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Home My WebLink AboutMiscellaneous - 59 Bridges Lane J �� s� �� .. �� ao� ��`� -. Town of North Andover f NORTiy , OFFICE OF 3? y�� RD 6'e -0 COMMUNITY DEVELOPMENT AND SERVICES A 146 Main Street e^; 9p�A,Tf North Andover,Massachusetts 01845 'SA USX."" Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Citizen' s Center located at the rear of Town Hall Building, 120 Main Street, North Andover, MA. on Tuesday the 12th day of March 1996 at 7 : 30 o' clock P.M. to all parties interested in the appeal of Joseph & Collen Contrada requesting a Variance pusuant to Section 7, paragraph 7. 1, 7.2 and Table 2 of the Zoning Bylaw. Said premise is located at Lot 59 Bridges Lane which is in the R-1 Zoning District. Plans are available for review at the Office of Community Development & Services, Town Hall Annex, 146 Main Street. By the Order of the Board of Appeals William J. Sullivan, Chairman Publish in the North Andover Citizen on 2 . 21.96 & 2 .28 .96. LOT 59 BRIDGES LANE LEGAL NOTICE . Notice is hereby given that the Board'of Ap- peals will hold a public hearing at the Senior Citizen's Center located at the rear of the Town Hall Building,120 Main Street,North Andover, MA.on Tuesday the 12th day of March 1996 at- 7:30 o'clock P.M.to all parties.interested in the appeal of Joseph&.Coleen Contrada',a uest- ing a Variance,pursuant to Section 7,Para- graph 7.1,7.2 and Table 2 of the ZoningBylaw. Said premise is located at Lot 59,Bridges Lane which is in the R-1 Zoning District.Plans are available for review at the Office of Com- munity Development&Services,Town Hall An nex,146 Main Street. B the Order of the Board of Appeals William J.Sullivan,Chairman North Andover Citizen 02/21,02/28/96 BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 G9 j O Kn 0� Ul o Z J S .10--i Ul ! ' N I _ � 11g� r. lii og - S I ; 9-.t-.r,lf79 -7sPPrv- 4 t (•t.�/at+ / 6 Mo¢Trl Awow!¢M•aw%*d&boalLp R �iT i"MOC�T.ON .QLD I \ V It \ 407 \\ ?' r � .MGUS P L A'1�1 1 ; i r ` TASLE CC DCAWIN65: \ FF 1 ww Or WDIETw Ac+oOvE.C' SNCET• 1 COVEQ BEET-LOCUS t +"OEY !4 —w WATEe LINE I / * 2S OCt.i,E Oc TwE TOW.. C:_EQC .•�NEET• 5 LOTS •-17.Sp.SV I -w-_�-w— WpTE¢ G4TE II TNrj15T0CE1rTICv T•6AT CN 22 ~ �/ 1 tEGEIY£D CQON TN£NOCTI dJOOVEe 7r1�T-4 LETS ID-iZ.77 {III 5"6.FiT'7 "C1T: Vb-70 1 -w-i.r- HYOe ANT J , \ M VOOCL 21 /� DI-ANNU.16 BOA¢D A CE2T PLICATION OC SNEET' -F L7'T7 !O-Sp 4LI T'.1 APD20VAL OC TW7 PWS ANO IC 1 5 IECT T •A- �TOQ LOTS 1p l-- CATCH B��IN C M OPM M 20 /, / TPAAT DUC W6 TME TwC.I.rTV r.1G`(7 NEYT /L> \ ° 1 I cOUAv1NG I wYE eE.cCNED NO Nr T,.%L 7~EET, C LOT'S US'TZ 19 1 /2 .� i OF ANV ADDEA.L CCDM 7A10 OCLMSON. ScaEET, 9 �oTS fA-Sc.,40-4'S --- � MANYIOI..E SNEET� PO P20CIv: BQ.IOU£7 L E - O.O-Ip•O Ip / tT / u ONG2.T• 11 PFOC.-C gePOGE"i LAI•IE - .T.O-L9.O NEAO WALL - tp i ~-� SME>=T• 12 P¢OL1".: VEST WAV O.O.27.0 TISO / TOwN ,•r•�� 51dEET•' t5 DeOLILE. 6e1tX+E•�L E ZE•0-54•YTK TOwNOC NcCT A AIm1L O STONE 60tM0{TO 6E SET? VGST WAY LZ-O-Lp•22.AS fc �7PasE .ry 5p i� •�•,• 1 c 3NEET� 4 CON7Tl.UCT10N OEr 7 —•^-•--- INTCRM1TTYiY',�TCEAM/ OedN44E 7wALE T 16 �� j \ .,'•� / / SOIL TEST PIT i �d. ZONING •JPSTQICT. Q-2 ,5i 15ENL"MAe1G- 5 U SG OATUM: K 52 - •J, L.0 C EC S G.'STA 5.O 41 st k LT i4 5 60X0000 KT. 1' 51 75 L/ 4i a Jr SO SA z/ CECTICV THAT I 1.14VE GONCOQ-ME'J - WITr•. THE (LUC'. L >ANO eGWILATIGNJ t1 64 Aq 35 { OG TrcE 3ZE6e7TE29 OC >'EE.t>b \ 10 � +3 IN ✓Q.EDAQIN6 Trll`,� P:.1.N. 65 47 56 VT k V--m . B Ay t c{ANP C.GELw(A7-erx,LAND SUevEYOe • T t+C I 45 5q EOWS 7c,ALe IN GEST �� NOT - NOCTM AeeO/.1 L AL SNEE-T9 wt/ A AEE MA4NETIC. p AA 1 5 TI 4I �` \ DEFINITIVE OLAN CF LAt4o OF THE RALE 1•.n0' LOCATED IN DATE •1••••"` S f'-----1 4i � � � NOQ.'fH ANDOV)=C BR`- �6E.5 +jo�„�' MA55ACHU5ETT5 eEYlxa. i , '� O W NE¢7 Tu2N G SL A.Eo.IDOGS NO NotTu 0 S++EGT 1 OC IA A¢I[wAY.BOX 77, V, NO¢T►1 Ar.NOOVLQAy�Oc.,jK1L'OCM."TENNE5SEG _ T NDE.X PLAN Avv LICANT O S _ / -,l LAND/VGST r7 1[IL2.'ATLb 17 ICtL.pY 5-r..60sTON•MA. r T(_�_'� DO NOT Sc.►Lc ►QANIL G.GELINA'J' 4 L•Vr. Scerr-ON 45t ANDOVEQ aT. SOC PATES-Ew141NEE2SC AeCHrmcri, V02TH ANDOVE2 MA }ti f JOYCE BRAD"HAW TOWNORTH�ANDOVER Received by Town Clerk: FEB 15 � S � TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant OSCpN (,��,�-,)4 Address 2oG ' ,A) GUGtG�� S. C� cJT�R Tel . No. 79y-.3564 1 . Application is hereby made: a) For a variance from the requirements of Section ` Paragraph , Z and Table A 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 i/ and building (s) numbered Ln-7- ,59 ,EiiXZ. s 64)oE Street. b) Premises affected are property with frontage on the North ( ) South ( ) East (X) West ( ) side of Street. Street, and known as No. -Street. c) Premises affected are in Zoning District and the premises affected have an area of 457 -#quare feet and frontage of feet. 3 . Ownership: a) Name and address of owner (if joint ownership, give all names) : Date of Purchase Previous Owner F/ ,c b) 1 . If applicant is not owner, check his/her interest in the premises: Prospective Purchaser Lessee Other Rev. 10/95 Y v DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension Area r 1 ' Street Frontage Front Setback Side Setback(s) Rear Setback Special Permit Request: 4,14 _ �J i Lr'ST OF p AR,TEES OF 'NT SUp� T Pq0 ��p �'�OpERT SOF RCrL NA Y ME 1;v1 EP,s lop i s i it !� 1 r 1 1 TF \ %�'� ^�' E• .t^'� NORTH9 t�!.{t't°1•. 0 E I r°.A,to _ �t .. .. 'S9SS4 C,HUS�S - TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS **************************** * Joseph Contrada * DECISION 209 Bridges Lane. North Andover, MA 01845 * Petition #030-94 * **************************** The Board of Appeals held a regular meeting on Tuesday evening, August 9, 1994 upon the application of Joseph Contrada requesting a variation of Section 7 , Paragraph 7 . 1 and Table 2 of the Zoning Bylaw so as to permit relief from one-acre to two-acres for the required lot area and relief of twenty-five (25) feet for the required lot area on the premises located at Lot 59 Bridges Lane. The following members were present and voting: William Sullivan, Vice-chairman, Walter Soule, Clerk, Robert Ford, John Pallone and Scott Karpinski. t The hearing was advertised in the North Andover Citizen on July 20 and 27 , 1994 and all abutters were notified by regular mail . Upon a motion by Mr. Ford and seconded by Mr. Soule, the Board voted unanimously to GRANT the variance. The Board finds that the petitioner has satisfied the provisions of Section, 10, Paragraph 10. 4 of the Zoning Bylaw and that the granting of thi.s variance will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. Dated this 16th day of August 1994 . BOARD OF APPEALS 2 L William J ` Sullivan ' Vice-chairman V 9� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEAL NOTICE OF DECISION Date august 16,. 1994 Petition No.. . 030.-94 . Date of Hearing august 9, 1994 Petition of Joseph Contrada Premises affected 209 Bridges Lane . . . . . . Referring to the above petition for a variation from the requirements of bbiK Section : , Paragraph 7 . 1 and Table 2 of the Zoning Bylaw so as to permit relief from 'one—acre to two acres for the. r.equired. .lot .area.. After a public hearing given on the above date, the'Board of Appeals voted to GRANT the -.-ariance as requested and hereby authorize the Building Inspector to issue a permit to Joseph Contrada. The Board finds that the petitione has satisfied the provisions of Section 10, Paragraph 10.4 of the Zoning Bylaw and that the granting of the variance -.:ill rot adversely affect the neighborhood or derogate from the intent and purpose of the Zoning By-law. Signed William J." Sullivan, Vice—chairman Walter Soule, Clerk Robert Ford John Pallone Board of Appeals From the desk of JOSEPH G. CONTRADA Joseph&Colleen Contrada FB!OARD , ft 209 Bridges Lane North Andover, MA 01845 APPF A, March 4, 1996 Board of Appeals Town of North Andover North Andover, MA 01845 Dear Board Members, In August of 1994,we were granted a variation from the requirements of section 7,paragraph 7.1 and table 2 of the zoning bylaw that provided us with relief from the two acre minimum building lot requimment for our property at lot 59 Bridges Lane. Our purpose in seeking this relief was, of course,to make it possible for us to sell the lot. When the property went unsold by the time that the original variance expired,we applied for and received a six month extension in August of 1995. Prior to the expiration of the extension(February 1995),the lot was put under agreement, and we fully expect to pass on the property as soon as all engineering and conservation issues have been resolved. We would therefore respectfully request that the Board of Appeals grant us a new variance so that we may continue with our efforts to complete the sale of the property. In so doing,we would like to briefly repeat one of the points that we made in our original request: that all of the homes on our street are built on one acre lots and that in the last 18-24 months, several new homes have been built within a few hundred yards of our lot; all on one acre lots. Thank you. Sincerely a Joseph&Colleen Contrada , 1 I I i I S - 8o- - - 0 v in / I o-r- 59_ r - 45, S 2 4 19 - \ j d c0 Lo 7 Ff- 19 Ln Az� 19 x vJ \ 017 ' V < i p do 1 3sPP/7. 10 �tTN aMDOYtL DLANNIN6 d,pA� _ No¢TH eNoove¢ M�seuwU>Erre. R ..w d b DCUS P L A'LW t••aoo• \ ` TAgLE Or DeAwiN05: . \ TOwN Oc Alo¢TW ON 25 � GOVEL SHEET=LOCuS t INGEI[ OC C.�E O=TwE TJwv C._E¢L EE • Z LOT- 6..- 75 --•-• T WAEQ LINE 'L SHTSHEET• 5 LOT:- •.17.SC.SV TwEC.L,v CEETIcY Tr1A7 ON—� ANDOV -w'�.--vl— WATE2 GATE VOpEL ZI j \--� Id, j QECEIVED cQpN�THE N � SM�T�4 Ld'r`S 1S•2L.37 I PLANNW6 EOA¢D A LE2T1c1CAT10h1 OC SHEETS 5 LOT= t.e- • ZO •jwEE T. v W----.w_ I`i ltY TS Ac'PQOV AL CX TNI7 PIAN ANp L7'T� 40-56 MYDQANT ` THAT OUQwb THE. TWCj.RY=&YS NEXT SWEET -F LOTS !H-40 V t Iq Z5 24 J/ / ^ 9HELT• O LOT] u5_72. �"�-�� CATCH BASIN 6 5TOQM O?Yn: / t FOLi.p Ap S HAVE QECE-ED NO NOTICE 16 I � o oc AWv APw.r,�ceoN� SAw oecrs.oN. �+EET' y �oT� av-sr..C.0 C.,5 57 9{r 26 / i 764EET' 10 PeoctLS: 6Q10G£,LA1�1E - O.O. 16.0 C MANHOLE i 17 j a w__ 11 vvocI.E- eQ10C.L-, LAME - rt.0•Lq.p Jc E»e .ry 55 t _ TOwv [yr�[x S'�EZT� l2 PQOV1 :: VEST WAV t+ O.O-ZS-O �` HEADWALL T i4 Say F ��=+•rr / AmDovH2 51.W-ET- m PQOG/Lt. oeicwaFt.L. E_ - Le•0-'�a•Y7 el DOtn+D(TO flE SET se 2' v / To...Noc NoeTa1 - bo , •°i� '�r1EETA K COW'STi:UCT1Ovi OErY 7 LZ-O-Za•22.eS —YO STONE 1 [ SS / INTLQMITT/WT STKEAM/ . vr � OQdNA4E SwALE 14 /41/40 SL i 501L TEST PIT 41 32 �1 [w•.�t wh •� // ZOruN6 DIST t' SI `'r- / BENLH MA¢Ic: U S.G t)OATUM: 77 4t " LOZA5 eoxco2D S-r J j i1 SO O 65 �_ / ELE.v: 16d.OS1 64 AV DS f 10 I CEC.TICH T.AT Z HAVE C.ONFOQ ` GS WIT THE eut_Lr'S ANO QEGULArC:N•.� K u S7 3 - ZN Om 7-F_oe NCa TN P• EDb'47 i y. 'Ja cevrsL I 8 j 47 Se 'jc it i 6 41 4Z&;�NNL .GE�uL !IAS-17Z& '. uN0 SUCVEro¢ `5 70 A' ., SGALE 1 [ET �� _ NOTE p0E MAnRUNET C.ON ALL t.4F _rt, C TI Al •� .o ap .—rc 6 \ DEFINITIVE PLAt. ` NOeTat ANDOVE r O LAND OF THE BR ID6E0 9c ALE: 1•.,ip• 1 i ✓ 5 OwNEa�: .S GATE : NOV. I.1977 aTT cvISEo. 1 / ' • TUQ-I.IEC A.ba1OCC. > tl MASSACHUSE Z �! INDEX PLAN NCC[ m AD40 NOVER AyyOLJALK~�Tu OACO ICwAY.I5OX �.> SWEET 1 c 1A T EAPP L1G AwlT: bON. NW ESSEE ''/ n LAWD/VUT ATE3 t7 �iLE- eoSTON•MA• _ E — F¢ANK C.GEL.IW40k5 4 �.•S7 . eoSTOW 451 .tanIDOVEtZ ST. SOG.IA'rEg.EN61Nf-E>ZS t A¢CHITF�Tg f^ V O(ZTH ANDOVER CMA i. RECEIVED JOYCE BRADSHAW . TOWN CLERK NORTH ANDOVER Received by Town Clerk: FEB 15 3 51 PH '96 TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant j',y,C (� 0u177� 4 Address 20� ,�,,G,c /Llj•9x»oof�, � CU(.GCS E� S. 1J 7&14134 Tel . No. 794%-3,�5-6 a 1 . Application is hereby made: a) For a variance from the requirements of Section_ Paragraph `%Z.and Table A 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 Le,, 5 -9 kiiNr-€ S G IE Street. b) Premises affected are property with frontage on the North ( ) South ( ) East (X) West ( ) side of Street. Street, and known as No. Street. c) Premises affected are in Zoning District _, and the premises affected have an area ofl/�, --2q' #quare feet and frontage of 150 feet. 3. Ownership: a) Name and address of owner (if joint ownership, give all names) : Date of Purchase a -- J26 Previous Owner �t,(, _Mtr b) 1 . If applicant is not owner, check his/her interest in the premises: Prospective Purchaser Lessee Other Rev. 10/95 f Y DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: ,P - Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension d Area �S 7 26 � �5��6 Street Frontage Front Setback ILIA Side Setback(s) Rear Setback Special Permit Request: LIST OF PARTIES OF INTEREST PAGE OF _SUBJECT PROPERTY ':MAP PARCEL ��NAME ADDRESS ��.D V f3 Ph vA,n ,4�, ABUTTERS ,NIAP PARCEL NAME ;ADDRESS (4-D o _ 122 07 D3 Joseph&Colleen Contrada WR 209 Bridges Lane North Andover, MA 01845 CARD - I March 4, 1996 Board of Appeals Town of North Andover North Andover, MA 01845 Dear Board Members, In August of 1994, we were granted a variation from the requirements of section 7, paragraph 7.1 and table 2 of the zoning bylaw that provided us with relief from the two acre minimum building lot requirement for our property at lot 59 Bridges Lane. Our purpose in seeking this relief was, of course. to make it possible for us to sell the lot. When the property went unsold by the time that the original variance expired, we applied for and received a six month extension in August of 1995. Prior to the expiration of the extension(February 1995), the lot was put under agreement, and we fully expect to pass on the property as soon as all engineering and conservation issues have been resolved. We would therefore respectfully request that the Board of Appeals grant us a new variance so that we may continue with our efforts to complete the sale of the property. In so doing, we would like to briefly repeat one of the points that we made in our original request: that all of the homes on our street are built on one acre lots and that in the last 18-24 months, several new homes have been built within a few hundred yards of our lot, all on one acre lots. Thank you. Sincerely Joseph&Colleen Contrada IL MM ` LEONARD KOPELMAN KOPELMAN AND PAIGE, P. C. JEAN IIE S. MCKNIGH DONALD G PAIGE JUDITH C. CUTLE ELIZABETH A LANE ATTORNEYS AT LAW Ul /� }�.`��.I�pp{p�p� i JOYCE FRANK 31 ST. JAMES AVENUE SOARQIALS' JOHN W GIORGIO BARBARA J SAINT ANDRE BOSTON. MASSACHUSETTS 02116.4102 SANDRA CHARTON JOEL B BARD ILANA M. QUIRK BRIAN W. RILEY EVERETT J WARDER BOSTON OFFICE JOHN J. KENNEY.JR. PATRICK J COSTELLO 1617) 556.0007 MARY L. GIORGIO JOSEPH L.TEHAN. JR FAX 16171 654-1735 KATHLEEN E. CONNOLLY ---.i KURT B. FLIEGAUF w7 NORTHAMPTON OFFICE MICHELE E. RANDAZZO WILLIAM HEWI.G III 14131 585-8632 PETER J. FEUERBACH THERESA M COWOY AARON M.TOFFLER -- DEBORAH A ELIASON WORCESTER OFFICE MARY JO HARRIS 1508,752.0203 ANNE C. PREISIG THOMAS W. MCENANEY March 4, 1996 M E M O R A N D U M T O M U N I C I P A L C L I E N T S TO: BOARD OF SELECTMEN/MAYOR/TOWN AND CITY COUNCIL - -- TOWN MANAGER/TOWN ADMINISTRATOR/EXECUTIVE SECRETARY ZONING BOARD OF APPEALS RE: EXEMPTIONS FROM ZONING BY-LAW AND EMINENT DOMAIN POWERS OF RAILROAD CORPORATIONS Many municipalities have requested opinions on whether a . railroad company, ("Railroad Company") has the ability to acquire property by eminent domain and the extent to which the company's uses of property may be exempt from a zoning by-law. In general, a Railroad Company's use of its property may ,be - exempt from the operation of a zoning by-law if the state Department of Public Utilities (DPU) determines after a hearing _ that the proposed use is "reasonably necessary for the convenience or welfare of the public. " G.L. c. 40A, §3 . The Railroad Company must first contact the local zoning board of appeals to obtain a determination on whether the use is prohibited by the zoning by-law. A. Exemption From Zonina. General Laws_ Chapter 40A, §3 governs- the ability of a Railroad Company to obtain an exemption .from a zoning by-law for_ . uses of property for railroad purposes. In order to obtain an ". exemption for the proposed use from a zoning by-law, the Railroad ." Company must - first petition the DPU for a determination that the- exemption is "reasonably necessary for the (public] convenience. " In determining whether the use of the property fits the "public_ convenience" criterion, the Supreme Judicial Court has stated that it is immaterial whether the property was acquired by eminent domain or by sale or that the proposed use is the best possible use of the property.. New York Central Railroad v. Department of Public Utilities, 347 Mass. KOPELMAN AND PAIGE, P.C. MEMORANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 2 . ZA 586, 591 (1964) . The Court also stated that the DPU's analysis of the "public convenience" encompassed a wide inquiry and required a "broad and balanced consideration of all aspects of the general public interest and welfare and not merely examination of the local and individual interests which might be affected. . . " New York Central Railroad, 347 Mass. at 592. In the case n�f Framingham v. Department of Public Utilities, • . - 3 -1 Mass. 1_27 for example, the Court approved the DPL/ s _ use of broad criteria to analyze whether a Railroad Company's . T_ . proposed use of a property as a transportation facility served the public convenience. Id. at 130. The DPU's criteria, which were approved by the Court, included: (a) the extent of the usefulness of the proposed facility to shippers, manufacturers, motor vehicle distributors, and consumers; (b) the suitability of the locus for the proposed facility and for other uses. . . ; (c) the probable effect of the facility upon the gross and net revenues of the railroad; upon the railroad's ability to continue to perform its intrastate and interstate public functions. . . ; (d) the effect of the facility upon highway congestion. . . ; (e) the— possibility that injury to abutting owners can be minimized by proper screening of the facility by trees and otherwise;_ and (f) the relative advantages and disadvantages of the -- proposal from the standpoint of the public welfare and convenience. Id. Thus, the DPU's inquiry may encompass more than concerns of the- surrounding area but broader societal impacts of the proposed uses, as well. B. Eminent Domain Powers. Pursuant to G.Z. c. 160, §§80-84 , a Railroad Company is authorized to acquire property by eminent domain. The Railroad _ _ Company's proposed use of the property does not, in my opinion, have any bearing on its ability to acquire the property by _eminent domain. General Laws Chapter 160, Section 78 provides that Railroad Companies may purchase additional land for many types of uses to serve the transportation route approved by the DPU. The statute authorizes Railroad Companies to purchase such land ,1 a KOPELMAN AND PAIGE. P.C. MEMORANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 3 . . . . as may be reasonably necessary for the proper construction and security of the railroad and the convenient operation thereof, for one or more new tracks adjacent to other land occupied by it by a track or tracks already in use, and for the purpose of cuttings, embankments, and for procuring stone and gravel, and for stations, car houses, roundhouses, freight houghs, yards, docks, wharves, elevators and other stru(;tures. G.L. c.160, §18: Should the Railroad Company fail to secure the property by agreement with the owner, G.L. c. 160, §§80-84 provides the Railroad Company with the power to acquire the property by eminent domain. A Railroad Company may be limited in its acquisition of property by eminent domain, if the land is presently owned by a governmental entity. General Laws Chapter 79, section 5 requires that a Railroad Company obtain state legislative approval when it intends to take state owned land by eminent domain. The statute further requires consent of the Town in which the land is located if the Railroad Company proposes to take any land outside the limits of the route fixed for the railroad which comprises a portion of a highway, public building, cemetery or park. Very truly yours, Deborah A. Eliason DAE/j a BUJ N U 1'I N i Ll MAR i LEONARD KOPELMAN . KOPELMAN AND PAIGE. P. C. JEANNE S. M I•NIGHT DONALD G. PAIGE UT LER ELIZABETH A. LANE ATTORNEYS AT LAW /AlM1IlV ERd✓ 1 _'�„AI;HYLAND HAReBOWEN JOYCE FRANK =— ° t✓ •1Vr� �` IC} 31 ST. JAMES AVENUE CHERYL ANN BANKS JOHN W GIORGIO DAVID J. DONESKI BARBARA J SAINT ANDRE BOSTON. MASSACHUSETTS 02116-4102 SANDRA CHARTON JOEL 8 BARD (LANA M. QUIRK BRIAN W. RILEY EVERETT J. MARDER BOSTON OFFICE JOHN J. KENNEY.JR. PATRICK COSTELLO i617i556-0007 MARY L. GIORGIO JOSEPH L TEHAN JR FAX 1617)654.1735 KATHLEEN E CONNOLLY KURT B. FLIEGAUF NORTHAMPTON OFFICE MICHELE E. RANDAZZO WILLIAM HEWIG III (413, 585-8632 PETER J. FEUERBACH THERESA M DOWDY AARON M. TOFFLER \;CPCESTER C�FICE MARY JO HARRIS DEBORAH A ELtASON 508 752-0203 ANNE C PREISIG THOMAS W. MCENANEY February 21, 1996 M E M O R A N D U M T O M U N I C I P A L C L I E N T S TO: BOARD OF SELECTMEN/MAYOR/TOWN AND CITY COUNCIL TOWN MANAGF;:cj'TOWN ADMINISTRATOR/EXECUTIVE SECRETARY ZONING BOARD OF APPEAL RE: SCOPE OF AGRICULTURAL USE EXEMPTION - RECENT DEVELOPMENTS We are frequently asked questions regarding the scope of the so-called agricultural use exemption under the State -Zoning Act. This exemption forbids zoning ordinances or by-Laws that prohibit, unreasonably regulate, or require a special permit -for- the ermit -f.orthe use of land of more than five acres for agricultural purposes. The relevant portion of the first paragraph of G.L. c.40A, §3 states: No zoning ordinance or by-law shall. . .prohibit, unreasonably regulate or require a special permit for the use -of land for the primary purpose of agriculture. . .except that all such -- - . : : _ - . activities may be limited to parcels of more than five acres in areas not zoned for agriculture, horticulture, floriculture, or viticulture. A number of cases in recent years - have addressed the scope of the agricultural exemption in various contexts. In this memorandum','--,.- I will review recent cases relating to the raising and breeding of dogs and horses and- -the sale of plants raised offsite. -- - . 1. Raising and Breeding of Dogs The appellate courts have held that the operation of a kennel on a parcel of land of more than five acres in size, for the breeding, raising and training of dogs owned by the landowner, is an agricultural use which is exempt under G.L. c.40A, §3 from the application of certain zoning requirements, including any special permit requirements. The Appeals Court has determined on numerous occasions that the raising and training of domestic animals may be an exempt agricultural use when conducted s� KOPELMAN AND PAIGE, P.C. MEMORANDUM TO MUNICIPAL CLIENTS ' February 21, 1996 Page 2 in accordance with standards set out in Section 3 . See, e.g. , Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401, 403 (1986) , citing a dictionary definition of "agriculture" as including "the science or art of the production of. . . (d]omestic animals, such as cattle, horses, sheep, hogs, or goats, raised for home use or for profits. " In Sturbridge v. McDowell, 35 Mass. App. Ct. 924 (1993) , the Appeals Court determined that dogs are included in the category ~: of "domestic animals" within the definition of "agriculture" , provided they are owned or bred by the landowner. The Court concluded that the breeding, raising and training of dogs on .a parcel of more tin five acres is an agricultural use which is exempted from zoning by G.L. c.40A, §3, if the dogs are owned or bred by the landowner. It should be noted, however, that the Appeals Court has not ruled that all kennels are agricultural uses. The Court in Sturbridge expressly decided that the boarding, grooming and training of dogs not owned or kept as breeding stock by the landowner are not agricultural uses because these activities are not an integral part of the breeding and raising of dogs. 2. Horse Raising and Riding Another common issue is the extent of the agricultural exemption as applied to the raising, breeding, and riding of horses. The agricultural use exemption applies to the raising of horses, and will also apply to riding lessons and boarding of horses if these activities are an integral part of the raising of horses. i The Appeals Court in the case of Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970, 971 (1988) analyzed the applicability of the agricultural exemption t, a project dedicated to the raising of horses and the providing of horse riding lessons. The Court in that case determined that the usual meaning of the word "agriculture" includes the raising of livestock, including horses. Id. at 971. Furthermore, the Court analyzed the definition of "agricultural land" set forth in G.L. c.61A, §1, the agricultural tax exemption statute, and determined that "agriculture" encompasses the raising of horses and any use which is customary and incidental to the raising of horses and "preparing. them or the products derived therefrom for market. " Id. The Court concluded that "the plaintiffs' purchase and raising of horses, their stabling, training through the operation of the riding school and their participation in horse shows are all part of the one whole, and constitute agriculture as the phrase is used in c.40A, §3 . " Id. at 972. KOPELMAN AND PAIGE, P.C. MEMORANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 3 In order for a horse riding school to attain an agricultural exemption, the petitioners must demonstrate that the horse raising and riding school would encompass a land area in excess of five acres and that the providing of riding lessons is related to and incidental in some manner toward preparing the horses for sale on the market. The plaintiffs in the Steege case demonstrated that they trained the horses they raised to be sold as riding horses and were able to develop the horses as riding horses by utilizing them in their horse riding school. The Steege case thus requires some demonstration of a relationship between the horse breeding operation and the riding school. The two uses cannot be separate and distinct. -4 3 . Sale of Plants Raised Off-Site In 1994, G.L. c.40A, §3 was amended by adding the following: For the purpose of this section, the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises. This amendment includes within the agricultural exemption those businesses which sell nursery stock which is raised off premises, so long as the nursery stock is nourished, maintained, and managed while on the premises. This amendment effectively reverses the prior interpretation of §3 by the Supreme Judicial Court in Building Inspector of Peabody v. Northeast Nursery, Inc. , 418 Mass. 401 (1994) . The Court held that the business of selling trees and bushes which were planted and nourished elsewhere and delivered to the business premises ready for marketing does not constitute "agriculture" within the meaning of G.L. c.40A, §3 . In that case, the defendant imported its entire inventory from off-site growers, in a "ready for sale" state. - Determining that "raising or propagation of plant or animal life" is a "central and primary component" of any activity deemed under previous decisions to constitute exempt agricultural uses, the Court concluded that where there was no "cultivation" by the defendant landowner, the nursery could not be regarded as an agricultural use for purposes of the Section 3 exemption. The above-cited amendment of c.40A, §3 has, however, negated this court ruling. er rul , y , ara Saint An re BJS/j c .#YC;E BRADSHAW TOWN -CLERK 971 DOVER Received by Town Clerk: fEBI5 3 51 PS TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant Z�EpN (T r_py77,q-z�,4 Address 2o4l� 4,<,,66tS- (,,() /i�j�4�cl�o�£.r, A(4 Co ucL S• 691JI&4-3A Tel . No. 79y-,36,d 1 . Application is hereby made: a) For a variance from the requirements of Section_ Paragraph Z and Table A 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 1.Z and building (s) numbered [�,, S-9 ,Ei�Xr-f S ��iIJE Street. b) Premises affected are property with frontage on the North ( ) South ( ) East (X) West ( ) side of Street. Street, and known as No. Street. c) Premises affected are in Zoning District and the premises affected have an area of 16.5- - I /oquare feet and frontage of 1,56 feet. �� 3 . Ownership: a) Name and address of owner (if joint ownership, give all names) : Date of Purchase _ 7 Previous Owner 6,( 7J,c;1' b) 1 . If applicant is not owner, check his/her interest in the premises: Prospective Purchaser Lessee Other Rev. 10/95 f DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: ,[ Required Setback Existing Setback Relief or Area or Area Requested Lot Dimension �S /`',: e— / 4' Area Street Frontage Front Setback ILIA Side Setback(s) Rear Setback Special Permit Request: J /� J LIST OF PARTIES OF INTEREST PAGE OF SUBJECT PROPERTY iMAP PARC��LIAME ,ADDRESS� �Ph Cr- Cyvrr2fF.�� r. g ;s ABUTTERS ;M!!F PARCEL NAME ;ADDRESS d a h ,- i Ar 7 Mvs� dto --- ivc 01— R2 -- D3 "� _ [� 40/,Ue PSP• I ~?''" , lv J WOW-r%4 "Cba"vl PLAMN0461 b0►s0 pai6.. w No¢TM /a►rtopre>3.MA»AC41u1cTTy tw�.•�i• �_�FAY�Tp1. •..ao y �••IY O•Tt f +�`''• ter' 1'Ov�� _. / •` I Nit G+Nue _ ._ ._ _ \ PLALN � t'•moo' t i \ 1 TASLE Ot DQG\NtN(7S= 25 �� N oc WneT1lpuDov SHEETLOGViNOc \ •'Ic VoorL ZI / i2.1 O.CI�E 0=TwE TJw•.. L:_E2C w 1 GOVEC -MEET. S t E 2A f i r.,j ISTO CECTICv-r,7OIV '7MEET,y ---6.75 E IT,SO_SV LIN ZO / DL�NNS 6 SOA OM TME NOQTL; ANDOVEY �MGETw t 1..0'7^.a IO-2L.57 -W--+—N— WGT / EO A CEQTIC ICAT1pN OC OHEET•7 1..Cf!': ZD_b0 O E2 GATE - 24/ lai rTe APf+ROV AL OC THI7 PAI.+AI.b SMEGT► r. LOT7 !G-B� -♦v-r�w.� i Ib 2T / n I FMAT DUE IN6 TME rwerN-ry DAY'bNET- SI-IEGTw T LOTO !A•4p HYOQANT )} 01i. 'NO S M►vE QEGEIVEfl NO NOTIGE �HEET� O L.O-T�� Li5-TZ CATGI.1 7 2rb % �! ( /• OC ANY APVEAL FtOM 'SAID[' S.iEET• 9 LOT'S fW-5t•,V0.43 BAD1N t'T02M Doti Jc E»!.C, 17 'w / �+ **MEET' 10 OR-O[ILE' BQIDC.aE�LJ.& - 0-0-1a.0 �-� MANMOLE G�t+Iel .ry S:iLZ`I _ J '► ~-- _ SI+GG-r• 1 I PC CX'la„E. SIZIO(,1E--, LADE IT-O•Zq.0 T 44 S! /7.J k TOWN C.a_.r..r 7wELT� 12 G¢Oc1Li: VEST WAY O.O•L�•O HEADWALL. I. �°�� • / TOWNO�Nccrw�WEl•+ OwEETI 17 DQ.OGILE.. 6210r.Ey L E �• • � L6-O-54-Y'I.Z 15 3� bo i d j/ OMEET� K VEST b/AY-t LZ-O-2L•22 e5 STONE SOUND(TO EE DGT) W GONS-r'. T1p..I OE `',�1•J 14 92 �� r /O!I -•_ -- INTIGQM7TTMFT STCEAM/ 41 $L �[ Cwwq a♦ / / ` DQdIV TGr AbT PT rI 15 $l Jc ZONING a15T'SOILQICT.11 IL.Z 42 i3ENCwI I NYlZL': U SG DATUM: / !2 yp I} - L O C E.G O G.OTA 5.0 x / I LT Z9 5 S0XCJ2D 4V 7T, 5. // .a E.Bv: 34. ` 151.051 t0 / � ` LS Z CECTICv THAT j HAVE GONCOQ MED W IT•y� THE V-LLL•'a ANO4406 QEAVLATIGN•�c �.'+� ' 8 � 47 AT 58 f co..ca � Oc TIME 2E615TE@1 OC DEEO� IN NQ�PACINC]TMID CLVV. � �� 41�t 45 d ti 44 Gl'ANIG > 4D — ZCALP IN c({T w.. CaELo.GaS-IZEG LAND'aU2%W you Ac' NOTE' NOIZT1.1 ON ALL S+IEETg ` owe D 42 2 / 1 / �' ' �5 NORTH ANDOVE Oc LAND OL -r &4E_IN NE LOCATE62tD6E> >CaLE i•, OwNE¢SE : MASSACH do E TURk4E2 A.S¢/otaG�j USETTS QE V NOV 1,Iq T7 «�[ ICED. PLAN 140 WotTM D —� �`� Do NOT SGALc APVL,IGOILTH ANDOVGQ A�SOLJA`C•ICSON,TGwINE3l3E EpX "• S+-IFFY 1 Oc /4 LAND/VEDT tT KILt*,TJ[5 h IC tLpY',fT..6DSTON'•MA• _ - F¢AaK C.GEL-INA, 1;. t..5T-. SCSTCN 4551 ANDOVEQ �T. SOCIATEg-EN41NGE"'L AV CHITECTy V OATH QNDOVt;Q MA 1. • L'-1217-1 I S - 8°- � ti 4-,B -7c) .00 ' '! N N ' i I in Lo L oT- 59 0 , L oT 58 , O - \ in \� 00 x � /00 � . R6 i 0 O " op i n Joseph& Colleen Contrada ( ' 209 Bridges Lane North Andover, �[A 01845 BOARD OF March 4, 1996 Board of Appeals Town of North Andover North Andover, MA 01845 y=' Dear Board Members, In August of 1994, we were granted a variation from the requirements of section 7, paragraph 7.1 and table 2 of the zoning bylaw that prodded us with relief from the two acre minimum building lot requirement for our property at lot 59 Bridges Lane. Our purpose in seeking this relief was, of course, to make it possible for us to sell the lot. When the property went unsold by the time that the original variance expired, we applied for and received a six month extension in August of 1995. Prior to the expiration of the extension(February 1995), the lot was put under agreement, and we fully expect to pass on the property as soon as all engineering and conservation issues have been resolved. We would therefore respectfully request that the'Board of Appeals grant us a new variance so that we may continue with our efforts to complete the sale of the property. In so doing, we would like to briefly repeat one of the points that we made in our original request: that all of the homes on our street are built on one acre lots and that in the last 18-24 months,_ several new homes have been built within a few hundred v ards of our lot: all on one acre lots. Thank you. Sincerely Joseph&Colleen Contrada 4 MR 11 ' LEONARD KOPELMAN KOPELMAN AND PAIGE, P. C. JEANNE S. MCKNIGH DONALD G PAIGE JUDITH C. CUTLE ELIZABETH A LANE ATTORNEYS AT LAW 7 JOYCE FRANK SOARQ ALc ' 31 ST- JAMES AVENUE JOHN W GIORGIO BARBARA J SAINT ANDRE BOSTON. MASSACHUSETTS 02116-4102 SANDRA CHARTON JOEL B BARD (LANA M. QUIRK BRIAN W. RILEY EVERETT J sMARDER BOSTON OFFICE JOHN J. KENNEY.JR. PATRICK J COSTELLO (617)556.0007 MARY L. GIORGIO JOSEPH L.TEHAN. JR FAX 1617)654-1735 KATHLEEN E. CONNOLLY KURT B. FLIEGAUF �,` NORTHAMPTON OFFICE MICHELE E. RANDAZZO .A WILLIAM HEx'tG 111 14131 585-8632 PETER J. FEUERBACH THERESA M DOWDY AARON M.TOFFLER - - _ DEBORAH A ELIASON WORCESTER OFFICE MARY JO HARRIS -508:752-0203 ANNE C. PREISIG THOMAS W. MCENANEY March 4, 1996 M E M O R A N D U M T O M U N I C I P A L C L I E N T S F� TO: BOARD OF SELECTMEN/MAYOR/TOWN AND CITY COUNCIL TOWN MANAGER/TOWN ADMINISTRATOR/EXECUTIVE--SECRETARY ZONING BOARD OF APPEALS RE: EXEMPTIONS FROM ZONING BY-LAW AND EMINENT DOMAIN POWERS OF RAILROAD CORPORATIONS Many municipalities have requested opinions •on whether a _' : . railroad company ("Railroad Company") has the ability to acquire property by eminent domain and the extent to which the company's uses of property may be exempt from a zoning by-law. In general, a Railroad Company's use of its property-may-be exempt from the operation of a zoning by-law if the state"` Department of Public Utilities (DPU) determines after a hearing that the_proposed use is "reasonably necessary for the convenience or welfare of the public. " G.L. c.40A, §3 . The~ __ Railroad Company must first contact the local zoning board of appeals to obtain a determination on whether the use is prohibited by the zoning by-law. A. Exemption From Zonina. - General Laws Cha pte____.40A, §3 governs the_ ab___ _a� Railroad Com an p y_to obtain an exemption from_ a zonin-g.,_by Law, for_w .�_. uses of property for railroad purposes. In order to obtain-an exemption for .the proposed use from a zoning by-la w, -the--Railroad� - -- _ Company must first petition the DPU for a -determination - - -. exemption is "reasonably necessary for the (public] convenience. "_ In determining whether the use of the property fitsthe "public ^ : convenience" criterion, the Supreme Judicial Court has stated that it is immaterial whether the property was acquired by eminent domain or by sale or that .the proposed use is the best possible use of the property. New York Central Railroad v. Department of Public Utilities, 347 Mass. 4 KOPELMAN AND PAIGE. P.C. MRANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 2 . 586, 591 (1964) . The Court also stated that the DPU's analysis of the "public convenience" encompassed a wide inquiry and required a "broad and balanced consideration of all aspects of the general public interest and welfare and not merely examination of the local and individual interests which might be affected. . . " New York Central Railroad, 347 Mass. at 592. In the case of Framingham v. Department of Public Utilities, 351 Mass. 127 (_ 5) , for example, the Court approved the DPU's use of broad criteria to analyze whether a Railroad Company's proposed use of a property as a transportation facility served the public convenience. Id. at 130. The DPU's criteria, which were approved by the Court, included: (a) the extent of the usefulness of the proposed facility to shippers, manufacturers, motor vehicle distributors, and consumers; (b) the suitability of the locus for the proposed facility and for other uses. . . ; (c) the probable effect of the facility upon the gross and net revenues of the railroad; upon the railroad's ability to continue to perform its intrastate and interstate public functions. . . ; (d) the effect of the facility upon highway congestion. . . ; (e) the possibility that injury to abutting owners can be minimized by proper screening of the facility by trees and otherwise; and (f) the relative advantages and disadvantages of the proposal from the standpoint of the public welfare and convenience. Id. Thus, the DPU's inquiry may encompass more than concerns of the surrounding area but broader societal impacts of the proposed uses, as well. B. Eminent Domain Powers. Pursuant to G.L. c. 160, §§80-84 , a Railroad Company is authorized to acquire property by eminent domain. The Railroad Company's proposed use of the property does not, in my opinion, have any bearing on its ability to acquire the property by eminent domain. General Laws Chapter 160, Section 78 provides ' that Railroad Companies may purchase additional land for many types of uses to serve the transportation route approved by the DPU. The statute authorizes Railroad Companies to purchase such land 0 KoPELMAN AND PAIGE. P.C. MEMORANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 3 . . . . as may be reasonably necessary for the proper construction and security of the railroad and the convenient operation thereof, for one or more new tracks adjacent to other land occupied by it by a _ track or tracks already in use, and for the purpose of cuttings, embankments, and for procuring stone and gravel, and for stations, car houses, roundhouses, freight hous ,s, yards, docks, wharves, elevators and other struLtt re_. G.L. c. 160, §78. Should the Railroad Company fail to secure the property by agreement with the owner, G.L. c. 160, §§80-84 provides the Railroad Company with the power to acquire the property by eminent domain. A Railroad Company may be limited in its acquisition of property by eminent domain, if the land is presently owned by a governmental entity. General Laws Chapter 79, section 5 requires that a Railroad Company obtain state legislative approval when it intends to take state owned land by eminent domain. The statute further requires consent of the Town in which the land is located if the Railroad Company proposes to take any land outside the limits of the route fixed for the railroad which comprises a portion of a highway, public building, cemetery or parr. Very truly yours, Deborah A. Eliason _ DAE/j a i i _ � 2 MAR LEONARD KOPELMAN KOPELMAN AND PAIGE, P. C. I JEANNE 5. MCJCNIG HT DONALD G. PAIGE 1 UTLER ELIZABETH A LANE ATTORNEYS AT LAW ^ Q� ,''Ara"EFM AGI.HYLAND `." _°ISI•HA-RO'BOWEN JOYCE FRANK 31 ST. JAMES AVENUE CHERYL?+'F;lN v.CANKS JOHN W GIORGIO DAVID J. DONESKI BARBARA J SAINT ANDRE BOSTON. MASSACHUSETTS 02116.4102 SANDRA CHARTON ILANA M. QUIRK JOEL B BARD BRIAN W. RILEY EVERETT J MARDER BOSTON OFFICE JOHN J. KENNEY. JR. PATRICK COSTELLO (617, 556-0007 MARY L. GIORGIO JOSEPH L TEHAN JR FAX617!654-1735 KATHLEEN E CONNOLLY KURT B. FLIEGAUF NORTHAMPTON OFFICE MICHELE E. RANDAZZO WILLIAM HEWIG III (413, 585-8632 PETER J. FEUERBACH THERESA M DOWDY AARON M. TOFFLER DEBORAH A ELIASON v:ORCES-ER C ICE MARY JO HARRIS .508, 752-0203 ANNE C. PREISIG THOMAS W. MCENANEY February 21, 1996 M E M O R A N D U M T O M U N I C I P A L C L I E N T S TO: BOARD OF SELECTMEN/MAYOR/TOWN AND CITY COUNCIL TOWN MANAGF:� TOWN ADMINISTRATOR/EXECUTIVE SECRETARY ZONING BOARD OF APPEAL RE: SCOPE OF AGRICULTURAL USE EXEMPTION - RECENT DEVELOPMENTS We are frequently asked questions regarding the scope of the so-called agricultural use exemption under the State Zoning Act. This exemption forbids zoning ordinances or by-laws that prohibit, unreasonably regulate, or require a special permit for the use of land of more than five acres for agricultural purposes. The relevant portion of the first paragraph of G.L. c.40A, §3 states: No zoning ordinance or by-law shall. . .prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture. . .except that all such activities may be limited to parcels of more than five acres in areas not zoned for agriculture, horticulture, floriculture, or viticulture. A number of cases in r6cenc years - have addressed the scope of the agricultural exemption in various contexts. In this memorandum, _ I will review recent cases relating to the raising and breeding of dogs and horses -and the sale of plants raised offsite. 1. Raising and Breeding of Dogs The appellate courts have held that the operation of a kennel on a parcel of land of more than five acres in size, for the-breeding, raising and training of dogs owned by the landowner, is an agricultural use which is exempt under G.L. c.40A, §3 from the application of certain zoning requirements, including any special permit requirements. The Appeals Court has determined on numerous occasions that the raising and training of domestic animals may be an exempt agricultural use when conducted KoPELMAN AND PAIGE. P.C. MEMORANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 2 in accordance with standards set out in Section 3 . See, e.g. , Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401, 403 (1986) , citing a dictionary definition of "agriculture" as including "the science or art of the production of. . . (d]omestic animals, such as cattle, horses, sheep, hogs, or goats, raised for home use or for profits. " In Sturbridge v. McDowell, 35 Mass. App. Ct. 924 (1993) ,. the Appeals Court determined that dogs are included in the category of "domestic animals" within the definition of "agriculture", provided they are owned or bred by the landowner. The Court --. concluded that the breeding, raising and training of dogs on a parcel of more t, five acres is an agricultural use which is exempted from zoning by G.L. c.40A, §3 , if the dogs are owned or bred by the landowner. It should be noted, however, that the Appeals Court has not ruled that all kennels are agricultural uses. The Court in Sturbridge expressly decided that the boarding, grooming and training of dogs not owned or kept as breeding stock by the landowner are not agricultural uses because these activities are not an integral part of the breeding and raising of dogs. 2. Horse Raising and Riding Another common issue is the extent of the agricultural exemption as applied to the raising, breeding, and riding' of horses. The agricultural use exemption applies to the raising of horses, and will also apply to riding lessons and boarding of horses if these activities are an integral part of the raising of horses. The Appeals Court in the case of Steege v. Board of Appeals _ of Stow, 26 Mass. App. Ct. 970, 971 (1988) analyzed the applicability of the agricultural t.:ural exemption to a project dedicated to the raising of horses and the providing of horse -_ riding lessons. The Court in that case determined that the usual meaning of the word "agriculture" includes the raising of livestock, including horses. Id. at 971. Furthermore, the .Court . analyzed the definition of "agricultural land" set forth in G.L. c.61A, §1, the agricultural tax exemption statute, and determined " that "agriculture" encompasses the raising of horses and any-,use - which ny_use _which is customary and incidental to the raising of horses and "preparing them or the products derived therefrom for market. " Id. The Court concluded that "the plaintiffs' purchase and raising of horses, their stabling, training through the operation of the riding school and their participation in horse shows are all part of the one whole, and constitute agriculture as the phrase is used in c.40A, §3 . " Id. at 972. KOPELMAN AND PAIGE, F.C. MEMORANDUM TO MUNICIPAL CLIENTS February 21, 1996 Page 3 In order for a horse riding school to attain an agricultural exemption, the petitioners must demonstrate that the horse raising and riding school would encompass a land area in excess of five acres and that the providing of riding lessons is related to and incidental in some manner toward preparing the horses for sale on the market. The plaintiffs in the Steege case demonstrated that they trained the horses they raised to be sold as riding horses and were able to develop the horses as riding horses by utilizing them in their horse riding school. The Steege case thus requires some demonstration of a relationship _ between the horse breeding operation and the riding school. The two uses cannot be separate and distinct. 3 . Sale ofPlantsRaised Off-Site In 1994, G.L. c.40A, §3 was amended by adding the following: For the purpose of this section, the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises. This amendment includes within the agricultural exemption those businesses which sell nursery stock which is raised off premises, so long as the nursery stock is nourished, maintained, and managed while on the premises. This amendment effectively reverses the prior interpretation of §3 by the Supreme Judicial Court in Building Inspector of Peabody v. Northeast Nursery, Inc. , 418 Mass. 401 (1994) . The Court held that the business of selling trees and bushes which were planted and nourished elsewhere and delivered to the business premises ready for marketing does not constitute "agriculture" within the meaning of G.L. c.40A, §3 . In that case, the defendant imported its entire inventory from off-site growers. in a "ready for sale" state. Determining that "raising or propagation of plant or animal life" is a "central and primary component" of any activity deemed under j previous decisions to constitute exempt agricultural uses, the Court concluded that where there was no "cultivation" by the defendant landowner, the nursery could not be regarded as an agricultural use for purposes of the' Section 3 exemption. The above-cited amendment of c.40A, §3 has, however, negated this court ruling. T rul y , ara Saint An re BJS/j c REr; '! 'Town of North Andover t N°RTH 1 JOYCE BhA��':,�AW OFFICE OF ?0�' 6o NORTH CODv�IiMUNITY DEVELOPMENT AND SERVICES ° F- A s • i 48 146 Main Street North Andover, Massachusetts 01845 SAC US BOARD OF APPEALS ' shall be filed NOTICE OF DECISION Any a�9�a after the With�i� i''�i ""yes NOtiC� Property: Lot 59 Bridges Lane thIS date Of theTOW" >, ,4 in the v�►ice o 10TV Joseph & Colleen Contrada Date: 3-21-96 209 Bridges Lane Petition# : 005-96 North Andover, MA 01845 Date of Hearing: 3-12-96 The Board of Appeals held a regular meeting on Tuesday evening, March 12, 1996 upon the application of Joseph Contrada requesting a variation of Section 7,Paragraph 7.1,72 and Table 2 of the zoning By Law so as to permit relief of one-acre from two-acre zoning and relief on 25' from the street frontage requirement for property located at Lot 59 Bridges Lane, Zoning district R-1 for purposed of building a single family dwelling. The following members were present and voting:William Sullivan, Raymond Vivenzio, Ellen McIntyre, John Pallone and Joseph Faris. The hearing was advertised in the North Andover Citizen on 221.96& 2.28.96and all abutters were notified by regular mail. Upon a motion by Ray Vavencio and seconded by John Pallone the Board of Appeals unanimously voted to GRANT relief of 1 acre from the required 2 acre zoning and relief of 25' from the street frontage requirement of 175'.Voting in favor; Raymond Vivenzio,John Pallone, Ellen McIntyre, Joseph Faris and Scott Karpinski. The petitioner has satisfied the provisions of Section 10,Paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning Bylaw. 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