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Home My WebLink AboutMiscellaneous - 30 SETTLERS RIDGE ROAD 4/30/2018 (2)9,- t `6D , u TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a-ptlic hearing at the Stevens Memorial Library located at 345 Main Street, North Andover, MA on Tuesday the 9th day of September 1997 at- 7:30 o'clock P.M. to all parties interested in the appeal of Tara Leigh Development Corp. 185 Hickory Hill Rd., North Andover, MA. requesting a Variance from the requirements of Section 4.2, Paragraph 1, from,, the Phase Development Bylaw and as a party aggreived. Said premises are a lot 5, and 11, located at Settlers Ridge Road, North Andover, R-2 Zoning District. By the order of the Board of Appeals William J. Sullivan, Chairman Published in E.T. Aug. 26 & Sept. 2nd. LEGAL NOTICE TOWN OF NORTH ANDOVER BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Stevens Memorial Library located at 345 Main Street, North Andover, MA on Tuesday the 9th day of September ' 1997 at 7:30 o'clock P.M. to all parties interested in the appeal of Tara Leigh Development Corp. 185 Hickory Hill Rd., North Andover, MA. Requesting a Variance from the requirements of Section 4.2, Paragraph 1, from the Phase Development Bylaw and as a party aggreived. Said premises are a lot 5, and 11, located at Set - Piers Ridge Road, North Andover, R-2 Zoning Dis- trict. By the order of the Board of Appeals William J. Sullivan, Chairman E -T — Aug. 26, $ept.2, 1997 4 _ a NORTH p A r 3,11,00 p ♦ 1 • o ;10� �, • SSA HUSI TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Stevens Memorial Library located at 345 Main Street, North Andover, MA on Tuesday the 9th day of September 1997 at 7:30 o'clock P:M. to all parties interested in the appeal of Tara Leigh Development Corp. 185 Hickory Hill Rd., North Andover, MA. requesting a Variance from the requirements of Section 4.2, Paragraph 1, from, the Phase Development Bylaw and as a party aggreived. Said premises are a lot 5, and 11, located at Se,tttlers Ridge Road, North Andover, R-2 Zoning District. By the order of the Board of Appeals William J. Sullivan, Chairman Published in E.T. Aug. 26 & Sept. 2nd. TOWN OF NORTH ANDOVER BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Stevens Memorial Library located, at 345 Main Street, North Andover, MA on Tuesday the 8th day of September 1997 at 7:30 o'clock P.M. to all parties interested In the appeal of Tara Development Corg. 1 5 Hickory Hill Rd., ' North Andover, MA. Requuq�pp a Variance from"1hp requirements of Seption 4.2, Paragraph 1, from the'l Phase Development Bylaw and as a papty . aggreived. Said premises are a lot 5, and 11, located at Set- fiers Ridge Road, North Andover, R-2 Zoning Dis- trict. By the order of the Board of Appeals William J. Sullivan, Chairman E -T — Aug. 26, $ep1.2, 1997 4 Any appeal shall be filed within 1201 days after the date of filing Of this Notice in the Office of the Town Clerk, 61 r'or-' RECE" E' ° A JOYCE BRADS NAW i TOWN CLERK \� ; ....._,. NORTH ANDOVER OCT 16 2 21 AM '97 TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION Property: 75 & 30 Settlers Ridge Rd., Lot 5 and 11 NAME: Tara Leigh Development Corp. DATE: 10/15/97 ADDRESS: 75 & 30 Settlers Ride PETITION: 027-97 North Andover, MA 01845 HEARING: 10/14/97 The'Board of appeals held a regular meeting on Tuesday evening, October 14, 1997 upon the application of Tara Leigh Development Corp., (Thomas Zahoruiko), requesting a Variance from the requirements of Section 4.2, paragraph 1, from the Phase Development Bylaw as a party aggrieved. Said premises are lots 5 and 11, which is in the R-2 Zoning District. The following members were present; William Sullivan, Raymond Vivenzio, Robert Ford, John Pallone. The hearing was advertised in the Lawrence Tribune on 8/26/97 and 9/2/97, and all abutters were notified by regular mail. The party aggrieved section of this petition is as follows: Robert Ford made a motion to sustain the decision of the Building Commissioner with respect to 4.2 and 8.7 to Tara Leigh Development Corp. as its 2 provisions currently exist in the by-laws Raymond Vivenzio seconded the motion. Voting was unanimous, William J. Sullivan, Raymond Vivenzio, Robert Ford, John Pallone. Upon a motion made by Raymond Vivenzio, and seconded by John Pallone, the Board of Appeals unanimously voted to GRANT the petition for a Variance from the terms of section 4.2 of the North Andover Zoning By-law as it applies to the requirement to schedule building permits using the "anniversary date". As such the petitioner shall be entitled to a development schedule that will be controlled by section 8.7 of the North Andover Zoning By-law. This variance shall in no way exempt the petitioner from any other sections of section 8.7 of the North Andover Zoning By -Law. The petitioner is caused undue hardship by the application of both of the sections of the Zoning By-law 4.2 and 8.7. Such hardship is directly related to the soils and slope of the land as the petitioner is required to maintain the sloping site with wetlands over a longer period of time than originally planned by the petitioner. The Board further finds that the petitioners case is unique. This is the first case under which both by-laws are required to apply. Voting in favor: William J. Sullivan, Raymond Vivenzio, Robert Ford, John Pallone. Note: The granting of the Variance and/or Special Permit as requested by the applicant does not necessarily ensure the granting of a Building Permit as the applicant must abide by all applicable local, state and federal building codes and regulations, prior to the issuance of a building permit as requested by the Building Commission. BOARD OF gPPgAL4, /decision William J. S�llivan, Chairman v i `/ C Motion for Variance: The Zoning Board of Appeals finds the following: The petitioner is caused undue hardship by the application of both of the sections of the Zoning By-law 4.2 and 8.7. Such hardship is directly related to the soils and slope of the land as the petitioner is required to maintain the sloping site with wetlands over a longer period of time than originally planned by the petitioner. The Board further finds that the petitioners case is unique. This is the first case under which both by-laws are required to apply. Therefore the Board moves to: Grant the petition for a Variance from the terms of section 4.2 of the North Andover Zoning By-law as it applies to the requirement to schedule building permits using the "anniversary date".' As such the petitioner shall be entitled to a development schedule that will be controlled by section 8.7 of the North Andover Zoning By-law. This variance shall in no way exempt the petitioner from any other sections of section 8.7 of the North Andover Zoning By-law. r 09/22/97 MON 16:3 F.�Y 61' 8s; 1735 k1 K()NL'LiLAN AND P21IGE LCONAR0CAN 003-- P. PAIO KOPELMAN AND PAiaz, P. C;. ELI2ABETF( A. LANE NORTHAMPTON 07 r7cr JOYCE s•RANK ATTORNEYS AT LAW JOHN W. 421gRGIO Phone # VAR13ARA J. 7A/NT ANDRQ at 9T. JANEG AVENUE JOEL B. BARO (GOB) 762.0201 EVERETT J. MARDCR PATRICK J. COSTELLO OOSTON, MA85ACHU5ETT8 02116.4tO2 JOS91'" L. TEHAN, jot. ANNE -NAR -r, M. HYLAND BOSTON OIIICG Y-QQEQA H. OOWO- (017) 666.000-Y PAX 10171 634.1723 IMIL6744 HEW111 7671 031E q.a3 naees� aZ/ DEBORA77 A. E LIA90N NORTHAMPTON 07 r7cr —ANNE S. MCKNIGRT (412) EBB -9632 JUOIrN c cuTLER Phone # AIC14ARO BOWe'N WOKC —WlW CR OFFICE (GOB) 762.0201 September 22, 1997 CSIMILL - (978L688 -95i6 i6 Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Tara Leigh Development Corp., Thomas Zahoruiko ZBA Petition U27-97 42tf)Pr' c Tt idi Dear Members of the Zoning Board of Appeals: � NORTH _. NDOvgR li3J 002 KATHLEEN M. O-DONNELL OAVlO J. 0,0MRSK7 SANDRA CNARTON I LANA M. CkUlgk JOHN RICHARO I—cKGAM. JR. GYiAN M. CALLANAN BRIAN W. RILXV 36"% J. KCHNLy. JR, R06ERT PAYTCN MARY L. W4gR610 KATHLEEN E. CONNOLLY MICWCLC Q. RANOAZYA PETER J. rcucR4ACH MARY JO WARMS THOMAS W. McRNANEV JONATHAN M. SILVERSTCIN TIMOTH♦ J. CWV,M KATNAR,NC I. ag3R& ' CNKIiTOPHER J. POLLART You have requested an opinion as the appropriate action to take with respect to two sections of -he Town's Zoning Bylaw: Section 4-2, Phased Development; and Section 8.7, Growth Management I understand that Tara Leigh Development Cofp. has filed a petition seeking relief from the requirements of Section 4.2.1, the section of the Phased Development Bylaw which establishes a schedule preventing subdivisions containing seven or more units from being built out in one year. The project at issue is the Settler's Ridge subdivision. This question has arisen because the Building Inspector has interpreted the Town's Zoning Bylaws to state that the Settler's Ridge subdivision is subject to two different sets of development limitations, i.e., the subdivision development schedule found in §4.2.1 and the Town -wide building permit limit contained in section 8.7, the C}rowth Managerneat Bylaw. The Board of Selectmen. by letter dated September 9, 1997, has informed the Zoning Board of Appeals that, ass sponsor of the Growth Management Bylaw, the Selectmen had never intended to have a subdivision be subject to both bylaws. The Selectmen had anticipated that older subdivisions, whist, would be grandfathered and protected from the limitations of the Growth Management, would be regulated by the codsting Phased Development Bylaw and that new subdivisions would be regulated by the Growth Management Bylaw: but not Phased Development. I understand that the Board of .Selectmen is prepared to sponsor an amendment to change the Zoning Bylaw to make this intention clear. PRINTED ON RECTCLr.0 PAPER Pod4t' Fax Note 7671 031E q.a3 naees� aZ/ To From Co.100PL Co. Phone it Phone # Fax o Fax 9 V M 6:44 TX/RX X0.5732 P.002 E 09;22/97 ,MON 16:43 FA.1 617 633 1735 1 ROPEL1LAN .AND PALE NOWIN ANDOZTR 0003 I KOPELMAN AND PAIGE, P.C. Zoning Board of Appeals North Andover '1 own Hall September 22, 1997 Page 2 Given the above circumstances; it is my opinion that it would be appropriate for the Zoning Board to grant a variance froin'the provisions of §4.2.1. As you know, the legal standards for a variance, found in G.L. c.40A, § 10, are very difficult to satisfy. Thesc circumstances. affccting Settler's Ridge may not technically meet the variance standards, but it is my opinion that the Board could grant a variance here, if the Board deemed it appropriate. Y would anticipate that the Board would be concerned about the precedent that would be set by granting such a variance. The issue of precedent should be addressed, however, by Town Meeting if and when the issue of the overlap of the two bylaws appears on a vmrrant. At that time, Town Meeting will either decide to eliminate the application of both bylaws to a subdivision, in which case this issue will not arise again, or Town Meeting will decide to keep both provisions as they are now, in which case the Zoning Board could conclude that it would not be appropriate to grant future variances in circumstances such as this one. Do not hesitate to contact me if you have further questions in this regard_ JBB/das cc: Board of Selectmen By Facsimile - (978) 688-9556 333&VNWdi9999 V M 09/22/97 16:44 TX/RX N0.5732 P.003 ■ , • �.1 0 � s,� .. NORTH Town of North Andover�ooL OFFICE OF COMMUNITY DEVELOPMENT AND SER CES , 30 School Street ,, .••'` cy North Andover, Massachusetts 01845 'Ss�c►+U WILLIAM J. SCOTT Director i r? October 9, 1997 OCT 1 31997 r Mr. William Sullivan ;- Chairman, Zoning Board of Appeals Town of North Andover Town Hall 120 Main Street North Andover, Massachusetts 0845 Dear Mr. Sullivan: This letter is in reference to the Tara Leigh Variance and Appeal before the Z9onin Board. The applicant is requesting either a waiver from Section 4.2 or the Board to overturn the Building Commissioner's decision n to deny building permits for lots in the subdivision known as Settlers Ridge. indicated in my prior correspondence and that of Town Counsel,o the 4.2 by- law Aggrieved Party law does apply. Therefore, voting on the Agg Building Commissioner's decision would not be valid. Ywould relate remains the tests B 9 ermit to how an administrative interpretation to deny a p for a variance. the by-law requires that for the grant of a variance,the Zoning tions slope, or must First Y find that "owning to circumstances relating to soil conditions, land or topography of the land or structures and especially affecting ee attached plan) with structures...." The Settlers Ridge site is aplan). Therefore, it is established that wetland resource areas (shaded areasoils. However, how do the site can meet the tests of slope, topography and soy- b law? these issues relate to a request for a variance from 4.2 the phasing ctor in the The relationship of the slope, wetlands and the phased by=law is a fa phasing of the development using the: requirements of 4.2 will decision. The phasg create undue hardship by requiring a stabilization of the site for a longer period q of time. With an understanding that the 8.7 by-law applies the applicant would be the proceeded to construct all of the infrastructure. hlizatione next softhe site. As a result construction of the homes and then complete stab CONSERVATION - (978) 688 9530 • HEALTH - (978) 688-9540 • PLANNING - (978 ) 688-9535 - .. *R�T�[.nrNr�FFIrF.:_ro7g� 6RR-95at � *7-,�t�1N!;.P,QApn nF ;��4�.!.R3�o<gt ft .*1.4F �4.IAI Ct:AF.F_.T .. , .• - l J J Mr. William Sullivan October 9, 1997 Page 2 of the inability to construct the homes, due to the need to comply.with 4.2, the developer is unable to close the site and must continue to stabilize the slope and wetlands until closure. While the above circumstance is common in development, the situation is unique. The developer intended to follow the 8.7 by-law which allows permits in each fiscal year. At the time of the by-law amendment in May of 1996 the intention of the by-law change from 4.2 to 8.7 was to have 8.7 control for new developments. Therefore, the developer proceeded with a construction that would not have presented a hardship had the 8.7 by-law ruled. However, with 4.2 the stabilization becomes a greater impact and therefore a hardship relating to soils, slopes and topography. Your next concern is the impacts of this decision on other developments and the possibility of a precedent. As you are aware, the Board of Selectmen intend to amend the by-law to address this issue. The amendment will occur in May of 1998. As it stands only one approved development, Old Center Lane, was filed after the May 1996 deadline. The development is only two lots and would not require phasing under either by-law. Any other development currently under review would receive their second phase of permits after July 1, the fiscal year, and therefore any conflicts in the by-law would be resolved prior to any conflicts at the May 1998 Town meeting. Therefore, the Settlers Ridge case would not create a precedent because the by-law would be resolved in May creating a different by-law and circumstances. I hope this answers all of your questions. Builder Suing To Overtiffn Construction Bylaws A builder in North Andover is seeking to overturn that town's growth management and development bylaws and recover dam- ages for the loss of more than $1 million in sales. Thomas D. Zahoruiko, owner of Tbxa Leigh Development Corp. of North Andover, filed suit last week in Boston land court after learning he would be denied five building permits. Zahoruiko had previously been given permission to begin an 11 - home subdivision, and had bought the land and constructed the street — Settlers' Ridge Road — and utilities. Last year, voters at a town meeting in North Andover approved an annual cap of 80 building permits and placed addi- tional restrictions on individual projects. A 1986 bylaw further restricts home construction. Zahoruiko's attorney Michael P McCarron charged that the North Andover bylaws represent an unconstitutional taking of property, and claimed that the town's multiple zoning bylaws contain conflicting time periods. "The growth management bylaw limits building permits to six during the town's year, which runs from July to June while the older phased development bylaw uses the calendar year," said McCarron. The Tew�;kbury-basO trade organization North East Buildey-s Association of Massachusetts, of which Zahoruiko is a member, has agreed to help defray the builder's legal costs. Unputeu-mumu DIU MST COURT HAS RULED The Department of Public Utilities $1.3 million electric bill, authorized Cambridge Electric to bill MIT !ustomer and the power for $1.3 million for the useless equipment ling victory, and costs of contracts with power compa- i expected to affect the nies, but MIT claimea itwas not responsi- ,er stranded costs from ble for the company's investment. the Supreme Judicial MIT also argued that the department's ordered the state decision went against a national blic Utilities to reexam- policy that encouraged the construction of co - the dispute between the generation power plants, which burn Aute of Technology and garbage to produce electricity. �ctric Light Co. MIT spokesman Ken Campbell said the e, Mass., school had school has been paying about $3,500 a day ift to cancel an annual to Cambridge Electric. )m the power company, In a 32 -page ruling, the high court iy said represented its ordered the department to provide a list of pment and power sup- reasons for accepting the power compa- university. The invest- ny's estimate of stranded costs and docu- A in late 1995, when ment what steps the company took to n $50 Million electrici- defray its costs, given advance notice from it on campus to cut MIT that it was starting its own power plant. (AP) 0 V� 14 �Kl i Of 7 ;? llopo� w I o REC A + • JOYCE BRADrHAW 40; * : TOWN CLERK + ° • ,' + NORTH. ANDOVER ' 1 .4c usE�� OCT 16 .2 21 AM 17 TOWN OF NORTH ANDOVER Any appeal shall be filed MAssACHusETTs within (20) days after the date of filing of this Notice in the Office of the Town BOARD OF APPEALS � TTESI%, rue Copy 'Clerk,,•q� Tr,:„ is to certify that twenh,! (2r c 's7bwn Clerk elapsed from date; of decision'=::; j NOTICE 'OE'DECISION trithout filing of an appeal Date�LE+ Joyce A.Bradshatu —property: 75 & 30 Settlers Ridge Rd., Lot 5 and 11 Town C:ork NAME: Tara Leigh Development Corp. DATE: 10/15/97 ADDRESS: 75 & 30 Settlers Ridge PETITION: 027-97 North Andover, MA 01845 HEARING: 10/14/97 C The Board of appeals held a regular meeting on Tuesday evening, Octobei 14, 1997 upon the application of Tara Leigh Development Corp., (Thomas Zahoruiko), requesting a Variance from the requirements of Section 4.2, paragraph 1, from the Phase Development Bylaw as a,party aggrieved. Said premises are lots 5 and 11, which is in the R-2 Zoning District. The following members were present; William Sullivan, Raymond Vivenzio, Robert Ford, John Pallone. The hearing was advertised in the Lawrence Tribune on 8/26/97 and 9/2/97, and all abutters were notified by regular mail.. The party aggrieved section of'this petition is as follows: Robert Ford made a motion to sustain the decision of the Building Commissioner with respect to 4.2 and 8.7 to Tara Leigh Development Corp. as its 2 provisions;currently exist in the�by-laws Raymond Vivenzio seconded the -motion. Voting was unanimous, William J. Sullivan, Raymond Vivenzio, Robert Ford, John Pallone. Upon a motion made by, Raymond Vivenzio, and seconded by John Pallone, the Board of Appeals NOV unanimously voted to GRANT the petition for a Variance from the terms of section 4.2 of the North Andover Zoning By-law as it applies to the requirement to schedule building permits using the 'anniversary date'. As such the petitioner shall be entitled to a development schedule that will be controlled by section 8.7 of the North Andover Zoning By-law: This variance shall in no way exempt.the petitioner from any other sections of section 8.7 of the North Andover Zoning By -Law. The petitioner is caused undue hardship by the application of both of the sections of the Zoning By-law 4.2 and 8.7. Such hardship is directly related to the soils and slope of the land as the petitioner is required to maintain the sloping site with wetlands over a longer period of time than originally planned by the petitioner., The Board further finds that the petitioners case is unique. This is the first case under which both by-laws are required to apply. Voting in favor: William J. Sullivan, Raymond Vivenzio, Robert Ford, John Pallone. Note: The granting of the -Variance and/or Special Permit as requested by the applicant does"not necessarily ensure the gr-anting of a Building Permit as the applicant must abide,by all applicable local, state and federal buildingnodes and regulations, prior to the issuance of a; building permit as requested by the Building Commission. BOARD OFPP L , /decision William J. S Ilivan, Chairman r$s Ntcls, ', }I i l I f;�- J7 n11 0:3S ��..'.',��`�45'?4+r•. t ayry'�>rA,n��I.��(i.. '�'• ^{}7Krx'zFx9r-•:'.!_. wh `.-,tf'7 q�Tt+a�y,;nr Z. ,.-. Sl"• • .r tI' J t i ESSEX NORTH. C� REG! iRY b !Ms LAWRENCE, MASS. " A TRUE COPY: ATTEST: REGISTER OF DEED Post-rIt ^'M brand fax transmittal memo 7I # of pages Tl CJ�� From Co. o� co. . Dept. ,ax # �e Cin lCl f/ Phone Y ./Q #- �--,-- �- Fax# XO �SSC� M -E -M -O -R -A -N -D -U -M TO: Attorney Joel Bard o C� Kopeland & Paige d? FROM: Mary Leary-Ippolito for: William J. Sullivan Zoning Board of Appeals Town of North Andover, MA 01845 DATE: October 7, 1997 Attached is an application for Tara Leigh Development Corp. (per your request). Please fax us your reply as soon as possible, my fax number is"508-688-9556. Thank you. I JOYPER Lo yr CE', Received by Town Clerk: TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS i. APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant i Address #1_c�& 1V/..� 1V r Tel. No. - - S' 1. Application is hereby made- a) For a variance from the requirements of Section 2- Paragraph- paragraph• / _ and _Table of the Zoning Bylaws. b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2.- a) Premises affected are land �� and build in (s) numbered Loo' S 7S' Lal' I) (1t3�� SPiti2a JZ deStrec* , b) Premises affected are property with frontage on the North (,j() So th �k) East ( )-West ( ) side of s la r-ee-`-. _ Street, and known -as No. 7X d- 0 rpecx C) Premises affected are in Zoning District 2 and the premises affected have an area of square feet and frontage -of feet. Lor 5 Z71ovs', L.&,7- I l 13p :�1a i hoT I I 3o ,q2 5 of:8 : Rev. 06.03.96 = I agree to pay the f'� ing f e, advertising in newspaper, and incidental expenses* ZJA 3 Ownership; I i . 'a) Name and-address of owner (if joint ownership,- give all names) : l Date of Purchase Previous Owner i r 'If applicant is not owner, check his/her interest in the premises: Prospective Purchaser' Lessee Other 2. Letter of authorization for Variance/Special Permit _ required. _ 4. Size of proposed building: Liz -front; 40 feet deep; Height Z_ stories; Z- feet. a) Approximate date of erection:- To at- Qui LT b ) Occupancy or use of each floor:' S F R C) Type of construction: V)DoD FRAM ; 5.-. Has there been a previous appeal, under zoning, on,these premises? MQ If so, when? - 6. Description of relief sought on this petition y -�rrh+� Sec• L1.2 a-� -0QW6: R9,PrW1 .7. Deed recorded in the Registry of Deeds in 4eeierlus .Page µ(:.M) The principal pointsk.1upon which I base my application are as follows: (must be stated in detail) I agree to pay the f'� ing f e, advertising in newspaper, and incidental expenses* ZJA _ I - i DESCRIPTION OF VARIANCE..REQUESTED ZONING DISTRICT: :R`.2—. Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension Area Street Frontage Front Setback Side Setback(s) Rear Setback Special Permit Request: Rp�riC.� S �•Z pKS .D�U$�0 �Mell�fi g�'1.f�UU so o t� b;� s �c . f3 .-7 G (wT rt It�t hrvgJ dYu3 Witt* GM(dR,-) ()ftm I T I SS le�J� CSS h� " �g57cuC.�jc��FS. . 7 of / 8 Rev 06.0:96 - .4 1 ) -1- Addendum- (To be inserted into the Minutes of the Meeting, of the Zoning Board of Appeals) Regular Meeting Steven's Memorial Library, 345 Main St., North Andover, September 9, 1997 - 7:30 PM PUBLIC HEARING: Tara Leigh Development Corp. Variance R-2 Lot 5 & Lot 11, Settlers Ridge Rd. (Party Aggrieved) Raymond Vivenzio read the legal notice. Thomas Zahoruiko, the developer for Settlers Ridge spoke on his own behalf. In July of 1996 Mr. Zahoruiko submitted to the Planning Board an application after the 8.7 bylaw was enacted and the bylaw was placed in effect on July 1st of '96. Subsequently he got the sub -division approved through the standard planning practice on January 24th, 1997, part of that approval was the conditions for the development of that subdivision being subject to bylaw 4.2 which is the Phase Development Bylaw, as well as Bylaw 8.7, which is the Growth Managment. The 4.2 Bylaw has been part of every subdivision approval, he thinks, since 1986, at least part of the conditions. Subsequently, he recorded those conditions, developed this project, which is off of Bradford St., went through the normal process of marketing homes, selling homes, based on his understanding of being able to get permits according to the 8.7 Bylaw, even though the 4.2 Bylaw was part of his condition of approval. His understanding through this process was that the 4.2 Bylaw was not applicable, even though it was part of the condition of approval, because it had never been enforced for the previous 11 years in developments .that not only he developed but that many other people developed in town. It is also his understanding, by going to Town Meetings and seeing the presentation when the 8.7 Bylaw was presented to the town, that the 8.7 Bylaw superseded the 4.2 Bylaw in terms of managing growth and development in residential developments. That was certainly what was expressed at Town Meetings when the vote was taken on the 8.7 Bylaw. He developed the subdivision, over $1 M, pulled two permits in June of this year for the first two houses. Those two permits were allowable based on the 8.7 eligible schedule that was issued by the Planning Board which indicated, very clearly, and went on record at-. the Registry that we were eligible for six permits in FY' 97 and that he is eligible for the remaining five permits in FY'98. His assumption is that within the Phase Development Bylaw you don't loose your eligibility. He pulled his first two permits in June based on his eligibility for permits for.FY'97. Hisunderstanding through this development process is that because 'of the 8.7 development schedule issued to him that he became eligible for the other five permits as of FY'98, therefore, he feels that he is eligible.for all 11 permits at this time. 1V2 He pulled four more building permits, two in July, and two in August. Those louses are sold. He subsequently submitted additional applications for two, more' permits on lots 5 and 7 specifically which is the,subject properties tonight. These permits were denied based on not the 8.7 Bylaw, but based on the enforcement of the old 4.2 Bylaw which has not been adhered to consistently over the years. The problem is that those houses are`under contract and his business had been planned, scheduled, based on his knowledge of the Bylaws and also his experience with dealing with the Town's Bylaws, as he has built over 40 or 50 houses. He has subsequently given back those contracts and resold lots and given back two more contracts which represents $1.3M in business which represents a significant financial impact for him. He's looking for relief either in reversing the decision because these Bylaws are interpreted in a lot of ways that are not completely clear, or by a variance if that is what's necessary to provide relief, at least on the two lots, so that he can build on them. Bill Sullivan asked if anyone -else wanted to speak in favor. Kevin Foley, 52 Hewitt Ave., spoke this evening as a member of the Board of Selectmen. A letter from John Leeman was read (for the record). Mr. Foley wanted to provide some amplification and some clarification as to the intent of the letter. Mr. Foley wanted to explain that the Board of Selectmen was not trying to tell the ZBA what to do, regarding the letter. Mr. Foley stated that he felt Mr. Zahoruiko's issue is a unique one. He said that the Board would not see a lot of this situation as the result of the Growth Bylaw, however, should that be, then the Board should legislate to have a Town Meeting to address it. The letter sent by the Board of Selectmen was sent with the unanimous consent of the Board, because they wanted to make the intention clear of the Growth Bylaw (8.7). This was a planning tool, allows to plan for budgets and long term master planning, the section in the letter shows this is the intention of the Bylaw. Great care was given to the development of the legislation to meet with developers to make sure "it" would not impact in their course of business and their rights to develop property that they own, given that they don't build too many houses in the course of a year. He's aware that this particular issue has caused Mr. Zahoruiko some hardship. He believes it was denied because the new Growth Bylaw was interpreted along with the 1987 phase development bylaw which prevented him from receiving the amount of permits he thought he would have at this time during his development. This is an important point when you consider that the intention of the new bylaw, that was voted in the Town Meeting 1996, was to replace the old phase development bylaw. Mr. Foley video taped the 1996 Town Meeting, which discussed the New Phase Development bylaw, and he took some notes that developed from said meeting. He called attention to a couple of sections of 8.7 (at this time). Section 1 (Intent & Purpose) is clearly delineated. Under Section 2, ( Applicability, Affect and Definitions) 2A and B states, no building permit shall be issued for a new dwelling unit between May 6, and July 1st ,unless exempted under 8.7. When this was passed in the Town Meeting there were no permits issued from that Town Meeting until July 1, 96. Beginning on July 1st, however, no building permit for a new dwelling or unit shall be issued unless in accordance with 8.7. Mr. -3- Foley stated that (4.2 is not in accordance with 8.7). Under Definitions Section 8. 1, para. 2, Sub -para V, years shall mean period beginning July 1st and endingJune.30th this is a FY year, instead of a calendar year. Under Development Scheduling, section 4, Mr. Zahoruiko's particular issue is for 11 units so that he would be illegible for 6 in a year.Section.8.7, Para. 5, Sub -para. d., Procedures for Development: this was a ar,endment that was offered on the floor of Town Meeting, procedures for development schedule shall be in accordance with rules and regulations consistent with the provisions of this Bylaw to be adopted by the Planning Board on or before July 1, 1996. Mr. Foley is not aware if the Planning Board ever did adopt procedures for the implementation for the new Growth Development Bylaw. In Mr. Zahoruiko's case, lots were approved in January 1997 and recorded in March of 97. Mr. Foley feels that people applying for eligibility under 4.2 would not have lost eligibility and Mr. Z would have been eligible for 6 lots in FY'97 and that the balance of his 5 lots would have been eligible in FY'98. Raymond Vivenzio read a letter dated August 8, 1997 from Bill Scott, Director of Community Development and Services to Mr. Zahoruiko, (letter for the record). Discussion between the Board took place. Bill Sullivan asked if anyone present was in opposition (none). Bill Sullivan asked questions of Mr. Zahoruiko: how many buildings did you plan on having this year? Mr. "Z", plans to build 9 houses in this year, based on his knowledge of G.M. Bylaws. Discussion took place regarding the number of permits allowed in a year. Bill Sullivan explained that based on the two letters he received (for the record) this is a matter for the Town Meeting. Mr. "Z" agreed with what Bill Sullivan suggested, and that more clarification should be made regarding interpretation. Mr. "Z" stated that it is costing $10,000 per month, and has 35 people working for him, etc. based on his business. Mr. "Z" stated the loss of money he has incurred needs to be addressed as soon as possible. More discussion took place regarding the interpretation of the Bylaw and number of houses Mr. "Z" requested to build. Mr. Foley spoke regarding his personal views relative to conflict between the Board's interpretation of the Bylaw. Mr. "Z" stated that it's the 4.2 Bylaw preventing him from getting the permits, not the 8.7. Suddenly, he feels he is the test case after 11 years of non -enforcement of 4.2, as they never once published an administrative argument for implementing this Bylaw. Bob Nicetta spoke that the Bylaw as exists creates confusion, not only on Mr. "Z's" part but on Bob's part, as far as interpreting of the Bylaw. To allow on "intent" can not be done, with due respect to the Selectmen and of the Town Meeting. After more discussion between Bob Nicetta, and Mr. Foley, etc.; Bill Sullivan spoke regarding resolving the situation at hand: suggested that we continue this, get -4- information from the Town Counsul, in the meantime the Selectmen consider getting I he Town Meeting to resolve this question, Bill Sullivan expect sword from the Town Council, that this may be the way to resolve it, rather than drag this out.(tonight) over words, etc. Mr.,"Z" asked that a resolution be made this evening, based on his hardship. Bill Sullivan stated that the resources were not available this evening to resolve the issue immediately, based on the fact that the Board does not have enough information from the correct sources to render the decision. The Selectmen requested assistance by phone call and didn't get it within a 24 hour period, if they have doubts through the Town Counsul, then why shouldn't the ZBA have the same doubts. More discussion took place between the Board regarding the intent and interpretation of 4.2 and Mr. "Z". Bill Sullivan reiterated his request to continue the petition until the next ZBA meeting, and if need be reconvene at a Special Meeting based on the ZBA getting the letter from the Town Counsul. Motion made by John Pallone to continue the hearing, until the ZBA hears from the Town Counsul. Seconded by Ray Vivenzio. Unanimous. ml/taralei � .� � [' �� l �,� ,.. f,� � , _r � ��-. 9 �-ly� Locatiori No. 0.�—?- n Date "ORTN TOWN OF NORTH ANDOVER Certificate of Occupancy $ 41 Building/Frame Permit Fee $ Foundation Permit Fee $ CHUS Other Permit Fee $ Sewer Connection Fee $ Water Connection Fee $ TOTAL $ Building Inspector Div. Public Works Q 3SUAW TOWN Cffig l NORTH AJq0 ';ER 3. .1 clerk: .� 07 MY TOWN OF NORTH ANDOVER, MASSACHUSETTS a BOARD OF AFPEALS 0 JICATION FOR RELIEF FROM tlE ZONING ORDINANCE &J riz1b, Address IkS- /Alb J . Tel. No. uS 2 . ation is hereby made: <� or a variance from the requirements of Section 7Z ?aragraph / and Table of the Zoning Bylaws.' ?or a special Permit under Section Paragraph- . of the Zoning 1�ylaas. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or -other authority. 2. a) Premises affected are land _�� and buildin (s) numbered LaT -S (�7S) + Lor I I (Xt 3o�NJ,. -b)- Premises affected are property with frontage on the North (k) South X) :East ( ) West ( ) side of e � -. _ Street, and known as No. 7s -SO rT vu -,-Pr - Q) Premises affected are in Zoning District, and the premises affected have an area of square feet and frontage of feet. Loj' S Z71ogr Ld75 - Z`l336 L.ol' Il I30 LA6' i Loll 130,7Z/. 5 .o f 8 - I agree to pay the fing f e, advertising in newspaper, and incidental ex enses* Signat re .of Petitioner(s) ' t . 3 -Ownership . a) Name and address of owner (if'joint ownership, give all names)": (ri• Lt (Z)- U� :'Date of Purchase 3 : (( - Previous :Owner IV, r b)Nl. If applicant is not owner, check his/her interest t in the premises: Prospective Purchaser' Lessee Other �- 2. Letter of authorization for Variance/Special Permit required. 4. :Size of proposed building-: yZ front; `fid feet deep; Height 7—storie-s; Z 7 feet. a) Approximate date; of erection: w k$- 131)1 LT b). Occupancy or use of each floor: S IF ;c) Type of construction-: \WaD FRAMK S-. Has there been a,previous appeal, under zoning, on these premises? MQ If so; when? _ 6. Description of -relief sought on this petition PlAd& Sec • y. Z 0 6 ua 6 Bxl,Au�l 7. Deed recorded; in the Registry of Deeds in $eele-1�SrR,pac µ 682 Ne The principal point4,upon which I base my application are as follows: (must be stated in detail) I agree to pay the fing f e, advertising in newspaper, and incidental ex enses* Signat re .of Petitioner(s) DESCRIPTION OF VARIANCE REQUESTED ZONING DISTkICT: l` IL Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension , Area = Street Frontage ' F-ront Setback Side Setback(s) ` -Rear Setback . i Special Permit Request:' FCOW\ Ste: q;,Z N.ASiOD-"GLoPmev�- 9dZ114W so VtEA`C� o N 5 . �3 .-7 G (kozvrtf Nt ry s r?Y t� • w't�� Gov�'R,�,) - ��,,,�1 'T / SS L�J� �� h� �57�vFj�,ISS:. _ . E ; 7 of 8 Rev 06:03:96 t NORTH 1 ?Ott��o ,� :O - Town Of North Andover = `A Plan - Building Department# t • Review . 508-688-9545 �9Fs�cHuSE��y 146 Main St. Town Hall.. Annex - .- APPLICANT-�ff AR� �2 U. DATE: ,. Zoning District: Use Code: Title of Plans and Documents• Request: &A i/y Please be advised that after review of your building permit and or zoning review has been - DENIED for the following reasons: Zonina / Use not allowed in District Not in conformance with Phased Development Violation of Height Limitations Sign exceeds requirements Violation of Setback Front Side Rear Insufficient Lot Area Insufficient Parking Violation Contiguous Building Area Insufficient Open Space Insufficient Lot Fronta e Sign requires permits prior to Building Permit Form U not complete by other departments Not in conformance with Growth By -Law Use requires permits prior to Building Permit Other Other Remedv for the above"is checked hpinw Plan Review The plans and documentation submitted have the following inadequacies: 1. Information Is not provided, 2. Requires additional information, 3. Information requires more clarification, - 4. Information is incorrect. 5. All of the above. Dimensional Sign Variance Special Permit for Watershed Review Special Permit for Site Plan Review Special Permit for sign Com tete Form U si n -offs - - 'Copyof Recorded Variance Information indicatin Non-conformin status Copy Foundation Plan Plumbing Plans Subsurface investigation Certified Plot Plan with proposed structure Variance for Sin of Recorded Special Permit Other • Plan Review The plans and documentation submitted have the following inadequacies: 1. Information Is not provided, 2. Requires additional information, 3. Information requires more clarification, - 4. Information is incorrect. 5. All of the above. Dimensional Sign Variance Special Permit for Watershed Review Special Permit for Site Plan Review Special Permit for sign Com tete Form U si n -offs - - 'Copyof Recorded Variance Information indicatin Non-conformin status Copy Administration The documentation submitted has the following inadequacies: 1. Information Is not provided, 2. Requires additional information, 3. Information requires more clarification, 4. Information is incorrect. 5. All of the above. Foundation Plan Plumbing Plans Subsurface investigation Certified Plot Plan with proposed structure Construction Plans 127 Affidavit Mechanical Plans and or details Plans Stamped by proper discipline Electrical Plans and or details Framing Plan Fire Sprinkler and Alarm Plan Roofing Footing Plan Plans to scale Utilities Site Plan Water Supply Sewage Disposal Waste Disposal Other ADA and or AAB requirements Other Administration The documentation submitted has the following inadequacies: 1. Information Is not provided, 2. Requires additional information, 3. Information requires more clarification, 4. Information is incorrect. 5. All of the above. The above review and attached explanation of such is based on the plans and information submitted. No definitive review and or advice, by the Building Department, shall be.based on verbal explanations by.the applicant nor shall such verbal Water Fee State Builders License Sewer Fee Workman's Compensation Buildinq Permit Fee Homeowners Improvement Registration Building Permit Application Homeowners Exemption Form Other Other The above review and attached explanation of such is based on the plans and information submitted. No definitive review and or advice, by the Building Department, shall be.based on verbal explanations by.the applicant nor shall such verbal 'law aq II!M s;uawaimbai apoo rayl tivoys of suogso!;!oads pus sueld ,y6no.iyl uo!leu.uo;ui 46noue si ajayl asyl ainsue of tiessooau aie sueld pal!elap jo; sluawaj!nba� -Alajes o!lgnd ainsue of 18w 99 Ism ley; slu9wai!nbai 9poo 94101 PQWPJ aye leluap Jo; uoseaJ 041 JO Auew 1841 pue;sjepun aseald -sluaweimbei RGe'ssepau aq) 6u!laaw pjennol ep!n6 of elge eq !j�m am pus jWwnu avwge o41.1!so.eseeld aouels!s.sv ai!nbai nog(;l - lugs Ieivaa paxej 11 Pap(] paniaoa uoi)wjoju! ain;eu6ig lei o ;uaw da 6ui Nng &49= of a omi ueld jo; isanbai jo pus uLo; uo!po!ldde lluLad Gulp , e eli s no k 'all aAoge 941 jo; uo!;eluawnoop pus sueld lle u!e)w IIIM;uaw;Jedap 6u!pl!nq ayl aouaia;ar �(q u!aia Is w pus ok�a4 Pa4o8118 aq Ile4s �"IB.UeN NOVOa veld. pa!1!l;uawnoop pa4oeAe a41 'luaw#jedaa 6u!pl!n8 e41 !Q uo! a4118 PaPIOA aq of Ma!naj s!yl jo; spunou6 aq pet's weogdde ayl Aq pell!wgns uo!leuuo;ui ayl of sa6ueyo luanbasgns jaylo jo 'uo!leuLo;u! 6u!pea!s1w ,r �r1. t. WI111AM 1. SCOTT Dlrector f Town of North Andover = ' OFFICE OF COMMUNITY DEVELOPMENT -AND SERVICES Attg m 80 1997 30 School Street North Andover, Massachusetts 01845' Mr. Thomas D. Zahoruiko, Pres. Tara Leigh Development Corp: 185 Hickory Hill Road North Andover, MA 01845 Dew Mrr Zahoru ka A Ec►� a ! This interpretation is provided as a matter of providing clarity to the Planning Board discussion and your letter of July 3, 1997. As such, the response is from tkie Planning Office. If the below response does not meet your understanding and you wish further remedy then you need to request a ruling from the Building Commissioner. This ruling then can be appealed at the Zoning Board of Appeals level. T1106 Is no reference in the ordinance to the prohibition of "Forrtr-U" sign -off as related to either ordinance section 4.2 or 8.7. Further,. the subdivision decision does not require that a Form -U be heldto Rrevent oonstruction and enforce either.Growth By -Law. Thd Phased Growth By -Law 4.2 O nd Growth Management By -Law 8.7 are enforced at the building permit stage. Neither of the by-laws are a prohibition on the creation of lots. The by-laws limit the issuance of building permits. Therefore, the Form -U cam_ be signed for all lots. However sock signature does not constitute approval of a building permit. Ih reference to the use of the Growth Management By -Law 'specifically and exclusively "c6toiling the phasing, reference should be made to the subdivision decision for Settler's Ridge as follows in Item 3a page 2•" The applicant must comply with the Phased Development By -Law and the Growth Management By -Law.` This seems to clearly indicate as a function of the subdivision approval that both apply. In refer to your written statement: "I do not believe that the Phased Growth By -Law applies - In this CSWsince our project was submitted and approved after the July 1, 1996 cut-off date for . applicaNityy of the Growth Management Bylaw." The actual purpose of the July 1, 190 date is to estpbllsh the date of the restrictions for those properties that are required to meet the ordinance (section 8.7). The date does not create an exclusivity which limits those who must meet section 8.7 to only that by-law section. The fact that you are required to meet section 8.7 and that there Is a date which Indicates when the restrictions apply does not provide a waiver or release from section 4.2. It is My understanding that the interpretation of the Planning Board is that both by-laws apply and that the scheduling requirement of 4.2 applies as related to the anniversary date. As cited from section 4.2 page] 60 item 5 : "The anniversary date of each subdh4sion or contiguous Form A lots urWer-this provision shall be no earlier than the date on which all required approvals for a building permit hale been obtained. (e.g. Planning Board approval of Definitive Plan, Board of Health approval, `Conservation Commission approval, etc.) ". 4 a - a J' . i -Mr. Thomas D. Zahoruiko August 8, 1997 . = Page 2 ' '8686h 8.7 requires that the number of building permits for.new dwelling units be limited per ,"year' (table at the top of page 119). "Year" is defined as: ":.. the period beginning July 1 and ending June 30." (item d.v. page 117). Therefore, 8.7 is pursuant to a fiscal year: -The Akird :."per.annum" (see 4.2 item 1 line 4) is defined as "per the year annually' in the American Heritage Dictionary. Section 4.2 is not as clear on the definition of when the annual period begins, except for a separate reference to an "anniversary date". In 8.7 a specific definition of "year" is provided. In 4.2 a reference to anniversary date (item 5 page 60) is j. provided. Therefore, -while annually is not directly linked to anniversary date the assumption is r that the "per annum" begins on the anniversary date. Therefore, if 4.2 states the anniversary date applies and 8.7 states the fiscal year. applies then which is the overriding by-law section. Clearly a conflict exists by the nature of having two distinct and separate periods under which the issuance of building permits is managed. r, As perahe table, in item 1, on page 60, fifty percent of the lots can be developed per year. Therefore, six lots can be developed between Januar)r(your anniversary date) of 1997 and y January of 1998. However, the Growth control by-law indicates that the "Year" is July 1 to June 30 and restricts the number of building permits "per year" (page 119 table) to six. . M The least restrictive interpretation would follow section 8.7 which would mean that your �t development is entitled to six permits from January to July 1 and another five (for your 11 total) after July 1. If this interpretation was implemented then.it would violate the terms of section 4.2 1`k and allow your second set of permits to occur prior to the anniversary date. The fact that an annual anniversary date is used in section 4.2 ensures the conformance to section 8.7 by restrictlKg building permits to a similar amount in one year, Regardless of that anniversary date, the use of section 4.2 alone does not create a violation of section 8.7, while the use of section 8.7 alone could create a violation for section 4.2. Therefore, to insure that the ordinance creates the least amount of conflict the use of section 4.2 should override section 8.7 in establishing the beginning point (or anniversary date) from which the annual restrictions on building permits begin.- If egin:If you have any questions plea ntact me. Sincerely, 'C s 1r "` illiam J. Scott *PARCL:;�7*, MASSACHUSETTS DOR PARCEL LISTING 07/25/96 PAGE �. PARCfL ID: 210/061.0-0005-0000.0 SALE DATE: 0000 » PARCEL s V J GCIt r LAST UPDATED 9/26/95 - MNER-NAME-1- BAWER STREET TRUST OWNED-AOOR-1 ' 1267 OSGOOD STREET OWNER -STATE MA OWNER -NAME -2. OWNER -CITY NORTH ANDOVER PAROZL ID.: -210/061.0-008R-0000.0 I SALE DATE: 0000 ' j * PARCEL LAST UPDATED 6/ 9/94 OWNER -NAME -1 SANCHEZ III, VIRGIL OWNER -NAME -2 ELIZABETH BARKER OWNER -CITY NORTH ANDOVER WILLIAM OWNER-ADDR-1 201 BARKER STREET OWNER -STATE MA PARCEL ID: 210/061.0-0070-0000.0 SALE DATE: 0000. **** PARCEL LAST UPDATED 1/12/96 OtAMR-NAME-1 BARKER, ELIZABETH E OWNER -NAME -2 I OW9VER-CITY NORTH ANDOVER OWNER -NAME -2 VIRGIL W SANCHEZ, II ----------------------- 04NER-ADDR-1 201 BRADFOPD STREET =------------------------- =-----------------------------=- OWNER -STATE MA PARCEL ICs: 210/061.0-0041-0000.0 SALE DATE: 0000' { **** PARCEL LAST UPDATED 9/20/94 OWNER -NAME -1 MARCHESE, SALVATORE OWNER -NAME -2 -ANGELA B MARCFESE OWNER -CITY NORTH ANDOVER M --------------------------------------------------------------------------------- OWNER-ADDR-1 189 BRADFORD STREET OWNER -STATE MA y PARCEL I0: 210/061.0-0003-0000.0 h SALE DATE: ODOO: **** PARCEL LAST UPDATED 9/20/94 OWNER�NAME-1 P A F TRUSTOWNER-ADDR-1. 145 BRADFORD STREET OWNER -STATE MA OWER=NAME-2 PATRICIA A FLYNN, TR OWNER -CITY NORTH ANDOVER PARCEL ID: 210/061.0-0001-0000.0 ** PARCEL OWNER -NAME -1 HANSEN, WILLIAM E OWNER -NAME -2 ELIZABETH S HANSEN SALE DATE: 0000 LAST UPDATED : 8/25/94 OWNER-AODR-1: 103 BRADFORD STREET -OWNER-CITY NORTH ANDOVER C• r �1c,��Ti1�l MA *h Ah(l L 151 * MA85Al MJ' tJ 15 DOFF HH-<ULL L 1S l 1NU 07/25/y6 FAIL 'l'6RCE, ID:; 210/061.0-0102700()0.0 SALE DATE: 0000 ** PARCEL LAST UPDATED : '5/30/95 OWNER -NAME -1 WHITE BIRCH II HOMED OWNER -NAME -2 JOSEPH J SCOTT, TR OWNER -CITY HAVERHILL WNER'S TRUST OWNER-ADDR-1 12 ROGERS�ROAD OWNER -STATE t4A PARCEL ID: 210/061.0-0101-0000.0 SALE DATE: 0000 **** PARCEL LAST UPDATED : 4/12/96 OWNER -NAME -1 DYER., LAURENCE S OWNER-AOOR-1 3 NELENDY'ROAD OWNER -STATE NH OWNER -NAME -2 OWNER -CITY HUDSON PARCEL ID: 210/061•.0-000670000.0 SALE DATE: 0000. " ** PARCEL LAST UPDATED : 9/26/95 OWNER -NAME -1 BARKER, GEORGE R, JR OWNER-ADDR-1 1267 OSGOOD STREET OWNER -STATE MA OWNER -NAME -2 OAR -CITY NORTH ANDOVER ------------------------------------------------------------ PARCEL ID: 210/061:.0-0026-0000.0 SALE DATE: 0000 ---------------- K PARCEL LAST UPDATED : 8/2.S/94 OWNER -NAME -1 TERROUX, KENNtTH A OWNER-ADOR-1 254 BARKER STREET OWNER -STATE MA OWNER -NAME -2 MARY L TERROUX --------------------------------------------------------------------------------- OWNER -CITY NORTH ANDOVER PARCEL 10: 210/061'.0-0027-0000.0 SALE DATE: 0000 *** PARCEL LAST UPDATED 8/25/94 OWNER -NAME -1 BROWN, JAMES T. OWNER-ADOR-1 266 BARKER STREET OWNER -STATE MA OWNER -NAME -2 PRISCILLA M BROGAN OWNER -CITY NORTH ANDOVER -------------------------------------------------------------------------------- PARCEL ID: 210/061.0-0028-0000.0 SALE DATE: 0000 PARCEL LAST UPDATED : 9/21/94 OWNER -NAME -1 ARRIGO SPENDTHRIFT F OWNER -NAME -2 ET AL TR OWNER -STATE MA AMILY TRUST OWNER-ADOR-1 278"BARKER STREET OW19ER-NAME-2 PHILIP M ARRIGO,III OWNER -CITY NORTH ANDOVER +rrve� 1�i * crux ;5 IJOK HAkltL L15lLNV 07/25/96 PALL PARCEL ID: 210/061.0-0029-0000.0_ = SALE DATE: 0000 { PARCEL LAST UPDATED 1/12/96 , OWNER -NAME -1 KOLBENSON, CHARLES H OWNER-ADOR+-1 290 BARKER STREET OWNER -STATE ! MA OWNER-NAMiE-2. RUTH B KOLBENSON OWNER -CITY NORTH ANDOVER I, PARCEL ID: 210/061.0-0083-0000.0 SALE DATE: 0000 I ** PARCEL - tAST UPDATED 1/12/96 _ OWNER -NAME -1 LUNDQUIST, JOHN D OWNER-AOOR-1 250 BARKER STREET OWNER -STATE MA 04NER-NAME-2 LAURIE M LUNDQUIST OWNER -CITY NORTH ANDOVER PARCEL. I0: 210/061.0-0077-0000.0 SALE DATE: 0000 . **** PEEL LAST UPDATED 9/26/95 OWNER -NAME -1 BARKER, GEORGE R, JR OWNER-AODR-1 1267 OSGOOD STREET OWNER -STATE MA OWNER -NAME -2 OWNR-CITY NORTH ANDOVER PARCEL ID: 210/061.0-0019-0000.0 SALE DATE: 0000 PARCEL LAST UPDATED 8/25/94 OWNER -NAME -1 MANGANO, DOMENIC J. OWNER-ADOR-1 324 BRADFORD STREET OWNER -STATE MA OWNER -NAME -2 ANTONIA MANGANO OWNER -CITY NORTH ANDOVER PARCEL IDc 210/061.0-0020-0000..0 ------------------------------------ SALE DATE: 0000 »* PARCEL LAST UPDATED : 4/ 4/94 OWNER -NAME -1 TOWN OF NORTH ANDOVE OWNER -NAME -2 i OWNER -CITY NORTH ANDOVER R OW ER-AOOR-1 120 MAIN STREET OWNER -STATE MA PARCEL ID: 210/061.0-0059-0000.0 SALE DATE: 0000 * PARCEL LAST UPDATED 8/25/94 OWNER -NAME -1 ST JEAN, DONALD J OW ER-ADOR-1 284 BRADFORD STREET OWNER -STATE MA OWNER -NAME -2 JOAN C ST JEAN OWNER -CITY NORTH ANDOVER- K'FVR,L 1 J 1 �• IW.7Jt"N.-�-NrL 1 I J VIXC r rmw� � �.� • .• w " '*ARCEL ID: 210/061,.0-0042-0000.0 SALE DATE: 0000 S . r�**'PARCEL LAST UPDATED :: 8/25/94 OWNER -NAME -1i MAC INNIS, ROBERT P OWNER-ADOR-1 270 BRADFORD STREET OWNER -NAME -2 KIMBERLY A MC DOIJGAL OWNER -CIT`' NORTH ANDOVER PARCEL rd: 210/061.0-0043-0000.0 SALE DATE: 0000 .,«** PARCEL LAST UPDATED :. 4/12/96 OWNER MANE -1 CALLAGY, SHAUN M OWNER-ADOR-1 260 BRADFORD STREET OWNER -NAME -2 DEBRA A CALLAGY OWNER -CITY NORTH ANDOVER PARCEL ID: --------------------------------------------------- 210/061.0-0044-0000.0 SALE DATE: 0000' Kms* PARCEL LAST UPDATED : 9/ 8/94 OWNER -NAME -1 MUKHERJEE, PRATIP K OWNER-ADOR-1 246 BRADFORD STREET OWNER -NAME -2 SWATI ML*ERJEE OWNER -CITY NORTH ANDOVER PARCEL ID: i 210/061.0-0045-0000.0 SALE DATE: - 0000 f ** PARCEL LAST UPDATED : 9/ 8/94 OWNER-NAME�1 ALAI�TAFTI, MOHAMMED OWNER -NAME -2 FTI H OWNER-ADDR-1 11 GLENMERE LANE OWNER -NAME -2 SHAHNEAZ K I ALAI -TA OWNER -CITY COMMACK PARCEL tD: ----------------=--------------------------=----------- 210/061.0-0046-0000.0 SALE DATE: 0000 **** PARCEL LAST UPDATED = 8/25/94 OWNER -NAME; -1 CARNEY, JEANNE F OWNER-ADDR-1 222 BRADFORD STF�EET OWNER -NAME --2 OWNER -CITY NORTH ANDOVER PARCEL ID: 210/061.0-0049-0000.0 PARCEL 04ER-W E-1 GHIKAS, PATRICIA A . OWNER -NAME -2 DAVID G GHIKAS SALE DATE: 0000 -LAST UPDATED : 4/12/96 OWNER ADDR-1 186,BRADFORD STREET OWNER -CITY NORTH ANDOVER f " OWNER -STATE OWNER -STATE OWNER -STATE OWNER -STATE OWNER -STATE MA NfY MA OWNER -STATE MA f " -^YMKI.L 131 •^ llv_'. Y%. Z, _ l I'D UI/K rnnl-Cl, L. iJ i aiw 6ARCEL ID: 210/061.0-0050-0000.0 SALE DATE: 0000 x PARCEL LAST UPDATED 7/31/95 OWNER -NAME -1 SAWYER, JAMES G i OWNER-ADDR-1 174 BRADFORD STREET OWNER -'STATE MA OWNER -NAME -2 OR`JAMES A FOLEY OWNER -CITY NORTH ANDOVER PARCEL ID: 210/061.0-0051-00004.0 SALE DATE: 0000 » PARCEL _ LAST UPDATED : 8/18/94 OWNER -NAME -1 DALY, STEVEN M OWNER-ADDR-1 162 BRADFORD STREET OWNER -STATE MA OWNER -NAME -2 ANNE G DALY OWNER -CITY NORTH ANDOVER PARCEL. ID: 210/061.0-0052-0000.0 SALE DATE: 0000 ` K* PARCEL LAST UPDATED : 9/13/94 OWNER -NAME -1 SOUSA, JAY A O4%ER-ADDR-1 150 BRADFORD STREET OWNER -STATE MA OWNER -NAME -2 MARIE C SOUSA OWNER --CITY NORTH ANDOVER PARCEL ID: 210/034.0-0010-0000.0 SALE DATE: 0000 x*** PARCEL LAST UPDATED : 9/26/95 OWNER -NAME -1 BARKER, GEORGE R, JR OWNER-ADDR-1 1267 OSGOOD STREET MA OWNER -NAME -2 OWNER -CITY NORTH ANDOVER LEONARD KOPELMAN DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. SAINT ANDRE JOEL B. BARD EVERETT J. MARDER PATRICK J. COSTELLO JOSEPH L. TEHAN, JR. ANNE -MARIE M. HYLAND THERESA M. DOWDY WILLIAM HEWIG III DEBORAH A. ELIASON JEANNE S. McKNIGHT JUDITH C. CUTLER RICHARD BOWEN KOPELMAN AND PAIGE, P. C. ATTORNEYS AT LAW 31 ST. JAMES AVENUE BOSTON, MASSACHUSETTS 02116-4102 BOSTON OFFICE (617) 556-0007 FAX (617) 654.1735 NORTHAMPTON OFFICE (413)585-8632 WORCESTER OFFICE (508) 752-0203 October 10, 1997 BY FACSIMILE - (978) 688-9556 CONFIDENTIAL - NOT A PUBLIC DOCUMENT Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Tara Leigh Development Corp. Application For Variance (ZBA Petition 027-97) Dear Members of the Zoning Board of Appeals: KATHLEEN M. O'DONNELL DAVID J. DONESKI SANDRA CHARTON [LANA M. QUIRK JOHN RICHARD HUCKSAM, JR. SUSAN M. CALLAHAN BRIAN W. RILEY JOHN J. KENNEY, JR.. ROBERT PATTEN MARY L. GIORGIO KATHLEEN E. CONNOLLY MICHELE E. RANDAZZO PETER J. FEUERBACH MARY JO HARRIS THOMAS W. MCENANEY JONATHAN M. SILVERSTEIN TIMOTHY J. ERVIN KATHARINE 1. GOREE CHRISTOPHER J. POLLART On September 22, 1997, I sent you a letter on the above subject. Since then, Tara Leigh Development Corp. has filed a Complaint against the Town. You have asked for further guidance now that a lawsuit has been filed. In my opinion, the Board should proceed as recommended in my September 22, 1997 letter, i.e., consider granting a variance from the provisions of §4.2.1 of the Zoning Bylaw. Do not hesitate to contact me if you have further questions regarding this matter. JBB/das cc: Town Manager Board of Selectmen 34882/Nand/9999 Very truly yours, r*ooel B. Bard PRINTED ON RECYCLED PAPER Post -It"" brand fax tr nsmittal memo 7671 # of pages ► p,r/C To From % Co. PL U Co. i Dept Phone„p[7 G(� L04 Fax# ,. x# Kopelman & Paige Attorney Joel Bard 31 Saint James Ave. Boston, MA 02116 Attention Attorney Joel Bard: f NORTH 1 • .. 0 b L toA 1 ^no CH TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS `` September 30, 1997 Zoning Board of Appeals North Andover Town Hall 146 Main St. (Annex) North Andover, MA 01845 The Zoning Board of Appeals has recently attained a copy of a petition to the Commonwealth of Massachusetts Land Court, Department of the Trial Court, by Tara Leigh Development Corp. (Thomas Zahoruiko), vs. Town of North Andover, Civil Action, dated September 24, 1997, Misc. Case no. 241971. In view of this pending litigation, the Zoning Board of Appeals would like to be advised as to the influence the Land Court petition may have in regards to the Zoning Board of Appeals petition 027-97 of its September 9, 1997 agenda and presently in a `continued' state. Would you please notify our Board in writing, as soon as you can so we may complete the issue on/or before our October 14, 1997 meeting. Thank you, L'�L— I William J. S Ilivan, Chairman faxed to Atty. Bard mel/court dr— M-E-M-O-R-A-N-D-U-M TO: Bill Sullivan, Chairman Zoning Board of Appeals members FROM: Mary Leary-lppolitoh� DATE: 9/23/97 1. Please note: the attached letter regarding Tara Leigh Development Corp. (Thomas Zahoruiko) for your review. 2. The attached memo regarding Recent Zoning Decisions is for your information only, (submitted per Bob Nicetta). /mel/review 09/22/97 MON 16:43 RAX 617 65; 1735 L. EONAR7] KOPCLMAN DONALD P. PAIOe eLMABETH A. LANE JDYcc rRAN1C JOHN W, GIQRGtO VARDARA J. TAINT ANORe JOEL B. BARO EVERETT J. MARDlh OATRICK J. CoyTELLO JOSCP" I.. TEHAN, 4R, ANNE-M4P,. N. HyLAND T M.Cpq H. oowo" WIL.6I4M HEWIG Ill DE9ORAM A. ELIA91oN "'ANNE S. MCKNIGRT JUDITH C CUTLER AICl1ARD BOWeN ..Villa -1.ILV ILII ROP ULKAN AND P_11GR KOPELMAN AND PAIGE, P, C, ATTORNEYS AT LAW 31 ST. JAMEG AVENUE 60STON, MASSACHUSETTS 02119.4t02 BOBTDN OFFICG (017) SS6.00" PAX (0171 634-1"-3 NORTHAMPTON Ot•I7C7 (412) sea -B632 WORCr. TCR OFFICE (Boa) 732-0203 September 22, 1997 BY FACSIMILE - (978) 689-9556 Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Tara Leigh Development Corp., Thomas Zahoruiko Z_RA Petition 027-97 (Settler's Ridge) Dear Members of the Zoning Board of Appeals: 'VJVVl =->; NORM 3NDOvHR 9 002 KATHLEEN M. O.00NNELL DAVID J. DON&SK1 SANDRA CMARTON (LANA M. QUI!!k JOHN RICNARO IUUCKSAM. JR. OU9AN M- CALLAMAN BRIAN W. RIL;V .10N2n J. KCNNCT- .;R' wog ERT PAYTCN MARY L. OlORGIO KATHLEEN E. CONNOLLY MICHCLC G. RANDAZZO PETER J. PCuranokCN WARY JC RAMOS Tl10 MAS W. MCRNANEY JONATHAN M, SILVERSTEIN TIMOTHY J. l:RYIN ICATHARINC I. CORIi'C CNRItiTOPI+ER J. POLLART You have requested an opinion as the appropriate action to take with respect to two sections of -he Town's Zoning Bylaw: Section 32, Phased Development; and Section 8.7, Growth Management 1 understand that Tara Leigh Development Corp. has filed a petition seeking relief from the requirements of Section 4.2.1, the section of the Phased Development Bytaw which establishes a schedule preventing subdivisions containing seven or more units from being built out in one year. The project at issue is the Settler's Ridge subdivision - This question has arisen because the Building lnspector has interpreted the Town's Zoning Bylaws to state that the Settler's Ridge subdivision is subject to two different sets of development limitations, i.e., the subdivision develonment schedule found in §4..1 and the Town -wide building permit limit contained in section 8.7, the Growth Management Bylaw. The Board of Selectmen. by letter dated September 9, 1997, has informed the Zoning Board of Appeals that, as sponsor of the Urow-th Management Bylaw, the Selectmen had never intended to have a subdivision be subject to both bylaws. The Selec:imen had anticipated that older subdivisions, which would be grandfathered and protected from the limit2tions of the Growth Management, would be related by the existing Phased Development Bylaw and that new subdivisions would be regulated by the Growth Management Bylaw, but not Phased Development I understand that the Board of .Selectmen is prepared to sponsor ars amendment to change the Zoning Bylaw to make this intention clear. PRSKTEn ON KECTCLGO PAPER PW4t' Fax Note 7671 Wale ll " ��S► To 1=rom I )!%la) Co.100PL Ca Phone fi Phone # Fax # Fez # 6:44 TX/RX X0.5732 P.002 M uy; • ar ,,, r.-" auo 000aaao • 09/22/97 ICON 16:93 r9l 617 654 1735 KOPELMAN AND PAIGE, P.C. • Zoning Board of Appeals North Andover '1 own Hall September 22, 1997 Page 2 ,vuxln �vuurtx ROPELMAN AND PA I OE NORTO ANDOXTR Given the above circumstances; it is my opinion that it would be appropriate for the Zoning Board to grant a variance from the provisions of §4.2.1. As you know, the legal standards for a variance, found in G.L. c.40A, § 10, are very difficult to satisfy. These; circumstances.affeeting Settler's Ridge may not technically meet the variance standards, but it is my opinion that the Board could grant a variance here, if the Board deemed it appropriate. 1 would anticipate that the Board would be concerned about the precedent that would be sct by granting such a variance. The issue of precedent should be addressed, however. by Town Meetiag if and when the issue of the overlap of the two bylaws appears on a warrant. At that time, Town Meeting will either decide to chmmate the application of both bylaws to a subdivision, in which case this issue will not arise again, or Town Meeting will decide to keep both provisions as they are now, in which case the Zoning Hoard could conclude that it would not be appropriate to grant future variances in circumstances such a5 this one. Do not hesitate to contact me if you have further questions in this regard. JBB/das cc: Board of Selectmen By Facsimile - (978) 688-9556 333d6lNaPdi9999 1, IVA �' INION -1 el �' �- / - 0 09/22/97 16:44 TX/RX N0.5732 P.003 WJ UUZ a 003 CI Town of North Andover NORTH f � OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES . 30 School Street North Andover, Massachusetts 01845 �f A°+AT, D •�' (° WILLIAM J. SCOTT SSAcwus� Director October 9, 1997 Mr. William Sullivan Chairman, Zoning Board of Appeals Town of North Andover Town Hall 120 Main Street North Andover, Massachusetts 0845 Dear Mr. Sullivan: This letter is in reference to the Tara Leigh Variance and Appeal before the Zoning Board. The applicant is requesting either a waiver from Section 4.2 or the Board to overturn the Building Commissioner's decision to deny building permits for lots in the subdivision known as Settlers Ridge. As indicated in my prior correspondence and that of Town Counsel, the 4.2 by- law does apply. Therefore, voting on the Aggrieved Party to overturn the, Building Commissioner's decision would not be valid. Your question remains as to how an administrative interpretation to deny a permit would relate to the tests for a variance. First the by-law requires that for the grant of a variance, the Zoning Board must find that "owning to circumstances relating to soil conditions, slope, or topography of the land or structures and especially affecting such land or structures...." The Settlers Ridge site is a steep slope (see attached plan) with wetland resource areas (shaded area on plan). Therefore, it is established that the site can meet the tests of slope, topography and soils. However, how do these issues relate to a request for a variance from 4.2 the phasing by-law? The relationship of the slope, wetlands and the phased by-law is a factor in the decision. The phasing of the development using the requirements of 4.2 will create undue hardship by requiring a stabilization of the site for a longer period of time. With an understanding that the 8.7 by-law applies the applicant proceeded to construct all of the infrastructure. The next step would be the construction of the homes and then complete stabilization of the site. As a result CONSERVATION - (978) 688 9530 • HEALTH - (978) 688-9540 • PLANNING - (978) 688-9535 *BUILDINGOFFICE - (978) 688-9545 0 *ZONING BOARD OF APPEALS - (978) 688-9541 0 *146 MAIN STREET +/ 4 Mr. William Sullivan October 9, 1997 Page 2 of the inability to construct the homes, due to the need to comply with 4.2, the developer is unable to close the site and must continue to stabilize the slope and wetlands until closure. While the above circumstance is common in development, the situation is unique. The developer intended to follow the 8.7 by-law which allows permits in each fiscal year. At the time of the by-law amendment in May of 1996 the intention of the by-law change from 4.2 to 8.7 was to have 8.7 control for new developments. Therefore, the developer proceeded with a construction that would not have presented a hardship had the 8.7 by-law ruled. However, with 4.2 the stabilization becomes a greater impact and therefore a hardship relating to soils, slopes and topography. Your next concern is the impacts of this decision on other developments and the possibility of a precedent. As you are aware, the Board of Selectmen intend to amend the by-law to address this issue. The amendment will occur in May of 1998. As it stands only one approved development, Old Center Lane, was filed after the May 1996 deadline. The development is only two lots and would not require phasing under either by-law. Any other development currently under review would receive their second phase of permits after July 1, the fiscal year, and therefore any conflicts in the by-law would be resolved prior to any conflicts at the May 1998 Town meeting. Therefore, the Settlers Ridge case would not create a precedent because the by-law would be resolved in May creating a different by-law and circumstances. 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()v -`/ !r �� .�'. :lvC' :�.+�• � - "�2', ' ` 'SbY t `�'�� `•"�id..� �'9t �'{j N 4k Ilk, r .� ��- ._... �� . - � ` `'� \ . ! ��9� LSE }• I 77, 03 {' / / / ,� .t,..:y,.r �� :�+..-.r- �,� `. ,`� �„ • �\ 'fly "t;;ta tJ1-11 '��:� \G� ' /�/ice / //� •/ � �� ` v � �{ ;�� ` � z,.. i I r 4 I ALAN L. GRENIER MICHAEL P. MCCARRON STEPHEN D.GUSCHOV GRENIER & McCARRON ATTORNEYS AT LAW 100 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS, MASSACHUSETTS 01923 (978)777-7000 TELECOPIER: (978) 777-6803 CERTIFIED MAIL RETURN RECEIPT REQUESTED Town Clerk Municipal Building 120 Main Street North Andover, Massachusetts 01845 Dear Sir/Madam: All RECEIVE i JOYCE BRAD*SHMN TOWN CLERK I NORTH ANDOVER SCP l L 59 PH `97 OF COUNSEL JEFFREY A. SCHREIBER September 24, 1997 RE: Tara Leigh Development Corporation V. Town of North Andover Land Court Misc. Case No. 241971 Enclosed herewith please find our Complaint which was filed in the Land Court as the above-mentioned case. Please consider this service in accordance with the provisions of Massachusetts Rules of Civil Procedure 4(d)(4). MPM:eaf Enclosure Very truly yours, Michael P. McCarron ` s r PROOF OF SERVICE OF PROCESS I hereby certify and return that on September =;� V , 19 97 , 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): by mailing the same to the Town Clerk of the Town of North Andover in accordance with M.R.C.P. 4(d)(4) Dated: September , 19 97 L 6 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. z� H � U N a U z z 0 H H 9 0 P4 z 0 U H z w P4 0 a w w A x H W a N x 0 A z x H a 0 z W 0 R 0 H September �` 1997, 0 VIER & MCCARRON P ' ?YS AT LAW 1ThvRNE OFFICE PARA' .91 MAPLE STREET ANVERS• MA 01923 (508) 777-7000 082597eaf COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. TARA LEIGH DEVELOPMENT CORPORATION, Plaintiff V. LAND COURT DEPARTMENT MISC. CASE NO. 9_ / 171 COMPLAINT TOWN OF NORTH ANDOVER, Defendant INTRODUCTION 1. In this action, the plaintiff, Tara Leigh Development Corporation (hereinafter referred to as "Tara Leigh"), in accordance with the provisions of Massachusetts General Laws Chapter 240, Section 14A, seeks a judicial determination as to the validity and extent of the North Andover Zoning By-law as it pertains to certain property located at Settler's Ridge Road, North Andover, Massachusetts. The plaintiff also requests equitable relief in the form of a declaratory judgment from this Court ruling that a portion of the North Andover Zoning By-law is in violation of the Zoning Enabling Act, Chapter 40A, Section 1 et seq. and cannot be enforced against Tara Leigh. The plaintiff also requests equitable relief in the form of a declaratory judgment from this Court ruling that a portion of the North Andover Zoning By-law is in violation of the Constitution of the United States and the Massachusetts Constitution. Lastly, the plaintiff also requests that this Honorable Court award damages for the unlawful taking of property by the Town of North Andover. NEHOME.821 082597eaf 0 NIIER & MCCARRON EYS AT LAW ATHJRNE OFFICE PARK :91 MAPLE STREET !ANVERS. MA 01923 (508) 777-7000 JURISDICTION 2. Jurisdiction over the subject matter of this action is expressly conferred upon this Court by Massachusetts General Laws Chapter 185, Section 1(J'/), and Massachusetts General Laws Chapter 231A, Section 1. PARTIES 3. The plaintiff, Tara Leigh Development Corporation, is a Massachusetts corporation having a usual place of business at 185 Hickory Hill Road, North Andover, Massachusetts. 4. The defendant, Town of North Andover, is a municipal corporation with a principal place of business at Town Hall, North Andover, Massachusetts (hereinafter referred to as "North Andover"). FACTS 5. Tara Leigh is the owner in freehold estate of property located in North Andover, Massachusetts, as described in a certain deed recorded with Essex North District Registry of Deeds in Book 4713, Page 321; a copy of said deed is attached hereto as Exhibit A. 6. A portion of the premises is also shown on deed recorded with said Deeds in Book 4713, Page 319; a copy of said deed is attached hereto as Exhibit B. 7. On September 6, 1996, Tara Leigh, through its agent, Thomas Zahoruiko, applied for definitive plan approval for a definitive plan entitled "Settler's Ridge"; a copy of the Application for Approval of Definitive Plan is attached hereto as Exhibit C. 8. On January 24, 1997, the Planning Board of the Town of North Andover approved the Settler's Ridge Subdivision. Attached hereto as Exhibit D is a copy of the Planning Board Approval. NEHOME.821 082597eaf -2- :NIER & MCCARRON \"" EYS AT LAW ATI-HURNE OFFICE PARK 491 MAPLE STREET )ANVERS, MA 01923 (508) 777-7000 9. Section 4.2 of the North Andover Zoning By-law, the "Phased Development By-law," limits the number of building permits for the construction of single-family or two-family dwellings within a subdivision. The Building Inspector of the Town of North Andover has determined that Tara Leigh is subject to the limitations set forth in Section 4.21 of the North Andover Zoning By-law. As a result, Tara Leigh cannot construct more than six (6) single-family residences within the subdivision in calendar year 1997. A true accurate and complete copy of said Section 4.2 is attached hereto as Exhibit E 10. Section 8.7 of the North Andover Zoning By-law, the "Growth Management By-law," limits the number of building permits available for new,dwelling units. The Building Inspector of the Town of North Andover has determined that Tara Leigh is subject to the limitations set forth in Section 8.7. As a result, Tara Leigh cannot construct more than six (6) single-family residences in fiscal year 1997. A true, accurate and complete copy of said Section 8.7 of the North Andover Zoning by-law is attached hereto as Exhibit F. 11. As a result of the implementation of Section 4.2, the "Phased Development By-law", and Section 8.7, the "Growth Management By-law," Tara Leigh is unable to presently obtain economic benefit for the use of certain of his lots on the property. COUNT 12. Massachusetts General Laws Chapter 40A, Section 4, indicates: Any zoning ordinance or by-law which divides cities and towns into districts, shall be uniform within the district for each class or kind of structure or uses permitted. 13. Section 4.2, the "Phased Development By-law," in that it provides differing treatment for lots located within the same district, violates the uniformity requirements set forth in Massachusetts General Laws Chapter 40A, Section 4. NEHOME.821 082597eaf -3- NIER & MCCARRON .1 EYS AT LAW ATriuRNE OFFICE PARK 491 MAPLE STREET )ANVERS, MA 01923 (508) 777-7000 14. Section 8.7, the "Growth Management By-law," insofar as it provides differing treatments for certain lots located within the Residential Zone is in violation of the uniformity requirement as set forth in Massachusetts General Laws Chapter 40A, Section 4. 15. Sections 4.2 and 8.7 of the North Andover Zoning By-laws are not within . the scope of authority delegated to a municipality for the enactment of zoning by-laws and are inconsistent with the terms and provisions of Massachusetts General Laws Chapter 40A, Section 1 et seg. (the Zoning Act). COUNT II 16. The Fifth Amendment of the United States Constitution provides: No person shall be held to answer for a capital, or otherwise infa- mous crime, unless upon the presentation or indictment of a Grand Jury, except in cases arising in the land or navel forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or prop- erty without due process of law, _nor shall private property be taken for public use, without iust compensation. 15. Sections 4.2 and 8.7 of the North Andover Zoning By-law deprive Tara Leigh of the right to obtain all economic benefit from their property for a period of time. 16. The deprivation of the right to all economic benefit as provided for in Sections 4.2 and 8.7 of the North Andover Zoning By-law is an unconstitutional taking of private property without just compensation. COUNT III 17. Part 1, Article X, of the Massachusetts Constitution provides: Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to the standing laws. He is obliged, consequently, to contribute his share to the ex- NEHOME.821 082597eaf -4- VIER & MCCARRON T EYS AT LAW ALThURNE OFFICE PARK 191 MAPLE STREET 'ANVERS, MA 01923 (508) 777-7000 pense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him; or applied to public uses, without his consent, or that of his representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body shall have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. 18. Sections 4.2 and 8.7 of the North Andover Zoning By-law constitute a taking of all of the reasonable economic value of the property for a period of time. 19. Sections 4.2 and 8.7 of the North Andover Zoning By-law constitute a taking of the property of Tara Leigh without reasonable compensation therefore. COUNT IV 20. By operation of Sections 4.2 and 8.7 of the North Andover Zoning By-law, Tara Leigh has been deprived of all of the reasonable use of its property for a period of time. 21. Tara Leigh has been damaged by this inability to receive economic value from its property. 22. Tara Leigh has ready, willing and able individuals who are prepared to purchase completed single-family residential structures on the property but are being prevented from doing so by the operation of Section 4.2 and 8.7 of the North Andover Zoning By-law. 23. The Town of North Andover is liable for the damages incurred by Tara Leigh occasioned by the delay in Tara Leigh's ability to construct a single-family residential structure and place the same on the market. WHEREFORE, the plaintiff prays that this Honorable Court issue judgment as follows: NEHOME.821 082597eaf -5- NIER & MCCARRON T EYS AT LAW Alt.-RNE OFFICE PARK 191 MAPLE STREET )ANVERS. MA 01923 (508) 777-7000 A. determine that Sections 4.2 and 8.7 of the North Andover Zoning By-law are in violation of Massachusetts General Laws Chapter 40A, Section 4; B. determine that Sections 4.2 and 8.7 of the North Andover Zoning By-law are null and void and cannot be enforced against the plaintiff; C. determine that Sections 4.2 and 8.7 of the North Andover Zoning By-laws are in violation of the Fifth Amendment of the United States Constitution; D. determine that Sections 4.2 and 8.7 of the North Andover Zoning By-laws are in violation of Part 1, Article X, of the Massachusetts Constitution; E. rule that Tara Leigh is entitled to construct a single-family dwelling on property it owns without limitation to the provisions of Sections 4.2 and 8.7 of the North Andover Zoning By-law; F. award Tara Leigh monetary damages for the delay occasioned by the operation of Sections 4.2 and 8.7 of the North Andover Zoning By-law insofar as they constituted an unlawful taking of property; G. grant such other relief as this Court deems just and equitable. Dated: NEHOME.821 082597eaf Respectfully submitted, TARA LEIGH CORPORATION, By its attorneys, Michael P. McCarron BBO No. 327570 GRENIER & McCARRON 100 Hathome Office Park 491 Maple Street Danvers, Massachusetts 01923 (508) 777-7000 iM. �. _ tea•+.. .--+p•r+••• •..f�--.. �. v,== r:LRR Gt/ RCML I I .7tl7.3T023bT141.i e • ♦ r Ji. "�•at• Elizabeth E, Barker O Vorth Andover, Easex 8K 4713 PG 321 connlf• m-"Mumm, cOO'"lylkn nd -"0i0u(5550, 000p.Lo CO) andnlLlnrtoIIa-/{-0-c1-7tbe K P 1 vc Hundred llfty IhOUII1l1d usual Usual place of busTera Leigh pe.aiopmeOr Corp., a Xna ineae at IIachCorp .ration Cozoration Lavjn a 3%18. Hickory hill Roed, North Andover, YA 9 sox tot to w Thq land cwrc particularly d,lcribed GA � o Y oIIczlbed ae fo11o,.II; gSee Zxhibit 'A' attached hcreto. X a 0 a r . a 9 K a � a V 2 •i q � a •�a � Q 14 a Y h a ` PLA I G7 :10 O rA� NAs2 21'97 -10.22 e ':- Aad MW :- AadMW 1` dayof he♦�.`_._ 19.2 Aw tytesjaz&A dAassxdrutas FaiGX U. Xarch o71 if 9% oii07 °OPv�d a+c alnrvc nalncE fllzaboth E. Harker sod1ol�ea dlc (ot<cgoutg nurnlaerl to be Ler tjaac aot befolc aoe II.s7 /YYC �� Y/tam.Wrewl '/%Z o7 (•1Mnld.n!-.lY,wlloslu. _ 7,..-'_ Ic royal 1� r�'/� /+Ynw..e r...,,.e.,� wrni.� � s�[c..•` "`/uttam.. a+ei7l�r. d i+s, avi�.OtLwreslM �C, MVL A�(Yt70K'Q hDYRpgY�p(Oled cell rim[ t �PRef.11 ��a /W�esb tr �r1 a ,.Y .tNJn P- l01 4UL-27-97' 07:50 PCORP.REFERRED i REALTY508 6$6+1413 -•''"' f- P. ea h . 8K 4713 PG 322 ,,.. "• An -improved u.a a(UM is Nosh At+dovor, Eua , IA,NW cacti be ng '►awn u 12.0 aaq oe t cacidod ?LAN 'D st a .. - pha OF Lti1. NoRi tv�� 11' � Noattl N.vovFA Plea ebYHSIR£E?7RUSi: Sak:1' :0':Dur S/1196, I� l�+e Dcroc( allarsd oonveyd IKcwsda a+ore paniaJ-ly dexn)-A u fotkwc •. Ii �\ �H u poias.fat a aooc wIl «v _w, Bward Stmt, dtcnc a ,p 5ai 11 C las wed EU--j 4M oo Q 13.42 fee, (Aen (7� dxace ProcfcdiisY Saaborb ooa b„ p+occedmg Wasa{y thfa lwdrod (150) ooa buhdred lixcy (US) fa{ 6"4efay � th-- pfpcoulDs Weaefly fiat ar, bvr+drta-enc O 1/1 1 (: (166.01) Io as itao ..ah a cad OO sic and 11/1003 (66.11) faa ' tau prpotcrlmfi Wctccrly �e lusgrcd �_ amt Jtd + X•all ter p a` Narsl cfy Mro 161caad 451100 (254.15) 6,t d==Lu4md as ay - I !i' &W trd ovloo (704-OS) feet fo as iatr+sec�oo wrb ay adoc - .1 8 iA' t?.eoco ocerd6-4 bsadrtd "Id 11/100 (400.11) faa P o 3' °�' �+1 +n �r4 stone I c>rne well to a break In uid none wan P rif Eesterly abq the nm:ada of 4Q -'ll ose burdred scvc:ar-r...o - 10 the Po6e cf beertinL ud 191100 TI"Tn'm ley td5.s &A% ttls Tn r is o fuu (,5 a an] c5 hu xtl "ay d-ed q -2 a(14t t>ur r�:c iia !s j to a ocure trd d e'it'u tivs ivtrs m<nr t C tfw she hu ba Lmdriry to a act Ir t l BciD DcceabQ g•the — 7=�Jo eomeyc4 fo the Gfan,o.-by decd of Georgc R B ulc• 1:., dared +mn%cd RNonb Eucz Rcprrs' OfDccds in goof 1479• P.�c 265. dUL..27=97 07:58 PM. CORP. PREFERRED REALTY :f a .. ; , 686±1?4�Y3• BK 4713 PG 323 T !Kpbsc <w� - o'^�+aof1 °fb--m It7K 7�+G .aMamolaccrlCatbr.4s. {0aaaridaw;,aPai4 RotdAa:6. E,=Cm4t7.Nw.�cgi MA01s��,s 601,AW ja , ''' Ooaaf�arysy l�aortllatta fz 0a of Oec Ildtiv (t 1 OQ) - paadsoflaod/"_ +b��sfo'•RafNoribrL .�„i�QUIZCb.0) ai lOil;fi:-�•AM( CO _ttjA Twp oaretPk4it afl.o! Q./1rt rif .e Aad°. � dW°vy 'Oyca $peae- op Dia '° N—b Aadgva. F p ' �l;u.4 -PISA-( .Q 9/11r➢6, A:y 1 by t m B� � ��' Aidac : Sc4, I � Q �. Rc�a b496.1bI1%1111346'. du " t7m K°• /d o0 7 . swd Pct,,' �"d.d w74 cb` Roj Esuz mora J7 l+lujy. b -.Jed .ad �tiarbac ac i si0ac b�.o � �. �" %Wb' dao ofs.a)c, "x`14 °f Hndtocd Sial aria Kau 24 57 w::o:72 �y alms --!, pd R;dt°'1ad .L a en .v;-• V euryicle� S°'iN2rie�'gJ31Sa2�m. Dl�th r—agbya-4 �� i�0°s a " w mi lma ao„ a m u abo.n to u;4 pia L *r} e LG y'. aid aA °C 7 oCHama. S !S' M P�_. tbcla °°°rm'°n�'�Io�lnia cow F_ .400.12 fret to a Para u 41009 Lou $, a 3. Z apd b . paacu s5o, a m and « �� of 8adca S� r- .�� aM L N 1t • 502t -E 45t pp (�Psc 'raj Wa Pte: nby L-bd ccocc rbc wcssvlr'_.�_1-cafs w,D �',P� Oo offar 1.1441• Zt 43- W. 7s 1�16,rho a Q aeai6�rd• "W C Rand 4 �OIM Ca aavao by and �°" °. safE pi.y cocoa y` Rw-n3n0e.ob00'u,o4 °°�Dticar. yt is . o0cciw 76�pyau 1b0.a A-9 219 45 L t. 30aAMOM ..ds�aRid ��tcgadN Allr bow Aad t>r otbep�� ail u idcxd lid dla�i SIL dct ft a KOac +�l+•�ta ;m i P�dy. =a4 rm a 0Q aud Stgi ar Sts 10.1cmGcx;aa � mdan+tc. �ao<lak�' pl+n:@eat�i�la. R-70.pp L--41.21- . aofSc�= o R:dt Road aids Hr rt,;d Stec SOK said s tile, ki461 Rq4 S 7c� 50- v 2 �` °^'odP+•41,— 1140141 by a d i• OP SO' w . f.ec !0 a t10ae bOu00 u ibp„a on t..Q ' r W. f f JUL-27-97 07 50 PM CQRP! PREFERRED REALTY 508+6g6+1413 1 P_ r07 8K 4713 PG 320 i The, laud in North lndovar, ZLsac Coon -_y, Xaaaaclkuactta Doing- - ahovn as R.Kcy1'l yr c Plan of lAn4 antltUu lad: ?LAX OP rD IN MORIA AXDov1M, JUX8.'' evn.d by Llicab4th barks ^j%d vi"ll v. t 6—ChAl% &cols 1•�a0'; D.t.d: Xay 11, 1/941 R.vlsad: Dacasb.r 4, 1994 and Zabry " 74, 1197; Scott L. C11a4, R.PL.S., So Sear Xtadov P�o.d, NOrtb "ovar, Xaaa. Said Plan Sc to b9 recorded 1�416talY prior hereto at XorU Yleax Registry of Dtada .s Plan Tho. aaid&6 -, ,-7 contaln. J7,6a1 square fast, sora or lass, C i ell aecor" to •aid rlan, a 0 PabJoct to all aas. MA, aovarAhta and rtsrrlRlons of record so long at saint ora in fore. and appllcabla. c for grantor's t1t1•. ••• deed .t Donk lylS tap. 1C; i r To the Planning Board"of- the:Town of North Andover: The undersigned, being the applicant as defined under Chapter.41, Section 81-,-L, for -approval of a proposed subdivision shown on -a plan entitled .l� in�� Iaa0 Of �l{u �G�t� �� it'.rS fl,c� 4e' by dated .being land bounded as Iollows: En>r j,, ��'.�Sf,�,� FC,.T " W(,S f tfc, fir' r 4(-d 7r-,3 hereby submits said plan as a DEFINITIVE plan in accordance with the Mules and Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds, Book , Page ; or Certificate of Title No. , Registration Book , page Other: ,).�o �f,�T TE 13''353 k 7 Said plan has(X) has not( ) evolved from a preliminary plan submitted to the Board of /,,; 19 `�� and approved (with modifications) (X) disapproved ( on 19, The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by;the Board's Rules and Regulations. The undersigned hereby further covenants and agrees with the Town of North Andover, upon approval of said DEFINITIVE plan by the Board: 1. To install utilities in accordance with the rules and regulations of the Plan aLng Board, the Public Works Department, the Highway +Surveyor, the Board of Health, and. all general as well as zoning by—laws of said Town, as are applicable to the installation of utilities within the Limits of ways and streets; 2. To complete and construct the streets or ways and other improvements shown thereon in accordance with Sections Iv and V of the Rules and Regulations of the Planning Board and the approved DEFINITIVE plan, profiles and cross sections of the same. Said plan, profiles, Cross -sections and construction specifications are specifically, by reference, incorporated herein and made a part of this application. This application and the covenants and agree— ments herein shall be binding upon all heirs, executors, administrators, successors, grantees of the whole or part of said land, and assigns of the undersigned; and 3. 'To complete the aforesaid installations and construction within two�(2) years from the date hereof. Received by Town_Clerk: Date: Time:, Signature: of Address ; or Notice to APPLICANT/TOWN CLIIRK and Certification of Action ,of Planning Board on Defiative Subdivision Plan entitled: By: dated 19 The North Andover Planidng Board has voted to APPROVE said plan, subject to the following conditions: 1. That the record owriers of the subject land forthwith execute and record a "covenant running with the land", or otherwise provide security -for the con— struction of ways -and, the installation of municipal services within said sub- division, all as provided by G.L. c. 41, S. al—U. 2. That all such.construct ion and installations shall in all respects conform to•the governing rules and regulations of this hoard. 3. 'That, as required by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots No. as shown on said Plan without the prior consent of said Board of Health. 4. Other conditions: I In the event that no appealishall have been taken from said approval witthi.n twenty days from this. date, the North Andover Planning Board will "forthwith thereafter endorse its formal approval upon said pian. The North Andover Planning Board has DISAPPROVED said plan, for the following reasons: Date: t NORTH ANDOVER PLANNING BOARD By: ' Notice to AFPLICAiW/TOWN tag and Certification of Acte Bid on Definitive Subdivisibu Plan entitled: Settlers dO CE BRADaft" ' ORTK ANDOVER By: Christiansen & Sergi 1r, .= dated Set er 1.996 The North Andover Planning Board has voted to-APPRQVg said plan, subject to the follow ng conditions- 1- 1. That the record owners of the subject land forthwith execute and record a "covenant nmaing with the land°, or otherwise provide security for the con— `. struction of ways and the installation of municipal services within said sb'a division, all as provided by G.L. c. 41. S. 81—U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of this Board. 3. That, as requires by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots No. as shown on said Plan without the prior consent of said Board of Health. 4- Other conditions: -_ f PLAINTIFFS See attached conditions EXHIBIT Q A ASST: ' A True Cc_ y 3 elapsed o caruf Y fh22 h�enffrom date Ofy (20) days i' Z.ccxsr�: i'r::lzout fl -M9 of dedSlO(l ;:i<� ` ov—n czx:S tiU �' o. Jct A Bradst aw Torun C:erkc In the event that no appeal shall -have been taken from said approval within tKenty d ys from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. The North Andover Plarning Board has DISAPPROVED said plan, for -the. following reasons: Joseph V1 Mahoney ; Settlers Ridge Definitive Sa , 3 ' Conditional Approval.bdrvision i . The Planning Board herein APPROVES the Definitive Subdivision Approval for an eleven Planned Residential Development (PRD) known as'SetttersRrd e. This (11) lot Thomas D. Zahoruiko, 18S ITicko I3'ill g application was submitted by The area affected co �' Road, North Andover, MA 01845 on September 19, 1996. ntains approximately 12.5 acres of land in a Residential - 2 Zone off of Bradford I Street i The Planning Board makes the followingfindin ` the Subdivision of Land: required by the and Regulations Governing " A-• The Definitive Plan dated Sept. 11, 1996, 9/25/96, 10131/96, 1/13/96 includes all of the information indicated in Section 3 of the Rules and R submission of plans. egulations concerning the procedure for the B The Definitive Plan adheres to all of the design standards as indicated in and Regulations. Section 7 of the Rules C- The Definitive Plan is in Law. conformance with the purpose and. intent of the Subdivision Control D. The Definitive Plan complies departments with all of the review comments submitted by various town in order to comply with state law, town by-laws and insure the public healthy safety,and welfare of the town. TAY, the Planning Board finds that the Definitive Subdivision complies with Town requirements so long as the following conditions are complied with Bylaw L Prior to endorsement of the plans by the Planning Board the applicant shall adhere to the following: a) The name "Settlers Ridge Road" most be approved by the E911 Coordinator. b) The following items must be addressed per the: outside consultant: !� A detail for slope stabilization will be added prior to endorsement of the -plan. The applicant is responsible to intercept any and all breakout in the slope. u) The detention basin dikes should be designed consistent with guidelines in ASCE Manuals and reports of Engineering. Practice No. 77 . `Desio n and Construction of urban Stormwater Management Systems." Compliance with the design guidelines should be attained on site. The length of the rip rap must be clearly identified on the *Plans. A be provided over the e3 p grate should . ghteen inch culvert as a safety precaution. iv) The outlet structure should be provided with a trash grate to prevent clogging The trash gate should be sloped and that opening.be specified to minim,' 3 Clogging othe trash grate and -the structure � of h inlets. . c) The final roadway design and drainagernust be submitted to the outside consultant,; the Planning Department -id to D.P.W. for final review and approval. d) A covenant (FORM 1) securing all lots within the subdivision for the construction of ways and municipal services must be submitted: to; the Planning Board. Said lots maybe released from the covenant upon posting of security as requested in Condition 3(e). e) Executed right of way dedication easements for the proposed roadwayshall provided to the Planning Office at.the licant's be app expense. The applicant must submit to the Town Planner a FORM Al for all utilities and easements placed on the subdivision. The Board will sign the document and it must be recorded at the Essex North Registry of Deeds. g) All application fees must be paid in full and verified by the Town Planner. h) The applicant mustmeet with the Town Planner in order to ensure that the plans conform with the Board's decision. A full set of final plans reflecting the changes outlined above, must be submitted to the Town Planner for review endorsement by the Planning Board, within ninety (90) days of filing the decision with the Town Clerk. 1) The Subdivision and PRD Decision for this project must appear on the mY lars. J) All documents shall be prepared at the expense of thea lican t� as req Planning Board Rules and Regulations Governing the Subdivision ofLand.uired by the 2. Prior to any work on site: ; a) Three (3) complete copies of the endorsers and recorded plans and two (2) certified copies of the recorded subdivision approval, Covenant (FORM 1) Right of Wa easements, and FORM M must be submitted to the Town Planner as proof of filing. y b) All erosion control measures must be in place and reviewed by the Town Planner. Prior to any lots being released from the statutory covenants: i � �) The applicant must comply with the Phased Development Bylaw and the Growth Management Bylaw. b) A complete set of signed plans, a copy of the Planning Board decision, and a copy of the Conservation Commission Order of Conditions must be on file at the Division of Public Works prior to issuance of permits for connections to utilities. The subdivision construction and installation shall in all.respects conform to the rules and regulations and specifications of the Division of Public Worsts. c) All site erosion control measures required to protect off site properties from the effects •_ y ` Of work on the lot proposed to be released must be in`place The Town Planning Stam i shall determine whether the applicant has satisfied the 1equirements of this provision Prior to* each lot release and shall report to the Planning Board prior to a vote to release said lot. d); The applicant must submit a lot release FORM, to the Planning Board for signature. i. e) " A Performance Security in an amount to be ddtermined by the Planning Board, upon the recommendation of the Department -of Public Works; shall be posted to ensure completion of the work in accordance with the Plans approved as part of this conditional approval. The bond must be in the form of a check made out to the Town of North Andover. This check will then be placed in an interest bearing escrow account held by the Town. Items covered by the Bond may include, but shall not be limited to: i) as -built -drawings i) sewers and utilities = roadway construction and maintenance iv) lot and site erosion control v) site screening and street trees vi) drainage facilities vii) site restoration viii) . final site cleanup 4. Prior to 'a FORM U verification for an individual lot, the following information is required b the Planning Department: q y. a) The applicant must submit a certified copy of the recorded FORM J referred to in Condition 3(d) above, was filed with the Registry of Deeds office. b) A plot plan for the lot in question must be submitted, which includes all of the following: i) location of the structure, u) location of the driveways, location of the septic systems if applicable, iv) location of all water and sewer lines, v) location of wetlands and any site improvements required under a NACC order of condition, vi) any grading called for on the lot, vi) all required zoning setbacks, vii) location of any drainage, utility and other easements. c) All appropriate erosion control measures for the lot shall be in place. Final determination of appropriate measures shall be made by the Plari fmg Board or Staff d) All catch basins shall be protected and maintained with hay bales to prevent siltation into the drain lines during construction.. 3 e) The lot in question shall be staked in tl4e field. The location of any major departures from the plan must be shown The Town Planner shall verify` this information fl Lot numbers, visible from the roadie zys must be posted on all lots. 5. Prior'to a Certificate of Occupancy being requested for an individual lot, the following shall be -required: :. a) The roadway must be constructed to at least binder coat of pavement to properly access the lot in question Prior to construction of the binder coat, the applicant shall ensure that all required eq inspection and testing of water, sewer, and drainage facilities has been completed. The applicant must submit to the Town Planner an interim as - built, certified by a professional engineer, verifying that all utilities have been installed in accordance with the plans and profile sheet. b) All necessary permits and approvals for the lotin.question shall be obtained from the j 'North Andover Board of Health and Conservation Corrunission- c) Permanent house numbers must be posted on dwellings and be visible from the road. d) All slopes on the lot in question shall be stabilized, as solely determined by the Planning Department in regards to erosion, water run off, and safety. e) The lot must be raked, loamed and seeded, sodded, or mulched if the weather does not permit seeding or sodding. 1) There shall be no driveways placed where stone bound monuments and/or catch basins are to be set. It shall be the developer's responsibility to assure the proper placement of the driveways regardless of whetherindividual lots are sold. The Planning Board requires any driveway to be moved at the owners expense if such driveway is at a catch basin or stone bound position Cr g) The Planning Board reserves the right to review the site after construction is complete and require additional site screening as it deems necessary and reasonable. 6. Prior to the final release of security retained for the site by the Town, the following shall be completed by the applicant: a) A stop sign must be placed at end of Settlers Ridge Road where it intersects with Bradford Street. b) An as -built plan and profile of the site shall be submitted for review and approval. c) The applicant shall petition Town Meeting for public acceptance of the street. Prior to submitting a warrant for such petition'the applicant shall review the subdivision and all remaining work with the Town Planner and Department of Public Works. The Planning Board shall hold a portion of the subdivision bond. for continued maintenance and operations until such time as -Town Meeting has accepted '(or rejected in favor of private ownership) the roadways. It shall be the developer's responsibility to insure that 4 all: proper easements have been recorded at the Registry of Deeds.. d)" Tete Town Planner shall ensure that all Planning, Conservation Commission, Board of Health and Division of Public Works requireme-Its are satisfied and that construction was in strict compliance with all approved plans and conditions. 7. The sewer: extension for the subdivision will be subject to the policies:of the Division of Public Warks regarding the rnitigation ofgroundwater infiltration int6the existing sewers. 8. _ The Town Planner will review any signs utilized for this -project The applicant must obtain a sign Permit as required by Section 6 of the -Bylaw. The Planning Board shall approve any entrance structures- Any lighting used for the entrance signs must be removed prior to acceptance of the subdivision by the Town_ 9. The applicant shall adhere to the following requirements of the Fire Department: a) Open burning is allowed by permit only after consultation with;the Fire Department. b) Underground fuel storage will be allowed in conformance with the Town Bylaws and State Statute and only with the review and approval of the Fare Department and Conservation Commission_ 10. There shall'be no burying or dumping of construction material on site. 11. The location of any stump dumps on site must be pre -approved by the Planning Board. 12. The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. 13. Gas, Telephone, Cable, and Electric utilities shall be installed as specified by the respective utility companies. 14. Any action by a Town Board, Commission, or Department ;which requires changes in the roadway alignment, placement of any easements or utilities, drainage facilities, grading or no cut lines, may be subject to modification by the Planning Board.; 15. The following:waivers from the Rules and Regulations Governing the Subdivision of Land, North Andover, Massachusetts, revised February, 1989 have _been granted by the Planning Board: ; a) Section 7(Ai(4)(a) Dead end streets: The roadway is approximately 1030 feet long, . 430 feet longer than allowed under the suhdivisioti regulations. This waiver is granted due to the fact that the roadway extends to the property line to accommodate potential future development of the site. b) These waivers have been granted in an. effort to minimize the amount of cutting and flung required on site thereby decreasing the amount of erosion and siltation on site 16. _The utilities must be installed and the streets or . ways constructed to binder coat b �n q� two years from the date permit y . � Y p granted). If the utilities are not installed, the 5 streets or ways are not constructed to binder coat and an extenson has not beeri+granted by the Planning Board by the above referenced date, deemed to Have lapsed. this definitive _subdivision approval will be 17. This Definitive Subdivision Plan approval is based upon the approval of a Special Permit. The Special Petmit and -Definitive Subdivision approvals are both based upon the following information which.are incorporated into this decision by reference: a) Report Titled: Drainage Report - Settlers Ridge North Andover, Massachusetts Dated: September 4, 1996 Prepared for: Thomas D. Zahonuko 185 Hickory Ifill Road North Andover, Massachusetts Prepared by: Christiansen & Sergi 160 Suinmer Street Haverhill, MA 01830 b) Plan Titled.- Definitive Subdivision Plan "Settlers Ridge" Located in North Andover, MASS Record Owner- Elizabeth Barker 201.Bradford Street North Andover, MA Applicant- Thomas D. Zahonriko 185 Hickory FM Road North Andover, MA Prepared by,: Christiansen & Sergi 160 Summer Street Haverluil, MA 01830 Dated: Sept. 11, 1996, rev. 9/25/96, 10/31/96, 11/13/96 Sheets: 1 through 7 cc. Co nservatiop Administrator. Director of Public Works Health Administrator Building Inspector Police Chief Fire Chief Assessor Applicant Engineer File Salem Forest IV - subdivision TI g.Buildings lawfully these provisions. 4.2 Phased Development Bylaw existing prior to the adoption of 1. Building permits for the construction of single family or two family dwellings in a subdivision or on contiguous Form A lots held in common or related ownership on the effective date of the provision shall not be granted at a rate per annum greater than -as permitted by the following schedule: No. of Lots Min. Yrs of Max. Lots Development Developed/Yr 1-6 1 All 7-20 2 50% of total 21-34 3 33% of total 35-50 4 25% of total 51-75 5 20% of total 76-125 6 16.7% of total 126+ 7 14.3& of total 2. Lots can be sold any time for the construction of dwellings in the designated future years. However, any lots covered by this provision' hereafter sold or otherwise transferred to another owner, shall include in the deed, the earliest date of which construction may be commenced in accordance with these provisions. 3. If there is a proposed subdivision with any lots that are within 500 feet of lots in another subdivision held by common or related ownership, then both subdivisions shall be construed to be a single subdivision for the purposes of this Bylaw. 4. Lot lines for Form A lots shall be defined when the Form A lots have been approved by the Planning Board. Subsequent changes in the shape or ownership of lots shall not render the provisions of this Bylaw void. 5. The anniversary date of each subdivision or contiguous Form A lots under this provision shall be no earlier than the date on which all required approvals required for a building permit have been obtained (e.g. Planning Board approval of Definitive Plan; Board of Health approval, Conservation Commission approval, etc) . .e PLAINTIFF'S EXHIBIT C. 1 � 6. Notwithstanding any prior statements to the contrary,' the maximum number of building permits to be issued and outstanding at any time for lots in each subdivision and contiguous Form A lots covered- by this provision shall be limited to twice the allowed annual maximum permitted for that project under -the provisions of this Bylaw. Allowed building permits in succeeding years shall be limited to less than the permitted maximum, if necessary, to insure that this cap is not exceeded. 7. The Planning Board, in conjunction with the Building Inspector, shall be responsible for administering this section of the Bylaw. Accordingly, the Planning Board shall adopt and publish reasonable regulations for carrying out its duties under this section. In particular, these regulations should address the conditions and processes for authorizing building permits on an annual basis. 8. The invalidity of one or more provision or clauses of this section shall not invalidate or impair the section as a whole or any other part thereof. (1986/13) 61 0 ttie side boundary lines of the same building so that it is out sight from the street. of 8.7 GROWTH MANAGEMENT 1. INTENT AND PURPOSE PLA,MU F'S EXHIBIT —4 --- This Section 8.7 is adopted pursuant to the provisions of M.G.L., c. 40A and the Home Rule Amendment, Article 89 of the Massachusetts Constitution, for the following purposes: a) to ensure -that growth occurs in. an orderly and planned manner, at a rate that can be supported by Town services, while avoiding large year to year variations in the development rate; b) to allow the Town time to update its Master Plan and to provide the Town with time to study the effect of growth on the municipality's infrastructure, character and municipal services; c) to allow the Town time to study, plan for, and provide an additional source of water; 'd) to relate the timing of residential development to the Town's ability to provide adequate public safety, schools, roads, municipal infrastructure, and human services at the level of quality which citizens expect, and within the Town's ability to pay under the financial limitations of Proposition 2 1/2. e) to preserve and enhance the exiting community character and value of property; and f) to allow departures from the strict application of the growth rate measures herein in order to encourage certain types of residential growth which address the housing needs of specific population groups or which provide significant reductions in the ultimate residential density of the Town. 2. APPLICABILITY, EFFECT AND DEFINITIONS a) No building permit shall be issued for a new dwelling unit between May 6,1996 and July 1,1996 unless exempted by Section 8.7(6) herein. b) Beginning on July 1,1996 , no building dwelling unit or units shall be issued unless inr a new accordance with the regulations of this Section 8.7 or 116 19 unless exempted by Section 8.7(6) herein. C) The provisions of this Section 8.7 shall expire on July 1, 2001; however, by a vote of Town Meeting before said date, the provisions of this Section 8.7 may be extended for an additional five years in order to continue municipal comprehensive planning studies necessary to promote orderly growth. In the event such action is taken by Town Meeting prior to July 1, 2001 these provisions shall not be construed to have lapsed on such date. d) For the purposes of this Section. 8.7 , the following terms shall have the following meaning: i) "Growth Rate Limit" shall mean the maximum number of building permits that may be authorized in one Year, which shall be 80 permits. The Growth Rate Limit is based upon analysis of recent average growth rates and an analysis of the Town's current and future ability to provide essential local services such as public safety, schools, public works and human services. Units exempt under section 8.7(6) are included within the calculation of the Growth Rate Limit. ii) "Development" shall mean a single parcel or set of contiguous parcels of land held in common . ownership, regardless of form, at any time on or after the date of adoption of this bylaw, for which one or more building permits will be sought. iii) "Development Schedule" shall mean a schedule authorized by the Planning Board in accordance with Section.8.7(4), which outlines the maximum building permit issuance per development. iv) "Developer" any individual who either as an individual, a beneficial owner of a real estate trust, a partner in a partnership, or an officer or owner of a corporation, requests one or more building permits for the construction of new dwelling units. V) "Year" shall mean the period beginning July 1 and ending June 30. 3. PLANNED GROWTH RATE a) The Growth Rate Limit shall be based on a target growth 117 • 4. rate of 80 dwelling units per Year. In - however, shall the number of nonexempt building case, issued be reduced below 60 permits in any one period. permits year b) Whenever the number umber of building permits issued for new g units exceeds the applicable Growth Rate Limit, the Building Inspector shall not issue buildin permits for any additional dwelling unit or units g unless such unit or units are exempt from the provisions of this Section 8.7 under subsection below. 8.7(6) c) Building permits authorized under a Development Schedule, but not issued during set forth in Section 8,7 the scheduled period ( computing the applicable Growth lRate tLimit. B itd in ing permits issued, but subsequently abandoned under the provisions of the State Building Code, shall not be counted in computing the applicable Growth Rate Limit. DEVELOPMENT SCHEDULING a) This Section 8.7(4) shall apply of development which would rresultoinhtheocreationllowing tofeS new dwelling units; (a) definitive subdivision plans, (b) plans subject to M.G.L. Special permits. c-41, s.81P (ANR); (c) b) In addition to the types of development described in paragraph 8.7(4)(a), the Planning Board is authorized, upon request from the Developer, to approve development schedule for any other building lot or dwelling unit, specifying the month and year such lot/unit shall be eligible for a buildings which g permit. c) Dwelling units shall be considered as t of a single development, for purposes of developmentrscheduling, i located on either a single g, if contiguous parcels of land held eb or one set of common ownership, regardless of form,Dateany t in after the date of adoption of this bylaw. y time on or d) Where consistent with the applicable Grow th building permits for the construction of newRate Limit, residential units in types of.development set forth in Section 8.7(4)(a), shall be authorized only in accordance with the following table: 118 91 Maximum Number of Number of New dwelling building permits for units in development new dwelling units per Year ; 1-5' (Total in Development) 5 i 6-10 !, 6: 11-20 7 21-30 j 8 � 31-40 }' 9 b 41-54 10 55-80 More than 80 12:5% of Total in Development that a Development Schedule has been Notwithstanding Board shall not be approved and recorded, the Planning required to authorize the isfutheeissuance softsachapermits number of building permits i ng the Growth Rate Limit. Adoption o would result in exceedi a Development Schedule shall tCOr permits. Theplanning Board commitment to issue building Development Schedule which phases shall not establish any Develop period. development for longer than a 10 year 5. PROCEDURES FOR DEVELOPMENT SCHEDULES ermits for new dwelling units shall be a) No building P ment Schedule has been recorded issued until the Develop ment Schedule has and a certified copy of the Develop been filed with the Planning Board. lot or unit in the types of ect to development the deed lopment scheduling, b) Upon transfer of any development subj ment Schedule and state the shall reference the Develop be commenced in earliest date on whiccofothmsybylaw. accordance with the provisions In order to be equitable to all Developers no more than C) ermits under 20% of the total available bur, willpbe issued to any section 8.7(3)(a), in any Year, 119 one Developer. d) Procedures for development schedules shall be in accordance with rules and regulations, consistent with the provisions of this bylaw, to be adopted by the Planning -Board on or before July 1, 1996. 6. EXEMPTIONS The following developments are specifically exempt from the Growth Rate Limit and Development Scheduling provisions of this by-law. The issuance of building permits for these Developments shall count toward the Growth Rate Limit of 80 permits in a Year. Except ,that permits issued under subsection (a) below shall not count towards the Growth Rate Limit of 80 permits in a Year. a) An application for a building permit for the enlargement, restoration, or reconstruction of a dwelling in existence as of the effective date of this by-law, provided that no additional residential unit is created. b) All lots created prior to May 6, 1996 are exempt from the provisions of this Section 8.7 of the Zoning Bylaw. c) Dwelling units for low and/or moderate income families or individuals, where all of the following conditions are met: i) Occupancy of the units is restricted to households qualifying under Local Initiative Program as administered by the Executive Office of Communities and.Development; ii) The affordable units are subject to a properly executed and recorded deed restriction running with the land which shall limit the succeeding resale price -to an increase of 10 percent, plus any increase in the consumer price index, plus the cost of any improvements certified by the Building Inspector. d) Dwelling units for senior residents, where occupancy of the units is restricted to senior persons through a properly executed and recorded deed restriction running with the land. For purposes of this Section "senior" shall mean persons over the age of 55. e) Development projects which voluntarily agree to a 120 minimum 40% permanent reduction in density,(buildable lots), below the density,(buildable lots), permitted under zoning and feasible given the environmental conditions of the tract, with the surplus land equal to atleast ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection. f) Any tract of land existing and not held by a Developer in common ownership with an adjacent parcel on the effective date of this Section 8.7 shall receive a one-time exemption from the Planned Growth Rate and ,Development Scheduling provisions for the purpose of constructing one single family dwelling unit on the parcel. g) If at the time a Development is ready for building permits,(i.e. all other permits from all other boards and commissions have been received and the project is in compliance with those permits), and the Development Schedule does not accommodate issuing a building permit in that Year, one building permit will be issued per Year per Development until such time as the Development Schedule accommodates issuing building permits. 7. ZONING CHANGE PROTECTION a) Any protection against zoning changes provided by M.G.L. c. 40A, s.6, shall be extended to the earliest date on which the final unit in the development could be authorized under this bylaw. 8. SEVERABILITY a) The provisions of this by-law are hereby declared severable and if any provision shall be held invalid or unconstitutional, it shall not be construed to affect the validity or constitutionality of any of the remaining provisions of this by-law. (Section 8.7 created and approved Annual Town Meeting, May 6, 1996) Section 8.8 Adult Use Zone 121 BOARD OFSELECTMEN w 120 MAIN S1TZLF-l' NOK I I I ANDOVEJZ, fv1ASSACi IUSL:TTS 01845 John R. Lecnuut, Jr., Chairman David M. Torrisi, Clerk ul' the Bual d 01 'U 1, Telephone (978) 688.9510 . William B. Uuliy, Jr. �' FAX (978) 688-9556 Kevin P. Foley Donald B. Stewall September 9, 1997 Mr. William Sullivan, Chairman North Anduver Zonin; Board ol'Appeals North Andover. MA. 01845 Dear Mr. Sullivan: It has come to the attention of the Built d of Selecunen that you have received an appeal from a decision of the Building Commissioner li*onl Mr. "I'humas Zahuunko. As we understand it, Mr. Zahouriko has been denied ,a building permit(s) under the zoning by-law by virtue of an interpretation of the Zoning By-law which in essence applies the requirements of'butl, the Growth Mana;ement By-law adopted by the Annual Town Meeting in 1996 and the older Phased Development By-law. The Board of Selectmen, which was t both by-laws would would apply to a she sponsor and proponent ul'the by-law, never intended that ingle subdivisiun. The Board expected that the new by-law would apply to all new subdivision lots created alier July I, 1996 and that the sole PurpOSe for leaving the Phased Development By law on the books was to continue to have some control over so-called grandfathered lots created prior to July I, 1996. We note that prior to sponsorship of the new Growth Management Bylaw by the Board of Selectmen, the older Phased Develupmen, Bylaw ,vas not enforced and was routinely waived by the "town. To now apply two contlictin� sets of rules and development schedules from two very different by-laws creates confusion, is unfair and not the intent of the town meeti law, ng, which enacted the by We recommend that the Board ol'Appeals review [lie facts in Mr. Zahouriko's appeal arid, if you determine that the lots for which buiWin; permits are suu;ht were in fact created atter July 1, 1996, rule Mr. William Sullivan, Chairman Zoning Board o(Appeals September 9, 1997 Pave ?. that only Ilse provisions ol•Growth Mana,emcitt 13 1"%' cction 7) apply. If we can . lurther inlormation or clariliratiun phase let us ki v. provide any • Wry trul our e man, , Ijairman North ver Board of Selectmen CC: 'D. Robert Nicetta, Zoning f_nvurccntent 01,l - icer William Scott, Director, C'ummunity Drvelupment & Services Attorney Joel Bard 'Thomas Zahouriko Planning Board R1H:map arale Virgil Sanchez, III 201 Barker St. James & Priscilla Brown No. Andover, MA 01845 266 Barker St. No. Andover, MA 01845 Elizabeth & Virgil Sanchez Amily Trust cto Philip Spendthrift 201 Bradford St. 278 Barket St. No. Andover, MA 01845 North Andover, MA 01845 Salvatore Marchese Charles & Ruth Kolbenson 290 Barker St. 189 Bradford St. No. Andover, MA 10845 No. Andover, MA 01845 John & Laurie Lundquist Angela & Salvatore Marchese 250 Barker St. 189 Bradford St. No. Andover, MA 01845 North Andover, MA 01845 P A F Trust George R. Barker, Jr. 1267 Osgood St. 145 Bradford St. No. Andover, MA 01845 No. Andover, MA 01845 William & Elizabeth Hansen Domenic & Antonia Mangano 324 Bradford St. 103 Bradford St. No. Andover, MA 01845 No. Andover, MA 01845 Joseph J. Scott, Tr Donald & Joan St. Jean 12 Rogers Rd. 284 Bradford St. Haverhill MA 01830 North Andover, MA 01845 Laurence S. Dyer Robert & Kimberly Macinnis 3 Nelendy Rd. 270 Bradford St. Hudson, N.H. 03051 No. Andover, MA 01845 George R. Barker, Jr. Shaun & Debra Cailagy 1267 Osgood St. 260 Bradford St. No. Andover, MA 01845 No. Andover, MA 01845 Pratip & Swati Mukhe jee Kenneth & Mary Terroux 246 Bradford St. 254 Barker St. North Andover, MA 01845 No. Andover, MA 01845 k 7-/1 A a of v a � Mohammed & Shahneaz Alai-Tafti 11 Glenmere Lane Commack, N.Y. 11725 Jeanne Camey 222 Bradford St. No. Andover, MA 01845 Patricia & David Ghikas 186 Bradford St. No. Andover, MA 01845 �mes Sawyer, or James Foley 174 Bradford St. North Andover, MA 01845 Steven & Anne Daly 162 Bradford St. No. Andover, MA 01845 Jay & Marie Sousa 150 Bradford St. No. Andover, MA 01845 George R. Barker, Jr. 1267 Osgood St. North Andover, MA 01845