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Home My WebLink AboutMiscellaneous - 300 CHESTNUT STREET 4/30/2018 (6) } f 4-000WO ooh % F2• S 7 / tl a/ Ll V i .I Lenal Notice `TOWN OPF .. NORtH ANDOVER-'" BOARIJ OF APPEALS NOTICE 40RT#1 O`t�eeD ,^,tiQ O A ♦ i �qeD ...w '�Arte` 9SSACHUS� October 24,.19B3 Notice is hereby given that the- Board of Appeals will give a hearing at the Town Building, North Andover. on Monday evening the- 14th day of November. 1983, at 7:30 p.m. . to all parties interested in the ap- peal of JOHN E. CARTER AND RAYMOND B.AGLER requesting a special Permit under..Section, 9,Paragraphs 9.- and 9.2 of the Zoning By Law so as to permit„ the applicants to use the.existing-:' .140 foot Communication tower and the proposed utility building for electronic communications equipment, antennas,- -and dishes,,on premises located at I 300 Chestnut Street and known ? as"Mills Hill". By Order of the Board of Ap- peals. Frank Serio.Jr. ; Chairman i Publish N.A. Citizen: Oct. 27' and Nov.3, 1983 025-604 f I O, AORTM 1...0 . O O� o i• t• 4... A i ► •ono 4",�j SA IMUS TOWN OF NORTH ANDOVER MASSACHUSETTS 6 BOARD OF APPEALS October 24 , 1983 Notice is hereby given that the Board of Appeals will give a hearing at the Town Building , North Andover, on Monday evening, the 14th day of November , 1983 , at 7 : 30 p .m . to all .parties interested in the appeal of JOHN E . CARTER AND RAYMOND B . AGLER requesting, a Special Permit under Section 9, Paragraphs 9 . 1 and 9. 2 of the Zoning By Law so as to permit the applicants to use the existing 140 foot communication tower and the proposed utility building for electronic communications equipment, antennas , and dishes , on premises located at 300 Chestnut Street and known as "Mills Hill " . By Order of the Board of Appeals By : Trank Serio, Jr . , Chairman Publish : North Andover Citizen : October 27 and November 3, 1983 Send bill to : John E. Carter 300 Chestnut St . North Andover , Mass . 01845 1� �1 Any appeal' eal shall be ed �' ;• 0 aoRT`h• ,til within J20} days after the ,,,,,,L," � date of filing of this Notice leas , in the Office of the Town SOV 49 P `33 ciics9e,1' Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION Date . . . . .November 23 , 1983 Petition No.. . . . . 5. . '8.3. . . . ... . . . . Date of Hearin N o v e m b e r 1.4., . .l 9 8 3 Petition of . . . ,JOHNCARTER AND RAYMOND AGLER . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land off Premises age 300 Chestnut Street , known as "Mills Hill " Referring to the above petition for axWdUt1WPfM VW. .5 p e,0A a.l Pe r m i t under Section '9 , Par . 9 . 1 and 9. 2 of the Zoning By Law to allow the . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . �a%Rj cca jto use the existing 140 foot communication tower and pro- posed utility bu,i.lding for electronic communications equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . After a public-hearing-given:on-the above date, the Board of.Appeals voted.-to ._..DE,NY;--. ; the:— .5 p e.c i a.l . .P e rm i . . . . . . ... ... . . . . . wxdx horebyx xuthmize xthg xDumkvxlmpctbv xtbxigkb xax- - )Pje=k ft . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . �amcOh��stnwctiorn etx��atvex�cork�cba��dc�� 1�c��3itYo3��: - Signed F r.a.n k, Ser.i Q.,. .O r., . .Q b aj rrn.a 9.... . . . . . . Ri.c.ha.r.d. J. . T.r.ep.ani.er.,. .E5.q ..,. .Cl.erk Wi .1.1i a.m .-J. . ... . . . . . . . . . . Wal.ter_ .F,.. .5ggle:,..A.sso,cia.te t4em.ber Raymorid. .A . . V..i yenz.i.o.,-.Ass.oc,i.ate Member Board of Appeals Any appeal shall be filed wlthln (20) days after the . . date of filing of this Notice l}v L;.g �� ;,SACM11s t� in the Office of the Tall—1`8 Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS November 23 , 1983 Mr. Daniel Long , Town Clerk John Carter and Raymond Agler Town Office Building Land off 300 Chestnut St . 120 Main Street known as I'lills Hill . North Andover, Mass . 01845 Petition No . 65- ' 83 Dear Mr. Long : The-- Board of Appeals held a public hearing on .Monday evening , November 14 , 1983 upon the application of John Carter and Ray- mond . Agler . The hearing was advertise-d in the North Andover Citizen -on October 27 and November 3, 1983 and all abutters were=-not -f_ied. by -regular .mail . The -following members were ---- present- and -voting : = =Frank - Ser-io , Jr . ; Chairman , Richard J ... _ Trep.ani.e-r , Esq ; Clerk_;--Wil-l-iam-J-.=_Sul_livan - and.-Ass--oci-ate- Member:s--Wal-ter F Sou-1-e and -R-aymo-n-d A . - Vi venzio . The pet.-i tione.rs -seek--a Speci-al- _Permit under Section 9 , Para- gra.phs �9. 1`:and ::9 .2 .o'f _-the Zoning .-=By-:-Law -to allow --the -a-ppl i-cants to use the exi-sting.---140 -foot communication tower—and propo-sed- uti 1 i ty -building for-_electronic comm-uni cations equipment , antennas , :and - dishes on--premises located at land o-ff---300--Chestnut Street known -as Mi 1-1 s Hill . The petitioners testified through counsel that on January 4-,1958 ,: the North Andover- Boa-rd o-f Ap-peals issued a decision gra.nting a variance to permit the erection of a tower to a hei-ght --i-n excess of:that--otherwise permitted -on M-i-1-1s Hill , off- 300--Chestnut Street. The tower was subsequently erected and used cons-i-stent7-y--over the years- in conjunction with the Boston Hill facility . On- Dec-ember - 3 , 1982 , -the - Building Inspector- of North Andover issued a decision An which he - found that -a Spec-i_a.l _Permit :would.-:be -re- quired---t_o allow what . he .=r.-uled to be =a . change • o.r -expans-ion of a ' non=conforming use or structure ; since the use .had changed from researc-h - and development to commercial . John Carter and Raymond Agler Land off 300 Chestnut Street known as Mills Hi lER Petition No . 65- ' 83 Page 2 Nov Z$ +9 PH 183 The Building Inspector 's determination was a response to a letter from Benjamin and Linda Farnum . As a result of the Building Inspector ' s decision , a Special Permit was requested in January of 1983 by Rollins Cablevision , Inc. for permission to use the existing 140 foot communication tower and the proposed utility building fo.r its cable television antennas and dishes , on premises located at land off 300 Chestnut Street known as Mills Hill . Said request, Petition No . 6- ' 83 , was denied by the Board of Appeals . The Board ' s decision to deny the request was appealed by the petitioner in a timely manner , being Super.ior Court Civil Action No . 83-462 . Upon a motion made by Mr. Sullivan an„d seconded by Mr . Vivenzio , the Board voted unanimously to deny the petition because sub- stantially identical - issues were involved in a previous decision by this Board ( Petition No . 6- `83) and this previous petition was denied by this Board and is presently on appeal in the Essex Superior Court (Civil Action No . 83-462) . Sincere-ly , BOARD -OF-APPEALS - - Frank---Seri-o, OARD `OF-APPEALS- `Frank-=Seri=o, _Jr . , Chairman jw i • I OFFICES OF: 'Yown Of 120[`Bain street BUILDING �Ol1TH ANDOVER North Andover CONSERVATION f\t<�ssachusetts 0184-5 HEALTH sy+cHusEt 1)I\'151()N O (508)(i82-648:3 PLANNING PLANNING & CONINIU®IITY DEVELOPMEW KAREN 11.1'. NELSON, 1)1111:(:'1 OR February 11, 1991 MEMORANDUM TO: James P. Gordon, Town Plananer FROM : KAREN NELSON, DIRECTO RE: CARTER ET AL VS. "(ZONING BOARD OF APPEALS MILLS HILL �!f*ifs*i##1F*1E 1f�iF4 rt*#1F�#1E M.i if iF iF iF•If#If)k 1f 1F#Y'Y'1F !! iF 1F#1f 1E ski#9f The attached correspondence and bill from Attorney Joseph Boulanger is for services rendered in regards to the Hills Hill appeal which has been dismissed. The question remains as to whether the Town, in particular the Board of Appeals would like to take any further action against. the uses which are taking place on the property. Mr. Boulanger has suggested that Bob Nicetta, you, me and him sit down and determine if any activity on-site requires further investigation. Let me know your thoughts and I will arrange an appropriate meeting time. c Frank Serio, ZBA Robert Nicetta, Building Inspector JOSEPH E. BOULANGER ATTORNEY AT LAW FEB -- 4 1(-)' 11 CHESTNUT STREET ANDOVER, MASS. 01810 TELEPHONE: (508) 475-6505 `-.% !-,' s• ap~r , February 1, 1991 Ms. Karen Nelson Town of North Andover 120 Main Street No. Andover, MA 01845 RE: Carter et al vs: Soule et al Essex Superior Court Civil Action No. 83-462 Dear Ms. Nelson: I am pleased to report that at long last, the appeal in the above referenced matter has been dismissed. I am enclosing a copy of the Allowance of the Motion as ordered by Judge Brady on January 28, 1991. Since the appeal has been dismissed, the decision of the Board of Appeals has been upheld. Therefore, would you kindly contact me so that we may discuss whether the Town wishes to proceed against the activity taking place on Mills Hill. It may be wise for us to sit down with the Town Manager and Building Inspector to discuss the ramifications of this matter. I am enclosing my statement for services .rendered to date. If you have any questions, please do not hesitate to contact me. Very truly yours, seph E. Boulange JEB/tl Enc. JOSEPH E. BOULANGER ATTORNEY AT LAW . I 1 CHESTNUT STREET ANDOVER, MASS 01810 TELEPHONE: (500) 475-6505 February 1 , 1991 Town of North Andover 120 Main Street No. Andover, MA 01845 STATEMENT OF ACCOUNT RE: Carter et al vs. Soule et al Essex Superior Court Civil #83-462 SERVICES RENDERED: Numerous telephone conferences with Frank Serio; James Gordon; Karen Nelson; Attorney Martin Jacobs (Plaintiffs' Attorney) ; Attorney Kevin Dalton (Plaintiffs' Attorney) ; Research at Superior Court, Salem; Conference at Superior Court in Salem with Court Stenographers; Preparation of Affidavit for Stenographer; Preparation and filing of Motion to Dismiss Appeal. Total hours - 9 .75 @ $75 .00/per hour $731 .25 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. TRIAL COURT SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 83-462 JOHN E. CARTER AND RAYMOND B. AGLER Plaintiffs VS. MOTION TO DISMISS APPEAL �- ,A �7 WALTER F. SOULE ET AL Defendants Now come the Defendants-Appellees in'the above entitled S matter and, pursuant to M. R. App. P. , Rule 10 (c) move that the appeal in this matter be dismissed due to the failure of the Plaintiffs-Appellants to comply with M. R. App. P. , Rule 9 (c) in that they have failed to provide a transcript of the proceeding or any statement certifying that said transcripts have been ordered. In support whereof the Defendants-Appellees state as follows: 1. After trial, judgment was entered in this matter in favor of the Defendants on March 9, 1988. 2. After the Plaintiffs' Motion to Amend the Judgment was denied, the Plaintiffs filed a Notice of Appeal on May 13, 1988. 3. Since that date the Plaintiffs have failed to comply with M. R. App. P. , Rule 9 (c) in that they have failed to provide a transcript of the proceeding or any statement certifying that said transcripts have been ordered. 4. There is attached hereto an Affidavit of Ann Marie Green, one of the court stenographers, which states that .the Plaintiffs have not ordered the transcripts, as f JOSEPH E. BOULAN13ER ATTORNEY AT LAW 11 CHESTNUT STREET ANDOVER, MASS. 01810 TELEPHONE: (617) 475-6505 March 4, 1988 Mr. Frank Serio North Andover Board of Appeals 120 Main Street No. Andover, MA 01845 RE: Carte et al vs: Soule et al Essex Superior Court No. 83-462 Dear Mr. Serio and Members of the Board: I am pleased to report that judgment in favor of the Board of Appeals has been ordered by Judge Peter Brady. The plaintiffs will have thirty (30) days to appeal from the date judgment enters in the Superior Court. I do- not know if any appeal is contemplated. I am enclosing a copy of the decision for your review. Very truly yours, e'er a seE- Boulanger i JEB/tp Enc. r cc: Mr. Paul Sharon Town Manager 120 Main Street No. Andover, MA 01845 (I COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT ESSEX,ss. SUPERIOR COURT NO. 83-462 JOHN E. CARTER, ET AL PLAINTIFFS VS. ~• WALTER F. SOULE, ET AL DEFENDANTS FINDINGS, RULINGS AND ORDER - This matter came on to be heard by me as the result of the two Plaintiffs filing a Complaint seeking the annullment of the defendant's (Board of Appeals of the Town of North Andover) findings and rulings. I have taken two views of the real estate in question, last view being during the month prior to this decision. Certain illnesses have unfortunately delayed these findings, and all delays have not been the fault of the parties, but are due to my illnesses. FINDINGS: The Plaintiffs own land and real estate in North Andover which includes an elevated area called Mills Hill. The Plaintiffs live on real estate adjacent to and abutting the "Mills Hill" lot. This lot contains a residence which the Plaintiffs occupy and was purchased in 1977. The Mills Hill lot was purchased in 1979 by the Plaintiffs to protect their residential lot from anticipated residential construction on this Mills Hill lot and also protect the lot from a sand pit on another lot south of the Mills Hill lot. The immediate area near Mills II Hill is best described as "woody" with sparse residential use and some slight commercial use. �I (2 ) At the highest elevation of the Mills Hill lot, there is a steel tower, 140 feet high. This tower was constructed and owned by Massachusetts Institute of Technology in 1958. The tower was purchased by MITRE CORP. •in 1961. A.-Prior owner of the Mills Hill property had allowed the descr fled tower to be on the property by agreement with M.I.T., and later, with MITRE CORP. All agreements terminated in 1981, �and the Plaintiffs became the sole owner of the tower which remained on Mills Hill. By agreement dated August 31, 1981, the Plaintiffs contracted with ELECTROCUM CORPORATION to allow for the installation of a radio communication system "including, but not limited to, transmitters, receivers, antenna, supports or masts, cable and wiring, and accessories used therewith." The Mills Hill property has been used since August, 1981, according to the agreement. The U.S. government owned the tower in 1972, and it was used for testing of signals. Later, the Plaintiffs entered into an agreement with the Defendant Rollins Cablevision of Massachusetts, Inc_ allowing Rollins to use the Mill Hill tower for its equipment in the process of providing commercial television to potential customers. Rollins Cablevision planned to add three receiving "dishes" at the bottom of the tower as well as a few antenna on the tower itself. This prior described agreement was reached in September, 1982. Shortly thereafter (in December, 1982) , as the result of complaints Mr. and Mrs. Benjamin Parnum, the owners of Boston Hill, another hill in town which contained a tower, l the North Andover building inspector, by letter, issued a i (3.) ruling that Rollins Cablevision use of the Plaintiffs' tower for commercial purposes was a change in use that could not be allowed without a special permit. Rollins wished to use 1 the tower for commercial cable television. Then 'the lessee l Rollins, applied to the Board to reverse the ruling of the f building inspector, or to be granted a special permit. The Board denied the two (2) requests on February 1, 1983. The Board adopted the building inspector's decisions as to the Ifirst application but stated no reasons for the matter of refusing a special permit, perhaps feeling the reasons given in denying the first request were sufficient. It is clear that the Rollin's contemplated business use of the tower was not inconsistant with the past usage of the tower, and it is difficult to see how the contemplated use would place a further burden on the Town. While not necessary to my decision, it is interesting to note that in July, 1982, the Board allowed the application for further antennae and dishes at Boston Hill ( The Farnums) 1 which was essentially the requested use for Mills Hill. It further appears that the Board allowed many requests for relief at Boston Hill after the Mills Hill denials. The tower at Boston ,ii.11 is large and imposing, and s.itz atop a six story I li 1 (4) concrete building,u g, and is quite visable to all those in surroundin areas and Route 114, a major thoroughfare through the Town. The tower at Mills Hill is substantially hidden from the view of its neighbors and the public at large. It should also be noted that per the order of another Judge of this Court, the Board did file a statement of reasons for denying the Special permit. II In denying the Special permit application, the Board found: a. That the continuance or extension of the Special Permit !� would unduly prolong the life of the nonconforming use of the premises. b. Granting the Special Permit would amount to an indefinite continuance of a commercial use in a homogeneous residential district. C. That the non-conforming structure has long since reached the end of its useful life as contemplated under the terms and conditions of the 1957 variance, being national defense oriented, the structure having been erected in 1958. d. That the continuance of the Special Permit or grant {I of a Special Permit would unduly prolong the existence of this non-conforming structure. I (5) e. Granting the Special Permit would amount to an indefinite continuance of a commercial structure in a homogeneous residential district. f. That the existence or increase of the norm-conforming I use with the addition. of three dishes and fourteen antennas and a portable building is more than 25% of the original use as outlined in Section 9.2 (3) . i g. That Section 10.31 (1 a) of the Zoning By Law has not been met since it is a commercial use in an residential area. h. The use as developed will adversely affect the residentia neighborhood, . so Section 10.31 (1 b) has not been met. i. Section 10.31(1 e) is not met because the indefinite continuance of a commercial use in a relatively homogeneous residential district is not a use that is in harmony with the general purpose and intent of the Zoning By Law. RULINGS: An applicant does not have an absolute right to a Special Permit, thus the Board is not compelled to grant a Special lPermit. It has a discretionary power. The decision of the Board can be disturbed only if it is based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary. GULF OIL CORP. V. BOARD OF APPEALS OF FRAMINGHAM, 355 MASS. 275, 277. I rule that the decision of the Board should not be disturbed as it acted within its authority. ZALTMAN V. BOARD OF APPEALS OF STONEHAM, 375 MASS. 482. ORDER: Judgment is to enter for the Defendants. Peter F. Brady, Associate Justice of The Superior Court i ENTERED: March 2, 1988 j) ►i I �I li O�NORTH ' p m 41 . sSgcHug� TOWN OF NORTH ANDOVER MASSACHUSETTS i{ BOARD OF APPEALS August 16, 1990 Joseph E. Boulanger, Attorney at Law 11 Chestnut Street Andover, MA 01810 RE: CArter et al vs Soule et al Mills Hill Essex Superior Court No. 83-462 Dear Attorney Boulanger: The North Andover Board of Appeals held an Executive Session on Tuesday evening, August 14, 1990 in the Selectmen's Meeting Room of the Town Hall in regard to the above subject. After a lengthy discussion, the Board, on a motion made by Mr. Soule and seconded by Mr. Rissin, voted, unanimously, to stand by their original decision. Very truly yours, Frank erio, Chairman BOARD OF APPEALS /awt cc: Town Manager Karen Nelson, Director LAW OFFICES STEVEN A BRODY ONE FANEUIL HALL MARKETPLACE BOSTON, MASSACHUSETTS 02109 MARTIN JACOBS (617) 367-8808 April 20, 1984 Clerk-Magistrate's Office Essex Superior Court 32 Federal Street Salem, MA 01970 Re: (1) John E. Carter, et al vs. Walter F. Soule, et al Civil Action No. 83-462 (2) John E. Carter, et al vs. Frank Serio, Jr., et al Civil AEFicn No. 83-3005 Dear Sir/Madam: Enclosed for filing and docketing in the above-entitled matters please find the following: (a) PLAINTIFFS' MOTION TO CONSOLIDATE the above two referenced cases; (b) PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT in Civil Action No. 83-462; (c) PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT in Civil Action No. 83-3005; (d) AFFIDAVIT OF JOHN E. CARTER, applicable to both cases; and (e) PLAINTIFFS' BRIEF IN SUPPORT OF MOTIONS) FOR SUMMARY JUDGMENT, applicable to both cases. *Kindly mark up all of the above Motions ( (a) ,- (b) and (c) ) for hearing in the Peabody District Court Motion Session on Friday, May 4, 1984 at 9:30 a.m. I have given notice of the marking of these Motions to all of the Defendants in these two cases by mailing copies of this letter and each of the documents (a) through (e) above, first class mail, postage prepaid, to all of the parties at the addresses listed on the page attached hereto. Thank you. Very truly yours, Martin Jacobs, Esq. MJ:mjm Att. I Walter F. Soule Raymond A. Vivenzio 70 Raleigh Tavern Lane 11 Appledore Lane No. Andover, MA 01845 No. Andover, MA 01845 Frank Serio, Jr. Maurice S. Foulds 250 Hillside Road 40 Wentworth Avenue No. Andover, MA 01845 No. Andover, MA 01845 Richard J. Trepanier Rollins Cablevision of 308 Massachusetts Avenue Massachusetts, Inc. No. Andover, MA 01845 c/o Richard G. Asoian, Esq. Asoian & Tully 12 Essex Street Augustine W. Nickerson P.O. Box 31 100 Moody Street Andover, MA 01810 No. Andover, MA 01845 William J. Sullivan Rollins Cablevision of 405 Salem Street Massachusetts, Inc. No. Andover, MSP,. 01845 2710 Piedmont Road P.O.. Box 647 Atlanta, Georgia 3.0301 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION Nos. 83-462 and ) 83-3005 JOHN E. CARTER, et al ) V ) ) WALTER F. SOULE, et al ) PLAINTIFFS' MOTION TO CONSOLIDATE JOHN E. CARTER, et al ) V. ) FRANK SERIO, JR. , et al ) Now come John E. Carter and Raymond B. Agler, being the Plaintiffs in Essex Superior Court Civil Actions numbered 83-462 and 83-3005, and move this Court to consolidate these two actions for all purposes, as they involve common questions of law and fact. Respectfully submitted, April 20, 1984 . . . .. . . . . . . . . . . . . Martin Jacobs, Esquire Law Offices of Steven M. Brody One Faneuil Hall Marketplace Boston, Massachusetts 02109 Telephone: (617) 367-8808 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No. 83-462 JOHN E. CARTER and ) RAYMOND B. AGLER ) PLAINTIFFS' MOTION FOR V. ) SUDLMARY JUDGMENT WALTER F. SOULE, et al ) Now come the Plaintiffs in this G.L. c.40A 917 action and move this Court to grant them summary judgment in this matter, to annul the decision of the North Andover Board of Appeals and to grant the special permit originally sought, all as more fully set forth in PLAINTIFFS' BRIEF IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT filed herewith. Plaintiffs also seek summary judgment for costs and reasonable attorneys' fees against the Defendant members of the North Andover Board of Appeals, as authorized by G.L. c.40A §17, also as more fully set forth in Plaintiffs' Brief filed herewith. Plaintiffs, by their Attorney, April 20, 1984 Martin Jacobs, Esquire Law Offices of Steven M. Brody One Faneuil Hall Marketplace Boston, Massachusetts 02109 Telephone: (617) 367-8808 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No. 83-3005 JOHN E. CARTER and ) RAYMOND B. AGLER ) PLAINTIFFS' MOTION FOR V. ) SUMMARY JUDGMENT FRANK SERIO, JR. , et al ) Now come the Plaintiffs in this G.L. c.40 917 action and move this Court to grant them summary judgment in this matter, to annul the decision of the North Andover Board of Appeals and to grant the special permit originally sought, all as more fully set forth in PLAINTIFFS' BRIEF IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT filed herewith. Plaintiffs also seek summary judgment for costs and reasonable attorneys' fees against the Defendant members of .the North Andover Board of Appeals, as authorized by G.L. c.40A X17, also as more fully set forth in Plaintiffs ' Brief filed herewith. Plaintiffs, by their Attorney, April 20, 1984 Martin Jacobs, Esquire Law Offices of Steven M. Brody One Faneuil Hall Marketplace Boston, Massachusetts 02109 Telephone: (617) 367-8808 I COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION JOHN E. CARTER and ) RAYMOND B. AGLER, ) Plaintiffs ) V. ) No. 83-462 THALTER F. SOULE, FRANK SERIO, JR. , ) RICHARD J. TREPANIER, AUGUSTINE W. ) NICKERSON, RAYMOND A. VIVENZIO, ) M.AURICE S. FOULDS, and ROLLINS ) CABLE VISION OF MASSACHUSETTS, INC. , ) Defendants ) JOHN E. CARTER and ) RAYMOND B. AGLER, ) Plaintiffs ) V. ) No. 83-3005 FRANK SERIO, JR. , RICHARD J. ) TREPANIER, WILLIAM J. SULLIVAN, ) WALTER F. SOULE, and RAYMOND A. ) VIVENZIO, ) Defendants ) AFFIDAVIT OF JOHN E. CARTER I, John E. Carter, being first duly sworn, do hereby certify and say on personal knowledge that: 1. I own the real estate, with the buildings thereon, located at 300 Chestnut Street, North Andover, Essex County, Massachusetts, along with my co-owner Raymond B. Agler. This real estate includes a hill known as "Mill ' s Hill" upon which sits a 140 foot high tower. We have owned this "dill ' s Hill" since 1979. L. The tower was erected in its present form in 1958 . 2. The tower on our land was built and used by the Massachusetts Institute of Technology ("11IT") and, later, by MITRE CORPORATION ("MITRE") , under lease with the owners of the real estate, as an adjunct to the tower located on "Boston Hill", North Andover, owned by Benjamin and Linda Farnum and also leased to`l'IT and MITRE. 3. The two towers were both allowed and built pursuant to nearly contemporaneous decisions of the north Andover Board of Appeals in 1957-1958; copies of which I obtained from the Board of Appeals and which are appended hereto as Exhibits 1 and 2. 4. The two towers were both used continuously and in parallel, research-related fashion until 1981 when MITRE ceased using both towers. At that time, we, as owners of the "Mill ' s Hill" tower, and the Farnums, as owners of the "Boston Hill" tower, began investigating other potential uses for the existing structures. 5. In August, 1981, we contracted with Electrocom Corpora- tion for the operation and management of the "Mill ' s Hill Antenna Site" for the operation of radio communication systems. Since that time, the site has been used in accordance with that agreement. 6. On July 23 , 1982, the North Andover Board of Appeals granted the petition of Benjamin Farnum "for a Special Permit to clarify and confirm a use that was already allowed" under the 1957 variance allowed to MIT, "so that [Farnum] may. . .change aspects of the original grant in a minimal manner [to allow] . . . antenna and transmitting dishes, not to exceed a total height of -2- 140 feet. " The Board's decision (a copy of which is attached hereto as Exhibit 3, and is also attached to our Complaint in Case No. 83-462, as Exhibit 5) specifically states that "only MITRE Corporation, Eastern Microwave, Inc. and Rollins Cablevision, Inc. be allowed to place said antenna and dishes on said structure. " 7. On February 1, 1983, however, the North Andover Board of Appeals denied the petitions of Rollins Cablevision of Massachusetts, Inc. , as lessee of our "Mill's Hill" tower site, which sought to allow the use of our tower for cable television equipment, antenna and dishes pursuant to the 1958 variance previously granted or by special permit. (Copies of the Board's decisions are attached hereto as Exhibits 4 and 5 , and are also attached to .our Complaint in Case No. 83-462 as Exhibits 3 and 4. ) 8. On February 1, 1983, we had entered into a signed lease with Rollins for the use of our tower coextensively with Electrocom Corporation. After the February 1, 1983 decisions of the Board, Rollins terminated the lease and signed a new lease with the Farnums for the use of the "Boston Hill" tower not later than March 3, 1983. 9. On November 23, 1983, the North Andover Board of Appeals denied our petition for a special permit to allow the continued use of the existing 140 foot communication tower for electronic communications equipment, antenna and dishes. Our petition specifically sought only the same permission as had been allowed to the Farnums. (Copies of our petition and the Board's denial thereof are attached hereto as Exhibits 6 and 7 , and are also attached to our Complaint in Case No. 83-3005 as Exhibits 1, 2 and 3. ) -3- 10. At the November 14, 1983 public hearing held by the Board in connection with our petition, my attorney submitted a four page statement, a copy of which is attached hereto as Exhibit 8. I have read and reviewed the statement at length, and all of the facts stated therein are true and correct. 11. On February 21, 1984, the North Andover Board of Appeals granted the petition of WNEV-TV, as lessee of the Farnums' "Boston Hill" site, for a special permit to use that tower "for broad- casting purposes cojointly with others and to be allowed to extend the antenna" height by up to 35 feet. A copy of WNEV-TV's petition is attached hereto as Exhibit 9. A copy of the Board' s decision thereon is attached hereto as Exhibit 10. 12. The effect of all of the above decisions by the North Andover Board of Appeals is that (a) "Boston Hill" is now being leased by the Farnums, with the Board's approval, to at least three profit-making corporate enterprises: Rollins Cablevision, Eastern Microwave and WNEV-TV, but (b) our "Mill's Hill" site is now being leased to Electrocom Corporation without the Board's approval; we have lost out on a profitable lease to Rollins Cablevision which now leases from the Farnums; and we cannot safely seek to lease our tower to anyone else. 13. The only substantive reason given by the Board or Building Inspector in denying the special permits sought by Rollins and us for the use of our tower as requested was that "the proposed use of the tower for commercial purposes is a change in use which cannot be allowed" without a special permit. The Board has specifically allowed the Farnums' commercial use of the -4- "Boston Hill" tower, both before and after our petitions were denied. 14. Neither the Building Inspector of the Town of North Andover nor the members of the Board of Appeals has ever physically inspected the tower site on our property, to my knowledge. Signed under the pains and penalties of perjury this j2Ta day of April, 1984. JOHN ECA ER -5- P'. PI ! e� ^ COMMONTATEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No. 83-462 JOHN E. CARTER and ) RAYMOND B. AGLER ) PLAINTIFFS' MOTION FOR ) SUMMARY JUDGMENT V. WALTER F. SOULE, et al ) Now come the Plaintiffs in' this G.L. c.40A §17 action and move this Court to grant them summary judgment in this matter, to annul the decision of the North Andover Board of Appeals and to grant the special permit originally sought, all as more fully set forth in PLAINTIFFS' BRIEF IN SUPPORT OF MOTIONS FOR SUPLLARY JUDGMENT filed herewith.. Plaintiffs also seek summary judgment for costs and reasonable attorneys' fees against the Defendant members of the North Andover Board of Appeals, as authorized by G:L. c.40A 517, also as more fully .set forth in Plaintiffs' Brief filed herewith. Plaintiffs, by their Attorney, s April 20, 1984 Martin Ja obs, Esquire Law Offi f Steven M. Brody One Fan uil Hall Marketplace Boston Massachusetts 02109 Ott-o ka v� Telep one: (617) 367-8808 Cofi S S a," i aw COINTIONWEALTH OF MASSACHUSETTS' Department of the Trial Court Essex, ss. Superior Court ` No. 83.462 i E John E. Carter and Raymond B. Agler vs. { Walter F. Soule, et als SUMMARY JUDGMENT (MASS. R. CIV. P. 56) 1 This action came to be heard before the Court, Fine, J. 4 I presiding, upon the motion of the plaintiffs John E. Carter and! Raymond B. Agler for summary judgment pursuant to Mass. R. Civ. ! P. 56, the parties having been heard, the Court finds that them is no genuine issue as to material fact, and that the plaintiffs are entitled to a judgment as a matter of law; It is hereby Ordered that: the decision of the North Andover Board of Appeals No. 6, of 1983 is annulled, and the Special Permit sought by the Petition in that case is granted. The request for attorne st fees and costs is Denied. 3 The Clerk-Magistrate of the Court is directed to mail an attested copy of this judgment within.30 days from the date hereof, to the Town Clerk, Building Inspector and Board of Appeals, respectively of the Town of North Andover. Date: May 10, 1984. iMss ant Clerk UE OPY,rCLEERK ST E k DEPUI1!AS, it NORTH p� t .o tl ,hp A � r SSACHIJ I TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS April` 25, 1984 Attorney John J. Willis, Sr. , Town Counsel 160 Pleasant Street North Andover, Mass. 01845 Dear John: Enclosed please find correspondence received by members of the Board of Appeals regarding the case of John E. Carter vs. members of the Board. Please take any necessary action on behalf of the Board. Thank you for your assistance in this matter. Sincerely, BOARD OF APPEALS Frank Serio, Jr. , Chairman FS/jw Enc. NORTI{ 3:O:t ..o, 1h00 f 9 4 t 4 •o r 4 SAC US TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS May 4, 1984 Mr. John P. Bohenko, Executive Secretary 120 Main Street North Andover, Mass. 01845 Dear Mr. Bohenko: Regarding the John Carter/Raymond Agler complaint against the Town and the Board of Appeals, I would like to recommend that Attorney Joseph E. Boulanger, 316 Essex- Street, Lawrence, Mass. be appointed by the Board of Selectmen to represent this Board as Specal' Town " Counsel'. Please feel free to contact the Board of Appeal's office for any information and/or assistance you may need in this matter . Sincerely, BOARD OF .APPEALS Frank Serio, Jr. , Chairman FS/jw l 1 'i� .�OfNOR1y� •�. •tia• EXHIBIT 2 o:d`A"f01G'� �'� 1855 •' ' TV TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS John J January 4, 1958 J. Lyons, Town Clerk ! Town Building North Andover, Mass. Dear Sir: 1 DECISION The Board of Appeals held a Public Hearing on Monday evening, December 9, 1957 on the application of Massachusetts Institute of Technology requesting a variation of the Zoning Ordinance so as to Permit the erection of a certain radar tower for antenna test measure- ments., to a height in excess of that permitted by Section 8 of said Zoning By Law entitled "Building Heights rermitted", on Mill 's Hill, off 300 Chestnut Street, North Andover. _ This Public Hearing was advertised in the Lawrence Evening Tribune on November 27, 1957 and the abutters were duly notified. The members present and voting on this application were: Dona Smith, Chairman, Daniel O'Leary, Henry E. LundDonald F. , Nicholas F. NicDona and John J. Willis, Associate Member. Mr. Nicetta made the motion to GRANT the variance, seconded by Mr. Willis and voted unanimously by the Board for the following reasons: It appears to the Board that this tower is a necessary adjunct to the transmitting tower located on Boston Hill, for which tower the Board of Appeals has previously granted a variance under date of January 28, 1957. It appears that there are no buildings in the near vicinity so that there would be no danger to surrounding structures. It further appears that no transmitting is contemplated from this tower, but the tower is to be used solely to test and measure signals to be sent from the radar tower on Boston Hill. I It also appears that the erection of this tower is important in the interests of our national defense. The Board therefore GR-A1TS the variance aptilied for provided that the tower and appurtenances be con- structed substantially in conformity with the plan submitted and on file I i ti _ 2 January 4, 1958 with the Board of Appeals, and the Board further directs that the Building Inspector issue the necessary building permit in accordance with this decision. Sincerely, TOWN OF NORTH ANDOVER , BOARD OF APPEALS Donald F. Smith, Chairman Daniel 0tLeary Henry E. .Lund Nicholas F. Nicetta John J. Millis, Associate Member ` i DFS:ad TOWN OF VORTH AI DOVER Findings and Decision of the Board of, Ap eats as Constituted under Chapter 40A# Section 1 of the General Laws of Massachusetts acting under Sec- tion 4 of said Chapter, upon Petition .of Massa- chusetts Institute of Technology dated January, 1957• A public hearing was held on Monday evening, January 28, 1957 at the Town Building in North Andover pursuant to notice duly given according to law and to the Rules of the Boards upon Petition of Massachusetts Institute of Technology (hereinafter called the "Institute") dated January , 1957, on file with the Board for a special p©rmit for an Exception permitting said Instituter To erect and maintain on a tract of land in the Boston Hill area of the Town of North Andover the followings 1. One radar antenna support tower concrete construction eighty-four (84) feet in height surmounted by a sixteen (16) foot driving mechanism upon which will rest a reflector(antenna), one hundred twenty (120) feet wide and' thirty. (30) feet in height, which in turn will be surmounted . by an IFF antenna two feet in height. The total height of the structure from- the ground to the top of the IFF antenna will be one hundred thirty-two (132) feet. 2. One forty (40) foot radar tower surmounted by a twenty-six (26) foot radome. The com- bined height of the tower and radome com- prises 'sixty-six (66) feet. 3. One sixty (60) foot parabolic reflector mounted on a six-foot pedestal. The total height of this structure will be sixty-six feet. The generators and related equipment required to operate the two smaller towers will be housed in 'two prefabricated buildings$, each of which will have a floor area seventy (70). by forty (40) feet, totalling 5600 square feet. The land in questions of which Boston Hill is' a part$ is located in a Rural Residence District as shown on the official zoning map , dated June 25, 1956, as amended, on file with the Town Clerk, and plan of the land in question showing the proposed installation was attached to the Institutats Petition., All five members of the $pard were present at the hearing. The members of the Board are familiar with the location of the land under consideration and its characteristics, as well as the surrounding neighborhood. On testimony at thehearing, it appeared that the Institute, a non-profit educational institution, is a party to a contract with the United States Air Force, under which is conducted, among other things, research in radar and related electronic fields, towards the end that this country will receive adequate warning in case of attack either by aircraft or guided missile. This research program is considered to be vital to the National Defense program and time is ever of the essence. Since 1951, a number of -radar research installations of various sizes$ about fifty in all, have been erected and maintained by Lincoln Laboratory of the Institute along the eastern seaboard from Maine to Georgia., with particular concentration of such installations in Massachusetts. At. the time of the Petition$ plans had been completed whereby Lincoln Laboratory of the Institute was to undertake to erect and maintain another radar research installation. Accordingly$ numerous sites were viewed and studied alobg the eastern seaboard, particularly in the -2- New England areas before the Boston Hill site in North Andover. . was chosen as the most advantageous location for conducting this radar research project,. Many factors entered into this decision, among which were the following principal onest is. The crest of Boston Hill is flat and affords an unobstructed view in all directions; . 20. The surrounding area s loffree _ of habitation, thu�e autionsffgthe exercise maximum security p 3,, The site is near enough to Lincoln Laboratory of the Institute, located in Lexingtont thus resulting relatively amount ppoedin e beigossvelling toand romthers stallations The Institute has entered 'into. an informal agreement to lease the promises upon which the research field station is to be located, and it intends to execute a formal lease .of tho premise if a favorable decision is issued by tho Board., The lease will provide for a term of six years with a right of the Institute, at its option, to renew for a further term of six years. Further testimony at the hearing brought out the following additional information relating to the concrete antenna support tower$ which will be the principal and tallest structure located on top of Boston Hills 1. The osed toimake usesof tho paceoproidedtass proposed follows: First floor, M Electric power and boiler room Second floor - Display (scope) room and associated equipment Third floor - Laboratory Fourth floor Receiver equipment Fifth floor ,j ansraitter and air conditioners sixth floor - Storage Operating personnel will ordinarily carry on their research and experimental work on the lower .levels at a height of not more than forty-eight feet above the ground. . i It is proposed to erect initially the foregoing tower and at a later date to ,erect the two auxiliary towers hereinbefore describedt In addition to the towers and portable buildings.s the Institute also proposes to construct a rough socess •road leading from Boston Street to the proposed installation and will erect a chain link fence for security,purposes around the immediate area. Further testimony disclosed the followings 1. The proposed installation is of a temporary nature in that in the event the Board permits the erection of the aforesaid radar towers,, the Institute will enter into a lease for a term I of six years with an option to renew for an additional six years. At the .temination of the leases the towers and buildings will be torn down or dismantled and re- moved from the property. 2. The operations to be 'carried out at the proposed installation will be of a research and experimental nature only. 110 offices or studios will be maintained at the site. 3. The use of the property does not involve manufacturing or result in the emission of odorsp fumes# dusts smokes 11bration or noises. 4. The maximum number of personnel which will be employed or working at the installations after completion of constructions will at no time exceed ` twenty-five persons. 5• The Institute will not construct or cause to be oonstructed any residential dwelling or dwell- ings on the proposed site. Operating personnel will commute from Lincoln Laboratory of the Institute in Lexington. 6. There should be no interference with tele- vision. reception resulting from the proposed use of the property. The frequencies at which the equipment will operate are allocated by the Federal Communications Commission. 7. No service now furnished to. any or all of the inhabitants of the Town of North Andover will be requlrod of the Town by the Institute unless the same are paid for by the Institute to the Town. h The applicant, the Institute, seeks a special permit under SECTION 8 of the Zoning Bylaws of the Town, as most recently amended,p entitled BUILDING HEIGHTS PERMITTED. Subsection 8.5 thereof reads in part as follows; 9.5 . . . no ... structural feature of any non- manufacturin building shall exceed a height of sixty-five N5) feet from the ground . .. except by permission of the Board of Appeals acting under G.L. Ch.' 40A as amended." The Board also takes notice' of SECTION 4 of said By-Laws entitled "BUILDING AND USES PERMITTED, AND APPLICATION OF REGULA- TIONS," more particularly. subsection 4.15 thereof which permits$ among other uses In Resident Districts$ the following! " ... radar, television or radio-telephone transmitting or broadcasting towers but not their studios nor offices ..." THEREFORE, on the facts in this case, and after giving due consideration to the underlying general purposes of the Zoning By-Laws of the Town a s set forth in said By-Laws and in j Chapter 40A of the General Laws, we find as follows: 1. That the Institute is a non-profit educational institution; 2. That the proposed use of the property in question is for research of a most vital nature to the rational defense program and to the security of our country] 3. That the radar towers which the Institute seeks permission to erect will not contain studios or offices. 4'0 That the property sought to be used is in a Rural Residence District of the Town; and 5. That the proposed use of .the property in question will not be injurious, noxious, offensive or detrimental to the neighborhood in question. AND, the Board voted unaiiimously to GRANT the special permit as applied for by the Institute in its Petition dated January , 1957 upon the following conditionst 1. That no more than one tower not exceeding one hundred forty ,(240) feet in height, with or without reflectors$ and no more.'than two additional' auxiliary .towers not exceeding seventy (70) feet in height will be erected on the site] 2. That no more than two prefabricated buildings to house generators and related equipment with a floor area not to exceed 5600 square feet will be erected on the site. 3. That the number of personnel employed or working at the site after completion of construction will not exceed twenty-five; That no residential dwelling will be constructed or caused to be constructed by the Institute on the site; and 5. That no services now furnished by the Town to any or all of its inhabitants will be furnished the Institute unless the same are compgnbated for by it to the Town. BOARD Gr I.FrYAL8 i ^tiC� J Filed in the office of the Town Clerk aa� �/j 1957• FLQR v Alt y T!NOR-�' s .t JUL EXHIBIT 3 1� t� a� PM '81 ,•.,�.�� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS July'23, 1982 Benjamin Farnum Bos ton. Hi I l . Petition No. 22-'82 Mr. Daniel Long, Town Clerk Town Office Building North Andover. Mass. 01845 Dear Mr. Long: The Board of Appeals -held a public y even June 14, 19B2 upon -the .application ofafir- Benjamin ring on aFarnum.ng, The hearing kras advertised in the North Andover Citizen on May 20 and 27, 1982 and .all abutters were notified by regular mail. The following members were present and voting: Frank Serio. Jr..-tiChairman;,:Alfred C_ Frizelle, Es Chair- ,man; .Richard '2_"Trepani,e�„''Es is Vice Sullivan;„ , q_, 'Clerk, William J. llivan and :August3n'e*_: 1. -Wi iclkikon_ Theipetiitioner seek' q)e Application ander Section 10, Para- 13 0-"8 sof-€the onIlk . i q'is W •so: s to permit the extension r of:,the' pecia7,:;1',er ni niliame ”, hanae _to .same permit, granted " �n957�.#onhee .oc teaitthe'XEastide of Boston = `Street nd�#cnownso� nii11_ •. - - The ;� "` 7 anat n.jquest9Dn"�s�he -subject^of a forme r decision of r the 'B w peals-,di ed -Februar 20, 1957- Un February 20., 1957'"'�pDnPe1oniof_4lassachusetts Institute of Technology, r lessee, Xhe oa�`� f "' .: ppea7s"..,granted a variance to permit the _ erection of: "ertaln �rada`r:-'towers for research and experimental purposes to a iheig-ht,.._U-7excess of that permitted by Section 8 of the then Zonino -Bylaws. entitled "Building Height Permitted". Said decision is on file with the Town Clerk . Within the body of the decision, as filed by the Board, on Page 5, the Board unanimously to "grant a Special Permit as applied for by the Institute in its petition dated Januar 9 1957 upon certain conditions"_ y • i .max. t Benjamin Farnum QL DANIEL -,vNG T0gN E(:K July 23, 1982 NORT1: :,: ,i0VER Pa ge 2 JUL 04 FM W The petitioner has applied to the Board for a Special Permit to clarify and confirm a use that was already allowed under the 1957 decision on the petition of the Massachusetts Insti- tute of Technology. In a petition to this Board on December 22 , 1981 , there was a determination by the Board to deny Mr. Farnum a Special Permit. That determination made specific findings that "the use of the tower was a non-conforming use and a non- conforming structure". Subsequent to that denial , Mr. Farnum has again .appeared before the Board after receiving timely approval of the Planning Board. at which time he alleged there was a change of .circumstance. Specifically, that on April 1, 1982 , MITRE Corporation, a cor- poration owned by MIT, abandoned the structure to the petitioner who is the sole owner of the land and the structure . Upon a motion made by Mr. Sullivan and seconded by Mr. Frizelle, the Board voted four to one to grant a change of name on the 1957 Board of Appeals decision. Review and research on the 1957 decision has indicated that the decision was a "variance" even though it was erroneously referred to as a "Special Permit" in the body of the decision ` and in the present and previous petitions to this Board. The Board grants a Special Permit so that the petitioner may now _ change aspects of the original variance grant in a minimal manner. Specifically, attached to the concrete tower there can be antenna and transmitting dishes , not to exceed a total height of 140 feet. These minimal changes would extend the rights already granted by the variance, and clarify the peti- tioner's rights and ability to use the variance originally granted to MIT. Authority of this Board to act in this manner is derived under the provisions of the North Andover Zoning By Law at 9.1 and 9.2, and under the Special Permit provisions contained at 10.31. This decision essentially clarifies and confirms the variance originally granted. By way of footnote, it is further pointed out that the origianl legal notice on the 1957 variance requested a variance and not a Special Permit_ - In granting this Special Permit, pursuant to Section 9. 1 of the Zoning By Law, the Board finds Ahat the proposed change, adding antenna and transmitting dishes to the existing concrete tower not to exceed a total height of 140 feet , is not substantially more detrimental than the existing non-conforming use to the neighborhood. The neighborhood in question is on top of Boston Hill , which is presently an R-2 zone. There are no houses abutting the premises , which abuts a GB zone , where the Boston Hill Ski Slope operates , -Petition No . 22- ' 82 0',1N i,'= �K Benjamin Farnum NORTV_".=.OYER July Page 33 ' 1982 JUL B 12 Dv PM '8Z The Board finds that the change is indeed minimal and therefore allowed. Further , the Board. in reviewing the conditions set forth in Paragraph 10.31 , Subsections (a) , (b) , (c) , and (d) , have been satisfied; and, more particular. that the use is in harmony with the general purpose and intent of the Zoning By Law, subject to the conditions that only MITRE Corporation, Eastern Microwave. Inc. , and Rollins Cablevision , Inc. • be allowed to place said antenna and dishes on said structure. Said corporations may not lease , sell , or otherwise transfer their rights to any other party. In addition, frequencies normally associated with the residential television reception will not be interferred with. Sincerely, BOARD OF APPEALS Frank Serio, Jr. , Chairman AEF/jw - — I I i I Received by luwn Clerk ; Dat, TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS. Time : EXHIBIT 6 Notice : This application must be typewritten APPLICATION FOR RELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE John E. Carter/ Raymond B. Agler 300 Chestnut Street Applicant Address No. Andover, Ma. 01845 1 , Application is hereby made N/A ( a ) rtb-r•-a--var#�-rrc•e-f-rc+�-t-Ire-r•e•q•�ti•remen-t�--ef--6rtcttorr------=--Pa'ra�-r-aptr end-ill e--------o-1`-tie--�ie�-Ntg-$ -tars; 9.1 and (b) For a Special Permit under Section 9 Paragraph 9.2 of the Zoning By-Laws . N/A ( c) 1r-a-Tmrty-TVgr!vmd Far-Trvfirrof r-idrr'sivtr-matr-by-thrtutl-dtn3 -iimp e%tvr-or-oth r-avtirvri-ty. and tower 2 . ( a) Premises affected are land X and building(s ) X - numbered off 300 Chestnut Street Street. (known ,as"rE s Hill") (b) f-ree#s-e-r-af-f ate-t-are-gropvrty--w+tir-Frontagt--vrt-ttrr-North-j---j 3trtttn--{---�--fast--f---j---Hest•F-•}-•siZte-of- I;-treet;-aan&-krrowlr-as-ft: e ( c) Premises affected are in Zon-ing 'District R-3 and-the premises affected have an area of 3-75.acres -S-Quay-�e� and frontage of 125 fie e t , on Ches nu ree t. 3. Owners hip(Assessor's Map 98C, Parcel 2) (a) flame and address of owner (if joint ownership , give all names ) : John E. Carter & Raymond B. Agler, 300 Chestnut St. , North Andover, MA 4/3/79 Herbert & Joan Hatem Date of purchase ,.Prev i uus• Owner. jopeph V. Mahoney (b) If applicant is not owner, check his interest in the premises : Prospective Purchaser Lesee Other (explain) 4 . Size of proposed building : 12 front ; 24 feet deep; Height : 1 stories ; 8feet.0 plus or ishes. ( a ) Approximate date of erection : Within 6 months after application is allowed. — b Occupancy or use of each floor: Froposed utility ngx 1 replace exist- ing building for storage of equipment. (c) Type of cons t rue -oW7.-Preralarleated precast concretes 5 . Size of existing building : 10 feet front; 12 feet deep ; Hei ght : 1 stories ; 8 feet. Tower heights 140 fee (a ) Approximate date of erection : 1958 (b) Occupancy or use of each floor: Utility building houses electronic equipment i standard electronic communication ejuipment is attached o e oxer. (c)° Type of coniruc on : oteel radlo tower, I 6 . Has there been a previous appeal , under zoning , on these premises? Yes If s o , when? January 4. 1.958 Variance granted at that time), 1 . Description of relief sought on this petition A Special Permit under Sections 9.1 and 9.2 to allow the Applicant to use the existing 140' communication tower (built pur- suant to the 1958 Variance) and the proposed utility building for electronic communica- t/n_n_gq.ti pmPn .. antennas and dishes. 8. Deed recorded in the- Registry o Deeds in Book 1366 Page 556 or Land' Court Certificate No. NA Book —Page 7 EXHIBIT 1 ........... The principal points upon which I base my application are as follows ; (Must be stated i n d e t a 11 ) The 140' communication tower has been inexistence since ?58. The tower site is enclosed by an existing 35'X35' (approx.) galvanized steel fence 6' in night. There will be no structural or height changes to the• existing tower. The existing utility gilding will be replaced with a more attractive prefatricated precast concrete utility building. ie site will continue to be unmanned and will thus not increase traffic on the- site or in the ;ighborhood. The effect on the surrounding neighborhood will be no different than that now in ex- 3tence. Applicant seeks to safely use the property in'the same manner and to the same extent as its Board-allowed and approved for Benjamin Farnum in this Board's decision of July 23, 1982 Pe- ttion # 2282) . Our ability to safely use our property under the terms of the 1958 Variance seems be somewhat in question as a result tines Bowra s deciaion kFeti ion rr 5-83 and #r 6-533)o the .titions =of Rollins Cablevision of Mass. , Inc. .. I I agre pay oadvertising in newspaper and incidental expenses* I Petitioner's ' Si nature S c. 1 APPLICATION RM E y application f action by the Board shall be made on a form appro oard. -These 'forms shall be furnished by the clerk upon request . Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such time as it is made on the official application form. All in- formation called for by the form shall be furnished by the applicant in the manner therein prescribed. i Every application shall be submitted with a list of "Parties in Interest" which list shall include the petitioner, abutters , owners.---6.Vf. of land directly opposite on any public or private street or '44ay , and abutters to the abutters within .three hundred feet of .the property line of the petitioner as they appear` on '.the most recent applicable tax list , notwithstanding that the land of any such owner is located , in another city or town , the Planning Board of the city or town, and the Planning Board of every abutting city or town . * Every application shall be submitted with an application charge cost in the amount of $25.00 . In addition , the petitioner shall be respon- sible for any and all costs involved in bringing the petition before the Board. Such costs shall include mailing and publication , but are not necessarily limited to .these. LIST OF PARTIES IN INTEREST Name Address I i See Attached Sheet I (Use additional sheets if necessary) Received by' .Town. Clerk ; f' Date : fir: TOWN OF NORTH ANDOVER, MASSACHUSETTS . BOARD OF APPEALS EXHIBIT 9 Time �) 6`0 ce ; This application must be typewritten . APQ�CI`CAT1bt59F�UR�gaELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE Applicant W ry-Ty Address Government Center, C/C) )'Y1 E I + rTN m ; e �" Boston, MA 02114 -- 1 . Applicatiion is hereby made (a ) For a variance from -the requirements of Section iO.4 Paragraph and Table of the Zoning By-laws . (b) For a Special, Permit under Section 10. 31Paragraph� _ of the Zoning By-Laws , ( c) As a party aggrieved , for review of a decision, made by the BuiIdint- Inspector or other authority, 2. ( a) Premises affected are land and building(s ) - numbered off Raston S rept — (b) Premises affected are property with frontage on the North ( ) South ( ) East ( ): West ( X ) side of Boston Street Street , a.nd known as Pia.,, Boston Hill ( c) Premises affected are in Zoning District R-2 and the premises affected have an area of- ii acres _s-q�a�a-€eet and frontage of feet. 3. : Ownership (a.) Name and address of owner (if joint ownership , give all names ) : Benjamin Farnum Date of purchase _Previous•.Own.er.*_ John Farnum _ (b) If applicant is not owner, check his interest in the premises : Prospective Purchaser X Lesee *Other (explain ) 4. Size of proposed building : n/a front ; feet deep ; Height : _stories ; feet. ( a ) Approximate date of erection : b Occupancy or use of each floor : (c) Type of construction; 5. Size of existing building : 36 feet front ; 36 feet deep ; Height : 6 stories ; 5�feet ,,with a metal roof antenna of an additional 65 feet. (a ) Approximate date of erection : 1957 -building; 1983-antenna (b ) Occupancy or use of each floor :Communication Egui2ment ( c) Type of construction : reinforced concrete - uii_n�teel -antenna 6 . . Has there been a previous appeal , under zoning , on these premises ? _yes_ If so , when? January 28 , 1957, January, 1982 , June 18, 1982 7. D�scriptipn ofrelief sought on this petition To use the,. existing f.,aciiir.� or broaddcasting purposes conjointly with others and—�o�"be allowed--Eo -- extend the- antenna 30 to 40 feet;. .8. Deed recorded in ' the Registry of Deeds in Book Page or Land'.Court Certificate No. Book Page The principal points upon which I base my application are as follows : (Must be stated in detail ) See Attachment A . : `i ' I agree to pay for advertising in ne spaper and inciden-i:al e>:penses {., WNEV-TV, Inc. , By: Netitioner ' s S-13naLu t Melvin Miller, Vice President and General Counselor Sec. 1 APPLICATION FORM Every application for action by the Board shall be made on a form approved by the Board. •These.'forms shall be furnished by the clerk upon request . Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such time as itis made on .the official , application form. All in- formation called for by the form shall be furnished by the applicant in the manner therein prescribed. Every - application shall be submitted -with 'a -list of "Parties in Interest" which.1-ist •shall.'Anclude= the petitioner, abutters ; owners of land directly-opposite on any public or private street or way , . and -abutters- to the- abutters wi thin -three hundred feet of the property line of the petitioner as .they appear on - the most, recent applicable tax list ; notwithstanding that the , land -of-any such owner is located in another city or town , the -Planning Board of ' the city or town , alid the-• Planning -Board--of-every -7abutti.ng city '_or. town . * Every application shall be submitted with an application charge cost in th,e amount of $25 ,00. In addition , the petitioner shall be respon - sible for any *and all 'costs involved in bringing the petition befure the -Board;- Such costs - shall'• include mailing and publication , but are not necessarily limited-to these . LIST- OF 'PARTIES=-IN ' INTEREST Name- Address c}V, `'7 3J ol Ire � CJ �. Use additional sheets if necessary) l 1, i Attachment A Boston Television station WNEV-TV made a commitment to permanently expand its focus outward to include coverage of regional news on. a regular basis by establishing a news consortium with four regional news papers. (See Media Release re: New England News Exchange) . One such news paper, the Lawrence Eagle Tribune, is an essential part of planning to reach out to residents north of Boston in such coirununities as North Andover. In order to allow live news coverage from the north region, as well as live reports from the news room of the Lawrence Eagle Tribune, an electronic news gathering (ENG) recdive site must be established on a hill of substantial height north of Boston. Additionally, these signals need to be relayed from the North Bureau to studios in Government Center, Boston, so they can be put on the air. After many site surveys, it was determined Boston Hill offered the best opportunity to receive and relay these television signals from our North Bureau. A path profile indicates that a height of 170 feet is required to adequately deliver these television signals to the studio in Government Center, Boston. I This will require an extension of the existing tower at the Boston Hill sight in North Andover, as well as placement of j an ENG receive dish and intercity relay dish (to Boston) on the new section of the tower. These changes will assist in increasing WNEV-TV coverage in towns north of Boston, such as North Andover. I�' i - � •�ORty ... _ F. �� yo f.tl)' a;);)-:a! b-3:dl,sha:l +`I.ed . � ,� ... _ :�o .� �;�� .within .,, . (20j days after the s tags date of filing of this Notice R CMU5�', In the Offic@ .� •..,. �� sown FEa 77 1157 01 'Sq Clerk TOWN OF NORTH ANDOVER MASSACHUSETTS EXHIBIT 10 BOARD OF APPEALS NOTICE OF DECISION— Date FebruarX 21, 1984 Petition No.. ..S-1. 8 4 .. .. .._. __. Date of Hearing. January 30,.J9 Petition of ._..WNEV-Tv ......_............... .. . . . . . . . .. . ...... ... ....................... premises affected... West side of Boston Street known: as_ "Bostonr Hillt Referring to the above petition for a variation from the requirements of the Zoning .By Lau Section 10.4 and/or a_Special Permit under Section, 10.31 .. .. ..... so as to pernut_.:.the use -of--an.existinc-facility-for-broadcastina.purposes con3ointly__with�others=and=the extension-of*a structure—= - —- After'a public-hearing gives on the above date,the Board of Appeals votedGrant -� Special_PgTmkv— and hereby authorize 'the Buil to issue permit to. xt�nd.:t�a:ateAno :�, present-heighV.;:-_.�= _ for the construction-of the above work based u n_the following_ . Po g conditions =. 1. - .That -only M14EV-TW.and its :successors be.`-allowed -to.-,use the-. exten. antenna. Signed Frank Serio, Jr. - Chairman...It _ Al.fred. . E... .Frizel. . le; Esq. ;. .vice Chairin . . . . . . . . . . . . . . . . . Richard J. Trepanier,--Esq. , Wiliam J.. _-Sullivan- -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Walter._-F._.Squle=,_ Board of Appeals_ W., VPsa1 shall be fl!; T .. ..� Nor:; Within (20) days after i FEB 2T It 57 AH '84 . ., .- .'. ; . date of filing of this Not -, � �...,.s� in the Office of the Tc 'ss"`"°+• Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF-APPEALS S February 21, 1984 Mr. Daniel Long, Town Clerk WNEV-TV Town Office Building Boston Hill North Andover, Mass. - 01845 Petition No. 5-'84 Dear -Mr. Long: -- . The Board of Appeals .held-a public hearing-on Monday evening, January-30, 1984 upon.the .application of WNEV-TV. The hearing was advertised in the .North Andover Citizen on January 12 and 19, 1984 and all abutters were notified by_ regular mail.-.. The following - members were.prgsent and.-voting:_-Frank -Setio;"-.Jr.- Alf kdd-E.--Prizd1le .Jr.Alfred-E:-Frizeile; :Esq.-,;=Vice.--C7hairman;;_:Richard--d. Trepanier.; .- . - == Esq'--== ' :and•-Associate.-Member_Walter=F. " s: .Clerkiiliam�J:-sSul "an• Ali _ `Soule;:= -- _ __ . .. -..-if-.—... av.... •ter . The,pet:itioher..:eeks z ,variance;.from-.-the?gravisions•of.•:Sect%Qr��9L4 .-_ and/oz`a.'$peZ%al.Permit=�unde :SeEtiori:lfl.=31-'of_-tie�2pniggL:B�='Zai•-T _ so as .to permit-itlie..use- of='a i-iaxisting €ac lite;;fof:broadcast• -ng-4= purpo$es=co o htip:Vit1i'.-_t s'and•-tie?extension-of structtir�e on premisesJ7ocated��on=.t_hees 7Wt --',of- side f- Boston.Street•-knowri'=_as�- Boston Hili.-_ _ - -_ -- -- - Testimony`provided-by_#he%applicant's -attorney revealed- that :the-.-. applicant, a Boston- TV:' station, -seeks to -increase -the height-.of- a building- located on the site by approximately 30 feet. Currently; there is an antenna on the building (tower) on the- site which is utilized by Rollins Cable TV, Eastern Microwave, and by MITRE. WNEV-TV .has recently joined with the Lawrence Eagle Tribune in a news gathering effort- known as :"News.Exchange". and the application--- represents their request_-to 'use the site=to transmit information: from:the 'site ,to Boston:.- Theaddition of a dish. is proposed=by -- the -applicant.- - Further -testimony- -revealed that--the land -En -.question has-been- before this Board, three times.-- The first petition -was -i-n- 1957--when .the Board granted a variance-:-to MIT. which allowed the erection of a - radar tower for research-_purposes--to -.a height which exceeded that allowed under the Zoning:J�y -Law. _ The second was a deci•slon in 1982- i - WNEV-TV Boston Hill �L8 Petition No. 5-184 February 21, 1984FE6 Zl 11 57 Al1 Page 2 which is not relevent to this petition. The third was a decision dated July 23, 1982, when the Board granted an extension of the 1957 permit and allowed a name change to the same permit, subject to the condition that only MITRE Corporation, Easter Microwave, Inc. and Rollins Cablevision, Inc. be allowed--to ,use the -site:- The two 1982 decisions were in the name of Benjamin Farnum, current owner of Boston Hill. The petitioner is now seeking permission to extend the antenna an additional 30 -feet and add -its name to the list of those corporations allowed to use the site. In accordance with Section 9.2 (3) of the current Zoning By Law, the proposes in- crease in use, if granted, will not exceed 25 'percent. Opposition from. two. citizens was._voiced at -the--hearing.-- The Board -took -the petition under advisement and •rendered-a decision at' a regular meeting held on Monday evening, February 13, 1984 with Members Serio, Frizelle, Trepanier, Sullivan, and Soule again present and voting. Upon a motion -made `by -Mr.:.Frizelle and seconded by Air. . Sullivan,. the-Board_vote unanimously-_to -grant a Special Permit--under--:.--. 'fry? `.Zbriing Dy.--Law to permit=the' use..of =theme, __ Section••10:31R ;l - existing _,brbadcasting- purposesTby WNEV-TV .to'be'.used jointly with. h—&- bmpanies: as -set .forth in the:Board's decision: dated::July.,23_S_1982;:�eri _-Petition No: 22.- :.t ' 82. in he name off__ Benjamin Farn_um�•2--'and"ta--allow=-the-extension;- and !that-.WNEV-TV•'be -._ - allowed.-to;*extP_nd;:the ex�i� g antenna to-_a_height'mot .to`exceed— 35 'feet•:froe.. reserit�"hs�ght on'th� premises=located_ n..the:-r- West side of-, Boston -Street" nd.-known as_Boston- Hill; ".owned--by'_- - -- Benjamin Farnum`subject-to-the !condition •that-only WNEV-TV :and-its '.. successors be`-.allowed_to .use"theextended antenna:-;j _. The Board finds that under- the provisions of Section- 10 .-31 the site; Boston Hill, is an appropriate location for the use and structure __ since the site has been used since 1957 for said use . Further, ° that as developed under the Special Permit, the use and the extensic will not advera-ely- affect .the neighborhood since the site- is in a remote area and is not located near a road or walkway. .: In"addition, since the- site is in a remote area, there will 'be no nuisance-or- - .. serious hazard to :vehicles or pedestrians and -that there-currently = exists -adequate- and appropriate .-facilities for the proper operation- of :the use.- , - Sincerely i-- Frank Serio, Jr.- , Chairman 3w . EXHIBIT 8 COMMONWEALTH OF MASSACHUSETTS TOWN OF NORTH ANDOVER BOARD OF APPEALS PETITIONS OF JOHN CARTER AND RAY AGLER Background On January 4, 1958, the North Andover Board of Appeals issued a decision granting a variance .to permit the erection of a tower to a height in excess of that otherwise permitted on Mill ' s Hill, off 300 Chestnut Street, North Andover. A copy of that decision is attached hereto as Exhibit "A The tower was subsequently erected and used consistently over the years, primarily by M.I.T. and the MITRE CORPORATION under the terms of written leases. Mr. Jack Carter and Mr. Ray Agler purchased. the lot on which the tower sits in April, 1979, subject to a written lease to MITRE CORPORATION. In August, 1981, Messieurs Carter and Agler entered into an agreement with Electrocom Corporation for the operation and manage- ment of the "Mills Hill Antenna Site" for the installation and operation of .radio communication systems "including, but not limited to, transmitters, receivers, antenna supports or masts, cable and wiring, and accessories used therewith. " Since August, 1981, the site has been utilized in accordance with that agreement. In September, 1982, Messieurs Carter and Agler entered into a lease with Rollins Cablevision of Massachusetts, Inc. ("Rollins") for the use by Rollins of the tower for its cable television equip- ment. On December 3, 1982, the Building Inspector of the Town of North Andover (Charles H. Foster) issued a letter decision in which he found: (1) That the proposed use of the Mill's Hill tower by Rollins was a change in use that could not be allowed, since it would be "for commercial purposes"; and (2) That a special permit would be required to allow what Mr. Foster believed to be a "change or expansion of a non-conforming use of structure. " The Building Inspector's decision was issued in response to a letter from Benjamin and Linda Farnum, 1370 Turnpike Street, North Andover. Until said decision, Mr. Carter and Mr. Agler, as well as their Lessee--Rollins, were under the impression and clear belief that the proposed use by Rollins was clearly within the scope of the 1958 variance, and that no further permits were required. As a result of the Building Inspector's letter, Rollins, as Lessee, petitioned this Board to overturn that decision and/or for a special permit. (Petitions numbered 5 and 6 of 1983) . At the hearing on the petitions on January 10, 1983, no abutters appeared in opposition to the petitions. However, the Farnums, through their attorney, Howard Berger, objected strenuously. He stated that Rollins had been dealing at length with his clients, and that his clients had therefore sought and obtained a special permit from this Board so as to be able to enter into a lease with Rollins (see Petition number 22 of 1982, granted on July 23, 1982) , only to find that Rollins instead was now dealing with Mr. Carter and Mr. Agler to use the Mill' s Hill site. This Board denied Rollins' petitions on February 1, 1983. Rollins has since decided not to continue its lease agreement with Mr. Carter and Mr. Agler, and instead entered into a lease with the Farnums not later than March, 1983. Rollins thus no longer has any legal interest in the Mill's Hill site. Mr. Carter and Mr. Agler have had nothing further to do with Rollins. The petitioners are now left in the position of wondering whether there is any problem with the existing agreement with Electrocom Corporation; (that is, whether the use being made of the tower is permissible) and whether they are free to enter into future contracts for the use of the tower at Mill's Hill for commercial purposes for which it is well-adapted. Such uses may, for example, include anything that has been allowed to the Farnums. The Current Petitions 1) The first petition by Carter/Agler seeks to overturn the Building Inspector's decision. Quite simply put, the Building Inspector's sole reason for objection to Rollins' proposed use was that it would be for "commercial purposes. " However, the Farnums' petition for a special permit was allowed without any mention even being made by this Board about the "commercial" use proposed. Therefore, the Board obviously feels that the use of such property for "commercial purposes, " in and of itself, is nonobjectionable (that is, not a change in use) . The petitioners believe that this is the correct position to take, and it obviously renders the Building Inspector's decision incorrect. 2) The second petition need not even be addressed if the first petition is allowed. However, if the Board upholds the Building Inspector's decision, petitioners say that the Board must grant them a special permit because: -2- (a) The history of the Mill' s Hill site owned by Mr. Carter and Mr. Agler is very similar to the other tower site in the Town (Boston Hill, owned by the Farnums) ; (b) The tower exists and has existed at its current site and essentially in its current form since 1958; (c) The use to be made of the tower is a mere continuation of the past uses; (d) The Board allowed a special permit for a similar structure and uses on Boston Hill in 1982; to deny the same consid- eration to these petitioners would be arbitrary and would severely damage petitioners' use of their property and thus. its value; (e) The tower has been and will continue to be unmanned; poses no noise, odor, aesthetic or traffic problem; and other than the possible replacement of the current equip- ment shed with one of a slightly larger size and more solid construction, all within a heavily screened area, no structural changes are contemplated; (f) These petitioners merely wish to receive the same consid- eration and advantages granted by this Board to the Farnums,. owners of Boston Hill. In connection with this point, petitioners point out that this case is an even stronger one than that presented by the Farnums since: (i) Mill's Hill is in an R-3 zone, whereas Boston Hill is in an R-2 zone. (ii) The Farnums needed approval to build a tower on top of their existing structure, which this Board allowed. Mr. Carter and Mr. Agler do not require any such approval, as they merely seek to continue to use the existing tower structure. (iii) The Farnum's site and tower is quite visible to those in its surrounding area and from Route 114, whereas the tower at Mill 's Hill is substantially hidden from view. (iv) No abutters have objected to this petition, nor did any abutters object to Rollins' earlier petitions seeking to use Mill ' s Hill. The only objections to Rollins' petitions were from the Farnums themselves. There we're objections by at least one abutter to the Farnums' petition for a special permit. (v) The 1958 variance granted on the Mill 's Hill site was clearly a variance, and was granted without any specific conditions attached. -3- i The 1957 decision on the Boston Hill site is now believed to have been a variance, although the Board was not always so clear about that. Further, the 1957 decision specifically attached conditions. (g) It is believed that there are no factual reasons whatso- ever to discriminate against these petitioners by denying a special permit when that relief has recently benn granted to other people who are similarly situated. (h) In the circumstances as presented, to deny the same con- sideration to these petitioners as has been granted to others would be unsupportable, arbitrary and motivated by considerations outside the scope of the legitimate concerns of this Board of Appeals and its authority under G.L. c.40A and the Town' s zoning by-laws. See Cargill v. Danvers Zoning Baord of Appeals, Essex Superior Court, No. 83-1037, 1038 (1983) . Jack Carter and Ray Agler, By their Attorney, DATED: November 14, 1983 biartin J"c s, Esquire Law Off' c of Steven M. Brody One Faneuil Hall Marketplace Boston, Massachusetts 02109 Telephone: (617) 367-8808 -4- COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION JOHN E. CARTER and ) RAY-MOND B. AGLER, ) Plaintiffs ) V. ) No. 83-462 WALTER F. SOULE, FRANK SERIO, JR. , ) RICHARD J. TREPANIER, AUGUSTINE W. ) NICKERSON, RAYMOND A. VIVENZIO, ) MAURICE S. FOULDS, and ROLLINS } CABLE VISION OF MASSACHUSETTS, INC. , ) Defendants ) i JOHN E. CARTER and ) RAYMOND B. AGLER, ) Plaintiffs ) No. 83-3005 V. } FRANK SERIO, JR. , RICHARD J. ) TREPANIER, WILLIAM J. SULLIVAN, ) WALTER F. SOULE, and RAYMOND A. ) VIVENZIO, ) Defendants ) . . . . . . . . . . . . . ) PLAINTIFFS' BRIEF IN SUPPORT OF 140TION'(S) FOR SU14MARX JUDGMENT (A) STATEMENT OF ISSUE PRESENTED Whether the decisions of the North Andover Board- of Appeals to deny special permits to Plaintiffs and Plaintiffs' lessee to use an existing tower for commercial purposes were unsupported by substantial evidence, were unreasonable, arbitrary and motivated by considerations outside the scope of the legitimate concerns of the Board of Appeals and its authority under G.L. c.40A and the Town' s Zoning By-laws. (B) ARGUMENT I. THE DECISIONS OF THE NORTH ANDOVER BOARD OF APPEALS TO DENY A SPECIAL PERMIT TO EITHER PLAINTIFFS OR PLAINTIFFS` LESSEE TO USE AN EXISTING TOWER FOR COMMERCIAL PURPOSES WERE UNSUPPORTED BY SUBSTANTIAL EVIDENCE, ARBITRARY AND MOTIVATED BY ILLEGITIMATE CONCERNS. The facts in this case are set forth at length in the Plaintiffs' Complaints and the Affidavit of John E. Carter, both with substantial documentary exhibits attached. The length and bulk of the factual recitation, however, should not obscure what is essentially a very simple, straight- forward situation. Two towers for electronic communcations were approved and built in North Andover in 1957-1958, and were used in parallel primarily for research purposes until 1981-1982, at which time the series of decisions by the North Andover Board of Appeals described in the Carter Affidavit resulted in the towers and owners thereof being afforded radically different treatment. No discernible reason for the disparate treatment has ever been given, and none exists. The Plaintiffs are left with a tower that cannot safely be used for any purposes, while the rival tower owner has been blessed with approvals for several commercial uses and users, both before and after the denials of Plaintiffs' petitions. The instant case is in many ways remarkably similar to another recent case in this Court, Cargill v. Danvers Zoning Board of Appeals, Essex Superior Civil Action No. 83-1037 (September 9, 1983) , a copy of which is -2- attached hereto as Exhibit A. In Cargill, Justice Flaksman anulled a Danvers Zoning Board of Appeals decision which denied a marina owner a special permit to dredge an area of the Porter River when other parties, including the Town of Danvers itself, were granted such permits. J. Flaksman found that the Danvers Zoning Board of Appeals action was "based upon factual findings inherently incon- sistent with those necessary to support the prior related grants to dredge and the current permit for the town. " Cargill, at p. 5 (paragraph 19) . Our case is even stronger. Here, the North Andover Board of Appeals made no factual findings whatsoever to support its denial of the special permits sought by Plaintiffs' lessee (in the first instance) and, later, the Plaintiffs themselves. There is nothing in any of the Board's decisions which in any way attempts to distinguish the Plaintiffs' tower site from the other tower site factually. The only discernible reason put forth by the Board in acting on the petitions involving Plaintiffs' tower was by way of the adoption of the Town Building Inspector's opinion that "the proposed use of the tower for commercial purposes is a change in use which cannot be allowed" without a special permit. (See Ex. 3 to Plaintiffs' Complaint in Civil Action No. 83-462 . ) Here, even assuming the Building Inspector was correct, the Board refused Plaintiffs a special permit while granting a special permit to the rival tower site owner without even discussing the "commercial purposes" objection. Our case is stronger still. As set forth in the Statement submitted to the Board of Appeals at the hearing on Plaintiffs ' -3- own petition for a special permit on November 14, 1983, in almost every conceivably relevant and reasonable factual way, the Plaintiffs' case for a special permit was stronger than that of the Farnums (and the Boston Hill site) . (See Exhibit 8 to Affidavit of John E. Carter) . What, then, was the objection to granting Plaintiffs the special permit, as requested? Plaintiffs do not know. Perhaps it was illegitimate preference given to long-standing residents who may have been well known to Board members (the Farnums) over newcomers to the Town (the Plaintiffs) . Or perhaps, as Plaintiffs once believed, it was due to misgivings by the Board about the role played by Rollins Cablevision in all of this. But this latter explanation does not appear to be the case., since the Plaintiffs themselves petitioned the Board the second time (November, 1983) , after their connection with Rollins had been severed, and the Board rebuffed them. Whatever the concerns or motivations of the Board of Appeals and its members may have been, they were certainly not expressed and must have been improper. The effect of the Board's decisions on Plaintiffs, however was and is crystal clear. Their tower, which was and should still be, a very valuable asset, is now worth nothing at all to them. A long- term lease contract with a large corporation in a new and thriving industry (cable television) was irretrievably lost. Finally, it should .be noted that at the November 14, 1983 hearing before the Board of Appeals, the disparate treatment being afforded the Plaintiffs vis-a-vis the Farnums as a result of the Board's decisions was set forth in great detail. (See -4- Exhibit 8 to Affidavit of John E. Carter. ) The Cargill decision was cited to the Board and copies thereof made available to them. The Board denied the Plaintiffs' petition anyway. (C) CONCLUSION/RELIEF SOUGHT Plaintiffs seek the following relief: (i) An Order from this Court entering judgment that the decisions of the North Andover Board of Appeals (No. 6 of 1983 and No. 65 of 1983) are annulled, and that the Special Permits sought by the petitions in those cases are granted. Cargill V. Danvers' Zoning Board of Appeals,, supra. Costs and reasonable attorneys ' fees against the Board as authorized by G.L. c.40A, §17, since the Board's successive denials of petitions by Plaintiffs' lessee and then Plaintiffs themselves were completely without reason and blatantly arbitrary, and forced Plaintiffs to pursue their appeals in this Court. This action by the Board was grossly negligent, in bad faith and/or done with malice toward the Plaintiffs. Respectfully submitted, By their Attorney, April 20, 1984 Martin Jacobs, Esquire Law Offices of Steven M. Brody One Faneuil Hall Marketplace Boston, Massachusetts 02109 Telephone: (617) 367-8808 -5- EXHIBIT A COMMONWEALTH OF MASSACHUSETTS ® ESSEX, ss. SUPERIOR COURT CIVIL ACTIOtk NOS. 8B-1037, 38 THOMAS E. CARGILL, JR. V S. DANVERS ZONING BOARD OF APPEALS FINDINGS OF FACT, RULINGS OF LAW and - ORDER FOR JUDGMENT This is an action pursuant to G.L. c. 40A, §li for judicial review of the decisions of the Zoning Board of Appeals of the Town of Danvers (the ZBA) brought by plaintiff, a marina owner, after the ZBA denied plaintiff's application for a permit to extend and alter a prior non-conforming use by expansion of the marina and a perru t to dredge portions of the Porter Rifer in the immediate vicinity of plaintiff's property. k Based upon all the material and credible evidence, the exhibits, a view of the neighborhood, and the reasonable infer- ences to be drawn therefrom, I make the following findings and rulings:- 1. The plaintiff is the owner of three parcels of land on the waterfront of the Porter River in the Danversport area of the Town of Danvers. 2. The defendants are the members of the Zoning Board of Appeals (the ZBA) of the Town of Danvers. -2- ® 3. Plaintiff owns and operates a marina at 10 Harbor Street, Danvers, known as "Port Marine" , pursuant to a special permit issued to his predecessor in interest, John S. Bray, by the ZBA on April 12, 1971. 4. Port Marine is located in an Industrial I Zoning District. 5. Plaintiff further owns and operates a boatyard and marina at 58 River Street, Danvers, known as Cullen's Wharf, as a permitted non-conforming use. 6. Cullen's Wharf is located in a Residence I Zoning District. 7. On January 25, 1983, plaintiff filed an application with the ZBA for a special permit under Sections XI and XIA of the Town of Danvers Zoning By-Laws, which is hereby incorporated by reference into this decision, to dredge approximately 9, 300 cubic yards of material from the Porter River at and adjacent to the plaintiff' s property on River Street and Harbor Street. 8. On January 25, 1983, plaintiff also filed an applica- tion with the ZBA'in order to extend and alter the non-conforming use at Cullen's Wharf by removing the existing pier and floats to create 64 new slips, thereby increasing the size of the marina from approximately 90 boats to 144 boats. 9. On February 28, 1983, March 21, 1983, and April 4, 1983, after due notice pursuant to G.L. c. 40A, §11 , the ZBA heard the application of the plaintiff. -3- 10. On April 4, 1983, the ZBA denied the two applications. 11. In denying the Special Permit to dredge, the ZBA found that plaintiff's proposed dredging activity would: A. last for several months; B. create truck traffic; C. create noise problems; D. create odor problems; E. create increased boat storage capacity; F. create additional traffic; G. adversely affect the surrounding neighborhood; H. overload the public street; I. be an "undue nuisance to the area" ; J. be not appropriate to the area; and K. be not in harmony with the general purpose of the Zoning By-Laws. 12. In denying plaintiff's proposed expansion of a non- conforming, the ZBA found that: A. increasing the in-water boat storage capacity from 90 boats to 144 boats would cause a related increase in traffic and parking; B. the number of parking spaces available for use depends upon boat owners removing their boats from the parking area; -4- C. the plaintiff's data on the number of boats in the parking area cannot be relied on; D. the site is located in a congested residential neighborhood; E. there are existing traffic problems in the immediate area; F. there are existing parking problems in the immediate area; G. additional boats would cause additional garbage in and on properties in the area and would cause additional hazards to swimmers in the immediate area of the site; H. the proposed removal of the pier and floats and substitution of slips would be substantially more detrimental to the neighborhood Athan the existing use; I. granting the permit would adversely effect the neighborhood, overload the public streets, and create an undue nuisance; and J. the site- is not an appropriate site for the pro- posed removal of the pier and floats and substi- tution of slips. • -5- 13. on April 19, 1983, the decisions of the ZBA were filed with the Town Clerk as required by G.L. c. 40A, 515. L14-) With respect to the proposed dredging activity, both the town and adjacent boatyard owners were granted sub- stantially equivalent permits in 1961, 1969, and 1970. 15. The river has silted approximately three to four feet since last dredged in 1970. X16. The town has been granted a permit to dredge the river. The area to be dredged by plaintiff is miniscule in comparison to that proposed by the town. 17. The plaintiff proposes to use the same dredging contractor and procedures as the town. X18. The proposed dredging is necessary to maintain plain- tiff's existing business. (-1-9. The action of the ZBA in denying the permit to dredge is based upon factual findings inherently inconsistent with those necessary to support the prior related grants to dredge and the current permit for the town. Accordingly; the decision of the ZBA to deny the permit to (_2)0 dredge was arbitrary and motivated by considerations outside the scope of the legitimate concerns of the ZBA, and their author- ity under G.L. c. 40A and the town's Zoning By-Laws. 21. The proposed expansion of the existing non-conforming use was supported by: • � I -6- A. recommendations by the Army Corps of Engineers; B. recommendations of the Town of Danvers River Study Committee; C. recommendations by the Town of Danvers Board of Health; D. recommendations by the Town Conservation Commission; and E. recommendations by the Town Planning Board 22. For purposes of applying and interpreting the statu- tory and Zoning By-Law criteria pertaining to the proposed ex- pansion, the "neighborhood" is the peninsula of land in Danvers on which the Port Marine and Cullen' s Wharf are located, bor- dered by water Street, Liberty Street, the Crane River and the Porter River. 23. The credible evidence indicates that the parking in the area is more than adequate, there being a public parking lot approximately 200 feet from Port Marine. 24. - There is nonsignificant impact on parking in the winter months as very little activity occurs at the boatyard during that time. 25. There is no significant impact on parking in the summer months as wooden skids used to store the boats in the winter are I'� -7- then removed to .a corner of the boatyard thus making available more than ample parking spaces. 26. There is no credible evidence of an "illegal parking • problem" on the streets in the area of the proposed expansion. 27. There is no credible evidence that the neighborhood is congested or subject to a "traffic problem". 28. In 1976, the ZBA granted similar permits to a marina approximately 600 feet from Port Marine and 750 feet from Cullen's Wharf to dredge and to construct new floats and walk- ways, allowing five.years to complete the work. This permit was amended by decision Of the ZBA in November of 1981 to allow two additional years to complete the work. 29. The neighborhood surrounding the proposed expansion is more than 60% devoted to non-residential uses, 'and numerous permits have been issued to allow owners of land to bonstruct and convert to multi-family dwellings in close proximity to the neighborhood. 30. A reasonable consideration of all the credible evidence received-by the Court including a view of the area compels the conclusion that reasonable minds could not differ on ,the actual or potential seriousness of the problems which might result from the issuance of the permit to expand the prior non-conforming use. ® a s i.�.,t• t ( 31.' Accordingly, the decision of the ZBA to deny the permit to expand a non-conforming use was not supported by substantial evidence, /A bitrary, and motivated by consider- ations outside the scope of the legitimate concerns of the ZBA and their authority under G.L. c. 40A and the Town' s Zoning By-Laws. 32. Although the decisions of the ZBA on the proposed permits were not filed in the Town Clerk' s Office until April 19, 1983, the previous day, April 18, 1983, was a legal holiday and the filing wds therefore timely pursuant to G.L. c. 4, §9. ORDER For reasons stated let judgment enter that the decisions of the Town of Danvers Zoning Board of Appeals are annulled. Plaintiff's Special Permits to dredge and to expand a prior non-conforming use are hereby granted. Samuel . . Fla sman Justic Entered: September �, 1983 COMMONWEALTH OF MASSACHUSETTS ® ESSEX, ss. SUPERIOR COURT Civil Action 83-1037 83-1038 ITHOMAS E. CARGILL, JR. �IVS. DANVERS ZONING BOARD Or APPEALS JUDGMENT �i This. action came on for hearing before the Court, Flaksman, J. presiding, and the issues having been duly heard and findings having been duly rendered, It is Ordered and Adjudged: that the decisions of the defendant Danvers Zoning Board of Appeals are annulled and plaintiff' s Special Permits to dredge and to expand a prior non-conforming use- are hereby granted. The Clerk-Magistrate of the Court is directed to mail �i an attested copy of this judgment within thirty (30) days from 1i the date hereof, to the Town Clerk, Building Inspector and 1 fl Board of Appeals, respectively of the Town of Danvers. - I Dated at Peabody, Massachusetts this 9th day of I, September, 1983. f Assistant C erk i i i ® �I p 'I ii ' t COM11OWKEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. JOHN E. CARTER and ) o RAYMOND B. AGLER, Plaintiffs V. ) COMPLAINT •= -r,T FRANK SERIO, JR. , RICHARD J. TREPANIER, ) w WILLIAM J. SULLIVAN, ) WALTER F. SOULE, AND ) RAYMOND A. VIVENZIO, ) Defendants ) 1. The Plaintiffs are the owners of real estate at 300 Chestnut Street, North Andover, Massachusetts, in the County of Essex, and are persons aggrieved, within the meaning of G.L. c.40A §17, by the decision of the Board of Appeals of the Town of North Andover in denial of their petition for a Special Permit for the use of a tower on said premises. See copy of petition attached hereto and incorporated herein as Exhibit 1. 2. The Defendants, Frank Serio, Jr. , Richard J. Trepanier, William J. Sullivan, Walter F. Soule and Raymond A. Vivenzio, are duly constituted and regular members of the Board of Appeals of the Town of North Andover, and all residein the Town of North Andover as follows: Frank Serio, Jr. 250 Hillside Road (Chairman) North Andover, Massachusetts 01845 Richard J. Trepanier, Esq. 308 Massachusetts Avenue (Clerk) North Andover, Massachusetts 01845 William J. Sullivan 405 Salem Street North Andover, Massachusetts 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, Massachusetts 01845 j i Raymond A. Vivenzio 11 Appledore Lane North Andover, Massachusetts 01845 E 3. Plaintiffs filed said petition with the Board of Appeals, Tovm of Andover prior to November 14, 1983. 4. The said petition was properly advertised, and notice of i public hearing was mailed by the Board of Appeals to the various required parties and owners; and, pursuant to said notices, a hearing on said petition was held at the Town Hall on November 14, 1983. { 5. Said petition was not a "repetitive petition" governed by Section 16 of M.G.L. c.40A or Section 10.8 of the Town's Zoning By-Laws'. 6. In a decision dated November 23, 1983 and filed on r November 28, 1983 with the Town Clerk, the Board of Appeals denied Plaintiffs' petition. Certified copies of said decision and Notice" of Decision are annexed hereto and in- corporated herein as Exhibits 2 and 3. I 7. The reasons for the findings made by the Defendant members of the Board of Appeals of the Town of North Andover are insufficient in law to warrant the denial of the petition under the provisions of M.G.L. , c.40A X15, and the purported -2- "decision" of the Board of Appeals does not constitute a decision supported by proper reasons as required bv. §15 (5) of Chapter 40A. 8. The tower on the subject premises, by virtue of the decision of the Town of North Andover's Board of Appeals (as described and attached hereto as Exhibits 2 and 3) cannot now be safely used in the manner in which it has been used, and in the manner which another tower owner in North Andover has recently been allowed by the same Board of Appeals. 9. The decision of the Board of Appeals exceeds the Board' s authority, was not supported by substantial evidence, is arbitrary, unreasonable, whimsical, and capricious, is entirely inconsistent with an earlier ruling on virtually identical issues in regard to a tower on "Boston Hill" in North Andover, Massachusetts, and was motivated by consider- ations outside the scope of the legitimate concerns of the --- Board he ___Board and the Board's authority under G.L. c.40A and the Town's Zoning By-Laws. See copy of. decision attached hereto and incorporated herein as Exhibit 4. _ 10. Desirable relief can be granted to the Plaintiffs without substantial detriment to the public good, and without substantially derogating from the intent and purpose of the zoning by-law. WHEREFORE, the Plaintiffs seek: A. That the findings and rulings of the Defendant members of the Board of Appeals of the Town of North Andover,. denying -3- Plaintiffs' petition for a Special Permit, heretofore S previously described, be annulled and that this Court make an order granting Plaintiffs the Special Permit, as sought. r e B. Costs and reasonable attorneys' fees against the Board as authorized by M.G.L. c.40A §17 where the Board acted with gross negligence, in bad faith and/or with malice. C. For such other and further relief as this Court may deem r just and proper under the circumstances. By their Attorney, r W- Ixaf Marti Jac b One Faneui all Marketplace Boston, . Massachusetts 02109 Telephone: (617) 367-8808 DATED: December 16, 1983 i - E f s i -4- Of MORrh ivied by Town Clerk : o� "..• •'�� 0 Dat,' : = R , CJDOF NORTH ANDOVER, MASSACHUSETTS a Gh,�.s.__ ` 11,4; BOARD OF APPEALS -•4;t,,.=r . i 0 Ti t�`ii MUS SSICftt� Ti me : 14OR .e ?,O Notice : This application must be typewritten APPLICATIOPCOR RELI4E�F� F8ROM THE REQUIREMENTS OF THE ZONING ORDINANCE John E. Carter Raymond B. Agler 300 Chestnut Street Applicant Address No. Andover, Ma. 01845 � - ► 4-may- , is hereby 1 . Application Y made N/A ( a) -a-w-ar armee-#-ro-�- -he- ti-�^ere� -s--of--rec t-rc�n---------f'a ra-grapir 9.1 and (b) Fora Special Permit under Section 9 Paragraph 9.2 of the Zoning By-Laws . N//A ( c) s -x-Tra-i~tq-�ggri Ev�d;--F�r- vT�w-o a-d�ci'si�rr-m '-by-the- ri�zf'rR g _, and tower 2 . ( a) Premises affected are land X and buildings ) X numbered off 300 Chestnut Street Street . (known as-�il1s Hill") ( b) flfi��s--affiect�-d-are-p-ropertq- r-i ttrfrorrtaga--¢rr-t -N�rh- =--� ��raet,--and--icrrorov-rr-as--Nv- Sheet ( c) Premises affected are in Zoning District R-3 and the premises affected have an area of 3.75 acres -sqo-dre-f-e-e-t and frontage of 1.25 Feet . on Chestnut Street. 3. Owners hip(Assessor's Map 98C, Parcel 2) I (a.) .Jame and address of owner ( if joint ownership , give all names ) : John E. Carter & Raymond B. Agler, 300 Chestnut St. , North Andover, MA ��3�79 Herbert & Joan Hatem Date of purchase Previous• Owner.—Joseph V Mahoney (b) If applicant is not owner , check his interest in the premises : Prospective Purchaser Lesee Other (explain ) 4. Size of proposed building : 12 front ; 24 feet deep ; Height : 1 stories ; 8 feet., plus 15' for dishes. (a ) Approximate date of erection : Within 6 months after application is allowed. ( b) 0 c c u p a n cy o r u s e o f e a c h f 16 o r : Proposed utility ui ing will replace exist- ing building for storage of equipment. (c ) Type of construction.: Prefabricated precast concrete. 5 . Size of existing building : 10 feet front ; 12 feet deep ; Height : 1 stories ; 8 feet . Tower height: 1— O�et (a ) Approximate date of erection : 1958 (b) Occupancy o r use of. each floor : Utility building houses electronic equipment; standard electronic communication equipment is attached to the tower. (c) Type of construction: Steel radio tower. 6. Has there been a previous appeal , under zoning , on these premises? Yes If s o , when? January 4, 1958 (Variance granted at that time) . 7. Description of relief sought on this petition A Special Permit under Sections 9.1. and 9.2 to allow the Applicant to use the existing 140' communication tower (built pur- suant to the 1958 Variance) and the proposed utility building for electronic communica- tions eaul=ent, antennas and dishes 8. Deed recorded in - the Registry of Deeds in Book 1366 Page 556 or Land'..,Court Certificate No. N/A Book Page V _ i The principal points upon which I base my application are as follows ; (Must be stated i n d e t a i l ) The 140' communication tower has been inexistence since 1958. The tower site is enclosed by an existing 35'X35' (approx.) galvanized steel fence 6' in height. There will be no structural or height changes to the existing tower. The existing utility building will be replaced with a more attractive prefabricated precast concrete utility building. The site will continue to be unmanned and will thus not increase traffic on the site or in the neighborhood. The effect on the surrounding neighborhood will be no different than that now in ex- istence. Applicant seeks to safely use the property in the same manner and to the same extent as this Board allowed and approved for Benjamin Farnum in this Board's decision of July 23, 1982 Pe- tition # 22..$2) . Our ability to safely use our property under the terms of the 1958 Variance seems to be somew_a inques ion as a result of thisBoard's decisions(Petition # 5-83 and # 6-83)on the petitionb_�-'of Rollins Cablevision of Mass. , Inc. I agre o pay of advertising in newspaper and incidental expenses* J Petitioner ' s Signature S � c. 1 APPLICATION ORM _. E ry application f action by the Board shall be made on a form at oard. •These--forms shall be furnished by the clerk upon request . Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such time as it is made on the official application form. All in- formation called for by the form shall be furnished by the applicant in the manner therein prescribed. Every application shall be .submitted with a list of "Parties in Interest" which list shall include the petitioner , abutters , owners of land directly opposite on any public or private street or way , and abutters to the abutters within three hundred feet of the property line of the.-petitioner as they_appear -on -the most recent applicable. tax_-_list ; notwi.thstandin-g that the land of any such owner is located in another city or town , the Planning Board of the city or town , and the Planning Board of every abutting city or town . * Every application shall be submitted with an application charge cost in the amount of $25 . 00 . In addition , the petitioner shall be respon- sible for any and all costs involved -.in bringing the petition before the Board. Such costs. shall include mailing and publication , but are not necessarily limited to these.. LIST OF PARTIES IN INTEREST flame - Address- See Attached Sheet ( Use additional sheets if necessary) j i -.LIST OF AB[TITERS Address Name - Dewi Realty Trust 130 Lisa LaneNorth Andover, MA 01845 Gilbert 0.`Rea Nine f'� /�„ •p r�� /��1 300 Chestnut Street Greenwood Associates North Andover, MA 01845 386 Chestnut Street ✓ North Andover, t41A 01845 Maria Jean Woodford 386 Chestnut Street North Andover, MA 01845 ,�• Henry & Kathleen M. Hamel 374 Chestnut Street North Andover, MA 01845 Thomas D. & June E. Fi364 Chestnut Streetnocchiaro North Andover, MA 01845 --Rn. ae-fitter 2 Blueberry Hill Lane North Andover, MA 01845 T spa 21 Evergreen Drive North Andover, MA 01845 ` 108 Brookings Street �- Paul V. Davis Medford, MA 02155 IThomas G. & Margaret E. Bentley le 425 Chestnut Street , 1 Peter J. & Karen K. - ' i 4,,,- North Andover, MA 02155 �(U" -435 Chestnut Street ✓X bd 1=13am- North Andover, MA 01845 gA5Chestnut Street Jr.F;-� v�ry Kelly rIorth dover, MA 01845 John A & Fr��as -W'� � sky 94 Blueberry Hill Lane North Andover, MA 01845 �( 7oh n T. P�'-Buz�mtt 84 Blueberry Hill.Lane North Andover, MA 01845 ienne74 Blueberry Hill Lane x P �-GF&-Addx �M Z North Andover, MA 01845