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HomeMy WebLinkAboutMiscellaneous - 163 SALEM STREET 4/30/2018 (4) ;" Z)O(j c/-9 s 4. /NAG M 1 r F IV � a i �S `oaf r I � rt �� �, ;t i ,t I , , j ' I : � I � � � I t , r ! t �� � �..3� � 9- 6 - ��- I �� � � i r� 1 l `� i i � i f i i I , P jI 1 ' G a i i 1 3 �ouG'L95 P. i)JAC �F loft rqm S. f _ E �r 1 Legal Notice TOVM OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE of NORTh O m 13 y '9 �''r+o•rr� SSACMUSEI� September 10,1988 Notice is hereby given that the Board of Appeals will give a hearing at the Town Building,North Andover,on Tuesday even- ing the 11th day of October, 1988,at 7:30 o'clock, to all parties interested in the ap- peal of Douglas R. MacMiff and William S. MacLeod requesting a Special Permit of Sec.4, Para. 133 of the Zoning By Law so as to permit construction of a single family dwelling with related grading within 100.ft. of a wetland which is a tributary to Lake Cochichewick on the premises located at 163 Salem Street. By Order of It a Board of Appeals Frank Serio,Jr.,Chairman Publish in North Andover Citizen September 15 and September 11,1988 68460-1 The Primary, ■ c- nominations for the four-year term, to' and two,Charlie Arena and Daniel Silvia,.are competing for the unex- id pired two-year term. he In many ways,this primary de- a- cides the election in November. Read on to discover how the Candi-- en dates describe themselves and No their positions. What is your stand on building a new county jail in Middleton? Douglas Ballaid gun- It's unacceptable the way they ►eld have been running.They are over- crowded and losing money.I agree a new jail it needed but am against having the state take over manage- ment from the county. Middleton is logically a good _,___ ... ..... ., ,.,a it Ah "IA ,._,-. LegalNotice TOWi F NORTH ANDOVE8 MASSACHUSMS BARD OF APPEALS NOTICE Of NORtti O �° O « n a A S SAcHus September 10,1988 Notice is hereby given that the Board of Appeals will give a hearing at the Town Building,North Andover,on Tuesday even_ Ing the 11th day Of October, 1988,at 7.30 o'clock, to all parties interested in the ap- Peal Of Doulas R. MacMiff and W illiarn S. MacLeod requesting a Special permit of Sec.4,Para. 133 Of the Zoning By Law so as to permit construction of a single family dwelling.with Mlated grading within 100 ft. of"a wefl&M which is a tributary to Lake COchichewick on the premises located at 163 Salem Street. By Ofder of the Board of Appeals SioJr.,Chairmw 'ublish in North Andnover Citizen September 5 and September 22,1988 68460.1 y . � ............. i w { t Legal Notice:. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS. NOTICE ` f' f NORrh r September 10,1988 ' Notice is hereby given that the Board Of Appeals will give a hearing at the Town Building,Forth Andover,on Tuesday even- ing the 11th day of October, 1988,at 7:30 ` o'clock, to all parties interested In the ap- peal of pouglas R. MacMiff and William S. MacLeod requesting a Special Permit of . Sec.4,Para. 133 of the Zoning By Law so as to perm;t construction of a single family .�F.,dwelling rvilh related grading within 100 ft. of a wetland which is a tributary to Lake.' Cochichewick on the premises located at -163 Salem Street. By Order of the Board of Appeals { '` Frank Serio,Jr.,Chairman Publish in North Andover Citizen September 15 and September 11,1988 • 68460-1 �. t4 y � 1w 3?�r�M�R,b.•� ti F. AVMTA i ism i TOWN OF NORTH ANDOVER l MASSACHUSETTS BOARD OF APPEALS NOTICE .. r . . . .September. .10 .19. 88 Notice is hereby given that the Board of Appeals will give a hearing at the Town Building,North Andover,on. Tuesday. . . . evening . . . . . . . . . . . . the . llthday of . . . .October. . . . . . . . . . . ! 19. .88, W:3(b'clock, to all parties interested in the appeal of i Douglas -R. .MacMi£f .&.William.S.. MacLeod. . . . . . . . . . . . . . requesting .4, .Para. 13.3 . . . . .of the Zoning f. By Law so as to permit. . .construc.tion.of. a. s.ingle. family dwelling with related grading within 100 ft. of a wetland . . . . . . . . . . . . is a tributary' to Lake'Cochichewick'.' . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on the premises, located at. . . . . 163. Salem. Street . . . . . . . . . } . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a By Order of the Boar of Ap - .- I rank Seri h rman Publish in N. A. Citizen Sept. 15 & Sept. 22 9 188 j 1 r NO ✓' f red (S. grzelle K Atorney at C+o�(aw 131 gppletone trnel nn' (Mik Allover, (Mass. 01845 March 13, 1990 Joel Bard, Esq. Kopelman & Paige 77 Franklin Street , Suite 1000 Boston, MA 02110 Re: Mifflin and MacLeod v. The North Andover Zoning Board of Appeals Dear Mr. Bard: I tried unsuccessfully to contact you on Monday, March 12, 1990, prior to leaving for a business trip. I received a Notice of Deposition last week and subsequently received a Subpoena over the weekend. The Board' s office did not know who at your firm was handling this case. I telephoned Attorney McLellan and advised him that I probably would not be available on Thursday, March 15 . He informed me that you were handling the case. I am not a named defendant and I am no longer a member . . of the Board. I will wait to hear from you before doing anything . You may contact me days at (617 ) 523-3762 after Thursday, and evenings at (508) 683-9068 . Sincerely, 44d� Alfr E. Frizell , Esq AEF/jib cc: North Andover Board of Appeals 9003015 Al.: ; F NORTH q Hp0 N" ;?... �9SSgc'NU5E��h TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS March 8, 1990 Kopelman & Paige, P. C. Attorneys at Law Suite 1000 77 Franklin St. Boston, MA 02110 Attention: Joel B. Bard RE: MacMiff & MacLeod - Petition #21-89 MacMIff Development Corp. - Petition #34-85 Dear Attorney Bard: Enclosed please find the complete files on the above mentioned cases. If you need any further information please call. Sincerely, BOARD OF APPEALS dT1� Audrey W. aylor Encs. /awt legal Notice � TOW"OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE { of ^� 4CI TD'I'� 'SS September 10,1988 Notice is hereby given that the Board of Appeals will give a hearing at the Town Building, North Andover,on Tuesday even- Ing the 11th day of October, 1988,at 7:30 o'clock, to all parties interested in the ap Peal of Douglas R. MacMitf and William S. MacLeod requesting a Special Permit of Sec.4,Para. 133 of the Zoning By Law so as to permit construction of a single family dwelling with related grading within 100 ft. . of a wetltrnd which is a tributary to Lake Cochichewick on the premises located at 163 Salere.SU,eet fay Order of the Board of Appeals Frank Serio,Jr.,Chairman Publish in North Andover CrUYen 15.and September_22,�1988 �68460=1-_- f i ®4 COMMONWEALTH OF MASSACHUSETTS i� J) SUFFOLK, ss. LAND COURT DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, PlAintiffs j V. ) Docket No. 133740 133741 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. j O'Connor, Defendants ) SUBPOENA DUCES TECUM To: Keeper of the Records North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 GREETINGS: YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the applicable provisions of the Massachusetts Rules of Civil Procedure to appear at the office of David L. McLellan, Caruso & McLellan, One Elm Square, Andover, Massachusetts on Thursday, March 15, 1990 at 9: 00 a.m. , and testify to your knowledge, by oral deposition, in the above- entitled action. You are further required to bring with you the following records: 1. All documents and exhibits relating to Lot 1 on Salem Street, North Andover, Massachusetts including but not limited to those documents and exhibits which the Zoning Board of Appeals intents to introduce at the trial in this action on March 30, 1990; 2. All documents which support the fact or belief that residential lots in the Lake Cochichewick watershed ought to be connected to town sewer; :AI CARUSO&McLELLAN A- ATTORNEYS AT LAW ( ONE ELM SQUARE A TRUE COPY AT'I1�E�'Y . Al ANDOVER.MA 01810 I T TEL:(5081 475-6700 F FAX:LS08)475-8880 4x r°'°' ,,•,, Y',K,`o.., li ✓i C' ,q c ( 3. All documents which support the fact or belief that a sub-surface disposal system meeting the requirements of Title V of the State Environmental Code and the regulations of the North Andover Board of Health as they existed prior to July 2 , 1985, poses more than a de minimus risk of harm to Lake Cochichewick and its tributaries; and 4 . Any expert opinions that support a denial of the special permit sought by the plaintiffs in 1985 because of any risks of harm to Lake Cochichewick or its tributaries due to the siting of the proposed dwelling on the subject lot 22 feet within the 100 foot buffer to the tributary to the Lake Cochichewick. HEREOF FAIL NOT AS YOU WILL ANSWER YOUR DEFAULT UNDER THE PAINS AND PENALTIES IN THE LAW IN THAT BEHALF MADE AND PROVIDED. Dated: March 5, 1990 Notary P, 'c- - David L. McLellan My Commission Expires: Caruso & McLellan ,J One Elm Square Andover, MA 01810 Tel . (508) 475-6700 B.B.O. # 337840 CARUSO&McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER,MA 01910 TEL:(509)475-6700 FAX:(SM 475.8a80 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. LAND COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) V• ) Docket No. 133740 133741 THE NORTH ANDOVER ZONING BOARD ) OF APPEALS, acting by and ) through its Members: William J. ) Sullivan, Augustine W. Nickerson, ) Walter F. Sot;le; Raymond A. Vivenzio, Esq. , and Anna P. ) O'Connor, ) Defendants ) NOTICE OF DEPOSITION DUCES TECUM To: Keeper of the Records North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that at 9 : 00 on Thursday, March 15, 1990, at the offices of Caruso & McLellan, One Elm Square, Andover, Massachusetts, the plaintiffs in this action, by their attorney, will take your deposition upon oral examination pursuant to the applicable provisions of the Massachusetts Rules of Civil Procedure before M.A. Torosian & Associates, or before some other officer authorized by law to administer oaths. You are further required to bring with you the following records: 1. All documents and exhibits relating to Lot 1 or Salem Street, North Andover, Massachusetts including but not limited to those documents and exhibits which the Zoning Board of Appeals intents to introduce at the trial in this action on March 30, 1990; 2 . All documents which support the fact or belief that residential lots in the Lake Cochichewick watershed ought to be connected to town sewer; 3 . All documents which support the fact or belief that a sub-surface disposal system meeting the requirements of Title V of the State Environmental Code CARUSO&McLELLAN and the regulations of the North Andover Board of Health ATTORNEYS AT LAW as they existed prior to July 2 , 1985, poses more than a ONE ELM SQUARE ANDOVER,MA 01810 TEL:(508)475-6700 FAX:(508)475-8880 de minimus risk of harm to Lake Cochichewick and its tributaries; and 4 . Any expert opinions that support a denial of the special permit sought by the plaintiffs in 1985 because of any risks of harm to Lake Cochichewick or its tributaries due to the siting of the proposed dwelling on the subject lot 22 feet within the 100 foot buffer to the tributary to the Lake Cochichewick. Dated: March 5, 1990 David L. McLellan Attorney for Plaintiffs CARUSO&McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER,MA 01810 TEL:(508)475-6700 PAX:(508)4758880 c~4 The Board of Appeals held a regular meeting in the Conference Library at Town HHall on Tuesday evening, October 11, 1988 at 7:30 p.m. The following members were present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule, Anna. O'Connor, Raymond Vivenzio, and Louis Rissin. The meeting opened at 7:35 p.m. PUBLIC HEARINGS Douglas R. MacMiff William S. MacLeod - Special Permit - 163 Salem Street Legal notice read by Mr. Nickerson. David MacLeod spoke regarding this petition. An appeal from denial of original application for identical special permit is now pending in the Essex Superior Court, dated 1985. This was denied because of no sewer line on street and within the watershed district. The petitioner claims that this area is grandfathered. He stated that the Planning Board stated that a common driveway is the best way to go. They need a variance to build within 100' of a wetland. This project has been reviewed by the NACC and they granted approval for a septic system on the first petition. The Title 5 requirement has been met and they feel that they should get the Special Permit because of other ones that have been approved 78' from the tributary to Lake Cochichewick, and got a 22' relief for this. Mr. Sullivan asked if anyone was in favor or opposed to this petition? Mr. Bjornson asked how the situation of the 100' requirement has improved since the original petition was refused and why this is coming up again? It came up when the property Baas for sale in 1985 and it is up for sale again, and things have not improved as to the water supply. Mr. MacLeod stated this location has a building 22' closer to the tributary to the lake and this will not have any adverse affect on the tributary or the lake. Mr. Vivenzio asked why this wasn't a variance instead of a Special Permit? The Town Meeting of 1985 changed the bylaw so it is subject to the bylaws of the May 1985 meeting. Mr. Vivenzio stated that because it is denied, you are treating this as a new application. Mr. MacLeod said it is the same way we treated it with the Planning Board, because of the litigation, it is a reconsideration and not a new petition. Mr. Vivenzio asked the petitioner, if we do not act on this, would you feel this should be a variance and not a Special Permit? Mr. Sullivan stated that there was nothing in the legal notice to show this. Mr. MacLeod said that the petition is stated that way and they feel it is a reason- able decision and do not feel that a sewer system is needed because the NACC has Wed a septic system. The action at Town Meeting was after the petition had been applied for. The driveway will not have any bearing on the tributary to the Lake. Mr. Nickerson stressed that he did not feel we should change our decision now, and feels that nothing has changed from the original petition and the two-year period has elasped. Mr. MacLeod said they are back because the case is still in the courts and feels that this should be reviewed and changed. Mr. Sullivan stated that the original Board should be the ones to make any decision changes, and the water supply in this town is a very important issue in this part of town as well as every other part of town. Mr. Soule stressed that this Board has been very reluctant to grant any petitions around the lake or its tributaries. The Board has to care more about the water supply to the Town. We have to care more about this water supply and the Zoning ByLaws are very explicit about this and our Board has not bent on any rules about this. Mr. Nickerson questioned whether this is a Special Permit or a reconsideration, and Mr. Vivenzio stated that the two years had already gone by. Mr. MacLeod stated that the lot in particular was submitted to the Planning Board in 1984 and there was no moratorium and there was a Special Permit needed if within 100' of a tributary of the lake. This Speical Permit was denied by the ZBA. The particular wetland in question slopes down to the Lake. There is only one place on the lot that the septic system can go and we have placed it there. This is the most desirable and best place according to State Environmental codes. MacMilf - MacLeod, con'd Page 2 3t It wou;id cause less upset by putting in a common driveway. The lot is 2 acres and it'' is impossible to put the septic system any other place. There is no sewer on Salem St. or they would have tied into it. Mr. Sullivan stated that the nearest line is about 1/4 miles away. Mr. MacLeod stated that if the Special Permit were granted, the Board could put conditions on it with regard to the sewer lines coming onto the street at a future date, and requiring them to tie in at that time. The NACC think a septic system is ok because of the topography of the land. Everything from an en- vironmental point has been done on this lot. When asked by Mr. Nickerson, the peitioner stated that the one thing that was differnt from the original petition was that the moratorium was applied after the original petition was submitted, and we are now 6 months after the moratoriun. Mr. Vivenzio feels that it should have been submitted as a variance and Mr. Nickerson said that the question of whether it is a variance or a Special Permit must be resolved. Mr. Soule does not recall any other petition like this being approved by the Town. Upon a motion made by Mr. Nickerson and seconded by Ms. O'Connor, the Board voted, unanimously, to take this matter under advisement. (Sullivan, Soule, Nickerson, O'Connor Vivenzio) . Angelina Conti - Variance - 71 Riverview Street Legal notice read by Mr. Nickerson, Clerk. Mr. John Blomquist, son-in-law spoke for Mrs. Conti and showed plans to the Board. He said that his father-in-law had died and Mrs. Conti wants her daughter and husband to move into North Andover to be near her. The house in the back has a right-of-way and a driveway to the house. There is pavement to the second lot,does not extned beyond the second house. He showed the site of the proposed boat ramp to the Board. He wants to split the lot into two lots. The garage would be taken down and they would put another single family house on the new lot. 7,000' for the old lot in an R4 zone. Mr. Sullivan asked if anyone was in favor of this petition? Mr. B. Sands supports the petition. He is an abutter and has no objections. Mr. Sullivan asked if anyone was in opposition to this petition? Mr. Robert Nicetta, Building Inspector, spoke in opposition to this petition because he feels that they should get some legal service since this would create two (2) lots of only 50' frontage. He read Section B of the Flood Insurance Rate Map as follows: "Areas between limits of the 100-year flood and 500-year flood; or certian areas subject to 100-year flooding with average depths less than one (1) foot or where the contributing drainage area is less than one square mile; or areas protected by levees from the base flood." Mr. Nicetta went down to see the property and it is zoned A-l(flood area) . At the site it continues down to the Merrimack River and he does not want to see a house built in the flood zone. He stated that the NACC does not have any control over flood zones. The Board discussed the flood zoning at length; Mr. Nickerson asking if the Town would be responsible for any flood damage, and Mr. Vivenzio said no, but that the petitioner would have to obtain flood insurance before any bank would finance this project. Mr. Rissin stated that 7,000 sq. ft. is not in conformity with the rest of the homes in the area. A map of the flood zone areas was shown to the Board. Mr. Nicetta stressed that should the Board allow this petition, he wants borings prior to building the house to see that the land can support the house. Upon a motion made by Mr. Rissin and seconded by Mr. Soule, the Board voted, unaniously to take the matter under advisement. (Sullivan, Soule, Nickerson, Rissin, Vivenzio) CONTINUED PUBLIC HEARINGS Ronald A. Merino - Variance - 164 Sutton Street Mr. Nickerson, Clerk, read a letter from the applicant requesting to withdraw this petition without prejudice so that they could address some of the Planning Board questions and resubmit a clarified petition at a later date. The Board voted, unanimously, to allow the petitioner to WITHDRAW WITHOUT PREJUDICE. (Sullivan, Nickerson, Vivenzio, O'Connor and Rissin) . Vaughn - continued Page 5 "i `ihe Board voted unanimously to send a letter to Mr. Vaughn requesting his presence at the regular meeting on November 1, 1988(see file) . DECISIONS , L _ eona Morin Special Permit - 10-C Forest St Upon a motion made by the Mr. Soule, with no second, for granting the Special Permit with conditions, the Board decided to continue the hearing to the November 1, 1988 meeting, so that they can look at the site and perhaps the petitioner could submit new plans, showing the side area scaled down and taking off the side area. Douglas R. MacMiff William S. MacLeod - Special Permit - 163 Salem Street Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is " improperty before this Board. Section 3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, there shall be no reconsideration of a decision of the Board, except upon written request of the applicant or a person aggreieved by the decision filed with the clerk not later than ten (10) days after the filing of the decision with the Town Clerk. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to the expiration of the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21 . A motion to reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it stood before the decision was voted. A motion to amend the decision or a motion to re-open the hearing will be in order."(Sullivan, Soule, Nickerson, Vivenzio and O'Connor) . The meeting was adjourned at 10:30 p.m. and our next regular meeting will be held on November 1, 1988 at 7:30 in the Selectmen's Meeting Room. L fes- �, '`' --� >✓ti1 Audrey Taylor, ecretary William Sul ivan, Acting Chairman I i II KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN DONALD G.PAIGE BOSTON, MASSACHUSETTS 02110 ELIZABETH A.LANE (617)451-0750 JOYCE FRANK FAX 451-1863 JOHN W.GIORGIO BARBARA J.SAINT ANDRE JOEL B.BARD RICHARD J.FALLON GEORGE M.MATTHEWS JAMES A.DYREK EVERETT J.MARDER JANE M.O'MALLEY February 6, 1990 KAREN V.KELLY COLLEEN B.WALKER SONDRA M KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS 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: The above matters have been scheduled for trial in Land Court on March 30, 1990. I have received inquiries from plaintiffs ' counsel concerning the Board's possible interest in settling this matter. This is an appeal of the Board's denial, in 1985, of plaintiffs' application for a special permit to build a house within 100 feet of a tributary to Lake Cochichewick. The back of the house, apparently, would be 78 feet from the tributary and the proposed Septic system would ,t..E in front- of Lhe Jauuse (i.e. , OUL of the 100-foot zone) . The plaintiffs ' attorney has expressed his clients' interest in devising a compromise, but has not described anything specific. He has said, however, that it is not economically feasible for them to tie into the sewer system. Does the Board have any interest in discussing a possible settlement of this case? Please let me know in the near future. Otherwise I shall begin to prepare for the March 30 trial. Very truly yours, cc: Board of Selectmen Karen Nelson Joel B. Bard 1 tie o. e gti0 01, CC LDAny appeal shall be filed within (20) a'7cr the C:) TOWN OF NORTH ANDOVER MASSACHUSETTS date of fi,';'np, of tilis Notice Lu � in the Office of the Town C3 I--C) Clerk. BOARD OF APPEALS o Douglas R. MacMiff Petition # 21-89 William S. MacLeod 1 East River Place DECISION Methuen, MA 01844 The Board of Appeals held a public hearing on Tuesday evening, October 11, 1988. upon the application of Douglas R. MacMiff and William S. MacLeod requesting a reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws so as to permit construction of a single family dwelling with related grading within 100' of a wetland which is a tributary to Lake Cochichewick on the premises located at 163 Salem Street. The following members were present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on September 15 and September 22, 1988 and all abutters were notified by regular mail. Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is improperly before this Board. Section 3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, 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. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to the expiration of the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21. A motion to reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it stood before the decision was voted. A motion to amend the decision or a motion to re-.open the haying will be in order." BOARD OF APPEALS RE, CEIVED ell , OCT 17 1988 'ITH A William Sullivan t10W ANDOVER Acting Chairman Dat#(V9ftGW- hT-day of October, 1988 :,.A /awt J. b f01trlcd n. Y the CA 4�, t Ce tj)js No AmLTII m ­0 TOW W6- of the [, \ C 13 V fess an 11-r TOWN OF NORTH ANDOVER (21 MASSACHUSETTS BOARD OF APPEALS 0 \eCK -y NOTICE OF DECISION Douglas R. MacMiff October 14 William S. MacLeod Date . . . . . . . . . . . . . . . . . . ... .1988. . . 1 East River Place petition No.. . . .- 2189 . Methuen, MA 01844 . . . . . . . . . . . . .. . . . . Date of Hearing. Qqt0AK .11, . 1988 Petition of Dquglap. K.. • ._4pd. KiJjj4m. 5... MacLeod. . . . . ... . . . . . . . . . . . . . . .. . . . . . . . . . Premises affected . . . . .163. Salem .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a UMMY"IU .recpnsAderar�.o:n for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. . . . . . . . . . .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . so as to permit constructionof .a.single .family. dwelling with. related. gr.ading. . within. .1 00 .ft.. o.f. a .wet land .which. -is .a.trib.utary. to. .Lake. Cor-hichewick . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to . -DENY. . . . . the REQUEST FOR RECONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f x Signed . . . . . .William Sullivan,. Acting qhairma.n. . . . . . . . . . . . . . . . . . . . . . .AvgPst.ine .Nicke.rson, . C.I.e.rk • . . . . . .Walter. .$QqlP. . . . . . . . . ... . . . . . . . . . . . . . . .Raymond Vivenz;L.Q . . . . . . . . . . . . . . . . • Anna. .0.',Counor., Board of Appeals s Sec. 2 by by not ice in writing to the be withdrawn Ln aPP lie ati on may the Boars'.. i Clerk at any time prior to the hearing y RECONSIDERATION 3 I Sec. there shall be no recon- �I I.fter the meeting has a�33ourned, °n w1, tten re nest Board, except up . decision of the roared by the �3ecision filed with the sideration is a arson agg Brig the decision with of the a locant or a P Iter t le en da s a on by 4te: rk not later than y- cision, prior to the F. motion for recons3aerat�on must be acted upon own Clerk, ci ate ? in the he acing and Superior Court I those who parts P provided for appeal to the d expiration of the peril ter 0=i, Sec. 21. by General Laws, Chap 4 four concurring to reconsi�er must be carri_e��. by e matter y f r r1 shal`�r�--the ;, motion to amend votes, and`, if carrie , eft precisely as stood before the on the hearing will be in order. I� P on or a mo on to re-oP the .ec shearingI ' If any new evidence is to be taken , the must be I � re-opened. 4 s Ov PEP,REl G � RE-OPENIl.G Sec. d the case shall be put on the � t ening is duly vote , iven as in tho case ani If are-°p not ice a second hearing shall be g calendar for of the original hearing. 5 RE,_ppPLICATION been unfavorably Sec. a matter which has No new application ccver�rgitte� unless there has been a stances affecting such property since the acted upon by the Boardcushall be p substantial change in prior decision. YE;R LIMIUMON ON GFUNTS : EXT EVSIONS Sec. 6 ONE all permits lication is . granted by th9 Board , ineo If an aPP °f the work stlall . be obt late ofnfiling for the prosecution Year from the necessary commenced within on y Town Clerk. struction shall decision in the office of the of the Board s be (ranted. by the ion of sai'j tome may to the Superior Court un��er General Reasonable extens he case of an appeal d cause shown. Board ithe 4011, Sec. 21, Lw or for other goo a s, Chapter P ter KoPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN DONALD G. PAIGE BOSTON, MASSACHUSETTS 02110 ELIZABETH A.LANE (617)451-0750 JOYCE FRANK JOHN W.GIORGIO JOEL B. BARD JOEL A. BERNSTEIN RICHARD J.FALLON BARBARA J.SAINT ANDRE GEORGE M.MATTHEWS EVERETT J. MARDER JANE M.O'MALLEY KAREN V.KELLY DAVID L.GALLOGLY SONDRA M.KORMAN ANNE-MARIE M.HYLAND November 14, 1988 Members of the Zoning Board of" Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Douglas R. Mifflin and William S. MacLeod Vs: North Andover Zoning Board of Appeals No. 88-2929 Dear Members of the Zoning Board of Appeals: This is to inform you that the enclosed case has been brought and served upon me for which I will file the appropriate pleading. Very truly yours, - 'Leonard Kopelman LK/sb Enclosure cc: Board of Selectmen F C014MONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) V. ) Civil No. 88- c �, Z� L`1 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 ) COMPLAINT The plaintiffs herein invoke the provisions of Massachusetts General Laws, Chapter 40A, Section 21, as amended, and allege the following: 1 . Plaintiff, Douglas R. Mifflin resides at R. F. D. #1 Box 3991 York, ME. and plaintiff, William S. MacLeod, resides at 231 Broadway Street, Methuen, MA and are an aggrieved party within the provisions of M.G. L. Chapter 40A, Section 17 , as amended, as a result of the Decision of the Zoning Board of Appeals of the Town of North Andover dated October 14 , 1988 , which voted to deny an Application for Reconsideration on Relief from the Requirements of the Zoning Ordinance, affecting the premises commonly known and numbered kRU50&McLELLAN >TTORNEYSATLAW as 163 Salem Street, North Andover, Essex County, ONE ELM SQUARE ANDOVER.MA 01810 TEL!(508)475-6700 1 FAX 1508)475$880 Massachusetts (Lot 1) . Said Application for Reconsideration on Relief is attached hereto and incorporated herein as Exhibit "A" . Said Decision denying relief is attached hereto and incorporated herein as Exhibit "B" . 2 . The defendants are the duly constituted and regular members of the Zoning Board of Appeals of the Town of North Andover, (hereafter, the Board) , which is a Special Permit Granting Authority, and all reside in the Town of North Andover as follows: William J. Sullivan 405 Salem Street North Andover, MA 01845 Augustine W. Nickerson 100 Moody Street North Andover, MA 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, MA 01845 Raymond A. Vivenzio, Esq. 11 Appledore Lane North Andover, MA 01845 Anna P. O'Connor 88 Martin Avenue North Andover, MA 01845 3 . MacMiff Developement Corp. the predecessor-in-title to the plaintiffs, purchased Lot 1 together with an adjoining parcel commonly known and numbered as 175 Salem Street, North Andover, Essex County, Massachusetts (Lot 2) on October 16 , 1984 by deed recorded in Essex North District Registry of Deeds in Book 1881, Page 115 . 4 . At the time of purchase on October 16, 1984 , Lot 1 ARUSO&McLELLAN IATTORNEVS AT LAW and Lot 2 were One parcel . ONE ELM SQUARE ANDOVER,MA 01810 TEL:608)475-6700 2 FAX:608)475 Arsov) 5. In December of 1984 the North Andover Planning Board endorsed a Plan of Land showing the creation of Lot 1 and Lot 2 as a Plan Not Requiring Approval . This Plan was recorded. at the Essex North District Registry of Deeds on December 28 , 1984 as Plan No. 9710. 6. On March 12 , 1985 MacMiff Developement Corporation filed an application to the Board for a Special Permit pursuant to the Town of North Andover Zoning By-Laws, section 4 , paragraph 133 for construction of a single family home within 100 feet of a wetland which is tributary to Lake Cochichewick on the land known as Lot 1 (163 Salem Street, North Andover, MA) . 7 . This original application was denied on July 2 , 1985 by the North Andover Zoning Board of Appeals and an appeal from this denial was timely filed in the Superior Court pursuant to G. L. c. 40A, sec. 21. See, MacMiff Development Corp. vs. Town of North Andover Zoning Board of Appeals, et al . , Essex Superior Court, No. 85-2281 . 8 . An Application for Reconsideration on Relief, (Exhibit "A") was filed on September 6 , 1988 with the North Andover Zoning Board of Appeals. This Application was denied on October 14 , 1988 and filed with the Town Clerk on October 17 , 1988 . i 9 . The plaintiffs are aggrieved by the Decision of the IARUSO&McIELLAN North Andover Zoning Board of Appeals denying their ATTORNEYS AT LAW ONE ELM SQUARE Application for Reconsideration. A Notice of Appeal from the ANDOVER.MA 01610 TEL:0506)475-6700 3 FAX:608)4758860 Decision was timely filed with the Town Clerk of North f Andover by mail on November 4 , 1988 . 10. The plaintiffs allege that the said Decision denying the Application for Reconsideration exceeds the authority of the Zoning Board of Appeals for the Town of North Andover. 11. Plan No. 9710 dividing the locus into two lots was submitted and recorded prior to the passage of a moratorium on development in the Town of North Andover by Town Meeting in May, 1985. Said moratorium expired on or about May, 1988 and is no longer in effect. 12 . Construction of the proposed single family dwelling has received necessary approvals from other town administrative bodies, including the Conservation Commission on April 23 , 1985, the Board of Health April 17 , 1985 , and most recently by the North Andover Planning Board in August 1988 . 13 . Construction as presented to the Board of Appeals by the plaintiffs is the only feasible plan for the locus . 14 . Said construction will cause no damage to the tributary to Lake Cochichewick, or to the lake itself, and meets all requirements of Title V of the Massachusettts Environmental Protection Act and of the Health Regulations of the Town of North Andover. hRUSO&McLELLAN 4TTORNEVS AT LAW 15. The Board's refusal to reconsider its decision of ONE ELM SQUARE IANDOVER.MA 01810 TEL(508)475-6700 .�f FAX.(508)4754880 �-! July 2 , 1985, refusing to grant a special permit because of the lack of a town sewer and the moratorium, is based on a legally untenable ground and is arbitrary, capricious, unreasonable and whimsical . WHEREFORE, the Plaintiffs demand: 1. A judgment of this Honorable Court that the Decision of the North Andover Zoning Board of Appeals dated October 14 , 1988 be annulled; 2 . In the alternative, a judgment of this Honorable Court ordering the Zoning Board of Appeals to reconsider and approve said Special Permit. Douglas Mifflin William J. MacLeod By their attorney Dated: November 4 , 1988 David L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Tel . (508) 475-6700 BB04 337840 kRUSO&McLELLAN 1TTORNEVS AT LAW ONE ELM SQUARE ANDOVER.MA 01810 TEL:608)475-6700 5 FAX 608)475-WK i r (TO PLAINTIFF'S ATTURI\tLl': Wcrtr Cnth F)Pt 0 A,rn.0 h,t,/t<;/: -(FORT - N1()]OR 1'l:f�l(:Ll 'I OK1 - CONTRACT — EQUITAtil.l: RL. ALT -T OTHER ) T COMMONWEALTH OF MASSACHUSETTS 0 ESSEX,ss. SUPERIOR COURT CIVIL TION 75 No. G v EE Dou las R. Mifflin and William S . Ma.cLeo ..............- .......... ............... .................. .......... 'laintiH(s) O N � V The North Andover Zoning Board of Appeals , .9 -B acting by and through its Members : Willia CIS d-:---Sul.•1•Ivan;-• Anguat-ine...W -Nickers-on',....Wa-tivendant(s) F. Soule , Raymond A. Vivenzio , Esq . and Anna w .o P. O'Connor -5 SUMMONS .: 0 G � 0. 4 To the above named Defendant: E $ David L. McLellan You are hereby summoned and required to serve upon ......................................................................................... .� plaintiffs attorney, whose address is .......O.A.12...EIM...S.qua.r.e.,...Ando.v.ex......MA...01810.., an answer to the b 3 o complaint which is herewith served upon you, within 20 clays after service of this summons upon you, exclu- 8 sive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief de- manded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk C of this court at ....5.a.l.en.,...NA................... either before service upon plaintiff's attorney or within a reasonable a3 time thereafter. °c Unless otherwise provided by Rule 13 (a), your answer mast state as a conntcrclainr any claire which you . may have against the plaintiff which arises out of the transaction or occurrcncc that i, the subject matter of the a 3 plaintiff's claim or you will thereafter be barred from making such claim in any other action. C a- C � c F, c C) WITNESS•ROBERT L STEAD61Af1 . Esquire•, at Salem, the tenth z m day of November in the year ttf our 1.Otd one thousand GW. w � nine hundred anti eight).- eight , O O / W t= E O 2 ��- -' Clerk NOTES: I. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Cisil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate summons is used for each defendant, each should be addressed to the particular defendant. Office #30 PROOF OF SERVICE OF PROCESS I hereby certify and return that on ........................................................................... 198 , I served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5): _............................................................................................ ......................................................................................................... .........•.............................................................................................................................................................................................. _..................................................................................................................I................................................................................... Dated: 198 .................................................. ..................... N.B. TO PROCESS SERVER:— PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPT' SERVED ON DEFENDANT. 198 C) z rn U 0 " r y. C)" N Q1 LY N OU� 0 U � b co r 1 Q1 N Ul ,y 4-1H CO 4-4 W � cnUZ � R 0 > All U toSa O .(� v co M 0 � 3 r__1H z10 «o r-i �, O cd L. 0 _H .0 0 W � -7`" R E C DAHi,: CARUSO & MCLELLAN ATTORNEYS AT LAW HOR7' �A,iCOYER ONE ELM SQUARE Hay 7 I 54 'N �a8 ANDOVER, MASSACHUSETTS 01810 PETER J.CARUSO TEL:(508)475-6700 DAVID L. M,-LELLAN FAX:(508) 175-8880 November 4 , 1988 Town Clerk Town of North Andover 120 Main Street No. Andover, MA 01845 Re: 163 Salem Street, No. Andover, MA Dear Sir/Madam: Enclosed please find a Complaint and Notice of Appeal from a Decision of the North Andover Zoning Board of Appeals regarding 163 Salem Street in North Andover, MA. Please feel free to call this office if you have any questions . Very truly yours, c David L. McLellan DLM/aed Encl Sent by Certified Mail , Return Reciept Requested No. P973282228 CARUSO & McLELLAN V,L 1- 0%-j ATTORNEYS AT LAW ONE ELM SQUARE 3 ANDOVER, PAASSACHUSE T TS 01810 �Q1f i I 54 PETER J.CARUSO TEL: (508)475-6700 DAVID L. McLELLAN FAX: (508)475-8880 NOTICE OF APPEAL TO: North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that on Friday, November 4 , 1988 , pursuant to Massachusetts General Laws Chapter 40A, Section 21, Douglas R. Mifflin and William S . MacLeod commenced an action in the Superior Court, Essex County, Massachusetts, appealing the decision of the North Andover Zoning Board of Appeals dated October 14 , 1988 , and filed with the Town Clerk of North Andover on October 17 , 1988 , to deny the application of Mifflin and MacLeod for a Special Permit to construct a single family home within 100 fee of a wetland at 163 Salem Street, North Andover, Massachusetts. A copy of the Complaint commencing said appeal is attached hereto. Douglas R. Mifflin William S . MacLeod By their attorney Dated: November 4 , 1988 David L. McLellan �I i RECD;` _. Di i;17 T C`,"i NORTa . ;: T/ER NOV 7 1 S4 P'! '88 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) I ) V. ) Civil No. 88- 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 ) COMPLAINT The plaintiffs herein invoke the provisions of Massachusetts General Laws, Chapter 40A, Section 21, as amended, and allege the following: I 1. Plaintiff, Douglas R. Mifflin resides at R. F. D. #1 Box 399 , York, ME. and plaintiff, William S . MacLeod, resides at 231 Broadway Street, Methuen, MA and are an aggrieved party within the provisions of M.G. L. Chapter 40A, Section 17 , as amended, as a result of the Decision of the Zoning Board of Appeals of the Town of North Andover dated October 14 , 1988 , which voted to deny an Application for Reconsideration on Relief from the Requirements of the Zoning Ordinance, affecting the premises commonly known and numbered &McLELLAN IRU50 U50VSATLAW as 163 Salem Street, North Andover, Essex County, ONE ELM SQUARE 4NDOVER.MA 01810 TEL(508)475-6700 1 FAX:608)475$880 I Massachusetts (Lot 1) . Said Application for Reconsideration on Relief is attached hereto and incorporated herein as Exhibit "A" . Said Decision denying relief is attached hereto and incorporated herein as Exhibit "B" . 2 . The defendants are the duly constituted and regular members of the Zoning Board of Appeals of the Town of North Andover, (hereafter, the Board) , which is a Special Permit Granting Authority, and all reside in the Town of North Andover as follows: William J. Sullivan 405 Salem Street North Andover, MA 01845 Augustine W. Nickerson 100 Moody Street North Andover, MA 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, MA 01845 Raymond A. Vivenzio, Esq. 11 Appledore Lane North Andover, MA 01845 Anna P. O'Connor 88 Martin Avenue North Andover, MA 01845 3 . MacMiff Developement Corp. the predecessor-in-title to the plaintiffs, purchased Lot 1 together with an adjoining parcel commonly known and numbered as 175 Salem Street, North Andover, Essex County, Massachusetts (Lot 2) on October 16 , 1984 by deed recorded in Essex North District Registry of Deeds in Book 1881, Page 115 . 4 . At the time of purchase on October 16 , 1984 , Lot 1 AUSO&McLELLAN ITTORNEVS AT LAW and Lot 2 were one parcel . ZONE ELM SQUARE FVFR.MA01810 15081 475-6700 2 (SM 47543880 5 . In December of 1984 the North Andover Planning Board endorsed a Plan of Land showing the creation of Lot 1 and Lot 2 as a Plan Not Requiring Approval . This Plan was recorded at the Essex North District Registry of Deeds on December 28 , 1984 as Plan No. 9710 . 6. On March 12 , 1985 MacMiff Developement Corporation filed an application to the Board for a Special Permit pursuant to the Town of North Andover Zoning By-Laws, section 4 , paragraph 133 for construction of a single family home within 100 feet of a wetland which is tributary to Lake Cochichewick on the land known as Lot 1 (163 Salem Street, North Andover, MA) . 7 . This original application was denied on July 2 , 1985 by the North Andover Zoning Board of Appeals and an appeal from this denial was timely filed in the Superior Court pursuant to G. L. c. 40A, sec. 21. See, MacMiff Development Corp. vs. Town of North Andover Zoning Board of Appeals, et al . , Essex Superior Court, No. 85-2281 . 8 . An Application for Reconsideration on Relief, (Exhibit "A") was filed on September 6 , 1988 with the North Andover Zoning Board of Appeals. This Application was denied on October 14 , 1988 and filed with the Town Clerk on October 17 , 1988 . 9 . The plaintiffs are aggrieved by the Decision of the IlRusoanncLEtLAN North Andover Zoning Board of Appeals denying their TTORNEVS LAW AT W Application for Reconsideration. A Notice of Appeal ' from the ONE ELNISQUARE ,NOOVER,MA 01810 !, TEL 608,475-6700 3 FAX:6081 4758,560 Decision was timely filed with the Town Clerk of North Andover by mail on November 4 , 1988 . 10 . The plaintiffs allege that the said Decision denying the Application for Reconsideration exceeds the authority of the Zoning Board of Appeals for the Town of North Andover. 11. Plan No. 9710 dividing the locus into two lots was submitted and recorded prior to the passage of a moratorium on development in the Town of North Andover by Town Meeting in May, 1985 . Said moratorium expired on or about May, 1988 and is no longer in effect. 12 . Construction of the proposed single family dwelling has received necessary approvals from other town administrative bodies, including the Conservation Commission on April 23 , 1985 , the Board of Health April 17 , 1985 , and most recently by the North Andover Planning Board in August 1988 . 13 . Construction as presented to the Board of Appeals by the plaintiffs is the only feasible plan for the locus . 14 . Said construction will cause no damage to the tributary to Lake Cochichewick, or to the lake itself, and meets all requirements of Title V of the Massachusettts Environmental Protection Act and of the Health Regulations of the Town of North Andover. LUSO&McLELLAN iTORNEVSATL.LA 15. The Board' s refusal to reconsider its decision of AW 'SONE ELM SQUARE NDOVER.MA 01810 ra'L508)475-6700 4 AX:GW)4758880 July 2 , 1985 , refusing to grant a special permit because of the lack of a town sewer and the moratorium, is based on a legally untenable ground and is arbitrary, capricious, unreasonable and whimsical. WHEREFORE, the Plaintiffs demand: 1. A judgment of this Honorable Court that the Decision of the North Andover Zoning Board of Appeals dated October 14 , 1988 be annulled; 2 . In the alternative, a judgment of this Honorable Court ordering the Zoning Board of Appeals to reconsider and approve said Special Permit. Douglas Mifflin William J. MacLeod By their attorney Dated: November 4 , 1988 g-Int C David L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Tel . (508) 475-6700 BBO# 337840 \RUSO&Mri ELLAN 4TTORNEYS AT LAW ONE ELM SQUARE ANDOVER.MA 01010 TEL 608)475-6700 5 FAX:608)4758880 f Received b 'Town CLcrk: RECEIVED y DANIEL 0HG NORTH rcDO ER EXHIBIT "All 'TOWN OC NOR1111 ANDOVER, MASSACHUSETTS BOARD 01' APPEALS RECONSIDERATION ON ' APPLICATION FOJV 1tELIEF FROM '1'111: 1tL•'QUt1t1:MEN'i'S OC 'rllL•' ZUNiNG ORDINANCE 1 East River Place Douglas R. MacMiff Methuen MA Applicant William S. MacLeod _____^______Address_ ? 1 . Application is hereby made : a ) For a variance from the requirements 'of Section Paragraph and 'PabLe of the Zoning By Laws . For reconsideration b ) / For a Special Permit under Section 4 _Paragraph 133 oC the Z01li1l9 By Laws . c ) As a Party Aggrieved , Cor review Of a decision made by tlic Building Inspector or other authority . 2 . a Premises affected are .lan<1_Xr _arid building (s ) _numbered 163 Salem ____�__.__S t r e c t b ) Premises affected arc property with frontage oil the Nor" ( ) South ( X) East ( ) West ( ) side of Salem____`_ -- Street , and known as No.__._ 163_Salem5trc et . c ) Premises affectcd circ in 'lonincl i)i,trice R3 Frt��] the prcmisu!; affected have an arca of 98,005 —square Ccet arrcl frontage of 126_67 —f e c t . 3 . Ownership a ) Name and addressof owner ( if joint ownership , give al- 1 namc� ) : William S. MacLeod and Douglas R. Mifflin, both of 1 East River Place, Jiethue� >`lA i i' fes,, A F C=D W Any appeal s;ia!l be filed o TOWN OF NORTH ANDOVER u: within the «_ MASSACHUSETTS date of fi r, of j"::s Pio"Lic0 C-:) in the Office of the Town �Q`D ti Clerk. CD'�"C — BOARD OF APPEALS z w- U O * Douglas R. MacMiff William S. MacLeod * Petition # 21-89 * 1 East River Place * DECISION Methuen, MA 01844 ************************** The Board of Appeals held a public hearing on Tuesday evening, October 11, 1988 upon the application of Douglas R. MacMiff and William S. MacLeod requesting a reconsideration for a Special Permit under Section 4 , Paragraph 133 of the Zoning ByLaws so as to permit construction of a single family dwelling with related grading within 100' of a wetland which is a tributary to Lake Cochichewick on the premises located at 163 Salem Street. The following members were present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on September 15 and September 22, 1988 and all abutters were notified by regular mail. Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is improperly before this Board. Section. 3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, 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. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to the expiration of the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21. j A motion to reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it stood before the decision was voted. A motion to amend the decision or a motion to re—open the hearing will be in order." BOARD OF APPEt%LS t /I, William Sullivan Acting Chairman Dated this 14th day of October, 1988 /a::t 0 FRT C::=, . C Q. the .Q�••• .1�]:r y IC1 Y /•1�,;,may lin ♦ :O'.`rCr�C•� r ',r (I..1 Town OE( z oT ih2 16ssgcti�'��; TOWN OF NORTH ANDOVER ►�-oma' MASSACHUSETTS x o d3�o he O��`G BOARD OF APPEALS NOTICE OF DECISION Douglas R. MacMiffOctober 14, 1988 William S. MacLeod Date " " " " . . . . . " 1 East River Place Petition No.. .21. .- . .89. . . . . . . . . . . . . . . Methuen, MA 01844 Date of Hearing. .October 11, 1988 Petition of S,., MacLeod. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises affected . . . . .163 . Salem .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a h�iiifiii`1 ` aef�:Y� .recons.lderation for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. . . . . . . . . . .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . so as to permit . construction .of .a. single .family. .dwelling .with. x.elated. gx.adiug. . . . . I within. 100 .f t.. o.f. .a .wetland which. -is .a. trihutary. to. lake. Cochichewick . . . . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to . .DENY. . . . . . the REQUEST FOR RECONSIDERATION > I�ClC�21Xd .t}iX13H4�dltlg{ Ii��.:thiX3B1�X&,�tX !�l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signed I William .Sullivan,. .Acting Chairman Augustine ,Nicke.r.son, . Clerk . . . • . . . . . . Walter• ,Soule. . . . . . . . . . . . . . . . . . . . . . . . . .Raymond Nivenzi o. . . . . . . . . . . . . . . . . Anna. Q'.Connor. . . . . . . . . . . . . . Board o/ Apprc!s � ^ Wimar.S.wmu° ,`, ,.5 ^ Received by Town cLccu' DA K0� !�J� _-__� ` m`dvvn/ ovnsu|hm|s \ .`c Sm C |8 44 � ~ ^' ` - '^*/�p-``./"^/,,,'° '/°d'x=�= roow OF moxrx xmnnvnx ~ uuxxo or All RECONSIDERATION ON | urpLzcxzzow pon/ xuLzur FROM THE' uuUozxcwumxS OF THE romIos oxuIwxmcc nonQluo R. MocMiff l ouot River rlucou��bu�o �� ` Applicant m S._MacLeod xaureox �,______________ l. Application is hereby made: a) For a vociuucc from d'c requirements of Section rncngcvp ' ' and zubic _o[ the Zoning By Laos . _ F~ reconsideration b) /For - Special Permit m`dcc section 4 _of the zoxi xg � By Laos. � � c> As a party xgyciovcu' for review of a decision mauc by the Building Inspector or ot/`cc aut}mcitv. � z' a) Premises affected are land-X--and uuilulng(s )____numueroo____ ' 163 Salem - Street.. ----------- � , u> Premises affected are property °imh xcm`txye ox u`c xo~L/. ( > South (X) cnxt ( ) west ( ) o,oc oc-Salem Street, and anu xnoon as m»'____]63-DaIem--_--_------------- ' c) pzcx`iocs ^[(cctc0 arc in xoxixn oioLcict Rc _' ^oo t}.^ a��ec�c� have an area of 9O/D05__s9uace fee[ and cco/`L^ye of 126.67 [uct ' 3. ownership ' a) Name and aouccna of owner (if joint ownership, give a/l nn"'cs }� William S. MacLeod and glas R. Mifflin, both Methuen, MA -I East River .Place,������ ' p io"� Owner Date of Purchase 10/17/84 ,cv onc=^ff "=,"^" Corp. u) If apyLicaut is not ovocc, cxccx xis/her interest: in the »cooisco- pcoopoc�i"o puccxau^c ____Lenco ____ou'uc (rznLaix) �_-_ 4.7� size of proposed bullding'`_�L __ [cont/_ 20feet ucup; � Height 2 stoc1co/ 28 ----�eeC. a) Approximate date of occcLio :_Ap_z_i_l,_1_9_09_ ----- b) Occupancy or use o[ cnd` l�oor'_����n��L______ � c) Type of construction: Wood Frame ----------___-__ . ', �. sizn of cxir�� "n ooiwivo._��_ _/,r� r,"n�' ______r,`'' Height stories; a') Approxi ua�r o� cccc�ioo� Not known .~.� __------_�_--_ -__- ~ u) occupancy or use of c^co floo/'_Storag�__________ 'c) Type of construction: be removed) 6. nos u`crc »cc^ ;1pr,vi0v" , o "o',. pc � . ""./�� ,o"/ o" u.=.` ,'""�,`"? Yesz[ so. w\`c.`�_&p�lfrum denial of original application for identical special permit is now pending in the Essex Superior Court. ' ' ` . / ' ' ;1 nt requests a 7• • Desc i �t.ion of relief soucht on thi; petition The a lied q � r I J 1 PP ' h rem radiri witTiin-1OOt— special permit to construct a single family dwelling ,wit di g g of a wetland which is tributary to Lake Cochichewick. 8. Deed recorded in the Itegistry of Deeds in Book `1881 Paye 115 Land. Court Certificate No. Book .g „tib,;' • • I The principal points upon which I base my application are as follows: .(must be.stated in detail) Construction of this dwelling is consistent with present use oaf the area and will not adversely affect the neighborhoo , ye is es, or pe estrians. Iris noE po 7 e to meet the setback requirements set forth in section 4.133 (3) of the zoning by-laws — due to the wetlands on- the rear of the of an�sftee"drama p. on =5i StreeC.^�fiea" g ♦L D ne 2>�Si�fl�s-WtEizh�re'att'ar.t�l--have- aapppprroo'ved-bq•-the-lieart..-vc�ar iHei�-enol-- the onservat o Co Sion s approved the eonssttrpction as proposed on said pans. I agree cLO pay lt�ie ling It, advertising in ne spaper, and incidental expenses* `'� , .:.. Signature o1 Pet .E,Otler s Every application for action by the Board shall be made on a form approved by- the Board. These forms shall be furnished by the Clerk upon request. Any communication purporting to be an application shall be treated as mere notice of* intention to seek relief until such time as it is .ma(11e on the official application form. ALL information Called -for by the form shall . be furnished by the applicant in the manner therein;;:prescribed . 't Every-application shall be submitted with a list of "P"irties In Interest" 411ich list shall include .the petitioner, abutters, owners of land directly Dpposite on any public or private street or way, and abutters to .the ibutters ,within: three Hundred feet (300' ) of the property line of the ?etitioner as they appear . on the most recent applicable tax list, iotwithstanding that the .Land of any such owner is located in another city )r town, the Planning Board of the city or town,. and the Planning Board of :very, abutting city or town. t. 'Every application shall be submitted with an application charge cost- in die amount' of $25.00. In addition, the petitioner shall be' responsible .� or any and all costs involved in bringing the petition before the hoard. ;uc1L costs shall include mailing and publication, but are noL necessarily,.'" :< imited to these. :very application shall be submitted with a plan of land approved by the ioard. No petition will be brought before the Board unless said plan has )een submitted. Copies of the Board' s requirements regarding plans are ttached hereto or are available from the Board of: Appeals upon request. LIST OF PARTIES IN INTEREST Name Address William S. MacLeod •1 East River Place, Methuen, MA 01844 ' Douglas R: Mifflin C1 East River Place, Methuen; MA 01844 Da'vad P. & Gayle D. Klemer • 175 Salem St., North Andover, MA 01845 ✓'Ridgewood.Cemetery Assoc. 2 Johnson St., North Andover, MA 01845 ' -,John W. & Linda E. Parker 121 Salem St., North Andover, MA 01845 ✓Lewis J. & Beverly M. Jones 166 Salem.St., North Andover, MA 01.845 , d:7ard L. & Frieda G. Bjornson 151. SHlem Sr.. North Andover, MA 01845 J5mes E. &•Ann W. Hamblet, J.T. 1.37 Salem St., North Andover, MA 01845 1 JOSMk" A, LcvtS 70 Cir �. m �c 2 m 20 m �RG►2t �o� Ja�nS t� Ctr iJ•�J • (use additional shccLs if' necessary) t .4 r W I THDR AI�11,A-L Sec. ato the be withdrawn by notice in writing %n application may . ime prior to the hearing by the Boars' Clerk at any t AT ION OND Eft �. ST _ Sec. 3 RECONSIDERATION ` has adjourned , there shall be no recon ,, }' �'.fter the meeting except upon wr'.tten re uest sideration of a decision of the Board ieved by the decision filed with the { si person � _. of the ecision with I of the a licant or a P s a3`teerr�Fie I'3.lingby en day clerk not later on than _ cision, P Clerk. t, motion for recons aerat'en must berioretouPhe t e own Cler ; ,� the hearing and Superior Court articlpate . in those whop period provided for appeal to the p expiration of theeChapter 40:x, Sec. 21. by General Laws, four ccncurring i e matter r A moti to reconsider must be carri.ef re r J � s if carried , shall have the ems— :, motion to arnen� votes, an , , i will be in order. stcod before tha d precisely as on to re-open the hear _ng the ...ec s on or a mo the hearing must be If any new evidence is to be taken , ' , re-opened. 4 RE-OPII�TIITG OF HEAR G � Sec. t in is duly voted , the case shall be put °n the ' If a re-opening and notice shall_ be given as in the calendar for a second hearing of the original hearing. Sec. 5 RF,-APPLICATION covering a matter which ashbeeas beenaunfavorably No new applicationemitted. unless there the Board shall be P� ' Such property since the acted upon by e in circumstances affecting substantial Chang prior decision. EX IONS ONE YEATA R LIMITION ON GRITS . j Sec. 6 r all permits lication is granted by the Boa, d , If an app of the work _hall ,be () 'late con- prosecution year from thy, r3-ate necessary for the Clerk. struction shall be ©inethe ioffice nofythe Town of the Board s decisiontf�e gai�� time may be granted. by Su erior Court unrler General Reasonable extension to thy. p Board i.nattercase,o an app or for other good cause shown. Laws, Ch p LOCUS PLAN - SCALE LEGEND \moo- \\ { ) CONTOUR CONTOUR I ' EX ? GRADE i � F C�� \ ��.��s.� \ \ FINISH dl \ _Y GRADE DESIGN. CF.iTERIA . �� 2S. L -' � 1 •,l, f� \ 2j2 TYPE OF BUILDING EEDRCO't:' \ \\\ \\ CELL M91NG F=.CI!i-:ES i i ' — Tgvk—�\ \� •\ \ \ SEWAGE FLOW ESTIMATE! nCE GA'_ •!_: SEPTIC TANK: 1500 GALLONS. ,�,..,� - y Y:\R \\ \ 1 ABSORPTION AREA : (088' S.F �Z+JS= "z — \ NOTE NO GARBAGE DISPOSAL UNIT IN THE PROPOSED DWELLING PEROG_A'ION _ �WE.�U _ o \ f \ \ 1 N�F KL✓M�f� TESTS 1 2 = O 3-i3-85 3-13-85 33r fDATE J\' \ \ I /n TOP ELEV. d \ 1 1 N BOTTOM ELEV. 0 2 Zlo.3 '/0 SATURATION ;$ MIN $ MIN — —Z�B 12"TO9"DROP >> • MIN /4 Mitt 1n _ —_ Zoe \�» � t14 1 9" T06��DROP MIN Z(0 M!V PERC. RATE MIN/IN 6.7 MIN;IN1-` O TEST PITS I ,x pe0ro5© uati 2sa F/ DATE 3"13 05 a-t3-85 a-zsi S!�rranoti ` p2t�� t _ io TOP ELEV. Z15.c 2 14.0 ZIZ7 18'�'(orwl,£ Zo"tcF5NL€ ZZ"f� Ef/6ED6r✓0005 \ ?06 5L;eorL SJ6SOIL ROSS. — / LGA2SE Saw �Q Cogs-, kvf MEDtptt,f SOILS ENCOUNTERED TIT/,�� 104i f,LL ro ll' -fc PC,- - - ro �m WAr�ee4'tz' 4.)AtE2B9'1zLl)ALEYC' (Z045) (zC--3 000 BOTTOM ELEV. 7_05 0 Z63.0 ZCZ-7] 9S,O�JrS.6. v TESTS CONDUCTED BY. DAV(V AoV-,mII - --- --- - - ---� �� -- _ TESTS OBSERVED BY : MIV-E GFAF PLAN SHOWING PROPOSED J - - - - -- SEWAGE DISPOSAL SY" IV 1 SCALE: /"= 20' a OWNER: MAC, M/GF D&VELoPkIr-ti/f CoOF 2/5 Y7ROAVWAY 0017+4 Uetd, t LOCATION: to 1 5ALEM 57eCg�" /✓0?71'4 4/✓OOV6Ee , M955 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. LAND COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) ) V. ) Docket No. 133740 133741 THE NORTH ANDOVER ZONING BOARD ) OF APPEALS, acting by and ) through its Members: William J. ) Sullivan, Augustine W. Nickerson, ) ::alter F. Sn'2.1e, Raxm.ond A. Vivenzio, Esq. , and Anna P. ) O'Connor, ) Defendants ) NOTICE OF DEPOSITION DUCES TECUM To: Keeper of the Records North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that at 9: 00 on Thursday, March 15, 1990, at the offices of Caruso & McLellan, One Elm Square, Andover, Massachusetts, the plaintiffs in this action, by their attorney, will take your deposition upon oral examination pursuant to the applicable provisions of the Massachusetts Rules of Civil Procedure before M.A. Torosian & Associates, or before some other officer authorized by law to administer oaths. You are further required to bring with you the following records: 1. All documents and exhibits relating to Lot 1 on Salem Street, North Andover, Massachusetts including but not limited to those documents and exhibits which the Zoning Board of Appeals intents to introduce at the trial in this action on March 30, 1990; 2 . All documents which support the fact or belief that residential lots in the Lake Cochichewick watershed ought to be connected to town sewer; 3 . All documents which support the fact or belief that a sub-surface disposal system p y tem meeting the requirements of Title V of the State Environmental Code CARUSO&McLELLAN and the regulations of the North Andover Board of Health ATTORNEYS AT LAW as they existed prior to July 2,, 1985, poses more than a ONE ELM SQUARE ANDOVER.MA 01810 TEL:(508)475-6700 FAX:(508)475-8880 de minimus risk of harm to Lake Cochichewick and its tributaries; and 4. Any expert opinions that support a denial of the special permit sought by the plaintiffs in 1985 because of any risks of harm to Lake Cochichewick or its tributaries due to the siting of the proposed dwelling on the subject lot 22 feet within the 100 foot buffer to the tributary to the Lake Cochichewick. Dated: March 5 1990 C David L. McLellan Attorney for Plaintiffs CARUSO&McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER,MA 01810 - TEL:(508)475-6700 FAX:(508)475-8880 NORTH OF 0 O " * ? y SA 5S TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS ************************** * Douglas R. MacMiff * Petition # 21-89 William S. MacLeod * 1 East River Place * DECISION Methuen, MA 01844 * * * ************************** The Board of Appeals held a public hearing on Tuesday evening, October 11, 1988 upon the application of Douglas R. MacMiff and William S. MacLeod requesting a reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws so as to permit construction of a single family dwelling with related grading within 100' of a wetland which is a tributary to Lake Cochichewick on the premises located at 163 Salem Street. The following members were present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on September 15 and September 22, 1988 and all abutters were notified by regular mail. Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is improperly before this Board. Section 3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, 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 Wifh the clerk not later than ten (10) days after the filing of the decision with the Town Clerk. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to the expiration of the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21. A motion to reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it stood before the decision was voted. A motion to amend the decision or a motion to re-open the hearing will be in order." BOARD 1OF APPEALS Wi liam Sullivan Ac ing Chairman Dated this 14th day of October, 1988 /awt 60'. APRIL71V ►►SgCHU5F';f TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD Of APPEALS NOTICE OF DECISION Douglas R. MacMiff Date October 14, William S. MacLeod • • • • • •19881 . 88 • • • 1 East River Place Petition No.. 21-89 Methuen, MA 01844 Date of Hearing. .October 11, 1988 Petition of Douglas. .R.. .NarWf . ,anal. William. S..• MacLeod. • • . . • • . . • . . . . • • • • • . _ . . . . . • • • Premises affected . . . . .163. Sal= .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a MUOiifiHK*MMXU .recons.ideration for Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . so as to permit . construction .of .a.single .family. .dwelling .with. related. gr.ading. . . . . within. 100 .ft.. o.f. .a .wetland which. 1s .a.tributaryto. lake. Cochichewick . . . . . . . :.. . After a public hearing given on the above date, the Board of Appeals voted to . .DENY. . . . . : the REQUEST FOR RECONSIDERATION iQX0� 3FRh � d * . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signed Q� . . . . .William .Su livan,• .Acting .Chairman . . . . . .Augustine . . ickerson, . UA,* Walter„Soule. . . . . . . . . .. . . . . . . . . . . . . . . . .Raymond .viveuzIo. . . . . . . . . . . . . . . . . Anna. 0'.Connor. . . . . . . . . . . . . . . . . . . . Board of Appeals jg Ij Sec. zr WITHDRAWAL to the application on may be wit hc�.r awn ,by notice in writing f.n aPP the Board. Clerk at any time prior to the hearing by Sec. 3 RECONSIDERATION I� 1 has adjourned, there shall be no recon- , fter the meeting the Board, except upon wr=, tten re uest sideration of a decision of the decision filed with the person aggrieved by e the decision with of the la- licant or a P e :Brig Gen da _s a ter _ f. clerk not later tT, otion for recons eration must be acted upon by and decision, prior to the t e own Clerk. F• m Superior Court those who participated in rfor appeal to the Sup peri iod provided expiration of the Cha ter 40a, Sec. 21• i by General Laws, P four concurring to reconsider must be carried by e matter A mot i the e f r if carried , shall hav ;`L motion to amend v°tes, an., , precisely as stood before tha on the hearing will be in order. the ec s on or a moon to re-°p 1 the hear i.ng must be an evidence new is to be taken , If y o. re-opened. C s OF NEARING 1} Sec. RE-OPIIQILG put on the voted , the case shall be p ; t If a re-opening is duly and hearing and notice shall be given as in the case calendar f°i nal shearing. of the orig t 5 RE-APPLICATION Sec. C tion covering a matter which hasbeeas navorab y No new applica unless there the Board shall be Permitted property since the E. acted upon by c , cumstances affecting such substantial change in prior decision. EXTENSIONS 6 ONE YEAR LIMITATION ON GRt14TS: Sec. all permits If an aPP lication is granted by the Board , � rosecution of the work shal�oeethbt�ate ofnfiling necessary for the p on is the office of the Town Clerk. struction shall be cimm©aced witi�i« oie yea � of the Board' s decision time may be granted. by the Reasonable extens ion of said e Court unrer General e al to the Superior c aus e shown. � Board in the case of an app or for other g i Laws, Chapter L}O.i, Sec. 21, i a CARUSO&McLELLAN ,�y 4, �T ���_� ATTORNEYS AT LAW =� LIAR-5190 ONE ELM SQUARE = © ANDOVER,MASSACHUSETTS 01810 - Ly 5 N.. /990 - YYD�w.. �v�aeaacraM1 Keeper of the Records North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01&45 - ���irtrtf�fijtr�rr�it�r�s�ttt�t�l�re�rrl�res��t��sst1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. LAND COURT DOUGLAS R. MIFFLIN and Docket No. 133740 ; 133741 WILLIAM S. MacLEOD, Plaintiffs ) V. ) THE NORTH ANDOVER ZONING BOARD ) SUBPOENA 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 ) To: Louis Rissin 59 Blueberry Hill Lane North Andover, MA 01845 GREETINGS: YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the applicable provisions of the Massachusetts Rules of Civil Procedure to appear at the office of David L. McLellan, Caruso & McLellan, One Elm Square, Andover, Massachusetts on Thursday, March 15, 1990 at 3 : 15 p.m. , and testify to your knowledge, by oral deposition, in the above- entitled action. HEREOF FAIL NOT AS YOU WILL ANSWER YOUR DEFAULT UNDER THE PAINS AND PENALTIES IN THE LAW IN THAT BEHALF MADE AND PROVIDED. Dated: March 5, 1990 r Notary , P c David L. McLe an My Commission Expires: Caruso & McLellan One Elm Square Andover, MA 01810 Rmr,, 0p' Nz Tel. (508) 475-6700 B.B.O. # 337840 CARUSO&McLELLAN. ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER.MA 01810 TEL:(508)475-6700 FAX:(508)4758880 4' COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. LAND COURT jiit F DOUGLAS R. MIFFLIN and WILLIAM S. MacLEOD, PlAintiffs V. ) No. 133740 Docket E 133741 THE NORTH ANDOVER ZONING BOARD ) I OF APPEALS, acting by and ) E; through its Members: William J. Sullivan, Augustine W. Nickerson, Walter F. Soule, Raymond A. ) Vivenzio, Esq. , and Anna P. ) O'Connor, Defendants ) SUBPOENA DUCES TECUM To: Keeper of the Records North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 GREETINGS: YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the applicable provisions of the Massachusetts Rules of Civil Procedure to appear at the office of David L. McLellan, Caruso & McLellan One Elm Square, Andover, Massachusetts on Thursday, March "15, 1990 at 9:00 a.m. , and testify to your knowledge, by oral deposition, in the above- entitled action. if You are further required to bring with you the following records: is I i� 1. All documents and exhibits relating to Lot 1 on. Salem Street, North Andover, Massachusetts including but not limited to those documents and exhibits which the ZoningiBoard of Appeals intents to introduce at the trial n this action on March 30, 1990; 2. All documents which support the fact or belief that residential lots in the Lake Cochichewick watershed ought to be connected to town sewer; CAI CARUSO&McLELLAN �. A-, ATTORNEYS AT LAW � ONE ELM SQUARE A TR VA COPY ATT+Pf� T:9T- AI ANDOVER.MA 0181.0 _E - F q T TEL:(508)475-6700 F. FAX:(5081 4758880 { 1 `y 4 i d it t jf 1 /i 3 . All documents which support the fact or belief that a sub-surface disposal system meeting the requirements of Title V of the State Environmental Code and the regulations of the North Andover Board .of Health as they existed prior to July 2, 1985, poses more than a de minimus risk of harm to Lake Cochichewick and its tributaries; and 4 . Any expert opinions that support a denial of the special permit sought by the plaintiffs in 1985 because of any risks of harm to Lake Cochichewick or its tributaries due to the siting of the proposed dwelling on the subject lot 22 feet within the 100 foot buffer to the tributary to the Lake Cochichewick. HEREOF FAIL NOT AS YOU WILL ANSWER YOUR DEFAULT UNDER THE PAINS AND PENALTIES IN THE LAW IN THAT BEHALF MADE AND PROVIDED. i Dated: March 5, 1990 U C Notary P David L. McLellan My Commission Expires: Caruso & McLellan �J One Elm Square y/ Andover, MA 01810 Tel. (508) 475-6700 B.B.O. # 337840 r CARUSO&McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE - i ANDOVER.MA 01810 I TEL:(508)475-6700 FAX:(508)4758880 J KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD AN DONALD G..PAIGE BOSTON, MASSACHUSETTS 02110 PAIGE ELIZABETH A.LANE (617)451-0750 JOYCE FRANK FAX 451-1863 JOHN W.GIORGIO BARBARA J.SAINT ANDRE JOEL B.BARD RICHARD J.FALLON GEORGE M.MATTHEWS JAMES A.DYREK EVERETT J.MARDER JANE M.O'MALLEY February6 1990 KAREN V.KELLY COLLEEN B.WALKER SONDRA M KORMAN ANNE-MARIE M.HYLAND RICHARD BOWEN CHERYL ANN BANKS Zoning Board of Appeals North Andover Town Hall 120 Main Street l North Andover, MA 01845 e::MfflnacLeod v:T=-Z_oning Board of Appeals Land Court Nos: 133740.,5133741 Dear Members of the Zoning Board of Appeals: The above matters have been scheduled for trial in Land Court on March 30, 1990. I have received inquiries from plaintiffs' counsel concerning the Board's possible interest in settling this matter. This is an appeal of the Board's denial, in 1985, of plaintiffs' application for a special permit to build a house within 100 feet of a tributary to Lake Cochichewick. The back of the house, apparently, would be 78 feet from the tributary and the proposed scrtic s steiti would ;:E in fruni o the vl e i .e. , ouL of the 100-foot zone) . The plaintiffs' attorney has expressed his clients' interest in devising a compromise, but has not described anything specific. He has said, however, that it is not economically feasible for them to tie into the sewer system. Does the Board have any interest in discussing a possible settlement of this case? Please let me know in the near future. Otherwise I shall begin to prepare for the March 30 trial. Very truly yours, � JBB/na cc: Board of Selectmen Karen Nelson -el B. Bard KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MASSACHUSETTS 02110 DONALD G.PAIGE ELIZABETH A.LANE (617)451-0750 JOYCE FRANK JOHN W.GIORGIO JOEL B.BARD JOEL A.BERNSTEIN RICHARD J.FALLON BARBARA J.SAINT ANDRE , GEORGE M.MATTHEWS EVERETT J.MARDER JANE M.O'MALLEY KAREN V.KELLY DAVID L.GALLOGLY SONDRA M.KORMAN ANNE-MARIE M.HYLAND November 14, 1988 Members of the Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Douglas R. Mifflin and William S. MacLeod Vs: North Andover Zoning Board of Appeals No. 88-2929 Dear Members of the Zoning Board of Appeals: This is to inform you that the enclosed case has been brought and served upon me for which I will file the appropriate pleading. Very truly yours, Leonard Kopelman LK/sb Enclosure cc: Board of Selectmen COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) V. ) Civil No. 88- I 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 ) COMPLAINT The plaintiffs herein invoke the provisions of Massachusetts General Laws, Chapter 40A, Section 21, as amended, and allege the following: 1. Plaintiff, Douglas R. Mifflin resides at R.F.D. #1 Box 399 , York, ME. and plaintiff, William S. MacLeod, resides at 231 Broadway Street, Methuen, MA and are an aggrieved party within the provisions of M.G.L. Chapter 40A, Section 17, as amended, as a result of the Decision of the Zoning Board of Appeals of the Town of North Andover dated October 14 , 1988 , which voted to deny an Application for Reconsideration on Relief from the Requirements of the Zoning Ordinance, affecting the premises commonly known and numbered CARUSO&MCLELLAN ATTORNEYS AT LAW as 163 Salem Street, North Andover, Essex County, ONE ELM SQUARE ANDOVER.MA 01610 TEL:(508)475-6700 1 i FAX:1508)4758860 I f , i R H Massachusetts (Lot 1) . Said Application for Reconsideration on Relief is attached hereto and incorporated herein as Exhibit "A" . Said Decision denying relief is attached hereto and incorporated herein as Exhibit "B" . 2 . The defendants are the duly constituted and regular members of the Zoning Board of Appeals of the Town of North Andover, (hereafter, the Board) , which is a Special Permit Granting Authority, and all reside in the Town of North Andover as follows: William J. Sullivan 405 Salem Street North Andover, MA 01845 Augustine W. Nickerson 100 Moody Street North Andover, MA 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, MA 01845 Raymond A. Vivenzio, Esq. 11 Appledore Lane North Andover, MA 01845 Anna P. O'Connor 88 Martin Avenue North Andover, MA 01845 3 . MacMiff Developement Corp. the predecessor-in-title to the plaintiffs, purchased Lot 1 together with an adjoining parcel commonly known and numbered as 175 Salem Street, North Andover, Essex County, Massachusetts (Lot 2) on October 16, 1984 by deed recorded in Essex North District Registry of Deeds in Book 1881, Page 115. 4 . At the time of purchase on October 16, 1984 , Lot 1 CARUSO&McLELLAN ATTORNEYS AT LAW and Lot 2 were one parcel . ONE ELM SQUARE ANDOYcR.MA 01810 TEL:(508)475-6700 2 FAX:0508)4758880 5. In December of 1984 the North Andover Planning Board endorsed a Plan of Land showing the creation of Lot 1 and Lot 2 as a Plan Not Requiring Approval. This Plan was recorded at the Essex North District Registry of Deeds on December 28 , 1984 as Plan No. 9710. 6. On March 12, 1985 MacMiff Developement Corporation filed an application to the Board for a Special Permit pursuant to the Town of North Andover Zoning By-Laws, section 4 , paragraph 133 for construction of a single family home within 100 feet of a wetland which is tributary to Lake Cochichewick on the land known as Lot 1 (163 Salem Street, North Andover, MA) . 7 . This original application was denied on July 2 , 1985 by the North Andover Zoning Board of Appeals and an appeal M from this denial was timely filed in the Superior Court pursuant to G. L. c. 40A, sec. 21. See, MacMiff Development Corp. vs. Town of North Andover Zoning Board of Appeals, et al . , Essex Superior Court, No. 85-2281. 8 . An Application for Reconsideration on Relief, (Exhibit "A") was filed on September 6, 1988 with the North Andover Zoning Board of Appeals. This Application was denied on October 14 , 1988 and filed with the Town Clerk on October 17 , 1988 . 9. The plaintiffs are aggrieved by the Decision of the CARUSO&McLELLAN North Andover Zoning Board of Appeals denying their ATTORNEYS AT LAW ONE ELM SQUARE Application for Reconsideration. A Notice of Appeal from the ANDOVER.MA 01810 TEL:608)475-6700 3 FAX:(508)4754i880 - Decision was timely filed with the Town Clerk of North Andover by mail on November 4 , 1988 . 10. The plaintiffs allege that the said Decision denying the Application for Reconsideration exceeds the authority of the Zoning Board of Appeals for the Town of North Andover. 11. Plan No. 9710 dividing the locus into two lots was submitted and recorded prior to the passage of a moratorium on development in the Town of North Andover by Town Meeting in May, 1985. Said moratorium expired on or about May, 1988 and is no longer in effect. 12 . Construction of the proposed single family dwelling has received necessary approvals from other town administrative bodies, including the Conservation Commission on April 23 , 1985, the Board of Health April 17 , 1985, and most recently by the North Andover Planning Board in August 1988 . 13 . Construction as presented to the Board of Appeals by the plaintiffs is the only feasible plan for the locus. 14 . Said construction will cause no damage to the tributary to Lake Cochichewick, or to the lake itself, and meets all requirements of Title V of the Massachusettts Environmental Protection Act and of the Health Regulations of the Town of North Andover. CARUSO&McLELLAN ATTORNEYS AT LAW 15. The Board's refusal to reconsider its decision of ONE ELM SQUARE ANDOVER,MA 01810 TEL,(508)475-6700 4 FAX:(508)475b880 July 2 , 1985, refusing to grant a special permit because of the lack of a town sewer and the moratorium, is based on a legally untenable ground and is arbitrary, capricious, unreasonable and whimsical. WHEREFORE, the Plaintiffs demand: i 1. A judgment of this Honorable Court that the Decision of the North Andover Zoning Board of Appeals dated October 14 , 1988 be annulled; 2 . In the alternative, a judgment of this Honorable Court ordering the Zoning Board of Appeals to reconsider and approve said Special Permit. Douglas Mifflin William J. MacLeod By their attorney Dated: Novemberc 4 , 1988 David L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Tel. (508) 475-6700 BBO# 337840 =ARUSO&McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER.MA 01810 TEL--T")475-6700 5 FAX:(508)475-88W ti f (TO PLAINTIFF'S ATTORNEY: MOTOR VEH10.1: TORT — CONTRACT — EQUITABLE RELIEF --�2(THLR.) T COMMONWEALTH OF MASSACHUSETTS 0 0 o ESSEX,ss. SUPERIOR COURT CIVIL ACTION No. LD Cd Doulas ... Mifflin andilS.` MacLeo laintiff(s)o _._. g . __. .._ ........................ .. . 7 N C v The North Andover Zoning Board of Appeals, l acting by and through its Members : Willia . . . . nd nt s' -� .�.;...cul•1-Ivan;-•-August-ine...W:---Ni-cke-r-s-an..,...Waltm�e F. Soule Raymond A. Vivenzio, Esq. and Anna P. O'Connor SUMMONS Q � To the above named Defendant: $ David L. McLellan You are hereby summoned and required to serve upon ............................ .c plaintiffs attorney, whose address is .......Wie...Elm_:.S ua.x.e.,...Andox.er.,.._MA.-_018.10__, an answer to the -o - ce W .2C= complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclu- 8 sive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief de- A � •a manded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk 0 of this court at .... a.lem,-_-NA................... either before service upon plaintiff's attorney or within a reasonable a3 time thereafter. S � , Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim an claim which you Y � v may have against the plaintiff which arises out of the transaction or occurrence that is iltc subject matter of the 3 plaintiffs or you will thereafter be barred froin making such claim in n � lai s a other action. P Y g c .. Y 0 1 ' F Z < 0 WITNESS,ROgERT L. STEADh'IAfT ; Esquire, at Salem, the tenth z day of November in the year of our Lord one thousand Z nine hundred and eighty- eight y N o E z 4 �. clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. when more than one defendant is involved,the names of all defendants should appear in the caption. If a separate summons is used for each defendant, each should be addressed to the particular defendant. Office 1130 �... ,.....: ._,........,.e.....�.--.� �....._ .d ._ ... .._�_:....._+_.-..........�:.....00._F.��...._..,..w.....s ww......rcu.w�a..-.wau...:+. _ a..cwa.•�a:s:wx:+i..Y.w..rv.a...rsw....wa....:++...Na:> s�'wnkM.cua..}i'a� Ik PROOF OF SERVICE OF PROCESS I hereby certify and return that on ........................................................................... 198 , I served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5): .......................................•----.....................--------•----------------------•---••----........................................................--------...............-•--.....---... ........................................................................................................................................................................................................ _...................................•----....................--•--.................--.--••-•...............•--•-•---•-•-•-•--..........--•--...........-------•.........-----...........•----.......... Dated: , 198 N.B. TO PROCESS SERVER:— PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. 198 I r. I I I I r I cd 0 ON U � N O 4j 0*11 N N U O � paw ria �4 w ' ^ H � W `~ 00 4-4 to 'Jr--i Qr Cn Cn U Z H CO x aCz ZU A4 4J 4-4 j fX O C/� arte- v u] Sa O v' cc cm O Q v' cl z -0 O Wro U y Q3 Hrr0 I W Cn I REC�i Y..e, �l DAW CARUSO &McLELLAN T O` i" L.�:. ATTORNEYS AT LAW NORTH i's�0'dER ONE ELM SQUARE Noy I . K4 Q0� ANDOVER,MASSACHUSETTS 0181011 y PETER J.CARUSO TEL:(508)475-6700 DAVID L. McLELLAN FAX:(508)475-8880 November 4 , 1988 Town Clerk Town of North Andover 120 Main Street No. Andover, MA 01845 Re: 163 Salem Street, No. Andover, MA Dear Sir/Madam: Enclosed please find a Complaint and Notice of Appeal from a Decision of the North Andover Zoning Board of Appeals regarding 163 Salem Street in North Andover, MA. Please feel free to call this office if you have any questions. Very truly yours, � c David L. McLellan DLM/aed Encl Sent by Certified Mail , Return Reciept Requested No. P973282228 CARUSO &McLELLAN ATTORNEYS AT LAW `tt a'�C:LI`�VR ONE ELM SQUARE ANDOVER,MASSACHUSETTS 01810 8 I 554 PETER J.CARUSO TEL:(508)475.6700 DAVID L.McLELLAN FAX:(508)475-8880 I I NOTICE OF APPEAL TO: North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that on Friday, November 4 , 1988, pursuant to Massachusetts General Laws Chapter 40A, Section 21, Douglas R. Mifflin and William S. MacLeod commenced an action in the Superior Court, Essex County, Massachusetts, appealing the decision of the North Andover Zoning Board of Appeals dated October 14 , 1988, and filed with the Town Clerk of North Andover on October 17, 1988 , to deny the application of Mifflin and MacLeod for a Special Permit to construct a single family home within 100 fee of a wetland at 163 Salem Street, North Andover, Massachusetts. A copy of the Complaint commencing said appeal is attached hereto. Douglas R. Mifflin William S. MacLeod By their attorney Dated: November 4 , 1988 David L. McLellan i REC`_, N« [IN: TC`;; NORTi �Ci'/ER Nov 7 1 54 M °88 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) V. ) Civil No. 88- 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 ) COMPLAINT The plaintiffs herein invoke the provisions of Massachusetts General Laws, Chapter 40A, Section 21, as amended, and allege the following: 1. Plaintiff, Douglas R. Mifflin resides at R. F.D. #1 Box 399 , York, ME. and plaintiff, William S. MacLeod, resides at 231 Broadway Street, Methuen, MA and are an aggrieved party within the provisions of M.G. L. Chapter 40A, Section 17, as amended, as a result of the Decision of the Zoning Board of Appeals of the Town of North Andover dated October 14 , 1988 , which voted to deny an Application for Reconsideration on Relief from the Requirements of the Zoning Ordinance, affecting the premises commonly known and numbered -ARU50&McLELLAN ATTORNEYS AT LAW as 163 Salem Street, North Andover, Essex County, ONE ELM SQUARE ANDOVER.MA 01810 TEL 5W)47S-6700 1 FAX:508)4758880 I Massachusetts (Lot 1) . Said Application for Reconsideration on Relief is attached hereto and incorporated herein as Exhibit "A" . Said Decision denying relief is attached hereto and incorporated herein as Exhibit "B" . 2 . The defendants are the duly constituted and regular members of the Zoning Board of Appeals of the Town of North Andover, (hereafter, the Board) , which is a Special Permit Granting Authority, and all reside in the Town of North Andover as follows: William J. Sullivan 405 Salem Street North Andover, MA 01845 Augustine W. Nickerson 100 Moody Street North Andover, MA 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, MA 01845 Raymond A. Vivenzio, Esq. 11 Appledore Lane North Andover, MA 01845 Anna P. O'Connor 88 Martin Avenue North Andover, MA 01845 3 . MacMiff Developement Corp. the predecessor-in-title to the plaintiffs, purchased Lot 1 together with an adjoining parcel commonly known and numbered as 175 Salem Street, North Andover, Essex County, Massachusetts (Lot 2) on October 16, I 1984 by deed recorded in Essex North District Registry of Deeds in Book 1881, Page 115 . 4 . At the time of purchase on October 16, 1984, Lot 1 CARUSO&McLELLAN ATTORNEYS AT LAW and Lot 2 were one parcel . ONE ELM SQUARE ANDOVER,MA 01810 TEL:(508)475-6700 2 FAX:(508)4754M80 I 5 . In December of 1984 the North Andover Planning Board endorsed a Plan of Land showing the creation of Lot 1 and Lot 2 as a Plan Not Requiring Approval . This Plan was recorded at the Essex North District Registry of Deeds on December 28 , 1984 as Plan No. 9710. 6. On March 12 , 1985 MacMiff Developement Corporation filed an application to the Board for a Special Permit pursuant to the Town of North Andover Zoning By-Laws, section 4 , paragraph 133 for construction of a single family home within 100 feet of a wetland which is tributary to Lake Cochichewick on the land known as Lot 1 (163 Salem Street, North Andover, MA) . 7 . This original application was denied on July 2 , 1985 by the North Andover Zoning Board of Appeals and an appeal from this denial was timely filed in the Superior Court pursuant to G.L. c. 40A, sec. 21. See, MacMiff Development Corp. vs. Town of North Andover Zoning Board of Appeals, et al . , Essex Superior Court, No. 85-2281. 8 . An Application for Reconsideration on Relief, (Exhibit "A") was filed on September 6, 1988 with the North Andover Zoning Board of Appeals. This Application was denied on October 14 , 1988 and filed with the Town Clerk on October 17 , 1988 . 9 . The plaintiffs are aggrieved by the Decision of the ARUSO&McLELLAN North Andover Zoning Board of Appeals denying their ATTORNEYS AT LAW ONE ELM SQUARE Application for Reconsideration. A Notice of Appeal from the ANDOVER.MA 01010 TEL:(506)475-6700 3 FAX:(508)475 OP-60 I Decision was timely filed with the Town Clerk of North Andover by mail on November 4 , 1988 . 10 . The plaintiffs allege that the said Decision denying the Application for Reconsideration exceeds the I authority of the Zoning Board of Appeals for the Town of North Andover. 11. Plan No. 9710 dividing the locus into two lots was submitted and recorded prior to the passage of a moratorium on development in the Town of North Andover by Town Meeting in May, 1985 . Said moratorium expired on or about May, 1988 and is no longer in effect. 12 . Construction of the proposed single family dwelling has received necessary approvals from other town administrative bodies, including the Conservation Commission on April 23 , 1985, the Board of Health April 17 , 1985, and most recently by the North Andover Planning Board in August 1988 . 13 . Construction as presented to the Board of Appeals by the plaintiffs is the only feasible plan for the locus. 14 . Said construction will cause no damage to the tributary to Lake Cochichewick, or to the lake itself, and meets all requirements of Title V of the Massachusettts Environmental Protection Act and of the Health Regulations of the Town of North Andover. :ARU50&McLELLAN ATTORNEYS AT LAW 15. The Board's refusal to reconsider its decision of ONE ELM SQUARE ANDOVER.MA 01810 TEL(508)475-6700 4 FAX:508)4758880 July 2 , 1985, refusing to grant a special permit because of the lack of a town sewer and the moratorium, is based on a legally untenable ground and is arbitrary, capricious, unreasonable and whimsical. I WHEREFORE, the Plaintiffs demand: 1. A judgment of this Honorable Court that the Decision of the North Andover Zoning Board of Appeals dated October 14 ; 1988 be annulled; 2 . In the alternative, a judgment of this Honorable Court ordering the Zoning Board of Appeals to reconsider and approve said Special Permit. Douglas Mifflin William J. MacLeod By their attorney I Dated: November 4 , 1988 JL � David L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Tel. (508) 475-6700 BBO# 337840 •:ARUSO&McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER.MA 01810 TEL•GM 475-6700 5 FAX:GM 4754MM I R -ceived by `Town Clcrk: A14CE OAµ LO1Et LGRG NORTH -00 Ea EXHIBIT""A" SEP 6 IO 44 'TOWN OF NORTH ANDOVE=R, MASSACHUSI TI:S 130AIlD OF APPEALS RECONSIDERATION ON APPLICATION F0111 REL 1 ROh1 '1'111: RL'QUt1tEMEN'I'S OC '1'IiE ZONING ORDINANCE 1 East River Place Douglas R. MacMiff- Methuen, MA Applicant William S; MacLeod -----------Address 1 . Application is hereby made : a ) For a variance from the requirements *of Section Paragraph and 'fable of the Zoning By Laws . For reconsideration b) /For a Special Permit under Section 4 —Paragrapli 133 of the Z011i" By Laws . c ) As a Party Aggrieved , for review of a decision made by the Building Inspector or other authority. L3 g P , 2 . a ) Premises affected are land—X—. -and building (s ) _numbered 163 Salem ___�__._ Street . b) Premises affected are property with frontage ori the Norti► ( ) South (X) East ( ) west ( ) side of, Salem ----Strc:c;t .-- Street , and known as No. _ 163_Salem______ c ) Prcn►iscs affected Circ in Zoning 1)i strict R3--, z►nd the 1)rcu► iscs affected have an area of 98,005 _square feet arid frontage of 126.67 feet . j 3 . Ownership a ) Name and address of owner ( if joint ownership , give aLl names ) : William S. MacLeod and Douglas R. Mifflin both of 1 East River Place, Methuen MA I N C,1T T M • OF IT B EAN 10 UJ (— •t -y C..'J y9S�n�NiiSFt�y _E > Any appeal s,iall be filed TOWN OF NORTH ANDOVER within (2r ) the LL; r='•.<I MMASSACHUSETTS date of fi r:S Of l-:is (`-Office LU X:"` in the Office of the Town o<Qa� ti BOARD OF APPEALS Clerk. z w- 0 ************************** * * Douglas R. MacMiff ** William S. MacLeod * Petition 11 21-89 * 1 East River Place * DECISION Methuen, MA 01844 * * ************************** The Board of Appeals held a public hearing on Tuesday evening, October 11, 1988 upon the application of Douglas R. MacMiff and William S. MacLeod requesting a reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws so as to permit construction of a single family dwelling with related grading within 100' of a wetland which is a tributary to Lake Cochichewick on the premises located at 163 Salem Street. The following members were present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on September 15 and September 22, 1988 and all abutters were notified by regular mail. Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is improperly before this Board. Section. 3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, 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. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to the expiration of the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21. A motion to reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it stood before the decision was voted. A motion to amend the decision or a motion to re—open the hearing will be in order." BOARD OF APPEALS William Sullivan Acting Chairman Dated this 14th day of October, 1988 /awt t; cd ORTij v. c ,iC1 the N0t*.C� Town :0ti'i Oi th ':9sgcriu���:+ ., ., an G TOWN OF NORTH ANDOVER or a MASSACHUSETTS PN� �;`��� .:c e 0�. ��A" e BOARD OF APPEALS NOTICE OF DECISION Douglas R. MacMiff Date October 14, .1988• . . William S. MacLeod . " " 1 East River Place 21-89 Methuen, MA 01844 Petition No.. . . . . . Date of Hearing . . er .11, • 1988 Octob Petition of Wi,l,l,iam. $... MacLeod. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises affected . . . . .1,63 .SaJ em .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition fora 3�stt � recons.zderati.on for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . so as to permit . cons.truction .of .a. single .family. .dwelling .with. related. grading. . . . . .within. 100 .ft.. o.f. .a .wetland .which .is .a. trihutary. to. Lake. Cochichewick . . . . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to . .DENY. . . . . . the REQUEST FOR RECON. . . . . .SIDERATION. . . . . . �{ 1 C4 Y.'tkHXBtif� PMT;2;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f 'X Signed I . . . . . .William Sullivan,. Acting Chairman. Augustine .Nicke.rson, • Clerk . . . . . . . Walter• ,Soule. . . . . . . . . . . . . . . . . . . . . . . . . .Raymond Nivenz�Lo. . . . . . . . . . . . . . . . . Anna. .0'.Connor. . . . . . . . . . . . . . . . . . . . Board of Appecls I William S. MacLeod, P.E.,P.L.S. President andover consultants i inc. Civil Engineers • Land Surveyors • Land Planners 1 East River Place,Methuen,Massachusetts 01844 (617)6673828 ` Ree'` is%c'.i by Town Clerk: RECEIVED UW C}_ER r SEP IO 44 AM °$$ TOWN OF NORTH ANI)OVER, MASSACHUSETTS BOARD OF AP['EALS RECONSIDERATION ON APPLICATION FOR/ RELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE Douglas R. MacMiff 1 East River Place Applicant William S. MacLeod _______Address_ Methuen, MA_��__ 1 . Application is hereby made : a ) For a variance from the requirements `of Section Paragraph and Table of the Zoning By Laws . For reconsideration b) /For a Special Permit under Section 4 _Paragraph133 of the Zoning By Laws . c ) As a Party Aggrieved , for review of a decision made by the Building Inspector or other authority. 2 . a ) Premises affected are land-L.--and building (s ) _numbered _ 163 Salem Street . b ) Premises affected are property with frontage on the North ( ) South (X) Fast ( ) west ( ) side of Salem Street , and known as No. 163_Salem______ Street . c ) Premises affected are in Zoning Ui strict R3 _, ane] the premises affected leave an area of 98,005 square feet and fro►itaye of 126.67 feet- -- --- 3 . Ownership a ) Name and address of owner ( if joint ownership, give all names ) : William S. MacLeod and Douglas R. NLifflinz both of 1 East River Place, Methuen, MA „r_„v_i_ous_Owner MacMiff Development Corp. t 1 7; Description of relief sought on this petition Tfi�• applicant requests a. j special permit to construct a single family dwelling with re ge gra i within 1II0 . of a wetland which is tributary to Lake Cochichewick. 8 . Deed recorded in the Registry of Deeds in Book !i881. Page 115 y Land . Court Certificate No .-- Book -- Page .� 1 ' The principal points upon which I base my application are as follows : -.(must be , stated in detail ), Construction of this dwelling is consistent with present use of the area and will not adversely affect the neighborhood,• yehic es, or pe estria>zs.- 117s -not possiBle to meet the setback requirements set forth in section. 4.133 (3T. o t e- zoning by--Laws due to• the wetlands on- the rear of the of anclTstreet 3'-, p on a em treet. e - i �1n�,- ci��--atta%-11UU -ha rvmeII-arm- i the onservat'o Co Sion s approved the eonstrpc• ion as proposed on sae plans. I agree to pay stile �.ing ree , advertising irr nqjispaper , and incidental expenses* , . - Signature of Pe i c or er-cs — Every application for action by the Iloard shrill be made on a form approved by.. the Board . These forms shalt be furnished' by the Clerk upon request . Any communication purporting to be an application shall be treated as mere notice*o ice of• intention to geek relief- until such • c. r time - as it 'is . made on the � officiaL application form . ALL It tnforrnation called -for by the form shall be furnished by the applicant in the manner ' 4herein,:prescribeci . Every-application shall be submitted witha List of "Parties In Interest" 4hich list shall • include .the petitioner , . abutters , owners of land directly Dpposite on any public or private street or way, and abutters to the zbutters ,within ; three hundred feet ( 300 '. ) of the property line of the ?etitfoner' as they appear _ on the most recent applicable tax list , iotwithstanding that the land of any such owner is located in another city .'. 3r town, the Planning Board of the city or town, , and the Planning Board of !very. abutting city or town . ': j. 'Every application shall be submitted.. with are application charge cost ill ' .he amount- of $25 . 00. In addition , the petitioner shall be responsible .or -any and all costs involved in bringing the petition before the Board . .riot necessarily,.': i u: Sec. 2 WITHDRAWAL lic ati on may be withdrawn by notice in writing to the n� :.n app the Board. Cl k at any time prior to the hearing by RECON SIDERATI Sec. 3 ON has adjourned, there shall be no recon- t�fter the meeting upon wr; tten re uest sideration of a decision of the Board, except ider aggrieved by the decision fcisioniwith th e r s ant or a person gg the de of the a lic e ing o e n___d ay a t er_ clerk not later thamotion for recons eration must be acted upon y rk, d.ecision, prior to the t e own Cle erior Court those who participated in the hearing an eal to the Sup provided for app period p expiration of the p �:,� Sec. 21. by General Laws, Chapter 4 ,� to reconsider must be carri..ed. by four concurring A mot i the e .f r r e matter votes, ani? , if carried , shall hav . :� motion to amend stood before the d i will be in order. precisely as on to re-open the he ar_ng 4 the -ec s on or a no the hearing must be �u e taken , If any new evidence is to b a re-opened. T OF EEARIN G ' Sec. 4 RE-OPEDTIZ.G the all be put on the ul is dy voted , case shall If a re-opening and not ice shall_ be given as in tho case +, calendar for a second hearing of the original hearing. RE-APPLICATION been unfavorably Sec. 5 [ application covering a matter which has be No new app ".d unless there has been a . on by the Board shall be per such property since the acted up e in circumstances affecting substantial Chang prior decision. ONE YEAR LIMIUMON ON GRt�TS: EXT FITS I ON S Sec. b all Perm'tscon- If an application is granted by the Bo ayr�i, the prosecution of the work edrafrometl1etdate dofnfiling necessary for Clerk. ction shall be commenced e office nofythe Town stru in the of the Boardis decision ext ens ion of sairl time may be granted. by the Reasonableto the Superior Court under general Board in the case of an 2pPeor for other good cause shown. Laws, Chapter 40'i, } ,F r COMMONWEALTH OF MASSACHUSETTS APPEALS COURT ESSEX, SS. NO: 91-P-690 DOUGLAS R. MIFFLIN and WILLIAM S. MACLEOD Plaintiff-Appellants V. THE NORTH ANDOVER ZONING BOARD OF APPEALS { Defendant-Appellees ON APPEAL FROM A JUDGMENT OF THE LAND COURT C BRIEF FOR THE NORTH ANDOVER ZONING BOARD OF APPEALS i JOEL B. BARD KOPELMAN AND PAIGE, P.C. TOWN COUNSEL 101 ARCH STREET BOSTON, MA 02110 (617) 951-0007 r 1 LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. JOSEPH I. MULLIGAN DONALD G. PAIGE OF COUNSEL ELIZABETH A. LANE ATTORNEYS AT LAW JOYCE FRANK 1 JOHN W. GIORGIO 01 ARCH STREET BARBARA J. SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137 JOEL B. BARD RICHARD J. FALLON WILLIAM HEWIG III (617) 951-0007 EVERETT J. MARDER FAX (617) 951-2735 JANE M. O'MALLEY PATRICK J. COSTELLO NORTHAMPTON OFFICE KAREN V. KELLY (413) 585-8632 DEBORAH A. ELIASON JUDITH C. CUTLER ANNE-MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS BRIAN W. RILEY RAYMOND C. PORFIRI September 2, 1992 Zohing Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Douglas R. Mifflin et al. v. North Andover Zoning Board of Appeals Appeals Court No. 91-P-690 Dear Members of the Zoning Board: I am pleased to inform you that the June 30, 1992, decision of the Appeals Court in the above matter which affirmed the Land Court's decision in favor of the Zoning Board of Appeals, is now final and binding on the parties since the appellants have not petitioned for a rehearing or requested further appellate review within the time permitted. As you probably recall, the Land Court had upheld the Board's denial of a special permit application to build a home within 100 feet of a tributary to Lake Cochichewick. I am also informing the Planning Board of the final outcome because the matter began with an application to them in 1985. We appreciate the Town's assistance presenting this case to the Court. Very truly yours, Cel'B. Bard JBB/sh cc: Board of Selectmen Planning Board MAR - M!9MD OF APPEALS PRINTED ON RECYCLED PAPER LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. JOSEPH I. MULLIGAN DONALD G. PAIGE - OF COUNSEL ELIZABETH A. LANE ATTORNEYS AT LAW JOYCE FRANK 1 JOHN W. GIORGIO 01 ARCH STREET BARBARA J. SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137 JOEL B. BARD < RICHARD J. FALLON - WILLIAM HEWIG III 16171 951-0007 EVERETT J. MARDER FAX 16171 951-2735 JANE M. O'MALLEY PATRICK J. COSTELLO NORTHAMPTON OFFICE KAREN V. KELLY (4131 585-8632 DEBORAH A. ELIASON JUDITH C. CUTLER ANNE-MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS BRIAN W. RILEY RAYMOND C. PORFIRI July 2, 1992 Zoning Board of Appeals 1 North Andover Town Hall 120 Main Street 6 North Andover, MA 01845 Re: MacLeod, Mifflin et al v. BOARD OF APPEALS North Andover ZBA Appeals Court No. 91-P-690 Dear Members of the Zoning Board: I am very pleased to inform you that the State Appeals Court has affirmed the decision of the Land Court in the above matter. The Land Court had upheld the Zoning Board of Appeals' denial of a special permit application to build a home within a 100 feet of a tributary to Lake Cochichewick. This matter also 'involved a second case regarding a subsequent "reapplication" by the plaintiffs for the same project, which was also denied by your board. This matter began, in 1985, before the Planning Board so I am informing them of the outcome via copy of this letter. i A further appeal is technically possible and I will, of course, inform you. of any appeal. A copy of the decision is enclosed. Very truly yours, } Joel B. Bard JBB/dk Enc. cc: Planning Board Board of Selectmen PRINTED ON RECYCLED PAPER COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 91-P-690 DOUGLAS R. MIFFLIN & another V Y-9- NORTH ANDOVER ZONING BOARD OF AP EALS (and a companion case) . Z MEMORANDUM AND ORDER UNDER RULE 1:28 After the plaintiffs' 1985 application for a special permit to build within 100 feet of a tributary to Lake Cochichewick was denied by the North Andover Zoning Board of Appeals (board) , they appealed to the Superior Court. In 1988 they asked the board to reconsider their application. When the board refused, they again appealed to the Superior Court. The two Superior Court cases were transferred to the Land Court on April 19, 1989, and consolidated for trial. The Land I Court upheld the board's refusal to grant a special permit as reasonable, and this appeal ensued. We affirm the Land Court judgment. The plaintiffs' argument on appeal is that the trial judge's findings were insufficient to support his conclusion that the board's denial of the permit was not arbitrary and capricious. We disagree. William S. MacLeod. 2 William S. MacLeod, Douglas Mifflin and MacMiff Development Corporation vs. North Andover Zoning Board of Appeals. In his memorandum, the judge articulated the correct standard of review. The task of the trial court "was to determine whether this applicant for a special permit was able to demonstrate at a de novo hearing . that 'the board has based its decision on a "legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. "'" S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 359 (1976) (citations omitted) . The decision to grant r deny arecuest for a special Permit is within the discretion of the board. "No one, of course, has an absolute right to a special permit. " S. Kemble Fischer . Realtv Trust v. Board of Appeals of Concord, 9 Mass. pp. Ct. 477, 481 (1980) . The power to grant special permits is discretionary, Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 294 (1972) , and a board's decision denying a special permit may be disturbed only if the decision rests on a legally untenable ground, or is unreasonable, capricious, or arbitrary. S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. at 481. See also Caruso v. Pastan, 1 Mass. App. Ct. 28, 29-30 (1973) . "The 'board may deny (a permit) even if the facts showed that a permit could be lawfully granted. '" Texstar Constr. Corp. v. Boar of Appeals of Dedham, 26 Mass. App. Ct. 977, 979 (1988) (citation omitted) . The judge found that the board's decision was based primarily on the proposed project's lack of access to the town sewer. "I find this determination, which was -2- I reached in accordance with the Town's interest in reserving 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 ranting authority find that 'adequate and appropriate acilities will be provided for the proper operation of he proposed use. '" This finding is sufficient. The oard could reasonably be concerned that a septic system poses a greater threat to a nearby water supply than oes a tie-in to a sewer system. " [R]ule 52 (a) does of require extensive detail and only imposes a duty on judge to articulate the essential grounds for a decision. . . . 'The nature and exactness of the findings required depends on the circumstances of the articular case. ' Leader v. Hycor, Inc. , 395 Mass. 215, 224 (1985) , quoting [from] Kelley v. Everglades Drainage Dist. , 319 U.S. 415, 419 (1943) ." Willis v. Selectmen of Easton, 405 Mass. 159, 161 (1989) . The trial judge did not err in concluding that, in view of past problems with the purity of the waters of Lake Cochichewick, the town's primary source of the drinking water, the refusal to grant a special permit to build within 100 feet of a tributary was not arbitrary and capricious, despite the testimony of the plaintiffs as to the efficacy of the proposed septic system. Colangelo v. Board of Appeals of Lexington, 407 Mass. 242, 246 (1990) , on which the plaintiffs rely, is inapposite. Although other special permits were granted by the board for buildings within 100 feet of a i -3- tributary, they were for sites with access to the town 1 sewer system posing less of a threat, therefore, to the town water supply. The fact that the proposed septic system would be constructed in accordance with the requirements of Title i� 5 of the State Environmental Code does not help the plaintiffs. " [A] municipality's power to protect etlands [is] apparent. That power is shared jointlyI with the Commonwealth, and a municipality may impose [� ore stringent controls than those established by G. L. c. 131, S 40 [the Wetlands Protection Act] . . . . " i Southern New England Cgnference Assn. of Seventh-Day I Adventists v. Burlington, 21 Mass. App. Ct. 701, 706 (1986) . In view of the above, there is no need to reach the board's argument of lack of jurisdiction. Indeed, that question is not properly before this court because the board did not docket its cross-appeal. Judgments affirmed. By the Court (Armstrong, Brown, & Fine, JJ. ) , cu _ Cler Entered: June 30, 1992. LEONARD KOPELMAN - .KOPELMAN ,AND PAIGE, P.C. JOSEPH I. MULLIGAN DONALD G. PAIGE OF COUNSEL ELIZABETH A. LANE ATTORNEYS AT LAW JOYCE FRANK 1 JOHN W. GIORGIO 01 ARCH STREET BARBARA J. SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137 JOEL B. BARD RICHARD J. FALLON WILLIAM HEWIG III (617) 951.0007 EVERETT J. MARDER FAX (617) 951-2735 JANE M. O'MALLEY PATRICK J. COSTELLO NORTHAMPTON OFFICE KAREN V. KELLY (413) 585-8632 DEBORAH A. ELIASON" JUDITH C. CUTLER ANNE-MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS BRIAN W. RILEY RAYMOND C. PORFIRI - March 16, 1992 CONFIDENTIAL - NOT A PUBLIC DOCUMENT Zoning PP Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: MacLeod, Mifflin et al v. North Andover ZBA -Appeals Court No. 91-P-690 Dear Members of the Zoning Board: I am writing to bring you up to date on the status of the above case. In response to our Brief filed January 28, 1992 with the State Appeals Court, plaintiffs have filed a "reply brief. " In my opinion, it would not be worth the additional expense to the Town to respond to the plaintiff's reply brief. We will address any new arguments during the oral arguments before the court. The case is now a:.aiting scheduling for oral araument before the Appeals Court. There is a considerable backlog of cases and I do not expect this case to be called for several months. I will notify you when it is scheduled. Very truly yours, 1 B. Bard JBB/dk cc: Planning Board Board of Selectmen BOARD OF APPEALS PRINTED ON RECYCLED PAPER LEONARD KOPELMAN KoPELMAN AND PAIGE, P.C. DONALD G. PAIGE ATTORNEYS AT LAW ELIZABETH A. LANE JOYCE FRANK 1 JOHN W. GIORGIO 01 ARCH STREET BARBARA J. SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137 JOEL B. BARD RICHARD J. FALLON GEORGE M. MATTHEWS 18171 951-0007 - WILLIAM HEWIG 111 FAX 18171 951.2735 EVERETT J. MARDER NORTHAMPTON OFFICE JANE M. O'MALLEY 14131 585-8632 PATRICK J. COSTELLO KAREN V. KELLY DEBORAH A. ELIASON JUDITH C. CUTLER ANNE-MARIE M. HYLAND - RICHARD BOWEN CHERYL ANN BANKS BRIAN W. RILEY January 28, 1992 BY HAND DELIVERY Clerk of Court Massachusetts Appeals Court New Court House, 15th Floor Pemberton Square Boston, Massachusetts. 02108 Re: Mifflin, MacLeod v. North Andover Zoning Board of Appeals Appeals Court No. 91-P-690 Dear Sir/Madam: Enclosed please find 7 copies of the Brief for the North Andover Zoning Board of Appeals in the above matter. Thank you for your attention to this matter. Very truly yours, B. Bard L JBB/dk cc: David L. McLellan, Esquire North Andover Zoning Board of Appeals North Andover Board of Selectmen 29 BOARD OF APPEALS PRINTED ON RECYCLED PAPER a n TABLE OF C0NTENT8 Page Q TABLE OF AUTHORITIES STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE S O Prior Proceedings 1 Statement of The Facts 3 SUMMARY OF ARGUMENT 9 O ARGUMENT 11 I. THE TRIAL COURT PROPERLY FOUND THAT .THE ZBA'S DENIAL OF THE SPECIAL PERMIT DID NOT EXCEED THE ZBA'S AUTHORITY AND THAT THE F DENIAL WAS REASONABLE IN LIGHT BOTH OF THE STATUTORY AND TOWN BYLAW REQUIREMENTS AND OF THE ZBA'S O DISCRETIONARY POWERS. 11 A. The trial court met the statutory requirements of GLM c.40A, §17 which ' p limits judicial review of a denial of a special permit to a determination of whether the ZBA exceeded its p authority. 11 B. The trial court found facts which supported its ruling that the ZBA's p special permit denial was reasonable. 12 C. The trial court correctly deferred to the ZBA's proper Q exercise of its discretion. ,..�. D O i "1 2 9 Im BOARD OF APPEALS 0 II. THE COURT SHOULD DISMISS MIFFLIN AND MACLEOD'S ® ACTION FOR LACK OF SUBJECT MATTER JURISDICTION. 25 A. The jurisdictional question, which was previously raised O at trial, should be decided. 25 B. The 2BA never had jurisdiction to grant the Watershed Q District special permit. 26 C. After the April 1985 Town Meeting, Q Watershed District special permits no longer eXisted. 27 . D. If Mifflin and MacLeod's c.41. 481P Q Plan entitled them to any application it was for a Planning Board special permit. 27 p CONCLUSION 34 O O IQ i ii 0 O TABLE OF AUTHORITIES Cases parte Bellows Farms, Inc. v. 29 Building Inspector of Acton, 364 Mass. 253 (1973) Bicknell Realty Co. v. 12 O Board of Appeals of Boston, 330 Mass. 676 (1953) Board of Appeals of Southampton v. 19, 22 Boyle, 4 Mass. App. Ct. 824 (1976) 4 Brockton Public Markets, Inc V. 21 Board of Appeals of Sharon, 357 Mass. 783 (1970) Building Inspector of Lancaster V. 31 O Sanderson, 372 Mass. 157 (1977) Cape Ann Land Development Corp v. 29 Gloucester, 371 Mass. 19 (1976) I1O Cullen v. 32 Building Inspector of North Attleborough, 353 Mass. 671 (1968) O Dowd v. 22 Board of Appeals of Dover 5 Mass. App. Ct. 148 (1977) Flynn v. 25 j Contributory Retirement O Appeal. Board, 17 Mass. App. Ct. 688 (1984) Gamache v. Acushnet, 22 14 Mass. App. Ct. 215 (1982) O Garvey v. 15, 21 Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980) Gulf Oil Corp v. 19 24 Board of Appeals of Framingham, O 355 Mass. 275 (1969) i O iii Humble Oil & Refining Company v. 22 Board of Appeals of Amherst, O 360 Mass. 604 (1971) Kinchla v. 22, 24 Board of. Appeals v. Falmouth, 11 Mass. App. Ct. 927 (1981) O Kiss V. 12, 13 Board of Appeals of Longmeadow, 371 Mass. 147 (1976) • Litton Business Systems Inc v. 25 Commissioner of Revenue, IO 383 Mass. 619 (1981) Pendergast v. 12 Board of Appeals of Barnstable, 331 Mass. 555 (1954) O Pioneer Home Sponsors. Inc. v. 24 Board of. Appeals of Northampton, 1 Mass. App. Ct. 800 (1973) Racette v. ZBA of Gardner, 32 , 27 Mass. App. Ct. 617 (1989) iO S. Kemble Fischer Realty Trust V. 13 Board of Appeals of Concord, 9 Mass. App. Ct. 477 (1980) S. Volpe & Co. , Inc. v. 15 18 Board of Appeals of Wareham, 20, 21 4 Mass. App. Ct. 357 (1976) Subaru of New England Inc. v. 19,20, Board of Appeals of Canton, 23 8 Mass. App. Ct. 483 (1979) O Massachusetts Statutes Page G.L. c.40A, §6 9,27, 0 28,30, 31 G.L. c.40A, §9 15,16, 18 G.L. c.40A, c. 15 32 G.L. c.40A, §17 11, 12 O 13 G.L. c.41, §81P 5,28 29,30, 31 O iv 0 Sections of The Zoning Bylaw page of North Andover 4 Section 2.65 4,5 Section 4.133 3,4,5, 16,17, Section 10.31 276, 8, O 16,17, 18,23 O O O lO ' O iO O � O I STATEMENT OF THE ISSUES 1. Did the trial court properly find that O the North Andover Zoning Board of Appeals' denial of the special permit did not exceed the ZBA's authority and was reasonable in light both of statutory and Town Bylaw requirements and of. the ZBA's discretionary powers? IO 2 . Should the case be dismissed due to lack of subject matter jurisdiction because the ZBA lacked authority to grant a special permit in the Watershed District? i0 STATEMENT OF THE CASE PRIOR PROCEEDINGS IO On May 17, 1985, Douglas R. Mifflin and William S. MacLeod (hereinafter, "Mifflin and O MacLeod") applied for a special permit from the North Andover Zoning Board of Appeals (the "ZBA") . The ZBA denied the permit. Mifflin � O and MacLeod appealed the ZBA's denial of the I special permit in Superior Court, Essex (No. 85-2281) . This action was subsequently 10 transferred to the Land Court (Misc. Action No. 133740) . On September 6, 1988, Mifflin and MacLeod O filed an application with the ZBA to have the 1985 special permit decision reconsidered. O F o The ZBA denied the application for reconsideration. Mifflin and MacLeod appealed O the ZBA's denial of the application for reconsideration in Superior Court, Essex (No. 88-2929) . This action was subsequently O transferred to the Land Court (Misc. Action No. 133741) and the two appeals were consolidated. O On March 29, 1990, the ZBA filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6) or 12 (b) (1) for failure to state a O claim upon which relief can be granted and/or for lack of subject matter jurisdiction. The consolidated appeals were tried in O Land Court on April 6, 1990 and on August 31, 1990, ,the Court (Cauchon, J. ) upheld the ZBA's , denial of Mifflin and MacLeod's special permit O application, as well as its denial of reconsideration in October, 1988. The Land Court did not act on the ZBA's motion to O dismiss. Mifflin and MacLeod filed a notice of appeal on September 28, 1990. The ZBA i filed a notice of appeal on October 12, 1990. O 2 O 0 STATEMENT OF THE FACTS O Lake Cochichewick (the "Lake") is the . primary source of public drinking water in the Town of North Andover (the "Town") . (Dec. , no. i6 5 at 4 ; App. at 105; Transcript at 96 and I 110. ) At all times relevant hereto, the entire Lake and other areas have been Q protected by a Zoning Watershed District. (Dec. , no. 7, at 5; App. at 106) Section O 4 . 133 (1) of the Town Zoning Bylaw (the "Bylaw") establishes the purposes of the j Watershed District as follows: I The Watershed District surrounding Lake O Cochichewick, 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 O to protect the public health, safety and welfare. (Dec. , no. 7, at 5; App. at 106. ) In 1984, the State notified the Town that ' p the Lake wascontaminated and that all water from the Lake must be boiled before drinking. (Transcript, at 94. ) Concerned over the O quality of the drinking water and of the Lake, the Town took action at a Town Meeting held on April 28, 1985. (Dec. , no. 11 at 6; App. at O 107. ) The Town authorized planning studies 3 O 0 "in connection with the preservation of Lake Cochichewick and the public drinking water 4 supply of the Town" and imposed a moratorium on construction within the Watershed District for a period of three years. (Dec. , no. 11 at O 6-7; App. at 107-108. ) The Town also voted to approve five "Watershed District Preservation" articles, two of which amended Sections 2 . 65 � O and 4. 133 of the Zoning Bylaw pertaining to the Watershed District. (Dec. , no. 11 at 6-7; App. at 107-108. ) O Prior to the Town Meeting, Section 2 .65 designated the Planning Board as the Special O Permit Granting Authority of special permits in the Watershed District. (Dec. , no. 9 at 5; App. at 106. ) Also at that time, Section 4 . 133 (3) (d) read as follows: O 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 O by Special Permit. (Dec. , . no. 8 at 5; App. at 106. ) The parcel of land that is the subject of this controversy lies within 100 feet of a O tributary of the Lake. (Dec. , no. 6 at 4 ; App. at 105. ) After the Town Meeting, the authority to O 4 O 0 grant special permits . in the Watershed District was removed from the Planning Board O by amendment to Section 2.65. (Dec. , no. 11 at 7; App. at 108. ) Section 4.133 (3) (d) was amended by deleting the words "except by O Special Permit. " (Dec. , no. 11 at 7; App. at 108. ) In place of these words the following provision was inserted: � O 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, O including the right to cross such tributaries. (Dec. , no. 11 at 7; App. at 108. ) The effect of these Amendments was to require O a variance from the ZBA, rather than a special permit from the Planning Board, in order to perform construction in the Watershed O District. Mifflin and MacLeod own the property in question, known as 163 Salem Street (also ' O known alternatively as 175 Salem Street) . (Dec. , No. 15, at 8; App. at 109) . In November, 1984 , they received endorsement of a O plan under the provisions of G.L. c. 41, § 81P ("ANR Plan") whereby they created lots 1 and 2 on Salem Street. This controversy involves O lot 1. (Dec. , No.,2, at. 3-4 ; App. at 104-105) . .5 O i O On April 91 1985 i.e. before the Town Meeting) , Mifflin and MacLeod filed an fl application with the Town Planning Board for a special permit to allow construction of a house within 100 feet of a tributary of the 0 Lake. Mifflin and MacLeod did not pursue that permit and the Planning Board took no action O on it. (Dec. , No. 12, at 8; App. at 109) No appeal or court action of any kind was brought in relation to this application to the Planning Board. O On May 17, 1985 (i.e. , after the Town Meeting) , Mifflin and MacLeod applied for and, on July 2, 1985, were denied a special permit O P from the ZBA to allow construction of a house within 100 feet of a tributary of the Lake. (Dec. , Nos. 12, 13 , at 7-8; App. 108-109) . ' O The ZBA applied the special permit criteria of Section 10. 31 of the Bylaw and found that the ! provisions of Section 10.31 were not 0 satisfied. (Dec. , no. 13 at 8; App. at 109. ) At all times relevant hereto, Section 10. 31 provided that the special permit granting O authority may not approve a special permit application unless it finds, in its judgment, that all of the following conditions have been O 6 O 0 met: a) The specific site is an appropriate ' p location for such a use, structure, or condition; b) The use as developed will not adversely. affect the neighborhood; O 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, O 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 O intent of this By Law. (Dec. , no. 10 at 5-6; App. at 106-107. ) The ZBA voted unanimously to deny the special permit, stating, in part: p . . . 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 . p welfare. The Board also took note of the action of Town Meeting, prohibiting construction around the Lake and pending the study of the Lake. (Dec. , no. 13 at 8; App. at 109) . Mifflin and MacLeod , O od 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) . ' On September 6, 1988, Mifflin and MacLeod filed an application ' p with the ZBA to have the 1985 Special Permit 7 O 0 decision reconsidered. (Dec. , no. 16 at 9 ; App. at 110. ) The ZBA denied this application B on the grounds that the ZBA's rules allow for reconsideration only, upon application made 0 within 10 days of the decision for which reconsideration is being sought. (Dec. , no. 17 at 9; App. at 110) Mifflin, and MacLeod 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 Il� p No. 133741) and the two matters were consolidated for trial. (Dec. at 2; App. at 103 . ) O On August 31, 1990 the Land Court ruled in favor of the ZBA. The Land Court's findings included the following: O I find that the ZBA did not act unreasonably or exceed its authority in denying , [Mifflin and Mac ' Leod s special ] p 1 permit application. . . . The record before the Court indicates that the ZBA's O 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 O 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. " (Dec. , no. 18 at 10-11; O App. at 111-112. ) 8 O o ' The Land Court further found that, by their subsequent filings with the ZBA on May O 17, 1985, Mifflin and MacLeod had waived any right under the prior filing with the Planning Board on April 9, 1985. (Dec. , no. 18 at 11 O App. at 112. ) Further, the Court held that the ZBA's denial of Mifflin and MacLeod's 1988 i application for reconsideration did not exceed O the ZBA's authority. (Dec. , no.18 at 11; App. at 112 . ) " [E]ven if the ZBA had agreed to 0 reconsider [Mifflin and MacLeod's] special � permit application, it is likely that the petitioners therefor would be faced with variance standards, rather than those of a � O special permit, inasmuch as the zoning protection afforded them under G.L. c. 40A, §6 O had expired in November of 1987. " (Dec. , no. 18 at 11-12 ; App. at 112-113. ) SUMMARY OF ARGUMENT O The trial court's review, under GLM c. 40A, §17, was properly limited to an inquiry as to whether the ZBA exceeded its authority 10 in denying Mifflin and MacLeod's special permit application. (Brief, at 11, 12) . The Land Court correctly found that the ZBA's i' 0 9 O i 0 decision was consistent with the Town's interest in preserving its water supply and O that this decision was reasonable under the Town's Zoning Bylaw (Brief, at 12-19) . Under the caselaw governing the judicial review of O local special-permit decisions, the Land Court properly deferred to the ZBA's exercise of its discretion and did not substitute its own judgment for that of the ZBA (Brief, at 15- 22). . Two decisions of the ZBA granting ! o Watershed District special permits, introduced at trial by Mifflin and MacLeod, were fundamentally different because those projects were served by town sewer (Brief, at 23-24) . O This action should be dismissed for lack of subject matter jurisdiction because the. O North Andover ZBA, under the Town's Zoning Bylaw, has never had the authority to grant Watershed Protection District special permits (Brief, at 25-34) . O A O 10 O 0 ARGUMENT I. THE TRIAL COURT PROPERLY FOUND THAT THE ZBA'S DENIAL OF THE SPECIAL PERMIT DID NOT EXCEED THE ZBA'S AUTHORITY AND THAT THE DENIAL WAS REASONABLE IN LIGHT BOTH OF STATUTORY AND TOWN BYLAW REQUIREMENTS d AND OF THE ZBA'S DISCRETIONARY POWERS. A. The trial .court met the statutory_ requirements of GLM c. 40A 6 17 which limits judicial review of a denial of a special permit to a ' O determination of whether the ZBA exceeded its authority. GLM c. 40A, §17 sets out the provisions ' Q under the Zoning Act relating to judicial review of decisions of boards of appeals and of special permit granting authorities. The statute limits judicial review to determining whether boards or authorities have exceeded their authority. C. 40A, § 17 requires that a i tr p al court 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 0 determined, annul such decision if found to exceed the authority of such board or special permit granting authority . . . . Judicial review of a decision by a board 0 involves "a hearing de novo and a finding of the facts" which is "nothing more than the application of the law to the facts found and 'I0 is within the usual functions of a court. " 11 I 10 O Pendergast v. Board of Appeals of Barnstable, 4 331 Mass. 555, 558 (1954) . See also, Bicknell Realty Co. v. Board of Appeals of Boston, 330 Mass. 676, 679 (1953) . If the evidence offered at the de novo hearing supports facts O found by the trial court and those facts i support the trial court's decision,, then the decision must stand. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 150 (1976) . In the present case, the trial court IO performed its functions as required by GLM c. 40A, § 17 for a review of a decision of a board of appeals. The trial court heard all O of the evidence offered by both sides. The court determined the facts, including the finding that the ZBA had not exceed its authority in denying a special permit to O Mifflin and MacLeod. In accordance with GLM c. 40A, § 17, the trial court could not annul the ZBA's decision because the trial court did O not find that the ZBA had exceed its authority. B. The Trial Court found facts which O supported its ruling that the ZBA's special permit denial was reasonable. Under the standards of review pursuant to O i 12 I O GLM C. 40A, § 17, the court is . required to assess only whether the board acted within .its O authority in granting or denying the special permit, not the wisdom of the decision. Kiss, supra, 371 Mass. at 154 (and cases cited) . O The court must uphold a board's denial of a special permit as long as the "decision is neither based on a legally untenable ground, 10 nor is unreasonable, whimsical, capricious or arbitrary. " S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. O 477, 481 .(1980) , cert. denied, 449 U.S. 1011 (1980) . In Kemble Fischer, a case analogous to O the one at hand, the plaintiff sought judicial review of a denial by the board of appeals of a special permit p p t to fill land in a flood plain O zone. Id. at 478. The zoning bylaw prohibited land filling in the flood plain unless the board of appeals approved a special permit. O r Id. at 481. Board approval was based on whether the board was satisfied that the land was suitable for filling and not subject to C� flooding and that the use would not be detrimental to public health, safety or welfare. Id. The plaintiff did not establish O 13 , O i o � to the board's satisfaction that the land met the bylaw's requirements and the board denied O the special permit. Id. at 480-481. The trial court made findings of' fact concerning the O effects of the proposed filling and determined that the board of appeals had acted within its authority. Id. The Appeals Court determined that 1) the trial court's findings supported O the trial court's determination that the board had acted within its authority; and 2) that the board's decision did not suffer from any O of the "infirmities" requisite for disturbing a board's denial of a special permit (i.e. , based on a legally untenable ground or , O unreasonable, whimsical, capricious or arbitrary) . Id. The Appeals Court, therefore, affirmed the trial ' court's O determination that the board had acted within its authority. In the instant case the ZBA correctly y applied both state and local law in its denial of the special permit. The trial court, in turn, correctly upheld the ZBA's denial. With a regard to the review applied to a board's denial of a special permit, "if any reason on which the board can fairly be said to have O 14 0 0 relied has a basis in the trial judge's findings and is within the standards of the O zoning by-law and The Zoning Enabling Act', the board's action must be. sustained . . . . " S.Volpe & Co. Inc. v. Board of Appeals of O Wareham, 4 Mass. App. Ct. 357, 360 (1976) (emphasis supplied) (trial court upheld board of appeals' denial of special permit to build i0 golf course, where denial was based on the fact that such a use would require the filling of marshlands which would be "injurious" under 7 r I' O the bylaw) . The Zoning Act, GLM c. 40A, § 9 authorizes special permit granting authorities O to issue special permits "only for uses which are in harmony with the general purpose and intent of the [zoning] ordinance or by-law, 10 and (special permits] shall be subject to general or, specificrovisions p set forth therein . . . . " See generally Garvey V. Board O of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980) (rescript) (court upheld the granting of a special permit that was in harmony with the ' O purpose and intent of the local zoning bylaw) . In 1975, G.L.M. c. 40A, §§ 1-17 (the "Zoning Act") O replaced c. 40A, §§ 1-22 (the "Zoning Enabling Act") . i 15 O I O Pursuant to GLM c. 40A, § 9, the ZBA properly denied Mifflin and MacLeod's O application for a special permit. The ZBA decided that issuance of a special permit was not in harmony with the general purpose and O intent of the Town's Bylaw. Two provisions of the Bylaw, Sections 10.31 and 4.133, are particularly relevant. O Section 10.31 concerns the powers of the Town's special permit granting authority. Section 10. 31 prohibits the special permit O granting authority from granting such permit unless certain conditions are met, including the following: O 1. The specific site is an appropriate location for such a use, structure, or condition; 2 . Adequate and appropriate facilities O will be provided for the proper operation of the proposed use; and 3. The special permit granting authority shall not grant any special permit unless it makes a O specific finding that the use is in harmony with the general purpose and intent of the Bylaw. (Dec. , no. 10 at 5-6; App. at 106-107. ) Section 4. 133 (l) of the Bylaw defines the O purpose of the Watershed District and reads as II' follows: The Watershed District surrounding Lake O Cochichewick, our source of water supply, 16 0 I O 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. (Dec. , no.7 at 5;. App. at . 106. ) Mifflin and MacLeod's land is within 100 feet O of a tributary of Lake Cochichewick and, therefore, falls within the Watershed District as established by Section 4.133 of the Bylaw. O (Dec. , no. 3 at 4; App. at 105. ) Read in conjunction, it is obvious that the intent of Sections 10.31 and 4. 133 of the O Bylaw was to ensure that the special permit granting authority only granted special permits in the Watershed District once that O authority had determined that the proposed uses had facilities appropriate for the environmentally sensitive characteristics of O the Watershed District. Pursuant to Section 10.31, the ZBA properly denied the special permit for several reasons. il0 Most importantly, the ZBA found that Mifflin and MacLeod's proposed use did not satisfy the requirements of Section 10.31. O The site was not appropriate for a single- family dwelling because the site lacked town I sewer. The ZBA referenced Section 4. 133 (1) of O 17 i I 10 the Watershed District and found that granting the special permit would not protect the public health and welfare. Furthermore, the ZBA noted the Town Meeting prohibition of construction in the area surrounding Lake d Cochichewick as well as the pending study of the Lake. (Dec. , no. 13 , at 8; App. at 109. ) The ZBA, therefore remained well within its O authority under GLM c. 40A, § 9 and Section 10. 31 of the Bylaw, both of which prohibit the approval of special permits for uses that are O not "in harmony with the general purpose and intent" of the Bylaw. O After reviewing the ZBA's decision, the trial court found that the decision "was based primarily on the proposed project's lack of Town sewer. " (Dec. , no. 18 at 11; App. at O 112. ) The trial court further found that the decision "was reached in accordance with the Town's interest in preserving the purity of O Lake Cochichewick" and was "reasonable" in light of the requirements of Section 10.31 of the Bylaw. Applying the standard found in S. O — Volpe & Co. (whether a board's denial has a basis in the court's findings and is within IO the standards of the zoning bylaw and the ! 18 O 0 Zoning Act) , the trial court, therefore, ® correctly upheld the ZBA's decision. C. The trial court correctly deferred to the ZBA's proper exercise of its discretion. O I The trial court correctly left the decision whether to approve or deny a special ' O permit to the discretion of the ZBA. " [A] court reviewing a decision of the board denying a permit does not possess the same O discretionary power as does the board . . . . To i hold that a decision . . . denying a permit is arbitrary . . . whenever the board, on the facts ; O found by the trial judge, could have granted a permit, would eliminate the board's intended discretion. "' Subaru of New England, Inc. v. O Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979) (quoting Gulf Oil Corp v. Board of Appeals of Framingham, 355 Mass. 275, O 277-278 (1969) ) . Thus, if, in its review of the evidence, a court finds facts that support a board's denial, the court need go no further O in its factfinding. See Board of Appeals of Southampton v. Boyle, 4 Mass. App. Ct. 824, 824-825 (1976) . O It is well established that courts must 19 O 0 defer to the exercise of discretion by boards of appeals, where evidence supports the 8 boards' .concerns for environmental threats. Several cases are analogous to the one at hand, including Subaru and S. Volpe & Co O Inc. . In Subaru, there was sufficient evidence for the board of appeals to deny a special O permit for buildings which would adversely affect the preservation of the flood control characteristics within a flood plain district. O The court found that "reasonable persons could i differ as to the severity of danger . In 'such circumstances the board's decision was O not arbitrary and must prevail. " Subaru, 483. Mass. App. Ct. at 488. In S. Volpe & Co. , Inc. , the plaintiffs O proposed a for-profit golf course on land that included a salt marsh. Under the zoning bylaw, nonprofit recreational and residential O uses were permitted as of right on the land. For-profit golf courses required special permits which could only be granted if the use O was not "injurious, noxious or offensive. " S. Volae & Co. Inc. , 4 Mass. App. Ct. at 358. O The plaintiff argued that filling marshlands 20 ' 0 0 for their -golf course would be no more injurious than filling marshlands for a O nonprofit golf course and less injurious than for residential uses, both of which were permitted as of right. The Appeals Court O disagreed and stated that the town had indicated that housing and nonprofit recreation were more advantageous to the town I� p than they were injurious to it. Furthermore, " [t]he town did not make the same choice between marshland and a golf course operated O for profit but left it to the board to decide, pursuant to its special permit power, whether on balance a choice in favor of a commercial o _ golf course which would destroy marshland was `injurious' rather than advantageous to the neighborhood or the town. " Id. at 361. Based on the facts before the ZBA, the ZBA acted within its discretion in denying Mifflin and MacLeod's application for a Q special permit. The court may not substitute its judgment for that of the ZBA. Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. Q 856 (1980) (rescript) . The ZBA did not need to state its findings in detail to support its denial. Brockton Public Markets Inc. v. O 21 O O Board of Appeals of Sharon, 357 Mass. 783 (1970) . The grant of a special permit f O requires detailed . findings but "less is necessary when relief is refused." Gamache v. Acushnet, 14 Mass. App. Ct. 215, 220 (1982) . O Board of Appeals of Southampton, 4 Mass. App. Ct. at 825. The ZBA denied Mifflin and MacLeod's O special permit application primarily because their proposed use in the Watershed District lacked a hookup to Town sewer lines. (Dec. , O no. 18 at ll; App. at 112. ) Mifflin and MacLeod argue that the ZBA used an inappropriate "incremental effects" analysis O in reaching its decision. (Mifflin and MacLeod's Appellate. Brief, at 29) It was quite correct and proper, however, for the ZBA il0 to consider the future effects of the proposed use. See, Kinchla v. Board of Appeals of O Falmouth, 11 Mass. App. Ct. 927 (1981) ; Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148, 154-155 (1977) .- A board is not limited to examining present conditions and it may 10 consider the future development of the area surrounding a proposed use. Humble Oil & Refining Company p nv v. Board of Appeals of O c 22 i i0 l 0 Amherst, 360 Mass. 604 (1971) . At trial, Mifflin and MacLeod pointed out O that the ZBA had granted special permits to other applicants to build in the Watershed District. Those projects were fundamentally distinguishable because they included hookups to Town sewer lines, while Mifflin and MacLeod's proposed use did not. (Transcript at O 98-99; Transcript Exhibits 14, 15, at 118-125) Mifflin and MacLeod proposed instead to construct a septic system. Mifflin and O MacLeod argued that their proposal would pose = minimal danger to Lake Cochichewick, the Town's primary source of public drinking O water. (Plaintiffs' Proposed Findings, at 5- 10; App. at 81-86. ) The trial court, however, properly left the decision to the ultimate O discretion of the ZBA to weigh the relevant facts and to determine what constituted a threat to the Town's interests in protecting O its drinking water. See, Subaru of New England, Inc. , 8 Mass. App. Ct. at 487. That the ZBA decided that connections ' � to the Town's 10 sewer lines were adequate and appropriate facilities in the Watershed District, as required by Section 10. 31 of the Bylaw, and a 10 23 i O d septic system was not, is well within the purview of the ZBA's discretionary power. O Furthermore, in exercising its discretionary power, the ZBA was free to deny the special . perm.it even if the facts showed O that such a permit could have been granted. Gulf Oil, 355 Mass. at 277-278. Pioneer Home Sponsors. Inc. V. Board of Appeals of Q Northampton, 1 Mass. App. Ct. 830 (1973) . It is well established that the evidence presented to the court need not compel the O conclusion reached by the board to deny a special permit. It is sufficient that the evidence warrant such a conclusion and the O court may not substitute its judgment for that of the board's. Kinchla, 11 Mass. App. Ct. at 927 (citing Subaru of New England Inc. 8 O Mass. App. Ct. at 487-488) . Because the ZBA's denial of Mifflin and MacLeod's special permit constituted a O discretionary decision well within the bounds . of its authority, the trial court correctly O affirmed the ZBA's decision. Accordingly, the trial court's decision should be affirmed. � 0 24 � O O II. THE COURT SHOULD DISMISS MIFFLIN AND MACLEOD'S ACTION FOR LACK OF SUBJECT MATTER JURISDICTION. O A. The iurisdictiona1 question which was previously raised at trial should be decided. Parties may raise the question of subject IO matter jurisdiction at any point during the proceedings. Rule 12 (h) (3) of the Massachusetts Rules of Civil Procedure O provides that " [whenever it appears by suggestion of a party or otherwise that the O court lacks jurisdiction of the subject matter, the court shall dismiss the action. " The Supreme Judicial. Court has allowed a O motion to dismiss even when the issue of jurisdiction had not been raised until the case was heard at the appellate level. Litton O Business Systems Inc. V. Commissioner of Revenue, 383 Mass. 619 (1981) . 11 [A] jurisdictional issue must be decided, O regardless of the point at which it is first raised. " Litton Business Systems - Inc.-, at 622 • An action "cannot proceed if . i0 jurisdiction is lacking. " Id. See Flynn v. Contributory Retirement Appeal Board, 17 Mass. App. Ct. 6681 670 (1984) . In the present O case, the jurisdictional question was raised 25 O by motion to dismiss by the ZBA at the trial O court. The trial court, however, having decided in favor of the ZBA on the merits, did not rule on the ZBA's motion or the issues raised by ,the motion. 0 B. The ZBA never had jurisdiction to grant the Watershed District special I permit. O The chronology of the changes to the Bylaw, set out in the Statement of Facts, indicates that at no time did the ZBA have the jurisdiction or authority to grant a special 0 permit for construction in the Watershed District. Before the April, 1985 Town Meeting, the O requisite approval was a Planning Board special permit. After the April, 1985 Town Meeting, a ZBA 0 variance was required. At no time was it appropriate to seek relief via a special permit from the ZBA. BA. The fact that the ZBA accepted the I j application and acted on it is not sufficient to bestow jurisdiction. The intent of Article O 14 of the April, 1985 Town Meeting was clear and by its terms plainly called for a variance, to be granted. The record, by way ' 0 26 I 0 o of the explanation for Article 14, explicitly shows that a variance and "not a special O permit" was required. C. After the April 1985 Town Meeting Watershed District special permits no longer existed. 4 The zoning history also demonstrates that, after the April 27, 1985 Town Meeting vote, the Bylaw no longer provided for O Watershed District special permits. As amended, Section 4. 133 had no provision for the permit, nor was there any language iO elsewhere in the Bylaw establishing this permit. The application for the permit being contested in this action was filed with the IO ZBA after the. Town Meeting, on May 17, 1985 (Dec. , no. 12 at 7 ; App. at 108. ) I I I O D. IfMifflin and MacLeod's c.41 §81P Plan entitled them to anv application, it was for a Planning Board special permit. o Appellants may contend that the 1984 j endorsement of their plan under the provisions i of GLM c.41, §81P entitled them to a statutory "freeze" of certain zoning provisions. The Zoning Act, GLM c.40A, §6 states, in relevant part: O 27 O O When a plan referred to in section eighty one P of chapter forty-one has been submitted to a planning board and written O 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 suchla p n. . .and for Q a period of three years from the date of endorsement by the planning board. . . . Under this language, Mifflin and MacLeod would argue that 1) the April, 1985 zoning change O was one affecting use and, therefore, did not apply to them, 2) they could, therefore, apply for a special permit despite the April, 1985 O zoning amendments eliminating same, and 3) the special permit could be sought from the ZBA (rather than the Planning Board) because the � O Planning Board, as of the May 17, 1985 date when Appellants applied, no longer had the authority to grant special permits, but the O ZBA had jurisdiction to grant variances. There are two flaws in this argument. The first is that the zoning change was not A necessarily one affecting use. It has been well established that the protection provided by c.40A, §6 extends only to the uses Q permitted at the time of the application for the c.41, §81P plan. Land shown on §81P plans are subject to all other er zoning changes. es. � O 28 O 0 Bellows Farms Inc. V. Bui_g 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 O with a requirement for a variance. While the standard for a variance is more difficult to meet, the new, post-April, 1.985 zoning O_ language expressly made that option available. In Cape Ann Land Development Corp. v. Gloucester, 371 Mass. 19 (1976) , the plaintiff , O sought to construct a shopping center on a property which had the benefit of the protections of a §81P plan. At the time of ' O the plan's endorsement shopping centers were a permitted use. Subsequent zoning changes added a requirement that a special permit be O sought ,for all "major projects, " including the proposed shopping center. The court's holding was that the new special permit requirement O was applicable to the project, but that the special permit could not be denied on the grounds that the project included a shopping center. The court added that the statute protected that use and stated that the protection: O 29 O i i O may not be eroded by the denial of a special permit for that use when the reason for the denial is the proposed IO 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. O The Cape Ann holding is relevant here. i Applied to the present facts, the Cape Ann decision would require Mifflin and MacLeod to O apply for a variance and would prohibit the defendant ZBA from denying the activity on the basis of the proposed use, i.e. , residential. O In other words, the new zoning as voted at the April, 1985 Town Meeting applies to Mifflin and MacLeod. Accordingly, they should IO have applied for a variance. Even if one were to accept a theory of zoning protection, there would be another flaw IO in Mifflin and MacLeod's argument. This one is more basic. If, pursuant to GLM c.40A, §6, they had O the benefit of certain rights under the frozen zoning, they were entitled to the zoning provisions which applied when they received O their §81P endorsement in 1984. These I provisions called for the grant of a special permit from the _Planning Board. O 30 O I O The language relating to §81P plans in the Zoning Act, GLM c.40A, §6, states that O "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 4 submission of such plan. . . ." (emphasis added) . The "applicable provisions" of the zoning bylaw at the time of. submission of the §81P O plan called for a special permit application to be made to the Planning Board. Appellants may argue that the April, 1985 ' O Town Meeting vote shifted jurisdiction for Watershed District matters to the ZBA. This is correct. However, that same vote also O changed the necessary approval to a variance. i Appellants cannot create their own hybrid bylaw to suit their circumstances. O Appellants may also argue that they sought their permit from the ZBA per guidance i received from Town officials. A related O argument might be that the ZBA, having i accepted and acted on the special permit application, may not now claim a lack of i0 jurisdiction. Both of these arguments, in the nature of estoppel, cannot succeed. In Building Inspector of Lancaster v. O 31 0 0 Sanderson, 372 Mass. 157 (1977) , the court referred to "our frequent and consistent O holdings that a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance. " O Id. at 162. In another case, the court said, "The right of the public to have the zoning by-law properly enforced cannot be forfeited . O by the actions of its officers." Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 675 (1968) . O In Racette v. ZBA of Gardner, 27 Mass. App. Ct. 611 (1989) , the plaintiff claimed that he was entitled to a constructive grant 4 of a variance because the statutory time period had elapsed, beginning from the date of his filing with the city's Building Inspector. O However, the ZBA's denial of the variance had been timely when measured from the date that the Building Inspector filed the application O with the City Clerk. The Zoning Act, GLM c.40A, §15, stated that a variance would be constructively granted when the ZBA failed to ' O act within 75 days of filing with the municipal clerk. The plaintiff argued that the clock should run from his filing with the ! O 32 O Building Inspector because the City Clerk had refused to take the application and had told him to file with the Building Inspector. Id. at 618 The court said the plaintiff had the right to insist that the clerk accept the application Id. at 620. The court found that the statutory provisions regarding filing and constructive grants were "explicit. " The i court ruled, "Neither the city nor the petitioner may vary the statutory filing I' O requirement. " Id. at 619. Similarly in the present actions, Mifflin and MacLeod may not vary the procedural 4 requirements of the Zoning Bylaw. At the time of Appellants' application on May 17, 1985, for a special permit, the North Andover Zoning Bylaw did not allow special p permits in the Watershed District. Alternatively, if Mifflin and MacLeod argue that the earlier, 1984 O zoning was applicable, then the special permit should have been filed with the Town's i Planning Board. A Under either argument, the ZBA never had the authority or jurisdiction to issue a Watershed District special permit. O 33 O Q Accordingly, because the ZBA never had jurisdiction in. this matter, the court lacks jurisdiction over the subject matter and should, therefore, dismiss this action pursuant to Mass. R. Civ, P. 12 (h) (3) . 0 CONCLUSION For the foregoing reasons, the North Andover ZoningBoard of Appeals pp requests that this court affirm the decision of the Land Court upholding the Zoning Board of Appeals' denial of Mifflin and MacLeod's application for a special permit. Alternatively, because the Zoning Board of Appeals never had jurisdiction in this matter and, therefore, this court also ,lacks jurisdiction over the subject matter, the Zoning Board of Appeals requests this that court dismiss this action. pursuant to Mass. R. Civ. P. 12 (h) (3) . I Respectfully submitted, O By their attorney, NORTH ANDOVER ZONING BOARD OF APPEALS Joel'B. Bard (BBO#029140) Kopelman and Paige, P.C. Town Counsel 101 Arch Street Boston, MA 02110 (617) 951-0007 34 I � Board of Appeals i �,3/385 . Asa � 6 "t . 0Town Office Building '�•North Andover, Mass. 01845 ;`HETTO O ( _.. or KNO bc ""lf�d the to I of tills 1Vot A"ILT" Tow" je 0 t.firde Of the ZC�Hg 6 oe TIP vwqq TOWN OF NORTH ANDOVER a w- MASSACHUSETTS 0 ®� aa�,e oe����ee CAI BOARD OF APPEALS Vie NOTICE OF DECISION Douglas R. MacMiff Date . . . . . .October . . . William S. MacLeod . . . . . . . . . 1 East River Place Methuen, MA 01844 Petition No.. 8 9.2.1.- . . . . . . . . . ... . . . . Date of Hearing. .Qrr t0�2�K •11, • 1988. . Petition of Ri.jjj4m. 5... MacLeod. . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . Premises affected . . . .163.Sad= .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a VMMK reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. . . . . . . . . . .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . so as to permit . construction of .a. single .family. Awelling with. related. gx.ading. . . . . Vithin. .100 .ft.. of, a .wetland -which. -is a tributary. to. lake. Cochichewick . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to . -DENY. . . . . the REQUEST FOR RECONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . f x Sign d e�,d William Sulliva .Acting Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . K . . . . . . . . . . . . . . . .AvgP5.t.ine .Nick.e.rson, . ClArk . . . . . . . . WalteT. . . . .Soule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Raymond .viven2. o . . . . . . . . . . . . . . . . Anna. .0.'.Connor. . . . . . . . . Board of Appeals 3 c 5 91 Date.v.... NORTH 1`•'-:660 TOWN OF NORTH ANDOVER = p PERMIT FOR WIRING Ac US }' This certifies that .......`................. c:. .:{ :r ................................ has permission torform :��?�.:::�2.....,...-�`.r-c.::.... �................... wiring in the building of...1� :� :�-' 1-:�:--�-A::�� �t< at!�. ...... '. :fes• .. c — .f:. .................... .North Andover,Mass. Fee"=r. ... ...... Lic.No / f. !A.... .w.......................... ELECTR[CAL INSPECTOR Check # // /. OfficialUseOnl ,Permit No. Occupancy&Fee Checked X70 BOARD OF FIRE PREVENTION REGULATIONS 527 CMR 12:00 APPLICATION FOR PERMIT TO PERFORM ELECTRICAL WORK All work to be performed in accordance with the Massachusetts Electrical Code 527 CMR 2:00 (Please Print in ink or type all information) Date Ooh To the Ins ctor of Wires: Town of North Andover I The undersigned applies for a permit to perform theelectricalwork described below. Location(Street&Number Owner or Tenant ��DD�//c�/L✓ Loy�7'1/ ���C Owner's Address D Is this permit in conjunction with a building permit Yes 2 No ❑ (Check Appropriate Box) � Purpose of Building � Utility Authorization Existing Service Amps Voits Overhead ❑ Undgmd ❑ No.of Meters j New Service 147d Amps o'�a0__ Voits / Overhead 8-' Undgmd ❑ No.of Meters { Number of Feeders and Ampacity / eA'>7.� Location and Nature of Proposed Electrical Work 1: Total No.of Lighting Outlets No.of Hot fuse No.of Transformers KVA Above ❑ In ❑ No.of Lighting Fixtures Swimming Pool grnd ❑ grnd ❑ Generators KVA J No.of Emergency Lighting No.of Receptacles Outlets No.of Oil Burners Battery Units No.of Switch Outlets No of Gas Burners FIRE ALARMS No.of Zone Total No. Detection and � No.of Ranges No of Air Cond Tons Initiating Devices Heat Total Total No.of Di osal No. Pumps Tons KW No.of Sounding Devices y ND./of Self Contained No.of DishwashersSpace/Area Heating KW Detection/Sounding Devices ❑ Municipal ❑ Other No.of Dryers Heating Devices KW Local Connection No.of No.of Low Voltage No.of Water Heaters KW I Signs Bailases Wiring � I No..Hydro Massage Tuds No.of Motors Total HP OTHER' INSURANCE COVERAGE. Pursuant to the requiremen6ts of Massachusetts General Laws I have a current Liability Insurance Policy including Completed Operations Coverage or its substantial equivalent YES= NO = have submitted valid proof of same to the Office YES= NO = If yo ,have checked YES piase md• to the type of coverage by checking the appropriate box INSURANCE = BOND = OTHER = (Please Specify) /�•L /d;(cam'/n 7_ . � (Expiration Date) Estimated Value of EI ri 1 Work$ �0D �� Work to Start Inspection Date Resquested L�A Rough Final Signed under th en ies of perjury: FIRM NAME LIC.NO. Ltensee �/ Signature LIC.NO. Q , 0,4/ Bus.Tel No. Address O �/ / /D1P s. /c°c�/���fl�1j1 � Alt Tel.No. OWNER'S INSURANCE WAIVER: I am aware that the Licenses does not have the insurance coverage or its substantia equivalent as required by Massachusetts General Laws.And that my signature on this permit application waives this requirement Owner Agent (Please Check one) a"� I Telephone No. PERMIT*EE b�U (Signature of Owner or Agent) I j: R NORTH s O F UcmUs TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Date: Dear Applicant: Enclosed is a copy of the legal notice for your application before the Board of Appeals . Kindly submit $ /. 040 for the following: Filing Fee $ Postage $ � !� 1� Your check must be made payable to the Town of North Andover and may be sent to my attention at the Town Office Building, 120 Main Street , North Andover , Mass . 01845. Sincerely, BOARD OF APPEALS f� Audrey W. Taylor, Clerk I