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HomeMy WebLinkAboutMiscellaneous - 350 OSGOOD STREET 4/30/2018L ! t�lw t .p. .'- • �� � � �� � `� O � �h. �� � r of ,,,to ,to' OG Oit ,F o4q Yly�,• �9SSACHUS�t�g NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER_ MASSACHUSETTS 01845 FAX (978) 688-9542 Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main St., North Andover, MA on Tuesday the 13th day of July 1999, at 7:30 PM to all parties interested in the appeal of Gerard E. & Dolores Welch, 350 Osgood St., No. Andover, for premises at: Lot A, Osgood St., No. Andover, requesting a Variance from the requirements of Section 7, P7.1 & 7.2, & 7. 1.1 for relief of lot area dimension, street frontage, contiguous buildable area, of Table 2, in order to construct a single family home, and as a Party Aggrieved of the Building Commissioner's denial of said application for a building permit. Premises affected is property with frontage on the North side of Osgood Street which is in the R4 Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover, Monday through Thursday, from the hours of 9:AM to 1: PM. By Order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 6/29/99 & 7/6/99. Legalnov/25 BOARD OF .UPE_1LS 688-9541 V Qcoroccct-oauj0 aQ ro6�od-6 -6 -E- m .Tc c>,,,�2 W G ;rld Lo� m Lo~�JZo (0_� ox .o CMa, U3 m:L-rN.0 'F5 mc. �co _rnQ .� c0mN �o o3>UL>.mQLO m«° 0>0QLLONC j�mQO I�roOroY�m0�NQ 7-oC o� OO «1o�� QnfEZZQW7aL�—m+Z -=No m .o 0 Oco O>,0LL0COC8Z�._-`-�-E6OuEai'EcaN3L_°EpZEo °i ��>_°nQ oCONvyo�`>aprnm°>,--r=- m: OZ �OTyz= LDo0) ma FZ NNcoaEVOLaao oam n v-N3c' rn W O�Oz'OS � WaC-aOywo¢CW Er- m.. m `:°�oa CL N mcn2 t= r bUILlllN(jS 688-9545 CONSERVATION 688-9530 HE.�LTH 688-9540 PLANNING 688-9535 Any appeal shall be filed within (20) days after the date offiling of this notice NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER, MASSACHUSETTS 01845 RECEIVED. " t °�- f 7 JOYCE O TOWN CLERKAW NORTH ANDOVER .1999 OCT 18 P 2: 55 NOTICE OF DECISION Property at: Lot A, Osgood Street FAX (978) 683-9542 NAME: Gerard E. & Delores Welch DATE: 10113199 ADDRESS: residence: 350 Osgood Street for premises at: Lot A, Osgood Street PETITION #021-99 North Andover, MA 01845 HEARING: 10112/99 The Board of Appeals held a regular meeting on Tuesday evening, October, 12, 1999 upon the application of Gerard E. & Delores Welch, residence at: 350 Osgood Street, for premises at: Lot A, Osgood Street. Petitioner is requesting a Variance from the requirements of Section 7, Paragraph 7.1 & 7.2, & 7.1.1 of Table 2, for relief of lot area, street frontage, Contiguous Buildable Area, in order,to construct a single family home. Petitioner is a Party Aggrieved of the Building Commissioner's denial of said application for a building permit. Property is within the R-4 Zoning District. The following members were present: William J. Sullivan, Raymond Vivenzio, Robert Ford, Scott Karpinski. Upon a motion made by Raymond Vivenzio and 2nd by Robert Ford the Board voted to uphold the Building Commissioner's decision and to DENY the Party Aggrieved petition. Voting in favor of the denial: William J. Sullivan, Raymond Vivenzio, Robert Ford, Scott Karpinski. Upon a motion made by Raymond Vivenzio and 2nd by Robert Ford, the Board voted to DENY the request for a variance on the basis that there is no hardship owing to circumstances relating to soil conditions, shape, or topography of the land or structure and especially affecting such land or structures. Voting in favor of the denial: William J. Sullivan, Raymond Vivenzio, Robert Ford, Scott Karpinski. By order of the Zo in atf Appeals \ CU _ William J. Sulli an, Chairman m111999decision148 BOARD OF APPEALS 688-9541 BUILDINGS 683-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 6880535 CHRISTIAN COLWELL ATTORNEY AT LAW 14 ESSEX STREET ANDOVER, MA 01810 TELEPHONE (978) 474-8899 FACSIMILE (978) 470-0211 September 10, 1999 Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Lot A Osgood Street Applicant: Dolores and Gerald Welch Dear Members of the Board of Appeals, pvd 13 BOARD OF APPSA1 ADMITTED TO PRACTICE MA, NH & NY Sf This office represents James C. Bradley and Claire Bradley of 3.3. Camden Street, North Andover, Massachusetts..Jarhes C. Bradley andpClaire Bradley of 33 Camden Street, North Andover are direct abutters to Lot"A-Osgood Street. This letter is filed in opposition to the granting of a variance and/or the overturning .of the Building Inspector's ruling for the following reasons. 1. Section 7.2 Of The North Andover Zoning Bylaw Does Not Allow Any Portion Of A Private Way To Be Included In The Calculation Of Lot Area. The Building Inspector has properly determined in his letter of April 7, 1999 that a portion of Lot A located in Princeton Street as shown on the plan may not be included in the calculation of minimum lot area in the R-4 District. area. Section 7.2 clearly prohibits the inclusion of a private way in the calculation of minimum " In determining the fulfillment of the minimum area and minimum street frontage of a lot required in any zoning district, there shall not be included any land within the limit of ... any private way...." Princeton Street is a private way as noted on the plan. Therefore any portion of Princeton Street cannot be included in determining the minimum area, of a lot. I respectfully disagree with Attorney".Borenstein's assertion in his fetter of July 13, 1999 that Princeton Street is not a "street" as defined in the Zoning Bylaw. The language of Section 7.2 clearly differentiates between a "street" and a "private way". Therefore the definition of a "street" is not pertinent to this issue. Although I agree with Attorney Borenstein's statement that a notation on an Approval Not Required Plan by the Planning Board is not binding on the building inspector, it does serve as reminder to the building inspector that this lot does not conform to zoning. The Planning Board's endorsement of the plan similarly makes no statement about the buildability of the lot, it simply means that the lot has sufficient frontage and access. The amendments made to Section 7.2 of the Zoning Bylaw in 1996 were specifically adopted to prevent any portion of a street, private way or any other way from being included in the calculation of lot area. The amendments were drafted by Town Counsel and sponsored by the Planning Board based upon a similar situation that occurred in this very same neighborhood. It does not make logical sense to allow a street to be used as part of a lot. If the Board determines that a portion of Princeton Street can be used to calculate the area this would be a major precedent setting decision for the Town which would run contrary to the intent of the bylaw. 2. A Variance Should Not Be Granted For The Area Of This Lot As A Showing Of Circumstances Relating To Soil Conditions, Shape Or Topography Has Not Been Made. Mrs. Welch proposes to construct a home on a lot that does not contain sufficient area. The minimum lot requirement for the R-4 District is 12,500 square feet. The lot in questions contains 11,724 square feet and is deficient. She is therefore seeking a variance from the required 12,500 square feet. Mass. Gen. L. ch. 40A, sec. 10, which governs the issuance of variances, requires a showing of "circumstances relating to soil conditions, shape or topography... and especially effecting such land or structures but not affecting generally the zoning district...". A variance may not properly be granted without a finding that at least one of these circumstances exists. The applicant asserts that as only a "minor deviation" from the required lot area is requested the Board should grant the variance. The applicant makes no showing as any circumstance related to soil conditions, shape or topography. It would be extremely difficult for the applicant to make such a showing as case law has shown that insufficient area alone is not sufficient to meet the test for the issuance of a variance. Bruzzeese v. Bd. Of Appeals of Hingham, 343 Mass. 421 (1962); Girard v. Board of Appeals of Easton, 14 Mass. App. Ct. 334 (1982). "The `shape' of a lot is not to be confused with its `size."' Shafer v. Zoning Bd of Appeals of Scituate, 24 Mass. App. Ct. 966.967 (1987). That a lot does not meet certain dimensional requirements of the zoning bylaw does not, standing alone, constitute a unique circumstance relating to the soil conditions shape or topography of the land. This is especially true in those instances where a landowner sells property, which leaves him with land that is not in conformity with zoning dimensional requirements. In such a case where the nonconformity is self-created by the landowner a variance will not be upheld. Karet v. Zoning Board of Appeals of Worcester, 27 Mass. App. Ct. 439, 440, 539 N.E. 2d 81, 83 (1989) The applicant in this instance has created her own non -conformity by creating a lot that does not meet the required minimum lot area. This is not an individual lot standing alone created in the distant past. This lot was created in 1996 by a FORM A plan submitted to the Planning Board by the applicant at which time the applicant was informed that there were issues related to the inclusion of Princeton Street in the calculation of lot area however as stated above this did not prevent the Planning Board from endorsing the plan. The applicant currently owns and lives on the adjacent lot and uses both lots as one. The applicant has demonstrated no hardship. Where "hardship arises solely from the fact that the lot is too small to qualify as a buildable lot under the zoning ordinance, ... sec. 10 gives the board of appeals no authority to grant a variance." Mitchell v. Board of Appeals of Revere, 27 Mass. App. Ct. 1119, 1120 (1989). A request to build two homes by variance in a desirable location where one is feasible by right will not be permitted. City Council of Waltham v. Vinciullo, 364 Mass. 624, 631, 307 N.E. 2d. 316, 321 (1974). The fact that the applicant simply wishes to create a second substandard lot and sell it for profit does not meet any test for hardship. Finally, variances may only be granted upon a finding that " relief may be granted without substantial detriment to the public good and without nullifying the intent or substantially derogating from the intent or purpose of such ordinance or bylaw." However this finding may only be made after a showing of any circumstance related to soil conditions, shape or topography. This showing of any of the above named circumstances has clearly not been made. The applicant asserts that as only a "minor deviation" is sought the Board should find that the issuance of a variance will not be "substantially detrimental" to the public good and would not "nullify or substantially derogate" from the intent or purpose of the Zoning Bylaw. The carving up of an existing, established neighborhood into substandard lots is clearly "substantially detrimental" to the public good and nullifies and substantially derogates from the intent and purpose of the Zoning Bylaw. In conclusion, Section 7.2 of the North Andover Zoning Bylaw clearly prohibits the inclusion of any portion of a private way in the calculation of minimum lot area therefore the ruling of the Building Inspector must be upheld. In addition, the applicant has failed to meet the minimum required showing of "circumstances relating to soil conditions, shape or topography" therefore there is no basis for the granting of a variance. CC/wfc NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER, MASSACHUSETTS 01845 FAX (978) 688-9542 Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main St., North Andover, MA on Tuesday the 13th day of July 1999, at 7:30 PM to all parties interested in the appeal of Gerard E. & Dolores Welch, 350 Osgood St., No. Andover, for premises at: Lot A, Osgood St., No. Andover, requesting a Variance from the requirements of Section 7, P7.1 & 7.2, & 7. 1.1 for relief of lot area dimension, street frontage, contiguous buildable area, of Table 2, in order to construct a single family home, and as a Party Aggrieved of the Building Commissioner's denial of said application for a building permit. Premises affected is property with frontage on the North side of Osgood Street which is in the R-4 Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover, Monday through Thursday, from the hours of 9:AM to 1: PM. By Order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 6/29/99 & 7/6/99. EW=3��yQ a• vaa> .�>• gD6cc«o,L`o-op<a co »zNaO" oa) on.0rnNya=n'd J �N mm0Le alnov/25 OO�c10 a° �NaOU,5m0%«3mU•o --i -2 �Nn-0Z4)E� ZUZauo0Evt J SLLZQwaO°� O�adZat '0 (a Eo � =ory.wmf rn°_orncc�aOQ¢Oypa�oy���or�arn� 3i'� C amZcd m WEw>c (DZ m y o = E o2y4 E�mro`o.—t2vaS�0 0 - ow s2mn °f o�aY 11 BOARD OF APPEALS 688-9541 uuum NuN 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 fir '4 NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER- MASSACHUSETTS 01945 FAX (978) 688-9542 Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Center, 120R Main St., North Andover, MA on Tuesday the 13th day of July 1999, at 7:30 PM to all parties interested in the appeal of Gerard E. & Dolores Welch, 350 Osgood St., No. Andover, for premises at: Lot A, Osgood St., No. Andover, requesting a Variance from the requirements of Section 7, P7.1 & 7.2, & 7.1.1 for relief of lot area dimension, street frontage, contiguous buildable area, of Table 2, in order to construct a single family home, and as a Party Aggrieved of the Building Commissioner's denial of said application for a building permit. Premises affected is property with frontage on the North side of Osgood Street .which is in the R-4 Zoning District. Plans are available for review at the Office of the Building Dept., 27 Charles Street, North Andover, Monday through Thursday, from the hours of 9:AM to 1: PM. By Order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune ori 6/29/99 & 7/6/99. i Legalnov/25 BOARD OF !-U1PE.1LS 688-9541 W cy�¢ ^too�jo._ a •ma�°�oa�a .�mmIDO V �a/U— Z—a� m_°`o L,d.;c�T� a� ao a°� o�o .aQ°di y�Ev aog wn°o'°O ,�yRro °m ..�ooy va '=rn.•mEg°L=orn>.o'0L°>°>.aoL> ° m9 -j: a) >° �� rnr o0�-2 ` A.,-, N°�°OomQa��Em .C R 0>LL0 cE 5Q�Q >c,,o= Z �w7w�-caArn�o>Zy(a (L U°vw - •E ryT~gm co°,cN_ ° ) a �LL�a�oz3nNi'yO��aE°i�E>�0y(01)m�Z£ro .°Cm mtiLLNm�v M0Npv»cI y,N c Biu as ado > c or mo._ O W Z F• Z mL ° mQ ��=m �ay C ID OA� Ea 0) Da O a) 5a 5 3 O oam J - 3�22an 9-aE-88< E� ns- m.o `�:.S oa n�cn.N �'mcn2wr bUILLANUS 688-9545 CONSERVATION 683-9530 HEALTH 688-9540 PLANNING 688-9535 y July 11,1999 To Whom It May Concern: We have been neighbors of Jack and Peg Sutton for 12 years. During this time we have come to know them as good neighbors and friends. We have no objections to the rebuilding of their deck. Sincerely, Clifton G. Stone III Y Bev rly Stone t0j!l ff�� AX WA)c AO -Oh g �dn vu X719 o KS OS6 0DD �5609.3 Pre -Existing Non -conforming Single and Two Family Residential Structures and Uses in the Residential 1, Residential 2, Residential 3, Residential 4 and Residential 6 Districts: a. Pre-existing Non -conforming Single and Two Family Structures: Pre- existing non -conforming single and two family residential structures in the RI, R2, R3, R4 and R6 Districts, may be changed, extended or altered, provided that there is a finding by the Zoning Enforcement Officer (Building Commissioner) that such chane, extension, or alteration shall not render the structure more non -conforming than the existing structure. Upon such determination, a building permit may be issued where applicable. The following circumstances shall be deemed not to increase the nonconforming nature of said structure: 1. Alteration of a structure which complies with all current yard setbacks, building coverage, and building height requirements but is located on a lot with insufficient area, where the structure after alteration will comply with all of current Bylaw requirements except for lot area. 2. Alteration to a structure which complies will all current yard setbacks, building coverage, and building height requirements but is located on a lot with insufficient frontage, where the structure after alteration will comply with all of current Bylaw requirements except for frontage. 3. Alteration to a structure which encroaches upon one or more required yard setbacks, where the structure after alteration will comply with all current bylaw requirements except for yard setbacks (the provisions of this clause shall apply regardless of whether the lot complies with current area and frontage requirements). 4. Alteration of a structure which encroaches upon one or more required yard setbacks, where the altered part of the structure will comply with all current yard setbacks, or the alteration is to the side or face of the structure which encroaches upon a required yard setback, and the alteration does not further encroach upon the required yard setback. In either case, the altered structure must comply with current building coverage and building height requirements (the provisions of this clause shall apply regardless of whether the lot complies with current area and frontage requirements). 5. Alteration to a nonconforming structure which will not increase the footprint of the existing structure provided that existing height restrictions shall not be exceeded. In the event that the Zoning Enforcement Officer (Building Commissioner) determines that the nonconforming nature of such structure would be increased by the proposed extension, alteration, or change, the Zoning Board of Appeals may, by special permit, allow such extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. b. Pre-existing Nonconforming Single and Two Family Structures: No portion of this Section 9.3, Pre -Existing Non -Conforming Single and Two Family Residential Structures and Uses in the Residential 1, Residential 2, Residential 3, Residential 4 and Residential 6 Zoning Districts shall be construed to allow for any uses other than those expressly allowed as defined in each above listed zoning district of the Zoning Bylaw. 2.34 Dwelling, Two Family A free standing building intended and designed to be occupied and used exclusively for residential purposes by each of not more than two families (same as "duplex"). The principal building in a two family dwelling conversion shall share a connected common wall (or floor) for at least 75% of the wall's (or floor's) surface. No unheated structure, no structure without foundation and no structure, which is entirely, or partially a garage shall be considered as meeting the 75% requirement. mm�'aiirr� � Zoning Bylaw Review Form . Town Of North Andover Building Department °` ' •° 27 Charles St. North Andover, MA. 01845 �� 4TAYRo hOM1. ,`cy Sic U� � Phone 978-688-9545 Fax 978-688-9542 Street- .. _. - t. Map/Lot. 8 5/ 36- 5, mscant• • ehz.r`_� c�of°c�,�ton�,y/. ..�w����N Uro7�� 3 a� Request: _ /� 401,fio ,v �.. Date: �3 - i5 - d) Please be advised that after review of your Application and Plans that your Application is DENIED for the following Zoning Bylaw reasons: Zoning R - y temedy for the above is checked below. Item # Special Permits Planning Board Site Plan Review S ecial Permit Access other than Frontage Special Permit Frontage Exception Lot Special Permit Common DriVevvay Special Permit Congregate Housing Special Permit Continuing Care Retirement Special Permit Independent Elderlf Housing Special Permit Large Estate Condo S ecial Permit Planned Develo ment District Special Permit Planned Residential Special Permit R-6 Density Special Permit Item # Variance Setback Variance Parkin Variance. Lot Area Variance 6 for Sign_ Permits Board ling Use ZBA Removal Special Permit 11 Permit Use not Listed I al Permit forSign al permit for preexisting Similar 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. - �d ilding Department Official Signa�.0 Application Received Application Denied Item Notes Item Notes A Lot Area F Frontage 1 Lot area Insufficient 1 Frontage Insufficient 2 Lot Area Preexisting 2 Frontage' Complies e s 3 Lot Area Complies `I t 5 3 Preexisting frontage 4 Insufficient Information 4 Insufficient Inforfnation B Use 5' No acgess over Frontage 1 Allowed G Contiguous Building Area 2 Not Allowed 1 Insufficient Area 3 Use Preexisting 2 Complies 4 Special Permit Required Lt e S 3 Preexisting CBA 5 Insufficient Information 4. Insufficient Information C Setback H Building Height 1 All setbacks comply 1 Height Exceeds Maxum im2 2 Front Insufficient Complies . L -t c S 3 Left Side Insufficient 3 Preexisting Height 4 Right Side Insufficient 4 Insufficient Information 5 Rear InsufficientI Building Coverage 6 Preexisting setbacks) (g, oue 1Coverage exceeds maximum 7 Insufficient Information 2 Coverage Complies e s D Watershed 3 Coverage Preexisting 1 Not in Watershed 4 Insufficient Information 2 In Watershed —T Sign 3 Lot prior to 10/24/9414 1 Sign not allowed 4 Zone to be Determined 2 Sign Complies 5 Insufficient Information 3 Insufficient Information E Historic District KPar ki'ng 1 In District review required 1 More Parking Required 2 3 Not in district Insufficient Information `'I"e S 2 Parking Complies S 3 Insufficient Information 4 Pre-existing Parkina temedy for the above is checked below. Item # Special Permits Planning Board Site Plan Review S ecial Permit Access other than Frontage Special Permit Frontage Exception Lot Special Permit Common DriVevvay Special Permit Congregate Housing Special Permit Continuing Care Retirement Special Permit Independent Elderlf Housing Special Permit Large Estate Condo S ecial Permit Planned Develo ment District Special Permit Planned Residential Special Permit R-6 Density Special Permit Item # Variance Setback Variance Parkin Variance. Lot Area Variance 6 for Sign_ Permits Board ling Use ZBA Removal Special Permit 11 Permit Use not Listed I al Permit forSign al permit for preexisting Similar 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. - �d ilding Department Official Signa�.0 Application Received Application Denied 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: Referred To: Fire Police Conservation Planning Other Health Zoning Board Department of Historical Corr Buildina DeDal is Works Dolores C. Welch 350 Osgood Street North Andover, MA 01845 Robert Nicetta, Building Commissioner Town of North Andover 27 Charles Street North Andover, MA 01845 Re: 350 Osgood St, N. Andover, MA March 17, 2004 Dear Mr. Nicetta: I am respectfully requesting that you review the denial of a building permit application for an addition to 350 Osgood Street Issued by Michael McGuire. I believe Mr. Mcguire is mistaken and I would like to request a zoning opinion from you or the town counsel. The property in question is a corner lot in R-4 Zoning. Original home is existing non -conforming and meets all current dimensional requirements and set backs with the exception of one side yard set back (as shown on plan attached). The proposed extension to the home is on the opposite side of the non -conforming side street set back and meets all current set back requirements. The extension does not render the structure more non -conforming than the existing structure. The "reason for denial" which was issued by Mr. McGuire refers to Section 9 (9.3) of the Zoning by- law, however I believe section 9.3 specifically allows for the permit requested. Section 9.3 Pre -Existing, Non -conforming Single and Two Family Residential Structures and Uses in the Residential 1, Residential 2, Residential 3, Residential 4 and Residential 6 Districts: a. Pre-existing Non -conforming Single and Two Family Structures: Pre-existing non- conforming single and two family residential structures in the R1, R2, R3, R4 and R6 Districts, may be changed, extended or altered, provided that there is a finding by the Zoning Enforcement Officer (Building Commissioner) that such change, extension, or alteration shall not render the structure more non -conforming than the existing structure. Upon such determination, a buildingyermit may be issued where applicable. a following circumstances shall be deemed not to increasetl e' onconformina nature of said structure's _3. Alteration to a structure which encroaches upon one or more required yard` cs where the structure after alteration will comply with all current bylaw requiremen for yard setbacks (the provisions of this clause shall apply regardless of whether the I have attached a plan for an extension of property located at 72 Prescott Street. A permit was issued For the extension in December of 2002 and since has been built. The property is in The R4 zoning district and located on a corner lot ( Preseott and Summit Ave) The original house is Pre- Existing Non -conforming because it encroaches on the side Street setback. The extension to the house does not Increase the nonconforming nature of said structure because the "Alteration to a structure which encroaches upon one or more required yard setbacks where the structure after alteration will comply with all current bylaw requirements except for yard setbacks." (Section 9.3.3 North Andover Zoning Bylaw) Both properties ( 72 Prescott St and 350 Osgood St) have the exact same circumstances. Denying a building permit for my extension is arbitrary, capricious and without merit. I believe that,the denial was in error and request that a building permit be issued. The time and expense of going to the Zoning board of Appeals for a finding is creating a financial burden. I purchased the property ten years ago as a home in which to raise my three children and also for an investment because it had the area, frontage and dimensional requirements for future expansion. The time has come to use my investment to help offset the cost of education for my children. My two sons are in college and my daughter is a sophomore at the high school and will be looking at colleges soon. Please respond to my request as soon as possible. Thank you for your consideration in this matter. Sincerely, Dolores C. Welch Attachments Exhibit 1: Proposed Plot Plan, 350 Osgood St Exhibit 2: Architectural Schematics Exhibit 3: Building Permit Application Exhibit 4: Zoning Bylaw Review Form and Denial Exhibit 5: Copy Pages 104& 105- Section 9.3 Zoning Bylaws Exhibit 6: Site Plan 72 Prescott Street CC: Mark Rees Town of North Andover Town Manager Wendy D. Wakeman Town of North Andover Chairman, Board of Selectmen 12 Middlesex Street Town of North Andover Chairman, Zoning Board of Appeals Heidi Griffin Town of North Andover Director, Community Development Julie Parrino Town of North Andover Director, Panning Department Michael McGuire Town of North Andover Building Inspector Thomas J. Urbelis Town of North Andover Town Counsel Howard P. Speicher Davis, Mahn & D'Agostine, P.C. PLAN OF LAND LOCATED IN NORTH ANDOVER, MASS. SCALE.1 "=20' DA TE. 911812003 Scott L. Giles R.P.L.S. Frank. S. GilesR.P.L,S. 50 Deer Meadow Road North Andover, Mass. THE ZONING IS R-4. SEE ASSESSORS MAP 85 PARCELS 35 AND 52. PRINCETON (UNDEVELOPED) STREET STREET OFFSETS SHOWN ARE FOR THE USE OF THE BUILDING INSPECTOR ONLY AND SUCH USE IS FOR THE DETERMINATION OF ZONING CONFORMITY OR NON -CONFORMITY WHEN CONSTRUCTED. 4 1d OF so M .o !L .1 972 c 9F�/StERE� L LAND 9� -000106-5 m m y 22 MM i� =son zn a� .�•s .t -s z O Q w J '= LU' w cl H LL LU J AS NM"C :3iva o :31V4 I :A9NMva0 H013M S3MOlOO :S1N31N0O IMNS Z s a O O LL F- U) w LL AVSE QZ J a 0 0 J LL a Z O V W U) sz .ez .o -z .az zn ss a✓� �-.e c e .o -s an tt s .r a an a :s o -s .et AVSE QZ J a 0 0 J LL a Z O V W U) :31Va :As NMVtla • �•• •—�••• ••—••,• •••�• .aud nuwvuv� --.. -. . 3 Q J a z Q J IL O z_ O O J LL. G z O 0 W N ZP A z z �. . w u � 3�va � ewe nnrvaa OWA nowoav u 0 m u ff 2-1 1 Ali 92 1 u € d a 8 a-i9Xs ff 0 4 u LU 4) 0 CA o u P r� .W.t TION 1- STTE INFORMATION l 1.1 Property Address: :3i/8 ©SGc)QD TOWN OF NORTH ANDOVER, Number:. Parcel N96ber WELDING DEPARTMENT APPLICATION TO CONSTRUCT REP RENOVA OR DEMOLISH A ONE OR TWO FAMII.Y DWELLING ,,-- bi�— l L 'e K:l-"'•~L' .:G, NOWY BUILDING PERMIT NUMBER: DATE ISSUED: SIGNATURE: Building Commissioner for of Buildings Date .W.t TION 1- STTE INFORMATION l 1.1 Property Address: :3i/8 ©SGc)QD 1.2 Assessors Map and Parcel Map Number Number:. Parcel N96ber 1.3 Zoning Information: le r'f- -�Wd ?on' thstrid Proposed Use ,,-- bi�— l L 1.4 Property Dimensions: Lot Area jj L/ F ft—r` 1.6 BUILDING SETBACKS ft Front Yard Side Yard Rear Yard red Provide Provided Required Provided 3 ,` o -72 1.7 water Supply M.G LC.40L 34) 'ublic 1Y Private 0 1.5. Flood Zone Information: Zone Oaf Hood Zee M/ 1.8 Municipal Sewerage Disposal System: On Site Disposal System 0 iECTION 2 - PROPERTY OWNERSHIP/AUTHORIZED AGENT 11 Owner of Record Jame nt) Co— 0S.`_ gess for Service od rJ 3 z' iigna - Telephone F2 Owner of Rccord Name Print Address for Service: ii ature Tele hone iECTION 3 - CONSTRUCTION SERVICES 1 ;.1 Licensed Construction Supervisor. "icensed Construction Supervisor. / 6 187Y Sr kd res 7� Al/ ature Telephone :ompany Name {ess , �•� Not Applicable Q f, C-) `7 B V License umber Li,/F-0y Expiration Date Not AvDlicable ❑ /:� 7S `S—� Registration Number F-Viratig Date ' M X z SECTION 4 - WORKERS COMPENSATION (XG.L C 152 § 25c(6) Workers Compensation Insurance affidavit must be completed and submitted with this in the denial of the issuance of the building permit. Signed affidavit Attached Yes .......0 No ....... 0 SECTION 5 Description ofPruposed Workeheck ail a Failure to New Constriction 0 Existing Building 0 Repair(s) OP erations(s) 0 Addition Accessory Bldg. ❑ Demolition 0 Other 0 Specify Brief Description of Proposed Work: y_ V affidavit will 1 SECTION 6 - it.CTiMATR.n VnnrcTDrzd-rrnwr nnc�rc Item Estimated Cost (Dollar) to be �° E i3)CIAI I7 ONLY w { Completed by permit applicant *� .��, � R� •.,n>;�..,�.. � ::.�_' , xWy g _ w,.� �, x _.`� _'.�` :,� '� �, �:� 1. Building 000 (a) Building Permit Fee Multiplier 2 . Electrical 0 U 00 (b) Estimated Total Cost of , Construction 3 PlumbingO 0670 Building Permit fee (a) x (b) 4 Mechanical HVAC 5 Fire Protection 6 Total 1+2+3+4+5 ,POO Check Number ... v..a.ava� w aaivi�ffi1VL1 iv DL' ♦ WJUrJU 1rV WrMf4 OWNERS AGENT,OR CONTRACTOX APPLIES FOR BUILDING PERMIT as Owner/Authorized Agent of subject property to act on Oreldj&a to orl� u y building permit application. — Date —� SECTION I --as Owner/Authorized Agent of subject property Hereby declare that the statements and information on the foregoing application are true and accurate, to the best of my knowledge and belief i-z�-y L Date NO. OF STORIES SIZE BASEMENT OR SLAB SIZE OF FLOOR TIMBERS IST 2 No 3 RD SPAN DW ENSIONS OF SILLS DIMENSIONS OF POSTS DM ENSIONS OF GIRDERS HEIGHT OF FOUNDATION THICKNESS SIZE OF FOOTING X MATERIAL OF CHRviNEY IS BUILDING ON SOLID OR FILLED LAND IS BUILDING CONNECTED TO NATURAL GAS LINE �. FORM - U - LOT RELEASE FORM INSTRUCTIONS_ This form is usedto verifythat all -necessary approval / permits from Boards and Departments having jurisdiction have been obtained This does not relieve the applicant and` or landowner from compliance with any applicable requirements. /iwrsirr=■'ilsiiiiss'r-nae' Mwwww ■JT wiles■i1i�iwrriira■-r iii7riirii Raawness■ APPLICANT G -t f_rr PHONE ASSESSORS MAP NUMBER LOT NUMBER SUBDIVISION LOT NUMBER STREET I)SG b 00 S 7 STREET NUMBER trrrm00222irrrs Sasso aw■rwraisnss.■WREN rsswrwsrsraeon names" rrnii■ rriwsaaan■ OFFICIAL USE ONLY ■■rrraarrrrrrearer.iireaerwiwaa-•awraairiirrrasaMOM uWaswas wiarwwww"aSam rnnrrr■ REC ATIONS OF TOWN AGENTS -www, rriwirrrwsi•w■ aariirrsriiiiinanwaw�r■.w r.iawrriwirawww■ ■re swrewass i DATE APPROVED CONSERVATION AD TOR DATE REJECTED COIANdENTS DATE APPROVED TOWN PLAWWR _ DATE REJECTED w DATE APPROVED FOOD INSPECTOR - HEALTH DATE REJECTED DATE APPROVED SEPTIC INSPECTOR - HEALTH DATE REJECTED COATS ll PUBLIC WORKS - SEWER / WATER PNNECITONS _ DRIVEWAYPERMIT 4 e,DATE APPROVED DATE REJECTED CONSENTS RECEIVEDBY BUILDING INSPECTOR DATE a Stream 36-0 O's c'.0 8 6136- +SQ Appficaut aft—a — bu -e- Request J9 -/of, fla .0 jr, 41GAIAl DC"V-'IIIWt, UV, -t ENRON Pk=ebeaGVMOMUalter mwmaFymwappucm-u----Y--Pp---o- DENED fiwthe fbMYMngZAnhW8VkVV Zoe g -7f Zoning Bylaw Review Form Town Of North Andover Building Department ft=. 27 Charles SL North Andover, MAL 01845 Phone 9794M9455 Fax 978t88-85.1,2 Stream 36-0 O's c'.0 8 6136- +SQ Appficaut aft—a — bu -e- Request J9 -/of, fla .0 jr, 41GAIAl DC"V-'IIIWt, UV, -t ENRON Pk=ebeaGVMOMUalter mwmaFymwappucm-u----Y--Pp---o- DENED fiwthe fbMYMngZAnhW8VkVV Zoe g -7f I ft=. Notes Hein Notes A LOMIM F__ I Lot area hmdnckxd I Fruntageumfficlod 2 tat AIU8 . 2 Frontage COWHM 3 Lot Area COMP9es It r- -5. 3 Pne)dOV fturdage, 4 InsuMderdhftIIWft. 4 1 kodffderd lRfOMU&M B U90 - 5- Noacomouvwe"r Frordage I IAOowed G Condquom SuMM Area 2 1 Not Allowed I ftwufficieMAma 3 Use Pree)dsthV 2 Compfies -le 5 4 Special PWO Roqtdred 14 r- s 3 Presidsdna CBA 5 houfftleidbftsfafts 4 Insufficiad hdbmmbOn C Sodom H BOOM Hew I AD sedmcks cwWly I Height E=eeds Ma&mun 2 1 Frovd kmdfidmd 2 K 's 3 Left We b]SUMCkXd 3 Rewdshng Heigid 4 fWd Side hOuffident 4 hisuffiderd IMomrsbat 5 Rear InsdOciod I sun&* Coverage 6 1 Premdsfing SoUNIMM C&j bacm I Coverage wmeeft nummum 7 1 InsuffiscieW hOWIVISM, 2 Coverage CompRes lie -5 D VlaftrAwd 3 Coverage PreeWSMV I Not in Watershed 4-5 4 hrsnM ier I hdbnnadon 2 In watershed i sign jV 14 3 Lot prior to 1024094 1 Sign not afibwed 4 Zone to be Ddumdri8d 2 1 Sip CoMpOes 6 ft=dUckwd trrtamation 3 1 hMM , - InftrMation E Hiumic District K Padft I In Dabld review amuffed I More Padft 2 1 Not In district 4-r- 5 2 Paddna Comples 13 1 bmffvdeM kdbmwaffim 3 h=dficierd Uddnnodw 4 Pte-eDdstke Padft for an above 7tieaUoYetcmewa40whed 11 6 cloxhisleaedmeePbMad, I WAM*b& and or dWbebawan I . ii trI gwsWkWnordW such H hydw -1 -sKwIO piorldedefiMseswwesbfieataeraemasia Ban arH subOOIJUSM i''OkOWN Iiandem 'jUW'M=RrAewMft ZftdbLG 'hmftmd*,,l by -6 ',1.' No - am H *Wow , fIm.YcuawAUeanewpemA appYcatim fvmad h5gw emPmomYg PMOM .3--/s -,9 6"M9 DeIMMIOd OMCW S~ Aopficafim P=6ved AWPMO" DeMod Pian Review Narrative The WWWO sanative is provided to fMw the APPn for GHNu�L for the UCAnoN for ft p gpefly on the reverse sw SECTION 9 NON -CONFORMING USES 9.1, Non -Conforming Uses Any non -conforming building, structure, or use as defined herein, which lawfiilly existed at the time of passage of the applicable provision of this or any prior by Law or any amendment thereto may be continued subject to the provisions of this Bylaw. Any lawfully non -conforming building or structure and any lawfully non -conforming use of building or land may be continued in the same kind and manner and to the same extent as at the time it became lawfully non -conforming, but such building or use shall not at any time be changed, extended or enlarged except for a purpose permitted in the zoning district in which such building or use is situated, or except as may be permitted by a Special Permit or otherwise by the North Andover Board of Appeals. Pre-existing non -conforming structures or uses, however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing non- conforming use to the neighborhood. When a pre-existing structure has been made non -conforming due to changes in the lot size required by this bylaw, such structure may be extended or altered based on a finding by the Zoning Enforcement Officer that such structure after the change meets all current zoning requirements except for lot size. (1995/43) 9.2 Alteration or Extension A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: 1. Such change shall be approved by a Special Permit or otherwise by the Board of Appeals. 2. Such change shall be permitted only upon the same lot occupied by the non -conforming use on the date that it became non -conforming. 3. Any increase in volume, area, or extent of the non- conforming use shall not exceed an aggregate of more than twenty five percent (25%) of the original use. 4. No change shall be permitted which tends to lengthen the economic life of the non -conforming longer than a period reasonable for the amortization of the initial investment. 9.3 Pre -Existing Non -conforming Single and Two Family Residential Structures and Uses in the Residential 1, Residential 2, Residential 3, Residential 4 and Residential 6 Districts: a. Pre-existing Non -conforming Single and Two Family Structures: Pre-existing non- conforming single and two family residential structures in the Rl, R2, R3, R4 and R6 Districts, may be changed, extended or altered, provided that there is a finding by the Zoning Enforcement Officer (Building Commissioner) that such change, extension, or alteration shall not render the structure more non -conforming than the existing structure. Upon such determination, a building permit may be issued where applicable. The following circumstances shall be deemed not to increase the nonconforming nature of said structure: 1. Alteration of a structure which complies with all current yard setbacks, building coverage, and building height requirements but is located on a lot with insufficient area, where the structure after alteration will comply with all of current Bylaw requirements except for lot area. 2. Alteration to a structure which complies will all current yard setbacks, building coverage, and building height requirements but is located on a lot with insufficient frontage, where the structure after alteration will comply with all of current Bylaw requirements except for frontage. 3. Alteration to a structure which encroaches upon one or more required yard setbacks, where the structure after alteration will comply with all current bylaw requirements except for 104 yard setbacks (the provisions of this clause shall apply regardless of whether the lot complies with current area and frontage requirements). 4. Alteration of a structure which encroaches upon one or more required yard setbacks, where the altered part of the structure will comply with all current yard setbacks, or the alteration is to the side or face of the structure which encroaches upon a required yard setback, and the alteration does not further encroach upon the required yard setback. In either case, the altered structure must comply with current building coverage and building height requirements (the provisions of this clause shall apply regardless of whether the lot complies with current area and frontage requirements). 5. Alteration to a nonconforming structure which will not increase the footprint of the existing structure provided that existing height restrictions shall not be exceeded. In the event that the Zoning Enforcement Officer (Building Commissioner) determines that the nonconforming nature of such structure would be increased by the proposed extension, alteration, or change, the Zoning Board of Appeals may, by special permit, allow such extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. b. Pre-existing Nonconforming Single and Two Family Structures: No portion of this Section 9.3, Pre -Existing Non -Conforming Single and Two Family Residential Structures and Uses in the Residential 1, Residential 2, Residential 3, Residential 4 and Residential 6 Zoning Districts shall be construed to allow for any uses other than those expressly allowed as defined in each above listed zoning district of the Zoning Bylaw. 9.4 Building After Catastrophe Any non -conforming building or structure destroyed or damaged by fire, flood, lightning, earthquake or wind to the extent of sixty-five percent (65%) or more of its reproduction cost at the time of such damage shall not be rebuilt, repaired, reconstructed nor altered except for a purpose permitted in that zoning district in which such building is located, or except as may be permitted by a Special Permit or otherwise by the Board of Appeals acting under Massachusetts General Laws Chapter 40A. 9.5 Abandonment If any lawfully non -conforming building or use of a building or land be at any time discontinued for a period of two years or more, or if such use or building be changed to one conforming with the North Andover Zoning Bylaw in the district in which it is located, it shall thereafter continue to conform; or take any other action relative thereto 105 s. .a M � / I /� /7 tx - 1 T J `=6 r�0 00 a '� D r s 'PO I y rn O 0 lPOD a � a rn 11 ys 0 SEEN'PLAT NO.94 N� -S-Et PLAT NO. 102 ,. O0 r \ \ 1 y +, s• \ � c 9�- r J rl ea 1 \,w °4 It m M 9Q t\ Jc t 14ORTH 1 3'�' •.. ; ., 0� {0- 9 40 V SACNU t - NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER, MASSACHUSETTS 01845 Regular Meeting Senior Center, 120R Main Street, North Andover, MA July 13, 1999 - 7:30PM FAX (978) 688-9542 Participating Board PUBLIC HEARING: Request District Members Gerard E. & Delores Welch Variance & R-4 residence: 350 Osgood St. Party Aggrieved for premises at: Lot A, Osgood St. Robert & Theresa Losco Variance R-3 32 Rosedale Ave. John R. & Margaret V. Sutton Variance R-4 48 Waverly Rd. Special Permit Ray Finocchiaro Variance I -S residence: 11 Riverview St. for premises at: 35 N. Main St. Merrimack College Variance R-3 315 Turnpike St. Note: Matters may be called out of order and not as they appear on the agenda. *Deliberations and vote on any issue taken under advisement may take place later in the meeting after the conclusion of the hearing and other matters listed on the agenda. *All interested parties are invited to remain to the end of the meeting. MI/ZBAmtg BO. -\RD OF APPEALS 688-9541 BUILDINGS 658-9545 CONSERVATION 688-9530 HEALTH 685-9540 PLANNING; 683-953> WILLIAM J. SCOTT Director (978)688-9531 Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 27 Charles Street North Andover, Massachusetts Ol 845 10 /�\< o z \SACHUS�� Fax(978)688-9542 0 FAX Transmission FAX Number: %7i� �� 5�- 6; 74 FROM: Town of North Andover Zoning Board of Appeals FAX: 978-688-9.542 PHONE: 978-688-9541 DATE: SUBJECT:/4 - Total number of pages: z REMARKS: Attached is a fax containing your legal notice. As you are aware, the attached legal notice has to be placed with the legal notice department of the Lawrence Eagle -Tribune and it is your responsibility to do so as -soon -as -possible in order to meet the required deadline. Failure to place the legal notice in the paper within the required deadline will mean that you will not be able to be placed on the ZBA agenda for the upcoming meeting. The phone number for the Eagle Tribune is: 978-685-1000, ext. #412, should you require further assistance. Ml/fax BOARD OF APPEALS 688-9541 BUILDING 683-9545 CONSERVATION 683-9530 HEALTH 683-9540 PLA'NNNG 683-9535 9 NORTH ANDOVER OFFTCE OF THE ZONL iG BOARD OF APPS ALS 27 CHARLES STREET NORTH ANDOVER- MASSA(.T-7t TSTT7q n7 U: F.4 -N. (978) 688-9541 Date: / TO: Town of North Andover Zoning Board of Appeals 27 Charles Street North Andover, MA 01845 phone # 978-688-9541 fax # 978-688-9542 Please be advised that I have agreed to waive the time constraints for the Zoning Board of Appeals to make a decision regarding the granting of a VARIANCE.for property located at: STREET: 5�0 Cis A TOWN: ✓ va✓�4�� NAME OF PETITIONER: "Do LGve,�z 1 �=4_-Le Signed: petitioner (or petitioner's representative) 10.4 Variance and Appeals aa�u go�ul.tc�aaJ The Zoning Board of Appeals shall have power upon appeal to grant variances. from the terms of this Zoning Bylaw where 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 this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw. MI/variance 7TH' ' �t�A 90. -.PD OF .-1P°E A -LS 633-9541 K—iLDINGS 6SS-9=-15 CONSERVA GN S2S-9�4ALTH 633-9540 PLA1\Ft\ NG 6SS-9 .. /L , 600 I'l; (IL t,d M-E-M-O J� TO: Ray Vivenzio �I FROM: Mary Leary-Ippolito DATE: 7129199 SUBJECT: 350 Osgood St. (lot A). Ray, At last month's meeting, you asked me to check to see what I had on 350 Osgood Street, Lot A. After checking the application log, I found a request for a variance in 1990, for 350 Osgood Street for George H. Schruender, the request for a variance was denied. I've enclosed the decision for perusal. enclosure MI/LotA t°� quaRECC1yED '�"•` 4 -2P2 Y -J. M '� �.°w!}�I� �. L ���' CLQ 1� �"` 0.'k�4 '` i�..+ T.^6 {,�,�f., 4 4 • ��1^. ;� KORTH 'ENDO n �( ' a 4 cl i� Y e . �"t�}r"�rr' ►s► ACHl1 ��, 1tL1 1 17 tt TOWY OF NORTH ANDOVER, . `MASSACHUSETTS -nn" x x� " BOARD OF APPEALS NOTICE OF DECISION A George H. Schruender .73 Chickering Road Date September 13, 1990 = North Andover, MA 01845 Petition No...... 121-90................. Petition of .....George H. Schruender Premises affected ........ 350.Osgood .Street.. . UovL' Date of Hearing.. ,September 11, 1990 Referring to. the above petition for a variation from the requirements ofd .Section 7.,.... . Paragraph. 1. And. Table .2 , pf, the:.ZQning, Bylaw. , so as to permit .relief. of; .under.s.ized.lot. .1,91.sq.. ft, .shQzt..Qf .the. r.egnired.sq. ft. After a public hearing given on the above date, the Board of Appeals voted to .. DFM ... the d .l �'r.�. :1►i►.'., 1►�. .r, i. i• :., Signed Frank Se io, Jr., 'Chairman William Sullivan, Vice-chairman •••••••Raymon•d-Vivenzi'o............... .......... Anna- Q'Connor.......•......... . - _Louis..-Rissin.................... ................................ Board of Appeals n^1 $,1011 be F� TIi�CI n j� U , , Vi 12 I�Otice Cinown e Gf In the Office of. the T Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS RECEIVE' -1 DANIFL LOH. 10`�i"I ikL_F tit R See 17 Q 17 A '90 *********************** * George H. Schruender * Petition: #121-90 73 Chickering Rd. DECISION N. Andover, MA 01845 ** * The Board of Appeals held a public hearing on Tuesday evening, September 11, 1990 on the application of George H. Schruender requesting a variation of Section 7, Paragraph 1 and Table 2 of the Zoning Bylaw so as to permit relief for undersized lot by 191 sq. ft short of the required 12,500 sq. ft on the premises located at 350 Osgood St. The following members were present and voting: Frank Seiro, Jr., Chairman, William Sullivan, Vice-chairman, Raymond Vivenzio, Anna O'Connor and Louis Rissin. The hearing was advertised,in the North Andover Citizen on July 25, 1990 and August 1, 1990 and all abutters were notified by regular mail. Upon a motion made by Mr. Rissin to grant this variance, and seconded by Mr. Vivenzio, the Board voted, unanimously, to DENY this variance as requested. The Board finds that the petitioner has shown no hardship exists and therefore has not satisfied the provisions of Section 10, Paragraph 10.4 of the Zoning By- law and the granting of this variance would derogate from the intent and purpose of the Zoning Bylaw and adversely affect the neighborhood. Dated this 13th day of September, 1990 BOARD OF APPEALS Prank S rio, Jr. Chairman /awt LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover, Massachusetts 01810-3706 (978) 475-4488 Telecopier: (978) 475-6703/ MARK B. JOHNSON (MA, NH, DC) LINDA A. O'CONNELL (MA, NH, RI) DONALD F. BORENSTEIN (MA, ME) May 5, 1999 Town of North Andover Zoning Board of Appeals 146 Main Street North Andover, MA 01845 Paralegals KATHRYN M. MORIN JEAN A. SHEEHAN LIANNE CRISTALDI Re: Application for Variance and review of Decision of Building Inspector Applicants- Dolores Welch & Gerard E. Welch Property- Lot A Osgood Street Dear Sir/Madam: Enclosed for filing, please find the following: 1. Original (stamped received by the Town Clerk) and ten copies of Application with attached Addendum and Building Commissioner's letter; 2. Ten copies of site plan and one mylar; 3. Check for filing fee in the amount of $25.00; 4. Certified abutters list obtained this day from the Assessor's Office. It is requested that this Application be placed on the agenda of the Board's next available meeting. Thank you in advance for your cooperation. If you should have any questions or comments, please do not hesitate to contact me. DFB*kag Enclosures PC: Gerard E. Welch Dolores Welch F:\NEW-DOCS\WELCH\MAFFEI\Townitr.doc \\JOHNSON\SYS\NEW-DOCS\W ELC H\MAFFEI\Townitr. doc Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Berenstein ce-d 6` � 2c 4 - 0-C M`Ak(� Received by Town Clerk: r"] {! Z w' joya Q- RAD "'oi 9e TOWN, OUJiA N0RTN AH00V F. M 5 4 ii f ti TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant Gerard E. Welch Address 350 Osgood Street Dolores Welch Tel. No. (978) 475-4488* 1. Application is hereby made: *s 7.1.1& 7.2 a) For a variance from the requirements of Section ,4.1 Paragraph and Table 2 of the Zoning Bylaws. b) For a special Permit under Section Paragraph of the Zoning Bylaws. ** c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2. a) Premises affected are land and building(s) numbered Lot A, Osgood Street. b) Premises affected are property with frontage on the North (X) South ( ) East ( )"West ( ) side of Osgood Street. Street, and known as No. Lot A Osgood Street. c) Premises affected are in Zoning District R-4 , and the premises affected have an area of 13,000*** square feet and frontage of 100 feet. * Applicant's attorney -Mark B. Johnson, 12 Chestnut St., Andover, MA 01810 Tel: (978) 475-4488 ** Applicant appeals the decision of the Building Inspector dated April 7, 1999, attached hereto, alternatively, applicant requests the variance stated. *** including 1,276 s.f. within the area of "Princeton Street", an unconstructed private way, shown on a plan surveyed in 1909 and recorded on February 13, 1915 as Plan X6195 at the Lawrence Registry of Deeds. Kev. Uv.US.`Jb 5 of 8 3. Ownership: a) Name and address of owner (if joint ownership, give all name s) : Dolores Welch, 350 Osgood St., North Andover, MA 01845 Date of Purchase 10/27/95 Previous OwnerRalph & Vicki LaChance b) 1. If applicant is not owner, check his/her interest in the premises: Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4. Size of proposed building: 341 front; 26' feet deep; Height 2 stories; feet. a) Approximate date of erection: ASAP b) Occupancy or use of each floor: Residence, single family c) Type of construction: wood frame 5. Has there been a previous appeal,"under zoning, on these premises? no If so, when? 6. Description of relief sought on this petition see attached Addendum 7. Deed recorded in the Registry of Deeds in Book5076 page 252 Land Court Certificate No. Book Page The principal points upon which I base my application are as follows: (must be stated in detail) See attached Addendum I agree o incident 1 e KEr. ob.u.s.J* I Signa f e, advertising in newspaper, and 021,Petitioner(s) 6 of 8 DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: R-4 Required Setback Existing Setback Relief or Area or Area Requested - Lot Dimension 13,000 sf 766 sf Area 12,500 sf (11,724 sf, excluding area within unconstructed private way( Street Frontage 100 ft 100 N/A Front Setback a 30 ft. 30 ft. N/A Side Setback(s) 15 ft. 15 ft. N/A Rear Setback 30 ft. 100 + ft. N/A Special Permit Request: N/A xev Ju.U.5.jn 7 of 8 ADDENDUM TO APPLICATION FOR RELIEF Town of North Andover, Massachusetts Board of Appeals Applicant: Gerard E. Welch and Dolores Welch Address: 350 Osgood Street 6. The Applicant requests that the Board reverse the decision of the Building Commissioner set forth in his letter of April 7, 1999, and find that Lot A complies with the applicable minimum lot area requirement. Alternatively, the Applicant requests a Variance from Section 7. 1, Lot Area and Table 2, Summary of Dimensional Requirements, as to the minimum lot area necessary for the construction of a single family home. Alternatively, the Applicant requests a Variance from so much of Sections 7.1.1, Contiguous Buildable Area, and 7.2, Street Frontage, as the Board finds prohibits the inclusion of the portion of Lot A within the boundaries of Princeton Street in the calculation of the property's lot area. The Applicant believes that the property complies with current dimensional requirements if the area within Princeton Street is included in the calculation of minimum lot area. The Principal points on which this application is based are as follows: Appeal of Building Commissioner's Decision The Applicant believes the property is in compliance with the North Andover Zoning By Law as published in 1998. To the extent the 1995 and 1996 amendments sited by the Building Commissioner are in effect, the Applicant believes the property is in compliance with Section 7.1.1, contiguous lot area, and that the 1996 amendment does not prevent the inclusion of the area within Princeton Street in the calculation of minimum lot area under Section 7.1. Thus, it is the Applicant's position that the Property satisfies the current minimum lot area requirement. Further, notations on a Form A plan endorsed by the Planning Board, concerning the property, are not binding on either the Building Commissioner or the Zoning Board of Appeals and do not effect the zoning requirements applicable to the property. II. Variance In the alternative, the Applicant seeks a variance from Sections 7.1, 7.1.1, and 7.2, to the extent necessary to construct one single family home on the property. Without such a Variance, the Applicant would suffer a hardship, the property would be unbuildable. This hardship is due to the unique circumstances of the property affecting the shape and topography of the lot, a small portion of the property lies within Princeton Street. The requested Variance relief may be granted without substantial detriment to the public good and would not nullify or substantially derogate from the intent or purpose of the North Andover Zoning By -Law. Specifically, the property has more than adequate contiguous buildable area and would satisfy minimum lot area with the inclusion of the area within Princeton Street. Without inclusion of the area within Princeton Street, the property is only 776 s.f short of the 12,500 s.f. requirement. Further, the requested variance is consistent with and equivalent to the lot area of many homes neighboring the property. F:\NEW-DOCS\WELCH\OSGOOD\Addendum.doc WiI.LIAM J. SCOTT Director (978)688-9531 Town of North Andover t NORTH , .o e� tioL OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES p t - s a i r 27 Charles Street 09 North Andover, Massachusetts 01845 sACNusO'-s�y April 7, 1999 Fax(978)688-9542 Attorney Donald F. Borenstein Law Office of Mark B. Johnson 12 Chestnut Street Andover Ma 01810-3706 Re: Gerard Welch - Lot A, Osgood St. Dear Attorney Borenstein: You have inquired if the portion of Lot "A" located in Princeton Street maybe included in the calculation of minimum lot area compliance in the Residence - 4 (R-4) District. I am of the opinion that Sections 7.1.1.1 and 7.2 of the Zoning By -Law prevent this from happening. Additionally, the "ANR" site plan endorsed by the Town Planner clearly specifies that the portion of Lot "A" located in Princeton Street as a non -buildable lot (area). Site plan #12836 recorded June 19, 1996 in the N.E.R.D. also designates that the land in question as a non -buildable area. It is my opinion as Building CommissionerfZoning Officer that I do not have the authority to change the designation on the recorded plan nor any of Section 7.1.1.1. or 7.2 of the Zoning By-law. As such, I recommend that your client petition the Zoning Board of Appeals (ZBA) for either or: 1. A finding if the portion of Lot "A" located in Princeton Street may be included in the minimum lot area compliance in the (R-4) District. 2. A variance of minimum lot area in the (R-4) District in order to permit the construction of a single family home. Also, in your correspondence of February 1, 1999 you referred to "recent amendments to Sections. 7.1.1.1. and 7.2". Research of the quoted Sections indicated that reproduction of the current version of the 1998 Zoning By -Law failed to incorporate changes made in 1995 and 1996 by the annual Town Meeting (A.T.M.). To the referred Sections. As such, I am of the opinion that the changes approved by the (A.T.M.) indicated their intent not to allow the addition of private or public roadways abutting "Lots" to be included in the calculation of minimum lot area. I have enclosed copies of the 1995 and 1996 amendments, certified by the Town Clerk, for your review. Lastly, 1 would once again like to thank you for your kind approach while discussing this matter. If you have any questions please contact me at 978-688-9545. DRN/jm Very truly yours, D. Robert Nicetta, Building Commissioner BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 LIST OF PARTIES OF INTEREST PAGE .I- OF c" BJECT PROPERTY MAP PARCEL NAME ADDRESS loreSaPW' 05C,000 STREET ABUTTERS MAP PARCEL NAME ADDRESS Old h i i n i -T- N' N1 A 01%u5 33H ObCCx-20 S-nZCET SOI,L,�'i 2 1 Gd' C'G a Q • { Q . A< -\ D Do -R , f\-A A D 19145 � Ci Pr c n Ce.-�-p►� 5�.�� �� 3a �1 +ri 1-�+� N. �.r�cz , M Pc o 1 ey-45 el t L d CL. F. B5 36 cQ R; chGtx p �tilelrl (0 DsGcSTW.E ;L BQ� o�.e 3�rnEf�, C • �� �- , Q �.L G 06 r'2, F. P1iv M A O 1 �`cl) q5 a �os�-� 33 q o� c�oo� -sTR>;--r 0 19 95 M 9RUCA-TO MlLC)QEDH.j H5 OsGaop S`nR,E'E I rD.,�� `1 . � - ,� DDU EA, MA o 1,6\45 q� I Morse DAv o J7.5 5 M0. ion AvevjoP, HORb ) r" &Q kohl Lt /1.�lj cc v E P, , M k 0 ►� t i� 95 IR RHODE'S_ Ppu�_L L • Coy H & 't)000s I KyE jNt v>✓ �A �a�51 CERTIFIED BY: DATE ESSOR'S FIC I REV 06.-031.96 ® I LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover, Massachusetts 01810-3706 (978) 475-4488 Telecopier: (978) 475-6703 MARK B. JOHNSON (MA, NH, DC) LINDA A. O'CONNELL (MA, NH, RI) DONALD F. BORENSTEIN (MA, ME) EILEEN O'CONNOR BERNAL (MA) July 13, 1999 Board of Appeals Town of North Andover Municipal Building 120 Main Street North Andover, MA 08145 Re: Lot A, Osgood Street, North Andover, MA Applicant: Dolores and Gerard Welch Dear Members of the Board of Appeals: Paralegals KATHRYN M. MORIN JEAN A. SHEEHAN LIANNE CRISTALDI I represent Dolores and Gerard Welch. The Building Commissioner has denied their request for the issuance of a building permit for Ms. Welch's property on Osgood Street. That denial was based on the Commissioner's opinion that a small portion of her property contained within the boundaries of an unconstructed private way can not be included in her calculation of the property's compliance with the minimum lot area requirement. A copy of the Building Inspector's letter is attached to Ms. Welch's Application previously filed with the Board. As suggested in the Building Inspector's letter, Ms. Welch now seeks a finding by this Board that the area within the F:\NEW-DOCS\WELCH\OSGOOD\zba-itr.doc unconstructed private way may be included in her calculation of the property's area. Alternatively, she seeks a variance from that portion of the Town's Zoning ByLaw which makes her lot non -conforming as to the minimum lot area requirement. Proposed Project Ms. Welch proposes to construct a single family home as shown on the Plan submitted with her Application. As shown on that Plan, Lot A complies with all other dimensional requirements of the R-4 zoning district in which it is located. In addition, Lot A appears to comply with the minimum lot area requirement. Lot A has an area of 13,000 square feet. The minimum lot area requirement for the R-4 district is 12,500 square feet. It should be noted that 1,276 square feet of the area of Lot A lies within "Princeton Street". "Princeton Street" is an unconstructed private way. It was created by being shown on a Plan surveyed in 1909 and recorded on February 13, 1915 as Plan #195 at the Lawrence Registry of Deeds. "Princeton Street" has never been constructed or accepted by the Town and, it appears that it has never been used as a street, either privately or publicly. Excluding the area within "Princeton Street", Ms. Welch's lot misses the minimum lot area requirement by 776 square feet or, approximately 6 % of the required area. Including the area within "Princeton Street", Lot A surpasses the area requirement by 500 square feet. F:\NEW-DOCS\WELCH\OSGOOD\zba-Itr.doc The Building Commissioner's Decision and "Princeton Street" The Building Commissioner based his decision denying the issuance of a building permit on two amendments to Sections 7.1.1.1 and 7.2 of the Zoning Code. These amendments were apparently adopted at the 1995 and 1996 Annual Town Meetings. Copies of those amendments are attached hereto. It should be noted that neither of these amendments was incorporated in the Town's 1998 publication of the Zoning ByLaw and, Ms. Welch was only made aware of the amendments at the time of the Building Commissioner's denial of her building permit request. It is Ms. Welch's position that the language of the 1995 and 1996 amendments do not necessarily support the Building Commissioner's decision. Thus, it is requested that the Board review this language and determine whether it prevents the inclusion of the area within "Princeton Street" in the calculation of minimum lot area. In conducting its review, the Board should note that "Princeton Street" is not a "street" as that term is defined in the Town Zoning ByLaw. This issue is addressed at length in my letter to the Building Inspector attached hereto. Further, the 1996 amendment is flawed, as it refers to the "second paragraph of Section 7.2", however, Section 7.2 has only one paragraph. Also, the Building Commissioner's decision was partly based on the fact that the Planning Board designated "Princeton Street" as "non buildable area" on their endorsement of an "Approval Not Required" plan of Lot A. The Planning Board's F:\NEW-DOCS\WELCH\OSGOOD\zba-itr.doc endorsement is not binding on either the Building Commissioner or this Board concerning zoning issues. In fact, the Planning Board has no authority over zoning issues and, this Board is the municipal authority specifically charged with interpreting the Zoning ByLaw. See the Subdivision Control Law, G.L. c. 41, ss. 81K-81GG and the Zoning Act, G.L. c. 40A. Requested Variance As confirmed by the Building Commissioner's decision, Ms. Welch's property complies with all current zoning requirements, excepting only minimum lot area. As to that requirement, Lot A is short by only 776 square feet. Thus, Ms. Welch's property has approximately 94% of the area currently required by the ByLaw. Further, if the area within Princeton Street was included in the calculation of the property's area, Lot A would exceed the minimum requirement by 500 square feet. Under these circumstances, where only a minor deviation is sought from the applicable requirement, the Board should find that the issuance of a variance will not be "substantially detrimental" to the public good and would not "nullify or substantially derogate" from the intent or purpose of the Zoning ByLaw. Where only an inconsequential variance is sought from a dimensional requirement, a variance may be issued even if only a minor hardship can be shown. See Massachusetts Zoning Manual, s. 9.08, M.C.L.E. (1997 Healy & Mack), Josephs v. Bd. of Appeals of Brookline, 285 N.E.2d at 438 (1972), Wolfman v. Bd. of Appeals of Brookline, 444 N.E.2d 942 (1983), F:\NEW-DOCS\WELCH\OSGOOD\zba-itr.doc and DiGiovani v. Bd. of Appeals of Rockport, 474 N.E.2d 198 (1984). In this case, Ms. Welch would suffer a significant financial hardship because. Without the requested variance, Lot A could not be built on. Accordingly, the issuance of a variance is justified in this action. Conclusion For the reasons stated above, and those contained in Ms. Welch's Application and the other materials filed with the Board, the Building Commissioner's decision should be reversed. Alternatively, a variance from the minimum lot area requirement should be issued allowing the construction of one single family home on Lot A. DFB:klb PC: Dolores and Gerard Welch F:\NEW-DOCS\WELCH\OSGOOD\zba-itr.doe Very truly yours, LAW OFFICE OF MARK B. JOHNSON -se Donald F. Borenstein F:\NEW-DOCS\WELCH\OSGOOD\zba-itr.doc TOWN OF NORTH -ANDOVER OFFICE OF TOWN CLERK 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Joyce A. Bradshaw ,�� .•`.r °o� Town Clerk = 9 Telephone (978) 688-9501 t . FAX (978) 688-9556 �9SSACHUS t� This is to certify that the following vote was taken at the adjourned Annual Town Meeting for the town of North Andover held May 7, 1996: UNANIMOUSLY VOTED that the Town amend Section 7.1.1 Contiguous Buildable Area and Section 7.2 StreetFrontage of the North Andover Zoning By -Law by: 1. deleting the phrase "exclusive of area in a street or recorded way open to public use" in the first sentence of Section 7.1.1, and substituting therefor the phrase "exclusive of any area within a street or within a private way or a recorded right-of-way for travel by motor vehicles"; and 2. deleting the phrase "within the limits of a street upon which such lot abuts" in the first sentence of the second paragraph of Section 7.2, and substituting the phrase "within the limits of any street, or any private way or recorded right-of-way for travel by motor vehicles, upon which such lot abuts". A. MS AmemJme✓1 f TOWN OF NORTH ANDOVER OFFICE OF TOWN CLERK 120 MAIN STREET NORTH ANDOVER. MASSACHUSETTS 01845 Joyce A. Bradshaw Town Clerk ° — a Telephone (978) 688-9501 } FAX (978) 688-9556 ARTICLE 41. AMEND ZONING BYLAW - SECTION 7 - DIMENSIONAL REQUIREMENTS. THIS IS TO CERTIFY THE FOLLOWING VOTE AT THE ANNUAL TOWN MEETING FOR THE TOWN OF NORTH ANDOVER HELD MAY 23, 1995 AT THE NORTH ANDOVER MIDDLE SCHOOL: r Article 41. AMEND ZONING BYLAW- SECTION 7 -DIMENSIONAL REQUIREMENTS. To see if the Town will vote to amend Section 7 Dimensional Requirements as set forth below to correct typographical errors, clarify and make consistent the existing language; to include the Town wetland bylaw in the definition of contiguous buildable area; to redefine lot width from fifty (50) feet to one hundred (100) feet; to redefine the calculation of lot area, contiguous buildable area, and street frontage; to list the criteria for receiving a special permit for access other than over the street frontage; and to allow frontage exception lots by special permit only: SECTION 7 DIMENSIONAL REQUIREMENTS 7.1 Lot Area - Minimum lot areas for such uses in each district shall be as set forth in Table 2, Summary of Dimensional Requirements, which is hereby made part of this Bylaw. 7.1.1 Contiguous Buildable Area (CBA) - As of April 28, 1986, with respect to, the area of any new lot created, exclusive of area in a street or recorded way open to public use, shall contain at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area. 7.1.2 Lot Width - For any lot created after May 1, 1995, the minimum width of the lot shall be a distance of one hundred (100) feet between the street frontage and the front building line The width shall be measured in a line parallel to the street. This requirement shall apply in all zones except Residence 4 (R4); for zone R4 the distance shall be eighty (80) feet. 7.1.3 Restrictions - 1. When a fifty (50) foot straight line is drawn to divide a lot in two, and the perimeter of the smaller piece is greater than two hundred (200) feet, then such smaller piece shall not be included in the calculations when determining: lot area; contiguous buildable area (CBA); or street frontage as required by the Summary of Dimensional Requirements (Table 2) of this bylaw. This restriction applies only to lots created after May 1, 1995. 2. Any lot created after May 1, 1995, shall have a lot depth of thirty (30) feet or more for at least eighty (80) percent of the minimum length of its frontage as required by the Summary of Dimensional Requirements (Table 2) of this bylaw. The lot depth shall be measured as a line drawn perpendicular to the street. 3. No lot, upon which is then located any buildings or with respect to which a permit has been issued and is then outstanding for the erection of any building, shall be subdivided or reduced in area in any manner unless said lot shall thereafter fulfill the lot area, street frontage and yard space requirements of this Bylaw except as may be permitted otherwise by the provisions of a variance granted by the Board of Appeals. If land be subdivided, conveyed, devised or otherwise transferred in violation hereof, no building permit or other permit shall be issued with reference to any of the land so transferred or to the lot(s) retained until all of such land and lots meet the requirements of this Zoning Bylaw. Any land taken by eminent domain or conveyed for a public purpose for which the land could have been taken shall not be deemed to be transferred in violation of the provisions hereof. 7.2 Street Frontage - Minimum street frontage shall be as set forth in Summary of Dimensional Requirements (Table 2) and the lot line meeting these requirements shall constitute the "street frontage" for the lot. In no case shall actual street frontage at the street line be less than seventy five (75) feet; except as allowed by Section 7.2.2. Corner lots shall be required to have the required frontage only on one street. In determining the fulfillment of the minimum area and minimum street frontage of a lot required in any zoning district, there shall not be included any land within the limits of a street upon which such lot abuts, even if the fee to such street is in the owner of the lot; except that if a corner lot at its street corner is bounded in part by a segment of curved line not more than seventy five (75) feet in length connecting other lines bounding such lot which if extended would intersect, the area and frontage required in such lot shall be computed as if such potentially intersecting lines were so extended; but if a curved line more than seventy five (75) feet in length is the whole of any one boundary line of a lot, the minimum area and minimum frontage. required shall be determined entirely within the lines bounding such lot, including such curved line. 7.2.1. Access across street frontage - Access to each lot, except for corner lots, must be provided across the street frontage. If access to a lot is not across the street frontage as of the date of the adoption of this Section 7.2.1, the lot will not be considered non -conforming as to use or as to an existing structure on that lot. (1994/39) Exceptions to this requirement may be granted by the issuance of a Special Permit from the Planning Board. A street frontage access Special permit may be granted for a lot in any residential district provided that: a) The specific site is an appropriate location for access to the lot given the current and projected traffic on the roadway, and the site distance to adjacent driveways and roadways, and/or b) Special environmental conditions exist such as wetlands and/or steep slopes such that access across the street frontage would require wetland filling or extreme cutting and/or filling of slopes or would be otherwise detrimental to the environment, c) The access will not adversely affect the neighborhood; d) There will be no nuisance or serious hazard to vehicles or pedestrians; e) The access is in harmony with the general purpose and intent of this Bylaw. 7.2.2 Frontage exception - Exceptions for meeting the frontage and lot width requirements required by Sections 7.1.2 and 7.2 may be granted upon the approval of a Special Permit. The permit granting authority shall be the Planning Board. A street frontage and lot width exception Special Permit may be granted for a lot in any residential district provided that: a) The area of the lot exceeds by three (3) times the minimum lot area required for that district; b) The lot has a minimum continuous street frontage of not less that fifty (50) feet and a width of not less than (50) feet at any point between the street and the site of the dwelling; c) There is not more than one other such lot with frontage contiguous to it: and d) It is so located as not to block the possible future extension of a dead end street. e) The creation of the frontage exception lot will not adversely affect the neighborhood; f) The creation of the frontage exception lot is in harmony with the general purpose and intent of this Bylaw; f) No such lot as described above on which a dwelling is located, shall be hereafter reduced in area below the minimum area required in Section 7.1 (1985/16) 7.3 Yards (Setbacks) - Minimum front, side and rear setbacks shall be as set forth in Table 2, except for eaves and uncovered steps. Buildings on corner lots shall have the required front setback from both streets, except in Residence 4 (R4) District, where the setback from the side street shall be twenty (20) feet minimum. 7.4 Building Heights - Maximum heights of buildings and structures shall be as set forth in Table 2. The foregoing limitations of height in feet in the designated zoning districts shall not apply to: 1. Farm buildings on farms of not less than ten (10) acres. 2. Nor shall they apply to chimneys, ventilators, skylights, tanks, bulkheads, penthouses, processing towers, and other accessory structural features usually erected at a height greater than the main roofs of any buildings. 3. Nor to domes, bell towers, or spires of churches or other buildings, provided all features are in no way used for living purposes. 4. And further provided that no such structural feature of any non- manufacturing building shall exceed a height of sixty five (65) feet from the ground. 5. Nor of a manufacturing building a height of eighty five (85) feet from the ground. 7.5 Lot Coverage - Maximum lot coverage by buildings shall be as forth in Table 2. Lot coverage shall mean the percent of the lot covered by principal and accessory structures. 7.6 Floor Area Ratio - Maximum floor area ratio (FAR) shall be as set forth in Table 2. FAR is the ratio between the total amount of building floor area on all usable floors and the area of the lot on which it is located. 7.7 Dwelling Unit Density - Maximum dwelling unit density (dwelling units per acre) shall be as set forth in Table 2. 7.8 Exceptions - 1.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 of 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 oa 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. 2. 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 January9, 1957 and the Building Inspector shall permit the construction of one single-family dwelling on each such 10,000 square foot lot. 3. As described in Massachusetts General Laws Chapter 40A, no amendment to this Zoning Bylaw shall apply to land shown on an approved definitive subdivision plan as defined by the Subdivision Control Law, for the length of time described in Massachusetts General Laws Chapter 40A. 4. As described in Massachusetts General Laws Chapter 40A, no amendment to this Zoning Bylaw shall affect the use of land shown on an endorsed Approval Not Required Plan, as defined by the Subdivision Control Law, for the length of time described in Massachusetts General Laws Chapter 40A. VOTED TO APPROVE ARTICLE 41 AS AMENDED ABOVE WITH THE FOLLOWING VOTE: YES 239 NO 14 O,.Tzz0 f°. ..s LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover, Massachusetts 01810-3706 (978)475-4488 Telecopier: (978) 475-6703 MARK B. JOHNSON (MA, NH, DC) LINDA A. O'CONNELL (MA, NH, RI) DONALD F. BORENSTEIN (MA, ME) EILEEN O'CONNOR BERNAL (MA) February 1, 1999 Building Inspector Town of North Andover Municipal Building 120 Main Street North Andover, MA 08145 Re: Lot A, Osgood Street, North Andover, MA Applicant: Gerard Welch Dear Sir/Madam: Paralegals KATHRYN M. MORIN JEAN A. SHEEHAN LIANNE CRISTALDI I represent Gerard Welch. Mr. Welch seeks the issuance of a building permit for Lot A, as shown on a Plan of Land dated April 26, 1996, endorsed by the North Andover Planning Board "approval under the Subdivision Control Law not required". That Plan was recorded at the Lawrence Registry of Deeds as Plan #12836. Mr. Welch proposes to construct a single family home as shown on the Plan submitted with his Application. As shown on that Plan, Lot A complies with the dimensional requirements of the R-4 zoning district in which it is located including, minimum lot area. Lot A has an area of 13,000 square feet. The minimum lot area requirement for the R-4 district is 12,500 square feet. It should be noted that 1,276 square feet of the area of Lot A lies within "Princeton Street". Princeton Street is an unconstructed private way, shown on a Plan surveyed in 1909 and recorded on February 13, 1915 as Plan #195 at the Lawrence Registry of Deeds. It does not appear that Princeton Street was ever constructed or used, either privately or publicly. My client informs me that the Town has raised an issue as to whether Lot A meets the minimum lot area requirement, in light of recent amendments to Sections 7. 1.1 and 7.2 of the North Andover Zoning By -Law. Section 7. 1.1 states in part, Building Inspector Town of North Andover December 22, 1998 Page 2 The area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five (75) percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act. North Andover Zoning By -Law, Section 7.1.1, sic. This Section is not applicable to Lot A. Lot A does not appear to contain wetland resource areas. Further, even excluding the 1,276 square feet of the Lot within Princeton Street, Lot A still has contiguous area (11,724 square feet) in excess of 75% of the minimum requirement (9,375 square feet). Section 7.2 states in part, In determining the fulfillment of the minimum area and minimum street frontage of a lot required in any zoning district, there shall not be included any land within the limits of a street upon which such lot abuts, even if the fee to such street is in the owner of the lot; North Andover Zoning By -Law, Section 7.2, emphasis added. Section 2.67 defines "street" as follows, A public way or a private way open to travel by the general public, or a way shown on a Plan of a subdivision theretofore duly approved by the Planning Board. North Andover Zoning By -Law, Section 2.67, emphasis added. Princeton Street is not a "public way". It has never been laid out, accepted or used as a public way. Princeton Street is a private way but, it is not "open to travel by the general public". In fact, Princeton Street is not "open to travel" by anyone, as it has never been constructed or, apparently, used for travel at any time since it was surveyed over 90 years ago. Princeton Street is not shown on a Subdivision Plan "approved by the Planning Board." The Plan designating Princeton Street was recorded in 1915 and surveyed in 1909. That Plan was completed long before the existence of the Subdivision Control Law and, therefore, was not approved by the Planning Board. As described above, Princeton Street is not a "street" for the purposes of Section 7.2. Accordingly, Mr. Welch may use the area within Princeton Street to satisfy the minimum lot area requirement. This interpretation is consistent with Appellant Court decisions. See Shea v. Bd. Of Appeals of Lexington, 35 Mass.App.Ct. 519, 622 N.E.2d 1382 (1993), review denied, 416 Mass. Building Inspector Town of North Andover December 22, 1998 Page 3 1109, 630 N.E.2d 603 (1993) (Court held definition of "street" under Zoning By -Law did not include an unconstructed paper street, even where said paper street had been shown on a Plan endorsed "approval under the Subdivision Control Law not required.") "The Planning Board's approval may have legal significance under the Zoning By -Law's definition of a `street' if the way depicted on an approved plan has been constructed as approved ... but not where it has never been constructed at all." Id. at 523, 1385. Princeton Street has never been constructed or approved or endorsed by the Planning Board. Therefore, pursuant to the Court's holding in Shea, Princeton Street can not be considered a "street" as that term is defined in the North Andover By -Law. In Pardini v. Town of Seakonk, Misc. Case No. 116694 (Land Court, July 14, 1986), the Land Court addressed a set of facts very similar to Mr. Welch's situation. In Pardini,. the applicant sought to include up to the center line of an unconstructed private way in his calculation of a required set back distance. The Land Court held that where the paper street at issue was not a public way, had never been constructed even though it had been designated years earlier, and their was no evidence it would be used in the near future, the applicant could use its dimensions to satisfy zoning requirements. Id. at page 10. Based on the plain language of the North Andover Zoning By -Law and the holdings of the Appeals Court and the Land Court cited above, the area of Lot A within Princeton Street must be included in the calculation of minimum lot area compliance. Accordingly, Lot A meets the lot area requirement and a building permit must issue. If you should wish to discuss this matter, please feel free to contact me or to have Town Counsel contact me. Thank you for your time and consideration. Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Borenstein DFB:klb PC: Gerard Welch F:\NEW-DOCS\WELCH\OSGOOD\Insp-Itr.doc July 9, 1999 Eugene M. Pasto 15 Halifax Street North Andover, MA 01845 Town of North Andover To Whom It May Concern: I am writing on behalf of John and Margaret Sutton of Waverly Road. The Suttons are asking for a variance in order to rebuild their deck. The Suttons have been our neighbors for over eleven years. During all that time, they have proven to be respectable property owners, with a well maintained house. In addition, the Suttons have been very civic minded. On several occasions, John has plowed the area during snowstorms, and picked up tree branches after thunderstorms. I support the Suttons in their request. S' erely, Eugene M. Pasto 0��,