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Home My WebLink AboutMiscellaneous - 40 BOOTH STREET 4/30/2018 (2) TO 5 Oro .STREET MAP4t D Pntco[.tt lr 3-Jry ry I I f a I 66o �T Pv7- 1 1//yy v � N V _ c i \ J � V I DONALD F. BORENSTEIN Attorney at Law PAh. I<Ar¢.h LAW OFFICE OF: MARK.B.JOHNSON 12 Chestnut Street Telephone:(978)475-4488 Andover,MA 01810 Telecopier:(978)475-6703 f XRTIj i . O t, ao a ti0 49 O 9 � o Y -°a�no.�• {h '�,SS/1 CHU5et NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES STREET NORTH ANDOVER,MASSACHUSETTS 015=45 F.k.Y (978) 688-9�,_ 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 12`h day of October 1999, at 7:30PM to all parties interested in the appeal of Stephen & Cheryl Juba, 555 Salem St.; for premises at: Booth Street, North Andover. Petitioner is requesting a Variance from the requirements of Section 7 Paragraph 7.1 & 7.2 of Table 2, for relief of lot area and street frontage in order construct a single family residence. Said premises affected is land with frontage on the East side Booth Street which is in the R-3 Zoning District. Plans are available for review at the office of the Building Dept., 27 Charles Street, North Andover, MA Monday through Thursday from the hours of 9:OOAM to 1;OOPM. By order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 9/28/99 & 10/5/99. Ml/legalnotice/8 VO cc)m mo a�N ro °�yr T E 6N o.5 a�iz a o` o °Q >� c 0 �'rnas-.oroi� 0°E o °�� a� �"°'c °g-0Q oro m EN ~ LLQ ��Q� c�rnaNa�nZc�O�So�•y �o(0 o°��o mro'� E f o00�iAa mQ �°�� moc ^tom mo OLC�� mai cm °a°rte 1 Z ZWmQyoa�°�.�acirroa�o �t�==• �a��aiaNi�o� ONaI-`o mQ�Ua aZ 'R C'.Noa Za,. ° r °E°� a�E. - OE? - rn ¢OOQU� Xc°'i) E' -O'ccdm' resro�oo�n oc ° 8 Z-0 ° tori Z W N Z LL o L"'.L�C O O a-0 0 CO to CU 'o C�c'Z m r o o J F Z0 a)t_L`OQm�.'?N� nv ��a�a~ aro oEcn-°m�.Na >�°°�'�E�m F o -0r� a)cnLO(L)<�r`o �w 3o Em'in2°_ ° w0 l BC1LDINGS 6SS-9:45 CONSERV.ATIOiN 685-9530 H-7:A T a 645-9540 PLAN1ING oSS-953 I .1 ( < < t 40RTHAL ` O - A 9 l 42- IL ,SSACHUSQ< 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 12� day of October 1999, at 7:30PM to all parties interested in the appeal of Stephen& Cheryl Juba, 555 Salem St., for premises at: Booth Street, North Andover. Petitioner is requesting a Variance from the requirements of Section 7 Paragraph 7.1 & 7.2 of Table 2, for relief of lot area and street frontage in order construct a single family residence. Said premises affected is land with frontage on the East side Booth Street which is in the R-3 Zoning District. Plans are available for review at the office of the Building Dept., 27 Charles Street,North Andover, MA Monday through Thursday from the hours of 9:OOAM to 1:OOPM. By order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 9/28/99 & 10/5/99. Ml/legalnotice/8 Q�WVCL7LO �LLZrcaro�c-UcoEa CcGAo N NCN a. E0 O o h2E N 3Crn �' ccmi mayoa�c>av pON�'-•_C�=E ir maIlO En * 0 C -nq)Z °6 oo0c _ Q OLLQ7 00)N Z OLWWmyy � a—fl• O 0N n mo0 � 0 CIL t� � _-Co-QrncPo 1nm� a � � aNrm ^o � y o-, >oN�,O 0 EW ma2 ` . Q '�_a 2LL?a 4;e N on-Z 2o U)tmB rna` E2mo E2.1- ZVm _' -6Bo c�ica2D'm.7 OO t oNtpa.c °' (D �irna - r (D( Occ�maoa pZ pd>0NNxam-o 'o=o = Q oC � - mN (D oOn '.Oa � FU aCM0bS 9 �NcUl 2 aoro c o0°g w0mLO m¢ c0g �on BOARD OF.APPEALS 688-9541 BL-ILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 683-9540 PLANRNING 683-953:/ ui x RECEIVED -JOYCE BRADSHAW T C TOWN CLERK NORTH ANDOVER NORTH ANDOVER OFFICE OF 1999 DEC 20 P2: THE ZONING BOARD OF APPEALS 21 27 CHARLES STREET NORTH ANDOVER,MASSACHUSETTS 01,945 Any appeal shall be filed FAX(973)688-9542 within(20)days after the date of filing of this notice NOTICE OF DECISION PmP"at: Booth Street NAME: Stephen&Cheryl Juba _ DATE: 12/15/99 - ADDRESS: .555 Salem Street PETITION 039-99 For-property at: Booth Street North Andover, MA 01845 HEARING: 12114199 The Board of Appeals held a regular meeting on Tuesday evening, December 14, 1999 upon the application of Stephen&Cheryl Juba,residence:555Salem St,for premises at:Booth Street, North Andover, MA. in the R-3 zoning district Petitioner is requesting Ia Variance from the requirements of Section 7,Paragraph 7.1 &7.2 of Table 2 for relief of lot area and street frontage-in order to construct a single family residence. The following members were present:William J. Sullivan,Walter F. Soule, Robert Ford, Scott Karpinski, Ellen McIntyre. - Upon a motion made by Walter F.Soule and 2^d by Robert Ford,the Board voted to allow the petitioner to withdraw without prejudice. Voting in favor. William J. Sullivan,Walter F.Soule, Robert Fond, Scott Karpinski, Ellen McIntyre. By order of the Zoning Board of Appeals. . . William J. Sulli n,Chairman mi.1 999decision53 BO:\I2ll OI .\P!'E:\LS t,RB'15I1 f:I Il_UINIiS i\8')51_` CO)NSERV.\TIO-V 4880530 HEALT1168%4540 PLAN`NINU 688 9535 LAW OFFICFI OF Y t MARK B. JOHNSON 12 Chestnut Street ,� SEP 2 3 1999 ° Andover,Massachusetts 01810-3706 I ROHR® OF APPEAL' ` (978)475-4488 Telecopier: (978)475-6703 Paralegals MARK B. JOHNSON (MA,NH,DC) �-- p'Y« KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEEHAN DONALD F. BORENSTEIN (MA,ME) �1r} LIANNE CRISTALDI CYNTHIA R. GLACY (MA,NY) / t Y / September 22, 1999\ North Andover Board of Appeals pp Attn: Mary 27 Charles Street North Andover, MA 01845 Re: Applicant: Stephen& Cheryl Juba East of Booth, South of Wallace & West of Saville Streets Dear Mary: Enclosed please find proposed plan of home, in connection with the above- referenced application. Should you have any questions, please feel free to contact me. Very truly yours, LAW OFFICE OF MARK B. JOHNSON 9 Donald F. Borenstein DFB—klb Enclosure F:\NEW-DOCS\Johnson-Bill\W ALLACE\BOA-Ltr2.doe — Massachuscdts 01810-3706 ; ISOARD OF APPEAL- (978)475-4488 ? ecopier: (978)475-6703 i 1 '� ✓�y� Paralegals C�� p KATHRYN M.MORIN MARY � JEAN A.SHEEHAN LINDA LIANNE CRISTALDI DONA; CYNTI• lc. ✓r' September 22, 1999 , I,Anaover Board of Appeals Attn: Mary 27 Charles Street �2 . North Andover, MA 01845 -OA<.. � Re: Applicant: Stephen& Cheryl Juba East of Booth South of Wallace &West of Saville Streets Dear Mary: Enclosed please find proposed plan of home, in connection with the above- referenced application. Should you have any questions,please feel free to contact me. Very truly yours, LAW OFFICE OF . MARK B. JOHNSON r• Donald F. Borenstein DFB—klb Enclosure F:\NEW-DOCSVohnson-Bill\WALLACE\BOA-Ltr2.doe -t.' a-- "a ' dY h;SJE 1' k EA Fr:.i to �` ;:t�; ';j ,. �` tdt� i'r -1,. `ti iK�!o- Y*'+ �,�,,fr �.,^' y�yr.•,E`sy ..'1 ..�:zL ' s ' i''F �y� �►.y .h� r;h r"*.,T•''- J. e .�+'.Z r �.r.,"-� xi_ •r 3 -. ,�'a; ; i _ly,' •#} _'t a^ ',i,�a 3 ;y >r j �. '+' 35� :+ „'.t tV X- as s ''4 X S. o}. tc -�7 a•r :y,.=�1M i N`" f,•LLL'fi .. ..• r�� i,... - .. { ,- a.�4. -_`.YY. .`'} ...:_ •''?'� "__ .. .. .. .LC�t-pi _ a '�.� r w. .Z ...�.r. f�'i.Y:F� e ..3�.-: _ ( ;"'0' /�� LAW OFFICE OF • MARK B. JOHNSO D - - 12 Chestnut Street ! i Andover,Massachusetts 01810-3706 til.. NOV 1 U 1999 (978)475-4488 130*1'%kI"v 0 F k Telecopier: (978)475-6703 Paralegals MARK B. JOHNSON (MA,NH,DC) KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEEHAN DONALD F. BORENSTEIN (MA,ME) LIANNE CRISTALDI CYNTHIA R. GLACY (MA,NY) November 8, 1999 By Facsimile (without enclosures) &by First Class Mail Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Applicant: Stephen & Cheryl Juba Property: 0 Booth Street, Map 98D, Parcel 14 & 15 Grandfather Status Isolated Residential Lot Dear Members of the Zoning Board of Appeals: At the Board's October meeting, you requested additional information concerning the lot's frontage. Specifically, you questioned whether the Board had the authority to grant a Variance given the limited nature of the lot's existing frontage. I take two alternative positions on this issue. 1. Even given the limited definition of frontage under the North Andover Zoning By-Law (excluding areas within paper streets) the lot does have frontage on the existing and constructed portion of Booth Street. Booth Street, like nearly every constructed public and private way, consists of a paved street area bordered by an un-constructed portion of the layout of the way. In nearly every instance, to proceed from a building lot to the way on which the lot fronts, one must cross an area of land which is within the legal, surveyed dimension of the roadway that is not paved. The pavement of both public and private ways very rarely extends out to the precise legal boundary in which it is constructed. Similarly, for this lot, a portion of"paper street"must be crossed to reach the constructed portion of Booth Street. However, under a reasonable interpretation of the Town Zoning By-Law, it appears that it would be appropriate to include that portion of the constructed section of Booth Street which is within the midline of the street layout closest to the lot, as the lot's frontage. As Members of the Zoning Board of Appeals November 5, 1999 Page 2 shown on the Applicant's Variance Plan, the length of that portion of Booth Street is 45.6 feet. Thus, to satisfy the 50 foot frontage required for this grandfathered lot, a Variance of 4.4 feet is still necessary. To the extent that the Board rejects this definition of "frontage", it should be noted that the Applicant's proposal includes paving of a portion of the paper street abutting the lot within the driveway proposed on the Variance Plan. In the event that the Board requires pavement to actually reach the precise boundary of the lot to be included as frontage, the dimensions of the proposed driveway at the point that it crosses the lot's boundary should be considered such frontage. 2. Even if the Applicant's lot has no frontage, the Board is not prevented from granting a Variance from the frontage requirement. It does not appear that a lot's complete lack of frontage prevents a Zoning Board from granting a Variance from the frontage requirement, where appropriate. In at least two cases, Massachusetts Court's have treated easements or right-of-ways running between a lot and a public way as providing frontage. See Mattson v. Davis, Massachusetts Superior Court Civil Action No. 922891, 1994 WL 879981 (1994) ("The 40-foot right-of-way is the property's only frontage or access to a public way") and Gordon v. Zoning Board of Appeals of Lee, 22 Mass.App.Ct. 343, 345, 494 N.E.2d 14, 16 (1986). In addition, the Appeals Court has not found that it is inappropriate for a Zoning Board to issue a frontage variance for a zero frontage lot, where the issuance of the Variance is otherwise appropriate. See Guiragossian v. Board of Appeals of Watertown, 21 Mass.App.Ct. 111, 114, 485 N.E.2d 686, 688 (1985). Accordingly, even if the Board finds that this lot has no frontage, it is still within the Board's authority to grant a variance from the frontage requirement. I enclose copies of the cases cited above. I trust this correspondence adequately addresses the issue posed by the Board at the last hearing. If I can provide any further information or documentation in connection with this matter,please do not hesitate to contact me. Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Borenstein DFB—klb PC: Mr. and Mrs. Stephen Juba F:\NEW-DOCS\Johnson-Bill\WALLACE\BOA-Ltr4.doc Nov-08-99 11 :01A North Andover Com. Dev. 508 688 9542 P.01 t 40RTk ' r. -14,o Post-It*Fax Note 7671 Date/,�' y Pa9eS�d'f�2� co./Dept. Co. 3.13 e . pis • - °��' Phone k Phone# ,'Acr+usz 6�iY.y STl ` _NORTH ANDC FaxN 7S �O Fax G f� y5�.z O FFrC E OF THE ZONLNG BOARD OF APPEAL', He,P Date: /1— 4j y 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 constrainttfor the Zoning Board of Appeals to make a decision regarding the granting of a VARIANCE for property located at: STREET: —g000, rj'�r2 TOWN: U✓ �� / vlye,v NAME OF PETITIONER: V" rS 5�ep�e� V D0. Signed: �� 17ec2�6� 13 pe##after (or petitioner's representative) a 1 Cl 7SWO7 f F tag C2 Gres.M.,f s 10.4 Variance and Appeals A,,,Jovp, -t Kt a'V o 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. Wvariance Page Citation/Title 1994 WL 879981, Mattson v. Davis, (Mass .Super. 1994) *879981 Walter E.MATTSON and another,(FN1) V. Mark W.DAVIS and others,(FN2) No. 922891 . Massachusetts Superior Court. Aug. 8, 1994 . BOTSFORD, J. **1 This is an appeal under G.L.c. 41, § 81BB from a decision of the Planning Board of the Town of Southborough (the board) approving a definitive subdivision plan. A trial without a jury was held in March, 1994 . Set forth is this memorandum are my findings of fact, a discussion of the legal issues raised, and an order for judgment. For the reasons discussed, the board' s decision is affirmed. Findings of Fact The defendants Peter S . Bemis and Marthe Bemis (collectively, Bemis) own property (the property) off of Flagg Road in Southborough, Massachusetts (the town) . The plaintiffs Walter E. Mattson and Vivian K. Mattson live on a lot which fronts the property. The property consists of a 40-foot right of way which fronts on Flagg Road and extends back approximately 300 feet. At that point, the property opens up into a large, irregularly shaped tract of land containing approximately 17 acres . The 40-foot right of way is the property' s only frontage on or access tc a public way. On May 4, 1992, Bemis filed a preliminary subdivision plan with the board, seeking its approval for a seven-lot subdivision of the property, to be called Eastbrook Farm subdivision. (FN3) In addition to the seven lots, (FN4) the plan included an open space lot of 142, 193 square feet, and an open space easement of 133, 840 square feet, which would provide an open space buffer zone around the perimeter of the seven lots. The plan proposed a dead-end subdivision road which would go along the 40-foot right of way from Flagg Road and continue back into the property, for a total length of 1108 feet. In connection with the preliminary subdivision plan, Bemis sought the board' E approval of several waivers from the town' s rules and regulations governing the subdivision of land, Chapter 244 of the town' s Code (subdivision regulations or subdivision reqs) . (FN5) In June, 1992, the board voted to approve the preliminary plan, subject to the allowance of waivers and conditions . On July 6, 1992, Bemis submitted a proposed definitive subdivision plan which requested five waivers from the subdivision regulations . The board held a public hearing on the plan on August 24, 1992 . At that hearing, the board Copyright (c) West Group 1997 No claim to original U.S . Govt. works Pace 1994 WL 879981, Mattson v. Davis, (Mass .Super. 1994) heard, in person or in writing, from the town' s highway department, its open space commission, fire chief, board of health, and a traffic development consultant retained by Bemis. The hearing was continued to September, 14, 199 when the board received additional information and comments from Bemis and frc- residents of the town. The Mattsons participated in these hearings and opposed the subdivision plan, as did some other town residents. The matter was continued to October 5, 1992 . On that date, the board voted unanimously to approve the plan, subject to conditions. The board expressly approved three waivers from the subdivision regulations: (1) a waiver from the regulation requiring that the right of way for the proposed subdivision road be 50 feet in width; the waiver permitted the right of way to be 40 feet wide for its first 300 feet; but required it to be 50 feet wide for the remaining 700 to 800 feet of the way; (2) a waiver of the regulation limiting dead-end roads to 1000 feet; the waiver permitted the road to be 1108 feet; and (3) a waiver from tr= requirement that the centerline of the road pavement be at the right of way' s centerline; the waiver allowed the pavement centerline to jog from the right c--'- way =way centerline between stations 2 + 50 to 3 + 50 as shown on the subdivision plan. **2 The board did not approve a waiver that Bemis had requested which would have permitted a 3 percent grade levelling area for 20 feet at the intersection_ of the proposed subdivision road with Flagg Road; its decision expressly required that road grades meet the standards required by the subdivision regulations. In its preliminary approval, the board had allowed this road grade waiver, but at the public hearings on the Bemis plan held in August and September, 1992, the Mattsons and perhaps other residents as well had opposed the waiver. The board' s final decision adopted the position taken by the waiver' s opponents . The proposed subdivision road qualifies as a "minor residential street" under the subdivision regulations. (FN6) With respect to the waiver of the 50 feet right of way requirement, the town' s subdivision regulations now require that the width of the right of way for a minor residential street is to be 50 feet a� all points (see subdivision reqs. , appendix (referenced in § 244-13, n. 17) ) ; as indicated, the proposed road will be 50 feet except for the first 300 feet, which will be 40 feet in width. The board required in its decision that the road end in a cul-de-sac turn-around, rather than a hammerhead turnaround. The road will be built in compliance with all requirements and specifications of the town' s department of public works. As a result of the board' s refusal to grant the road grade waiver, the grade of the road must be elevated along the portion of the right of way that will be 40 feet in width. Bemis will be required to add 6 to 7 feet depth of fill to this part, which is substantially more than would be necessary if the road grade waiver were allowed. The Mattsons ' lot fronts on Flagg Road and the proposed subdivision road, (FN7) and portions of the subdivision road, once elevated, will be visible from the Mattsons' property because it has a lower elevation. The lack of a road. grade waiver will also require Bemis to put guard rails Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 1994 WL 879981, Mattson v. Davis, (Mass.Super. 1994) along the subdivision road for the first 300 feet. The guard rails will be approximately 2 to 4 feet back from the road pavement on both sides. The road pavement is to be 20 feet wide, so that there will be approximately 24 to 28 feet between guard rails. Each guard rail will be made out of steel, and will be somewhat over 2 feet high, similar to those used on major highways . For the most part, the road pavement will occupy the center of the right of way. (FN8) For the first 300 feet of the road, between stations 0 + 00 and 3 + 00, there will be a slope on each side of the pavement down to the edge of the 40 foot right of way. These slopes will be graded, but the grade will not exceed the 2 : 1 maximum grade permitted for embankment slopes by the subdivision regulations (see Ex. 14, § 244-20 (F) ) . The board' s decision specifies that the slopes are to be suitably landscaped; Bemis' plans call for trees to be plantec on the slopes . On each side of the first 300 feet of the right of way, there will be a retaining wall that will vary in height to adjust to existing land grades . **3 As indicated, the first 300 feet of the right of way will be 40 feet in width rather than the 50 feet that will define the width of the remaining portion. This narrower section of the right of way does not raise any significant issues of public safety. The road pavement will be 20 feet for the entire length of the road, in accordance with the subdivision regulations . The guard rails will provide protection for vehicles on the road in the event of a traffic accident, and, indirectly, for the abutting property owners such as the Mattsons . The retaining wall will also protect abutters . The guard rails ' placement from 2 to 4 feet from the edge of the road pavement will provide adequate room for snow removal in all but very extraordinary situations; as one witness (William Scully) suggested, however, extraordinary snow situations raise questions of access with respect to all roads in a particular community. (FN9) The amount of traffic that the proposed subdivision is likely to generate is low. A projection provided by William Scully, a transportation and civil engineer called by Bemis, was that the subdivision project would generate approximately 66 daily vehicle trips--33 exiting the subdivision, and 33 entering. Scully also projected that the morning peak hours of 7 : 00 to 9: 00 a.m. would generate 5 vehicle trips, and the afternoon peak hours from 4 : 00 to 6: 00 p.m. would generate approximately 7 vehicle trips . I credit Scully' s testimony and the study prepared by his firm (see Ex. 16A) . (FN10) With the estimated low level of vehicular travel, the 20 foot road pavement for the proposed subdivision road--which is the same width as Flagg Road itself--is adequate to handle the traffic volume within the subdivision itself. Flagg Road is a "collector road"--residential roads open onto it and Flagg Road itself provides a route to major arteries such as Route 9 (FN11) --but it nonetheless has a low volume of traffic. Flagg Road carries about 70 vehicles per hour during the morning peak hours and about 80 vehicles in the evening peak. (FN12) Given this volume, the vehicles leaving the Eastbrook Farm subdivision should be able to enter onto Flagg Road without any real wait, so Copyright (c) West Group 1997 No claim to original U.S. Govt. works 1994 WL 879981, Mattson v. Davis, (Mass.Super. 1994) Page that stacking of vehicles on the proposed subdivision road is very unlikely. _ addition, the site distance--a measurement of how far onto Flagg Road one can see if one were at the intersection of the proposed subdivision road and Flagg- is about 400 feet in both directions. This is more than adequate to allow cars driving into or away from the subdivision to enter or exit safely, in light of the average speed of vehicles traveling on Flagg Road, which is about 27 miles per hour. The portion of Flagg Road on which the proposed subdivision abuts is straight. It has not generated any reportable (FN13) traffic accidents in at least the last five years. There are roads in the vicinity of Flagg Road and the proposed subdivision that are built on a 40 foot right of way. Redgate Lane and Strawberry Lane are two such roads. Another is a subdivision road in the Parkerville Heights subdivision. There was no evidence that these roads had presented problems to the town with respect to safety or access of emergency vehicles . **4 Based on the evidence presented, I conclude that the Eastbrook Farm subdivision will have a negligible impact on the amount of traffic on Flagg Road, and the proposed subdivision road itself does not present any meaningful issues of public safety. Bemis sought approval for an extension of the proposed subdivision road beyond the 1000 feet maximum (FN14) in order to limit the impact of the project on existing wetlands. Without the extension to 1108 feet, it would have been necessary to put pavement over the road as it was crossing the brook on the property, with a far greater impact on the water and the banks of the brook. The extension permits the cul-de-sac turn-around for the road to be placed full- on ullon the other side of the brook. With the waiver, the placement of the subdivision road has an impact on 1060 square feet of the wetlands; without the waiver, the there would be an impact on 4000 square feet of wetlands . The requested waiver of the road' s centerline is also related to wetlands. If the centerline of the subdivision road were maintained at the centerline of the right of way at station 3 + 0, it would have been necessary to push the roac and right of way out further into existing wetlands . By moving the centerline of the road over more to one side of the right of way at this point, the extension into wetlands is minimized. Neither the extension of the subdivision road to 1108 feet nor the centerline jog has any impact on issues of public safety. It is undisputed that the proposed subdivision does not raise questions concerning the adequacy of drainage. The board' s preliminary approval specified that the subdivision was to remain privately owned and maintained. At the time the board voted on the definitive plan, it determined that the subdivision road would be a public way. (FN15) Nevertheless, the actual designation of a road as a public way must be done by the town meeting. The issue has not yet been presented to the town meeting for action. It the road is maintained as a public way, the town rather than the Copyright (c) West Group 1997 No claim to original U.S . Govt. works 1994 WL 879981, Mattson v. Davis, (Mass .Super. 1994) Page subdivision lot owners will be responsible for maintenance, plowing, etc. (FN16 The Mattsons have lived on Flagg Road for almost twenty years . When they purchased the lot, they were aware that their lot abutted on the 40 foot frontage right of way that is at issue here; the right of way is mentioned in their deed. Discussion In an appeal under G.L.c. 41, § 81BB, the court is to conduct a hearing de novo, find facts, and determine whether the board' s decision exceeded its authority. Strand v. Planning Board of Sudbury, 7 Mass.App.Ct. 935, 936 (1979) See Mac-Rich Realty Const. , Inc. v. Planning Board of Southborough, 4 Mass .App.Ct. 79, 81 (1976) . The burden lies with the objector--here, the Mattsons--to prove the board has acted in excess of its authority. Arrigo v. Planning Board of Franklin, 12 Mass.App.Ct. 802, 810 (1975) . Accord, Windsor v. Planning Board of Wayland, 26 Mass .App.Ct. 650, 657 (1988) . **5 The purpose of the subdivision control law is to protect "the safety, convenience and welfare of the inhabitants of the cities and towns in which it is . . . put into effect by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein . . . and ensuring sanitary conditions . . . G.L.c. 41, § 81M. However, " [a] planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations . . . " G.L.c. 41, § 81R. The board in this case waived three of the subdivision regulations; implicit in it- decision is a determination that it was in the public interest to do so, and not inconsistent with the purposes of the subdivision control law. Such a determination by the board necessarily "involves a large measure of judgment or discretion. " Arrigo v. Planning Board of Franklin, supra, 12 Mass .App.Ct. at 809. The Mattsons focus their challenge on the board' s approval of the 40 foot wide right of way for the first 300 feet of its length. They argue that the board ignored evidence submitted by the Mattsons and town officials that such a width would create a traffic hazard. The argument fails on the record presented. As the findings above suggest, the traffic study conducted by William Scully and his firm, McDonough & Scully, more than meets any argument that the subdivision creates a traffic or safety hazard with respect to vehicles entering onto Flagg Road from the subdivision road, or the reverse. What is left is the concern, expressed to some degree by the town' s fire chief, that the 40 foot wide right of way will unduly limit access of emergency vehicles to the subdivision. As indicated in the findings, however (see n. 9) , there was little specific evidence introduced to flesh out these concerns . Compare Gifford v. Planning Board of Nantucket, 376 Mass. 801, 805-809 (1978) (subdivision plan with 46 lots, each of which was connected to a public way, but only by a long, narrow neck with acute curves and portions as narrow as ten feet or less; record Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 1994 WL 879981, Mattson v. Davis, (Mass .Super. 1994) described problems of access for official and emergency vehicles in detail) . This subdivision contemplates seven house lots, not a large number. The 40 foot wide portion of the right of way is limited in length, the road pavement itself will be the regulation 20 feet, and it will be constructed according to the town' s requirements. The guard rails and retaining walls will also provide protection. In addition, the record indicates that there were other 40 foot wide rights of way in the vicinity of the proposed subdivision, and there was nc showing that these had presented public safety difficulties for the town. Scully also affirmatively testified that in his opinion, there was no public safety or traffic danger presented by this road. In sum, the record offers ample support for the board' s judgment that the limited waiver of the 50 foot right of way requirement was in the public interest and not inconsistent with the purposes of the zoning act. The MattsonE have failed to carry their burden 'of proof. See Arrigo v. Planning Board of Franklin, supra, 12 Mass.App.Ct. at 810 . (FN17) ORDER **6. For the foregoing reasons, the decision of the Planning Board of Southbridge dated October 6, 1992, which approved the proposed subdivision plan submitted by Peter and Marthe Bemis, is AFFIRMED. FN1 . Vivian K. Mattson. FN2 . Charles E. Gaffney, Leo Bartolini, Jr. , Donald C. Morris and Jean Bigelow, who, with Mark W. Davis, are named as defendants in their capacities as members of the Planning Board of the Town of Southborough; and Peter S . Bemis and Marthe Bemis . FN3. The property contains wetlands, and Bemis had previously obtained an order of conditions from the town' s conservation commission. It is not clear from the record when the conservation commission issued its order of conditions . The plaintiff Walter Mattson appealed from that order to the Department of Environmental Protection (DEP) . The DEP issued a superseding order of conditions in April, 1993. Thus it appears that Bemis filed the preliminary subdivision plan with the board while the order of conditions was pending before the DEP. FN4 . The proposed lot sizes are the following: lot 1 : 73, 971 square feet; lot 2 : 57, 878 square feet; lot 3: 180, 647 square feet; lot 4 : 46, 850 square feet; lot 5: 96, 807 square feet; lot 6: 50, 116 square feet; lot 7 : 55, 183 square feet. FNS. The subdivision regulations were introduced into evidence as Exhibit 14 . FN6. Section 244-2 of the subdivision regulations defines a minor residential street as " [a] relatively short street expected to have no through traffic and to serve no more than eight (8) dwelling units and no nonresidentially Copyright (c) West Group 1997 No claim to original U.S . Govt. works r u Page 1994 WL 879981, Mattson v. Davis, (Mass.Super. 1994) zoned land. " FN7 . When the Mattsons bought their property, the existence of the abutting frontage right of way (over which the subdivision road will run) was a matte of record. Indeed, the right of way is mentioned in the Mattsons ' deed, and supplies part of the requisite frontage for the Mattsons ' property. FN8 . The exception is the area where the center line jog will be located; this is discussed below. FN9. The town' s fire chief testified that he had some concerns about access for fire trucks and ambulances to the subdivision, and particularly in the event of heavy snow or a situation caused by a car spinning out of control and coming to rest in a position which blocks the road. The chief acknowledged that there were roads in the town with even less than 20 feet of pavement, and he did not indicate that he had had problems with them. He also stated that dead-end streets with a circular turn-around are safer for ambulances, which he described as his department' s "main business . " Although the record indicates that the fire chief submitted comments to the board before it made its decision to approve the subdivision, those comments were not introduced into evidence, and I am unclear whether the chief had the same concerns in July, 1992, when he reviewed the subdivision plan, that he expressed during the trial before me. In any event, I do not find that the chief' s statement of concern was supported by many specifics. In consideration of all the evidence, including the relatively small size of the subdivision, the low level of traffic it is likely to generate, the length o= the proposed subdivision road, the testimony of the town' s police chief and William Scully, I am not persuaded by the fire chief' s testimony that the proposed road, including the portion that occupies the 40 foot right of way, presents substantial access issues . FN10. Scully provided some of the evidence supporting the findings in the previous paragraph as well . FN11 . The subdivision regulations define a collector street as " [a] street which carries or can be expected to carry vehicle traffic originating in another street or streets, or streets expected to carry at least two thousand (2, 000) vehicles average daily traffic. FN12. This information is based on the volume study of Flagg Road which Scully conducted (Ex. 16A) , which I have found persuasive. FN13 . According to the town' s police chief, a reportable traffic accident is one which involves $1000 or more in damages, or personal injury or property damages. FN14 . See subdivision regulations, § 244-13 (A) (4) . Copyright (c) West Group 1997 No claim to original U.S . Govt. works Y Page 1994 WL 879981, Mattson v. Davis, (Mass-Super. 1994) FN15. The board' s decision does not so state, and indeed includes a provision that its approval is subject to an easement being granted to the town for th maintenance of water lines. However, Wayne Theis, the town planner for the town, testified that the board had determined to have the road designated as a public way. I credit this testimony. FN16. There was testimony by Walter Mattson about his concerns that the subdivision road would not be properly maintained if privately owned. The fire chief expressed similar concerns. There was no evidence introduced to provide a factual basis for the fears expressed by these two witnesses. Of course, if the road is maintained as a public way, worries about private maintenance become moot. **6 FN17 . The Mattsons also contend that the board' s refusal to grant a waiver from the road grade requirements was "improvident [ I . " This is a somewhat surprising argument, given that the Mattsons had opposed the road grade waiver before the board. In any event, the board was certainly not required to grant any waiver. Copyright (c) West Group 1997 No claim to original U.S. Govt. works V • Page Citation/Title 494 N.E.2d 14, 22 Mass.App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) *14 494 N.E.2d 14 22 Mass.App.Ct. 343 Annette GORDON V. ZONING BOARD OF APPEALS OF LEE&others.(FN1) Appeals Court of Massachusetts, Berkshire. Argued Jan. 23, 1986. Decided June 12, 1986. Following order of zoning board of appeals granting variance so that house and garage could be built on land lacking frontage required by zoning bylaw, owner of abutting land appealed. The Superior Court, Berkshire County, John L. Murphy, Jr. , J. , affirmed, and owner of abutting land appealed. The Appeals Court, Perretta, J. , held that: (1) abutter had standing to appeal from Board' : decision granting variance, and (2) creation by conveyance of unusually shaped parcel which did not conform to zoning bylaw in existence at time of conveyance did not entitle purchaser to variance. Reversed. Cutter, J. , filed dissenting opinion. 1 . ZONING AND PLANNING 0571 414 ---- 414X Judicial Review or Relief 414X (A) In General 414k571 Right of review. Mass.App.Ct. 1986. Abutter entitled to receive notice of public hearing before zoning board of appeals on application for variance was presumed to be person aggrieved and entitled to appeal from board's decision granting variance. M.G.L.A. c. 40A, Secs. 11, 17 . 2. ZONING AND PLANNING X571 414 ---- 414X Judicial Review or Relief 414X (A) In General 414k571 Right of review. Mass.App.Ct. 1986. Fact that it would be necessary to clear and improve part of abutter' s right- of-way in order for party seeking variance to put in proposed driveway and that such improvement might benefit abutter was insufficient to rebut presumption Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 494 N.E.2d 14, 22 Mass.App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) that abutter had standing to appeal from decision of zoning board of appeals granting variance so that house and garage could be built on land lacking frontage required by zoning bylaw. M.G.L.A. c. 40A, Secs. 11, 17 . 3. ZONING AND PLANNING (8=642 414 ---- 414X Judicial Review or Relief 414X (C) Scope of Review 414X (C) 2 Additional Proofs and Trial De Novo 414k642 Trial de novo in general . Mass.App.Ct. 1986. Upon appeal from decision of zoning board of appeals granting variance, judg, hears matter de novo and determines validity of board' s decision on basis of facts found by judge, and all prerequisites set out in statute authorizing boar to grant variance must be met. M.G.L.A. c. 40A, Secs . 10, 17 . 4 . ZONING AND PLANNING (9=709 414 ---- 414X Judicial Review or Relief 414X (C) Scope of Review 414X (C) 4 Questions of Fact 414k709 Variances or exceptions . Mass.App.Ct. 1986. Findings of zoning board of appeals carried no evidentiary weight upon appear to superior court following board' s decision to grant variance. M.G.L.A. c. 40A, Secs. 10, 17 . 5. ZONING AND PLANNING (9=372 . 6 414 ---- 414VIII Permits, Certificates and Approvals 414VIII (A) In General 414k372 . 1 Maps, Plats, or Plans, Filing or Approval Requirement 414k372 . 6 Other considerations. Formerly 414k372 . 1 Mass.App.Ct. 1986. , Sale of frontage land was making of subdivision, where not every lot thereby created had frontage then required by zoning bylaw on public way or way approves by planning board. M.G.L.A. c. 41, Sec. 81L. 6. ZONING AND PLANNING X503 414 ---- 414IX Variances or Exceptions 414IX (A) In General 414k502 Particular Structures or Uses 414k503 Architectural or structural designs in general. Mass.App.Ct. 1986. Conveyance from larger tract of land of unusually shaped parcel which did not Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 494 N.E.2d 14, 22 Mass .App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) meet minimum frontage requirements of then-existing zoning bylaw did not entitlf purchaser to variance so that house and garage could be built on land, even though granting of variance would allow economic use of locus without detriment to public good. M.G.L.A. c. 40A, Sec. 10. 7 . ZONING AND PLANNING 0381 . 5 414 ---- 414VIII Permits, Certificates and Approvals 414VIII (A) In General 414k378 Grounds for Grant or Denial 414k381 .5 Maps, plats, or plans, conformity to regulations . Mass.App.Ct. 1986. Planning board would have jurisdiction to grant reasonable adjustments to road specifications applicable to lot located in subdivision, either by way of original approval or by way of amendment. M.G.L.A. c. 41, Secs . 81L, 810, 81R, 81W. *15 Jessie Doyle Deely, Lee, for plaintiff. Don C. Hunter, Lee, for William B. Salinetti & another. Before PERRETTA, CUTTER and SMITH, JJ. *16 [22 Mass.App.Ct. 3441 PERRETTA, Justice. After the defendant board granted a variance so that a house and garage coulc be built on a parcel of land lacking the frontage required by the zoning by-law, the plaintiff abutter appealed to the Superior Court pursuant to G.L. c. 40A, Sec. 17 . (FN2) The judge heard the matter, de novo, and made findings in support of his conclusion that the prerequisites to the granting of a variance, as set out in G.L. c. 40A, Sec. 10, had been met. However, because he also concluded that the board' s decision was too conclusory but nonetheless remediable, (FN3) he annulled that decision and remanded the matter for further proceedings. Upon the board' s resubmission of more particularized findings, the judge affirmed the board' s decision. Although we agree with the judge that the Plaintiff abutter has standing to challenge the granting of the variance, we conclude that his findings setting out the justification for the variance lack evidentiary support. We reverse. 1 . The Evidence. At the Superior Court trial, there was evidence to show the following facts. In 1969, William B. Salinetti (Salinetti) and his three sons, as tenants in common, bought about eight to nine acres of vacant land which, on its westerly side, had well over 600 feet of frontage on Fairview Street in Lee (the town) . To the east, the land abuts about thirty acres of land owned by the plaintiff, Gordon. The northern boundary runs along a seventy-five-foot wide right of way which is included in the parcel, and the southern boundary is the Massachusetts Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 494 N.E.2d 14, 22 Mass .App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) Turnpike, to which there is no access from the Salinetti or Gordon properties. [22 Mass .App.Ct. 3451 In 1976, when the zoning by-law required residential building lots to have at least 125 feet of frontage, the Brisson Corporation purchased a portion of the Salinettis ' land fronting on Fairview Street, leavinc_ the Salinettis with more than five acres (the locus) to the back of the land which abuts the Gordon property. (FN4) According to Salinetti, Brisson first intended to lay out five lots, each having 100 feet of frontage. The planning board supposedly agreed to this proposal because other house lots on Fairview Street had that frontage and that was all that had been required under the earlier zoning by-law. When the selectmen objected, however, Brisson divided the land into lots of which four met the minimum 125 feet frontage requirement. 1fr:. r�. pn prhase, the Salntt�. land t:h lawsau d .b Jtz :....::::::::..:.......:...................:..:.:..:.:::::.:::.:::::::::.::::.::::............. .....:::::::::::c:::: . :::.::::.::::.:.......... ...:: r.4ta. : :::: 'a :ru ew.:::.S:t : e:t ::.::::::::.::::.::::.::.::,.:.::.:::::.,::,:.........................................:.:::::::::::: ...................... ............:.:::.::::.::::::.......................... ............................................................................ .....:::::: ::::::::::::::: :::::::::::::: ::::::::::::: ::::::::............... s:....:..:...:::........::::... ..:.:::::.:..::..:.:....... :.::..:::::,.:::..::,,,:.::::. .:::.:...... .........::.:::::.::::::::::.::::::::: :::::..:...................... ::._:::::::::: :::::.. :::. : .vded.;:.;: n.ts:::.... ..::::. :::::....... .. .:.::.;;:.:. ..................................:.::twc .... .a:r t s...........th.e....sevx� ....... .... cso:t. :::..................................::.::..::::::::..................................::::.I .::::::::::::::::::::::::::::::::::::::::::.:...:..............:.y::::::.:::::::::::::::::::.......... ....................... .............. ....................... .........:::::::..................................... .......................................................................................................................:::::,::... d r� a: **....<;:;the»:.. :::.:: ............ ,.....:........................ ...........................::::nix he.r..l:.::.:.:end:..and..:> »> ; :::.<.::»>: .:::::::::::..........................:::::::.:::.::::.:::. ...............................:::: t.w nt. .:. :v .:.f .c� w....de::::s r...� ....af. lanc .................................. ::::.::::::::::.::......................................... :...................................................................:..:I ..::::.::::.:.::.... tnue; .y' enordn has.. n .es.ement. ....:from:;..her..;:.lan.d....tc�.... 'a�rv� �r;:. ....................:.::..............::.::.................................................:::::::.:. ... .... ... ........................ . . .............................................................:. r .e.t :.::.:::.............................................................................:::::::::.................................................::::.:::.:.:.:..,...... ............................................................................................................................. .::::::::::::::::::::.::::::::::,:::::::::...........:......... ....... . .............. ....................................... ....... ,t cit. t.... t....t.... ......... th : d:< tka cus < The area, after the Brisson purchase, is shown on the accompanying sketch, infra. When the Salinettis sold their land to Brisson in 1976, Salinetti was aware that the zoning by-law required for residential use a minimum frontage on Fairview Street of 125 feet. However, according to Salinetti ' s testimony, he "had no further plans for the land" other than to enter upon it occasionally "tc get some cordwood, " which is the reason the Salinettis retained the southerly twenty-five-foot strip. *17 Salinetti further testified that some six years later, in 1982, he was approached by the plaintiff' s husband about purchasing the locus, the remaining parcel behind the house lots fronting on Fairview Street. The parties, however, could not agree on price. In January, 1983, Roger Scheurer viewed the locus with an eye towards its purchase. A resident to the north of Salinetti ' s land saw Scheurer and Salinetti inspecting the locus and approached[22 Mass .App.Ct. 346] Salinetti about buying the land because he "didn' t want any building to gc up there, he liked his privacy. " Salinetti gave him a week to buy the property, but this resident "backed out. " About the same time that Salinetti was negotiating with Scheurer, Salinetti was also approached by a lumber company that "wanted to go in and take the rest of the pine out" but he told the company representative that he "couldn' t give him any answer at the present time. " (FN5) That could have been because the Salinettis and Scheurer had reached an agreement of purchase and sale subject to the granting of a variance to use the northerly seventy-five-foot strip as access to a single family house and garan- that Scheurer intends to build on the northeastern corner of the Subdividing the locus has never been considered by Salinetti testified, he had a "reliable figure of $100 a foot" (or betwee. Copyright (c) West Group 1997 No claim to original U.S. C Page 494 N.E.2d 14, 22 Mass.App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) $40, 000 in all) as the cost of developing a "town approved roadway along that seventy-five-foot right-of-way. " Salinetti stated that he "couldn' t afford to do that if I wanted to. " Roger Scheurer, the prospective purchaser of the locus, testified that he ha( looked for a residential building lot in Lee for about a year. He spoke with real estate agents and drove about the town looking for house lots. He would then approach the lot owners to "see if they had land for sale; and there was very little response, very little land available to purchase. " From these events, Scheurer formed the opinion that, for a prospective purchaser of a lot in Lee, there is a shortage of available lots. Scheurer described the shape of the locus as "unique in that it has frontage which is noncontinuous . " He, likE Salinetti, has no intention of subdividing the locus because the cost of building a town approved road was "underestimated" by Salinetti; it would cost a "quarter of a million dollars to put in a road. ". Water drainage in the area is also "unique" according to Scheurer. The land at the northeastern corner, the proposed [22 Mass .App.Ct. 347] building site, iE relatively level . The slope of the land carries off water from the northeast corner of the locus, creating a water condition at the bottom of the slope nearest Fairview Street. The Gordon property was not as "wet in the same fashion [in] that they were more or less on a top of the hill, until it drops off on the other side. " At least three of the houses on the building lots on Fairview Street "have water problems in their cellars . " 2 . Gordon' s Standing. [1] General Laws c. 40A, Sec. 17, as amended through St. 1982, c. 533, Sec. 1, provides that " [a]ny person aggrieved by a decision of the board of appeals. . . . may appeal to the superior court. " As an abutter entitled to receive notice under G.L. c. 40A, Sec. 11, of the public hearing before the board on the application for a variance, Gordon is presumed to be a person aggrieved. That presumption is rebuttable. See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957) . Citing Marotta, the trial judge stated: "In the absence of evidence to the contrary, I find that the plaintiff Gordon is an aggrieved party within the meaning of the statute and haE a right of appeal . " [2] We see no error in the trial judge' s conclusion that Gordon' s presumption of standing had not been rebutted. As Salinetti testified, "use of that seventy-five foot right-of-way [is] incorporated in [Gordon' s] deed and mine. " That it would be necessary to clear and improve part of Gordon' s *18 right of way for Scheurer to put in his proposed driveway might appear to him and Salinetti as a benefit to Gordon, but it was not evidence such as to require the trial judge to conclude that Gordon lacked standing to challenge the granting of the variance. " [W]hether a party is 'aggrieved' is a matter of degree [citations omitted] ; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 494 N.E.2d 14, 22 Mass .App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) rule. No abuse of discretion has been shown in this case. " Rafferty v. Sanct Maria Hosp. , 5 Mass .App.Ct. 624, 629, 367 N.E.2d 856 (1977) . See also Pauldin v. Bruins, 18 Mass .App.Ct. 707, 709, 470 N.E.2d 398 (1984) . 3. The Variance. [3] General Laws c. 40A, Sec. 10, as amended by St. 1977, c. 829, Sec. 4B, authorizes a board of appeals to grant a variance only [22 Mass.App.Ct. 3481 where it "specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the . . . by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] 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 such ordinance or by-law. " On an appeal to the Superior Court under G.L. c. 40A, Sec. 17, the judge hears the matter de novo and determines the validity of the board's decision on the basis of the facts found by the judge. See Kirkwood v. Board of Appeals of Rockport, 17 Mass .App.Ct. 423, 426-427, 458 N.E.2d 1213 (1984) , and cases therein cited. Al-- the 1=the statutory prerequisites set out in Sec. 10 must be met. Id. at 427-428, 458 N.E.2d 1213. On the evidence presented in the Superior Court and described in part one of this opinion, the trial judge found as follows . The locus is a "double pork chop" lot having a shape "so unusual that it also differs from most, if not all, of the lots in the zoning district. " Moreover, the locus is about ten times larger than the surrounding lots fronting on Fairview Street. Use of the locus is limited by its topography to the construction of a single family house on the northeastern corner, the "relatively level" portion of the locus. The slope of the locus carries off water creating a "water condition at the bottom of the slope nearest Fairview Street. " The shape, topography, and soil conditions affecting the locus do "not affect the zoning district generally. " [4] If the variance were not granted, the "only alternative available to the owner would be to construct an acceptable road from Fairview Street to his property. " To construct such a road to serve a single home would involve a "prohibitive expense. " Compliance with the frontage requirement would "compel an uneconomic use of the land and would force a substantial hardship on the owner since the land could not be sold without a variance. " This substantial hardship is "created by the shape, [22 Mass.App.Ct. 349] location and configuration of the lot. " (FN6) The trial judge concluded that the facts presented were substantially similar to those in Paulding v. Bruins, 18 Mass.App.Ct. 707, 470 N.E.2d 398 (1984) . Upon remand and reconsideration (see note 3, supra ) , the board made more appropriate findings in support of the granting of the variance than those first submitted. We need not set out the Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 494 N.E.2d 14, 22 Mass.App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) board' s findings, which are substantially similar to those of the trial judge, as the board' s decision carried no evidentiary weight in the Superior Court. See Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass . 319, 321, 125 *19 N.E.2d 131 (1955) ; Josephs v. Board of Appeals of Brookline, 362 Mass . at 295, 285 N.E.2d 436. 4 . Discussion. [5] Our starting point is the well-established principle that " [n] o person has a legal right to a variance and they are to be granted sparingly. " Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 61, 267 N.E.2d 897 (1971) , and cases therein cited. The test is not whether the variance is simply "desirable, " Martin v. Board of Appeals of Yarmouth, 20 Mass.App.Ct. 972, 973, 482 N.E.2d 336 (1985) , but whether it is justified, that is, whether there is evidence to show that the statutory prerequisites have been met. See Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556, 183 N.E.2d 479 (1962) ; Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 10, 416 N.E.2d 1382 (1981) , and cases therein cited. When the Salinettis conveyed to Brisson (in 1976) that portion of their land fronting on Fairview Street, the zoning by-law requiring a minimum of 125 feet of frontage for a lot in a residential zone was in effect, and the Salinettis knew of that requirement. That fact makes the present case unlike Paulding v. Bruins, 18 Mass.App.Ct. at 709, 470 N.E.2d 398, where the pork chop lot "was created in its present form in the 19201s, as far as appears prior to the adoption by the town of any zoning by-law, " and identical to the situations found in Raia v. Board of Appeals [22 Mass.App.Ct. 3501 of N. Reading, 4 Mass .App.Ct. 318, 321-322, 347 N.E.2d 694 (1976) , and Arrigo v. Planning Bd. of Franklin, 12 Mass .App.Ct. 802, 803-804, 429 N.E.2d 355 (1981) . Raia and Arrigo presented the situation where an owner of a larger tract of land conveyed to another a portion thereof which did not meet the minimum frontage requirements of the then existing zoning requirements, with the result that the new owner could not build without relief from the zoning regulations . In both instances relief was denied as the landowners could not demonstrate a "hardship" within the meaning of G.L. ' c. 40A, Sec. 10. Similarly, in Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. at 13, 416 N.E.2d 1382, an owner of a larger tract of land conveyed a portion of it which did not meet the minimum frontage requirements of the "then existing zoning by-law. " In annulling the board' s decision granting a variance to the purchaser of the smaller parcel, the court held: "The creation of a nonconforming parcel by such a conveyance does not, without more, entitle the purchaser to a variance. " We see nothing in the present case which constitutes "more" than a proposed conveyance of a nonconforming parcel . "The hardship alleged must arise from the shape of the locus or one of the other factors specifically referred to in Sec. 10. " Guiragossian v. Board of Appeals of Watertown, 21 Mass .App.Ct. 111, 118, Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 494 N.E.2d 14, 22 Mass.App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) 485 N.E.2d 686 (1985) . Any hardship to Salinetti or Scheurer does not arise ou of the soil conditions or topography of the locus . The slope of the land and consequent water drainage problems relate, at best, to the proposed constructio: site which was selected to avoid water problems such as those experienced by three of the abutting Fairview Street property owners. The fact of the matter is, however, that the reason a house cannot be constructed on the relatively level northeastern corner of the locus or at any other site on the lot is because it lacks the requisite frontage. Although the trial judge correctly described the locus as a "double pork chop" and found that "no other lot in the area [is] of similar shape, " those conditions were created by the Salinettis in 1976 for their financial gain. They specifically retained only twenty-five feet of frontage on the southern [2. Mass.App.Ct. 3511 boundary so that they could enter onto the land to remove cordwood. They knew that by reason of their conveyance to Brisson, the remaining land would be a nonconforming parcel in the event that residential ust were sought in the future. Moreover, until the Salinettis ' conveyance to Brisson, there was nothing the least bit *20 unusual about the shape of the tract in its entirety. The slope of the land and the existence of the Massachusetts Turnpike along the southerly boundary were the same in 1976 as they are presently. In short, any "hardship" which currently exists is of the Salinettis' making and could have been avoided easily in 1976. (FN7) To be sure, on the evidence presented one could conclude reasonably and readily that the granting of a variance would allow economic use of the locus without detriment to the public good. That conclusion, however, is not dispositive for the board or for us as it ignores the express language of Sec. 10. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass . at 9-10, 416 N.E.2d 1382 . [6] [7] There is nothing in the evidence which serves to distinguish the instant case from Raia, Arrigo, and Warren, which hold that the creation by conveyance of an unusually shaped, nonconforming parcel under then existing zoning regulation does not entitle one to a variance. (FN8) [22 Mass.App.Ct. 352] 5. Conclusion. It follows from what we have stated that the judgment of the Superior Court is reversed and a new judgment is to be entered that the decision of the zoning board of appeals of Lee was in excess of its authority and is annulled. So ordered. CUTTER, Justice (dissenting) . I assume (see part 2 of the majority opinion) that the trial judge reasonably could find (but was not required to do so) that the now remaining plaintiff, Mrs. Gordon, had standing. I disagree, however, with the determination in part Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 494 N.E.2d 14, 22 Mass .App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass .App.Ct. 1986) 4 of the opinion that the judge could not decide that the town zoning board of appeals acted within its authority in granting the variance, even under what in Guiragossian v. Board of Appeals of Watertown, 21 Mass .App.Ct. 111, 118, 485 N.E.2d 686 (1985) , are described as "new requirements for variances" imposed by the present G.L. c. 40A, Sec. 10, as appearing in St. 1975, c. 808, Sec. 3 (and as later amended by St. 1977, c. 829, Sec. 4B) . The majority' s conclusion that a variance must be denied rests essentially upon the circumstance that, in 1976, the Salinettis (with knowledge of the zoning requirements) sold portions of their frontage on Fairview Street without retaining the zoning minimum of 125 feet of frontage on that street to provide access to the more than five acres of back land of the locus . That back land then could not, and now cannot, be developed for more than one dwelling because of its physical peculiarities. These include a significant slope from north to south, a serious water condition, lack of all access from the south (because of the Massachusetts Turnpike) , and the prohibitive cost of constructing a town approved street along the [22 Mass .App.Ct. 3531 northern part *21 of the Salinettis ' property. (FN1) Salinetti, faced with these considerations, decidec to sell what front lots he could dispose of then and to treat the back land as essentially only a wood lot. By the sale to Brisson, he made the large locus a nonconforming lot. By 1983, the Salinettis had an apparently unexpected opportunity to sell the locus to Scheurer. This was dependent upon whether a variance from the frontagF requirement could be obtained permitting access to the one part of the east portion of the locus on which a residence as a practical matter could be built. The evidence justified the town board (presumably familiar with local conditions) and the trial judge in concluding that the peculiarities of the locus (and a rising demand in a largely rural community for large single family house lots) made appropriate some relaxation of the zoning frontage requirement. They reasonably could decide that a variance was a practicable method of relieving the hardship to the Salinettis which existed in 1976, and essentially continued even after the sale to Brisson. The zoning by-law, as applied to the Salinettis ' 1976 holdings, appeared to make it necessary for the owner to choose between (a) having one house lot on the Fairview Street side of his land [22 Mass .App.Ct. 3541 (and no house on the back land) , and (b) retaining approximately one vacant lot on Fairview Street to provide frontage to justify one house on the northern part of the eastern back land of the locus. The possible alternative procedure before the planning board (see note 1, supra } does not appear to have been considered in 1976 and, in any event, has not been shown to have been attempted. The situation must frequently arise where the somewhat procrustean inflexibility of certain rural zoning by-laws leads to the development first of the most appropriate land for residences while, leaving the owner of essentially unusable and less accessible back land (distant from any laid out street) without financially practicable means of complying with zoning requirements to Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 1 494 N.E.2d 14, 22 Mass.App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) realize some of its value. (FN2) In the present case the sensible grant of a variance has not been shown to have caused significant harm to any abutter or t( have detracted from the integrity of the residential zoning of the area. It avoids a continuing hardship to the Salinettis and permits the most economic use of the locus. From the public standpoint the variance turns a partly cutover wood lot of negligible value into an unusually large lot (more than ten times the applicable minimum lot size of 20, 000 square feet) for only one substantial residence, a matter of local tax advantage and in no way inconsistent (except as to the frontage situation) with the basic zoning scheme. Indeed, the permissible removal of the remaining trees from the locus (as seemed a possibility at one time) in all probability might be a substantial harm to the zone. Mrs . Gordon is *22 . relying upon the circumstance that the Salinettis in 1976 did not keep 125 feet of frontage (in itself a matter of no intrinsic harm to her with only right of way to Fairview Street) as a method of preserving privacy (for her thirty acres east of the locus) which she has enjoyed[22 Mass .App.Ct. 3551 since 1976 essentially because the Salinettis were not then in a financial position tc pay for an access street. I think that the unfavorable physical characteristics of the locus, and the circumstances leading to the grant of the variance, provided the required additional reasons for a variance to satisfy the statement in Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 13, 416 N.E.2d 1382 (1981) , that the "creation of a nonconforming parcel by . . . a conveyance does not without more " (emphasis supplied) entitle the owner of the nonconforming parcel thus created to a variance. In this case there is a good deal "more" in the way of support for a variance than the circumstance that a nonconforming lot was created by the Salinettis. The emphasized words "without more" suggest that the principle in fact applied in the Warren case is not to be regarded as inflexible for all time merely because a present or former owner once possessed enough street frontage to satisfy the zoning by-law. TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE FN1.William B.Salinetti and Roger Scheurer. FN2 . Although the planning board of Lee also claimed an appeal to the Superior Court, that court' s docket does not reflect an appeal by the planning board to this court from the judgment upholding the variance. Additionally, the planning board did not file a brief in this court. See Mass.R.A.P. 16 (a) (4) , as amended, 367 Mass. 921 (1975) . That board, therefore, is not a party to this appeal. FN3. See Josephs v. Board of Appeals of Brookline, 362 Mass . 290, 300, 285 N.E.2d 436 (1972) ; Williams v. Building Commr. of Boston, 1 Mass.App.Ct. 478, 481, 301 N.E.2d 456 (1973) , where the findings of the boards were held to be inadequate but remediable at further hearings. Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 1 494 N.E.2d 14, 22 Mass .App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass .App.Ct. 1986) FN4 . Although Salinetti "could" have sold Brisson larger lots extending into tr back land, Brisson was "just interested in meeting" the frontage requirements. FNS. Salinetti had no idea of the fair market value of the land "for logging purposes" other than his general understanding that "logs are . . . now . . . a depressed market. " FN6. Because of the conclusion we reach as to two of the three statutory (Sec. 10) requirements which "are conjunctive, not disjunctive, " Kirkwood v. Boar of Appeals of Rockport, 17 Mass.App.Ct. at 428, 458 N.E.2d 1213, we need not consider the trial judge' s findings to the effect that the variance could be granted without detriment to the public good and without substantially derogating from the intent of the zoning by-law. FN7 . The sale of the frontage land to Brisson in 1976 constituted the making of a subdivision, because not every lot (in particular, the Salinettis ' retaine, land) thereby created had the frontage then required by the zoning by-law on a public way or a way approved by the planning board. See G.L. c. 41, Sec. 81L. It does not appear from the record whether a plan reflecting the subdivision was submitted to the planning board (as was required by G.L. c. 41J. Sec. 810) or was approved by that board. FN8. It does not necessarily follow, as the dissent would suggest, that the Salinettis ' backland is rendered economically unuseable for a single residence by reason of the doubtless high cost of constructing a road complying with the rules and regulations of the planning board. The plannirc board is given ample authority by G.L. c. 41, Sec. 81R, as amended by St. 1955, c. 411, Sec. 1, to waive strict compliance with its rules and regulations in light of "conditions limiting the lots upon which buildings may be erected and the number of buildings that may be erected on particular lots . . . . " Conditions guaranteeing that the road would serve only one residence would surely warrant reasonable adjustments to road specifications drafted in contemplation of their serving developments . Frontage on a road thus approved by the planning board could eliminate the necessity for a variance. The planning board would have jurisdiction because of the 1976 subdivision (see note 7, supra ) , whether by way of original approval (if approval was not sought in 1976) or by way of amendment under G.L. c. 41, Sec. 81W. FN1 . The majority opinion (notes 7 and 8) ingeniously suggests that the origina' sale in 1976 to Brisson constituted a subdivision and, therefore, should they have been subjected to the town planning board' s scrutiny under the subdivision control law, especially G.L. c. 41, Secs. 810, 81R, and 81W. The present record does not reveal what action was sought or taken under the subdivision control law in 1976, or what planning board regulations were outstanding in 1976 and what are now in effect. The town zoning by-law in Sec. 1 defines "Street, Road, Avenue, Terrace etc, " as "A public way, or a Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 1 494 N.E.2d 14, 22 Mass .App.Ct. 343, Gordon v. Zoning Bd. of Appeals of Lee, (Mass.App.Ct. 1986) way qualifying under the [s]ubdivision [c] ontrol [1] aw, giving access to a lot or lots" (emphasis supplied) . The planning board in 1976 could have relaxed (under c. 41, Sec. 81R) any regulation then in effect to make a simple driveway adequate for access to one single family house and garage on the Salinettis ' back land. The board could have imposed conditions such as forbidding all other houses on the back land,. and requiring that the back land be kept as rural space without excessive tree harvesting. The present record suggests no reason why resort to the planning board may not still be had. The case, however, has been argued before us only on the issue of the validity of a variance on the facts shown in this record. *22 FN2 . The procedure discussed in notes 7 and 8 of the majority opinion, and 1 supra, once generally recognized and appropriately applied by planning boards, can avoid many instances of real hardship leading to applications fo. variances . It seems a reasonable method of affording economical means of access to otherwise unbuildable back land without resort to the variance process . Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page Citation/Title J 485 N.E.2d 686, 21 Mass.App.Ct. 111, Guiragossian v. Board of Appeals of Watertown, (Mass.App.Ct. 1985) *686 485 N.E.2d 686 21 Mass.App.Ct. 111 Valentina GUIRAGOSSIAN V. BOARD OF APPEALS OF WATERTOWN et aL(FNl) Appeals Court of Massachusetts, Middlesex. Argued Sept. 9, 1985. Decided Nov. 19, 1985. Property owner filed suit challenging a town board of appeals ' decision granting use and other variances and special permit for construction of residential condominium project in industrial zone. The Superior Court, Middlesex County, Robert V. Mulkern, J. , upheld the decisions. The Appeals Court, Middlesex County, Greaney, C.J. , held that: (1) the parcel' s shape did not satisfy the statutory requirements for granting a variance; (2) there was inadequate support for necessary finding that the parcel ' s shape gave rise to a substantial hardship; and (3) the special use permit could not stand where the underlying variances were invalid. Judgment reversed. 1. ZONING AND PLANNING (8=512 414 ---- 414IX Variances or Exceptions 414IX (A) In General 414k502 Particular Structures or Uses 414k512 Multiple dwellings, lodgings, and trailer parks . Mass.App. 1985. Triangular parcel' s shape was not sufficiently unusual to justify granting variance to permit construction of residential condominium project in industrial zone. M.G.L.A. c. 40A, Sec. 10. 2 . ZONING AND PLANNING X512 414 ---- 414IX Variances or Exceptions 414IX (A) In General 414k502 Particular Structures or Uses 414k512 Multiple dwellings, lodgings, and trailer parks . Mass .App. 1985. Triangular shaped parcel ' s lack of street frontage, limited access through narrow rights of way and necessity of approaching access points through residential area was not sufficient to sustain grant of variance for Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 485 N.E.2d 686, 21 Mass .App.Ct. 111, Guiragossian v. Board of Appeals of Watertown, (Mass.App.Ct. 1985) construction of residential condominium project in industrial zone. M.G.L.A. c 40A, Sec. 10 . 3. ZONING AND PLANNING (8=512 414 ---- 414IX Variances or Exceptions 414IX (A) In General 414k502 Particular Structures or Uses 414k512 Multiple dwellings, lodgings, and trailer parks . Mass.App. 1985. Use and other variances granted for construction of residential condominium project in industrial zone could not be sustained on notion that triangular- shaped parcel with out street frontage intruded into residential district where parcel was abutted on east and south by industrial use. M.G.L.A. c. 40A, Sec. 10. 4 . ZONING AND PLANNING G=539 414 ---- 414IX Variances or Exceptions 414IX (B) Proceedings and Determination 414k537 Weight and Sufficiency of Evidence 414k539 Particular uses. Mass .App. 1985. Developer' s proof failed to establish adequate support for necessary finding that triangular-shaped parcel ' s shape gave rise to substantial hardship so as tc justify use and other variances for construction of residential condominium project in industrial zone. M.G.L.A. c. 40A, Sec. 10 . 5. ZONING AND PLANNING 0391 414 ---- 414VIII Permits, Certificates and Approvals 414VIII (A) In General 414k384 Nature of Particular Structures or Uses 414k391 Multiple dwellings, lodgings and trailer parks . Mass.App. 1985. Special permit for construction of residential condominium project in industrial zone could not stand where underlying variances did not satisfy statutory requirements . M.G.L.A. c. 40A, Sec. 10. F. Joseph Gentili, Lexington, for plaintiff. John F. Corbett (Mary E. Corbett, Watertown, with him) for Stanley Kruszewski. Belinda Bean, Watertown, for Board of Appeals of Watertown, was present but did not argue. Before GREANEY, C.J. , and GRANT and FINE, JJ. Copyright (c) West Group 1997 No claim to original U.S. Govt. works 485 N.E.2d 686, 21 Mass.App.Ct. 111, Guiragossian v. Board of Appeals of Page Watertown, (Mass.App.Ct. 1985) GREANEY, Chief Justice. This is an appeal by an aggrieved landowner (Valentina Guiragossian) from a judgment of the Superior Court. The judgment upheld decisions of the board of appeals of Watertown that granted Stanley Kruszewski use and other variances, and ' a special permit for the construction of a residential condominium project in an industrial zone. We reverse the judgment. *687 The pertinent facts are as follows . The parcel is known as 30 Rear Washburn and 53 Rear Franklin Streets, Watertown. [21 Mass .App.Ct. 1121 It contains 56, 800 square feet of land and is located in an I-Industrial district, where any residential use is prohibited. TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE The shape of the parcel is as depicted on the sketch. It is bounded on one side and part of another by an industrial district and on the remaining margins by a T-Two Family residential district. The parcel has no street frontage. Access to it is provided by two rights of way through the residential district, one from Washburn Street and one *688 from Franklin Street. The right of way from Washburn Street is eighteen feet wide, fourteen feet of which are over Guiragossian' s property. The right of way from Franklin Street is twelve feet wide. Guiragossian owns a two-family dwelling at 34 Washburn Street in the T- Two Family residential district. Her lot abuts the parcel. Four industrial structures are situated on the parcel . The three buildings on the portion of the parcel closest to Guiragossian' s property are not currently used. Past users of this portion of the land include a road construction firm, a machine company and, originally, a commercial laundry establishment. The remainder of the land is presently occupied and used by a business (Ross Industrial) that repairs heavy construction equipment, primarily forklift trucks . There is an existing industrial use, Ionics, on a 24, 306 square foot lot (lot 10/37) , abutting part of the parcel ' s northeastern boundary, and another industrial use (Swisstronics) abuts the parcel ' s southern boundary (lot 10/38) . Kurszewski has entered into purchase and sale agreements to acquire the locus, subject to his obtaining necessary variances and a special permit for hiE project. The project he proposes would involve the rehabilitation of two existing industrial buildings (one of which apparently has some historical and architectural significance) and the construction of two new buildings. The four buildings would be used as twenty-eight residential condominium units . (FN2) Forty-one onsite parking spaces, the minimum number required by the zoning by- law, would be [21 Mass .App.Ct. 1141 provided. The condominium buildings would be located on the portion of the parcel most distant from the adjoining industrial property but closest to existing abutting residences and would be situated so as to screen the parking and most of the physical activity of the condominium occupants from the view of existing residential abutters . Restrictions requiring one-way traffic circulation were imposed on the project: traffic would enter the parcel over the Washburn Street right of way, and would Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 485 N.E.2d 686, 21 Mass .App.Ct. 111, Guiragossian v. Board of Appeals of Watertown, (Mass.App.Ct. 1985) exit over the Franklin Street right of way. The board of appeals granted Kruszewski a use variance from Sec. 5. 1 of the zoning by-law to allow residential development on the parcel, which, as previously indicated, is a use prohibited in an I-Industrial district. The plans for the project and the narrow rights of way necessitated that the board grant additional variances from the requirements of the by-law for: yard dimensions (Sec. 5.30 of the by-law) ; distance between multiple buildings on a single lot (Sec. 5. 0 [d] ; parking aisle width (Sec. 6. 10 [d] ; and interior :............................. landscaping of parking areas with more than twenty spaces (Sec. ' ? [> : Because . .;>::. : : .... :.:.::.:: :..: :::::: ..... ::. ... :.:...:::;«: : .........: :...#:.:...;;;: ;:........ .... h ..: :a e .:::has:::;no::.:. . .x..eearo ::::.:. .- w:: .::...................:::.:::.: :................ :.::.:.a... a:r.z.a�oe:.... scam....tkle:,:.k .:.::::. .aw,:. .. .ront.ac mei.................................:..:::,.::.:::„:............................ .,: ::,..: .,.9.......:.:.::.:::...:..:...:.....::::::......::......................................... ............................................... .....:... .:::.. . r ::..::: sren:.:<s< as:::a :sb> `:,.rri :a >>«: - ::::::. .::::::.::::.::.::::.. :::,:<;;;.;:;.:;;«<;::;;;;.:.;.:;;:;.:.;:.; :.;;;;: >:<::(Sec. 5.3 0) . Fina 11 y, the board granted a spec i permit under Secs. 9. 03 and 9. 11 of the by-law, which govern the construction c conversion of buildings designed to have four or more dwelling units . 1 . We first restate some general principles governing review of decisions o= local zoning boards granting variances . On appeal to the Superior Court, the judge is required to hear the matter de novo and to determine the legal validity of the board' s decision concerning the variance upon the facts found by the judge. G.L. c. 40A, Sec. 17 . Josephs v. Board of Appeals of Brookline, 362 Mass . 290, 295, 285 N.E.2d 436 (1972) . Garvey v. Board of Appeals of Amherst, 9 Mass .App. 856, 400 N.E.2d 880 (1980) . Since review is de novo, the judge is not restricted to the evidence that was introduced before the board, see Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass . 676, 679, 116 N.E.2d 570 (1953) , and the board' s decision carries no evidentiary weight on appeal . Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. *689 319, 321, 125 N.E.2d 131 (1955) . Josephs v. Board of Appeals of Brookline, supra. [21 Mass.App.Ct. 1151 General Laws c. 40A, Sec. 10, as amended by St. 1977, c. 829, Sec. 4B, authorizes a board of appeals to grant a variance only where "specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law. ” See Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 9, 416 N.E. 2d 1382 (1981) . "No person has a legal right to a variance and they are to be granted sparingly. " Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 61, 267 N.E.2d 897 (1971) , and cases cited. At the hearing in the Superior Court the burden is upon the person seeking a variance, and the board granting one, to produce evidence that each of the discrete statutory prerequisites has been met Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 485 N.E.2d 686, 21 Mass .App.Ct. 111, Guiragossian v. Board of Appeals of Watertown, (Mass.App.Ct. 1985) and that the variance is justified. Warren v. Board of Appeals of Amherst, supra at 10, 416 N.E.2d 1382 . The judge, like the board of appeals, may uphold the variance only if it can be expressly found that the statutory prerequisites have been met. Josephs v. Board of Appeals of Brookline, 362 Mass . at 292, 28, N.E.2d 436. Since the requirements for the grant of a variance are conjunctive; not disjunctive, a failure to establish any one of them is fatal . See Blackma: v. Board of Appeals of Barnstable, 334 Mass . 446, 450, 136 N.E.2d 198 (1956) . 2. In the present case, the principal objections pursued on appeal relate to the judge' s conclusions that special circumstances relating to the parcel' s shape differentiate the parcel from the rest of the district and give rise to substantial hardship. c��::n :::::::::::::::: .:.. ular.......; ::. ::::....:..:.......... ....... :<. . .........................................:::::::::.::::.:::.:.:... .. ..... .................. ...�. ........ mea: :>:: : .. h..:: ;::.:.f>::>;w »::>::»>: .. .;:: ..... ; He found that the parcel does not lend itself to commercial or retail use as there would be no view from the street or sidewalk" and that the parcel ' s "intru[sion] into a residential district [makes] the construction of dwelling units . . . more in harmony with thF [21 Mass.App.Ct. 1161 surrounding area. " The judge further determined that substantial hardship had been established because the parcel ' s lack of frontage has "discouraged buyers who might contemplate putting the parcel to industrial use, " (FN3) and because "one of the existing buildings is not suited to industrial development" since " [i] t is a multistory frame building which no longer fulfills the practical needs of today' s industry. " (FN4) [1] [2] Applying the general principles stated above, we do not think the circumstances relied upon by the judge make out the "shape" prerequisite for the grant of a variance. (FN5) The configuration of the parcel is not significantl% unusual, particularly when compared, for example, with the unique porkchop shaped lot at issue in Paulding v. Bruins, 18 Mass .App. 707, 708, 470 N.E.2d 398 (1984) . As the testimony of Kruszewski ' s architect makes apparent, this is not a case where the irregular perimeter of a parcel would prevent the siting of a building that conforms to existing *690 zoning. Indeed, if the parcel fronted on Washburn Street, the case would not be here. The real problem is not, therefore, with the parcel' s shape. Rather, the problem lies in the parcel' s lack of street frontage, the limited access through narrow rights of way, and the necessity of approaching these access points through a residential area. Lack of frontage alone, however, is not generally enought to sustain the grant of a variance. See Warren v. Zoning Board of Appeals of Amherst, 383 Mass. at 11, 416 N.E.2d 1382 . Nor is the lack of more convenient or wider access decisive, particularly where the deficiency in access does not arise froir. the unusual shape of the parcel itself. By way of contrast, again with reference to the Paulding case, [21 Mass .App.Ct. 1171 supra, the elongated neck of the porkchop shaped lot, as an attribute of the land itself, resulted in such miniscule frontage and access that virtually all practical use was foreclosed without a variance. Compare also Wolfman v. Bc Brookline, 15 Mass.App. 112, 444 N.E.2d 943 (1983) , where the like a reverse "L" and affected by topographical and soil prob together justified the grant of dimensional variances . Copyright (c) West Group 1997 No claim to original U.S . 485 N.E.2d 686, 21 Mass.App.Ct. 111, Guiragossian v. Board of Appeals of Page Watertown, (Mass.App.Ct. 1985) [3] We are also dubious that the variances can be sustained on the notion, relied upon by the judge, that the parcel intrudes into a residential district and that this combines with the parcel' s shape so as to make the construction o: residential units preferable to the development of the parcel for one of the several uses permitted as of right in its own district. It is doubtful that there is such an intrusion at all since the parcel is abutted on the east for some distance by the industrial use on lot 10/37 and on the south by the industrial use contained on lot 10/38 . It has been frequently stated that "a district has to end somewhere, " Sullivan v. Board of Appeals of Belmont, 346 Mass. 81, 84, 190 N.E.2d 83 (1963) , and that some reduction in value or difficulty in developing a parcel for a permitted use may well be "a hazard . . . accompanying the ownership of property along or near zone boundaries, " Boucharc v. Ramos, 346 Mass. 423, 426, 193 N.E.2d 691 (1963) . " [C] ontiguity cannot be considered a 'condition' especially affecting the land within the meaning of G.L. c. 40A, [Sec. 10] . " Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742, 745, 180 N.E.2d 670 (1962) . Moreover, " [c] are should be taken lest the boundaries of a . . . district be pared down in successive proceedings granting variances to owners who from time to time through such proceedings fine their respective properties abutting upon premises newly devoted to [incompatible] purposes . " Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180, 184, 65 N.E.2d 199 (1946) . See Sullivan v. Board of Appeals of Belmont, 346 Mass. at 84, 190 N.E.2d 83. These principles have relevance in this case. Upholding the variances may appear to offer an attractive opportunity to create a more appropriate buffer between zoning classifications . However, such an approach comes close to an argument that the carefully circumscribed [21 Mass .App.Ct. 1181 administrative power to grant a variance car act as a substitute for the right of the town' s legislative body to consider rezoning the parcel in the interest of harmonizing uses within contiguous districts . See Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass . at 746, 180 N.E.2d 670. [4] Finally, we think the case is deficient in proof that would support a finding of substantial hardship. Kruszewski correctly points out that statutory hardship is usually present when a landowner cannot reasonably make use of his property for the purposes, or in the manner, allowed by the zoning ordinance. See Rodenstein v. Board of Appeal of Boston, 337 Mass . 333, 336-337, 149 N.E.2d 382 (1958) ; Dion v. Board of Appeals of Waltham, 344 Mass . 547, 551-552, 183 N.E.2d 479 (1962) ; Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135-136, 235 N.E.2d 800 (1968) ; Broderick v. Board of Appeal of Boston, 361 Mass. 472, 477-478, 280 N.E.2d 670 (1972) . As we noted in Kirkwood v. Board of Appeals of Rockport, 17 Mass.App. 423, 429, 458 N.E.2d 1213 (1984) , *691 such a predicament can be made out "by [a] showing that utilization of [the] land for a [permitted industrial use] would be economically unfeasible. " Kruszewski fails to recognize, however, the symbiotic. relationship between the shape and hardship requirements set forth in Sec. 10 and the level of proof necessary to justify a finding that any claimed hardship is "substantial. " The. present c. 40A, Sec. 10, imposed new requirements for variances, namely, that Copyright (c) West Group 1997 No claim to original U.S . Govt. works Page 485 N.E.2d 686, 21 Mass.App.Ct. 111, Guiragossian v. Board of Appeals of Watertown, (Mass.App.Ct. 1985) the hardship alleged must arise from the shape of the locus or one of the other factors specifically referred to in Sec. 10. An applicant for a variance must show that the land' s shape, alone or in combination with other features of the land, prohibits development consistent with the ordinance. When the applicant makes such a showing, hardship can be found to exist. See, e.g. , Broderick v. Board of Appeal of Boston, 361 Mass. at 477, 280 N.E.2d 670; Wolfman v. Board of Appeals of Brookline, 15 Mass.App. at 116, 444 N.E.2d 943. Measured by these standards, Kruszewski's proof fails to establish adequate support for a necessary finding that the parcel' s shape gives rise to a substantial hardship. Uses of the parcel, which is large, have been traditionally industrial in character, and have included a road construction firm, a [21 Mass.App.Ct. 1191 machine company, and a commercial laundry establishment. Industrial users, Ionics and Swisstronics, abut the parcel on two of its sides. The contention that access to the parcel through a residential district makes the property unique is undercut by the fact that access to Swisstronics ' industrial operations is obtained by passage through Parker Street in the residential district. Moreover, the architect for Kruszewski ' s project testified three times that it would be possible to build an industrial building on the parcel . He specifically stated that a 30, 000 square-foot building with forty-five parking spaces and two truck loading bays could be accommodated on the site. The architect' s conclusion that access and the parcel' s configuration made industrial use of the parcel "very marginal" was limited by his having in mind, as he stated, industrial uses involving "heavy trucking [that would] be difficult in restricted access of this type. " He did not take cognizance of the existing industrial use on the parcel or of the number of other uses permitted in the district, such as light industry, non-nuisance manufacturing, laboratories, offices, or motor vehicle repair. It has not been shown that any of these enterprises could not be conducted on the parcel . Indeed, many of ther would not necessarily involve the large trucks or extensive traffic often associated with heavy industrial operations (and resented by existing abutters) and would not be disadvantaged by the parcel' s limited access . Other deficiencies in the proof of hardship are set forth in the margin. (FN6) We conclude, for the reasons discussed, *692. that [21 Mass.App.Ct. 1201 the interrelated shape and hardship factors imposed by G.L. c. 40A, Sec. 10, as prerequisites to the grant of a variance have not been met. [5] 3. The special permit was piggy-backed on the variances to permit residential development. Among other things, the permit imposed restrictions tc minimize the potentially severe traffic problems that would be created by the project by converting the rights of way that permitted two-way traffic into one- way passages. There is no question that the validity of the special permit is dependent on the validity of the variances and, therefore, the special permit must also fail . As a consequence, other questions argued with respect to the special permit, including the possible misuse of the permit power to correct a likely problem with the overburdening of the easements creating the rights of Copyright (c) West Group 1997 No claim to original U.S. Govt. works Page 485 N.E.2d 686, 21 Mass .App-Ct. 111, Guiragossian v. Board of Appeals of Watertown, (Mass.App.Ct. 1985) way need not be considered. The judgment is reversed. A new judgment is to be entered annulling the decision of the board of appeals as in excess of its authority. So ordered. FN1.Stanley KruszewskL FN2 . The .units would be thirteen one-bedroom units, twelve two-bedroom units an: three three-bedroom units . FN3. Here the judge noted evidence which "indicated that numerous efforts had been made to market the property for [industrial] use, to no avail. " FN4 . The judge also placed some weight on " [t]he existence . . . of a building of some historical significance" on the property. FNS. There is no dispute that the parcel does not- have, in the words of c. 40A, Sec. 10, any "circumstances relating to [its] soil conditions . . . or topography" which would support the grant of a variance. The judge did make a statement in his findings that the parcel "has certain unique characteristics which relate to its . . . topography. " There is, however, nothing in the evidence which supports this statement. FN6. Kruszewski has also failed to present financial evidence which would establish that industrial development of the locus would be "economically unfeasible. " Kirkwood v. Board of Appeals of Rockport, 17 Mass.App. at 429, 458 N.E.2d 1213. There was no testimony to show the price at which the land was, or could have been, marketed for uses permitted by the by-law. In the absence of any testimony as to price, there was no basis for the judge to conclude that the land could not, consistent with economic feasibility, be developed for a permitted use. See O'Brian v. Board of Appeals of Brockton, 3 Mass.App. 740, 326 N.E.2d 728 (1975) . Furthermore, while the judge relied on the failure of previous efforts to sell the property for industrial purposes as evidence of hardship, see note 3, supra, his findings, in addition to failing to take note of the lack of evidence of sales prices, also do not take note of the fact that Kruszewski ' E witnesses testified only about attempts to market the 30 Rear Washburn portion of the locus alone and not the locus as a whole. Testimony from one of the current record owners of the locus, one Dominic Savarese, established that when he executed purchase and sale agreements on the separately owned Franklin and Washburn parcels in August and September, 1982, he already intended to propose a residential development for the site. Evidence before the judge indicated that the parcels were deeded to Savarese and his associates only in March and July of 1983, while the board' s hearings on the Kruszewski proposal were held on June 6, 1983. The record also showed that the architects had been approached by Kruszewski to design the condominium Copyright (c) West Group 1997 No claim to original U.S. Govt. works 485 N.E.2d 686, 21 Mass .App.Ct. 111, Guiragossian v. Board of Appeals of Page Watertown, (Mass.App.Ct. 1985) project in early 1983 and that the site plans were completed by April 1, 1983. No evidence before the judge referred to any failed attempts to marke the Franklin and Washburn properties jointly as a single industrial parcel during this period of acquisition by Savarese and his associates and of development of the Kruszewski proposal. Copyright (c) West Group 1997 No claim to original U.S . Govt . works NOV-U8-1999 MON 02:UU FM M, b. JOHNSON FAX NO. U184(5b(U3 P. U1 LAW OFFICE OF MARK B. JOHNSON a NOV 9 IC"9 12 Chestnut Strict Andover,Massachusetts 01810-3706 (978)475-4488 Telccopic,e: (976)475-6703 MARK A. 101-INSON (MA,NII,t)q Pan IU&I—Is LINDA A. O'CONNm-L (MA,NII,RI) - KATHRYN M.MORIN DONALD F. BORr:NSTEIN (MA.Mt:) A"-AN A.SHEE rAN CYNTHIA R, OLACY (NIA,NY) r[ANNE CRISTALD1 Date: g FACSIMILE TRANSMISSION COVER SHEET TO: S Re: Receiving Facsimile Number: Y From. Mark g John9"t ae P IM= - son Es wire Sending Facsimile Number: (,E 475-6703 Number of Pages being transmitted (including this cover sheet): . F Message: This telecopy is attontcy-client privileged and contains ons aj ins co l7j fdential i,formation intendc,cl only for the person(s) named above. Any other distribution, copying or disc. osr�re is strictly Prohibited. If you have received this telecopy in error, please jtojify rrs inanediately by telephone, and reuirn the original transmission to u.s by mail without jnakinR a copy, Tf probleitu in transmission arc encountered,please contacr sender 11(978)475-4488. NUIi-U8-199y MON 02:bU PM N H, JUHNSUN �AX NO, 9(84756103 P. 02 11 :U1A North Andover Com. 0ev. 508 688 9542 P- 01 ' Post-fr Fax Note 7671 oace�r T TO comept.U Co =^�..0>�4>' P;one 0 VORTR AFDC L"' "76--76- ,7a3 Pax# Gf� cJ�2 ()MCC or TT3Y 7.ONIPT(,- BOARD OF APBCAL) T. Date: Town of North Andover Zoning Board of Appeals ' { 9 1999 ' 27 Charles Street �°� � 'j NOV N North Andover, MA 01845 phone#978-688-9541 fax#978-588-9542 Please be advised that I have agreed to waive the time canstraintFor the Zoning Board of Appeals to make a decision regarding the granting of ' VARIANCE for property located at. a SC STREET: c •�.L1 � 2 TOWN: � _44D - 1, ✓ems NAME OF PETITIONER.- y, t- 5-wrs. Signed: �et+i:ierfier (or petitioner's representative) -0ecty``boll F. Ici9l 10.4 Variance and Appeals , cz. C�S1---__ sF A,jove-1 n-•;4 ot<510 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 Wpography 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 maybe granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw. ��IY3f19!1CC NUU-U8-1 99 MON 02:bU rM M. H, JUHNSUN FAX NO. 9184'lbb'lU3 P. 03 1tv oFrlcF or aNd 01, A N� -rid MARK B. JOHNSON 12 Cliesinut Strect s: Andover,Massacht,xetts 01810-3706 Nov u (978)475-4488 Tciccupicr. (978)475-6703 r A MARK 13. )011NSON (NIA,Nil,DC) N1��1c�:�i.c LINA A. O'CONNL•LL (NIA,NH,Rl) KATIIIZYN M.MORIN DONALD r, 130RE•Na rr:IN (MA,NIL-) JEAN A.S111:FHAN CYNTHIA it. GLACY (MA,NY) LIANNE CjuST*AL1)(-/'I)"' November 8, 1999 � 3 Facsimile(witltoui enclosures) �c�J &by First Class Mail 1 Zoning Board of Appeals Town of NOTIh Andover 27 Charles Street Nortli Andover,MA 01845 Re: Applicant: Stephen& ChelyI,Tuba Property: 0 Booth Street,Map 98D,Parcel 14& 15 Grandfather Status Isolated Residcntiat Lit Dear Members of the Zoning Board of Appeals: At the Board's October meeting, you requested additional infonnation concerning the; lot's frontage. Specifically, you questioned whether the Board had the authority to grant a Variance given the Iimited nature of the lot's existing frontage. I take two alternative positions on this issue. l• Even given the limited definition of frontage under the North Andover ZOniug By-Law(excluding areas within paper streets) the lot docs have frontage on the existing and constructed portion of Booth Street. Booth Street, like nearly every constructed public and private way, consists of a paved street arca bordered by an tin-constructed portion of the layout of the way. In'nearly every instance, to proceed from a building lot to the way on which the Jot fronts, one must cross an area of land which is within the legal, surveyed dimension of the roadway that is not paved. The pavement of moth public and private ways very rarely extends out to the precise legal boundary in which it is constructed, Similarly, for this Iot, a portion of"paper street"must be crossed to reach the constructed portion of Booth Street. however, under a reasonable interpretation of the Town Zoning By-Law, it appears that it would he appropriate to include that portion of the constnlcted section of Booth Street which is within the midline of the street layout closest to the lot, as the lot's frontage. As NOV-08-1999 MON 02'51 PM M. B. JOHNSON FAX N0, 9784766703 F. 04 Members of the Zoning Board of Appcals November 5, 1999 Page 2 t _. f Shown on the Applicant's Variance Plan, the length of that portion of Booth Strect is 45.6 feet. Thus,to satisfy the 50 root frontage required for this grandfathered lot, a Variance of 4.4 feet is still necessary. To the extent that the Board rejects this definition of 'frontage", it should be noted that the Applicant's proposal includes paving of a portion Of the paper street abutting the lot within the driveway proposed on the Variance Plan, to the event that the Hoard requires pavement to actually reach the precise boundary of tine lot to be included<<s frontage, the dimensions of the proposed driveway at the point that it crosses the lot's boundary should be considered such frontage. 2. Even if the Applicant's lot has no frontage, the Board is not prevented from granting a Variance from the frontage requirement. ; It does not appear that a lot's eonnplete lack of frontage prevents a Zoning Board ' from granting a Variance from the frontage requirement,where appropriate. In at least two cases,Massachusetts Court's have treated easements or right-of-ways running between a lot and a public way as providing frontage. See Mattson v. Davis, Massachusetts Superior Court Civil Action No. 922891, 1994 94)("The $79981 (19 40-foot right-of-way is the property's only frontage or access to a public way9) and Gordon V. %onin� card of Appeals of Lee, 22 Mass-App.Ct. 343, 345, 494 N,E.2d 14, 16(1986). In addition, the Appeals Court has not found that it is inappropriate for a Zoning Board to issue a frontage variance for a sero frontage lot, where the issuance of the Variance is otherwise appropriate. Sce Guiradossian v.Board of A. eats of Watertown,21 Mass.App.Ct. 111, 114, 485 N-E.2d 686, 688 (1985). Accordingly, even if the Board finds that this lot has no frontage,it is still within the Board's authority to grant a variance from the frontage requirement. I enclose copies of the cases cited above. I trust this correspondence adequately addresses the issue posed by tine Board at the last hearing. If I can provide any further inforniation or documentation in connection with this matter,please do not hesitate to contact me. Very truly yours, LAW OFFICE OF MARK B.JOHNSON DFB—kIb Donald F. Borenstein pc: Mr. and Mrs. Stephen Juba r"N F.W-U()CS`•Johnson-Bil1\WAT.T.ACL\BOA-Ltr4.doe NORTH 1 0 1- y M* ro +y ,SSgCHt1Set NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHAR?ES S T REST NOR:r-ANDOVER,M?SSAC:-H SETTS 01S, (978) 688-95=2 Date: lZ�l 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 wish to withdraw my petition without prejudice from the Zoning Board of Appeals agenda for property located at: STREET: TOWN: Cj✓ `�(/� NAME OF PETITIONER: 2Pitt,, Signed: pe iti er r petitioner's resentative) mvvariance —0=-RD OF.=3P°jiS SS3-9S1I BLiLJC GS oS3-9`�S CONSERV-_TiO:v 623-9530 FvEALT:�533-9510 PLA2,4'NTNG 6SS-95.35 Mary Ippolito From: Chief William Dolan ( _ Sent: Friday, y99 December 10 1999 12:25 PM To: Mary Ippolito i Subject: Lot A Booth St. I have reviewed the plan dated 8/18/99 by Christiansen &Sergi for Lot A both St. The fire department would approve of this plan as shown provided that the residence is given an appropriate Booth St. address which is approved by the Dispatch Supervisor-Richard Boetcher. i I + i PETITION 1 support Stephen and Cheryl Juba's Variance Application now pending with the Zoning Board of Appeals for their property at 0 Booth Street. I prefer the construction of a driveway from the existing Booth Street cul-de-sac to the proposed home, over the extension of Booth Street. Name gnature Address Date (Please Print) (P ease Sign) Print (Please ) (Ple se Sign) j ` e;;F off. Ae, J ?-, / L -�/' S (Please Print) (Please Sign) (Please Print) (Please Sign) (Please Print) (Please Sign) (Please Print) (Please Sign) P:\NEW-DOCSUohnson-Bi IMALLAC L\Pctition.doc >v PETITION I support Stephen and Cheryl Juba's Variance Application now pending with the Zoning Board of Appeals for their property at 0 Booth Street. I prefer the construction of a driveway from the existing Booth Street cul-de-sac to the proposed home, over the extension of Booth Street. Name Signature Address Date Pamela roc+Q. �-1"�� , ,� a� .eo,* S+ (Please Print) (Please Sign) kid&Ui (Please Print) (Please Sign) II (PleasePrint) ( lea e S (Please Print) (Please Sign) "4t nix (Please Print) 4easaeSig#n , i (Please Print) (Please Sign) I F:\NEW-DOCSVohnson-Bill\WALLACE\Petition.doc i i NOV-08-1999 MUM U12:'U VM 11, 8. JUHNSUN MA NU, y(ti4(bb fW 01 LAW 01-FICE OF s�t{ I .I . �.:��w+` ►- �� '`' MARK B. JOHNSON NOV 9 G9� 12 Chestnut Street Andover,Nlassachwetts 01810-3706 (978)475-4488 a A Telecopicr: (97g)475-6703 t �/ MARK A. JOHNSON (MA,NI1.1)C} ,/QGJ 1lyaralcFpls LINDA A. O'CONNLr.L KAT(IRYN M.MORIN tX)NALl7 F. DORENSTE•IN (MA.MF:) 11••ANA.SHEEHAN CW1111A R, t;tACY (MA,NY) t IANNE CRISTALDI Date: / 68 FACSIMILE TRANSMISSION COVER SHEET 'ro: Re: Receiving Facsimile Number: Prom: ark B. Johnson Esc uirc i Sending Facsimile Number: 978 475-6703 Number of Pages being transmitted (including this cover sheet): Message: Tliis telecopy is attontey-client privileged and contains C01 fdential i»forniation intended only for the peg-son(s) named above.. Any other distribution, copying or disclosrire is strictly prohibited If you have received this telecopy in error, please notify res iniruediately by telephone, and retttrlt the original transmission to us by mail without Working a Copy. Tf problems in transmission are encountered,please contact srnder 11(978)475-4488. NOV-08-1999 MON 02:bU I'M M. H. JOHNSON '-AX NO. y t841bb_C P. 02 —vo—may 11 :VSA North Andover Com. Dev. 508 6$g 9542 P- 01 o' Post-fC Fax Note 7671 Date/I C-V y r ou�os�7 To . � From c, co.reept. �• �.4ruu�3S PAone t Phone -NORTTI ANDC F" �S ,`Io3 Fa:� !i/✓�f-��1r1 0M- CL or v TII1 ZO_�IPTG BO_ PD OF APPCAL) Date: //— (1 � . .m. • - r Town of North Andover j Zoning '' NOV 9 199 1 ' Board of Appeals 9 27 Charles Street North Andover, MA 01845 phone#97U88-9541 fax#978-888-9542 Please be advised that I have agreed to waive the time constrainttfor the Zoning Board of Appeals to make a decision regarding the granting of a VARIANCE for property located at: S`fREET: 00 2 TOWN: ��c,��, �� ✓e,✓ NAME OF PETITIONER: C>fe )Iel Signed: beccvn6w I-4• Metier (or petitioner's representative) 1 10.4 Variance and Appeals , A ja'.4_i ki-oq c Sl o 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 Eylaw,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. Wvrance - J NOV-08-1999 MON 02:fDU PM M. JOHNSON FAX NO, 9(84798-103 P. 03 LAW OFFICE or MARK B. JOHNSONU 7- 12 Chestnut Strect Y i Andover,Massachusetts 01810-3706 � j Nov 9a (978)475-4488 - TOccupier. (979)475-6703 q'-= MARK 13. ANINSON (MA,NI.I,DC} PZa!ELJr, LINDA A. O'CONNELL (MA,NH,RI) KA`rIMYN M,MORIN DONALD r. 130111- '1T:IN (MA,ML) JEAN A.S111'F1IAN CYNTHIA It. GLACY (Mn,NY) LIANNC CRISTALIX November 8, 1999 R y 1'aCSlnlIIc(without enclosures) &by First Class Mail Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover,MA 01845 Re: Applicant: Stephen& Cheryl Juba Property: 0 Booth Street,Map 98D,Parcel 14& 15 Grandfather Status i Isolated Residential Lot Dear Members of the Zoning Board of Appeals: At the Board's October meeting,you requested additional infornlation concerning the lot's frontage, Specifically, you questioned Whether the Board had the authority to grant a Variance given the limited nature of the lot's existing frontage. I take two alternative positions on this issue. 1. Even given the limited definition of frontage under the North Andover Zoniug By-Law(excluding areas within paper streets)the lot does -Nave _04 1ge4�the existiit-and"cditistrneted.porti0 of Buoth Street.d Booth Street, lila nearly every constructed public and private way, consists of a paved street arca bordered by an urt-constructed portion of the layout of the way. In'nearly every instance, to proceed from a building lot to the way on which the Jot fronts, one must cross Duh area of land which is within the legal, stir dimension of the roadway that is not paved. The pavement of both public and private ways very rarely extends out to the precise Iegal boundary in which it is constructed. Similarly, for this Iot, a portion of"paper street"must be crossed to reach the constructed portion of Booth Street. 110wever, under a reasonable interpretation of the Town Zoning By-Law, it appears that it would be appropriate,to include that portion of the constructed section of Booth Street which is within:thc midline of the street layout closest.to.the-lot,as,t11c.Iot's frontage. As -NOV-08-1999 MON 02:51 PM M, E JOHNSON FAX NO. 9784756703 P. 04 Mcmbcrs of the Zoning Board of Appeals November 5, 1999 Page Z shown on the Applicant's Variance Plan, the length of that portion of Booth Street is 45.6 feet. Thus,to satisfy the 51yfdot frontage required for this grandfathered Iot, a Variance of 4.4 feet is still necessary. To the extent that the Board rejects this definition of "froiitftge", it should be noted that the Applicant's proposal inehides paving of a porion Of the paper street abutting the lot within the driveway proposed Oen the Variance Plan, Tn the event that the Board requires pavement to actually reach the precise boundary lathe lot to be included tS frontage,the dimensions of the proposed driveway at the point that it crosses the lot's boundary should be considered such frontage. 2. Even if the Applicant's lot has no frontage, the Board is not prevented from granting a Variance from the frontage requirement. It does not appear that a lot's complete lack of frontage prevents a Zoning Board r from granting a Variance from the frontage requirement,where appropriate. In at least two cases,Massachusetts Court's have treated easements or right-of-ways running between a lot and a public way as providing frontage. See Mattson v. Davis, Massachusetts Superior Court Civil Action No. 922891, 1994 WL 879981 (1994) ("The 40-foot right-of-way,is the property's only frontage or access to a public way") and Gordon v. '/,onin Board of Appeals ofLee,22 Mass.App.Ct. 343, 345, 494 N:E.2d 14, 16(1986). In addition, the Appeals Court has not found that it is inappropriate for a Zoning Board to issue a frontage variance for a sero frontage lot,where the issuauee of the Variance is otherwise appropriate. See Guiraaossian v. Board of A. ealc of Watertown, 21 Mass.App.Ct. 111, 1141 485 N.E.2d 686, 688 (1985). Accordingly,even if the Board finds that this lot has no frontage, it is still within the Board's authority to grant a variance from the frontage requirement. I enclose copies of the cases cited above. 1 trust this coiTespondcnce adequately addresses the issue posed by the Board at the last hearing. If I can provide any further information or documentation in connection with this inatter,please do not hesitate to contact me. Very truly yours, LAW OFFICE OF MARK B.JOHNSON DIB-1cIb Donald F. Borenstein pc: Mr. and Mrs. Stephen Juba F:1NF.Wl7OCS9ohnson-Bil(\WA[.LACL•ROA-Ltra,doe w - LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover,Massachusetts 01810-3706 (978)475-4488 Telecopier: (978)475-6703 Paraleeals MARK B. JOHNSON (MA,NH,DC) KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEERAN DONALD F. BORENSTEIN (MA,ME) LIANNE CRISTALDI CYNTHIA R. GLACY (MA,NY) October 11, 1999 Hand Delivered Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover,MA 01845 Re: Applicant: Stephen& Cheryl Juba Property: 0 Booth Street, Map 98D, Parcel 14& 15 Grandfather Status Isolated Residential Lot Dear Board Members: I represent the Applicants in connection with their Petition for a Variance for the above-referenced property. This letter will summarize the Applicants' proposal and set forth the "grandfathered" status of the lot, under the Massachusetts Zoning Act, G.L. c.40A, §6. SUMMARY OF PROPOSAL The Applicants' property consists of 6 adjoining parcels (66-68 & 113-115) shown on Land Court Registration Plan No. 3263B. These parcels are combined to form a lot with an area of 19,489 square feet. This lot is bounded to the West,North and East by three private ways,Booth Street, Wallace Street and Saville Street, respectively. Saville and Wallace Streets are currently unconstructed, "pa)er" street been partially constructed, ending in a cul-de-sac at the No S%(#eEotthV XT 1 2198.9 BUILGiI�C C3��r i, Efil7 Zoning Board of Appeals October 11, 1999 Page 2 Applicants' property. At present, the Applicants' lot has no constructed frontage, it has paper street frontage of nearly 400 feet. Mr. and Mrs. Juba wish to construct a single family home on their property. Access to the home would be provided by a driveway extending from the existing Booth Street cul-de-sac. The proposed footprint of the home is 54' x 28' and, exceeds current setback requirements in the R-3 District in which it is located. The lot is 5,511 square feet short of the current minimum lot area requirement. However, as discussed below, the lot is "grandfathered"under Section 6 of the Massachusetts Zoning Act, as an isolated residential lot, and is subject to a 5,000 square foot minimum lot area requirement. Similarly, the current frontage requirement is 125 feet, however, the lot is subject to a 50' minimum frontage requirement as a grandfathered lot. Mr. and Mrs. Juba have petitioned for Variances from both frontage and lot area requirements. However, if the Board confirms the grandfathered status of the lot, only,a frontage Variance would be necessary. GRANDFATHEREDSTATUS The Massachusetts Zoning Act, G.L. c.40A, §6,provides in part that, Any increase in area, frontage,width, yard, or depth requirements of a zoning ordinance or by-law 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. Id. In short, if a residential lot was created prior to the adoption of zoning and has been held in separate ownership since the adoption of zoning, the lot is "grandfathered" and 5,000 square feet area and 50 feet frontage requirements apply. Mr. and Mrs. Juba's property is such a lot. That lot was created as follows, 1. On July 8, 1913, Jacob W. Wilbur was the owner of a large parcel of land which included the Juba property. (See Transfer Certificate of Title No. 385). Mr. Wilbur divided his land into numerous lots and private ways. See Registration Plan Nos. 3253A, 3263B). 2. By a Deed dated June 1, 1916,Mr. Wilbur conveyed lots 113-115 (the Western portion of the Juba property) to Rose Kennedy. (See Deed at Registration Book 4, Page 425). Zoning Board of Appeals October 11, 1999 Page 3 3. By a Deed dated December 20, 1916,Mr. Wilbur conveyed lots 66-68 (the Eastern portion of the Juba property)to Jacob'W. Wilbur, Inc. (See Deed at Registration Book 4, Page 465). 4. By a Deed dated September 1, 1916,Mr. Wilbur conveyed the only lots 1 abutting the Juba property, lot nos. 69 & 112, to Giovanni & Minnegella Parrillo. (See Deed at Registration Book 4, Page 593). The remainder of the Juba property abuts Booth, Wallace and Saville Streets. 5. Mr. and Mrs. Juba now own Lots 66-68 and 113-115. See Transfer Certificate of Title No. 8696). Thus, the Juba property has been held in separate, isolated ownership since 1916, long before zoning was first adopted in North Andover in 1945. Accordingly, the minimum requirements set forth in G.L. c.40A, §6, apply, 5,000 square feet for minimum area and 50 feet for frontage. I am willing to provide any further information or documentation the Board requests concerning this issue. Thank you for your time and consideration. Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Borenstein DFB—klb PC: Robert Nicetta, Building Commissioner, (by hand, w/enclosures) F:\NEW-DOCS\Johnson-Bill\WALLACE\BOA-Ltr3.doc s �~r > �.S.PGSTAGE t SEP 10.99 6 744869`___ _ Stephen & Cheryl Juba 0 Booth Street North Andover, Ma 01845 M r- ON1000931VMS Joseph E. Carroll 11 Trustee of Saville St Trust P.O. Box 835 Lowell, Ma 01853 i t 40RTk 1 , O a , y r n 00` N � J �CNUS NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEAL, NOR T-1,A'NiDOVER,vLASSACH-USS s O i 8': ,r�`X(9�5) 653-95-�� Date: O 1JIRO 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 q the Zoning Board of Appeals to make a decision regarding the granting of a VARIANCE for property located at.- STREET- TOWN: t:STREET:TOWN: ry dv r NAME OF PET1TlONER: '��I• foll., Signed: ,efetitioner (or petitioner's representative) 10.4 Variance and Appeals 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. Wvamnce r. r,.— i OCT 1 21999 L_Al- William J. Sullivan, Chairman Zoning Board of Appeals of North Andover 27 Charles Street North Andover, MA 01845 October 6, 1999 Re: Juba, Booth Street Lot Public hearing regarding undersized lot/lack of frontage Dear Chairman Sullivan, I am an abutter (land owner) to the above referenced lot and will not be able to attend the public hearing. I hope, however, that this letter will serve to voice my concerns. By allowing the Jubas to construct anything less than a town acceptable road to their furthest lot line certainly places an unfair burden on me to bring a road past their lot 'A' to my lot 'B' in the future (please refer to the attached diagram). I attended the public hearing in January 1995 when a potential buyer of this same lot applied for this same variance. Their attorney attempted to coerce the board to act favorably on this request by stating publicly that "all the land beyond this lot is a wetland". This is NOT THE CASE. My entire lot is an upland and I respectfully request that this application be denied. A board member also questioned at that time whether the ZBA had any authority to waive road construction requirements (prior to the petitioner withdrawing their application) . I would like nothing more than to work with the petitioner to resolve what have been outstanding issues for a long time. If any such opportunity presents itself at the hearing please feel free to offer my assistance. Sincerely, ohn Carroll 1501 Main Street, #15 Tewksbury, MA 01876 978-851-4851 It� � ''s4tK + "� J��.,• �_ (rye .``� nr :C. :`�r � \ ✓. `;.J.J .n r ��s e Ju`u-L ', d CNr1 !'�• �Zi 1 + �r , •�c��a �� .y C�� i 14 41 19 00 �( , ick Is ' (�, �. t =�.'S]fir - .` r` 1 � c''� v ��•�.• ��'�^ ,�J�?� `• , _. 0.0 ju .f Vis • � � .h ��, ,��> r •• ' N "�,�.]''' : '•P !'Sri " , � ,c�4i - C,v� ,�•.'� �• 'L-',�. t a-r � ,-eat -� �'� -� �l' �• ...,• ° � � 'jam` Y�� i ,. ."� � \r f.�'•• .� :r, �� .moi��. "J �e� _ .� .. f I� I � •. ��' 1<� F� ';^ , b'a %'• v��.'�•``�,•�,-� ��-.�-��=�� - �__ it'� '' � '��y'f' •} .�C.F'h �-Aj l`.' l' � ��` , Ap�pC� NX 6 J� JOHN CARROLL _ s " 1�r-�+� F-� REAL Es7A7E SERVICES ' 1 �i 06 OCT 1501 MAIN STREET /,39s L" C' „' SUITE 15 --rA' TEWKSBURY,MASSACHUSETTS 01876 - f fill)11 fill IIIIIIIIIiIII frild1111t1 i Received by Town Clerk: RECEIVED JOYCE WN CLERKAW TOWN OF NORTH ANDOVER MASSAM%MER BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE Z65W ORD& AS Applicant Stephen & Cheryl Juba Address �A?�— /�y�lTll�Tel. No.�g7� 0/S�V6— 1. Applicant is hereby made: a) For a variance from the requirements of Section 7 Paragraph 7-.? t+- 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 [� L-oo+h Street. b) Premises affected area property with frontage on the North( ) South ( ) East ( ) West ( ) side of Cvxs+of Zoa4, So,-k-k vF�9W[" �Wesl;gF Sayi h Street. C) Premises affected are in Zoning District R—3 and the premises affected have an area of I q, L cl54� square feet and frontage of +6 feet. See voU-i t ce Wo.-KS11tCLT 4}44C dad 3. Ownership: t a) Name and address of owner (if joint ownership, give all names): Stephen M. Juba. III and Cheryl A-Juba. ,TT Date of Purchase 3/27/81 Previous Owner hiers of Rose Kennedy b) 1. If applicant is not owner, check his/her interest in premises: Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required 5 of 8 y 4. Site of proposed building: z S, front; 54 feet deep; Height Z12 1,AC_ stories; feet. a) Approximate date of erection as soon as possible b) Occupancy or use of each floor: residential C) Type of construction stood frame 5. Has there been a previous appeal, under zoning, on these premises? When 6. Description of relief sought on this petition va,.�irom streetz €rcentage-- requirement 0.%nd crew t 29u:reV"eV%+ 7. Deed recorded in the Registry of Deeds in Book No. Page Land Court Certificate No. 8696 Book Page 389 The principal points upon which I base my application are as follows: (must be stated in detail) Without the requested relief, the premises would be unbuildable, thus creating a substantial hardship. The non-conformity results from unique conditions related to the shape, soils and topography of the lot. Specifically, the shape, soils and topography of the lot. Specifically, the shape of the lot, relation to unconstructed streets and wetlands have created a unique frontage non-conformity. Variance will not substantially harm the public good or substantially derogate from the Bylaw's purpose. The premises is otherwise in excess of dimensional requirements and the available frontage is adequate for the purposes of the Bylaw. , I agree to pay the filing fee. advertising in newspaper, and incidental expenses* Si tune o Petitioner(s) 6of8 i WORK SHEET DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: R—3 Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension Area 2-5)000s-q k \Iy,00g5� S, Sl1s� The Premises has frontage on unconstructed "paper" sheets as follows: Saville Street 104.89 If those portions of the Premises within Street Frontage Wallace Street 200.56 Wallace Street are included within the Booth Street 90.00 calculation the premises has 45.6 feet of frontage on the constructed portion of Booth g*reet Otherwise, the pEefalses has no existing— frontage. Front Setback (s) Side Setback (s) Rear Setback (s) of 8 LAW OFFICE OF MARK B. JOHNSON Ne`, pe 12 Chestnut Street Andover,Massachusetts 01810-3706 (978)475-4488 Telecopier: (978)475-6703 Paralegals MARK B. JOHNSON (MA,NH,DC) KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEEHAN DONALD F. BORENSTEIN (MA,ME) LIANNE CRISTALDI CYNTHIA R. GLACY (MA,NY) October 11, 1999 Hand Delivered Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Applicant: Stephen& Cheryl Juba Property: 0 Booth Street, Map 98D,Parcel 14 & 15 Grandfather Status Isolated Residential Lot Dear Board Members: I represent the Applicants in connection with their Petition for a Variance for the above-referenced property. This letter will summarize the Applicants' proposal and set forth the"grandfathered" status of the lot, under the Massachusetts Zoning Act, G.L. c.40A, §6. SUMMARY OF PROPOSAL The Applicants' property consists of 6 adjoining parcels (66-68 & 113-115) shown on Land Court Registration Plan No. 3263B. These parcels are combined to form a lot with an area of 19,489 square feet. This lot is bounded to the West,North and East by three private ways, Booth Street, Wallace Street and Saville Street, respectively. Saville and Wallace Streets are currently unconstructed, "pa)er" streets been partially constructed, ending in a cul-de-sac at the No s>�cgeEotthV OCT 219A9 . Rl11LDINC- DEPAR t AENTl Zoning Board of Appeals October 11, 1999 Page 2 Applicants' property. At present, the Applicants' lot has no constructed frontage, it has paper street frontage of nearly 400 feet. Mr. and Mrs. Juba wish to construct a single family home on their property. Access to the home would be provided by a driveway extending from the existing Booth Street cul-de-sac. The proposed footprint of the home is 54' x 28' and, exceeds current setback requirements in the R-3 District in which it is located. The lot is 5,511 square feet short of the current minimum lot area requirement. However, as discussed below, the lot is"grandfathered"under Section 6 of the-Massachusetts Zoning Act, as an isolated residential lot, and is subject to a 5,000 square foot minimum-lot area requirement. Similarly, the current frontage requirement is 125 feet,however, the lot is subject to a 50' minimum frontage requirement as a grandfathered lot. Mr. and Mrs. Juba have petitioned for Variances from both frontage and lot area requirements. However, if the Board confirms the grandfathered status of the lot, only.a frontage Variance would be necessary. GRANDFATHERED STATUS The Massachusetts Zoning Act, G.L. c.40A, §6,provides in part that, Any increase in area, frontage, width,yard, or depth requirements of a zoning ordinance or by-law 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. Id. In short, if a residential lot was created prior to the adoption of zoning and has been held in separate ownership since the adoption of zoning, the lot is"grandfathered" and 5,000 square feet area and 50 feet frontage requirements apply. Mr. and Mrs. Juba's property is such a lot. That lot was created as follows, 1. On July 8, 1913, Jaiob W. Wilbur was the owner of a large parcel of land which included the Juba property. See Transfer Certificate of Title No. 385). Mr. Wilbur divided his land into numerous lots and private ways. (See Registration Plan Nos. 3253A, 3263B). 2. By a Deed dated June 1, 1916,Mr. Wilbur conveyed lots 113-115 (the Western portion of the Juba property) to Rose Kennedy. (See Deed at Registration Book 4, Page 425). Zoning Board of Appeals October 11, 1999 Page 3 3. By a Deed dated December 20, 1916, Mr. Wilbur conveyed lots 66-68 (the Eastern portion of the Juba property) to Jacob W. Wilbur, Inc. (See Deed at Registration Book 4,Page 465). 4. By a Deed dated September 1, 1916,Mr. Wilbur conveyed the only lots abutting the Juba property, lot nos. 69 & 112, to Giovanni &Minnegella Parrillo. See Deed at Registration Book 4, Page 593). The remainder of the Juba property abuts Booth, Wallace and Saville Streets. 5. Mr. and Mrs. Juba now own Lots 66-68 and 113-115. See Transfer Certificate of Title No. 8696). Thus, the Juba property has been held in separate, isolated ownership since 1916, long before zoning was first adopted in North Andover in 1945. Accordingly, the minimum requirements set forth in G.L. c.40A, §6, apply, 5,000 square feet for minimum area and 50 feet for frontage. I am willing to provide any further information or documentation the Board requests concerning this issue. Thank you for your time and consideration. Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Borenstein DFB—klb PC: Robert Nicetta,Building Commissioner, (by hand, w/enclosures) F:\NEW-DOCSUohnson-Bill\WALLACE\BOA-Ltr3.doc LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover,Massachusetts 01810-3706 (978)475-4488 Telecopier: (978)475-6703 Paralegals MARK B. JOHNSON (MA,NH,DC) KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEEHAN DONALD F. BORENSTUN (MA,ME) LIANNE CRISTALDI CYNTHIA R. GLACY (MA,NY) October 11, 1999 Hand Delivered Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Applicant: Stephen & Cheryl Juba Property: 0 Booth Street, Map 98D, Parcel 14 & 15 Grandfather Status Isolated Residential Lot Dear Board Members: I represent the Applicants in connection with their Petition for a Variance for the above-referenced property. This letter will summarize the Applicants' proposal and set forth the"grandfathered" status of the lot, under the Massachusetts Zoning Act, G.L. c.40A, §6. SUMMARY OF PROPOSAL The Applicants' property consists of 6 adjoining parcels (66-68 & 113-115) shown on Land Court Registration Plan No. 3263B. These parcels are combined to form a lot with an area of 19,489 square feet. This lot is bounded to the West,North and East by three private ways, Booth Street, Wallace Street and Saville Street, respectively. Saville and Wallace Streets are currently unconstructed, "paper" streets. Booth Street has been partially constructed, ending in a cul-de-sac at the Northwest corner of the Zoning Board of Appeals October 11, 1999 Page 2 Applicants' property. At present, the Applicants' lot has no constructed frontage, it has paper street frontage of nearly 400 feet. Mr. and Mrs. Juba wish to construct a single family home on their property. Access to the home would be provided by a driveway extending from the existing Booth Street cul-de-sac. The proposed footprint of the home is 54' x 28' and, exceeds current setback requirements in the R-3 District in which it is located. The lot is 5,511 square feet short of the current minimum lot area requirement. However, as discussed below, the lot is "grandfathered"under Section 6 of the Massachusetts Zoning Act, as an isolated residential lot, and is subject to a 5,000 square foot minimum lot area requirement. Similarly, the current frontage requirement is 125 feet, however, the lot is subject to a 50' minimum frontage requirement as a grandfathered lot. Mr. and Mrs. Juba have petitioned for Variances from both frontage and lot area requirements. However, if the Board confirms the grandfathered status of the lot, only a frontage Variance would be necessary. GRANDFATHERED STATUS The Massachusetts Zoning Act, G.L. c.40A, §6,provides in part that, Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law 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. Id. In short, if a residential lot was created prior to the adoption of zoning and has been held in separate ownership since the adoption of zoning, the lot is "grandfathered" and 5,000 square feet area and 50 feet frontage requirements apply. Mr. and Mrs. Juba's property is such a lot. That lot was created as follows, 1. On July 8, 1913, Jacob W. Wilbur was the owner of a large parcel of land which included the Juba property. (See Transfer Certificate of Title No. 385). Mr. Wilbur divided his land into numerous lots and private ways. (See Registration Plan Nos. 3253A, 3263B). 2. By a Deed dated June 1, 1916, Mr. Wilbur conveyed lots 113-115 (the Western portion of the Juba property) to Rose Kennedy. (See Deed at Registration Book 4, Page 425). L Zoning Board of Appeals October 11, 1999 Page 3 3. By a Deed dated December 20, 1916, Mr. Wilbur conveyed lots 66-68 (the Eastern portion of the Juba property) to Jacob W. Wilbur, Inc. (See Deed at Registration Book 4, Page 465). 4. By a Deed dated September 1, 1916,Mr. Wilbur conveyed the only lots abutting the Juba property, lot nos. 69 & 112, to Giovanni & Minnegella Parrillo. (See Deed at Registration Book 4,Page 593). The remainder of the Juba property abuts Booth, Wallace and Saville Streets. 5. Mr. and Mrs. Juba now own Lots 66-68 and 113-115. (See Transfer Certificate of Title No. 8696). Thus, the Juba property has been held in separate, isolated ownership since 1916, long before zoning was first adopted in North Andover in 1945. Accordingly, the minimum requirements set forth in G.L. c.40A, §6, apply, 5,000 square feet for minimum area and 50 feet for frontage. I am willing to provide any further information or documentation the Board requests concerning this issue. Thank you for your time and consideration. Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Borenstein DFB—klb PC: Robert Nicetta, Building Commissioner, (by hand, w/enclosures) F:\NEW-DOCSVohnson-Bill\WALLACE\BOA-Ltr3.doc LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover,Massachusetts 01810 North Andover Board of Appeals �n f Attn: Mary t5�11 U 27 Charles Street North Andover, MA G 1845 OCT 2 T BUILDING DEPkRTMEN i e ' Received by Town Clerk: *RECEIVEO JOYCE BRADSHAW TOWN CLERK TOWN OF NORTH ANDOVER MASSACHUSETTSNORTH ANDOVER BOARD OF APPEALS D�EEQQ APPLICATION FOR RELIEF FROM THE ZONING OR DAc;E`2 .A 8� 4; ' Applicant Stephen & Cheryl Juba Address h om�T�� c► rS le/09- V. �� 1119- Tel. No.�g7� Toes' f2 L es �.. 1. Applicant is hereby made: a) For a variance from the requirements of Section 7 Parag 14-y, �-Z 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 —$' &Qfln Street. b) Premises affected area property with frontage on the ` 'North ( ) South ( ) East ( ) West ( ) side of Ev.s+of F�tV% .70:/��1 G �ti(g P 7 YYe5j�f Sav;11P. Street. C) Premises affected are in Zoning District 7-3 and the premises affected have an area of 10, , y V 54� square feet and frontage of FwtL% 54. +Cfeet. #.5ee vAri4kce Wo,-KSI ¢av' 444ched 3. Ownership: a) Name and address of owner (if joint ownership, give all names): Stephen M Juba. III and Cheryl A Tuba. TT Date of Purchase 3/27/81 Previous Owner hiers of Rose Kennedy b) 1. If applicant is not owner, check his/her interest in premises: Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required 5 of 8 4. Site of proposed building: Z$ front; 5 4 feet deep; Height Z fl I•�s �-�►c. stories; feet. a) Approximate date of erection as soon as possible b) Occupancy or use of each floor: residential C) Type of construction canna frame 5. Has there been a previous appeal, under zoning, on these premises? When 6. Description of relief sought on this petition �releab�e see requirement Oared QMA MgL4Y-emeV%+ 7. Deed recorded in the Registry of Deeds in Book No. Page Land Court Certificate No. 8696 Book Page 389 The principal points upon which I base my application are as follows: (must be stated in detail) Without the requested relief, the premises would be unbuildable, thus creating a substantial hardship. The non-conformity results from unique conditions related to the shape, soils and topography of the lot. Specifically, the shape, soils and topography of the lot. Specifically, the shape of the lot, relation to unconstructed streets and wetlands have created a unique frontage non-conformity. Variance will not substantially harm the public good or substantially derogate from the Bylaw's purpose. The premises is otherwise in excess of dimensional requirements and the available frontage is adequate for the purposes of the Bylaw. I agree to pay the filing fee, advertising in newspaper. and incidental expenses* Sig tore o Petitioner (s) 6 of 8 y � � r i WORK SHEET DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: TZ—3 Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension S Sll s� Area" 000-,.q Ick, y,99 5� ' The Premises has frontage on unconstructed "paper" sheets as follows: Saville Street 104.89 If those portions of the Premises within Street Frontage Wallace Street 200.56 Wallace Street are included within the Booth Street 90.00 calculation the premises has Y.S.6 feet of frontage on the constructed portion of Booth grPPt gtharwiss, the—preftlseg has Re exist ag— frontage. Front Setback (s) 30 hah e, Side Setback (s) loo �z f. r>oh e Rear Setback (s) 3 v ?J } �_�� 7 of8 F TOWN OF NORTH ANDOVER Zoning Board of Appeals 27 Charles strea t Town of North Andover,Zoning Board of Appeals North Ando��u, ^ � APPLICANTS PROPERTY: list by map, parcel, name and address (PLEASE PRINT CLEARLY, USE BLACK INK) MAP PARCEL NAME ADDRESS quaC> l S�l[i S}ep�,eh �Cheryl �...boq S+ee'i ABUTTERS PROPERTY: list by map, parcel, name and address (PLEASE PRINT CLEARLY, USE BLACK INK) MAP PARCEL NAME ADDRESS 9 S1 Jost-Pk-, � �v9�-roil � `�0- evx `63S e. o Sw�;il�, Scef ►.,,s Lo�l ✓Vt C��`6S 3 �� SbSePk E. z. T �ee o42Sp..;l(eS-�"eet n„s iA r>i�53 Av,+I oh,.1� ` zo6n 'E. Xbk/IKC� ZCnG �'ke, P-j-'C'd LI11 res XHdc%e , MA CUl$(0 l�� `� Sh�rvt, M ►�}�►21-h Il 5v..tl�r�d�e C-Vclo- 1 clokae YO - 0(Y10 C`c�y1 Johh M g".1tni"44j A.dVV, ' C/o T•nx ()j7p.Ce tJ Z G 3- �Gsl a izo "AAin s -. v tA4A OI Srt'r►N,�.�� . c��l�� 3o a;sho�OsL�e 9$ �. 3 S Clnarrl[5 W. W1c L`�,v.v+l �{z we5 l y Sf'. Lo)-nkq cel. me-1 I lgtd ver w1 A C) 4 L4ZJRri e I E t- e,�he.� A&*,►-m St . `4 h. (l�5 er,�e oLw LO4 GMS C 1 Jo1,h H. Cw,y-,-OLI , rwsfee tSo< <''''�� 5� ,51,+e IS o-�is $1Y't2 �h^rne2T�u `�ier..l�s� ✓vlq Ol � THIS I RMATION WAS OBTAINED AT THE ASSESSOR'S OFFICE AND CERTIFIED BY THE ASS SSO 'S OFFIC BY: DATE: i SI ATURE,ASS OR,T N OF NORTH ANDOVER lddd 2Eb S V 8' 0 l Required list of panties of interest Page one �of / N081H Vr.DOAEK iou crEW1 10ACE 88V02HVM BECEIAE0 LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover,Massachusetts 01810-3706 (978)475-4488 Telecopier: (978)475-6703 Paralegals MARK B. JOHNSON (MA,NH,DC) KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEEHAN DONALD F. BORENSTEIN (MA,ME) LIANNE CRISTALDI CYNTHIA R. GLACY (MA,NY) September 10, 1999 North Andover Board of Appeals Attn: Mary 27 Charles Street North Andover, MA 01845 Re: Applicant: Stephen& Cheryl Juba East of Booth, South of Wallace& West of Saville Streets Dear Mary: Enclosed please find the following regarding the above-captioned action: 1. Two (2) sets of address labels (18 total); 2. Two (2) sets of stamps (18 total); and 3. A check in the amount of$4.62. Should you have any questions on the enclosed, please feel free to contact me. Very truly yours, LAW OFFICE OF MARK B. JOHNSON q2a.4� Karen L. Bussell Legal Assistant KLB—i Enclosures F:\NEW-DOCS\Johnson-Bill\WALLACE\BOA-Ltrl.doc • pC � QW SEP 14 1999 11... � The Board of Appeals held a regular meeting on Tuesday evening March 14, 199F in 6e i 1. Senior Citizen' Center behind Town Hall starting at 7:30 P.M. The following membGA\R D OF 4:10P were present and voting: William Sullivan, Chairman, Walter Soule, Acting Chairman, Joseph Faris, Robert Ford, and Scott Karpinski, Acting Clerk. Walter Soule explained the procedures of the meeting. Discussed the possibility of a hearing being taken under advisement and discussed at the end of the night. MINUTES Motion by Joe Faris to accept the minutes of the February 14, 1995 hearing as amended, seconded by Scott Karpinski. Vote: unanimous. Voting in favor: William Sullivan, Joseph Faris, Scott Karpinski, Walter Soule and Robert Ford. DISCUSSION: Application Process The Board has been working on refining the application process to simplify the procedures. Walter Soule does not want the applicant to get lost in the process. Mr. Soule suggested that an additional page be added for the applicant to clearly define what he/she is requesting. The applicant must state specifically how much relief is being requested. Scott Karpinski feels that the requirement for the size of the plan should be 8.5 by 11 or larger. William Sullivan suggested that the applicant,should be given two different sizes to choose from: 11" X 17" or 17" X 22". Scott Karpinski and Bob Nicetta agree that on buiding plans one foot should equal a quarter inch. Joe Faris suggested that a detailed description of how to acquire a certified abutters list be included. Motion by Joe Faris to Continue the discussion to the April 11, 1995 meeting, seconded by Scott Karpinski. Vote: unanimous. Voting in favor: Walter Soule, Scott Karpinski, William Sullivan, Robert Ford and Joseph Faris. Continued S & S Builders Booth Street Party aggrieved due to the decision of the building inspector Scott Karpinski read the letter dated February 17, 1995 from Ralph Joyce requesting to withdraw the application without prejudice. Walter Soule questioned if anyone was present representing Ralph Joyce, S & S Builders or Mr. Juba. Motion by Scott Karpinksi to Accept the letter of withdrawal without prejudice dated February 17, 1995, seconded by Joe Faris. Vote: unanimous. Voting in favor: Walter Soule, William Sullivan, Joseph Faris, Robert Ford and Scott Karpinski. a extend the fence. Motion by Scott Karprinski to grant the variance of constructing a wooden shed 5 ft from the lot line, with the condition to extend the fence as requested by Mr. Wilkinson in the letter dated January 4 , 1995, seconded by Ray Vivenzio. Unanimous. Voting in favor: Mr. Soule, Mr. Vivenzio, Mr. Pallone, Mr. Karpinski, and Mr. Faris. S & S Builders Lots 66, 67, 68, 113, 114, & 115 Booth Street Party Aggrieved due to the building permit denial upon ruling of inadequate access Ray Vivenzio read the legal notice for the opening of the public hearing. Ralph Joyce present representing the applicant, S & S builders. Principle behind S & S builders is Fred Saracino who has a contract outstanding with the present owner of the lot, Steve Juba. This area is an old JJ Wilber subdivision which was abandoned in 1983 when it went bankrupt. Area is set up with small lots as traditional in the early eighties. Random haphazard scheme of development. Historically, one would own six or seven of these lots and build a house. They were developed one house at a time. There was no coordinated conventional subdivision development as is today. This particular area before the Board falls into this category. The new road was constructed by S & S builders at the top of Saville St. . The road' was .fully installed last summer. Wallace and Booth Street as shown on the plans are paper streets that were laid out in the subdivision in 1903 , but were never put on the ground. The right to pass and repass exists on all of those ways. The constructed cul-de-sac meets all modern day standards. When the representative proposed to extend the driveway off of the cul-de- sac to access the 6 lot area shown of the plan, the building inspector raised the question of adequate access to the proposed house lot because access would cross a paper street. The representative feels adequate access is a subjective determination and must be decided by a site visit by the Building Inspector. Ralph Joyce claimed the Building Inspector declined to make that choice. Ralph Joyce believes that this situation is a policy shift in the Planning and Community Development Department. Believes that Bob has deferred the matter to ZBA to give abutters a chance to be heard. Representative 1-s opposition is that the lot is fully accessible by all modern day standards because the road leading to the lot is under full present day specifications and on the ground. Nature of the petition is as a party aggrieved by the decision of the building inspector to deny acces to this lot. Ray Vivenzio read the later addressed to Ralph Joyce by Bob Nicetta, dated November 30, 1994 . Mr. Nicetta stated that thp- ESV E D SEP 13 1999 Ri in niNG DEPT. no proof of Mr. Joyce' s client having legal documents proving ownership to the middle of the "way" . Therefore adequate access is not provided to the lot in question. Walter Soule asked if anyone in the public was in favor or opposed to this petition. John Carroll asked to look at the plan. Ray Vivenzio asked if this could be submitted to Town Council as to reach a decsion of whether the applicant owns to the middle of the way. Adequate access on paper streets must allow for emergency vehicles, plows, trash pick-up. On November 7, 1994 Town Council came and reviewed the plan. The applicant presented that 50% of both paper streets belongs to the property line of the lot presented before the Board. Bob wrote a letter questioning the legality that half of the street belongs to the property owner. If this is the case why was the property line not moved to the center of the paper street. No proper access or ownership proven therefore the proposal was denied. If the road is not developed there is no proper access or frontage to the lot. Ralph Joyce claimed Mr. Nicetta was confused with the issue of what constitutes access. Mr. Joyce claims that every homeowner on the street and in the town have the right to pass over Booth Street. He claims the fee interest in the ownership of the street is irrelevant. The cul-de-sac crosses over the right of way and the driveway will come off 10 -12 ft from the cul-de-sac. Mr. Joyce suggested deferring action on the meeting tonight and have the Board conduct a site visit to determine if their is adequate access from the cul-de-sac. He claims a fire truck can readily access the property from the end of the cul-de-sac. Bob Nicetta is simply arguing that there is no frontage to the lot. Mr. John Carrrol owns property beyond the applicants lot. MR. Joyce thinks it is reasonable for the Board to promote the development of the paper streets to serve the potential development of future lots in the area. Mr. Joyce noted that the lot is legally existing with frontage on existing ways even though the paper streets are not developed. The right to utilize the property exists. Walter Soule asked if anyone was in favor or opposed to the idea. John Carroll, an abutter, informed the Board that he owns an 18 , 000SF lot beyond the applicants property. Mr. Carrol q �EIV E D SEP 13 1999 1 7 1:21111 ntnir� nr_�?- access to his lot and believes that an unfair burden would be placed on him because he would have to bring the road by the proposed lot to access his property. Mr. Joyce spoke of how S & S builders bore the whole cost of extending the road from the top of the street to the cul-de-sac. The road is now town maintained. The road was extended to serve the lots they owned. The paved area is ten feet short of the proposed lot. John Carrol assumes that he would have to develop the road to access his property. Motion by Ray Vivenzio to take the proposal under advisement, seconded by John Pallone. Unanimous. Voting in favor: Mr. Soule, Mr. Vivenzio, Mr. Pallone, Mr. Karpinski, and Mr. Faris. T.J O'Reilly, Trustee Evcon Realty Trust 7 Hodges Street Special Permit Relief of Board's Decision Ralph Joyce present representing applicant. Ray Vivenzio read the Legal Notice. It was brought to the attention of the Board that the abutter' s list was not certified. The Board has dealt with this issue in the past. Ralph Joyce claims all the Notices have been sent out. Bill Sullivan suggests that the Hearing be continued because they do not want to deal with problems they have faced in the past. Motion by John Pallone to continue to the next meeting so that proper certification can be submitted, seconded by Joe Faris. Unanimous. Voting in favor: Mr. Soule, Mr. Vivenzio, Mr. Pallone, Mr. Karpinski, and Mr. Faris. Sebastian C. DiSalvo, Trustee DiSalvo Realty Trust 109 Sutton Street Special Permit Extend Legal Non-comforming Use Ralph Joyce present representing applicant. Lack of certification of the abutters list led to the recommendation to continue. Motion by John Pallone to continue to the next meeting, seconded by Joe Faris. Unanimous. Voting in favor: Mr. Soule, Mr. Vivenzio, Mr. Pallone, Mr. Karpinski, and Mr. Faris. Tenney Realty Trust Paul DiSalvo Trustee 400 Winter Street Special Permit RECEIVED SEP 1. 2 1999 ' ! TOWN OF NORTH ANDOVEI MASSACHUSETTS .,do o 9 + r • ?, s 9 t1" SSACHUSE Any appeal shall be filed within (20) days after the NOTICE O F DECISION date of filing of this Notice In the Office of the Town Date, September 13, 1994 Clerk. August 16, 1994 Date of Hearing September 6: 1994 Petition of Daniel Tenney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises affected . . . . Booth ,Street Referring to the above petition for a special permit from the requirements of the North Andover Zoning Bylaw Section 7.2, Para, 1 . s0 as to pemdt allow .access .to .the .lot .gther ,than ,quer ,the .l.e(3al. ,frgRt,agP_ . .4n prope.r. lty .ocated. . . . . . a.t. 4.4. Booth. . . . . et. . . . . . . . . . . . . . . . . . • . . . . . . . . . . • . _ . . . . . . . . . . . . . Stre. . After a public hearing given on the above date, the Planning Board voted CONDITIONALLY to .APPROVE . . . . . . . .the . .SPECIAL PERMIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . based upon the following conditions : CC: Director of Public Works Signed Building Inspector Conservation Administrator Richard A. Nardella Chairman Health Sanitarian . • . • . . . . . . . . . . . " ' . " . . • • • . . . Assessors Joseph, Mahoney1 Vice.Cha irmaji, , , Police Chief . . . . Fire Chief Richard Rowen, ,Clerk Applicant ECEI45\�ED . . Engineer John Simons File . . . . . . . . . . . . . . . Interested Parties SEP 1 1999 Alison Lescarbeau, Associate Member nin� BUILDING- 7 -_.. ., �. lan Board S N�ATM KAREN H.P.NELSON ��' m Town of 120 Main Street, 01845 Director BUILDING NORTH ANDOVER (508) 682-6483 CONSERVATION 'Ss^°��'`s DIVISION OF HEALTH PLANNING PLANNING & COMMUNITY DEVELOPMENT September 12 , 1994 Ms. Joyce Bradshaw, Town Clerk 120 Main Street North Andover, MA 018.45 Re: Special Permit - Access 44 Booth Street Dear Ms. Bradshaw: The North Andover Planning Board held a public hearing on August 16, 1994 in the Senior Center behind the Town Building upon the application of Daniel Tenney, 39 Summit Street, North Andover, MA, requesting a special permit under Section 7 . 2 Paragraph 1 of the North Andover Zoning Bylaw. The, legal notice was properly advertised in the North Andover Citizen on July 27 and August 3 , 1994 and all parties of interest were duly notified. The following members were present: Richard Nardella, Chairman, Joseph Mahoney, Vice Chairman, Richard Rowen, Clerk, John Simons and Alison Lescarbeau, Associate Member. The petitioner was requesting a special permit under Section 7 .2 . 1 of the North Andover Zoning Bylaw to allow access to a lot other than over the legal frontage, located at 44 Booth Street from Adrian Street. Mr. Rowen read the legal notice to open the public hearing. Mr. John Simons arrived at 9 : 20 p.m. Mr. Phil Christiansen, Engineer, and Mr. & Mrs Tenney were present. The applicant is requesting access other than over the legal frontage lot. Legal frontage to the lot is on Booth Street. They would like to access the home from Adrian Street Mr. Nardella questioned the need for permission in writing to gain access. Adrian Street is unimproved right of way with rights to pass and repass - private ways open to the public - municipality does not have the requirement to maintain it. Mr. Mahoney would like roadways discussed at a workshop. Page 2 : 44 Booth Street Mr. Rowen read a letter from D.P.W. . Adrian Street is not up to Town standards, therefore no town services will be provided on Adrian Street. Mr. Nardella asked for a deed restriction on the property. Attorney Ralph Joyce suggested that a restriction be placed in a condition of the special permit. On a motion by Mr. Mahoney, seconded by Mr. Rowen, the Board closed the public hearing. Decision to be discussed on September 6, 1994 . Mr. Rowen told staff to put in the requirement of a sprinkler system. On September 6, 1994 the Planning board held a regular meeting. The following members were present: Richard Nardella, Chairman, Joseph Mahoney, Vice Chairman, Richard Rowen, Clerk, John Simons and Alison Lescarbeau, Associate Member. Discussion of appropriate address for Booth Street. Fire safety issue with the address. Ms. Colwell to check with D. P.W. and Fire Department. Zero bond. On a motion by Mr. Mahoney, seconded by Ms. Lescarbeau, the Board voted unanimously to approve the access other than over the legal frontage for 44 Booth Street. Attached are those conditions voted by the Planning Board. Sincerely, Planning Board Richar A. Nardella, Chairman attachment cc: Director of Public Works Building Inspector Conservation Health Sanitarian Assessors Police Chief Fire Chief Applicant Engineer File 44 Booth Street Special Permit Approval - Access other than over legal frontage The Planning Board makes the following findings regarding the application of Daniel Tenney, 39 Summit Street, North Andover, MA 01845, dated July 22 , 1994 , requesting a Special Permit under Section 7.2. 1 of the North Andover Zoning Bylaw to allow access to the lot other than over the legal frontage. This decision hereby allows the applicant to access the property located at 44 Booth Street from Adrian Street as shown on the plan referenced in Condition 1. FINDINGS OF FACT: The Planning Board finds that due to the steep slopes that are present on the site along the legal frontage located on Booth Street, access to the lot from Adrian Street is appropriate and will minimize the amount of disturbance on the site. The Planning Board makes the following findings as required by Section 10. 31 of the Zoning Bylaw: 1. The - specific location of the driveway is appropriate due to the steep slopes along the legal frontage on Booth Street; 2 . The design and location will not adversely affect the neighborhood 'as the access to the lot will be from a paper street adjacent to another home; 3 . There will be no nuisance or serious hazard to vehicles or pedestrians; 4. Adequate standards have been placed on the design which will meet public health and safety concerns. 5. The purpose and intent of the regulations contained in the Zoning Bylaw are met with the Special Permit Application before us. Upon reaching the above findings, the Planning Board approves this Special Permit based upon the following conditions: SPECIAL CONDITIONS: 1. This decision must be filed with the North Essex Registry of Deeds. Included as part of this decision is- the following information: a. Plan titled: Site Development Plan of Land Located in North Andover, Mass Prepared For: Daniel Tenney Scale: 1" = 40 ' Date: June 1, 1994 ; Revised: July 6, 1994, July 20, 1994 Any changes made to these plans must be approved by the Town Planner. Any changes deemed substantial by the Town Planner will require a public hearing and modification by the Planning Board. 2 . The Planning Board has determined that Adrian Street does not meet minimum requirements for width, grade and construction and is therefore considered a private driveway. As such Town services such as recycling, trash, and snow removal will not be provided on Adrian Street until such time as Adrian Street is upgraded to meet Town Standards and is accepted as a public way. Town services will be provided to this lot on Wesley Street at the point where Adrian Street intersects with Wesley Street. 3 . Prior to any work on site: a. The location of the driveway must be marked in the and reviewed by the Town Planner. b. No performance guarantee will be required for this ,project. C. This site shall have received all necessary permits and approvals from the North Andover Board of Health, Conservation Commission, and the Department of Public Works. d. A detailed construction schedule must be submitted to the Planning Office. e. A copy of the recorded decision must be submitted to the Planning Office. f. All erosion control measures must be in place and reviewed by the Town Planner. 4 . Prior to FORM U verification (Building Permit issuance) being for the proposed dwellings, a. This site shall have received all necessary permits and approvals from the North Andover Board of Health, Conservation Commission, and the Division of Public Works and be in compliance with all other Permits and Approvals issued for this site. b. Easements and agreements pertaining to access and maintenance for the driveway must be recorded with the Registry of Deeds. 5. Prior to a Certificate of Occupancy being issued for either dwelling, a. The proposed dwellings must have residential fire sprinkler systems installed in accordance with the provisions of Standard 13D, N. F.P.A. . b. All slopes must be stabilized and reviewed by the Town Planner. 6. Prior to the release of the performance guarantee: a. The applicant shall submit a certified copy of an as- built plan which show all construction, including sewer lines, and other pertinent site features. This as- built shall be submitted to the Town Planner for approval and shall be stamped by either a Registered Professional Land Surveyor or Practicing Engineer. 7. The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. 8. Gas, Telephone, Cable and Electric utilities shall be installed as specified by the respective utility companies. 9 . All catch basins shall be protected and maintained with hay bales to prevent siltation into the drain lines during construction. 10. No open burning shall be done except as is permitted during burning season under the Fire Department regulations. 11. No underground fuel storage shall be installed except as may be allowed by Town Regulations. 12 . The provisions of this conditional approval shall apply to and be binding upon the applicant, its employees and all successors and assigns in interest or control. 13 . This -permit shall be deemed to have lapsed after a two (2) year period from the date on which the Special Permit was granted unless substantial use or construction has commenced. Therefore the permit will lapse on SE'r 13 , 1996. cc: Director of Public Works Building Inspector, Health Agent Assessor Conservation Administrator Police Chief Fire Chief Applicant Engineer File 44Booth.drive PRINT CLEARLY AND USE BLACK INK. R64,eived by Town Clerk: TOWN OF NORTH ANDOVER, MASSACHUSETTS ..r' - BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE plant S & S Builders Inc. Address c/o Ralph R. Joyce, Esq. Tei. No. Street NJortb Andover, MA 01845 1. Application is hereby made: 508-685-4555 Paragraph and Table ef the Bylaw . c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2 . a) Premises affected are land numberedLot&., E70 6R., Ill., 114, 115 B=+-b Street. b) Premises' affected are property with frontage on the North ( ) South ( ) East �X) West ( ) side of Rmth Street. Street, . C) Premises affected are in Zoning District R-1 and the premises affected have an area of IR -nn� n+ _ square feet and frontage of 9n' feet. 3 . Ownership: a) Name and address of owner (if joint ownership, give all names) : _�t--PY�han N Lha & Cltarl�z A- Juhn Date of Purchase 1 qs2 Previous Owner „nknaan b) 1. If applicant is not owner, check his/her interest in the premises: XX__ Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4 . Size of proposed building: 28' front; dn+ feet deep; Height 2 stories; 25 feet. a) Approximate date of erection: ,rst,sf-t-; ECEIVED SEP ]. 1999 BUILDING DEPT. r v " b) Occupancy or use of each floor: single family residential 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 Wilding permit denied upon ruling of inadequate access 7. Deed recorded in the Registry of Deeds in Beek Page _ Land Court Certificate No. 8696 Beek -Page The principal points upon which I base my application are as follows: (must be stated in detail) Building Inspector denied building permit by letter of November 30. 1994 based on ownership interest in the way rather than upon a determination of adequate access. I agree to pay the filing fee, adv e ising in newspaper, and incidental expenses* ignatur of O titioner(s) Every application for action by the Board shall be made on a form approved by the Board. These forms shall be furnished by the Clerk upon request. Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such time as it is made on the official application form. All information called for by the form shall be furnished by the applicant in the manner therein prescribed. Every application shall be submitted with a list of "Parties of Interest" which list shall include the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet (3001 ) of the property line of the petitioner as they appear on the most recent applicable tax list, notwithstanding that the land of any such owner is located in another city or town, the Planning Board of the city or town, and the Planning Board of every abutting city or town_ *Every application shall be submitted with an application charge cost in the amount of $ 5. 00. In addition, the petitioner shall be responsible for any and all costs involved in bringing the petition before the Board. Such costs shall include mailing and publication, but are not necessarily limited to these. Every application shall be submitted with a plan of land approved by the Board. No petition will be brought before the Board unless said plan has been submitted. Copies of the Board's requirements regarding plans are attached hereto or are available from the Board of Appeals upon request. I � " r PRINT CLEARLY OR TYPE USING BLACK INR. IF MORE THAN 20 NAMES PROVIDE 2 SETS LABELS. " ZBA. Premises to be affected: Lots 66, 67, 68, 113, 114 & 115 Booth Street LIST OF PARTIES OF INTEREST SUBJECT PROPERTY MAP (PARCEL SLOT INAME ADDRESS 98D Stephen M. & cheiyl A. Juba 1 55 S-l-,len Street, No. Andov ABUTTERS ,MAP iPARCEL (LOT fNAME (ADDRESS I i Ip I lJose h E. Carroll Tr. jLwell, MA 01853 98D j 13 j Kenneth J. Ahearn & Co. , Inc 11 Southridge Circle Arriover, MA 01810 98D 3 I Ptl i I Andover MA 0181Q D 126 i IJohn J. Hyland, Adm. 198 Abbot Street i ILawrence, MA 01843 98D 125 I Samuel & I tious Cataldo 130 piSIOD T IL field, MA 01940 I98C 31 i I ySuite 15 j I John H. Carroll i 98C 145 ; (Gaspar J. & Ra paella Balsanol8 Adrian Street i I (North Andover, MA 01845 ! 98D I I 1 5 I• j I North Andover, MA I a I i 1 ` I I I i I j ► I I I i I i I i i I i ! , KAREN H.P. NELSON r �= Town of 120 Main Street, 01845 L�recrur NORTH BUILDING , J (508) 682 6483 ANDOVER CONSERVATION °` DIVISION OF HEALTH PLAINT-LNG PLANNING & COMMUNITY DEVELOPMENT November 30, 1994 Ralph R. Joyce, Esq. 95 Main Street North Andover, MA Re: Juba to S & S Builders, Inc. Booth Street Property Dear Mr. Joyce: After reviewing information included in your letters of September 27 and November 7, 1994, there is still no legal documentation before me that attests to your client' s ownership . to the middle of { the "way". Therefore, in my opinion, he does not have adequate access to the lot in question. On this basis and under the existing conditions, I would not be able to issue a Building Permit. Yours truly, D. Robert Nicetta, Building Inspector DRN:gb c/Kathleen Bradley Colwell Town of Norah Andover r NORTH ots ' do Y nvm(V nF ` AND SERVICES ° � i k ✓ • 09 . ..., cn 01845 `°Q•rF° °"y�y WILLIAM J. SCOTT n _ c �9SSACHUS Director r J" (978)688-9531 Fax(978)688-9542 VIP r?1Ar �z. n TO: eyS TCr'V FAX Number: G 70 3 FROM: �Ly� Town of North Andover Zoning Board of Appeals FAX: 978-688-9542 PHONE: 978-688-9541 DATE: SUBJECT: P,1 -41 /4T`dd Total number of pages: 02 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. MI/fax 1)A � Gv_� • A- 7"7" BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 F 1 Town of North AndoverN ORTH ' pFst�eo "ti0 r OMC17 OF COMMUNITY DEVELOP!AENT AND SERVICES t Y 27 Charles Street North Andover, Massachusetts 01845 WILLIAM J. SCOTT \ SSACHUS� Director j (978)688-9531 Fax (978)688-9542 FAX Transmission To: rlr 680 R s T� 'Al FAX Number: 0/7 — G 103 FROM: Town of North Andover Zoning Board of Appeals FAX: 978-688-9542 PHONE: 978-688-9541 DATE: 9-1.3—f 9 SUBJECT: Z0,141 /f01.� Total number of pages: 02 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 %I(A azz A. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 .. Ot S,Sao a'1,1,Q F y SS^CNOSe NORTH ANDOVER OFFICE OF THE ZONING BOARD OF APPEALS 27 CHARLES S T RE—ET NOR11-1 ANDOVER,MASSACHUSE T T•S 018,5 FAX(978) 688-954-2 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 12th day of October 1999, at 7.30PM to all parties interested in the appeal of Stephen & Cheryl Juba, 555 Salem St., for premises at: Booth Street, North Andover. Petitioner is requesting a Variance from the requirements of Section 7 Paragraph 7.1 & 7.2 of Table 2, for relief of lot area and street frontage in order construct a single family residence. Said premises affected is land with frontage on the East side Booth Street which is in the R-3 Zoning District. Plans are available for review at the office of the Building Dept., 27 Charles Street, North Andover, MA Monday through Thursday from the hours of 9:OOAM to 1:OOPM. By order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 9/28/99 & 10/5/99. MUlegalnotice/8 W LL CM— xZCONco- QCJLoNr N. C > 0O>N � O 0)r` 6C 8L�NQ>ro 6 .� _O N£C CC W C " . � 0a •0Z ? in <C:24) o m � ( o a Z ° a:3 CU (Nat)QOp0'0NtCb 0-2 5'1 ai Z WmQvov� � c ` a ` r. o - Q�L -2cc Z o a) E c� L _Utemya ° yc%' roNay dLLZa ro 'rnmma-Znorot0(V t.o � a) m og � �aUQ °' mm� 2o � oi2ro�iNcTSroc ro"p -C Q)pyM0 -0 oY ,Z N r,� U c o d Q)Nvn.2. mcom CU ZQ) Z 3 NZ LL 9W Z1roQO�N N�NC QN C~N��UJro NUN if N"g NSC �,rO,m I p arm 6)cnv)a)Q 2�•°o`ro`o� !)w 30 °?miq�2 o w0 30-.i'2D OF -?') �-LS 688-95,1 BCILDI\GS 633-95-45 CONSERVATION 683-9530 n.EA-LTH 683-95-4U PL NNTN''G oS3-9:3: NOV-08-19yU MON 02.:60 PH N;B. JOHNLUt4 FAX i~U, yIdUlbbluj F. u1 LAW OFFICE OF I iU i � 1� ,U MARK B. JOHNSON NOV 9 1q9y 12 Chestnut Strict Andover,Massachusetts 0 18 10-37 (978)475-4488 �y TeIccopier: (97g)475-6703 MARK n. 101•INSON (MA,NIL DC) I'aruicFpls LINDA A. O'(7ONNW.L (MA,NfI,RI) KATIIKYN M.MORIN tx)NALD F. DORr:NSTLIN (MA.ME) JI••AN A.S1ICEHAN CWfIIIA R. GLACY (MA,NY) I IANNI:CRISTA LD1 Date: // 6? FACSIMILE TRANSMISSION COVER SII.EFT To: 6 2 Rc: Receiving Facsimile Number: 74f From: Mark B. Johnson Es uirc Sending Facsimile Number: 978 475-6703 Number of Pages being transmitted (including this cover sheet): Message: This telecopy is attonley-client privileged and contains coi:fdential h+fOrnlatiOtt illten(IC'(1 Only for the person(s) named above.. Any other distribution, copying yr disclosure is strictly prohibited. if you have received this telecopy in error, Please notify t!s immediately by telephone, and return the original transrrtissio), to us by mail without l!1(71[i11R a copy, If problems in transmission are encountered,please contact sender at(978)475-4438. NUV-U8-IUU9 MON 02:dU Pel rl, B, ,1UNNUUN FAX NUS -9784!56703 U2 11 :U1A North Andover Com. Oev, gpg 688 9542 oork e' •- _ tia Past-Ir Fax Note 7671 oacey� i Ta ago Phone/ 9nGw 11 Gy�•y s�� -NORTIT ANDC Fara 75:—6-7,1-3— Fu c�rFTCE or TIS 7.ONNC BOARD OF APPC_-t,U , - 'z�P��S Si:•--- ��t'_l—. +T.�: ��,`�S�S�I, -��i .lis• Date: Town Of North Andover Zoning Board of Appeals i NOV g �ggg 27 Charles Street ILI"� v North Andover, MA 01845 e� _,- I SS-Jf[� E"r r3�r; f� a phone#978-688-9541 '- nw` ; fax#978-688-9542 Please be advised that I have agreed to waive the time canstraintfor the Zoning Board of Appeals to make a decision regarding the granting of a VARIANCE for property located at: STREET: ��.'.l.t s TOWN: , oma ✓ems' NAME OF PETITIONER: S Mrs. �{e �.,¢� 60, Signed: �! Tf � "LXY t-4 ie�er (or petitioner's representative) O X '' j 10.4 Variance and Appeals . Aynut{Ovc.r�vti;I� p{sSIO 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 Eylaw will involve suWantial hardship,financial or otherwise,to the petitioner or applicant, and thst desirable relief maybe granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw. 'Nnrlanco NOV-08-1999 MON 02:50 PM M. 8, JOHNSON FAX NO, 9784756-103 P. 03 LAW OFFICF OF JOHNSON17 MARK B. . 12 Chestnut Street Andover,Massachusetts 01810.3706 `_ (978)4754488 - Tciccupicr. (978)475-6703 ----. MARK II. )()IINSON (MA,N11,DC) LINDA A. O'CONNELL (MA,NH,RI) KAI'lUYN M.MORIN DONALD F. BORENS'rFIN (MA,ML) JEAN A.SIII:FTIAN CYN'I'l-11A It. GLAC:Y (MA,NY) LIANNE C1t15TALDI November 8, 1999 By Facsimile(without enclosures) & by First Class Mail Zoning Board of Appeals Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Applicant: Stephen&Cheryl Juba Property: 0 Booth Street,Map 98D,Parcel 14& 15 Grandfather Status Isolated Residential Lot Dear Members of the Zoning Board of Appeals: At the Board's October meeting, you requested additional infomlation concerning the lot's frontage. Specifically, you questioned whether the Board had the authority to grant a Variance givon the limited nature of the lot's existing frontage. I take two alternative positions on this issue. 1. Even given the limited definition of frontage under the North Andover Zoniug By-Law(excluding areas within paper streets)abe-lotdoe0 haxeRi> g on:the£existiag and-constructed-portion of BootI><StreeLj Booth Street, like ne;trly every constructed public and private way, consists of a paved street arca bordered by an un-constructed portion of the layout of the way, In nearly every instance, to proceed from a building lot to the way on which the Jot fronts,one must cross all area of land which is within the legal, surveyed dimension of the roadway that is not paved. The pavement Of both public and private ways very rarely extends out to the precise legal boundary in which it is constructed, Similarly, for this Iot, a portion Of"paper street"must be crossed to reach the constructed portion of Booth Street. however, under a reasonable interpretation of the Town Zoning By-Law, it appears that it would be appropriate,to include that portion of the constivcted section of Booth Street which is within-llicmidline..of the street.layout closest to the lot,as the lot's frontage. As NOV-08-1999 MON 02:5l ?M M. 8, JOHNSON FAX NO. 9784756/03 P. U4 Members of the Zoning Board of Appeals November 5, 1999 Page 2 a; 1 shown on the Applicant's Variance Plan, the length of that portion of 13001h Street is 45.6 feet. Thus,to satisfy the 54•root frontage required for this grandfathered lot, a Variance of 4.4 feet is still Accessary. To the extent that the Board rejects this definition of "frontage", it should be noted that the Applicant's proposal includes paving of a portion of the paper street abutting the lot within the driveway proposed on the Variance Plan. Tn the event that the Board requires pavement to actually reach the precise boundary of the lot to be included<<s frontage,the dimensions of the proposed driveway at the point that it crosses the lot's boundary should be considered such frontage. 2. Even if the Applicant's lot has no frontage,the Board is not prevented from granting a Variance from the frontage requirement. It does not appear that a lot's complete lack of frontage prevents a Zoning Board from granting a Variance from the frontage requirement,where appropriate. In at least two cases,Massachusetts Court's have treated easements or right-of-ways running between a lot and a public way as providing frontage. See Mattsap v. Davis, Massachusetts Superior Court Civil Action No. 922891, 1994 WL 879981 (1994)("The 40-foot right-of-way is the property's only frontage or access to a public way")and Gordon v. ZAril-a Board of A �ea1s of Lee,22 Mass.App.Ct. 343, 345, 494 N,E.Zd 14, 16(1986). In addition; the Appeals Court has not found that it is inappropriate for a Zoning Board to issue a frontage variance for a zero frontage lot, where the;issuance of the Variance is otherwise appropriate. Sec Guiraaossian v. Board of A--l-of Water(own,21 Mass.App.Ct. 111, 114, 485 N.E.2d 686, 688 (1985). Accordingly, even if the Board finds that this lot has no frontage, it is still within the Board's authority to grant a variance from the frontage requirement. I enclose copies of the cases cited above. I trust this colzespondcnce adequately addresses the issue posed by the Board at the last hearing. if i can provide any further information or documentation in connection with this matter, please do not hesitate to contact me. Very truly yours, LAW OFFICE OF MARK B. JOHNSON r . DFB-kib Donald F. Borenstein pc: Mr. and Mrs. Stephen Juba r:INF.W-LK)CSVohnson-Bile.Wni.LAC L'1ROA-Ltra.doe +- A or 6 � R'7"- Ltf ST 51 06- OF SRUi LLL \1 1 r 0 � • i; 1855 �i HUg TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE September 1.7 19. 87 Notice is hereby given that the Board of Appeals will give a hearing at the Town Building,North Andover,on Tuesday . . . .evening. . . . . . the . 13thday of . October. . . . . . . . . . . . . 19. 8.7, at.7:39clock, to all parties interested in the appeal of Joseph.Carr.all . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . requesting a variation of Sec.. 7.,- .Paragraph . . .of the Zoning B Law so as 7..-l. & 7.2 and Table 2 By Permit . . . . division. of. three. (3). existing.-lots.intoe-two - (2) . . . lo.ts .with. less .that current- requirements -as -to . . . area .and- frontage,- for. -single-family- lots- -in-R3 . . . zone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on the premises,located at. . .East-side. of -Booth- St -and- West .side. of .Saville. St. . . . . . . . . . . . . . . . . . . . . . . . . By Order of the Board of Appeals Frank Serio, Jr. , Chairman Publish in N. A. Citizen on Sept. 24 & Oct. 1, 1987 ' r Legal Notice Legal Notice TOWN OF NORTH ANDOVER TOWN OF NORTH ANDOVER MASSACHUSETTS MASSACHUSETTS BOARD OF APPEALS BOARD OF APPEALS NORTH Nr. UE NOTICE of E° "14, September 17,1987 f NORTH ,1 September 17,1987 � Notice is hereby given that ? y�,. G`, Notibe is hereby given that ° : p the Board of Appeals will giveo , ' p the Board of Appeals will give * r:- „ a hearing at theTown a hearing at the Town * Building, North Andover, on ' Tuesday 1 Building, North Andover, on '°,,,,,°.•`�5 y evening the 13th day '" °+.'° ��w• .'' Tuesday evening the 13th day SsgcHusES of October 1987, at 7:30 �SsAcHusEt of October 1987, at 7:30 o'clock, to all parties in o'clock, to all parties in- terested in the appeal of Joseph Carroll requesting a varia- terested in the appeal of Joseph Carroll requesting a Varia- tion of Sec.7,Paragraph 7.1&7.2 and Table 2 of the Zon- tion of Sec.7,Paragraph 7.1 &7.2 and Table 2 of the Zon- ing By law so as to permit division of three(3)existing lots ing By law so as to permit division of three(3)existing lots into two(2)lots with less than current requirements as to into two(2)lots with less than current requirements as to area and frontage, for single-family lots in R3 zone on the area and frontage,for single-family lots in R31 zone on the Premises located at East side of Booth St.and West side of premises located at East side of Booth St.and Westside of Saville St. By Order of the Board of Appeals Sanlle St. BY Order of the Board of Appeals Frank Serio,Jr.,Chairman .FrankWSerio,Jr.,Chairman Publish in North Andover Citizen September 24 and October Publish in North Andover Citizen Septembe?24 and October 1,1987 38910-1 98910-1 1,1987 Legal Notice TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS , f NORTH NOTICE O tis° , 1 �? +•� ,..,•,oti°o. . . September 17,1987 p c Noti::e is hereby given that I- a the Board of Appeals will give * ,r a hearing at the Town ► _ ; Building, North.Andover, on .:�� Tuesday evening the 13th day SSAcHUS of October 1987, at 7:30 trested in thea o'clock, to all Parties in- let Sec.7,ParaOf Joseph Carroll requesting a varia- .ing By Law So as to Permit division of three(3)existing lots into two(2)lots with less than current requirements as to area and frontage, for s' gle-family lots in R3-zone on the >:pfemises located at East side of Booth St.and W side of Saville St. BY Order of the Board of Appeals Frank Serio,Jr.,Chairman Publish in North Andover Citizen September 24 and j0dober 1,1987 38910-1 a VI v KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MASSACHUSETTS 02110 DONALD G.PAIGE ELIZABETH A.LANE (617)451-0750 JOYCE FRANK JOHN W.GIORGIO JOEL B.BARD JOEL A.BERNSTEIN RICHARD J.FALLON BARBARA J.SAINT ANDRE GEORGE M.MATTHEWS EVERETT J. MARDER JANE M.O'MALLEY KAREN V.KELLY December 15, 1988 DAVID L.GALLOGLY SONDRA M.KORMAN ANNE-MARIE M_HYLAND Zoning Board of Appeals Town of North Andover North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Extension of Variance Dear Members of the Board: You have requested an opinion regarding the Board's authority to act on a request for a variance extension received by the Board after the variance lapsed. The property owner ("Carroll") received a variance on October 16, 1987 . Carroll indicates he has not started work because he is still trying to secure permission from the Planning Board and the Conservation Commission. On October 24, 1988, the Board of Appeals received a letter from Carroll, dated October 15, 1988, requesting an extension of the variance. In my opinion, the Board has no authority to extend the time for exercise of the variance since it has already expired. However, if his variance has expired, then Carroll is subject to the provisions of G.L. c.40A, §10, which provides in part: If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse; provided, however, that the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of such rights for a period not to exceed six months; and provided, b �a KOPELMAN AND PAIGE, P. C. Zoning Board of Appeals Town of North Andover December 15, 1988 Page 2 further, that the application for such extension is filed with such permit granting authority prior to the expiration of such one year period. G.L. c.40A, §10. The clear language of G.L. c.40A, §10 requires the request for extension be filed prior to the expiration of the one year Period. In the present case, since the request for an extension was not filed with the Board until after the variance expired, the property owner must apply for a new variance. Hunters Brook Realty Corp. v. Zoning Board of Appeals of Bourne, 14 Mass. App. Ct. 76 (1982) . Section 10.4 (2) (a) of the Town of North Andover Zoning By- Law does not even provide for an extension. [I] f the rights authorized by the variance are not exercised within one (1) year of the date of the grant, they shall lapse and may be re-established only after notice and a new hearing. However, in my opinion, the state law controls since the by- law does not grant at least the same degree of protection as the state law. If you have any questions, please call me. Z y truly yours,�bara Saint Andre � BJS/JMO/myj cc: Board of Selectmen NORTH O�,,EEO a,q�O FO •yyt,y P SHCFNU5* TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Ms. Jane O'Malley Kopelman and Paige, P.C. RE: Joseph Carroll Sttorneys at Law Booth & Saville Sts. 77 Franklin St. North Andover, MA 01845 Boston, MA 02110 Petition: #94-88 Dear Ms. O'Malley: Per our telephone conversation of November 17, 1988, I am enclosing copies of the decision in question. The Board of Appeals held a public hearing on this petition on October 13, 1987, and a final decision to GRANT this variance on October 16, 1987. The petitioner was unable to start on the property because of complications with the North Andover Conservation Commission and the Planning Board. He therefore, wrote a letter to our Board requesting an extension of one year from the date of the decision. The Board received a letter dated October 15, 1988 requesting an extension of the variance. This letter was received in the Board of Appeals office on October 24, 1988. The Board requests a legal opinion on whether the dated letter is acceptable or not. Section 10, Paragraph 10.4(2a) of the Zoning Bylaws refers to extensions of this nature. If you need any further information, please call me. We would appreciate your advise on this matter prior to our next regular meeting on December 13, 1988. Thank you for your help. Sincerely, Audrey W. Taylor Secretary BOARD OF APPEALS Enc. /awt I Town of North Andover Appeals Board 120 Main Street North Andover, MA 01845 October 15, 1988 Attn: Ms. Audrey Taylor Re: Petition # 94-88 Dear Members of the Board, Due to various delays regarding conservation and planning issues, approval for the proposed development on Booth Street has taken more time than anticipated. Consequently, the above referenced variance is now about to elapse upon it' s 1 year anniversary. This letter is a formal request to extend the period of the variance for an additional year. Every effort is being made to satisfy the requirements of the respective town boards at this time and affirmative action on the part of the appeals board would be greatly appreciated. Sincerely, Joseph E. Carroll XI r �} s�'t .:Si • • • 1855 :• n •' � � �►s�sACHU9a'�� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD Of APPEALS NOTICE OF DECISION Joseph Carroll Booth & Saville Sts Date . . .October 16, 1987 . . . . . . . . . . . . . . . . . . . . . George Stella, Attorney 160 Common St. Petition No.. . 94-88 . . . . . . . . . . . . . . . . Lawrence, MA 01840 Date of Hearing. October, 13,• 1987 Petition of . . . Joseph• Carroll. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises affected . .east• •side. of. Booth. apA west. side •of. Say.f.11e. . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a variation from the requirements ofd .Section. .7... . . . . . Paragraph 7.1 and 7.2 and Table 2 of the Zoning ByLaws . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . so as to permit .division of. thr.e.e(3) . existing. lots .into. two .(2).with .less. .than. . . . current requirements as to area and frontage, for single-family lots in R3 zone . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to . GRANT . . . . . the variance as requested X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . based upon the following conditions: 1. One-family dwellings on each new lot only. 2. Town water and sewer tied into each new lot. Signed ` �� " • - Frank. Serio, ,Jr,,, . hairman. . . . . . . . . . . . Alfred. F.rizelle,. V.lce-Chaf rmar�, . . . . . . Augustine• .Ni.ckerson,. .Clerk. . . . . . W.alter. Soule . . . . . . . . . . . . . . . . . . . . Louis. Ris.sin. . . . . . . . . . . . . . . . . . . . Board of Appeals r L � ORT{{ 01",N q1, y` 'e.e pL rr rn 0 A OCT Ir) Ill 3;; �1 '117 SACHU5'�� M TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS * Joseph Carroll * Booth & Saville Sts. ** Petition #94-88 * * DECISION * * * ************************* The Board of Appeals held a public hearing on October 13, 1987 on the application of Joseph Carroll requesting a variance from the requirements of Section 7, Paragraph 7.1 and 7.2 and Table 2 of the Zoning ByLaws so as to permit division of three (3) existing lots into two (2) with less than current requirements as to area and frontage, for single-family lots in R3 zone. The following members were present and voting: Frank Serio, Jr. , Chairman, Alfred Frizelle, Vice- chariman, Augustine Nickerson, Clerk, Walter Soule and Louis Rissin. . The hearing was advertised in the North Andover Citizen on September 24 and October 1, 1987 and all abutters were notified by regular mail. Upon a motion made by Mr. Frizelle and seconded by Mr. Soule, the Board voted to GRANT the variance as requested, with the following conditions: 1. Only one-family dwelling permitted on each new lot. 2. Town water and sewer must be tied into each new lot. The Board finds that the petitioner has satisfied the provisions of Section 10, Paragraph 10.4 of the Zoning ByLaws and the granting of this variance will not derogate from the intent and purpose of the Zoning ByLaws nor will it adversely affect the neighborhood. Dated this 16th day of October, 1987 BOARD OF APPEALS Frank Seiro, Jr. L Chairman /awt &, ceived by Town Clerk: ;,E_ • / �N9 71 NSR f t. SEP 16 137 TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE c/o George' A. Stella, Esq. Applicant Joseph Carroll Address 160 Common Street Lawrence, MA 01840 1. Application is hereby made: TR. 7. 1 and a ) For a variance from the requirements 'of Section 7 Paragraph 7. 2 and Table 2 of the Zoning By Laws b) For a Special- Permit under Section Paragraph of the Zoning By Laws . c ) . As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2. a ) Premises affected are land_ -wxkAik kknkal numbered Lot A and Lot B, Booth Street . b) Premises affected are property with frontage on the North ( ) South ( ) East ( x) West ( ) side of___B_ooth _ Street , and 4xnx2igxNj&x Saville Street . West side of --:*--'------ c ) -*-- -----c ) Premises affected are in Zoning District R3_, and the premises affected have an area of 42 ,_000 _square feet and frontage of 210 _feet . ( combined area and frontage ) . 3. Ownership a) Name .and address of owner ( if joint ownership, give all names ) : .7;, Description of relief sought ' on this petition ;''petitioner seeks to aiyide :�. '. three ( 3 ) existing, lots into two ( 2 ). lots as show,%,.on p an, with ess an �1! 's . ..:`. * .'current requirements for single-family lots in R3r.zone, as to area and frontage 8.•;;.:;Deed recorded in the Registry of Deeds in Book Page t: Land. Court Certificate No.�$gg Book 'Page 3. 9899, and 9900 The principal points upon which I base my application are as follows: �,ljmiist be ., stated in detail ) Petitioner intends to de�.elop Booth Street ; pres-ent.11,% ?a .,paper street to Town re uirements for a. street . ' A••;:to. the lots i ,., �- q � n question; ,:••r :petitioner seeks to combine three 3 existing lots an'd to divide them into -two. ( 2 ) new lots containing 24 , 000 and -18 , 000 s . f. in an R3 zone. Frontage is also• ' ;, less than, currently _required. Plan will not derogate :from the intent of the bylaw nor adversely affect_the .neighborhood. Hardship is that petitioner owned several, :' lots in common ownership and unknowingly lost zoning protection by not checkboa dp% . I agree to pay the filing fee, advertising in newspaper , and incidVlkflnersiip.. expenses* -- - Signa r Vo tit o ers .: Every application for action by the Board shall be 'made on a form approved by.• the Board . These forms shall be furnishes by the Clerk upon request. =' Any communication purporting to be an application shall be treated as mere :-notice of intention to seek relief until such time :as it 'is . made on the . . official application form . All information called ,for by the form shall be furnished- by the applicant in the manner ' �herein;:prescribed .Al 1 ; Every-application shall be submitted with a list of '•"Parties In Interest" • ,which list shall • include .the petitioner , . abutters , owners of land directly .."opposite on any public or private street or way, and abutters to -the abutters ;within ' three hundred feet ( 300 '. ) of the property line of the ;-petitioner as they appear . on the most recent applicable tax list, notwithstanding that the land of any such owner is located in another city ,or town, the Planning Board . of the city or town, . and the Planning Board of. . :,dc's`% ,,every, abutting city or town. *•Every application shall be submitted with an application charge cost in .. .07G nn z....�.a.a...:.L._ __ �L _ - _ •-- '-- --- --- .. . . . . . . _ .. . ca�aob cc,-�,�\a o 630,� a� Board of Appeals o CE c Town Office Building 11-11c;z 'P m North Andover, Mass. 01845 A Ga 28 S P T X m" 28 SEP 21.9 -.31ANNNON q C-3 NIA 3 4 tty T NORTH O � • 01 rr 4 # sACNUs�t� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Joseph Carroll Saville & Booth Sts. Date: September 17, 1987 Dear Applicant: Enclosed is a copy of the legal notice for your application before the Board of Appeals . Kindly submit $ 6.60 for the following: O, Filing Fee $ 9 � 9 Postage $ 6.60 VVV 1 Your check must be made payable to the Town of North Andover and may be sent to my attention at the Town Office Building, 120 Main Street, North Andover , Mass . 01845. Sincerely, BOARD OF APPEALS Audrey Taylor, Clerk