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Miscellaneous - 163 SALEM STREET 4/30/2018
16:5 I SALEM STREET 210/037.D-0040-0000.0 plainly called for a variance, to be granted. The record, by way of the explanation for Article 14, explicitly shows that a variance and "not a special permit" was required: II. After the April, 1985 Town Meeting, Watershed District Special Permits No Longer Existed. The above zoning history also demonstrates that, after the April 27 , 1985 Town Meeting vote, the bylaw no longer provided for Watershed District special permits. As amended, Section 4 . 133 had no provision for the permit, nor was there any language elsewhere in the bylaw establishing this permit. III . If Plaintiffs' c.41, §81P Plan Entitled Them to any Application, it was for a Planning Board Special Permit. Plaintiffs may contend that the 1984 endorsement of their plan under the provisions of G.L. c.41, §81P entitled them to a statutory "freeze" of certain zoning provisions. The Zoning Act, G.L. c. 40A, §6 states, in relevant part: When a plan referred to in section eighty one P of chapter forty-one has been submitted to a Planning Board and written notice of such submission has been given to the city or Town Clerk, the use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan. . .and for a period of three years from the date of endorsement by the Planning Board. . . . Under this language, plaintiffs would argue that 1) the April, 1985 zoning change was one affecting use and, therefore, did not apply to plaintiffs, 2) plaintiffs could, therefore, apply for a special permit despite the April, 1985 zoning amendments eliminating same, 5 i and 3) the special permit could be sought from the ZBA (rather than the Planning Board) because the Planning Board, as of the May 17 , 1985 date when plaintiffs applied, no longer had the authority to grant special permits, but the ZBA had jurisdiction to grant variances. There are two flaws in this argument. The first is that the zoning change was not necessarily one affecting use. It has been well established that the protection provided by 40A, §6 extends only to the uses permitted at the time of the application for the c. 41, §81P plan. Land shown on §81P plans are subject to all other zoning changes. Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass 253 (1973) . Here, the use--residential--has not been changed or eliminated. Rather, an existing requirement that a special permit be sought was replaced with a requirement for a variance. While the standard for a variance is more difficult to meet, the new, post-April, 1985 zoning language expressly made that option available. In Cape Ann Land Development Corp. v. Gloucester, 371 Mass 19 (1976) , the plaintiff sought to construct a shopping center on a property which had the benefit of the protections of a §81P plan. At the time of the plan's endorsement, shopping centers were a permitted use. Subsequent zoning changes added a requirement that a special permit be sought for all "major projects, " including the ;II proposed shopping center. The court's holding was that the new special permit requirement was applicable to the project, but that the special permit could not be denied on the grounds that the 6 project included a shopping center. The court added that the statute protected that use and stated that the protection may not be eroded by the denial of a special permit for that use when the reason for the denial is the proposed protected use. Nevertheless, the city council, in the exercise of its powers, may impose reasonable conditions which do not amount, individually or collectively, to a practical prohibition to the use. 371 Mass 19, 24. The Cape Ann holding is relevant here. Applied to the present facts, the Cape Ann decision would require the plaintiffs to apply for a variance and would prohibit the defendant ZBA from denying the activity on the basis of the proposed use, i.e. , residential . In other words, the new zoning as voted at the April , 1985 i Town Meeting applies to plaintiffs. Accordingly, plaintiffs should have applied for a variance. Even if one were to accept a theory of zoning protection, there would be another flaw in plaintiffs' argument. This one is more basic. If, pursuant to G.L. c.40A, §6, plaintiffs had the benefit of certain rights under the frozen zoning, they were entitled to the zoning provisions which applied when they received their §81P endorsement in 1984. These provisions called for the grant of a special permit from the Planning Board. The language relating to §81P plans in the Zoning Act, G.L. t c. 40A, §6, states that "the use of the land shown on such plan shall be governed by applicable provisions of the zoning. . .bylaw in effect at the time of the submission of such plana . . . " (emphasis added) . The "applicable provisions" of the zoning bylaw at the time of submission of the §81P plan called for a special permit 7 application to be made to the Planning Board. Plaintiffs may argue that the April, 1985 Town Meeting vote shifted jurisdiction for Watershed District matters to the ZBA. This is correct. However, that same vote also changed the necessary approval to a variance. Plaintiffs cannot create their own hybrid bylaw to suit their circumstances. Plaintiffs may also argue that they sought their permit from the ZBA per guidance received from Town officials. A related argument might be that the ZBA, having accepted and acted on the special permit application, may not now claim a lack of jurisdiction. Both of these arguments, in the nature of estoppel, cannot succeed. In Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 (197-7) , the court referred to "our frequent-and consistent holdings that a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance. " at 162 . In another case, the court said, "The right of the public to have the zoning by-law properly enforced cannot be forfeited by the actions of its officers. " Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 675 (1968) . In Racette v. ZBA of Gardner, 27 Mass. App. Ct. 617 (1989) , I the plaintiff claimed that he was entitled to a constructive grant of a variance because the statutory time period had elapsed, beginning from the date of his filing with the city's Building Inspector. However, the ZBA's denial of the variance had been timely when measured from the date that the Building Inspector i 8 i filed the application with the City Clerk. The Zoning Act, G. L. c. 40A, §15, stated that a variance would be constructively granted when the ZBA failed to act within 75 days of filing with the municipal clerk. The plaintiff argued that the clock should run from his filing with the Building Inspector because the City Clerk had refused to take the application and had told him to file with the inspector (at 618) . The court said the plaintiff had had the right to insist that the clerk accept the application (at . 620) . The court found that the statutory provisions regarding filing and constructive grants were "explicit. " The court ruled "Neither the cit nor the P Y petitioner may vary the statutory filing requirement. " (at 619) . Similarly in the present actions, the plaintiffs may not vary the procedural requirements of the Zoning Bylaw. CONCLUSION On May 17, 1985, plaintiffs applied to the ZBA for a Watershed District special permit. At the time of this application, the North Andover Zoning Bylaw did not allow special permits in the Watershed District. Alternatively, if plaintiffs argue that the earlier, 1984 zoning was applicable, then the special permit should have been filed with the Town's Planning Board. Under either argument, the ZBA never had the authority or jurisdiction to issue a Watershed District special permit. Accordingly, these actions should be dismissed pursuant to 9 I i I i Mass. R. Civ. P. 12 (b) (6) for a failure to state a claim upon which relief can be granted. Alternatively, because the ZBA never had jurisdiction in this matter, the court would also lack jurisdiction over the subject matter and should, therefore, dismiss these actions pursuant to Mass. R. Civ. P. 12 (b) (1) . The instant actions should, therefore, be dismissed. NORTH ANDOVER ZONING BOARD OF APPEALS By its Attorney, J41/B. Bard (BBO #029140) Kop lman and Paige, P.C. TOWN COUNSEL 101 Arch Street Boston, MA 02110 Q (617) 951-0007 DATED: �I C 6 I i i i 10 EXHIBIT A THE ZONING BY LAW TOWN OF NORTH ANDOVER, MASSACHUSETTS 1972 Reprinted 1984 F t1ORTii O a 94, 0 0 wit ,•� ,•�ti i�d, _ jt 70, �I SgCHUsf- a i f-: PLANNING BOARD ,.ATTEST: \ A True Copy Town Clerk 9 ATTEST: A True Copy -9- Town 9- Town Clerk Any parking garage, other than a private parking garage, which is open to the public and used for the storage of motor vehicles . 2. 59 Personal Service Establishment An establishment providing personal services to the public such as shoe repair, barbering, dry cleaning, etc. 2. 60 Place of Worship A church, temple, synagogue, mosque or other similar place of worship, including parish house, rectory, or convent . 2. 61 Planning Board The Planning Board of the Town of North Andover as governed by the General Laws of Massachusetts . 2. 62 Public Building or Use A building or use owned or operated by a local , county, state or federal governmental agency. 2. 63 Rooming House Any building or portion thereof containing more than two and less than ten rooms without kitchen facilities that are used, rented or hired out to be occupied or that are occupied for sleeping purposes for compensation, whether the compensa- tion be paid directly or indirectly. 2. 64 Special Permit The words Special Permit where used in this By-Law shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General Laws . 2. 65 Special Permit Granting Authority The Planning Board shall be the granting authority of all Special Permits to Cluster Development , Planned Development District, the Watershed District , drive- ways , and large estate condominium conversions . The Board of Selectmen shall be the granting authority of . ; all Special Permits pertaining to non-accessory signs ATTEST: -A True Copp _10- Town Clerk as specified in Section 6. 52 of this By-Law. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning By- Law. 2. 66 Special Permit Use yV A use of a building or lot or an action upon premises which may be permitted under this By-Law only upon application to the appropriate Special Permit Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2. 67 Street A public way or a private way open to travel by the general public, or a way shown on a plan of a sub- 9 P Y division theretofore duly approved by the Planning Board. 2. 68 Structure Means a combination of materials to form a construc- tion that is safe and stable, including, among others , buildings , stadiums, tents , reviewing stands, platforms , staging, observation towers , radio towers , water tanks , towers , private and public swimming pools , trestles, piers and wharves , sheds, shelters , fences and walls, and display signs; the term structure shall be construed as if followed by the words "or part thereof" . 2. 69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot , as provided by the By-Law. 2. 70 Tributary Any portion of any brook, stream, bog, swamp or pond which flows into Lake Cochichewick . 2. 71 Yard (setback) An open space which lies between the principal building or group of buildings and a lot line. \ -37- AMST: A True Copy a G� Town Clerk regardless of ownership and the operation of equestrian riding academies , stables , stud farms, dairy farms , and poultry batteries . d ) The sale of products raised as a result of the above uses on the subject land . 4.133 Watershed District ( 1) Purpose: The Watershed District surrounding Lake Cochich- ewick , our source of water supply, 3s intended to preserve ar�d,_maintain the filtration and purification_ function of theaiid; the ground water table; the purity_of ,• the groundwater and t `ak'e,to conserve the natural environment and to_prote~ct''tYie public health, safety, and well -are . j ( 2) Prohibited Uses: a ) Dumping trash, rubbish, garbage, wood stumps, peat , junk , or other waste materials shall be prohibited . ( 3) Dimensions and No Build Requirements: a ) Boundaries of the Watershed District are designated specifically on the certified ; North Andover Watershed Map, 1978, and are shown on the Zoning Map.. These maps are hereby made a part of this By-Law and i' are on file in the office of the Town Clerk . i b) When the Watershed District boundary divides a lot of record on June 26, 1978 in one ownership, all the zoning regulations set i forth in this Zoning By-Law applying to the greater part by area of such lot so divided may, by Special Permit, be deemed to apply and. govern at and beyond such Watershed District boundary, but only to an extent not more than one hundred ( 100) linear feet in depth (at a right angle to such boundary) into the lesser part by area of such lot so divided . �V —� c) A no-cut buffer zone shall exist one hundred -38- ATTEST: A True Copy fifty ( 150) feet horizontally. � __._ _ ally from the. ann mean high water mark of Lake Cochich- Town Clerk e�'li,ick an3atwenty= five _ ( 25) feet horizontally from`_.Eh e3ge of all tributaries in the Watershed . �-- d) No construction shall occur twohundred fifty 250) feett orizontally from the annual mean high-water marklof Lake Cochichewick �and, one hundred ( 100) feet horizontally from the edge of all tribu- taries , except by ' Special Permit . 4. 134 Flood Plain District ( 1) Flood Plain District The Flood Plain District is herein established as an overlay district . The underlying per- mitted uses are allowed provided that they meet the Massachusetts State Building Code dealing with construction in floodplains and the following additional requirements . The Flood Plain District includes all special flood hazard areas designated as Zone A, Al-30 on the North Andover Flood Insurance Rate Maps , (FIRM) , and the Flood Boundary and Floodway Maps , dated June 15,. 1983, on file with the Town Clerk, Planning Board, Conservation Commission, and Building Inspector .P These maps , as well as the accompanying North Andover Flood Insurance Study, are incorporated herein by reference. ( 2) Development Regulations I a) Within Zone A of the Flood Plain District, where base flood elevation is not pro- vided on the FIRM, the applicant shall ' obtain an existing base Y flood elevation lev ation data and it shall be reviewed Build' by the Building Inspector for 9 Pe its reasonable utilization toward and meetin g the elevation or floodproofing requirements , as appro- priate, of the State Building Code . b) In the floodway, designated on the Flood Boundary and Floodway Map, the following provisions shall apply: EXHIBIT B ING COLLECTIVE BARGAINING AGREEMENTS. To see if the Article 10. IMPLEMENTING the sum of $ to be expended Town will vote to raise and appropriateur ose agnsreached of implementing under the direction of the Selectmen with Tthe p own contractual employees. collective bargaining agreements to approve the article in the amount of (Petition of the Selectmen) $82,950. WATERSHED DISTRICT PRESERVATION ARTICLES (11-15) Article 11. COMPREHENSIVE PINING SpOR take from WATERSHED DISTRICT. funds see if the Town will vote to raise and appropriate the sum of $ 75 ,438 to be expended under the direction of the Board of Selectmen for the purpose of undertaking certain comprehensive planning studies in connection with the preservation of Lake Cochichewick and the public drinking water supply of the the Town of No as Ir h written. (Petition of the Selectmen) VOTED to approve DISTRICT TE pORARY GR01WTH LIMITATION. To see if Article 12. WATERSHED the Town will vote to amend Section Watershed District, of the Zoning Bylaw, by adding a paragraph (4) , as follows " (4) Lake Cochichewick Preservation Amendment a) Notwithstanding anything contained in this bylaw to the contrary, no permits shall be issued for the construction of any new building, structure, road, or driveway or for earth removal, except for the proposed municipal water filtration plant, within the Watershed District for a period of three (3 ) years from the effective date of this amendment. b) This amendment shall not apply to any renovation, alteration, or addition tO r existing building, structure, road, aYoany structure n agricultural or horticultural use. c) A use variance may be granted by the Board of Appeals for the issuance of a building permit within this three-year period but not for a use not otherwise allowed by the district regulations. (Petition of the Selectmen) roviition on he EXPLANATION: This amendmenntspeciale permits intheWateear PshedbIjistrict, tto issuance of building permits a p te provide controlled development in the officers ters conducdt Distand rimplement ah comprehensive Town boards, commissions, an planning study, pursuant to the terms of the previous warrant article, relative of to the preservation of Lake Cochichewick, oursource lant for the Townwate ' s spubli� recognizing that a proposed water filtration p completed until 1988 . Exempted by drinking water supply is not expected to be In s General Laws from the provisions of this amendmentlan followed by lots sdefinitive definitive subdivision plan, or a preliminary, p plan within seven (7) months, of Clerk priorto the Pto the date onlanning Board awhic2hlthla notice of which is given to t the General amendment is voted upon at dmentTown .Marelng. Also lots showneormpt def pity a subd visions plana the provisions : f this amen ears prior to the date of the endorsed by the Planning Board within eight (8) y on vote of Town Meeting °ithinthis thrmend3;yearsnprioort tosthendate ofsaidvotes' m A so-called, so endorsed w VOTED to approve the article as written (by a unanimous vote) . 111 Article 13. PROHIBITING UNDERGROUND FUEL STORAGE IN WATERSHED DISTRICT. To see if the Town will vote to amend Section 4.133 Watershed District of the ,, Zoning Bylaw by: .ay inserting the following in subsection (2) Prohibited Uses 'underground steel storage tanks for petroleum products ' (Petition of the Planning Board) EXPLANATION: As recommended by the Fire Department, this will prohibit ythe installation of steel storage tanks in the Watershed District and require 'fiberglass or corrosive resistant tanks. VOTED to- approve the article as written (by a unanimous vote) . Article 14. PROHIBITING CONSTRUCTION WITHIN CERTAIN DISTANCES IN WATERSHED X 'DISTRICT. To see if the Town will vote to amend Section 4.133 Watershed ,District by deleting the following from subsection (d) of paragraph (3T-- except by Special Permit ' and add the following in its place: ATTEST: A bus Copy The intent herein is dimensional and the North Andover Board ,� of Appeals shall grant variances upon a showing o,f __r substantial hardship owing to the soil, shape or topography of the land, including the right to cross such tributaries. . TovM Clak (Petition of the Planning Board) ; 1 EXPLANATION: The purpose of this article is to eliminate construction within 250 feet of Lake Cochichewick and 100 feet of a tributary in the Y Watershed District by Special Permit-. The North Andover Board of appeals shall have the jurisdiction and is to be treated as a variance application not a Special Permit. E VOTED to approve the article as written (by a two-thirds vote: yes 908, t no 12) . e Article 15. ZONING BOARD OF APPEALS AS WATERSHED DISTRICT SPECIAL PERMIT GRANTING AUTHORITY. To see if the Town will vote to amend Section 2.65 S ecial Permit Granting Authority of the ZoningBylaw b -�--- Y deleting Y g the following words: ' the Watershed District ' (Petition of the Planning Board) EXPLANATION: As a result of eliminating construction by Special Permit as specified in Article 14, the Board of Appeals will become the governing body. VOTED to approve the article as written (by a two-thirds vote: yes 750, 10 10) . rtMENTS TO THE ZONING BYLAW (16-27) Article 16. 'FRONTACE EXCEPTION/LARGrF'AREA LOTS. To see if the Town will eto amend Jection 7 :2.1 ` Street Frontage in the Zoning Bylaw by adding section e. : no such lot as described above on wn.ich a dwelling is located, sh-�ll be hereafter reduced in area below the minimum area required in Section 7.2.1 ) . ' (Petition of the Planning Board) 112 EXHIBIT C THE ZONING BY LAW TOWN OF NORTH ANDOVER, MASSACHUSETTS 1972 Reprinted 1985 of tAOaTH �° To N• i., i�, �• �a:b�,. �r, '4ss ACHUS PLANNING BOARD . J -10- jt=ST: L. TowV C19t((.k.7 _ mit where used in this B „ �. The words Special Per -Law Y shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General Laws . 2 .65 Special Permit Granting Authority The Planning Board shall be the granting authority of *1985/18 all Special Permits to Cluster Development, Planned Development District, (1985/15 ) driveways , bite plan review and large estate condominium conversions . The men shall he the granting authority of Board of Select 9 9 Y r all Special Permits pertaining to non-accessory signs Section 6 .52 of this by-Law. The as specified in Sec ,Y rantin authorityof Board of Appeals shall be the g g all other Special Permits allowed in this Zoning By- Law. 2.66 Special Permit Use A use of a building or lot or an action upon premises which may be permitted under this By-Law only upon ' theappropriate S ecial Permit application top Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2 .67 Street A public way or a private way open to travel by the general public, or a way shown on a plan of a sub- division theretofore duly approved by the Planning Board. 2 .68 Structure Means a combination of materials to form a construc- tion that is safe and stable, including, among ' others, buildings, stadiumse tents reviewing stands, platforms, staging, observation towers , radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves , sheds, shelters, fences and walls, and display signs; the term structure shall be construed As if followed by the words "or part thereof 2 .69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot, as provided by the By-Law. 2 .70 Tributary t ffA -35- 4. 133 Watershed District (1 ) Purpose: The Watershed District surrounding Lake Cochi.ch- ewick, our source of water supply, is intended to preserve and maintain the filtration and purification function of the land, the ground water table, the purity of the ground water and the lake, to conserve the natural environment and to protect the public health, safety, and t welfare. (2 ) Prohibited Uses : a) Dumping trash, rubbish garbage, wood � stumps, peat, junk, or other waste materials, underground steel storage tanks r for petroleum products shall be prohibited . ( 1-985/13 ) (3 ) Dimensions and No Build Requirements : a) Boundaries of the Watershed D'.st-ict are designated specifically on the certified North Andover Watershed Map, 1.978, and are shown on. the Zoning Map. These maps are hereby made a part of this By-Lai.., and are on file in the office of the Town Clerk . b) When the Watershed District boundary divides a lot of record on June 26, 1978 in one ownership, all the zoning regulations set forth in this Zoning By-Law applying to th(- greater part by area of such lot- so divider] may, by Special Permit, he deemed to apply and govern at and beyond such Watershed District boundary, but only to an extent not more than one hundred - ( 100 ) linear feet in depth (at a right angle to such boundary) into the lesser part by area of such lot so ATTEST: divided. A,True CoPY_ c) A no-cut buffer zone shall exist one hundred fifty ( 150) feet horizontally from the annual. mean high water mark of Lake Cochich- ewick and twenty-five (25 ) feet horizontally Town Clerk from the edge of all tributaries in the Watershed. d) No construction shall occur two hundred fifty (250) feet horizontally from the annual mean high water mark of Lake Cochichewick and one hundred ( 100 feet -36- i 1 � horizontally from the edge of all tribu- taries . The intent herein is dimensional and the North Andover Board of Appeals shall grant variances upon a showing of substantial hardship owing to the soil. , shape or topography of the land, including the right to cross such tributaries. j ( 1985/14) I (4 ) Lake Cochichewick Preservation Amendment ( 1985/12 ) a) Notwithstanding anything contained in this bylaw to the contrary, no per shall be issued for the construction of any new building, structure, road , or driveway or. for earth removal. , except for. the proposed } municipal water filtration plant, within ;the Watershed District for a period of three ( 3 ) i years from the effective date of this amendment . b) This amendment shall not apply to anv renovation, alteration, or addition to an existing building, structure, road , driveway, or any structure in agricultural or horticultural use . c) A use variance may be granted by the Board of Appeals for the issuance of a building permit within this three-year period but not for a use not otherwise allowed by the distrist regulations . 4 . 1. 34 Flood Plain District (1 ) Flood Plain District The Flood Plain District is herein established I as an overlay district . The under. l.ving per- mitted uses are allowed provided that they f meet the Massachusetts State Building Code dealing with construction in floodpl_ains and the following additional requirements . The ATTEST: Flood Plain District includes all special A True Copy flood hazard areas designated as Zone A, Al-30 on the North Andover Flood Insurance Rate Maps , (FIRM) , and the Flood Boundary and Floodway Maps, dated June 15 , 1983 , on TownClezk file with the Town Clerk, Planning Board, Conservation Commission, and Buil.ding Inspector . These maps, as well as the ' accompanying North Andover Flood Insurance k' Study, are incorporated herein by reference. i CERTIFICATE OF SERVICE I, Joel B. Bard, hereby certify that on this date I served a copy of the foregoing Motion to Dismiss and Memorandum in Support of Motion to Dismiss, by mailing a copy, postage prepaid, to the following counsel of record: { David L. McLellan, Esq. Caruso and McLellan One Elm Square Andover, MA 01810 Jo . Bard bated: f` t (i E it I .gyp �® LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. DONALD G.PAIGE ATTORNEYS AT LAW ELIZABETH A.LANE JOYCE FRANK 101 ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110.1112 JOEL B.BARD RICHARD J.FALLON GEORGE M.MATTHEWS (617)951-0007 JAMES A.OYREK FAX(617) 951-2735 WILLIAM MEWIG 111 EVERETT J.MARDER JANE M.O'MALLEY PATRICK J.COSTELLO KAREN V.KELLY COLLEEN B.WALKER SONDRA M.KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS JOANNE BUTTERALL July 27, 1990 - BRIAN W.RILEY BY HAND DELIVERY Clerk Land Court Room 408 Old Court House Boston, Massachusetts 02108 Re: Mifflin, MacLeod v. North Andover Zoning Board of Appeals Land Court Misc. Action No. 133740 133741 ' Dear Sir/Madam: Enclosed please find Defendants' Post-Trial Memorandum and Request for Findings of Fact and Rulings of Law in the above matter. Please file same. Thank you for your attention to this matter. Very truly yours, �6e1 B. Bard JBB/dk cc: David L. McLellan, Esquire North Andover Zoning Board of Appeals North Andover Board of Selectmen CERTIFICATE OF SERVICE I., Joel B. Bard, hereby certify that on this date a copy of this Post-Trial Memorandum and a copy of this Request for Findings of Fact and Rulings of Law were mailed first class, postage prepaid to: David L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Dated: / O J el Bard i I COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. LAND COURT MISC. ACTION NOS. 133740 , 133741 DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, Plaintiffs V. THE NORTH ANDOVER ZONING BOARD OF APPEALS, acting by and through its Members: William J. Sullivan, Augustine W. Nickerson, Walter .F. Soule, Raymond A. Vivenzio, Esq. , and Anna P. O'Connor, Defendants DEFENDANTS' POST-TRIAL MEMORANDUM INTRODUCTION These two cases concern plaintiffs' property in North Andover known as Lot 1, 163 Salem Street and the denial, in 1985, by the defendant North Andover Zoning Board of Appeals ("ZBA") of plaintiffs' application for a special permit (Action No. 133740) . The second case appeals the ZBA's subsequent denial, in 1988, of plaintiff's application for reconsideration for the 1985 denial (Action No. 133741) . Plaintiffs allege that said denials were arbitrary and capricious. The ZBA contends: 1) Plaintiffs mistakenly applied to the ZBA for a special permit; under the applicable North Andover Zoning Bylaw, the ZBA had no jurisdiction to grant said permit and plaintiffs appeals must therefore be dismissed; 2) In denying the special permit, the ZBA acted within its discretion to protect the Town's primary source of public drinking water; 3) Plaintiff ' s 1988 application for reconsideration was rightfully denied since the ZBA' s rules clearly allow such applications only within 10 days of the action for which reconsideration is sought; and 4) Any special permit plaintiffs might have acquired by constructive grant has lapsed. FACTS The relevant facts appear under Findings of Fact in the attached Defendants ' Request for Findings of Fact and Rulings of Law submitted herewith. ARGUMENT I . PLAINTIFFS ARE NOT ENTITLED TO A WATERSHED DISTRICT SPECIAL PERMIT FROM THE ZBA BECAUSE THE ZBA DID NOT HAVE JURISDICTION TO GRANT SAME. Before trial, the ZBA filed a Motion to Dismiss and a Memorandum in Support of same. This motion was based on the grounds that the ZBA did not have jurisdiction to grant a Watershed district special permit and, therefore, plaintiffs failed to state a claim upon which relief could be granted and the court lacked subject matter jurisdiction. Plaintiffs filed an Opposition and the Motion was argued. In light of this history, the ZBA refers the Court to its earlier Memorandum and provides this brief summary of the ZBA's argument: The ZBA, under the North Andover Zoning Bylaw, did not have the power to grant a Watershed District special 2 permit at all times relevant to these cases. In May, 1985, when Plaintiffs filed with the ZBA for a Watershed District special permit, said permit no longer existed by virtue of the April 27, 1985 Town Meeting vote eliminating same. Plaintiffs' 1984 ANR plan for this land only protected the property from Zoning changes affecting use (G.L. c. 40A § 6) . The ANR plan protection would not affect dimensional changes. The April, 1985 zoning changes did not prohibit the use (residential) , but established a dimensional requirement, namely a 100-foot setback from tributaries of Lake 1 Cochichewick. The wording of the Town Meeting Article 14 added language to the bylaw expressly stating that this was a dimensional change. If, for the sake of argument, it is assumed that plaintiff' s ANR plan gave them a zoning freeze, such freeze would allow plaintiffs to apply to the Planning Board, not the ZBA. - The zoning freeze law, G.L. c. 40A, § 6, states that land benefitting from a freeze "shall be governed by the applicable provisions of the zoning ordinance or bylaw in effect at the time of the submission of such plan . . . " Anyone claiming a such zoning freeze is entitled only to the "applicable provisions" of the bylaw in effect when the plan is filed. Plaintiffs cannot be allowed to 3 i I I i f create a hybrid bylaw after the fact to suit their circumstances. The ZBA's actions in accepting and acting on the special permit application cannot be used to stop the ZBA from now denying jurisdiction. Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 (1977) , Cullen v. Building Inspector of North Attleborough, 353 Mass. 671 (1968) . II . THE ZBA ACTED PROPERLY AND WITHIN ITS DISCRETION, NOT ARBITRARILY OR CAPRICIOUSLY. Trial Exhibit 9, the April, 1985 Town Meeting articles, and the testimony of the Town's Planning Director provided a factual description of the May, 1985 setting when plaintiffs filed their special permit application. The Town had learned that Lake Cochichewick, its primary source of public drinking water, was contaminated. The State had imposed a requirement that residents boil their water before drinking it. As a result, four articles were placed on the warrant for the Annual Town Meeting (Exhibit 9) . Article 11 appropriated $75, 000 to fund planning studies for "the preservation of Lake Cochichewick and the public drinking water supply of the Town of North Andover. " Article 12, voted unanimously, established a 3- year moratorium on the construction of structures in the Watershed District. Article 14 contained the bylaw changes discussed above; namely, removing the Watershed District special permit and allowing 4 r construction within that buffer area only upon grant of a variance. This article passed by vote of 908 to 12. In this context, the ZBA examined plaintiff's application for a special permit. In so doing, the ZBA applied the special permit criteria of § 10. 31 of the bylaw. The ZBA found that the provisions of §10. 31 were not satisfied. Subsection 10. 31. 1 .d) requires that the special permit granting authority find that: Adequate and appropriate facilities will be provided for the proper operations of the proposed use. Based on the overwhelming evidence and concern in North Andover. in 1985 over the threats to the Town's primary source of drinking water, the ZBA made the very reasonable determination that i a house in the Watershed District relying on a septic system did not have "adequate and appropriate facilities. " In a matter of weeks after nearly a thousand residents demonstrated their concern for their Town's water supply at Town Meeting, the ZBA's judgment was that the public welfare would not be served by the constriction of a house on a septic system in the Watershed District. This is an entirely reasonable conclusion based on the facts before the ZBA. At trial, plaintiffs attempted to show that the ZBA's denial of their application was arbitrary when compared to other decisions to grant permits in the Watershed District. Plaintiffs introduced Exhibits 14 and 15, special permits granted, respectively, on July 2 , 1985 and August 18, 1986. Both permits, however, clearly state 5 that they are conditioned on the developments in question being served by sewers, not septic tanks. At trial, plaintiffs produced two qualified witnesses who opined on such matters as septic system designs and groundwater and surface-water contamination. The expert testimony of these witnesses is, however, largely beside the point. Just as the court may not substitute its judgment for that of the board, Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980) (rescript) , the judgment of experts may not be substituted for that of the board's. It is well established that it is not necessary that the evidence compel the conclusions reached by the Board as long as the Board's conclusions are warranted. Kinchla v. Board of Appeals of Falmouth, 11 Mass. App. Cyt. 9237 (1981) (rescript) ; Subaru of New England v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 (1979) . The court, in evaluating the ZBA's reasons for denying a special permit is guided by the following standard, as summarized in Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973) : It is the board's evaluation of the seriousness of the problems, not the judge's which is controlling. General Laws, c. 40A, §4 gives to the board, not the trial judge, the discretion to issue a special permit. Gulf Oil Corp v. Board of Appeals of Framingham, 355 Mass. 275 (1969) ; Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560 (1954) . 6 Under the standards of review pursuant to G.L. c. 40A, § 17, the court is required to assess only whether the board acted within its authority in granting or denying the special permit, not the wisdom of that decision. Kiss v. Board of Appeals of Loncrmeadow, 371 Mass. 147, 154 (1976) (and cases cited) . A Zoning Board is not required to state detailed findings of fact to support its denial. Brockton Public Markets Inc v Board of Appeals of Sharon, 357 Mass. 783 (1970) ; Board of Appeals of Southampton v. Boyle, 4 Mass. App. Ct. 824 (1976) ; Cf. Adams v. Adams, 331 Mass. 354 (1954) . The Planning Board's power in denying a special permit is discretionary. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 294 (1972) . No one has an absolute right to such a permit, Humble Oil & Refining Coy Board of Appeals of Amherst, 360 Mass. 604 , 605 (1971) . The Planning Board, in the proper exercise of its discretion, is free to deny a special permit even if the facts show that such a permit could be lawfully granted. Gulf Oil Corp v Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969) . Pioneer Home Sponsors Inc v Board of Appeals of Northampton, 1 Mass. App. Ct. 800, 830 (1973) . III. PLAINTIFFS DO NOT HAVE A SPECIAL PERMIT BY CONSTRUCTIVE GRANT FROM THE PLANNING BOARD. At trial, the issue was raised by the court that plaintiffs may have obtained a special permit from the Planning Board by constructive grant. Evidence was introduced that, on April 9, 7 1985, plaintiffs filed an application with the Planning Board for a Watershed District special permit. There was no evidence that the Planning Board had ever acted on this application. The sequence of events shows that plaintiffs, approximately one month later, filed an application with the ZBA for the same permit. Plaintiffs never took any further action in relation to the Planning Board special permit application. After approximately five years of silence and inaction regarding the special permit application to the Planning Board, plaintiffs cannot now be allowed to claim possession of a special permit from the Planning Board. There are two independent reasons for this. First, if plaintiffs were, arguably, granted a special permit by operation of law, it has since lapsed also by operation of law. Plaintiffs applied to the Planning Board on April 9, 1985. Pursuant to G.L. c. 40A, § 9, a constructive special permit would have been granted on or about September 11, 1985 (after allowing 65 days for a public hearing and 90 days for a decision) . Allowing an additional 20 days for possible appeal, said permit would have been available for use on or about October 1, 1985. No appeal regarding such permit was filed by anyone. The Zoning Act, G.L. c. 40A, § 9, as in effect in 1985 (and today) states: Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not more than two years, and 8 including such time required to pursue or await the determination of an appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause. The effect of this statute is that a special permit holder has a maximum of two years from the date of grant to begin using said permit. Failure to begin use, or to receive an extension of time for use, results in a lapse of the special permit. In this instance, plaintiffs clearly did not begin using their special permit. In fact, there is not evidence that plaintiffs ever recorded their special permit, a prerequisite to use of the permit under the requirements of G.L. C. 40A, § 11. The two-year time limit of C. 40A, § 9 is not, however, tied to recording of the permit. The two years run "from the grant thereof . . . 11 c. 40A, § 9 (emphasis added) . The first reason that plaintiffs cannot claim a Planning Board special permit is, therefore, that any such permit, if constructively granted, lapsed some time in the Fall of 1987 . The second reason is that, on the facts on this case, laintiffs can be P said to have effective) withdrawn Y their application to the Planning Board. The facts show thatlaintiffs P , within 5 weeks of filing with the Planning Board, filed for precisely the same permit from the ZBA. There is no evidence 9 showing that plaintiffs sought a hearing or decision from the Planning Board. Rather, the facts show that plaintiffs pursued this permit exclusively before the ZBA. There is no evidence that plaintiffs claimed or attempted to claim a constructively granted special permit after the Planning Board' s inaction. Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss states, "The landowners were told that the Planning Board would not accept their special permit application . . . Accordingly, the landowners filed their petition with the ZBA. . . . " This language strongly suggests that the plaintiffs withdrew their application to the Planning Board. All of these actions, and inaction suggest that hat plaintiffs abandoned, effectively withdrew, their special permit application to the Planning Board. They cannot now be allowed to claim said permit by constructive grant. IV. THE ZBA'S 1988 DENIAL OF PLAINTIFF'S APPLICATION FOR RECONSIDERATION WAS VALID. Exhibit 17 is the ZBA's October 11, 1988 decision denying I plaintiff 's application for reconsideration of the ZBA's 1985 decision denying plaintiffs application for a special permit. A reading of the decision makes it abundantly clear that the decision is valid on its face. The decision quotes the Board's rules requiring that reconsideration be requested within 10 days of the decision for 10 which review is being sought. This application was made more that three years later. Plaintiffs were plainly not entitled to reconsideration and their application was properly rejected on procedural grounds. CONCLUSION For the reasons stated above, the defendant ZBA requests that the Court either dismiss the plaintiffs' appeals (pursuant to Mass. R. Civ. P. 12 (b) (6) or 12 (b) (1) ) or affirm the 1985 and 1988 decisions of the ZBA denying plaintiffs' applications. NORTH ANDOVER ZONING BOARD OF APPEALS By its Attorney, 4oeV B. Bard (BBO #029140) K'opkman and Paige, P.C. Town Counsel 101 Arch Street Boston, MA 02110 (617) 951-0007 11 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. LAND COURT MISC. ACTION NOS. 133740 133741 DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, Plaintiffs V. THE NORTH ANDOVER ZONING BOARD OF APPEALS, acting by and through its Members: William J. Sullivan, Augustine W. Nickerson, Walter F. Soule, Raymond A. Vivenzio, Esq. , and Anna P. O'Connor, Defendants DEFENDANTS' REQUEST FOR FINDINGS OF FACT AND RULINGS OF LAW The defendant North Andover Zoning Board of Appeals (hereinafter the "ZBA") hereby proposes the following Findings of Fact and Rulings of Law. FINDINGS OF FACT 1. The plaintiffs or their predecessors in interest (hereinafter the "plaintiffs") , own the property in question, known as 163 Salem Street. In November, 1984, the plaintiffs received endorsement of a plan under the provisions of G.L. c.41, §81P ("ANR Plan" I Exhibit 3) . Pursuant to this plan, they created lots 1 and 2 on Salem Street. This controversy is focused on Lot 1. 2 . On April 9 1985 P plaintiffs filed an application to the North Andover Planning Board for a Special Permit to allow construction of a house within 100 feet of a tributary of Lake Cochichewick (Exhibit 8) . Plaintiffs did not pursue that permit and the Planning Board took no action on it. No appeal or court action of an kin was d brought i Y n relation to g this application to the Planning Board. 3 . At the April 27 , 1985 North Andover Annual Town Meeting, the Town voted (908 in favor, 12 opposed) to adopt warrant article 14 "Prohibiting Construction Within Certain Distances in Watershed District. " (Exhibit 9) . 4 . Also at the April 27 , 1985 Annual Town Meeting, the Town voted, by unanimous vote, to adopt Article 121 "Watershed District Temporary Growth Limitation. " The article prohibited the issuance of building permits for new structures within the Watershed i District except by variance from the ZBA (Exhibit 9) . 5. Until April 27 1985 the P North Andover Zoning Bylaw (the "Bylaw") had several provisions which, read together, allowed construction within 100 feet of a tributary to Lake Cochichewick only upon receipt of a special permit from the Planning Board (relevant portions of the 1984 Zoning Bylaw, Exhibit 16) . 6. Section 4 . 133 of the Bylaw, as in effect before April 27, 1985, governed activity in the "Watershed District. " Section 4 . 133 (3) (d) stated: No construction shall occur two hundred fifty (250) feet horizontally from the annual mean high water mark of Lake Cochichewick and one hundred (100) feet horizontally from the edge of all tributaries, except by Special Permit. Section 2 . 65 of the Bylaw contained a definition of "Special Permit Granting Authority" which stated, in relevant part: 2 The Planning Board shall be the granting authority of all Special Permits to Cluster Development, Planned Development District, the Watershed District, driveways and large estate condominium conversions. 7 . At the April 27, 1985 North Andover Town Meeting, Articles 11 through 15 were voted under the heading "Watershed District Preservation Articles" (Exhibit 9) . Article 14 amended §4 . 133 (3) (d) , described in paragraph 6 above, by deleting the phrase "except by special permit. " The following was added to this section: The intent herein is dimensional and the North Andover Board of Appeals shall grant variances upon a showing of substantial hardship owing to the soil, shape or topography of the land, including the right to cross such tributaries. 8. The North Andover Town Meeting warrant in question included an explanation of the proposed zoning change in article 14, which stated: EXPLANATION: The purpose of this article is to eliminate construction within 250 feet of Lake Cochichewick and 100 feet of a tributary in the Watershed District by Special Permit. The North Andover Board of Appeals shall have the jurisdiction and is to be treated as a variance application, not a Special Permit. (emphasis in original warrant) 9 . Consistent with the elimination of the special permit for construction in the Watershed District, Article 15 amended §2 ..65 of the Bylaw by deleting from the definition of "special permit granting authority" the phrase "the Watershed District" (Amended Zoning Bylaw, Exhibit 13) . 10. The effect of these changes was that, as of April 27 , 1985, an applicant seeking to build in the Watershed District was required to get a variance from the ZBA. The Planning Board's special permit authority no longer existed and the Watershed 3 District special permit likewise no longer existed. 11 . On May 17, 1985 (i.e. , after the April, 1985 Town Meeting) , the plaintiffs applied for a special permit from the ZBA to allow construction of a house within 100 feet of a tributary of Lake Cochichewick. The ZBA denied that permit. 12 . Plaintiffs appealed the ZBA's denial of the Special Permit in Superior Court, Essex, (No. 85-2281) . This action was subsequently transferred to the Land Court (Misc. Action No. 133740) . 13 . On September 6, 1988, plaintiffs filed an application with the ZBA to have the 1985 Special Permit decision "reconsidered" (Exhibit 11) . The ZBA denied this application on the grounds that the ZBA's rules allow for reconsideration only upon application made within 10 days of the decision for which reconsideration is being sought (Exhibit 17) . 14 . Plaintiffs appealed the ZBA's denial of the application for reconsideration in Superior Court, Essex (No. 88-2929). This action was subsequently transferred to the Land Court (Misc. Action No. 133741) . 15. The Watershed Protection District includes buffer areas around Lake Cochichewick and its tributaries. Lake Cochichewick serves as the primary source of public drinking water for the Town of North Andover. RULINGS OF LAW 1. The ZBA never had jurisdiction to grant the Watershed District I special permit. Before the April, 1985 Town Meeting, the requisite approval was a Planning Board special permit. After the April, 4 1985 Town Meeting, a ZBA variance was required. The fact that the ZBA accepted the application and acted on it is not sufficient to bestow jurisdiction. 2 . After the April, 1985 Town Meeting, Watershed District special permits no longer existed. The applicable zoning history demonstrates that, after the April 27, 1985 Town Meeting vote, the bylaw no longer provided for Watershed District special permits. 3 . Plaintiff's ANR plan did not protect their land from the April, 1985 Zoning change. The protection of G.L. C. 40A, §6 does not apply because this was not a change affecting use and the protection provided by 40A, §6 extends only to the uses per at the time of the application for the c.41, § 81P plan. Land shown on § 81P plans are subject to all other zoning changes. Bellows Farms Inc. v. Building Ins ector of Acton, 364 Mass. 253 (1973) . Here, the use (residential) was not changed or eliminated. 4 . The zoning change did not prohibit or eliminate the residential use. Rather, it added a dimensional requirement in the nature of a 100-foot setback from the tributary in the Watershed District. 5. If plaintiffs ' ANR plan entitled them to any application, it was for a Planning Board special permit. The language rela g tin to §81P plans in the Zoning Act, G.L. c.40A, § 6, states that "the use of the land shown on such plan shall be governed by applicable provisions of the zoning. . .bylaw in effect at the time of the submission of such plan. . . . " (emphasis added) . The "applicable provisions" of the zoning bylaw at the time of submission of the 5 §81P plan called for a special permit application to be made to the Planning Board, not the ZBA. 6. The ZBA could not, by its actions, assume jurisdiction for a special permit and the Town cannot be prevented from stating that the ZBA lacked jurisdiction. In Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 (1977) , the court referred to "our frequent and consistent holdings that a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance. " at 162 . In another case, the court said, "The right of the public to have the zoning by-law properly enforced cannot be forfeited by the actions of its officers. " Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 675 (1968) . 7 . The plaintiffs had the right to insist that the Planning Board act on their special permit application. Racette v. ZBA of Gardner, 27 Mass. App. Ct. 617 (1989) . 8 . Plaintiffs ' appeals are, therefore, dismissed since the ZBA did not have jurisdiction to grant special permits. 9 . If plaintiffs' application to the ZBA is fashioned as an application for a variance, a high standard of review applies. A i variance is not warranted unless the evidence establishes that the conditions affecting the property in question do not affect the zoning district generally. Twomey v Board of Appeal= Worcester, 347 Mass. 684 (1964) ; Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 (1983) . There is no evidence here to support the grant of variance. I 6 f 10. Based on the facts before the ZBA, the Board acted within its discretion in denying plaintiffs ' application for a special permit. 11. The court may not substitute its judgment for that of the Board. Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980) (rescript) . 12 . It is well established that it is not necessary that the evidence compel the conclusions reached by the Board as long as the Board' s conclusions are warranted. Kinchla v. Board of Appeals of Falmouth, it Mass. App. C5t. 9237 (1981) (rescript) ; Subaru of New England v. Board of Appeals of Canton, 8 Mass. App. Ct. 4383 (1979) . 13 . The court, in evaluating the ZBA's reasons for denying a special permit is guided by the following standard, as summarized in Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973) : It is the board's evaluation of the seriousness of the problems, not the judge's which is controlling. General Laws, C. 40A, §4 gives to the board, not the trial judge, the discretion to issue a special permit. Gulf Oil Corp. v Board of Appeals of Framingham, 355 Mass. 275 (1969) ; Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560 (1954) . 14 . Under the standards of review pursuant to G.L. c. 40A, § 17, the court is required to assess only whether the board acted within its authority in granting or denying the special permit, not the wisdom of that decision. Kiss v. Board of Appeals of Longmeadow. 371 Mass. 147, 154 (1976) (and cases cited) . 7 I 15. A Zoning Board is not required to state detailed findings of fact to support its denial. Brockton Public Markets Inc. v Board of Appeals of Sharon, 357 Mass. 783 (1970) ; Board of Appeals of Southampton v Boyle, 4 Mass. App. Ct. 824 (1976) ; Cf. Adams v. Adams, 331 Mass. 354 (1954) . 16. The Planning Board, in the proper exercise of its discretion, is free to deny a special permit even if the facts show that such a permit could be lawfully granted. Gulf Oil Corp v Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969) . Pioneer Home Sponsors Inc v Board of Appeals of Northampton, 1 Mass. App. Ct. 800, 830 (1973) . I 17. Plaintiffs ' actions after filing an application with the Planning Board for a special permit, then filing for and pursuing a special permit only from the ZBA, amounted to a withdrawal of the application to the Planning Board. 18 . Pursuant to G.L. C. 40A, § 9, any special permit granted by operation of law lapsed 2 years later, also by operation of law. 19 . The ZBA's denial of plaintiffs ' 1988 application for reconsideration is valid on its face. NORTH ANDOVER ZONING BOARD OF APPEALS By its Attorney, 4JB. Bard (B 0 #029140) Kopelman and Paige, P.C. TOWN COUNSEL 101 Arch Street Boston, MA 02110 (617) 951-0007 DATED: 7/2?/?0 8 LEONARD KOPELMAN KoPELMAN AND PAIGE, P.C. DONALD G.PAIGE ATTORNEYS AT LAW ELIZABETH A.LANE JOYCE FRANK 101 ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1112 JOEL B.BARD RICHARD J.FALLON ( GEORGE M.MATTHEWS FAXX(6177)) 9 951-( 07 51-2735 JAMES A.DYREK WILLIAM HEWIG III EVERETT J.MARDER JANE M.O'MALLEY PATRICK J.COSTELLO KAREN V.KELLY COLLEEN B.WALKER SONDRA M.KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN May 23, 1990 CHERYL ANN BANKS JOANNE BUTTERALL BRIAN W.RILEY Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Planning Board North Andover Town Hall 120 Main Street North Andover, MA 01845 Re:Mifflin et al v. North Andover Zoning Board of Appeals Land Court Nos. 133740, 133741 Dear Members of the Zoning and Planning Boards: I have received the attached letter from the attorney for the plaintiff in the above matter. You may recall that this case went to trial in the Land Court on April 6. I expect that the Land Court will soon give both parties 30 days to file post-trial briefs. A decision could be expected in the weeks following the submittal of the briers. This case concerns a 1985 denial by the Zoning Board of Appeals of an application for a special permit for activity within 100 feet of a tributary to Lake Cochichewick. Attorney McLellan has asked if the Planning Board will get involved in this matter to explore possible settlement, as occurred in Coolidge Construction cases. In the Coolidge cases, both boards were named as defendants. Here, only the ZBA is a party. In my opinion, both the Zoning Board of Appeals and the Planning Board would have to agree to involve the Planning Board in this case. Please notify me at your earliest convenience if you wish to I i KOPELMAN AND PAIGE, P.C. Zoning Board of Appeals, and Planning Board May 23 , 1990 Page 2 pursue this course of action and I will relay your decision to Attorney McLellan. Very truly yours, J&dl B. Bard JBB/dk cc: Board of Selectmen c , CARUSO &McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER,MASSACHUSETTS 0 18 10 PETER J.CARUSO TEL:(508)475-6700 DAVID L.McLELLAN FAX:(508)475-8880 May 18, 1990 Joel B. Bard, Esq. Kopelman & Paige 77 Franklin Street Boston, MA 02110 Re: MacMiff Development Corp. v. North Andover Zoning Board of Appeals Dear Joel: This letter confirms our telephone conversation last week in regard to the above-referenced appeal from the denial of a special permit by the North Andover Zoning Board of Appeals (ZBA) . I related information to you about a special permit application made by John McGarry to build within 100 feet of a tributary. Atty. McGarry's applications for a special permit were made to both the Planning Board and the Zoning Board of Appeals in 1985 in circumstances virtually identical to those in this case. You pointed out that Atty. McGarry had filed a judicial appeal from the action (or inaction) of the Planning Board, as well as a judicial appeal from the denial of the special permit by the ZBA. In the case of T4acMiff Development Corp. , of course, we also contend that the special permit application filed with the Planning Board _ in April, 1985 was constructively approved by the failure of the Planning Board to take timely any action. In Atty. McGarry's case, I related to you my understanding that the ZBA recently relinquished jurisdiction of the matter and referred his case to the Planning Board for resolution and settlement. So, as you had requested in our telephone conversation, my proposal is that the ZBA now refer Bill MacLeod's case to the Planning Board and that we meet with the Planning Board in executive session (as we have done in relation to the common driveway settlement on this same lot) , to talk seriously with the members of the Planning Board about reaching some practical solution, short of connecting this lot to town sewer. Joel B. Bard, Esquire May 18 , 1990 Page Two Would you please forward this letter to Ms. Karen Nelson and advise me of the Town's position on this proposal . Very truly yours, C David L. McLellan DLM: las I � d LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. DONALD G.PAIGE ATTORNEYS AT LAW ELIZABETH A.LANE JOYCE FRANK 101 ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1112 JOEL B.BARD RICHARD J.FALLON GEORGE M.MATTHEWS (617) 951-0007 JAMES A.DYREK FAX(617) 951-2735 WILLIAM HEWIG III EVERETT J.MARDER JANE M.O'MALLEY PATRICK J.COSTELLO KAREN V.KELLY COLLEEN B.WALKER SONDRA M. KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS JOANNE BUTTERALL April 9, 1990 BRIAN W.RILEY Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Mifflin, MacLeod v. Zoning Board of Appeals Land Court Nos. 133740 , 133741 Dear Members of the Zoning Board of Appeals: A trial in . the above matter was held on April 6, 1990 in the Land Court. Before the trial, I argued in favor of the Motion to Dismiss which I had filed the previous week. The judge took the motion under advisement. Following a trial, the Land Court' s procedure is to await the production of transcripts (typically requiring one to two months) , then allow each side thirty days to file a post-trial brief. As a result, it will be several months before the judge rules on the trial. I am grateful to Karen Nelson, the Town's Director of Planning and Community Development, who assisted me in preparing for the trial and served as the Town' s witness. I shall continue to keep you informed of any developments in the case. Very truly yours, oel B. Bard JBB/na cc: Board of Selectmen 'J �7 KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN DONALD G. PAIGE BOSTON, MASSACHUSETTS 02110 ELIZABETH A. LANE - JOYCE FRANK (617)451-0750 i JOHN W.GIORGIO FAX 451-1863 BARBARA J.SAINT ANDRE JOEL B BARD RICHARD J. FALLON GEORGE M.MATTHEWS JAMES A.DYREK EVERETT J.MARDER JANE M.O'MALLEY - KAREN V.KELLY COLLEEN B.WALKER SONDRA M.KORMAN March 3O 1990 ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS HAND-DELIVER Clerk of Court Land Court Old Court House Boston, MA 02108 I Re: Mifflin, et al. v. North Andover ZoningBoard of Appeals, al. pp als, et Misc. Action Nos. 133740 133741 Dear Clerk of Court: Enclosed for filingi n the above matters please find the Defendants' Motion to Dismiss and Memorandum in Support of Motion to Dismiss. Thank you for your attention to this matter. Very truly yours, o 1 B. Bard JBB/na enc. cc: Zoning Board of Appeals Board of Selectmen David McLellan, Esq. COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. LAND COURT MISC. ACTION NOS. 133740 133741 DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, Plaintiffs V. DEFENDANTS ' MOTION TO DISMISS THE NORTH ANDOVER ZONING BOARD OF APPEALS, acting by and through its Members: William J. Sullivan, Augustine W. Nickerson, Walter F. Soule,` Raymond A. Vivenzio, Esq. , and Anna P. O'Connor, Defendants The defendant Zoning Board of Appeals of' the Town of North Andover ("ZBA") moves the court pursuant to Mass. R. Civ. P. 12 (b) (6) or 12 (b) (1) to dismiss the complaints of the plaintiffs in the two above matters for failure to state a claim upon which relief can be granted or for lack of subject matter jurisdiction. As grounds for this motion, the ZBA relies on the Memorandum in Support of Motion to Dismiss, and attached Exhibits, which is being filed simultaneously with this motion. Respectfully Submitted NORTH ANDOVER ZONING BOARD OF APPEALS By its Attorney, J1 Bard (BBO #029140) Kop man and Paige, P.C. TOWN COUNSEL 101 Arch Street Boston, MA 02110 j (617) 951-0007 ' DATED: �� Qd COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. LAND COURT MISC. ACTION NOS. 133740 133741 DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, Plaintiffs V• MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE NORTH ANDOVER ZONING BOARD OF APPEALS, acting by and through its Members: William J. Sullivan, Augustine W. Nickerson, Walter F. Soule, Raymond A. Vivenzio, Esq. , and Anna P. O'Connor, Defendants INTRODUCTION This memorandum is being submitted in support of Defendant North Andover Zoning Board of Appeals' ("ZBA") Motion to Dismiss the above action. Plaintiffs seek to have the court either annul a decision of the ZBA denying plaintiffs ' applications for a Watershed District special permit or grant the special permit. The defendant ZBA contends that it never had the authority or jurisdiction to issue said special permit. Accordingly, pursuant to Mass. R. Civ. P. 12 (b) (6) or 12 (b) (1) , defendants have moved that this action be dismissed for plaintiffs' failure to state a claim upon which relief can be granted, or for lack of jurisdiction over the subject matter. STATEMENT OF THE CASE On May. 17, 1985, plaintiffs applied to the ZBA for a special permit to construct a house within 100 feet of a tributary of Lake Cochichewick. On July 2, 1985, the ZBA denied the permit. Plaintiffs filed an appeal in Essex Superior Court and subsequently had that appeal transferred to Land Court (Misc. No. 133740) . A companion case arises out of the plaintiffs ' efforts in 1988 to have the ZBA "reconsider" its earlier denial. The ZBA' s second denial gave rise to the second case (Land Court #133741) . FACTS OF THE CASE Until April 27, 1985, the North Andover Zoning Bylaw (the "Bylaw") had several provisions which, read together, allowed construction within 100 feet of a tributary to Lake Cochichewick upon receipt of a special permit from the Planning Board (relevant portions of Zoning Bylaw, Exhibit A) . Section 4. 133 of the Bylaw governed activity in the "Watershed District. " Section 4 . 133 (3) (d) stated: No construction shall occur two hundred fifty (250) feet horizontally from the annual mean high water mark of Lake Cochichewick and one hundred (100) feet horizontally from the edge of all tributaries, except by Special Permit. Section 2 . 65 of the Bylaw contained a definition of "Special Permit Granting Authority" which stated: The Planning Board shall be the granting authority of all Special Permits to Cluster Development, Planned Development District, the Watershed District, driveways and large estate condominium conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non- . 2 accessorysignsas specified in Section 6. 52 of this By-Law. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning By-Law. At the April 27, 1985 Town Meeting, Articles 11 through 15 were voted, under the heading "Watershed District Preservation Articles. " (Exhibit B) . Article 14 amended the above §4 . 133 (3) (d) by deleting the phrase "except by special permit. " The following was added to this section: The intent herein is dimensional and the North Andover Board of Appeals shall grant variances upon a showing of substantial hardship owing to the soil, shape or topography of the land, including the right to cross such tributaries. The warrant included an explanation of these changes, which stated: EXPLANATION: The purpose of this article is to eliminate construction within 250 feet of Lake Cochichewick and 100 feet of a tributary in the Watershed District by Special Permit. The North Andover Board of Appeals shall have the jurisdiction and is to be treated as a variance application, not a Special Permit. (emphasis in original warrant) Consistent with the elimination of the special permit for construction in the Watershed District, Article 15 amended §2 . 65 by deleting from the definition of "special permit granting authority" the phrase "the Watershed District. " (Amended Zoning Bylaw, Exhibit C) . The effect of these changes was that, as of April 27, 1985, an applicant seeking to build in the Watershed District was required to get a variance from the ZBA. The Planning Board' s special permit authority no longer existed. The plaintiffs acquired the property in question, known as 163 Salem Street, some time before the April, 1985 Town Meeting. In 3 a I 1984 , the plaintiffs received endorsement of a plan under the provisions of G.L. c.41, §81P. Pursuant to this plan, they created lots 1 and 2 on Salem Street. This controversy is focused on Lot 1. On May 17, 1985 (i.e. , after the April, 1985 Town Meeting) , the plaintiffs applied for a special permit from the ZBA to allow construction of a house within 100 feet of a tributary of Lake Cochichewick. The ZBA denied that permit. In September, 1988, the plaintiffs applied to the ZBA to have their earlier petition reconsidered. The ZBA also denied this application. ARGUMENT I. The ZBA Never Had Jurisdiction to Grant the Watershed District Special Permit. The above chronology of the changes to the Bylaw indicates that at no time did the ZBA have the jurisdiction or authority to grant a special permit for construction in the Watershed District. Before the April, 1985 Town Meeting, the requisite approval was a Planning Board special permit. After the April, 1985 Town Meeting, a ZBA variance was i required. +, At no time was it appropriate to seek relief via a special permit from the ZBA. The fact that the ZBA accepted the application and acted on it is not sufficient to bestow jurisdiction. The intent of Article I 14 of the April, 1985 Town Meeting was clear and by its terms 4 i t � 00 "1 LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. . DONALD G.PAIGE _ ATTORNEYS AT LAW ELIZABETH A.LANE JOYCE FRANK 101 ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137 JOEL B. BARD RICHARD J.FALLON (617) 951-0007 GEORGE M.MATTHEWS FAX(617)951-2735 JAMES A. DYREK WILLIAM HEWIG III EVERETT J.MAROER JANE M.O'MALLEY PATRICK J.COSTELLO KAREN V.KELLY COLLEEN B.WALKER SONDRA M.KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS JOANNE BUTTERALL BRIAN W.RILEY September 4, 1990 Planning Board North Andover Town Hall 120 Main Street North Andover, MA 01845 I Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: MacLeod, Mifflin et al v. North Andover ZBA and Planning Board Land Court Misc. Action Nos. 133740, 133741 Dear Members of the Planning and Zoning Boards: II� I am very pleased to inform you that the Land Court has decided the above cases in favor of the Town. Judge Cauchon ruled that the Zoning Board of Appeals did not exceed its authority in denying the plaintiffs ' special permit application for construction in the Watershed District. Addressing an issue which arose during the trial, the judge also ruled that a separate application for a special permit to the Planning Board was not constructively granted. The result is that the Town's denial of the special permit stands. I am grateful for the assistance of Planning and Community Development Director Karen Nelson who helped me prepare for this trial and served as an able witness. I� a A' KOPELMAN AND PAIGE, P. C. Planning Board and Zoning Board of Appeals Page 2 September 4 , 1990 A copy of the decision is enclosed. Very Y trul yours, f mel B. Bard JBB/dk Enclosure cc: Board of Selectmen I I • THE COMMONWEALTH OF MASSACHUSETTS (� LAND COURT �\ DEPARTMENT OF THE TRIAL COURT s OLD COURTHOUSE,BOSTON,MA 02108 PHONE:(617)227-7470 CHARLES W.TROMBLY,JR. RECORDER August 31, 1990 Esq..David L. McLellan, E . Peter Caruso, Esq.q Caruso & McLellan Caruso & McLellan 1 Elm Square 1 Elm Square Andover, MA 01810 Andover, MA 01810 Leonard Kopelman, Esq. Kopelman & Paige, P.C. 77 Franklin Street Boston, MA 02110 RE: Miscellaneous Case Nos. 133740 & 133741 MacLeod et als v. Town of North Andover Dear Attorneys: Enclosed herewith please find the Decision and Judgment entered this day in the above captioned case. fiery truly yc , e orah J Patterson Deputy Assistant Clerk DJP/jc Enclosures COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Essex, ss. WILLIAM S. MacLEOD and ] Miscellaneous DOUGLAS MIFFLIN and MacMIFF Case No. 133740 DEVELOPMENT CORPORATION, ] Plaintiffs Vs. ) TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS, ] FRANK SERIO, JR. , CHAIRMAN, ALFRED E. FIRZELLE, ESQUIRE, ] AUGUSTINE NICKERSON, WILLIAM SULLIVAN and WALTER SOULE and ] TOWN OF NORTH ANDOVER PLANNING BOARD, PAUL A. HEDSTROM, GEORGE ] PERNA, JOSEPH MAHONEY and JOHN SIMONS, Defendants ] ---------------------------------- DOUGLAS R. MIFFLIN and ] Miscellaneous WILLIAM S. MacLEOD, Case No. 133741 Plaintiffs ) Vs. ] THE NORTH ANDOVER ZONING ) BOARD OF APPEALS, acting by and through its Members: J WILLIAM J. SULLIVAN, AUGUSTINE W. NICKERSON, ] WALTER F. SOULE, RAYMOND A. VIVENZIO, ESQUIRE and ] ANNA P. O'CONNOR and THE NORTH ANDOVER PLANNING BOARD, acting ] by and through its Members: PAUL A. HEDSTROM, GEORGE PERNA, ] JOSEPH MAHONEY and JOHN SIMONS, Defendants ] D E C I S I O N 1 Miscellaneous Cases No. 133740 and 133741 were commenced in ,the Essex County Superior Court on July 22, 1985 and November 4, 1988 , respectively, with the North Andover Planning Board ("Planning Board") being added as a Party-Defendant in both actions on August 8, 1990. These matters were consolidated for trial on February 17, 1989 and thereafter, on April 19, 1989, were transferred to the Land Court. By Miscellaneous Case No. 133740, William S. MacLeod ("MacLeod") Douglas Mifflin ("Mifflin") and MacMiff Development Corporation ("MacMiff") , seek judicial review, pursuant to G.L. c. 40A, §17 , of a decision of the Defendant, North Andover Zoning Board of Appeals ("ZBA") , denying MacMiffIs petition for a special permit to construct a single-family residence within one hundred (100) feet of a tributary to Lake Cochichewick, on land located at 163 Salem Street in North Andover ("Locus") . Mifflin and MacLeod bring Miscellaneous Case No. 133741, pursuant to the provisions of c. 40A, §17, seeking judicial review of a further decision of the ZBA, denying their petition for reconsideration of MacMiff's application for relief from the requirements of the North Andover Zoning By-law ("By-law") (Exhibit No. 16) , with respect to the aforesaid construction on Locus. These consolidated appeals were tried in the Land Court on April 6, 1990, at which time the Court appointed a stenographer to As evidenced by the pertinent pleadings, Miscellaneous Case No. 133740 was originally filed as Superior Court Civil Action No. 85-1803 and Miscellaneous Case No. 133741 was originally filed as Superior Court Civil Action No. 88-2929. 2 l record and transcribe the proceedings. Three (3) witnesses testified, eighteen (18) exhibits were admitted into evidence and one chalk was presented to assist the Court. The chalk and all of the exhibits are incorporated herein for purposes of any appeal. At the time of trial, the Defendant ZBA also filed a motion, pursuant to Mass. R. Civ. P. 12 (b) (6) or 12 (b) (1) , to dismiss the Plaintiffs' actions for failure to state a claim upon which relief can be granted and/or for lack of subject matter jurisdiction. On August 8, 1990, the Court allowed the Plaintiffs' motion to amend its complaints to conform to the evidence introduced at trial. Accordingly, the Plaintiffs set forth an .additional count in each complaint, said counts being brought pursuant to G.L. c. 231A, §1, for declarations that the special permit application filed with the Planning Board on April 9, 1985 was deemed to have been granted by such Board on June 14, 1985. On all of the evidence, I make the following findings of fact: 1. MacMiff acquired title to a parcel of land ("MacMiff Parcel") , of which Locus constituted a part, by deed from William and Constance McAndrew, dated October 16, 1984, recorded at Book 1881, Page 115 in the Essex North District Registry of Deeds (Exhibit No. 1) . This parcel was then known as and numbered 175 Salem Street in North Andover. 2 . In late 1984, MacMiff submitted a plan ("ANR Plan" or "Plan") (Exhibit No. 3) to the Planning Board for its approval under the provisions of G.L. c. 41, §81B. The Plan purported to divide the MacMiff Parcel into two 2 lots - Lot No. 1, which is 3 now referred to as Locus, containing 98, 005 square feet of land, and Lot No. 2 , containing 43,560 square feet of land. On or about November 15, 1984, the Planning Board endorsed the Plan "approval under the Subdivision Control Law not required" and, thereafter, it was recorded as Plan No. 9710 in the Essex North District Registry of Deeds. This action by the Planning Board had the effect of freezing the zoning of the MacMiff Parcel as to use until November 15, 1987. 3 . As shown on the Town of North Andover Zoning Map (Exhibit No. 5) , Locus is located in North Andover's Watershed Zoning District. 4. On April 9, 1985, MacMiff submitted an application to the Planning Board, seeking a special permit to construct a single- family residential dwelling on Locus, at a point located seventy- eight (78) feet from a tributary to Lake Cochichewick and within the Watershed District (See Exhibit No. 8) . MacMiff proposed an on-site subsurface sewerage disposal system in connection with this i construction, which system would utilize a septic tank and seepage pits, of sufficient . capacity to accommodate flows of up to 600 gallons per day (See Exhibit No. 4) . 5. Lake Cochichewick is the source of the public drinking water supply for the Town of North Andover. 6. On or about April 14, 1988, the North Andover Board of Health issued its approval to MacMiff's proposed subsurface disposal design (See Exhibit No. 6) . Thereafter, on April 23, 1988, the North Andover Conservation Commission issued its 4 s i determination that MacMiffIs proposed construction on Locus "is within the Buffer Zone, as defined by in the regulations, but will not alter an Area Subject to Protection Under the Act . . ." (See Exhibit No. 7) . 7. At all times relevant hereto, Section 4.133 (1) of the By- law has read as follows: Watershed District (1) Purpose: The Watershed District surrounding Lake Cochichewick, source of water supply, is intended to preserve and maintain the filtration and purification function of the land, the ground water table, the purity of the ground water and the lake, to conserve the natural environment and to protect the public health, safety and welfare. 8. At the time of MacMiffIs application for a special permit, Sections 4.133 (3) (c) and (d) of the By-law read as follows: c) A no-cut buffer zone shall exist one hundred fifty (150) feet horizontally from the annual mean high water mark of Lake Cochichewick and twenty-five (25) feet horizontally from the edge of all tributaries in the watershed. d) No construction shall occur two hundred fifty (250) feet horizontally from the annual mean high water mark of Lake Cochichewick and one hundred (100) feet from the edge of all tributaries, except by Special Permit (emphasis added) . 9. As of April 9, 1985, the application filing date, Section 2.65 of the By-law designated the Planning Board as the "Special Permit Granting Authority" of all special permits to "The Watershed District" (See Exhibit No. 16) . times relevant hereto 10. At all t , Section 10.31 of the By-law provided that the special permit granting authority may 5 not approve a special permit application unless it finds, in its judgment, that all of the following conditions have been met: a) The specific site is an appropriate location for such a use, structure, or condition; b) The use as developed will not adversely affect the neighborhood; c) There will be no nuisance or serious hazard to vehicles or pedestrians; d) Adequate and appropriate facilities will be provided for the proper operation of the proposed use; e) The Special Permit Granting Authority shall not grant any Special Permit unless they make a specific finding that the use is in harmony with the general purpose and intent of this By Law. 11. At a Town Meeting held on April 28, 1985, nineteen (19) days after MacMiff had applied for a special permit, and before such application was acted upon by the Planning Board, the Town of North Andover voted to approve - five (5) "Watershed District Preservation Articles", numbered eleven (11) through fifteen (15) (See Exhibit No. 9) . The Articles read in relevant part as follows: I Article 11: to raise and appropriate or take from available funds the sum of $75,438 to be expended under the direction of the Board of Selectmen for the purpose of undertaking comprehensive planning studies in connection with the preservation of Lake Cochichewick and the public drinking water supply of the Town . . . . to amend Section 4.133 Article 12 : , Watershed District, of the Zoning By-law, by adding a paragraph (4) , as follows: (4) Lake Cochichewick Preservation Amendment a) Notwithstanding anything contained in this bylaw to the contrary, no permits shall be issued for the construction of any new building, structure, road or driveway or for earth removal, except for the 6 i proposed municipal water filtration plant, within the Watershed District for a period of three (3) years from the effective date of this amendment. b) This amendment shall not apply to any renovation, alteration, or addition to an existing building, structure, road, driveway, or any structure in agricultural or horticultural use. c) A use variance may be granted by the Board of Appeals for the issuance of a building permit within this three-year period but not for a use not otherwise allowed by the district regulations. Article 14: . . . to amend Section 4. 133 Watershed District by. deleting the following from subsection (d) of paragraph (3) : "except by Special Permit" and add the following in its place: The intent herein is dimensional and the North Andover Board of Appeals shall grant a variance, upon a showing of substantial hardship owing to the soil shape or topography of the land including the right to cross such tributaries. . . (emphasis added) . Article 15: . . . to amend Section 2.65, Special Permit Granting Authority, of the Zoning By-law by deleting the following words: "the Watershed District" . . . The effect of these Amendments was to require a variance from the ZBA, rather than a special permit from the Planning Board, in order to perform construction in the Watershed District. Although not material for reasons stated below, it would appear that, despite the stated intention of a "dimensional" change, the change evidenced by the By-law Amendments is a change in use, inasmuch as a variance, and not a special permit, is now required for construction in the Watershed District 12. On or about May 17, 1985, . MacMiff submitted an 7 "Application for Relief from the Requirements of the Zoning Ordinance" (Exhibit -No. 10) to the ZBA. By this Application, MacMiff sought a special permit to construct the aforesaid single- family residence on Locus, said dwelling to be located within. one hundred (100) feet of a tributary to Lake Cochichewick. MacMiff did not pursue its special permit application before the Planning Board nor did the Planning Board ever take any action with respect thereto. 13 . On July 2, 1985, following a public hearing on the matter, the ZBA filed its decision on MacMiff's special permit application with the North Andover Town Clerk (See Exhibit No. 12) . In its decision, the ZBA voted unanimously to deny MacMiff's application for the following. reasons: . the provisions of Section 10. 31 were not satisfied, specifically, that the site is not appropriate because of the lack of a town sewer. The provisions of Section 4. 133 (1) were also referenced and the grant of the permit would not protect the public health and welfare. The Board also took note of the action of Town Meeting, prohibiting construction around the Lake and pending the study of the Lake. 14. On July 22 , 1985, MacMiff filed an appeal of the ZBA's decision with the Essex County Superior Court, said action being referred to herein as Miscellaneous Case No. 133740. 15. By deed from MacMiff dated September 2, 1986, recorded at Book 2306, Page 87 in the Essex North District Registry of Deeds (Exhibit No. 2) , Mifflin and MacLeod acquired title to Locus as tenants in common. I 8 16. On or about September 6, 1988, Mifflin and MacLeod filed a petition for reconsideration of MacMiff's 1985 application for relief from the requirements of the By-law (See Exhibit No. 11) . 17. At a public hearing held on October 11, 1988, the ZBA voted to deny the application for reconsideration, on the ground that such petition was not properly before such Board. Specifically, the ZBA noted that "there shall be no reconsideration of a decision of the Board, except upon written request of the applicant or a person aggrieved by the decision filed with the clerk not later than ten (10) days after the filing of the decision with the Town Clerk" (Exhibit No. 17) . 18. On November 4, 1988, Mifflin and MacLeod filed an appeal of the ZBA's denial with the Essex County Superior Court, said � action being referred erred to herein as Miscellaneous Case No. 133741. Massachusetts General Laws Chapter 40A, Section 17 provides in relevant part, as follows: Any person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the land court department . . . The court shall hear all evidence pertinent to the authority of .the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require . . . In reviewing such appeals, the Court hears the matter de novo, makes independent findings of fact and affirms the decision of the special permit granting authority unless it is found to rest on legally untenable grounds or is unreasonable, arbitrary, whimsical or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 9 • i 635, 639 (1970) ; S. Volpe & Co. , Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 35, 359 (1976) , Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979) ; Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980) . Insofar as the Court's review is limited to the validity of the special permit authority's action in granting or denying the special permit application, Kiss v. Board of Appeals of Lonrnneadow, 371 Mass. 147, 154 (1976) ; Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112, 119 (1983) , the Court is prohibited from substituting its judgment for that of such authority. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969) ; Subaru at 486-488; Garvey at 856. Following the endorsement of the ANR Plan, MacMiff, on April I 9,, 1985, submitted its special permit application to the Planning Board (See Finding No. 4) . After the April 28, 1985 Amendments to the By-law, however, the Planning Board no longer had authority to hear or act upon such applications. This apparently was understood by MacMiff, inasmuch as it filed an application for a special permit with the ZBA on May 17, 1985. The ZBA properly considered the application in accordance with the standards set forth in Section 10.31 (Special Permit) of the By-law, inasmuch as MacMiffIs right to have its application heard and considered under Section 10.31 was preserved by the aforesaid endorsement of the ANR Plan. In any event, I find that the ZBA did not act unreasonably or exceed its authority in denying MacMiff's special permit application. 10 Generally speaking, a board's decision to deny a special permit does not require detailed findings. See Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162 (1962) ; Board of Appeals of Southampton v. Boyle, 4 Mass. App. Ct. 824, 825 (1976) . The record before the Court indicates that the ZBA's decision was based. primarily on the proposed project's lack of Town sewer. I find this determination, which was reached in accordance with the Town's interest in preserving the purity of Lake Cochichewick, to be reasonable in view of the requirement, under Section 10.31(d) of the By-law, that the special permit granting authority find that "adequate and appropriate facilities will be provided for the proper operation of the proposed use" . I As to MacMiff's filings with the Planning Board on April 9, 1985, I find that, by its subsequent filings with the ZBA on May 17, 1985, MacMiff had waived any right under such prior filing. Moreover, since the Planning Board had no authority to hear or act upon the pending application after April 28, 1985, it could not thereafter approve the same by nonaction or otherwise. I find further that the ZBA's denial of Mifflin and MacLeods 1988 application for reconsideration was proper and did not exceed its authority for the reasons stated by the ZBA and for the applicants' apparent failure to comply with G.L. c. 40A, §16. I note further that, even if the ZBA had agreed to reconsider MacMiff's special permit application, it is likely that the petitioners therefor would be faced with variance standards, rather than those of a special permit, inasmuch as the zoning protection afforded them 11 I under G.L. c. 40A, §6 had expired in November of 1987. In consideration of all of the foregoing, I rule in summary that the ZBA's denial of MacMiff 's special permit application, as well as its subsequent affirmation of this decision in October of 1988, are reasonable in light of the By-law Amendments and, accordingly, must be upheld. The Plaintiffs and Defendants have. filed requests for findings of fact and rulings of law, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, insofar as I have made my own findings and rulings as to those facts d rules g g an les of law which I deem most pertinent hereto. Judgment accordingly. i U Robert CaFchon �-dustice Dated: August 31, 1990 j I I 12 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Essex, ss Miscellaneous Case No. 133741 DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, Plaintiffs VS. THE NORTH ANDOVER ZONING BOARD OF APPEALS, acting by and through its Members: WILLIAM J. SULLIVAN, AUGUSTINE W. NICKERSON, WALTER F. SOULE, RAYMOND A. VIVENZIO, ESQUIRE and ANNA P. O'CONNOR and THE NORTH ANDOVER PLANNING BOARD, acting by and through its Members: PAUL A. HEDSTROM, GEORGE PERNA, JOSEPH MAHONEY and JOHN SIMONS, Defendants J U D G M E N T This cause came on to be heard on April 6, 1990 and was argued by counsel and thereupon, upon consideration thereof, it is ADJUDGED and ORDERED that the Plaintiff MacMiff Development Corporation's application for a special permit to construct a single-family residence within one hundred feet of a tributary to Lake Cochichewick, on land located at 163 Salem Street in North Andover was not constructively granted by the Defendant, North Andover Planning Board, ; and it is further ! ADJUDGED and ORDERED that the Defendant, North Andover Zoning Board of Appeals, did not act unreasonably or exceed its authority ! in denying the petition of the Plaintiffs, Mifflin and MacLeod, to reconsider MacMiff Development Corporation's application for a special permit authorizing the aforesaid construction at 163 Salem Street in North Andover. j By the Court (Cauchon, J. ) Attest: � Charles W. Trombly, Jr. Recorder Dated: August 31, 1990 a 4t4a, y A1R" : i v J . COMMONWEALTH OF MASSACHUSETTS LAND COURT . • DEPARTMENT OF THE TRIAL COURT Essex, ss Miscellaneous Case No. 133740 WILLIAM S. MacLEOD and DOUGLAS MIFFLIN and MacMIFF DEVELOPMENT CORPORATION, Plaintiffs VS. TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS, FRANK SERIO, JR. , CHAIRMAN, ALFRED E. FIRZELLE, ESQUIRE, AUGUSTINE NICKERSON, WILLIAM SULLIVAN and WALTER SOULE and TOWN OF NORTH ANDOVER PLANNING BOARD, PAUL A. HEDSTROM, GEORGE PERNA, JOSEPH MAHONEY and JOHN SIMONS, Defendants J U D G M E N T This cause came on to be heard on April 6, 1990 and was argued by counsel and thereupon, upon consideration thereof, it is ADJUDGED AND ORDERED that the Plaintiff MacMiff Development Corporation's application for a special permit to construct a single-family residence within one hundred feet of a tributary to Lake Cochichewick, on land located at 163 Salem Street in North Andover was not constructively granted by the Defendant, North Andover Planning Board; and it is further ADJUDGED and ORDERED that the Defendant North Andover Zoning Board of Appeals acted reasonably and did not exceed its authority in denying the Plaintiff MacMiff Development Corporation's application for a special permit authorizing the ,. aforesaid construction at 163 Salem Street in North Andover. By the Court (Cauchon, J. ) Attest: Charles W. Trombly, Jr. e_z Recorder Dated: August 31, 1990 ATTWT LEONARD KOPELMAN KoPELMAN AND PAIGE, P.C. DONALD G.PAIGE ATTORNEYS AT LAW ELIZABETH A. LANE JOYCE FRANK 101 ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1112 JOEL B. BARD RICHARD J.FALLON (617) 951-0007 GEORGE M.MATTHEWS FAX(617) 951-2735 JAMES A.DYREK WILLIAM HEWIG III EVERETT J.MARDER JANE M.O'MALLEY PATRICK J.COSTELLO KAREN V.KELLY COLLEEN B.WALKER SONDRA M.KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS JOANNE BLITTERALL BRIAN W.RILEY 45t: r v� 12, 1990 Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: MacLeod, Mifflin et al v. North Andover ZBA Land Court Misc. Action Nos. 133740 133741 Dear Members of the Zoning Board: This is to notify you that the plaintiffs in the above case have appealed the August 31, 1990 decision of the Land Court upholding your denial of the plaintiff's special permit applications. The Land Court ruled that your denial was proper. Since the court ruled in our favor, it did not act on my Motion to Dismiss. In order to preserve the right to argue for the Motion to Dismiss before the Appeals Court, I have also filed an appeal.. I will inform you of the progress of the appeals. Very truly yours, el B. Bard JBB/dk cc: Board of Selectmen I i r LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. DONALD G. PAIGE ATTORNEYS AT LAW ELIZABETH A.LANE JOYCE FRANK 101 ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1112 JOEL B. BARD RICHARD J. FALLON (617) 951-0007 GEORGE M. MATTHEWS FAX(617) 951-2735 JAMES A.DYREK_ WILLIAM HEWIG III EVERETT J. MARDER JANE M.O'MALLEY PATRICK J.COSTELLO KAREN V. KELLY COLLEEN B.WALKER _ SONDRA M. KORMAN ANNE-MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS JOANNE BUTTERALL October 12 , 1990 BRIAN W RILEY BY HAND DELIVERY Clerk Land Court Room 408 Old Court House Boston, Massachusetts 02108 Re: Mifflin, MacLeod v. North Andover Zoning Board of Appeals Land Court Misc. Action No. 133740 133741 Dear Sir/Madam: Enclosed please find Defendants' Notice of Appeal in the above j matter. Please file same. Thank you for your attention to this matter. Very truly yours,, I J 1 B. Bard JBB/dk cc: David L. McLellan, Esquire North Andover Zoning Board of Appeals North Andover Board of Selectmen i COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. LAND COURT MISC. ACTION NOS. 133740 133741 DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, Plaintiffs V. THE NORTH ANDOVER ZONING BOARD OF APPEALS, acting by and through its Members: William J. Sullivan, Augustine W. Nickerson, Walter F. Soule, Raymond A. Vivenzio, Esq. , and Anna P. O'Connor, Defendants NOTICE OF APPEAL The defendant North Andover Zoning Board of Appeals hereby appeals the decision of this court dated August 31, 1990. NORTH ANDOVER ZONING BOARD OF APPEALS By its Attorneys, Jc�eV B. Bard (BBO #029140) Ko lman and Paige, P.C. Town Counsel 101 Arch Street Boston, MA 02110 (617) 951--0007 CERTIFICATE OF SERVICE I, Joel B. Bard, hereby certify that on this date a copy of this Notice of Appeal was mailed, first class, postage prepaid, to David L. McLellan, Esquire, Caruso & McLellan, One Elm Square, Andover, Massachusetts 01810 Dated: h�//z UZ49VZEL Jty B. Bard, Esquire .0 O Town of NORTH ANDOVER O BUILDING PERMIT INSPECTION REPORT PERMIT NO.: 43V PROJECT: um .2 /a BA � Q l DATE: UNIT NO.: FLOOR: Still U.Nd"I WING: BUILDING NO.: REMARKS: 17, 4 i 0 Excavation-depth and soil conditions Framing- Other: Date: Date: Date: Inspector Inspector Inspector Footings and foundations and drains- Insulation- Other: Date: Date: Date: Inspector Inspector Inspector Electrical-rough- Plumbing and/or gas-rough- Other: Date: Date: Date: Inspector Inspector Inspector Electrical-final Plumbing and/or gas-final Other: Date: Date: Date: Inspector Inspector. Inspector - ire Dept- l burner,tank,stove,smoke detectors Final inspection Certificate of Use and Occupancy Date: Date: Date: -Cof 0# Inspector Inspector Inspector Form#995 Action Press,685-7000 f� '&cation l Date NORTH TOWN OF NORTH ANDOVER 3? • O� + X J(, Certificate of Occupancy $ s„CbUs< Building/Frame Permit Fee $ Foundation Permit Fee $ Other Permit Fee $ TOTAL $ �% Check # Building inspec6,r/ s TOWN OF NORTH ANDOVER BUILDING DEPARTMENT APPLICATION TO CONSTRUCT REPAI RENOVAT OR D,E�MOLISH A ONE OR TWO FAMILY DWELLING :,; 3H4tFY^�'` ,'�`" . ,��•'`'�' q .r,'.,F t, _ VIA"'a� .y��6 F � ,¢ .� BUILDING PERMIT NUMBER: DATE ISSUED: SIGNATURE: BuildinE Commissioner/I for of Buildings Date SECTION 1-SITE INFORMATION 1.1 Property Address: 1.2 Assessors Map and Parcel Number: 37b 'Yo Map Number Parcel Number 1.3 Zoning Information:: / 1.4 Property Dimensions: le 605, Zoning District Pro Lot Area(sf) Frontage ft 1.6 BUILDING SETBACKS ft Front Yard Side Yard Rear Yard Required Provide Required Provided Re ored Provided 3t1 5p` j ii i q/° 30 1 106 .1 1.7 Waterapply M.G.L.C.40. 54) 1.5. Flood Zone Information: 1.8 Sew a Disposal System: Public Private ❑ Zone Outside Flood Zone Municipal On Site Disposal System ❑ SECTION 2-PROPERTY OWNERSHIP/AUTHORIZED AGENT 2.1 Owner of Record CC !/,��,(� ( d r/ro�P o as� S Gr /,�0�C ��� �. /�✓IJ�D L/P �, N�amePrint) Address for Service: Signature Telephone 0 2.2 Owner of Record: Name Print Address for Service: Signature Telephone SECTION 3-CONSTRUCTION SERVICES 3.1 Lic /sed Construction Supervis Not Applicable ❑ R4eeV4 f ALrc used Construction Supervisor: 02 3 7 0 1 y S! 0 5) o 0 5! License Number �Addwss 6 ? 2-5- 0 1/0 /0 L > Expiration Date ic Signature Telephone 3.2 Registered Home Improvement Contractor Not Applicable ❑ Company Name Registration Number Address . a� Expiration Date Signature Telephone r� SECTION 4-WORKERS COMPENSATION(M.G.L, C 152 § 25c(6) f Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide this affidavit will result in the denial of the issuance of the building permit. Signed affidavit Attached Yes...... No......,❑ SECTION 5 Description off Pioposed Work(check all applicable) New Construction Existing Building ❑ Repair(s) 0 Alterations(s) 0 Addition 0 Accessory Bldg. ❑ Demolition ❑ Other ❑ Specify Brief Description of Proposed Work: SECTION 6-ESTIMATED CONSTRUCTION COSTS Item Estimated Cost(Dollar)to bens «��OFF3CIALUST,Oft �' >z Completed by permit applicant 1. Building (a) Building Permit Fee zoo, 0 0 0 Multiplier 2 Electrical /0 do (b) Estimated Total Cost of Construction / 00 Or 3 Plumbing /0 1 060 Building Permit fee(a)X (b) f' 4 Mechanical HVAC /0 / 0 DO 5 Fire Protection SO C5 6 Total 1+2+3+4+5) 23-01000 Check Number SECTION 7a OWNER AUTHORIZATION TO BE COMPLETED WHEN OWNERS AGENT OR CONTRACTOR APPLIES FOR BUILDING PERMIT > I, 64C y Y � ,as Owner/Authorized Agent of subject property Hereby authorize �����s j P �<< `�! '� s 5 to act on My behalf,in all ma ers elative to work authorized by this building permit application. z � o S gi O Date SECTION 7bO{�WNER/AU ORIZED AGENT DECLARATION /? I, (_ CP`s Tel �e f 1"4 S as Owner/Authorized Agent of subject property Hereby declare that the statements and information on the foregoing application are true and accurate,to the best of my knowledge and belief e'J i. ('" /yl.ce-;/,f 5 Print n ' Z7 0/ Si ah Date NO. OF STORIES Z SIZE BASEMENT OR SLAB 9 s r^i e SIZE OF FLOOR TEVIBERS IST2,x / 0 2ND 2,e U 3kD X SPAN y DIMENSIONS OF SILLS DIMENSIONS OF POSTS G R I DIMENSIONS OF GIRDERS 4/ - 2 x / 0 HEIGHT OF FOUNDATION 7' /0 THICKNESS /c SIZE OF FOOTING /4 X j 0 X MATERIAL OF CHIMNEY Z ee-o e r+e, vi c e IS BUILDING ON SOLID OR FILLED LAND So/'4 IS BUILDING CONNECTED TO NATURAL GAS LINE C S 8/16/2016 Town of North Andover Mail-Fwd:163 Salem NoR�'ARhOVIR Iwassachusns- Maura Deems <m deem s@northandoverm a.gov> Fwd: 163 Salem Heidi Gaffney <hgaffney@northandoverma.gov> Mon; Aug 15, 2016 at 4:25 PM To: Maura Deems <mdeems@northandoverma.gov>, Donald Belanger<dbelanger@northandoverma.gov> just a heads up if they call or come in. The owner is a friend of one of our commission members. ------Forwarded message-------=- From: Heidi Gaffney <hgaffney@northandoverma.gov> Date: Mon, Aug 15, 2016 at 4:24 PM Subject: 163 Salem To: Jack Mabon <Jmabon53@gmail.com> Cc: Jennifer Hughes <jhughes@northandoverma.gov>, Jean Enright <jendght@northandoverma.gov> Hi Jack,long story short,this one is within watershed... It was built in 2001,the house,etc was moved outside the loo' Buffer Zone so no cons permit was needed,but it was moved due to a lengthy permitprocess which resulted in a court case, etc with the ZBA under the watershed protection rules when the request for a variance to have the house within loo'was denied. The homeowners first stop would be to see Don the new building inspector. Aside from that,if they move forward they would need anew delineation,it would need to go before planning for a watershed special permit,possibly zoning (and I'm not sure what would be approvable)and con comm, con comm would be the easy permit in this situation. I'm assuming they are looking at doing an inground pool? The owner would also want to talk to Jean Enright about the watershed part to see what is permittable. Attached is the plan that was attached to the building permit from 2001. Feel free to have them come in or call if they have questions. But they should see Don first,his office hours are M-Thurs 8-10& 1-2 and Friday 8-1o. Heidi Gaffney Conservation Field Inspector Town of North Andover 1600 Osgood Street, Suite 2035 North Andover, MA 01845 ' Phone 978-688-9530 Fax 978-688-9542 Email hgaffney@northandoverma.gov Web www.noahandoverma.gov p, Y Heidi Gaffney Conservation Field Inspector Town of North Andover 1600 Osgood Street, Suite 2035 https://m ai l.google.com/mail/ca/u/0/?ui=2&i k=aeO2b3b5c4&view=pt&search=i nbox&m sg=1568fe2352fbbO8c&si m l=1568fe2352fbb08c 1/2 Date.?:.,.)/:U . . 1+ TOWN OF NORTH ANDOVER A PERMIT FOR PLUMBING i +O+•r,o�A��44 SA HUS ' . . .This certifies that . .�'�.4.�.,.,��.F��'r. zl . . . . . . . . . . . . . has permission to perform . . . . , � { . . �'� . . . . . . . . . . . . plumbing in the buildings of . . .0(('k t'` . . . . . . . . . . . . . . at. . <f. . .s./ . . . . . . North Andover, Mass. Fee.3.),).-r. .Lic. No..�: �,.l. . . . . . . . . .)1.1 _. . . . . . . . . /PLUMBING INSPECTOR Check # ) ` ' 5175 y, MASSACHUSETTS UNIFORM APPLICATION FOR PERMIT TO DO PLUMBING (Print or Type) A . Plass. Uate !: City, Town P6rndt a �J Building Owner ' --- S; A'P: I,oca tion - Name c. _ • Com:. S •- - --._,..._ .----____�..__...-------._..�_.._ 7'Yl>e of O1'k'ttlrallc)y i' New Renovation ❑ Repl.acement/El �i l 'f PlalIs FIXTURES Sulmli.tt.ed: Yps ❑ No ❑ ^'� 5 z yr a •� l z Id i1 fN J N O Z Y W W W !L J N V W O O cc cc ; N Z ffl < K ix _ __ J N V! N W h el W N x 4 �/► U. z d Y� j CC WOC 0. i� V = O /n W ¢ '� t w z G 4 N z cc o. a cc W < N N W. J p p cc < 1 Cc d Y .Z1 le IL O ir h Z d W LL W W < h Y I'= O y y O N 1 z 0 0 W W h O 0 x < < O < J ca 4 O 4 h N O C J = h N IL C7 D C < 3 K m O " `II SUB-BSMT. BASEMEHT 1 ' L , 1ST FLOOR i{' •'; 2ND FLOOR ,RD FLOOR i:.i 4T11 FLOOR STN FLOOR t 6T11 FLOOR { 7TH FLOOR 4 ) _ (Print 01 "type) ( l ` Chcck O • Ccrtif:ate �7coInstalling Company NamerP 2� — Address ❑ Partncrshir.. 15�w ' , _•__ E �` �• ��� ❑ Firm/_C�mpany - ' . Business Telephone o � ,�u � Name of l.iccnscd Plumber-or.Gaslittcr I hereby certify that all of the details and information I have subnlincd(or entered)in above application arc true and accurate In the best of my Y Y .knowledge and that all plumbin j work and installations performed under 11cnnit issued for this application will he in compliancc with all pertinent pfOV1a11/11a elf(Ile Maswchusena Slate(Ills C Ode and Chapter 142 of the f lelleral I aws. ;.;. �r•� d",;I have informed the owner or hisaggcnt that I do not have liability insurance including cum le,ted upciations cobra . .r. ---- - Signaluie id ownerlArenl _ have it current liability insurance policy to include completed operations covelade, ❑ BY -------- Signature of Licensed I/lunlber� isle Type of Plum iig License City/'Town — — ---- —_ �—_ ❑ - Ktaistc� ,luurneyman E APPROVED (OFFICE USE ONLY) license Number N. y J Foram 1240 Hones,a WAwleN.INc: 1989 Vii: ' Date. . . . . . . . OF`HO oTH 91' 4. TOWN OF NORTH ANDOVER A PERMIT FOR GAS INSTALLATION }" gs9SSAC HUSEt� This certifies that . :S76. `•. .! � has permission for gas installation . . .`.`: . .�: . .:`. . . . . . . . . in the buildings of . . . . �' e. .; . ' . . . . . . . . . . . . . . . . . . . . I at . . . . .... . . . . . ' . . . . . ., North Andover, Mass. Fee. Lic. No.. ?. . . . . . . . . . . . . .' . . . . . . . . ... .7 . . . . . . . 1: GASINSPECTOR Check# l 3 ° 64 MASSACIIUSETTS UNIFonM APPLICATION FOIZ PEIIMIT TO UO GASFITT!NG bbl (Print or Type) 1_ Date a�. BLIilding Permit # ri Location - Owner' ' t N(lme +" Plew Renovation [� Rrlaocelnrnt L) I'luns Suhnuticcl: Yes ❑ No ❑ alN N v y1 ({NY' .. t C 1•• �• U Z I . < o 1 l <) � . YI I. 01t; i 0 �u i 3 0 S v o° > a o 1- o SUB-BSMT. BASEMENT �"Y IST FLOOR ` ..--'•.•-•-----�-L__I....I _I _.L_.I.._.I.....I._..I....I_.I... ! _I. ..I....L_ I ..I _I.!L_L.._.I- I-- I --I..._I -•I--L._ ;t: 7NnFLOOR I.._I•--°--I--'I _•I--'I- �--'I �•I' I .. �...I . .I--I._ .L. I_.. I....I.._I . I .. I ...I _ I_. I_..I—I--L--- iRnrLOCR__I .... ._I._..I.... L..I 4 rl l.FLOOR `1 ` -_.. ..... ... ..._.. —I—L ..I --I..._I. L._.I_ L_.I_...I. I... L.....L._j_ .__L_.L__I. I...L. .I ..I.._I..-I—I—I-- :.>.�• 5 a 5TI1 rI CSAR DTII rt.onn !, 7711 rLoolt �Tii n.clort 1_.J... J_ . :... C —�— leek une. Ccrrttificote Instrllling Company Hollis C or�. Addi ess I —-- 7----N - — u Partnership Ll Firm/Co. !: BUSil1CSS Telephone Nome of Licensed Plumber or Gas Fitter tlAc w�1 INSURANCE COVERAGE: Check one 1.� I have a current liability insurance polioy or its substantial equivalent. Yes Q No ❑ ;"!;y,t If you have checked yes, please indicate the type coverage checkin the a YIY 9 ppropriale box. :y�tar A liability insurance Policy O 01her type c-•f indemnity UBand I) OWNER'S INSURANCE WAIVER: I am owore thut the licensee toes not have Ilse insurcmcc: coverage req.lired by �I , Chopler 142 of lite Moss. General Laws, and that my signolure on this pelmil OPPlicnliun w,lives this requirement. ,1 Check one: -----'— -----'----- - _�—.____.... Owner ❑ Agent ❑ K r�ig1l 111,r of Ownrr of Ownrr's Agent i, 1 hrrrby err Illy Ilml all of the details and In( onnallon 1 have suhmlllyd Ic+r cnlricdl In Ill* nbove epplicalinn era tfur %old atcurete to the best or my+:i;� �.nnwlrrlge, end that all plumbing work nrvl Inctallatiom prrlrnmrrl under the prrmll Issurrl lot Ihls ergrllcnllon will he In cnrnpliance with all perlfrwnt„.; prnvi:ilen of the MnssachusMts State GAS Codo and (:hnpler 142 or the General Laws, � 1- Typo of License: ' Fee �Plunlber � ,� Check # p Gaslitter Signature of licensed Phimbar or as Filter Date 'Master /1PPROVED (Olfice Use Only) 0 Journeyinnn License Numbor . - a� 2 / Date..-/........... .... ............. f HORTIi, ° t"'°;°•"° TOWN OF NORTH ANDOVER PERMIT FOR WIRING �,"$ACMUsE� This certifies that / ............... .......... .......................................... '0' has permission to perform.. c?.... .................................................. wiring in the building of "' - �`'.:....� ............. ,North Andover,Mass. at...................... „ ...: n Fee--?al—..:7.'<Lic.No ?4. ... . ................ e e ELECTRICAL INSPECTOR Check # �`�' 7 I � 21&IE OFh14SS4C71=VM O.�_� DAPARTMEATOFPUB KS9IM - Permit No. 1 BDARDOPF REPRL'YEVIMRE UL47M 27ae RnM Occupattry dt Fees Checked APPLICATTONFOR PERMIT TO PERFORM Ef CTRIC L WORK ALL won To aH PE won4ED EN AcccRDANCE wrrHim MAmAaiusm&ECERECAL CODE,527 CMR 12:00 (PLEASE PRINT IN INK OR TYPE ALL INFORMATION) JIV D d Town ofNorth Andover To the Inspector of Wires: The undersigned applies for a permit to perform the electrical work described below. Location(Street&Number) Owner or Tenant / �! O �! od3wrler's Address O .�✓? d d� s this permit in conjunction with a building permit: Yes f.M No (Check Appropriate Box) //3 'urpose of Building .00140fjaolei17"� g4eV f- Utility Authorization No. a bdsting Service Amps�l� Vohs Overhead [::] UnderVound Q Na ofMetns low Service ? Amps /Volts Overhead [ZJ UndeWound IZ3 No:ofMcters � lumber of Feeders and Ampacity ocation and Nature of Proposed Electrical Work' CL✓' ONa No.of Lighting outlets Na of Not Tubs Na ofTrawformus Total KVA - :9 of Lighting Fixtures 1 swimming Pod Above Below Genrcedora KVA ground arbund Ifo.of Receptacle OuUcta Na ofoil BUMM Na of Emagaby Lighting Bandy Units 20.of Switch Outlets Na of Gas Bwmts 10.of Ranges Na of Air Can& Total FIRE ALARMS Ha of Z00Es Tons lo.of Disposals Na of Hem Total Total Na ofDaection and Td o KW bidding Devices a of Didnvashem Space Area Heating KW No:efSogeding Devices Na of SetfGontained DetectioalSoodingbevices D.of Dryers Heating.Devices KW Local Municipal UNner Connections Q x of Water Heaters KW Na of Na of Si Ban n.Hydm Massage Tubs Na of Motors Told HP =MCV-%W ftm ambos al, xb=ftGerlarallu+ts - eaanetLiali*lr>sr w=Plo6grND ewhnWedva6dploafdsarrlebthe0>Izb YE4 ND. Q Itynuitaaedto"M vd*bcoL .. JRANCE BOAT?(( J OetFft-IDSIMIt �,ateaVarle�•��aes rte:_ d ;�NAlV1E ��/.i✓1�d/i3�f /''r+�G%i!'G �� Vie• �/��4ti�� �f �'u�"�r..�Z"�.�_ Liot�eNo Si�P. WSUSBURAN EWANER;tam�lim>se not Al<Te1Na ---�e� oeaeua�ea-�setEzsrecµmn9dbYMa�achsotsC�ataalLaws � fti� � ie check one) Owner Q Agent El Telephone No. PERMIT FEE$ �� 2 2'00,, ; ,37 I Town of North Andover µORTH Building Department ?O=t� »b•6 0 27 Charles Street o ; North Andover, Massachusetts 01845 ~ (978) 688-9545 Fax (978) 688-9542 .^ O�4 cxnieiMu+tw�1 AcHus try APPLICATION FOR CERTIFICATE OF OCCUPANCY/INSPECTION ADDRESS LOT NUMBER S DMSION /V DATE REQUEST FILED DATE READY FOR INSPECTION - Z� 6 Z, FIVE 5 DAYS NOTICE PRIOR TO CLOSING DATE IS RE UIRED ALL WORK AND SI -O 'S ST BE COMPLETED WITHIN THIS TIlHE FRAME. A RE-INS ECT N E O, -FIVE ) OLLARS WILL.BE CHARGED IF STRUC NOT MEET PLICABLE CODES. SIGNATURE OFFICIAL E ONLY ROUTING CONSERVATION C' DATE PL ATE W' s 6 D_P.W. -WATER METER DATE c �- v� D.P.W. MUST INDICATE THAT THE WATER METER HAS BEEN INSTALLED T PECTION RE ST DATE. SI ATURE/DPW A ORIZATION Kellowgy Drafting Service P.O. Box 662 Windham NH 03087 Bus. 603 893-5277 ,p o\rw L Fax 603 890 - 6405 0 _.. I--- - _ Uil NAM E4 ROOKVIEW E$TATS& DRAWING L354 PAGEi Front r=IsYaticn SCALF ri DATE: 12/30/01 Kelloway Drafting Service P.O. Box 662 Windham NH 03087 Bus. 603 893-5277 Fax 603 890 -6405 i I I I _ 12'x16' Deck I I I I I I ss'-b" I I 2-0" I s'-6" 13'4" I IS'-6" I I S`-9us" 5 1 -3" 2'-10" 3'-5" 6'-O LIDING I 5'-00 3'-B" ------------ pishwaeher FRAME FOR 2X6 WALL LJ —' - IST FLOOR ONLY _ Q BATH EATING AREA 9 STUDY 4 b ° 2'-4' Q KITCHEN N r,-a, N 2'-b" do 6,4" 4'-3�4" I 2. 7 2'- — -- _ - Rush Ref oven ; FAMILY ROOM 4 9 y - in 4 LIVING ROOM DINING ROOM 9 , FOYER i:9 N N 5utlt Out Picture Window 9 u 3i�u� 2i-4u "I'-6" 4r-9" n 2'-10" 5'-9" 2'-10" 5'-5" closet Closet _ ------- -------- N 6'-9° 31•60 3'-20 6'-Es" 3'-2" 3-60 6'-9" 3'-9" 2-80 4'4" 4'-4" ol 01 lo ol FIRST FLOOR PLAN _ et Floor elarl -1&9," 1, a T 2/30 1 Kellowgy Drafting-Service P.O. Box 662 Windham NH 03087 Bus. 603 893-5277 Fax 603) 890- 6405 41'-0" 3'-6" 6'•fo° 2'-10n 5 41 3'-5" 3'-8" 2'-10" r------------ E-0t Tub � 'V Bath z 0 L'Ueik-in Closet � � ; O q Bath `-' Bedroom _ Q 'd' GENERAL NOTES: \a/ 1. Smoke detector systems shall be 006 /\ ■ �+ type III in conformance with [3401.14.1.11 2'$" 2'-4" 2 - 2-41 Detectors shall be located as follows: r----••-------- 5'-e" _ A minimum of one per floor and basement, Puildown `P one per each 1,200 sq. ft. or part thereof. y One shall be located outside of each separate ------------ 4 0 r.9 sleeping area and / or near the base of, but - not within, each stairway. [3401.14.21 N M 5'-0" SLIDING 2. ventilation: Kitchen and bathrooms shall have 2-6 mechanical venting systems that provide 20 cfm/ Master _ g,-a„ occupant. Bathrooms with a window which opens Bedroom directly to outside air, no mechanical ventilation shall be necessary [Table 3401-2, 3401.5.2.1L ?' cfoeeti-" 3. Light and ventilation: All habitable rooms shall N be provided with aggregate glazing area of not 2 less than eight Bedroom Bedroom g (8) percent of the floor area of o such rooms. One-half (1/2) of the required area Q 3'-6" of the glazing shall be openable. "v 4. Hall and stairway widths shall be a minimum of 2'-10" X 4'-9" 2'-10" 4'-9° 13'-O" 2'-I0" X 4'-9" 2'-10" X 4'-9" 3 feet clear. Handrails may project no more than 3 1/2" into the required width [3401.10.4.2, 3401.10.8] 1'-4" X 4'-9" 31-6" 4'-9" 1'-4" X 4'-9" 6'4" 10'-O" 41'-0" 2ND FLOOR FLAN •�RQo_I�.� 1=srarEs �Y� PAGE: 2n Floor Plan— SCALF, 3116" DATE6 12/30/01 Kelloway Drafting Service P.O. Box 662 Windham- Bus, 603 893-5277 54'-34" Fax 603. 890 - 6405 6'-6%G° 12'-5" 25'-7° gl-gill r-' -------------2-1Qu- {,u---------- o ----------------O--9"_ {.IpIN�t-----------------------------------------------------------------�-jQ'� - 1-1"------------------------ --r I I v • - 0 v - V v - v v . v - O c • v v V v V C v v - v V - 0 D 0 0 0 0 v v v v D-D -------------------------------------------------- - o ' o q n � D'D `r D 2x6 wall 24'44° Q I I I I I I I I ' • 1 4"CONCRETE 01.41 - ELOPE 1/4"/FT, 4 I I (n I I I I D•D 6'.�"1 61-gll 'All � -gll -ell &-gl6-g6'-101'*`a" 4 ,- � .D D D ; GENERAL NOTES: r------ ----------- ------ ------------------- -------------------I -------- --'--------------------------- ------------ - - 1.Foundation walls shall extend at least 8"above finish grade Q -i--------_-'y-----_ ------.------------- -----•---------------- ------------------- --"_---__ ._------------------- ------------------- - W-------_" --_ ° > 1------------------------- --------------------------- ------------------------------ -_-_----__-___-_--_--__ -_'---____--- `� 2.Exterior surfaces of masonry foundations enclosing basements =------ ------ --------- - - -- - - --------------------------- --------------------------- ------------------------------ ------------ 3. dations shall be damproofed The ultimate compressive strength of concrete foundations D D e"w x a"NT.x 0'DEEP 4-7XIO®EAM at 28 days shall be not less than 2,000 ibs./sq.in, I BEAM POCKET ___ Q 4 Foundation anchor bolts shall be a minimum of 1/2"in diameter, r- ; I 4"STEEL LALL1'COLUMNS They shall have a minimum embed of$"in poured concrete. There shall be a minimum of 2 anchor bolts per section of sill plate. D e ReawREn Maximum space shall be 8'O.C. S.Concrete slabs on grade shall have contraction joints with GARAGE d' a depth of at least 1/4 the slab thickness. These shall be spaced not more than 30'in each direction. Contraction joints shall be D'D placed where offsets are more than 10' p Contraction joints are not required where 6"x6"10 GA.welded wire D Dfabric or equivalent is placed at a mid-depth of the slab. Q 6.The bottom of any point of a foundation shall be a minimum of 4'0" r- bellow finish grade, 7.Studs in a framed kneewalls shall be 14"min. in length and when the kneewall is cross-braced.additional story. than 4"0"in is ,it shell be of the size required heightq • Q I for an additional story. Kneewalis shall be thoroughly and effectively D,D a.a• o w D'DD D• c v n v v o 0 0l DD'DD ;i!;iI DD DD c!-N I c ----_------yu----------__ -____________ 8.Ends of wood irdersentering m ason or concrete walls shall be ----------------- ------------------------ provided with 1/2'air spaces on top,sides and ends unless approved :7 '4 4' iN durable or treated wood is used. - -------------- ------------------------------------------- - -------- -------------------------------- u 4'4 I 1 ----- J 14'-0" 3'-2" 6'-8" 3'-2" 14'-O" 14'-0" FOUNDATION PLAN I Y-Ilowgy Drafting Service _ P.O. Box 662 Windham NH 03087 Bus. 603 893-5277 Fax 603 890 - 6405 10 FL' JS S Cc 16 0 -- --- -- -- --- -- --- --- --- --- --- -- --- -- -__ - _ -- --- - - -- --- -- - -- -- --- -- --- --- -- -- --- --- --- C OS BFIDG114G S EEO D -- --- -=- -=- -- __ ___ ___ _ -== __ ___ _ IEEE _ ___l I __ C R OS B R DGII IG 5 ED D C OS B IDGI G S EE D x10 FL' JSS 16 0,1C 2x1 F R �TS 0 1 �/C it H ll TYPICAL 2x10 FLOOR SYSTEM: 3/4" T*G PLYWOOD SUBFLOOR 2x10 FLOOR JOISTS w 16" o.c, w/ 2x2 CROSS BRIOGING PACE& lot Floor FraMing 11 i DATF• 12/30/01 KellowAy Drafting Service P.O. Box 662 Windham NH 03087 Bus. 603 893-5277 Fax 603 890 -6405 2xl..D FIN. STS ® 6" /C ROS E RID( ING AS NEE ED • �-21F10 L' JS'IS qI 16' 0 C OS B RIDGI sIG S EE D I TYPICAL 2xIO FLOOR SYSTEM. 3/4" T4Grt PLYWOOD SUBFLOOR 2nd FLOOR FRAMING PLAN 2x10 FLOOR JOISTS 0 I�11 o.a. W/ 2x2 CROSS BRIDGING V II I II _ Kelloway Drafting Service P.O. Box 662 Windham NH 03-087 Bus. 603 893-5277 Fax 603 890 - 6405 INN TYPICAL FRAME ROOF: 0225 ASPHALT SHINGLES 1/2" ROOF-ING PLYWOOD ROOF FRAMING PLAN 2X1° RIDGEBOARD 2X8 RAFTERS a 16" o.c, 2X6 COLLAR TIES g 48" o.c. NAMEo STATES DRAWIN PAGE,Roof Framing Plan II 3 Kefloway Drafting Service P.O. Box 662 Windham NH 03087 Bus. 603 893-5277 Fax 6_03) 890 - 6405 CONTINOUS RIDGE VENT TYPICAL FRAME ROOF - 0225 ASPHALT SHINGLES -1/2 ROOFING PLYWOOD \ 2x10 RIDGEBOARD 2x8 RAFTERS a 16" ox. 12 -2X6 COLLAR TIES 0 40 V -2X8 CEILG JOISTS 6 16° c.c. General Section Notes.- - R30 BATT INSUL, 1, Minimum ceiling height for habitable rooms is 1' 3". In a room - 1/2" DRYWALL with a eloping catling the prescribed ceiling height is required to only one half Of the area of the room. No portion of the room measuring less than 5 feet fintshed shall be included In 0 01110,550 '550^50,50 0 1X0 t 1X3 FASCIA calculating minmum area. 1X6, CONTINOUS VENT, AND IX5 SOFFIT �12" SOFFIT OVERHANG 2, Floor design line loads are based on tat Flr. a 40Lbe,/sq.ft. 2nd Floor m 30Lbsdeq.ft, and nonusable attics a 20Lbs,/sq,ft Roof design loads are 30 Ibe/eq,Pt. and 11bs/6q.ft. dead load. m TYPICAL EXTERIOR WALL 31 Fire stopping shall be probtded to cutoff all concealed draft openings and form an affective fire barrier between stories and between a top story ` -CLAPBOARD SIDING and the roof space. - AIR SPACE - 1/2" EXTERIOR SHEATHING 4. aire between st and 2nd fl and 2nd useable attics shall 2X10 FIRE BLOCKING h - 2" x 4" STUDS FILLED WITH have a minimum headroom of 6' 8 measured vertteally from stair 8� nosing. Basement stairs shall have a minimum of 6' 6" headroom. lk A - BATT INSULATION I------ - 1/ mil POLY VAPOR BARRIER 5. Insulation is R12.5, Floors over)heatue ed spaces R20ments f Roof andor rwalls eallin assemblies I...'-----' - 1/2 DRYWALL p g �-------` TYPICAL 2x10 FLOOR SYSTEM is R30 and finished basement walls is 812,5, --------- 3/4" TKs PLYWOOD SUBFLOOR -------- - 2x2 CROSS BRIDGING 6. A vapor barrier of Lo perm or less shall be installed on the winter Q warm aide of walls, ceilings and follre enclosing a conditioned space. 1. When eave vents are installed, adequate baffling shall.be provided 4-' to.deflect the Incoming air above the surface or the Insulation �-d with a 2" minimum clearance under the roof deck. - - 2X10 FIRE BLOCKING General Section Notes _- TYPICAL <NEEWALL - k BUILD UP L-------- - Rao Insulation " " v4" 0 2 x 6 STUDS WITH SILLS 1 FOUNDATION WALL �—'��—_r� - BATT INSULATION o _- 10" POURED CONCRETE I--------- W/ -__--__W/ 20" X 1o" FOOTINGS - 5/8" F.R. DRYWALL Ap o =m r i I 1 G-� p 1 4" CONCRETE SLAB e 4 TYPICAL SECTION R 1 !i WING PAcE6 TYPICAL SECTION 3/Iro" NORTH TONNM of over O No. 13 Al ~ o LA o dover, Mass., COCHICHEWICK A0RA7ED 1 S H BOARD OF HEALTH Food/Kitchen ' PERMIT T D Septic System BUILDING INSPECTOR THIS CERTIFIES THAT rooK.v� � Cotojl)y M i ................................................. Foundation at has permission to erect........................ buildings on ./ ��� .S �� ....S Rough .................... ............................................... .. to be occupied as.C.PIP.� �..���..a..toll...�...�{�I��. �����' �! �. �i� Chimney ja ................... y provided that the person acce tin this ermit shall in eve respect conform to the terms of t"h'i lication on file in •P g P ry P Final this office, and to the provisions of the Codes and By-Laws relating to the Inspection, Alteration and onstruction of Buildings in the Town of North Andover. D P y O 15a � 4sw PLUMBING INSPECTOR VIOLATION of the Zoning or Building Regulations Voids this Permit. Rough PERMIT EXPIRES IN 6 MONTHS Final UNLESS CONSTRUCTION ST S ELECTRICAL INSPECTOR Rough (•► Service ............ .. . ..... ................ ................................. BUILDING INSPECTOR Final ' Occupancy Permit Required to Occupy Building GAS INSPECTOR Rough Display in a Conspicuous Place on the Premises — Do Not Remove Final No Lathing or Dry Wall To Be Done FIRE DEPARTMENT Until Inspected and Approved by the Building Inspector. Burner Street No. SEE REVERSE SIDE smoke Det. f t 7,t6+ LG�Yt/✓�'d{T'J^4YJEi.'t�G/L` I4 BOARD OF UILDIG REGULATIONS, I ;, tLicense. CONSTRUCTION.SUPERVISOR. NUhlber:'CS 073001 Birthdate: 03/11/1971 { Expires. 0311.1/2002 Tr:no: 73901 _ Restricted To: 00 + t CHRISTOPHER M MACENAS _ } 98 MAIN ST N ANDOVER; MA 01545 Administrator i " { I ORTH Town o Andover. No. A?� ~ _ o ndover, Mass., T O = LAKE COC MIC NE WICK A4DR-ATE D SSACHUS� IT FOR EXCAVATION AND FOUNDATION THIS CERTIFIES THAT .... O V S .. .r............................................. ................... ....... .. ................... has permission to excavate and pour foun ation at .10 ' (�.38.4 e.............. .... ........ ............................ 14 for the purpose of.. .,. ......................... ........�.a....-•---....... ...u� �.....S ..... I"Ca The person accepting this permit must return to the office of the Building Inspector a certified plo pIan show of building thereon before Foundation will be inspected. M at) 0 ,b�o _ VIOLATION of the Zoning or Building Regulations Voids this Permit. PERMIT EXPIRES IN 6 MONTHS The holder of this Foundation Permit proceeds at own risk and without UNLESS CONSTRUCTION STARTS assurance that a permit for entire building structure will be granted. op C ..................... . BUILDING INSPECTOR DPW 326 Date ...>��. ...s C pORT/y `'•` ° TOWN OF NORTH ANDOVER RECEIPT t sSgCHUs� I ` 4 This certifies that ........ f............... .. ....... ....... v has pard... . ........ � ...... ....... f........�..1.....�....�... of for...' .�S.�. ...®.. ... Received by............................. .` ,....... .e R Department ..................111:1 . . . �. f 1.'. ...... �.......................... WHITE: Applicant CANARY:Department PINK:Treasurer i y i MAScheck COMPLIANCE REPORT Massachusetts Energy Code ( Permit MAScheck Software- Version_ 2.01 Release 2 { Checked by-/Date . CITY: North Andover STATE: Massachusetts HDD: 6322- CONSTRUCTION TYPE: 1 or 2 Family, Detached REA-TING- SYSTFX TYPE: Other (Non-Electric Resistance) DATE: 11-9-2000 TITLE: LEANNE DRIVE PROJECT INFORMATION: BROOKVIEW COUNTRY- HOMES INC PO BOX 531 N ANDOVER MA COMPANY INFORMATION: J&J HEATING- &- AIR- COND- 17 ARLINGTON ST DRACUT MA COMPLIANCE: PASSES Required HA — 56-3- Your Home = 515 Area or Cavity -Cont. Glazing/Door Perimeter R-Value R-Value U-Value ------------------------------- -------------- ---------------- CEILINGS .1.536 -- WALLS: Wood Frame, 1,6u -O.C. 2450 13.-0 _0.fl 2 GLAZING: Windows. or Doors- 383- 0,400 1 GLAZING: Windows or Doors 42 0.46-0 DOORS 39 0-400 FLOORS: over Unconditioned Space 1536 1.9.0 _0.0- HVAC EQUIPMENT: Furnace, . 92.0 AFUE -----------------------------------------------~----- ------ COMPLIANCE STATEMENT: The proposedbuildingdesign described here is consistent- with_ thee- bu i 1 di ng.plans-f- spec.i£ications, and other calculations submitted with the permit application. The proposed building -has been designed to meet the requirements of the Massachusetts Energy Code. The heating load for th' jl and the cooling load if .appropriate, has been_ determined u cable- S ndard Design- Conditions found in the Code. The HV l�eted at or cool the building shall be-- no- greater t e- de oad as specified in Sections 780CMR 13 0 a J i Builder/Designer �G~ Date p 4"Aassachusetts Energy Code �'. NiAScheck, Software-.Verse m 2..D1 Release 2 + LEANNE DRIVE DATE: 11-9-2000 t Bldg, ' Dept,[ [ . Use C-EILINGS:- [ ] { 3. 1 30- C-osu ts[Location r �. WALLS=r [ } 1. Wood ,Frame, .16° O.C. , R-13- Comments/Location . VINDOW ASM GLASS- DOORS.:- For windows without labeled. U-values_, describe features t 4 Pa-nes Frame -Type. , Thermal Break? [ j Yes [ ] No [ } { 2. -U-valu€: 0.4-b (- Far windows without labeled.. U--values-,, describe -features:. I Panes Frame Type_ Thermal -Break? j j Yes [ ] .No C Comen-ts-/Location C. [ } t 1. .0-value: - D-.4 Camme ts-/Locat.ion- FLOORS--- I-- 'Over LO©RI.- 'Over Unconditioned -Space-, R-1-4 Comments/Locatfom_ HVAC KQUIPMENT: - [ } + . .Furnace, . 42.-0- AFU.E -or #igher Make- and Model Number [ ] 2. ,Air Condrtioner,-.-1-0.0- -SEER fi �- AIR LEAKAGE_:. [ ] Joints:, •penetrations_,, and all other such openings_ in-the building envelope that are sources, of air : eaiage,must be -sealed When. installed- in the building envelope, recessed lighting fixtures shall. .meet.. one of the 'follawing..k rernriz rementst-1. -Type ,-IC rated, manufactured with no penetrations, between_ the_ inside.. of the . recessed fixture-_• and. ceiling cavity and sealedor gasketed to prevent air leakage_ into the unconditioned space_- Type IC rated, .im accordance -with Standard ASTM. E 253, with- no more--thaw 2.4 cfm-- (0-944 L/s-) air movement from the the conditioned space to the ceiling cavity. The lighting. fixture C shall have_ been tested at 75 PA- or 1.-57 lbs/ft2 pressure Idi€fe-rence and shall be labeled. ' e if VAPOR RETARDER: [ ] Required on the warm-in-winter side- of all ,non-vented framed ceilings, walls, and floors. MATERIALS IDENTIFICATION-- [ ] Materials and equipment must be identified so that compliance can }- be 'determined... Manufacturer manuals_ for all installed heating �- and. coaling equipment and service water heating- equipment must. be provided. , Insulation R-values, glazing U-values, and heating (. equipment efficiency must- be -clearly marked on the building pians or :specifications. �- 'DUCT INSULATION-: [ ] Ducts. shall--be insulated per Table J4.4.3 .1: DUCT CONSTRUCTION-- All ONSTRUCTION-All accessible- joints, seams, and connections of supply and return ductwork located onts.ida conditioned-. space., including stud bags or joist .cavities/spaces used: to transport air, shall be -sealed �- us'-.T. mastic, anti fibrous. backing- -tape-. installed according to the. �- manufacturer' s installation instructdms-. Mesh -tape_ may be omitted where gaps are less. =than. 1/8 inch. Duct. tape is- not r permitted- The` MVAC: system_ must provide a means for balancing air and water systems. TFXPERATflRF. CONTROLS:- _..� [ ] Thermostats are-.required- for each separate fWAC- system_.. A manual r or automatic. means. to partially restrict or shat off the- heating. andlox ceol-ng 'input 'to eacn zone or floor shall be provided. r HVAC: FSQULIPMENT S I ZING-- ] { Rated output- capacity o-f the -heatiuglcoolingsystem- is not greater than 1254. o€ the design. load as- specified In Sections_ 780CMR 1310 -and J4.4. . { r SW1MMI-ice POOL&:-. [ ] All -heated swimming poolsmust have an- on/o-ff heater switch and �- require a -cover unless_ over 20V -o-f the-- heating. energy is from r non-depletable sources. Pool pumps require a time clock. r HVAC: PIPING INSUL&TIO14. [ ] HVAC- piping conveying. fluids. above 120- F or chilled fluids f- below 55 F must be insulated to the -following levels (in. ) : �- PIPE SIZES HEATING- SYSTEMS-- , TEMP -(-F)' 2-1- RUNOUTS 0-1" 1.25-2" 2.5-4 f Low pressure/temp._ 201-250 1.0 1.5 1.5 2 .0 Low temperature 120-20-0 0.5 1.0 1.0 1.5 Steam condensate any - 1.0 1.-0 1.5 2 .0 CO01.-ING- SYSTEMS_:- chilled water or 40-555 `0.5 0.5 0.75 1.0 refrigerant below 40 1:0 1 :0 1.5 1.5 { CIRCULATING HOT `WATER -SYSTEMS: .�c Insulate. circulating- hot. water pipes_ to the following levels (in. ) : . C . PIPE SIZES (in. ) , `NON-CIRCULATING 1 ,CIRCULATING MAINS- & RUNOUT UEATED- WATER TEMP RUMOUTS_ G,1" ( 0-1:25' 1.5-2.0" 2.0+. �.. 174�i8A G.5 r 3 .0 1.5 2.0 �_. 140-160 0.5- 0.5 1.--0 1.5 100-130 0._5 ) 0-5 0.5 1.0 - -NOTES TO FIELD (Building Department Use Only)------------------------- i i i I I 1648 APPLICATION FOR SEWER SERVICE CONNECTION / -zoo/ North Andover, Mass. ` t9- Application by the undersigned is hereby made to connect with the town sewer main in Street, subject to the rules and regulations of the Division of Public Works. The premises are known as No. /�� £"/.�I Street or subdivision lot no. / ?2Z4ZQ L-� I J 1,e C'J Owner Address Contractor Addr s ' Ap is Signat e PERMIT TO CONNECT WITH SEWER MAIN The Division of Public Works hereby grants permission to e w to make a connection with the sewer main at Street Street subject to the rules and regulations of the Division of Public Works.. Divi on of Public Works By Inspected by Date See back for rules and regulations Town of North Andover Building Department a 27 Charles Street ` North Andover, Massachusetts 01845 ®,^ (978) 688-9545 Fax(978) 688-9542 A�R,TOD pPpy�C3 DEBRIS DISPOSAL FORM In accordance with the provisions of MGL c 40 s 54, and a condition of. Building permit # the debris resulting from the work shall be disposed of in a properly licensed solid waste disposal facility as defined by MGL cl 1, sl 50a. The debris will be disposed of in/at: Facility location X f• Sign4orfAppcant 5 Date NOTE: A demolition permit from the Town of North Andover must be obtained for this project through the Office of the Building Inspector. The Commonwealth of Massachusetts Department of Industrial Accidents Office of Investigations Boston, Mass. 02111 Workers'Compensation Insurance Affidavit Please Print Name: tj�d e Home S Location: 5R le n s T City /Y 14 �r � Phone G 5 5- am am a homeowner performing all work myself. �I am a sole proprietor and have no one working in any capacity © I am an employer providing.workers' compensation for my employees working on this job. Y Xeo66,CtJ C01, V N6iyC5 Company name: Address �o go x 31 City. IV. 4 NO a vt Phone* e�:, InsuranceCo. f�r `� �gs°�� Ty Policy# 4�` l 6 �� � o I ? -- Company name: Address City: Phone#: Insurance Co. Policy# Failure to secure coverage as required under Section 25A or MGL 152 can lead to the imposition of criminal penalties of a fine up to$1,500.00 and/or one years'impris a as well as civil.penafties in the f of a STOP WORK ORDER and a fine of.($100.00)a day against me. I understand that a c of tatement may be forwarded to Office of Investigations of the DIA for coverage verification. t 1 do herby certify n t p nd allies ofpequ t formation provided above is true and correct. Signature Date 3 Z 7 01 Print name �i7��sTP �� �9�r N� 5 Phone# Official use only do not write in this area to be completed by city or town official' ❑ Building Dept ❑Check if immediate response is required Building Dept ❑ Licensing Board ❑ Selectman's Office Contact person: Phone#: ❑ Health Department ❑ Other FORM WORKMAN'S COMPENSATION GROWTH MANAGEMENT BYLAW EXEMPTION STATEMENT TOWN OF NORTH ANDOVER BUILDING DEPARTMENT This form shall be used to assist the Building Department in their determination of exemption under section 8.7.6 of the Town of North Andover Growth Management Bylaw.The applicant shall provide all of the necessary information as requested below. �oo&,e*Q (0v-V7-,e)( /JoFtieS l� SR �eM ST 37,1110 Permit Applicant Property address Map/Parcel Applicant's Phone Number Single Family Two Family I the undersigned applicant for the above property attest that the attached building permit for which this form is completed does comply with the EXEMPTION section 8.7.6 of the Growth Management Bylaw.I also understand providing this form does not absolve me or any party to this permit from the requirements of obtaining other permits required prior to the issuance of the building permit.Further I understand that my interpretation of the exemption status is subject to review by the Building Department and is only officially accepted when the building permit is issued. Based on section 8.7.6 of the North Andover Growth Bylaw the above lot and the work as applied for on the above lot,in the building permit application and associated attachments,complies with one or more ofthe following sections as indicated by a check mark. This is an application fora building permit for the enlargement,restoration or reconstruction of a dwelling in existence as of the effective date of this bylaw,provided that no additional residential unit is created. The lot(s)was/were created prior to May 6, 1996 and are exempt from the provisions of section 8.7 of the Zoning Bylaw. This application is for dwelling units for low and or moderate income families or individuals,where all of the conditions of 8.7.6 are met and or represents dwelling units for senior residents,where occupancy of the units is restricted to senior citizens through a properly executed and recorded deed restriction running with the land For purposes of this section"senior"shall mean persons over the age of 55. This application is part of a development project which voluntarily agreed to a minimum 40%permanent reduction in density(buildable lots)below the density permitted under zoning and feasible given the environmental conditions of the tract,with the surplus land equal to at least ten buildable acres and permanently designated as open space or farmland.The land to bepreserved shall be protected from development by an Agricultural Preservation Restriction,Conservation Restriction,dedication to the Town,or other similar mechanism approved by the planning board that will ensure its protection. This application represents a tract of land existing and not held by a Developer in common ownership with an adjacent parcel on the effective date of this Section 8.7 and shall receive a one time exemption from the Planned Growth Rate and Development Scheduling provisions for the purpose of constructing one single family dwelling unit on the parcel This application represents a lot which is ready for a building permit(all other permits from all other boards and commissions have been received and the project is in compliance with those permits),and the Development Schedule does not accommodate issuing a building permit in that year.One building permit will be issued per year per Development until such time as the development schedule accommodates issuing building permits.Applicant must submit an approved FORM U with this EXEMPTION. PLEASE PROVIDE ANY AND ALL INFORMATION THAT WOULD ASSIST THE BUILDING DEPARTMENT IN MAKING A DETERMINATION THAT THIS APPLICATION IS ALLOWED UNDER ONE OR MORE OF THE ABOVE EXEMPTIONS. BY SIGNING BELOW I ATTEST TO THE ACCURACY OF THE INFORMATION PROVIDED AND THAT THE ATTACHED BUILDING PERMIT IS ALLOWED AN EXEMPTION AS CITED ABOVE. FURTHER I UNDERSTAND THAT THE SUBMITTAL OF MISLEADING OR INACCURATE INFORMATION OR THE CHEC OFF OF A ABOVE EXEMPTION WHICH DOES NOT COMPLY,WHETHER DONE TO MY KNOWLEDGE OR NOT UNDS FOR REFUSAL BY UILDING DEPARTMENT TO ISSUE A BUILDING P z7 �i P ADATE A C D TO B G PERMIT APPLICATION P I TOWN OF NORTH ANDOVER, MASSACHUSETTS DIVISION OF PUBLIC WORKS 384 OSGOOD STREET, 01845 J WILLIAM HMURCIAK, P.E. Telephone(979) 565-0950 DIRECTOR Fax(978)6689573 V40R?oq of", %c ati z t �,Ssacmustis�y DRIVEWAY PENT ff DATE C" 4 o P LOCATION BUILDER phone OWNER i /'o®LO('<eL1 ��`�� 4� hone THE NORTH ANDOVER SUPERINTENDENT OF OPERATIONS MUST BE NOTIFIED OF THE GRADE AND SETBACK FROM STREET . CALL THE SUPERINTENDENT'S OFFICE BEFORE FINISH GRADING AND SURFACING FOR APPROVAL OF SUCH ENTRY, FAILURE TO COMPLY AND OBTAIN APPROVAL VOIDS THIS PERMIT. Building Value Calculation - for Property at..... LOT#1 0,110 VMiRoom Length Width Sq.Ft. Cost per Sq.Ft. Total Cost Kitchen 22.5 14 315.00 65 $ 20,475.00 Living Room 15 14 210.00 65 $ 13,650.00 Dining Room 14 14 196.00 65 $ 12,740.00 Family Room 28 16 448.00 65 $ 29,120.00 Study 17 12 204.00 65 $ 13,260.00 Laundry 14 6 84.00 65 $ 5,460.00 Garage 26 24 624.00 35 $ 21,840.00 Entry 14 14 196.00 65 $ 12,740.00 Mudroom/1/2 bath - 65 Sunroom - 65 Sittingroom - 65 foyer - 65 Basement Finished - 65 $ - Deck - 10 $ - Screened Porch - 35 $ - Sunroom - 65 $ - Bedroom 1 26 16 416.00 65 $ 27,040.00 Bedroom 2 14 14 196.00 65 $ 12,740.00 Bedroom 3 14 14 196.00 65 $ 12,740.00 Bedroom 4 14 14 196.00 65 $ 12,740.00 Bedroom 5 - 65 $ - Bathroom 1 6.5 5.5 35.75 65 $ 2,323.75 Bathroom 2 14 8 112.00 65 $ 7,280.00 Bathroom 3 14 13 182.00 65 $ 11,830.00 Bathroom 4 - 65 $ - Bathroom 5 - 65 $ - Ml MININ o �� Slu �- j k r FORM - U - LOT RELEASE FORM i INSTRUCTIONS: This form is used to verify that all-necessary approval/permits from Boards and Departments having jurisdiction have been obtained. This does not relieve the applicant and or landowner from compliance with any applicable requirements. .............. ............... ...l.l...��PHONE .......... .............. APPLICANT �o �veC�I' �o y/�' :� g b ASSESSORS MAP NUMBER 370 LOT NUMBERD SUBDIVISION J LOT NUMBER STREET STREET NUMBER /�3 OFFICIAL USE ONLY RECONaffiNDATIONS OF TOWN AGENTS DATE APPROVED I 16( CONSERVATION ADMINISTRATOR DATE REJECTED CONUVIENTS k06 e Ira� DATE APPROVED UZ, TOWN PLANNER DATE REJECTED CONHVIENTS DATE APPROVED FOOD INSPECTOR-HEALTH DATE REJECTED DATE APPROVED SEPTIC INSPECTOR-HEALTH DATE REJECTED CONN EENTS PUBLIC WORKS—SEWER 1 WATER.CONNE TIONS DRIVEWAY PERNIIT cj DATE APPROVED FIIZE DEPAR q�X—A4tV 4,`6 1 DATE REJECTED COMMENTS RECEIVED BY BUILDING INSPECTOR DATE NORTH ,Svs cm!s61 CERTIFICATE OF USE & OCCUPANCY TOWN OF NORTH ANDOVER Building Permit Number Date 7•-o?9'--aoDo2 THIS CERTIFIES THAT THE BUILDING LOCATED ON JCD/ MAYBE OCCUPIED AS IN ACCORDANCE WITH THE PROVISIONS OF THE MASSACHUSETTS STATE BUILDING CODE AND SUCH OTHER REGULATIONS AS MAY APPLY. " •vG CR CERTIFICATE ISSUED TO �no o ku I e w pl� S,31 /Ue. Building Inspector i I tkORTFt 'And oVM ooverf 0 �, No. 13 0 0 LA 0 dover, Mass., 000C HICHEWICK RATED P?�L H BOARD OF HEALTH Food/Kitchen PERMIT T - .. 1p &it40 D Septic System BUILDING INSPECTOR THIS CERTIFIES THAT mo.....K......w..l.a.w..........&.c .jiy. —.............* ..69.L. .. .. . . . .. . Foundation has permission to erect............ ...... buildings on .4.14./...............14^ .3....S..A.M..M ...... ...... ..... ....... ... ......... Ro 0,;� L Chimney to be occupied as.... . ...0.0.44p.......S.1....... .. . .. .................. ... ...... . �In provided that the person accepting this permit shall in every respect conform to the terms of the a lication on file in Final this office, and to the provisions of the Codes and By-Laws relating to the Inspection, Alteration and onstruction of -a 9,-6) 2. Buildings in the Town of North Andover. P 4 0 PLUMBING INSPECTOR VIOLATION of the Zoning or Building Regulations Voids this Permit. u � PERMIT EXPIRES IN 6 MONTHS UNLESS CONSTRUCTION ST,��S ELECTRIC INSPECTOR AO ............ ....................................... rvice BUILDING INSPECTOR Occupancy Permit Required to Occupy Building GAS SPTOR Display in a Conspicuous Place on the Premises — Do Not Remove P& F& it 71- 1 tD No Lathing or Dry Wall To Be Done FIRE DEPARTME11ft Until Inspected and Approved by the Building Inspector. Burner Street No. SEE REVERSE SIDE Smoke Det.