIILIMT &BRA,NClF PROFESSIONAL ASSOCIATION 3$ ( 300 BRICKSTONE SQUARE POST OFFICE BOX 1W ANDOVER, MASSACHUSETTS 01810 f. In Witness Whereof,the said Grantor has caused these presents to be signed,acknowledged and e delivered in its name and behalf by Vanessa Scaglione, its Real Estate Vice President,hereto duly authorized,this a JZsj day of August,2003. LUCENT TECHNOLOGIES INC. By- Name: ., y: Name: 0. , R 0. t a�lQ ' Title: r STATE OF NEW JERSEY } )ss. ` COUNTY OF Then personally appeared the above named Vanessa Scaglione,Real Estate Vice President of Lucent Technologies Inc.,a Delaware corporation,and acknowledged the foregoing instnunent to be his/her free act and deed as Real Estate Vice President,and the free act and deed of said corporation before me this aL_day of August,2003. Notary Public [Affix Notary Sear My commission expires: r CherylAlesse Notary Public of New]e" My Commission 60M Mad 20,2007 CwJ S� �.y r SCHEDULE A Those two(2)certain tracts or parcels of land situate in the Commonwealth of Massachusetts,County of Essex and Town of North Andover and located on the westerly side of Osgood Street being more particularly bounded and described as follows: I Parcel One Lots A,B,C,D,E,F,H,K,N,P,V,X and Y shown on a plan entitled"Plan of Land in 1953 Industrial District,North Andover,Mass.,Compiled from Existing Plans,Deeds&Records for Western Electric E , Co.,Inc.,Owner,"dated June 1953 by Ralph B.Brasseur,C.E.recorded with the Essex North District Registry of Deeds as Plan No.2740. Meaning and intending to convey the premises conveyed to Grantor by Deed of AT&T Corp.dated January 31, 1996 and recorded in said Registry of Deeds at Book 4452,Page 178. Parcel Two A certain tract or parcel of land situate in the Commonwealth of Massachusetts;County of Essex and Town of North Andover and located on the westerly side of Osgood Street being more particularly ( bounded and described as follows: Beginning at a stone monument in the westerly line of Osgood Street said stone monument marks the southeast comer of land now or formerly of Western Electric Co.and the northeast corner of the herein described parcel;thence running S 14°36'40"W 384.18 feet by said westerly line of Osgood Street as laid out by the Commonwealth of Massachusetts, 1961 Alteration,to a stone monument;thence turnip and running g southerly,still by said westerly lute of Osgood Street and by a curve of 800.04 feet radius 72.89 feet to a stone monument marking the most northeasterly end of the northerly line of Holt Road as laid out by the Essex County Commissioners in 1960•thence , Cumin and rennin southerly therl and w g y westerly b said northerly Y Y y hne of Holt Road and by a curve of 15 feet radius 21.54 feet to a stone monument;thence turning and running N 84°44' 20"W 256.42 feet to a stone monument;S 860 07'50" W 200.05 feet to a stone monument; S 85° 13'30" o » W 314.80 feet to a stone monument; S 84 50 0 W 211.60 feet to a stone monument;S 75°50' 50"W 95.21 feet to a stone ne monumen S 7337 30" (E 248.94 feet to a stone monument and land now or formerly of D&G Real Estate Trust;the last six W i 6 courses being all b said northerly line o o " Y f Holt Road;thence Y turning and nmrung N 04 13 50 W 378.55 feet by said land of D&G Real Estate Trust to a stone monument at land now or formerly of Western Electric Co.;thence turning and running N 810 57' 20"E 1482 feet by said land of Western Electric Co. ..:: to a stone monument in the westerly line of Osgood Street and point of beginning. Subject to a Taking by the Essex County Commissioners for the relocation of Holt Road dated March 17, 1964 and recorded in said Registry of Deeds at Book 1005,Page 320,and as shown on Plan No.4961. Meaning and intending to convey the premises conveyed to Grantor by Deed of AT&T Corp.dated and recorded in said Registry of Deeds 1247831.3 Town of North Andover Town Clerk Tune Stamp ZONING BOARD OF APPEALS Wvd J.✓Plana!993 6%aA z" �J�£,s�' NORT§j ` �4: 1 ( p C�G�tLJ.✓t'I.L:JI2E(�JLQ� (/ICP.��:��iG!G�IZ�Z .OF,�S�ED �6q�. �� '� C�t'•,f."'`p4.„ Jiefiuvcd `�.13Cym'&4. C� _ - 2 .D..%arse Xa&,c. a&"eu6cia /j� ,,'�,F,, A�q c,c.. ffiKw:.c.. 1• #`l tf i(�! L�T�y�/ aacwe 7 p�R,TED .l fkhaet Y..eipwita �SSACHUS�� ,{✓, �';7 J `.Dene*J&Vw t d lOaag&6 bt4ia Date c>2 3 Town of North Andover Zoning Board of Appeals 1600 Osgood Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance Special Permit Comprehensive Permit(40B) Finding For property located at: STREET: MAP: PARCEL: 1 '2 TOWN: North Andover, MA 01845 TO MEETING DATE(S) �L �� ✓ �p/� NAME OF PETITIO Dsao d J o���. zz(f SIGNED: p e 6/,,g Petitioner(or pe ' oner's representative) 1600 Osgood Street,Building 20-Suite 2035,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandover.com Town of North Andover ZONING BOARD OF APPEALS (U&%t✓..Mani 333, 6g6r wzaa ORTy MaJ.✓{�{.1../I1t*w, vr;7,e- /fa!X{=a O* �t1 ED �6'9 (lq.0 Y cfta%d 1.2cym,£,oq. &zrh o a&""l.U/Jn--_ nO ebb �"""" Cia ✓tkfiad J..('apada Doug bid yin Town Clerk Time Stamp Date: 0,,,7 �o Town of North Andover Zoning Board of Appeals 1600 Osgood Street North Andover MA 01845 Please be advised that I wish to: Withdraw my 19, 109/9L Variance Special Permit Comprehensive Permit(40B) Finding Petition without prejudice from the North Andover Zoning Board of Appeals agenda for property located at: �^ STREET: /6 O D S v O iq MAP(S): c.-7 PARCELS(S): TOWN: North Andover, MA 01845 NAME OF PETITIONER_ O'S9000 Sa J a r G SIGNED: Petitioner(or petitioner's representative) 1600 Osgood St.,Bldg 20-Suite 2035,North Andover,MA 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandover. r Town of North Andover � .•' tfime Stamp ZONING BOARD OF APPEAL10/�., affied 9..Marvzi 999,&q. e ari=afl VtORTFf - Wm J.Atautpe, vice-6W== oast, , 'lti A � ouPas Cudgirz / fl'T 11,4 Argo `-)mecy J&gatitPiaB �4SSACHU`����y JV.athm we4 ei& Date _ y Town of North Andover Zoning Board of Appeals 1600 Osgood Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance Special Pennit C m rehensive Permit(40B) @ Finding 0 � /gP�C� For prop ca ed at: JUL J e � ; STREET: ��o C?0 �S' OC1� �� 9 BARD OF APPEALS MAP: PARCEL: TOWN: North Andover, MA 01845 TO MEETING DATE(S) �S ,A/1l ze"5'z A�O/•5 NAME OF PETITIO . )2 Z ������--Z`;L' S do' SIGNED: S G 5 C1_ Petitioner(or P/04 tioner's representative) 1600 Osgood Street,Building 20-Suite 2035,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 Web-wwww.townofnorthandover.com Town of North Andover Town Clerk Time Stamp j ZONING BOARD OF APPEALS aamwY.,✓/u�ll7�/7a✓`J/j, 6q. e,Iglllnilloz NORTH C CMG✓✓f L(a/' {Zf(�1Le, (/LCB-(/[ltUl/nlr/Z 0 %-!o '6"�ti O 1I.JauB9fac%�i�, �a� ~ t 70 MW(?lIOC!!x 4ED ?o ea -9meg✓l i .Nactficut WeinneicPi [ ea-andiia Cl.jaco& &q. TOWN OF NORTH ANDOVER—ZONING BOARD OF APPEALS CERTIFICATION PURSUANT TO G.L. c. 39, SECTION 23D OF PARTICIPATION IN A SESSION OF AN ADJUDICATORY HEARING WHERE THE UNDERSIGNED MEMBER MISSED A SINGLE HEARING SESSION [Note: Can only be used or missing one single hearing session; cannot be used for missing more than one hearing sessio .J I, Id (name),hereby certify as follows: 1. 1 am a member of said board. 2. 1 missed a hearing session on the matter of 0,500049 Y1671- 11C 1600 -50,000 /17 which was held on 3. I reviewed all the evidence introduced at the hearing session I missed, which included a review of(initial which one(s)are applicable): a. audio recording of the missed hearing session; b. video recording of the missed hearing session; C. a transcript of the missed hearing session. This certification shall become apart of the record of the proceedings in the above matter. Signed this Z� day of U 120 /5 Received as part of the record of the above matter: Date: r2 '' f1-- Com~ I J� By: Position: 1600 Osgood Street,Building 20-Suite 2035,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandover.com Town of North Andover Town Clerk Tune Stamp ZONING BOARD OF APPEALS �J./1'larvri 999,f�� L'�rvl�ra� NORTH q UG�1L.�.✓/L�%✓/1�/�1LC� (/lL?.�1./ll[111t11C/�Z O t�.to /6 �r q O t� 11{Z�ll�JCllx LTED io ee ��SSACHU5���� Natfi"'WeltUt-kA TOWN OF NORTH ANDOVER—ZONING BOARD OF APPEALS CERTIFICATION PURSUANT TO G.L. c. 39, SECTION 23D OF PARTICIPATION IN A SESSION OF AN ADJUDICATORY HEARING WHERE THE UNDERSIGNED MEMBER MISSED A SINGLE HEARING SESSION [Note: Can only be used for missing one single hearing session; cannot be used for missing more than one hearing session.] I, N&tYawl w?��/►we" (name),hereby certify as follows: 1. I am a member of said board. 2. I missed a hearing session on the matter of 0,547000 Y 11C 0 /17 which was held on 3. I reviewed all the evidence introduced at the hearing session I missed, which included a review of(initial which one(s)are applicable): a. audio recording of the missed hearing session; b. video recording of the missed hearing session; C. ✓ a transcript of the missed hearing session. This certification shall become apart of the record of the proceedings in the above matter. Signed this a r day of A-v iv f�— '20 1; Received as part of the record of the above matter: Date: 3A k u.Ilr aal By: Position: C 1600 Osgood Street,Building 20-Suite 2035,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandover.com r ZONING LEGEND " ......— DISTRICT BOINDARY(TYP) (rfa /�r6: RE51DENTIAL ZONE(31b5 Ac) L MU4D 115E ZONE(10.15 XJ,• �v1 y/ 1t1E55 OPPOZTUNITY ZONE 025.94 Act LI Br / /: li�11' l. i'ia. i/'�/• / '/ 1, / 1 i� L/ � / �, xV Ix jjjj ___-- `C A- 0 141 i u n �{j ,0 �r1 r \1Ilk, ��%!'•/',Yi/• `,tit•\:•_,` 1600 Osgood Street - Smart Growth Overlay District '' Huntress Associates,Inc. Zoning Map uan ARhli ehin k I.d Plvniny 17 T, Aid.,, me,o Prepared by the North Andover Department of Commun'dy Development me.a;a.asa:ros9zo r.. axi Q Y N Ot�nl OF NfJRT N I'-4r(�pJ�r2 IL16U�A��, ZONING LEGEND ;„... 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Omm n'{y De I m r . a.r r�w/ ar rry tv Ul«Y<d bS,Y1) ri CHAPTER 7 APPOINTED TOWN BOARDS Section 1 Zoning Board of Appeals 7-1-1 A zoning board of appeals of five members and three associate members shall,be appointed by the Board of Selectmen for three-year overlapping terms. Section 2 Conservation Commission 7-2-1 A conservation commission of seven members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 3 Council on Aging 7-3-1 A council on aging of eleven members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 4 Historical Commission 7-4-1 A historical commission of seven members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 5 Recreation Council 7-5-1 A recreation council of nine members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 6 Arts Council 7-6-1 An arts council of an indefinite, but odd, number shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 7 Planning Board 7-7-1 A planning board of five members shall be appointed by the Town Manager for three-year overlapping terms. 19 CHAPTER 10 PLANNING AND THE ENVIRONMENT Section 1 Powers and Duties of the Planning Board 10-1-1 A planning board shall be appointed as provided in clause 7-7-1. 10-1-2 The board shall exercise such powers and duties as prescribed by general law,this charter,and by-law. 10-1-3 The board shall make recommendations to the Town Manager and to the Director of the Division of Planning and Community Development on all matters concerning the physical,economic, and environmental development of the town. Section 2 Master Plan 10-2-1 The board shall be responsible for the development and periodic updating of a master or comprehensive plan. A summary of said plan shall be submitted to the Town Meeting, which shall adopt the summary, with or without amendments. After the summary has been acted on by the town, the planning board shall utilize the plan in making recommendations to the Town. The board shall report annually to the town on the status of the master plan. Section 3 Industrial Development Financing Authority 10-3-1 An industrial development financing authority of five members shall be p ty appointed by the Town Manager for five-year overlapping terms. 10-3-2 The authority shall exercise such powers and duties as prescribed by general law,this charter,and by-law. Section 4 Industrial Commission 10-4-1 An industrial commission of five members shall be appointed by the Town Manager for three-year overlapping terms. 10-4-2 The commission shall exercise such powers and duties as prescribed by general law,this charter,and by-law. Section 5 Coordination of Activities 28 10-5-1 It shall be the general responsibility of the Town Manager and/or the Director of the Division of Planning and Community Development, if appointed, to coordinate the activities of the town planner, the planning board, conservation commission, industrial authority, industrial commission, and other boards, commissions, and committee, except the board of appeals, concerned with the physical, economic, and environmental development of the Town. 29 I manupes 917 7 y Manual of the Judge Advocate General.The federal law has broadened the definition to t include those who act for (or are controlled by) Secretary of the Navy's directive on mill ary such or entity in the distribution of justice, with minor variations between rules any person t applicable to the Navy and those applicable to new products, as well as those who import new i - Also termed JAG Manual. products for resale.42 USCA§4902(6). she Marine Corps.— in insurance.See INSLR�u�iCE. manufacturer's liability.See PRODUCTS LIABIIr manual-rating ITY. j manu brevi (man-yoo bree-vi). [Latin "with a cost.See cosi W. , =_bort hand"] Roman & civil law. Directly; by manufacturing :lie shortest route. • This described they ansa defect.See DEFECT. ter of ownership to a person already in physical manufacturing 3ossession.Cf.MANU LONGA. Imanu forti (man-yoo for-t1). [Latin] With manucaptio (man-ye-kap-shee-oh), n• [Law strong hand. e This term was used in old writs Y matin]Hist. 1. Surety; security; bail. 2. A writ of trespass to allege forcible entry, as in mann tiilowing a person to be admitted to bail, when fo, et cum multitudine gentium ("with strong :he person had been arrested for a felony but hand and multitude of people"). could not be admitted to bail by the sheriff.See `" pRTSE. manu Longa (man-yoo long-ga). [Latin "with a long hand"] Roman & civil law. Indirectly; by aosnucaption.See MALN�RTSE. the longest route. •This described the transfer , . of ownership by pointing out the limits of the R �nucaptor.See MAIN-PERNO . land transferred.Cf.MANU BREW. manufacture, n. Patents. A thing that is made manumission (man-ya-mish-an). [Latin man- , built by a human being(or by a machine), as umissio "I send out of hand"]Roman law.The jj�stinguished from something that is a product nature. Manufactures are one of the statu- I granting of liberty to a slave w bondman; the zu = categories of inventions that can be pat- freeing of one from the power of another- les of manufactures are chairs emancipation. Manumission was so called be- ` wed. Exan cause the slaves were sent out of the hand of . and tires. — Also termed article of manufac- their masters. .Cf.MACHINE;PROCESS(3)• "Manumission is a kind of new birth.The master(patro- "A manufacture must have a definable structure that is nus) therefore stands to his freedman in a relation y r, claimed as its patentable characteristic. Manufactures of product patents, and there analogous to the relation between father and son. The t are,after all, a category P P t his libertus,to a i, as opposed to ways or means.In patron,as such,is entitled as against -ore must be`things,' father's rights of succession and guardianship. He has i summary,a patentable manufacture is any human-made ructure that has inventive characteristics." Arthur R. the right of moderate chastisement (Levis respect a the He has the same claim to be treated with respect as he has s 'NEller & Michael H. Davis, Intellectual Property in a against his son. He can claim to be supported by the Nutshell 30(2d ed.1990). libertus,if he falls into poverty.He is,lastly,entitled to certain services on the part of the freedman,which he ,Vufactured diversity.See DIVERSI`T'Y OF CITI- can, if necessary, enforce by action, provided only the i .€ freedman had promised them after his manumission and in a manner not derogatory to his liberty." Rudolph the History and ufactured home. Secured transactions. A s�shm o R mon tPrivate Lat„oo17f(James Crawford cture, transportable in one or more sec- Ledlie trans.,3d ed.1907). that when traveling is 8 body feet or I ire in width or 40 body feet or more in manumit(man-ya-mit),vb.To free(a slave). Ingth, or,when erected on site,is 320 or more scra_re feet, and that is built on a permanent ; is and designed to be used as a dwelling manung (man-ang). Hist. An official's jurisdic- 0 or without a permanent foundation when tional district.—Also spelled monung. • '' �nected to the required utilities, and that has :;r, it plumbing, heating, air-conditioning, manuopus(man-yoo-oh-pas).See MAINOUR. fi electrical systems.UCC§9-102(a)(36). t'�ufacturer. A person or entity engaged in manupes (man-ya-peez), n. [Law Latin]Hist.A aacing or full 12-inch foot as a legal measure. assembling new products. • A 9 sitg legislative body) to hold proceedings <the U.S. sixty clerks.See SWORN CLERKS IN Clflo J Supreme Court sits from October to June>. ' sixty-day notice. Labor law. Under the T Hartley Act, the 60-day advance sit-down strike.See STRIKE. quired for either Coll n PAY to a OU- OB re. ectivel�r site. 1. A place or location; esp., a piece of ing agreement to reopen or terminate property set aside for a specific use. 2. SCITE. tract. • During this period, strikes and to k`�` are prohibited. 29 USCA§ 158(d)(1), site plan.A proposal for the development or use of a particular piece of real property. • Some S.J.D.See DOCTOR OF JURIDICAL SCIENCE zoning ordinances require a developer to pres- ent a site plan to the city council, and to skeleton bill.See BILL(7). receive council approval, before certain projects may be completed. skeleton bill of exceptions.See BILI,(2). sitting, n. A court session; esp., a session of an skill. Ability; proficiency, esp. the practical and appellate court. familiar knowledge of the principles and p en bans sitting.A court session in which all cesses of an art, science, or trade, cominQ the judges (or a quorum) participate. See EN with the ability to apply them appropriately BANC. with readiness and dexterity. in camera sitting. A court session conduct- skilled witness. See expert witness under wIT. ed by a judge in chambers or elsewhere out- NESS. side the courtroom.See IN CAMERA. situation. 1. Condition; position in reference to skilled work.See wom circumstances <dangerous situation>. 2. The place where someone or something is occupied; slip bail.See JUMP BAIL. a location <situation near the border>. skip person. Tax. A beneficiary who is more situation of danger.See DANGEROUS SITUATION. than one generation removed from the"trans feror and to whom assets are conveyed'in a situs (sI-tes). [Latin] The location or position (of generation-skipping transfer. IRC (26 USCA) something) for legal purposes, as in lex situs, § 2613(a). See GENERATION-SHIPPING TRANSFER. the law of the place where the thing in issue is "Since a skip Person is necessary to trigger a geaeration- situated. skipping talc,it is important to have a precise definition of`skip person.' In most cases, it suffices to say that a Sig Clerks. Hist. A collective name for the s1nP person is a person who is two or more generations clerks of the English Court of Chance who Younger than the transferor"Jahn X McNulty,"Federal Chancery 19 Taxation in a Nutshell 63(5th e Gift d` 94). filed pleadings and other papers. • The office Estate and Gi was abolished in 1842, and its duties trans- ferred to the Clerk of Enrollments in Chance sliptracing agency. A service that locates'per- and to the Clerks of Records and Writs. sons (such as delinquent debtors,missing heirs, witnesses, stockholders, bondholders, etc.) or Sixteenth Amendment. The constitutional missing assets (such as bank accounts). " amendment, ratified in 1913,allowing Congress to tax income. S.L. abbr. I. Session law. See sEssION HWS. 2• Statute law. Sixth Amendment. The constitutional amend- ment, ratified with the Bill of Rights in 1791, slamming' The practice by which a 101194 guaranteeing in criminal cases the right to a tante telephone company wrongfully aPPr0Pn" speedy and public trial by jury, the right to be ates a customer's service from another 00108' informed of the nature of the accusation, the nY, usu. through an unauthorized ,transferor right to confront witnesses, the right to coon_ by way of a transfer authorization"that sel, and the right to compulsory process for guised as something else,such mi a orad cta'sr Obtaining favorable witnesses. up for a free vacation. :r sixth-sentence remand.See REMAND, slander,n.. 1.A defamatory state]*, � in a transitory form esp., Cjofolo, Angela From: Michael D. Rosen <MDR@riw.com> Sent: Friday, September 18,2015 8:13 AM To: 'attymanzi@manzilaw.net' Cc: Ciofolo,Angela Subject: FW: Notice to Town Boards and Officials All I appreciate your copying us on the recent correspondence from the Planning Board. To put it in its proper context, after reading the ZBA's decision, they Planning Board apparently realized that they failed to give immediate notice to the other Boards as required under the OSGOD Bylaw. As a courtesy, and to keep the ZBA informed on this issue, please see below recent correspondence with Town Counsel to discuss this issue. Thank you for your prompt response to Jean Enright. Michael Michael D. Rosen, Esq. RUBERTO, ISRAEL&WEINER, P.C. 617-742-4200 mdr riw.com From: Michael D. Rosen Sent:Thursday, September 17, 2015 12:05 PM To: 'tju@uf-law.com' Subject: Notice to Town Boards and Officials Tom, An issue is developing with regard to the Planning Board that I believe will warrant your attention. At the continued hearing on Tuesday September 15, it was implied that the PB would need a further extension of at least 60 days in order to comply with Section 17.13.2 Circulation to Other Boards. It was also implied that this was an obligation of the Applicant and somehow the Applicant failed to deliver an adequate number of plans for the PAA to distribute. Right now,the hearing has been extended until October 6th, and the deadline for a written decision to be filed until October 13th. As the plans are (hopefully) being distributed today,that would imply that the PB is going to request an extension until either November 17th or December 1st. My client is not favorably inclined to grant such a lengthy extension (at this time). Jean Enright is sending a cover letter with the materials telling the Boards that they have 60 days, but that their prompt response would be appreciated. Despite our request,she is NOT telling them what the PB deadlines are. I see no reason not to,other than so the PB can try and force an extension from the Applicant where one could be potentially avoided. �I would also point out: I. There are no written regulations specifying the number of plans to be submitted. 2. At the time of Application, we were instructed by the PAA to submit 1 original and 9 copies. We did. 3. At no time prior to September 15 were additional copies requested. 4. The original application and plans were filed March 20, 2015. 5. Sec 17.13.2 requires that"Upon receipt of the application, the PAA shall immediately provide a copy of the application materials to...." 6. The PAA did not, and as of this email(6 months later)still has not. 7. Section 17.13.2 does not provide that any or all additional materials submitted after the initial application and during the hearing process also be submitted to other boards. I understand that the PAA wants to address an error that it made in failing to immediately circulate to other boards,and I can certainly discuss with my client whether there is anything we can do to assist in remedying that error(for example, in addition to providing multiple sets of extra plans Tuesday evening,we are couriering over additional extra plans today); however,there is absolutely no reason for the PAA not to advise the other boards of the error and the pending review deadlines so that there is a reasonable and good faith chance that comments can be received from those other boards on or before October 6th would respectfully request that you advise Ms. Enright to include the specific deadline dates of October 6 and October 13 in her correspondence. Thank you Michael Michael D. Rosen, Esq. RUBERTO, ISRAEL&WEINER, P.C. 255 State Street,7th floor Boston, MA 02109 617-742-4200 mdr@riw.com 2 OZZY PROPERTIES, INC. -. ti�r SOLAR DETl�LOPlTlE'N77 �, `'"$ ' `j ► " ; 1600 OS•COOD .STRE'E'T (ROUT' 125) (,4SSL'SSOR S d1AP 34 — LOT 17) APPLICATION FOR PI4N APPROTTAL- PLANS AND DESIGN HAVE BEEN DEVELOPED IN ACCORDANCE WITH THE PERFORJ,4iV0Z STANDARDS SET FORTH IN SECTION 17.11 OF THE NORTH ANDOVER ZONING BYLAW ' k L0C4FffD IN y' NORTH f1NI)OIIER, Af,4SSACEIUSEFFS t DATE.• 1➢I4RCfI ZO, ZOAF ty PP/.F< c R,-VISIO V >: 4 UOUST 28, 2015 / t x .f�sG• APPLICANT• COR RE D 0IPNTsl4S.• ay'y°` '/ - z Y •°'k OSOOOP SOLAR, LLC OZZY PROPERTIES, INC. 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OA1E OESLR/PnON er wr•D SHEET No. 8 OF 20 1 PROJECT No. 5723 08/28/2015 �S{ ------- oM u ps Ax 'f , ncsmcria••• -r /•- L LOCUS /�^;" ` {•;v.PROP°s�IPcs1+�r t r� ��_�s�.-may �- i JIf / // ��t� LOCUS MAP: PaOP��FS(lYP) J r 90•'"('-r► •`1 n ad r Jas.°• \. `� \ / f ( } 1 15+1 n Lt � '—l^ �3a� rid `� �� `llf\� I �FFX / 1....•--''�1 / 1 1 i \l i as.o' _ [yaE ap ovm 0\°)J �,"�'� `; TCAPACITY -i► ..�_-^�_ ..'' �,� 9.0 '� ��.", I��I�_��"'ti �'I�'I �I\�xIJ'.rs \I I I I I i i 6.Dbf7V AC „OSGOOD'LANDING,. 1600 OSGOOD STREET (ROUTE 125) PARKING LAYOUT PLAN LOCATED IN NORTH ANDOVER, MASSACHUSETTS % /� % %� �� I \`, \• P'f-/( % I i I l I I (EssEx COUNTY) PREPARED FOR OSGOOD SOLAR, LLC REFER TO SHEET 7 FOR RECORD ONIM SCALE:I"=40' DATE:MARCH 20, 2015 GENERAL NOTES AND GRAPHIC SCALE ra scut r-,° LEGEND —r E MERIDIAN FEET NP4 N""a°""'""�'`°"'�"s°°" ASSOCIATES ,a o a ,o ea a RENSIONS >o.cu.a1 . ,..Ivx: FOR PERMITTING ONLY, •yes ° Io NOT FOR CONSTRUCTION r e/za/fs an.ourt cJNcwlEs Acc aEw ��� �SSOCPo�x xa sam-vrcI Ha I °Arc I De p— I a, woo SHEET N°. 9 OF 20 1 PROJECT N°. 5723 08/28/2015 PROa(TV; LOCUS MAP, pte° 01, 0A v 'o .0N 1 NIL Ntv. ..... 041, .3, (�) TOTAL SITE J... "OSGOOD LANDING., 1600 OSGOOD STREET (ROUTE 125) PARKING LAYOUT PLAN LOCATED IN NORTH ANDOVER, MASSACHUSETTS (ESSEX CO—) PREPARED FOR OSGOOD SOLAR, LLC REFER TO SHEET 7 FOR RECORD OWER.- SCALE,C—40' DATE:MARCH 20, 2015 GENERAL NOTES AND GRAPHIC SCALE o — MERIDIAN LEGEND 160y oFSRCW� FEET 4 wt�nsrnGKNSE/n'OINS ASSOCIATES REVISIONS FOR PERMITTING ONLY, ....No. 5723 .. NOT FOR CONSTRUCTION too r" 20 ^M PRO. BO I60 in SHEET=N.. 10 OF 08/28/2015 � �i}v��\ ;� � ,\~ ire ,>".�--'"_ j ,�\ .\\ \ � •� � "� \L' � �i,`i �,\\ � ..� �` t \ ��•M1� �?'[gym____ t.�, �..i \� �.-- ; ; `` da L ,•�,\\/ LOCOS cr 1 ROAO ° ismcr Amr } ' l 1 a nrsm�ciBY 8 ^ • l �` a a a„ `'-a-Vit, LOCUS MAP., 00 REFER TO SHEET 7 FOR } ` a a e' t GENERAL NOTES AND ' m a a o a� moi. LEGEND S \ a a FOR PERMITTING ONLY, FOR CONSTRUCTION fR 1 BER OVFP(YP y - TOTAL SITE jS i �j ,�/1°—•t.=.% ` cAaAcrTY "OSGOOD LANDING" 1600 OSGOOD STREET (ROUTE 125) fOR REG6iRY Of OfE05 USE ONLY j '/ : J ��.-----�� - i".� \ W \ PARKING LAYOUT PLAN LOCATED IN `� =r- y � :„ i \�a NORTH ANDOVER, MASSACHUSETTS (ESSEX COUNTY) PREPARED FOR iT: - i��` �� ;51, Ii. \8 OSGOOD SOLAR, LLC \ \m RECORD OWER., SCALE:1-=40' DATE:MARCH 20, 2015 GRAPHIC SCALE MERIDIAN SEAIL,•�+°• \ \ , AANB.. ,us=''— =3ASSOCIATES FEEr �° o zR s° Bo METERS RVIONS 0 to 20 10 60 ro =w-.:F-�20 R ,PROm�JE�[CmTc N.. 57,23 SRNDO .pHNo. 1 08/28/2015 �, waw \ r' `...-• ---'J;%`I ���°•."' .. �,-� i l LOCUS 31 lK I �g 1 LOCUS MAP, D q�,Mil �i�II �l F� I� l NI rII, , � ' I; maasm scull uxror 1\` EXISANG LIGHTING AND ASSOCIATED WRING WITHIN THE SOLAR CARPORT FOOT y- w ;;i1i PRINT SHALL BE REMOVED. REMOVAL TO ti, ;/rE^ _ fli BE COORDINATED W/Th PROJECT MEP 91.. \ @r=r; t 1// \'6„\`• \ xoPona y.i.V"}.�_,s �°�.y. � ” r �'\ I \ 4•\ -'( Ste: I / w�., Y'. 1 P ".. "{�'�..�-- -°-'!,, _. 1 `'r-�,,mss.. // �;., �:''b;``. \ .a\ _ ,..�!_ .-_ � �=''ii"i'---' � •, ',1\I., I�la, to x ' \ l / . •. 1tin1 ccxal'rt , � � m ',, vl i 31LlSIL%- `\ �,�� SIRUCNRE ECRAIF,NA£r � \ '�. / /:° , .,�N.i�Si„d1v--N �•' '•l ` S +`\\ , t ss mrv`ncAmws J---'-��-'- / c--sem e u,•:,C` a^,"'w��.-=- t' \c10 i'knm�,\N'• +xse• 4_. e i'� ;1•<`,\, .` \I `®��-/a'/ i1t. 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DarE DESCR-. er acro SHEET No. 12 11 11 nm AN PROIECT No. 5723 08/28/2015 �....�,� mxo G. \-.r-�'L c'`-.--•�,V��y.�'�'. 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SCALE: r 40' DATE:MARCH 20, 2015 LEGEND a°A�I"-�°' ° �sF':` MERIDIAN FEET <° ° �° e° s°°p®� m""°°`'mac"'uz"'"s"'s°'e" ASSOCIATES FOR PERMITTING ONLY, o I °W REVISIONS 'v ms.:iu�,liu�sa'mnou'i�s wssmoaouon u".x mscsns s NOT FOR CONSTRUCTION METERS ,�Ovxwi p;. n rv�en�we:pn n.,ou t e Ta ss REI.CGAIE cavowfs ACL REw SHEET No.17 OF 20 uN PROJECT No. 5723 N0. CA1E Cf3CRIPRCN DY CHK'D 08/28/2015 w........._______ t _ l•• t + + t AT _1 t 1 , t 11 9.0•r O PROP°STx9pIPE5p)T�) J )�' 2E=I-T •� L LOCUS VIA � ora05mrAE �aT Ra 0R I'X� 1 � ( ) !'�rs0a RSof- t, PsnKaO ----- 1 �- _,-�' 1 al 1 1 \ Typ)t 11 r+ 11 AA l 1 4 1 1 z�+ \` 11 ;1 ;PABNINc�iN)11 l4 ++ 1 15.] rll Ppp°Osw�a`�✓\ y- ''.k x 2r° \ \ � + 1 5 •1 wy{prtN/rt+Nl s�AnON_}-. _ 209. AL l 92 \3Vc 1 \ 1 1 P" STR°IPS pox 22 a�rnNO rApKING ro (1 P) \ TOTALSITE 100G S "OSGOOD LANDING" 1600 OSGOOD STREET (ROUTE 125) FOR REGrsmY OF I—S USE ONLY SITE LAYOUT & MATERIALS PLAN LOCATED IN NORTH ANDOVER, MASSACHUSETTS (ESSEX COUNTY) PREPARED FOR REFER TO SHEET 7 FOR OSGOOD SOLAR, LLC SCALE: 1"=40' DATE:MARCH 20, 2015 GENERAL NOTES AND GRAPHIC SCALE RECORD OWNERS LEGEND SDALGi'.40' °u'"°s°°`"" EE°'G MERIDIAN FEET ,OIrB0 1—M°°'�'.""55"°"9"'9°'B.5 ASSOCIATES Int FOR PERMITTING ONLY, METERS o ro °rp RENS/ONS NOT FORTTING CONSTRUCTION E9 I AG° �0 NG. F ED PR e/2e/rs RELOCATE CANOPIES aEw SHEET No. 18 OF 20 PROJECT No. 5723 9)IJ-SIR NO. pAiE OES[RIPnON BY LHKb 08/2812015 { r •1 \` \ ��,00000���,.00poa �o� o� ooh �;�"`•('�'./ ' 1 \\ 00p0 aW3p O✓_ O Q ✓� �� �._ I t' oo�o��oa���oo o ,Nuva�+u. LOCUS ,ao 0 ooa m© t LOCUS MAPS Lc REFER TO SHEET 7 FOR '� / %�'•� +1 i �,itt t i + �+ it iV GENERAL NOTES AND L t 1 LEGEND FOR PERMITTING ONLY, NOT FOR CONSTRUCTION 1 91 At 1 I� j1 i 1 jX 1 � t �t 1 I � "OSGOOD LANDING" 1600 OSGOOD STREET (ROUTE 125) Rcw REcsmY oP o99Bs usr ONLY i / ` SITE LAYOUT & MATERIALS PLAN 110 ` , LOCATED IN _.–• " S 21 s t NORTH ANDOVER, MASSACHUSETTS ._,txv (ESSEX COUNTY) 1 l 1^ j PREPARED FOR / ^ ......'' _ h —� i i �++ OSGOOD SOLAR, LLC RECORD OWNER.- SCALE: 1"=40' DATE:MARCH 20, 2015 GRAPHIC SCALE �YPRCP�RE�WL MERIDIAN SCaCL i-=ID' N0.PRt ANOOKR,,GSSALhY/SZTIS 0,911 EEEr 40 9 ro 1 ;� WL ASSOCIATES ao ID so B ��� REVISIONS ee u..uu�mffirrs werrxrnewDx N 'oiun METERS o 10 ZO a0 aD 1sv oxe_U»u s men,oxs/v�n�n,-invv 6/38/15 RELOCATE CANDPIES Acc REW SHEET No. 19 OF 20� NPROJECT No. 5723 2 N0. 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A.wv.GRADE n.DwADicty. DETAIL SHEET z°°(nNEs) °-J cmnY�ABo�E SAN � LOCATED IN M«�E roW NORTH ANDOVER, MASSACHUSETTS s roREw�cm Ar DE nes µ wE MnFluuN oar Ruvsrn ESSEX COUNTY O ( 1 a"ua9; rwANb�� (Ya9mm Anw"ro mMPAcnaq cza+Ds�ucrue°sPwAro aN O �>•rRDvar IWwx ro PREPARED FOR aMErx°M9" OSGOOD SOLAR, LLC -'•-e REDUR£D io uEEt zaz SCALE:AS NOTED DATE.MARCH 20• 2015 "' PROPOSED SOLAR CARPORT m N MERIDIAN MDrro�� �u eMDrroASSOCIATEMS�� `l/u � r 1 � R£NS/ONS A� ", smr°s vn�o In o B/°m IB N NCEs r°rNls sxEEr R£w SHEET No. 20 OF 20 Y PROJELT No. 5723 - � xA DEBCAIPRDN BY CaX'D i 08/28/2015 i � r' s C,�. L � j COMMUNITY AND ECONOMIC DEVELOPMENT DIVISION Building Conservation Health Planning Stevens Estate Zoning i i TO: Board of Selectmen, Chairman Board of Appeals, Chairman Board of Health, Chairman i Conservation Commission, Chairman Fire Department,Chief Police Department,Chief Building Commissioner Department of Public Works,Director j FROM: Jean Enright,Interim Town Planner DATE: Sept. 17,2015 RE: 1600 Osgood Street,Osgood Solar LLC Application The Planning Board has received an OSGOD Permit application. Per the Zoning Bylaw, Section 17.13.2 the Planning Board,acting as the Plan Approval Authority,must distribute and seek reviews of the application from the Board of Selectmen,ZBA,Board of Health, Conservation Commission,Fire&Police Departments,Building Commissioner,DPW,and other municipal officials.Attached is a copy of the application and associated materials.The applicant proposes a rooftop.and parking lot canopy mounted solar photovoltaic system. The system proposed includes roughly 19,500 solar modules that will produce up to 6 MW of power. The system includes approximately 5,500 rooftop mounted solar modules and 14 000 cano pY mounted solar modules on structures approximately 39'wide,approximately 21 rows, and 150' —630' long. Please forward all questions, comments,requests for more information and other thoughts to me at the number or email below. The time period allowed to submit comments is within sixty(60) days;however,a prompt response would be appreciated. Thank you. Jean Enright Interim Town Planner 978-688-9533 j enright@townofnorthandover.coom i 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9531 Fax 978.688.9542 Web www.townofnorthandover.com I i 1(j �C -� Cti V I i ASSAMTown ofNorth Andovor Fla g B � MIM M. �w i Please type or print elearly: j 1. Petitioner: ()s boob Telephoue Number: 0011 - 2. owners of the Lagd: Addvess: TelephoneNuinber• 7� till OL7LI Number of Years ownership:- if a pliant is not the owner;please state interest in property:,- 3, Request for an OSGOA.permit ujider Section x7.0 of the North AAdover zoningBylaw � & .0 At_ &NO,5. 1,9.006 e 46 4. Location of Property: ZoningDistrict: 7f1R 2 O. Assessors: Map: >Q Loi# Registry of Deeds: Boot(,#: ld Page#.7 �. E7:istiug Lot: _ r • LotArea(Sq,Ft): Building Height: : Street Frontage; Sine Setbaclrs: -- Fora Setback: Rear Setback: Floor Area Ration: Lot Coverage: 6. Proposed Lot(if applicable): LotArea(Sq.Ft.): Building Height: Street Frontage: Side Setbuck; Front Setback: Rear Setback: Floor Area Ratio; - Lot Coverage: a TO: TOWN OF NORTH ANDOVER PLANNING BOARD FROM: OBIT GOLDSTEIN,PRESIDENT, OZZY PROPERTIES SUBJECT: SUPPORTING DOCUMENTATION FOR PLAN APPROVAL OF A SOLAR PHOTOVOLTAIC CARPORT AND ROOF MOUNT FACILITY WITHIN THE OSGOOD SMART GROWTH OVERLAY DISTRICT(OSGOD) Y DATE: MARCH 20,2015 Proiect Objective: The proposed Solar Photovoltaic Project("Project")shall enhance public health,safety, and welfare by generating onsite clean,renewable energy which directly offsets brown power generated for the electric utility. The project consists of the installation of car canopy and roofmounted solar modules,both an As-of- Right and Accessory Use to the principal use. To the extent necessary to effectuate project approval,the Applicant hereby requests that the Planning Board waive any requirements of Section 17.0 to the extent inconsistent with GL.40A Section 3. ["Waivers"Section 17.14.1] The Applicant reserves all rights regarding applicable zoning for this land and project,and other land the Applicant owns within the limits of the OSGOD. 17.6.2.1-2 Mixed-Use Development Zone As-of-Right Uses The Project supports the transition between primarily residential development and compact,higher density commercial and mixed-use development by incorporating complimentary use of the parking lots with energy-producing shade and weather protection canopies, These amenities have been sought by premier commercial properties,educational campuses,Fortune 500 Companies,and numerous other entities that seek to attract economic and social vitality.They will additionally include LED accent lighting below the canopy which both enhances safety acid dramatically enhances the night-time visual appeal to the surrounding activities. The energy-producing shade and weather protective canopies are parking accessory structures. Additionally,there will be rooftop solar on the main building which has been considered accessory equipment in previous installations at this site. 17.6.3.1 Business Opportunity Zone The Project encourages efficient land use and facilitates high-density retail,commercial,industrial development and other commercial projects by offering attractive and accommodating energy-producing shade and weather protection canopies for customers and personnel. The rooftop component of the project will additionally provide a lower solar heat gain,thus reducing the summertime cooling requirement of the building. points from Osgood Street and the internal vehicular circulation will remain.The realignment of the Northern Parking lot provides improved path of travel and maneuverability to access the loading dock. The proposed project will not result in the alteration or removal of existing walkways.No curb cuts are proposed to be removed for this development. (k)Location of Wetlands/Notice of Intent: A wetland delineation was conducted in 2005,and remains valid under the Permit Extension Act(Section 173 of Chapter 240 of the Acts of 2010,as amended). An Abbreviated Notice of Resource Area Delineation(ANRAD)was filed on August 12,2005 by Epsilon Associates,Inc. (DEP File#: 242-1336)and the Conservation Commission subsequently issued an Order of Resource Area Delineation(ORAD)on October 19,2005 approving the wetland boundaries for the site following a thorough peer review by Seekamp Environmental Consulting,Inc. The ORAD references ANRAD Plans prepared by Chas.H. Sells,Inc.dated August 8,2005 and revised September 30,2005 that depict Bordering Vegetated Wetlands(BVW),Isolated Vegetated Wetlands(iVW,both `jurisdictional' and`non jurisdictional'under the Bylaw,but recognizing that the`non jurisdictional' IVWs may be jurisdictional under the Federal Clean Water Act),intermittent streams,perennial streams/Mean Annual High Water and their associated 200-foot Riverfront Areas. A determination of Bordering Land Subject to Flooding(BLSF,concurrent with the 100-year Floodplain)was excluded from the ANRAD/ORAD process. Epsilon then filed-a Notice of Intent(NOI)Application on March 31,2006 for Vegetation Management on the site,and included the October 19,2005 ORAD and NOI Plans showing the approved Wetland Resource Areas. The Commission subsequently approved the project, and issued an Order of Conditions (OOC)on April 27,2006. Epsilon requested two extensions of the OOC on March 27,2009 and March 31,2010,and the Commission extended the OOC through April 27,2010 and April 27,2011, respectively. Based on a review of the Permit Extension Act(PEA)and discussions with Mass DEP,the OOC remains valid through April 27,2015, and the Wetland Resource Areas established in the ORAD and referenced and depicted.on the NOI plans and in OOC also remain valid. (1)Location of Walls/Sims: • - t The proposed project will not result in the alteration or removal of existing walls..The development will not result in proposed signage. (m)Location of Roadways/Drives: The proposed proj ect will not result in the alteration or removal of existing roadways or driveways to and from Osgood Street. r)Drainage Basin Study: The proposed project will be developed on existing bituminous concrete parking areas and on the existing roof of the main building.The existing stormwater management system.within the limit of work will remain.Therefore,the proposed improvements will not result in an increase in stormwater runoff rate and volume during the 2, 10,and 100-year storm events. O Although the project will have little to no visual impacts,the project will have an even greater positive impact on the Town's character. Over the past few years,the state of Massachusetts has created policies and regulations to promote the use of solar renewable energy to combat the effects of climate change. With the approval of this solar development,the Town would be exhibiting a willingness to permit renewable energy projects for the benefit of the Town and the environment while setting an example for residents to take a strong environmental protection stance. The applicant is showing how solar renewable energy can provide fiscal and environmental benefits, creating.an ideal situation for all. The solar project could also provide educational opportunities in science,technology, engineering,and mathematics.Educating youth on solar renewable energy could empower them to change and to create more sustainable urban environments for future generations. Environmental Impact Assessment: The proposed development has been carefully designed to ensure that there will be little to no impacts with respect to on-site and off-site environmental quality. Sedimentation control measures are proposed throughout construction to prevent any adverse impacts on the existing stormwater management system. The proposed solar development will be-a renewable source of energy with zero emissions and will therefore have no adverse impacts on quality of air.Instead,such projects aim to eliminate other sources of energy that currently produce emissions that negatively affect air quality. The project will not result in any radiological emissions or other hazardous materials. Since trees will be maintained along the edges of'the property,no adverse impacts on temperature and wind conditions on adjacent properties are expected. There will also be no impacts on solar access of adjacent properties and J p P P P J P P zero off-site noise. The proposed development will not require water or sewer services. tr /r MERIDIAN ASSOCIATES TES VIA: HAND DELIVERY March 20,2015 Ms.Jean Enright Members of the North Andover Planning Board Town of North Andover Plannin 'Department 1600 Osgood Street North Andover,Massachusetts 01845 Re: Application for Plan Approval Osgood Solar,LLC 1600 Osgood Street North Andover,Massachusetts Dear Ms. Jean Enright and Members of the North Andover Planning Board: On behalf of Osgood Solar,LLC. (Applicant),Meridian Associates,Inc. (MAI)is submitting an Application for Plan Approval to the Town of North Andover Planning Board. The locus property(Site) is located within the underlying Industrial 2(I-2)Zoning District and within the Osgood Smart Growth Overlay District(OSGOD).The proposed development is located within two(2) Subdistricts of the OSGOD:Mixed-Use Commercial Development Zone and the Business Opportunity Zone.The parcel is identified on the Town of North Andover Assessor's Map 34 as Lot 17(1600 Osgood Street). The applicant is proposing to install a Six(6)Megawatt(DC) Solar Development on the roof of the existing principal building,and with carports in the northern and southern parking lots. In support of this filing we are providing the following information: ® Ten(10)copies of this Cover Letter dated March 20,2015; o . Three(3)copies of the Application for Plan Approval dated March 20,2015; O Ten(10)copies of a letter entitled"Supporting Documentation for a Plan Approval"dated March 20,2015; • One(1)original and nine(9)fall size copies of the"Ozzy Properties,Inc., Solar Development P1an'Set(set of 16 sheets)dated March 20,2015; e $TBD check for filing fee; and $TBD check for Project Review Fee. 500 Cummings Center,Suite 5950 Beverly,Massachusetts 01915 P:(978)299-0447 F:(978)299-0567 www.meridianassoc.com Thank you for your attention to this Application, We look forward to your correspondence to discuss the development options. Please do not hesitate to contact us if you have any questions or require additional information, Sincerely, MERIDIAN ASSOCIATES,INC. i Richard E.Waitt,Jr.,PE Principal P.\5723_Ozzy-NorthAndoveiNADMTN\Reports\P1an Approval\5723-Cover Letter(Planning).doe Enclosures cc: Orit Goldstein(Osgood Solar,-LLC) Dan Leary(PowerOwners) Town Clerk