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Miscellaneous - 320 Pleasant Street
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L „- w ;t ItORTI, Zoning Bylaw Review Form p Town Of North Andover Building Department 1600 Osgood St. Bldg 20 Suite 2-36 9SS ""SEt North Andover, MA. 01845 Phone 978-688-9545 Fax 978-688-9542 Street: 320 PLEASANT STREET Ma /Lot: MAP 95 PARCEL 35 ZONE R4 Applicant: RYAN SCHRUENDER Request: VARIANCES—CONSTRUCT A NEW HOME Date: JUNE 01, 2016 Please be advised that after review of your Application and Plans that your Application is DENIED for the following Zoning Bylaw reasons: Zoning Item Notes Item Notes A Lot Area F Frontage 1 Lot area Insufficient X 1 Frontage Insufficient 2 Lot Area Preexisting 2 Frontage Complies X 3 1 Lot Area Complies 3 Preexisting frontage 4 Insufficient Information 4 Insufficient Information B Use 5 No access over Frontage 1 Allowed X G Contiguous Building Area 2 Not Allowed 1 Insufficient Area 3 Use Preexisting 2 Complies X 4 Special Permit Required 3 Preexisting CBA 5 Insufficient Information 4 Insufficient Information C Setback H Building Height 1 All setbacks comply 1 Height Exceeds Maximum 2 Front Insufficient 'R kly 2 Complies X 3 Left Side Insufficient 3 Preexisting Height 4 Right Side Insufficient 4 Insufficient Information 5 Rear Insufficient I Building Coverage N/A 6 Preexisting setback(s) 1 Coverage exceeds maximum 7 Insufficient Information 2 Coverage Complies Q Watershed 3 Coverage Preexisting 1 Not in Watershed X 4 Insufficieni Information 2 In Watershed j Sign N/A 3 Lot prior to 10/24/94 1 1 Sign not allowed 4 Zone to be Determined 2 Sign Complies 5 Insufficient Information 3 Insufficient Information E Historic District K Parking N/A 1 In District review required 1 More Parking Required 2 Not in district X 2 Parking Complies 3 Insufficient Information 3 Insufficient Information 4 Pre-existing Parking Remedy for the above is checked below. Item# Special Permits Planning Board Item# Variance Site Plan Review Special Permit X Setback Variance Access other than Frontage Special Permit Parking Variance Frontage Exception Lot Special Permit Lot Area Variance Common Driveway Special Permit Height Variance Congregate Housing Special Permit Variance for Sign Continuing Care Retirement Special Permit Special Permits Zoning Board Independent Elderly Housing Special Permit Special Permit Non-Conforming Use ZBA Large Estate Condo Special Permit Earth Removal Special Permit ZBA Planned Development District Special Permit Special Permit Use not Listed but Similar Planned Residential Special Permit Special Permit for Sign R-6 Density Special Permit Special permit for preexisting nonconforming Watershed Special Permit The above review and attached explanation of such is based on the plans and information submitted. No definitive review and or advice shall be based on verbal explanations by the applicant nor shall such verbal explanations by the applicant serve to provide definitive answers to the above reasons for Any inaccuracies,misleading information,or other subsequent changes to the information submitted by the applicant shall be grounds for this review to be voided at the discretion of the Building Department.The attached document titled'Plan Review Narrative"shall be attached hereto and incorporated herein by reference. The building department will retain all plans and documentation for the above file.You must file a new permit application form and begin the permitting process. J�.Olc Buil g Department fficial Signature Application Received v�icatfion Denial Sent: If Faxed Phone Number/Date: Plan Review Narrative The following narrative is provided to further explain the reasons for DENIAL for the APPLICATION for the property indicated on the reverse side: Item Reasons for Reference SECTION VARIANCE TABLE 2 SUMMARY OF DIMENSIONAL REQUIREMENTS 7.1, 7.1.2 & Lot Area Required 12,500, Proposed 10,467 7.2 Required 20 Feet, Proposed 15 feet Variance needed 5 feet Referred To: Fire X Health Police X Zoning Board X Conservation X Department of Public Works X Planning X Historical Commission Other X Building Department Bk 14954 P o 2 6 2 X 1 1 tee-4 01-13-2017 a 09 = 31" ` Town of North Andover ZONING BOARD OF APPEALS ^'_I' `_= Albert P.mlanzi III,&;q.Cbairrrran T C Ellen P.McIntyre,I-ice-Chairman D.Paul Koch Jr,Esq.Clerk 20116 �, Jry AIN ',e :' 37 r)wig Ludgin Alan Cuscia w� As.codate Afembrn i :. Drncy Morganthal I ;,than Weinreich ,, ,11, Alexandria Jacobs This is to QwVy that twenty(20)days have elapsed from date of decision,ftf6 cierk Tin::s:a,np without Ming of an appeal Date„_, _ / Any appeal shall be filed within(20) Notice of De..^ision J0M A.B11611W days after the date of filing of this Year 2016 Town Cie* notice in the office of the Town Clerk, per Mass. Gen. L.ch. 40A, §17 Property at: 320 Pleasant Street(YIap 95 Parcel 036) Q'v th Andover,IMA 01845 _ NAME Ryan Schruender HEARING(S): June 28,2016,August 18, 2016, September 13,2016, October 10,2016,November 01,2016 &December 13. 2016 _ ADDRESS: 320 Pleasant Street,North Andover, PETITION: 2016-008 ,.'VIA. 01845 _J T.he North Andover Board of Appeals held a public hearing at The Town Hall, at 120 Main Street,North Andavc F, MA on Tuesday, December 13,2016 at 7:30 PM on the application of Ryan Schruender,for property locate,i at .,1, Pleasant Street (Map 95, Parcel 036), North Andover, MA 01845. The Petitioner is requesting a dimensior;al Variance of 2,033 square feet from the required minimum lot area of 12,500 square feet pursuant to Secticln 1.1 and Table 2 of the Zoning Bylaw (Dimensional Requirements for Lot Area) in the R-4 Zoning District. Lot t a-es, Proposed is 10,467. Legal notices were sent to all the certified abutters provided by the Town of North Andover,Assessors Offep. anci were published in the Eagle-Tribune,a newspaper of general circulation in the Town of North Andover. on Juan,_.. 10 and June 21St 2016 'The following regular voting members were present,Albert P.Manzi III,Ellen P.Mchityre,Paul Koch and ,udgin also associate member,Deney Morganthal,Nathan Weinreich and Alexandria Jacobs D.Paul Koch made a motion to Grant the Variance under Section 7.1 and Table 2 ofthe Zoning Bylaw ini1je I::•:, r,oning District for 320 Pleasant Street(Map 95,Parcel 036),A Variance of 2,031 square feet from the r.=; ;i'f.• i. minimum lot area of 12,500 square feet pursuant to Section 7.1 and Table 2 of the Zoning Bylaw (L)im;r,sic,n Requirements for Lot Area)in the R-4 Zoning District.Lot Area,granted is 10,467. Dcug Ludgin second the motion to grant the Variance 1-dl those in favor of the Variances were Ellen McIntyre,D.Paul Koch,Deney Morganthal and Doug Ludgin.. 4-0 all in favor Chx_rman Albert Manzi III declared the Variance Approved. 'I:aa:Board finds that owing to circumstances relating to soil conditions, shape, or topogra..phy of the land or structures and especially affecting such land or structures but not a5caing g(maeraliy tbl9 7oaTi ice,district in go-aerat a literal enforcement of the provisions of the Bylaw will involve substantial bards:;p, financial or otherwise,tc the petitioners or applicants.The Board finds that desirable relief may be granted without substantial detriment to tn- public good and without nullifying or substantially derogating from the int,t, ol-tl;e purpose cif this bylavr. The Board also finds that the minimum lot area will not adversely affect the nein--borhood.There will be no tuisance or serious hazard to vehicles or pedestrians. The Board also f•nds thUiF.Wl in;mtur.lot area wi'.1 not b !True CopyP ago:F o':4 t. L `1'c Nvn Uork - substantially detrimental to the existing dwelling and lot as well as the neighborhood and that the minimum lot area. will be in harmony with the neighborhood and general purpose and intent of this Bylaw. Site: 320 Pleasant Street(Map 95,Parcel 036),North Andover,MA 01845 R-4 Zoning District Plan(s)Title: 1. "Site Plan"containing one(1)sheet, Showing Map 95,and Parcels 35 &36,Prepared by Marchionda,Dated 06/16/2016 2. Proposed New Construction Set containing five(5)sheets, drawn by,Martha MacInnis, dated 09/23/2016 3. Plan of Phillips Court prepared by Ralph B Brasseur C.E. dated 10/05/1953 Voting in favor: Deney Morganthal,Ellen McIntyre,D.Paul Koch and Doug Lud in. Voting in the Ne ative: R-in Variance granted favor(Granted) The Board fords that the applicant has satisfied the provisions of Table 2 and Sections '7.1,for 320 Pleasant Street (Map 95,Parcels 036)of the Zoning Bylaw in order to allow for minimum lot area,North Andover,MA 01845 in an R-4 Zoning District. Notes: 1. This decision shall not be in effect until a copy of this decision is recorded at the Essex County Registry of Deeds, Northern District at the applicant's expense. 2. The granting of the Variance as requested by the applicant does not necessarily ensure the granting of a building permit as the applicant must abide by all applicable local, state,and federal building codes and regulations,prior to the issuance of a building permit as required by the Inspector of Buildings. 3. If the rights authorized by the variance are not exercised 1 year of the date of the grant,it shall lapse,and may be re- established only after notice,and a new hearing. No$h Andover Zoning Boar f Appeals Albert P.Manzi III,Esq., Chairperson Ellen P.McIntyre, Vice Chairperson Paul Koch Doug Ludgin Deney Morganthal Decision 2016-008 Page 2 of 2 4 Town of North Andover ZONING BOARD OF APPEALS l4fC Albert P.Manzi I _,II,Esq.Chairman 1 0 V, L Ellen P.McIntyre,Vice-Chairman D.Paul Koch Jr,Esq.Clerk � 'w* , 7016 DEC 23 AM 9: 31 Doug Ludgin Allan Cuscia Associate Afemhers T,; ,"': 0 Deney Morganthal Nathan Weinreich M A''5 Alexandria Jacobs Town Clerk Time Stamp Any appeal shall be filed within(20) Notice of Decision days after the date of filing of this Year 2016 notice in the office of the Town Clerk, per Mass. Gen. L. ch. 40A, §17 Property at: 320 Pleasant Street(Map 95 Parcel 036),North Andover,MA 01845 NAME Ryan Schruender HEARING(S): June 28, 2016,August 18, 2016, September 13,2016,October 10,2016,November 01,2016 &December 13,2016 ADDRESS: 320 Pleasant Street,North Andover, PETITION: 2016-008 MA. 01845 The North Andover Board of Appeals held a public hearing at The Town Hall, at 120 Main Street,North Andover, MA on Tuesday, December 13, 2016 at 7:30 PM on the application of Ryan Schruender,for property located at 320 Pleasant Street (Map 95, Parcel 036), North Andover, MA 01845. The Petitioner is requesting a dimensional Variance of 2,033 square feet from the required minimum lot area of 12,500 square feet pursuant to Section 7.1 and Table 2 of the Zoning Bylaw (Dimensional Requirements for Lot Area) in the R-4 Zoning District. Lot Area, proposed is 10,467. Legal notices were sent to all the certified abutters provided by the Town of North Andover,Assessors Office,and were published in the Eagle-Tribune,a newspaper of general circulation in the Town of North Andover, on June 14th and June 21St 2016 The following regular voting members were present,Albert P. Manzi III,Ellen P.McIntyre,Paul Koch and Doug Ludgin also associate member,Deney Morganthal,Nathan Weinreich and Alexandria Jacobs D.Paul Koch made a motion to Grant the Variance under Section 7.1 and Table 2 of the Zoning Bylaw in the R-4 Zoning District for 320 Pleasant Street (Map 95,Parcel 036),A Variance of 2,033 square feet from the required minimum lot area of 12,500 square feet pursuant to Section 7.1 and Table 2 of the Zoning Bylaw (Dimensional Requirements for Lot Area)in the R-4 Zoning District. Lot Area,granted is 10,467. Doug Ludgin second the motion to grant the Variance All those in favor of the Variances were Ellen McIntyre,D.Paul Koch,Deney Morganthal and Doug Ludgin. 4-0 all in favor Chairman Albert Manzi III declared the Variance Approved. The Board finds that owing to circumstances relating to soil conditions, shape, or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of the Bylaw will involve substantial hardship, financial or otherwise,to the petitioners or applicants. The Board finds that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the purpose of this bylaw. The Board also finds that the minimum lot area will not adversely affect the neighborhood. There will be no nuisance or serious hazard to vehicles or pedestrians. The Board also finds that the minimum lot area will not be .Paige 1 of 2 S' A substantially detrimental to the existing dwelling and lot as well as the neighborhood and that the minimum lot area will be in harmony with the neighborhood and general purpose and intent of this Bylaw. Site: 320 Pleasant Street(Map 95,Parcel 036),North Andover,MA 01845 R-4 Zoning District Plan(s)Title: 1. "Site Plan"containing one(1)sheet, Showing Map 95,and Parcels 35 &36,Prepared by Marchionda,Dated 06/16/2016 2. Proposed New Construction Set containing five(5) sheets, drawn by,Martha MacInnis, dated 09/23/2016 3. Plan of Phillips Court prepared by Ralph B Brasseur C.E. dated 10/05/1953 Voting in favor: Deney Morganthal,Ellen McIntyre,D.Paul Koch and Doug Lud in. -Voting in the Negative: 0 Variance granted 4 in favor(Granted) The Board finds that the applicant has satisfied the provisions of Table 2 and Sections 7.1,for 320 Pleasant Street (Map 95,Parcels 036)of the Zoning Bylaw in order to allow for minimum lot area,North Andover,MA 01845 in an R-4 Zoning District. Notes: 1. This decision shall not be in effect until a copy of this decision is recorded at the Essex County Registry of Deeds, Northern District at the applicant's expense. 2. The granting of the Variance as requested by the applicant does not necessarily ensure the granting of a building permit as the applicant must abide by all applicable local, state,and federal building codes and regulations,prior to the issuance of a building permit as required by the Inspector of Buildings. 3. If the rights authorized by the variance are not exercised 1 year of the date of the grant, it shall lapse,and may be re- established only after notice,and a new hearing. Noyth Andover Zoning BoarX4 Appeals Afbert P.Manzi 111, Esq., Chairperson Ellen P. McIntyre, Vice Chairperson Paul Koch Doug Ludgin Deney Morganthal Decision 2016-008 Page 2 of 2 i TOWN OF NORTH ANDOVER VARIA NIU2 1!: 52 I ZONING BOARD OF APPEALS h I NAME: Yon/ j-CHKVC1geX r �� vrte , ADDRESS OF APPEAL: 32o PLl f�SANT S?RL£�-r, n/o�Th J9n/D a V T ►SF`�t rimeSramp Procedure & Requirements for an Application for a Variance Twelve(12)copies of the following information must be STEP 6:SCHEDULING OF HEARING AND submitted thirty(30)days prior to the first public hearing. PREPARATION OF LEGAL.NOTICE: Failure to submit the required information within the The Office of the Zoning Board of Appeals schedules time periods prescribed may result in a dismissal by the the applicant for a hearing date and prepares the legal Zoning Board of an application as incomplete. notice for mailing to the parties in interest(abutters)and The information herein is an abstract of more for publication in the newspaper. The petitioner is specific requirements listed in the Zoning Board notified that the legal notice has been prepared and the Rules and Regulations and is not meant to cost of the Party in Interest fee. supersede them. The petitioner will complete items STEP 7: DELIVERY OF LEGAL NOTICE TO that are underlined NEWSPAPER The petitioner picks up the legal notice from the Office STEP 1: ADMINISTRATOR PERMIT DENIAL: of the Zoning Board of Appeals and delivers the legal The petitioner applies for a Building Permit and notice to the local newspaper for publication. receivers a Zoning Bylaw Denial form completed by the Building Commissioner. STEP 8: PUBLIC HEARING BEFORE THE ZONING BOARD OF APPEALS: STEP 2: VARIANCE APPLICATION FORM: The petitioner should appear in his/her behalf, or be Petitioner completes an application form to petition the represented by an agent or attorney. In the absence of Board of Appeals for a Variance. All information as any appearance without due cause on behalf of the required in items 1 through and including 11 shall be petition,the Board shall decide on the matter by using completed. the information it has received to date. STEP 3: PLAN PREPARATION: STEP 9: DECISION: Petitioner submits all of the required plan information as After the hearing, a Copy of the Board's decision will be cited in page 4, section 10 of this form. sent to all Parties in Interest. Any appeal of the Board's decision may be made pursuant to Massachusetts STEP 4: OBTAIN LIST OF PARTIES IN INTEREST.: General Law ch.40A§ 17,within twenty (20)days after The petitioner requests the Assessor's Office to compile the decision is filed with the Town Clerk. a certified list of Parties in Interest(abutters). STEP 10: RECORDING THE DECISION AND PLANS. STEPS: SUBMIT APPLICATION: The petitioner is responsible for recording certification of Petitioner submits one (1)original and eleven (11)Xerox the decision, the Mylar,and any accompanying plans at copies of all the required information to the Town Clerk's the Essex County, North Registry of Deeds, 354 Office to be oertified by the Town Clerk with the time Merrimack St.Suite#304, Lawrence MA,01843 and and date of fling. The original will be left at the Town shall complete the Certification of Recording form and Cleric's Office,and the 11 Xerox copies will be left with forward it to the Zoning Board of Appeals and to the the Zoning Board of Appeals secretary. Building Department. IMPORTANT PHONE NUMBERS: 978-688-9533 Office of Community Dev.&Services North Andover Town Hall 1600 Osgood St., Bldg.20,Suite 2035 120 Main Street North Andover, MA 01845 978-688-9501 Town Cleric's Office 978-688-9542 fax for Community Development offices 978-688-9566 Assessor's Office 978-688-9545 Building Department 978-688-9541 Zoning Board of Appeals Office PAGE 1 0 4 PAGE 2OF4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a VARIANCE 9. Petitioner: *Name, *Address and telephone number: A.L4n1 5'C�-t4 u E"Np c,, � yP. Bu — �890 SV PHI" tPs 66 v4f /Ua 41/Do mew, AA *The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address, telephone number, and number of years under this ownership: / S"y Pk411_f'1vf A161 o") N15" Years Owned Land:. L/ /z _ 3. Location of Property: a, Street: 320 P4'e-414Mr- 6TfLe,"_'r Zoning District: b. Assessors: Map number: q5 Lot Number: 36 c. Registry of Deeds: Book Number: 1-2-:34`f page Number: 2 4. Zoning Bylaw SectioIll- s)* under which the petition for the Variance is made. "CC C T-1r✓ � i cn 62 *Refer to the Zoning Bylaw Denial and Plan Review Narrative form as supplied by the Building Commissioner. 5. Describe the Variance request: 4'0?L; 0AVr xt �uEJ 7,t A /N Cbn(Af-EG /o0J W/1-" A2006SfD L<hND /0 /o q6-3L Sr Q12- Sbo I_r R v( The above description shall be used for the purpose of the legal notice and decision. A more detailed description is required pursuant to the Zoning Board Rules and Regulations as cited on page 4,section 9 of this application.Failure by the applicant to describe the request clearly may result in a decision that does not address the intent of the applicant. The decision will be limited to the request by the applicant and will not involve additional items not included above. 6 A. Difference from Zoning Bylaw requirements: indicate the dimension(s)that will not meet current Zoning Bylaw Requirements, (Lines A and Bare in case of a lot split) Lot Area Open Space Percentage Lot Frontage Parking Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear A.l D Yb?- N� N4 % 04 WA- A/,9 A/0 /V;11 NR B.X500 ,J 4 NA % 75- N'9 N19 IVA 6.6 ArA Page 3 of 4 �►r w t*c NORTH ANDOVER ZONING BOARD OF APPEALS application for a v ARIAN v c 6 B. Existing Lot: Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq.Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 1:716 W4 ni4 /Iq, oS /5.9 G- 6 Za 9-7-,2- 6 -7-,Z6 C. Proposed Lot(s): Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear 16 V0 N4 IVA 12-2, og 2- + 15 32- -7 z i :?z ?Soo 1V119 ./JA 15 q 1 IS,L_ 4.6 Zo .32- 7 6 D. Required Lot: (As required by Zoning Bylaw&Table 2) Lot.Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side.6 Rear 1L506 N9 /V 100 Iz 15" 26 30 7A. Existing Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq.feet Building` of Units"* W45 Z C 35' 356 (w6 F-4MIL11 Z "Reference Uses from the Zoning Bylaw&Table 1. ``State number of units in building(s). 7B. Proposed Building(s)- Ground Floor Number-of Height Total Use of Number Square feet Floors Sq.feet Building' of Units' I K32 Z <3S 24q� OAS 9,grn�c� �i�'�Lt,N6 12A-5 '2- SCJ 3So6 'f�jo Fi9 / 2- 'Reference Uses from the Zoning Bylaw&Table 1. 'State number of units in building(s). 8. Petitioner and Landowner signature(s): Every application for a Variance shall be made on this form,which is the official form of the Zoning Board of Appeals. Every application shall be filed with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or the Zoning Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal notification. Failure to comply application requirements,as cited herein and in the Zoning Board Rules and Regulations may result in a dismissal by the Zo ng oard of this application as incomplete. Sign re: Type above name(s) h 812 (, N �- Vail6K4A ft 1pvrt RNY19V PAGE 4 OF 4 VARIANCE 9. WRITTEN DOCUMENTATION *10. S. *Plan Specifications: Application for a Variance must be supported by a 1) Size of plan: Ten(10)paper copies of a plan not legibly written or typed memorandum setting forth in to exceed 11'x17", preferred scale of 1"=40' detail all facts relied upon. When requesting a Variance ii) One(1)Mylar,with one block for Registry Use from the requirements of MGtA ch.40A,Sec. 10.4 and Only,and one block for five(5)ZBA signatures&date. the North Andover Zoning By-laws, all dimensional III) Plan shall be prepared,stamped and certified by requirements shall be clearly identified and factually a Registered Professional Land Surveyor. Please supported.. All points,A-F,are required to be note that plans by a Registered Professional Engineer, addressed with this application. Registered Architect, and/or a RegisteredLandscape Architect may be required for Major Projects. A. The particular use proposed for the land or *10 C. *Required Features On Plan; structure. I) Site Orientation shall include: B. The circumstances relating to soil conditions,shape 1. north point or topography of such land or structures especially 2. zoning district(s) affecting the property for which the Variance is 3, names of streets sought which do not affect generally the zoning 4. wetlands(if applicable) district in which the property is located. 5. abutters of property,within 300'radius C. Facts which make up the substantial hardship, 6. locations of buildings on adjacent properties financial or otherwise,which results from literal within 50'from applicants proposed structure enforcement of the applicable zoning restrictions 7. deed restrictions,easements. with respect to the land or building for which the II) Legend&Graphic Aids shall Include: variance is sought. 1. Proposed features in solid lines&outlined in red D. Facts relied upon to support a finding that relief 2. Existing features to be removed in dashed tines sought will be desirable and without substantial 3. Graphic Scales detriment to the public good. 4. Date of Plan E. Facts relied upon to support a finding that relief 5. Title of Plan sought may be given without nullifying or 6. Names addresses and phone numbers of the substantially derogating from the intent or purpose applicant, owner or record, and land surveyor. of the Ordinance. 7. Locus F. Submit RDA from Conservation Commission when 10 D. Minor Projects Continuous Buildable Area is applied for in ZBA Minor projects,such as decks,sheds,and garages, application. shall require only the plan information as indicated with an.asterisk M. In some cases further information may 10. PLAN OF LAND be required. Each application to the Zoning Board of Appeals shall be accompanied by the following described plan. Plans 11. APPLICATION FILING FEES must be submitted with this application to the Town 11.A. Notification fees:Applicant shall provide a Clerk's Office and ZBA secretary at least thirty(30)days check or money order to: "Town of North Andover"for prior to the public hearing before the Zoning Board of the cost of first class, certified, return receipt x#of appeals. all parties in interest identified in MGLA ch. 40A§11 on the abutter's list for the legal notice check. Also, A set of building elevation pians by a Registered the applicant shall supply first class postage stamps Architect may be required when the application for each address listed on the abutter's list, plus an involves new constructioniconversion/and/or a additional 2 for the decision mailing. proposed change in use. 11. 13. Mailing labels:Applicant shall provide four(4) sets of mailing labels no larger than 1"x2-5/6"(3 copies 10.A. Major Projects for the Legal, and one copy for the Decision mailing). Major projects are those,which involve one of the 11.C. Applicant shall provide a check or money order following whether existing or proposed: to: "Town of North Andover"per 2005 Revised Fee 1)five(5) or more parking spaces, Schedule. In three(3)or more dwelling units, It- A Variance once granted by the ZBA will lapse in Ili)2,000 square feet of building area. 1 (one)year if not exercised and a new petition trust Major Projects shall require,that in addition to the 10B& be submitted.-4 10C features, that the plans show detailed utilities,soils, E and topographic information. i i 320 Pleasant Street pplication • Denial Letter (from Building Inspector): June 02, 2016 • Application: June 02, 2016 • Legal Notice Given to Applicant: June 02, 2016 • Legal Notices: June 14, 2016 June 21, 2016 • Meeting Date(s): June 28, 2016 • Waiver of Time Constraint form given to i� 1g 911 10/I1 � 1111 on @ meeting • Decision Date (within 14 Days of Hearing): oI Ile • Mailing of Decision and 20 day Letter: • Appeal Deadline (20 days following Decision): • Correspondance(s): Town of North Andover ZONING BOARD OF APPEALS two 9.At,,d 999,&..Gfirlrmw £Pet Y..Ai ntVw, ?Il ae-G'Wwwa ,, u 0.Yaut XnA JL fog,e&A `.DWOW.L'udgua Quart G"acia rt Q000ciau AtWj ro Deneb MAvanad ,Namart'lUdnWiA Qlea=dxia!.Jacob tee. Town Clerk Time Stamp Date October 26,2016 Town of North Andover Zoning Board of Appeals 120 Main Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance Special Permit Comprehensive Permit(40B) Finding For property located at: STREET: 320 Pleasant Street MAP: 95 PARCEL: 36 TOWN: North Andover, INA 01845 TO MEETING DATE(S) December 13, 2016 NAME OF PETITIONER: Ryan Schruender t SIGNED: 4Q CV& &44 S ue:W 0C1?' Petitioner(or 0 oner's representative) 120 Main Street,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.northandoverm&gov Town of North Andover Town Clerk Tune Stamp ZONING BOARD OF APPEALS amvd 9 9.79,feq.61k&%" Fllaz .AwntWe,9kiar dla&MWQE MO RTy q� to 2).Yaut Xad;L bq( �3 fa"odate.A(�ANO D `.AP� c�1 yre aceta a- e 6+ sS•�c ti Date: October 4,2016 Town of North Andover Zoning Board of Appeals 1600 Osgood Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variances Special Permit Comprehensive Permit(40B) Finding For property located at: STREET: 320 Pleasant Street MAP: 95 PARCEL: 35 TOWN: North Andover, MA 01845 TO MEETING DATE(S)November 1.2016 NAME OF PETITIONER: Ryan Schruender SIGNED: t # f �- W eti ' (or petitioner's representative) 1 1600 Osgood Sheet,Building 20-Suite 2035,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 web-www.townofnordmdover.com r fiF f Town of North Andover Tovm Clak T=Shunt) ZONING BOARD OF APPEALS arced s,..A{a,&d 999,&q.Ofamims ItORTH Eads 9..A(a9ets(4 �� Of tty�n 6 s06, D'a0a, a pL. 9-Paul X*A Jc ta* 1O is am&ewda aaacafau Ateeore 4tldmrefadl �tss4C1W4U Date:August 5,2016 Town of North Andover Zoning Board of Appeals 1600 Osgood Street North Andover MA 01845 Please be advised that I have agreed to waive the time constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a Variance e For property located at: STREET: 54 Phillips Court and 320 Pleasant Street MAP: 95 PARCEL: -35 & 36 TOWN: North Andover MA 01845 TO MEETING DATE(S) S to nber 13 2016 NAME OF PETITIONER: Ryan Schruender SIGNED: AT" petition (a etitioner's representative) {00101794;v1)1600 Osgood Street,Building 20-Suite 2035,North Andover,Massachusetts 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandover.eom Town of North Andover Tmm Oak Tzme.&=p, ZON]ING BOARD OF"PFLS affw,,d 9.Atan zi 393,&q. L'Accxhm an Edea J.JI LJnt�tw, ?lice-&avrrm� o � D.Daae 9Ca&, .bq,. aaaa C'.umia. b CLs6aeiate Merabvo �4F 999weg AbVarztP& ,S�ne�eus� Nathaa WeMwi& a&x wd,aa a.yazo& &q. Date Jun - Town of North Andover Zoning Board of Appeals 1600 Osgood Street North Andover MA 01845 Please be advised that I have agreed to waive thyme constraints for the North Andover Zoning Board of Appeals to make a decision regarding the granting of a x Variance (S) Special Permit Comprehensive Permit (40B) Finding For property located at: STREET: Sao Tn C Cx S 0,Y 1+ MAP: MI5 PARCEL: 3(.p TOWN: North Andover, MA 01845 TO MEETING DATE(S) NAME OF PETITIONE SIGNED: = � Peti one (or petitioner's representative) 16M Osgood Stieek Building 20-Suite 2035,North Andover A,4asswbusetts 01845 Phone-979-688-9541 Fax-W8-688-9542 Wets-www townolhordmdover.com 6/14/2016 Public Notices NORTH ANDOVER BOARD OF APPEALS NOTICE IS HEREBY GIVEN THAT NORTH ANDOVER BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the School Administration Building at 566 Main Street, North Andover, MA on Tuesday, June 28th, at 7:30 PM to all parties interested in the petition of Ryan Schruender, for property address 320 Pleasant Street, North Andover, MA. 01845 (Map 95, Parcels 36), North Andover, MA 01845 in the R4 Zoning District. The Petitioner is requesting Variances: Table 2 Summary of Dimensional Requirements Section(s) 7.1, Lot Area Required 12,500, Proposed 10,467 Application and supporting materials are available for review at the office of the Zoning Department located at 1604 Osgood Street, North Andover, MA, Monday, Wednesday and Thursday from the hours of 8:00-4:00, Tuesday from the hours of 8:00-5:30 and Friday from 8:00 to 11:30 By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman ET - 6/14, 6/21/16 Appeared in: Eagle-Tribune on Tuesday, 06/14/2016 Back http://ma.mypubl icnotices.com/Publ icNoti ce.asp?Page=PublicNoticePri nt&Ad]D=4130502 1/1 6/22/2016 Public Notices � n Home Wednesday,June 22, 2016 NORTH ANDOVER BOARD OF APPEALS NOTICE IS HEREBY GIVEN THAT NORTH ANDOVER BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the School Administration Building at 566 Main Street, North Andover, MA on Tuesday, June 28th, at 7:30 PM to all parties interested in the petition of Ryan Schruender, for property address 320 Pleasant Street, North Andover, MA. 01845 (Map 95, Parcels 36), North Andover, MA 01845 in the R4 Zoning District. The Petitioner is requesting Variances: Table 2 Summary of Dimensional Requirements Section(s) 7.1, Lot Area Required 12,500, Proposed 10,467 Application and supporting materials are available for review at the office of the Zoning Department located at 1600 Osgood Street, North Andover, MA, Monday, Wednesday and Thursday from the hours of 8:00-4:00, Tuesday from the hours of 8:00-5:30 and Friday from 8:00 to 11:30 By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman ET - 6/14, 6/21/16 Appeared in: Eagle-Tribune on 06/14/2016 and 06/21/2016 Printer-friendly version E-mail to a friend Horne Privacy Policy I Terms of Use ( About Us ( Contact Us © Copyright 2001-2016 Legacy.com All Rights Reserved i i http://ma.mypublicnotices.com/PublicNotice.asp?Page=PublicNotice&Adld=4130502 1/1 Town of North Andover ZONING BOARD OF APPEALS NORTFf Albert P.Manzi III,Esq.Chairman Ellen P.McIntyre,I"ia-Chdrwaa 32 '-'` »'' of Associate Members Richard J.Byers,Esq.Clerk o a Michael P.Liporto D.Paul Koch Jr.,Esq. Doug Ludgin Allan Cuscia * D ,`y Deney Morganthal 9sS�er+uSEtt Zowng Enfonement Officer Gerald A.Brown �1 Legal Notice North Andover Board of Appeals Notice is hereby given that the Bo d of Appeals will hold a public hearing at the School Administration Building at 566 Main Street, North dover, MA on Tuesday, June 28th, at 7:30 PM to all parties interested in the petition of Ryan Se ender, for property address 320 Pleasant Street, North Andover, MA. 01845 (Map 95,Parcels 36), North Andover,MA 01845 in the R4 Zoning District. The Petitioner is requesting Variances: Table 2 Summary of Dimensional Requirements Section(s) 7.1, Lot Area Required 12,500, Proposed 10,467 Application and supporting materials are available for review at the office of the Zoning Department located at 1600 Osgood Street, North Andover, MA, Monday, Wednesday and Thursday from the hours of 8:00-4:00, Tuesday from the hours of 800-5:30 and Friday from 8:00 to 11:30 By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman Published in the Eagle Tribune on: June 14, 2016 June 21, 2016 f {00084696;v1} it OWNER AUTHORIZATION 54-56 Phillips Court and 320 Pleasant Street North Andover,MA (Map 95,Parcels 35 and 36) I,Ryan Schruender, am the record owner of the real property known and numbered as 54-56 Phillips Court and 320 Pleasant Street, North Andover, Massachusetts 01845,by virtue of a deed recorded with Essex County Northern District Registry of Deeds at Book 12764, Page 97 (the "Property"). As the record owner of the Property, please note that I hereby authorize Smolak &Vaughan LLP to submit any and all applications and supporting information for permits and approvals in connection with the proposed development of a new single family residence to be constructed at the Property, including without limitation, any submissions with the Planning Board, Zoning Board of Appeals and/or Building Department of the Town of North Andover, Massachusetts, in connection with pursuit, negotiation, and obtaining any special permit(s),variance(s), or any other permits, approvals, or consents necessary or desirable in connection with obtaining approvals for constructing a new single family home on Map 95, Lot 36 and maintaining the existing two-family home on Map 95, Lot 35, including without limitation obtaining any and all necessary dimensional variances for each such lot. Dated: June 1,2016 OWNER: Ryan Schruender {00100420;v1) 5 � Abutter to Abutter( ) Building Dept. ( ) Conservation ( ) Zoning ( J TOWN of NORTH ANDOVER ABUTTER LIST REQUIREMENT: MGL 40A,Section 11 states in part"Parties in Interest as used in this chapter shall mean the petitioner, abutters,owners of land directly opposite on any public or private way,and abutters to abutters within three hundred(300)feet of the property line of the petitioner as they appear on the most recent applicable tax list,not withstanding that the land of any such owner is located in another city or town,the planning board of the city or town,and the planning board of every abutting city or town." Subiect Property: MAP PARCEL Name Address 95 35 Schruender,Ryan 5456 Phillips Court Abutters Properties Map Parcel Name Address 95 20 Jeffrey M.&Kara M.Larcome 353 Pleasant Street North Andover,MA 01845 95 29 James J.&Leslie A.Cirrone,Trstees 26 Phillips Court North Andover,MA 01845 95 31 Margaret J.Broderick,LT 40 Phillips Court North Andover,MA 01845 95 32-0OOO.A Colin&Dorothy Elliot 42 Phillips Court North Andover,MA 01845 95 32-0000.113 William&Maura Canty,Trustees 44 Phillips Court U:B North Andover,MA 01845 95 33-0046.0 Tyler W.Canty 46 Phillips Court North Andover,MA 01845 95 33-0048.0 Erin K.Canty 48 Phillips Court North Andover,MA 01846 95 34 Edward C.&Susan E.Armitage 50 Philips Court North Andover,MA 01846 95 36 Ryan Schruender 56 Phillips Court North Andover,MA 01845 95 37-0OOO.A Ofelia A.Habenicht 41 Phillips Court U:A North Andover,MA 01845 96 37-0000.113 Bradley&Laura E.Howell 43 Phillips Court North Andover,MA 01846 95 38 Ronald A.&Amy P.Hamlet 59-61 Phillips Court North Andover,MA 01845 95 39 C.Schorer&C.Pontuso 310 Pleasant Street North Andover,MA 01845 96 40 Kenneth&Maureen Elliot 7 Arundel Street Andover,MA 01810 95 41 John D.&Diane S.Donovan 42 Horace Greeley Rd Amherst,NH 03031-1615 95 42 Francis&Ellen Murphy 169 Gray Street North Andover,MA 01845 95 43 Frank G.Fodera 300 Pleasant Street North Andover,MA 01845 95 59 Bonne Dulude&Alfred Warren 303 Pleasant Street North Andover,MA 01846 95 61 Richard&Beverly Nelson 321 Pleasant Street North Andover,MA 01846 95 70 Alan Freedman&Therese Honda 337 Pleasant Street North Andover,MA 01845 95.A 37 Linda K.Mallen 37 Millpond North Andover,MA 01846 95.A 63 Kenneth M.&Elizabeth R.Straus 63 Millpond North Andover,MA 01845 95.A 64 Maria T.Mouzakis 64 Millpond North Andover,MA 01845 96A 66 Robert&Beth Buyea 65 Millpond North Andover,MA 01845 95.A 66 Elizabeth Martha 66 Millpond North Andover,MA 01845 95.A 67 Wendy G.Hollis 42 Edgewater Road Agawam,MA 01001 95.A 68 Donald Chapelle 68 Millpond North Andover,MA 01845 96.A 69 Robert H.Wolfman 69 Millpond North Andover,MA 01845 96.A 70 Keri L.Stella 70 Millpond North Andover,MA 01845 96.A 72 Bonnie Estabrooks 72 Millpond North Andover,MA 01845 95.A 73 Robert&Bernadette Camplese 73 Millpond North Andover,MA 01845 96.A 74 Susan Denisco 74 Millpond North Andover,MA 01846 96.A 76 Carol C.Hathaway 75 Millpond North Andover,MA 01846 96.A 76 Welton E.&Claudette L.Hamilton 76 Millpond North Andover,MA 01845 95.A 77 Federal National Mortgage P.O.Box 650043 Dallas,TX 75265-0043 95.A 78 Doris G.&Robert Carl Magnuson 78 Millpond North Andover,MA 01845 95.A 79 Judith S.Barton,Trustee 79 Millpond North Andover,MA 01845 95.A 80 Doina Sipos 80 Millpond North Andover,MA 01846 96.A 81 Alexander S.Daley 81 Millpond North Andover,MA 01845 95.A 82 Gaynor Checkoway 82 Millpond North Andover,MA 01845 95.A 83 Robert&J.Claire Levey 83 Millpond North Andover,MA 01845 96.A 94 Jay Weiner 94 Millpond North Andover,MA 01846 95.A 95 Frank luso 95 Millpond North Andover,MA 01845 95.A 96 Meredith K.Carver 96 Millpond North Andover,MA 01845 95.A 97 Thomas R.&Diana G.Salvo 97 Millpond North Andover,MA 01845 95.A 98 John Bozek&Patricia Murphy Bozek 98 Millpond North Andover,MA 01845 95.A 99 Laurence W.&Younja Gibson 99 Millpond North Andover,MA 01845 95.A 100 Donna Rivera 6 Esquire Lane Merrimack,NH 03064-4816 95.A 101 Bronie Gorelik 101 Millpond North Andover,MA 01846 95.A 102 Marie Ann Moore 102 Millpond North Andover,MA 01846 This certifies that tha r-acnes appearing an the records Of the Assessors office as of -2 06 cQrtified hY Bk 1.2764 Pg98 #32220 WITNESS the execution and the corporate seal of said cotporation this dap of December,2011. FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A EANNIE MAE By:Hatmon Law Offices,PC,its attomcy in fact P I tkAuthorized Signer FOR SIGNATORY AUTHORH Y, SEE LIMITED POWER OF ATTORNEY RECORDED AT THE ESSEX COUNTY NORTHERN DISTRICT REGISTRY DISTRICT OF THE LAND COURT AS DOCUMENT NO.97518. COMMONWEALTH OF MASSACHUSETTS Middlesex,ss. December'-9 2011 On this" day of December,2011,before me,the undersigned notary public,personally appeared /jl-c tusSA A 07.44ta 0 . as Authorized Signet for Harmon Law Offices, PC, as Attorney In Fact for Federal National Mortgage Association a/k/a Fannie Mae, proved to me through satisfactory evidence of identification,which was personal knowledge to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily as his/her free act and deed and the free act and deed of Federal National Mortgage Association a/k/a Fannie Mae,before me, 111it111111I/, �Cl,,,l,.ftic.r,_ ```, 01►FfABF���'r Notary Public ,4 w'-'4 'q. G R ti*Q Nd My Commission Expires: 7 t� - s O SMOLAK & VAUGHAN A T01� N E v S A, 7 LA \, MEMORANDUM To: Town of North Andover Zoning Board of Appeals Applicant/Owner: Ryan Schruender Property: 54 Phillips Court and 320 Pleasant Street Map 95, Parcels 35 and 36 Date: June 2, 2016 MEMORANDUM IN SUPPORT OF PETITION FOR VARIANCES I. INTRODUCTION The Petitioner,Ryan Schruender,is requesting certain dimensional variances to allow for the maintenance of an existing two family home on an existing lot of record at 54 Phillips Court and for the construction of a new single family home on an adjacent existing vacant lot of record on Phillips Court which vacant lot is presently known and numbered as 320 Pleasant Street. Specifically,the Petitioner is seeking relief from Sections 7.1, 7.1.2,7.2 and 7.3,including requirements set forth in Table 2 Summary of Dimensional Requirements,of the Zoning Bylaw of the Town of North Andover,as amended(the"Zoning Bylaw") in the form of dimensional variances. With respect to 54 Phillips Court(being the existing two family home)the Petitioner seeks variances for lot size,street frontage,lot width and side yard setback. With respect to 320 Pleasant Street (being the proposed new single family home) the Petitioner seeks a variance only for the lot size. Separate variance applications have been submitted with respect to each lot,but the Petitioner would anticipate and request that both matters be considered and decided simultaneously by the Zoning Board because the matters are mutually dependent. II. BACKGROUND Ryan Schruender (the"Petitioner") is the owner of two (2) existing lots of record at the intersection of Phillips Court and Pleasant Street,one of which(54 Phillips Court) is improved with an existing two family dwelling and the second of which(320 Pleasant {00100507;v1} East Mill,21 High Street, Suite 301,North Andover,MA 01845 WWW.SMOLAKVAUGHAN.COM Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street June 2,2016 Street) is a vacant parcel of land. Title to the property was acquired by the Petitioner by virtue of a deed dated December 29,2011 and recorded with the Essex North District Registry of Deeds at Book 12764,Page 97. The lots were lawfully laid out as Lot 11 and Lot 12 on a plan entitled"Plan of Phillips Court,North Andover,Mass.," dated October 5, 1953,recorded with the Registry of Deeds as Plan No. 2770 on December 22,1953. A copy of this Plan is attached as Exhibit A (the"1953 Plan"). It is noted that because the 1953 Plan was endorsed and recorded prior to the time at which the North Andover Zoning Bylaws were enacted on January 9,1957,the lots would constitute preexisting lawful nonconforming lots for which variances might not be required. However,because a prior owner of the property inadvertently conveyed the land into common ownership,the individual lots are now deemed to have lost their preexisting nonconforming status (as separate buildable lots) and are deemed for purposes of zoning to have merged into a single lot. Nonetheless, the lots continue to exist as separate lots of record and continue to be designated on the Town of North Andover Assessors maps and taxed as separate lots,being Map 95,Lot 35 and Map 95,Lot 36. The lots are also shown with the existing dwelling at 54 Phillips Court and with the footprint for the proposed new dwelling at 320 Pleasant Street,on a plan entitled "Variance Plan,Map 95 Parcels 35&36,54 Phillips Court in North Andover,MA," dated June 1,2016,prepared by Marchionda&Associates,L.P. (the"Proposed Variance Plan"). The Proposed Variance plan shows the required and proposed dimensional requirements for the lots and it was submitted and is included with the Petitioner's variance application. The subject property is located in the Residence 4 ("R-4") Zoning District where the proposed use of the lots for two family and single family residential dwellings is permitted by right. The Petitioner applied for a building permit to allow for the construction of a new single family residential dwelling on the vacant lot(320 Pleasant Street) with the intent to maintain the existing two family dwelling on the previously developed lot(54 Phillips Court). The Building Inspector issued a denial of the building permit(the"Denial Letter"). As the basis for denial,the Building Commissioner determined that the proposed project does not comply with the current dimensional requirements of the Zoning Bylaw because the lots are deemed to have merged. III. DISCUSSION As noted above,the Petitioner is requesting relief in the form of zoning dimensional variances for each of the lots. The Zoning Bylaw requires that lots within the R-4 Zoning District comply with lot area (Section 7.1),street frontage (Section 7.2), and minimum front,side and rear setbacks (Section 7.3) as are set forth in Table 2 ("Summary of Dimensional Requirements"). Further,the front setback and certain side setbacks may be reduced from those set forth in Table 2 by virtue of footnote 8 to Table (00100507;v1) 2 Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street June 2,2016 2.The lot width requirement for lots within the R-4 Zoning District is set forth in Section 7.1.2 of the Zoning Bylaw. The relevant minimum dimensional requirements applicable to the subject property under said sections of the bylaw are is as follows: Lot Area: 12,500 SF Street Frontage: 100 ft Front Setback: 10.12 ft' Side Setback: 15 ft2 Rear Setback: 30 ft Lot Width: 80 ft As applied in the present case,the Petitioner's proposed project and each of the lots in question would comply with all dimensional zoning requirements with the exception of the following matters,for which the Petitioner hereby requests issuance of variances: 320 Pleasant Street(Proposed New Single Family Home) a. Variance for minimum lot size;the Petitioner is requesting approval of a 10,500 SF lot where 12,500 SF is required,(2,000 SF variance). 54 Phillips Court(Existing Two Family Home) a. Variance for minimum lot size;the Petitioner is requesting approval of a 7,500 SF lot where 12,500 SF is required(5,000 SF variance); b. Variance for street frontage;the Petitioner is requesting approval for 75 feet of street frontage where 100 feet is required (25 foot variance); c. Variance for side yard setback3;the Petitioner is requesting approval of 6.6 foot side yard setback where 15 feet is required (8.4 foot variance);and d. Variance for lot width;the Petitioner is requesting approval for 75 foot width where 80 feet is required (5 foot variance). Although the list of variances being requested as set forth above might seem to be numerous,it is noted that many of the lots in the Phillips Court subdivision suffer from the exact same deficiencies as those being requested by the Petitioner. Nearly all of the lots in the neighborhood are nonconforming but are protected as preexisting nonconforming lots. In fact,both of the Petitioner's subject lots are actually sized consistent with all of the residential lots in the neighborhood,having been approved and plotted on the 1953 Plan in accordance with then current dimensional requirements. As 1 Pursuant to Footnote 8 of Table 2 in R-4 District the front setback may be reduced to the average of all front setbacks of dwelling units within 250 feet on either side of the lot. 2 Side setback for 320 Pleasant Street lot along border of Pleasant Street is 20 ft pursuant to Footnote 8 of Table 2. 3 The variance for side yard setback is required because of an existing deck that was previously constructed on the property;Petitioner would note that the existing dwelling would be conforming to side yard setbacks if the deck were to be removed. (00100507;v1) 3 Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street June 2,2016 it relates to lot size,the average lot size for properties in the neighborhood is only 10,379 SF,and of the 23 lots shown on the 1953 Plan there are only 6 lots that in fact comply with the current R-4 minimum lot size of 12,500 SF. 17 of the 23 lots are undersized. Many of the lots in the neighborhood,as shown on the 1953 Plan,are actually smaller and have less street frontage and lesser lot width than the subject lots proposed with the Petitioner's application.The setbacks and dimensions for the proposed lots,with the variances as set forth above,are generally consistent with residential lots within the neighborhood and in the general vicinity of the Property. In addition,it is noted that if the Petitioner's request for the variances necessary to develop 320 Pleasant Street were to be denied,the Petitioner would be left with effectively an 18,000 SF lot where the average lot size is 10,379 SF and the next largest lot is only 14,560 SF. The Petitioner's lot would be substantially larger than the remaining lots in the neighborhood,and many of which support existing multi family homes. Given the size of the Petitioners combined lot,pursuant to Section 4.122.14.0 of the Zoning Bylaw,the Petitioner could seek to convert the existing two family dwelling to accommodate up to five (5)residential units by special permit in lieu of requesting the variances sought.So in lieu of seeking the proposed variances to develop the vacant parcel as a separate single family home,the Petitioner might instead seek to expand the existing structure or raze and rebuild the existing structure to obtain greater density on the oversized parcel.However,the Petitioner believes that the addition of a new single family dwelling on the vacant parcel along with the maintenance of the existing two family dwelling may be more appealing and desirable to neighbors than the proposal to seek a larger multi family approval on an oversized lot. IV. BASIS FOR VARIANCE The Petitioner's proposed variances meet all of the conditions for granting of a variance,including as follows: 1. There are circumstances relating to soil conditions,shape,or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in which the property is located. In particular,the following property conditions are noted: While it may be feasible to further subdivide the parcels and make each of the lots more conforming than they are presently there is simply not enough square footage available between the two lots (or available to be combined from other adjacent lots) to bring the total of each lot to current dimensional zoning requirements. And nonetheless, with respect to the frontage and width requirements it is noted that there is a steep embankment,natural tree line and an existing guardrail system along the Pleasant Street border of the subject property which would suggest that the best use of the land would be to keep the existing lot line further away from Pleasant Street to facilitate maintaining the natural buffer and mitigate site costs.The {00100507;vl} 4 Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street June 2,2016 conditions related to topography and shape are unique to this property,being the only property and do not generally affect the entire R-4 Zoning District. 2. As a result of the circumstances described above which affect the property but do not affect the zoning district in general, a literal enforcement of the dimensional requirements for the R-4 District of the Zoning Bylaw will involve substantial hardship,financial or otherwise,to the Petitioner. For instance,the embankment,trees and guardrail restrict access to and use of that portion of the lot thereby making the best siting for a new proposed residence to be best situated on the current(ie,1953)lot and not on a modified lot configuration. Otherwise,modification to the existing embankment,tree line and guardrail if the lot were reconfigured might pose a safety threat and impose a substantial financial hardship not only for the Petitioner,but also for any other person seeking to build a house on the vacant lot. 3. The relief sought will be desirable and without substantial detriment to the public good without nullifying or substantially derogating from the intent or purpose of the Zoning Bylaw. The construction of a single family home on the vacant lot will enhance the aesthetics of the lot. In all respects,the proposed single family residence will be consistent with other lots in the neighborhood, and therefore will not be a detriment to the public. Moreover,allowing the construction of the proposed residence will not derogate from the intent or purpose of the Zoning Bylaw because it is a permitted use and will allow development that is consistent with and in keeping with other properties in the neighborhood. The use is permitted b right and the appearance will remain P Y g consistent with other homes within the neighborhood. Accordingly,for the reasons stated above,and others that will be presented at the hearing,the Petitioner respectfully requests the Zoning Board of Appeals to grant the requested variances,and to allow the proposed construction of a single family residence on the vacant lot while maintaining the existing two family dwelling on the existing adjacent lot. Respectfully submitted, Ryan Schruender By his attorney, Brian G.VaugAan,Esq. SMOLAK&VAUGHAN LLP 21 High Street,Suite 301 North Andover,Massachusetts 01845 Tel. 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G' N t `O 1 -I Q �� cl Qn/cl// %0- 06— w/ / se4 zit z' o m `F) • k' ( 1��O}Z��01 ,59 e9G yOv- �..-�109� OyU O i./� ll"/ � ql N 0 /, I % H'n/w4 o� „ t oc�(! ��`�"�".q �\ ��.°�z�/ • , o,_` °`° ''LK���+�`•%°� -i\1 'ba3* p / /p ' O'0 Ca /•�:'` Is /. / 641Zeo Li ., <�y D �� i •a�0' 8�,a \ ti4' 051 rl➢u � `/ .'�e' / z, 1� �SS6 \$� � \\ `ti°'iv� ,�'u. ,io, T o. b ✓��,,OOL(� ^ / o OZ/ Ilk •._p / %hoc 9556.d� R \ StVO^) / SN3n.91fj y 'yY ' � Oyv O,v 8' 0 v SMOLAK & VAUGHAN ATTORNEYS AT LAW MEMORANDUM To: Town of North Andover Zoning Board of Appeals Applicant/Owner: Ryan Schruender Property: 54 Phillips Court and 320 Pleasant Street Map 95, Parcels 35 and 36 Date: July 29, 2016 The Applicant,Ryan Schruender,is requesting dimensional variances to allow for the maintenance of an existing two family home on an existing lot of record at 54 Phillips Court and to allow for the construction of a new single family home on an adjacent existing lot of record on Phillips Court known and numbered as 320 Pleasant Street. The details of the Applicant's variance requests were set forth in the Variance Applications and Memorandum in Support of Variance as previously submitted by the Applicant to the Board. The hearings for the Variances were opened on June 28,2016.The Board heard testimony from the Applicant in support of the Applications as well as testimony from a number of abutters speaking in opposition to the Variance requests at the initial hearing on June 28. The matter was continued at the conclusion of the prior hearing,with a number of issues to be addressed by the Applicant in response to specific inquiries of the Board and in an effort to allow the Applicant opportunity to consider the stated concerns of abutters and attempt to redesign the project to address abutter and Board concerns to the extent feasible. The purpose of this memo is to respond and provide background with respect to the issues raised by the Board at the initial hearing.There were six (6) issues specifically identified for which the Board requested further information,each of which are or shall be addressed in turn as follows: 1. Lot Merger. A question was raised with respect to the issue of"Lot Merger" and why exactly a variance is needed for both lots. The Board requested an i {00101649;v2} East Mill,21 High Street,Suite 301,North Andover,MA 01845 WWW.SMOLAKVAUGHAN.COM Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street July 29,2016 explanation or outline of applicable case law concerning lot merger. As an initial matter the concept of lot merger is incorporated into the current North Andover Zoning Bylaw at Section 7.8(1) which provides: The residential lot areas and frontages above required and listed in Table 2 shall not apply in any residence district to any lot of less area or less frontage than above required if such lot be not adjoined by other land o� the same owner,available for combination with or use in connection with such lot,provided that the applicant for a building permit on any such lot shall show by citations from the Essex County Registry of Deeds incorporated in or attached to such application that such lot was lawfully laid out and duly recorded by plan or deed prior to January 9, 1957 and provided that on such a lot there shall be kept open and not built upon a front yard and a rear yard each not less than 20 feet deep,and two side yards,each not less than 12 feet wide;and further provided that such lot shall have a minimum street frontage of 50 feet and a minimum lot area of 5,000 square feet. The language above which is highlighted incorporates the lot merger provisions whereby lots are deemed to merge together for zoning purposes when substandard lots are adjoined in common ownership. This provision is incorporated to the bylaw based upon both statutory law (MGL c 40A) and applicable case law. Because in the present case the lots are "adjoined by other land of the same owner" they are deemed to have merged and are not each recognized as separately buildable lots but as a single buildable lot. But in addition,for a much more detailed overview of applicable case law, I have also included and submit with this memo Section 7.4 of the MCLE Massachusetts Zoning Manual,which outlines residential zoning freezes under Section 6 of MGL c.40A and discusses the so-called"merger" of substandard lots. 2. 2002 Variance Application. The Board also requested that some background and history be provided with respect to the 2002 variance request which was made by a prior owner and was denied.The 2002 application was made to request variances for lot area and street frontage so as to create two non-conforming lots. The Notice of Decision from 2002 is attached,by which the variance request was denied by a 2-2 vote. It is noted that one of the issues argued by the abutters in that case was that the then applicant was a non-resident owner seeking to simply reap financial reward. In the present case we have a resident homeowner seeking to expand his living area for a growing family and seeking to improve and remain in the neighborhood. {00101649;v2} 2 w Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street July 29,2016 3. 10,000 SF Lot Exception. A question was raised at the prior meeting as to whether or not the existing zoning bylaw in fact provided an exemption or exception,by special permit,for 10,000 SF lots in the R-4 District and whether the variances were in fact needed at all. Upon further research of the bylaw,it would appear that the confusion was with respect to whether Section 7.8(2) of the Zoning Bylaw was applicable. This section provides as follows: In Residence 4 (R4) Districts only,two or more vacant lots,mutually adjoining,may with a Special Permit from the Board of Appeals be permitted to be combined into a new lot or lots of not less than 10,000 square feet area each,and with not less than 100 feet street frontage, provided it be shown to the Board of Appeals that each such lot was lawfully laid out and duly recorded by plan or deed prior to January 9, 1957 and the Building Inspector shall permit the construction of one single family dwelling on each such 10,000 square foot lot. This section would not provide the needed relief since the property in question would not satisfy the frontage or lot size dimensional requirements,and because an existing two-family rather than single family home is existing on one lot.So it would appear that while very close to qualifying for the special permit requirement,the Applicant would still in fact need dimensional variance relief. 4. Design and Size. One issue of concern to neighbors and the Board raised in our initial hearing was with respect to the size and design of the proposed home. The Applicant has submitted a new proto-type for the proposed new home of a much smaller size/scale (2,400 SF) and of a design which is believed to be more consistent with the existing homes in the neighborhood. The submitted plans have not been drawn by an architect but are a sample of a proposed new design for discussion purposes.The Applicant would hope to seek further feedback with respect to the newly submitted design before expending too much expense on detailed architectural or survey plans. The applicant's intent would be to seek another extension following the upcoming meeting and to then provide a detailed plan set(both architectural and survey)for final review at the next subsequent hearing,after seeking general comments to the proposed style and size of the new structure being presented. 5. Drainage. A request was also made for the Applicant to address drainage issues. The Applicant would intend to address any drainage issues in connection with a final survey to be prepared and presented at a subsequent hearing. This is in an effort to mitigate expense by waiting to address siting issues at a single time after further defining the proposal for the floor plan and structural footprint. {00101649;x2} 3 k Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street July 29,2016 6. Landscaping. A request was also made for the Applicant to address landscaping issues. Again,the Applicant would also intend to address any proposed landscaping issues in connection with a final survey and landscaping plan to be prepared at a subsequent hearing.This is again in an effort to mitigate expense by waiting to address landscape issues at a single time and after further defining the proposal for the floor plan and siting of the structure. But it is again noted, as was previously discussed at the initial hearing,that the Applicant would intend to maintain as much of the tree line and landscape buffers as could be reasonably maintained at the site. Respectfully submitted, Ryan Schruender By his attor y, Brian G/(augPKEsq. SMOLUAnassachusetts HAN LLP 21 Hige 301 North 01845 Tel. (978) 327-5217 {00101649;x2} 4 'C ZONING FREEZES §73 (h) Hypothetical#8: Construction of Roads and Parking on Portion of Lot on Which No Structures Are Planned Without Foundation or Building Permit Before Plan Freeze Expires Where on a portion of the lot on which no structures are to a erected is to be used for uses t would otherwise be nonconforming, it i ossible that the site work (e.g., the co ction of access roads or parking ar s) may be commenced prior to the expiratio of the freeze without issuance f either a foundation per- mit or building permit the structure and still re It in the use being protected under the freeze as a lawful nconforming use. site plan approval or other per- mits are required under the zon bylaw or inance, securing such approvals— so that the work is "lawfully begun' is a cessary condition precedent. § 7.3.8 Waivers of Free hts Paragraph 9 of G.L. c. 40A, allows the ecord owner," by an instrument duly recorded in the registr of deeds, to waiv the freeze protections of Sec- tion 6. The application o e waiver provisions r ' es some interesting, and as yet unanswered, questi s. In a title theory st a such as Massachusetts, may an own , who has mortgaged his or her land, xecute or record a waiver without the con t or subordination of the mortg ee? If a parce , with the benefit of a plan freeze, has been subdivided a the various lots sh n thereon conveyed to different owners, is the freeze waiver 'ght lost? Or, i fact, may an owner of a single lot waive the freeze with respect his or he lot? Since Section 6 designates the "record owner" as having the ri t to aive, whoever then holds record title to a portion of the premises with e benefit of ala p n freeze should be able to waive it-in respect of his or her nnrr;nn, e - § 7.4 RESIDENTIAL FREEZES The fourth paragraph of Section 6 (the "residential freeze") attempts to protect certain lots intended for single- or two-family residential use from increases in area, frontage, width, yard, or depth requirements imposed by a zoning ordinance or bylaw. There are numerous trial court decisions dealing with residential freezes, and this subject remains a continuing source of confusion for zoning lawyers, building 5th Edition, 2nd Supplement 2015 7-39 i §Z4 MASSACHUSETTS ZONING MANUAL inspectors and town counsel. Helpful guidance can be found in three articles by Donald J. Schmidt, editor of the Land Use Manager, published by the Executive Office of Communities and Development, in the June, July, and August 1986 editions of that publication, entitled "The Merging of Substandard Lots." § 7.4.1 History of the Residential Lot Freezes In order to understand the current residential freeze, a brief discussion of Sec- tion 5A of Old Chapter 40A is helpful. (For the legislative evolution of Sec- tion 5A, see 1958 Mass. Acts c. 492; 1960 Mass. Acts c. 789; 1961 Mass. Acts c. 435, § 1; and 1969 Mass. Acts c. 438.) The freeze provided in Sec- tion 5A applied to lots that complied with certain dimensional requirements of a zoning bylaw or ordinance at the earlier of the time • a deed to a lot as a separate parcel was recorded, or • a plan on which the lot appeared as a separate parcel was recorded or endorsed as not requiring approval. Section 5A provided a permanent freeze of certain dimensional requirements for residential use of such a lot not held in common ownership with any adjoining land at the time when more restrictive dimensional requirements were adopted. If such a lot was held in common ownership with adjoining land at the time when more restrictive dimensional requirements were adopted, Section 5A conferred a five-year freeze, provided the lot met the minimum dimensional requirements of 5,000 square feet of area and fifty feet of frontage. § 7.4.2 Merger of Substandard Lots In the absence of statutory or municipal freeze provisions, upon the adoption of increased dimensional requirements, adjoining lots in common ownership are generally deemed to be merged to satisfy the new requirements. Vetter v. Zoning Bd. ofAppeal ofAttleboro, 330 Mass. 628 (1953) (undersized vacant lot that had adjoined land in common ownership could not be separately built upon). "The usual construction of the word `lot' in a zoning context ignores the manner in which the components of a total given area have been assembled and concen- trates instead on the question whether the sum of the components meets the re- quirements of the bylaw." Becket v. Bldg. Inspector ofMarblebead, 6 Mass.App. Ct. 96, 104 (1978); see Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286, 290 (1979). By ordinance or bylaw, many municipalities have authorized construction on undersized, nonconforming lots as long as the lot was not owned in common 7-40 5th Edition, 2nd Supplement 2015 ZONING FREEZES §74 with an adjoining lot which could be merged to satisfy the enlarged dimensional requirements. Clarke v. Bd. ofAppeals ofNahant, 338 Mass. 473 (1959). The rationale for merging adjacent parcels in "common ownership" is set forth in Sorenti v. Board ofAppeals of Wellesley, 345 Mass. 348, 353 (1963): The nonconforming exemption was not to apply . . . when the lot owner had adjoining land available for use in satisfying the minimum frontage requirement. The rationale of such a provision is that an owner who has or has had adjacent land has it within his power, by adding such land to the substandard lot, to comply with the frontage requirement, or, at least, to make the frontage less substandard. Numerous cases have construed the merger or survival of undersized lots in the face of more stringent dimensional requirements. Lindsay v. Bd. of Appeals of Milton, 362 Mass. 126 (1972); Gaudet v. Bldg. Inspector of Dracut, 358 Mass. 807 (1970); Smigliani v. Bd. ofAppeals of Saugus, 348 Mass. 794 (1965); Vas- salotti v BdofAppeals of Sudbury, 348 Mass. 658 (1965); Chater v. Bd. ofAp- peals of Milton, 348 Mass. 237 (1964); Publico v. Bldg. Inspector of Quincy, 336 Mass. 152 (1957); Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726 (2007); Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 (2001); Asack v. Bd. ofAppeals of Westwood, 47 Mass. App. Ct. 733 (1999); DiCicco v. Berwick, 27 Mass. App. Ct. 312 (1989); Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 (1987); Girard v. Bd. ofAppeals of Easton, 14 Mass.App. Ct. 334 (1982); Ostmffv Bd. ofAppeals ofLexington, 4 Mass.App. Ct. 865 (1976); Perry v. Bldg. Inspector of Nantucket, 4 Mass.App. Ct. 467-(1976). In Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804, review denied, 455 Mass. 1104 (2009), the Appeals Court ruled that adjacent lots in common ownership merge, even if they have retained "separate identities," unless the municipal zoning ordinance or bylaw provides otherwise. The first parcel at issue was purchased in 1942 and contained a building with four dwelling units. The second parcel at issue was held in common ownership with the first since 1950, and was operated as a commercial parking lot.A chain- link fence separated the two parcels. In July 2000, plaintiff entered into a purchase and sale agreement for both properties, which was subject to his ability to obtain a building permit for two new residential units on the parking lot parcel. Construction of the two new dwelling units on the parking lot parcel complied with zoning if the parking lot parcel were treated as a separate lot, but if both parcels were combined into a single lot, the parcel fell short of the ordinance's 5th Edition, 2nd Supplement 2015 7-41 §7.4 MASSACHUSETTS ZONING MANUAL minimum area per dwelling unit requirement. The plaintiff obtained the neces- sary building permit, completed construction of the two units, and obtained cer- tificates of occupancy. Three years later, the building commissioner rescinded the certificates of occupancy based on his determination that the two parcels had merged into a single zoning lot that violated the minimum area per dwelling unit requirement. The Appeals Court rejected the notion that the common law merger doctrine did not apply where the lots in question have retained "separate identities." The Hoffman court reasoned that the cases do not imply that adjacent nonconforming lots that in some sense retain their separate identities are exempt from the common-law merger doctrine. Instead, they mean that an owner of merged lots may not artificial- ly divide them. Although we have previously sug- gested that lots that retain their separate identities may not be subject to the common-law merger doc- trine, see Carabetta v. Board of Appeals of Truro, 73 Mass.App. Ct. 266, 270-71 & n.9 (2008) (suggesting this possibility but ultimately reserving the question), we have been provided in this case with no authority that would support such a rule. Hoffman v. Bd. of Zoning Appeal of Cambridge, 74 Mass. App. Ct. at 812. The Appeals Court therefore concluded that, under the common law, common own- ership had merged the lots, but remanded the matter to the zoning board for con- sideration of whether the municipal zoning ordinance overrode that result. In Mauri v. ZoningBoard ofA Appeals of Newt pp on, 83 Mass. APP Ct. 336. 2013) the ( Appeals Court held that two adjoining undersized lots in common ownership, one of which contained a house and the other of which contained a garage but on which a house was proposed, had merged notwithstanding an ordinance provi- sion that the city had interpreted as providing protection against merger. The Appeals Court, interpreting an unclear provision in favor of finding merger, stat- ed that "should a city choose to adopt a more liberal grandfather provision" than G.L. c. 40A, § 6, par. 4's final sentence, "it must do so with clear language." Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. at 341 (citing Carabetta v. Bd. ofAppeals of Truro, 73 Mass.App. Ct. at 269). The Appeals Court rejected an argument that G.L. c. 40A, § 6 provides statutory protection from merger in Timperio v. Zoning Board of Appeals of Weston, 84 Mass. App. Ct. 151 (2013). In Timperio, the appellant argued that Section 6, fourth paragraph, first sentence, "precludes the board 'in perpetuity' from find- ing that [two substandard] lots merged with [a third lot]." Timperio v. Zoning Bd. 7-42 5th Edition, 2nd Supplement 2015 ZONING FREEZES §74 ofAppeals of Weston, 84 Mass. App. Ct. at 157. The Appeals Court rejected that argument, noting that perpetual protection applies only where certain criteria are met. Specifically, the statute requires that the nonconforming lot not be held in common ownership with any other lots.As the Appeals Court noted, this statuto- ry requirement is a codification of a long-standing principle of zoning law: "a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity." Timperio v. Zoning Bd. ofAppeals of Weston, 84 Mass.App. Ct. at 158. For a case dealing with possible "demerger" of lots previously under common ownership based on equitable considerations to protect an innocent purchaser, see Carabetta v. Board ofAppeals of Truro, 73 Mass.App. Ct. 266 (2008). § 7.4.3 Checkerboarding Because the residential freeze of Old Chapter 40A was contingent on separate ownership at the time more restrictive dimensional requirements were promul- gated, resourceful developers adopted the practice of "checkerboarding" whereby contiguous lots were held in separate ownership through nominees or straws. Checkerboarding has been defined as follows: "Checkerboarding" refers to a practice by which a large landowner divides his property into single lots held by "straws." Ownership of the property is then divided so as to avoid having two adjacent lots held by one person. Employing the graphics of the check- erboard, Mr. X holds all the black squares, while Mr. Y holds all the red ones and neither "owner" holds two contiguous squares. Thus using two "straws," a large parcel of land could be divided between two parties. The two "straws" were protected from any subsequent increases in minimum frontage or area requirements as owners of single noncontiguous lots under the old zoning enabling act, G.L. c. 40A, § 5A. Baldiga v Bd. ofAppeals of Uxbridge, 395 Mass. 829, 834 n.4 (1985). The Appeals Court has described the process derisively as a "conveyancing ma- neuver . . . to retain for all lots in a subdivision certain immunities against future zoning changes . . . which the zoning act reserves for the good faith buyer of a lot in a subdivision." Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148, 151 n.4 (1981); see also Giovannucci v. Bd. ofAppeals of Plainville, 4 Mass. 5th Edition, 2nd Supplement 2015 7-43 §74 MASSACHUSETTS ZONING MANUAL App. Ct. 239, 243 (1976) ("manipulations which attempt to preserve nonstandard lots for building purposes"). The use of straws to evade the merger of undersized lots—where underlying beneficial ownership and control of adjoining lots remains in common owner- ship—is likely to be ineffective. Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. at 151 n.4 (1981): "It is highly doubtful that sham conveyances to relat- ed parties accomplish the desired result." Mendler, Massachusetts Conveyancers' Handbook, § 11:4.03 at 251 (1984). Commentators have seen in the legislative histo to the Zoning Act an indication of an intention history g tion to limit checkerboarding. 1972 House Doc. No: 5009 at 42; see Mendler, Massachusetts Conveyancers' Handbook, § 11:4.03 at 251; Healy, "Massachusetts Zoning Practice Under the Amended Zoning Enabling Act," 64 Mass. L. Rev. 157, 160 (1979). In Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989), aff d, 406 Mass. 1008 (1990), the applicants anticipated an increase in dimensional re- quirements by transferring one lot to themselves as tenants by the entirety and another to a nominee trust in which the applicants were trustees and sole benefi- ciaries. The request for two building permits was denied because the two lots were held "in common ownership" despite the change in record ownership. The Appeals Court discussed the logic of the "statutory grandfather provision" as a "statutory codification of a principle of long-standing application in the zoning context: a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity." Planning Bd. of Norwell v. Serena, 27 Mass.App. Ct. at 690. The court relied on Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 (1963), where a transfer of adjoining land to a straw the day before a frontage amendment was held not to give protection against the application of the new dimensional requirement. The Serena court reduced the analysis to control, not to record ownership. "The crux, thus, was not the form of ownership, but con- trol: did the landowner have it `within his power,' i.e., within his legal control, to use the adjoining land so as to avoid or reduce the nonconformity?" Planning Bd. of Norwell v Serena, 27 Mass. App. Ct. at 691. The Supreme Judicial Court affirmed in a brief rescript that followed the Appeals Court's reasoning. Planning Bd. of Norwell v. Serena, 406 Mass. 1008 (1990). In DiStefano v. Town of Stoughton, 36 Mass. App. Ct. 642 (1994), the Appeals Court "disregard[ed]" checkerboard conveyances by a corporation to the principal of the corporation, his wife, and a nominee trust of which he was trustee: We may disregard the shell of purportedly discrete legal persons engaged in business when there is active and pervasive control of those legal persons by the 7-44 5th Edition, 2nd Supplement 2015 ZONING FREEZES §Z4 same controlling person and there is a confusing inter- mingling of activity among the purportedly separate legal persons while engaging in a common enterprise. DiStefano v Town of Stoughton, 36 Mass.App. Ct. at 64 g 5. PP The Serena and DiStefano cases cast a large pall over checkerboarding as an effective strategy to avoid merger of nonconforming lots. This does not mean legitimate transfers that place property out of the "legal control" of the owner of adjoining land will fail to establish zoning freeze rights; however, rather than the test of record title, a fact-based inquiry into "legal control" will be necessary. Despite such questions, there is no basis in the cases for disregarding a bona fide conveyance of adjoining lots to take advantage of the residential freeze. See Sturges v. Chilmark, 380 Mass. 246, 260 (1980) (lots that come together only at a point are not adjoining within the meaning of G.L. c. 40A, § 6); cf. Donlon u. Assessors of Holliston, 389 Mass. 848, 857-58 (1983) (assessing checkerboarded lots as separately buildable). § 7.4.4 Current Status of Residential Lot Freezes (a) The Freeze Protects Only "Vacant"Residential Lots "There is nothing on the face of [the residential lot freeze of G.L. c. 40A, § 6, 141 to suggest that it was intended to apply to anything but vacant land." Willard v. Bd. of Appeals of Orleans, 25 Mass. App Ct. 15, 18 (1987); see Dial Away Co., Inc. v. Zoning Bd. ofAppeals ofAuburn, 41 Mass.App. Ct. 165, 168 (1996). In Dial Away Co., the Appeals Court held that the language of this paragraph does not apply to reconstruction" of a single- or two-family residential struc- ture. In this case, the plaintiff had purchased in 1969 a 5,023-square-foot parcel containing a lawfully constructed dwelling and a garage. Shortly after purchas- ing the property, the plaintiff razed the dwelling, and twenty-one years later, also demolished the garage. In the meantime, between 1969 and 1993, the minimum lot size under zoning bylaw was amended twice, with the last amendment in 1993 establishing a minimum lot size of 10,000 square feet. The plaintiff subse- quently sought but was denied a building permit to erect a single-family house on the 5,023-square-foot lot. The plaintiff appealed the denial to the zoning board of appeals and also applied for a variance. The board upheld the denial, ruling that the plaintiff had "abandoned" the buildings no later than 1990 and therefore the two-year grandfather provision under the zoning bylaw for noncon- forming uses did not apply. 5th Edition, 2nd Supplement 2015 7-45 §74 MASSACHUSETTS ZONING MANUAL On appeal, the Superior Court found in favor of the plaintiff, holding that para- graph 4 of Section 6 and the zoning bylaw provision governing nonconforming lots permitted the plaintiff to use the nonconforming 5,023-square-foot lot for a single-family residence because the lot had conformed with zoning bylaw lot dimensional requirements in 1944 when it was conveyed to the previous owners. The Appeals Court reversed, concluding that the Section 6 paragraph applicable to the facts of the case was paragraph 1, not paragraph 4. Relying on its reason- ing in Willard, the court concluded that paragraph 4, "while applying to some construction on vacant lots, does not apply to `reconstruction' of a single or two- family residential structure." In a footnote, the court clarified this point, stating that its interpretation of the paragraph did not mean that paragraph 4 applies only to original construction. For example, said the court, if a buyer bought a vacant lot (even if a building had been previously demolished on the lot) but the bylaw at the time of purchase allowed building on the lot, then the lot would be protected from a subsequent change in the zoning bylaw. By contrast, in this case, at the time of the plaintiff's purchase of the undersigned lot with an exist- ing dwelling therein, the minimum lot size had already been increased to 7,500 square feet. Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. at 168 n.7; see also Nelson v. Town of Wilmington, 81 Mass. App. Ct. 1133 (2012) (unpublished decision; text available at 2012 WL 1535821) (the fourth paragraph of Section 6 applies only to vacant lots and lots that were vacant and buildable at the time of purchase). (b) Separate Ownership—When? Alternative forms of residential freezes are provided by the first and second sen- tences of G.L. c. 40A, § 6, 14. The first sentence of paragraph 4 provides: Any increase in area, frontage, width, yard or depth requirements of a zoning ordinance or bylaw shall not apply to a lot for single- and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. G.L. c. 40A, § 6, 14 (emphasis added). Read literally, the sentence would be applicable only when ownership was sepa- rate at the time of endorsement of the subdivision plan, rather than at the time the zoning amendment takes effect. Since title to a parcel about to be subdivided 7-46 5th Edition, 2nd Supplement 2015 ZONING FREEZES §74 is virtually always in a single owner, this zoning freeze protection has been viewed as of little utility. See Healy, "Massachusetts Zoning Practice Under the Amended Zoning Enabling Act," 64 Mass. L. Rev. at 160; Mendler, Massachusetts Conveyancers'Handbook, § 11:4.03; Hays, "Application of Chapter 808 to Ex- isting Structures, Uses, Plan Variances and Permits," 22 Boston BarJ. 17, 25-26 (1978) ("near total knockout" of protections of Old Chapter 40A, § 5A). This anomaly was first clarified in Sieber v. Zoning Board of Appeals of Well- fleet, 16 Mass. App. Ct. 985 (1983), which held the test to be whether the lot in question was described and held as a lot in separate ownership from the adjoin- ing lot by virtue of a deed or any other instrument recorded prior to the effective date of the prohibitive zoning change, not at the time of recording or endorsement. This test was used by the Supreme Judicial Court in Adamowicz v. Town of Ips- wich, 395 Mass. 757 (1985), aff'd, 772 F.2d 5 1st Cir. 1985 where the court clarified that the most recent instrument of record prior to the effective date of the zoning change, rather than the first recorded instrument on which the sepa- rate lot is shown (which is almost always a subdivision plan that, by definition, includes adjoining lots owned by the same person or entity), is determinative of a claim for protection under the first sentence of paragraph 4. The status of the lot immediately prior to the zoning change is the controlling factor, even if pre- viously recorded subdivision plans might reveal that at one time part of the land was held in common ownership. Construing the fourth paragraph, first sentence to require only that the most recent instrument of record prior to the restrictive zoning change show separate ownership furthers the purpose of Section 6, which is "concerned with protecting a once valid lot from being rendered unbuildable for residential purposes, assuming the lot meets modest minimum . . . require- ments." Adamowicz v. Town of Ipswich, 395 Mass. at 760 (1985) (quoting Sturges V Chilmark, 380 Mass. 246, 261 (1980)). In Wright v. Board of Appeals of Falmouth, 24 Mass. App. Ct. 409 (1987), the Appeals Court found no freeze available because all the lots shown on the sub- division plan in question were still owned by the developer at the time of the increase in minimum lot size requirements. In Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236 (2001), the court held that where two substandard lots were in separate ownership at the time of the zoning change, but later came into common ownership when they were acquired at separate times by the same person, they would be treated as having merged and could not be separately de- veloped under the paragraph 4 exemption for lots in separate ownership. The case distinguished and criticized an earlier rescript opinion, Carciof v. Board of Appeal ofBillerica, 22 Mass.App. Ct. 926 (1986), that had been thought to support a contrary position. 5th Edition, 2nd Supplement 2015 7-47 §74 MASSACHUSETTS ZONING MANUAL The Preston court interpreted the paragraph 4 zoning freeze as limited by the "preexisting common law principle of merger" and held that the legislature had not intended to "eliminate the application of the merger doctrine to a single owner's purchase of adjacent lots after a zoning change, where the lots were in separate ownership before that change." Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 241-43. Under the Preston facts, both lots would have been de- velopable if they had remained in separate ownership, but development rights were lost when the second lot was purchased by the owner of the undeveloped neighboring lot. Indeed, only the plaintiff, as owner of the first nonconforming lot (and perhaps a spouse or closely related corporation by virtue of the DiStefano holding), would have been prevented from building on the second-acquired lot. Other cases have addressed the applicability of the single-lot exemption to various factual situations. (c) Frontage on an Unconstructed Way In LeBlanc v. Board of Appeals of Danvers, 32 Mass. App. Ct. 760 (1992), the court held that a lot on a 1925 plan with frontage on a way not yet constructed was entitled to grandfather protections. (d) Existence of the Lot In Dowlingv Board of Health of Chilmark 28 Mass. App.pp. Ct. 547 (1990), the court held a lot of land that was held in separate ownership from adjoining land and was at least 5,000 square feet with fifty feet of frontage did not qualify for grandfather protection where it was a remainder lot and was not separately de- fined on a plan or deed until 1984 or 1985. Although the lot complied with the dimensional requirements of the first sentence of paragraph 4, the court held that the absence of a plan or deed "affording reasonable notice to the public" was a "minimal prerequisite for grandfather protection." Dowling v. Bd. of Health of Chilmark, 28 Mass. App. Ct. at 551. In a footnote, the court suggested that "[i]f an exact description of a `remainder lot' is available from a perusal of one or two recorded instruments, the lot might qualify as a recorded lot for purposes of G.L. c. 40A, § 6." Dowling v. Bd. of Health of Chilmark, 28 Mass. App. Ct. at 551 n.7. The court indicated that "the eventual elimination of nonconforming uses [is] an objective underlying zoning regulations." Dowling v. Bd. of Health of Chilmark, 28 Mass. App. Ct. at 551 n.7. However, one must question whether that princi- ple—directed at uses—should be applied to dimensional and area requirements. Particularly where a neighborhood has developed with smaller area and frontage requirements than current ones, it is questionable whether the larger area and 7-48 5th Edition, 2nd Supplement 2015 ZONING FREEZES §74 frontage requirements should properly be applied to a new structure that is to be located on a lot comparable to the rest of the neighborhood but does not conform with current requirements. The considerations may be quite different from amorti- zation of nonconforming uses. In Rourke v. Rothman, the Supreme Judicial Court recognized the distinct purpose of residential lot zoning freezes, noting that "[w]hile elimination of nonconformity may be a general goal of zoning, it is cer- tainly not the goal of the first sentence of [G.L. c. 40A, § 6, 14], the manifest pur- pose of which is to preserve the buildable status of certain nonconforming lots in perpetuity." Rourke v. Rothman, 448 Mass. 190, 197 (2007) (emphasis in original). (e) Can Natural Barriers "Separate" Ownership? In Heavey v. Board of Appeals of Chatham, 58 Mass. App. Ct. 401 (2003), the plaintiff owned adjacent undersized upland lots with frontage that he wanted to P treat as a single building lot and also owned other land on the same street that had previously been developed. Marshland without frontage connected the frontage parcels in the rear. The Appeals Court upheld a trial court finding that a tidal lagoon divided the marshland into two noncontiguous parcels, and on that basis allowed the undeveloped lots in question, along with the marshland on the same side of the lagoon, to be treated in combination as a single buildable lot. Because of the finding that the marsh parcels were separated by the lagoon, the court did not need to reach the argument that the impracticability of access across the lagoon would have rendered the land and marsh on one side of the lagoon nonadjoining to the land and marsh in the same ownership on the other side of the lagoon, even if the marsh parcels shared a common boundary through the lagoon. (f) Compliance with "Then Existing"Zoning Requirements In Rourke v Rothman, 448 Mass. 190 (2007), the Supreme Judicial Court dealt with the issue of what it means to conform to "then existing" requirements for purposes of the perpetual zoning freeze provided to certain preexisting lots for single- or two-family use under G.L. c. 40A, § 6, 14. As discussed above, to qualify for a such a freeze, a lot must at the time of recording or endorsement (i.e., the time of the most recent instrument of record prior to the effective date of the relevant zoning change) (1) contain at least 5,000 square feet of area; (2) contain at least fifty feet of frontage; (3) not be held in common ownership with any adjoining land; and (4) conform to the "then existing" zoning require- ments for buildability. Rourke v. Rothman, 448 Mass. at 192. In Rourke, the lot at issue was shown on a 1915 plan, and remained in common ownership until March 1970. When the Town of Orleans adopted its first zoning bylaw in 1954, it exempted from the new 15,000-square-foot minimum lot size 5th Edition, 2nd Supplement 2015 7-49 §74 MASSACHUSETTS ZONING MANUAL requirements any preexisting lots with at least 5,000 square feet, whether or not owned separately from adjoining land. In 1961, Orleans amended its zoning bylaw to increase the minimum lot size to 20,000 square feet, and impose a front- age requirement of 120 feet; however, the "grandfather clause" for pre-1954 lots with at least 5,000 square feet, whether or not separately owned, was retained. In May 1970, the town amended the grandfather clause to exempt only pre-1954 lots with at least 5,000 square feet that were separately owned at that time. By virtue of this amendment of the Orleans grandfather clause, the lot became unbuildable for the first time. Both the Land Court, and the Appeals Court in a decision published at 64 Mass. App. Ct. 599 (2005), ruled that when the lot was placed in separate ownership in March 1970, it failed to comply with the "then existing" zoning bylaw require- ment of 20,000 square feet of area, and 120 linear feet of frontage. Both the Land Court and Appeals Court reasoned that G.L. c. 40A, § 6, 14 was not intend- ed to pile up one grandfather clause on top on another for the purpose of perpet- uating zoning nonconformities, and thus the Orleans grandfather clause should be disregarded for purposes of determining compliance with "then existing" re- quirements under G.L. c. 40A, § 6, 14. The Supreme Judicial Court disagreed. "The court rejected the plaintiffs' con- tention that the 'requirements' of Orleans zoning bylaw did not include the ex- emption provided for pre-1954 lots, stating that that position "ascribe[s] talis- manic significance to a purely semantic distinction." Rourke v. Rothman, 448 Mass. at 195; see also Williams v. Bd. of Appeals of Norwell, 86 Mass. App. Ct. 1111 (2014) (unpublished decision; text available at 2014 WL 4450457). (W "Available"for Single- and Two-Family Residential Use In Cbamseddine v. Zoning Board of Appeals of Taunton, 70 Mass. App. Ct. 305 (2007), the Appeals Court considered whether the lot in question was subject to the current zoning ordinance dimensional requirements, or if it had grandfather protection under G.L. c. 40A, § 6, 14 ("a lot for single and two-family residen- tial use which at the time of. . . [the zoning change] . . . was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirements but at least five thousand square feet of area and fifty feet of frontage"). The lot was shown on a residential subdivision plan approved in 1987, but was designated as a park. Pursuant to G.L. c. 41, § 81U, the planning board's endorsement on the plan prohibited, for three years, building on the park without the board's approval. Although the lot complied li g ped with applicable zoning when it was created in 1987 a zoning amendment enact- ed in 1989 rendered the lot unbuildable while the three-year building restriction Y g under G.L. c. 41, § 81 U remained in effect. 7-50 5th Edition, 2nd Supplement 2015 ZONING FREEZES § Z4 The planning board argued that the lot was not grandfathered under G.L. c. 40A, § 6, 14 because the lot was not available for residential use in 1989 when the zoning ordinance was amended, and therefore was not "a lot for single and two- family residential use" in 1989. Chamseddine v. Zoning Bd. of Appeals of Taunton, 70 Mass. App. Ct. at 307. The Appeals Court rejected this argument and con- cluded that the three-year restriction on building imposed under G.L. c. 41, § 81U did not "change the character of the land from single and two-family resi- dential, so as to preclude application of the grandfather clause of G.L. c. 40A, § 6." Rather, the court noted that the "contemplation of G.L. c. 41, § 81U . . . is that a restriction imposed under the authority of that section will last for three years only to give the municipality time to decide whether to purchase the lot for recreational purposes. If no purchase is made, the restriction ends at the three- year point." Chamseddine v. Zoning Bd. of Appeals of Taunton, 70 Mass. App. Ct. at 307-08. (h) Five-Year Freeze for Up to Three Residential Lots in Common Ownership The second sentence of G.L. c. 40A, § 6, 14 provides alternative grandfather protection to residential lots and "applies only if a plan of the lot in question has been recorded or endorsed." Girard v. Bd. of Appeals of Easton, 14 Mass. App. Ct. 334, 337 (1982). As inserted by 1979 Mass. Acts c. 106, the second sentence provides as follows: Any increase in area, frontage, width, yard or depth requirement of a zoning ordinance or bylaw shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single- and two-family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with an adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth re- quirements than the newly effective zoning require- ments but contained at least seven thousand five hun- dred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hun- dred and seventy-six, and provided further that the provisions of this sentence shall not apply to more 5th Edition, 2nd Supplement 2015 7-51 §74 MASSACHUSETTS ZONING MANUAL than three of such adjoining lots held in common ownership. G.L. c. 40A, § 6, 14 (emphasis added). While the language of the statute interposes apparent limitations on its utility (by suggesting that the plan in question must have been recorded or endorsed before January 1, 1976), the decision of Baldiga v Board of Appeals of Uxbridge, 395 Mass. 829 (1985), held that three qualifying residential lots in common ownership are protected from more stringent dimensional requirements for five years after the amendment if the lots, whenever created, conform to applicable zoning re- quirements as of January 1, 1976, and have at least 7,500 square feet of area and 75 feet of frontage. Following Adamowicz v. Ipswich, 395 Mass. 757, 762 (1985), the court construed this exemption as looking to the most recent plan of record prior to the effective date of the zoning change. The Baldiga case has judicially read out of the statute any requirement that a plan be recorded before 1976. Thus, the five-year freeze does not commence until the effective date of the zoning amendment. In Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 (2003), the court addressed a situation where the lot for which the common lot exemption was sought had been held in common ownership with five other lots at the time of the effective date of the zoning change. The lot was subsequently conveyed to a new owner who sought and was denied a building permit. The court held that "if a party owns four or more adjacent lots, the grandfather protection applies to the first three lots for which protection is sought." Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. at 259. The court also held that the subsequent transfer out of common ownership did not defeat the protection. The Marinelli court also clarified that "frontage" for purposes of determining whether the lot meets the requirements of the statute is to be determined by reference to the definition in the local zoning bylaw. To obtain protection from increased dimensional requirements under the second sen- tence of the fourth paragraph of Section 6, the following qualifications must be met: • the lot claiming the exemption must be one of the first three ad- joining lots for single- or two-family use in common ownership at the time of the zoning change to seek a building permit; • the lots must be shown on a plan recorded or endorsed before the effective date of the zoning amendment; • each lot must have at least 7,500 square feet of area and 75 feet of frontage; and i 7-52 5th Edition, 2nd Supplement 2015 I e ZONING FREEZES §Z4 • each lot, whenever created, must conform to applicable zoning requirements as of January 1, 1976. In construing the residential freezes of the fourth paragraph, the courts have en- gaged in judicial redrafting to evoke some meaning and purpose out of muddled and obscure language. These cases may afford some freeze protection in the face of puzzling legislative enactments. See Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15, 20 (1987) (characterizing unrelated portions of G.L. c. 40A, § 6 as containing "an obscurity of the type which has come to be recognized as one of the hallmarks of this chapter"). 7.5 "SMART GROWTH'' FREEZES Gen 1 Laws c. 40R, adopted in July 2004, is entitled "Smart Growth ning and Ho 'ng Production." The statute's purpose is to provide incentiv to cities and towns Massachusetts to increase residential densities allow as-of-right in specially des ated "smart growth zoning districts." (Sm growth is dis- cussed in detail in apter 18 of this book.) Section 11(b) f G.L. c. 40R pro- vides for the following - or three-year freeze applicab to project applications in approved smart growth zo 'ng districts: An application to an roving a ority for approval under a smart growth zon o ance or by-law shall be governed by the applicab ring provisions in effect at the time of the sub ' ion, 'le the plan is being processed, during pendency of an appeal, and for 3 years after appr . If an application is 'ed, the zon- ing provisio in effect at the time of the app ation shall continue ' effect with respect to any further ap ication filed ithin 2 years after the date of the denial exce as applicant may otherwise choose. It shou e noted that Chapter 40R does not require cities and towns to sig- nat mart growth zoning districts, so this freeze will be available only in ci s d towns that voluntarily designate such districts and only wit - ject a li Attorneys Blaesser and Giaimo gratefully acknowledge the assistance of Kendra L. Berardi, Esq., in the preparation of the 2015 Supplement. 5th Edition, 2nd Supplement 2015 7-53 Town of North Andover a� NoRrH , Office of the Zoning Board of Appeals Community Development and Services Division Heidi Griffin,Division Director ... 5" 27 Charles Street cttu5e North Andover,Massachusetts 01845 978 Tele D.Robert Nicetta. Telephone( )688-9541 Building Commissioner Fax(978)688-9542 Any appeal shall be filed Notice of Decision within(20)days after the Year 2002 date of filing of this notice in the office of the Town Clerk. Property at: 54-56 Phillips Court. NAME: Paula Cahow DATE: 3/22/02 ADDRESS: for propertyat: 54-56 Phillips Court PETITION: 2002-008 North Andover,MA 01845 HEARING s : 3/12/02 The North Andover Zoning Board of Appeals held a public hearing at its regular meeting on Tuesday, March 12,2002 at 7:30 PM upon the application of Paula Cahow,for property at: 54-56 Phillips Court, North Andover,MA requesting Variance from Section 7,Paragraphs 7.1&7.2 of Table-2 for dimensional relief of lot area and street frontage in order to subdivide the lot into two non-conforming lots within the R 4 zoning district. The following Board members were present: John M.Pallone,Ellen P.McIntyre,George M.Earley,& Joseph D.LaGrasse. Motion was made by Joseph D.LaGrasse and 2°d by Ellen P.McIntyre to grant a variance from the requirements of Section 7,Paragraphs 7.1&7.2 for dimensional relief of lot area and street frontage in order to subdivide the lot into two non-conforming lots. Voting in favor: John M Pallone&Joseph D. LaGrasse. Voting in opposition: George M.Earley&Ellen P.McIntyre,therefore,the petition was DENIED. N Town of North Andover o Board of Appeals, C Cr, Ti CDMC3M Abohn P lone,Acting Chairman < o Decision2002-008 0 Z A- BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 ��� •• �.�_, . �r oma' r � rt �xa �rr own MEN on man �a9 ��� 1�1 �ifdelM� v« y�+ X11 sq ft. 4444 • - -- rf F44D L i 320 Pleasant Street pplication • Denial Letter received by Applicant: June 02, 2016 • Denial Letter given to Departments: June 06, 2016 • Application: June 02, 2016 • Legal Notice given to Applicant: June 02, 2016 • Legal Notice Mailed to Abutters: June 14, 2016 • Legal Notices: June 14, 2016 June 21, 2016 • Meeting Date(s): June 28, 2016 • Waiver of Time Constraint form given to Brian Vau hn on June 28, 2016 @ meeting • Decision Date (within 14 Days of Hearing): • Mailing of Decision and 20 day Letter: • Appeal Deadline (20 days following Decision): • Correspondence(s): r- 1, --------------- -�nTT'r t��±1 was-�--� �7� /�j�� �`j�(�y'• -xp� _ aivq nlavry aanlj Nvid'+vN+y ^'pl6�°' '�?�,''w�i""'1°^."(-PTS cA'•p"y -=�='=-�------.---• North Andover MIMAP June 1, 2016 095.0-0029 095.A-0063 �.095.A-0068 095.A-0069 26 PHILLIPS CT 38 PHILLIPS CT ✓ 095.0-0031 095.A-007 095.0-0032 42 PHILLIPS CT 123' 44 PHILLIPS CT A 095.A-0064 'OSS 095.0-0033 0 46 PHILLIPS CT 095.0-0040 �1^111 31 PHILLIPS CT 41 PHILLIPS CT `` sQ, 23 PHILLIPS CT 43 PHILLIPS CT 095.0-0037 095.0-0041 I � 095.0-0034 / 50 PHILLIPS CT 80 MILLPOND 82 MILLPON 095.A-0080 095.0-0038 ,y<o� 59 PHILLIPS CT 095.A-0081 095.0-0035 -095-1 �0082 095.0-0043 54 PHILLIPS CT 095.A-0083 095.A-0037 t 095.0-0039 ;� �� 310 PLEASANT ST 095.0-0036 095.A-0094 095.A-0097 11�r 94 MILLPOND 095.A-0Q95 095.A-0098 320 PLEASANT ST 95.MILLPOND i 96 MILLPOND 095.A-0099 095.A-0096 095.A-0100 095.A-0101 095.0-0059 201' P/easant Stre 095.A-010 et 095.0-0061 095.0-0070 095.0-0020 0 MVPC Be Q Municipal Boundary Horizontal Datum:MA Stateplane Coordinate System,Datum NAD83, Rail Line Meters Data Sources:The data for this map was produced by Merrimack Interstates I&ORTIM Valley Planning Commission(MVPC)using data provided by the Town of -I Ot t16o q.{. North Andover.Additional data provided by the Executive Office of -SR s6< .66e�� Environmental AffairslMassGIS.The information depicted on this map is Roads 3 _ L for planning purposes only. It may not be adequate for legal boundary l0 --- 9 definition or regulatory interpretation.THE TOWN OF NORTH ANDOVER Co r Easements MAKES NO WARRANTIES,EXPRESSED OR IMPLIED,CONCERNING ❑Parr • W fir { THE ACCURACY,COMPLETENESS,RELIABILITY,OR SUITABILITY 'r t .?f OF THESE DATA.THE TOWN OF NORTH ANDOVER DOES NOT - Tr i o \\ t` E ASSUME,.NY LIABILITY ASSOCIATED WITH THE USE OR MISUSE OF Hyd'L,,raphic Features .)�'o�,K- `� THIS INFORMATION Streams ,SSACNUS� Wetlands Exempt Lands 1"=66 ft "�° North Andover MIMAP June 1, 2016 095.A-0063 095:A=0069 095:0-0029 �095.A=0068 26 PHILLIPS C-TJ 38iP.HIL -1-- CT /_ 095:0-0031 095.A-007C 095.0=003 2 421PHILLIPSrGT 44,PHILLIPSrCT 123' ;p 095:A=0064 095:0-0033 '0' 46 PHILLIP.S�CT 095.0-0040 6 31 PHILILIPS ! 41 P.HILLIPStCT 23.PHILLIPS,CT 43 PHILLIPStICT 095:0=0037 095.0-0041 095.0=0034Ln ' 50 PHILLIPS CT 80 MILLPOND 82.MILILPON R4' 095.A-0080 095.0-0038 Yco4i 09,5.A-0081 59,PHIVHPS CT 095:0=0035 095.A=0082 095:0-0043 54 PHILLIPS CT 095.A-.9083 095:A=0037 09,5'.0-0039 310,PLEASANT sTr' 095,.A-0094 095.A-0097 0.95.0,-0036 94.MIL'L'POND. 095.A-0095 095.A-0098 320,,PLEASANT'ST' 95>MILLPOND. L . 961MI 095:A-0099 rn� 095.A-0096 095.A-0100 r 095:A-0201 095.0-0059 201 P,eaSa�rs095.A-010 treet• R3 095:9-0061 095.0-0070 09s:o-0020 0 MVPC Be Zoning Overlay Zoning • 0 Adult Entertainment Distric Busine s 1 District Municipal Boundary 0 Machine Shop Village Ove C Businei s 2 District Horizontal Datum:MA Stateplane Coordinate System,Datum NAD83, Rail Line ®Watershed Protection Dist 12 Busine s 3 District Meters Data Sources:The data for this map was produced by Merrimack Interstates 0 Historic Mill Area 10 Busine s 4 District NQRTil Valley Planning Commission(MVPC)using data provided by the Town of _1 0 Medical Marijuana 10 Geners Business District Qf •0 4� North Andover.Additional data provided by the Executive Office of SR ©Downtown Overlay District 6 Planne CommercialDe �6<s` ��•e OQ Environmental AffairslMassGIS.The information depicted on this map is Roads O Historic District Corrido Development Dist 1� _ _ for planning purposes only. It may not be adequate for legal boundary LJ Osgood Smart Growth(40 0 Cornice Development Dist definition or regulatory interpretation.THE TOWN OF NORTH ANDOVER Co Easements _ H G Comido Development Dist F p Hydrographic Features MAKES NO WARRANTIES,EXPRESSED OR IMPLIED,CONCERNING Industri 11 District 0 Parcels Streams * • THE ACCURACY,COMPLETENESS,RELIABILITY,OR SUITABILITY Industri 12 District £ « * OF THESE DATA.THE TOWN OF NORTH ANDOVER DOES NOT Wetlands C:Industri it3 District c .• ASSUME ANY LIABILITY ASSOCIATED WITH THE USE OR MISUSE OF Exempt Lands O Industri I S District ► °C"-' „' Reside ce 1 District THIS INFORMATION Si •�rt<o� � Reside ce 2 District SSACHUS� R—idlei ce 3 District de cc 4 District 1"=66 ftde ce 5 District Ede ce 6 District age esidential District North Andover MIMAP June 1, 2016 A. r r A G L 4. r�rt i a k yy a r } '�• y h 4 �santrstr �W 4�e( .4. �s O MVPC Bo Interstates Horizontal Datum:MA Stateplane Coordinate System,Datum NAD83, — Meters Data Sources:The data for this map was produced by Merrimack —SR NORT►{ Valley Planning Commission(MVPC)using data provided by the Town of Roads Ot a q� North Andover.Additional data provided by the Executive Office of ts� r� Environmental Affairs/MassGISThe information depicted on this ma t i Easements ? be •s 00 . P P is Parcels for planning purposes only.t may not be adequate for legal boundary FO• 9 definition or regulatory interpretation.THE TOWN OF NORTH ANDOVER MAKES NO WARRANTIES,EXPRESSED OR IMPLIED,CONCERNING �t THE ACCURACY,COMPLETENESS,RELIABILITY,OR SUITABILITY is * OF THESE DATA.THE TOWN OF NORTH ANDOVER DOES NOT X o'q 1� • ASSUME ANY LIABILITY ASSOCIATED WITH THE USE OR MISUSE OF THIS INFORMATION SSACHUSF V=66 ft z � I i SMOLAK & VAUGHANCL ATTORNEYS AT LAW MEMORANDUM _ To: Town of North Andover Zoning Board of Appeals Applicant/Owner: Ryan Schruender Property: 54 Phillips Court and 320 Pleasant Street Map 95, Parcels 35 and 36 Date: December 7, 2016 This matter was initially opened on June 28,2016.The Applicant,Ryan Schruender,is requesting dimensional variances to allow for the maintenance of an existing two family home on an existing lot of record at 54 Phillips Court and to allow for the construction of a new single family home on an adjacent existing lot of record on Phillips Court known and numbered as 320 Pleasant Street. The matter has been continued on two occasions with the Board and abutter considering abutter input and concerns. At the most recent hearing the Applicant presented a concept plan for a new home design that was believed to be more consistent with the existing neighborhood. The hearing was further extended thereafter at the request of the Applicant. The purpose of this memo is to respond and provide background with respect to the remaining issues raised by the Board at the prior hearings.These matters are addressed in turn as follows: 1. Basis for Variance. At the prior hearing an issue was raised by an abutter with respect to the basis for the variance. The basis for the variance and issues related to shape and topography of the lot were addressed in the Applicant's initial memorandum in support of the variance and were discussed on the record at the initial hearing. But as a supplement to that memo and testimony,we would also note that there are peculiar soil conditions which effect the lot. In connection with developing a drainage plan the Applicant's engineer dug a number of test pits and noted that there was an eighteen inch layer of loam, beneath which there was four to five feet of sandy clay,and beneath which there was a layer of more dense clay.The clay soils are not conducive to good {00104274;v1} East Mill,21 High Street,Suite 301,North Andover,MA 01845 WWW.SMOLAKVAUGHAN.COM Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street December 7,2016 drainage which explains existing drainage conditions in the neighborhood. As a result of the unusual clay soils (which are not typical to the district),combined with the topography a hardship exists which is noted by the Applicant's historical concerns with water in the basement of the existing home at 54-56 Phillips Court. Allowing the issuance of the variance and the construction of the new home will also allow the applicant an opportunity to address the drainage concerns with construction of drainage improvements as will be discussed in a later section of this memo. 2. Design and Size. One issue of concern to neighbors and the Board raised in our initial hearing was with respect to the size and design of the proposed home. The Applicant submitted a concept plan at the most recent hearing and has now submitted a proposed final architectural plan set with this memo. The home has been substantially reduced from the initial proposed footprint and design and has been reduced to provide for 1,153 SF of first floor living space and 1,244 SF of second floor living space (2,397 SF total living space) as shown in the submitted floor plans. The design is believed to be consistent with the existing homes in the neighborhood so as to address the stated concerns of a number of Board members and abutters. The Applicant has also submitted a revised site plan with its application depicting the proposed foundation consistent with the architectural plan set. 3. Drainage. A request was also made for the Applicant to address drainage issues. Based upon the clay soils as discussed in Section 1 of the memo above,the Applicant's engineer believes that the best drainage design for the lot would be to install dry wells and to redirect the water to the rear of the lot.The Applicant's engineer suggested that due to the clay soil conditions,it would be his recommendation,in fact,that two dry wells be installed rather than one. In addition to a French drain system tying into the dry wells to redirect water flow, the home would have gutters installed also being redirected to the dry wells at the rear of the lot. This system should then improve the existing conditions by redirecting flows to the dry wells and then to the natural drainage to the rear of the lots. Plans showing the proposed drainage improvements will be provided at the upcoming hearing. 4. Landscaping. The Applicant's intention is to maintain as much green and buffering as is feasible. In connection with the most recent and final design of the home,the screened porch and bulkhead to the rear were relocated northerly in an effort to save the large oak tree and as much existing trees and greenery as possible to the rear of the lot. The maintenance of this tree and additional proposed plantings to provide buffering and screening will be shown on the proposed landscape plan which will be provided at the upcoming hearing. {00104274;v1} 2 r Memo to North Andover ZBA Re:54 Phillips Court and 320 Pleasant Street December 7,2016 Respectfully submitted, Ryan Schruender By his atto Brian G.Va h n,Esq. SMOLAK& UGHAN LLP 21 High Street,Suite 301 North Andover,Massachusetts 01845 Tel. (978) 327-5217 100104274;vi} 3 i i j Z O OWNER OF RECORD - W - 54 PHILLIPS COURT - ASSESSORS MAP 95 PARCEL 35 RYAN SCHRUENDER BOOK 12764 PAGE 97 320 PLEASANT STREET ASSESSORS MAP 95 PARCEL 36 _ RYAN SCHRUENDER W BOOK 12764 PAGE 97 PLAN REFERENCE LOTS 11 &12 PLAN 2770 DATED OCTOBER 5, 1053 - 1n J . -slulS3 �` f O 0_ o 1(CtRR?-n _ W p HEREBY CERTIFY THAT THE PROPERTY LINES SHOWN HEREON FI-Z / tzy ARE THE ONES DIVIDING EXISTING OWNERSHIPS.AND THE LINES OF Q STREETS AND WAYS SHOWN ARE.THOSE OF PUBLIC OR PRIVATEp r,II '60 STREETS OR WAYS ALREADY ESTABLISHED AND THAT NO NEW m ]1 PHIWPS LINES FOR DIVISION OF EXISTING OWNERSHIP OR FOR NEW 0 O_p / 111 dT COURT WAYS ARE-SHOWN." LV Z0 of NT 'I CERTIFY THAT THIS PLAN CONFORMS TO THE RULES AND p' O NyT - SUSAN ARMITAGE&EDWARD ANDRUSS REGULATIONS OF THE REGISTERS OF DEEDS OF THE 0 DO RONALD&AMY HAMLET SBdh MAP 95 PARCH 34 COMMONWEALTH OF MASSACHUSETTS.' d MAP 95 PARCEL 38 / Fnd 50 PHILLIPS COURT _ Q Z Z . 59 PHILLIPS COURT rtec. 0 Z p V wow 1148 12 6 I b N 'a� '`•� .py 7.91Y PHIWPS . STEPHEN.MELESCIUC,-P.L.S. DATE . L.S.AREA / 4i '(._ COURT = k' ot ZONING:RESIDENCE 4 DISTRICT - x REYOeE 9C5G D•aEi 4AU!A: E7051N0 BERY j #54 Yl195P C7 -� p / ATAp ss PARCEL 35 ° 24.4' 7.500 SO.Fr. PROPOSED PROPOSED = o N / 9$a 0.17 ACRES / t - REQUIRED PARCEL 35 PARCEL 36 Q CHRISTINE PONTUSO&CRAIG SCHORER ,MAP 95 PARCEL 39 �t++ / +q `'+i LOT AREA MIN(&F.) 12,500 7,500 10.467 . U 310 PLEASANT STREET �a+i 1 rt�t `Py'� s .� STREET FRONTAGE o o R+.133.5l OUSE ` XC1R).126 42 194 7 •4,,q ^ 37. i �+ 100 75 122.08 4S8 T`' PHILLIPS MIN. FT.) - - � UEC4 "33 '♦ .Ac UHli f a1S . RE-LOCATE \ TREU*c COURT FRONT SETBACK( •30 15.9 ••15 S w UTWTY Pal: /' •a. o'o \',+� s.e' tae' ��u fR SIDE MEN�ACK 0: 15 6.6 32.7 =3i l < � REAR SETBACK 30 37.2 33/a1Y ( o / 1aa MAY7.95 PARCEL 38 / •SETBACK FROM SIDE STREET 10,a87.50.rT. ,rr^-': - (PLEASANT STREET) 02 0.24 ACRES s• +� FRONT YARD SETBACK PER FOOTNOTE 8 20'MIN. ' /• 320 PLEASANT S RF f. - ET I (11.53'+ 7.90'+ 5.13'+ 15.90')/4= 10.12' TF-137.0 .b "REOUIRED AVERAGE FRONT YARD SETBACK PHILLIPS M ID GF-135.o P' COURT 10.12' �y Q OF-129.5 _ + PER ZONING DIMENSIONAL REQUIREMENTS FOOTNOTE 8. ISIit W 4) 1 ! yr N/F Ip o ,l DOINA SIPOS ~ ,w AI 99✓ t� \ MAP 95.A o uIPARCEL aO ABBREVIATIONS Z 9 (Oj ; W O f T3,, wv WATER VALVE OND d VJ d_ d w �r° .9' �I WCS WATER CURB STOP - `o , E.O.P. EDGE OF PAVE Q J Q a V,a o0 - BB BITUMINOUS BERM GUARD ,`.. ` - GV GAS VALVE N IL _ = o. In =Q R1k ccs GAS CURB STOP In d��\ 0 }d CB CATCH BASIN Z g O OVER SMH 2 MANHOLE d (�O.H.W. OVERHEAD WIRES CCQ UP UTILITY POLE L AC AIR CONDITIONING - \�V J LS LANDSCAPED 20 10 0 20 Marchionda &Associates,L.P. Enginearing and Planning Consultants 62 Montvale Avenue Suite I Stoneham, MA 02180 �HmbL TEL: (781)438-6121 Na 3DW FAX: (781) 438-9654 Email: engineering0morchionda.com Website: www.marchionda.com DATE 11/18/16 . R�RaFL15\s73-0I�F7u51FC Q7NWIIOISOnC - M.&A NO.:87341 SCALE 1'=20' IV SHEET 1 OF 1 I FM MR I V FE M-1 El Fn PROPOSED NEW CONSTRUCTIO PRAWN BY: Fn MARTHAMACINN15 501RUENDER RESIDENCE 58 REGENT AVE. NBRADFORD, MA. 01835 54 PHILLIPS COURT (978)374-8719 MA. o NORTH ANDOVER, m SCREENED POR H LLH -GAS LFIREPLAC �L- El El -BULKHEAD LEFT SIDE ELEVATION 114 = l '-0 ® ® ® ® SCREENED PORC _ _ Lj- BULKHEAD +H - REAR ELEVATION 1 /411= I '-0 rn PROPOSED NEW CONSTRUCTION DRAWN BY: p MARTHA MACINN15 ` , 5CH RUEN DER RE51 DENCE I `J 54 PHILLIPS COURT 58 REGENT AVE. N p BRADFORD, MA. 01835 NORTH ANDOVER, MA. (97(5)374-5719 1 14' FI RST FLOOR PLAN SCREENED PORCH Ln m m 1141=- 1 '-O 2 ° 1 153 NET 5Q. ET. 46' z w Q � Q wtY r z = w C) m 2' 101_8° 17-4"-4" 3 stol 7' L�- KITCHEN 1 6'-4" FAMILY ROOM I O-6^ z O_ ~ w UU � z � Iw ------ (S) Q 91 3._8.. w O w i i U oL u > LU m zz LLl Q s'-1 O" ZIL Z _ O o ` j .T 2' wLnQ 23'_8" 12' 2'-4" 3'-I O" —6'-1 O" O Q.! GARAGE O � O OFFICE °' CL JA o' 6' O DEC. 4, 201 6 22'-6" 23'-G° w y Ln SECOND FLOOR PLAN N p 1 /4'=- I '-0 zwj 1 244 NET SQ. FT. wQ Q � C) m = �Lm 2 2.6 12'-2" 6_ _2 13'-4" Ln m 10'-4" 8'8" '-4" 8'-4" 9'-4" O 8' O � F) ,OI I BEDROOM O 11 LLJCLIW T - - - - (f) C) �- 2'_4" , � Z (J 1 � Ow of — � o > O BEDROOM W - <z 5'-10" I WALK IN 2'-4" W Q MASTER CL05ET °N Z E z BEDROOM _ C) W ' RAILING W ( ,n O z 3� — — — — O U O (s) WALK IN a/ CLOSET CL- OPEN LOPEN TO BELOW 10, 8' 4' DEC. 4, 201 G 2' D D rn - rn 06 II n O .o O z -------------------- o D I , I - - - I O I I I I I I I I rn I I I I I I I I I I I I I I I I I i I I ------------------------J I I I I I I I I r--- ----------- ---- 41. I I m I I ' I I I I I I N I , I I I i I i I I I I I I I I I I I I I I - I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I L -J I I I I I I I I I I I L---------- ----------- ------------------- ------ � m � PROPOSED NEW CONSTRUCTION DRAWN BY: SCHRUENDER RESIDENCE MARTHAMACINN15 O 54 PHILLIPS COURT 58 REGENT AVE. BRADFORD, MA. 01835 m NORTH ANDOVER, MA. (978)374-8719